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	FINAL
STOCKBRIDGE, MASSACHUSETTS
ZONING BOARD OF APPEALS

Meeting Minutes for:					Board Members in attendance:  
November 4, 2004 					Linda Day 		William Selke
7:00 PM						Patricia Flinn 		John Spencer
Stockbridge Town Hall					Thomas Schuler

DORDICK APPLICATION

Chair William Selke read the appeal notice:
“An application has been submitted by Attorney Roscoe N. Sandlin representing Jonathan and Vera Dordick of 26-28 Ice Glen Road, Stockbridge, MA who is seeking a variance from the provisions of Section 5.5 of the zoning bylaws to permit construction of a fence, which surrounds a pool, within the fifty-foot setback distance.  The property is in an R-4 zone.  The hearing with the Zoning Board of Appeals has been scheduled for Thursday, November 4, 2004 at 7:00 PM in the Selectmen’s Office at Town Hall.”

Chair Selke announced that no letters had been received by the board concerning this appeal. 

Chair Selke requested those in attendance to please sign the Attendee sheet.  The signers were: Charles Moffatt, Paula Pickett, Harris Aaronson (attorney for Komack application), Roy Komack, Vera Dordick, Vera Kalm, Bob Bartle, and N. Baldwin.

Roscoe N. Sandlin, attorney for the Dordicks, gave a short review of the application request, with four major points (see REQUEST FOR FINDING OF FACT – VARIANCE, attached to clerk’s copy of the minutes):
1.	Topographical circumstances affect the structures in question but not the zoning district,
2.	Enforcement would involve substantial hardship,
3.	Not a detriment to the public good because of the remote, wooded area,
4.	Not against the intent of the R-4 Zoning setback because unseen from the road and barely visible from the nearest abutter.
Attorney Sandlin also questioned the term “fence” vs. “structure”.

Board members then posed questions:
Q: (Member Day) Can the fence be seen when the leaves are off?
A: (Attorney Sandlin) Can’t tell yet, leaves are not all off.
Q: (Member Day) Is the land sloping where the fence is within the setback?
A: (Attorney Sandlin) Yes.
Q: (Member Spencer) Why was the fence put where it is?
A: (Attorney Sandlin) So it would not be seen.
Q: (Member Spencer) Are you challenging “fence” vs. “structure”, because that is not in the application?
A: (Attorney Sandlin) No, just asking for a variance, not challenging the terms.

Chair Selke asked those in attendance for their input and questions.
·	Vera Dordick – reiterated that this was an unintentional mistake.  She further clarified that the pool was built a year prior to the fence being installed.
·	Robert Bartle – explained that he first questioned the setback at the point the pool was being built.  And when the fence post footings were first being installed, he spoke to the contractor.  Then he wrote the building inspector.
·	Vera Dordick – commented that the fence contractor never said anything to them.
·	Robert Bartle – commented that if there is a financial burden, it should not fall to the Dordicks.  He also felt it was arrogance on the part of the contractor.
·	Member Schuler – asked Building Inspector Ned Baldwin how he became aware of the situation.
·	Building Inspector Ned Baldwin – gave a history of his involvement.  Bartle spoke to him when the pool was going in.  The pool contractor moved the pool mechanicals right away when Ned pointed out they were within the setback.  Ned said he also spoke to the fence contractor before the fence was substantially started.  Ned then explained that “structure” is anything that is built up.

Chair Selke asked if there were interest in a site visit.  Two members (Schuler and Flinn) said yes.  Chair Selke then continued the meeting to Saturday, November 6, 2004 at 8:30 AM for a site visit, and to Monday, November 8, 2004, at 7:00 PM at the Stockbridge Town Hall.

KOMACK APPLICATION

Chair John Spencer read the application notice:
“An application has been submitted by Attorney Harris N. Aaronson representing Roy L. and Lauren J. Komack of 3 Interlaken Crossroad, Stockbridge, MA who is seeking a variance from the provisions of Section 5.5 of the zoning bylaws to allow the division of the Applicant’s property into two parcels, a newly created parcel which would in all respects conform to the Zoning Bylaws, and another parcel which would be nonconforming with regard to the frontage requirements.  The property is in an R-2 zone.  The hearing with the Zoning Board of Appeals has been scheduled for Thursday, November 4, 2004 at 7:15 PM in the Selectmen’s Office at Town Hall.”

Chair Spencer announced that no letters had been received by the board concerning this appeal. 

Chair Spencer requested those in attendance to please sign the Attendee sheet.  The signers were: Harris Aaronson (Attorney for Komack), Chuck Pickett, Charles Moffatt, Roy Komack, Pauline Ghitalla (abutter), and Paula Pickett.

Harris Aaronson, attorney for the Komacks, gave a short review of the application request, with these major points:
·	The property deeds all indicated a frontage of over 500 feet (510), adequate for subdivision, but an actual survey came in just under 500 feet (492).
·	The inability to make two different lots is a financial hardship to the owner.
·	The frontage of the proposed nonconforming lot is interrupted by a Tennaco parcel.  Tennaco actually owns the land – it is not the usual lease situation.  If it had been a lease, there would be no frontage issue.  Also, the Tennaco restrictions prohibit any development on the resulting nonconforming plot.

Board members then posed questions:
Q: (Chair Spencer) When was the original family purchase?
A: (Roy Komack) 1968.
Q: (Chair Spencer) When was the most recent transfer?
A: ( Roy Komack) Two years ago.
Q: (Chair Spencer) There was nothing in between?
A: (Roy Komack) Right.
Q: (Chair Spencer) At the time of the original purchase, did Tennaco already own it’s piece?
A: (Roy Komack) Yes.
Q: (Chair Spencer) When did the problem become evident?
A: (Roy Komack) When the recent survey was done.
Q: (Chair Spencer) Was any attempt made with Tennaco to buy their parcel?
A: (Attorney Aaronson) Yes, but it didn’t work out.  Tennaco holds onto its property.

Chair Spencer asked those in attendance for their input and questions.
·	Paula Pickett – asked where a house would be situated on the new parcel.
·	Roy Komack – pointed out that the driest portion of the land is on the west side of the property.
·	Pauline Ghitalla – commented that she is the abutter to the west, and that her property is wet on the east.  She also questioned house position.
·	Chair Spencer – explained that the ZBA could only give permission to divide the property into two lots.  Buildability is a separate issue that would have to be pursued by the purchaser.  If the ZBA decision is disagreed with, it can be appealed.
·	Building Inspector Ned Baldwin – asked for a review of the history of the property.
·	Roy Komack – explained that the family originally purchased the land in 1968, and that nothing happened until he and his wife did the buyout a couple of years ago.

Chair Spencer then continued the meeting to Monday, November 8, 2004, at 7:30 PM in the Stockbridge Town Hall.

PINE WOODS COMPREHENSIVE PERMIT CHANGE
Note: Member Selke dropped out and sat in the visitor section.

Chair Linda Day referred to a letter received from Cara Davis, Executive Director of Construct, Inc.:
“We are requesting a meeting of the Zoning Board of Appeals to address a change to the development project description that has come to light as a result of a recently executed ALTA survey of the two lots pertaining to this permit.  Specific Information regarding this change will be forwarded to the board as soon as possible.  It is our assumption that the change, having to do with the total acreage of the project, will be considered a ‘substantial change’.”

Chair Day then asked Pine Woods Project Director, Tim Geller to present the information.  Project Director Geller explained that two lots were purchased for the project, totaling 18 acres.  But when the survey was done, it turns out they are NOT contiguous.  There is a 2-acre no-mans land in between, and it is not known who owns it.  He distributed copies of a highlighted map to the board members for review.  (See copy attached to the clerk’s copy of the minutes).  The change request will be to drop the permit acreage from 18 to 9.  He commented that the project had, from the beginning, planned to sell the 7-acre wetland portion of the property to the Stockbridge Land Trust.  So in hindsight, the original permit request probably should have been for 11 acres, not 18.

Member Schuler – commented that this appeared to be a classic issue of adverse possession.  He said that it might be OK, especially if it could be proved that the seller paid the taxes for the previous 7 years.

·	Member Spencer – questioned if Geller would be asking for an amendment to the Comprehensive Permit.
·	Geller – replied yes.

·	Building Inspector Ned Baldwin – questioned what impact this had on the building permit requests he understood the Project had planned to submit in the next couple of weeks.
·	Member Spencer – replied that that was a chance the project owners would be taking.  Until the Comprehensive Permit is either amended or rejected, the current status remains as valid.

Chair Day set the date for the public hearing as either (first choice) Tuesday, November 23, 2004, or (second choice) Monday, November 22, 2004, at 7:00 PM at the Stockbridge Town Hall.  She will notify the board members of the date decision.

POST MEETING NOTE:  The date of the public hearing is Tuesday, November 23, 2004.

							Respectfully submitted,
							Patricia E. Flinn, Clerk