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