MONSON ZONING BOARD OF APPEALS
OCTOBER 25, 2007
MEMBERS PRESENT: William Donovan, Frank Carey, David Beaudoin, Nicola Gioscia, Tere Hrynkiw, Roger Pelletier David Jarvis and Kevin Biermann
MEMBERS ABSENT:
7:30 William Donovan convened the meeting and the Board signed the bill schedule.
David Beaudoin moved to approve the minutes of August 23, 2007 as presented.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
The Board has received a petition for a special permit for earth removal and in order to meet the time constraints imposed by Mass. General Laws the Board must reschedule its meeting for November because the regular meeting date falls on Thanksgiving.
David Beaudoin made a motion to schedule the meeting for November 29, 2007 at 7:30 P.M.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
Chip Lapointe stated the Planning Board had held a hearing and voted by majority vote to propose changing the wording under Earth Removal exemptions from acre to lot. The change would be put to the Town residents for a vote at the Town Meeting. It is not a significant change because it addresses only the exemptions and the Board would still hold a public hearing for a special permit for earth removal for large scale earth removal operations such as the one on the agenda for November.
David Beaudoin stated his concern that in the past the Board has issued an earth removal permit for the removal of material in order to facilitate the construction of a building and the building has never been built. The one that comes to mind is on Bliss Street. The property is located in an industrial zone and the proposal was to remove the material to build a commercial building. The material has been taken from the property but no building has been constructed. Mr. Beaudoin stated if the Board issues a special permit for earth removal that is proposed for the construction of a building he would like to see the Board add a condition that sets up an escrow account to ensure the building is constructed. This would be separate from the performance bond that guarantees the earth removal is
done according to the plan approved. He suggested that the applicant submit a check to be held in an escrow account by the Town that was equal to the amount of material that is to be removed. If an applicant requests a permit to remove 150,000 cubic yards then the check would be for $150,000.00 when the building was constructed the applicant would receive the $150,000.00 plus any interest accrued in the account.
7:489 Public Hearing for a variance from the 10-foot setback requirement for a driveway at 76 Old Reed Road, Gary Bridgman.
Case No: E – 2007
Voting Members: Kevin Biermann, Frank Carey, William Donovan, Tere Hrynkiw and David Jarvis.
Following comments from Chairman William Donovan regarding the powers and purpose of the Zoning Board of Appeals, the time constraints that must be met, the manner in which the hearing would be conducted, the rights of all concerned, the appeals process and introduction of the Board David Beaudoin read the legal notice as it appeared in the Republican newspaper the weeks of October 9 & 15, 2007.
Gary Bridgman made a presentation to the Board stating he purchased the property in June of 2006 and in order to drill a well added processed stone to an existing cart path. The cart path runs close to the property line for about 80-feet and then follows the contours of the land to a flat area which is where the house is located. An existing stone wall is the boundary line and the distance of the driveway from the stone wall ranges between 4 feet to 6 feet for an approximate distance of 80-feet. The petitioner stated he did not find a reason for the 10-foot setback in the Monson Zoning Bylaws but would guess it is a matter of aesthetics, minimizing impacts to neighboring property, drainage and safe entry and egress from the property. The existing location of the driveway is aesthetically pleasing
because of the stone wall and the natural contours of the land, also there would not be a problem with drainage because of the stone wall. He stated his intention to pave the driveway to further lessen water run off from the driveway onto the Town road. The petitioner stated if he had to move the driveway over 4-6 feet he would have to remove trees and believes he would hit ledge and have to blast or split rock. Locating a driveway on an existing logging access would not be making an existing non-conformity worse.
Mr. Bridgman stated in his application he asked the Board to consider this a finding based on the premise that a driveway was a structure and the installation of a driveway would improve the existing non-conforming structure. If the Board did not agree that this was a finding but a variance he was seeking a variance that would improve drainage onto a Town road and he would not have to split rock or remove trees.
The Board received a letter from the abutting property owner Zanaib Nawab dated October 10, 2007 stating he had no objections to the request for a variance.
The Board received a letter from Highway Superintendent John Morrell supporting the variance stating it would have less impact on Old Reed Road than removing trees and potentially hitting ledge.
William Donovan stated this was the first time the Board had received a petition for a finding and/or a variance and he had reviewed it very carefully. The existing access was used for the logging of trees under a forest management plan and on checking with the Conservation Commission found that upon completion of the logging the access is allowed to re-vegetate back to a natural state. When the former owner John Robbins owned the property he owned all the abutting land so the access was not a non-conforming access. If the Board were to consider a driveway a structure or use the Board could not hear the petition as it does not have the legal authority to grant use variances. Mr. Donovan stated the Monson Zoning Bylaws defines a structure and a driveway does not meet that definition. It was
his belief that the Board must vote on a variance and not a finding. Mr. Donovan suggested the Board first address the issue of a finding or a variance. The voting requirement for a finding was a simple majority and for a variance a super majority i.e. 4-1.
David Beaudoin stated he agreed with Mr. Donovan that the driveway was not a structure as defined in the bylaws. The access that exists was conforming when it was first made because John Robbins owned all of the property. Additionally the petitioner has stated that he altered the logging access by putting in stone in order to get a well drilling rig into the property.
Gary Bridgman stated the cart path was there when he purchased the property and it is shown on the map of land it was not something made by nature it was created and so it is a structure.
David Beaudoin stated if it was the intent of the developers to use the existing cart path as a driveway access it was made non-conforming by the manner in which the land was divided.
Nicola Gioscia stated he could not call a driveway a structure and believed the Board should rule on a variance.
Tere Hrynkiw questioned if the abutter was building at this time?
Gary Bridgman stated no.
Kevin Biermann made a motion to deny a finding because the driveway does not meet the criteria for a structure as defined in the Monson Zoning Bylaws and the Zoning Board of Appeals is not authorized by the Town of Monson to grant a use variance. The Board will review the petition as a variance.
David Jarvis seconded the motion.
It was so voted unanimous, roll call vote: Tere Hrynkiw, Frank Carey, Kevin Biermann, William Donovan and David Jarvis.
Nicola Gioscia questioned if the house was constructed?
Gary Bridgman stated it was.
William Donovan stated in order for the Board to grant a variance it must find that the specific requirements for the issuance of a variance are met i.e. shape, topography, soil conditions, literal enforcement would be a substantial hardship financial or otherwise and detriment to public good.
David Jarvis stated he saw only three or four trees that would have to be taken down for the 80 feet of driveway that has to be moved.
Kevin Biermann stated the petitioner has at a minimum 200 feet of frontage in which to locate a driveway and did not believe the variance met the criteria for approval.
Gary Bridgman stated if the driveway had to be moved over four to six feet the opening would be larger and that would result in more run off onto the Town road.
David Jarvis stated the run off would not be increased because the pitch of the driveway would be the same. The run off going onto the Town road before construction started cannot be increased. The driveway must be pitched to maintain the status quo and any excess run off directed onto the owners property.
Mr. Bridgman stated if he was not granted a variance he did not think he would be able to afford to pave the driveway.
Nicola Gioscia questioned if it was possible to use an existing logging access that was further away from the stone wall and would not require a variance?
Gary Bridgman stated it was not suitable. He questioned what affect the zoning issue would have on the issuance of an occupancy permit?
Chip Lapointe stated usually any zoning issue is resolved.
William Donovan stated it was his feeling with respect to the driveway requirement that 10-feet means exactly that and this should probably have been resolved before construction began.
Gary Bridgman submitted a written request to withdraw without prejudice to preserve his right to file within two years. He stated his intent to comply with the bylaw.
David Jarvis moved to accept the request to withdraw without prejudice.
Kevin Biermann seconded the motion.
Each voting member was polled individually.
Voting aye: William Donovan, Frank Carey, David Jarvis, Kevin Biermann and Tere Hrynkiw.
David Beaudoin moved to adjourn at 9:15 P.M...
Tere Hrynkiw seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
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