Town of Lenox, MA - Zoning Board of Appeals Minutes,09/05/2007

Zoning Board of Appeals

Land Use Meeting Room

September 5, 2007

Members present: Chair Pam Kueber, PK; Cliff Snyder, CS; Shawn Leary Considine, SLC;

Jim Overmyer, JO; (JO was present for the second hearing only.)

Absent with notification: Daniel Mintz, DM

PK told those present that Daniel Mintz was unavoidably detained and because of miscommunication a fifth member, Ned Douglas, was not present. PK advised the applicant that a new rule that was adopted at the ATM 2007, provides that if a board member cannot be present for a hearing, this member could listen to the taped hearing, and vote later. In the alternative, the applicant could choose to continue the hearing until all members are present. The applicant chose the former.

The hearing was called to order at 7:20 pm.

NOTE: Ms. Messana has filed a special disclosure with the Town Clerk, as per MGL Chapter 268A to notify all that she is a Selectman for the Town of Lenox. PK also disclosed that the Board is aware that as a Selectman, Ms. Messana is an appointment authority of the Board, but the Board would treat Ms. Messana’s application no differently than any other application.

7:15 p.m. Linda Messana, 112 Walker Street, Map 40, Parcel 34. Special Permit under Section 8.4 (6) to allow installation of shed at the rear of a garage.

Ms. Messana presented her application for a shed. She stated that with the side and back set backs at 20 feet the placement of her shed would be in the middle of her back yard. Preferring not to do this, she wishes to run a shed off the back side of the garage. There would be a door from the garage into the shed and another door would provide access to the back yard. The side of the shed would line up exactly with the inside wall (east side) of the garage. The shed is 8X10 feet with a window on the east side.

The garage is next to the house and is attached with an enclosed breezeway that is about 10 feet wide and behind the breezeway is a cement patio which is between the garage and existing house. The enclosed breezeway is on the front side of the house. Neither the garage nor the breezeway is heated or insulated. The shed will be stick built and built directly on to the garage.

PK stated there is a need for a simplified site plan to show the relationship between buildings, all setbacks to the property line, and is usually submitted with the application. She also would like the measurements, such as the width of the patio, and the distance to the next home/structure on the side of the property in discussion She also said that there is a building to shed setback requirement as well as a side to side and back to back requirement.

Ms. Messana told the board that the Building Inspector did not say that. She said that he said the structure is a shed. She wondered if this could be identified as an addition when it is not heated or insulated. She also said that the inspector had no problem with it being attached to the garage.

SLC stated that if this is an addition (rather than an accessory building), a variance or Special Permit would have to be issued under another part of the Bylaw.

PK suggested that because the meeting has to be continued until another ZBA member can participate, Ms. Messana should seek clarification from the Building Inspector before the next hearing. Ms. Messana agreed and she will also please bring a plot plan (simplified site plan) showing the setbacks and present to the Board the distance between her structure and the neighboring house. (The garage is on the line.) The issue is if this is an accessory building or an addition.

There were two abutters and one other resident present, all of whom support the petition, but did not add comments. There were no letters received.

The hearing was continued to October 3, 2007 at 7:15 pm.

7:45 p.m. Buccaneer Development, Inc., 12 East St., Map 4 Parcel 34, SP under Section 9.6 to construct 16 duplex buildings containing two dwelling units and two buildings each containing one single family dwelling unit. Units restricted to person 55 years of age or older. Continued from August 15, 2007.

PK explained the Daniel Mintz was unavoidably detained, but that if the petitioners did not have an objection, he would listen to the recording of this hearing before the next continued hearing. There were no objections. PK also told the audience that there were several letters that would be read into the record and time for more public comment at this hearing, and that this hearing would be continued again. Mr. Mintz will participate in the continued hearing.

PK also advised everyone that the Planning Board is awaiting a letter from Town Counsel regarding legal issues related to this petition.

Representing the applicant were:

Attorney Emil George

Jim Scalise of SK Design

Don Ferry, Architect

Jason Berger, Consultant for the applicant

Mr. Jonathan Griffis, the developer was also in attendance.

PK asked Mr. George if he had anything new to present at this continued hearing. Mr. George responded that he has looked into the Board’s desire to have affordable units included in this project and feels that a way to satisfy that request would be to carve out a separate lot, with separate owners and make this separate lot with four units a Chapter 40 B development. This separate project would be where units numbered 5 and 6 are which are located behind the Starr residence. PK asked Mr. George if the Chapter 40 B regulations prohibit the inclusion of affordable housing designated within a retirement community. Mr. George said he was not saying that, and while he admits he is not an expert, he does not know that if the project would qualify for affordable housing in a retirement community. The applicant would be happy if it could be included, but if it can’t, the creation of the separate lot and a Chapter 40 B project would meet the desire for the affordable housing. The frontage of this separate lot would be off of the subdivision road. He said that the proponents are prepared to come up with anything that will permit affordable housing.

JO asked if the internal roads would become public ways; can a lot be created that would not be on a public way. Mr. George said it would be a subdivision road that would be maintained by the condo association and the frontage from the road can be used for a Chapter 40 B development. There is an existing right of way that would provide access to the four units that are being discussed as a possible Chapter 40 B development.

There is confusion regarding the lot for the retirement community. Mr. Scalise said that the developers had understood that the former Town Planner, Joellyn Warren, believed that the property for the retirement community would be one lot.

Mr. George stated there needs to be clarification as to if the Planning Board could reduce the distance between buildings under the OSRD.

1. Tom Bosworth, 135 Hubbard St.: Questioned the need for the development and stated that there are 67 condominiums and 78 houses for sale on the market. Concerned about traffic.

2. Edmund Dana: Stated the neighborhood is rural and feels the development would substantially alter the neighborhood and the view would be spoiled.

3. Meb (Is that her correct first name?) Joyner: Stated that the project discriminates, is not desirable, destroys the property and ignores the Town’s goals.

4. Richard Mendel: Stated Special Permits are a “Pandora’s Box” and circumvents the zoning bylaws. Also, that as the property is zoned R1A, only 9 homes should be built on the nine acres that is developable.

5. Susan Dana: Voiced her concerns regarding density. She said that if the 34 homes were built on both sides of East Street the distance would be from Walker Street intersection at East St. for a distance of 1.2 miles.

6. Tim Face: Traffic is a concern. In the area of this proposed development there is congestion with the intersection of Walker and East, Blantyre, St. Andrew’s Court and existing driveways.

7. Bob Grosz: Stated this project is detrimental to adjacent properties. Additionally he feels it will block the view, will overload utilities and add to the drainage. He objects to the fact that some buildings will be 15 feet from some abutting property lines. He feels the project will increase taxes and devalue his property.

8. Eugene Chague: States the view at this location is the most beautiful and developing will harm the natural habitat. Other concerns were traffic and providing second homes for non residents.

9. Al Joyner: He debated access to the area for the suggested proposal of a separate lot as this is using a right of way that is his property. Mr. George explained that Mr. Joyner’s right of way is on the applicant’s property.

10. Mary Jo Piretti: She read a letter from Ann Fitzpatrick Brown. Ms. Brown wrote that this would impact the quality of life and be detrimental to the community. Traffic and building height were concerns. Mary Jo also read a letter of her own – Peggy, can you review and summarize key points as you have with the others – I recall MJP giving us a copy for the file.

Letters read: (They are in the record. All were opposed.)

2. Tom and Shannon Delasco

At this point, PK advised that there were approximately 10 more letters to be read and asked if any others wished to add to public comment. There were a few to raise their hand.

7. Priscilla Sedgwick

12. Barbara Clark (2^nd )

14. James and Valerie Herrick

Public Comment Continued:

1. Jim Herrick: Feels this project is a sham of the use of the Town Zoning Bylaws, and that the “Over 55” rule for a retirement community is impossible to enforce.

Board Members Comments:

CS: Stated he felt that the proponents are insensitive to the neighbors and that the scope of the project should be looked at carefully.

SLC: Feels that this is a test of the OSRD bylaw. She stated that the property poses some constraints, wetlands etc. The buildings jut into the vista which is an important aspect of the property that she feels the developers are overlooking. This project creates a visual impact of so many units in a small area that is close to the road and abutting properties.

JO: Three issues-

1. He stated that the neighbors would like property left as is, but it is a highly attractive and developable property, and reminded that as Mr. Mendel pointed out, 8-9 houses could be built there. In conclusion he said it is not the obligation of zoning to keep the property in its present state.

2. Concerned about petitioners wish to have units 40 feet apart, but aren’t concerned about the units being within 15 feet of the abutting property line. Built as designed would be greatly overbuilt.

3. Feels the petitioner does not have a solution to the issue of affordable housing.

PK: She advised that she looked at the Twelve Oaks project that is of similar density but the Buccaneer project intrudes on established housing, unlike Twelve Oaks. Perhaps, she said, if this project were in another location it might work. The setbacks for this project are so minimal. She asked the developers if they would be amenable to scaling the project down, addressing the concerns of the neighbors, and honor all set backs.

Mr. George responded that they welcome and thank everyone for their comments, and that the proponents will be back.

Mr. Scalise said that they need the input of Town Counsel to continue.

PK said that she feels that the Town Counsel’s input will address the issues of the Planning Board. The Zoning Board has separate issues.

JO made a point that he did not want anyone to interpret his comments (second issue) that if the set backs were reversed, that he would be happy with the project. It seems if the Planning Board were to refuse the OSRD permit, the ZBA could not grant their permit because it would be out of compliance of the Zoning Bylaw. Mr. George agreed.

The hearing was continued to October 3, 2007 at 7:15 pm. (The Planning Board has their continued hearing on September 11, 2007.)

MINUTES: August 1, 2007 minutes approved by PK.

Respectfully submitted,