Chairman: William Filsinger
Members Present: Arlene Murphy, Rob Cotter, Brad Wyatt, Stephen Longton
Members Absent: Janet Lombardi, Larry Campo
Mr. Filsinger called the meeting to order at 7:05 p.m.
Mr. Filsinger made a motion to approve the March 28, 2011 Meeting Minutes as amended; Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved.
Mr. Filsinger made a motion to approve the August 2, 2010 Meeting Minutes as amended; Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved.
Mr. Filsinger made a motion to approve the August 23, 2010 Meeting Minutes as amended; Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved.
Motion made to close the public hearing; Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved.
Eric Johnson, 25 Poe Avenue (Application for a Variance) – Mr. Filsinger opened the public hearing. Mr. Johnson provided the tear sheets and certified mail receipts. The property is a 50’ frontage lot with over 20,000 square feet. He would like to knock down the existing house which is approximately 800 square feet. It lies 5 feet off the line. He said the land was broken up in 1914 so it falls under the old rules and regulations. He would like to build a house basically the same location but it will be 10 feet off the line. It will conform on one side, but it will be within the setback of today’s code. There will be a new septic system, which has already been approved. He is before the board because he needs to knock the house down. If he was going
to add to it, or renovate it, he would not be required to be here. It is a pre-existing non-conforming lot with a pre-existing non-conforming structure which is grandfathered. Mr. Zahariadis (Building Inspector) said that prior to zoning, there were no dimensional setbacks. He would be making it less non-conforming that what it currently is. Mr. Filsinger asked for the square footage distance between now and the current footprint. Mr. Johnson said currently it is 800 square feet and if he was to add on he could go 50% more on the footprint, but it only goes by the footprint not the whole building. He would be putting approximately 750 square foot now. It will be smaller, but it will be two-story. Mr. Filsinger questioned whether a variance was needed or not. It is a current prior non-conforming lot, 5 feet off the line; proposed to move 10 feet off the line, improving the situation, and not infringing on any other setback.
The limit is 20 feet, but it is non-conformance, so in essence it is just being changed. Mr. Filsinger said it would be a finding. There is not enough to warrant a variance. It would be a simple majority vote. There were no board or audience comments. The board finds that (1) the proposed change does not require a variance. The board further finds that the proposed change lessens the current non-conformity on the property and the proposed structure as shown on the plan is consistent with other existing homes in the neighborhood. Mr. Zahariadis asked to leave it at the proposed application that doesn’t require a variance. Mr. Filsinger told him the board still needs to make a finding that the change is acceptable. Mr. Zahariadis said if he doesn’t need a variance, he doesn’t need a finding. In other words, he should not even be here. Mr. Filsinger said there is an issue because it is a change to a prior
non-conforming. Mr. Johnson asked if there is a waiting period for a finding. Mr. Filsinger said not legally, but the board always tells the applicant it would be best to wait the 20 days in the event somebody came forward. Mr. Filsinger revised the finding and made a motion to the finding that the board finds that the proposed change does not require a variance, and the board further finds that the proposed change lessens the current non-conformity on the property and the proposed structure as shown on the plan is consistent with other existing homes in the neighborhood. Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved unanimously. Mr. Filsinger made a motion to close the public hearing; Mr. Wyatt seconded. All in favor; none opposed; motion approved.
Michael Holyoak, 18 Boulder Way (Application for a Variance) – Mr. Filsinger opened the hearing. Attorney Flood was present asking for a petition from the front and side yard setbacks so Mr. Holyoak is able to reconstruct a house on 18 Boulder Way. He presented plans dated March 27, 2011. The plans show the proposed dwelling superimposed over the existing dwelling that was demolished. The setbacks being sought (the old 6.2’ from the western boundary); the proposed dwelling would be10.5’, which is less than required under zoning requirements, but less non-conforming that it previously was. The front yard setback (north setback) would be 20’ from the street (Boulder Way) which is less than the required 25’. The reason the house was put in this position was to take advantage
of the use of the water and was superimposed as much as possible. The position of this is to maximize the setbacks from the side and front. One of the constraining issues is that along Rocky Pond the southeastern corner is only 20.6’ from the pond, and moving it closer would impact conservation restrictions. This maximizes the use of property and trying to minimize the request for variance while at the same time making it less non-conforming than it was previously. The shape of the lot is one of the reasons a variance is requested. The uneven and odd shaped along the water restricts the use of the lot. The proposed house is almost identical to the size of the previous house, but not exact. The previous house was 39 x 25; this is 39 x 26; the difference is minimal. It is a house that is similar to others in the neighborhood so granting a variance would not derogate from the intended purpose of the bylaw. The hardship is the fact
that not able to give Mr. Holyoak financial or otherwise proper use of the land. This does make it economically feasible while requiring the variance, but making it as minimally non-confirming as possible and less so than it was previously. The septic system has a leeching field on a lot on the opposite side of the street (Map 39, Parcel 8-1). Attorney Flood turned it over to the board for any questions.
Mr. Filsinger questioned the lot where the leeching field is and it was explained by Attorney Flood and Mr. Holyoak. Mr. Filsinger asked what variances he is looking for. Attorney Flood said front and side; front yard 20’ setback from Boulder Way and the side yard is 10.5’. There was some discussion at the last meeting regarding the right of way and whether what is depicted on the plan is the way it exists now or the way it is on the current deeds. Mr. Holyoak said the engineer took it from the deeds. The current plan is from the existing right of way. Mr. Holyoak explained the conservation requirements. What is included in the setbacks was discussed. The conditions on the application were reviewed. Mr. Filsinger’s comments were as follows regarding page 2: “a”
is fine; “b” should end at “best building location”; “c” is fine; and “d” should be rewritten as follows: “the proposed house is consistent with other houses in the neighborhood which are also built on very small lots”. Mr. Filsinger asked for audience comments.
Frank Defalco, 45 Rocky Pond Road, professional engineer and land surveyor, said the property in question was previously owned by Don Hoffses. He did the survey when he was applying at the Board of Health and would like to verify that Connorstone’s plan as shown checks out what he has on his drawings for the Board of Health, so he verifies everything shown on it. The front setback could be larger. At the last meeting regarding the change in the roadway a question came up about the 10’ width. Mr. Defalco could verify that with a survey. He testified in court and his findings were verified that the 10’ width is correct. Ken Sydow said he disagreed with 10’. He said the deed allows them to pass and re-pass with any type of vehicle; 10’ restriction does not. Other than that issue, he
supports Mr. Holyoak, but he would ask that the 10’ width be eliminated from the drawing because it does not apply. Mr. Filsinger asked if the 10’ width impacted the front lot line. Attorney Flood said he did not think it did, but he is not an engineer. Mr. Defalco said the only impact was increased from the 20’ to the larger distance. The survey he did in 1988/1989 was verified from original assessor’s map, which listed a 10’ width. The original survey he conducted included all the lots from 1988/1989 and showed the 10’ width. That survey was paid for by Mr. Sydow. He had no question at the time that it was 10’ wide and the records in Worcester when he testified to what he is saying now was accepted and any disagreement was disallowed by the engineer and Mr. Sydow. Mr. Filsinger said the fact is that the right of way on this drawing says 10’ wide. If it were 12’ wide or 20’ wide, etc., does it change where the front lot line is
that we are basing all this on? Mr. Defalco said the front line right now is the original line that Connorstone Engineering has defined, it is what he found, and said it would not change the existing setback as is shown on the drawing right now. Attorney Flood said the wording on the plan “(10’)” would not affect this plan whether or not it was on it. He doubted it would have any bearing on this lot because Connorstone did the survey of this lot, not the road. Mr. Filsinger said the house is proposed to be 20’ off the front line and there is nothing that can go across from it on either point.
Mr. Sydow was asked if the notation would affect him in any way by it being there. Mr. Sydow said the reference to be construed in the future to be accurate, is not. Superior Court found it is not defined as 10’ wide. It is not defined by any plan. The lines that are shown on the Connorstone drawing are from a plan called “The Rocks”, which is an original breakup of the property. He doesn’t have a problem with the dwelling, only to the reference of something that was never defined on the original breakup, nor was it defined on any deed. Mr. Defalco said you can’t make any changes to the plan without approval of Connorstone Engineering. Ms. Murphy noted that the wording has changed from the original plan submittal. Mr. Sydow said the road is where the road is. Attorney
Flood said that doesn’t give rights to anyone to take away rights from anyone else. Mr. Filsinger said he would be inclined to put in a condition that other than the immediate boundaries of map 33-13, that this board lends no credence whatsoever to the rest of the plan. Attorney Flood asked about removing the reference to the 10’ width. Mr. Holyoak said Connorstone would not remove it from the plan. This is not an issue with the house placement. The reference to the 10’ width is the problem and the board does not want to take action that would impact the abutters on either side. There is no recorded plan, only a 1920 document. Mr. Defalco said that in order to establish the right of way, all the properties along that right of way have to be surveyed. Deeds have to be researched completely. This is what was done by Connorstone Engineering and Defalco Engineering. They established a 10’ width. He further said
pertaining to the question about it not showing on any deed, that if you look at your deed, you won’t find the width of the roadway in front of your house. It just defines the property values. It doesn’t define the road width in front of your house. It is the deed to the property you own, so in researching this you have to look at properties at both sides, which he did in 1988/1989 to establish Mr. Sydow’s property lines so that his setbacks for his septic systems met all the requirements of the Board of Health. Connorstone has done this and he has done this and Mr. Sydow has not had this road surveyed. As far as he knows, they are the only two surveyors who have done the entire road and that is why Mr. Sydow does not want to change the 10’ width because it is a violation of the state rules as far as defining right-of-ways with properties adjoining them. Mr. Filsinger asked Mr. Sydow if that showed up on his subdivision plan. Mr. Sydow said
yes it does, without a width. There are Superior Court documents that show it is wider than that, but they are not recorded on the plan. Mr. Defalco went on to say that going back to the original Rocks drawings, they had to scale each line on the drawing and match it and see what they actually meant, because this is not a true scale drawing, even though it is filed. If you scale any of these lines, you won’t find the exact distances as listed on it, so they had to find a point on this property, match it with these lines that show here, seeing how they matched each one on each side of Boulder Way and then define and determine that it was originally a 10’ wide width of roadway. Connorstone Engineering has done research to show it is 10’ wide. Attorney Flood said that Connorstone told Mr. Holyoak that they required it to be on there. Mr. Filsinger said if they can not remove it, the board would like to hear from them as to why not. Mr. Defalco
was asked if is there some reason why the dimension on the road could not be taken off the drawing. He could not give an answer. Mr. Filsinger made a motion to continue the hearing to Tuesday, May 3rd at 7:00 p.m.; Mr. Wyatt seconded the motion. All in favor; none opposed; motion approved.
The meeting was adjourned at 9:00 p.m.