Minutes of Zoning Board of Appeals Public Meeting
Date: September 8, 2005
Time: 7:00 PM
Present: Trevor Pontbriand, Chair, Peter Watts, Robert Hankey, William Nicholson, Sibel Asanturgul, Charles Amsler, Vern Jacob, and Christine Bates, Committee Secretary.
Regrets: Jeffrey Stewart and Bruce Drucker
Meeting was called to order at 7:00 pm by Chair, Trevor Pontbriand.
Public Hearings:
7:00 03-01: MacGregor Hay and Alexander Hay, 265 Commercial St., Map 21, Parcel 113: Remand: Appeal of the Building Commissioner to allow picnic tables on the outside of the building; or 2) in the alternative, a Special Permit to allow the use of three picnic tables under MGL c.40A&6 to extend pre-existing use or 3) in the alternative, a variance to allow the use of three picnic tables under 8.4.3 or 4) Pursuant to 6.14 of the bylaw a flood plain exemption. The Board for this hearing was Trevor Pontbriand, Peter Watts, Robert Hankey, William Nicholson, and Sibel Asantugrul. Attorney Duane Landreth joined MacGregor and Alexander Hay at the table. Members of the Board read the Decision of 00-12 and 03-01 into the record. Landreth stated the Town
had requested their appearance for a Remand. The Board recalled Larson putting tables in the area as far back as 1973. In the 1983/1984 timeframe, people were moving the tables on and off Town property. It was agreed Larson was to maintain the tables and store them in the winter months. The Town then started storing the tables, with the businesses maintaining them. Landreth stated the Hays have more recently maintained the tables and let the public use them. The previous Building Inspector stated in a letter dated October 6, 2002 there is no allowance for restaurant seating in the building or on the Lot. MacGregor stated he is looking for a motion to over turn the BI’s letter. Asantugrul questioned the number of tables the hearing is concerned with; she notes there are approximately six (6) tables in the area. The Hays want 3 tables on their lot. The other 3 are on Town Land.
Helen Wilson stated she does not feel the Hays are staying within the law. She read an article regarding an entrepreneurial award the Hay’s received on Mac’s Seafood stating there was negotiation with the town which wound up upgrading and expanding the public outdoor picnic space next to the restaurant. She stated other businesses have not had the same privilege and hoped the Board would not over-rule the former BI. Current Building Inspector, Paul Murphy, stated he reviewed the history of the case. He does not consider it seating in the spirit of restaurants. There is no food or beverage service to the tables, it is providing seating and doesn’t change the use. He doesn’t feel if the tables were not put out it would be considered abandonment. The
meeting was closed to the public at 7:45 pm.
Watts stated the canopy and the tables were placed outside at the present time and he felt as if the appeal process had no merit and they were acting arrogantly. Hankey stated he was never clear if there were benches, but he is concerned about the sensitivity of the area. Nicholson stated he feels it is a well run business and the tables are not doing any harm; however, he questioned how many tables there were at the location. It was determined the Town has placed several tables at the site and the DPW takes care of them. Asantugrul stated the Board should look at the bylaws, that it was determined there were tables there from the aerial photos, and the bathroom issue was not pursued. The Board determined they agree with the decision based on the Zoning By Laws, but the Board has the
authority to give a Special Permit. Pontbriand stated he sees no harm with the tables being there and doesn’t see it as an expansion of use for the business. Hankey stated the public uses the tables owned by the Town and it is not Hay’s concern the Town places the tables in the area. Watts expressed concern regarding the ACEC and the septic system. Amsler stated he has seen flooding in the area in previous years and no damage was done. Jacob stated this is about tables and feels the Board should disregard the Flood Plain Exemption issue. The Building Inspector stated the Flood Plain Exemption does not apply to this property and it received Board of Health approval. Asantugrul stated the tables allow the public to enjoy the harbor and to be able to sit and enjoy a meal.
Pontbriand opened the meeting to the public at 8:03 pm. MacGregor stated he had received a telephone call from the Town Administrator stating the issue was over and the tables could be placed outside again (last year the Hay’s did not put out the tables). Paul Murphy stated he told the Hay’s they could put the tables out as well, and he also took responsibility for issuing the installation of the awning and felt it was sound judgment. The Hay’s stated they do not provide any service to the tables. Helen Wilson reiterated this is a take out restaurant and tables were placed on the property with umbrellas by the owners. She feels they are not following the By Laws of the Town and this property is in the flood plain. Ben Zehnder stated the tables provide a place to sit,
watch the sunset, and they are in the best interest of the Town. Hankey moved to uphold the decision of the Building Inspector in Case 03-01; seconded by Watts; passed 5-0.
Pontbriand moved for Findings of Fact:
1. The benefits to the Town outweigh any adverse effects on the Town
2. The tables do not constitute a change or expansion in the use of the property
3. No objection from abutters
Pontbriand moved to grant a Special Permit to allow use of three picnic tables on the property based on Findings of Fact; with the following conditions:
1. There will no food service to the tables by staff
2. The property is limited to three (3) tables
Seconded by Hankey; passed 4 – 0 – 1 (abstain). Helen Wilson stated after the vote that the Board gave them 16 seats and was concerned about the parking.
8:31 05-35: John Pontius, Route 6, Map 42, Parcel 37: Application for a Special Permit under WZB 6.1.1: Expand and upgrade restaurant. Trevor Pontbriand recused himself as an employee of the architectural firm representing the application. The Board consisted of Peter Watts, Robert Hankey, William Nicholson, Sibel Asantugrul and Charles Amsler. A site visit was made. Ben Zehnder, Attorney and John Pontius gave an overview of the project. Zehnder stated there were two previous hearings on the property before the Board, Case 82-25 which included a retail take out business in the small building
located on the property as well as an indoor restaurant for 50 seats. Pontius has owned the restaurant since 1991 and there will be no change in the business. The application is to make structural changes to the nonconforming building in the R2 district. The proposed building will provide adequate kitchen and storage space as well as more space in the dining area for patrons. The current building projects into the 100 foot setback on Route 6. The majority of the new building will be out of the setback. The current lot coverage is 2.3%; the proposed building coverage will be 3.8%. Watts read a letter from Ben Gitlow dated September 6, 2005 in favor of the proposal and a letter from Alice Kelly, an abutter, who expressed some concerns regarding privacy issues as well as potential
noise issues.
Pontius stated the lower level patio is the second egress for the building. No trees will be removed from the site for new construction. There will be no change in the delivery of goods, and a dumpster will be fenced off. There will be no view from the upper decking to the Kelly residence, and tables can be moved to the upper deck without changing the 50 seat capacity. If there were to be future entertainment, the applicant would have to go before the Board of Selectmen. Abutter Gretchen Archambault stated she wished him well in the venture but was concerned about future entertainment. Helen Wilson, a member of the Board of Selectmen, stated the Board does not check with abutters regarding entertainment licenses. Further support from the audience included Sharon McCann, Mellon
Regis, and Glenn Liss.
Watts moved for Findings of Fact:
1. There will be no change in use.
2. The proposed building will move back from the Route 6 set back.
3. Parking is adequate
4. Proposed building will increase the lot coverage to 3.8% which significantly meets the codes.
5. There are adequate roads and drainage in relation to the location
6. The establishment is open year round to serve the community
Hankey moved to grant a Special Permit based on the Findings of Fact; seconded by Amsler; passed 5-0 with the following conditions:
1. Provide screening from the roof deck and second floor dining area on the north side of the building and have discussion with Ms. Kelly regarding privacy issues.
2. The service area to be screened with fencing.
3. All exterior lighting will be directed down.
4. Noise levels will be maintained per the Town By Laws.
9:23 05-26: John S. Kelley, Trustee (Sarett Lane Realty Trust) Sarett Lane, Map 42, Parcel 87.4: Application for a Special Permit under WZB 6.11 – Convert existing dwelling and cottages into condominium ownership. History: The original application was received in Town Hall on June 6, 2005. The application was incomplete and a revised application was received on June 20, 2005. The original hearing date was scheduled for July 28, 2005. The application was forwarded to the Planning Board for their review, of which was returned stating the Master Deed and Declaration of Trust were incomplete. The applicant requested a continuation to September 8, 2005. Neither the applicant nor the applicant’s representatives appeared at the
hearing. No letter requesting a continuation was received.
Robert Hankey moved to take no action on Case 05-26 for lack of representation at the hearing; seconded by Trevor Pontbriand; passed 6-1. Therefore, Case 05-26 is considered complete and no further hearings will be heard, unless a new application is received.
9:26 05-33 Audrey Danforth, Holbrook Avenue, Map 21, Parcel 105: Application for a Special Permit under WZB 6.1.5.2 (non-conforming lot): Enlarge side porch to allow room for a stairway (Cont’d from August 11, 2005). The Board for this case had been Trevor Pontbriand, Robert Hankey, William Nicholson, Sibel Asantugrul and Jeffrey Stewart. Vern Jacob replaced Jeffrey Stewart in his absence with the applicant’s permission. Ms. Danforth supplied the necessary drawings showing correct setbacks. The existing lot coverage is 8%, with the proposed plan covering 10.6%. Paul Murphy, Building Inspector, stating this is a non-conforming lot with a non-conforming dwelling. The Board asked why the stairway could
not be located inside of the house, and Danforth responded there is not enough room. She is currently using a library ladder inside of the house, and the new stairwell would provide a second egress from the second floor. The Conservation Commission did not want any further disturbance on her property, so a cantilevered addition is being proposed. The height of the dwelling will be within the 28 foot restriction. Watts asked about the shed located to the back of the property. Danforth stated there was an existing shed and the former Building Inspector Staley told her she could rebuild; however, the time limit expired.
Nicholson moved for Findings of Fact:
1. The project has been approved by the Conservation Commission.
2. There will be a further intrusion on the northerly side setback of approximately 10 feet.
At this point, a discussion took place regarding the construction on the second floor and the dormers. The Board felt it might need to re-advertise since the original legal ad was only for the stairwell. Building
Inspector Murphy stated the Board needs to determine the volumetric increase with the dormers as well as the side porch. He stated the retaining wall would not be considered a structure. Pontbriand stated he was not comfortable with the current setback at 22 feet, and the addition would set it back 10 feet further with a 12 foot intrusion. Murphy stated the dwelling would not be considered a three story dwelling. Nicholson felt the closest abutter who is a commercial entity would not care about the intrusion, and Amsler stated the house is unique based on its size and lot. Jacob suggested she come back with a new plan; Nicholson and Hankey had a concern it would be a hardship to her to have new drawings made up; and Asantugrul stated she was not comfortable with approving the plan as
presented. Pontbriand moved for further findings:
3. Dormer will create a volumetric increase within both side setbacks.
4. No objection from abutters regarding proposed expansion.
5. Lot coverage will be kept under 15%.
Nicholson moved to approve the Special Permit based on the Findings of Fact with the following conditions:
1. The shed is not considered part of the application
Seconded by Jacob; vote 3-2 (denied). After further discussion, Pontbriand moved to reconsider the vote in order to allow the applicant to continue the case to present new drawings which will reduce the amount of intrusion into the setbacks.
Nicholson moved to continue to October 13, 2005; seconded by Pontbriand; passed 5-0.
Robert Hankey moved to adjourn the meeting at 10:50 pm; seconded by Pontbriand, passed 7-0.
Respectfully submitted
Christine A. Bates
Committee Secretary
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