Zoning Board of Appeals
Minutes
May 2, 2012
Landuse Meeting Room
Members present: Chair Ethan Berg, (EB); Shawn Leary Considine, (SLC); Jo Anne Magee, JM; Jedd Hall, JH
SLC was acting Chair for tonight’s meeting.
Staff present: Mary Albertson, Town Planner, MA; Land Use Clerk Peggy Ammendola, (PA)
Thomas A. Hoadley, 21 Church Street (Map 43, Parcel 167), Variance from Sections 5.2.4 Signs or in the alternative Section 5.2.6. Continued from October 5, 2011, November 2, 2011. The Hoadleys were not present. EB made a motion to continue the hearing to June 20, 2012 and JM seconded the motion. The Board voted to continue 4-0.
Kevin Charlton, 428 Housatonic Street (Map 8, Parcel 155). Special Permit under 7.2.2 and Variance from 7.2.3.4 of the Zoning Bylaw to covert a portion of an existing single family house into an accessory dwelling unit.
SLC told the petitioner that there were only 4 members present of a 5 member board and gave the Petitioner the following options:
- Proceed with the four members. All four would have to vote in favor of the petition for the request to be granted.
- Wait until five members could be present.
- Proceed with the four members but invoking the Mullin Rule (MGL Chapter 39, Section 23D) whereby a fifth member has the opportunity to listen to the audio of this hearing. The decision would then be made at a subsequent hearing. Mr. Charlton chose this option.
It was also explained that Mr. Charlton could decide before the decision phase to withdraw his petition, but if he chose to proceed and his petition request is denied, he could not come before the Board for two years unless there was a substantial change in his petition.
Making the presentation was Mr. Charlton. His existing home is a two story structure with three bedrooms. He wishes to have an Accessory Dwelling Unit within this structure. At the time that he presented his petition, he did not request the variance as he was not aware that a second permit would be necessary in order to have the ADU of 800 square feet. He became aware when he received the public hearing notice.
Mr. Charlton went through the different options for achieving his proposal for an ADU. The easiest solution would be to split the two story house with one portion for the ADU on one floor and the other portion on the other. This, he said, is why he sought permission for an ADU which exceeded 440 square feet. In this case he would hope to be able to put a deck on the back to serve as a second means of egress, but he is not sure that there is enough clearance under an existing window. If there isn’t enough clearance, he proposes to convert an existing side porch into a two story porch. If the 800 square foot ADU could not be permitted, he said that another option would be to convert an efficiency unit on the first floor which could be approximately 440 square feet.
SLC pointed out that the conversion of the existing side porch would possibly be considered a substantial alteration under the Zoning Bylaw, which states there should not be a significant change in the existing external appearance in the creation of an ADU.
Discussion ensued regarding the interpretation of the bylaw with regard to the size permitted for an ADU. The existing structure is approximately 2000 square feet. Forty percent of the gross floor area of the principal single family structure would be approximately 800 square feet. MA stated that she understood that that the purpose of the ADU is to make a small unit in an existing home for providing affordable housing and that the 40 percent would be calculated on the primary unit following the reconfiguration. In this case it would be 40 percent of the 1100 sf proposed, resulting in 440 square feet for the ADU.
No letters from the public were received.
The following abutters spoke in opposition to the ADU:
- Paul Vacchina of 416 Housatonic Street
- Paul Blagg
- Ken Dougherty 63 Pine Knoll Rd.
- Gina Simonelli Pine Knoll Rd.
- Diane Dougherty
- Paula Blagg
- Ms. Vacchina
The concerns expressed were that this essentially is creating a two family home in a single family zone. Mr. Blagg said that there was an easement created several years ago to provide access to a sewer line by a former owner. He said that the document recorded at the Registry of Deeds has a covenant which states that the sewer line shall never serve more than one dwelling and there will be no additional development on grantees property. Mr. Charlton was not aware of a covenant, but he did know that he had an easement.
The Board answered questions posed by the abutters present and explained that the ZBA cannot enforce private covenants or interpret them. The Board explained that the ADU is allowed under the Zoning Bylaw as it was approved by the voters at an Annual Town Meeting. The purpose of the ADU was to provide affordable housing and allow an owner to have the resources to afford to continue to live in their home. Further it was explained that the Board’s responsibility is to make a decision as to if this petition qualifies as an ADU. The abutters were referred to the section of the bylaw which addresses accessory dwelling units and pointed out that when an ADU has been permitted and the property is sold, the new owner has to comply with the requirements set out in that
section. The abutters were told that the Building Inspector enforces compliance, but that if they are aware of violations, they have the right to bring their complaints to the Building Inspector.
The Board asked that MA seek clarification from the Planning Board regarding the basis of calculating the square footage allowed for an ADU, i.e., if the calculation is based on the square footage of the primary unit pre or post the establishment of an ADU.
EB made a motion to continue the hearing to June 6, 2012 at 7:00 pm. JM seconded the motion and the Board voted to agree 4-0.
Mr. Vacchina stated that all abutters to the property were not notified, in particular Jim Roche. PA advised the Board that James Roche was on the list of abutters certified by the Assessor’s Clerk and that the Assistant Town Clerk certified that all of those on the list were sent a public hearing notice. She added that the notice to Mr. Roche was not returned to the Land Use Department, so it can be assumed that the notice was delivered to Mr. Roche’s address.
7:30 pm Donna Lefkowitz, 142 Cliffwood Street (Map 17, Parcel 14), Special Permit from Section 4.1.1, Footnote #6 to allow a reduction in the lot line setback requirement for construction of a new shed.
SLC told the petitioner that there were only 4 members present of a 5 member board and gave the petitioner the same options that were given to the first petitioner. Ms. Lefkowitz chose to proceed with the four members.
Both JM and EB stated that they knew Ms. Lefkowitz personally but they felt that they could be impartial in making their decision relative to her petition. No one objected.
Ms. Lefkowitz told the board that she had a 9’X9’ shed that was destroyed by the snow. She wished to replace the former metal shed with a more attractive shed that will measure 8’X12’. It will be positioned in the same area as the non-conforming shed, but the new shed will be less non-conforming.
There were no members of the public present or correspondence received.
JM made a motion to approve the petition as presented. JH seconded the motion and the Board voted to approve 4-0.
8:00 pm LD Associates, Inc., 55 Pittsfield Rd (Map 17 Parcel 40). Modification of a Special Permit to add a storage closet, increasing the addition previously approved by 145 square feet, bringing the addition to 968 square feet.
There were no members of the public present or correspondence received.
The Board expressed concern that the petitioner was not present, but after discussion felt that the square footage increase was not that significant and that the public had been sufficiently noticed.
JH made a motion to approve the request for the modification of the Special Permit granted December 11, 2011 for the addition of 145 square feet. JM seconded the motion and the Board voted to approve 4-0.
Respectfully submitted,
Peggy Ammendola
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