ZBA Hearing Minutes
Address: 11 Seven Arts Rd
Date: 9/18/12
Hearing began at: 3:11pm (Executive Session held prior ran over)
Members Present: Fred Chapman, Chair, Cynthia Weber (Co-Clerk), Robert Lazzarini, Stanley Ross and Jonathan Levin (Co-Clerk)
Also present: Jeremia Pollard, Town Counsel, Ian Jenkins (ZBA Alternate), Jeff & Karen Kirson, Scott Jenssen, Contractor, and Attorney John Gobel
The hearing began with Fred Chapman, Chair, explaining the reason for reopening this hearing (remanded back to the Board by the court) and then Jonathan Levin, Clerk, read the legal notice (which was posted for 2 consecutive weeks in the Berkshire Record and at the Town Hall) and the one abutter letter in favor of the project being approved. Since the application was the exact same as previously submitted and denied by the ZBA, the other Boards were not asked again for their opinions however all abutters were notified via certified mail of the hearing date.
The Kirson’s Attorney, John Gobel made a presentation regarding the alteration for which they require a special permit. The building is located in the Lake Shore district. He stated that the project is a 99% increase in habitable square footage which they understand is more than our bylaws allow but Attorney Gobel feels that as proposed it is not a detriment to the neighborhood nor does it become more non-conforming. In his opinion the use is what makes this property non-conforming (6 detached dwellings on one lot) but Attorney Gobel confirmed that this use is not changing.
The proposal includes updating the septic system to meet current Title 5 standards.
Attorney Gobel provided the Board with letters in support of the project from two of the neighbors as well as an updated summary of why this permit should be approved. Jeff Kirson plead his case and asked for consideration from the Board in approving the proposal.
Jonathan stated that what was troubling him with regards to the Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011) case (which is the new case law that the Superior Court has said may allow the ZBA to now approve the special permit request provided that the ZBA makes a determination that the proposed change would not be substantially more detrimental to the neighborhood) was that in Gale it was a single family home on one lot and this is 6 family homes on one lot. It was clarified that the land that these 6 houses are built on is owned jointly by all the owners in a condominium relationship but that all the houses are individually owned.
There was discussion on the process that was followed for the Gale case and how it really cannot be applied here because Gale was a single family and this proposal is not. Attorney Gobel felt that the only non-conformity was the use. Jon stated that any increase on any structure on the property is an increase to the non-conformity because 6 residences on one lot is not an allowed use under our bylaws.
Bob felt that of all 6 structures meet the necessary setback requirements with the exception of one unit that is too close to the water. It was also noted that our bylaws do not address condominiums.
At this point the Board closed the public portion of the hearing as there were no further presentations from the applicant.
Bob asked the Board to consider the following which he based on his research of case law. He said he used the framework recommended by the Appeals Court in determining relevant findings and that the Board should determine what were all the current and proposed non-conformities and then determine whether or not it becomes more non-conforming and/or more detrimental to the neighborhood. Bob found that it was a 9.3 acre lot located in both the AR and LS districts and it is non-conforming due to the 6 structures on one lot (all other ZBA members concurred with this). He went on to state that he feels they have grandfathered status because the lakeshore encroachment and use non-conformity were both in existence prior to the creation of our bylaws. Bob also provided the Board with calculations he made
based on the proposed plans of finished space and roof height. Bob provided everyone with supporting documentation regarding the neighborhood (minus the Camp Half Moon property) and calculations he made from the Assessor’s data on the average dwelling size in his pre-determined neighborhood. Based on Bob’s findings (it was noted and asked to be put into the record that these were Bob’s conclusions) he felt that the proposal was in harmony with the neighborhood.
Jon could agree that there were distinguishing factors here but he did not agree with Bob that the proposed square footage increase should be spread across all the properties and therefore our 25% increase cap wouldn’t apply. Jon felt that the ownership of the land was irrelevant and that the issue at hand here is there are 6 structures on a single lot.
Fred asked the other members to vote on if this proposal increases the non-conforming nature:
Jon – Yes
Stan – No
Bob – No
Fred – Yes
Cynthia – Yes
Fred asked the other members to vote on if this proposal was substantially more detrimental to the neighborhood:
Jon – No
Stan – No
Bob – No
Fred – Yes
Cynthia – Yes
Due to a lack of necessary votes, the permit was denied.
Cynthia explained that she was not persuaded based on today’s presentation and discussions to change her mind from her original vote in 2011. She feels that the portion of increase in living space is excessive considering the comparable properties in the neighborhood. Stan argued that there were 2 substantially larger properties in the neighborhood. Fred explained that this proposal was a “tipping point” as this proposal is almost doubling in size.
Attorney Gobel argued that the non-conforming nature question should have distinguished what the non-conformity was (lot, structure or use) and should be asked as three separate questions. Town Counsel confirmed that it was not necessary to rephrase and re-ask the question seeing as the Board in the past has not ever phrased the question that way.
More discussion ensued and a comment was made by Fred regarding the Planning Boards comments to the ZBA from the original application in 2011 which Scott Jenssen requested be noted in the minutes: Fred felt that the Planning Board’s letter from the 2011 hearing was incorrect.
The Board made the following findings:
1. Said land parcel is a single, 9.34 acre lot that resides in both the Agricultural- Residential and Lake Shore Districts.
2. Because the single land parcel contains 6 individual, detached dwellings on one lot it is non-conforming with Monterey Bylaws Section V.A. (2006 Edition) Unit #2 as it exists and as proposed does not violate any setback requirements of the Monterey Zoning Bylaws.
3. This non-conformity (multiple dwellings) was established before the Monterey Zoning Bylaws were enacted in 1974 and therefore has grandfathered status.
4. The applicant proposes to enlarge unit #2 by 1,057 square feet of finished space without increasing the height of the building or creating any new dimensional non-conformities.
5. The proposed modification of Unit #2 would yield a dwelling of 2,391 square feet of finished space. The average dwelling size of the immediately adjacent neighborhood of 14 residences is 2,339 square feet. The average size of the Seven Arts dwellings is 1,885 square feet of finished space.
6. A majority of the Board found that the proposed project increases the non-conforming nature.
7. The Board received 3 letters from abutters in support of the project and no letters opposing the project/application.
A motion was made to close the hearing which was seconded and approved unanimously. The hearing concluded at 5:00pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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