GREENFIELD — Neighbors living next door to the first detached in-law apartment approved by the town are appealing the Planning Board’s decision.
The move has set off cautionary alarms at town hall, where the mayor says changes may be needed in the new ordinance that controls accessory dwellings.
The ordinance was adopted only after some contentious hearings that focused on concerns about detached accessory buildings.
Patrick Devlin and Lynne Ballard filed an appeal in Franklin County Superior Court this week. Last month, the Planning Board approved a special permit for the dwelling, on the condition that the homeowner move the structure farther from couple’s property line than she had originally planned. But Devlin and Ballard believe the process was fraught with problems and said the Planning Board failed to address their biggest concerns about drainage from the structure damaging their property.
“Even though an appeal will be expensive and hurt our retirement savings, we are going ahead because the Planning Board failed to balance the interests of our neighbor — the applicant — with the interests of the neighbors and the city as a whole, nor did they condition it very specifically to protect the interests of the neighbors,” Ballard said. “They did not assure that whatever detriment there may be should be on the applicant, not the neighbors.”
Less than a month after Town Council passed an ordinance legalizing accessory dwellings in town, their neighbor, Marcia Vincent, applied for the special permit to build a detached, 882-square-foot cottage on her 2.5 acres at 907 Bernardston Road. She said she could get extra income from renting the cottage, or keep her family close by as she ages.
Under the ordinance, apartments built either inside existing owner-occupied homes or as additions are allowed by right, while detached dwellings require a special permit from the Planning Board.
Devlin and Ballard, who are Vincent’s closest neighbors, expressed concern about her plans throughout the entire process. The cottage was originally planned to sit 30 feet from their property line on a hill overlooking their pool.
The Planning Board granted Vincent a special permit, on the condition she build it 60 feet from the property line and plant 4-foot tall arborvitae for screening. The cottage would sit 100 feet away from Vincent’s main house.
The appeal names Vincent and Greenfield, as well as the members of the Planning Board.
Eric Twarog, the town’s director of Planning and Development, said the appeal will likely put a temporary stop to Vincent’s project. He said if she begins construction and the court rules in favor of the abutters, she would have to demolish the structure.
The appeal states that Devlin and Ballard have experienced significant issues with drainage and stormwater runoff from adjacent properties in the past, and that the construction and use of the proposed cottage presents a significant likelihood that those issues will worsen.
Ballard said she and her husband have spent approximately $15,000 to address drainage issues on their property.
Before the special permit for Vincent’s project was approved, Devlin and Ballard hired a private consulting firm — SVE Associates of Brattleboro, Vt. — to determine whether construction of the dwelling could harm their property.
In a report dated Oct. 18, Senior Engineer Anthony Wonseski Jr. of SVE Associates wrote that issues of concern primarily relate to construction of the cottage. He wrote that construction should be done in a manner that does not cause erosion and sedimentation, and the contractor should install appropriate best management practices such a silt fence and straw wattles, which should be kept in place and maintained until new vegetation has been established.
Wonseski wrote that if Devlin and Ballard’s sub-drain system, which was installed at great cost, becomes compromised by erosion and sedimentation, it will have to be removed and reinstalled.
He added there is also a post-construction concern that if gutters on the cottage directly discharge to Devlin and Ballard’s property, that could result in problems with erosion and impacts to the couple’s sub-drain system. Wonseski wrote that problem could be mitigated by directing downspouts to dry wells or other below-grade infiltration methods.
Furthermore, he wrote that increased impervious area on Vincent’s property could result in additional runoff to Devlin and Ballard’s yard and compromise their drainage system. Installation of a berm along the property might help mitigate that issue, he wrote.
Vincent’s site plan includes a 100-foot walkway to the cottage.
Both Twarog and Building Inspector Mark Snow said drainage is an issue that the Planning Board deals with, but Twarog contends that Vincent’s project will not create any drainage problems.
“The drainage for that is pretty straightforward,” he said. “You have a building with a roof, so it’s going to go into a roof drain system so that’s dealt with at the building permit stage.”
“There are no drainage issues, in my opinion, for 907 Bernardston Road,” he added.
In the appeal, the abutters also argue that the site plan Vincent presented to the Planning Board before the special permit was approved was inadequate.
“The defendant Vincent provided no engineered plans, topographical plans, engineering reports, engineered erosion control measures, or any other professionally prepared document upon which the board might properly conclude that the proposed ADU will not cause increased flooding, erosion, surface runoff and drainage onto the plaintiff’s’ property,” the appeal states.
Twarog said the department is working on a checklist for future accessory dwelling unit applications that goes above and beyond what’s currently required, but said a full drainage report would never be required for an accessory dwelling unit.
“We have an existing checklist for all site plans, and this would be specific for ADUs — pretty much makes it clear that we do require everything on the site plan checklist for ADUs, and it adds a few additional things like photographs of what the area looks like from abutting properties,” he said. “It’s more about aesthetics, because that was one of the key issues.”
The Planning Board is also considering whether to require applicants to present site plans prepared by a professional land surveyor or engineer for some projects, which have yet to be determined.
Devlin and Ballard’s appeal also argues that language in the ordinance would prohibit the board from granting Vincent the special permit because the ordinance requires a home’s existing septic system to be able to accommodate the extra dwelling, and Vincent would be required to install a separate septic system for her cottage.
Twarog addressed the issue as it came up during an October public hearing, saying the intent of that language is to make sure the board doesn’t approve a dwelling that could not be serviced by an existing septic system, and does not prohibit the installation of a new septic system or upgrades to an existing system.
The appeal goes on to state that the proposed cottage has the potential for other detrimental effects on Devlin and Ballard’s property, including lighting, noise and a loss of privacy.
“It’s just very unfortunate that our very first ADU application, in a location I believe is a very good location for such a use, received such resistance,” Twarog said. “That doesn’t bode well for future ADUs proposed.”
Mayor William Martin said it’s very possible that Town Council will vote to modify the existing Accessory Dwelling Unit Ordinance, and hopes to see it happen as soon as possible.
One aspect of the ordinance Martin said he would like to see changed is the square footage for detached units, which can now be up to 900 square feet.
“Several years ago, 900 square feet was the size of a good house, and now to think that an accessory unit is 900 square feet is probably not what everyone expected and intended it to be,” he said. “So I think reducing the square footing for an ADU and preventing the circumvention of subdivision by virtue of using an ADU instead of a subdivision plan (is) an issue that should be looked at closely.”
He added that the site plan review process should also be improved so that all questions will be answered up front, instead of at a later date after a special permit has been approved. Martin said he’d also like to see the special permit granting authority transferred to the Zoning Board of Appeals, which normally issues special permits in town.
Ballard said if the ordinance is amended, she hopes it will require detached units to be built closer to the homeowner’s main house and better determine whose job it is to set conditions and put protections in place for abutters.
You can reach Aviva Luttrell at:
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