ZBA Hearing Minutes
Date: 11/16/06
Hearing: Brenner
42 Elephant Rock Rd
Hearing began at: 4:03pm
Members Present: Peter Murkett Chair, Dean Amidon, Robert Lazzarini (alternate), Cynthia Weber, and Robert Gauthier (Clerk)
Also present: Kevin Brenner, David Hellman, Alan Clark (project architect), Mark Volk (project engineer), Alexandra Glover (attorney for the Kashkins), Bruce Kashkin, Marjorie Kashkin, Fran Amidon.
The hearing began with Peter Murkett, Chair, outlining the hearing process and then Robert Gauthier; Clerk, read the legal notice and letters from the Planning Board, Conservation Commission and Board of Health. A letter from Bruce & Marjorie Kashkin’s attorney was read into record (submitted with a copy of the recent survey) as well as a letter from Monterey resident Michael Salke.
David Hellman, attorney for the Brenners, addressed some of the issues raised in the letters from the abutters. The 1st non-conformity dealt with was the setback to the lake and the setbacks to the north, south, east and west. The suggestion that the Brenners are applying under the wrong section was addressed by reading the Building Inspector’s rejection letter that stated the section to apply to for relief was in fact section IV.E.2.b. A detailed chart was prepared and submitted into record giving the existing and proposed square footage numbers. Since the previous project submitted to the Zoning Board of Appeals that had been withdrawn without prejudice was brought up by Attorney Hellman, Peter Murkett stated his discomfort and asked that no further reference be made to the
previous hearing so that the board may to their best of their ability make a decision without prejudice. Attorney Hellman addressed the “common room” that was referenced by the Board of Health as potentially being a fifth bedroom, by stating that they are prepared to impose a deed restriction that this never be more than a four bedroom house or they can eliminate the door on the stairs that leads to the common room. The non-conforming nature has not been increased and they are eliminating all of the non-conformities.
At this time the board members were asked if they had any questions. Dean Amidon asked what the slope of the lakeshore lot was. Marc Volk stated that it was a variable lot and did his best to give estimates of the slopes. Peter Murkett asked Mr. Hellman to answer to the frontage addressed in Ms. Glover’s letter. He stated that the Salke and Kashkin houses were built by a developer and there was an old roadway (Woodland Dr) that was relocated by the developer, whose attorney told Mr. Hellamn that to the best of his recollection Woodland Drive was nothing more than an easement not a sub-division road and they believed that they had the right to move it as long as an easement was granted to Mr. Baum to get to Elephant Rock Rd. This has not been confirmed, as the attorney involved just had
hip surgery and is out of the office.
Robert Lazzarini asked that the issue of Chapter 40A be addressed. Attorney Hellman stated that the bylaws say you can reconstruct and how can you do that without first deconstructing. Attorney Glover stated that our bylaws do track Chapter 40A Section 6 pretty closely but reconstruction by way of complete demolition is not permitted for a non-conforming structure unless completely destroyed. Attorney Glover referred to there being a large amount of case law that addresses reconstruction. Attorney Hellman believes that we have an opinion on file from town counsel and would be happy to fax it to us.
The fire section of the town’s bylaws were reviewed and discussed. Peter Murkett noted that his interpretation of the word “reconstruct” being used in IV.E.2.b alludes to reconstruction being allowed in a case of deliberate demolition. Attorney Glover will provide case law to support her argument.
Attorney Glover went over the concerns of her clients, which included but were not limited to the size of the project. In terms of the non-conforming nature of the lot, she stated that this lot is not grand-fathered and has no road frontage now. A 1927 subdivision plan that is on record was brought in by Attorney Glover and reviewed by the board. Attorney Glover contended that the plan substantiates that Mr. Brenner lost his road frontage and that the driveway is an easement. Peter Murkett stated that if it had sub-minimum frontage prior to zoning it was grand-fathered. Attorney Hellman stated that section 6 of 40A that Attorney Glover is referring to is only applicable to a vacant lot.
Peter Murkett stated that there really couldn’t be any argument made about a detriment to the lake or resources as both the boards that govern those issues didn’t have a problem with the proposed plans. Attorney Glover stated that by increasing this lot the neighborhood would be taxed by an increase in traffic and noise and congestion.
Marjorie Kashkin, an abutter, stated that when she looks out her window it would appear that they are right on top of this proposed project. She noted that whenever they have any cars at the Brenner property it impacts her view greatly and invited the board to come to her house to see for themselves. Peter Murkett stated that neighbors do have the right to do things on their property that may or may not affect their neighbors.
Peter Murkett asked at this time that any final statements be made to the board and unless anyone has a last point to make that the evidentiary portion would be closed. Attorney Glover showed a picture of the current views of the neighbors and how the garage would impact it.
The board went into the deliberation portion of the hearing and began by confrming agreement that the existing non-conformities are sub-minimum lot size, lack of road frontage, and setback encroachment. After some discussion, the Board made the following findings relative to the proposed construction:
1. The proposed construction eliminates non-conformities relative to the side-lot and lakeside setback.
Conditions:
1. A deed restriction must be filed with the Southern Berkshire Registry of Deeds stating that the reconstructed house can never have more than four bedrooms.
2. The door indicated in the basement plan between the common room and the hallway be removed to satisfy the Board of Health’s concern that this could potentially be a bedroom as per Title 5 regulations
At this time a vote was taken to grant the permit with the findings and conditions noted and all five members voted unanimously to grant the special permit.
The hearing adjourned at: 6:00pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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