Zoning Board of Appeals
Minutes
April 16, 2014
Landuse Meeting Room
Members present: Chair Ethan Berg, (EB); Cliff Snyder, (CS) Robert Fuster Sr., (RF); Ned Douglas, (ND); Shawn Leary Considine, (SLC)
Staff present: Land Use Clerk Peggy Ammendola, (PA)
HG October Mountain Estate, LLC, 430 East Street (Map 18, Parcel 85), aka Eastover Resort and Conference Center, Special Permit Sections 3.3.2 and 3.3.3 to extend a nonconforming use and structure to expand the existing building for the purpose of installing an elevator in the historic mansion building.
SLC disclosed that her son has been a summer employee at Eastover, but said that she felt that she would be impartial in making her decision. No one objected to her participation.
Present was Yingxing Wang, and her architect, Stephen Nolan.
Ms. Wang made the presentation who said that the Building Commissioner suggested that she have an elevator to the second floor as the rooms in the mansion are higher quality than other rooms available at Eastover, and this would provide accessibility to those who have a handicap. Because it is a historic building, and because there isn’t access to the third floor, Ms. Wang applied to the Architectural Access Board for a variance for an elevator to go only to the second floor. The variance was granted.
The Board questioned the applicant as to why Mr. Thornton had her apply to the Zoning Board of Appeals. Her response was that he advised her to appeal as Town Planner Mary Albertson was retiring. He felt that Ms. Albertson would have told Ms. Wang that she didn’t have to file an Appeal. Ms. Wang said that there was no mandate, nor anything to “trigger” a need to file with the ZBA
Members of the Board expressed that they did not think there was a need for a Special Permit, but because the applicant has filed, they would proceed in making a decision.
There was neither correspondence nor any members of the public at the hearing.
CS made a motion to grant the Special Permit as requested. RF seconded the motion and the Board voted to approve 5-0.
Bernd Schoner & Morwaread Farbood, 12 Sargent Brook Road (Map 1, Parcel 36), Special Permit Section 3.3.7 – Reconstruction after Catastrophe or Demolition to demolish an existing single family structure and replace it in the same location with new single family structure that will include a 240 square feet addition. The petitioners also propose to add an 8 feet by 13 feet attached shed.
Making the presentation was Attorney Lori Robbins and Mark Volk of Foresight Land Services. Also present was Bernd Schoner.
Mr. Volk described the location and provided an aerial photo. The structure is in disrepair. There is an encroachment of a stairway on a neighbor’s property for which the neighbor has granted an easement. The building will be demolished and reconstructed which will eliminate the encroachment. The existing structure is 600 square feet, but with a proposed addition in the front, the square footage will be 847. There will be an attached shed. The applicant filed a Notice of Intent with the Conservation Commission who approved of the project and issued an Order of Conditions. The applicant has also filed for a dock permit. The building is pre-existing non-conforming, but the new structure will be less non-conforming. The front of the building will be six
feet closer than the existing. This new setback is still further back than other homes in the neighborhood.
Attorney Robbins added that the home is served by a septic system and has municipal water. It will still be single family, parking will be improved and the increase in value will add to the tax base. Two abutters have written letters of support which are included in the petition.
No other correspondence has been received and there were no members of the public present.
SLC made a motion that a Special Permit under Section 3.3 7 be granted as requested. RF seconded the motion and the Board voted to approve 5-0.
Approve Minutes-April 2, 2014 CS made a motion to approve the minutes as written and RF seconded the motion. The Board voted to approve 5-0.
Other Business-Cell Tower, 90 Pittsfield Rd., Map 22 Parcel 39-PA contacted the Board via email on April 15th to inform them of emails and phone calls she has received recently regarding the cell tower located at the Lenox Fitness Center. Apparently the Building Commissioner, Bill Thornton, sent a letter to the owners of the cell tower stating that their Special Permit had expired. PA has been contacted by Sarah Brown, Real Estate Specialist with Crown Castle and Attorney Dan Klasnick who represents the tower owner, Crown Atlantic Company LLC. and asked for guidance on how to proceed with regards to this letter. PA explained that she does the administrative work for the four Land Use Boards, and was not qualified to guide an applicant on zoning regulations and referred both
individuals back to the Building Commissioner, explaining that Mr. Thornton was the Zoning Enforcement Officer, and would have the expertise regarding the zoning bylaws. Apparently this was more involved than simply being advised the pertinent Section in the bylaw under which to file and Attorney Klasnick contacted PA again. PA told Attorney Klasnick that usually the matters which come before the ZBA are petitions for relief from the zoning bylaw, but because it appeared he was not able to get the information he needed, she offered to contact the ZBA on his behalf provided he could submit, in detail, a letter with his questions. Attorney Klasnick’s response Monday afternoon, April 14th, was as follows:
Hi Peggy,
It was very nice to speak with you.~ By way of follow up to our conversation, I have spoken with Mr. Thornton.~ Because the town zoning bylaw (Section 6.11.21) includes that all special permits granted under Section 6.11 shall have a term of 5 years, Mr. Thornton has noted that it appears that there is a technical requirement to obtain a special permit for the existing telecommunications tower (please see attached original tower decision).~~ ~As noted, I represent the tower owner, Crown Atlantic Company LLC.
Because the requirements of the town zoning bylaws for a special permit for personal wireless services facilities and towers were appropriately drafted in contemplation of the installation of new telecommunication towers, the documentation requirements (e.g. detailed plans, FCC licensing, foundation design, proposed exterior finish, equipment shelter specifications etc.) would seemingly not apply to a special permit request for an existing telecommunications tower.~ With that consideration, I was hoping to obtain guidance from the Board concerning the extent and nature of the filing (if any) that would be necessary for a special permit request for the existing telecommunications tower located at 90 Pittsfield Road.
To assist in the review, I have included the specific bylaw provision below:
6.11.21 ~Expiration and Renewal
All Special Permits granted under this section shall be granted for five years with the SPGA retaining the option, at their discretion, to renew said Special Permit for additional five year period(s), if the SPGA determines that the Tower and/or Facility and/or Repeater so permitted shall have been and shall remain in compliance with all terms and conditions of this bylaw and of any conditions placed upon the original Special Permit at the time of granting.
As Section 6.11.21 does not specify the process for the renewal, it is possible that the Board has already taken the necessary action and no further filing is necessary.
I certainly appreciate your attention to/and guidance in this matter. I hope you have a great afternoon.
Thanks, Dan
Daniel D. Klasnick, Esq.
Duval & Klasnick LLC
Counselors at Law
ZBA Response-
At tonight’s meeting the Board discussed Attorney Klasnick’s email and asked that I provide a response to him. On Friday, April 18th, the following email was sent to Attorney Klasnick which included two attachments, the Decision of November 17, 2000 and the Zoning Bylaws that were referred to in the Decision.
At a meeting of the Lenox Zoning Board of Appeals last night, the Board discussed your email of Monday, April 14, 2014 concerning the existing telecommunications tower located at 90 Pittsfield Road in Lenox. ~~
Before addressing your specific questions, the Board asked that I convey to you the following requests:
1. ~Please provide evidence of the owner's compliance with the Zoning Board of Appeals' Decision rendered on November 17, 2000, since the date of that Decision.
2. ~Please provide evidence of the owner's compliance with Lenox Zoning Bylaw Section 15, entitled "Wireless and Telecommunications Overlay District (WTOD)," since the date of the 2000 Zoning Board Decision.~
Once the Board has this information, it will be prepared to address your inquiry.
Respectfully submitted,
Peggy Ammendola
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