ZBA Meeting Minutes 121 Pixley Rd 1/19/23

ZBA Hearing Minutes

Address: 121 Pixley Rd

 

Date:  1/19/23

Hearing began at: 3pm

 

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

 

Members Present Remotely: Jonathan Levin

 

Also present: Don Torrico, Valentina Bodossova, David Niewinski, Chief Fahey, Attorney Glover, Samantha Kaye, Jordan Kaye, 

 

The hearing began with Susan Cooper, Acting 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 Conservation Commission.

 

Attorney Glover presented the details of the application which involves the completion of  a porch and extension of stairs which were recently partially constructed without a building permit which was left by the builder incomplete.  When the applicant sought a building permit, an denial and enforcement order was issued by the Building Commissioner.  Sections 5.1.7 and 5.1.6(2) are the relevant sections of the bylaws per Attorney Glover.  Pages 3 and 4 of the applicant’s applicant show all the relevant increases to what was previously there.

 

Jon Levin raised the concern that partially completed porch is wider (side to side) than what was previously there (the old one was ½ the house width and now it is almost the whole width of the house). At this point the applicants and their attorney requested a few moments to confer in the hall as the information being presented was new to their attorney.  The applicant confirmed that Jon Levin was correct and that the builder never had any plans and just started to build.

 

Attorney Glover asked the Board’s preference: To close the hearing based on the information provided today or continue to a later date to allow Attorney Glover to provide a short written supplement to reflect that the new porch is in fact wider than the original footprint.  Jon suggested continuing but first finding out whether or not there are any other errors that may also need correcting.

 

The enforcement order (summarized) noted that a house addition was constructed without a permit but may be allowed with a special permit.  It also stated that the accessory structure needed to be relocated outside the setback area. The shed has not been relocated and may be located on the abutter’s property according to the site plan submitted by the applicant.  The applicant states that they thought the shed was grandfathered at its current location due to the number of years it has been there. Attorney Glover states that it would be allowed to remain under Chapter 40A.  Susan stated that since an enforcement order was issued and the directive was not followed  does not speak well to the applicant’s willingness to cooperate.

 

The property line is still in dispute according to Attorney Glover and the application refers to a previously performed survey. The application shows a property line that is in dispute but it is based on the abutter’s survey.  Jon Levin asked in which direction does the abutter’s alleged plan move the property line; closer to the Kaye’s property (8-10ft).

 

Susan asked how deep the original porch was; applicant answered that it is the same but the deck and stairs are new from the original footprint.  Jon is concerned that the setback dimensions aren’t reflected in the application. The applicant will have the surveyor clarify or confirm that those are his dimensions (at a minimum). There are also numbers on the plan that it isn’t clear what they refer to; Attorney Glover will produce clarified plans for the continued hearing.

 

Attorney Glover does not believe that the application is substantially more detrimental to the neighborhood.  The applicant confirmed that they will not be insulating the structure or putting in any windows.  The previous structure was an enclosed structure with windows.

 

The abutters of 129 Pixley Rd were present and described that this has been going on for 3 years and in August of 2020 they had it surveyed. The abutter would like to know where the true line actually is and how far it is from the neighbor’s deck. The abutter’s have owned the property since 2007 and built their home in 2008. David stated that another survey was done in 2000 or 2001. Jon asked if there would be any significant increase to glare, odor, noise, etc. Valentina asserts that the neighbor’s shed is only 5 years old and is on their property and needs to be moved (the applicant disputes this and says it has been there for much longer). She is concerned that the neighbor smokes and has several oil cans and wood piles there and she’s concerned for their safety.

 

The board noted that determining the property line does not fall under the board’s jurisdiction. Jon wants written confirmation from the abutter that the survey submitted is an agreed upon/undisputed property line.

 

Don Torrico was hopeful that all of this would’ve been addressed already and noted that there are several other structures that need to be moved and it was his understanding that the applicant was also going to seek relief for the shed from the Board. Don has not seen any of the confirmations that he requested of the applicant. The applicant stated that they are fully prepared to address any of Don Torrico’s concerns.

 

Jon encouraged the applicant to use the additional time to fix other encroachments that exist and they should consider moving the shed out of the setback.

 

A motion was made to continue the hearing to allow the applicant to submit additional information.  The motion was seconded and unanimously approved.

 

The hearing will be continued to March 2nd at 3pm.

 

The hearing concluded at 4:13pm 

 

Submitted by

Melissa Noe, Town Administrator