ZBA Hearing Minutes - 523 Main Rd 9/16/2020

ZBA Hearing Minutes

Address: 523 Main Rd

Date:  September 16, 2020

Hearing began at: (2pm Special Permit request followed by their Variance request for the same property at 2:30pm)

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

Also present: Glenn Goble, Mark Heimann

The hearing began with Jonathan Levin, Chair, explaining the hearing process and then Gary Shaw, 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 Planning Board, Conservation Commission, and Board of Health.

The applicant stated that this project has been approved by the Conservation Commission, DEP file number 230-312.  In their letter to the Board, Conservation Commission stated they found discrepancies in the plan attached to the Special Permit application versus the plan that was approved by the Conservation Commission.

Procedural items be addressed:  Jon stated for the record that for convenience and expediency it would make sense to address both applications together, rather than separately.  The letter from the Conservation Commission is concerning to the ZBA and it is likely at best that the applicant will have to go back to the Conservation Commission and may require another visit here to the Zoning Board of Appeals.  An available option is to have the Board hear the presentation and continue it to a date certain after the Conservation Commission meets so any concerns could be addressed prior to a decision being made.

Mark Heimann, benefactor of the trust was present and provided a history of the property and the reasons behind his request.  Glenn Goble of Clark and Green Architects provided the details of the 2 applications.  At this time the meeting for the Special Permit was adjourned and will be reopened during the 2:30 Variance hearing.  The legal notice was read for the Variance request.

A motion was made to hear both applications together for administrative expediency.  The motion was seconded and approved unanimously.  Separate decisions will be issued.  A motion was then made to reopen the Special Permit hearing.  The motion was seconded and unanimously approved.

Jon explained that if you add property to a lot you lose all grandfathering rights.  Relative to the Variance application, Jon explained that personally he was hard pressed to find how the Applicant meets the By-Law standards for the issuance of a Variance; there isn’t an existing hardship that isn’t self-created.  Mr. Goble argued that this was not a foreseeable issue when the bylaws were created and that the lot lines create a geographical restriction due to the location of the surrounding wells.  Jon stated that this is not a unique situation to the many properties located around the lake. Scott argued that he feels that there is a hardship due to the soils because the applicant was limited to where the septic could be installed.  Jon countered that it isn’t a natural soil condition such as ledge and case law might not support an argument that a septic system location would trigger a basis for variance relief.

Mark asked if the Board had any recommendations that might be more favorably received with regard to the garage construction. 

The proposed new construction of the house would take the structure out of existing setback violations and the new construction would be in compliance with all setbacks.  The Board finds this action and result commendable.

The Applicant requested to continue the variance request to a date certain.  A motion was made to continue the Variance hearing to November 9^th at 3:30.  The motion was seconded and unanimously approved.

Discussion then ensued about the Plan discrepancy raised by the Conservation Commission, and the impact of the differing plans.

A motion was then made to close the public hearing portion of the Special Permit hearing which was seconded and unanimously approved.  The Board then deliberated with respect to the various issues raised during the public hearing.

The Board made the following findings:

1. The Property is in the Lake Shore district.
2. The property is a non-conforming lot due to lack of sufficient frontage and size.
3. The existing structure currently encroaches within a side set-back.
4. No abutters expressed any opposition to the Applicant’s plans.
5. The new proposed structure has been designed and situated on the lot, such that there will be no set-back violations of any kind.
6. The new proposed structure is 6 feet higher than the current structure, and there are no neighboring structures which will be impacted by the increased height of the structure.  The height is still well below the maximum height permitted under the by-law.
7. The Applicant has properly identified all rooms within the structure which could be used as bedrooms, totaling three in the proposed plans, representing an increase of one bedroom from what is currently in the existing structure.
8. The proposed structure is in keeping in size, height and location on the lot with neighboring structures.
9. The proposed relief to be granted is not substantially more detrimental to the neighborhood.

A motion was made to approve a special permit to permit the Applicant to construct the new house as proposed in the submitted plans, with conditions.  The motion was seconded and unanimously approved.

The Board set the following conditions:

1. A building permit may not be issued unless and until Applicant resolves the discrepancy in submitted site plans raised by the Conservation Commission in its letter to the Board for this hearing.  In the event it is determined by the Conservation Commission that the proposed building must be moved out of a protected buffer zone and if the Applicant can do so simply by sliding the whole structure (without making any changes to the proposed structure) further away from the Lake without changing the proposed side-line setbacks, then Applicant may proceed without further determination of this Board.  Otherwise, Applicant shall be required to return to this Board for further action.  The Chair of the Board is authorized to review any Applicant and/or Conservation communications to the Board and determine whether Applicant has complied with this condition, and the Chair is further authorized to issue a letter of determination to Applicant to be appended to this Decision before recording in order to evidence compliance, if such has occurred.
2. A building permit may not be issued unless and until the Board of Health has determined, in writing, that (i) the septic system servicing the property meets all required septic system standards and (ii) that the increase of one additional bedroom in the new structure can be accommodated by the existing system; and if not with respect to either of the aforesaid, that the Applicant make any improvements or changes to the septic system required by the Board of Health.

The hearing was unanimously adjourned at 3:15pm.