Town of Lenox, MA - Zoning Board of Appeals Minutes,03/19/2008

Members present: Chair Pam Kueber, PK; Harold Brown, HB; Daniel Mintz, DM; Shawn Leary Considine, SLC; Ethan Berg, EB (EB sat only for the Nadorff hearing as he had conflicts with the two other hearings.)

7:00 pm Frank Newton, 81 Walker Street (Map 40, Parcel 25), modification of a Special Permit under Sections 6.3, 6.6-1(A)(10), 9.3 and 9.4. to allow the construction of an additional condominium unit, bringing the total number of units to six (6) and a Variance from Zoning Bylaw Section 9.3(e)-2. Originally the petition was filed for modification of Special Permit and the hearing was scheduled for Feb. 6, 2008. Due to inclement weather on Feb.6, that hearing is continued to this date. That petition was withdrawn at this meeting, and this new petition for Special Permits and the Variance was heard.

PK disclosed that she is a neighbor of Frank Newton who resides on West Street, but said that she believed she could weigh the issues without conflict. Mr. Newton did not object to her sitting on this hearing.

Jeffrey Lynch, attorney represented Mr. Newton. Also present was Mr. Newton. Mr. Lynch presented the application. He gave a brief history of the property and described the location of the proposed garage and the sixth unit that would be above the garage. Mr. Newton has not applied for the building permit for the garage. The Variance is requested because each unit requires 10,000 square feet of land space. The space required for the sixth unit falls short by about 8000 square feet.

Mr. Newton said that he encountered structural conditions after construction began and that he exceeded his budget. A sixth unit is necessary to help offset the unexpected expense. Mr. Lynch stated that this is a slight variance and it is consistent with the zoning ordinance and Town’s Master Plan and it is historically consistent with what was on the lot.

Stan Rosen, owner of the abutting Hampton Terrace at 91 Walker Street said that he did not see how the ZBA could have a serious discussion without all of the details of a site plan, i.e. setbacks etc. He disputed the had been made by Mr. Newton that Mr. Rosen had come before the Zoning Board for a Variance

Suzanne Pelton, representing the Historical Commission, complimented Mr. Newton on his superb work; however she disputed the siting of the original carriage house and stated that the existing footprint of the home is larger than the original structure.

DM said he was not convinced that the Variance was appropriate and he wanted to be fair to the Petitioner. He disclosed that a fifth member could come in and listen to a recording of this hearing and be able to vote. PK said that there was no possibility that she could vote one way or the other without a site plan and additional details.

SLC made a motion to continue to May 7, 2008 with a site visit at 6:30 p.m. and the hearing following at 7:00 p.m. and to have a site visit on the same date at 6:30 p.m. DM seconded the motion and the Board voted to agree 4-0.

7:30 pm M. Lynne Nadorff, 25 Tucker Street (Map 43, Parcel 102), dimensional variance from Sections 3.6, 8.4 and Section 9.2 to allow the division of the property into 2 lots that do not meet the dimensional requirements of the zoning district.

Kelton Burbank is the attorney for Ms. Nadorff. In his absence, Attorney Lori Robbins of Philip F. Heller and Associates represented Ms. Nadorff. Also in attendance was Ms. Nadorff and Patrick McColgan, a surveyor.

Sometime prior to 1900 these two existing homes were built on one parcel. This was before Zoning and the Subdivision Control Law. Ms. Nadorff wishes to separate the property into two parcels with one home on each parcel, neither of which would meet the requirements of the R15 zoning district. (One of the homes is a two family home.) Almost no other parcel in this neighborhood conforms to the area and frontage required, and no other lot contains more than one structure. There is no abutting property from which Ms. Nadorff could acquire additional land to bring the property into conformity. Ms. Robbins stated that it is a hardship to maintain two structures on one lot and it is not practical to sell or for one family to maintain. The situation was not created by Ms. Nadorff. She purchased the property in 1994. Her mother lived in one of the structures and Ms. Nadorff inhabited the second residence. Since then her mother has passed away. She plans to remain in one and sell the other.

DM does not feel that the requirements for a Variance have been met and that this would be creating a greater non-conformity. SLC disagreed saying that she felt that this proposal would be less non-conforming as this is the only parcel in the neighborhood which has more than one home.

8:00 p.m. Fereal Realty Trust d/b/a Seven Hills, 40 Plunkett Street (Map 3, Parcel 83), modification of Special Permit under Section 5.5 to allow Seven Hills to continue use and activities on 15 + acres as opposed to approximately 26 acres, separating 11 acres, currently not utilized by Seven Hills, with frontage on Laurel Lake Road from the Seven Hills property and use.

Planning Board members, Joe Kellogg, Steve Sample and Katie McNulty-Vaughn attended this hearing as time did not allow for them to have a separate meeting. The Planning Board serves as an advisory board to the Zoning Board of Appeals.

The present owners acquired the property in 1994. It would be an economic burden to the owner to continue to operate the Inn and it was thought that if the property was reduced in size that the owners would have a more saleable property. This proposal would reduce the impact to the neighborhood as the new owners would agree to have less than 100 people assembled at one time. Presently the Inn could have an assembly of 400 people. He disputes claims made by Attorney Pat Harris that the current use of the property is “illegal”. In response to references made in Ms. Harris’s letter dated March 17, 2008 to the Zoning Board of Appeals, Mr. Heller said that the nature and character of use proposed is the same but probably less and that it is unreasonable to create a 200 foot buffer as the proposed use is less intrusive to the neighborhood. Mr. Heller cited that in 1951 the Zoning Bylaw allowed an inn in this zone, not a resort, and that the petition is not to change the character of the Inn.

Mr. Fuster described the Wongs proposal for Seven Hills. They would have gathering no more than 99 people, no liquor license and no night club, and no restaurant. The proposed use would be substantially less detrimental. The Wongs want to restore Seven Hills to its earlier grandeur.

Mr. Wong said that their plans are an evolving process. He considers he and his wife to be the caretakers of the property that they appreciate for its architecture and history. He said that they plan to downsize the usage of Seven Hills, and will probably close off the main house for two years to decorate. They will not expand, but are still assessing what they will do with the remainder of the property.

Ms. Harris challenged the numbers of guest rooms. She stated the owners of Seven Hills have the burden of establishing the extent of the pre-existing non-conformity use of the property. She suggests that the analysis of the Zoning Board of Appeals should be “What was established before zoning?” and that has to be proven or substantiated by the landowners. She believes that there are inconsistencies in the record as to what existed at time the use became non-conforming. Ms. Harris argued that there are wetlands on the proposed lot B and with additional development will result in a change of use of the original 25 acres.

SLC and Ms. Harris discussed the non conformity. Ms. Harris said that the law puts the burden on the owner to determine when the non conformity was created. SLC stated that the Zoning Board is charged with looking into the future and seeing that which is proposed is consistent with the Zoning Bylaw and satisfies the requirements for a Special Permit. She stated the fundamental objective of zoning is the uniformity of uses within the district. SLC said that the proposal of the Wongs is to return Seven Hills to a single family home with some inn uses. The intensity of the proposed use would be much more limited than it is now, and it is a move to the greater uniformity of use. Ms. Harris stated that the applicant should not be allowed to carve out another parcel and reduce the buffer. SLC responded that it is unreasonable to suggest they have to prove to the ZBA when the non conformity was created. Ms. Harris said that the petitioners don’t have the right to divide the property and develop it.

· Mark Vander Bosch: Expressed his concern about changing the historic nature of property. A carriage house path exists on Plan B that is enjoyed by number of people who use Laurel Lake Road and he suggests that any structures or driveways would be substantial change to this historical asset of Lenox. He feels that any change in the buffer zone would have an adverse affect on the residential nature of the area.

· Hunter Runnette: He said that this is a scenic neighborhood and Seven Hills and Canyon Ranch guests enjoy it for the peace and quiet. He is concerned about the beautiful wetlands and moose in the area.

Hope Hagler complained that the public was not contacted regarding the ANR, Form A, which is the process for reconfiguration and creation of the second lot. Ms. Albertson explained to the Zoning Board and those in attendance that the ANR does not require a public notice. It was posted on the Agenda at the Town Hall and on the Town of Lenox web site.