No decision yet on special permits

SALISBURY — The Planning and Zoning Commission concluded the public hearing on a proposed amendment to the town’s zoning regulations prohibiting vertical expansions of nonconforming structures in the entire town Tuesday, Sept. 20.Chairman Michael Klemens kicked off the two-and-a-half hour session by saying that after after talking to commission attorney Chuck Andres it was clear that the commission can issue special permits, that they are not variances. The next question, added Klemens, is whether expanding a nonconforming building increases nonconformity.Noting that the issue of the hearing is a change in the regulations eliminating such permits for the entire town, Klemens said he would like to “encourage a different dialogue” in the evening’s hearing.Klemens said the commission had heard a great deal of comment about rights of property owners versus the public interest, about large expansions of houses, about zones where nonconformity is the rule rather than the exception.And he posed this question: If the commission keeps the special permit process in place, should it consider zones where such permits may not be allowed?“We’re really good at saying yes or no,” said Klemens, adding he would like to discuss solutions that do not embrace one extreme or the other.He also said that after talking to attorney Andres, he felt the commission has the flexibility to modify the proposed regulation change to do less than a complete ban.Klemens then brought up the idea of using percentages of volume as a way of deciding whether vertical expansions are appropriate — for instance, 50 percent of the area below the expansion.Such a formula might inspire creativity in design, he said, and avoid the phenomenon of a second-story addition that essentially looks like a box placed on top of an existing building.The special permit process could wind up being “very prescriptive.”Planning and Zoning member Cristin Rich asked if it would be better to look at zoning changes rather than modifying the special permits.Rules versus enforcementOpening the comments from the public, Wendy Hamilton of Lakeville said she believes that results of special permit processes are “disastrous.”She brought documents from a 2009 expansion of a nonconforming house on South Shore Road, and said the end result was substantially bigger than what was approved.The problem wasn’t so much with the regulations as it was with enforcement, she said. Asked by Klemens for her general opinion about keeping the special permit process intact, she reiterated her opposition to the permits, adding, “I’m speaking generally, with an emphasis on the lake.”The commission then discussed the example Hamilton brought forth. Zoning Enforcement Officer Nancy Brusie said that an as-built survey and before and after calculations on impervious surfaces had been conducted, and Planning and Zoning member Alan Cockerline said if the as-built survey and the assessor’s documents are different, then it is a matter for the zoning enforcement officer.Salisbury’s planning consultant, Tom McGowan, suggested that the commission may have been voting on an addition to the nonconforming portion of the house, but added he couldn’t offer a solid opinion without reviewing the case thoroughly.Regs are unclear“It’s clearly confusing to the public,” Klemens said. “What Wendy is showing us is the kind of confusion that seems to be rampant.”Jeff Lloyd, speaking for himself and not as chairman of the Zoning Board of Appeals, said he hadn’t made up his mind about special permits. “I always thought you had to use what was there” when working on a nonconforming structure.“If you tore it down you couldn’t do anything new because nonconformities were eventually supposed to disappear.”Rich again suggested changing zoning, and Lloyd said he’d like to keep “the integrity of the neighborhood,” such as the side streets of Lakeville, when it includes several nonconforming houses.(This point was made by many speakers at the first public hearing, on Aug. 9.)Klemens, thinking out loud, said there could be unintended consequences if zoning regulations were relaxed to allow structures that are currently nonconforming to conform. “There would be a lot of buildable area; all of a sudden we could have people building big houses on small lots.“That’s why I’d like to see formulas” for expanding nonconforming buildings by volume.Lloyd said, “I’ll change hats. The ZBA is working with regulations we were told are antiquated. We need regulations that are clearer.”(Lloyd was referring to the 2009 review of the town’s land use regulations and procedures, prepared by consultant Donald Poland and known as “The Poland Report.”)Sticking to the rulesMartha Baer and Anne Marie Nonkin both took the position that the special permit process is unfair to existing property owners around Lake Wononscopomuc. Baer said, “I knew the rules when I bought the property,” and Nonkin said the special permit process “dilutes the zoning we already have. “Where is the protection we think we have when purchasing a home? The special permit opens the door to undo zoning we think protects us.”Klemens said it would perhaps be better to have specific, “prescriptive” language for special permits. “What would work in town would be different than the lake.”He expanded on the idea a little later, saying that if there was an expectation that a nonconforming structure could be expanded only by a percentage of the volume of the existing building, “it would force some creativity” when considering design, views and the wishes of neighbors.Bill Littauer, president of the Lake Wononscopomuc Association, reiterated his opposition to special permits in the lake zones.“They are unfair because if you have money you can hire attorneys.“Think of the person who buys a house and the agent says ‘Don’t worry, you can get a special permit.’ But can they? Whatever decision is made is subjective. You can have a special permit, narrowly defined, and it’s still subject to someone trying to fudge it. Whereas zoning says this and that.”Attorney Mark Capecelatro said he thought the first issue to be settled is whether or not increasing the volume of a nonconforming building increases the nonconformity, and said he thought the idea of fashioning a volume formula for expanding nonconforming structures “has merit, especially in the village centers.”The special permit process “has real positives,” he continued, using the example of small, modest lakeside homes (he used the term “repair challenged” in a tongue-in-cheek manner).To get a special permit to expand such homes, the applicant must take measures to ensure water quality, provide landscaping plans and submit to a public process in which neighbors have input, resulting in what Capecelatro considers a better overall situation than before.He expressed cautious interest in the volume formula idea. “It would take some study but it could give you flexibility in village centers and lake zones. The needs of the property owners can be met without stepping on the needs of the public.”To close or not to close?The commission then began discussing closing the hearing, with Klemens saying the commission had received a lot of information.Capecelatro urged the commission to continue the hearing. “If you close it, then what are you deciding?”Mary Ackerman, a Lake Wononscopomuc property owner, took advantage of a lull in the proceedings to state that she, her husband and at least two other families on the lake are in favor of keeping special permits.The commission then debated whether or not to close the hearing.“If we have to take action, then we shouldn’t close the hearing,” Klemens said. “Much as I hate to prolong the agony.”And Mike Flint said the public’s expectation, based on the notice of the hearing, was that testimony would be presented and a decision made.“Now you’re legislating in a public hearing. It’s becoming unclear what this hearing is about.”He suggested closing the hearing, voting on the regulation under discussion, and, if necessary, doing further research prior to a future hearing.Eventually the commission voted 4-1 to close the hearing, with commission member Dan Dwyer dissenting. Dwyer then suggested postponing a vote on the regulation until the next planning meeting.“Government’s a messy thing,” Dwyer said. “It’s not black and white. The notion that if we don’t vote tonight we don’t have the gumption to serve the public is baloney.”“The discussion has gone in many different directions,” Cockerline said. “I’d like to mull it.”The commission voted 3-2 to postpone further discussion and a possible vote to the next planning meeting, with Dwyer, Cockerline and Rich in favor and Klemens and Fred Schmidt against.