ZBA Hearing Minutes – 149 Hupi Rd
Date: October 19, 2010
Hearing began at: 3:02pm
Members Present: Robert Lazzarini, Chair, Dean Amidon, Clerk, Cynthia Weber, Robert Gauthier and Stanley Ross, Alternate
Also present: Alan Klingenstein
The hearing began with Robert Lazzarini, Chair, explaining the hearing process. 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 Conservation Commission, and Board of Health. The Planning Board did not submit an opinion.
Alan Klingenstein, owner stated that he believed that the plans filed with the Con Comm did include the BBQ and kneewall but he would be glad to refile with them if necessary. This project started because of a runoff/drainage problem that actually ended up affecting their neighbor’s property. Plans were developed with White Engineering, Webster-Ingersoll and Leigh Tryon. The Building Commissioner stated that the Klingenstein’s were in violation of the town’s zoning bylaws after he noticed the work while inspecting a neighboring property.
Robert Lazzarini stated that the 2009 plans that were submitted to the Con Comm (which Bob had a copy of) did not show a BBQ. A wall was drawn on the plans but nothing on the plans noted what that line was. The plans submitted to the ZBA do show a notation of a BBQ and kneewall. According to Mr. Klingenstein, White Engineering has admitted that they dropped the ball here. Mr. Klingenstein did not recall any conversations with the engineers about the 40ft setback requirements as per our bylaws.
Robert Lazzarini stated that all the officials in town that he has spoken with about this project are very excited about the improvements that were made however everyone was astonished that the 40ft setback bylaw was never taken into account.
Cynthia Weber asked about the amount of macadam removed with regards to where the new patio was laid. Mr. Klingenstein stated it was equal. The drawings and planning were all done by White Engineering and the actual construction was done by Webster-Ingersoll.
Robert Lazzarini explained the 3 issues that a zoning board hears; a special permit request, a variance request and a request to appeal a town department’s decision. Robert Lazzarini stated that no where is there an allowance to issue a special permit for a violation of a setback requirement. Robert feels that this should’ve been a request for a variance and explained when a variance request comes into play.
Robert Gauthier felt that the Board could view this as a reconstruction, maintenance or repair and hear the matter as a special permit request. The other Board members noted that a town official has to deem it unsafe first and that the Board would be stretching it because different materials were used and the wall, patio and BBQ were all new construction which White Engineering confirmed via an earlier phone call began in spring of 2010.
The Board decided to vote on whether or not the special permitting process was appropriate and whether or not the applicant should be allowed to withdraw without prejudice. Robert G. wanted to discuss this more, he felt that the wall should be considered a fence which is excluded from “structures” in our bylaws as it’s there as a safety feature to keep things from falling down the steep incline to the lake. The BBQ and part of the wall and patio were confirmed to be in the 40ft setback. Cynthia did not feel it was maintenance and that a variance was the proper venue, Stan, Dean and Robert L. agreed.
A motion was made to allow Mr. Klingenstein to withdraw without prejudice as the special permit request was not the appropriate filing.
Robert L: yes
Robert G: yes
Dean: yes
Cynthia: yes
Stanley: yes
If Mr. Klingenstein decides to refile the Board agreed to waive the $300 filing fee. The hearing concluded at 3:46pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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