Town of Lenox, MA - Zoning Board of Appeals Minutes, 07/02/2008

Zoning Board of Appeals

Land Use Meeting Room

The last ZBA meeting was May 7, 2008.

Members present: Chair Pam Kueber, PK; Jedd Hall, JH; Harold Brown, HB; Ethan Berg, EB

Absent with notification: Clifford Snyder, CS; and Shawn Leary Considine, SLC

Staff present: Mary Albertson, Town Planner, MA; Peggy Ammendola, Land Use Clerk, PA

PK advised all of the applicants and all others present that there were only four members of the five-member Zoning Board of Appeals present at this meeting. She explained that four votes in the positive would be necessary for the petitioners to be granted permits and also explained the following options that were available in the event the petitioners wanted to have five members hear their petitions:

1) The hearing could be continued until five members were available.

2) The applicants could proceed with four members and abide by the deciding vote of those four members.

3) The Mullin Rule could apply. In this case the hearing could proceed tonight and be continued until a fifth member could listen to the audio tape. The five members would then vote at the continued decision hearing.

All petitioners chose to continue with four members.

Jo Ann Fitzpatrick Brown as Custodian for Alexander Brown, off Lee Road, Map 4

Parcel 76, Modification of Special Permits dated March 13, 1996 and December 17, 1997 under Sections 11.2.2 and 9.19 to allow an extension of the development rights and the terms of the Special Permits for an additional six year period to August 4, 2014. The property is located in the R1A Zone.

Making the presentation was Attorney David Hellman of Hellman and Shearn, Joann Fitzpatrick Brown, Alexander Brown and Marilyn Hanson. Ms. Hanson is employed by Ms. Brown.

Mr. Hellman explained that previously the applicant has requested and been granted two-year extensions. Mr. Hellman said that it does not make economic sense to proceed with the Special Permit given the glut of condominiums in Lenox and Berkshire County and asked that this extension be granted for an additional six years with the expectation that the economic climate will improve. He said that the Planning Board had unanimously agreed (4-0) to submit a letter of support to the ZBA for the requested extension, but were concerned about extending the Special Permits for an additional six-year period and stipulated that Town Counsel be consulted. Mr. Hellman has since consulted with Jeremia Pollard, Town Counsel for Lenox, as to whether the applicant could request a six-year extension rather than a two-year extension. Mr. Hellman referred to the case of Frederick Bernstein vs. the Building Inspector in Falmouth, MA and provided copies of this case in which he argued that a special permit granted in which work was granted in phases could be extended for the longer period. According to Mr. Hellman, Mr. Pollard said that he was more concerned for the applicant, should the applicant decide that at four years into the six-year extension she wanted a permit and someone had an issue. Mr. Hellman said that the applicant is willing to take the risk, as the Bernstein case has never been overturned and he sees no harm in a six-year extension. Mr. Hellman said that from his reading of the case this extension does not put the petitioner at risk.

The Planning Board’s letter of support was read into the record.

Austin Brazee, of 500 Walker Street, sent an email in which he opposed the extension citing that the applicant has put forth no effort to use the previously granted Special Permit. There were no other letters.

Mr. Hellman responded that there are inaccuracies in Mr. Brazee’s email and stated that work has been done. He cited the Order of Conditions that has been granted by the Conservation Commission and extended and that there has been an extensive engineering study.

Ms. Brown explained that she has been consumed with winterizing at Blantyre for year round use and has not been able to focus on this project.

Richard Einaugler of 8 Fairway Dr., who represents Coldbrooke East, spoke in favor of the extension.

JH made a motion to grant the petitioner the extension of the permit as requested in the notice to extend the development rights and the terms of the Special Permit to a six-year period to August 4, 2014 to allow time to complete the project. EB seconded the motion. The Board voted to approve 4-0.

JH will write the decision.

James C. Jurney, Sr., 10 Kemble Street, Map 7, Parcel 22-5, Variance from Section 9.15(b) which requires a buffer area of 200 feet to be maintained between any resort activity area and abutting property lines.

MA provided handouts of a summary of the petitioner’s request.

EB advised that he has filed a disclosure statement pursuant to MGL Chapter 268A with the Town Clerk. EB owns a similar property and appeared before the Zoning Board for a variance for that property. Town Counsel, Jeremia Pollard, advised that Mr. Berg (EB) file a disclosure.

Making the presentation was James Jurney Jr. Also in attendance were his wife, Gwen Jurney and his father, James Jurney Sr.

Springlawn has been nonprofit for 70 years. The Jurneys would like to change this use to a resort which would result in it being transformed into an income property that would be an asset to the Town of Lenox. The paths and walks would continue to serve the public.

Mr. Jurney explained that this petition is only for a variance relative to the Springlawn mansion and carriage house. Once a variance is granted, the special permit requests will be addressed.

He discussed the issue of hardship. The mansion is 30,000 square feet and the carriage house is 9,000 square feet. Both buildings have been neglected, but restoration on Springlawn has been ongoing since the Jurneys purchased the property from Shakespeare and Company. Mr. Jurney estimates that to restore both buildings the costs would be between $5 million and $6 million. The only use in the Table of Uses in the Zoning Bylaw that is allowed by right is a single family home. It is not likely that any one would want to invest in a single family home of this size, in this highly visible location and with the restoration that is necessary. Under the Great Estates Bylaw, the home could be made into a multi-family, but this would require a variance as well. Mr. Jurney said that the only non variance use would be a Bed and Breakfast with the maximum number of guests limited to 20. This limitation would not permit the B and B to be able to support itself financially. Mr. Jurney stated that it is difficult to prove hardship unless there is financial failure. The hardship would apply to any property owner.

There is a HPCR (Historic Preservation Conservation Restriction) in effect on this property. The restriction prohibits any future development and requires that Springlawn be maintained. Mr. Jurney said one must have the economic ability to maintain the property. The public path is already there by requirement of the Commonwealth of Massachusetts. The Commonwealth has permitted a change of use to a resort, by default, according to Mr. Jurney.

Mr. Jurney addressed the issues with regards to abutting properties, mainly the home at 4 Kemble St., owned by Amy Zuckerman. The mansion is about 40 feet from her property and the carriage house is about 50 feet away. Mr. Jurney said that his family has been in discussion with Ms. Zuckerman regarding screening and a driveway easement Ms. Zuckerman has on the Jurney’s property. Mr. Jurney said they wish to do as much screening as abutters would like to have as they want to keep the neighbors as content as possible. The Jurneys have also restored the Clipston Grange structure which is now the home of James (Jr.) and Gwen Jurney.

Following Mr. Jurney’s presentation, PK asked MA to explain why this petition is for a variance only, and not also for a special permit for the use. MA said that the Planning Board had requested MA consult with Town Counsel regarding this particular issue. MA explained that in the case of George Krupp vs. Ethelwynde, there was a ruling in the lower court that said that the board’s action to grant a variance exceeded the board’s authority. Town Counsel, after reviewing the case, said that the approach for this petition should be that a variance request be filed first and if successful, the applicant could start with the special permit process. In the past, when there was a request for both, the petition was presented for both. The Krupp case has been appealed, and it is felt that given the unknown ruling, the applicant was advised to proceed with the variance request first, and then apply for the special permit.

The following abutters spoke:

1) Gary Hill, 29 Kemble Street, supports the petitioners’ request. He said this would be great for the town and area.

2) Bill Chapman, 31 Kemble Street, said that he completely supports the request.

3) Cannon Stephen Booth of Trinity Episcopal Church, located across the street from Springlawn said that this project would be a great benefit to the town.

4) A representative (unable to secure the name) of the Kemble Inn gave her total support.

5) Ross Borden of 25 Old Stockbridge Rd. said that he was nervous about being so exposed if the carriage house becomes a “hub of activity”. Mr. Jurney said that most of the activity would be at the mansion and that anything that they do has to be approved by the state. Mr. Jurney said that he would work with Mr. Borden with screening.

EB wanted to clarify the petition and asked if the variance request was limited to the buildings and not the space. Mr. Jurney said that this was true. He then mentioned that there is an old spring that is within the 200 foot buffer, but stated that he was not sure that it is worth putting in the language. He asked: So the question is “What is a resort activity?” He pointed out that there is a fountain within 200 feet of the gate of Canyon Ranch and doubted there was a variance for it.

The following letters were read into the record:

1) June 30, 2008 from Deborah Winslow, Vickie Sanders, and Christopher Burke of 9 Beecher Lane. They support the project.

2) June 26, 2008 from George Jordan. Mr. Jordan referenced a gift of $500,000.00 from the state for a public walkway. He said that the Jurneys should have a detailed plan to protect and maintain the public good. Two attachments were referenced: “Perpetuity is Not Forever” and “Springlawn Letter”. The attachments were not read. Mr. Jurney explained that the path is clearly noted and accessible.

The Planning Board did not submit a letter.

There was then discussion about granting the variance separate from the special permit.

PK commented that she is “concerned about the language of Section 11.2.3 of the bylaw and the board’s ability and the guidance the board has about agreeing to or not agreeing to this petition relative to that language, the language we have and the fact that the last time we did this it went to appeal and we lost”. She said: “We are personally liable if we make a decision that is seen as to be grossly negligent, and I have talked to MA about this. “I am worried about doing something that would be viewed as negligent if in fact we have a lawsuit in front of us, a ruling from a judge that has not gone through to appeal that says we cannot do something.”

MA responded that she had spoken to Town Counsel regarding the liability and he referred to a Section in MGL that indemnifies members. Many towns have also adopted a provision that provides additional indemnification but he has not researched this for Lenox.

PK expressed frustration at this point stating that they have waited several weeks for a comment from Town Counsel and that she feels that the board has not received a straight answer from him of what this ruling means. She indicated she would like this in writing PK said that she was not comfortable with the approach of “let’s give it a try”. She asked JH, who is an attorney, to comment.

JH said that taking the legal aspect out of it, the members are indemnified and are immune from decisions made as a board as a quasi judicial body. JH added that if Town Counsel has advised us that we can bifurcate the special permit and variance he is comfortable with this. “There would have to be a finding of gross negligence by a judge or an appellate division to find that the board’s decision tonight is a total derogation of the actual intent of the statute.” JH reiterated that all the board is being asked is to consider a request for a variance.

There was considerable discussion. PK maintained that the language of the town’s ordinance should be followed and it is a part of the board’s decision to “de-link” the variance and special permit. She stated that it is unclear if this can be done under the town’s Zoning Bylaw despite what the Town Counsel advised, and it is up to the board to determine if this is wise. JH further explained that the previous case is still in appeal and that there is no final decision yet on the judge’s interpretation of our law. He said that the board may disagree with the judge and that his point of view at this point is not “dispositive.” PK said that this was the best understanding received so far of the situation and how the board should be guided.

EB does not see that it is relevant, as the applicant has filed for a variance only.

Before the public hearing was closed, the applicants were given an opportunity to discuss whether or not to proceed to the decision phase with four board members. A five minute break was called for.

At the resumption of the public hearing, the applicant advised that they wished to proceed to the decision phase with four members.

Mr. Jurney Sr. said no matter what happens with the property, the houses cannot be moved and they have had variances for the past 70 years. The resort use will be for fewer people than the past with the school use and Shakespeare and Company.

JH made a motion to grant the request of Springlawn Mansion and its Carriage House to allow a Variance from Section 9.15(b) to allow for resort activities to be conducted within the 200-foot buffer area any resort activity and abutting property lines of the proposed resort. EB seconded the motion.

JH supports the variance. He said that there is substantial hardship because the historic buildings cannot be moved and it is very unlikely that a single family would want a 30,000 square foot building. JH said that a literal enforcement of the buffer would involve a major a hardship to the petitioner. He feels that it is desirable for relief to be granted. The abutters have spoken in favor and the town will be better off with this use. He described the petitioner’s position is a “catch 22”. “You can’t make it better unless you have a variance and if you don’t get a variance you can’t make it better.” He said that someone has to make an improvement to the building, whatever the use and 70 years of public use is a major issue. He complimented the applicants in their efforts to inform the abutters of their plans and the good work of restoration they are doing. In conclusion JH said that he is comfortable with working with the variance first and then the special permit.

PK said the overriding goal of the zoning bylaw is to ensure the highest and best use be made of every property. She said that it is unlikely this home, located in the center of town, would be purchased for use as a single home. She said that it would be beneficial to town to have this property on tax rolls. If this use were to be for education, the buffer intrusion would be allowed by right according to the Dover Amendment.

There was then a detailed discussion to verify exactly what buildings and/or land were included in the variance:

EB said that the request is narrowly defined as it is a request for a buffer for the pertaining only to the non-conforming historical buildings.

MA said this comes back to what is an activity area. The path is required by the state for public use. MA does not feel that the path is resort activity.

PK, wanted clarification as to what was being sought and re-read the notice.

She feels the variance request is not exclusive to the historic structures but for the structures and land.

MA said that one of the justifications for this variance are the unique circumstances to the two structures, therefore the structures were included in support for this variance, and that is how the legal notice was prepared. In addressing PK’s question about the kind of buffer zone that is being discussed, MA said that it is a variance from resort activity to the property line. She said the structures are the obvious issue. The path is mandated by the state, thus she does not see this as a resort activity. MA suggested that tonight the board should deal with the structures, as anything else i.e., a pool, tennis court, gardens would have to be approved by the state. If approved and special permits are required, the petitioners would have to submit a petition to the ZBA.

Mr. Jurney said the master plan for Springlawn includes gardens, tennis court, small swimming pool and parking. He asked if parking would be considered a resort activity. He said that they only expected this meeting to address the structures as they can’t do anything without the variance on the buildings. Furthermore, one cannot add on to them because of the conservation restrictions. Anything else would require a separate variance, but first the state would have to agree.

Ross Borden, one of the abutters, suggested clarifying the motion with a modification of the wording to be: “Where the existing structures impinge upon the 200 foot buffer, the petitioners are to be granted a variance-otherwise the existing buffer is good.” He said he believed that to be the intention of the petitioners.

Parking then became the issue i.e., as to whether or not parking is a resort activity. MA stated that the author is not clear as to what is a resort activity, and that parking is covered by the parking regulations of the zoning bylaw. PK said that parking should not be allowed next to abutters’ property.

PK said the board should use Mr. Borden’s suggestion as a modification of the motion. She felt that the board should draw lines around the structures, making the variance granted very clear.

Mr. Jurney said that the history on the Shakespeare property is variance is on the buildings. The parking issue has been silent.

PK said she wants to see the whole plan.

EB again said to limit the variance to the buildings and the existing parking.

PK said the problem with the petition is that rarely is a variance allowed on a setback issue without a parameter.

EB said the lines do not have to be drawn, as the buildings are the line. He suggested the insertion of the word “only” in referring to the buildings.

PK stated that the board has a modification to a variance allowing for resort use with two historic structures, the line is the pre-existing structures-that is the setback. The resort activity is allowed in the buildings. No other resort activity is being weighed in on tonight.

The motion was restated: to approve petitioners request for a variance from Section 9.15(b) for resort activity involving only two historic structures that are approximately 53 feet and 38.9 feet from the existing property lines.

The board agreed to grant the variance 4-0.

MA will seek clarification as to whether parking is a resort activity.

7:30 p.m. Philip and Nancy Considine, 2 Post Road (Map 45, Parcel 25). Special Permit under Section 8.4 (6) for a reduction in the street line setback requirement to allow the installation of a shed.

Presenting the application was Mr. and Mrs. Considine. They wish to construct an 8 by 10 foot shed that they feel will enhance the buffer that exists on the side of their property which abuts East Street. The peak of the roof is nine feet. Placing the shed in any other location would not be an ideal situation.

The shed would be 20 feet from the property line (vs. the 25’ required in the bylaw), but 35 feet from the roadway.

JH made a motion to grant the petition as requested for a reduction in the street line setback to allow installation of a shed. HB seconded the motion and the Board voted to agree 4-0.

There was no correspondence nor any abutters present.

Respectfully submitted,

Approved by Pam Kueber, Sept. 22, 2008