ZBA Holds Hearings On Three Special Permit Applications

Report on the Meeting of the Zoning Board of Appeals (ZBA) (11/12/20)

The meeting was held as a Zoom webinar and was recorded.
Participating:
ZBA Members: Steven Judge (Chair), Tammy Parks, Craig Meadows, Dillon Maxfield, Keith Langsdale, Robert Greeney 
Staff: Planner Maureen Pollock, Zoning Enforcement Officer/Building Inspector David Waskiewicz

Public Hearings for three Special Permit applications were held. 

The first, continued from September, was to allow a non-owner-occupied duplex at 65 High Street, and was continued to March, 2021 while the California owner studied her options. 

The second, continued from a hearing on October 1, 2020  on converting an existing garage to residential use at 274 East Pleasant Street under Sections in the Zoning Bylaw  3.3241 of the Use Table and 9.22, Non-conforming Structures and Uses. The pre-existing side yard setback is non-conforming and the lot area of this parcel is less than 16,000 square feet, but 26,000 is required for two dwelling units in the Neighborhood Residential Zone (RN). Also, the high water table and surface water drainage are serious problems in neighborhoods south of Wildwood cemetery to lower Main Street. At this hearing Bucky Sparkle, a civil engineer, represented the owner with Attorney Michael Pill in attendance. 

Having listened to abutters’ concerns on October 1, the owner decreased the number of bedrooms from three to two and the number of parking spaces from at least eight to four, with room for a turnaround so that cars can enter Strong Street facing forward. Both Sparkle and Pill had been retained only the day before the hearing, and they were only prepared to talk generally.

Neighbors, including former Planning Board members and a land-use lawyer, contend that the Zoning Board of Appeals lacks jurisdiction to act on this application, and several ZBA members as well as Chairperson Steven Judge said they would like to learn the opinion of Town Counsel. Zoning Enforcement Officer David Waskiewicz noted that an amendment was approved by Town Meeting in 1986 to provide more housing opportunities by allowing the conversion of non-residential structures to residential uses under certain conditions. He opined that owners of properties that existed before the zoning bylaw was enacted should not be penalized.

The abutters’ argument is that a proposal must comply with all 12 conditions under this section of the Bylaw. It complies with only 10 of them. However, the r remaining two conflict with each other: #2 uses the phrase “shall not allow [exceptions]” while #8 says that such a conversion is allowed if the result is not “substantially more detrimental to the neighborhood than the existing non-conforming use or non-conforming building.” 

Steven Schreiber, speaking as a resident, not in his role as Town Council member, supported the abutters saying that there are no asterisks to allow waiving this requirement for this use in the RN (Residential Neighborhood) zone.

Ultimately the Board continued the hearing until January and will ask Town Counsel for an opinion, which will be forwarded to all interested parties. 

A writer of children’s books, represented by Chris Lee of the builder Backyard Accessory Dwelling Units (ADU), asked permission to build a prefabricated 790 square foot supplemental two-bedroom apartment unit (Section 5.0111) for her mother and a prefabricated 700 square foot “barn-inspired” writing studio (Section 5.012) on her property at 34 Baker Street, in the RN district. ZBA member Keith Langsdale, who is an abutter, recused himself and was replaced on the panel by Robert Greeney. The existing house is far back on the lot, which abuts the Norwottuck Rail Trail such that the accessory structures are closer to the front, on Baker Street. There are large wetland areas to the west.

Lee explained the site plan, survey, floor plan, and elevations of the proposed units. He asked for waivers on the landscape plan; only grass is proposed at this time, and drainage studies will be done after the foundation has been dug, and said that lease and management plans should not be required since this will be an owner-occupied accessory unit. 

Though the owner reported that she had sent an explanatory letter to the abutters with contact information for questions, the abutters contended that they were hearing about this for the first time and have concerns about what could happen if the parcel were to be sold, given that there could be three dwelling units. (The writing studio is not considered a dwelling unit under the Sanitary Code because it does not have a range for cooking.)

The Chair and the Board did not seem to be satisfied with Lee’s explanations. Lee said that he is trying to control costs for the owners by not digging twice and not paying for a landscape architect. He also said he did not want to dig a large hole and leave it open over the winter. 

Waskiewicz said he knows the area well and the proposed building area might very well have impenetrable ledge, which should be considered before digging. Chair Steven Judge wanted more information about the outside appearance of the buildings, including color samples of the siding and trim, and detailed floor plans.  Design Review criteria must be met for accessory dwelling units.

The Board concluded that they would like to approve the permit but need more information. Lee responded that he has built similar units in many surrounding towns and has never had to provide more information than what the Zoning Bylaw requires, and that he has complied with the regulations. The Board, however, added that surface water drainage must be addressed. Planning staff had advised the applicant that this information is required for the Board to make findings under Sections 10.389 and 10.390. The hearing was continued to December 10 at 6:30.

Before these hearings, there was public meeting at which the Board tabled a request by Greg Stutsman to approve a fence, pursuant to Condition #2 of an already approved Special Permit. The Board determined that they could not act until that Special Permit is signed and filed. 

The Board approved sign designs for Aspen Heights Residential Community (408 Northampton Road) and transfer of ownership (and resulting management plan) of Fort River Solar 2, LLC, at the former Hickory Ridge Golf Course.

Footnotes on the Zoning Bylaws cited in this report:

1. 275 E.Pl. under Sections 3.3241 of the Use Table.

#2 A converted dwelling use may involve the conversion of one or more structures on a given property but shall not result in a total number of dwelling units on the lot exceeding what would otherwise be allowed under the provisions of Table 3, Dimensional Regulations, for the zoning district(s) in question. Further, the total number of dwelling units on a given property shall not exceed 4 in the R-G, R-VC, R-N, R-O, and R-LD districts and shall not exceed 6 in the B-G, B-L and B-VC districts.

2. #8 The Special Permit Granting Authority may modify the dimensional requirements of Table 3, to, one time only for any parcel, allow a conversion under Section 3.3241 that would add one (1) additional unit, only if it finds the modification would be in accordance with the provisions of Section 9.22. In those zoning districts where two family detached (duplex) dwellings are not permitted, conversion of a non-conforming single family detached dwelling may result in two (2) or more dwelling units under the applicable permit.

3. 9.22 The Special Permit Granting Authority authorized to act under the provisions of Section 3.3 of this bylaw may, under a Special Permit, allow a non-conforming use of a building, structure or land to be changed to a specified use not substantially different in character or in its effect on the neighborhood or on property in the vicinity. Said Authority may also authorize, under a Special Permit, a non-conforming use of a building, structure, or land to be extended, or a non-conforming building to be structurally altered, enlarged or reconstructed; provided that the Authority finds that such alteration, enlargement, or reconstruction shall not be substantially more detrimental to the neighborhood than the existing non-conforming use or non-conforming building.

4. [from a previous article in the Indy] The lot area of this parcel is ±15,989 square feet which does not meet the lot area requirement for the existing use (one family detached dwelling) and for the proposed use (converted dwelling). However, since the lot existed prior to the adoption of the Amherst Zoning Bylaw, it is considered pre-existing, nonconforming lot.

The existing structures, including the one family detached dwelling and garage do

not meet the front set back. However, since the structures existed prior to the

adoption of the Amherst Zoning Bylaw, they are considered pre-existing,

nonconforming structures

5. The Board may modify the dimensional requirements of Table 3, to, one time only

or any parcel, allow a conversion under Section 3.3241 that would add one (1)

additional unit, only if it finds the modification would be in accordance with the

provisions of Section 9.22.