ZBA Hearing Minutes
Date: 9/30/10
Hearing began at: 3pm
Members Present: Robert Lazzarini, Chair, Dean Amidon, Clerk, Robert Gauthier, Anne Marie Enoch, Alternate and Stanley Ross, Alternate
Also present: Robert Johnson, Janos Keseru, Architect, Donald Torrico, Building Commissioner, Jessie and Frank Duke, abutters, and Doug Neu, abutter
The hearing began with Robert Lazzarini, Chair, explaining the hearing process and then Dean Amidon, Clerk, read the legal notice (which was posted for 2 consecutive weeks in the Berkshire Record and at the Town Hall) and letters from the Building Commissioner, Planning Board, Conservation Commission, and Board of Health.
Mr. Johnson stated that he was under the impression that he had one more year on his septic approval; he will check with the Board of Health on this but stated that he still intends to put in a new septic system (it was later clarified with Mr. Johnson that a septic permit is good for 3 years, he only had plan approval, a permit was never issued). He had previously submitted a different plan to the ZBA in 2008 which was approved but he did not act on. He was asked if the current building was going to raised or demolished; Mr. Johnson stated it will be raised in the same footprint with the exception of the deck being enlarged by 2 feet.
Janos Keseru stated that there will be no change in height and the Board noted that this should be noted somewhere in the plans and addressed in the proposal. The depth needed to excavate to not increase the height is going to be considerable. It was noted that if over 500 cubic yards were going to be removed then an Earth Removal Permit (issued by the Select Board) will be needed.
Donald Torrico was asked to confirm that it is in the Agricultural Residential District as the Assessors have it in the Lake Shore District. Don stated that the structure is located in the Agricultural Residential District. He has confirmed this with Town Counsel and from reading case law on other similar situations where a property is located in multiple districts. Robert Gauthier stated that he feels it is in the Lake Shore District. Don suggested that a retaining wall should be considered and added to these plans so that a second hearing would not be necessary. The Architect stated they were on the plans but after everyone reviewed them, it was noted that a retaining wall was not shown on the plans that were submitted.
It was noted that the existing deck can be kept as it was pre-existing but the addition to the deck as drawn will not be allowed as it would be entering the setback and can not be approved by law. The owner will have to be very careful if a retaining wall is put in as it could easily infringe on the side set back.
In spite of court cases, Robert Gauthier stated that if a property is in 2 districts, the larger portion of the property and the district it falls in would be the one the ZBA would make their determination under.
Mr. Johnson stated that the main reason that stairs were not put in from the main floor to the basement was a space issue. The basement can be accessed from the walk out side of the basement. The Board was not aware of any law that required a staircase from the basement to the 2nd floor.
Doug Neu, abutter asked if the basement was a basement or a bedroom. Mr. Johnson stated it will be both and there is a proposed bathroom added as well. He asked if the Board could approve the permit without the approval on the septic from the Board of Health; the ZBA would note the need for Board of Health approval in a condition if the permit is approved. He also noted there were quite a few trees and he’s concerned about the adverse impact on the trees with the raising of the house. Mr. Johnson stated that they are transplanting some trees and some trees will need to be removed when the new septic system is installed. Discussion ensued about where the septic system will be located.
Stanley Ross mentioned that there is a water line located where the proposed septic system is to be. It was asked if there was an easement through Mr. Johnson’s property. Mr. Johnson stated there isn’t an easement. Stanley presented an email from the Wasiuk’s and their concern about the septic system and if it would impact the water line. Since there isn’t an easement this would be an issue for the landowner and private water supply to hash out.
Mrs. Duke is concerned about the septic system and if it’s been upgraded and if the earth is being moved (her property is below Mr. Johnson’s).
At this point there weren’t any further questions or presentations so the Board went into the deliberative portion.
The following findings were made:
1. The property in question is non-conforming on 3 accounts: the lot size is insufficient, the road frontage is inadequate and there are structures that infringe upon the front and side setbacks.
2. Although the lot is located in both LS and AR districts, most of the lot and all of the structures to be altered lie in the AR district therefore the AR district requirements apply.
3. The existing structure has 785 sq ft of habitable space; the proposed structure has 963.5 sq ft of habitable space, or an increase of 23%. The screen porch is enclosed with insect screen above chair rail height and does not have direct access to the interior of the house. Therefore it is not considered habitable space.
4. The enlargement of the structure’s habitable space occurs below grade. The screen porch and the deck are supported by posts.
5. Assuming that the building height of the modified building remains the same and will not be larger that the existing structure the relevant section of the Monterey Zoning Bylaws is IV.E. 2.b
6. The proposed alterations with the required change in design (see “conditions” below) are modest and in keeping with the character of the surrounding dwellings. The Board finds that they are not substantially more detrimental to the neighborhood and will not increase the incidence of air, water, odor or noise pollution.
The board concluded that the request was in harmony with the general purpose and intent of the Bylaws and will not be injurious, noxious, offensive or detrimental to the neighborhood or town.
The following conditions were made:
1. The deck extensions must be redesigned so that they do not encroach on the 25 foot side setback requirement.
2. A deed restriction must be attached to the deed and properly filed stating that the house can not be transformed into a two family dwelling or that the basement level can not be transformed into an ancillary dwelling without first satisfying all zoning bylaw requirements and obtaining specific approval from the Zoning Board of Appeals.
3. The special permit is contingent upon satisfactory approval from the Board of Health.
4. An earth removal permit issued by the Board of Selectmen will be necessary if 500 cubic yards or more of earth is to be excavated.
5. The owner/applicant must notify the Conservation Commission of the approximate amount of earth to be excavated and comply with their requirements.
The Architect confirmed that it would only be approximately 250 cubic yards of earth removed and properly disposed of.
A vote was taken to approve the project as submitted with the above-mentioned findings and conditions.
Robert Gauthier – yes
Robert Lazzarini – yes
Dean Amidon – yes
Stanley Ross – yes
Anne Marie Enoch - yes
The hearing concluded at 4:09pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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