Zoning Board of Appeals
Minutes
November 5, 2014
Landuse Meeting Room
Members present: Acting Chair Robert Fuster Sr., (RF); Ned Douglas, (ND); Cliff Snyder, (CS); Robert Fuster Jr., (RFjr); Albert Harper, AH
Absent with notification: Ethan Berg, (EB); Shawn Leary Considine, (SLC)
Staff present: Land Use Clerk Peggy Ammendola, (PA)
Sprague Family Nominee Trust-1974, 390 Undermountain Road (Map 16, Lot 26).
Modification of Special Permits (July 31, 1987 and March 31, 1989) under Sections 3.1.C.6 and 3.3.2 to reduce the 156 acre parcel upon which sits a riding arena and horse stables and a riding arena to 93 acres, 83 of which will be subject to a Conservation Restriction and to eliminate the second condition restricting the Special Permit to the Sprague Family Nominee Trust or Sprague family members. Notice: A scheduling error originally had the meeting date of October 15, 2014. This has since been corrected and the actual date is November 5th. Also, in that notice, the Lot number was incorrectly stated as Lot 20. This has been corrected to Lot 26.
Al Harper, an alternate, recused himself as he is a direct abutter to the subject property.
ND disclosed that he has worked with three generations of the Sprague family and knows a member of the Berkshire Natural Resource Council (BNRC). RF disclosed that he served with Tjasa Sprague on the Board of Berkshire Country Day School. No one objected to their sitting on this hearing.
There were only four members of the Board available for this hearing. Attorney Heller agreed to proceed with four members knowing that all four would have to vote in favor of the petition.
Presenting the application was Attorney Phil Heller.
Also present were Tjasa Sprague, Carl Sprague and Narain Schroeder who is the Director of Land Conservation at BNRC.
Attorney Heller reviewed the petition and history of the Special Permits granted in July 1987 and March 1989. Existing on the property is a riding rink, a small shed barn, another barn, a three family multiple family house and two single family dwellings. For 40 years the Spragues have preserved the parcel with the only usage being for the riding stable and multi-family housing. Otherwise, stated Attorney Heller, it has been open space open for passive recreation
Attorney Heller stated that about a year ago, the Spragues began negotiating with BNRC to try and determine how to preserve the parcel and the valley. They have since entered into an option agreement of two parts with BNRC which expires October 31, 2015. The first part is an option to purchase the 63 acres which is Sprague Marsh. This abuts Parson’s Marsh which is owned by the Town of Lenox. This would remain as open space controlled by the Town and may be administered by BNRC. The second part would be to impose a Conservation Restriction (CR) on 83 acres; five of those acres are the septic system. This is excluding the 10 acres where there is existing commercial use.
Carl Sprague, using photos of the parcel, pointed out the area that is proposed for the CR.
The CR will have the following terms: It will be open space, with no development, no permitted buildings. There would be agricultural use, passive recreation and maintained horse trails. The 10 acres will still be owned by Sprague Nominee Trust, but will be outside the CR. The 5 acre plot on which there is an existing septic system will be a part of the CR. The CR would run with the land, and whoever is the owner, will own it subject to the CR.
In conclusion, Attorney Heller said that the Spragues are sensitive to community needs. The property is in the R1A Zone and could be divided into single family lots as there is significant frontage.
RF asked if the area conveyed to BNRC would be controlled by the town. Mr. Schroeder said that the Sprague Marsh parcel is the subject of a Community Preservation Act proposal that will go before the town if this request is approved. At this point the proposal is that BNRC would own the 63 acres subject to a CR held by the Lenox Conservation Commission. Those 63 acres would be managed by BNRC but in conjunction with Conservation Commission and make sure it is managed in the same way as Parson’s Marsh. The 83 acres would be subject to a Conservation Restriction but it would still be owned by the Spragues.
Ms. Sprague said that they wish to keep the field as open piece of land, maintaining the views and keeping it mowed.
ND asked if part of agreement is that the property will be mowed yearly. Ms. Sprague answered in the affirmative, but Mr. Schroeder clarified that the agreement allows BNRC to mow the fields if they find it isn’t being mowed, but there are no requirement that it is mowed.
Attorney Heller stated that the community benefits by having this beautiful valley going down Under Mountain Road that will not be developed.
Mr. Schroeder said that the plan for the 63 acres would be to have a public access trail leading down to Parson’s Marsh but a definite route has not yet been determined.
CS clarified with the proponents that the bottom half of property will be owned in essence by BNRC and the Town and the upper part (which contains the farm) would have a CR that would go with the rest of the Sprague property. If and when the Spragues should sell, that property, held by BNRC would be subject to the restriction. They have not yet gone before the Conservation Commission.
No one from the public was present and there has been no correspondence.
Attorney Heller said that the applicants wanted to proceed with four members. The public hearing was closed and the Board moved to the decision phase.
RFjr made a motion to grant the Modification of a Special Permit dated July 31, 1987, to reduce the 156 acre parcel of land on which an indoor riding arena and horse stables is currently located to 93 acres, 83 acres of the 93 acres will be subject to a Conservation Restriction that is to be held by BNRC, Inc. or to assignee or nominee purchaser and made a motion to grant the Modification of a Special Permit dated March 31, 1989 to reduce the 156 acre parcel of land on which a multi-family dwelling is located together with the aforementioned referenced indoor riding arena and horse stable to 93 acres, 83 of the 93 of which will be subject to the Conservation Restriction to be held by BRNC, Inc. or to assignee or nominee purchaser and further moved to eliminate the second condition of the March 31, 1989
Special Permit that restricts the Special Permit to the Sprague Family Nominee Trust or Sprague family members such that it would be applicable to a purchaser/subsequent owner to the property. CS seconded the motion and the Board voted to approve 4-0.
The consensus of the Board was that Attorney Heller presented the proposal in great detail and they expressed their appreciation to the Sprague family for their generosity to the community of Lenox. It was noted that the plan for this key piece of property was well thought out and preferred over the development of the property which could have resulted in a significant number of homes.
Note: AH sat in on the next two hearings.
Michael F. Steuerwald, 9 Reynolds Street (Map 47, Lots 30 and 31), Special Permit Section 4.1.1. to allow construction of a storage shed within the twenty (20) foot rear setback, five (5) feet from the rear property line opposite an existing garage.
Presenting the application was Mr. Steuerwald. Mr. Steuerwald said that they want to add a wooden shed measuring 12X30 feet which will be even with the garage. It will be no more non-conforming. The shed will sit on six inches of ¾ inch stone.
It was noted that the address published of 9 Reynolds Street was incorrect. ND made a motion to amend the address from 9 Reynolds to 19 Reynolds. (The Map and the Parcel numbers were correctly published.) RFjr seconded the motion and the Board voted to agree 5-0.
Abutters Joe and Betsy Strauch were present.
There was no correspondence and no one objected to the proposal.
CS made a motion to grant the permit requested and ND seconded the motion. The Board voted to approve 5-0.
Bernd Schoner and Morwaread Farbood, 12 Sargent Brook Road (Map 1, Lot 36), Variance from Section 3.3.4 (limiting dwellings to two stories) to construct a bedroom/office in the 3rd story space formerly identified as attic space in a residence.
Attorney Lori Robbins presented the application. Also present was Scott Henderson with Clark and Green.
Attorney Heller explained that in the spring of this year the applicants sought and were granted a Special Permit to demolish a pre-existing, non-conforming structure and reconstruction. The applicants would like to use the attic, which is a story above the second story, as a home office/bedroom. Ms. Robbins said that according to the Zoning Bylaw, the dimensional requirements in the bylaw for R1A define height as two stories and 35 feet. The proposed structure is within the 35 foot height. There will be no changes to the exterior proposed exterior with the only thing difference in this petition and the previous one is the number of stories identified within the structure. Provisions in the zoning bylaw allow granting greater height in other zones and the Board has granted height
waivers to the 50 foot limit but it doesn’t say that the Board can waive the number of stories; therefore the logical conclusion is that you can vary number of stories. Attorney Robbins stated that it is a hardship, financial and otherwise, to not allow the homeowners to use the interior to its maximum. She quoted MGL Chapter 40A, Section 3 that no zoning ordinance shall regulate the interior are of a single family residential building.
The submitted plans indicate attic space, and the applicants are not modifying the plans, just asking to convert the attic space to livable space. When seeking a building permit, the Building Commissioner said the plans call for three stories; therefore they needed to get approval from the ZBA.
The Board was confused about being able to have attic space, but to utilize that space as living area would require a variance. Discussion ensued regarding the need for the variance. The space is available. The lot is very small, and it isn’t possible to add to the footprint to gain this amount of space due to the setbacks of the parcel. Mr. Henderson said that the plans call for a full stair access to the third level, but once that area is finished off, it doesn’t conform to the zoning bylaw.
There was no correspondence or any members of the public present.
RFjr made a motion to close the public hearing. AH seconded the motion and the Board voted to agree 5-0.
RFjr made a motion to grant the variance from provision of Section 3.3.4 to permit the construction of a bedroom/office in the third story space formerly identified as an attic with the 35 foot height from the already permitted pursuant to the terms of the Special Permit issued by the ZBA in connection with an application dated February 2014 by the petitioner. ND seconded the motion and the Board voted to approve 5-0.
The consensus of the Board was that the petition complies with all of the requirements for a variance. They agreed that it would be a substantial hardship financially to not permit the petitioners to have the ability to use this space.
Other Business:
ND asked RF about the outcome of the following petition which came before the Board August 20, 2014: Mark Nulman, 21 Schermerhorn Park (Map 40, Lot 52) Variance, Section 5.1.8.l5.b to construct an additional curb cut at a residence.
RF recapped the events of the Public Hearing in which Sharon Strassfeld, representing her brother, Mr. Nulman, withdrew the petition. Weeks later a concern was raised that the withdrawal procedure may not have been followed correctly therefore the ZBA requested that Ms. Strassfeld put her request in writing. She complied, but the day following her submission, she requested that the documents not be placed in the public record. On October 15, 2014, the Board met to formally take a vote to allow the withdrawal of the petition. At that meeting PA explained that Ms. Strassfeld had made the request to withhold the documents from the public record. RF agreed that he would call Ms. Strassfeld and subsequently contacted her to explain that once documents were received, they are a part of the public
record. Ms. Strassfeld expressed her appreciation for the explanation and told RF that she understood.
RFjr made a motion to adjourn and RF seconded the motion. The Board voted to agree and the meeting was adjourned at 8:25 pm.
Approve minutes:
Aug. 6, 2014- RFjr made a motion to approve the minutes and CS seconded the motion. The Board voted to approve 3-0-1. AH abstained as he was not at that meeting.
Oct., 1, 2014- RFjr made a motion to approve the minutes and CS seconded the motion. The Board voted to approve 3-0-1. AH abstained as he was not at that meeting.
Respectfully submitted,
Peggy Ammendola
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