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Home My Public Portal AboutZoning Board of Appeals -- 2017-02-14 Minutes /iii F-W. TOWN OF BREWSTER Zoning Board of Appeals 0U�c 9��C 2198 Main Street Brewster, Massachusetts 02631-1898 p �u _ _ an.Ny (508) 896-3701 x1168 -- y FAX (508) 896-8089 Date: Approved: March 14. 2017 Vote: 5-0-0 TOWN OF BREWSTER Zoning Board of Appeals Tuesday, FEBRUARY 14, 2017 at 7:00 PM Brewster Town Office Building Attending Committee Members: Brian Harrison (Chairman), Arthur Stewart,John Nixon, Paul Kearney, Patricia Eggers, and Bruce MacGregor Guests: Ryan Bennett (Brewster Town Planner), Additional members of the audience; Chief Roy Jones, Attorney Steven Jones, Attorney Peter Farber, Mrs. Michael Leighton, Richard Judd, and M+M Cleary. To review past/present hearing: www.brewster-ma.eov/documents and archives/Ch 18 video archives/recent videos/ZBA 02-14-17 Minutes of January 17, 2017 MOTION by John Nixon to accept the Minutes of January 17,2017 as corrected. Second by Arthur Stewart . VOTE 6-0-0 17-02 Estate of Katherine L. Jones (Roy E. Jones III (Personal representative), represented by Attorney Peter S. Farber, 0 Gull's Way, MAP 63 Lot 23 (previously M 40 L 54-1) in the RL zoning district. The applicant seeks an Appeal of the Zoning Agents decisions under MGL 40 A-8 and Brewster Zoning Bylaw 179-28A and B to determine this as a buildable lot. Members hearing this application are; Bruce MacGregor, Brian Harrison, Paul Kearney, Arthur Stewart and John Nixon. Attorney Peter Farber gave an overview of this application; • Roy Jones and Stephen Jones were both present for application and identified by Attorney Farber. • Mr. Farber stated they were Addressing an appeal of the decision of the Zoning Agent (Victor Staley) dated 11-22-16 • Responding to A letter from estates attorney; requesting a determination of Lot 23 on map 63 was a buildable lot and various grandfathered protection under Brewster Law. • Comments will be limited to the State Law protection 1 ZBA Minutes 02-14-17 • 1. The subject property (hereafter, "locus") is located in an RL zoning district. The minimum area and frontage requirements under the current zoning by-law are 60,000 square feet and 150 feet, respectively. • 2. Locus is shown on a plan prepared by Demarest Land Surveying dated September 14, 2016 recorded in the Barnstable Registry of Deeds in Plan Book 667, Page 60 ("Demarest plan"). According to the Demarest plan,the lot contains 110,210 square feet (2.53 acres) ± and has 114 feet ±of frontage on a undefined private way known as "Gull's Way." • 3. Prior to June 24, 1864, locus was part of a larger 8-acre parcel which extended significantly farther to the north. On that date, the then-owner, William H. Bangs, conveyed a strip of land 5 rods in width to the Cape Cod Central Railroad, which was then under construction between Harwich and Orleans. This was a conveyance in fee, and had the result of severing the Bangs property into two lots which were separated from one another by the railroad. The southerly of the two lots is locus. • 4.Despite the conveyance to the railroad, future deeds in the chain of title continued to use the pre- 1864 description of the property, i.e.,the 8-acre parcel, although an 1868 deed referenced that the "railroad ran through the parcel." It was undisputed, however,that from June 22, 1864 forward, locus has existed as a separate and distinct lot. • 5.A "lot" is defined in the Brewster zoning by-law as "an area or parcel of land or any part thereof... in common ownership, designated on a plan filed with the administrator of this chapter... as a parcel to be used, developed or built upon as a unit under single ownership or control." The Demarest plan, which was submitted to the building commissioner in September 2016, satisfies this part of the definition. • 6. Also appearing in the definition of"lot" in the Brewster zoning by-law is the following sentence: "Therefore, for the purposes of this Chapter, a 'lot' may or may not have boundaries identical with those recorded in the Barnstable County Registry of Deeds." The Board finds that it is irrelevant that the deeds on record in Barnstable contain an 8-acre description. The discrepancy between that 8- acre description and the Demarest plan is adequately explained by the 1864 deed to the railroad. • 7. The undisputed evidence presented by the applicant was that, in 1864 and at all times subsequent thereto, locus has been in ownership separate from all adjoining land. • 8. Brewster adopted its first zoning by-law in 1960. Locus was a buildable lot under the 1960 zoning by-law. • 9. At the town meeting held in February 1971, the zoning by-law was amended in its entirety. The RL zoning district was created at that time, and the minimum frontage for residential lots in a RL district was established at 135 feet. Locus became nonconforming at that time because it did not meet the minimum frontage requirement. • 10.The first sentence of the 4th paragraph of section 6 of Chapter 40A states as follows: • Any increase in area,frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or 2 ZBA Minutes 02-14-17 endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least 5,000 square feet of area and 50 feet of frontage. • 11. The "plain language" of the first sentence of the 4th paragraph of section 6 of Chapter 40A "grants a perpetual exemption from increased zoning requirements to certain lots that were once buildable under local bylaws." Rourke v. Rothman, 448 Mass. 190, 194 (2007). • 12. Locus meets all of the requirements of the first sentence of the 4th paragraph of section 6 of Chapter 40A. The applicant seeks to develop the property for single family residential use. At the time of the 1971 zoning by-law amendment: (i) locus was a buildable lot; (ii) locus was owned separately from all adjoining land; and (iii) locus contained in excess of 5,000 square feet and had in excess of 50 feet of frontage (which was to be measured by the pre-1971 standards). • 13. The applicant was asked by the Board to explain why the assessor's office began to assess locus as an unbuildable lot in 2002. Attorney Stephen B. Jones (the applicant's brother) indicated that there are no records to substantiate that assessment, and that the Jones family has no information relative to the same. The assessor's office has not explained the assessment. Given the total lack of information on the subject, the Board did not place any weight on the 2002 assessment. Open to Public Input • Ann Leighton voiced her concern regarding this permit. MOTION by Patricia Eggers to Close to Public Input. Second by Paul Kearney VOTE: 5-0-0 FURTHER BOARD DISCUSSION • Board was advised of two (2) letters (Wengler and Michael Leighton) and or e-mail from abutters. These are made part of the record • No comments from STAFF Reviews regarding this application • A Board member noted that lot lines do not match with prior plans submitted • Mr. Farber indicated that 1958 map lines might not agree • Board requested clarification of#3 of Victor Staley letter dated 11-22-16; they were told by ZA and Assessor's office that there is NO actual record, this was done by previous Building Commissioner (David Thyng) and noted on the Assessors Field Card. • Ryan Bennett (Town Planner) asked if Gull's Way meets the definition of a street. FINAL THOUGHTS • Dirt Road Bylaw does not apply, seems in conflict with State Law • Road regulations established by the Fire Department "Minimum Access Standards" revised 7-1-05 • Comment by Chief Roy Jones (previous Fire Chief/Brewster) recommended road width to be 24ft but 12-14 feet to be maintained for travel lane. MOTION by Arthur Stewart to OVERTURN the Decision of the Zoning Agent based on testimony and discussion presented. Second by John Nixon VOTE: 5-0-0 3 ZBA Minutes 02-14-17 17-03 Mary Loftus, represented by Barry Magaliff(Home Matters Company), 25 Featherbed Lane, MAP 11 LOT 42 (previously M 38 L 46 in the RR zoning district. the applicant seeks a Special Permit to extend a pre- existing non-conforming structure under MGL 40 A and Brewster Zoning Bylaw 25-B Members hearing this application are; Bruce MacGregor, Brian Harrison, Paul Kearney, Patricia Eggers and John Nixon. Applicant was represented by Mr. Barry Magaliff and Mr. Robert ??( Home Matters Company) They gave a brief overview of this project • this is a case of% of lot coverage, slightly exceeding 15% • This was missed by the Building Commissioner with the addition of the shed and porch. • Now requesting a slight "bump out" to add a bathroom for use by elderly owners. • It has been suggested to take down the shed as a "trade", but with no garage the shed is needed for minimum storage. QUESTIONS and DISCUSSION • This home has been expanded in the past? YES, 3 season porch and shed. • Interesting looking house/angles and twists • No adequate bathrooms for elderly owners to live year round. • pre-existing, non-conforming, Board can grant relief as per Victor's letter Open to Public Input • NO ONE spoke to this project. MOTION to CLOSE to Public Input by Pat Eggers. Second by Paul Kearney VOTE: 5-0-0 MOTION by Paul Kearney to Grant a Special Permit to extend a pre-existing non-conforming dwelling based on testimony and discussion presented. Second by Patricia Eggers. VOTE: 5-0-0 17-05 Jonathan Rosenfeld +Arlene Feldman, (represented by J.M. O'Reilly),102 Cedar Hill Road, MAP 38 LOT 29 (previously M 2 L 34) in the RM zoning district. The applicant seeks a Special Permit or in the alternative a Variance under MGL 40A-9 and Brewster Zoning Bylaw 179-6.13 (2) soil, To reconstruct a single family home, a portion of which is within a mapped Wetlands Conservancy Soil District. Members hearing this application are; Brian Harrison, Arthur Stewart, Paul Kearney, Patricia Eggers and John Nixon. Mr. Matt Farrell from J.M. O'Reilly & Associates replaced Mr. O'Reilly. Ms Jill Neubauer (Architect) was also in attendance. Mr. Farrell gave a brief overview and review of this project; • Original purpose was the rebuilt structure with a carport • Request to remove existing shed 4 ZBA Minutes 02-14-17 • Applicant request a Special Permit and/or a Variance for disruption in the mapped Wetland Conservancy District • test holes were preformed for septic requirement in the mapped area showing only Hinesburg Loamy Sand which is not considered a conservancy soil • Board of Health has reviewed this application and APPROVED project • Conservation Commission has approved an Order of Conditions • Letter from Victor Staley dated 2-1-17 notes that a Variance for Conservancy soils is not required. • A Special Permit is requested to add to a non-conforming structure. QUESTIONS and DISCUSSION • Ryan Bennett provided the Board with a document dated November 10, 2016. Addressed to Noelle Bramer (Conservation Administrator), from Maria and William Gaine. This document was Presented to Ms. Bennett at 3PM on Tuesday, February 14, 2017 thus the Board had no advanced time to review. • When will construction happen?As soon as possible • Will construction be going on during the summer month? YES, probably • The Gaines letter seems to be questioning the bounds/ownership issue may come into question. • Some of the project work area on abutter's property? • The Board questioned Mr. Farrell if it would be enough to change the setbacks? Probably not. • The Limit of work has been set by Conservation • According to Town Planner after speaking with Conservation Administrator, the bounds are NOT part of the Order of Conditions. • The Board asked if they could CONDITION the Special Permit with a new mapping of bounds? YES FURTHER QUESTIONS • Borings/ soils testing for Title V are close enough • 3 bedrooms all on 2nd floor • Are they close to salt marsh? Yes but has been through Conservation Open to Public Input • NO ONE spoke to this project. MOTION to CLOSE to Public Input by Arthur Stewart Second by Paul Kearney VOTE: 5-0-0 MOTION by Arthur Stewart to GRANT Special Permit 17-05 according to plans and testimony given,with the following condition; proper lot lines to be laid out. Second by Patricia Eggers, VOTE: 5-0-0 MOTION by Patricia Eggers to WITHDRAW Variance as request by Matt Farrell. Second by John Nixon. VOTE: 5-0-0 MOTION by Patricia Eggers to adjourn at 8:30pm Second by Arthur Stewart 5 ZBA Minutes 02-14-17 VOTE: 6-0-0 Respectfully submitted, Marilyn Mooers/Administrative Assistant 6 ZBA Minutes 02-14-17