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Home My Public Portal AboutZoning Board of Appeals -- 2015-02-10 Minutes W ///////i \\ F- .9 � TOWN OF BREWSTER o o R Ag�.Q Zoning Board of Appeals �� 2198 Main Street Brewster, Massachusetts 02631-1898 p �n= (508) 896-3701 x1168 y — c FAX (508) 896-8089 803 Date: Approved: March 10, 2015 Vote: 5-0-0 TOWN OF BREWSTER Zoning Board of Appeals Tuesday, February 10, 2015 at 7:00 PM Brewster Town Office Building Attending Committee Members: Arthur Stewart, John Nixon, Bruce MacGregor, Brian Harrison, Les Erikson, and Sarah Kemp Member absent: Patricia Eggers, Philip Jackson and Paul Kearney Guests: Susan Leven (Town Planner). To review past/present hearing: www.brewster-ma.gov/documents and archives/Ch 18 video archives/recent videos/ZBA 02-10-15 15-04 William J. Hanney, (represented by Robert M. Perry, Cape Cod Engineering Inc), 29 Captain Dunbar, Map 91 Lot 37 (old M 7 L 12) in the RM zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-6, 25 A+B, and 51 to move the existing dwelling on 29 Captain Dunbar to an adjacent lot and construct a new dwelling at 29 Captain Dunbar. Request received by Mr. Robert Perry to CONTINUE these applications until March 10, 2015 MOTION by Leslie Erikson to CONTINUE 15-04 to March 10, 2015. Second by John Nixon. VOTE 6-0-0. 15-05 William J. Hanney, (represented by Robert M. Perry, Cape Cod Engineering Inc), 35 Captain Dunbar, Map 91 Lot 38 (old M 7 L 13) in the RM zoning district. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-6, 25 A+B, and 51 to demolish existing dwelling, remove debris and move a replacement dwelling to the property. MOTION by John Nixon to CONTINUE 15-05 to March 10, 2015. Second by Brian Harrison. VOTE 6-0-0. ZBA Meeting Minutes Page 1 of 7 02-10-15 3/20/2015 3:24 PM 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, Leslie Erikson and Sarah Kemp. Attorney Peter Farber and his client Mr. Richard Cleary gave a brief review of the facts from the previous hearing and application. • ZBA asked for Town Counsel opinion, which was received today (02-10-15) • Issue; 2012 ANR plan; meets Planning Board standards and endorsed the plan ANR • Applicant wants to confirm the following; frontage, minimum area, meet side setbacks, all conform with zoning/no infraction with the division of the lots Board Discussion • Victor Staley stated reason for the Variance was non-compliance by previous PB special permit • 1999 Dirt Road Bylaw; permit and covenant/condition (for agricultural use and a dwelling) • Subdivision cannot be done under this permit • Mr. Farber stated the lot was exempt from frontage as a single lot under 40A-6 and the Cleary's received no benefit under the dirt road bylaw • Town Counsel opinion states there is adequate frontage/5 acres is moot Open to Public Input • No one spoke to this project MOTION by Brian Harrison to Close to Public Input. Second by Sarah Kemp. VOTE 5-0-0 MOTION by Brian Harrison to OVERTURN the Zoning Agents Decision from letter of October 23, 2014, based on Town Counsel opinion and Planning Board ANR issued in 2012. Second by John Nixon. VOTE: 4-1-0 Stewart NO Harrison YES Nixon YES Kemp YES Erikson YES 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 (continued from January 13, 2015); Arthur Stewart, Brian Harrison, John Nixon, Sarah Kemp and Leslie Erikson (replacing Philip Jackson). Attorney Benjamin Zehnder represented the applicant. Mr. Alex Wentworth was present at the meeting. Attorney Zehnder had presented a' "fining of fact" document at the last meeting. He requested the ZBA adopt these findings with their decision. ZBA Meeting Minutes Page 2 of 7 02-10-15 3/20/2015 3:24 PM Board Comments • The Board would like to vote on each fact • Board feels that this application does not meet all 4 criteria for Variance • Lack of hardship due to first criteria • the following is the document presented; 1. The property comprises approximately 27,443 square feet of land located in the VB zoning district at 4018 Main Street in the eastern end of Brewster near the Orleans town line. 2. Main Street is also known as Route 6A and is a state highway servicing local and through traffic. 3. Main Street is one of the busier roads in the Town of Brewster. 4. The property is improved with a commercial building which was built in or around 1967. 5. The property was previously used for various automotive repair and other businesses, and most recently a pet retail store which has now closed. 6. Automotive repair use is not permitted in the VB zoning district. 7. Any prior nonconforming automotive repair uses have been abandoned through non-use. 8. The applicant purchased the property in September of 2014. 9. The applicant has been engaged in automotive repair in the Town of Brewster for over 15 years, and presently rents shop space on Thad Ellis Road in Brewster. 10. The applicant has been unsuccessful despite diligent efforts in finding available space for purchase of property for the operation of an automotive repair shop in Brewster. 11. If the applicant is not granted the variance it will suffer a substantial hardship because it will be unable to use the property for the business for which the applicant is trained and for which he supports his family, and by being unable to purchase property for operation of his business in Brewster he will be unable to own his own real estate and better himself and his family. 12. The granting of a variance for use of the property for automotive repair will not cause substantial detriment to the public good for the following reasons: a. Main Street in this area is a busy thoroughfare that can support anticipated traffic into or out of the property easily; b. The applicant's business provides significant benefit to Brewster residents who testified that the operation at its rental location is clean, ordered, well run and well-maintained. c. Surrounding uses in the immediate vicinity along Main Street include residences, a large truck repair business, a concrete plant,the Animal Rescue League, an oil change business, a car rental business, a car detailing business, an office building and an anticipated medical clinic across the street. All of such uses are consistent with and will be supported by the proposed use. d. Uses which may be permitted in this district as of right or by special permit include a full service restaurant, police station,fire station, retail store, commercial parking lot, medical center,gift store,drive through ZBA Meeting Minutes Page 3 of 7 02-10-15 3/20/2015 3:24 PM financial institution, and planned business development. Any of these uses would create traffic and use intensities in excess of that anticipated to be generated by the proposed use. e. The building on the property was designed and built for automotive repair, and therefore there will be little or no visual change to the property. f. Parking areas and access to and from Main Street are adequate for the proposed use. g. Any adverse effects of the proposed use, such as storage and disposal of waste materials, parking of vehicles, or noise, can be adequately conditioned in the event of the grant of a variance so as to minimize or eliminate perception by the public. 13. The granting of the variance will not nullify or substantially derogate from the intent or purpose of the zoning bylaw for the following reasons: a. The Brewster Zoning Bylaw s. 179-52 (A) specifically authorizes this Board to grant use variances, therefore it is implicit in the Bylaw that there may be situations in which non-permitted uses may be acceptable in certain zoning districts by the grant of a use variance. b. The proposed operation will exist harmoniously with other commercial and non-commercial activities as presently located along and near Main Street in this area. c. The purpose of the Zoning Bylaw as described in s. 179-1 (B) is in part to protect inland and coastal wetlands as well as existing and potential watersheds, and this proposal will in no way harm those interests. d. For the reasons set forth above, the proposed use will not impair or run counter to the purposes set forth in Massachusetts General Laws, c.40A, which include in pertinent part: "to lessen congestion in the streets, to conserve health; to secure safety from fire,flood, panic and other dangers; to provide adequate light and air;to prevent overcrowding of land; to avoid undue concentration of population;to encourage housing for persons of all income levels;to facilitate the adequate provision of transportation, water, water suppy, drainage, sewerage, schools, parks, open space and other public requirements;to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; (and)to encourage the most appropriate use of land throughout the city or town. Massachusetts General Laws c.40A NOTE 14. The applicant has not demonstrated that the hardship identified in par. 11 herein is owing to circumstances related to the soil conditions, shape or topography of the property ITEM # MOTION SECOND VOTE 1 Brian Harrison Sarah Kemp 5-0-0 2 Brian Harrison Sarah Kemp 5-0-0 3 Brian Harrison Sarah Kemp 5-0-0 4 Brian Harrison Sarah Kemp 5-0-0 5 Brian Harrison Sarah Kemp 5-0-0 6 Brian Harrison Sarah Kemp 5-0-0 7 Brian Harrison Sarah Kemp 5-0-0 8 Brian Harrison Sarah Kemp 5-0-0 9 Brian Harrison Sarah Kemp 5-0-0 ZBA Meeting Minutes Page 4 of 7 02-10-15 3/20/2015 3:24 PM 10 eliminate 11 reword 12 a YES 12b 12 c OK 12 d Strike last sentence 12 e Strike last sentence 12 f OK 12 g Existing approval of arkin plan 13 a OK 13 b eliminate 13 c eliminate 13 d Too broad 14 MOTION by Brian Harrison to DENY a Use Variance based on the finding of facts presented (specifically# 14). Second by John Nixon. VOTE: 5-0-0 15-07 Luke A. Dillon III (L+G Realty Trust), (represented by Attorney Benjamin E. Zehnder), 34 Gladys Lane, Map 49 Lot 61 (previously M 3 L 139) in the RM zoning district. The applicant seeks a Special Permit under MGL 40A-6 and Brewster Bylaw 179-51 and Article VIII to increase lot coverage over 25% by constructing an addition to an existing single family home. Members hearing this application; Bruce MacGregor, Brian Harrison, John Nixon, Leslie Erikson, and Arthur Stewart The applicant was represented by Attorney Benjamin Zehnder. The applicant, Mr. Dillon was present. Attorney Zehnder gave a brief overview; • Plot plan show a lot coverage of 26.0% with the existing shed and bulkhead • Original design met the 25% coverage but with overhangs there was calculated an increase • Not a full basement in the existing section thus need access to that area • New section has a full basement • a diminimus increase • No clear definition of roof overhang for % of lot coverage/ no definition 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 Motion by Brian Harrison to GRANT this Special Permit keeping the shed and bulkhead as diminimus to the amount of lot coverage. Second by John Nixon. VOTE: 5-0-0 ZBA Meeting Minutes Page 5 of 7 02-10-15 3/20/2015 3:24 PM 15-06 Mark+ Dana Tully, (represented by Attorney Duane P. Landreth), 300 Foster Road, Map 79 Lot 25 (previously M 6 L 8) in the RM zoning district. The applicant seeks an amendment to a previous Special Permit (04-11) under MGL 40A-9 and Brewster Bylaw 179-16 (Table 2) and 179-51 to replace the existing single family home. Members hearing this application; Bruce MacGregor, Brian Harrison, Sarah Kemp, Leslie Erikson, and Arthur Stewart Attorney Duane Landreth represented the Tullys'. Also present was Steve Glasheen from Polhemus, Savery and DaSilva, architects. Mr. Peter Polhemus was also at this hearing. Attorney Landreth gave a brief overview of this proposal; • This is to be an amendment to previous ZBA permit 04-11 • This is a preexisting nonconforming building • The proposal is to remove the existing building and rebuild within the same footprint • They will eliminate the "antique shop" designation • Other improvements will be made to the property; patio, stone wall etc • Front and side setbacks will be the same • Working within the 50 foot buffer zone • simplified the shape, and open floor plan • Before the Conservation Commission (should be resolved by mid-February) • Covenant by Planning Board in 1997 for the septic system • Before the Board of Health now for an upgraded system/still 3 bedroom • Landscape Plan to be submitted (done 02-25-15) • Attorney Landreth presented a "finding of fact" ; front setback 20 feet, side setback 10 feet and structure is pre-existing non-conforming. Board Questions • View and vista cannot be regulated BUT previous owner put up a fence that blocks this view • Fence not vey friendly • Can the issue be raised with the client as gpd neighbors to change this to a split rail or something that can be seen over or through? Mr. Polhemus said they would speak to the client. • Conservation Commission concern with coastal bank 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 • In favor of the amendment as presented • nice design ZBA Meeting Minutes Page 6 of 7 02-10-15 3/20/2015 3:24 PM MOTION by Brian Harrison to AMEND Special Permit 04-11 as per plans submitted to the Zoning Board of Appeals and the "Finding of Fact" with regards to the setbacks and pre-existing non- conforming status. This Amendment will require the following; Conservation Commission approval and a landscape Plan from builder. Second by John Nixon. VOTE: 5-0-0 MOTION by Brian Harrison to adjourn at 9:05 pm Second by John Nixon VOTE: 6-0-0 Respectfully submitted, Marilyn Mooers/ inistrative Assistant ZBA Meeting Minutes Page 7 of 7 02-10-15 3/20/2015 3:24 PM