Zoning Board of Appeals Meeting Minutes 09/03/2019

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Town of Otis, Massachusetts


September 3, 2019


Meeting held at Otis Town Hall

1 North Main Road, Otis, MA

7:00 pm – 7:10 pm


ZBA Members: (Present) Therese Gould, James Kauffman, Geoffrey Geane, and Sara Skibski-Hiller,

Michael Ernst

ZBA Members: (Absent) RoseAnn DeRupo

Clerk: Kathy Couch

Applicant: David Donahue and Jeanne Donahue, D&J Development, LLC

Public Attendees: Larry Gould, Building Inspector, Atty Vicki Donahue, Sarah Gapinski, S-K Designs, Wayne WOSCZYNA


Meeting at convened 7:02 pm.


Chairperson Terry Gould opened the meeting. Introductions of the board members were made. There is a quorum; there are four voting members and one alternate present tonight


Agenda item #1 – To hear and act upon the application of D&J Development, LLC

The applicant is applying for a Zoning By-Law Special permit under 3.3.3 of the Otis Zoning by-laws to demolish and reconstruct a pre-existing non-conforming building on a non-conforming lot, increasing the non-conformity. The proposed setbacks are approximately 2.7’ on the western side setback, 5.2’on the eastern side setback, 5.0’ on the southern rear setback, and 6.0’ northern frontage.


Chairperson Terry Gould opened the meeting. Introductions of the board members were made. There is a quorum; there are four voting members and one alternate present tonight.


Kathy Couch, ZBA clerk, stated that the public notice was placed in the Berkshire Eagle on Tuesday, August 20, 2019 and Tuesday, August 27, 2019.  A mailing including the public notice was sent to the abutters within 300’ of the property on August 14, 2019


Sara Gapinski from SK Design Group presented for the applicant.  She stated that the applicant has applied for a special permit for a non-conforming building on a non-conforming lot. The parcel is located along Reservoir Rd.

It is a 2036 sq. foot lot and contains a building that is 781 sq. ft. with a 140 sq. ft deck on the side. The building is currently located over the property line on the rear and side.


The applicant would demolish the existing building and replace it with a 30’x 21’ building with a 12’x12’ “bump out”. The proposed building would be a total of 764 sq. ft. The building would be used in conjunction with the Town House Development with is before the Planning Board for a special permit application. The proposed building would be constructed entirely on the building lot. When reconstructed the setbacks would be 2.8’ on the west, 5. On the south, 5.3’ on the east and 6.5’ on the northern road frontage (Reservoir Rd.).


The utilities would be underground from the townhouse development. There will be a shared septic system. There will be a public water supply well.



Currently the building is in the flood plain of Otis Reservoir once built it will be outside the flood plain and off DCR property.

Ms. Gapinski stated that the board can issue the special permit if they determine that the reconstruction is not more detrimental to the neighborhood than the existing building. The applicant wants to construct a building that is smaller with upgraded utilities, there is adequate parking as the building will be an accessory use to the townhouse development, the building will be entirely constructed on land that is owned by the applicant, and the building will be moved from the floodplain.  The proposed building is a substantial improvement over the current building.


Ms. Gapinski stated the application has been approved by the Conservation Commission at its last meeting. It went under a peer review for stormwater and wetland impacts. They are going in front of the Planning Board and anticipate that they will be given a special permit for the townhouse development.


Member Geoff Geane asked about the use of the building. Ms. Gapinski responded that it would be used as a common space or clubhouse/gathering space for the residents of the townhouse.


Applicant Dave Donahue stated that the small space could be used for yoga in the morning, cards at night and there will be bathrooms for the Marina.


Member Michael Ernst asked about where the septic would be located. Ms. Gapinski stated that there would be a pump system for the proposed building tied into the townhouse development.


Chairperson asked if the applicant was aware of the setback requirements for the V1 village district?  Ms. Gapinski stated that she believed that they are 10 feet.


Chairperson Gould asked why the applicant is applying for a special permit when they previously came before the board with a variance application? Ms. Gapinski stated that with the variance the applicant was increasing the non-conformity by pushing the building as far away from the lake as possible. By doing that the proposed building’s setback was only going to be two feet from the property line on the frontage. The current structure did not have a non-conformity at that time. In accordance of 3.3.4 when you increase the non-conformity you must apply for a variance.  The applicant thought they had a great argument for a variance; normally the three criteria for a variance are topography, lot configuration and soils. The applicant has a 2000 sq. ft. lot and thought that the lot size was a hardship. Also, along the reservoir there are fairly steep slopes so they thought half the lot was taken up by steep slopes that was another good argument. Then the soil is all compact gravel; although they have not done any test pits, they would say the soils are erosive and next to the Reservoir. The applicant thought they had a strong case for the variance. Now they have returned to the board with a special permit application. In the special permit they have increased the setbacks.


Member Ernst asked about the foundation. He was wondering if they would be cement blocks.

Ms. Gapinski replied that they were looking into helical piers. This would avoid digging in close proximity of the Reservoir.


Chairperson Gould would like the applicant to show her the differences in the variance application and the special permit application that is in front of the board.





Applicant Donahue stated that he has worked with the Building Inspector and that there is now a 17% reduction in the building footprint. Also, they are not increasing the non-conformity they are decreasing the non-conformity.


Atty. Vicki Donahue stated that one of the big differences is that the proposed structure would have been is 2’ from the front property line with the variance application. The special permit application has the structure 6.5’ from front property line. Currently the structure is 6’ from the property line. There also is a change in the non- conformity that the applicant is bringing it closer to have conformity.


Chairperson Gould stated that the requirements for setbacks are 10 feet. She felt that there was not a way to get the required 10’ setbacks.  She expressed concerns with the towns right of way, the proposed structure will only be 6 feet from the road.   In the future if the town needs to widen the road the proposed structure will be even closer to the road.


Atty. Donahue stated that the proposed building is measured from the property line not the road. She showed the roadway and property lines on the plans that were presented to the board. The proposed structure is not 6.5 feet from

the road.  Under the bylaw it allows for reconstruction of a non-conforming structure as long as it is not substantially more detrimental to the neighborhood. In the special permit application, the applicant is reducing the non-conformity. They started at 6’ off the property line now they are 6.5’ off the property line. They are moving the build back from the property lines by reducing the size of the building. Chairperson Gould stated that she is uncomfortable with the proposed building being so close to the road and even closer if the Town needs to widen the road.


Member Geane wanted to know where the access to the development would be located. It was stated that it would

be located where the boat ramp parking is currently located.


Ms. Gapinski felt that if the town needed to reconstruct Reservoir Road typically, they would not favor one side

or the other. They would take the measurement right down the center and divide the roadway. She felt that would still allow a vehicle to pull off the side of the road and unload a vehicle. There would be enough room to have adequate traffic flow.


Discussion of the width of the road took place. Inspector Larry Gould, stated that the road way is 50’ wide.

Currently the travel way does not line up with the property lines.  This has happened with many town roads over time.


Atty. Donahue stated that there is a potential of movement of the road however they cannot speculate what that might be. In terms of this application the criteria are under statute Chapter 40A, section 6 and under the bylaw law that provides for the alteration and reconstruction of a non-conforming structure.  Here they are discussing the

reconstruction of the structure.  The structure could be left where it is and improved at its current location.

Chairperson Gould stated that the structure was previously used as a residence.  Atty. Donahue stated that she is not talking about the use but just the structure.  The statute and bylaw provide for both a non-conforming lot, non-conforming structure and non- conforming use.  The use is governed by special permit for the overall development. The applicant is not talking about a change of use but a change of structure under the bylaws.  Atty Donahue referred to section 3.3 of the Otis zoning bylaws.  Under the bylaw it allows for a change of use of the non-conforming use is structure.  Atty. Donahue then read parts of the bylaw 3.3.2 to the board.  The applicant is not asking for a change of use.  They would like the board to find that the non-conforming structure that is currently on the lot which is going to be replaced under the statute and bylaw that it would be in not greater non-conformity.  Both the statute and bylaw do not state that the structure cannot have a change of use.  The bylaws states that it cannot be substantially more detrimental.  The applicant is reducing the non-conformities and the size of the building.  This is an improvement


but not required under the statute or bylaw.


Member Sara Skibski-Hiller stated she has concerns.  She understands that argument that the applicant is decreasing the non-conformity.  However, she feels that the applicant is creating a new non conformity, she understands that the applicant ant is trying to decrease the non-conformity by removing the proposed structure from the DCR’s property, moving it back from the property lines and decreasing the size of the structure.  In theory does decrease the entire non- conformity but will this count as a new non-conformity because it does not meet the setback requirements.  Another concern would be the length of time the structure was last occupied. Atty. Donahue stated that the building is being used right now and has been used right along.

Chairperson Gould stated that she felt the building has not been used and currently isn’t being used.  She feels that it has been abandoned.

Applicant Donahue states he uses the building to store supplies.


Atty. Donahue wanted to address the issue of abandonment.  She stated if you look at the case law when you look at abandonment, it is mostly determined by intent to abandon. The applicant has the intent to preserve the building with the right to use.  The prior use doesn’t apply to the use for zoning purposes they: continue use of building storage for the Marina.  Going forward they would like to use it for part of the townhouse development.


Member Skibski-Hiller referred to the Otis bylaw Section 3.3.6.  It states a non-conforming use or structure that has been abandoned or not used for more than two years shall lose its protected status.  Atty Donahue responded that the structure has been used throughout and the statute does not state how much use there needs to be.  It is used for a seasonal use for the Marina location.  The applicant is not coming before the board for a continuance of use or alteration of use.


Member Geane stated that the applicant is taking a very non-conforming building and wants to construct a less non-conforming structure.  In his opinion that this project is less non-conforming and is a good thing.  Member Jim Kauffman added that he felt that it is also detrimental


Atty. Donahue stated that applicant still has to go in front of the planning board. The planning board will look at many of these concerns and issues of the impact.  Chairperson Gould stated that the Planning Board has nothing to do with the application in front of the Zoning Board.  Atty. Donahue stated that the Zoning Board’s jurisdiction on this application is to decide whether it meets the requirements under the bylaws for alteration of a non-conforming

structure.  The Planning Board will have to look at the structure and whether it is accessory of use.


Member Skibski-Hiller asked what would happen if the Planning Board did not approve the accessory use of this structure to the townhouse development.  Atty. Donahue stated the applicant would abandon this special permit and build in a different location.


Atty. Donahue stated that the proposed structure is not substantially more detrimental than existing structure.  The applicant has the right to build.


Member Ernst made a motion to close the floor, Member Geane seconded the motion. All in favor.  Chairperson Gould closed the questions from the floor.


Chairperson Gould stated she felt misled by the applicant applying from a variance then a special permit.  She felt that 6.5” from the frontage is not a good distance.   She said that the building has been abandoned and is not used for storage.  She is feels that the proposed structure is less detrimental than what is there.



Member Skibski –Hiller stated that she feels the petition is very creative. and there might be some flexing and skirting of the law.  She feels that the proposed structure is less detrimental and personally feels that the townhouse development is a great thing for the area.  It will make the area more pleasing.


Member Geane made a motion to approve the special permit in front of the board.

Member Kauffman seconded the motion. The motion was passed to Member Skibski-Hiller for a rewording.


Member Skibski-Hiller made the motion to approve the special permit application of D&J Development, LLC under section 3.3.3 of the Town of Otis bylaws for a preexisting non-conforming structure on a non-conforming lot.

In approving the special permit, the board approves the finding that the structure is not substantially more detrimental than the existing non-conforming structure. to the neighborhood.



Member Geane seconded the motion.

Member Skibski- Hiller voted yes

Member – Ernst Voted yes

Chairperson Gould abstained.


Chairperson Gould advised the applicant that the special permit will sit in abeyance for 20 days with the Town Clerk.  The applicant can pick up the “Notice of Decision” and “Notice for Filing” on the 21st day.  Then the applicant needs to file the permit with the Registry of Deeds in Pittsfield.  Then they bring the receipt of filing to the Zoning Enforcement Officer for the building permit.  Failure to file or act upon the permit within two years will make the special permit null and void.


Agenda item #2Approve minutes from previous meeting:

Discussion: Minutes from August 2019.  Member Ernst made a motion to approve the minutes.  Member Kauffman seconded the motion.  All in favor motion carried.


Agenda item #3Receive update from Building Inspector, Larry Gould

Discussion:  Nothing to discuss


Agenda item #4 –Update for the next meeting

Discussion: The next meeting will be Monday, October 7, 2019. Currently, there isn’t an application. The deadline is 2 pm September 10, 2019.


Agenda item #5 – Old/New business:

Discussion:  Clerk Couch passed out copies of the updated bylaws. Wayne Wosczyna sat in the meeting and is interested in joining the board as an alternate/associate member


Geoff Geane made a motion to adjourn the meeting. Jim Kauffman seconded the motion, all in favor.


Meeting adjourned at 7:45 pm.


Katherine Couch

Clerk Zoning Board