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Home My Public Portal AboutZoning Board of Appeals -- 2015-01-13 Minutes TOWN OF BREWSTER F-W 0 Zoning Board of Appeals 2198 Main Street -1898 Brewster, Massachusetts 02631 0 (508) 896-3701 x1 168 eq FAX (508) 896-8089 R P 0 R Date: Approved: April 14, 2015 Vote: 8-0-0 TOWN OF BREWSTER Zoning Board of Appeals Tuesday, January 13, 2015 at 7:00 PM Brewster Town Office Building Attending Committee Members: Philip Jackson (Chairman), Arthur Stewart, John Nixon, Bruce MacGregor, Brian Harrison , Les Erikson, Sarah Kemp and Paul Kearney Member absent: Patricia Eggers Guests: Susan Leven (Town Planner). To review past/present hearing: www.brewster-ma.gov/documents and archives/Ch 18 video archives/recent videos/ZBA 01-13-15 ftct I Minutes MOTION by Arthur Stewart to accept the Minutes December 9, 2014 as presented. Second by John Nixon VOTE: 7-0-1 15-01 Richard J. and Hope Our Cleary, (represented by Attorney Peter S, Farber), 130 Gull's Way, Map 63 Lot 22 (previously M 34 L 55), in the RL zoning district. The applicant seeks an appeal of the Zoning Agent's decision under MGL 40A Sections 8 and 14 and Brewster Zoning By-law 179 to clarify the previous division of land and/or issue of non-compliance. Members hearing this application; Arthur Stewart, Brian Harrison, John Nixon, Paul Kearney and Philip Jackson. Attorney Peter Farber represented the applicant. The applicant was present at this meeting. Attorney Farber gave an overview of the application; Gull's Way has about 30 properties; it is 16 feet wide on a dirt road. It has been in existence since 1930 This lot has been in single ownership since 1926 The Cleary's purchased the lot in 1999 Gull's Way passes 1/3 way through the lot ZBA Meeting Minutes Page 1 of 6 01-13-15 4/16/2015 9:50 AM • Home was built on the southern portion • Northerly side has a barn, greenhouse and tree farm • A special permit was obtained from the Planning Board in 1999 under the "dirt road bylaw" provision (represented by Attorney Wm. Crowell) • Nothing was said about further division of the lot • In 2012 the Cleary's surveyed for an ANR plan with Gull's Way as the division line; North side; 7 acres +/-, South side; 2 +/- acres • Not filed as a subdivision • ANR; 1) road must have been in existence prior 2) Lot has minimum frontage (150') 3) Planning Board must determine existence of adequate safety access • Planning Board endorsed the plan (notation on the plan) • No zoning violations were created • Findings; August 8, 2012 Planning Board signed ANR Plan shows 2 lots (2 +/- and 7 acres) Endorsement conclusive with frontage Lots 1 and 2 compliant with area requirements Existing buildings are compliant with setbacks Endorsement did not result in any zoning violations Endorse plans #5036/specific plans protected as a buildable lot Abutters Letters • 4 received • Do not address legal issue re: zoning • non relevant issues (tree removal) Department Review • Read into minutes; letter from Planning Board member • Cleary's created a "self generated hardship" Questions • 1999 Special Permit by the Planning Board list covenants and amendments regarding road maintenance • went ANR route previously • Similar but less expensive but did the " shoot themselves in the foot" • In 1999 allowed one single family dwelling • Each lot must be 5 acres with Dirt Road Bylaw • no benefit received by the Cleary's; another option available • when the owner selects a course of action you are bound by it • to summarize; separate the Dirt Toad Bylaw from ANR, frontage piece not relevant • Why not a full subdivision? road layout would have to be 40' and paved. Open to Public Input • Susan Leven (Brewster Town Planner) noted we have received a memo from Town Counsel, all parties received this and reviewed it MOTION by Paul Kearney to Close to Public Input. Second by Arthur Stewart. VOTE 5-0-0 ZBA Meeting Minutes Page 2 of 6 01-13-15 4/16/2015 9:50 AM Further Discussion • Letter in 2012 from Town Attorney (last paragraph) "doesn't create legal frontage from 2 lots • Dirt Road Bylaw assumes no frontage • If frontage a regular Special Permit required • No one can figure what the Planning Board was trying to achieve with an ANR? • Both Town Counsel and Town Planner felt the ANR should have not been endorsed, but the Planning Board did • Can't have it both ways. If it meets all other requirements we can endorse 2 lots • Request Town Counsel opinion Attorney Farber requested a CONTINUANCE to the February 10, 2015 meeting to allow Town Counsel time to review and weigh in MOTION BY Arthur Stewart to Continue 15-01 to February 10, 2015. Second by Brian Harrison. VOTE: 5-0-0 15-02 MOG Real Estate Holdings LLC, 4018 Main Street, Map 138 Lot 42 (previously Map 30 Lot 22), in the VB zoning district. The applicant seeks a use variance pursuant to Section 179-52 of the Brewster Zoning By-law to operate an auto repair facility on the subject property. Members hearing this application; Arthur Stewart, Brian Harrison, John Nixon, Paul Kearney and Philip Jackson. Attorney Benjamin Zehnder and Mr. Alex Wentworth seek a use Variance for a single lot at 4018 Main Street. Attorney Zehnder gave a brief overview; • Mr. Wentworth has owned his current business for 15 years • He has outgrown his current location • Town Meeting approved zoning district change but due to a procedural error, the Attorney General's office did not ratify this change. • The Bylaw had to return to the next town meeting; it did NOT pass the second time • Mr. Wentworth feels there is no other place for his business/Underpass and Freeman's Way are the only option, grant variance or move business • Variance for use/40A-10- building inspector rules, ZBA conforms • Perhaps "use Variance" should be eliminated • This is in an area of residences/ gateway to Orleans/heavily travelled/many businesses surrounding • No proposed change to the building or property Questions • Town voted/Town Meeting not to change parcel designation-single use on single parcel • Applicant is within his right to request • All Variances are looked at separately/each on its own merits Questions from the Board • Had to follow the law for use Variance ZBA Meeting Minutes Page 3 of 6 01-13-15 4/16/2015 9:50 AM • Use is virtually impossible to grant • The town has requested change in use variance but no change to date • hard time with "soils, structure or topography" Open to Public Input • Judy Arnold in support of this Variance property has been an auto repair business in the past Should be glad he is keeping business in Brewster • Richard Curtis in support continue to support small business and keep young families in town • Amy Cunningham support Was originally an auto shop other businesses have not lasted there asset to the future of Brewster business community e .Ramsey support Brewster is neglecting their young business people and families Young people are leaving the area • Greg Kelly Garages are not allowed in Village Business district, keep 6A the way it is • Jay Olin Doesn't meet the standard for Variance approval If approved this would taint the integrity of the planning process • Kate Roderick fully support the Variance issue • Donna Curtis Brewster is not business friendly Need to keep young people here Young people are necessary for this towns future • David Deschamps We all must function together to make Cape Cod happen Clean professional business Please make a good decision • Carrie Hoffman Is this Board able to grant a Variance? • CHAIRMAN Philip Jackson read the criteria for a Variance ....YES, able to grant Variance if all four (4) criteria are met • Attorney Ben Zehnder Request of the Board; 1) make findings based on criteria, 2) list findings of fact based on criteria 4,3,2, Can't make a finding of criteria 1. Cannot reconcile language. MOTION by Brian Harrison to Close to Public Input. Second by John Nixon VOTE 5-0-0 Final Discussion • soils, structure or topography are usually the most difficult • this criteria cannot be reconciled in this case • Hardship brought on my himself (purchasing property before Bylaw was complete) ZBA Meeting Minutes Page 4 of 6 01-13-15 4/16/2015 9:50 AM • Attorney Zehnder asked the ZBA to take a leap of faith; can't change the Bylaw but can interpret it. • Attorney Zehnder requested ZBA come up with a set of findings of facts' • Board agreed Attorney Zehnder requested a CONTINUANCE MOTION by Arthur Stewart to Continue 15-02 MOG Real Estate Holdings LLC, 4018 Main Street, Map 138 Lot 42 (previously Map 30 Lot 22), in the VB zoning district. to February 10, 2015. Second by Sarah Kemp. VOTE: 5-0-0 15-03 John P. and Christine A. Morgan, 442 Holly Avenue,Map 124 Lot 23 (previously Map 31 Lot 145), in the RR zoning district. The applicant is seeking a dimensional variance to construct a screened porch and deck at the rear of an existing dwelling. Members hearing this application; Brian Harrison, Bruce MacGregor, Paul Kearney, Leslie Erikson and Sarah Kemp. Mr. John Morgan represented himself for this application. Brief overview; • Variance requested for porch and deck • SHAPE of the lot is narrow and pointed • Current setback is 20 feet • Woods in the back will not be touched • Open Space area Comments • unusually shaped lot in this neighborhood • Deminimus in nature Open to Public Input No one spoke to this issue MOTION by Brian Harrison to Close to Public Input. Second by Sarah Kemp. VOTE 5-0-0 Further Discussion • Most members approve of this application • Mr. Kearney not convinced this can't be done without a Variance MOTION by Brian Harrison to GRANT a Variance for 15-03 to construct a screened porch and deck at the rear of an existing dwelling. based on criteria presented. Second by Bruce MacGregor. VOTE: 4-1-0 MOTION by Arthur Stewart to adjourn at 9:35 PM Second by Bruce MacGregor VOTE: 7-0-0 ZBA Meeting Minutes Page 5 of 6 01-13-15 4/16/2015 9:50 AM Respectfully submitted, Marilyn Mooers/Administrative Assistant ZBA Meeting Minutes Page 6 of 6 01-13-15 4/16/2015 9:50 AM