HomeMy Public PortalAboutZoning Board of Appeals -- 2009-11-10 MinutesDate approved 12-15-09
vote 6-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
Novemberl0, 2009
Chairman Philip Jackson called the meeting to order at 7:00 PM. Members present were; Philip Jackson, Arthur
Stewart, Brian Harrison, John Nixon, Paul Kearney, Bruce MacGregor, Patricia Eggers and Sarah Kemp.
Attending Audience Members: Sue Leven; Brewster Town Planner and Victor Staley; Brewster Building Inspector.
OLD BUSINESS
Change of date for December meeting (senatorial primary) -NEW: DECEMBER 15, 2009
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 to February 9, 2010 request by applicant's legal representative.
MOTION by Patricia Eggers to Continue this application as requested by Attorney William H. McCarthy to
February 9, 2010. Second by John Nixon. VOTE: 8-0-0.
09-17 Scott + Meredith Parr, 104 Canoe Pond Drive, Map 36 Lot 230. The applicant seeks a Variance
and or a Special Permit under MGL 40A and Brewster Bylaw 179, Article V, Table 2 to construct a 9 x 10.9 deck
on the side of existing dwelling.
Members hearing this case were Messrs. Jackson, Harrison, Nixon and Ms. Eggers. Mr. MacGregor replaced Mr.
Erikson from last meeting.
A brief update was given by Mr. Parr explaining his rational for this application and his meeting with Mr. Staley.
Board Questions
• Victor Staley-he did discuss the Special Permit approach. As this is a conforming structure it should be
considered a Variance. There are many variables; the Bylaw speaks of "stoop" which is considered a
landing at an egress (this is a public safety matter). Landings should be no larger that 4 x 4. A structure
is normally considered as supported and elevated. If it is on the ground it is considered landscaping and
not in the domain of setbacks.
• ]ackson-note in Table 1 allows extending into setback under 4' in height.
• Staley-no definition of stoop in Bylaws.
• ]ackson-is the height of the deck to the floor or top of the rail?
• Staley-top of the rail as a public safety issue. For more comfort zone include rail system.
• ]ackson-this is like the initial proposal.
• Parr-on the ground is permitted. But raised needs a permit; either a Special Permit or a Variance is an
uncertainty. Special Permit standards are more easily met; a Variance is much more specific. Property is
compliant (1970) when subdivision was established-it is conforming and remains conforming.
• Staley-conformity is recognized but in some respects it is non-conforming.
ZBA Minutes 11-10-09
• MacGregor-if we apply that standard we are not recognizing "grandfathered rights". We have always
considered the floor of a deck as the height of the structure, not the railing. Can you drop down a step
and no railings?
• Parr- 2 foot drop on the street side, 3 feet at the pond side.
• MacGregor-can it drop down a step and no railing?
• Staley- 30 inches requires a railing.
• Parr- odd characteristics; windows under the area present a ventilation issue., concern of the rail, in and
out of the door with platter-one level for safety.
• MacGregor-if built closer to the ground not barred from a railing.
• Staley-stoop-standard landing is 42" x 48, beyond is deck. Size of this platform is larger than a stoop.
It is a deck and must comply with setbacks.
• 7ackson-extends into setback. Note 6-allows terrace to extend into setback.
• Parr- looking for approval of safety railing, hardship due to unconvinced of having to have a grill in front
yard.
• 7ackson- conflicts do arise; non-conformance can be intensified as long as it is not increased. Increase
falls into the Variance category.
• Staley-if the Board considered it a stoop (under 4' high) neither a Special Permit nor a Variance would
be needed, it is permitted.
• Harrison- further into the setback, Variance is necessary; non-conformity increases.
• Nixon- no definition of a stoop, increases intensification. Concerned about egress to deck.
• Parr- there will be a door onto the deck
• Nixon- if door is there I could go along with the "stoop" idea. I don't think the railing should make a
difference-I think a Special Permit is allowed.
• Eggers-there is a difference between stoop/terrace/deck and footnote 6 doesn't mention deck.
• Parr-Special Permit extends and existing, can't cause an extension of anon-conforming structure.
• Sue Leven (Town Planner)-the issue is that apre-existing, non-conforming structure allows leeway to
the closest point. As long as you are not creating anon-conformance. This is 20.35 feet from the lot
line.
• 7ackson-we can't seem to move past the encroachment. As in the Goldhirsh decision, you can not
increase the intensity.
• Parr- according to the Bylaw the ZBA has the authority in defined areas; no longer conforming but need
relief.
• Staley- Building permit by right up to 20 feet as it is an older lot with older setback requirements.
• Parr-3 things at issue; don't need to count the railings, Special Permit consideration and if a Variance
sufficient hardship seems to be a question.
• MacGregor-a stoop is an entrance, windows below can be moved. Not comfortable to bend the rules
regarding a Special Permit.
Open to Public Input
• Frank Gross-no objections as the most affected abutter. Comfortable with this application.
• Elizabeth Taylor-increasing the non-conformity is the issue. The Board must look at it as a Variance
and work within the guidelines.
• MacGregor-we have always looked at a deck of less than 2.5 feet did not require a railing; under
Note 6.
• Taylor-terrace is ground level.
• Eggers- terrace can be on the 10th floor
• Leven- pallets on the ground equal patio/terrace.
• Parr-don't want to set a precedent. Another approach is the topography of the lot has an acute
slope.
MOTION by Brian Harrison to Close to Public Input. Second by John Nixon. VOTE: 5-0-0
Final Thoughts
ZBA Minutes I 1-10-09
• Harrison-I don't consider it under footnote 6- not a stoop. Terrace is at ground level. Railing has
nothing to do with this. Further encroachment is a Variance. There are other places where a deck can
go. This is hard sell.
• Nixon- Table 2, Note 6 should be used. Door will be an egress into the yard, meets the requirement of
less than 2.5 feet (without railings) so a Special Permit would be OK. Stoop, terrace and deck are not
defined. For the benefit of the applicant, Variance is a hard sell.
• ]ackson- if Note 6 is applicable then it is by right but applicant needs a Special Permit for relief.
• Eggers-Variance is the cleanest way to clear this up but here is no hardship to meet all 4 criteria.
Special Permit does not apply.
• MacGregor-I feel what is proposed should be a Variance.
• Jackson-At least 3 members feel it is a Variance. At this point hardship is tough to prove.
• Parr-front to street is only where the utilities are. Hardship is not defined here. What is standard for
hardship?
• MacGregor-what is °covered terrace" as listed on the plan?
• Parr-basement drop to ground level, first floor of house makes an elevated deck.
• Staley-first floor level, access from the kitchen means egress
• Jackson-majority of this board feels a Variance is necessary. We have several ways to go; let it go to a
formal conclusion with a vote, ask for a continuance or a withdrawal.
• Parr-We realize a Special Permit will not be correct, request the Board consider a Variance.
MOTION made by Brian Harrison to WITHDRAW the Special Permit application. Second by Patricia Eggers.
VOTE: 4-1-0 (Nixon voted against withdrawal)
• Jackson- We will consider a Variance
• MacGregor-according to the plot plan, there are other locations where this deck can be placed. If a
terrace would it serve the same purpose with a couple of steps. It does not meet the criteria.
• Eggers-hard time with hardship.
• Nixon-doesn't meet hardship and topography
• Harrison-hardship and topography hard to get by.
• )ackson-doesn't meet criteria
• Parr-at this point I would like to withdraw this application without prejudice
MOTION made by Brian Harrison to allow Mr. Parr to WITHDRAW his application (09-17) without prejudice.
Second by Patricia Eggers. VOTE: 5-0-0.
OLD BUSINESS
• Change of date for December meeting (senatorial primary)- NEW: DECEMBER 15, 2009
• Motion made by John Nixon to ACCEPT the Minutes of October 13, 2009 as presented. Second made by
Patricia Eggers. VOTE 8-0-0.
• Discuss change of Planning Department: Abutter Notification Policy as per MA Zoning Act 406.11
• Discussion of Yankee Drive as per request of Victor Staley
1993 this was developed as a 406 (93-19) by McShane
Statement: "waived all dimensional standards" -relating to conceptual plan
Reaffirmed in 1995-including waiver
In 2000-changed to RM district with uses and restrictions
Comprehensive Permit is "grandfathered" and protected
Mr. Staley is not clear as to the intent of the Board and would like clarification
Board Comments
• Stewart-Case 97-05 tried to clear this up with a garage application, since that time 40B falls into
an Association with current setbacks.
ZBA Minutes 11-10-09
• Leven-97-05 was signed March 20, 1997. Letter from Town Counsel- amended Comp. Permit.
406 doesn't eliminate zoning, it waives requirements for that permit, at that point forward
requires zoning.
• 7ackson-anything new comes under existing zoning
• Stewart-Yankee Drive was re-zoned to Residential in 2000
• Staley-the 97 decision was based on one lot, acting under current zoning
• Stewart-they approved detailed plans
• Staley- Town Counsel suggest amending the decision to state that, can reference letter to make
97-05 specific.
• MacGregor- 15,000 square foot lots, can't build anything else.
• Staley-current height restrictions
• Kemp-97-05 was denied but seems to have a larger garage there now.
• Leven-this speaks to how 406's are granted, problem with setbacks and lot size waived. Only
waiving what is asked. I suggest NOT amending this now. Anything in Yankee Village is under
current standards
• Review Hearing Dates for 2010- Board given copy
Next Meeting: December 15, 2009
Motion by Paul Kearney to adjourn meeting.
Arthur Stewart seconded.
VOTE: 8-0-0
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ZBA Minutes 11-10-09
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