Stencel ZBA Hearing Minutes
224 Hupi Rd, Monterey
Date: 10/7/09
Hearing began at: 11:30am
Members Present: Robert Gauthier, Chair, Robert Lazzarini, Vice-Chair, Fred Chapman, Clerk, Cynthia Weber and Kathleen Wasiuk (Alternate)
Also present: Edgar and Patricia Stencel, Attorney Peter Vallianos, Anne-Marie Enoch, Gige O’Connell, Wayne Burkhart, Attorney Phil Heller, Joe Baker, Shirley Olds,
The hearing began with Robert Gauthier, Chair, explaining the hearing process and then Fred Chapman, Clerk, summarized the legal notice and letters from the Planning Board, Conservation Commission, and Board of Health.
The Stencels are seeking relief from the zoning bylaws via a variance for a side setback encroachment. It has been 6 years since the original construction of the garage.
Peter Vallianos introduced himself and the Stencels and gave a summary of the reason for their appearance here today. The property is limited due to a stream that runs abuts it on the back side of the property, K. Wasiuk noted that it is not shown on any of the plans. The home was built in 2000 and the garage in 2003. In 2006 the Stencels received a letter from the current Building Inspector that the building permit issued by a previous inspector was incomplete. A site visit was then made by D. Torrico and it was determined after a survey that the garage is 6’ and several inches into the 25foot setback. The Stencels attempted to make a land swap with the neighbor but because the other lots that the garage encroached up were both non-conforming they couldn’t be changed.
Peter suggested that the soil conditions on the lot are impacted by the stream which has a 200’ setback and the downhill slope of the property limits the development on the property. The shape of the property is limited even though it is a 4 ½ acre lot because it is long and narrow or available for construction. The next nearest home is 250 feet from the garage. The house is located at the highest part of the lot in order to have a gravity fed septic and the site of the garage was chosen so that it was further away from the septic. Peter suggested that the literal enforcement of the bylaws will cause substantial financial hardship to the applicant and diminishes the value of the building.
K. Wasiuk stated that she had she had a hard time believing that the stream was taken into account when designing the garage. She asked if in the original building permit process if there was a set of plans submitted. Peter stated that when he met with Don Torrico he copied a few of the things in the file that he felt were important and showed the garage addition to the house. The plans showed that the garage was supposed to be 25’ from the setback. The original application submitted to Brent Getchell (previous inspector) was also submitted and stated that it would be 30’ from the setback. K. Wasiuk stated that the contractor either lied or was negligent in his measuring on the application.
Fred suggested that the neighbor can give them .2 acres to meet the setback requirements and the Stencels can give the neighbor .4 acres which would make the neighbors lot conforming. It would then have a jagged boundary line but would be cheaper than any other option. Fred stated that nothing submitted even remotely meets the requirements to grant a variance.
R. Lazzarini agreed with Fred and Kathleen that there aren’t any grounds for a variance and all the things they are considering a hardship are not. He read what Whitten and Bebowski wrote about granting variances. He felt that the owner’s should’ve been prudent and conducted a survey prior to constructing the garage.
Cynthia asked about the room over the garage and whether or not it was finished, it was not. R. Lazzarini asked about the option of making the garage into a 1 ½ car garage and taking 6 feet off of it.
The Board suggested that the owner’s should be fighting the contractor, Abbey Road for compensation on the mistake made. R. Lazzarini stated that the last time a case like this came before the Board the applicant was made to move the structure that encroached on the setback. The Board also stated that this case would set a precedent for any future cases that come before the Board.
R. Gauthier stated that it was illegal for this Board to deal with this variance because it was a self imposed mistake made and is not because of a soil, shape or topography of the land. A certificate of occupancy has not been issued for this project.
Fred stated that this problem could in the future affect the neighbors should something ever happen on their property that would require them to need to be in that area.
Wayne Burkhart former Planning Board member for 25 years commented that he is emphatically disagreeing on the Board’s interpretation of granting a variance and he thinks that in the judicial process the points that Peter made with regards to the soil, shape and topography would prove to be a hardship. Wayne felt that this board had an extreme aversion to risk.
Peter and his clients requested a recess to discuss their options. The Stencels and Peter requested continuing the hearing while more information could be explored and presented to the Board. The Board denied this request.
The Board then entered the deliberation process. Substantial hardship was not proven and real numbers were not shown to the Board. It was agreed that the Board should be consistent in variances and what is required.
A motion was made to vote on granting the variance. The Board unanimously voted to deny granting the variance.
The hearing concluded at 12:49pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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