Zoning Board of Appeals
Minutes
September 16, 2015
Landuse Meeting Room
Members present: Acting Chair Shawn Leary Considine, (SLC), Robert Fuster, (RF); Robert Fuster Jr., (RFjr); Clifford Snyder (CS); and Al Harper, AH
Absent with notification: Ethan Berg and Ned Douglas
Staff present: Land Use Director/Town Planner Gwen Miller (GM) and Land Use Clerk Peggy Ammendola, (PA)
Judith Stollerman, 5 Fairview Avenue (Map 43, Parcel 93), Special Permit under Section 3.3.7 (3) “Reconstruction after Catastrophe or Demolition” to allow replacement of a 6’ X 8’ garden shed with a new 8’ x 8’ garden shed in the same area. Both the former and proposed sheds encroach into the side setback. (On 8/5/2015 letter received from petitioner requesting that we move hearing from August 19th to September 16th.)
RF read the Public Hearing notice aloud.
Presenting the application was Judith Stollerman and Danielle Sandow. Ms. Stollerman said that she bought the home in 1987. There was an existing metal shed in the driveway of the home that continued to sink into the ground and fell into disrepair. She indicated that there had been friction with her neighbors over the last 27 years and therefore to avoid conflict she put off removing the shed until she was advised to dispose of it. Ms. Stollerman said that since she lives in NY, her sister, Danielle Sandow, is in charge of the property. Ms. Sandow shopped for a replacement and the smallest shed available was 8’X8’. Ms. Sandow had been in contact over a long period of time with former Building Commissioner Bill Thornton and he told her that the replacement had to fit on the footprint of
the former shed so that it didn’t encroach on any abutter. Ms. Stollerman said that it does fit on the footprint, but extends a bit on to her own property. A neighbor protested the installation of the new shed which resulted in her having to file for the Special Permit.
Ms. Sandow said that Ms. Stollerman gave her power of attorney and is in charge of Ms. Stollerman’s property. She and Mr. Thornton met at the property in April and he told her that the shed could be put in the same location as the former shed. It would fit exactly on the footprint, she said, if it were a 6’X8’ shed, but it is an 8’X8’ and extends two additional feet forward. This she said was the best that they could do to get a garden shed. Ms. Sandow stated that due to numerous other responsibilities and commitments she was not capable of dealing with the difficulties she felt she would encounter with her neighbors if she was to put in the new garden shed, therefore she delayed doing so for as long as she could. She said that she spoke with Mr. Overmyer and offered to paint the
shed a color his wife would like, but she said that obviously the idea of the new shed wasn’t amenable.
Ms. Sandow did not know how the height of this shed and the former differed, but said that if she is allowed to keep the shed, she would place plantings so that it would not appear to be visually high. She said that if allowed to keep she will plant so it will not appear as visually high. She noted that only the direct abutters had complained, but none of the other neighbors had.
Ms. Sandow said that she did not ask any supplier if she could order a smaller shed instead of taking the larger one that was in stock. When asked if she inquired to see if someone could build a shed to the required specifications, she said she had once, but the individual she approached did not want the job. Ms. Sandow said that because of the friction with her neighbors she felt under threat constantly and did not want to pursue it further.
Don Fitzgerald, the present Building Commissioner, said that he had spoken to Mr. Thornton regarding the Zoning Bylaw which states that if you remove a shed that is pre-existing and in a non-conforming location, one can only put in one of the exact same size and height as the one being replaced. Mr. Fitzgerald said that the agreement was the new shed had to comply with those standards. The Assessor’s records reflected that the shed in place was for the smaller shed therefore he cited the owner of the property for putting in the larger shed. Three sides of the shed are on the footprint, the fourth is out by two additional feet into the yard. Mr. Fitzgerald added that Ms. Stollerman could have replaced the same size shed in the exact same location with no permit from the ZBA or the Building
Department.
Under questioning by AH, Ms. Stollerman said that she first learned the new building was larger than the former building when she got a letter from the Town. Ms. Sandow added that while in discussion with Mr. Thornton in April she told him that the new shed was 6’X8’ and he didn’t voice an objection. She continued that he told her that it was acceptable if the new shed went into the footprint. Ms. Sandow said it does fit, but with a two foot extension.
Letters-The three following letters were received and read into the record:
Lillian Marcantel, 12 Fairview Avenue-August 12, 2015: Ms. Marcantel stated that she objected to the new shed and believes that the first was never permitted. She said that the size of the former shed was too large for the space and a larger one certainly shouldn’t be permitted.
Jim Overmyer and Ellen Weiden, 7 Fairview Avenue-August 17, 2015: Concerned about the postponement of the hearing, citing that the owner has been on notice from the Board of Health for more than a year and have a recent history of ongoing non-compliance.
Jim Overmyer and Ellen Weiden, 7 Fairview Avenue-September 16, 2015: The next door abutters to the subject property provided calculations of the size of the former and existing shed based on Ms. Stollerman’s Special Permit application which demonstrates that the existing shed is double the size of the former. Mr. Overmyer and Ms. Weiden claim that the property, uninhabited for over two years, has been under order by the town Board of Health for
uncorrected public health and safety violations since June 2014, has been uninhabited for over 2 years. They stated that they and the neighbors have had to put up with the substandard condition of the property for years and feel that the application should be rejected.
RFjr asked Mr. Fitzgerald, as a public official for the Town of Lenox, if he was aware of any concerns of health and safety of this property. Mr. Fitzgerald said that he was aware of something from 2014 but that it had nothing to do with the shed. He is not aware of the status and said that Tri-Town Health would have that information.
Ellen Weiden said that she and her husband have sought permission from the Town for any of their projects and stated that Ms. Stollerman and Ms. Sandow should also be responsible to comply with the law as well.
Ms. Fitzgerald said that her property also abuts the subject property. She won a shed and arranged to have it installed failing to realize that she had to have a permit. She had to pay to have it removed as a result of constant harassment from the former Building Commissioner, Ms. Stollerman and Ms. Sandow.
RF sought clarification from Mr. Fitzgerald that if an existing non-conforming structure was demolished prior approval would have to be sought prior to the demolition. Mr. Fitzgerald confirmed.
The consensus of the Board was that they were familiar with the property; therefore a site visit was not necessary.
The Public Hearing was closed and the Board entered into the Decision phase.
It was explained to both Ms. Stollerman and Ms. Sandow that prior to the Board making their Decision, they had an opportunity to withdraw the Petition but if they chose to proceed and the Board denied the Petitioner’s request, they would have to wait two years to reapply with a similar petition. If they withdrew, the shed would have to be removed.
Ms. Sandow claimed that statements had been made that were totally incorrect and damaging to her and Ms. Stollerman and wanted to address those statements. The Board granted Ms. Sandow an opportunity to briefly list items that she felt were incorrect. She responded that in 1987 she put up a privacy fence and since 1988 has been assaulted, e.g. fences torn down, dead animals, salt poured on flowers or pulled up, and house painted. She claimed that she and Ms. Stollerman didn’t know about the circumstances regarding Ms. Fitzgerald’s shed. SLC told Ms. Sandow that the Board recognized that there is a history of a bad relationship among the neighbors.
Ms. Stollerman asked for an explanation of what could be put on the property if the shed is removed. Mr. Fitzgerald reiterated that it could be replaced with one of the same size without permits from the Town, but to make sure the Town was aware that was their intention. Putting in a larger shed is breaking the law. It must be the same size and height. Ms. Stollerman and Ms. Sandow said they were ignorant of the law. SLC said that there is a widely acknowledged maxim that ignorance of the law is no excuse and told Ms. Sandow that the Board would not continue in any further back and forth comments and would deal only with the requirements of the law.
Ms. Stollerman said that she would not break the law. The Applicant was asked if she wanted to withdraw or continue with the Board voting on the Petition. If she chose to withdraw, she could, but would have to immediately remove the shed.
RF made a motion to close the Public Hearing. AH seconded the motion and the Board voted to agree 5-0.
CS made a motion to grant the Petition as requested. AH seconded the motion.
AH expressed concern that the Applicant and Ms. Sandow have had so many difficulties, but he said that he knows Mr. Thornton well and felt that Mr. Thornton’s reading of the Zoning Bylaw is exceedingly exact. He said that the Bylaw was not followed and that one must have permission prior to an installation.
CS said that a reason to have a Bylaw is so that neighbors have a say. The shed is significantly larger than the one replaced and the neighbors are not happy.
RF said that the Applicant failed to follow the law by demolishing a shed and having one installed without a permit. He added that the Building Commissioner and the ZBA work hard to accommodate the residents, but there must be adherence to the Bylaw.
RFjr said that the shed and yard looks like an eyesore. He said that the newer shed is more attractive, but it must comply with the Zoning Bylaw. A shed of the same size could have been ordered or specifically built to conform.
SLC stated that the standards of the requirements of the Special Permit were not met and the larger shed is a detriment to the neighborhood.
The Board voted to deny the Applicant’s request by a vote of 0-5. Mr. Fitzgerald explained that the shed needs to be removed from the present site. It may be relocated on the property in a space that complies with side, rear and front yard setbacks and distance to the main house. He said that if the Applicant came to him to ask him where on the property the shed could be relocated, he would explain, provided there happens to be a place matching those criteria. The only other alternative is that the shed must be removed from the property.
Ms. Stollerman asked for a time frame for the final Decision. SLC explained that the Decision would be written by a Board member within 14 days and filed with the Town Clerk. There is an appeal period of 21 days if she chose to appeal to court. If there is no appeal, the Decision is final and the shed must be removed immediately. Ms. Stollerman said that they now understand what they should have understood before when they were told they could put one in. Mr. Fitzgerald repeated that they were informed that they could replace the former shed with one of the same size.
RFjr made a motion to close the hearing. Ah seconded the motion and the Board voted to agree 5-0.
Crown Atlantic Company LLC, 0 and 90 Pittsfield Road (Map 22, Parcels 38 and 39), Special Permit Section 6.11 “Personal Wireless Service Facilities and Towers” and Section 9.4 “Special Permits” of the Lenox Zoning Bylaw. This would allow the continued operation of an existing 135’ multi-user monopole tower which includes existing antenna installation of multiple personal wireless service providers and ground equipment shelters located within an existing, enclosed area with a locked gate.
Present were Suzanne Merritt, the owner of Lenox Fitness, and her husband Matt Merritt.
Presenting the application was Attorney Elizabeth Thompson of Duval & Klasnick LLC.
Currently the tower houses the equipment of AT&T, Verizon, T-Mobile and Sprint, but it leaves a significant gap in wireless coverage for this area. The history of permitting goes back to the original permit of 2000 for a 120 foot monopole tower with understanding that if there was a need to extend the height to accommodate additional providers the ZBA would have to approve. In 2002 AT&T expressed a need for additional height and was granted permission to go up to 140 feet. The current height it 135 feet and as a condition of that approval and a provision of the Bylaw, this permit was to be renewed five years from the date of approval. Attorney Thompson apologized for the unintended oversight but explained that Crown Atlantic is the largest tower provider with a portfolio of 10,000. A vast
majority of those tower permits have no limited duration and none have the provision of having to renew every five years. Attorney Thompson said that the tower has been maintained in accordance with the Federal Communication Commission. The Structural Analysis Report (tab #5 of the application) was certified “Sufficient Capacity” and the Radio Frequency Emissions Report (tab #13) shows that cumulative radio frequency emissions is operating at no more than 3.151% of the maximum in any accessible area up to two meters above the ground. Attorney Thompson stated that the Applicant is not asking for a modification of the terms and is happy to accept the continuing terms of the original and modification of the permit.
RF noted that Crown Atlantic had previously come before the ZBA for an informal meeting in which Crown Atlantic was chastised for not following the conditions to their permit. Very shortly after that meeting he experienced a deterioration of cell phone service. He felt that the timing was interesting and it concerned him. He was also concerned that Crown Atlantic has not done what the ZBA said must be done. Attorney Thompson said that they have been working on the application off and on since the informal meeting and that there had been no intentional delay. She explained that Crown Atlantic provides the tower. The four carriers have mandates from the FCC to provide the service and Crown Atlantic cannot dictate coverage capacity needs. Attorney Thompson stated that with the
evolution of LTE (Long Term Evolution) service, the capacity of the exist tower is becoming taxed, resulting in insufficient service. She said that the carriers are looking for new facilities and roof tops and she anticipates that in the future the four carriers will be coming to the Town with applications because of the new technology.
Mr. Fitzgerald wanted the Board to know that the Applicant came before the Building Inspector to modify some of the equipment on the tower and in reviewing the request discovered that Crown Atlantic had not renewed the Special Permit after five years or provided the annual emissions and annual structural reports as conditioned in the ZBA’s Decision. Prior to being able to issue a permit through the Building Department, the applicant had to catch up on the requirements. Mr. Fitzgerald still has a permit in the computer but is in discussion with the applicant to have a structural engineer to sign on to oversee the job. This is separate from this application, but it resulted in having the Applicant file this Petition. Mr. Fitzgerald said that he is satisfied with all of the submittals provided
in this application and the Applicant has satisfied his permit requirements going forward. He said that he is also satisfied that the Applicant will return to the ZBA by September 2020 to renew and to provide annually the reports for emissions and structural as required.
AH inquired about Section 6.11.19 regarding a performance bond for demolition and restoration should that come to pass and if Attorney Thompson would be agreeable. She said that a removal bond estimate was submitted in the application. If this is acceptable to Mr. Fitzgerald, a bond would be issued in that amount.
Ms. Merritt said that she purchased the Fitness Center in December 2014 and has an agreement whereby a portion of the tax bill is to be paid by Crown Atlantic for the portion of property where the tower is located. She had been notified by the Assessor’s Office that the taxes had not been paid and asked that any permit that is issued be predicated on addressing this issue. Attorney Thompson explained that there is a contractual agreement between the landlord, Ms. Merritt, and the lessee, Crown Atlantic. She said that there is a provision in the lease in which it was agreed that the lessee will reimburse the landlord for that part that is attributable to the tower on the property. Attorney Thompson noted that she saw an email today which related to this issue and that the payment is in process and
the taxes are current. SLC asked Attorney Thompson if she would object to a condition that the lessee would be obligated to pay any taxes lawfully due. Attorney Thompson said that this agreement is already binding, and she would not want to see a condition on the permit that says the Applicant would be responsible as that is not accurate. The landlord, the property owner, is responsible. Ms. Merritt said that since she acquired the property about 9 months ago she has paid the taxes but has not been reimbursed by Crown Atlantic. Ms. Merritt said that Crown Atlantic is a giant company with unlimited funds and that she is a small business owner who doesn’t have unlimited funds. Discussion ensued regarding how to address this issue. Attorney Thompson said that she wanted to be responsive to Ms. Merritt’s concerns, but stated the agreement was between the landlord and the lessee and Ms. Merritt inherited that agreement and this is not
subject matter for the Board to condition.
RF said that he felt the Board would be content to hear Crown Atlantic say that they agree in terms of the Special Permit to abide by the contractual relationship. CS said that the tower has been in operation for 15 years and asked if there was a track record of the lessee no paying. Ms. Merritt said she could only speak to her experience and thus far, in the nine months she has been the owner, she has not received a reimbursement. The annual tax bill is approximately $20,000.00, and Crown Atlantic’s share is about $11,000.00.
Board members spoke of the fact that 15 years ago a permit was granted by the ZBA with conditions that the permit would be renewed every five years and structural and emissions reports would be submitted annually. Those conditions have been ignored. Additionally Attorney Klasnak met with the ZBA in an informal discussion June 14, 2014. The ZBA clearly stated at that time what they expected and were left with the impression was that an application would be filed in the near future. This application was not received until August 10, 2015. The consensus was that apparently Crown Atlantic was not meeting their financial obligations as thus far the FY 2015 taxes have not been reimbursed to Ms. Merritt.
Attorney Thompson asked about the process of the Town hiring the consultant for structural and emissions reports and then billing Crown Atlantic. She agreed that her client will initiate instead.
CS made a proposal to continue the hearing for a few weeks to see if Ms. Merritt is reimbursed for Crown Atlantic’s share of the real estate taxes.
AH made a motion to continue the hearing to October 7, 2015 at 7:30 PM in order to have evidence of reimbursement to Ms. Merritt. RF seconded the motion and the Board voted to agree 5-0.
AH made a motion to close the hearing and RF seconded the motion. The Board voted to agree 5-0.
Approve Minutes:
July 1, 2015- Tabled on August 19, 2015 as there was no quorum. RH made a motion to approve the minutes as published and AH seconded the motion. The Board voted to approve 4-0-1. RFjr abstained as he was not present at that meeting.
August 5, 2015- Tabled on August 19, 2015 as there was no quorum. RH made a motion to approve the minutes as published and AH seconded the motion. The Board voted to approve 4-0-1. RFjr abstained as he was not present at that meeting.
Other Business: GM provided a brief update regarding the Elm Court lawsuit: Town Counsel had filed a Notice of Appearance, but there was no answer as that is not required by the Zoning Act. The Co-defendants had requested discovery from the Plaintiffs and the Plaintiffs had requested discovery from the ZBA.
Respectfully submitted,
Peggy Ammendola
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