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04-006 (3) .� CITY OF NORTHAMPTON $ ZONING BOARD OF APPEALS r � NORTHAMPTON, MASSACHUSETTS 01060 DATE: W e RE: THE REQUEST OF FREDERICK J. AND ALICE L. OSTROWSKI FOR A VARIANCE TO ALLOW FOUR HOUSES TO BE SERVED BY A COMMON DRIVEWAY AT 588 KENNEDY ROAD, LEEDS. Pursuant to the Provisions of the General Laws of the Commonwealth of Massachusetts, Chapter 40A, Section 15, notice is hereby given that a decision of the Zoning Board of Appeals of the City of Northampton was filed in the Office of the City Clerk on the above date DENYING the requested Variance. If you wish to appeal this action, your appeal must be filed in Superior Court within 20 days of the date this decision was filed in the Office of the Northampton City Clerk. Robert C. Efuscher, Chairman Northampton Zoning Board of Appeals February 20, 1991 Meeting Page Five turnouts, etc. are not the concerns of this Board. Your issue is 'three houses or four houses. For eight years there have been three houses with no problems. As to the additional 600 ' common driveway, that's not a common driveway. The deeds limit foot access to no closer than 400 ' from any house. " Mr. Weil asked Mr. Verson to "Please respond to the contention that the topographical problem is self-inflicted. " Mr. Verson replied, "Nature created the topographic feature, which is not generally found in the area. This is an exceptionally large parcel of land with small (2141 ) frontage, and a 235 ' increase in elevation from the road. " Ch. Buscher commented, "What you've got is a ridge line. " Mr. Verson added, "There are some similar lots, but they are not found generally in the zone. " Mr. Brandt commented, "Mr. Leiter makes a good argument that Ostrowski created this situation nine years ago, and he supports this with case law. Didn't Ostrowski create his own hardship?" Mr. Verson countered, "The same rigorous standard for a Variance does not apply here. " Mr. Brandt went on, "He created a strange lot, but it has a single- family house on He uses that unique lot. " Mr. Verson remarked, "It's unusual to have only one house on 66 acres in northampton. " Mr. Brandt continued, "I'd like to see your response to the 'Town of Lee' case. " Mr. Leiter inquired, "Would you like written memoranda?" Ch. Buscher replied, "Yes, with all succinct comments, cites, deed restrictions, etc. The issues may not be as complicated as they seem. " Mr. Brandt moved to continue the Public Hearing to March 20, 1991. Mr. Weil seconded, and the motion passed unanimously. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. Robert C. Buscher, Chairman Northampton Zoning Board of Appeals February 20, 1991 Meeting Page Four unusual shape of the land is self-created. Also, Section 10 talks about shape, not size. He is utilizing that property now for his single-family home. I think we have substantial legal problems with the ability of this Board to grant a Variance. What are my clients ' interests? The Fields abut, and they rely on the zoning ordinances of the city to protect them. The Variance would be illegal if granted, and doesn't meet the first two criteria. Public safety is a concern of my people. Is a fire up there going to spread to my peoples' property? Section 6. 13 says that 'grade, length and location' must be adequate. They need 15 ' of width, turnouts, etc. What we have here is a 1,200 ' driveway with 600' more to be added. That's 1/3 of a mile, and a public safety concern. This is not de minimis. " Mr. Weil asked, "At the time he set this up in 1981, the other people agreed that he could build another home?" Mr. Leiter replied, "The restriction recorded in 1981 had a requirement that 'no improvements other than one single-family dwelling with a garage holding no more than three cars shall be constructed. ' I also cite Brudzese v the ZBA of Hingham 343 Mass. 421. It says that if you have a one-family dwelling, the potential of developing another house does not equal hardship. " Also speaking in opposition was Robin Fields, 410 Kennedy Road, who said, "I speak for myself and my brother Garson. Mr. Leiter has presented our concerns thoroughly. " Richard Actuadro 640 Kennedy Road added, "I echo Mr. Leiter's and Miss Fields' remarks. " Ch. Buscher commented, "I hesitate to ask, but I 'm not totally sure why the neighbors care if there's another house up there. Some of those represented are not even close to the proposed house. " Mr. Leiter responded, "It's Rural Residential. People want things to remain the way they are. They're concerned about safety issues. What can happen four years from now when someone wants to put another house in. You're creating a subdivision outside the purview of the subdivision control law. " Mr. Verson added, "I think Mr. Buscher raised a very good question--why do these people care? This is open land surrounded by woods. I have no idea why people are here objecting. Mr. Aquadro made it perfectly clear at the Planning Board meeting when he accosted Mr. Ostrowski and called him obscene names. The Aquadro house is 1, 000 ' or more from the planned house. In terms of impact on neighbors, there is none. Their concern for safety is transparent. Leiter says there are no 'shape' or 'hardship' issues because a subdivision could have been built. I disagree. It is impossible to put in a subdivision there. " Ch. Buscher opined, "In 1981 he had three choices; 1) buy the land or don't; 2) Buy it and keep it whole; and 3) Buy it and break it up. " Mr. Verson continued, "The concerns over the width of the driveway, Northampton Zoning Board of Appeals February 20, 1991 Meeting Page Three parties who are concerned, i. e. , those who use this driveway, have assented. This is not being imposed upon anyone. " Ch. Buscher inquired, . "Getting back to hardship, if what you accept changes, why is that a hardship?" Mr. Verson replied, "They did what they were allowed to do at the time. The law changed. Now they feel it's a hardship that they can't use 57 acres. " Ch. Buscher asked, "Why is it a hardship now?" Mr. Verson responded, "Because the laws have been amended to encourage this sort of development. There is a new situation. We ask that you vote to issue a variance. " There was no one else present to speak in favor, and when the Chair called for opponents, Atty. Bruce Leiter, 274 Springfield St. , Springfield, with offices at 1500 Main St. , Springfield informed the Board that he represents "The Christensens, Aquadros, Garson Fields and his wife, and Robin Fields. I 'd like to fill you in on the prior history, about the unusual shape of the parcel and about hardship. The land was purchased on May 5, 1981. None of those lot lines were there. It was a 90 acre lot with 1, 000 ' of frontage on Kennedy Road. Ostrowski could have created a subdivision and built a proper road. Instead, he created a set of easements and restrictions. Driveway maintenance up to the westerly point of Lots 2 and 3 is the joint responsibility of the owners of those lots, plus Ostrowski. From there on, it's Ostrowski 's to maintain, and he plows the entire driveway. When Ostrowski moves, there's four users. Ostrowski recorded the plans, and conveyed out the Verson lot and three others. If he wanted to make a subdivision then, he could. He reserved the right to put a fifth house on the property if it were legal to do so. We contend that it is not legal. Variances should not be granted lightly. There is no unusual shape to the back 60 acres. At the time of the deed restrictions, he created the exact setup that now exists. Based upon case law, hardship is not caused by the shape of a lot that you yourself have created. " Ch. Buscher asked for the exact language in the deeds concerning "the back acres. " Mr. Leiter read it, and Ch. Buscher commented, "That's pretty non-specific. Do you contend that he precluded himself from changing the restrictions in the future?" Mr. Leiter replied, "He created four parcels for immediate sale, plus one for him. He precluded himself from claiming hardship. " Ch. Buscher asked, "Who does he bind himself to?" "The other four people, " replied Mr. Leiter. "He created the scheme--there's no hardship. My major point is that he chose the means to divide the parcel, and he cannot claim hardship. I cite Arego v. Planning Board of Franklin, and Gordon v. Board of Appeals of the Town of Lee. In Gordon, he bought a parcel, then subdivided, and left himself without adequate frontage. Then he found a buyer and went to the ZBA claiming hardship. The ZBA granted the Variance, but the Appeals Court overturned it. He created the situation--it 's a self-inflicted hardship, and the Northampton Zoning Board of Appeals February 20, 1991 Meeting Page Two personal to him but a hardship to any owner of the parcel. I expressed my opinion on hardship in a letter to Wayne Feiden. This is a relatively minor variation. If you rank variances on their impact on the neighborhood, you would start with a use Variance, with substantial deviation. But this one, three houses versus four houses, is extremely minor in nature. I feel we comply with the hardship criteria, but you can impose even a lesser standard. 3) Relief will not be a substantial detriment to the public good, nor will it derogate from the intent and purpose of the ordinance. What is the intent of this ordinance? The intent is to allow development that has less intensive impact on municipal services. That is precisely what we have here. Private water, private sewer, private road, no need for DPW services or street lights. Kathleen Fallon' s memo suggests that the steepness of the road will cause problems. The Fire Department states in writing that it has no problem. The Ostrowskis don't have a four-wheel drive car--neither does Hinckley. The 'strain on municipal services' that Kathleen Fallon remarks about is a mystery to me. She is not the person to comment on steepness. The only issue before this Board is the small extension of the existing driveway. Once the driveway reaches the property line of the new parcel, it is no longer common. Mr. Ostrowski will plow the road as long as he lives there. Maintenance is done by all parties who use it. The existing common driveway ends at Grinnell's driveway. " Messrs. Buscher and Verson engaged in a discussion of precisely what the common driveway is. Mr. Brandt, commenting on the DPW comment, "Driveway has slopes in excess of 15%, " said he would like the DPW's opinion on the suitability of the driveway. Mr. Verson added, "This house will not be visible from any other house in Northampton. Mr. Ostrowski and Garson Fields agree that the new house cannot be seen from Fields' house. " Ch. Buscher inquired, "What's de minimis? Here we have a house that will have no effect on anyone except the three other people who share the road. Then you say it's a hardship because your client can't use his 57 acres. One of the things you want from the Planning Board is a change in frontage. Eight years ago, was 175 ' the required frontage?" Mr. Verson replied, "Yes. He divided it up ten years ago the best he could. As to any detriment to the public good, there's nothing particularly magic about the number three for common driveways. Other communities go from one to six for the number of houses allowed off a common driveway. Oftentimes, common driveways are narrow and gravel. This is a substantial road. Four houses is nothing for this road to handle. Also, a concern of the ordinance is that a tree could fall and block the driveway. There is not one single tree close to this driveway until you get to Ostrowski's proposed private driveway. The paved part of the driveway is 12- 13 ' . The shoulders are flat for some distance. The road is plowed the width of two cars. No one has ever had to back down the length of the hill to let someone pass. My last point is that the only Northampton Zoning Board of Appeals February 20, 1991 Meeting Page One The Northampton Zoning Board of Appeals met at 8:05 p. m. on Wednesday, February 20, 1991 in Council Chambers, Wallace J. Puchalski municipal Building, Northampton, to conduct a Public Hearing on the request of Frederick J. and Alice L. Ostrowski for a Variance from the Provisions of Section 6. 12 (a) of the Northampton Zoning Ordinance to allow four houses to be served by a common driveway, instead of the allowed three, on property at 588 Kennedy Road, Leeds. Present and voting were Ch. Robert C. Buscher, William R. Brandt, and M. Sanford Weil, Jr. Ch. Buscher opened the Public Hearing by reading the Legal Notice, the application, the Chapter 40A criteria, and Section 6. 12 (a) . He mentioned that there was an abundance of correspondence in the file, but read none of it. Atty. Alan Verson was present to represent the Applicants. He said, "This is a complicated set of applications, four of which are Planning Board Special Permits, and only one, the Variance request, is before this Board tonight. The objective is that the Ostrowskis want to build a single-family house on a 57 acre lot that they own. A brief history would be helpful. In 1981 Ostrowski bought an 85 acre parcel and divided it into five lots, two of which are on Kennedy Road, two lots farther up the hill (Grinnell and Hinckley) and Ostrowski at the top of the hill on 66 acres with 214 ' of frontage. There are elaborate restrictions recorded at the registry. This land has unusual characteristics: 10-12 acres of open, unfenced field next to Kennedy Road. Another provision of the deeds is that Ostrowski reserved the right to build another house in the future. The people who bought the lots understood this. In 1983 the road was constructed. It is a solidly constructed road. In eight years the road has never presented a problem. It is the sole access for Ostrowski, Grinnell and Hinckley. The Fire Department has been up there twice. Last summer, Ostrowski decided to sell his big house and build a smaller one to the rear of his current house. The plan you see before you is what will be the result of several land swaps that Grinnell and Hinckley have agreed to. Mr. Ostrowski has spoken to almost all the abutters on the list, including all who are directly involved. No one has objected. At the Planning Board hearing, there was not one word of opposition from the neighbors. The Planning Board did not vote on the four Special Permits, but they seemed to be in favor of passing. One member suggested that this Board vote on the Variance first, and then they would vote on the Special Permits. What's before you is a Variance for four lots to be served by one common driveway. The law has three requirements: 1) The shape and topography be unique and not generally found in the district; this is a highly unusual parcel-- 66 acres, 214 ' of frontage, and a 235 ' rise in elevation from the street to Applicants' house. The law doesn't require that this be the only such parcel, just one not generally found in the district. 2) Literal enforcement must create a hardship. Ostrowski would be deprived of the use of a 57 acre parcel which is a hardship, not Northampton Zoning Board of Appeals March 20 1991 Meeting The Northampton Zoning Board of Appeals met at 7:25 p. m. on Wednesday, March 20, 1991, to continue the public hearing on the application of Frederick and Alice Ostrowski for a Variance to allow more than three homes to be served by a single common driveway. Present and voting were Chairman Robert C. Buscher, William R. Brandt, and M. Sanford Weil, Jr. Ch. Buscher read a letter from Atty. Alan Verson, representing the applicants. He requested a continuance to April 17th because his client is out of the state today, and Mr. Verson is out of the country. Ch. Buscher mentioned that counsel for both the applicant and the objecting abutters have submitted briefs. The Secretary told the Board that both briefs have been submitted to the City Solicitor for her comments and opinion. Mr. Brandt moved that the public hearing be continued to April 17th. Mr. Weil seconded, and the motion passed unanimousl . Robert C. guscher, Chairman Northampton Zoning Board of Appeals April 17, 1991 Meeting Paste Three land. The parcel is not unique. The law is clear--must be site specific. Ostrowski created the lots and has used them. The land is not unique, and I 'll vote against the variance." Mr. Weil added, "I disagree with the de minimis allegation. The road is the Planning Board's problem. I agree with Bill Brandt, the requirements for a variance are not met, especially topography. I ' ll vote against. " Ch. Buscher said, "I disagree mildly with Sandy. The road is everything here. The possibility exists to create two flag lots, but the road and common driveway is the crux of the variance. I have to agree with my colleagues. The City Council has determined that private driveways must comply with certain requirements, especially turnouts and width. Atty. Verson said that the road does not present a safety problem. He says it's de minimis. We are increasing by one third the number of lots served. That's not de minimis. As to hardship, the applicant had the decision to buy the parcel or not buy it. He bought it. He did not have to subdivide it this way. Now, he says, 'I 've enjoyed my acreage, but now it bores me. ' That's not hardship. The ordinance has an intent and purpose. It' s clear and specific about common driveways. There is no reason to grant the variance because it will derogate. Mr. Brandt moved that the variance request be denied. Mr. Weil seconded, and the motion passed unanimously. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. Robert C. Buscher, Chairman Northampton Zoning Board of Appeals April 17, 1991 Meeting Page Two requested. This is not a use variance, or a large dimensional difference. This is a minor variance. The court can relax somewhat its hardship requirement. The hardship is 57 acres with a spectacular view that they can't use if the variance is not granted. Considering the minimal nature of the request, the hardship is adequate. " Atty. Bruce Leiter, appearing on behalf of a group of neighbors, opened by saying, "I don't want to get into a discussion of who's morally right or wrong, and who has a grudge. I represent people who don't want this, and they have a right to be heard. If Ostrowski plows your driveway, you're not going to object. This is a use variance, and it's not de minimis. People have a right to rely on the zoning ordinance. These are not extreme circumstances. This does not meet the legal requirements for a variance. Where's the hardship? Not the view. You are losing financial gain, but that's not a hardship. The determinative factor is that he created the lot and has used it legally. There is no hardship shown to give an exception. The Paulding case is no precedent. Here we have an attempt to subdivide a lot, and it flies in the face of the Paulding case. This is not unique. 'Especially affecting that piece of land. ' There is nothing unique about Ostrowski ' s land. If the change in the flag lot ordinance did not include a maximum of three lots, they'd be OK. The limit was put there for a reason, to limit density. Public safety is not a bogus issue. There are basic public safety criteria--turnouts--there are none. There will be a derogation to the public good if this variance is granted. I have to argue to you that the criteria for a variance are not met. The hardship is 'not being able to build another house. ' He already is using the land. Mr. Ostrowski chose the layout of the property. He has made maximum advantage of the frontage. He created this problem. I respectfully conclude you should deny this variance. " Mr. Weil asked Atty. Verson why Christensen and Aquadro are not on the abutter list. Mr. Verson replied, "The assessors' map for this parcel is on four separate pages, and is extremely confusing. The Assessor certified my list. Mr. Ostrowski noticed that some people were not listed. Joan Sarafin concluded they weren't abutters. I sent notice to them apart from the system. " Mr. Brandt moved that the public hearing be closed. Mr. Weil seconded, and the motion passed unanimously. Mr. Brandt began the Board's discussion by saying, "Both attorneys waxed eloquently. There are certain criteria to consider. One might say, 'Who cares? ' The house is atop 66 acres and is invisible. The other side of the coin is that we do have laws that bind us. Variances are difficult to grant. Extreme cases are required. This is not an extreme case. I don't find a hardship. Ostrowski created the situation. He has had beneficial use of the Northampton Zoning Board of Appeals April 17, 1991 Meeting Page One The Northampton Zoning Board of Appeals met at 7: 00 p. m. on Wednesday, April 17, 1991 in Council Chambers, Wallace J. Puchalski Municipal Building, Northampton, to continue the Public Hearing on the Application of Frederick and Alice Ostrowski for a Variance to allow four houses to be served by a common driveway at 588 Kennedy Road, Leeds. Present and voting were Chairman Robert C. Buscher, William R. Brandt, and M. Sanford Weil. Ch. Buscher called the meeting to order, the minutes of the February 20th meeting were approved by unanimous vote, and those present were told that the Board had received voluminous briefs from attorneys for both sides, as well as the opinion of the City Solicitor, dated April 11, which the Chair read aloud. Atty. Alan Verson appeared for the Applicants, and summarized his position. He pointed out, "All this Board is concerned with is a single variance. There are three criteria which must be met: Does granting the variance derogate from the purpose and intent of the ordinance? Restricting private driveways to three homes is related to density. These lots are 20 to 63 acres. Allowing one more house is not intensive use. Look at the quality of construction of the road--12 inch gravel base and two coats of asphalt. The history of its use is that there have been no complaints about the quality of the road in eight years. The Fire Department has no objection. There are no trees adjacent to the driveway. 'Public safety' is a bogus issue of the neighbors. The users of the road have no objection. The comparison is made to the 1, 000 ' limit on subdivision roads. That's inappropriate. There could conceivably be 20 houses on a 1, 000 ' subdivision road. Here, we're talking three or four. The second point is the size, shape and topography of the parcel. The statute doesn't require that uniqueness in those areas be limited to 'the neighborhood, ' as Kathy Fallon says, but to the entire zoning district. There may be other similar lots, but they are not generally found in the district. The Ostrowskis did create the lot in 1981. There was no flag lot ordinance then, and no ordinance about the length of private driveways. They created legal lots. The Bruzzese and Lee cases involve creating lots, and leaving one lot that didn't comply. That' s not the case here. In those cases, the applicant left a lot way out of compliance, and came to the ZBA and said, 'give me a break. ' The lots before you are not trying to circumvent the ordinance--they are not in violation. They created the lots legally at that time, and now, since the ordinances have changed, the Ostrowskis want to take advantage. This is a relatively minor variance--three houses versus four houses. This case is closer to the Paulding case, where the zoning ordinance changed and the court said, 'We' ll let you build under the current ordinance. ' The third point is that literal enforcement of the ordinance must create a hardship. The law in Massachusetts is that the court can take into account relative to hardship the type of variance being Ls H s1 r DECISION OF 3 4 u NORTHAMPTON ZONING BOARD OF APPEALS DEFT OF BUILOING fNSf ECTIONS' At a meeting held on April 17, 1991, the 060 Appeals of the City of Northampton voted unanimously to DENY the request of Frederick J. Ostrowski and Alice L. Ostrowski for a Variance from the Provisions of Section 6. 12 (a) of the Northampton Zoning Ordinance, to allow four houses to be served by a common driveway at 588 Kennedy Road, Leeds, instead of the allowed three. Present and voting were Chairman Robert C. Buscher, William R. Brandt, and M. Sanford Weil, Jr. The Findings were as follows: The applicant finds himself in a situation of his own making; he has had, and continues to have, beneficial use of his land. There is no hardship involved as the result of literal enforcement of Section 6. 12 (a) . The Board finds no circumstances relating to the soil conditions, shape, or topography of applicant's parcel that are unique to this parcel and not found generally in the zoning district. The size of the parcel is irrelevant. The addition of a fourth home on the existing common driveway is not a de minimis change; it is in fact a one-third increase in the number of users. Section 6. 12 (a) is clear and specific about the number of homes to be served by a common driveway. Granting the variance will derogate from the purpose and intent of the ordinance. 1 The Variance is denie by unanimous vote. i r j Robert C. jEruscher, Chairman ' I r William R. andt M. Sanfgrd Weil, Jr`. j I I l i City of Northampton, Massachusetts Office of Planning and Development City Hail • 210 Main Street Northampton, MA 01060 • (413) 586-6950 • Community and Economic Development • Conservation • Historic Preservation • Planning Board •Zoning Board of Appeals • Northampton Parking Commission Date: May 10, 1991 RE: THE REQUEST OF FREDERICK AND ALICE OSTROWSKI FOR FOUR SPECIAL PERMITS RELATIVE TO THE PROPOSED DIVISION OF LAND ON KENNEDY ROAD. Pursuant to the Provisions of the General Laws of the Commonwealth of Massachusetts, Chapter 40A, Section 15, notice is hereby given that a decision of the Planning Board of the City of Northampton was filed with the Northampton City Clerk on the above date DENYING the requested Special PermitS. If you wish to appeal this action, your appeal must be filed in Superior Court within 20 days of the date this decision was filed in the Office of the Northampton City Clerk. Joseph Beauregaidd, Chairman Northampton Planning Board April 25, 1991 Meeting Page One The Northampton Planning Board met at 7: 00 p. M. on Thursday, April 25, 1991 in Council Chambers, Wallace J. Puchalski Municipal Building, Northampton. Present were Chair J. Beauregard, N. Duseau, J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter, J. Holeva, and W. Feiden, Senior Planner. At 10: 20, the Board turned to a discussion of the four Special Permit applications of Frederick and Alice Ostrowski. There was correspondence that the ZBA had denied the variance to allow a fourth house to be served by the common driveway. Mr. Feiden reported that Atty. Verson did not plan to appeal that decision. Mr. Crystal moved that the four Special Permit requests be denied. (They are, specifically, one under Section 6. 13 to convert the Ostrowskis' current lot to a flag lot; another under 6.13 to create a new flag lot for the proposed house behind the Ostrowskis' current house; one under Section 6.12 for access to a lot across other than the front lot line, and another under 6. 12 for the new, extended portion of the common driveway. ) The reasons for the denial are the fact that the Variance request was denied, so there is no access on the common driveway. Without a variance, the requests are not eligible for a Special Permit: 1) There is not an adequate access driveway (Section 6. 13 (j) ) for the flag lots without the use of the common driveway; 2) The plans show more than three houses on a common driveway, which is not permitted (Section 6. 12 (a) ) ; 3) There is not adequate grade for a common driveway (Section 6. 12 (c) ) ; 4) Without a common driveway, there is no appropriate access to the lot except for over the front lot line. Mrs. Mendelson seconded, and the motion passed 6-1(Hale) - 2 (Duseau, Larkin) . Dr. Joseph Beauregard, Chair Northampton Planning Board February 14, 1991 Meeting Page Five happen here. " Mr. Feiden advised, "You might want to close the Public Hearing and wait to see what the ZBA does before you vote. " Mr. Holeva then moved to close the Public Hearing. Mr. Larkin seconded, and the motion passed unanimously. " Mr. Crystal suggested, "Let's discuss the Variance. " Mr. Larkin moved to recommend approval of the Variance. Mrs. Hale seconded. Ch. Beauregard pointed out, "The fourth house will be small, and lived in by two people, and should not create a traffic problem. " Mr. Larkin opined, "I don't think we should stand in the way of a proper use of his property. " Other comments were, "No safety issues, " and "The Police and Fire Department have both been up there. " Mr. Crystal commented, "The Fire Department letter is always the same. It doesn't mean a whole lot. We have approved a common driveway for six lots at Heritage Hill. " Ch. Beauregard emphasized, "Garson Fields' letter should not affect us. " The vote on Mr. Larkin Is motion to recommend granting the variance was 5-0-3 (Crystal, Welter, Mendelson) . Mr. Crystal concluded, "I 'd like to wait for the ZBA to vote on the Special Permits. " Northampton Planning Board February 14, 1991 Meeting Page Four to meet current requirements. The permit to cross the side lot line--I see no reason to deny. I don't like the configuration of the flag lots, but won't disagree. The Variance is my problem. We upped it a while back from two houses to three. Now they want four. The impact is minimal, but change the ordinance if it's inappropriate. " Ms. Welter added, "I agree with Andy. " Ch. Beauregard pointed out that the Planning Board had approved a common driveway in the Heritage Hill development having six houses. Mr. Feiden added, "Regardless of the ZBA granting the variance, having four homes would be a reason not to grant the Special Permit. " Mr. Larkin commented, "All the objections are about a driveway that's been there eight years? I agree with Andy that there seems to be an effort to criticize this application. The extension of the common driveway is not 6001 , it's 40-=501 . I agree with Andy on the Special Permits. As to the Variance, it makes no sense to agree on the Special Permits and then throw it all out on the Variance. " Mr. Crystal commented, "The way it's configured could be changed. Access could be on the flagpole. We might want to consider conditions limiting the number of people using the common driveway, or the number of bedrooms. " Mr. Riddle added, "If this were a subdivision, I 'd be against it. This is a group of neighbors, no hardship, no problems. All the neighbors agree. In this case, I see no problems. " Mr. Ostrowski reminded the Board, "In 1981, the deed--restrictions when they bought the land, they agreed that a fourth house can be built. " Ch. Beauregard added, There's no other way to utilize this lot. This is the top of the hill. Without a Variance or other relief, this lot is useless. That's a hardship, 63 acres that can't be used. " Mr. Larkin agreed, saying, "It's very difficult to meet the hardship criteria. Not being able to use your land is a hardship, and here it's not detrimental to anyone. I don't think there's a safety issue. I disagree with Kathy Fallon. I see this as de minimis--one lot over the limit is de minimis. " Mr. Holeva added, "This is the last lot--there will be no more. " Ms. Welter commented, "I 'm not sure I agree with Bill. The driveway will have to be used for this new house. It's a long steep driveway. Is this an appropriate place to make an exception?" Mrs. Kim interjected, "There is no predilection here. The Planning Department and Kathy Fallon are objective. I hope you won't be concerned about a campaign against this application. " Mr. Verson pointed out, "This road has no trees near it until you get past Ostrowski's house. The subdivision rule on length has a concern about trees falling and blocking the road. That can't happen here. " Mr. Feiden advised, "You might want to close the Public Hearing and wait to see what the ZBA does before you vote. " Mr. Holeva then moved to close the Public Hearing. Mr. Larkin seconded, and the motion passed unanimously. " Mr. Crystal suggested, "Let's discuss the Variance. " Mr. Larkin moved to Northampton Planning Board February 14, 1991 meeting Page Three Mrs. Hale inquired, "The subdivision rules allow a 1,000 foot dead end street. This is not a street, right? This is a driveway. Can we have a 16% slope on a private driveway?" Mr. Feiden replied, "On a private driveway, it can be as long and steep as they want, but a common driveway is more like a street--more people, greater risk. " Atty. Verson commented, "What the City Solicitor says about no radius less than eighty feet, I very strongly disagree. The City Solicitor and Planning Department are acting as adversaries. Miss Fallon suggests there is a new requirement in the zoning ordinance that isn't there. The zoning ordinance says 'access roadway. ' Our driveway does not have 90 degree curves. Kathy Fallon says, 'In some cases having a common driveway serve four rather than three residences could be considered as inconsequential. In this case, the driveway is already over 1,700 ' long. To reach the proposed dwelling, it must be extended another 600 ' . ' That is not even part of the common driveway. What's on the new lot is not common. She is just plain wrong. It strikes me as a little unusual that the City Solicitor is telling you the percent slope is no good, when the Fire Department says it's OK. " Mr. Feiden urged the Board, "If you approve this and accept the concept of flag lots having this type of access and frontage, you are allowing lots to be configured with no effective frontage. This lot is not unique. There are 60-acre lots with little or no frontage in that area. This is a fairly common configuration. " Ch. Beauregard inquired, "Is there a feasible way to put a driveway to the new lot without a common driveway?" Mr. Verson replied, "No. " Mr. Ostrowski added, "I would not consider making a separate driveway. It's $30, 000-$40,000 to do that. Chief Jones tells me that any road in Northampton that a car can get up, his four-wheel drive tanker can get up. " Mr. Verson added, "An 800' road in a subdivision could have 16 homes on it. The comparisons of this to a subdivision are wrong. Keep this in perspective. " Ch. Beauregard asked Mr. Ostrowski is he could put turnouts in the driveway to comply with the ordinance. Mr. Ostrowski replied that he could, but "It's plowed wide enough in winter for two cars, and in the summer the edges are flat. " He also said he could add signs for each residence to comply. Mr. Crystal remarked, "I was a site inspector for the Variance. I don't see any real problem with the four Special Permits, but I have mixed feelings about the Variance. Judy brought up a good point. I have the distinct impression there's a significant lobbying effort here, especially from the City Solicitor. This case brings out some flaws in our ordinance. Does the flagpole have to be straight? I know the road fairly well, I've been up there quite a few times. We should, as a condition, have them try Northampton Planning Board February 14, 1991 Meeting Page Two for eight years--same side line access. " He then addressed the Special Permit for the common driveway, and explained, "All we need is another 50 ' of roadway to reach the fourth house on the 57 acre lot. Requirement (a) says, 'no more than three lots shall be serviced. ' We ask that the Planning Board approve the Special Permit for the common driveway, and submit to the ZBA a recommendation approving the variance. As to the variance, we satisfy the requirements. The size, shape and topography is highly unusual. It is not generally found in the district--huge acreage, elevation, and large frontage. Literal enforcement would create a hardship. Without the variance, Ostrowski cannot make use of a 57 acre parcel of land. It is not a personal hardship. Anyone trying to make lawful use of this parcel would have a hardship. The law allows you to take into account the use requested when looking at hardship. I submit that the use will make no difference on the use of this driveway. A fourth house will make no difference. You don't have to take as rigorous and precise a position. Detriment to the neighborhood is not an issue. The house will not be visible to any other neighbor. I believe we satisfy the requirements for a variance. " Mr. Verson concluded, "To summarize, this is a proposal to build one single family house. The driveway has been in existence for eight years. The Fire Department has no problem with it. The ordinance is intended to foster this type of activity. The plan does not affect any neighbors. " Mr. Holeva inquired, "Do you need a variance from 6. 12 (c) ? Mr. Ostrowski replied, "No. There are no blacktopped turnouts, but there are flat, grassy areas almost the whole length of the driveway for turnouts, plus the Grinnell and Hinckley driveways. The road is 12-14 ' wide. " Mr. Holeva then asked, "Is it practical to put a driveway to Grinnell from Kennedy Road?" Mr. Verson replied, "Probably not, " and Mr. Crystal added, "Extremely impractical. " There were no other proponents, and no opponents. The Chair asked for general comments, and Mr. Feiden remarked, "With four homes versus three, the issue is emergency vehicles. If the road is narrow, there's a much greater safety risk. The average grade may be 11%, but 100 feet of ice on a 17% slope will prevent access. The Fire Department memo is generic--they write the same thing every time. Roads should be wider and not so steep. On the Special Permit for side access, technically (i) is not met. The 50 ' access width is not met. Kathy Fallon's letter says the two 90 degree turns cause the driveway to fail. " At this point, Ch. Beauregard read Kathy Fallon's two-page memo dated February 14, 1991. He also read a February 12 letter from an abutter, Garson Fields. Northampton Planning Board February 14, 1991 Meeting Page One The Northampton Planning Board met at 7: 00 p. m. on Thursday, February 14, 1991 in Council Chambers, Wallace J. Puchalski Municipal Building, Northampton. Present were Chair J. Beauregard, J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter and J. Holeva; P. Kim and W. Feiden as staff. At 8: 00 P. m. , Ch. Beauregard opened the Public Hearing on the Applications of Fred and Alice Ostrowski for four Special Permits relative to creating two flag lots, gaining access to a parcel via other than the front lot line, and creating a common driveway. A Variance is also requested to allow the common driveway to serve one more house than allowed. (The Board will discuss the variance in the context of the Special Permits, and make a recommendation to the ZBA. ) Atty. Alan Verson, representing the Ostrowskis, explained that they bought the entire 85 acre parcel in 1981. Three building lots were created, and are now occupied by Grinnell, Hinckley, and Ostrowski. The Ostrowskis wish to sell the house in which they now live, and build a smaller one toward the rear of the parcel. To accomplish this, there will be some "land swapping" involving the three residents, so that Grinnell and Hinckley are left with legal frontage on Kennedy Road; the current Ostrowski parcel becomes a flag lot with adequate frontage, and the proposed new lot becomes a flag lot with adequate frontage. The existing common driveway will be extended to serve the new home, which will not be visible from the road. He explained that there are deed restrictions whereby Grinnell and Hinckley assented to Ostrowski, at some point in the future, being allowed to create another lot and build another house on it. He described the driveway, which was installed in 1983 , as , not a quick and cheap gravel road. It has a 12"-24" gravel base, four big culverts and two layers of asphalt--it has never been a problem in eight years. " He addressed the Flag Lot criteria, Section 6. 13, and claimed to satisfy (a) through (i) . " (j) is what this hearing is about--the grade, length and construction of the driveway. Feiden says this road is woefully inadequate. This Board routinely relies on the Fire Department's opinion on driveways. Chief Jones has found the driveway acceptable. In spite of Mr. Feiden's opinions, the Fire Department has gone up the length of it twice with no problems. The Police Department has done the same. Feiden says 16% grades exist, but from Kennedy Road to the new lot averages 11%. The length of the driveway from Kennedy Road to the lot line of the new lot is 1/3 of a mile, not a half-mile. As to the quality of construction, Feiden says it 'compares very poorly to municipal roads. ' This is not a municipal road, it's a private driveway. Is it an adequate private driveway? I think so, and I submit to you it is unquestionably of adequate construction. This is a private development that puts no strains on the city--private water and sewer, private road, no DPW maintenance, no street lights. " Mr. Verson then turned to the Special Permit under Section 6.12 for access on the side of the lot, and said, "This road has been there NORTHAMPTON PLANNING BOARD DECISION FREDERICK J. AND ALICE L. OSTROWSKI REQUESTS FOR FOUR SPECIAL PERMITS. PAGE TWO precludes access to it. In addition, the ordinance intended to create flag lots with a long narrow band which runs around the edge of a second lot. A flag lot is so-called because it looks like a flag. The proposed lot in no way resembles the configuration intended by the ordinance. 5. The common driveway does not have adequate grades or turnouts as required and cannot be approved. 6. Without a common driveway, there is no appropriate access to the lot except for over the front lot line. Voting in favor of denying were Beauregard, Mendelson, Crystal, Riddle, Welter and Holeva. Voting against denying was Hale. Abstaining were Duseau and Larkin. The four Special Permits are denied. Dr. Joseph Beauregard, Chair j Andrew Cryst Marion Mendelson deg EZ I I `-� dith Hale Nancy P. pZseau 'I C 1� E . Ja'Oe-sH, Wi liam J. l7 n Dia a Welter Bob Riddle �i i O Cab i i t i 1 i,7 � L "G> SI ,' DECISION OF r _ NORTHAMPTON PLANNING BOARD .. � At a meeting held on April 25, 1991, the Planning Board of the City of Northampton voted Six to One, with One abstention, to DENY the requests of Frederick J. Ostrowski and Alice L. Ostrowski for four Special Permits, specifically: a O_pecia _-Permit-, under the provisions of Section 6. 13 of the Northampton Zoning Ordinance to convert to a flag lot the lot on which the applicants now have a home; another Special Permit under that same section to create a new flag lot, the building envelope of which will be to the rear of the applicants' present home; a Special Permit under the provisions of Section 6. 12 to allow access to a lot across a lot line other than the front lot line; and another Special Permit under Section 6.12 to allow the extension of an existing common driveway to serve the dwelling planned to be constructed behind the applicants' present home. 'Present and voting were Chairman J. Beauregard, N. Duseau, J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter and J. Holeva. The Board made the following findings: it 1. At the same time these four applications were filed, a request for a Variance from the Provisions of Section 6. 12 (a) was filed with the Zoning Board of Appeals. This request is to allow a fourth residence to be served by a common driveway, this being one more than Section 6. 12 (a) allows. � I 2 . On April 17, 1991, the Zoning Board of Appeals voted unanimously to DENY this request for a Variance. I 3 . With the denial of the Variance, a Special Permit for a common driveway does not comply with §6. 12 (a) because there j are more than three houses on the proposed common driveway. 4 . The new flag lot to the rear of Applicants' present dwelling canot be created because the denial of the Variance Fj LI Ij Ii J.- qj 4.) Lm: it 11:11 C7. ..I 1 1 1 I TJ tj I Ij I.j I-: CJ IN p) [::ri AD I Lt 1:71 1. I I ID I.-.:: LI f�I Ll Fi tj .1.11 1 1 Li jj I 1.,j X11 1 .{.J Cj,. Tj I.j iff (:::: C.* !: Ij 1 111.1 .{.J (D A-J ".., 111.1 .!... I'D ID 1 10 Ili I fl C.1 ...... 4 1:7 1A 1:: ID LII I A T-1 71 tj Ili Ili - El Ij ID ID 1:1) irl I)1 . ' 1 .) Soecial Permit under Section 6.1� �or a f / a� lot for tne existing nouse lot . �. ) Special Permit under Section 6,13 for a flag io� for the new house lot . 3.) Special Permit under Section 6.12 for vehicular access to the new house � ot over the �ide ) ot line . 4') Special P�rmit under Section 6'12 for use of a common driveway in connection with the new house lot . 5.) Variance from the orovisions of Section 6'12(a) to allow a common driveway to service a total of four houses rat�er than three houses. 1 .) The shape and topography of the Ostrowski � and , being 63 acres with only 214 feet of frontage and rising 235 feet in elevation from the road ° is a circumstance that is not generally found throughout the Rural Residential district . The existence of this unusua) shape an0 topography is what creates the need for the variance. 2.) Literal enforcement of Section 6.12(a) would prohibit creating a new flag lot for the proposed new residence merely because the common driveway wou\ d then service four, rather than three, houses. This would be a substantial hardship because the entire back 57-acre parr-el could not be utilized . This hardship is not personal to the Ostrowskis, but would be experienced by anyone attempting to make a reasonable and permitted flag lot use of the property. The need for the variance could be avoided by putting a second driveway all the way up from Kennedy Road , but that would be extremely expensive, destructive to the ' . . ' 6' ' Freder�ck J . Ostrowski and Alice L. Ostrowski presently reside �n Leeds in a single-family house situated on a 66-acre p�rce� tha� has frontage on Kennedy Road of 215.47 feet ' They propose to divide the lo� by creating two flag lots under Section 6.13^ and then to erect another hou�e, in which they wou7d iive` trat would be located approximately 1800 feet off of Kennedy Road . to the rear of the existing house. There is an existing driveway off of Kennedy Road that was constructed approximately eight years ago. This driveway services two other houses in addition to applicant 's present house, and i� wou| d be extended approximate� y another �O� feet to reach the pr000sed new house. This driveway is located sucn tha� the flag � ots would not have the reouired access frontage, access width , or access roa�way. For this reason, the Ostrowskis request a special permit under Section 6.12 for vehicular access to the new house lot across the side lot line. Since t e access drivewav wi) l be the same common driveway as presently exists for the three existing house, a special permit for a common driveway is requested . As stated above, this driveway has been in existence for about eight years and has created no probl EM'S. The Fire Department has had occasion to travel the length of it , and will state in writing that they have no objection to it . Due to the fact that the common driveway will end up servicing a total of four houses , a variance is requested from the limitation of Subsection 6.12(a) that the common driveway serve no more than three houses. In summary, the Ostrowskis request the following : �`- Date Filed File ii VARIANCE APPLICATION Alan Verson, attorney for 1. Name of A Dlicant: Frederick J. Ostrowski. and Alice L. 0strowski Address: 36 Main Street, _ort ampton Telephone: SS6-1348 2 . Owner of Property: Frederick J. Ostrowski and Alice -_1 . Ostrowski Address: 588 Kennedy Road, Leeds Telephone: 584-0464 3 . Status of Applicant: Owner Contract Purchaser Lessee X Other (explain: attorney for owners ) 4 . Parcel Identification: Zoning Map Sheets 9 Parcei7 1 , Zoning District(s) Rural Residential , Street Address 588 Kennedy Road Leeds n5 . Variance is being requested under Zoning Ordinance Section 6. 12(a) , Page 6-13 6 . Narrative DescriotTon of Proposed Work/Project: (Use additional sheets if necessary) see attached Description of Proposed Work 1 0 7 . State How Work/Proposal Complies with Variance Criteria: (See Applicant's Guide and use additional sheets if necessary) see attached Compliance with Criteria 0 8 . Attached Plans: Sketch Plan X Site Plan None Required 9 . Abutters (See instructions. Use attached abutter's list) 10. Certification: I hereby certify that I have read the GUIDE TO APPLYING FOR A ZONING VARIANCE, SPECIAL PERMIT OR FINDING and that the information contained herein is true and accurate to the best of my knowledge. Frederick J. Ostrowski and Alic Os rowski Date: 12/A"1' 190 Applicant's Signature: By: Alan Verson, their attorney 3/90