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17A-297 ZBA Appeal meeting 2014-04-02The Northampton Zoning Board of Appeals Minutes of Meeting Feb 27, 2014 City of Northampton Council Chambers, 212 Main St., Northampton, MA Members Present:Time Chair, David Bloomberg Vice Chair, Malcolm B. “Barry” Smith Sara Northrup Bob Riddle, Assoc. Member Elizabeth Silver, Associate Member Staff: Senior Planner, Carolyn Misch Planning Director, Wayne Feiden 5:3 0 PM. Upon noting that there was no general public comment, Barry Smith opened the hearing for the Special Permit additional ground sign, Historic Round Hill Summit, LLC 47 / 49 Round Hill Rd, Northampton, Map Id 31B-006. Demetrios Panteleakis, representing Historic Round Hill Summit noted that they were seeking approval for a temporary sign as modified by Historical Commission in its vote earlier this week. This includes a one year expiration of the permit and a smaller size of 3’ x 6’. Janet Gross, 38 Round Hill Rd spoke in opposition to the signs. She noted she was making the same comments to Zoning Board of Appeals as she made to Historical Commission. Her comments were also based on the original size submitted and not the final size conditioned by Historical Commission. She asked why more than one sign would be allowed. Elizabeth Silver asked for a description of the overall project and how long temporary signs would remain? Panteleakis stated that construction should be complete between February and March of 2015. Elizabeth Silver asked if the two could be merged to one sign? Upon motion by Bob Riddle and second by Sara Northrup, the Board voted unanimously to close the hearing. Sara Northrup noted she didn’t have a problem with signs as long as they are not lit, and that they are temporary. cost2 Upon motion by Sara Northrup and second by Bob Riddle, the Board voted unanimously to approve both signs with conditions that the size not exceeds 3’ x 6’, it is unlit and the permit would expire after a year. 5: 45 PM Smith opened the Special Permit request for greater than 12” projecting side wall sign, 306 King St, Northampton, Map ID 24B-048. No applicant was present and there was no public comment. Upon motion by Sara Northrup and second by Bob Riddle, the board voted unanimously to close the hearing. Upon motion by Bob Riddle and second by Sara Northrup the Board voted unanimously to approve the sign with condition that lights be turned off 1 hour after closing. 5:50 PM Malcolm Smith opened the hearing on the appeal of Building Commissioner’s Determination for buildable lot by Linda Matson & Robert Gould, 140 Hillcrest Rd, Florence, Map ID 17A-297. The Board noted that Elizabeth Silver, associate member would sit in for David Bloomberg for this hearing. Attorney John McGlaughlin, representing the appellant, presented the application. He referenced the application and reiterated the information within those noting that the two subject parcels were taxed separately and that an old stone wall separated the two portions of the properties, arguing this further indicated that the two had not merged. He presented pictures of the property and indicated that there were separate mailing and street addresses for each. He argued that paragraph 4 of MGL40a §6 only deals with lots that are grandfathered that are unbuilt. Elizabeth Silver noted that her interpretation of paragraph 4 is different and asked for confirmation of time frame and looked at acquisition of hillcrest into the Kimball portion of the parcel. She clarified that the applicant was suggesting that a merger didn’t happen. McGlaughlin confirmed. He stated that the parcels never merged on the ground. This merger doctrine only applies when seeking grandfathered rights. Barry Smith noted that the “Carabetta” case says it does deal with “complying lot” McClaughlin noted that there is no case where a perfectly good lot would be not allowed to be built on, except Carabetta. He argued that the Land Court said a merger didn’t happen. And Appellant court agreed. cost3 Elizabeth Silver noted she interpreted the case differently. She noted that her question is whether there was a merger with Kimball and Hillcrest and therefore cannot undo it. Linda Matson, owner of Hillcrest described their proposed house layout and that it wouldn’t work on the site unless they had the entire parcel to work with. Ed Etheredge, 64 Gothic St representing Kimball Street owners, agreed that merger doesn’t apply to this situation and further expressed belief that this is not a noxious use of land. He argued the Board should use common sense to evaluate. Louis Hasbrouck, Building Commissioner explained how he came to his decision and noted that it took little effort in title search to determine common ownership. Barry Smith noted that there is no case that addresses compliant lots. How would basic public interest be gained in having these lots merged? Wouldn’t we have destroyed a conforming lot if we do this? Elizabeth Silver asked Hasbrouck to confirm that the Hillcrest portion cures the non-conformity for Kimball. Hasbrouck agreed. Elizabeth Silver asked if this is a unique situation. Staff indicated that there are many such situations in Northampton. Board discussed cases for undersized lots. Sara Northrup asked if in fact there was 40’ of frontage instead of 20’. She noted that the purpose of frontage is for emergency access. Kimball does have safe egress to property. Most important thing is emergency access. You cannot require Hillcrest owners to deed the land. She asked if an easement would cure the problem. Staff stated that fee simple ownership was required to create conforming lots. Elizabeth Silver stated that Zoning is for conformity and asked if overruling the Commissioner’s determination on merger would set a precedent. Gary Levine, 130 Hillcrest, spoke against the concept of redrawing the lots since it would create a new lot that would be smaller than others on the street. Upon motion by Elizabeth Silver and second by Sara Northrup the board voted unanimously to close the hearing. Sara Northrup stated that she didn’t think that granting a permit for the lot increases non- conformities. No ANR applied. cost4 Board discussed validity of merger. Smith focused on the language of “undersized” lots and merger. He emphasized that inequities strongly favor of applicant. Carabetta noted inequities. 140 Hillcrest is useless if merger is determined. Merger doctrine is not applicable. Sara Northrup stated that she did not believe a building permit for Hillcrest would make a non- conformity worse. Further given the uniqueness of the case, there would be no precedent. She also noted that she didn’t believe the City would appeal Zoning Board of Appeals decision. Finally she expressed the belief that when lots continue to be taxed it was an endorsement of buildability. Elizabeth Silver stated that this has everything to do with inequities, but she read merger doctrine differently. Technically Kimball came out of non-conformity when merged with this lot. If the Board overturns the Building Commissioner, it would re-create non-conformity. On the other hand, upholding the Building Commissioner wouldn’t really change things on the ground. Silver asked for more time to consider a decision -- for 2 weeks. The Board had more discussion. Elizabeth Silver stated in reviewing the definition of lot and for what a lot is customarily used she would be comfortable to say that there was no merger. Upon motion by Sara Northrup and second by Elizabeth Silver the Board voted unanimously to overturn the Building Commissioner and grant the appeal. 7:20 Upon motion by Bob Riddle and second by Sara Northrup the board voted unanimously to adjourn.