ZBA Hearing Minutes
Date: 7/12/06
Hearing: Brenner
Hearing began at: 4:00pm
Members Present: Peter Murkett Chair, Fred Chapman, Robert Lazzarini (alternate), Cynthia Weber, and Robert Gauthier (Clerk)
Also present: Kevin & Jill Brenner, David Hellman, Alan Clark, Mark Volk, Kathy Wasiuk, Mr. Kashkin, Michael Salke,
The hearing began with Peter Murkett, Chair explaining the hearing process and then Robert Gauthier, Clerk read the legal notice and letters from the Planning Board, Conservation Commission and Board of Health.
David Hellman, Attorney for Kevin and Jill Brenner, introduced himself and then stated that the Board of Health letter to the ZBA took him by surprise as the house is designed to be a four bedroom house and are not aware of what the board determined to be a potential for a 5th bedroom, they will go back and address that. The septic system was installed in 2003 and is a jet bat system. The existing site plan was shown and details were explained. David stated that they are coming in under Section IV E 2.b of the Zoning Bylaw and read the bylaw to the room. They are suggesting that by building exactly on the footprint they are not increasing the non-conforming nature, when they add the garage that will be new construction and is wholly complaint with respect to setback and lot coverage. They calculate the lot coverage to be at 17.3%; under the maximum 20% you’re permitted. The 3rd picture he reviewed showed the view from the lake of the 2 existing houses on either side of the
structure. By bringing the house farther from the lake they are actually making the house less non-conforming. The house will have natural siding and the roof is intended to be a greenish metal to blend in with the trees in the background. They are doing this because they need more room for their family of 6. The use is a single family four bedroom house and there is not an intention of adding a 5th bedroom.
The architect and owners declined making a presentation and preferred to answer any questions that may arise.
Kathy Wasiuk had the following question: Kathy explained that she does occasionally serve as an alternate on the ZBA but is not here in that capacity today, she is here as a neighbor and as president of the Elephant Rock Rd association which maintains that road. On the figures given for existing house and deck etc as composed to proposed house etc., the existing one includes a figure of 750sqft for the deck and on the new one which has 2 smaller decks but no figure for the total of the house, why is it on one and not the other? It was explained that the existing deck is attached to the ground and the 2 decks are not, no figure was included. Kathy asked if that meant that it was not included in the total square footage habitable part of the house and the person answering did not know. The bylaws
were then reviewed and the question answered. Kathy also asked that if the board decides to grant a special permit and let the Brenner’s go forward with construction that they consult with the Elephant Rock Association about truck traffic over that road as it affects maintenance of that road, particularly if they are building through the winter and into the spring as it’s privately owned and not maintained by the town.
Mr. Kashkin, an abutter on the south side asked: What the existing height of the house was and the person answering said approximately 23 feet and the new building with the calculated under the same criteria will be 44’10’. The legal height stated in the Monterey Bylaws and according to the State Building Code was discussed. Mr. Kashkin stated that he and his wife bought their property in 2000 and started to build in 2001 and completed construction in 2002. When they bought they took into account all of their family members and were instructed by everyone they talked to that they could not buy something and increase it or expand it more than 25% in the Lake Shore District. They built 100% according to code. Mr. Kashkin is very upset that his entire view will be blocked if 21 feet
is added to the Brenner’s height. Fred Chapman asked who informed him of the above comments. Mr Kashkin said it was town folks and employees in the office and people they deemed to be knowledgeable. Mr. Kashkin provided pictures to the board of his current view with the existing house.
Peter Murkett responded to Mr. Kashkin’s understanding of the bylaws. From what he said he was simply misinformed. The zoning regulations in the most general terms states that the Building Inspector may authorize a building permit as a matter of right for any extension, alteration or reconstruction of an existing non-conforming one family dwelling or of an existing one family dwelling on a non-conforming lot provided such change as well as the existing structure shall meet all setback requirements in effect at the time of the application, such change would not increase the height of the existing structure with reference to the existing structure’s highest point, such permit application does not contain a lot including a multi-family dwelling nor more than one dwelling. The way the bylaw is
structured there are three increasingly restrictive regulations of alterations of non-conforming structures. What was just read was the first. Since the change we are talking about includes a height change it gets kicked into part “b” which is more restrictive than part “a”. Paragraph “b” is pretty wide open and there is a common misunderstanding that non-conforming structures are limited to a 25% increase because in the 3rd and most restrictive part of the bylaw the limitation is 25% but as we understand it at this point this application falls under part “b”.
Kevin Brenner stated that he understands the Kashkin’s view of what they are doing but wants to point out a few things, he is not a layperson, he builds houses for a living. It’s being built for his family, there is an elevator proposed for this house for their future and for their in-laws. His interpretation of the bylaws is that this is an acceptable project. He corrected that the garage is not 110 square feet as Mr. Kashkin stated but 500sqft. As a building professional he evaluates these types of situations regularly and as a homeowner you should be aware of what your neighbors can or can not do at a later date that may affect you.
Michael Salke an abutter addressed the equipment that is coming in and the part of the road that the association does not maintain and does not own. He also provided pictures of his current view. He expressed concerns over the storm drainage and runoff onto his property and into the lake to a greater extent than it is now. He is also concerned with the right of way that they have to use a driveway that is on Mr. Salke’s property only allows them to drive on that driveway to and from their house to and from Elephant Rock Rd, he is concerned about parking on that right of way that would violate the easement. He is also concerned about the environmental impact of a project of this size. He has a concern with the roof and the potential glare off the top.
Mark Volk from Foresight Engineering was asked to comment on several issues and questions that came up between the existing and proposed. The existing house is 1433sqft, existing deck and stairs is 735sqft, and total existing footprint is 2160sqft. The proposed house itself is now 1463sqft and includes a cantilevered balcony, the terrace and walkway on side is 535sqft, the walkway from the driveway to the garage is 356sqft, the garage is 516sqft and includes the balcony/covered entryway. According to the applicant and proposal, the foundation of the proposed house has the same 4 corners as the pier foundation of the existing dwelling not including the deck. Cynthia Weber stated that she feels that the utility area under the proposed garage should be considered part of the house/living space/new
construction. The sub-basement of the garage is usable.
The definition/explanation of the term “footprint” was discussed. The board also clarified that construction vehicles do not fall under the zoning bylaws and therefore the board can not make any determinations with regards to construction vehicles. Kathy Wasiuk stated that the Elephant Rock Road Association in the past has charged the residents/contractors that have built and have damaged the road from their construction vehicles.
At this time a break was taken for everyone to stretch their legs. When the board returned the board was given a chance to ask any questions that they might have of the owners, abutters or contractors. Cynthia asked about the number of total rooms. Peter asked about the terrace on the lake side. Bob L. asked if the house was being completely demolished and why it wasn’t being built in the setback areas. The septic system on the property was reviewed. The section of the bylaws that this should fall under was discussed as well as the term “non-conformity”.
The Hearing concluded because we ran out of tape at 6:30pm and was continued until 3:30pm on Monday July 17, 2006 and the public portion of the hearing will still be open.
Submitted by
Melissa Noe, ZBA Secretary
ZBA Hearing Minutes
Date: 7/17/06 continued from 7/12/06
Hearing: Brenner
Hearing began at: 3:35pm
Members Present: Peter Murkett Chair, Fred Chapman, Robert Lazzarini (alternate), Cynthia Weber, and Robert Gauthier (Clerk)
Also Present: Kevin & Jill Brenner, Kathy Wasiuk, Mr. & Mrs. Salke, Mr. & Mrs. Kashkin, David Hellman, Alex Glover
Peter Murkett reconvened the hearing for Kevin & Jill Brenner on Elephant Rock Rd. Peter then informed the board and attendees that he received a call from David Hellman after the last hearing closed about the procedure on how to withdraw without prejudice. Peter read section 2 of our Articles of Organization that pertains to this request. David Hellman inquired on whether it was possible to withdraw after the informational part of the hearing has closed. The question was opened to the board to discuss their position on this. One option is that the board could choose to consult with Town Counsel. The board agreed that the applicant would be allowed to withdraw without prejudice prior to the vote taken regarding the special project and four out of five of the board members would need
to vote in the affirmative.
Mr. Brenner then proceeded to explain why he is considering withdrawing without prejudice. A conversation prior to the meeting took place between Mr. Brenner and Mr. Salke and Mr. Salke stated that he wouldn’t have a problem if the 3rd story were removed. Mr. Brenner asked for input from the board regarding a favorable/acceptable outcome to allow this project to happen. Peter responded that they are willing to discuss this however Mr. Brenner should be aware that this is still a crapshoot since the same 5 board members may not sit on the next hearing and most board members don’t know how they vote until the deliberation process occurs and it comes time for a vote.
Alex Glover, attorney for the Kashkin’s and Salke’s stated that her clients do want the Brenner’s to be able to have a habitable house that is comfortable for their family and have always been aware that this would happen at some point. Their issue is the huge scope of the project. She explained that there are more issues when speaking of a non-conforming lot than what the bylaws address, increased magnitude of the building also applies and if the hearing isn’t closed today she can provide copies of case law where this has been the case. She suggested that the garage is new construction and should be treated as that with regards to the setbacks and that is not to be grandfathered.
Board members responded to the Brenner’s and Attorney Glover’s concerns regarding the bylaws and non-conforming issues. Paragraphs “b” and “c” of the bylaws were again reviewed and it was discussed how it ultimately falls under what section of the bylaws. B. Gauthier asked the board to determine what exactly makes this project non-conforming. It was determined that the size of the lot, location in several setbacks, and lack of road frontage are all the non-conformities. The footnotes on page 19 of the bylaws were then reviewed and discussed.
Attorney Hellman then asked Fred Chapman for his concerns on the project and the 40feet from the lake is a large issue. The term reconstruction needs to be defined for better understanding. Fred would like to see it out of the setback and sees it falling under “c” no matter what, he doesn’t see any way that you can make a bigger house and not increase the non-conforming nature.
Attorney Hellman stated that at this point they respectfully requested that they Withdraw Without Prejudice. Peter Murkett then asked for this request in writing which Attorney Hellman provided that the Brenner’s signed. Peter then read the letter for the record and the board voted unanimously that the Brenner’s were to be allowed to withdraw without prejudice .
The Hearing concluded at 5:17pm
Submitted by
Melissa Noe, ZBA Secretary
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