HomeMy Public PortalAboutZoning Board of Appeals -- 2009-07-14 MinutesDate approved 10-13-09
Vote 7-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
)uly 14, 2009
Chairman Philip Jackson called the meeting to order at 7:00 PM. Members present were; Philip Jackson, Arthur
Stewart, Paul Kearney, Bruce Macgregor, Brian Harrison, Leslie Erikson, John Nixon, Patricia Eggers and Sarah
Kemp.
Attending Audience Members: Sue Leven; Brewster Town Planner, Victor Staley, Brewster Zoning Agent.
OLD BUSINESS
• Motion made by John Nixon to ACCEPT the Minutes of June 9, 2009 as presented. Second made by Paul
Kearney. VOTE 8-0-1.
• Motion made by Paul Kearney to ACCEPT the Minutes of the Executive Session of June 9, 2009 as
presented. Second made by Leslie Erikson. VOTE 8-0-1
NEW BUSINESS
08-25 George V. Albert, 0 Clay Hole Road, Map 45 Lot 45-1. Represented by Attorney William H.
McCarthy. The applicant seeks a Variance under MGL 40A-10 and Brewster Bylaw 179-52 to build a single family
dwelling on an undersized lot.
CONTINUED from September 9, 2008.
Members hearing this case were Messrs. Jackson, Stewart, Nixon, Kearney and MacGregor.
Attorney William McCarthy represented the applicant.
George V. Albert was present at the hearing.
This application is regarding insufficient lot area.
Deeds from 1949 reflect the acquisition of 9+ acre parcel.
In 1972 it was divided into 2 equal portions after a Schofield survey; Albert's portion was 4.1 in Orleans and .47
in Brewster.
Eli Rogers Road in Orleans becomes Clay Hole Road in Brewster
20,0001 square feet in Brewster
In discussion with Wentworth Institute to give the Orleans property as a gift to be sold and monies to be used as
scholarships. Mr. Albert would like to build a modest home on the Brewster portion. No building plans have been
drawn up yet. This would benefit his alma mater and he would remain as a resident.
Variances are exceptional form of relief; unique circumstances.
[Comments submitted from Conservation/Planning Department and a member of the Planning Board]
Mr. Albert has been paying taxes as a buildable lot.
Next step is a formal subdivision plan with Orleans.
Board Questions
ZBA Minutes 07-14-09
• Nixon-mention a gift to Wentworth-is there development on it, what is going on?
• McCarthy-there is a primary structure as well as several other units.
• Nixon-are you gifting the land with the structures?
• Albert-sell off the land and divide into 4 lots for sale (cash for scholarships).
• McCarthy-Wentworth had the Orleans land appraised for subdivision, sale and razing structures. Value
is the sale of the land.
• Kearney-what is the s.f. with the road removed?
• McCarthy- according to the 1973 deed 20,434 exclusive of road and turnabout. If a structure was
placed on the lot it would have to meet all setbacks.
• Stewart-1St criteria is soil, shape and topography. How do you fit in?
• McCarthy- composition of the lot is limited-rock formations. Shape undersized because of the location
of the town line. Slope limits how and where a dwelling can be situated. Very steep for a driveway.
These conditions are unique to the lot not to the area.
• MacGregor-do we have a letter from the Zoning Agent?
• Victor Staley- no
• 7ackson-I would like to refer to page 12 of Zoning Bylaws; 179-5(F)
When a lot in one ownership is situated so that a part of it is in Brewster and part is in an adjacent town, the
provisions of this chapter shall be applied to that portion of the lot which lies in Brewster in the same manner
as if the entire lot were situated therein; i.e., the entire area and frontage shall be considered in determining
conformity to the dimensional requirements herein. The use of the portion of the lot in Brewster shall conform
to the provisions herein. [Added 5-7-2007 ATM, Art. 27]
Open to Public Input
• Staley- it is unique, the road layout could be absorbed into the lot.
• Elizabeth Taylor-town line does not create a property line. Come to Planning Board if Variance is
obtained. This is a sub standard lot in the DCPC.
Motion by John Nixon to Close to Public Input. Second by Paul Kearney. VOTE: 5-0-0.
Further Questions
• Stewart-I don't see how this fits Variance criteria; first it is purely a size issue.
• McCarthy-or topography
• Stewart-not topographical, just size issue. Not hardship as it is contiguous to 4+ acres.
• McCarthy- look at Brewster portion; non-conformity-area size. Pie shaped formed by town
boundary. Agree that the non-conformity is lack of s.f.
• MacGregor-shape making a hardship is not clear. Not convinced this is applicable.
• McCarthy-Bylaw definition of "lot"-indicates "part there of..." Subdivision rules and regulations have
detnition of lot as;
LOT -- An area of land under single ownership, with definite boundaries, used, or available for use, as the site of one or
more buildings.
• MacGregor-nothing you say means town boundary defines lot boundary.
• McCarthy-if granted relief for lot the area there will be a surveyor's plan.
• MacGregor-If not a town boundary the Planning Board would note not a building lot.
• Albert-divisional line begins and ends property line.
• MacGregor-why haven't we been shown this case law in the material presented?
• McCarthy- LOT - An area or parcel of land or any part thereof, not including water area, in common
ownership, designated on a plan filed with the administrator of this chapter by its owner or owners as a parcel to
be used, developed or built upon as a unit under single ownership or control. Any subsequent subdivision of a
"lot" into two or more "lots" shall be subject to and conform to all the regulations of the district. Therefore, for
purposes of this chapter, a "lot" may or may not have boundaries identical with those recorded in the Barnstable
ZBA Minutes 07-14-09
2
County Registry of Deeds.
• Nixon-I don't think it meets the second criteria of hardship-limited to Brewster section.
• McCarthy-In this case, Brewster land, of no value without the relief asked.
• Nixon-question about size and topography seems to be the consideration.
• Kearney-hard time with impact.
• Jackson-sensing the feeling of the Board
Planning Board for suggestions) ~ Perhaps you should ask for a Continuance (solicit the
• McCarthy-I did not come into the ZBA to review the Department comments.
• ]ackson-you could request a Continuance, Withdrawal or ask for a vote. I feel you should take this
to the Planning Board.
• McCarthy- I would request a CONTINUANCE of 08-25 until November 10, 2009
Motion by Arthur Stewart to CONTINUE 08-25 until November 10, 2009. Second by Paul Kearney. VOTE: 5-0-0
09-12 Cape Cod Museum of Natural History, 869 Main Street, Map 20 Lot 6. The applicant seeks a
extension of previous (08-13) Variance under MGL 40A-9 and Brewster Bylaw 179-19 and 20.5E (5)) for three
years (through 2012) for banner signs advertising Museum events as previously approved.
Members hearing this case were Messrs. Harrison, Stewart, Nixon, Erikson and MacGregor.
Mr. Roy Smith, Trustee of Museum was present for application
Mr. Smith gave a brief overview; there is a movement within the Planning Board, Historic Commission and the
Chamber of Commerce. We are asking for an extension on our previous Variance. The sign (banner would be
the same as previously applied and granted) will hang on the left hand side of the building. The banner to the
right explains the Museum. The size will be the same.
Board questions
• Sue Leven-original Variance was time specific, thus the new extension. Town Bylaw may not revisit
soon.
• Jackson-all that is an extension.
• Nixon-as I recall the size of the signs was so they could be read at the distance from the road. This was
granted. Things have not changed
• Smith-they are 100 s.f. If the town changes the Bylaw we will go along with it.
Open to Public Input
• Victor Staley-historically the sign code changed several times from 100 s.f in 2000 to 20 s.f in 2005
leaving some places "in a pickle".
Motion by Brian Harrison to Close to Public Input. Second by Arthur Stewart. VOTE: 5-0-0.
Further Discussion
• MacGregor- OK
• Harrison- OK, same as previous Variance
• Stewart-fine
• Nixon-in favor, if sign Bylaw is changed then the Variance should be reviewed.
• Erikson-agree with Jack's comment.
• MacGregor- this is fine, leave it alone. If Bylaw changes we will readdress.
• Harrison-Bylaw is too broad, this is a 3 year new Variance.
• Stewart-go ahead and extend
• Nixon-OK with that
ZBA Minutes 07-14-09
• Erikson- OK
Motion by John Nixon to GRANT an extension of Variance (08-13 original Variance) new Variance 09-12 for
banner signs as approved previously through 2012.
Second by Arthur Stewart. VOTE: 5-0-0.
09-13 Teresa Dooley and Martin Perry, 226 Gulls Way, Map 41 Lot4-3. The applicant seeks a
Variance under MGL 40A-9 and Brewster Bylaw 179-52, Article V, Table 2 to build a deck on an existing
foundation at the bottom of a sloping grade at waters edge within the 25 foot setback to the rear property
line.
Members hearing this case were Messrs. Harrison, Nixon, Erikson, MacGregor and Ms. Eggers.
Mr. Doug Erikson, builder, represented the applicant.
Applicants were present in the audience.
The stairway to the beach was approved by the Zoning Agent and the Conservation Commission. Some of
the original structure is there for the original deck. The application is asking to build a deck on top of the
existing foundation. This will minimize the wear and tear on the ground.
Board Questions
• Erikson-I looked at the property with the concrete foundation. Any removal of vegetation?
• Doug Erikson-N0, all approved by Conservation.
• Les Erikson-25 feet from rear property line.
• Doug Erikson-the pond is the rear property line.
• Kearney-all set
• Harrison-OK
Open to Public Input
• Elizabeth Taylor-just curious; if the waters edge is the rear property line, why don't docks come
under this regulation?
• Victor Staley- docks are in the water thus Conservation handles their regulations; stairways and
decks are structures.
• Taylor-do you have a copy of Conservations Order of Conditions?
• 7ackson-yes
• MacGregor-25' isn't anything, we don't want to disturb the land.
Motion by Paul Kearney to Close to Public Input. Second by Patricia Eggers. VOTE: 5-0-0
Further Discussion
• Harrison-foundation is already there thus apre-existing structure-no problem
• MacGregor- reasonable and well thought out
• Eggers-I agree; the least obtrusive way to do a deck.
• Kearney- no problem
• Erikson- OK
Motion by Paul Kearney to GRANT a Variance to build a deck on an existing foundation at the
bottom of a sloping grade at waters edge within the 25 foot setback to the rear property line
within the conservation Commission's Order of Conditions. Second by Patricia Eggers. VOTE: 5-
0-0.
ZBA Minutes 07-14-09
09-14 Stephen Brown, 2624 Main Street, Map 15 Lot 113-2. The applicant seeks a Special Permit
and/or a Variance under MGL 40A-9 and Brewster Bylaw 179-52 to build two separate additions to 2 existing
building making 4 dwellings on the property.
Members hearing this case were Messrs. Harrison, Stewart, Nixon, Kearney and Jackson.
Mr. Stephen Brown represented himself for this application.
The property includes 3 different zoning areas.
It is divided into 3 separate areas; 1) a Special Permit to move the zoning district to include the Burgess House
into amulti-familiy dwelling. 2) Variance needed to bring 2 dwelling units in compliance with building codes. 3)
more than 1 dwelling unit on the property.
Application is coming before the ZBA for all at once even though some will be completed in the future.
Board Questions
• 7ackson-Is this all one lot?
• Brown- YES, 8 acres behind. Originally did a subdivision; one lot the Burgess House and the other the
Herb Shop. I would like to recind this and go back to one lot.
• 7ackson-what is there now?
• Brown- Burgess House- 1955 originally 2 retail first floor, 2 offices upstairs. Now 2 apartments upstairs
(not up to code), 1St floor is Chocolate Peddler and a Plumbing and Heating business, in the basement
there is a person living there part time (no kitchen). Herb Shop- addition to west side with dwelling
upstairs. Farm House- additional bedroom and utility room for owners use.
• Harrison- 2 Special Permits and a Variance are requested. Under 179.34(L) farm exemption- need a
good site plan. What part is farm use? Are any additional buildings exempt as farm employee housing?
• Brown- main use of property is a farm.
• Harrison-apartments and business use are not related. Not directl su
• 7ackson- what is really related to the farm? y pporting farm use.
• Staley- 1) Special Permit for multifamily dwelling 2) a Variance (Table 2, note 1) 2 dwellings on a lot.
Did not see as agricultural use- apartments and business.
• Stewart-addition to Herb Shop for future use?
• Brown-Yes, the future but need permission to do later.
• Stewart- any code issues?
• Brown-Yes, bring up to code is the reason for all this.
• Stewart-Burgess House- 2 apartments existing, want to extend VB to CH districts.
• Nixon- Herb Shop in 2 districts. Will the apartments be in RM?
• Staley- N0, issues are multifamily dwelling (CH district) and 3 dwellings
• 7ackson- only one lot.
• Staley- Variance- 1 principal structure, Herb Shop-agricultural, Burgess-now 5 units. Four apartments
and one principal = 5.
• Leven-advertised as 4; 2 Burgess, herb shop and principal dwelling.
• 7ackson-over and above what is shown here.
• Nixon-how does CH get moved to VB?
• Kearney-a lot to review at one time.
Open to Public Input
• Staley- not advertised for 5 units.
• Kearney-for the sake of clarity can you withdraw the herb shop?
• Leven-not what was advertised; needs to be clear.
• Stewart-why 3 districts?
• Brown-Mr. Brown gave an explanation of how the 3 districts came about.
• Elizabeth Taylor-seems to get murkier
• Staley-"use" does not establish a line.
• Taylor-what is total acreage? 6.7 plus 8.3. Nice to see a complete plan for the whole piece.
ZBA Minutes 07-14-09
• Staley-all one lot; multi zoned and multi use.
• Taylor- nice to keep as agricultural.
• Nixon-can the addition be done without a permit?
• Staley-"farm house" never recognized
• Don Biron-concerned with the farm house extension toward the west. Will all setbacks be required?
• Staley-setbacks will be adhered to.
• Eggers-extending the CH zone first.
• Harrison-we need a site plan
• Staley-with the multi-family must go to Planning Board, then DPRC, COPD. Planning Board can
issue a Special Permit.
• Jackson- Too many loose ends. Appropriate to withdraw and try to approach piecemeal.
COPD-CH zone extends to Burgess House -multifamily. Planning Board takes care of the move to
CH. Then you can come back to look at addition to "farm house" and addition over the Herb Shop.
• Staley-suggest a withdrawal
• Jackson-withdraw without prejudice, CH to PB, Special Permit for multi family (Burgess), Farm
House is principal dwelling (variance)
• Eggers-if doing in phases will the septic have to be redone?
• Brown-no, sized for complete renovations.
• Leven- consider talking to Septic person, add additional capacity now rather than come back,
• Erikson-cost to make the system bigger is not that much rather than coming back to enlarge.
• Harrison-keep in mind what you can afford as there are time limits.
Mr. Brown requested a WITHDRAWAL
Motion by Patricia Eggers to close to Public Input. Second by Brian Harrison. VOTE: 5-0-0.
Motion by Brian Harrison to WITHDRAW without prejudice 09-14. Second by Patricia Eggers. VOTE: 5-0-0
Other Business
• Review letter from Victor Staley regarding Yankee Village and accompanying materials.
• To be discussed at the next ZBA meeting (September 8, 2009)
Motion by Brian Harrison to adjourn meeting.
Patricia Eggers seconded.
VOTE: 8-0-0
Res ully submitt
M ilyn Mooers,'C erk L~~~~
Q£: t lY ~S ? ~ 1~~~ ~~0,
C~~-'
ZBA Minutes 07-14-09