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Zoning Board of Appeals Minutes 5/5/09
Becket Zoning Board of Appeals
Approved Minutes
Tuesday, May 5th, 2009

Board Members Present:  Sue Schneider;Chairperson, Joshua  Lombard ; Clerk , Robert Gorden, Madeleine Swindlehurst, Mark Burgwardt.

Board Members Absent:   None
Members of the Public Present:  Shawn Leary (Attorney for the applicants)

Meeting called to order:  7:05 p.m.  

Review and Acceptance of  April 14th, 2009 Meeting Minutes – Mr. Robert Gorden  makes a motion to approve minutes from April 14th,2009. Mr. Joshua Lombard seconds motion; Unanimous Approval.

Public Hearing: Mr. William Cichaski, 27 Western Ave, Map 211, Lot 86.
Hearing Continued.

Public Hearing; Andrew and Aimee Bevacqua, 607 Yokum Pond Road, Assessor Map 203, Lot 21.
Public Hearing opens at 7:07 pm.
Ms. Susan Schneider opens discussion and advises that the board members have done their homework and have come up with a list of restrictions. At this time all board members , as well as Atty. Leary are presented with a revised list of restrictions drafted by alternate member, Ms. Madeleine Swindlehurst ( please see attached; ZBABev2DRAFT 05MAY09). Ms. Leary presents the board members with the new plan created by Ann Bruzzi , plan referred to as revision #4. Ms. Leary explains that this new plan was just presented to her and that Ms. Bruzzi wanted to attend the meeting but unfortunately was unable to. Ms. Leary asks Board members if the larger size plan can even be filed with the registry of deeds, knowing that it will be scanned and put on the computer. Ms. Swindlehurst replies that a large copy, showing all detail shall be the one that is filed.
Ms. Swindlehurst advises board members that there should be two separate votes; one for the specific restrictions and the other for the variance. Board members discuss the applicant’s proposal in detail.

Mr. Robert Gorden makes a motion to vote on the restrictions as specifically outlined and detailed in the Madeleine Swindlehurst version; as revised. Mr. Lombard seconds motion.  

Next, Mr. Mark Burgwardt makes a motion to grant a 20- ft. rear line setback for the construction of a 296 sq. ft. deck and 120 sq. ft. screen house (porch) atop the deck with the following revisions and restrictions (Madeleine Sindlehurst version/draft 05May09 as revised). Robert Gorden seconds motion. Ms. Swindlehurst suggests that we defer Mr. Burgwardt’s motion for the variance as board members go back and review the findings. At this time the four findings are discussed and reviewed by board members. Board members discuss soil structure, literal enforcement, hardship, and detriment to public good. After discussion, board members decide to have Mark Burgwardt’s motion stand. Board members deliberate, opinion slips are passed out to board members present.Ms. Schneider polls board for their vote:

Susan Schneider- Deny; 1. The location on the lot was selected by conservation commission as the most appropriate site-yes. 2. The petitioners would not suffer any hardships, without said deck and screen house. 3. The public access and the fact that it is a great pond greatly affect everyone. 4. The Bylaw does encourage highest and best use of the Becket property-Yes.

Joshua Lombard- Approve; 1. Having visited the site, I agree that the structure is reasonably affected by topography and wetlands. 2. The hardship that would affect the applicants is being substantially unable to enjoy their site and proximity to Yokum Pond. 3. Building this structure does not substantially alter the public’s or abutter’s interest in using or viewing the pond. 4. The proposed structure increases the possibility of best use and does not conflict with established patterns of use in their neighborhood.

Mark Burgwardt- Approve; Due to the surrounding wetlands, this location is the only usable area. 2. The screened area will allow protection from the sun, the mosquitoes, while using the lake area and being so far from the home dwelling. 3. Minimal visual impact to the area using neutral colors and limited height away from the much taller foliage. No objections from the abutters. 4. yes-see description.

Robert Gorden- Approve- 1. The particular topography of this lot…..2. This would cause owners substantial hardship. 3. Where as abutters and nearby parcels are similarly developed. 4. Granting the variance would make the best use of this Becket Property. Therefore, I approve this variance with its amendments.

Madeleine Swindlehurst-Deny-Application for a 20 ft. rear line variance as presented in application and plans- I feel constrained to deny the application because applicant did not , to my satisfaction meet all four of the findings required by MAGL 40A,chapter 10 as follows:
  • Topography, soil conditions, shape that affects the land or structures-yes, met finding. 2. Substantial hardship-FAILED-because applicants have less intrusive options to make recreational use of their lakeside property ( a simple bench, for example, or only  a deck without the screen house. ) 3. and 4. Without substantial detriment to the public good and/or nullifying or derogation from the intent and purpose of the Zoning Bylaws. Fails  to comply with Becket Zoning Bylaw section which prohibits encroachment…[…]when considering the “cumulative effect of the proposed development, when combined with all other existing and anticipated development…[…]” Whether or not the proposed construction on lakeshore line is to be deemed appropriate is questionable, since granting this variance would be precedent-setting, and would affect many existing and similar lakeshore properties in the town of Becket, which is blessed with many ponds and lakes deemed valued enough to be subject of “Shoreline Conservation Forus”(Ref. Town of Becket open space and recreation plan, Nov. 21, 2006, copy attached.)
At this point, Ms. Leary asks if she can make one last plea of the board, sighting the fact that the Bevacquas have been so flexible throughout this entire process, and if they thought the end result was going to be that they were going to be denied, they certainly would not have spent the additional monies.  Ms. Swindlehurst explains to Ms. Leary that they should have had some insight from the March meeting and at that time they could have withdrawn their application without prejudice. Ms.Leary advises that her clients felt like they were making progress in the right direction, toward an agreeable solution. Ms. Leary advises that if the board would reconsider anything at this point, they would be happy to do anything at all to make this work.
Mr. Gorden states this is by far the most difficult case he has had since joining the board and that he feels like each member is truly trying to be true to the oath that they took.  Mark Burgwardt states that it is his opinion that if this was going to be the outcome, then the board should not have drawn it out so long. Ms.Swindlehurst advises Mr.Bugwardt that the four findings are always the same and that all four need to be fulfilled and that is the way it has always been. Ms. Leary asks if the board could possibly reconsider just one more continuance. Madeleine advises it is too late for that because the motion was made and the vote was taken. Ms.Schneider states that a new motion could be written and then voted on. Ms. Swindlehurst passes out copies of MGL chapter 40A subsection 16 to all of the members and asks if it could be made part of the public record.  Ms.Schneider and Ms. Swindlehurst discuss their difference in interpretation of MGL. At this time, Ms. Swindlehurst announces she is officially retiring from the Zoning Board of Appeals and that she will be in the Town Hall tomorrow to give her notice to the Town Clerk and the Board of Selectmen.
8:35 Ms. Swindlehurst leaves meeting.
Chairperson, Susan Schneider gives the board members left the option of rewriting the motion and voting on that new motion, in consideration of the very unique circumstances. The board members again discuss the unique situation of this application.

Mr. Joshua Lombard makes a motion to grant a 20 ft. rear line setback for the construction of a 296 sq. ft. deck as shown on plans May 5th, 05 .Restrictions will now be; 1. As shown on the plans, the  deck is not to exceed 296 sq. ft. in area. Associated access stairs from the proposed dock may occupy an additional 32 sq. ft. 2. The wood deck, located as shown on the plans, shall be at a level not to exceed approx. 5-6 ft. above annual high water level and as shown on the plan. 3. No fuel powered generator for electricity shall be located or operated within the rear or side yard set-back areas. 4. No flammable solid, liquid or gaseous fuels shall be stored within the rear or side yard set back areas. 5. No plumbing or shower fixtures shall be added. 6. The proposed adjoining dock projecting into the pond shall require a separate state permit.

Mr. Robert Gorden seconds motion (adding as long as it falls within MGL)

Opinion slips are again passed out to board members that remain in attendance.
Opinion slips for Mr. Burgwardt, Mr. Gorden and Mr. Lombard all remain the same.
Ms. Schneider changes her opinion slips (numbers #2 and #3 only) with #1 and #4 remaining the same.
Susan Schneider- Approve (new motion) 2. The only hardship being that the particular spot is the only appropriate spot to add a dock. 3. No detriment to public based on deck size and height.

Mark Burgwardt-Approve
Susan Schneider- Approve
Joshua Lombard-Approve
Robert Gorden-Approve

Correspondence- Read and Reviewed

Budget-Read and Reviewed

Schedule next meeting for Tuesday June 2nd, 2009

Ms. Leary thanks board members for their patience and understanding.

Mr. Burgwardt makes a motion to adjourn meeting, Mr. Gorden seconds motion. Meeting Adjourned at 9:15pm.

Respectfully submitted,

Heather Hunt
Administrative Assistant

Signed______________________________             Date__________________
           Susan Schneider, Chairperson

Signed_____________________________              Date___________________
           Joshua Lombard, Clerk

Signed______________________________          Date____________________

           Robert Gorden

Signed______________________________          Date ____________________
          Mark Burgwardt

Signed _____________________________           Date_____________________
           Madeleine Swindlehurst

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