ZBA Administrative Meeting Minutes 4/14/21

ZBA Administrative Meeting Minutes

Date:  April 14, 2021

Meeting began at: 3pm

Members Present remotely:  Jonathan Levin, Chair, Gary Shaw, Clerk, Scott Jenssen, Susan Cooper and Michael Banner

Also present remotely: Paula Hartstein, Mary McGurn, Peter Chait, Teresa & Scott Steibel, Cliff, Jim Denburg, Adam Chait, Peter Puciloski, Leslie Lichter, Carlo Calzolaio, Lisanne Finston, Karan Salamon,

The Board explained that today’s hearing will not be to discuss the property or application located at 271 Main Rd.  It is for discussion how to address changes of use in a residential zone.

The ZBA has to address/consider the following when considering an application; a general rule in a residential zone only certain uses are permitted. In order to determine what is permitted the Board looks to the Zoning Bylaws and the use table which states whether a specific use is permitted in a specific zone.  Monterey has 3 zoning districts.  The business district is small and runs basically from the firehouse to the library.  If a use is not specified in the bylaw then it is treated as it is not permissable

One use permitted by special permit from the ZBA in a residential zone is essential services.  Essential services is defined in the town bylaws.

If a use is not permitted in a residential zone the Board or Town can;

1. Grandfather a use (the use of a property may predate the zoning bylaws) and the property can continue to be used in perpetuity.  Considered non-conforming but permitted use.
2. Non-conforming use that has been approved by a special permit.  There are 2 kinds of special permits; a blanket special permit for the use applied and a special permit that has conditions.  One type of condition that can be imposed is that the permit is limited to only the current owner of the property rather than running with the land if sold.
3. The Board under certain circumstances can modify a permit.  The Board has to determine if the request is a change or modification, if it is, what guidance is offered to the board to approve the change, extension or enlargement.  The Board has specific questions (a 3 prong test) the court has allowed to determine if it is a modification and change of use.

Section 5.1.3 of our zoning bylaws states that the ZBA can grant a change of use only if they determine that the new use will not be substantially more detrimental.  The Board then has to decide what is “substantially more detrimental”.  The bylaw sets forth the criteria or guidance that the Board is supposed to use as to when it can grant a special permit.  If it is not a residential extension but rather a change of use the ZBA is guided by these specific provisions (section 9.4.2) as well as statutory ones.

Jon then opened the discussion to members of the Board for specific concerns anyone might want to address in the abstract.

Susan:

1. In 9.4.2 the 6^th criterion (potential fiscal impact), does it go both ways and is the Board allowed to consider positive impacts. Jon thought that since neither “positive” or “negative” are specifically stated it could be either.
2. In the law decisions Jon provided, historically it appears that the courts do not seem to be in favor of large changes of use.  Jon said that courts come back to the issue of a non-conforming use with a request to expand it as unfavorable as it appears their reasoning may be that the town by-law did not permit the use as a matter or right, and to allow an expansion would derogate the intent of the by-law.

Gary:

1. 9.4.2 it talks about neighborhood character and social structures, hypothetically if someone wanted to knock down a restaurant and build a large one in its place would that fall under neighborhood character (section 4).  Jon said that these items “neighborhood character” and “social structures” are more broad (are all the homes in the neighborhood small and the proposal is for a large restaurant).  Jon thought it probably fit more in section 1 than 4.

Michael:

1. With regard to 9.4.2 how does the Conservation Commission and Planning Board’s decisions affect the ZBA’s decisions?  Jon said that each have their own regulations and neither board has any bearing on the other board.  A project in some circumstances may require approval from all 3 Boards.

The Board is charged with interpreting and enforcing the bylaws without bringing in your own personal opinion.

The administrative meeting concluded at 3:52pm

Submitted by

Melissa Noe, Town Administrator