Zoning Board of Appeals
Minutes
July 7, 2010
Land Use Meeting Room
Members present: Chair Ethan Berg, EB; Pam Kueber, PK; Ned Douglas, ND; Shawn Leary Considine, SLC; Cliff Snyder, CS; Robert Fuster, RF; Jo Anne Magee, JM
Staff present: Mary Albertson, Town Planner, MA; Peggy Ammendola, Land Use Clerk, PA
John McNinch, (Heritage House) 12 Housatonic Street (Map 43, Parcel 171). Modification of the Special Permit granted on November 17, 1995 that allowed outdoor dining. The petitioner seeks to increase the outdoor dining area from 16 seats to 30 seats. In the alternative a Variance from Section 6.3 Outdoor Dining will be reviewed.
Sitting for this hearing were: Chair EB, ND, CS, SLC and PK.
SLC read the public hearing notice.
Making the presentation was John McNinch. Mr. McNinch acknowledged that he has added additional seating to outdoor dining since the Special Permit was granted in 1995 without realizing that he was in violation. He has just completed major renovation in the front of his building, by adding 880 square feet of pavers to match the pavers used by the Town in the current Historic District renovation. He currently has 24 seats in this area and has room for almost 60, but is asking for 30 in the event diners inadvertently move more chairs into this area.
Letters Received:
Letter dated June 18, 2010 received June 29, 2010 from Frank Newton who stated that he has no objection to the increase in seating, but asked the Board to emphasize to the applicant that there is a closing time for outdoor dining
Mr. Ninch said that he closes the outdoor dining area after dark, but asked the Board for clarification on what is allowed in the Zoning Bylaw regarding hours for outdoor dining. . The Board said that this was not addressed in the Bylaw and that it s handled on a case by case basis.
ND made a motion to close the public hearing and SLC seconded the motion. The Board voted to adjourn 5-0.
SLC made a motion to grant the petition requesting a modification of the Special Permit allowing outdoor dining to be increased from 16 seats to 30 seats and to modify the condition that limited hours of operation to now state that outdoor dining be allowed in the front and back of the restaurant during daylight hours. ND seconded the motion.
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Board Discussion:
PK stated that she would like to have it on record that the tables and chairs in the front outdoor dining area are be five feet from the sidewalk.
SLC stated that this petition meets the requirements of the modification of the Special Permit. ND and CS agree.
PK stated that it is unrealistic to expect that there would be compliance with the Bylaw with regard to staying five feet from the sidewalk and that she would rather see it written with a variance.
The Board voted to agree to the motion 5-0.
SLC made a motion that a condition be imposed that the seats and chairs be kept five feet from the sidewalk, but decided to withdraw her motion.
Mr. McNinch said that if he sees that the diners encroach into the five foot area, he will come before the Board to request a variance.
SLC will be writing the decision
EnlightenNext, Inc., 4 Foxhollow Road (Map 1, Parcel 4). Modification of a Special Permit under Section 5.2.4 (3). Replace a damaged sign in the same location.
Present were Attorney Phil Heller and representatives of EnlightenNext, David Slick who is the Director of Facilities and Rob Voss, acting CEO and COO.
Mr. Heller made the presentation, stating that a Special Permit had been granted in 1977 for the development at this location. A condition to that decision was that the sign was to conform to the bylaw. The sign has been in that location since 1988 until it was knocked over in July of 2009, but because the Building Inspector could not locate a building permit, the applicants had to apply for a special permit to re-install a sign. The proposed sign will be the same height, but approximately 2 square feet smaller. The property consists of 172 acres, is zoned residential and is located in Lenox, Stockbridge and Lee. The proposed sign location is in Lenox.
SLC made a motion to close the public hearing and ND seconded the motion.
SLC made a motion to grant the request for the Modification of a Special Permit under Section 5.2.4. (3) to replace the sign which would be lighted (down lighting) from sun down to sun rise. PK seconded the motion. The Board voted to approve 5-0.
ND will write the decision.
David and Joan Hobbs, 37 Roaring Brook Road (Map 29, Parcel 38). Special Permit under 7.2.2 to construct a new unattached 2,000 +/- square feet principal single family structure and use the existing 708 square foot historic cottage as an accessory dwelling unit. The Petitioners request a Variance from Section 4.1.1 – Minimum Lot Frontage. Continued from May 19, 2010, June 2, 2010. At the June 9, 2010 meeting, the Board stated that the Hobbses be notified that the Board would not be able to hear this continuation, but would continue to July 7 at 7:30 pm. PA notified Mr. Hobbs June 10.
This hearing was chaired by PK and heard by EB, SLC, ND and CS.
Present were Mr. and Mrs. Cotton and David Hobbs.
Letters received and read into the record:
1. June 15, 2010 from the Planning Board advising the ZBA that they had reviewed this application and voted 4-0 to recommend that the ZBA approve the Special Permit application as it is within the intent of the bylaw.
2. Mildred Devos, May 19, 2010 stating no objections to this application.
3. Andrew and Linda Stephenson, May 12, 2010 stating no objections to this application.
4. Thomas and Judith Hynes, May 12, 2010 stating no objections to this application.
PK reviewed the process for this petition stating that the ZBA had requested consultation with the Planning Board to clarify the intention of the Bylaw as it relates to Accessory Dwelling Units. PK and MA attended the Planning Board meeting. PK said that Planning Board members Steve Sample and Kate McNulty Vaughn were on the Board when the ADU section of the bylaw was developed and they stated that the principal driver for the ADU was to enable homeowners who had extra space in their home or adjacent building to provide an opportunity for others to live in Lenox. She said that the Planning Board said that it was inconsequential as to which comes first, the ADU or the principal residence, even though the Planning Board’s letter does not reflect that.
PK asked for clarification on the size of the new dwelling. Originally the request was for 1800 square feet, but the applicants would have preferred 1600 square feet. Because of additional costs to produce plans for an adjustment to the square footage, Ms. Cotton prefers to stay with the 1800 square foot floor plan.
CS made a motion to close the public hearing and SLC seconded the motion. The Board voted 5-0 to close the public hearing.
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SLC made a motion to grant the Special Permit under 7.2.2 to construct a new unattached single family structure and to use the existing 708 square foot historic cottage as an accessory dwelling unit and to also grant a Variance from Section 4.1.1 to permit such activity to be done on a lot of less than sufficient frontage.
ND seconded the motion.
Board Discussion:
SLC stated that originally she was taken aback by this petition for a construction of a principle residence while using the existing cottage for the ADU. Now she feels that it does not matter which comes first as the structures will compliment each other and the requirements of the special permit have been met as well and that the standards of a variance have been met because of the topography
PK said that while the frontage is inadequate, there is an existing house on the lot. She is in favor of the petitioners building a small, 1800 square foot principal residence.
EB was surprised by the stand of the Planning Board. He feels that the important distinction is that there is not another location for the placement of the new structure.
CS agrees that there is a hardship based on topography
ND agrees with the other members and stated that the petition meets the threshold for a variance.
The Board voted to agree 5-0.
PK advised Mr. Hobbs that the Zoning Bylaw requires that an affidavit be on file, so the petitioners are urged to have the ownership of the property transferred to Mr. and Mrs. Cotton who will be living in the primary residence. Mr. Hobbs assured the Board that the process to transfer ownership will commence in 1.5 weeks.
CS will write the decision.
Robert Brown, 83 Yokun Avenue (Map 12, Parcel 1), Special Permit under 7.2.2 and Variance from Section 7.2.3(4) – Maximum Unit Size to convert the exiting detached carriage house into an Accessory Dwelling Unit (ADU). SLC, CS, ND and SL will not be here. Originally scheduled for June 16, 2010, but there was not a quorum.
Present were Rob Akroyd of Greylock Design Associates., Attorney Phil Heller, Dr. Robert Brown and his son Chris Brown
This hearing was chaired by SLC and members sitting were PK, JM, RB and ND. JM, SLC and ND were sitting through invocation of the rule of necessity.
Making the presentation was Mr. Heller who stated that the two story carriage house has a 1200 foot footprint. The second story will be used as storage. The property consists of 13.3 acres and is bisected with part in the R1A zone and part in the R30 zone. The residence was built in 1950 and the carriage house was built in 1983 and is consistent with the main residence. Dr. Brown’s son will live in the proposed ADU which is not visible from Yokun.
Letters received and read into the record:
Margaret and Jane Layton, letter dated July 7, 2010
Marjorie Steinberg, email received May 24, 2010
Steven Peters, email received May 12, 2010
Terry and Bonnie Burman, June 1, 2010
Judy Gibson, email received May 11, 2010
Everyone wrote in support of the project.
The proponents state that the principle structure is 3200 square feet, and because of the grade of the property and historic walls, the carriage barn would not be functional for any other use.
Abutters present:
Ms. Nelson of 80 Yokun said that she supports the petition.
Mr. Heller said that he had contacted Attorney Bill Martin who represents abutter George Krupp and that Mr. Martin has advised him that Mr. Krupp is satisfied with the plan.
RF made a motion to close the public hearing and the JM seconded the motion. The Board voted to agree 5-0.
JM made a motion to approve the Special Permit under Section 7.2.2 and Variance from Section 7.2.3(4), Maximum Unit Size, to convert the exiting detached carriage house into an Accessory Dwelling Unit of 1200 square feet versus 800 square feet.
RF seconded the motion.
Board discussion:
PK stated that the proposed size of the ADU is consistent with the acreage and it is an adaptive reuse of a structure. She feels that it is a logical use of the 1200 foot space. She feels that the applicant is hard pressed to make a hardship, but there is a 3200 square foot primary residence therefore she agrees that this ADU is fine for the overall lay out of the property.
JM agrees and with the strong support of the neighborhood, the fact that this ADU does not impinge upon others and the ADU is not visible from the street, she is in favor of granting the petition.
RF feels that to require the petitioner to wall off 400 square feet of the existing structure is antagonistic to the character of the bylaw. He very much favors the idea of the owner trying to preserve the historic stone wall.
ND said that initially he was not comfortable with the 1200 square foot size of the ADU, but feels that common sense trumps the 800 square foot limitation.
SLC feels that the petition meets the requirements of the bylaw. She stated that this important structure is pre-existing and that this is a good adaptive reuse which trumps the arbitrary 800 square foot maximum square footage allowed under the bylaw.
The Board voted to agree 5-0.
JM will be writing the decision.
Respectfully submitted,
Peggy Ammendola
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