ZBA Hearing Minutes
151 Hupi Rd
Date: 4/30/12
Hearing began at: 3pm
Members Present: Fred Chapman, Chair, Cynthia Weber, Clerk, Robert Lazzarini, Stanley Ross and Jonathan Levin
Also present: Muriel Lazzarini, Donald Torrico, Shawn Leary, Attorney for the Kaplans, Carl Audia, Builder for the Kaplans and Peter Vallianos
The hearing began with Fred Chapman, Chair, explaining the hearing process and then Cynthia Weber, 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, Board of Health and abutters.
Shawn Leary, Attorney for the Kaplan’s stated that while renovations were being made to the Kaplan’s property a series of mistakes were made which resulted in construction of a deck into the setback. Carl Audia explained that property line stakes were maintained throughout the project, however setback stakes were not. The surveyor was asked to come back to reconfirm that the property stakes were indeed in the correct place. After the project was finished the surveyor was called back to provide a certified site plan which determined that there was an error made and the deck was built into the setback.
Carl provided a letter from White Engineering regarding the extensive and expensive drainage plan designed for this property for the treatment of storm water and a possible aquifer that is coming through the property which supports their request to approve the special permit so that construction to move the deck wouldn’t interfere with the aquifer.
The Kaplans did try to work with the neighbor to make a land swap to eliminate the setback issue but ultimately did not want to burden the abutting neighbor with the issues it would cause with them and their property rights.
Shawn went on to cite recent case law that supports the Kaplan’s request for a special permit. She stated that if the Board were to not approve the request and require the Kaplan’s to remove the 7inch encroachment, it would be very costly as a crane would be necessary due to the topography of the site.
The Board asked what materials the deck was made of and if the project renovations in whole were made were by special permit. Donald Torrico stated that the Architect of Record, Pamela Sandler, submitted documentation when the building permit was applied for that supported that a special permit wasn’t necessary which the Board disagrees with and consequently, after the fact was deemed to be because a non-conforming structure on a non-conforming lot was renovated.
Don Torrico stated that he spoke to town counsel and his one question that the Board has to answer is “does approving this special permit make the non-conformity more detrimental to the neighborhood”?
At this point the Board went into their deliberative phase. Jon stated that the pain of correcting the problem is of no relevance to the Board, only if it is more detrimental to the neighborhood matters. The Board needs to determine if 19 inches is substantially more detrimental than the previous 12 inches (a difference of 7 inches). Fred felt that the 7 inch~increase of the deck into the setback made it substantially more detrimental to the neighborhood but the other members agreed that as a deck it is not. It appears that the issue that brought the applicant here was a series of mistakes and not a volitional decision made by the homeowner. To prevent this type of mistake a town zoning bylaw could be created that would require a certified site plan be submitted before any construction takes
place. In this case the Architect certified that the structure was not non-conforming which is why the building permit was issued without a special permit.
The Board unanimously agreed that this is not a substantially more detrimental non-conformity to the neighborhood. A motion was then made to grant the special permit under section IV.B.2.c under the Monterey Zoning Bylaws. The motion was seconded and approved by 4 members with Fred Chapman abstaining.
The Board made the following findings:
1. It is non-conforming as to size of lot and encroachment into the setback.
2. It is not substantially more detrimental to the neighborhood however, it did increase the non-conformity.
3. The Board concluded that it was an unintentional mistake and that the slope and shape of the land contributed to the erroneous measurements that were made.
The Board did not have any conditions for this permit.
The hearing concluded at 4:35pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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