FINAL
Present for the Board of Appeals and attending the meeting were: Wendy Weldon, Chairman, Allison Burger, Vice Chairman, Chris Murphy, Allen Healy, Russell Maloney, Todd Christy and Chuck Hodgkinson. Also attending were Lenny Jason, George Sourati, Ted Rosbeck, Doug Sacks, George Brush, Mark Lanza, Jonathan Lipnick, Susan Scheuer, Max and Connie McCreery, Bruce MacNelly, Jane and Richard Wilkie, Jay Lagemann, Kathy Coe, Dan Robinson, Margaret Robinson, Joan Safford, Emily Gadd, Hans Solmssen and Sean Dougherty. Frank LoRusso was absent.
The meeting came to order at 5:01 PM. Ms. Weldon appointed Alternate Allen Healy as a voting member for the evening’s agenda.
BRUCE MACNELLY FOR SARAH GLAZER KHEDOURI; Article 8 Section 8.3; 14 Yardarm Lane; Map 24 Lot 227: Ms. Weldon opened the public hearing at 5:05 PM. Mr. Maloney announced he has a business relationship with an abutter who is seated in the audience. Mr. MacNelly reviewed the plans to remove the existing 3-bedroom non-conforming structure and replace it with a new 3-bedroom structure such that the distance from the west lot line increases from 11 feet to 16 feet. The setback distances from the other lot lines and the roof ridge height conform to zoning specifications. The total footprint of the existing structure is 1370 sq. ft. including the porch. The proposed footprint area is 1760 sq. ft. including the porch.
Mr. MacNelly explained the cupola that was originally proposed when he met with the Site Review Committee has been removed from the current design. While not final the owner is leaning toward a post and beam construction. The finish floor height will be the same as the existing structure – approximately 2 feet above grade. The outdoor lighting will have lights by the door as required by code and some wall lighting. All exterior lighting will confirm with the specifications outlined in the bylaw. Some lighting may be inside the screened porch.
The Site Review Committee Report was read for the record.
Kathy Coe, abutter to the east said her primary concern is the sound impact on her privacy. Her brother-in-law, Dan Robinson said he met with the architect earlier to discuss his concerns which are summarized as: Can the A/C condenser be moved from the north to the west side of the house; why was the house moved 5 feet closer to their lot line. The roof deck over the screened porch on the east side provides a view into their outdoor shower. He asked if this porch and roof deck can be moved to the west side of the house. Lastly, Mr. Robinson explained two significant trees that acted as a natural buffer between the lots were destroyed by Hurricane Sandy and asked if additional, 18-foot high screening can be planted on the east side.
Mr. MacNelly explained he wanted to reduced the setback non-conformity on the west side of the house and pointed out the proposed location meets the minimum setback distance from his lot line to the east. The A/C unit is an air to air heat pump and will have 1-2 condensers. He thought they could be relocated. The request for 18-foot high additional screening will be very expensive as these will be mature trees. He offered perhaps some younger trees could be planted and suggested selectively siting them once the new house was framed. Flipping the porch to the west side is more complicated as its location is tied to the entire floor plan layout. The new house is designed to use the site just as the current house – the front door is in the same location etc. The current outdoor
shower is on the west side and was moved to the north side of the proposed new house. He would need to talk with his clients about this before committing to any changes.
Joan Safford asked if the house could be built in its current location instead of moving it to the east. Mr. Solmssen an abutter to the west said he agrees with all of Ms. Coe’s and Mr. Robinson’s suggestions. He asked if additional screening could be placed on the west side as well as the east side. Margaret Robinson asked if the cupola was removed because it was higher than the maximum 18 feet above grade. Mr. MacNelly said yes it has been removed and is subject to future discussions.
The Board commented that it is refreshing to see a design that is consistent with the character of the neighborhood. Mr. MacNelly asked for time to continue working with his clients and the neighbors and return to the Site Review Committee with any changes. A motion was made to continue the hearing to July 24, 2013 @ 5:20 PM. The motion was seconded and with no further discussion passed unanimously with five in favor.
GEORGE BRUSH, ESQ. FOR SUSAN SCHEUER; Article 9 Section 9.9; 11, 15 Chappaquoit Rd.; Map 24 Lots 209, 216: Ms. Weldon opened the public hearing at 5:50 PM. Mr. Brush explained the petition is appealing the Building Inspector’s decision to not order the neighbors, Douglas and Patricia Sacks, to remove a so-called chiller situated approximately 7.6 feet from Ms. Scheuer’s lot line. The chiller measures 20’ X 24’ with 7 plus foot high concrete walls, about 45” below grade and 40” above mean natural grade. It houses HVAC compressors that service the Sacks’ residence. The petitioner claims the chiller is a structure that is less than 50 feet from the petitioner’s lot line and therefore does not meet the minimum zoning setback distance.
He said the building permit was issued in February 2006 for the main house and garage. It was amended later that month for the single-family residence and garage with living space above plus a 112 sq. ft. shed. The chillers were not mentioned in either building permit. His clients saw the chillers in the following spring – after they were installed. The problem is the chillers are too loud -- which is not the Board’s concern tonight -- and repeated efforts have been attempted to work this out among neighbors. His clients offered to allow the chillers to be left in place if they could be quieted by adding sound-dampening louvers or getting quieter equipment. All attempts to solve the problem have not been productive.
Mr. Brush read the definition of a structure as outlined in Section 2.10 of the Zoning Bylaws. He said the 20’ X 24’ seven-foot deep concrete vault that houses the “chillers” is a structure as defined in Chilmark’s Zoning Bylaws Section 2.10 and therefore, subject to the Town’s minimum 50-foot setback distance from the lot line. Mr. Brush argued the height definition for a structure is specified as four feet and does not define the measurement as necessarily above mean, natural grade. He also cited the Bylaw definition of a swimming pool in Section 2.22 and claimed the vault has the same characteristics of a swimming pool and exceeds the minimum dimensions of a pool as defined. Mr. Brush stated a pool is a structure and therefore the vault is a structure because
a pool must have at least 35 cubic feet of space including a depth of more than 42 inches. The chiller vault is a structure even though it is not used as a pool because it has over 3,400 cubic feet of space, an area greater than 100 sq. ft. and is deeper than 42 inches. The Board pointed out this pool definition was adopted at the April 25, 2011 Annual Town Meeting—after Mr. Sacks finished construction.
Mr. Brush further pointed out the definition of Maximum Height as described in Section 2.7 of the Bylaws applies to the calculation of the height of the concrete vault walls just as it applies to the height of radio towers, TV antennas etc. This method of measuring height has been used to determine height specifications for all structures. Mr. Brush argued the vault is a structure because it has a wall 7 feet high (more than four feet high) and is a shelter for the chillers.
Mr. Brush summarized that all attempts to resolve the noise problem have failed and he is now asking the Board of Appeals to help facilitate a compromise to quiet the chillers.
Ms. Scheuer commented she lives with the chiller noise morning, noon and night. Mr. Lipnick added he analyzed the chiller noise level with his cell phone and it is significantly higher than 10 decibels above ambient noise (as outlined in Article 5 Section 5.9). He reviewed all the past attempts to resolve the problem that included asking the Building Inspector to intervene. The Board pointed out this bylaw was adopted after Mr. Sack’s project was built.
Mr. Jason said the question tonight is to decide whether or not the chiller vault is a structure. It is 40 inches above mean natural grade and therefore is not considered to be a structure as defined in the bylaws. Height is measured from mean natural grade for all construction in Town. For example, roof ridge heights generally cannot exceed 24 feet above mean natural grade. He does not measure the height of roof ridges from the basement floor of every house. If he did, all the houses in Chilmark would not conform to the specifications.
Mr. Jason said we can deal with the noise issues separately. The additional plantings that Mr. Sacks installed to help screen the noise didn’t work. Mr. Brush then asked me to see if the chillers were being changed as mentioned by Roland Kluver in 2008. Mr. Jason added he called Mr. Kluver who said he is no longer in charge of the project and referred him to Eileen. He spoke with Eileen who said they will be changed. These things can take time. I spoke with Eileen only two months ago and they have not yet been changed which is why we’re here tonight.
Mr. Lanza, attorney for Mr. Sacks said there are threshold issues for consideration. To accept an administrative appeal the Board must have a written response from the Building Inspector to Mr. Brush’s letter dated April 8, 2013. While Mr. Jason has made a decision regarding whether or not the vault is a structure he has not done it in writing. He added the timing requirements for filing an appeal have not been met. The building permit was issued in 2006 and the appeal was filed on May 29, 2013—well after construction was completed. Mr. Lanza sited the 30-day appeal windows from the issuance of a building permit and from the commencement of construction. Mr. Brush countered by referring to the 6-year statute of limitations for projects with building permits and the 10-year
statute of limitations for projects without building permits. Mr. Brush said he spoke with Mr. Jason about his April 8th letter several times. Mr. Lanza accepted the ZBA can waive the required written decision of the Building Inspector and accept his testimony of several phone call responses to the letter.
Mr. Lanza reiterated Mr. Jason’s earlier comment that he does not measure roof ridge heights from the basement floors of houses. All height measurements are made from mean, natural grade level. Regarding the noise complaint, Mr. Lanza said the chillers are grandfathered and not subject to the Zoning Bylaw Article 5 Section 5.9 because they were installed before this bylaw was enacted in April 2008. He added if this bylaw did apply, the noise level would need to be professionally monitored to establish the ambient noise level when the machinery is not running and then measure the noise level when it is running to see if the noise is greater than ten decibels over the ambient sounds. Lastly, Mr. Lanza stated the chillers and vault were shown on the plans submitted for the building
permit.
The Board opened the floor to public comment. Ms. Safford said if the vault is a structure because it meets the definition of a pool then; it violates the pool specifications such as needing to have a four-foot high safety fence around its perimeter. The Board discussed there could be a potential safety issue regarding children falling into the vault.
Several abutter comments were made about the noise of the chillers. The Board reminded the audience that this hearing is about whether or not the vault is a structure. The noise issue is not under consideration. With no further comment from the public Mr. Murphy commented they have heard two different opinions from two attorneys. We are not lawyers and asked if the Board should get an opinion from Town Counsel before acting on the application. The remainder of the Board members agreed. With no further comment a motion was made to continue the hearing to July 24, 2013 @ 5:35 PM to provide time for the Board to receive comment from Town Counsel. The motion was seconded and with no discussion passed unanimously with five in favor.
GEORGE SOURATI FOR JAMES B. ZUCKERNIK, TRUSTEE; Article 4 Section 4.2A3h and Article 6 Section 6.6; 42 State Rd.; Map 30 Lot 47: Mr. Christy said he is a direct abutter for this application and recused himself from the proceedings. Ms. Weldon opened the public hearing at 6:57 PM. Mr. Sourati reviewed a revised site plan dated 6/25/13 for a pool water heating system that includes installing an electric forced hot air heat pump in a location that meets the minimum 25-foot setback distance from the lot line. It is 28 feet from the west lot line. Mr. Rosbeck presented the data analysis with the assumptions used for the calculations. Photo-voltaic panels will be installed on the house roof and will generate approximately 5,000 kilowatt hours (KWH) of power over a 12-month period. The heat pump is estimated to use 3,300 KWH of electricity per year. The pool will have an automatic retracting cover which will help keep the water heated. After brief discussion and with no comment
from the public a motion was made to close the hearing at 7:06 PM. The motion was seconded and unanimously approved. A subsequent motion was made to approve the revised site plan as presented and dated 6/25/13 with the following special conditions: 1. The electric forced hot air heat pump water heating system is approved and will use approximately 3,300 KWH of electricity per year. The heat pump shall be located approximately 28 feet from the west lot line as shown. 2. The 19 roof-mounted photo-voltaic panels as shown on the south and west-facing roof surfaces will generate approximately 5,000 KWH of electricity per year. The pool will have an automatic retractable cover. The motion was seconded. With no further discussion the motion passed unanimously with five in favor.
DISCUSSION GEORGE SOURATI FOR JAMES B. ZUCKERNIK; Art. 4 Section 4.2A3: Mr. Sourati proposed changing the approved buried pool equipment vault location as Specially Permitted on May 25, 2011. The owner would like to locate the underground vault 20 feet farther north than originally approved. After brief discussion a motion was made to declare the proposed change as inconsequential and thus, not require the hearing to be re-opened. The motion was seconded and passed unanimously with five in favor. A subsequent motion was made to approve the proposed change as presented. The motion was seconded and also passed unanimously with five in favor.
ADMINISTRATION: The review of the May 22, 2013 meeting minutes was postponed to the next meeting.
The next meeting will be held on Wednesday, July 24, 2013 @ 5:00 PM with site visits on July 23rd @ 3:30 PM.
With no further business to conduct the meeting adjourned at 7:20 PM.
Respectfully submitted by Chuck Hodgkinson, CAS.
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