ZBA Hearing Minutes
Date: 1/19/11 – 9 New Marlboro Rd.
Hearing began at: 3pm
Members Present: Robert Lazzarini, Chair, Fred Chapman, Vice-Chair, Dean Amidon, Clerk, and Stanley Ross
Also present: Town Counsel, Jeremia Pollard, Building Commissioner, Donald Torrico, Charles Ferris, Dennis Downing, Wayne Burkhart, Select Board member and representative for the Town, Cynthia Weber, Wilson McLaughlin House member, Wendy Jensen, Stephen Moore, Joe Baker, Wilson McLaughlin House member, Michael and Maureen Banner and Joel and Alice Schick
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 Planning Board, Conservation Commission, and Board of Health. There were several emails (20) received in support of the dog park which were not read but are available in the record to view.
Jeremia Pollard, Town Counsel stated that even if it is determined that it is a by right matter, the special permit issued for the Wilson McLaughlin House in 2009 had very specific conditions granted that only allowed 2 uses (garden and community center).
Charlie Ferris stated that money was allocated at town meeting and later it was determined that the use was not allowed by right and it was suggested that a special permit was needed. He stated that our zoning bylaws allow this by right.
Jeremia read into record the condition from the previous special permit that did not allow any other municipal uses other than a community center and garden. Any that any other uses would need approval by the ZBA, which is the reason for today’s special permit application.
Donald Torrico stated that it was his determination that the applicant needed to go before the Board because of the conditions placed on the previous special permit. Abutters have a right to appeal a dog park due to noise and other things that could affect them and the neighborhood. He advised the proponents of the dog park this to save the town any future monies if there were abutters to disagree with the permit. He suggested amending the previous special permit to include the use of a dog park in addition to the garden and community center. He noted that there is still the issue that the towns general bylaws do not allow dogs in parks and that would need to be changed at a town meeting.
Robert Lazzarini stated that the original intentions with the conditions on the first permit were to prevent other “municipal or public service buildings or structures” uses unless examined by the ZBA and found to be in harmony with the neighborhood. He stated that those conditions were specific to that application being reviewed and did not infringe upon any uses by right and that they were independent. He also stated that there was a Board of only 4 today which would require a unanimous vote to be approved if the special permit request goes forward. The applicant would be allowed to withdraw without prejudice if they so desired.
Fred stated that if you contradict the conditions as written of the previous permit you jeopardize the rights of the community center.
Jeremia stated that there should be a special permit process as there is a right for people to appeal the ZBA decision. Jeremia asked if the counsel that was advising the ZBA was aware of the previous permit and its conditions. Robert stated that the attorney representing the ZBA was not made aware of those documents.
It was noted that the biggest problems with the dog park would be lights if they were to be installed and the noise from people and dogs.
Wayne Burkhart, Select Board member stated that the previous conditions may have over complicated this situation. Be that as it may, that decision was made to make sure that we did not involve degradation of the neighborhood. Since those conditions were made he does not feel it is a matter of right anymore. Bob stated that the conditions placed before were to prevent uses such as another municipal building being constructed or town trucks being stored there, etc. He stated it did not restrict the rights of ownership.
Stephen Moore asked if the previous special permit applied to the entire property, Bob stated that it applied to a specific area (this was corrected later, the previous permit does apply to the entire property). It was then asked if the dog park was in that area; it is partially. Stephen then asked what was the damage in going forward with the special permit and Bob stated there was a risk of it not being granted. Stephen stated that was prejudicial and the process is there to find out what is appropriate and what isn’t. The middle of the dog park is currently within the 600feet noted in the first special permit.
Dennis Downing, proponent of the project stated that if the Board determines it is a by right use and they declined to proceed with the special permit process that would mean they decline jurisdiction.
Jeremia stated that you have to address the previous permits conditions. Jeremia stated that he has every reason to want this designated as a recreational use as it protects the town. He accepts that the intent of the conditions were not to exclude a dog park but there are procedures that need to be followed since they were made.
Joe Baker, Wilson McLaughlin House committee member stated that the application for the prior permit was for the entire property but there were restrictions on certain parts of the property which were restricted to certain uses. The WMH Committee has felt that the dog park fell within the definition of a community center type use but the Zoning Enforcement Officer and Select Board did not agree. The WMH committee is in favor of a dog park on the property.
The Board voted on whether or not they had jurisdiction, whether it was a matter of right or whether it needed a special permit. Dean, Robert and Stanley felt that it was a matter of right and Fred voted that a special permit was necessary. Since this was a vote on whether it fell under their jurisdiction a super majority vote was not needed and the applicant was asked whether they wanted to withdraw without prejudice. Jeremia stated there wasn’t a need to withdraw without prejudice since it was determined that it was not the ZBA’s jurisdiction. Fred asked if this decision was appealable and Jeremia stated it was.
The hearing adjourned at 3:55pm.
Submitted by
Melissa Noe, Inter-Departmental Secretary
| 
