BOLTON BOARD OF APPEALS
Minutes of Meeting
September 13, 2005 at 7:30 P.M.
Present: Gerard Ahearn, Jake Foote, Russ Karlstad, Jackie Smith, Patrick Sullivan, Charlie Lord, Nat Tipton (Town Planner); Elaine Lucas (Town Counsel)
1. Pondside Discussion – Finalizing Decision
Present: Mark O’Hagan (MCO Associates), Kenneth Dellamora (Heritage Manor Development); Louis Levine; Martha Remington
The Board reviewed the draft decision from Town Counsel. Several changes were made in agreement with the applicants, including a requirement (paragraph 4d) that no more than two Affordable Units shall be located in the Garden Style Building and Interior Townhouse Unit #72 shall be an Affordable Unit; a requirement (paragraph 13h) that units may be rented only by an owner who is a Qualifying Person (a person fifty-five years of age or older) and only to a Qualifying Person (a person fifty-five years of age or older); specifying that as-built septic plans shall be submitted to the Building Inspector (paragraph 17j #2); a requirement (paragraph 18) that as-built roadway plans be submitted to the Building Inspector that prepared by a Registered Land Surveyor along with a certification that the conditions set forth in paragraph 17(m)
above have been satisfied; and the allowance of a widow or relative of a qualifying person to remain in the Unit for up to one (1) year following the death of the qualifying person or in the case of extreme hardship may remain for a longer period of time at the discretion of the Condominium Board of Directors (Exhibit D #1). The Board voted unanimously to sign the decision dated September 13, 2005 with the changes made at this meeting.
2. Hearing for Pat Larson on Variance Requests
Present: Patricia Larson, her legal counsel George Balko (Bowditch and Dewey), Martha Remington, Steve George, Steve Woodman, Bob Davis, and Ken Troup.
The hearing was for two requests submitted in an application from Ms. Larson: 1) to revoke an existing variance granted in 1992 that allowed Ms. Larson to use an existing detached structure in her backyard as an accessory apartment; and 2) to grant a variance from Zoning Bylaw 2.3.5.7 (Lot Shape Bylaw) on a second lot owned by Ms. Larson at 93 Wilder Road.
Attorney Balko explained the two requests as outlined in Exhibit A: Statement of Fact for a variance.
Revocation of Variance Granted in 1992. The applicant made a formal offer to the Town to discontinue the residential use of the accessory structure. Balko argued that discontinuing the residential use would negate the need for the variance, and thus the Board is compelled to revoke the 1992 variance. This reasoning stems from a ruling by Land Court in the Webster vs. Town of Bolton case from 2002. Elaine Lucas, Town Counsel, concurred with this reasoning, though cautioned that there has not been an appellate case before the court with similar circumstances (see letter from Elaine Lucas dated June 1, 2005). The applicant is offering to remove septic lines from the accessory apartment to make it permanently uninhabitable, and will consider other requests (removing heat, running water, etc.) made by the
Board. The applicant and applicant’s attorney then requested that the Board rule on the second request (variance from bylaw 2.3.5.7) as the Board’s vote would determine whether the applicant still wanted to pursue or withdraw the first request.
Variance from Bolton Zoning By_Law Section 2.3.5.7 Lot Shape. Balko stated that there are conditions relating to soils, shape, or topography unique to the applicant’s property that would cause significant hardship to the applicant if the bylaw is literally enforced. These conditions include wetlands present on the northeast section of Lot 2 and a culvert that runs from the wetlands towards Wilder Road. To construct a house on Lot 2 without the variance, Balko argued the applicant would have to spend significant resources to redesign the lots, obtain approval and construct a shared septic system, and create the maintenance agreement for the shared system. He argued that such a hardship would also affect the Town due to the need for its involvement in such a maintenance agreement. Additionally,
Attorney Balko asserted the fact that the applicant could not use her property as she wishes constitutes a hardship. Balko argued granting of the variance would not be detrimental to the public good, as the proposed house would be consistent in look and style with other dwellings in the neighborhood.
Lastly, Balko argued granting of the variance would not nullify or substantially derogate from the intent and purpose of the Bolton Zoning Bylaw, as it would not increase overall density and there are several similarly shaped lots in the neighborhood. Board members commented that while the overall density might not increase (assuming that the 1992 variance might be revoked), the current Bylaw does not recognize the lot as a legal lot so an additional dwelling would substantially derogate from the intent of the Bylaw.
Concerns of abutters present at the hearing focused on the visual impact on a scenic viewshed, cutting of century old trees, and adverse impact on abutting properties and landscapes. Ken Troup recalled that the intent of placing conservation restrictions on surrounding properties by Creighton Hamill in 1993 was to keep the viewshed intact and was also the intent of the condition barring other dwellings on the property mandated in the 1992 variance. Troup stated the proposed house would adversely impact the viewshed, and therefore would be detrimental to the public good. Martha Remington of the Bolton Historical Commission stated that the proposed house would adversely impact the Wilder Mansion, which in her view is one of the most historically significant structures in the Town.
Board member Jake Foote stated he did not believe the applicant demonstrated a substantial hardship, nor was the supposed hardship caused only by a unique feature on the applicant’s property relating to soil, shape, or topography. Specifically, Foote and other Board members did not concur with the applicant’s/applicant’s attorney assertion that the culvert running through the property was directly related to the statutory variance requirement that the uniqueness and hardship be owing to circumstances relating to the soil conditions, shape, or topography. Various Board members commented that the hardship is self-imposed by the applicant’s desire to create a separate house/dwelling. Other board members questioned the applicant’s assertion that granting of the variance would not cause substantial
derogation to the public good as it would have a foreseeable impact on the scenic viewshed (a designated Scenic Road), and abutting and historical properties in the area.
On motion by Russ Karlstad, seconded by Jake Foote, the Board of Appeals voted 5-0 to deny the variance request seeking relief from Bolton Zoning Bylaw 2.3.5.7. The applicant withdrew the request to revoke the 1992 variance.
3. Landquest Variance Decision
The Board reviewed and signed a decision for the Landquest variance application. The decision will be filed with the Town Clerk, at which time the 20 day appeal period shall begin.
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