ZBA Hearing Minutes
Address: 244 Mt Hunger Rd
Date: 7/29/14
Hearing began at: 3pm
Members Present: Jonathan Levin, Chair, Cynthia Weber, Clerk, Stanley Ross, Robert Lazzarini and Fred Chapman
Also present: Carl Audia and Don Torrico
The hearing began with Jonathan Levin, Chair, explaining the hearing process and then Cynthia Weber, Clerk, read 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 and several abutters.
The Board did not agree with the Planning Board’s findings.
A scaled site plan was not received as is required by the application nor was a letter of denial from the Building Department. Carl stated that the Bronstein’s are not willing to take on the expense of having a survey prepared. The Board explained that not having a survey may make it impossible for the Board to adequately assess the impact of the proposed alterations on the Town and arrive at a decision.
The plans submitted were prepared by Carl Audia and he was of the understanding from the owner’s that they wanted to wait and see what the reaction was from the Board at the hearing and go from there.
Don Torrico commented that it was his impression that an applicant may be required to submit a survey not that they were required in all situations. Don felt that it was clear that it was within the front setback and that it is a pre-existing non-conforming structure. It is his position that the Board could waive the requirement of a certified survey. It was stated for the record that the Assessor’s maps are not accurate enough to be used when a setback is in question (there is a 3% margin of error which in some cases could be 3 feet or more). Bob and Stan both of whom are Assessor’s confirmed that the acreage assigned to the parcel in this case were calculated by Cartographics Assoc.
Bob referred to the Gale decision and felt that this application could’ve been done with a special permit instead of a variance. Fred didn’t feel after visiting the property and taking his own measurements that this property was non-conforming and therefore he felt it didn’t need a variance or special permit. Jon reminded everyone that the road doesn’t bear any relation to the property line and this should be taken into consideration when measuring. Jon felt that a certified survey would be required to determine where the property line is as that isn’t clear. Everyone was in agreement that this application should not have been a request for a variance it should’ve been a request for a special permit.
Carl stated that the owner believes the property is non-conforming and questioned why a survey would be required if they aren’t disputing the fact. Jon stated that the actual accuracy of the measurements has to be verified by an objective party that is certified not by the applicant who might knowingly or unknowingly provide inaccurate information.
The Board agreed to proceed as if it is non-conforming and is in the setback.
Don Torrico stated that it is assumed when a plan is not available that the town owns 25 feet from the center of the existing road to the property line of all properties in town. New drawings were provided to the Board with measurements taken by the owner. The two drawings provided contradict each other by about 30 feet which presents a real predicament for the Board. Jon felt that objectively, substantial detriment to the neighborhood could hinge whether or not the house is actually on the road or set further back from the road and it all depended on which plan you relied on that the applicant submitted, neither of which is accurate.
Jon was concerned that procedurally the application was submitted and the public notice posted were for a variance not a special permit and he fears that someone may not have shown up thinking that a variance wouldn’t be granted due to the difficult situations that must be present in order for one to be granted (which do not exist here) therefore their presence wasn’t necessary. Don felt that the intent was there in the public notices and that anyone objecting to the application should be present no matter what their impressions of a variance being granted are. Case summary reviewed states that the relief requested must be what the Board makes their decision under. It was agreed that since it wasn’t the Board’s fault that the applicant applied for a variance and should’ve
applied for a special permit the Board agreed to allow the applicant to submit an amended cover page seeking a special permit instead, pay a new application fee and go through the application process again (which will involve a new legal notice an notifying abutters). This hearing will be continued to August 20th at 2:45pm to allow the applicant to amend the application to reflect that the request is for a special permit not a variance.
A motion was made to accept the request to allow the applicant to file an amended and restated application which will read as a special permit rather than a variance and will resubmit another $300 filing fee. The motion was seconded and unanimously passed.
The hearing concluded at 4:04pm
Submitted by
Melissa Noe, Executive Secretary
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