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Home My Public Portal AboutZoning Board of Appeals -- 2012-04-10 Minutes Date approved 5-15-12 Vote 6-0-0 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes April 10, 2012 Crl() Chairman Philip Jackson called the meeting to order at 7:00 pm. Members present were; Philip Jackson, Brian Harrison, Arthur Stewart, Sarah Kemp, John Nixon, Leslie Erikson, Bruce MacGregor • and Patricia Eggers. Members missing: Paul Kearney Attending Audience Members: Sue Leven (Town Planner) OLD BUSINESS Minutes Motion made by Arthur Stewart to ACCEPT the Minutes of March 13, 2012 as presented. Second made by Patricia Eggers VOTE: 8-0-0 NEW BUSINESS 12-10 Margaret Putnam (represented by Attorney James P. O'Brien PC), 124 Yankee Drive, Map 26 Lot 157 in the CH zoning district. The applicant seeks an Appeal of the Zoning Agents decision, or in the alternative a Special Permit and/or a Dimensional Variance under MGL 40A, Section 8 and 15 and Brewster Bylaw 179-51+52 to build a pool and spa within the 25 foot setback. Members hearing this application: Bruce MacGregor, John Nixon, Brian Harrison, Arthur Stewart and Philip Jackson Attorney James O'Brien represented Ms. Putnam. Margaret Putnam was present at the meeting. Attorney O'Brien gave an overview of the applicants request; • Submitted plan of Yankee Village • Subdivided in the early 90's • 1/2 the lots have special setbacks/15' setbacks • Pool will back up to Town Property • Edge 15' from back set back • Letter of request sent to Zoning Agent, received a denial thus this route • In harmony with neighborhood • Within the character of the neighborhood • Heard nothing from abutters • As a Variance issue; literal enforcement, substantial hardship, preexisting stonewall Questions • First must decide what relief? Appeal. Special Permit or Variance? • Not pre-existing non-conforming • New structure is hard for Special permit • Is the wall circular? One side curves, considered a retaining wall • Have you considered ,another area? This seems the best location because of tree and garage. • Zoning Agents letter (Yankee Drive was a 40B originally). Once it is built out, waivers no longer apply. Go back to standards of today. ZBA Minutes 04-10-12 • • Hard to grant a Variance on something without plans. A Variance can be conditioned on a future plan (reasonable standards) • Asking to treat the house and garage as pre-existing non-conforming and by "way of right" or "special permit standards " in the future. • Existing structures cause a unique circumstance • Seeking an "after the fact" determination • Is there any case law RE "poisoning structures"? Not on this issue; some AN cases. 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 • A number of hoops to go through, don't want to punish the applicant • Garage is diminimous • Will to grant a Variance for existing buildings but reluctant to alter/extend • Need plans to grant anything else not just carte blanche • Condition; in the future must abide with current setbacks Request from Mr. Idman for a CONTINUANCE for one month (May 15, 2012) MOTION by John Nixon to CONTINUE until May 15' 2012. Second by Sarah Kemp. VOTE: 5- 0-0 • Not asking to approve any additions but for existing structures to be deemed "legally non-conforming" 12-13 Town of Brewster (represented by Chris Miller, Director of Natural Resources), 830 Stony Brook Road, Map 36 Lot 21 within the RR zoning district. The applicant seeks a Special Permit under MGL 40A and Brewster Bylaw 179-25B to replace a pre-existing non- conforming structure within the same footprint (a dam). Members hearing this application: Bruce MacGregor, Leslie Erikson, John Nixon, Sarah Kemp and Patricia Eggers Chris Miller (Director of Natural Resources) gave a brief overview of this application. • After a safety evaluation by the State the Millsite dam was deemed in need of work. • Leaks and construction issues • Remove and rebuild on the same footprint • Exterior will look very similar • On the National Register of Historic Places Questions • What time of year will this occur? Should take about 3 months, toward the end of summer into the Fall. We will do half at a time to allow fish access • Put up 2 coffer dams • Sound footing 6' below grade Open to Public Input • No one spoke to this issue MOTION by Patricia Eggers to close to Public Input. Second by John Nixon. VOTE: 5-0-0 Further Discussion • No problem; well thought out and detailed • Many public meetings and discussion ZBA Minutes 04-10-12 MOTIN by Bruce MacGregor to GRANT a Special Permit to the Town of Brewster for application 12-13 subject to the plans presented. Second by Patricia Eggers. VOTE: 5-0-0 Next Meeting: Tuesday, May 15, 2012 at 7:00 PM Motion made by Patricia Eggers to adjourn at 8:35PM Second: John Nixon VOTE: 8-0-0 Respectfully submitted, Marilyn Mooers, Recording Secretary ZBA Minutes 04-10-12 • A Variance must be sought. • Number 1 is the toughest criteria; soil and topography. Should look at other alternatives to move around. • Pool could move closed to the wall, perhaps a little smaller then no need for a Variance. MOTION by Arthur Stewart not to overturn the Zoning Agents decision. Second by Brian Harrison. VOTE: 5-0-0. MOTION by Arthur Stewart to not consider a Special Permit. Second by Brian Harrison. VOTE: 5-0-0 Open to Public Input Sue Leven- This 40B has been built out, zoning rules revert back to prior rules, I agree with Victor Staley's findings. MOTION by Brian Harrison to close to public input. Second by Arthur Stewart. VOTE: 5-0-0 Further Discussion • Plantings at the back of the wall could be moved to front then the pool could meet the 25' setback • This doesn't meet the hardship criteria • The pool could be reconfigured to fit around the area thus no need for a Variance • Nothing unique topography or hardship • Continuance could be asked for. Attorney asked for a CONTINUANCE on behalf of the owner. MOTION by Arthur Stewart to grant continuance until May 15, 2012. Second by John Nixon. VOTE: 5-0-0 12-11 Faythe E. Ellis, 95 Rocky Hill Road, Map 37 Lot 22-9 in the RL zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-2 and 42.1 to build a new garage with an apartment to comply with AADU guidelines. Members hearing this application: Bruce MacGregor, Brian Harrison, Leslie Erikson, Arthur Stewart and Patricia Eggers Ms Faythe Ellis and Mr. Peter Ogozalek were present for this application They presented a brief overview as follows; • Would like to build a garage with an affordable unit • Land slopes so the unit will be ground level Questions • This is behind the house? YES • Meets all setback requirements • Well done • Expand existing septic system? YES Open to Public Input • No one spoke to this issue MOTION by Patricia Eggers to close to public input. Second by Arthur Stewart. VOTE: 5-0-0 Further Discussion • Meets the 40,000 square feet • Special Permit is favorable ZBA Minutes 04-10-12 MOTION by Leslie Erikson to APPROVE a Special Permit for case 12-11 Faythe Ellis of 95 Rocky Hill Road to allow an AADU unit above the garage. Second by Patricia Eggers. VOTE: 5-0-0 12-12 Mark and Dona Finocchio (represented by Attorney Jonathon D. Idman), 108 Fiddler's Lane, Map 18 Lot 50 in the RM zoning district. The applicant seeks a Variance under MGL 40A-10 and Brewster Zoning Bylaw 179-26 for after-the-fact authorization to allow existing residence and garage within the minimum 30 foot street setback and to alter and /or extend the residence and garage. • Members hearing this application: Brian Harrison, Leslie Erikson, John Nixon, Sarah Kemp and Phillip Jackson Mr. Finocchio and Attorney Idman were present for the hearing. Attorney Idman gave the following facts and timelines; • Main house and garage are now located too close to setbacks • They would like to discuss expansion; alterations and extensions to be allowed by right. • Seek a determination for the future alterations/expansions through a use Variance • Size is 30,000 square feet/ 2 lots combined, Subdivision done in 1960, street was set 30', and house was constructed in 1971. • No Building Department information prior to 1975, permitting information not kept • RM district minimum in 1973 was 45,000 square foot, with 40' setback. • Sold in 1980; sought permit for 2nd floor • In 1987 a garage permit was granted, an order of conditions was issued from Conservation, it was considered complying to front setbacks. Survey plans and as- built plans were not required to be given to the Building Department. • Main house measured off the travelled way rather than legal layout • Finocchio's purchased this in 1997 with a mortgage plot plan, septic upgrade required a sitte plan. • When recent improvements were planned they met with Building Department(addition connecting main house to garage) it was discovered the garage is 29.3' from road layout and house 23'. Both should have been 30'. No variance was sought to seek relief. • Zoning Agent is unable to issue any other permits without clarification (in limbo until the ZBA acts) • This is a "legal non-compliant situation" • Seeking reasonable expectation going forward. Variance Standards • Hardship does exist; prohibited from using their property as others in the neighborhood. • The small portion within the 30' would make the addition conform • Past mistakes; they had no part in these errors • Other alternatives; move the house (cost prohibitive and wetlands behind) • Garage setback is diminimous • #1 criteria; "of land or structures"; suggest unique on the structures themselves. Existing-located in part as non-compliant • Old Kings Highway will review changes • Conservation commented on the 100' buffer line/this is the condition going forward • Board of Health- Variance in 1998-no additional number of bedrooms. 5 bedroon=m septic now and that limitation will remain. • Board Questions • Variance is needed for a setback issue; issue is travelled way vs. legal layout • Basic survey practice is to measure off the street or way • No checks and balances back then, no as-built plans ZBA Minutes 04-10-12 MOTIN by Bruce MacGregor to GRANT a Special Permit to the Town of Brewster for application 12-13 subject to the plans presented. Second by Patricia Eggers. VOTE: 5-0-0 Next Meeting: Tuesday, May 15, 2012 at 7:00 PM Motion made by Patricia Eggers to adjourn at 8:35PM Second: John Nixon VOTE: 8-0-0 Resp-ctfully submitted, A A --- Old Marilyn Mooers, Recording Secretary ZBA Minutes 04-10-12