MONSON ZONING BOARD OF APPEALS
MINUTES 5/25/2006
MEMBERS PRESENT: William Donovan, Nicola Gioscia, Roger Pelissier, Kevin Biermann, Peggy Paine, Frank Carey and David Beaudoin
William Donovan convened the meeting at 7:30 P.M.
The Board signed the bill schedule.
David Beaudoin moved to accept the minutes of April 27, 2006.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
7:45 CONTINUATION OF PUBLIC HEARING FOR EARTH REMOVAL AT
181 WILBRAHAM ROAD, KEVIN PHILLIPS.
CASE NO: O – 2005
Members voting: William Donovan, David Beaudoin, Kevin Biermann, Frank Carey, and Roger Pellissier.
William Donovan reconvened the hearing for a special permit for earth removal at 181 Wilbraham Road for Kevin Phillips.
Kevin Phillips submitted a plan that he said addresses all of the recommendations made by David Loring, Tighe & Bond. The plan shows a 2-1 slope with a six-foot shelf to slow the run off. The access to remove the material has been changed to avoid the septic system. The proposed plantings are noted on the plan proposed is one planting every 10’ x 10’ area.
Phillip Wallender 35 Silver Street questioned what the petitioner proposed to do if he hit ledge?
Ronald Cox stated they did not find ledge when they made sample borings. If during the removal operation they hit ledge it would mean less material coming out.
Kevin Phillips stated the boring went down 20 feet.
Ronald Cox stated he met with David Loring and the plan presented by Mr. Phillips reflects the changes Mr. Loring asked for.
William Donovan questioned if the plan includes all of those things Mr. Loring asked for in his previous two reports?
Anthony Cross representing Civil Engineers stated the soils are stable and the two to one slope with a shelf plus a retaining wall will make a stable slope and retain all of the water on site.
Chip Lapointe stated the ground water on this site was located at 16 feet but some of the cuts proposed are 40 feet. Chip Lapointe questioned if the plan shows where the soil borings were taken?
Anthony Cross stated the plan does not show where the soil boring were taken but a soil boring was taken at the lowest point.
Nicola Gioscia stated the plan submitted by Mr. Phillips does not have a stamp or signature of an engineer.
Chip Lapointe stated claims have been made that some of the proposed slopes are not as steep as those that exist now but it must be taken into consideration that the existing bank is fully vegetated with a mature trees with deep roots. What the Board must decide is what is suitable once the existing vegetation is removed. Additionally the applicant has not addressed the plantings and buffer for privacy those issues must be addressed before any approval is given.
William Donovan stated as far as he was concerned the applicant had not answered David Loring’s questions.
Ronald Cox stated David Loring made suggestions for the Board to work with he did not tell the Board not to approve the project.
William Donovan stated the Board understands that David Loring is giving suggestions and the Board is fully aware that Mr. Loring cannot tell the Board how to vote. The Board has been more than patient with the applicant and has repeatedly stated a plan should be submitted showing a 3-1 slope. The Board has been working with the applicant for seven months and he has stated the reason for removing the material is to gain a larger back yard. A 3-1 slope would give the applicant a larger back yard and a better chance for a stabilized slope at the finish of the project. Mr. Donovan stated he is tired of waiting for the applicant to meet the standards requested by the Board. He made it clear that there is no entitlement to a special permit. The Board approves a special permit when it is
satisfied that what is proposed meets the Bylaws and does not adversely affect abutting properties.
Frank Carey stated he would like to continue the hearing for comments from David Loring.
William Donovan questioned if the plan before the Board was the final plan that the Board is expected to base its decision on.
Kevin Phillips stated the plan shows 2-1 slopes and that will not change.
Douglas Kelley, Silver Street stated the revised plan shows a 2-1 slope and that is steeper than what was previously proposed. Mr. Kelley stated he wanted to be on record that he had a real concern the proposed plan would result in damage to his property.
Nicola Gioscia agreed with Mr. Donovan that the Board has repeatedly asked for a plan showing a 3-1 slope.
Kevin Phillips stated Civil Engineering and Tighe & Bond have stated the 2-1 slopes would be stable with a shelf.
Ronald Cox stated David Loring preferred to see the to 2-1 with a shelf.
William Donovan stated Mr. Loring has not expressed to the Board in writing or by telephone call his preference for a 2-1 slope, quite the contrary.
Frank Carey questioned if the total cubic yardage to be removed was 16,500 cubic yards?
Nicola Gioscia moved to grant a continuance of the public hearing to allow time for David Loring to respond to the new plan.
Frank Carey seconded the motion.
William Donovan stated the applicant has stated this is the plan on which he expects the Board to make a decision and as long as the Board has the report before or at the June meeting the hearing will be closed and a determination made. Mr. Donovan stated he would defer to the majority of the Board and vote for a continuance of the public hearing but speaking as one member of the Board he would not vote for further continuances because he believed the Board had enough information on which to make a decision.
The Board voted unanimously to continue the public hearing to June 22, 2006 at 7:45 P.M.
8:10 PUBLIC HEARING FOR A VARIANCE FROM THE FRONT
SETBACK REQUIREMENTS FOR HAROLD HOLLUM
4 SAND HILL ROAD.
CASE NO: D - 2006
MEMBERS VOTING: William Donovan, Nicola Gioscia, Frank Carey, David Beaudoin and Roger Pellissier.
Following comments from Chairman William Donovan regarding the powers and purpose of the Board, the manner in which the hearing would be conducted, the rights of all concerned and introduction of the members of the Board, David Beaudoin read the legal notice as it appeared in the Republican newspaper the weeks of May 9, & 16, 2006.
The petition before the Board is for a variance from the 50-foot front setback requirement of Section 3.1 of the Monson Zoning Bylaws. The applicant proposes to construct a porch to the front of his existing home 45-feet from the front property line.
Harold Hollum the property owner made a presentation to the Board stating his plans to construct an 8 foot deep porch on the front of his home primarily for his 83 year old father who lives with him. The addition of a porch would enhance the looks of the property and make it similar in appearance to the home across the street. Mr. Hollum stated his father is not in the best of health but enjoys sitting outside and watching the world go by. The roof over the deck would have the same shingles as the existing house.
Present and speaking in support of the petitioner was Frank Zanetti 7 Sand Hill Road.
There was no one present to speak in opposition.
Harry Hollum stated his father is a diabetic and the porch has been designed to accommodate a ramp if it becomes necessary. On three occasions it has been necessary to call the Monson ambulance to the home for his father.
William Donovan questioned if he understood correctly that the finished porch would be 45 feet from the front property line instead of 50 feet?
Harry Hollum stated that was correct.
William Donovan stated MGL Ch. 40A Section 10 requires that a variance may be granted only where the Zoning Board of Appeals finds the following three “Required Findings”
Unusual circumstances due to soil, shape or topography not affecting the in general the zoning district in which it is located.
Hardship.
Public good.
Mr. Donovan stated the Board must be able to answer in the affirmative to all three not two out of three. He stated the Board made a site visit to the property noting the location of the house on the lot, a brook that runs along the edge of the property and the general character of the neighborhood.
At 8:20 with no further questions from the Board Nicola Gioscia moved to close the hearing and take the matter under advisement.
David Beaudoin seconded the motion.
It was so voted unanimous.
Frank Carey stated the grade of Sand Hill Road in front of the petitioner’s home drops significantly a porch with a ramp would make it easier for emergency personnel.
Nicola Gioscia stated he did not see that the construction of a porch would be a detriment, in fact once the porch was constructed it would be similar in appearance to the home across the street.
William Donovan stated he believed the Board was able to make the required findings.
The brook that flows around the property, the grade of Sand Hill Road in front of the petitioner’s property and the location of the existing home and garage on the lot made it impossible to locate a porch on the side of the home. Additionally the property is located on the corner of Wilbraham Road and Sand Hill Road, if the petitioner located the porch on the side of the property he would still require a variance because the Zoning Bylaws require setbacks to be maintained from all street lines forming the boundaries of the lot.
The hardship is the uncertain health of the petitioner’s father who lives with him.
The addition of a porch would be in keeping with the appearance and character of the existing neighborhood and would not be a detriment to the public good.
Nicola Gioscia moved to grant a variance from the required 50 foot front setback based on the plan prepared by Sherman & Frydryk, Land Surveying & Engineering dated 4/3/2006 showing a proposed 8 foot wide porch on an existing home at 4 Sand Hill Road setback 45 feet from the front property line.
David Beaudoin seconded the motion.
It was so voted unanimous.
The Zoning Board of Appeals found that circumstances relating to the lay out of the property on the lot, the location of the brook and grade of Sand Hill Road did not allow the petitioner to construct a porch without a variance from the front setback requirement. An attempt to locate the porch on the side of the home would have resulted in a variance request because this is a corner lot. The Board found that the need to plan for the future health needs of an aged father who resides with the petitioner limited the construction options. The Board found that the construction of a front porch would not be a detriment to the public good. The finished construction will make the home similar in appearance to other existing homes in the neighborhood.
8:25 PUBLIC HEARING TO REVIEW AN APPEAL OF THE DECISION
OF THE ZONING ENFORCEMENT OFFICER REGARDING
THE DENIAL OF A BUILDING PERMIT FOR A NEW HOME
PROPERTY OWNERS ARE DENNIS A. & HEATHER G. MARAIS
CASE NO: E - 2006
MEMBERS VOTING: William Donovan, Kevin Biermann, Frank Carey, David Beaudoin and Nicola Gioscia.
Following the Chairman’s comments regarding the powers and purpose of the Zoning Board of Appeals, the manner in which the hearing would be conducted, the rights of all concerned and introduction of the Board David Beaudoin read the legal notice as it appeared in the Republican newspaper the weeks of May 9, & 16, 2006.
Atty. Raymond Blanchette was present representing the petitioners Dennis & Heather Marais. He gave a brief history of the property in question stating Robert & Janet Webb owned land on Wilbraham Road and Waid Road that they divided selling one lot to William Lemon and the other to his clients. The lot purchased by Mr. & Mrs. Marais has 550 feet of frontage on Wilbraham Road and 75 feet of frontage on Waid Road. The Planning Board approved the plan of land showing the property purchased by Mr. & Mrs. Marais on September 29, 2004. Mr. Marais applied for and was issued a driveway permit by Highway Surveyor, John Morrell on September 30, 2004 for a driveway to his property from Waid Road. At a Town Meeting vote taken on November 29, 2004 the residents approved a change in language
for the definition of a driveway. The language added was “The driveway access shall occur across the minimum frontage required in the Zoning District in which the frontage is located”. Atty. Blanchette stated when the Planning Board signed the ANR plan and when Mr. Morrell issued the driveway permit the language added to the definition of driveway was not in effect. The Building Commissioner denied the request for a building permit for a new home because the driveway access was not across the legal frontage. Based on the timing of the events Mr. Marais should have been granted a building permit because he had his driveway permit prior to the change in the language. Atty. Blanchette stated the use of frontage for access other than the required 200 feet on Wilbraham Road was legal when his client received his driveway permit. Any use legally in existence prior to the change of the bylaw is a grandfathered use. Atty.
Blanchette stated it is ironic because usually he is before the Board trying to convince them that a particular bylaw does not really mean what it says. In this case the bylaw is not ambiguous and that prior to the vote at Town Meeting on November 29, 2004 driveway access from something other than the legal minimum frontage was allowed.
Present and speaking in favor were: Robert & Janet Webb 266 Wilbraham Rd. Irving Arnold Jr. Stafford Road and Brian Mushenko North Lane.
There was no one present to speak in opposition.
Chip Lapointe stated several years ago he asked the Planning Board for clarification of the driveway bylaw because of a situation similar to this on Silver Street and Thayer Road. The most logical access was from the 50-foot access on Silver Street because of the wetlands across the 200 feet of frontage on Thayer Road. In that case the house was built with a driveway access from Silver Street. Then a year ago a situation arose on Paradise Lake Road where a lot was created that had frontage on both sides of an existing house. The property owner worked on a driveway spending probably close to $70,000 and then came in for a permit. Mr. Lapointe stated he felt it was intrusive for the existing house because the new driveway was close to the house and approximately 40 feet wide. He stated he went
back to the Planning Board for clarification who felt there was no ambiguity and the driveway must come across the legal frontage. At that point the decision was made to add the language to the driveway definition in the bylaws, because although the Planning Board interpreted the bylaw in one way it was obviously not as clear to others. Mr. Lapointe stated Atty. Blanchette has made a strong case and the language of the bylaw was changed during the driveway process for his client. Mr. Lapointe stated he did not believe he had the authority to issue a building permit based on the bylaws but the Zoning Board had the authority to over rule his decision.
Nicola Gioscia questioned the width of the frontage the petitioner owns on Waid Road?
Atty. Blanchette stated his client owns 75 feet of frontage on Waid Road and 201 feet of frontage on Wilbraham Road. The problem on Wilbraham Road is that there is a major wetland across the frontage and they believed it was impossible to put a driveway in.
Frank Carey questioned where the location of the house on the lot?
Dennis Marais stated the house would be approximately 150 feet from Waid Road.
Nicola Gioscia questioned if this was going to be a problem for emergency personnel?
Chip Lapointe stated it would not because the new house would be assigned a number on Waid Road.
William Donovan expressed his concern that the permit issued by the Highway Superintendent was called a driveway permit it would be more appropriate to call it a curb cut permit. Only the Zoning Enforcement Officer can make the determination that a driveway meets the requirements of the Zoning Bylaws.
Chip Lapointe stated the permit has since been amended and requires the approval of the Zoning Enforcement Officer when a building permit is required.
William Donovan stated he could understand if someone unfamiliar with the process applied for a permit for a driveway from John Morrell and assumed he was in compliance with the bylaw.
Nicola Gioscia stated the Zoning Board does not have the authority to grant a use variance.
Atty. Blanchette stated he was aware that the Board had no authority to grant a use variance, that is why they made an application for a building permit and appealed the Building Commissioner’s decision.
Chip Lapointe stated it would have been easier if he felt he could have granted the permit but that was not the case.
Nicola Gioscia stated the Board must be consistent and questioned if Mr. Lapointe was aware of any other driveway permits that had been issued by Mr. Morrell that could cause a similar problem?
Chip Lapointe stated he was not aware of any. He stated Mr. Marais had spoken with the Planning Board who told him there would be no problem if he had his permits before the bylaw change. Mr. Marais interpreted that to mean the driveway permit but the Planning Board meant the building permit as well.
With no further discussion Nicola Gioscia moved to close the hearing at 9:00 P.M. and take the matter under advisement.
David Beaudoin seconded the motion.
It was so voted unanimous.
Frank Carey stated he believed this was a unique situation caused in part by a misunderstanding regarding which permits had to be obtained prior to the bylaw change and the timing of the change of the bylaw.
Nicola Gioscia stated the sequence of events, the timing and wording of the driveway permit lead him to believe that the petitioner was convinced he had taken the appropriate steps at the right times to be issued a building permit for a new home.
William Donovan stated he did not dispute that someone without previous experience would have difficulty maneuvering through the paper work in preparation to building a home. He stated he checked the ANR plan signed by the Planning Board on September 29, 2004 and the Planning Board stamp clearly states that endorsement of the plan is not a determination as to compliance with zoning or other bylaws. Mr. Donovan stated he is already on record that the “Driveway Permit” issued by John Morrell should be renamed a “Curb Cut Permit” because only the Zoning Enforcement Officer can determine compliance with Zoning. The Zoning Enforcement Officer found himself in a situation that he felt would violate the Town’s bylaws if he issued a building permit.
Nicola Gioscia made a motion to overturn the decision of the Zoning Enforcement Officer and grant the petitioners appeal of the denial of a building permit for a new house on Lot 3 Wilbraham/Waid Road.
David Beaudoin seconded the motion.
Each voting member was polled individually.
It was so voted unanimous.
The Board found that the timing of events with regard to the permit applications and the change in the language of the bylaw together with misleading wording on the driveway permit justify the issuance of a building permit for a single family home on Lot 3 Wilbraham/Waid Road.
With no further business Frank Carey moved to adjourn at 9:25 P.M.
David Beaudoin seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
Clerk
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