Proposed Chilmark zoning bylaw would limit house size

The proposed bylaw is intended to help preserve Chilmark's scenic vistas. — File photo by Susan Safford

The willingness of Chilmark to place limits on house size and how to do it — a topic that has percolated for years and recently boiled over in controversy over the size of a house built overlooking Quitsa Pond — has crystalized into new zoning bylaws that voters will be asked to take up at annual town meeting on April 22.

The proposed “residential building size regulations” would set limits in relation to lot size on the allowable total living area of any new house built in Chilmark and restrict the expansion of existing houses above a set threshold.

The zoning board of appeals would be empowered to grant special permits, but only after considering a long list of criteria heavily weighted to consider visual and environmental impacts.

Last month, the planning board and a subcommittee established for the purpose of drawing up regulations gave final approval to the new rules following more than a year of discussion.

Janet Weidner, chairman of the planning board, said the size of houses has been one of the major concerns that year-round and seasonal property owners have identified in past surveys and in conversations with town officials for years.

“The Zoia house is what galvanized some people, but this has been on the table in town for years,” she said, referring to the controversial house on Quitsa Pond.

Asked if any carpenters or architects served on the five-member subcommittee that created the regulations, Ms. Weidner said it included two lawyers, two engineers, and a librarian. They met regularly and solicited comments. “We heard from builders and architects galore at our meetings,” she said.

Ms. Weidner said the planning board would hold two public forums on the proposed bylaw, which requires two-thirds approval at town meeting. The forums are March 27 and April 11, each at 5 pm. “We want people to know what it is all about,” she said.

By increments

The new regulations set a threshold of 3,500 square feet of total living area for new construction on three-acre lots. Beyond these limits, a special permit will be required, and the maximum size limit will be 6,000 square feet.

Owners of houses built on three-acre lots prior to the April 22 town meeting would be allowed to exceed the 3,500-square-foot threshold and the 6,000-square-foot maximum by five percent, but only for projects that the building inspector determines are additions.

Ms. Weidner said the planning board arrived at the 3,500-square-foot threshold after surveying all of the more than 1,200 existing houses in town and arriving at an average size of about 2,200 square feet on three acres.

“That gives people a pretty fair amount of building space without having to do anything different than they do today, in terms of permitting,” she said. “And over and above that, they have the ability to go and receive a special permit to go all the way up to the 6,000 limit. To me that’s a lot of building on a three-acre lot.”

Owners of larger lots are allowed to add 250 square feet to the threshold trigger for each additional contiguous acre. For example, an owner of 13 acres would be able to build a house with 6,000 square feet of gross living area without a special permit.

Smaller lot owners would subtract 250 square feet. For example, one-acre parcels may be split off from larger land holdings and developed for affordable housing despite the town’s three-acre minimum, in which case the lot would be limited to 3,000 square feet of living area.

Living area is defined as “habitable space” and includes indoor swimming pools and sports courts but not decks or porches or below grade basements. Total living area refers to the cumulative area of all buildings on the property, for example a detached bedroom.

In scale with the past

The stated purposes of the new bylaw includes “to ensure that future residential development does not overwhelm Chilmark’s rural atmosphere; detract from its geographic diversity — its seashore, ponds, stonewall boundaries, open agricultural space — or the vistas from its roadsides; and is built in scale with past development practices with regard to bulk and building coverage.”

The building inspector will make the preliminary determination that a special permit is required. The zoning board of appeals (ZBA) is the granting authority.

Under existing ZBA regulations, an applicant for a special permit must notify immediate abutters within 300 feet of a project. The new regulations allow the ZBA to cast a wider net and notice “property owners who would be considered abutters if a relevant public body of water were treated as if it were a public road,” and “any road or pond association of which the applicant is entitled to membership.”

In considering whether to grant a special permit, the ZBA would consider whether the project, “when complete, would be visible, including during the winter, from public ways, water bodies, cemeteries and neighboring properties,” and if so, how it would affect 13 specific criteria.

These include the impact on the existing rural, scenic character of the site, whether the project retains natural buffer areas or, where that is impracticable, provides sufficient landscape screening; and the project “avoids altering the natural landscape, minimizes the size of lawns and recreational facilities, uses native species for landscaping, and retains natural vegetation on slopes.”

Also a consideration is whether buildings are sited behind fields against the backdrop of adjoining woodlands; “and the project is designed to minimize fossil fuel use by incorporating energy efficiency and conservation techniques, by using renewable energy sources and by limiting off-season heating in seasonal homes.”

Objectivity is key

In addition to town meeting, the new bylaw must pass muster with the state’s attorney general. In October, the planning board met with Ron Rappaport, the Chilmark town counsel, for guidance before fine-tuning the proposed bylaw.

Mr. Rappaport told the town planning board on October 22 that big houses can be regulated by the town, if the rules are carefully written.

Mr. Rappaport’s suggested approach, expressed orally to the planners, was that the best way to proceed would be to build the rules into the Martha’s Vineyard Commission (MVC) regulations for districts of critical planning concern, several of which govern development in parts or all of Chilmark.

The benefits, he said, bolster the town’s defences against legal challenges. He said a bylaw of this type could draw the attention of a state homebuilders’ association or realtors’ association.

Mr. Rappaport told the board he had conducted extensive research of pertinent case law and spoken with town counsels in towns that have such rules. It was his view, he said, that town zoning cannot restrict the minimum or maximum interior floor area of a residential structure.

But, Mr. Rappaport explained, the court has held that reasonable regulations may be imposed on the structure’s bulk, its height, yard sizes, and setbacks, so that depending on lot size, some limits on house size may result. Regarding any rules intended to strictly cap house size, the effect of the rules must be “incidental, not direct,” he explained.

Mr. Rappaport said that the imposition of a cap, with special permit review and standards, could withstand a legal challenge, provided the limits are reasonable and the standards objective. He said an absolute cap, regardless of lot size, would be much more vulnerable to a successful challenge.

Big house, big fight

The catalyst for the proposed bylaw governing house size and the variety of restraints which could or should be imposed on the construction of large houses was the permitted construction of a 8,238-square-foot main house and ancillary buildings overlooking Quitsa Pond and visible from a public road.

Adam Zoia, founder of Glocap Industries in New York, built the house on a 4.9-acre lot at 18 Point Inner Way, on Quitsa Pond. The property includes the main house, a detached bedroom and pool, a two-story barn/garage, and a tennis court, according to the building permit.

In October, the Chilmark planning board rejected an appeal by Mr. Zoia’s neighbors, Jill and Kenneth Iscol, asking that the board rescind a building permit already issued by Lenny Jason, town zoning officer, allowing construction of an accessory structure on the Zoia property. Mr. Jason had earlier rejected the Iscol request, and the planning board, on October 23, upheld Mr. Jason’s decision.

A wealthy telecommunications businessman, philanthropist, and Democratic political fundraiser, Mr. Iscol has been vociferous in his objections to his neighbor’s house and accused Mr. Zoia of violations of the Chilmark zoning regulations.

With the Zoia house in mind, last winter, Ms. Weidner, the planning board chairman, Dan Greenbaum, a retired traffic engineer, and Joan Malkin, a retired lawyer, led a working group in the effort to draw up new building size regulations.