WILLIAMSTOWN, Mass. — The Zoning Board of Appeals on Thursday avoided a decision on the most controversial issue it has faced this year.

 

But it did allow a resident to take advantage of the bylaw that resulted from the most contentious issue that faced another town board in the last 12 months.

 

Billy Preite withdrew his request for a special permit to operate a sporting goods store on North Hoosac Road, obviating the need for the board to continue a stormy public hearing that began in September.

 

In a letter to the board, Preite cited the hostility of those who objected to his proposal to open the store, which would have included a line of collectible firearms.

 

"At the [September] meeting, I thought that the people who were opposed acted very childish with their booing and cheering, and I am disappointed that it was allowed," said Preite, who nevertheless said he was treated well by the board itself.

 

After a 5-0 vote Thursday to accept Preite's request to withdraw his petition without prejudice, the ZBA moved on to two other petitions, including one that — like Preite's — was continued from the September meeting.

 

Alexander Carlisle asked the town for a special permit to convert a non-conforming garage to a combination garage and accessory dwelling unit. That move was made legal in the town at May's annual town meeting, where voters overwhelmingly approved a zoning bylaw amendment that generated months of debate at the Planning Board level.

 

As fate would have it, Thursday's hearing involved two members of the Planning Board that drafted the ADU bylaw — one on each side of the table.

 

Carlisle, ironically, was the lone member of the Planning Board who voted against the ADU bylaw language that ultimately advanced. Though always a proponent of allowing accessory dwelling units in town, Carlisle felt strongly that the bylaw should have included a provision that at least one of the dwellings on a single-home residential lot should be owner occupied.

 

Meanwhile, Amy Jeschawitz, who served as chair of the Planning Board until she lost a re-election bid in May, is now an alternate member of the Zoning Board and sat on the five-person panel that heard Carlisle's special permit petition on Thursday.

 

Carlisle needed a permit because the garage/apartment building he hopes to build would have a roof line 4 to 6 feet above the original height of the current structure, which is in disrepair and in dire need of replacement.

 

The board agreed with Carlisle that the garage replacement was necessary and, with no objections voiced by neighbors, found that the raised roofline would not be more detrimental to the neighborhood.

 

The special permit was approved, 5-0, with a condition added at the suggestion of the board and agreed to by Carlisle that the footprint of the 18-by-25-foot building (mirroring the existing footprint) be moved five feet from the property line, a few feet more than the existing building.

 

ZBA Chairman Andrew Hoar made the suggestion to allow for room to do painting or repairs to the new structure without needing permission from the abutter to locate a ladder or scaffolding.

 

While the board had little trouble approving the special permit, its members felt compelled to deny a request for a zoning variance from the night's other applicant — demonstrating the difference between the two means of relief from zoning bylaws.

 

Maceo Brown asked the town for a variance to allow for construction of a one-car garage on a property on Luce Road.

 

Though board members did not argue with Brown's contention that the site he proposed for a garage makes sense, they could not allow him to violate the setback bylaw in order to build it.

 

Hoar and other ZBA members explained to Brown that the bar for a variance is higher than that required for a special permit.

 

Special permits, Hoar explained, are a question of community members making judgments about what makes sense for the community in applying the law.

 

Zoning variances give permission to break the law.

 

"The courts don't like a bunch of amateurs saying you can break town law," Hoar said. "Special permits rarely get overturned [in Land Court]. On the higher criteria [of variances], the courts get picky."

 

Hoar further explained that variances need to meet criteria specified under Massachusetts General Law, which reads in part, that the granting authority [i.e. the ZBA in this case], find that "owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise … "

 

A good example of soil conditions would be a property on Thornliebank Road that has a large rock in the middle of the parcel, Hoar said. The home on the lot needed to be built in the setback because otherwise, it would have required the rock to be blasted.

 

Brown argued that siting the garage elsewhere on the property — without violating the setback — would require extending the driveway at a cost of $5,000, and he seemed incredulous that the ZBA did not agree that represents a financial hardship.

 

Jeschawitz, who said that as a new member of the ZBA she sought to educate herself on the question, shared language from an article that Williamstown Community Development Director Andrew Groff sent her: 

 

"Although financial hardship is an appropriate consideration in this context, the board should not and cannot consider the personal financial situation of the landowner-applicant," Jeschawitz read. "In other words, it is irrelevant whether the current owner cannot afford to use or develop the land unless he has the variance — the soil, shape and topography conditions of the land must be such that they would affect any owner financially."

 

Hoar told Brown he could sympathize with his situation, noting, not for the first time in a hearing, that he has been on the other side of the table: facing a board that agreed with his aesthetic judgment but whose members were restrained by law from allowing him to proceed with a proposed project.

 

The board voted 5-0 not to allow the requested variance.