ZBA Hearing Minutes
Address: 42 Elephant Rock Rd
Date: 5/12/16
Hearing began at: 3:03pm
Members Present: Jonathan Levin, Chair, Stanley Ross, Clerk, Robert Lazzarini, Fred Chapman and Susan Cooper
Alternates: Anne-Marie Enoch, present but not sitting.
Also present: Attorney Nick Arienti, Kevin and Jill Brenner and Phil Hamm, Architect
The hearing began with Jonathan Levin, Chair, explaining the hearing process and then Stanley Ross, 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, Building Commissioner, Planning Board and Conservation Commission.
Jon made it clear that the purpose of this meeting today was solely to determine whether or not the Building Commissioner acted properly in denying the building permit for the proposed additions to the applicant’s home.
Attorney Arienti presented his argument and the history of the application process followed by the Brenner’s. The Brenner’s did receive a special permit in 2006 which Attorney Arienti argues made the property conforming. It was clarified by the Board that the property is still non-conforming due to other factors.
It was confirmed that the proposed shower is meant to be an outdoor shower (no ceiling/roof) but is plumbed to be an indoor shower.
He argues that the proposal doesn’t increase the ground level footprint within the setbacks and leaves the land surrounding the dwelling and within the setback untouched. Questions were asked about the spiral staircase; a portion of the existing deck will be notched out to accommodate the new staircase which is outside the 40ft setback. Attorney Arienti argues that our bylaws defines structures as something erected “on the land” which these are not. Bob inquired what Attorney Arienti would interpret the intent of that bylaw was and he argued that it is plain language and should be interpreted simply on that language. He also argued that there is no specific prohibition of this type of proposal.
Jon read the Purpose section of the bylaws arguing that there is adequate justification for finding that the bylaw gives the Board and the Building Commissioner authority to regulate the proposed work covered by the proposed building permit.
Letters of support were submitted by the abutters that would be most intimately affected by this proposal were in support of the project.
Kevin Brenner explained the intent of this proposal. He also addressed that you cannot see his house from the lake. No trees will be removed. He argued that the proposal has a zero effect on the neighborhood. Jon reminded everyone that this hearing was to determine whether or not the Building Commissioner was correct or incorrect in denying the permit and it is a black and white issue and it doesn’t matter what the neighbors think as this is not an application for a special permit.
At this point the public portion of the hearing was closed and the Board began deliberations.
Discussion ensued as to whether the Building Commissioner was correct in his determination that the permit application for multiple extensions of the existing structure was not by right, as such extensions would encroach into both the 15ft side set back and the 40 ft lake setback.. The Board was unanimous in their opinion that the Building Commissioner was correct in his determination.
The Board made the following findings:
- The property is in the Lake Shore District, subject to a 40 foot setback requirement from the lake, and a fifteen foot side yard setback
- The current single family dwelling is constructed at the 40 foot set back line and the 15 foot back set back line on the westerly side
- The Building Commissioner denied a building permit on the basis that the proposed construction would take place within the 40 foot lake set back and the 15 foot side yard setback.
- The By-law, both in text and in spirit prohibits structures within the 40 foot lake set back and the 15 foot side yard setback, absent special permit or variance relief.
- The proposed work would be extensions to the existing single family home and the home, and as extended would be a structure.
- The proposed work, whether cantilevered over, or constructed upon the side and lake front set back land, encroaches upon the 40 foot lake front set back and the 15 foot side yard setback.
- The Building Commissioner was correct and had a proper legal basis for denying the permit application of the property owners.
A motion was made to deny the appellant’s appeal request and uphold the decision made by the Building Commissioner. The motion was seconded and unanimously approved.
The Board also advised the applicant that a condition of the earlier issued special permit, requiring the applicant to record a deed restriction limiting the home to no more than four bedrooms, did not appear to have been complied with.
The hearing concluded at 4:00pm
Submitted by
Melissa Noe, Administrative Assistant
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