MONSON ZONING BOARD OF APPEALS
MINUTES MAY 22, 2008
MEMBERS PRESENT: William Donovan, Frank Carey, Nick Gioscia, David Jarvis Kevin Biermann & Roger Pelletier
MEMBERS Absent: David Beaudoin & Tere Hrynkiw
7:30 Chairman William Donovan convened the hearing and the Board signed the bill schedule.
Chairman William Donovan stated at the April meeting the Board closed the public hearing for a Mixed Use for Daniel Levesque, 96 Main Street but before making a decision wrote to the Planning Board for clarification of its Site Plan Approval decision relating to this same property. Mr. Donovan read both the letter from the Zoning Board of Appeals to the Planning Board, and the response from the Planning Board into the minutes. Copies of the letters are attached to these minutes and incorporated herein.
The Board has been notified of a change to the plan for earth removal associated with the construction of a sub-division off of Bethany Road, to be called Evergreen Lane. At its regularly scheduled meeting on February 28, 2008 the Board granted a request from Al Joyce, Bedrock Financial, LLC for an extension of the earth removal permit for one year with all conditions and limitations imposed by the Board in its decision dated May 9, 2007 remaining in effect.
William Donovan stated when he voted to extend the permit for one year it was on the premise that the removal of the earth was for the construction of a road to a nine home sub-division as shown on the plans and as described during testimony at public hearings held in March and April of 2007. If the applicant now proposes something completely different the extension is nullified and the new project would require a new public hearing.
Frank Carey stated he agreed if the project is different than the one approved by the Board a new public hearing would be required.
7:50 PUBLIC HEARING FOR BERNARD CROTEAU, 79 SILVER STREET, APPEALING A DECISION OF THE ZONING ENFORCEMENT OFFICER RELATING TO A PRIVATE HELICOPER LANDING PAD.
CASE NO: G - 2008
Following comments from the Chairman regarding the powers and purpose of the Board, the manner in which the meeting would be conducted, the time constraints the Board must meet to set a public hearing, reach a decision and file it with the Town Clerk, and introduction of the Board members, Frank Carey read the legal notice as it appeared in the Republican Newspaper the weeks of May 5, and 12, 2008.
Members voting on this petition: William Donovan, Nicola Gioscia, Frank Carey, David Jarvis and Roger Pelletier.
Attorney Michael Foy, representing Bernard Croteau gave each of the voting members a package of material that included a letter to Mr. Croteau from the Massachusetts Aeronautics Commission (MAC) confirming receipt of his notice of a private restricted landing area, copy of MGL CH. 90, Section 39B, copy of Code of Massachusetts Regulations 702 CMR 5.03, copy of a letter to Atty. Michael Foy from Wayne C. Kerchner, Legal Counsel for MAC and a portion of the minutes of MAC meeting June 21, 2006.
Atty. Foy stated he believed the notice to cease and desist issued to his client by the Zoning Enforcement Officer was done without the benefit of knowledge of the regulations governing private restricted landing areas. MAC is a state transport agency under the Executive Office of Transportation. MAC has jurisdiction over all public airports and all private restricted landing areas in Massachusetts. An individual who wants to establish a private restricted landing area on private property must register with MAC. Mr. Croteau has registered with MAC as evidenced by a letter from Richard I Bunker, Aeronautics Inspector dated April 1, 2008. The letter confirming notification by MAC is sufficient for Mr. Croteau to fly and land his helicopter on his property. MGL Chapter 90
Section 39B states that any rules and regulations, ordinances or bylaws relative to the use and operation of aircraft shall be submitted to the Commission and shall not take effect until approved by the Commission. The Town cannot impose any restrictions on a landing area that has been registered with MAC. The Town does have the authority to make and enforce rules and regulations on a private restricted landing area located within its borders so long as the rules, regulations and bylaws have been approved by MAC. Atty. Foy stated he spoke with Wayne C. Kerchner, Legal Counsel for MAC and subsequently received a letter from him dated May 21, 2008 stating the Town of Monson has not submitted any bylaws, rules or regulations relative to private restricted landing areas for approval. If the Town intends to develop any bylaws that relate to private restricted landing areas they must be approved by the Commission. Atty. Foy asked the Zoning Board of Appeals
to overturn the Cease and Desist order because the Town has no legal authority to issue such an order. The FAA regulates airspace and MAC controls ground issues, in order for the Town to have any say it is obligated to go to the Massachusetts Aeronautical Commission.
There was no one in attendance to speak in favor of the petitioner.
Atty. Michael T, Hassett, representing Art & Joanne Goneau, whose property directly abuts Bernard Croteau’s property submitted a letter to the Board.
Atty. Hassett stated he addressed this issue from a Zoning point of view prior to knowing that Monson does not have a bylaw in place that has been approved by MAC. He stated he is also Counsel for the Town of Wilbraham and they learned the hard way with a similar situation in Wilbraham. He urged the Board to consult with Town Counsel and Wayne Kerchner, legal counsel for MAC. He stated he believed that it was a good idea to regulate this type of activity but Atty. Foy was correct that without approval by MAC any regulation was unenforceable. He stated MAC is pro aviation and the Assistant Atty. General Robert Ritchie is also a pilot but the regulations do say that Municipalities can promulgate reasonable regulations, ordinances or bylaws but they would not be effective until approved by MAC. He advised that the Planning Board should consider reasonable setbacks to abutting properties for the landing pad, requiring a certain amount of acreage, storage of fuel, hours of
operation and then work with Wayne Kerchner at MAC to get approval, no easy task.
Mr. Goneau stated there is not one layman on the Massachusetts Aeronautical Commission and he had spoken with Wayne Kerchner who said he would get back to him but never did. He stated he did not understand how MAC had approved the landing pad when it requires a minimum of 3 acres of land and Mr. Croteau has just a little over two acres. He stated his property entirely surrounds the property owned by Mr. Croteau and no one has explained the approach path, frequency of flights or answered his questions regarding safety.
Atty. Foy stated he was elated that Atty. Hassett concurred with his representation of the law. MAC is the body to make the decision as to what are reasonable restrictions relative to any ordinance or bylaw. The matter before the Board is the Cease and Desist order and he would respectfully submit that the Town did not have the authority to issue such an order.
Chip Lapointe, Zoning Enforcement Officer stated as both Attorneys have pointed out a bylaw regulating a private helicopter pad must be approved by MAC but the Town does have a zoning bylaw that regulates noise and also a bylaw that any use not specifically or generally allowed is deemed as prohibited. Mr. Lapointe stated he saw this as a parallel with the FCC and Communication Towers, a municipality cannot prohibit them but there is still a mechanism in place to protect the Town’s interests and allow it to set regulations. There are many cases on the internet that deal with helicopters in a residential area and it is a stretch to say that because the Town does not have regulations in place anyone can fill out a registration online and the Town must allow a landing pad. This violates the premise of
Chapter 40 A and the stated purpose of the Monson Zoning Bylaws to promote the general welfare of the Town of Monson and to protect the health and safety of its inhabitants and encourage the most appropriate use of land throughout the Town. Is this an appropriate accessory use in a residential neighborhood? The Town does have a bylaw that allows a commercial airport/heliport. Mr. Croteau met with the Planning Board who advised him that a similar situation came up with windmills, and in that instance the interested party gathered information and came up with a sample bylaw that the Town then adapted to suit Monson, held a hearing and then it went to a vote at Town Meeting. Mr. Lapointe stated he respectfully disagreed with both Attorneys that the Town was preempted from enforcing its noise ordinance. The noise of a helicopter can be very disturbing for some people. There are veterans who experience extreme anxiety at the sound of
a helicopter. Similarly if a use is not specifically allowed it is prohibited is a zoning premise throughout the country and has been upheld in the courts numerous times.
Atty. Foy stated he practices aviation law and the Town does not have the authority to prohibit Mr. Croteau from landing his helicopter on his property. Additionally it was the Town’s obligation to research and develop a bylaw and then take it to MAC for approval.
The Board was informed that the Planning Board had contacted MAC and had spoken with Atty. Kerchner to request copies of any bylaw that it had approved for private landing areas for helicopters. Atty. Kerchner was unable or unwilling to provide the Planning Board with a copy of a bylaw that has been approved by MAC.
Frank Carey questioned if Mr. Croteau had included a copy of his registration with MAC in his submission?
Mr. Croteau stated he had not but could submit a copy.
Mr. Carey questioned the number of times Mr. Croteau expected to take off and land in a year?
Mr. Croteau stated 12 to 24. He stated although he did not need approval from the FAA he made a voluntary filing and an inspector visited the property.
Mr. Carey questioned if the FAA made any recommendations?
Mr. Croteau stated he was advised he should have a wind sock and they discussed its placement, the need to have a fire extinguisher accessible and, discussed the gravel area and ways to improve it.
Mr. Carey stated public safety was of great concern to the Board.
Mr. Croteau stated the public safety is the responsibility of the FAA and MAC.
David Jarvis stated public safety was an issue for him. He questioned why Mr. Croteau wanted a helicopter landing pad at his home, why not at a local airport?
Mr. Croteau stated for same reason someone has a car parked in their garage convenience. He stated it is convenient if he wants to visit his property in Vermont.
Mr. Jarvis stated he would disagree that this was comparable to having a car on ones property.
Atty. Foy stated his client has the legal right to have it at his house, as a pilot flying for 30 years he understood why Mr. Croteau wanted the helicopter landing pad at his home. He asked the Board to focus on the main issue, which was the issuance of a cease and desist notice that the Town did not have the authority to issue.
William Donovan stated this was reminiscent of the communications towers and wind mills for alternative energy, in both instances the Town did not have bylaws in place, but the interested parties worked with the Town and through mutual cooperation bylaws were developed. The Town has traditionally worked to address specific issues with those who have an interest. Mr. Donovan questioned why when the Planning Board had agreed to work toward a bylaw Mr. Croteau was not willing to go through the process?
Atty. Foy stated his client did not object to going through the process, but the law whether the Town likes it or not requires any bylaw developed by the Town to be approved by MAC. Meanwhile Mr. Croteau has registered with MAC and has permission to have a private restricted landing area on his property on Silver Street.
Mr. Donovan stated he understood that a bylaw for a private landing area bylaw must be approved by MAC but the Town’s existing bylaws relative to noise, and if something is not specifically allowed it is disallowed cannot be ignored, to do so goes against the Zoning Act and the Town’s ability to regulate land use within its borders. Mr. Donovan stated it seemed to him this issue could so easily be solved if Mr. Croteau worked with the Town to develop a bylaw and go through the process.
Atty. Foy stated the law does not require Mr. Croteau to do so.
Mr. Croteau stated he met with the Planning Board and did not come away from the meeting with the impression the Board was willing to pursue the matter.
Atty. Foy urged the Board to consult with Town Counsel.
Mr. Donovan stated the Zoning Board should write to the Planning Board and request the development of a bylaw that addresses private helicopter landing areas.
Nicola Gioscia questioned if aviation fuel would be stored on the property?
Mr. Croteau stated the maximum that he could legally store is 5 gallons.
Mr. Gioscia stated with the consent of the petitioner he would move to continue the hearing to allow the Board to confer with Town Counsel.
The petitioner and the Board signed an agreement to continue the hearing to Thursday June 26, 2008.
David Jarvis seconded the motion.
It was so voted unanimous.
9:30 Kevin Biermann moved to accept the minutes of April 24, 2008 as presented
Nicola Gioscia seconded the motion.
It was so voted unanimous.
9:30 Case D-2008 96 Main Street, Daniel Levesque Mixed Use
William Donovan stated the Board closed the hearing on April 24, 2008 and has 90 days from the close of the hearing to make a decision. Individual Board Members have taken the time to review the plans submitted at the April meeting and review the minutes of the meeting.
David Jarvis submitted a letter dated May 22, 2008 to Chairman William Donovan stating that he attended the site visit for 96 Main Street and was present at the hearing on February 28, 2008, after reading the minutes of April 24, 2008 and studying the plans submitted by the applicant Daniel Levesque feels he is able to make an informed decision.
William Donovan stated the original plan submitted by the applicant was a site plan, showing the location of the buildings and nothing more. At the February meeting the Board asked for detailed architectural plans showing specifics as to the uses proposed in each building and details of those uses for both buildings. The plans submitted by the applicant at the April 24, 2008 meeting did not show the detail requested by the Board. The plan A-1, first floor plan of both buildings noted Business Use 7,300 square feet in the Harper Building and Residential Use 3,585 square feet in the Holmes Building. Plan A-2 second floor plan of both buildings noted Business Use 7,300 square feet in the Harper Building and Residential Use 3,585 square feet in the Holmes Building. Plan A-3 basement floor plan of
both buildings noted Assembly Use 7,300 square feet in the Harper Building and Assembly Use 3,585 square feet in the Holmes Building. During the hearing the applicant clearly stated that he did not intend to submit any more plans because both he and his architect felt the Board had enough information on which to base its decision.
Kevin Biermann stated after carefully reading the Planning Board’s decision he did not believe an Assembly Use was authorized by the Board for either building. If the Zoning Board were to grant a Special Permit for a mixed use of the Holmes Building it would be contrary to the site plan approved by the Planning Board. This was discussed with the applicant at the meeting in April and Mr. Levesque asserted that the Planning Board approved an Assembly Use in the Harper Building and in the Holmes Building. Mr. Biermann stated he would certainly consider a mixed use that comprised residential use only in the Holmes Building and business use only in the Harper Building. That too was discussed with the applicant but Mr. Levesque stated that was not what he was requesting from the Board.
William Donovan read into the minutes a letter addressed to the Planning Board dated April 25, 2008 requesting clarification of its decision dated February 26, 2008 a copy of which is attached to these minutes and incorporated herein. The Zoning Board asked if the decision of the Planning Board approved the use of the basement floor of the Holmes Building as part of a fitness center operation also proposed in the Harper Building. The Zoning Board stated in its letter that based on the language contained in the decision it concluded the Holmes Building was authorized for a residential use and home office only contingent upon approve of a special permit for a mixed use.
William Donovan read into the minutes a letter addressed to the Zoning Board of Appeals dated May 21, 2008 from the Monson Planning Board that stated the Zoning Boards’ understanding of the decision relating to Site Plan Approval for 96 Main Street was correct. A copy of the letter is attached to these minutes and incorporated herein.
Kevin Biermann moved to deny a special permit for a mixed use for 96 Main Street for the following reasons:
1. The plans submitted did not show sufficient detail regarding the specific uses proposed in each of the buildings on the property and square footage of each specific use.
2. The plans submitted show an Assembly Use for the basement floor of the Holmes Building that was not authorized as part of the Notice of Decision for Site Plan Approval dated February 26, 2008 issued by the Monson Planning Board.
Frank Carey seconded the motion.
It was so voted by roll call vote.
Voting to deny the Special Permit for a Mixed Use were: William Donovan, Frank Carey, Kevin Biermann, David Jarvis and Roger Pelletier.
9:55 Nicola Gioscia moved to adjourn.
Kevin Biermann seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
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