ZBA Hearing Minutes – 149 Hupi Rd
Date: December 15, 2010
Variance Hearing began at: 3:02pm
Members Present: Robert Lazzarini, Chair, Fred Chapman, Vice-Chair, Dean Amidon, Clerk, Cynthia Weber, and Stanley Ross, Alternate
Also present: Shannon Boomsma of White Engineering, Tom Ingersoll and Stephanie Barlow of Webster-Ingersoll
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 Planning Board, Conservation Commission, and Board of Health. The part of MGL that sets the standards for granting variances was read.
At this point, alternate, Stanley Ross arrived (3:20pm) and the letters were reviewed from the boards noted above.
Fred Chapman asked about the previous condition of the land and how high the pre-existing asphalt looked like (height, etc). Shannon showed a map of what has been done and stated that the property has been worked as it didn’t have a natural topography. All of the impermeable asphalt was removed and replaced with porous materials. Bob noted that the property has a 14% grade.
Shannon stated the water’s direction was not changed; the runoff was diverted to the soils to absorb. Shannon stated that the BBQ was shown on the original plans but wasn’t labeled. Bob stated that what was missed was the 40ft setback with regards to our zoning bylaws. Shannon didn’t feel that this wall created a negative impact on the neighborhood. Bob stated that since the wall is not load bearing and prevents people from falling over the edge the Board could justify it as a fence, however no excuse can be found for the BBQ.
The bylaws with regards to definitions and the 40ft setback were read and discussed. Everyone agreed that the work done to the wetlands is amazing and has definitely approved the property. The wall and the BBQ are the issue because they are structures in the 40ft setback.
The following findings were made:
1. The property is non-conforming because of insufficient road frontage, insufficient lot size, and because walkways, walls and outbuildings encroach upon the set-backs and the wetlands. All these non-conformities have a grandfathered status.
- The appellant applied for and received permission from the Monterey Con. Com. in Oct 2009 to replace about 900 linear feet of asphalt walk-ways with water-pervious walkways, to landscape the wetlands and to install where necessary swales, retention basins and drains to control water flow and run-off through the wetlands and into the lake.
- The construction plans contained two new structures that are not grandfathered and encroached on the 40 ft setback from the lake: a knee-high stone wall and a barbecue. Both the knee wall and the barbecue are within the previously asphalted area. Work was begun and the wall and barbecue constructed before the violation of Monterey Bylaws was recognized.
- The Board treated this appeal for a variance as if it preceded the actual construction of the wall and barbeque and evaluated it without prejudice for the unauthorized construction of the wall and barbeque. The Board acted under the authorization of the Monterey Bylaw Sec. IX.B.3.
2. The need for a variance is attributed to unique soil conditions and topography: The portion of the property relevant to this appeal is slightly larger than 0.5 acres and extends from the top of a hill down to Lake Garfield. It has an average slope of 25.5 % over its 220foot length, but attains a slope of 37.5 % over its steepest 60foot long portion. This land is almost entirely Wetland and it has several seasonal streams that course down its slopes to the lake. This combination of steep slope, wetlands and seasonal streams is seldom found in the Lake Shore district (the district of interest in this Appeal). Maps produced by The Berkshire Regional Planning Commission, an independent municipal consultant, or the US Governments GIS maps showing wetlands do not reveal any similarly
constrained parcels within the Lake Shore District.
The parcel has a level shelf like area about 30 feet from the lake that has been fashioned into a patio area. The area is bound on the descending (lake) side by the newly build, stone knee-high wall and the barbeque. The wall functions as a fence; it is a masonry fence designed to prevent accidental falls down the 30foot embankment to the lake. A minority of the Board felt that, as a fence-like structure, it qualifies as an exemption to Monterey’s rear setback requirement. Four of the five Board members felt that it was an integral part of the project design and an important safety element protecting against accidents. It could not be moved and still carry out that function. Accordingly, the Board approved the variance for the wall.
The masonry barbeque, however, could be placed outside the setback area, but still within the MCC approved reconstruction area, and carry out its function. Therefore its placement is not seriously constrained by the unique soil conditions. A variance for the barbeque was denied and it must be removed or relocated so that it doesn’t infringe on the setback.
3. Denial of variance would cause substantive hardship to the appellant: The appellant has already invested substantial amounts of time, effort and resources to this project. A denial of this appeal would necessitate the costly removal of the wall and barbeque and either substituting esthetically inappropriate wooden or wire fencing (allowed structures in setbacks) or abandoning the concept of a patio area altogether. In either case the appellant would suffer additional financial hardship and would be denied the full enjoyment of his property.
4. No substantive negative impact on the neighborhood and town: The area surrounding the wall and barbeque are partially concealed from view by both existing vegetation and the topographic character of the landscape. The appellant has agreed to additional planting with native vegetation that will further conceal the wall. Thus, the knee wall will be shielded year-round from most views from the lake and from neighbors’ properties. The wall is constructed of loose (un-mortared) fieldstone and does not appreciably divert water run-off or affect water adsorption by the underlying soil. This project does not involve any sanitation facilities or plumbing. Thus, the main objectives of the 40foot rear setback bylaw for the Lake Shore District are met by this project.
The lakefront’s natural vistas are maintained, the water runoff into the lake are limited, and the visual intrusion of man-made structures into the neighbors’ fields of view are limited. This project embellishes the Town’s natural beauty and sets a unique example for others -- rather than disdaining the wetlands and marginalizing them, the appellant has embraced them and celebrates their natural beauty. This wetlands landscaping will be an asset to the Town.
It was agreed that the BBQ functions as part of the wall but that it could be moved. Stan felt that the wall was a fence because it did not have footings. Fred did not agree that this could be considered a fence and gave an example of flash cards and if this was shown the person identifying it would not call it a fence. Bob stated it was a “masonry fence”.
Fred did not feel that this situation met the standards for granting a variance. Stanley stated he made several site visits and considers it a fence. Dean considers it a wall and the BBQ can and should be moved. Cynthia also felt that it was a wall/structure. Bob noted for the record that none of this affects any of the neighbors.
Tom suggested that bushes could be planted on the lake side of the wall to cover it to minimize the impact of it. The Board didn’t feel this helped as the wall was still an illegal structure built in the 40ft setback. Cynthia felt that the topography of the land was unique. Fred noted that if they had given the proposal prior to building it, it would have been a true fence not what is there.
The Board voted that the wall was a structure. A vote was taken if a variance would be granted:
Bob L. - yes
Dean – yes
Cynthia – yes
Fred – no
Stan – yes
Cynthia felt that the BBQ was part of the structure and therefore would be granted under the variance. She stated that the completed plan was superior to what was there previously. A vote was taken on whether the BBQ was separate and should be moved:
Bob L - yes
Dean – yes
Cynthia – no
Stan – yes
Fred - yes
The Monterey Board of Appeals voted, as detailed below, to GRANT the application, subject to the following conditions, safeguards, and limitations on time or use, if any:
1. Additional landscaping along the southwestern face of the wall. Native plants should be added along its face, so that it is effectively screened from the neighbors’ view.
2. The existing barbeque must be removed and the discontinuity in the wall left by it removal may be patched.
The hearing concluded at 4:27pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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