MONSON ZONING BOARD OF APPEALS
APRIL 26, 2007
MEMBERS PRESENT: William Donovan, Frank Carey, David Beaudoin, Roger Pelletier, David Jarvis, Kevin Biermann and Tere Hrynkiw.
MEMBERS ABSENT: Nicola Gioscia
Chairman William Donovan convened the meeting at 7:30 P.M.
Davis Beaudoin moved to accept the minutes of March 22, 2007 as presented.
Kevin Biermann seconded the motion.
It was so voted unanimous.
The Board signed the bill schedule
George Martin owner of Ms. Piggy’s adult bookstore on Boston Road made a written request to the Board to renew his license as required under the terms of his special permit for one year.
There have been no complaints regarding the operation of the business and Mr. Martin has abided by the terms and conditions of his special permit.
Frank Carey made a motion to renew the license for one year with the conditions of the original permit to remain in effect.
David Beaudoin seconded the motion.
It was so voted unanimous.
Peter, Amy and Mark Pessolano, owners of Orange Lantern Inc. d/b/a Magic Lantern 399 Boston Road an adult entertainment business made a written request to the Board to renew their license as required under the terms of their special permit for one year.
Following discussion and affirmation from the Monson Police Department that there had been no complaints with regard to the adult entertainment license David Beaudoin moved to renew the license for one year with the conditions of the special permit to remain in effect.
David Jarvis seconded the motion.
It was so voted unanimous.
7:45 CONTINUATION OF A PUBLIC HEARING FOR AN ACCESSORY APARTMENT AT 374 MAIN STREET, SANDRA F. ADAMS.
Chairman William Donovan explained one of the five voting members was unable to attend the meeting and questioned if the applicant wanted to go forward with four voting members? In order for the application for a special permit to be successful all four voting members would have to vote in the affirmative.
Ms. Adams stated she has stopped her project completely awaiting the outcome of the special permit and is now at the point that she must move forward because she is losing money.
Chairman William Donovan reconvened the hearing for an in-law apartment as provided for by the Monson Zoning Bylaws.
Members Voting: William Donovan, Roger Pelletier, Frank Carey and David Beaudoin.
William Donovan briefly recapped the project stating Ms. Adams applied to the Building Commissioner for a building permit for construction of a three-car garage with living space above the garage that was to be attached to her existing home. Mr. Lapointe explained to Ms. Adams that in order to construct the project as shown on the plans she would have to go through the process of a special permit for an accessory/in-law apartment with the Zoning Board of Appeals. Ms. Adams elected to eliminate the kitchen shown on the plans and crossed out the proposed kitchen on the plan initialed the plan and dated it 9/29/2006. After construction was started Ms. Adams decided to reinstate the kitchen and submitted an application to the Town Clerk’s office on January 8, 2007. The Board convened a public
hearing for Ms. Adams application on February 22, 2007 at 7:45. P.M. prior to the hearing the Board visited the site. Ms. Adams made a presentation to the Board stating her son would occupy the apartment and she would continue to reside in her current home. At that hearing the Board requested a revision to the plans because they did not meet the criteria for an accessory apartment. The hearing was continued to March 22, 2007 in order to allow the applicant time to revise the plans. At the hearing in March Ms. Adams stated they had not made any revisions because at this stage with construction well underway it was cost prohibitive and had decided to go with the original plan. Ms. Adams submitted a letter at that hearing supporting her decision. The hearing was continued to April 27, 2007 and that is where it stands.
William Donovan questioned if any Board members had questions for Ms. Adams.
Roger Pelletier stated to clarify the applicant intends to stay with the original plan submitted with the applicant.
Ms. Adams stated that was correct.
William Donovan stated this was a difficult decision for him because in his many years on the Board it has never denied an accessory apartment, but neither has the Board had a situation where construction was well under way before the petition was made. The Board received a similar petition a few years ago with a three car garage with accessory apartment above, but unlike this petition the apartment abutted up to the existing house with a connecting door between the two. The applicant proposes an apartment that is separated from the existing home by a three-car garage. Mr. Donovan stated because the construction was started before an application was made for a special permit the Board did not have an opportunity to have input. The reason for the bylaw was to allow families to provide for family
members who might need some assistance because of age or a disability to retain their privacy and independence.
Frank Carey questioned if any part of the kitchen had been worked on?
Ms. Adams stated the framing for the walls was in place.
With no further questions Frank Carey moved to close the hearing at 8:10 P.M. and take the matter under advisement.
David Beaudoin seconded the motion.
It was so voted unanimous.
8:10 CONTINUATION PUBLIC HEARING FOR A SPECIAL PERMIT FOR EARTH REMOVAL ON BETHANY ROAD FOR BEDROCK FINANCIAL, LLC.
B-2007
MEMBERS VOTING: William Donovan, Kevin Biermann, Roger Pelletier, Frank Carey and David Beaudoin
William Donovan briefly recapped the project and stated the hearing was continued by request of the applicant to allow time for review of the revised plans by David Loring, Tighe & Bond.
The Board received a letter from Mr. Loring dated April 16, 2007 stating assuming the maximum area exposed at any given time to be one acre the amount of the performance bond required to secure and stabilize the site would be approximately $43,312.00.
Donald Frydryk, Sherman & Frydryk stated they submitted revised plans and comments responding to questions raised by David Loring on April 17, 2007. The revised plans and comments were also sent to David Loring.
Donald Frydryk stated one of the concerns raised was the separation to high groundwater. Originally four test pits were excavated to determine soil profile and estimated high groundwater in the vicinity of the proposed detention/infiltration basins. Test pit #1 was the only one to show mottling, as this test pit is located almost at the crest of the ridge that runs through the site two more pits were excavated close to test pit #1. The new test pits were excavated to determine whether or not the mottling was consistent throughout the area. Test pit #5 excavated to a depth of 9 feet deep and test pit #6 excavated to a depth of 10 feet deep showed no signs of mottling. Test pit #6 was excavated at a lower elevation than test pit#1 to ensure observation of the same elevation as the mottling in
test pit #1. The top elevation of detention/infiltration basin #2 is 375.75 and the bottom of the basin is at elevation 371. The bottom elevation of test pit #6 is at 367, four feet lower than the bottom of detention/infiltration basin #2. It is believed that the mottling observed in test pit #1 is based on oxidation and excessive drainage and does not indicate the groundwater elevation in this area. Mr. Frydryk stated additional test pits will be conducted as necessary during construction as the areas of the detention/infiltration basins are uncovered.
William Donovan questioned if excavation would occur beneath the canopy of trees on abutting properties?
Donald Frydryk stated there had been no changes to the excavation setbacks.
William Donovan questioned if there would be some type of shrubbery planted on Lot 9 before it was sold?
Al Joyce stated Lot 9 would be the last lot to be built on and it would be vegetated before it was sold.
William Donovan questioned if instead of a 2:1 slope a retaining wall was considered?
Donald Frydryk stated there were two reasons not to propose a retaining wall safety and cost. It is easier to maintain a slope than a retaining wall and the developer accepts the condition that Lot 9 would have to be vegetated before it was sold.
William Donovan questioned if there would be anything in the deeds to hold property owners responsible for maintaining slopes?
Donald Frydryk stated the only 2:1 slope is on Lot 9.
Chip Lapointe stated a condition of the decision could be that the Board reviews Lot 9 before any certificate of occupancy is issued to ensure the slope is stabilized.
Tere Hrynkiw questioned if as much existing vegetation as possible would be left?
Al Joyce stated he would not cut anything that did not have to be remove because of the cost.
Donald Frydryk stated he wanted to make it clear the majority of the site is within the work limit and there would not be any trees left within those limits.
Frank Carey questioned the distance from the proposed house on Lot 9 to the rear property line?
Donald Frydryk stated he would guess it would be 100 feet or more from the back line.
William Donovan questioned if the sight lines would be improved from the proposed access?
Donald Frydryk stated one of the reasons for doing the excavation is to improve sight distances.
William Donovan stated the Board would probably set hours of operation for earth removal between 8:00 A.M. and 5:00 P.M but that does not apply to any blasting or splitting of rock on the site. If it is determined that blasting or rock splitting is necessary the petitioner would have to come back to the Board for review and times of operation.
Donald Frydryk stated because the removal of the material is associated with the construction of a sub-division it would take longer than the typical earth removal project.
Al Joyce stated he anticipated that once construction starts on the road it would take about a year.
William Donovan stated the Board spoke with the Police Chief who expressed concern when the project starts because vehicles are going to be unloading on a public way. The Chief wants the developer to make arrangements with his Department for an officer to be on duty when any loading or unloading of vehicles occurs on the public way. Mr. Donovan stated this particular area of Bethany Road is busy with traffic from Brimfield Road, Chestnut Street and large tractor-trailers from Bethany Road any extended parking on the road could cause significant problems especially during the school bus times.
William Donovan stated the Board received a fax copy of a letter dated April 26, 2007 from David Loring stating that the revised submittal and supplemental data provided by the applicant has addressed his comments.
With no further questions David Beaudoin moved to close the hearing at 8:45 P.M. and take the matter under advisement.
Kevin Biermann seconded the motion.
It was so voted unanimous.
8:45 PUBLIC HEARING FOR THOMAS M & ROBERTA C. DAVIES LOTS 21 & 22 OLD REED ROAD FOR A SPECIAL PERMIT FOR A PRIVATE KENNEL
MEMBERS VOTING: Kevin Biermann, Frank Carey, David Jarvis, David Beaudoin and Roger Pelletier.
CASE NO: C - 2007
Chairman William Donovan convened the public hearing and following his comments regarding the powers and purpose of the Zoning Board of Appeals, the time constraints that must be adhered to, the rights of all concerned, the manner in which the hearing would be conducted and introduction of the Board Members David Beaudoin read the legal notice as it appeared in the Republican newspaper the weeks of April 9, & 16, 2007.
Thomas & Roberta Davies made a presentation to the Board stating they have been involved in the sport of dogs for 40 years and have been instrumental in shaping dog laws in various cities in Massachusetts. They are show judges and Mr. Davies is on the Board of Directors of the American Kennel Club. The proposed new home includes provisions for the champion show dogs the petitioners own. The petitioners stated they do not breed dogs and no longer show dogs they are judges. There is absolutely no intent to operate a commercial kennel. Roberta Davies discussed the floor plan of the proposed home that includes an attached garage with five indoor and 5 outdoor kennels for the dogs and privacy fencing. Thomas Davies stated they have lived in Brimfield for 20 years with more or less the
same configuration for the dog kennels as they propose in Monson although in their current home in Brimfield there are more and larger kennels. In 20 years there has been no complaints about their dogs.
Present and speaking in favor of the petitioners were:
Clayton Thomas, Brimfield, stated as a member of the Brimfield Board of Health he could say in his time on the Board they have not received any complaints regarding dogs owned by Mr. & Mrs. Davies.
Richard Garner, Wilbraham Road, 146 Wilbraham Road stated he has known the petitioners for 10 years and on the occasions he has visited their home has not heard dogs barking. He stated they are responsible dog owners.
Jan Fitzgibbon Prospect Hill Road, Brimfield stated she has known the petitioners for 25 years they are not commercial dog owners and neither are they casual dog owners. They are committed to the welfare of their animals.
The Board received a letter from Lorri McCool, Health Agent for the Town of Monson stating she had reviewed the application submitted by Thomas & Roberta Davies and the application did not need further review or consideration by the Board of Health. Ms. McCool stated she worked in the Town of Brimfield for more than ten years and worked with Ms. Davies, as she was a member of the Board of Health. During that time there were no issues or concerns regarding pet dogs the Davies had at 100 John Haley Road, Brimfield.
Chairman William Donovan opened the floor to those in attendance opposed to the request for a special permit for a private kennel.
Mark Templeman 29 Old Reed Road stated most of those in attendants were neighbors and abutters to the property owned by the petitioners on Old Reed Road and were opposed to the issuance of a permit for a kennel. Mr. Templeman stated the purpose of the Monson Zoning Bylaws is to protect the inhabitants of Monson. He asked a series of questions of the petitioners regarding monies if any they make on their dogs.
Roberta Davies stated they did not receive income from their dogs, no commercial grooming would take place on their property, grooming would be limited to their own animals and they do not profit from studding services because they have no dogs available for public stud.
Mr. Templeman questioned if the petitioners trained dogs, rescued dogs, boarded dogs or proposed any veterinary services for dogs?
Ms. Davies stated similar to any animal owner they train their own dogs but definitely do not train, rescue or board dogs belonging to others.
Thomas Davies stated emphatically they do not make money on the animals they own this is a hobby and like most hobbies it costs them money rather than making money.
Mr. Templeman stated he did not believe what was proposed would be compatible with a residential neighborhood. A quiet residential area was not a suitable location for a kennel. The proposal before the Board does not meet the front and rear setbacks of 500 feet that is required in the Zoning Bylaws. Mr. Templeman questioned if the Board approves the special permit would the Town create a bylaw relating specifically to barking dogs and decibel levels for nuisance created by barking dogs?
William Donovan stated the Zoning Board of Appeals does not hold hearings for new bylaws but any suggestions and language for a new bylaw should be forwarded to the Planning Board.
Bob & Irene Richards 28 Tudor Lane Ashley MA stated they are the owners of Lot 20 and questioned if the Board were to issue the special permit would future owners of the property be grandfathered with regard to the operation of a kennel?
William Donovan stated a special permit is issued to the individual and does not go with the land. If the applicants were to be granted the special permit and in the future sell the property any new owner would have to go through the process from the beginning.
Mr. Richards stated the petitioners propose side setbacks of 75 feet and 100 feet and a front setback of 100 feet the proposed setbacks do not come close to the bylaw requirements of 500 feet.
Annette Bishop 33 Old Reed Road stated her property is across the road from the property owned by Mr. & Mrs. Davies and she was concerned that the quality of life she presently enjoys would be affected by the noise of barking dogs. Ms. Bishop stated they moved to Monson from another Town because of a dog problem that was not satisfactorily resolved and would not want to have to deal with that again. There is a certain assumption made with the word kennel even though the petitioners use the term private kennel that would inevitably affect the values of properties in the neighborhood. Everyone in the neighborhood signed a covenant that prohibits a commercial kennel but the noise resulting from 10 dogs barking is the same whether it is a commercial or private kennel.
Richard Wiesner 37 Old Reed Road stated he made himself familiar with the property currently owned by Mr. & Mrs. Davies and did not hear any dogs barking. However their present property is not in a neighborhood such as Old Reed Road and they do not have close abutters. If the permit were to be approved for one year and the house built it would be next to impossible to rescind the permit.
Thomas Davies asked Mr. Lapointe to give the definition of a kennel according to the State of Massachusetts.
Chip Lapointe stated the State of Massachusetts defines a kennel as three or more dogs.
Eugene Ptaszkiewicz 41 Old Reed Road stated he agreed with Ms. Bishop that the approval of a special permit for a kennel would affect the property values in the neighborhood.
Scott Kenyon 45 Old Reed Road questioned if the male dogs were neutered?
Ms. Davies stated the dogs are not neutered or spayed.
Mr. Kenyon asked the Board members to put themselves in his position and ask themselves if they would want a private kennel with up to ten dogs next to them?
Sandra Hyszack stated she had a conversation with Ms. Davies who told her she would sever her dogs’ vocal cords if barking were to become a problem. Ms. Hyszack stated she wanted some guarantee from the petitioners that as their dogs died they would not be replaced. If the Board should approve the special permit she asked that the Board make it clear if the property is sold, any new owners would have to go through the same procedure.
Ms. Davies stated she did not anticipate a situation where the dogs would be barking for extended period of times. Certainly they get excited at midday, that is when they are fed.
Theresa Ptaszkiewicz 45 Old Reed Road questioned if the petitioners would be home all day?
Ms. Davies stated they are retired.
Jim Bishop questioned how many private kennel licenses are currently in effect in the Town?
Chip Lapointe stated he did not know.
Mr. Davies stated he checked with the Town Clerk’s Office and 8 kennel licenses have been issued.
Mark Templeman stated, as construction has not started the Board should deny the special permit to avoid having to readdress this issue.
Annette Bishop questioned if the Board differentiates between a commercial or private kennel?
William Donovan stated the Monson bylaw does not differentiate between a private or commercial kennel it uses only the word kennel.
Mr. Davies stated they were not constructing a commercial kennel, they were constructing a home that happens to have 5 pens in a room behind the garage and 5 pens directly behind that. The term kennel applies to any collection of more than three dogs.
Roberta Davies stated the area outside of the garage a 10 feet x 20 feet area will have privacy fencing and no one will know what is behind the fence.
William Donovan stated the dilemma for the Board is that the bylaw does not indicate application to a private or commercial kennel. He stated in his 19 years serving on the Board there has only been two other requests for a kennel license. How the other kennels are operating and under what conditions the Board has no knowledge. The concern is that this aspect of the bylaw is vague. He questioned if Board members would like to consult with Town Council for clarification?
Kevin Biermann stated he would prefer to consult with Town Counsel before making a decision.
Tere Hrynkiw agreed.
Frank Carey questioned if the petitioners’ proposed breeding their animals?
Thomas Davies stated he was 67 years old and was not anticipating breeding.
David Beaudoin stated he did not think it mattered whether it was a private or commercial kennel the setbacks applied to all. The bylaw requires 500 feet from all property lines and the petitioners are proposing side setbacks of 75 feet and 100 feet and a front setback of 100 feet.
William Donovan stated the Board was well aware of the concerns of all parties and would seek a ruling from Town Counsel with respect to the bylaw.
David Beaudoin moved to close the hearing and take the matter under advisement to seek a ruling from Town Counsel.
Roger Pelletier seconded the motion.
It was so voted unanimous.
10:20 DECISION A-2007 374 MAIN STREET, SANDRA ADAMS.
MEMBERS VOTING: William Donovan, Frank Carey, David Beaudoin and Roger Pelletier.
Roger Pelletier he would vote in favor of the application.
Frank Carey stated in his view the home does not retain the look of a single home. The applicant was unable to revise her plans because it was too costly, but it was too costly because construction had started and was well underway before an application was made for a special permit.
William Donovan stated the Building Commissioner issued a building permit correctly for a three-car garage with rooms above because the applicant eliminated the kitchen that was shown on the plans. The applicant then had a change of mind and decided to apply for a special permit for an accessory apartment. This is the first occasion that construction has been well advanced prior to applying for a special permit for an accessory apartment. The Chair in his introductory remarks at the commencement of the public hearing states that no construction should be undertaken before the filing of a decision with the Town Clerk, the expiration of a 21 day appeal period and recording of the special permit in the Registry of Deeds. With construction started before applying for a special permit the Zoning Board
of Appeals had no input with regards to placement of the structure to be used as an accessory apartment. If the application had come before the Board before construction started speaking as one Board member I would not have voted to approve the plan.
David Beaudoin stated in all previous cases before the Board for an accessory/in-law apartment there has been a direct access from the apartment to the existing home. Certainly plans have been submitted without that access and after review by the Board the applicant has made the changes.
David Beaudoin moved to deny the special permit for an accessory/in-law apartment at 374 Main Street because it did not meet the criteria for the issuance of a special permit for an accessory apartment.
Frank Carey seconded the motion.
Voting to deny the special permit: William Donovan, David Beaudoin and Frank Carey
Voting to approve the special permit: Roger Pelletier.
10:35 DECISION B – 2007 EARTH REMOVAL BETHANY ROAD, BEDROCK FINANCIAL, LLC.
William Donovan stated David Loring, P.E. has notified the Board that the questions he raised have been satisfactorily answered if the Board members were satisfied that leaves just the question of a vote and any conditions that would be attached to the decision.
Kevin Biermann and Roger Pelletier thy would vote to approve the special permit.
Frank Carey stated he would like to have a bond that covered the area of the 2:1 slope.
Chip Lapointe suggested instead of a bond the Board impose a condition that would require the withholding of a Certificate of Occupancy for the lot if the Board was not satisfied that the slope was adequately stabilized.
Hours of operation to be 8:00 A. M. – 5:00 P.M. with no work with regard to earth removal on Saturdays and Sundays. No stone crushing or blasting shall be permitted without a special permit from the Board of Appeals.
Performance Bond in the amount of 47,312.00.
No equipment shall be loaded on unloaded on the public way without advance notification to the Monson Police Department to allow for a police officer to be at the site.
This special permit for earth removal is granted for the removal of material in conjunction with construction of a sub-division. If the petitioner fails to secure the necessary approval for construction of the sub-division the approval of the Zoning Board of Appeals for earth removal is void.
The Board would also include the usual conditions regarding adherence to the plans submitted and recording of the special permit.
David Beaudoin moved to grant the special permit for earth removal in conjunction with construction of a sub-division to Bedrock Financial LLC, with the previously mentioned conditions.
Kevin Biermann seconded the motion.
It was so voted unanimous. Each member was polled individually.
10:45 David Beaudoin moved to adjourn.
Kevin Biermann seconded the motion.
It was so vote unanimous.
Respectfully submitted,
Linda A. Hull
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