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Approved
Stockbridge Zoning Board of Appeals
Meeting

May 24, 2001

Present: Robert Tublitz. Ira Bender, William Selke, James Murray, John Spencer, Linda Day

The meeting was brought to order at 6:15 P.M. Prior to the meeting, the Board received copies of a letter from J. Raymond Miyares, Stockbridge town counsel, dated May 24, 2001. Also the Board received material and a cover letter dated May 17, 2001 from F. Sydney Smithers, representing the St. Stanislaus Kostka Province of the Marians of the Immaculate Conception.

Mr. Smithers specifically referred to the May 17, 2001 material including Martin et al v The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The steeple in the Mormon case encompassed use and aesthetic beauty. Likewise in the Marions' appeal, the request is for a clerestory structure which enhances religious purpose through use of diffused light.

Mr. Smithers continued that there must be a balance between municipal concern through zoning by-laws and the religious purpose of a building. The zoning by-laws protect and preserve character and the environmental features of the town. Nothing in the proposed Marion structure is a detriment to the purposes of the by-laws. The building will have a sprinkler system and it will be built of non-combustible materials. Visitors will be on the floor level not the clerestory level. No safety issues exist with the clerestory as it is 3-4' from the sloping roof to the clerestory itself. Also, the location of the building is not a municipal hazard.

Mr. Murray remarked that if the clerestory were an exempt use, then the height of the building would be 40' from the lowest grade.

Mr. Smithers replied that even if it were 50' from the lowest grade one must still balance the by-laws with the purposes and rationale for the building. This is an exempt building for exempt use.

Mr. Spencer asked if Mr. Smithers was arguing that the Board cannot impede dimensional requirements of a building if such would "impair the character of the building" as noted in the Martin case.

Mr. Murray asked if the Marions couldn't lower the building and still maintain the character of the building. Could the Board require a lower height?

Mr. Smithers commented that this was not within the rights of the Board.
Mr. Tublitz clarified that the issues of difference of opinion between the Marions and the Board were:
Is the clerestory an appurtenance or part of the building itself?
Is the building a principal building or an accessory building?

Mr. Smithers responded that the imposition of height restrictions couldn't be used for religious buildings if the restrictions (dimensions) impair the intent and use of the building. Height restrictions must be reasonable.

The Board asked how building use would be nullified if the height from the first floor to the peak were lowered from 26' to 20'. How would this impair the religious experience?

Mr. Smithers responded that this building would have religious use and the height would give it a sense of place, space, grandeur and "religiosity". 

Mr. Selke noted that the building plans included vending machines, restrooms, a dining area and a shop. Thus is the building for religious use or is religious use accessory.

Mr. Smithers responded that one can't define this so narrowly as the Dover amendment and Chapter 40A, Section 3 protects it. Further, to impose a height 35' restriction would impermissibly impair the religious use for which the building was designed and intended and would also affect the character of the building.

Mr. Spencer clarified that the Marions are not requesting a variance and aren't required to do so for exempt use. Mr. Smithers concurred citing the Martin case. 

Mr. Spencer commented on the confrontations between Stockbridge and the Marions. He expressed concern over this.

Mr. Smithers replied that the Marions have not historically stood up to their rights under the Dover amendment. However, the Marions exist as a religious mission and take this mission very seriously.

Father Walter Dziordz explained that this is a human element not a legal one. The steps taken by the Marions were not easy ones. The Marions have supported the town and community through the by-pass issue and they have also supported the recreation center. Indeed the Marions reversed their original position on the recreation center, as such a center is not part of the mission but did fulfill a town need. 

Father continued that the Pilgrim Center will have practical religious value on a daily basis even though there may be a business there (store). The building will have daily religious use. It is also being constructed for ethical reasons. It is a practical structure as weather can be inclement and many Pilgrims are disabled; the Marions have a responsibility to these people. The building is not being constructed as a moneymaking structure.

Opinions/Comments of Board

Mr. Spencer: The building is more than 35' tall. Therefore would height restriction be applicable in this case?
Mr. Tublitz: The height issue exists. It must be balanced with religious use and this is the dilemma. Would like to look this over again and think about it.
Mr. Murray: There is no issue with accessory use; the clerestory can be effectively defended. The problem is that if the building were built to 35' height from the roof peak to the lowest point, would this nullify the use as a religious institution. This is a personal determination. I feel this could be constructed at an appropriate height and still meet religious use.
Mr. Selke: The proposed building doesn't loom over neighbors and there is no fire protection problem. The problem is the sanctity of the zoning code. There is the question of what is too lax and is this a precedent setting decision? 
 Mr. Bender: If the building were scaled back, would the religious experience be the same or not? Do you need the proposed scale to achieve the religious experience? Also, there is a concern on the sanctity of the zoning code.

Mr. Smithers commented that Boards are held to adhere to their by-laws but not required to uphold the 35' restriction. The Board must balance the needs of the town as reflected in the zoning by-laws by the effect of exempt use.

Mr. Smithers thanked the Board for its attention and thoughtfulness in considering this case.

A motion was made by Mr. Spencer and seconded by Mr. Selke to close the hearing. Motion carried.

A motion was made by Mr. Spencer and seconded by Mr. Selke to continue the meeting on Tuesday, May 29, 2001 at 4:00 P.M. for a decision. Motion carried.

Respectfully submitted,
Linda B. Day