Monterey Planning Board Minutes May 13, 2010
Members present: Maggie Leonard, Alan Salamon, Larry Klein, Stephen Enoch, Barry Karson.
Public present: Bob Lazzarini from ZBA, John Makuc
The meeting was called to order at 7:10 p.m. The board met with Bob Lazzarini who is also a member of the Zoning Board of Appeals. Bob came to discuss the bylaws about non-conforming uses, structures and lots, and responsible interpretations by both the Planning Board and the ZBA. Bob said that the Court of Appeals an the Massachusetts Supreme Court upheld a decision from the Massachusetts Land Court regarding the use of the term “non-conforming nature.” Bob explained that in the past the ZBA and the Planning Board had used the tiered approach that is outlined in the Zoning Bylaws, where a property under consideration for a special permit was divided, in a sense, to see whether the property (lot) was non-conforming, the structure or the use. Bob said that according to the case law (which he had in hand) the
property must be considered as a whole, and if there is one non-conforming aspect of the property or structure or use, then whole thing is non-conforming. If this interpretation is correct then the non-conforming situations will only be allowed to expand 25%. Bob cited the case of Norwell vs. J. Stephen Borklund.
Stephen Enoch asked if Lazzarini was suggesting that we need to review our bylaws to increase the 25% growth limit that is currently placed on non-conforming structures, uses, and lots? Lazzarini replied that he recommends that the board contact lawyers to see if there are different interpretations other than his. He added that if his interpretation is correct it would depress real estate and development. Enoch asked if Lazzarini had discussed this with town counsel, and Lazzarini responded that he had not. There was discussion about different language that might work for a simple bylaw change, instead of the number 25%. Words such as “appreciable”, or “not in excess of” were suggested. Some thought these were too vague and too open to interpretation.
Lazzarini suggested that the Planning Board form a committee of 6 people; 2 from the Planning Board, 2 from the ZBA, and 2 at-large members to work on a review and update of the Monterey Zoning Bylaws. Everyone agreed that the existing Zoning Bylaws are woefully out of date. Alan Salamon responded that he met with the Select Board and told them that the Planning Board was not going to do a Master Plan because the expense was too great and the gains too small. Salamon said that at that meeting he said that the Planning Board believed that it would be a better investment to re-write the bylaws. Discussion then was about whether the Zoning Bylaws could be “patched together” or required a total revision and re-write. Maggie reminded members about the Building Inspectors comments in December, and the fact that the
telecommunications bylaw and the common driveway bylaw are not included in the current versions of the Zoning Bylaws.
Discussion turned to specifics about average expansion and average lot size. Larry Klein stated that it is important to consider the expansions in relation to the total amount of land. Salamon agreed and said that if a building expansion is on 7 acres he’s not as concerned as when the expansion is on a small non-conforming lot.
The Board met with John Makuc. Makuc presented the Board with a property map of Woodburn Farm on Corashire Rd., and asked (hypothetically because nothing has been done yet) if dividing the property would compromise the use of the driveway by the two existing dwellings on the property. The board was not entirely sure and talked about the Common Driveway bylaw, which means it would be legal, and stipulated that the dwelling must still have 200 feet of frontage on Corashire Rd and access to the building lot (or in this case dwelling) regardless of a common driveway.
Larry Klein requested that Berkshire Regional Planning be contacted to request that the meeting with Brian Domina regarding the Telecommunications bylaw be postponed until June 24th since he will not be able to attend the June 10th meeting.
Meeting adjourned 8:58.
Respectfully submitted,
Maggie Leonard, chair
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