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HomeMy Public PortalAboutZoning Board of Appeals -- 2010-11-09 MinutesDate approved December 14, 2010 Vote 5-0-0 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes --__~.-_- November 9, 2010 ~~ Chairman Philip Jackson called the meeting to order at 7:00 PM. Members present were;-Ptiiff~-~ =- Jackson, Bruce MacGregor, Brian Harrison, Arthur Stewart, John Nixon, Paul Kearney, Leslie Erikson, Patricia Eggers, and Sarah Kemp. Attending Audience Members: Susan Leven; Brewster Town Planner and Victor Staley; Town of Brewster Building Commissioner. Documents: Site Plan of Land (10-18), dated 1i-4-10, signed by Terry A. Warner P.L.S. 2010.11.09.001 OLD BUSINESS Motion made by Arthur Stewart to ACCEPT the Minutes of September 21, 2010 as presented. Second made by Patricia Eggers VOTE: 9-0-0 NEW BUSINESS WHITE ROCK COMMONS- ~~some provisions of WRC Special Permit are not acceptable to MassHousing including a condition which purports to make the conditions of the permit superior to MassHousing's legal documents"; discussion of this matter Attorney Andrew Singer was present. Singer- in general; local issues will stay with the Board of Appeals, State will handle state issues within the 40 B process. Jackson-Will other 40B cases be affected? Leven- Habitat for Humanity monitors their own. Motion made by Arthur Stewart; Attorney Singer. Second by John Nixon Vote: 5-0-0 Jackson Stewart Nixon Kearney MacGregor we sign the appropriate acknowledgement as presented by 10-21 Robert Bacchiochi (represented by 7amie McGrath), 585 Slough Road, Map 51 Lot 7, RR zoning district. The applicant seeks an Appeal of the Zoning Agents decision regarding the use of the first floor of the existin4 garage as a workshop/hobby area by the owner of the property, who does not reside on the property. Request WITHDRAWAL w/o prejudice Motion by Arthur Stewart to accept the Withdrawal w/o prejudice of this application ZBA Minutes 11-09-]0 Second by Paul Kearney Vote: 9-0-0 10-15 Patricia A. Ottolini and Cynthia L. Shivick, 17 Poplar Lane, Map 31 Lot 121, RR zoning district. The applicant seeks a Variance under MGL 40A-9 and Brewster Bylaw 179-25 B, to construct an addition to a one car garage to create a two car garage that encroaches on the required setbacks. Members hearing this application: Arthur Stewart, Brian Harrison, Bruce MacGregor, Paul Kearney and Philip Jackson. Ms. Shivick and Ms Ottolini gave a brief overview of their application. They are asking to create another garage as an addition to existing garage. They had considered many options with the least impact on the property. This is an odd shape lot. Topography is an issue due to a side slope. There are other homes on the street with 2 car garages. There were letters of support presented to the Board. The applicant showed several pictures of the house and the topography. Board Discussion Stewart- Is this the same size as the plans presented? Shivick-YES Open to Public Input No one spoke to this issue Motion by Brian Harrison to Close to Public Input. Second by Arthur Stewart. VOTE: 5-0-0 Further Discussion Jackson- Variances are difficult. The toughest is topography. Harrison-hardship is weak; no need to have a garage. 80 s.f. is a very small increase. Stewart-shape is fine. You cannot put the garage elsewhere. Kearney-difficult for a Variance; not a hardship Jackson-not a huge change Shivick- storage is in the basement now and everything has to come up and around, this is the least impact and best option. Neighbors are supportive Harrison- I am a little more liberal with only 80 s.f. Stewart- hardship doesn't have to be just financial; it is a small lot and slopes. Motion made by Arthur Stewart to GRANT a Variance under MGL 40A-10 and Brewster Bylaw 179-25 B, to construct an addition to a one car garage to create a two car garage that encroaches on the required setbacks in accordance with Plan C16599.00 that has been presented with the application. Second by Brian Harrison Vote: 4-1-0 Stewart YES Kearney NO MacGregor YES Jackson YES Harrison YES 10-16 Heather Pond, 199 Seaway Road, Map 7 Lot 79, RM zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-8 to raze apre-existing non- ZBA Minutes 11-09-10 conforming 1-story 2-family dwelling and replace it in the same footprint with a 2-story, single family home that increases the non-conforming nature of the structure. Members hearing this application: Brian Harrison, Bruce MacGregor, John Nixon, Leslie Erikson, and Patricia Eggers. Heather Pond gave a brief overview of her application. This cottage was purchased in the early 50's by her grandmother. Ms. Pond has been living here for 3 years fulltime. The house needs a considerable amount of work as well as a basement. After much thought, Ms. Pond feels it would be best to tear down and rebuild rather than update and renovate. Ms. Ponds father will be moving here so she can take care of him as her gets older. The house is 400 s.f. on each side with no heat and insulation. She would like to make it into a single family home with a second floor, basement and additional bathroom using the same footprint. Board Discussion Jackson- Three abutters have written in favor of this application. It is the same footprint; going from 4 bedrooms to 3 and from 2 kitchens to one. Pond-second floor will not be a full second. Jackson-how is the septic? Pond-Title V MacGregor-Plan shown is existing house, not dimensional Pond- It will remain 24' x 45' MacGregor- same tilt? Pond- YES MacGregor- will the bulkhead remain the same? Pond- YES, on the right for the full basement. MacGregor- How many bedrooms? Pond- 4 now to 3 in new plan. Erikson- There are other 2 story homes in the area, this would fit in. Pond- we want it to fit in Erikson- How many baths? Pond- 2 full, same as now. Open to Public Input Quinta/-as an immediate abutter the 2"d story concerns me. I am downhill to the project; we will loose sun from that side. We will loose privacy; these are tight lots. We are the most affected. Nixon- which lot are you? Quintal- 82 Skippers Way Nixon-Not affect your view of the water? Pond- The second floor is overlooking his property- just 3 small windows 24 x 24 inches. Another abutter faces with a deck. The trees are higher than the house, these are coming down. There will be more sun. Motion by Brian Harrison to Close to Public Input. Seconded by John Nixon. VOTE: 5-0-0 Further Discussion Nixon-This is better than what is there, it seems to fit with most of the neighbors; others are 2 stories. From two units to one is less impact. I am in favor. Erikson- I feel there is less impact, more conforming. In favor. Harrison- reducing a bedroom, in favor. MacGregor-25' high is typical of the neighborhood. A motion was made by John Nixon to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179-8, application in accordance to Brewster Bylaw 179-8 to raze and replace the structure with documentation submitted and identified above. Seconded by Leslie Erikson. ZBA Minutes 11-09-10 VOTE: 5-0-0. 10-17 Richard and Hope Cleary, 130 Gull's Way, Map 34 Lot 55, RL zoning district. The applicant seeks a Variance under MGL 40A-9 and Brewster Bylaw 179-26 (d) to divide a parcel into two separate lots, both without frontage, and allow construction of a single family home on the northernmost lot. Members hearing this application: Arthur Stewart, Brian Harrison, John Nixon, Sarah Kemp and Philip Jackson. The applicant, Richard Cleary was present as well as being represented by his father, Mr. Ray Cleary. Ray Cleary gave a brief overview of what the application is requesting; to divide a parcel into two separate lots, both without frontage, and allow construction of a single family home on the northernmost lot. Board Discussion Ray Cleary-originally under the dirt road bylaw, we want to subdivide property based on usage of property Jackson-we have all read the briefing Cleary-(exhibit board) showing the tree farm; substantial use in agricultural section of the property. (map display) unusually large property-residential almost 2 acres. Two properties in dissimilar uses. Originally the dirt road bylaw to establish a tree farm. Established as a tree farm. We would like to sell one portion of the property. This exceeds the requirements under residential low density. Stewart-would you put an easement across? Consider that as frontage for these 2 lots. You would be caught in the 5 acres trap required in the Dirt Road Bylaw Victor Staley-my predecessor approved 95% of the area Stewart- one under construction now Staley- approved subdivision from 1973 Stewart- Is there a 40' right of way? Staley- it is not a street Rick Cleary- can I make it a laid out street? Leven- can not create a road. Planning Board granted the dirt road bylaw permit. Current application leaves 7 and 2 acre lots; house on the 2 acre portion. Staley- You don't have frontage. One house on 5 acres or more in existence when bylaw 1986. If altering the lot you don't get to claim the dirt road bylaw Ray C/eary- Basing request on use. Variances 179/use with land or structures, agricultural uses by right and state law. Leven- This was not advertised as a use Variance. Ray Cleary-can we request relief from Dirt Road Bylaw based on use. Leven- you seem to be asking for 2 lots without frontage. Jackson Letter from Town Attorney in 1999; Special Permit to build on 9 acres via the Dirt Road Bylaw. One single family dwelling. Letter dated 9/11/08. Stewart- Option; subdivide, sell lower portion, but could not build on top portion but could keep tree farm. Staley- yes, could subdivide and sell off; 5 acres with the house and 4 acres not developed. Stewart-if sold a Variance would be needed. Staley-lower section including house with 5 acres would need a dimensional Variance. Ray C/eary- confused about the 5 acres. Leven- I recommend a continuance to next meeting with change in advertising. Believes the others are based on rulings from previous Zoning Agent. ZBA Minutes 11-09-10 Staley-as an example: Bakers Pond Road-denied on a dirt road bylaw. According to the court a road was in existence/plan recorded. There may be something out there, must be investigated. Jackson- application now reads "to divide a parcel into two separate lots, both without frontage, and allow construction of a single family home on the northernmost lot", what you are asking is not that. Alternative is to withdraw without prejudice or ask for a continuance. Ray Cleary- still require cutting the lower lot into 1.93 acres. Jackson- recommend you sit with Sue Leven and Victor Staley to work a solution Rick Cleary-the property has been on the market; consider condominiumizing the house and sell the farm. Stewart- that is a form of ownership. Harrison- I agree, a new lot line must meet dimensional requirement, and other lots are irrelevant. Kemp- it appears that the homes approved through the ZBA previously appears to have frontage. Ray Cleary- not considered as a recognized road. Staley- sometimes we come across a "road to nowhere" with just a start and stop. Kemp- different situations to each application that the ZBA permits or denies. Staley- then a straight building permit. Leven- ZBA doesn't set precedent, each case stands on its own. Nixon- this is difficult based on application; already issued a permit. Can't go back to 26D. This would not be apre-existing but a created lot less than 5 acres. Don't think we can do that. Jackson- this is difficult-what is the sense of the board? Maybe take a different route. Rick Cleary- no house of the farm (5) acres, and 2 acres with the house. Jackson- another approach may work; work with Victor Staley and Sue Leven. Ray C/eary- can you build on a dirt road or not? Most difficult issue. Court leans on precedent. Rick C/eary- I would like to request a withdrawal without prejudice. Motion by Arthur Stewart to withdraw w/o prejudice application 10-17 Richard and Hope Cleary, 130 Gull's Way, Map 34 Lot 55, RL zoning district. The applicant seeks a Variance under MGL 40A- 9 and Brewster Bylaw 179-26 (d) to divide a parcel into two separate lots, both without frontage, and allow construction of a single family home on the northernmost lot. Second by Sarah Kemp. VOTE: 5-0-0. 10-18 N+N Real Properties, LLC (Bud Noyes), 2689 Main Street, Map 14 Lot 50, VB zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179, Table 1, Retail and Service, Item 3.1 to amend Special Permit #97-35 to construct a 15.5 by 9 foot addition to the existing kitchen. Members hearing this application: Brian Harrison, Bruce MacGregor, John Nixon, Paul Kearney and Leslie Erikson. Mr. George (Bud) Noyes was present. Attorney Lindsay Straus represented Mr. Noyes. A brief explanation for this project was given by Mr. Noyes. They would like to expand the existing kitchen to a 15.5 x 9 foot addition within the proper setbacks to increase work flow and improve worker safety. Noyes- The kitchen is cramped, when the convection oven door is down there is only a 8 inch clearance. Historic District has issued a certificate of appropriateness. Board Discussion Erikson- There are several letters from abutters; only one against. When I viewed the property I noted the loading dock, is that remaining? Noyes- to the left, hardly noticeable. Jackson- dimension 15.5 x 9 feet on the site plan should be corrected, same setback. Noyes-Anew, updated engineered plan (noted above in Documents) presented now. ZBA Minutes 11-U9-10 Nixon- 2 free standing lockers, will they remain? Noyes- one will remain, portable storage units. MacGregor- the ~~green" area/paved area has issues. Noyes- the restaurant has not changed except cosmetic, nothing done to the parking lot MacGregor-It has been 7 years and nothing is different. This new plan is significantly different. Another issue is regarding the paved parking with no drainage. Leven- that was brought to the Planning Board, Bob Bersin (DPW Director) discussed drainage issues and could not isolate a single source. Not entirely Mr. Noyes problem. Stewart- That doesn't affect the setbacks Staley- Special permit use, COPD 2008-07 captured that. This is under 500 s.f., doesn't affect parking, this is an addition to previous special permit Jackson- Planning Board deals with parking, ZBA only dealt with the addition. Staley- Planning Board is the enforcement authority for parking issues. Jackson-focus attention on the addition itself. Staley- parking lot is not under investigation MacGregor-what teeth do you have, what is your option? Water is not in the zoning Bylaw-civil case. Staley- should be guttered to the south. Bylaw does not address water Noyes- I can drain it to the east. MacGregor- the lot is 2/3 paved without one drainage basin. We must deal with this problem. Erikson- Is that our charge? Nixon- apparently it is the Planning Board. Erikson- we can condition a downspout with a drywell. Noyes- I can gutter with drywell Harrison- any runoff must be contained on site. Jackson-that is why we have asked for a site plan. Leven- this can be a condition for a review. Open to Public Input No one spoke to this issue Motion by Brian Harrison to Close to public Input. Second by John Nixon VOTE: 5-0-0 Further Discussion Kearney- In dealing with the addition only, I have no problem Nixon- in favor, condition on providing site plan with proper dimensions and disposal of runoff Erikson- same MacGregor- I can not vote for this until there is a plan dealing with water issues. Mr. Noyes knows this situation exists but is not dealing with it. Harrison- based on the addition; a safety issue in the kitchen, more space is needed. I am in favor. Runoff for this addition must be taken care of with a drywell. Jackson- conditions; 1- drywell to contain water and 2- site plan to meet approval of Sue Leven (Planner) and Victor Staley (Zoning Agent). Motion made by Brian Harrison to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179, Table 1, Retail and Service, Item 3.1 to amend Special Permit #97-35 to construct a 15.5 by 9 foot addition to the existing kitchen with conditions 1 and 2 listed above. Second by John Nixon. Vote: 4-0-1 Erikson YES Kearney YES Harrison YES MacGregor NO Nixon YES ZBA Minutes ] 1-09-10 10-19 Kevin and Michele O'Connor, 1719 Long Pond Road, Map 47 Lot 032-002. RL zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179, Table 1, Retail and Service, Item 27, to establish an Occupational Therapy Clinic within a second dwelling unit on the property. Members hearing this application: John Nixon, Arthur Stewart, Brian Harrison, Patricia Eggers and Philip Jackson Kevin and Michelle O'Connor were present to explain their application. They have lived in Brewster for 12 years. This is a 4.3 acre, panhandled lot with 2 buildings. They would like to use a portion of the 2"d building as a private therapy "studio". Board Discussion Jackson-Is this just working with children? Michel/e O'Connor-N0, but I work primarily with children. Mostly school systems with referrals of special needs children. There is nothing in this niche on the lower cape. Jackson- Does it require additional equipment? M. O'Connor- work on the floor, mats and toys. Use of fine motor skills Kevin O'Connor-geared toward more training of the brain. Harrison- Is this open to the public or by appointment. M. O'Connor- just a clinic and by appointment only. Harrison- accessibility will be required for handicapped regulations? Change of use must have a separate entrance. Stewart- will you keep the kitchen? M. O'Connor- originally built for son to live there Jackson- any physical changes to the building? M. O'Connor-No, Open floor plan Stewart- identify parking area? M. O'Connor-YES Nixon- concern that there is enough room for parking and turn around M. O'Connor-behind, with one client at a time there is plenty of room. Eggers- this is on the second floor? M. O'Connor-YES, garage underneath Open to Public Input Sta/ey- with this use iin a Residential area, it must be less than 500 s.f., including storage and office. If more then you must go to the Planning Board. Leven- A temporary wall can be erected. Giving a permit with limits. I am comfortable with granting this but there is no way to enforce; or go to DPRC and Planning Board for use of full unit. Sta/ey- up to the O'Connor's. Have to take their word. M. O'Connor- majority of treatment in one area. Eggers- will this be used for personal storage? M. O'Connor- bedroom has a door Motion by Brian Harrison to Close to Public Input. Second by Arthur Stewart. VOTE: 5-0-0 Further Discussion Eggers- reasonable proposal, in favor. Nixon- same, have to take their word about limitations. Stewart- limitations need more definition, not a home occupation, no employees Harrison- limit to the O'Connors', appointment only, limit the scope of the business. Leven-specify hours of operation Jackson- what is reasonable? M. O'Connor- 9 am-7pm ZBA Minutes 11-09-10 Stewart- what about a sign? M. O'Connor-Must go to historic for sign. Motion by Arthur Stewart to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179, Table 1, Retail and Service, Item 27, to establish an Occupational Therapy Clinic within a second dwelling unit on the property with following conditions: under 500 sf, no additional employees, by appointment only and hours of operation 9-7/ 6 days a week. Second by John Nixon. VOTE: 5-0-0 10-20 Paul and Marina Beade, 210 Nelson Road, Map 7 Lot 32, RM zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25B to raze and replace apre-existing, non-conforming single family home Members hearing this application: Brian Harrison, Bruce MacGregor, John Nixon, Sarah Kemp and Paul Kearney. George Reilly represented the applicant. Mr. Reilly gave a brief overview of project. This is a level lot that abuts a cranberry bog. We want to remove the garage and terrace and rebuild the house further away from the wetlands. Same number of bedrooms, septic moved further from wetlands. Increasing size of the 2"d floor. Conservation Commission has conditioned and approved. Board Discussion MacGregor- is it in Historic? Reil/y- NO MacGregor- how many bedrooms in the existing house? Rei//y- total of 5 bedrooms. MacGregor- we have no dimensional plans. How big is what is there now? Rei//y- proposed plan should show dimensions. MacGregor- no existing square footage. Further discussion on the septic system and groundwater levels MacGregor- are you comfortable with the elevations of the garage? Rei//y- even with Nelson Street MacGregor- always a lot of standing water Jackson- 5 bedrooms in the proposed plan, 5 in the old house (including 2 from the garage) and the septic system was designed for 5. Reilly- There is no change in number of bedrooms. Harrison- what is the comparison of the number of s.f. proposed and existing? Rei//y- I don't know exactly, proposed is less footprint, no more disturbed area. Kemp- including house and detached garage. Will the concrete pad be removed? What are the setbacks? Reilly- setbacks meet current code, much more conforming Jackson- Conservation Commission has Ok'd this project Open to Public Input No one spoke to this issue Motion by John Nixon to Close to Public Input. Second by Brian Harrison. VOTE: 5-0-0 Further Discussion Nixon- other than the increase of water from the wetlands, large order of conditions, and the design fits the neighborhood. Kearney- no problem, we do need a complete set of drawings. ZBA Minutes 11-09-10 Reilly- I will get acomplete/stamped set to the ZBA MacGregor- short of information Kemp- how would we know if the plans are altered when they come in? Jackson- we must rely on Victor at that point. Kearney- site plans should define the setbacks MacGregor- should see dimension plans. Staley- I would know if they are changed. Kearney- They will be verified at the foundation inspection. MacGregor-If it goes up a foot it will be over 30' Staley- average elevation to site, verify that benchmark vs. what is proposed Reilly- benchmark is top of the bound MacGregor- relates to ground over existing garage. Reilly- 4' difference, 18.72 to top of bound MacGregor- grade in front of the existing garage always has standing water in front Staley- average elevation where the structure is going to be placed. Not over 30' of natural grade. Grade away from the house for the first 6' Rei//y- surveyor has points at all corners. Staley- we verify that it meets the plans Harrison- the height of the structure shall not exceed the rules and regulations of the town. Kemp- I am Ok for now MacGregor- Not in favor Kearney- in favor Nixon- yes- five points define where foundation goes, order of conditions is elaborate. Kearney- homeowners problem if water in the garage. Kemp- building plans to be submitted will be within the Bylaws of the Town of Brewster Staley- same set of plans, compare to concept plan. Motion made by Paul Kearney to approve the Special Permit under MGL 40A-9 and Brewster Bylaw 179-25B to raze and replace apre-existing, non-conforming single family home subject to an accepted set of stamped drawings be provided to Zoning Board and Building Commissioner for the record. Second by Bruce MacGregor. VOTE: 5-0-0. Other Business Next Meeting: Tuesday, December 14, 2010 at 7:00 PM Motion made by Patricia Eggers to adjourn meeting at 10:20 Second: Paul Kearney VOTE: 9-0-0 Respectfully subm arilyn Mooers, R~c~rding Secretary ZBA Minutes 11-09-10