Zoning Board of Appeals
Minutes
May 20, 2015
Auditorium
Members present: Chair Ethan Berg, (EB); Shawn Leary Considine, (SLC); Robert Fuster Jr., (RFjr); Ned Douglas, (ND); Jedd Hall, (JH)
Absent with notification: Clifford Snyder, (CS); Robert Fuster Sr., (RF)
Staff present: Gwen Miller, Land Use Director/Town Planner; Peggy Ammendola, Land Use Clerk
Also present were the following: Town Manger Christopher Ketchen, Selectmen Ken Fowler, Lucy Kennedy, Ray Crowley, George Jordan, Clarence Fanto, Frank Newton, Eric and Kim Jakobowicz
Anthony Chojnowski, 50 Church Street (Map 43, Parcel 120), Special Permit Section 3.3.7(3) “Reconstruction after Catastrophe or Demolition” and Section 5.1.7 “Reduction of Parking Requirements”, and variance from Sections 5.1.9 “Driveways”, 5.1.10 “Layout of Off Street Parking Facilities”, 5.1.16 “Landscaping”, and 5.1.18 “Loading Bays”.
Presenting the petition was Mike Kulig of Berkshire Engineering who represents Tony
Chojnowski. Also present was Mr. Chojnowski and Evelyn Pascal.
Mr. Kulig stated that the project involve the demolition one of the existing structures which is a multi-family structure. The garage is not a part of this proposal and is being used for storage. This is a non-conforming use, but when converted to retail it will conform to the zoning bylaw. The proposal is to reconstruct with a small addition to square up the rear which will provide approximately 120 additional square feet. The frontage is approximately 65 feet whereby the required is 75 feet. Casablanca, a business owned by Mr. Chojnowski which is located on Housatonic would be moved to this new location. It would be the only retail business in this location. The plan is to reconstruct this building to look just like it was originally retaining all of the historical
details.
Mr. Kulig went through each of the Special Permit and Variance requests, explaining in detail the reasons for which they are requested and justification. Elevations of the project were shown. The traffic numbers for this proposal are insignificant. As part of the project a failed portion of the sewer line will be remedied and there will be no additional burden on the town infrastructure. The improvements will result in an opportunity for the Town to collect a more substantial tax basis.
RFjr said that Mr. Kulig had said nothing to support his argument as to why the permits requested met the requirements. While he acknowledged that the written application does this, RFjr said that he wanted it on the oral record.
Mr. Kulig responded that the site is now a nonconforming use, not consistent with the bylaw as it is residential. The Special Permit would allow it to be retail and thus conforming. The proposal will not increase traffic flow or safety issues. It provides additional parking spaces; there is space for deliveries off the street and refuse removal will be off the street and screened. The parking will be available to the public after hours. There will be no additional burden on municipal utilities or infrastructure. There is a failed portion of sewer line which will be corrected which will improve the existing capacity.
The applicant went before the HDC last night but the hearing was continued to a site visit on May 26th and meeting June 2nd.
Mr. Kulig responded to the condition of the structure and demolition versus restoration and explained that conversion from residential to retail would entail meeting more stringent building code requirements. He added that with these requirements they could not improve what is there. An elevator would be required as well as adherence to ADA requirements. As to impacts on the natural environment, Mr. Kulig said that the landscape hasn’t been maintained or improved. The proposed new structure will increase the tax base.
Public Comment
George Jordan presented a letter that was read aloud. He does not support this project.
Lucy Kennedy, 35 Tucker St., disclosed that she is a member of the Historic District Commission and Historical Commission. She said that she is speaking as a citizen, not as a representative of either organization. She believes that permitting the demolition of this structure will set a precedent for the District and the end result will be that the District would no longer function as a Historic District. Ms. Kennedy gave a history of Michael Mahannah, the original owner of this home which dates back to 1888. She said that this is about the only structure in the District which has not experienced major alterations.
Frank Newton said that this is probably the last house in the District that is as close to the original and therefore it is worth saving for that reason.
Evelyn Pascal, an owner of property in the District, said that every house was original but has been altered. She stated that this one is in abject disrepair and if something is not done it will become a detriment to the District. She believes that if Mr. Chojnowski is permitted to do as proposed, a tourist returning to the District will not be able to tell the difference as it will look identical to the original.
Mr. Chojnowski has owned the property for six years as a rental property. He hasn’t improved the apartments as he has wanted to take on the challenge to make this project happen and is finally at the point where he can do it.
EB made a motion to close the public hearing and JH seconded the motion.
The Petitioner stated that they would like to proceed with the knowledge that four votes in favor would be necessary for the petition to be granted.
SLC made a motion to grant the Petitioner’s requests for special permits and variances for the provisions as stated in the notice. JH seconded the motion.
RFjr said that he is aware that the ZBA has the ability to condition an approval, should it be granted, but he would feel more comfortable voting only after the HDC makes their decision. He said that he didn’t feel that he would be swayed by the HDC’s determination, but didn’t like to make a decision without all of the information.
Other Board members felt that since the ZBA’s decision is based on the criteria of the Zoning By Law, and in fairness to the Petitioner, the Board should make their decision based on this application and hearing.
There was discussion that if RFjr was seeking more information, the public hearing should not have been closed.
RFjr made a motion to re-open the public hearing. SLC seconded the motion.
Frank Newton opined that the ZBA would be setting a dangerous precedent if they approved this petition and that would seriously impact the credibility of Lenox.
George Jordan argued that the HDC should make their decision first. EB responded that if the ZBA were to approve, the ZBA could condition the approval. Additionally he said that the ZBA is to apply the criteria of the Zoning Bylaw and the Board is mindful of being consistent and fair, and committed to credibility.
GM, who attended the May 21st HDC hearing for the demolition proposal, offered to detail the proceedings. She said that EDM made a thorough presentation and that they explained the challenge of using the existing building e.g., the basement isn’t suitable for storing merchandise and building code/ADA requirements of conversion of a residence to a retail space. She explained that the HDC’s purview is to protect the historic character and streetscape of the District by following a list of guidelines to make their decision. The HDC Guidelines contemplates demolition under extraordinary circumstances, and if the Commission allowed, there are requirements for reconstruction. GM stated that if the HDC doesn’t permit the demolition, the Petitioner could not get a building
permit. She concluded by saying that the HDC felt they need a site visit to better understand demolishing the structure versus renovating.
ND wanted the Petitioner to know that ND had constraints and that if this hearing is continued, he will not be available after the June 3rd meeting.
RFjr was satisfied with the information provided by GM.
JH made a motion to close the public hearing and SLC seconded the motion.
The Board discussed in detail as they moved into the decision phase.
JH said that he has heard both sides and understands reasons for the preservation of the District, but described it as a struggling down town with 13 or so empty businesses. He feels that it is very hard to attract businesses and to stay there because of the outlet stores, online shopping etc. He said that he sees no down side to the proposal as Casablanca could be known as a model business for the retailers downtown. He feels that a replication and proposed landscaping will be a vast improvement. JH is in favor, but knows that the HDC will have the last word.
SLC stated the petition meets the criteria for the special permits and variances. She believes that there is financial hardship due to the structure and the site. She stated that it would be nice to preserve the structure, but very difficult and financially onerous. She is pleased that the owner is willing and able to replicate the essence of the structure. This, she feels, is not going to be more detrimental, will add to the tax base, and can be good for corner of Housatonic and Church Streets which has suffered over the years.
EB stated in response to George Jordan’s letter that it is the decision of the HDC to make on the demolition. EB said that the ZBA was not going to start applying the regulations of other boards on matters that are before the Zoning Board. This, he said, is how the ZBA maintains its credibility, by following the standards laid out for the ZBA. Mr. Jordan referred to a denied petition requested by Hoff’s, comparing it to this request. EB said that this request is not analogous to that request.
EB believes that there is a hardship, financial as well as with the structure, citing the 7.5 foot ceiling for retail. He believes that the beneficial impacts are clear and is grateful for the Petitioner’s attention to replicating the historic fabric and landscaping. Casablanca provides high quality merchandise. He believes the claim that this is the oldest structure in Lenox is inaccurate and said that he thinks that the library, Academy Building and old town hall are older. EB said that this is a positive sign that people want to invest in the downtown and he supports this project.
RFjr agreed that the ZBA and HDC have different roles. He thanked GM for providing the additional information. He wishes that all of the buildings could be restored, but acknowledges that if the only way to have a building which meets the quality and character that is desired in the District is to rebuild one that is almost identical to the original that meets current building codes for the uses we want in town then it should be done. He is in favor of approving the petition with the condition the Petitioner must have HDC approval.
ND said that he agrees with the Board.
The Board voted to approve 5-0.
In discussion about conditioning the approval, SLC pointed out that at the end of all ZBA decisions there is language which states the petitioner must acquire any additional permits and go before any necessary boards; therefore she questioned whether it is necessary to condition this decision. Discussion ensued. GM was consulted and she stated that either way would be acceptable but, there if there was an appeal process, and there is a condition, it could help the continuity if the HDC’s decision was not upheld. GM felt that the Board should do what they felt comfortable with. It was agreed to not add the condition.
Respectfully submitted,
Peggy Ammendola
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