ZBA Hearing Minutes
Address: 8 Lakeside Ave
Date: 4/4/13
Hearing began at: 3pm
Members Present: Fred Chapman, Chair, Cynthia Weber, Clerk, Robert Lazzarini, Jonathan Levin and Alternate, Anne-Marie Enoch
Also present: Christopher Blair, Dennis Downing, Charles Adams, Robert Adams, Ian Jenkins, Jesse and Frank Duke
The hearing began with Jonathan Levin, Co-Clerk, reading the legal notice (which was posted for 2 consecutive weeks in the Berkshire Eagle and at the Town Hall) and letters from the Planning Board, Conservation Commission, Board of Health as well as from interested parties.
Dennis Downing, Attorney for the applicants presented the project details to the Board. The pre-existing, non-conforming cottage’s square footage will not increase in excess of 25% of the existing square footage and the object of the project is to provide a screened in porch and address some drainage issues. Dennis referred to the Gale decision to support that a variance is not required and read portions of section 6 of the state zoning laws.
Charles Adams then gave the Board a history of the property. He stated that the purpose of this proposed project is to keep the property livable for future generations of his family. The existing 2 bedroom property is constructed on wood posts and shifts every year and is damp and moist. The proposal would involve adding a basement for storage which can only be accessed from the outside of the house. The screen porch addition will be on pilings and will include a door to access the house (which is currently a window).
Chris Blair then reviewed the existing and proposed plans and provided pictures of the property. The driving force of the project is to put a new concrete foundation under the house and increase the floor to head room to 8ft. The piers will be replaced under the existing wood deck and new subsurface drainage would be installed. The screened porch will have bypass windows that have glass for the colder seasons. The applicant stated that the water system is surface to this cabin so it is restricted to only 3 seasons and is shut off in October. The cabin has a fireplace but is not insulated.
The front deck was constructed about 25 years ago and has been reconstructed according to Charles.
Discussion ensued on why the other deck was not the one being enclosed to prevent further encroaching into the setbacks. It was noted that if they end up having to raise the house to dig the foundation because of ledge then the chimney will need to be removed and rebuilt causing the price of the project to increase dramatically. The cottage is 720sq feet, the addition will be 175sq feet, and the existing lakeside deck is 10’ x 24’.
At this point the Board closed the public portion of the hearing and began their deliberations.
Cynthia felt that in this case the intrusion into the setback is not as detrimental as in most cases that come before the Board due to the slope of the properties and height of the houses in the neighborhood. Jon felt that the goals of the applicant could be accomplished by modifying the project and not creating such an encroachment into the side setback as is currently proposed. Jon felt that any decision here could lead neighboring properties to feel that this was a guideline to follow for any future projects they might plan. Jon also stated that if approved the proposed addition of the basement must remain for storage only. Mari concurred with Jon’s opinions and had issues with adding this large of an addition further into the setback. Bob also felt that this was a further
infringement into the setback and if the Board was to approve the project as submitted it would open the floodgates to more projects of this nature.
Cynthia argued that applying for a special permit is due to special circumstances and that the individual circumstances of each application need to be examined.
Jon noted that in trying to relate this project with the Gale decision he cannot wrap his thoughts around the fact that the court wouldn’t have examined if there were other options available to meet the goal to make the project less detrimental. Jon also stated that the project as proposed will be more visible and glaring to the neighboring properties in the night hours.
The Board did not have any issues if the house had to be raised if they ran into any ledge while digging the basement, with the proposed parking area or any other aspects of the project excluding the addition of the screened porch.
Jon noted that he would be more likely to approve this project under the Gale decision if the screened porch was a true 3 sided screened porch rather than a room with windows. Mari argues that keeping it as just screens would make it more detrimental as it would be noisier and this would carry across the lake. Mari noted that there are defined setbacks in our bylaws and they are there for a reason, if we were to approve this project as submitted, what is the point of having setback requirements? The Board is charged with upholding the setbacks as defined in our bylaws. It was noted that if the Gale decision didn’t have to be considered and this came before the Board as a variance it could not be approved.
The Board debated the meaning of the word “substantially” in the phrase “substantially more detrimental to the neighborhood”, and felt that the proposed alterations did not meet the level of detriment..
A motion was made to approve the project as submitted with the specific conditions that the basement cannot be finished or used for habitation and the addition may only be screened or open (no less than shown on the plans) and cannot have glazed windows: The project was seconded and approved unanimously.
The Board made the following findings:
1. The house is located in the Lakeshore district.
2. The property is non-conforming because the lot is undersized, has inadequate road frontage and infringes on the lot’s two side setbacks.
3. The property is grandfathered because the violations of the Monterey Zoning Bylaws pre-existed the Zoning Bylaws.
4. Due to the unusual topographical placement of the applicant’s house and its staggered spatial relationship to the structure on the immediately abutting property, and the fact that the nearest abutter (to the side of the proposed encroachment) is on substantially higher ground than the subject property and thus looks over and not through the subject property, the Board found that an additional small incursion into the setback would not be substantially more detrimental to the neighborhood.
The Board set the following conditions:
1. The applicant must file the necessary applications under the Scenic Mountain Act and Wetlands Protection Act with the Conservation Commission and the Commission must be completely satisfied.
2. The applicant must meet all of the requirements of the Board of Health.
3. The basement cannot be finished or used for habitation and cannot be accessed from inside the house.
4. The addition may only be screened or open (no less than shown on the plans) and cannot have anything glazed on the three outside walls.
The hearing concluded at 5:30pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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