FINAL
Present for the Board of Appeals and attending the meeting were: Wendy Weldon, Chairman, Allison Burger, Vice Chairman, Frank LoRusso, Barbara Armstrong, Chris Murphy, Allen Healy, Russell Maloney, Todd Christy and Chuck Hodgkinson. Also attending were Ben Robinson, Chris Alley, Matt Mayhew, Liz Gude, Kristen Fauteux, Tim Simmons, Seth Wilkinson, Charlie Parker, Glenn Wood, Joan Malkin, Leanne Cowley, Margaret Whitten, Andy Goldman, Lenny Jason, Monina Von Opel, Edward Miller, Billy Meegan, Jessica Roddy, Laurisa Rich, Emily Bramhall, Nancy Aronie, Rob Fleming, Sue and Rich Regen, Onnie Palmer, Rob Woodard and Bob Woodruff.
The meeting came to order at 5:00 PM. The Board thanked Ms. Armstrong for her many years of dedicated service and sound advice. All regretted her decision to step down from the Board due to other commitments and will miss her greatly. Ms. Weldon then congratulated Mr. Maloney on being appointed a full-voting member by the Selectmen and also welcomed new Alternate member Todd Christy to the Board.
DISCUSSION BEN ROBINSON FOR ROBIN SHANUS AND STEPHEN MERKEL; Article 4 Section 4.2A3; 17 Howell Lane; AP 27-3: Mr. Robinson thanked the Board for its time and reviewed three proposed changes to the agreed special conditions to the Special Permit issued at the April 24th meeting for a pool water heating system. He asked the Board to consider the following changes requested by the owner: 1. They would like to install an electric meter to document the power used by the pool equipment and water heater only. 2. Since the pool will not be finished until mid-July, can the owner purchase renewable energy for the total property from July – September 30 – rather than May 1 – September 30 as outlined in the Special Permit. 3. Can the owner purchase the
alternative power from providers other than Option # 3 as proposed and approved at the last meeting? The owner can get a cheaper electric rate from New England Electric than from NStar as originally proposed.
The Board discussed how this is the third proposed change to an approved special permit for this pool and thought it would add to the Town’s administrative burden. A subsequent motion was made declaring the proposed changes as being significant thus requiring the hearing to be re-advertised and abutters re-notified before re-opening the hearing. The motion was seconded and with no further discussion passed unanimously with five in favor. Mr. Robinson said he would like to consult with his client before making the final decision to move forward with the proposed changes.
MATT MAYHEW; Article 6 Sections 6.4, 6.5; 38 State Road; Map 30 Lot 48.1: Ms. Weldon opened the public hearing at 5:18 PM. Mr. Mayhew reviewed a revised site plan dated May 13, 2013 for a 1.07-acre Youth Lot. He added the Planning Board approved this Form C subdivision to create the lot as shown. An email from the Planning Board indicating its approval of the Form C subdivision was read for the record. With no comment from the public a motion was made to close the hearing at 5:22 PM. The motion was seconded and passed unanimously with five in favor. A subsequent motion was made to approve the site plan and Youth Lot as presented and dated May 13, 2013 with the condition that the Board of Health must also approve a
well and septic plan for the lot. The motion was seconded and with no discussion passed unanimously with five in favor.
GLENN A. WOOD, ESQ. FOR CHARLES PARKER, VIRGINIA P. DAWSON, RICHARD W. REGEN, TRUSTEE, DOUGLAS & SUSAN LIMAN, BARBARA GOLDMUNTZ (LIFE ESTATE) AND BARBARA HUNTER FOSTER, TRUSTEE; M.G.L. c 41A Sections 8 and 15 to act on an appeal of the Building Inspector’s Cease and Desist letter dated 4/3/13 under Chilmark’s Zoning By-Law Article 9 Section 9.9 and alternatively applying for a Variance or Other Relief under Chilmark Zoning Bylaw Article 9 Section 9.3 to Chilmark Zoning Bylaw Article 12 Section 12.6H1: Before opening the hearing Ms. Weldon announced she cannot participate in the hearing as she is an abutter and has a conflict of interest. She appointed Vice Chairman Allison Burger as Chairman for this hearing. Ms. Burger asked if there are any other conflicts of interest among the
Board members. Mr. Maloney also said he cannot participate because he has a business relationship with one of the applicants. Ms. Weldon and Mr. Maloney left the table and sat in the audience. Ms. Burger appointed Alternate Board member Allen Healy as the fifth voting Board member for this hearing.
Ms. Burger opened the public hearing at 5:25 PM and outlined that tonight’s hearing will open with any comments from Mr. Jason followed by the applicant’s presentation. After that any correspondence will be read for the record and then the hearing will be open for public comment. Mr. Jason deferred his comments to later in the hearing. Mr. Parker distributed copies of his presentation and summarized that he and the other applicants are appealing the order to cease and desist from proceeding with an approval Order of Conditions issued by the Chilmark Conservation Commission allowing the use of herbicides for the control of common reed (Phragmites australis) for specified areas in the eastern end of Squibnocket Pond issued for Assessors’ parcels Map 35 Lots 1.28, 27, 32, 38 and 39.
They are also seeking a Variance to Zoning Article 12 Section 12.6H1.
Mr. Murphy said there are two issues for the Board: 1. The cease and desist order which involves verification from the Board of Health and Mr. Jason’s decision to enforce the current bylaw. The Board should be able to act on this first issue before hearing the presentations for the Variance request. Mr. Wood countered by stating the proposed activity may not be an intended violation of the bylaw – after hearing the presentation.
Mr. Jason commented as the Zoning Enforcement Officer saying he read the bylaw, the Board of Health’s determination for Rodeo and deduced using Rodeo in the Squibnocket Pond District cannot be done. The question is whether or not he did his job.
Ms. Burger read Mr. Jason’s cease & desist letter dated 4/3/13, the Board of Health letter dated 1/3/13 and the Planning Board’s memo dated 5/14/13 for the record and asked the applicants if they would like to address the cease and desist order any further. She also read Article 12.0 of the Zoning Bylaws that outlines the purpose of the zoning regulations for the Squibnocket Pond District. The Board agreed Section 12.6H1 of the bylaw is intended to prohibit the use of herbicides that might affect the health of the pond and District.
Mr. Murphy added we are not trying to short circuit the presentations but prefer to deal with each issue separately. If the Board decides to overturn Mr. Jason’s cease and desist order then a Variance is not needed. Mr. Parker accepted the premise.
With no further comment a motion was made to support the Building Inspector’s decision. The motion was seconded and with no further discussion passed unanimously with five in favor.
Mr. Parker introduced the presenters and summarized the content outline. He explained the need for Phragmites control with case studies of success and others of possible consequences if the invasive species is left unchecked.
Mr. Simmons of the MA. Division of Fisheries NHESP presented the history of Phragmites control in the Commonwealth and explained how he developed the current procedures and arrived at them through trial and error.
Mr. Wilkinson presented specific case studies and outlined all of the possible methods for controlling Phragmites with the pros and cons of each. Mr. Woodruff is a member of the Edgartown Conservation Commission and reviewed how this proposed method succeeded in the Edgartown Great Pond.
Mr. Wood outlined why he believes the proposal is consistent with the intent and purpose of the District and claimed a use Variance is viable. He then referred to his letter dated May 20, 2013 that outlines how the presentations demonstrate why a Variance should be granted because they satisfy all three hardships as required and outlined in Section 10 of the Commonwealth’s Zoning Act.
Ms. Burger thanked the presenters for their hard work and opened the floor to public comment. Ms. Crowley abutter at 18 Blacksmith Valley read a letter of support for the proposal. Ms. Whitten, also an abutter read a documented letter in opposition of the request for a Variance and the use of Rodeo. Ms. Palmer, who lives near the Allen Farm and is not a direct abutter, offered if you continually cut the Phragmites they will eventually stop growing. Abutter Sue Regen summarized her family’s long history of living on the pond and supported the proposal and Variance request. Mr. Woodward representing the Foster family explained his property is inundated with Phragmites, was initially opposed to the use of Rodeo but has
changed his opinion because of the data he’s read. He is concerned the wildlife habitat will be damaged if the Phragmites are not controlled. The Board asked why he thinks the Phragmites poses a hardship. Mr. Woodward said he thinks the growth of the plants could make it difficult to access his property.
Mr. Parker summarized a letter from Jane Wilkie dated May 16, 2013 outlining the success of this program in controlling Phragmites at Doctor’s Creek.
The Board asked if other methods such as dredging might work. Mr. Wilkinson and Mr. Simmons outlined the reasons why dredging has not worked and the difficulty of disposing the dredge spoils. Mr. Simmons said he invented the cut and drip method that is 96 percent effective while adding Mr. Wilkinson’s bundle cut and drip procedure is even more successful.
Mr. Jason commented that it’s clear everyone in the room cares about the health of the pond and suggested the clearest option is to change the bylaw. Mr. Murphy added he does not see Phragmites as a threat to the pond but, as a part of the pond’s evolution. He summarized the Pond is ever changing and why don’t we embrace what’s there and not what you think should be there.
The Board asked Mr. Wood to reiterate how he thinks the proposal meets all three criteria needed for granting a Variance. Mr. Wood summarized his reasoning again as outlined in his letter dated May 20, 2013. Mr. Jason offered that if the Board is entertaining the granting of a use Variance he recommends first discussing it with Town Counsel. After brief discussion and with no further comment from the public a motion was made to close the hearing at 8:00 PM. The motion was seconded and unanimously approved.
A subsequent motion was made to deny the Variance in this case because it does not meet the three criteria needed to grant a Variance. The motion was seconded. In discussion Mr. Murphy said a good argument has been made to consider changing the bylaw but, not grant a Variance. With no further comment the motion came to a vote and passed unanimously with five in favor.
ADMINISTRATION: The April 24, 2013 meeting minutes were reviewed and approved as presented with four in favor and two abstentions (Messrs. Murphy and Maloney).
The next meeting will be held on Wednesday, June 26, 2013 @ 5:00 PM with site visits on June 25th @ 3:30 PM.
With no further business to conduct the meeting adjourned at 8:15 PM.
Respectfully submitted by Chuck Hodgkinson, CAS.
| 