ZBA Meeting Minutes #10-06
Date: 7/11/11 – 25 Deerwood Park Dr Appeal
Hearing began at: 1pm
Members Present: Fred Chapman, Chair, Dean Amidon, Vice-Chair, Robert Lazzarini and Cynthia Weber, Clerk
Also present: Town Counsel, Jeremia Pollard, Charles Ferris, attorney for the abutters of 25 Deerwood Park Dr, David Ehrlich, abutter and Peter Pucilowski, attorney for Kutsher’s Sports Academy
The meeting began with Fred Chapman, Chair, explaining the reason for today’s meeting. The courts have remanded the appeal filed by the Ehrlich’s with regards to case #10-06 back to the ZBA for further findings. One of the original members of the Board that sat on hearing #10-06 is deceased and therefore there are 4 members sitting today. Jeremia read motion P14 into the record. It is optional if the Board wants to reopen the hearing to allow additional evidence into the record. If the Board allows additional evidence the hearing will have to be continued until a later date to allow notification of all of the abutters.
Fred stated that when KSA came to the ZBA originally to get its summer camp permit, conditions were made. Fred is of the opinion that when KSA came for the 2nd permit to run year round the conditions from the 1st special permit would remain in effect.
Fred stated that at this point any comments from the attorney’s present only procedural comments should be made.
Cynthia read the original findings made in 2010 for application/case #10-06 (noted below #’s 1-3). Jeremia noted that there isn’t an issue with the findings that were issued there just needs to be more of them to support the ZBA’s decision that was made. Charles Ferris noted that if the ZBA agrees to reopen the hearing his client has offered to pay for any legal notices and notifications to abutters and interested parties.
1. The applicant operates a summer camp in Monterey pursuant to a special permit issued in March 2008.
2. The relevant section of the bylaws is IV.B.2.e as amended in April of 2009.
3. This extension is sought in the Agricultural-Residential District but the camp also exists in the Lake Shore District. The use is allowed in both districts.
Cynthia then read into record the findings made at the first hearing in 2008 which were (hearing/case #08-06):
1. The site is appropriate for use as a summer camp with a long history of such use.
2. The property has not been used as a summer camp in more than two years; therefore, a Special Permit is needed to allow this use.
3. The approximate 34 acres of the camp parcel lies partially in Great Barrington and New Marlborough, but the largest part (24 acres) is in Monterey. The majority of the Monterey parcel is in the Agricultural-Residential District which would control its zoning requirements. (Monterey zoning by-law, Section V.G. Rules for Parcels in Two Districts and Section IV.B Agricultural-Residential District, 2. Uses by Special Permit Only, e. Summer Camp…).
4. The 24 acre Monterey site is appropriate in size for the anticipated use. Deerwood Park Drive provides access.
5. The facilities were appropriate for the proposed use.
Cynthia then read what the conditions were when the 1st special permit (#08-06) was issued which the ZBA assumed would be understood when the 2nd special permit was issued to extend the use to year round:
1. The Board of Health’s conditions stipulated in their letter to the Board of Appeals must be satisfactorily met.
a. The applicant must file with DEP for approval of the system that will now be a shared septic system. This is because the property was subdivided and the septic system is shared between property owners.
b. The applicant must also file for a variance with DEP for approval of the easements that have been created because of the shared system.
c. The flow can not exceed what is on file with the Board of Health (9450 gallons) with the proposed use.
2. Deerwood Park Drive, must be approved for safe passage of emergency vehicles, as well as general vehicular traffic, by Raymond Tryon, Fire Chief, Leigh Tryon of Tryon Construction, Maynard Forbes, Director of Operations. In addition, consultation by an individual with professional expertise in road design and road building to be selected by the Board of Appeals will be funded by the applicant.
3. The applicant will endeavor to acquire an additional easement/access.
4. In order to protect and promote the health, safety and general welfare of the inhabitants of Monterey the applicant agrees to rectify reasonable complaints about noise and light within 48 hours.
5. The kitchen facilities on site must be consistent with single family residency requirements of the Agricultural-Residential and Lakeshore Districts.
Peter Pucilowski was asked if the 1st 3 conditions were met and he stated that they were. He also stated that there is a 2nd easement that was acquired since that hearing (which includes Mr. Ehrlich’s property and the Appalachian Trail and land owned by the camp that is in Gt. Barrington). Mr. Ehrlich stated that he doesn’t believe that the septic improvements were made but Peter stated they are and listed them off. Charles stated that KSA built a parking lot near the Ehrlich’s easement with KSA that does affect the easement with the extended use. Charles also noted that with regards to the condition made with regards to noise complaints that was when it was summer camps and the only noise would’ve been pa system announcements.
Cynthia then read into record the conditions the ZBA made for permit #10-06:
1. The Fire Chief and Emergency Services must approve the access and safety of the road for year round access.
2. Adequate and suitable parking must be provided and flagmen should be provided for events involving 15 or more cars.
3. Non-camp activities are limited to 250 people per activity and 150 overnight guests.
4. Further winterization would constitute an expansion of use and would require further approval.
5. No activities involving firearms, ATVs or snowmobiles are permitted.
6. The non-camp activities conducted in the field house are limited to basketball, tennis and exercise classes.
Fred asked when the Ehrlich’s went into contract on their property. He could not remember the exact date but it was around the time of the 2008 hearing and he was aware of KSA operating as a summer camp not a year round camp.
Charles stated that when the Planning Board held their hearing to change the bylaws, Mr. Ehrlich was not properly notified. Town Counsel stated that the bylaw change process was properly filed. Fred stated that the Board did consider the noise and use of easement implications on the abutters when hearing the KSA cases noted above. Robert noted that he assumed all traffic would be coming in and leaving via Deerwood Park Dr. Fred stated that since noise seemed to be the biggest issue he’d like to focus on that.
Jeremia stated that the “future character of the neighborhood” has to do with what is there now not what could potentially be there. It was noted again that the Town voted in the expansion from summer camps to year round not the ZBA.
The Board voted on whether or not to hear additional evidence.
Fred: no
Robert: no
Dean: no
Cynthia: no
The Board reviewed findings suggested by Town Counsel which Robert summarized into the following:
Access to Camp and Abutter’s Properties: The only all season entrance to the KSA property is via Deerwood Park Dr., a graded, gravel road privately owned by KSA, but one that the two abutters have “right of way” privileges upon. Deerwood Dr. is a single lane road with turnouts to allow cars traveling in opposite directions to pass one another. The abutters fear that the increased usage of the road may impair their access. Despite the concerns of the abutters, the Board concluded that substantive impairment of their access is not likely. The distance from entry onto Deerwood Park Rd. to the first cluster of 60 parking spaces is less than ¼ mile. Beyond that point, Deerwood Park Dr. is likely to come into play only when the camp is operating at maximum capacity. Winter weather conditions will accentuate the deterioration of the gravel road, but KSA has both a legal obligation and a business imperative to maintain the road in passable conditions for both the abutters and KSA
clients. The Board’s conclusion is further supported by a comparison of the KSA off-season use business model (no more than 250 day guests at any one time; no more than 150 overnight guests) verses their summer camp usage (350 campers, day workers and staff every weekday). Finally, the experience of the previous owner of the camp that operated it as an all-season facility without incidents of access impairment also supports this conclusion.
Infringement of Abutter’s Privacy: The KSA property is large (34 acres) with a terrain that is rough, hilly and, in places, heavily wooded. Although the abutters’ property physically abuts the KSA property, their dwellings are a considerable distance from the camp sites (lodge and field house) where clients are likely to congregate and engage in planned activities. Mr. Ehrlich’s dwelling is approximately 1000 ft from each structure; Mr. Caron’s dwelling is more than ¼ mile from each structure. The abutters’ dwellings are not primary residences and both are used only incidentally. Neither abutter can see the lodge or field house from their dwellings. Thus, the distance, the topography and the heavy vegetation all minimize serious noise, odor or light pollution
in the vicinity of the dwellings. A major automobile parking area (60 spaces) is located near the entrance to the camp at the lodge. Thus when the camp functions at half maximum census or less, the guests are likely to park near the lodge at the first available spaces. In these cases, the abutters’ dwellings also will be shielded from the lights, noise and confusion that often attend parking lots. However, other parts of both abutters’ properties will experience some noise and light pollution, depending on the KSA client number and activity.
Limitation On The Number of Guests: The level of KSA activity is very seasonal, with the summer being the highest. Summer camp use is already fully permitted, and involves about 300 campers and 40 staff. Winter activity will be the lowest since much of the facility is not winterized. The KSA facility has 19 cabins, but only 8 are winterized. The lodge, the only building with a kitchen/food service capability, is unheated except for some small space heaters. The field house is also unheated. It is very unlikely that more than 100 guests (the maximum capacity of the 8 winterized cabins) will over night at the facility. Further winterization or the installation of heating to other buildings should require additional review and special permitting since it would expand
the capacity for overnight guests.
The “shoulder seasons” (late spring, early fall) could, if not restricted, approach the summer rate. The Board agreed with limitations that were suggested by one of the abutters and the KSA: A maximum of 250 day guests and 150 overnight guests and not more than 10 wedding parties.
Cynthia suggested making reference to the previous use of the site was traditionally used as a camp by the previous owners and the permitted use is consistent with the previous use. Jeremia stated that a finding with regards to traffic and that an undue burden would not be made on the abutters with approval of the special permit. Jeremia noted that you do not need to make a finding with regards to the Town accepting the year round bylaw as it is already implied having been voted on by the town and accepted at a town meeting and subsequently by the Attorney General.
The following findings were made:
1. The History and Suitability of the Site for Camping: The site of the proposed year round camp was part of a 150 acre tract called “Turner’s Landing” that opened as a camp and picnic area in 1877 and has been used for summer camps ever since, with only a few interruptions. The property has lakefront and lake access for water sports, cleared areas and a field house for team sports, a lodge for dining and meetings and small cabins for residences. Clearly camping and outdoor activities including water sports have been the dominant characteristic of the neighborhood for 134 years. It is an ideal site for a camp because it is remote, adjoins Lake Buel and the Appalachian Trail and has only a few abutting residences. Thus the Board concludes that continued camp
activities on a year round schedule at this site would not be substantially more detrimental to the neighborhood or the community at large. Reasonable restrictions and the mutual cooperation of the camp owners and abutters will easily correct any infringement of abutters’ privacy due to noise, lights or traffic that might accrue from year round operation, as detailed below.
2. Infringement of Abutters’ Privacy: The KSA property is large (34 acres) with a terrain that is rough, hilly and, in places, heavily wooded. Although two residential properties physically abut the KSA property, the dwellings are a considerable distance from the campsites (lodge and field house) where clients are likely to congregate and engage in planned activities. Mr. Ehrlich’s dwelling is approximately 1000 ft from each structure; Mr. Caron’s dwelling is more than ¼ mile from each structure. The abutters’ dwellings are not primary residences and both are used only incidentally. Neither abutter can see the lodge or field house from their dwellings. Thus, the distance, the topography and the heavy vegetation all minimize serious noise, odor or light
pollution in the vicinity of the dwellings. A major automobile parking area (60 spaces) is located near the entrance to the camp at the lodge. Thus when the camp functions at half maximum census or less, the guests are likely to park near the lodge at the first available spaces. In these cases, the abutters’ dwellings also will be shielded from the lights, noise and confusion that often attend parking lots. However, other parts of both abutters’ properties will experience some noise and light pollution, depending on the KSA client number and activity. Finally, the Board notes that the camp has a remaining condition originally attached to the earlier special permit authorizing use as a summer camp. It requires that “In order to protect and promote the health, safety and general welfare of the inhabitants of Monterey, the applicant agrees to rectify reasonable complaints about noise and lights within 48 hours.”
3. Access to Camp and Abutter’s Properties: The only all season entrance to the KSA property is via Deerwood Park Dr., a graded, gravel road privately owned by KSA, but one upon which the two abutters have “right of way” privileges. Deerwood Park Dr. is a single lane road with turnouts to allow cars traveling in opposite directions to pass one another. The abutters fear that the increased usage of the road may impair their access. Despite the concerns of the abutters, the Board concluded that substantive impairment of their access is not likely. The distance from entry onto Deerwood Park Rd. to the first cluster of 60 parking spaces is less than ¼ mile. Beyond that point, Deerwood Park Dr. is likely to come into play only when the camp is operating at
maximum capacity. Winter weather conditions will accentuate the deterioration of the gravel road, but KSA has both a legal obligation and a business imperative to maintain the road in passable conditions for both the abutters and KSA clients. The Board’s conclusion is further supported by a comparison of the KSA off-season use business model (no more than 250 day guests at any one time; no more than 150 overnight guests) versus their summer camp usage (350 campers, day workers and staff every weekday). Finally, the experience of the previous owner of the camp that operated it as an all-season facility without incidents of access impairment also supports this conclusion.
4. Parking for Camp Guests: Another concern expressed by the abutters was that the volume and character of the vehicular traffic during the off-season (winter, spring and fall) would be different from that experienced in the summer season , and consist mostly of cars rather than buses. The Board finds that the 136 parking spaces set aside for camp guests during the off-season will certainly accommodate the maximum guest occupancy allowed during the off-season (250 day guests; 150 overnight guests). It should be noted that the limit of day and overnight guests placed as a condition to this special permit was jointly recommended by the camp owner and one of the abutters.
5. Limitation On The Number of Guests: The level of KSA activity is very seasonal, with the summer being the highest. Summer camp use is already fully permitted, and involves about 300 campers and 40 staff. Winter activity will be the lowest since much of the facility is not winterized. The KSA facility has 19 cabins, but only 8 are winterized. The lodge, the only building with a kitchen/food service capability, is unheated except for some small space heaters. The field house is also unheated. It is very unlikely that more than 100 guests (the maximum capacity of the 8 winterized cabins) will over night at the facility. Further winterization or the installation of heating to other buildings should require additional review and special permitting
since it would expand the capacity for overnight guests.
The “shoulder seasons” (late spring, early fall) could, if not restricted, approach the summer rate. The Board agreed with limitations that were suggested by one of the abutters and the KSA: A maximum of 250 day guests and 150 overnight guests.
The above mentioned findings which were unanimously approved will be signed by the Board at their next meeting and then submitted back to the court to make its own findings.
The meeting concluded at 2:30pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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