MONSON ZONING BOARD OF APPEALS
AUGUST 28, 2014
MEMBERS PRESENT: Frank Carey, David Beaudoin, Ronald Fussell, Tere Hrynkiw
and John Martin.
MEMBERS ABSENT: David Jarvis.
ALSO PRESENT: Catherine D. Jurczyk, Janet M. Platt, David J. LaPrad, Sandra Jurczyk, Raymond A. Blanchette, Esq., Douglas Warka, Joan F. Watson, Ronald Tebo, Jr. Michelle Tebo, Anne O’Shea, John Thorp, James Manning, Margo Manning, Jane Malo, Harold Whitaker and John Malo.
Frank Carey moved to accept the minutes of July 24 2014 as presented.
Tere Hrynkiw seconded the motion.
It was so voted unanimous.
7:45 P.M. Chairman David Beaudoin re-convened the public hearing to appeal a decision of the Zoning Enforcement Officer denying the issuance of a Building Permit under Section 3.3.5 of the Monson Zoning Bylaws because the proposed residence does not qualify under any of the five possible circumstances. The Petitioners Janet M. Platt, Catherine D. Jurczyk and David J. LaPrad contest the statement contained in the letter denying a building permit dated June 30, 2014 signed by Paul Tacy, Building Commissioner, Town of Monson specifically Section 3.3.5 (2) of the Zoning Bylaws.
David Beaudoin stated the Public Hearing was convened at 7:45 P.M. on July 24, 2014 in the Building Department Office, 29 Thompson Street and continued at the request of the petitioners because only four (4) members of the Zoning Board of Appeals were present at the meeting. He read the letter from Paul Tacy a copy of which is attached to these minutes and incorporated herein. He asked that everyone present address their comments and questions to the Board and limit any questions and concerns to the contents of the letter.
Atty. Raymond Blanchette made a presentation on behalf of the petitioners’ stating they believe Mr. Tacy made an error in judgment because the lot is a pre-existing non-conforming lot, it lacks the required one and twenty five (125) feet of frontage, but the proposed house will meet all of the required setbacks for the Zoning District in which the lot is located. The house that was destroyed by the June 1, 2011 tornado was a pre-existing non-conforming structure, the proposed new construction will meet the front, side and rear setbacks and will decrease the non-conformity, not increase it. There are exemptions allowed in the Monson Zoning Bylaws to re-construct a non-conforming structure on the same footprint. The petitioners are not asking for that exemption because the proposed new construction
will conform to the required setbacks. At the time of the tornado the property had one hundred and fifteen feet of frontage (115) feet of frontage and approximately three (3) acres in area. Douglas Warka purchased the property and reconfigured the lot to add land to abutting property at the rear of the lot that he owned, and exchanged land with abutters on either side of the lot that resulted in the lot as it is now having one hundred and fifteen (115) feet of frontage and approximately twenty one thousand, one hundred and sixty (21,160) square feet in area. Paul Tacy wrote a letter dated January 9, 2014 stating that the reduction in area of the lot did not create an increase in non-conformity, as the square footage complied with the Zoning Bylaws, having more than twenty thousand (20,000) square feet in area. The petitioners’ believe the construction of a single family home that meets the required forty (40) foot front and rear setbacks and fifteen
(15) foot side setbacks on a pre-existing non-conforming lot that has in excess of the required area and maintains the existing non-conforming frontage is allowed by right under Section 3.3.5 (2) of the Monson Zoning Bylaws. Atty. Blanchette stated it is the petitioners’ belief that the Building Inspector cannot mandate a property owner to construct a non-conforming structure and believe that it would be illegal under MGL Chapter 40A §6. The petitioners’ do not need a Special Permit because the house proposed meets all of the setbacks specified in the Zoning Bylaws.
Frank Carey stated a permit was taken out on June 20, 2011 to demolish the house.
Atty. Blanchette stated that was the former owner.
Frank Carey questioned if when Douglas Warka bought the property there was a plan showing the footprint of the demolished structures?
Atty. Blanchette stated Section 3.3.8 of the Monson Zoning Bylaws allows reconstruction of any non-conforming structure within 2 years after a catastrophe or demolition. That is not what the petitioners’ want to do, they propose to construct a new home on a pre-existing lot that lacks the required frontage, but the structure will meet the Zoning Bylaws with regard to front, back and side setbacks.
Speaking in favor: Janet Platt, 11 Rodman Road, Ashland, Catherine Jurczyk 11 Rodman Road, Ashland, David LaPrad, 70 Bryn Mawr Avenue, Auburn, Douglas Warka, 9 Bethany Road, Monson and Sandra Jurczyk, 3, Pleasant Street, Monson.
James Manning 40 State Street stated he was one of the abutters involved in the reconfiguration of the lot at 38 State Street. The lot in question has never had a building on it. The tornado damaged home was on a different lot that has been incorporated into the new lot. All fourteen homes on State Street before the tornado had a similar front setback and the neighbors want to keep the look of the neighborhood as it was before the destruction. He stated the houses that have been reconstructed and are under construction on Bethany Road are in a similar location to the homes that were destroyed and the look and character of the neighborhood has been maintained. Another concern is that the back section of the property floods when there is a rain storm and when the snow melts in the spring. Mr. Manning stated he spoke with the property owner Douglas Warka shortly after he purchased the property and asked what he intended to do with it. Mr. Warka said he would probably put a small
cape on the same footprint, why is it proposed to construct a house that sits so far back from the road and is so out of character with the existing homes? Mr. Manning asked Douglas Warka to just put the house in line with the existing homes on the street, and asked the Board to uphold the decision of the former Building Commissioner/Zoning Enforcement Officer Paul Tacy.
B. J. Church, Building Commissioner/Zoning Enforcement Officer stated she was asked by the Town Administrator to review the denial of a building permit for the construction of a home on a lot located at 38 State Street. She stated she made a comprehensive review of the Monson Zoning Bylaws, Massachusetts General Laws (MGL) Chapter 40A §6 Non-Conforming Uses and Structures, the plans and building permit application submitted to the Building Commissioner and visited the property. Included in the review were two letters written by Paul Tacy the first dated January 9, 2014 in which he concluded that the changes to the square footage of the property at 38 State Street, did not increase the non-conformity, as the existing non-conforming frontage of one hundred and fifteen (115) square feet remained the same,
and the square footage of the property remained in compliance with the requirements of the Monson Zoning Bylaws and still enjoyed the protection of Section 3.3.8 of the Monson Zoning Bylaws. The second letter dated June 30, 2014 denied the issuance of a Building Permit for a new home at 38 State Street, as he did not believe it was within his ability to do so. Section 3.3.5 allows the Building Commissioner latitude in issuing permits on non-conforming lots. It was his opinion that the proposed residence did not qualify under any of the five possible circumstances and required the issuance of a Special Permit from the Monson Zoning Board of Appeals. The Building Commissioner stated that taking all of the information under consideration, researching case law and past experience with zoning issues she would issue a building permit for a new house as proposed, because as proposed the new construction does not increase the non-conformity, in fact it
decreases the non-conformity because the proposed house meets all of the required setbacks. Section 3.3.5 of the Monson Zoning Bylaws lists five circumstances that shall not be deemed to increase the nonconforming nature of said structure, one of those circumstances (2) states “Alteration to a structure which is located on a lot with insufficient frontage where such alteration complies with all current setback, yard, building coverage and building height requirement.” The proposed construction complies with Section 3.3.5 (2) of the Monson Zoning Bylaws. The neighborhood will not look exactly as it did prior to the destruction caused by the June 1, 2011 tornado and it is understandable that the residents of the neighborhood want it to look the same but the municipality has to follow its Zoning Bylaws and Massachusetts General Laws. What existed before was a non-conforming structure on a non-conforming lot, what will remain after the construction is a
non-conforming lot with a structure that conforms to the required front, back and side setbacks. The proposed new construction complies with Section 3.3.5 (2) of the Monson Zoning Bylaws and it complies with MGL Chapter 40A §6. It would be illegal for the Town of Monson to ignore the requirements of Massachusetts General Laws.
Jane Malo 36 State Street stated her concern was not the construction of the house but the flooding that occurs at the rear of the property during most rain storms. She stated she has to run a pump in the cellar of her home.
David Beaudoin stated the petitioners’ disagreed with Paul Tacy and appealed his decision to the Zoning Board of Appeals and that is all the Board can act on.
Atty. Blanchette stated his clients are asking the Board to overturn the decision of the former Building Commissioner/Zoning Enforcement Officer and issue a building permit.
Frank Carey questioned if the petitioners’ should have applied for a Special Permit from the Zoning Board of Appeals because there was no house on the lot when they purchased it?
B. J. Church stated she could not speak to the reasoning behind Paul Tacys’ letter and his opinion that the petitioners’ seek a Special Permit from the Zoning Board of Appeals. The petitioners’ seek to rebuild a single family home on a non-conforming lot that does not change the existing non-conformity (frontage) but will decrease the non-conformity because the previous structures did not meet the setbacks required in the Village Residential District, the new construction meets all of the required setbacks. The letter written by the former Building Commissioner/Zoning Enforcement Officer does not comply with Monson Zoning Bylaw Section 3.3.5 (2) and it does not comply with MGL Chapter 40A §6
Frank Carey questioned if it would have been better not to appeal the letter and just apply for special permit?
B. J. Church stated they do not have to apply for a special permit.
Ronald Fussell questioned how MGL affected the Monson Zoning Bylaws?
Atty. Blanchette stated the Bylaw is based on MGL Chapter 40A §6.
B. J. Church stated the Zoning Bylaws of every municipality are based on MGL.
Joan Watson State Street questioned why the property was not perced?
B. J. Church stated there was no need for a perc test because the property is served by Town Water and Town Sewer.
David Beaudoin stated the Board must decide if it will uphold or overturn the decision of the former Building Commissioner/Zoning Enforcement Officer Paul Tacy to deny a Building Permit for a new residence at 38 State Street in a letter dated June 30, 2014. The testimony of B. J. Church, Building Commissioner/Zoning Enforcement Officer indicates that the proposed construction is in conformance with Monson Zoning Bylaws Section 3.3.5 (2) and MGL, Chapter 40A §6. It would appear the denial of a Building Permit for 38 State Street, was illegal because it does not conform to the MGL Chapter 40A §6 or the Monson Zoning Bylaws.
James Manning questioned if this meant that the process would have to start all over again?
Michelle Tebo 2 Gates Street questioned if the house could be rebuilt on the same footprint as the house destroyed by the tornado?
B. J. Church stated she was in Monson just after the tornado with the State Inspectors and saw the devastation, it is difficult to accept change, and yes the petitioners could rebuild on the same footprint, but they can also rebuild on the lot and meet the front, rear and side setbacks which is what they propose to do.
Joan Watson stated if someone new moves into a neighborhood they should fit in with what is there.
Frank Carey moved to close the hearing at 8:55 P.M. and take the matter under advisement.
Tere Hrynkiw seconded the motion.
It was so voted, unanimous.
The Board discussed the testimony and information submitted with the appeal, this is a difficult situation for everyone, the residents of State Street who have had to deal with the destruction of their homes and the changes to the character of their neighborhood and for the petitioners who want to build a home for a family member so that she can continue to reside in Monson. It was the finding of the Board that the proposed new residence does comply with Section 3.3.5 Nonconforming Single and Two Family Residential Structures, circumstance (2) of the Monson Zoning Bylaws and this finding is in compliance with Massachusetts General Laws, Chapter 40A §6.
Frank Carey moved to overturn the decision of the former Building Commissioner/Zoning Enforcement Officer, Paul Tacy dated June 30, 2014.
John Martin seconded the motion.
It was so voted, unanimous.
With no further business John Martin moved to adjourn at 9:15 P.M.
Ronald Fussell seconded the motion.
It was so voted, unanimous.
Respectfully submitted,
Linda
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