ZBA Hearing Minutes – 9 New Marlboro Rd
Date: 3/22/11
Hearing began at: 3.00pm
Members Present: Robert Lazzarini, Chair, Fred Chapman, Vice-Chair, Dean Amidon, Clerk, Stanley Ross and Jonathan Levin, Alternate
Also present: Jeremia Pollard, Town Counsel, Wayne Burkhardt, Select Board member, Alexandra Glover, Attorney for the Lindsay’s, Charles Ferris, Dennis Downing, Stephen Moore, Wendy Jensen, Peter Poirier, Brooke Walsh and Cynthia Weber
The hearing began with Robert Lazzarini, Chair, explaining the hearing process and giving a brief history on the hearing when special permit #10-01 was granted. Robert asked to deal with the request to withdraw application #11-05 prior to dealing with the other issue at hand.
A motion was made to allow the applicant to withdraw without prejudice application #11-05. Jeremia stated that this will leave a much cleaner record to move on with the requested amendment and the reason for today’s hearing. Alexander Glover, attorney for abutters stated that she also felt that this was the proper procedure to follow. Stephen Moore asked if by allowing the town to withdraw, if that would have any ramifications on the ZBA’s prior decision that the proposed dog park was a use by right. The motion was then seconded and unanimously approved.
Dean Amidon, Clerk, then 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 also letters from concerned abutters read into record.
Charles Ferris inquired as to if the letters in support of the dog park which were submitted with application #11-05 were going to be read into record. The Board stated that they were not because that application was withdrawn. The Board stated that this application is entirely different and it is to amend special permit #10-1 not to vote on a proposed dog park. Robert noted that there were approximately 26 emails submitted in favor of the dog park at a previous hearing.
Jeremia Pollard, Town Counsel was present to review the application with the Board. The Town is asking that the condition on special permit #10-01, “no other municipal uses are approved” be removed as it is problematic. Jeremia stated that the WMH will gives the Select Board unfettered control of conditions and regulations for any municipal use with regards to the building and recreational uses with regards to the remainder of the property and Bally Gally would be used for the caretaker of the property.
Fred asked if the lease with the Town and the Friends of Wilson McLaughlin allowed anything that would prevent the Select Board from regulating the activity. Wayne Burkhart stated that the lease was a fairly tight document and that the WMH committee has worked with the Board very well. Jonathan asked with regards to the will; speaking to the farmhouse and the acreage, what part the ZBA was dealing with. Jeremia stated that the ZBA was dealing with the land. Jonathan noted that the will notes that the land must remain in its natural condition.
Jeremia stated that he can not find any documentation that would support the dog park being a recreational use but by all aspects if it looks like a duck, it’s a duck. A dog park and the activities that occur on the property would appear to be recreational. Jonathan wanted to know if the ZBA could act on something that wouldn’t be in accordance with the will.
Fred asked if the current lease allowed something that the Select Board didn’t want to take place, would they prevail. Fred feels the applicant here is really the WMH committee. Jeremia felt that the Select Board has a prevailing position at least with the house and curtelage. Fred stated that condition was a blanket restriction that was so that if any other uses were desired the applicant would have to come see the Board and make their presentation.
Alexandra Glover stated that if anyone had a problem with special permit #10-01 it should have been properly appealed at that time. She felt that removing the condition requested would be a major step backward.
Wayne stated that the Select Board have no intention of forcing something that the town doesn’t want but they also aren’t going to move forward with something just because it is a use by right.
Stephen Moore asked if the Select Board has the authority to decide what can go on the property and how it will be regulated, how does that go against the “no other municipal use is approved”? What if something comes up 3 years from now and the Board decides to pursue a use such as a hockey rink, dog park, etc and they decide not to take in any input from abutters since the will gives them that authority and it wouldn’t have to go before the ZBA.
Dennis Downing, concerned citizen and advocate for the proposed dog park stated that the Select Board are the custodial people in charge and if the bylaws state a use is by right, the Select Board can make decisions for any town property. He stated that a dog park is a municipal, recreational use which is a use by right according to our bylaws. He felt that the town is in support of the dog park and that is proven through the overwhelming vote to approve the funds to construct the structure.
Fred stated that the WMH property is not equivalent to any other town owned properties.
Charles Ferris stated that the town will have the ultimate authority over the project. He did not feel that the town was losing control over the land. Charles stated that it was his understanding that the no other municipal uses conditions was to prevent municipal uses such as a salt shed or something out of character for the property. Charlie stated that the WMH committee has come out in support of the dog park being constructed on the property.
Robert then read the conditions from the notice of decision for special permit #10-01 which were:
1. The “municipal uses” granted in this decision are solely those necessary for the establishment and maintenance of a community center and garden. No other municipal use is approved.
2. Municipal uses are to be exercised only on that portion of the parcel that lies within 600 feet of its northern-most corner at the intersection of Main Rd. and New Marlboro Rd.
3. The balance of the land is to be used for municipal recreational purposes as indicated in Edith Wilson’s will. (Attached exhibit ”D”)
He also wanted to point out that the ZBA counsel (Mark Bobrowski) told them that they can amend, add, restructure, etc the conditions of permit 10-01.
Alexandra Glover wanted to address the issue as it stands now that there are 2 structures on the property, a rental unit (Bally Gally) which is residential and the WMH house which permit #10-01 allowed as a municipal use building. She stated that Monterey’s bylaws do not explicitly allow multiple uses on the property. She also stated that the application submitted for today’s hearing was incomplete and therefore can not be acted upon. She stated that there was no factual information included. Robert felt that it is implied that the information would be the same as what was on the application for special permit 10-01 which has already been addressed. She stated that is correct with regards to the Community Center and Community Garden use, it didn’t address a dog park use. She felt that the underlying problem isn’t being addressed; why is the dog park being proposed? She stated it will be disruptive to abutters with traffic and noise issues and these need to be addressed. She
also stated that it needs to be clear who will be running the park, addressing problems, etc. Wayne stated that the issue is who is going to hear the issues of the proposed dog park; he stated that it is the Select Board’s job to hear and deal with the concerns not the ZBA. She stated that the dog park wouldn’t be limited to Monterey; anyone could attend come to from all over. She listed some suggested regulations to have if the dog park were to be approved.
Robert stated that the ZBA is not here today to hear about a proposed dog or vote to allow a dog park as they feel that is a municipal, recreational use by right. He then explained his intentions when the Board created the condition “no other municipal use is approved”. It was supposed to prevent other municipal buildings or structures. He stated that the Select Board was the responsible authority to hold hearings, hear out the public and decide on a dog park and how it would be regulated and by whom if it were approved.
The Board allowed Alexandra to submit proposed conditions. Robert stated that everyone should be aware that the proposed dog park if approved by the Select Board it may or may not be built on the WMH property; it may end up on another town property.
Fred stated that he wasn’t convinced that a dog park was recreational; sure it is for the dogs but not in the “recreational” sense that is associated with playgrounds, etc. Fred felt that the condition protects the town from the unknown.
Dean Amidon asked where the driveway would be located? Wayne stated that this is a matter of controversy right now and that the BRPC is trying to help us with some traffic and safety studies. There are various opinions and it is undecided right now. Dean had an objection to one location and Wayne felt this wasn’t the proper forum to discuss this.
Stephen stated that the Planning Board required a parking plan in there letter and he wanted to know if that was only if a dog park was approved. The Board stated that it was a request only. Brooke Walsh stated he was not in favor of the dog park and that there are too many unanswered questions about the whole thing.
Jeremia stated that even though the prior permit stated “no other municipal uses are approved” it doesn’t make it ok to leave it in there as it doesn’t belong there. Alexandra disagrees with the greatest respect the opinion given by Town Counsel. She stated it is currently a restriction on the property. Jeremia stated that the condition doesn’t belong but can be amended. He suggested that municipal uses are allowed by right on the land.
At this point since there weren’t any other questions or comments, the Board voted to go into their deliberative phase. A motion was made to close the public hearing which was seconded and unanimously approved.
Dean stated that he is against granting a special permit since the location of a driveway isn’t determined. If it is going to be located where the gardens are, that is not a safe location. He stated that since all the immediate abutters are against it we should vote against it. Robert noted that we were not voting on a dog park/driveway, to which Dean replied, “We’re not?” Robert read the request in the application as to what they are voting on which is to amend permit #10-01 to allow a proposed dog park to be constructed on the Wilson McLaughlin property and/or to remove the condition that states “no other municipal use is approved”. If what is decided today allows a dog park use, the Select Board will still need to regulate it.
Fred made a motion to vote on whether or not the ZBA has jurisdiction on if a dog park should be authorized by special permit on 9 New Marlboro Rd. The motion was discussed but not seconded and therefore failed.
The Board discussed removing the condition “no other municipal use is approved”. Jonathan stated he was against removing this. Robert felt that the conditions attached to Special Permit 10–01 when it was first granted were problematic in that they suggest restrictions that weren’t intended. They need to be replaced with a clear, precise set of conditions and suggested the following to be discussed amongst the ZBA members:
1. The “municipal uses” granted in this decision are solely those necessary for the establishment and maintenance of a community center and garden.
2. The “municipal and public service building” authorized by this special permit is the building described in the application with renovations. Further enlargement of the existing building by 50% or less of its square footage is allowed. Larger alterations or additional municipal buildings or tents shall require modified or additional special permits.
3. Community center uses are to be exercised only on that portion of the parcel that lies within 600 feet of its northern-most corner at the intersection of Main Rd. and New Marlborough Rd. The balance of the land is to be used for municipal recreational purposes as indicated in Edith Wilson’s will. (Attached exhibit “D”)
4. All indoor and outdoor community center events hosted or sponsored by the Town shall be permitted. Private events, both indoor and outdoor, involving 30 or fewer persons, may also be permitted at the Town’s discretion.
5. All outdoor meetings and events must end by 9 PM. All outdoor floodlights and all amplified sound, whether indoors or outdoors, must cease at that time.
Alexandra Glover asked to point out a legal issue and stated that what was being discussed by the ZBA was not at all within the scope of the application or publication. Wendy Jensen asked if new conditions were being made shouldn’t the abutters have a right to comment? It was noted that the Select Board’s intentions in their application was to do one or the other, to amend permit #10-01 to allow a proposed dog park to be constructed on the Wilson McLaughlin property and/or to remove the condition that states “no other municipal use is approved”.
Robert stated that the ZBA’s legal counsel, Mark Bobrowski has stated the ZBA can modify, add, change, etc all the conditions of special permit #10-01. Town Counsel did not agree nor did other attorneys present.
Robert is concerned that if that condition is removed it will allow uses that would not have been approved otherwise.
It was suggested to take a straw poll on adding to allow a proposed dog park to be constructed on the Wilson McLaughlin property and then how many would favorably consider removing the offensive condition.
Removing condition: all were opposed to this. Approve a dog park: all were opposed.
The ZBA suggested that the Select Board come back with a more open application.
A motion was made to deny the request to amend special permit #10-01 to allow a proposed dog park to be constructed on the Wilson McLaughlin property and/or to remove the condition that states “no other municipal use is approved”. The motion was seconded. The vote was unanimous to deny the request to amend permit #10-01 as requested.
The hearing concluded at 4:56pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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