ZBA Hearing Minutes
Date: 12/17/09
Hearing began at: 3:00pm
Members Present: Robert Gauthier, Chair, Robert Lazzarini, Vice-Chair, Fred Chapman, Clerk, Cynthia Weber and Dean Amidon
Also present: Attorney Charles Ferris, Elliot Small, Peter Chait, Adam Chait, Building Commissioner, Donald Torrico, Maureen Reagan, Carol Stalker, Larry Klein, Fran Amidon, Stanley Ross and Anne Marie Makuc
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, Board of Health and abutters and interested parties.
The applicants are seeking relief from a notice of violation issued by the Building Commissioner/Zoning Enforcement Officer. The Building Commission withdrew the hot tub violation after making a site visit with the applicant’s attorney to measure the depth of the tub.
Charles Ferris stated that there were 3 specific things he wanted to discuss:
1. This case was about a disgruntled neighbor who knew about this for 5 years and never did anything until Mr. Small called the neighbor’s son Adam about work being done on their property. The Chair asked this particular problem to not be discussed further as that’s not what the ZBA is there for.
2. The hot tub.
3. Rebuilding of the retaining wall.
Mr. Ferris presented this material by giving a history from 2004. Following his presentation, Mr. Small read materials to the Board and tried to revisit the bad neighbor situation. Mr. Small became so upset that he requested a 2 minute recess to collect himself. Mr. Small then gave a history of his compliance with rules and regulations in the Town of Monterey.
Mr. Torrico stated that Mr. Small did apply for a permit but it was never issued due to the fact that there were problems with it but Mr. Small proceeded with the project anyway, this was with a previous Building Inspector. Mr. Torrico stated that problems with the permit process does not give permission to proceed. Dean asked if there was an actual permit issued from the previous inspector and Mr. Torrico stated that there was not a paper permit issued and anything else is hearsay. Mr. Torrico provided hand drawings submitted to the building department showing the project in the 15’ setback. He stated that the project is in the 40’ setback as well but that may have existed prior to zoning. Dean stated that the wall has always been in violation since prior to Mr. Small purchasing
the property.
R. Lazzarini asked if there was any evidence that the retaining wall was pre-existing and when it was built (it would need to be prior to 1972 in order to be grand-fathered). Mr. Ferris felt that there was a 6 year statue of limitations in order to issue a violation and Mr. Torrico corrected him that it’s 10 years. Mr. Ferris stated that they are not disputing that the wall is in the setback, what they are saying is that the ZBA needs to determine if Mr. Small has substantially changed or enlarged the wall so that he would’ve needed to come in for a special permit. They stated they were fixing a non-conforming structure and didn’t feel that a special permit was necessary for that. ZBA members debated this and reviewed the bylaws.
Maureen Regan indicated that the wall has been there as long as she’s live in the house. Peter Chait indicated that the wall has changed. Adam Chait also indicated that the wall has moved and been changed since the installation of the hot tub.
D. Torrico suggested that the hot tub issue be dropped as it was a building code violation and not a zoning violation. The Board then discussed the setback violation. The Board agreed that the town’s bylaws (pages 15-16), under maintenance, repair and reconstruction of an unsafe structure applied in this case. The meaning of normal maintenance and repair were discussed.
The Board made the following findings:
- The property is non-conforming because it is undersized, does not have adequate road frontage and has a structure (masonry wall and steps) in the setback area.
- The 22 inch high masonry retaining wall and steps that infringe on the setback are of unknown age and predate the installation of the hot tub.
- The addition of the hot tub does not infringe on the set back area, but does increase the total structure on this non-conforming real estate complex.
- The addition of the hot tub and the modification of the existing masonry wall and steps do not appreciably increase the non-conforming nature of the property. An application for a Special Permit for the hot tub installation was not requested by the town authorities nor filed by the appellant.
- The masonry wall and steps have been in place longer than 10 years and therefore have a “grandfathered” status.
The Board then voted on whether there was a violation by the Small’s. The Board voted unanimously that the Small’s did not make a violation.
The hearing concluded at 5:00pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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