ZBA Hearing Minutes
Address: 25 Deerwood Park Dr
Date: 5/31/12 (continued from 5/23/12 to wait on a full Board being present)
Hearing began at: 3pm
Members Present: Fred Chapman, Chair, Cynthia Weber, Clerk, Robert Lazzarini, Stanley Ross and Jonathan Levin
Also present: Town Counsel, Jeremia Pollard, David Ehrlich, Mark White, Peter Pucilowski, Charles Ferris and Sydney Smithers
Via telephone: James Caron (for part of the meeting)
This hearing is continued from May 23, 2012. At that meeting the reading of the notices and letters was postponed to today. The hearing began with Fred Chapman, Chair, explaining the hearing process and that this was a unique hearing to reconsider adding additional conditions to the existing special permit. 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 interested parties.
Jeremia Pollard updated everyone present that he received a call from Superior Court inquiring whether the remand and conditions had been settled yet. Jeremia provided a letter stating that the Board’s hearing was continued until today and he would let the courts know the outcome as soon as possible.
Syd Smithers, Attorney for the Ehrlichs and Carons along with Attorney Charles Ferris stated that they are here to urge the Board’s favorable consideration and to approve the agreement submitted that has been negotiated by the abutters and KSA. The special permit originally granted (10-06) is currently under appeal and if the Board does not incorporate the agreement set forth today into the current special permit (#10-06), this matter will be heard in court. The court will make its own rulings of law. Syd stated that the purpose of the appeal made by the Ehrlichs and the Carons is to have the special permit issued by the ZBA overturned.
Robert Lazzarini stated that the agreement between the abutters and KSA seems more of a civil contract and really shouldn’t involve the ZBA. Syd stated that they wanted it to be binding and part of the existing permit and filed at the Registry of Deeds which is the reason for seeking the Board’s approval. Members of the Board were uncomfortable with this because the conditions would attach to the permit and be passed to the next owner if the property were sold and many of the conditions were tailored specifically to the KSA’s operation. The Board suggested that this should be a deed restriction rather than an addendum to the current permit. Peter Pucilowski stated that if the conditions were attached to the permit, KSA would be able to come back to the Board to request
that conditions be amended – a clear advantage for the KSA.
Charles Ferris stated that this agreement benefits the community, town, applicant, appellants and abutters.
Fred Chapman commented that all of the letters from abutters that complained about noise has nothing to do with the special permit that was issued; they are normal things that parties living on a lake (or anywhere) have to deal with. It was also noted that there are 2 camps on Lake Buel and no one can determine the origin of the noise
Peter Pucilowski, Attorney for KSA summarized the position of KSA and the expense that could be incurred if this is to go to trial. He stated that there is a side agreement between KSA and the Ehrlichs/Carons that wasn’t appropriate to put in the agreement.
Jeremia stated that this Board issued a permit that did not limit the number of events and KSA just stated that they haven’t held the amount of events to date that would even approach the limit proposed by the abutters, so this debate is really academic.
Bob asked for a more detailed description of the right of way arrangement on Deerwood Park Dr. as it’s his impression that this agreement seems to be all for the betterment of the abutters. Bob stated that the right of way agreement just gives the abutter the right of way, it doesn’t state who has to maintain it and Bob noted that in most communities that have a situation like this the person granted the right of way maintains their portion.
Jonathan felt there were a lot of issues with the agreement, the enforcement of the agreement, etc. Bob stated that when conditions are crafted by the Board they try hard not to limit the enjoyment and use of the land by the owner , but only to limit the infringement of the abutters’ privacy. Bob felt the proposed conditions did not respect KSA’s right to enjoy and use its property.
Everyone on the Board agreed that if they were to accept this agreement it would set a really terrible precedent.
Bob stated he believes that the additional conditions proposed here are improved over the original abutters proposal, but they are still seriously flawed and unacceptable. They are overreaching: many of the conditions do not directly relate to the activity being permitted. They are misdirected: the conditions focus on the frequency not the intensity of noise. They are punitive: they limit camp activities and threaten the business model. The conditions should preserve, to the extent feasible, the right of KSA to enjoy and use its land, while they limit the infringement of the abutters’ privacy by noise and light pollution. Bob suggested that a far better way to limit noise pollution is to limit the intensity of the noise, not the frequency of events. The
instrumentation required to monitor and record the noise levels can be found at many venues at prices starting as low as $26 for a used device. The most useful device for the current purposes is a noise level meter with data logging and pc computer interface that costs $525.
At this point the Board closed the public part of the hearing and began their deliberative phase.
The Board noted and agreed that the conditions they attach to the KSA winter camp activities are very important. Winter and shoulder season conference activities are new to Monterey, but are likely to increase. Consequently, the conditions and how they are framed will set a precedent and be a model for those attached to subsequent applications, particularly since Monterey does not have a noise bylaw.
The Board could not support this application as presented. Nonetheless, the Board doesn’t think it should simply deny the request. It was proposed that the Board supplement its original conditions and spell out more details on the how the concerns to the abutters could be addressed.
Jonathan recommended having an initial discussion about Bob’s proposed conditions and then another discussion about the agreement put forth from the abutter’s and applicants with reasons given for why they haven’t accepted the conditions proposed by the applicants and interested parties. It was agreed that the 6 conditions set forth in the original permit would still stand as written.
The Board reviewed the agreement presented by the interested parties drawn up by Sydney Smithers of Cain Hibbard & Myers PC:
#1 was bypassed
#2a: Its inconsistent with the current town bylaw.
#2b: Bob had a lot of issues with this condition as presented; Jon felt it was within the Board’s jurisdiction to limit the number of events but not limit the number on specific dates (such as only one on Thanksgiving weekend). The Board decided that it could accept a limitation of 3 large events per month. A large event is one that involves 250 people or more. No other restriction on the number, of events was accepted
#2c: This would be covered by the noise decibel level machines and thus should be removed.
#3: If the proposal was indeed referring to the Camp Public Address system and not loudspeakers or amplifiers that a band might use, some of the members did not have an issue but others felt it was over-reaching.
#4: Jon would not include this condition.
#5: would be covered under Bob’s proposed conditions setting limits on noise levels.
#6 & 7, Jon recommended not including these. Fred asked if Marc had received any complaints via email or telephone for any activities last winter and he stated that he did not.
#8: The Board agreed that this was private matter and should not be included.
It was agreed that #’s 3-8 of the abutters-KSA proposal should be removed and they were not approved by the Board.
The Board voted unanimously to set the following additional conditions which should be added to special permit #10-06:
1. KSA shall not interfere with the access to the abutters’ right of way during events, and if necessary, shall monitor traffic, and use flagmen or other traffic control methods to insure compliance with this requirement.
2. There shall be no sound amplification (indoor or outdoor) before 10AM or after 11PM, with the limited exception of the use of the Public Address System prior to 10AM (but in any event, not prior to 8AM) for camp announcements during the months of July and August. During events KSA must limit the intensity of noise pollution measured at the property line between KSA and any abutter. The upper limit for the instantaneous peak noise levels will be 80 dB (corrected for ambient natural noise) and the limit for the average noise level of events will be below 70 d(B) (corrected for ambient noise). On or within thirty days of the one year anniversary date of this decision, the Monterey Board of Appeals will hold a further hearing for the purpose of determining
whether to amend the noise level conditions, at which time any interested party may present evidence, and the Board may require the retention of an expert if the Board in its discretion deems it to be necessary.
3. This special permit does not authorize establishing an independent restaurant, retail store or other commercial activity that serves the general public. The applicant may serve food and libation that are contracted for in the event rental agreements, or provided in connection with summer camp activities, but any other food service or other commercial activities beyond those will require additional special permits.
4. KSA shall not conduct more than three (3) large events per calendar month. For the purposes of this decision, any event with in excess of 150 persons in attendance shall be deemed a ‘large event’.
It was agreed that the Board will meet again in one year to review the standard for potential amendment.
The hearing concluded at 6pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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