Monterey, MA - Zoning Board of Appeals Minutes 11/19/09

Also present: David Hellman, Attorney for Mr. & Mrs. Carry, Stanley Ross, Anne-Marie Enoch, William & Stacey Carry, Ed Schlegle (abutter) and Pat & Richard Edelstein (abutters)

The hearing began with Robert Gauthier, Chair, explaining the hearing process and then Fred Chapman, Clerk, read the legal notice and letters from the Planning Board, Conservation Commission, and Board of Health.

The Board of Health would require further clarification on Title V compliance, the Planning Board recommended denying the special permit application and the Conservation Commission did not feel that sufficient information was provided for them to determine if it fell within their jurisdiction. (full letters are available in the applicant’s file)

David Hellman, Attorney for the Carry’s introduced himself and stated that this is a smaller project than one presented last year that was withdrawn without prejudice. Mr. Hellman commented that he was surprised at the Planning Board’s comments seeing that they had voted to approve the larger project that was submitted last year. Pictures of the existing home and neighborhood were provided to the Board. The current house is about 900 sq. ft and the proposed home will be about 1700 sq. ft. The voluminous impact of the proposed project was decreased from the previous application that was withdrawn.

Fred commented that although he wasn’t 100% sure if the sitting board now is the same as last time, this is a “fresh board” and the Planning Board might also be made up of different members. Bob Gauthier also noted that since the first project was withdrawn without prejudice the first application process/details shouldn’t be discussed in this hearing.

Dean asked David to confirm that they were applying for a permit under the Monterey Zoning Bylaws section IV.E.2.b, David confirmed and Dean pointed out that the Planning Board was recommending denying it under section IV.E.2.c. Bob Gauthier and Fred Chapman confirmed that the Planning Board was basing their recommendation on case law.

Cynthia asked about the septic system and whether or not there was 2 septic systems; David Hellman confirmed that there is a right for a backup on Mr. Carry’s father’s property. Everyone agreed that the Title V issues and septic issues did not fall under this Board’s jurisdiction and it would be up to the Board of Health to follow up on any issues they might have. Bob G. also noted that on the application it was stated that this property fell in the Agricultural-Residential District when in fact it’s in the Lake Shore District.

Richard Edelstein, abutter, asked to see a picture of the proposed project. Patricia Edelstein, abutter, was concerned about what would happen with the demolition materials from the existing home and what will happen with the existing stumps there; she’s concerned with the waste of the old home and that it be removed at the time of demolition not stored on site. She wished them well if the house was conforming and proportional to the small lot and if the septic fell under Title V standards.

Ed Schlaigle, abutter stated that he was in full support of this project and would like to see it approved. All abutters agreed that anything would be an improvement to what was currently there.

Bob Lazzarini noted that everyone agreed that the proposed structure was a beautiful structure and he applauds the renovation, however, he feels that the renovation needs to be in proportion to the size of the lot. He noted that this lot is the 8^th smallest lot in all of Monterey (98^th percentile). The proposed construction would bring the size to 3 ½ times the normal size of homes in that area. He felt that the total number of square footage of the home (2900 sq. ft when the basement is calculated in) is much larger that it’s surrounding neighbors.

Fred noted that the proposed lot coverage would be 20% which is the Board’s limit. He felt that the proposed house was not in character with the neighborhood; there was a grandiose-ness more suitable for a different locale. He would like to see the proposed home smaller still. He felt this proposal was more modest than the first but not modest enough.

David Hellman stated that special permits give discretion to the Board of Appeals but felt that since they were taking a non-conforming structure and making it conforming, he asked that the Board take it into consideration that the 1700 sq ft proposal is modest and not much larger than most apartments in the area. He asked them to balance their own aesthetic opinions with the special circumstances of this case; the abutters are all in favor of the project and it’s an improvement to the neighborhood which will increase the tax base. There was some disagreement between Mr. Hellman and some Board members as to whether or not the new proposal made it conforming.

Bob Lazzarini agreed with what David stated but if the Board allows this project to go forward it’s setting a precedent for future projects. David felt that every special permit should be dealt with on an individual basis and not based on other scenarios. Bob L. stated that the sq. footage of the house in comparison to the sq. footage of the land is outrageous.

Fred noted that the bylaws state that if you are increasing the non-conforming nature you can not increase the home more than 25% of the existing property. Cynthia felt that the problem was trying to fit a modern solution on a non-modern lot. She asked David to confirm what the reduction was from the first proposal; the living space was not decreased, the height and volume were (a visual change).

Since there were no other comments or questions the Board entered into the deliberation phase. Bob G. noted that a super majority will be needed to approve the project.

2. The proposal seeks to build a home that removes one non-conformity but increases the non-conforming habitable nature by 171% (living space).

Fred stated that if the Board agrees that it increases the non-conforming nature the Board will have to use section IV.E.2.c of the Monterey Bylaws to make their decision. Dean did not agree that the proposal increased the non-conforming nature because anyone can use that word anyway they want. Fred disputed that there were several court cases that define this scenario.

Bob L. stated that when you figure in the whole non-living space of the proposal, the project is actually increased by well over 200%. At this time Bob L. read from the Norwell case. Because of this case and finding, Bob felt he would have great difficulty in approving this project.

Dean questioned whether or not this project would be “by right” if the applicant submitted a smaller design. The rest of the Board stated no because the current structure is non-conforming and therefore kicks it out of IV.E.2.a.

It was agreed that no one wanted to stop the applicant from building; they just wanted the home to be kept in proportion to the lot. Bob noted that if the 1200 sq ft in the basement and garage were removed and the 1700 square feet of living space were left alone the project would be more acceptable.

The Board and the applicants discussed what the ramifications would be if a negative vote was to be received and they reapplied with a smaller project; the Board could not guarantee that it would be the same members sitting and that they wouldn’t view it as an unsubstantial change and not allow it to be resubmitted. The applicants and their attorney recessed to discuss their options. The applicants requested to withdraw without prejudice. David Hellman submitted the request in writing. The Board voted unanimously to allow the applicant to withdraw without prejudice.