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HomeMy WebLinkAbout2021-10-28-ZBA-min RECEIVED 2021 21 IDea, °21 Il u Minutes of the Lexinqton Zoninq Board of Appeals TOWN UERI( I( Virtual, Via Zoom t EX l bt G1 ON MA October 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Associate Member Beth Masterman Alternate Member: Michael Boudett Administrative Staff: James Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 52 Locust Avenue The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-4.3.4 to allow a 10 foot fence to be located 0 feet from the property line instead of the required 10 feet. The petitioner submitted the following information with the application: Nature and Justification, and plot plan. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Department, Building Commissioner and Engineering Department. Presenter: Christine Markarian, homeowner of 52 Locust Ave The Hearing was opened at 7:06 pm Ms. Markarian presented the petition. She stated her proposal is to construct a 10 foot fence on the property line. There is currently a 6 foot fence on the property line. The residents at 3 Lexington Ave submitted a letter with the Building Commissioner stating they will remove the existing fence. This is an issue because they have a pool so a fence is required. The reasons for a taller fence is to increase privacy, reduce visibility from 3 Lexington Ave and mitigate sound. 3 Lexington Ave is significantly higher, the property is at a 90 degree angle and the house is elevated. A Board Member, Nyles N. Barnert, questioned if the property line dispute had been resolved (Ms. Markarian stated they would agree to only put up the fence once it is resolved). John Dupuis, attorney representing the homeowners at 52 Locust Ave, stated the way the fence would be put would be to follow the existing fence line, which should not present an issue. Chair, Ralph D. Clifford, stated the property line dispute may present an issue at the building permit level. Mr. Dupuis stated the dispute will be resolved before the fence goes up. Mr. Barnert stated the abutters are concerned about noise, what steps will be taken to make sure there is maximum noise suppression (Ms. Markarian stated the current fence has a lattis. The proposed fence is a 10 foot solid fence). A Board Member, Norman P. Cohen, stated the abutter letter supports the fence but had a number of conditions. The Board might not have jurisdiction over those conditions but asked if the applicant would be open to any of those. Mr. Dupuis stated the issue before the board is for a fence. The board should not entertain that. Mr. Clifford clarified that the Board has a right on special permits to put associated conditions. Mr. Dupuis requested the Board to stick to conditions that are relevant to the fence. Associate Member, Beth Masterman, stated the presentation showed angles that could look into the backyard from 3 Lexington Ave. Even with a 10 foot fence they would still see what is going on. She questioned what is driving the 10 foot fence (Ms. Markarian stated the abutters may still be able to see but when in the pool or hot tub they themselves would not be able to see the abutter. They can't go any higher than 10 feet). Mr. Clifford stated everyone has backyards you can see into, he questioned what makes this lot different (Mr. Dupuis stated this is having to do with alleged noise issues. There have been multiple noise complaints from 3 Lexington Ave. The fence will help mitigate the noise). Mr. Clifford stated the presentation was about privacy concerns. Noise control is not part of 135- 4.3 of the Zoning Bylaw. They have limitations in terms of what the Board can look at. Mr. Clifford discussed landscaping. A row of arborvitae would give privacy and noise deadening (Ms. Markarian stated over by the hot tub they planted 6 foot arborvitae and need to wait for them to grow. At the bottom they planted four trees that were supposed to grow and they didn't. It is the elevation that makes this property different. Plants don't mitigate noise as well as a solid fence that goes to the ground without any gaps. The neighbor has an 8 foot tall fence on a wall). Kevin Sargis, attorney representing the homeowners of 3 Lexington St, stated they submitted a submission that was in favor of the applicant's proposal. The applicant is seeking to replace the fence that belongs to 3 Lexington Ave. The abutters at 3 Lexington Ave are in favor of an 8 foot fence constructed 18 inches off the property line. They are concerned about noise. The landscaping solutions are a simple request. The moving of the hot tub would help with noise. They wish to mitigate noise and privacy issues on both sides. Jonathan Kutrubes, of 3 Lexington Ave, stated his support for a taller fence. The reason they wanted to take the fence down was to replace it with a solid fence. He stated his concern for a fence taller than 8 foot damaging trees. He suggested to fill in a gully where there are water issues and that would raise grade which would raising the fence height. A Board Member, Jeanne K. Krieger, asked Mr. Kutrubes what the fate of the fence would be if the applicant were to put up the new fence prior to taking down the existing fence (Mr. Kutrubes stated they would like not to have two fences. They planned to remove the fence in sections to fix the grade). An Audience member, Sara McGlinchey of 42 Locust Ave, stated her support for a solid fence and understands why the abutter wouldn't want a 10 foot fence. She stated her support for landscaping. Ms. Markarian stated the proposed 10 foot fence is a solid fence and will not have lattice. They could do an 8 ft fence in some areas. There would be no space for plantings if the fence was moved in 18 inches. The proposed fence will be placed on the agreed property line. They have no intention of removing the abutter's fence. It would be good to time it right. Mr. Dupuis stated there was greenery and Mr. Kutrubes asked them to remove it. A notice was sent to the town to remove the fence and they had to move fast. There were no further questions or comments from the audience. There were no further questions from the Board. The Hearing was closed at 7:51 pm (a role call was taken:— Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). Ms. Krieger opposed to any fence on property line. She suggested plantings to mitigate noise. Mr. Barnert stated he does not object to the 10 foot fence being on the lot line. There should be plantings as conditions. A Board member, Beth Masterman, stated the 10 foot fence would not address the privacy. Fixing the depression in the land could make it so an 8 foot fence would work. Mr. Clifford stated his concern for a 10 foot fence, it would not be compatible with the scale of the neighborhood. A combined solution would be to use landscaping and the fence. Mr. Clifford lost connection. Vice Chair, Jeanne K. Krieger, became Acting Chair and Alternate Member Michael Boudett became a voting member. The Hearing was re-opened at 8:07 pm (a role call was taken: Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes, Michael Boudett—Yes, and Nyles N. Barnert— Yes). A Board Member, Michael Boudett, stated his support for a 10 foot fence on the property line. The Board discussed and agreed they could vote for an 8 foot fence on the property line. The Board discussed and agreed there needs to be a landscape plan. The Board suggested the applicant request a continuance to December 9, 2021 and come back with a landscape plan. The Hearing was closed at 8:28 pm (a role call was taken: Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes, Michael Boudett—Yes, and Nyles N. Barnert — Yes). The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a continuance to December 9, 2021 Hearing (a role call was taken: Jeanne K. Krieger— Yes, Michael Boudett —Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom October 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Associate Member Beth Masterman and Associate Member Michael Boudett Administrative Staff: James Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 31 Clarke Street The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-4.4.3 to allow more gross floor area than otherwise allowed. The petitioner submitted the following information with the application: Nature and Justification, Elevations, Gross Floor Area Calculations and photographs. Also submitted was a plot plan waiver request, abutter letters in support and the previous Zoning Board of Appeals decision. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Department, Building Commissioner and Planning Department. Board Member Norman P. Cohen recused himself. Presenter: Carl Oldenburg, architect on behalf of David Duff and Susann Luperfoy The Hearing was opened at 8:29 pm Mr. Oldenburg presented the petition. He stated the proposal is for a screened in porch. This proposal will not increase the footprint or bulk/mass of the house. The back deck is located in an alcove that causes snow and ice issues which creates a dangerous and inconvenient situation. The homeowners like to spend time outdoors and have no space safe from bugs and birds. Enclosing the deck will not change the use. They came to the board 2 '/2 years ago and were denied. There is no need for additional indoor living area. This is designed as a porch. This proposal will make the house accessible. The project is compatible with the scale of the neighborhood because nothing is changing, the massing of the project does not affect the solar impact of the adjoining lots, there will be no noise generated and the project addresses specific concerns of the town. The Board discussed what would trigger something to be included in the gross floor area calculation. Chair, Ralph D. Clifford, asked if this proposal would add value to the house (There is no intention of selling the house. The proposal would increase desirability). Mr. Clifford read bylaw 135-4.4.3. He stated the intent of this bylaw is to keep economic diversity in the Town. He asked how making the house more expensive keeps economic diversity in the Town (This proposal wouldn't change the value of the house very much. There are endless things done to houses to increase desirability like painting and landscaping). Mr. Clifford stated those other things do not require a special permit. This is making the house bigger. Mr. Oldenburg stated this proposal is making the house bigger by specific definition of gross floor area. This proposal does achieve diversity of population, economically, through the mechanism of controlling the size of houses. This proposal will make this house usable to the elderly and disabled. Part of this project is to create an accessible entrance. The need for accessibility can arise. Mr. Clifford stated the accessible entrance could be accomplished fully without the need of screening in the deck and a special permit. It is not something of current need. This is about the increase in gross floor area. Making the house more expensive violates that express purpose of the bylaw. There were no questions or comments from the audience. There were no further questions from the Board. Mr. Oldenburg stated they did receive several letters of support. There is no immediate need for an accessible entrance but if the need arose it would arise quickly. The Hearing was closed at 8:52 pm (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Michael Boudett—Yes and Nyles N. Barnert—Yes). A Board Member, Jeanne K. Krieger, stated her opposition for increasing the gross floor area. Associate member, Beth Masterman, stated there is a tremendous design flaw. It must be disturbing to have all that snow falling off the roof. She stated she is in favor of the proposal. Associate member, Michael Boudett, agreed with Ms. Masterman's statement. He stated the way the roof slopes is dangerous. He would feel differently if it added to the mass presented to the street. Mr. Clifford stated his opposition. The affordable housing in Lexington is disappearing. Bigger houses cost more. This proposal is the kind of feature that adds to the value of the house. The Board is to be looking at economic diversity. It does have a negative impact on economic diversity. Mr. Boudett stated it could increase the value in the way of getting rid of the problem. A lot of applications affect the value of the house. Mr. Clifford stated they are not dealing with a general special permit. They wish to exceed gross floor area limitations in the bylaw. Unfortunately safety is not listed on the bylaw. He stated he is not convinced this is the only way to solve the safety problem. There are a variety of ways of solving the problem. Mr. Clifford stated the proposal is a screened porch now but could develop to a full room. Ms. Krieger and Mr. Barnert stated their opposition. The hearing was re-opened at 9:03 pm (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Michael Boudett—Yes and Nyles N. Barnert—Yes). Mr. Clifford informed the applicant three Board members will be voting against the proposal. He suggested the applicant could withdraw or continue to give time to come up with a new proposal instead of being denied. Mr. Oldenburg suggested if they could get a positive vote with conditions. Mr. Clifford stated he is not in favor of this proposal. He will not vote to make the house bigger. Susan Luperfoy of 31 Clarke Street, stated the proposal is not changing the size of the house or how big the house feels. Mr. Clifford stated under the zoning ordinances this proposal makes the house bigger on the gross floor area. Ms. Luperfoy questioned why the panel was needed and that it requires human judgment. Mr. Clifford stated they are required to apply the ordinance that they are given. David Duff, of 31 Clarke St, questioned if they don't withdraw then the proposal will get voted down and they will have no choice but to wait the two years. Mr. Clifford stated they could challenge the ruling in court. The Hearing was closed at 9:08 pm (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Michael Boudett—Yes and Nyles N. Barnert—Yes). The Board of appeals voted two (2) in favor, three (3) opposed, and zero (0) in abstention to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-4.4.3 to allow more gross floor area than otherwise allowed (a role call was taken: Ralph D. Clifford— No, Jeanne K. Krieger— No, Beth Masterman —Yes, Michael Boudett —Yes and Nyles N. Barnert— No). As a result, the special permit was denied. Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom October 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Associate Member Beth Masterman Alternate Member: Michael Boudett Administrative Staff: James Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 10 Kay Tiffany Way The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-4.4.3 to allow more gross floor area than otherwise allowed. The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Floor Plans and gross floor area calculations. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Department and Planning Department. Presenter: Fredrick Gilgun, attorney, on behalf of Kay Tiffany Way LLC and Todd Cataldo, contractor The Hearing was opened at 9:11 pm. Mr. Gilgun presented the petition. He stated the property is part of one of five lots in a new subdivision. There are three homes that are substantially completed. As constructed the structure has a basement floor that is great than 6 feet 8 inches. He then reviewed the gross floor area allowed and proposed. When doing construction there was an understanding there would be a crawl space area but due to construction costs it is more efficient to do one level floor. Due to the pandemic there is an increased need for functionality in homes. The increase in gross floor area will not affect any solar access. There will be no increase in noise generation. The home, with additional gross floor area, will be compatible with the scale of the neighborhood. He then reviewed the gross floor area of the surrounding homes. This proposal addresses town concerns with the inclusion of a hybrid heating system. The height of the structure is well below what is allowed and there is a substantial porch that is included in the gross floor area. The proposed gross floor area increase is all in the basement and does not affect the exterior of the dwelling. The opening sentence to the bylaw expresses the purpose of economically diverse community but it goes on to state small and medium sized housing stock. This is already not a small or medium sized property. This is a large property and an expensive property. The bylaw is not looking for diversity at that level. Section 4.4 states it is designed to limit massaging of buildings which may impact abutting properties and this project does not do that. This is a Special Permit not a Variance and there needs to be flexibility. Any increase in gross floor area is going to increase value. Chair, Ralph D. Clifford, questioned if the larger houses in the area were built before the zoning ordinance (Mr. Cataldo stated one of the houses was built after the ordinance but complies). Mr. Clifford questioned how much value would be added (Mr. Cataldo stated 1.5 percent higher, basement space does not command the regular number and gets priced at less). Mr. Cataldo stated he was the development community liaison to the RPC in 2016 that formulated this formula. They did reference economic diversity but they were trying to keep small houses on small lots from being demolished. It was not intended to apply to 2-3 million dollar houses. Mr. Clifford stated at the time it was adopted the Town didn't have many 2-3 million dollar houses. The Board has to go with the ordinance that was given. Mr. Gilgun stated the bylaw states to seek to have socially and economically diverse community, it is not a mandate that there cannot be any change to a property. The bylaw is more concern with abutting properties affected by the gross floor area. Mr. Clifford stated the house being proposed is too big according to calculations. The Board needs to balance to look at massing and economic diversity. A Board Member, Jeanne K. Krieger, stated she could not vote for this proposal. There were no questions or comments from the audience. There were no further questions from the Board. Mr. Gilgun stated this proposal meets all criteria set forth in the bylaw. The proposal is in line with neighborhood appearance. The Board should not get hung up on the first sentence of the bylaw while disregarding what the last sentence is which is to limit massing. The Hearing was closed at 9:34 pm (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). Mr. Clifford reviewed the bylaw. He stated to suggest economic diversity is not as important as other considerations is wrong. A Board member, Nyles N. Barnert, stated they had the opportunity to build a smaller house with a usable basement. They decided not to do that and now they want to make space even more valuable. Mr. Clifford stated this is a request after construction was already done. He stated his opposition. A Board Member, Beth Masterman, stated the Board does not know the intent was to build it and were waiting to make it even bigger, there is no proof of that. The Board of appeals voted 1 (one) in favor, four (4) opposed, and zero (0) in abstention to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) ) 135-9.4 and 135-4.4.3 to allow more gross floor area than otherwise allowed (a role call was taken: Ralph D. Clifford— No, Jeanne K. Krieger— No, Beth Masterman —Yes, Norman P. Cohen — No and Nyles N. Barnert— No). As a result the special permit was denied. Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom October 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Associate Member Beth Masterman Alternate Member: Michael Boudett Administrative Staff: James Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 21 Tower Road The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-8.4.2 to allow modification to non-conforming structure. The petitioner submitted the following information with the application: Nature and Justification, Topographic Plan, Plot Plan, Plans, elevations and gross floor area calculation. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Department and Building Commissioner. Presenter: Fredrick Gilgun on behalf of Karen Duprey The Hearing was opened at 9:45 pm. Mr. Gilgun presented the petition. He stated the homeowner wishes to construct a breezeway and garage to easily age in place. The home exists as a pre-existing non-conforming structure. The location of the proposed addition is due to soil conditions and topography. The addition will not be more detrimental to the neighborhood. There are 20 homes in the neighborhood that have such encroachments. Visitors are required to park on the street and the road is steep. Peter Daus-Haberle, designer, discussed topography and elevations between the front of the property and back of the property. The further back the garage goes the more it goes into the hill. The back roof already almost touches the ground and they want to keep the driveway as flat as possible. The location of the telephone pole prevents them straightening out the garage as well. The homeowner uses the back path to enter the house. The idea is not to attach the garage to have that access useable. That pathway gives a gradual entrance to the house. It is important to keep the character of the house. A Board Member, Nyles N. Barnert, questioned the entrance to the house by the breezeway (Mr. Daus-Harberle stated coming out of the garage the person would go under the breezeway and cross over to the door to the basement to the house. The breezeway is open). Chair, Ralph D. Clifford, questioned if there would need to be hammering/blasting (Mr. Daus- Harberle stated it depends on the type of ledge. It is hard to tell until they start). Mr. Clifford encouraged neighbor contact in advanced due to noise. He questioned if the applicant would accept a condition to contact the tree warden prior to the building permit being issued (Accept). There were no comments or questions from the audience. There were no further questions from the Board. The Hearing was closed at 10:01 pm (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). The Board agreed on the condition of the applicant contacting the tree warden. There were no further comments from the Board. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-8.4.2 to allow modification to non-conforming structure (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom October 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Associate Member Beth Masterman Alternate Member: Michael Boudett Administrative Staff: James Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk 1. Minutes from the October 14, 2021 Hearing The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to approved the minutes from October 14, 2021 Hearing (a role call was taken: Ralph D. Clifford—Yes, Jeanne K. Krieger—Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). 2. Article 13 of the Special Town Meeting 2021-1 Discussion Mr. Clifford stated his concern for the special permit requisites being given on Article 13. He stated it is one thing for the Board to look at a community and tell what the neighborhood looks like but not sure how the Board would look at equity, diversity and public health. He questioned how the Board would know if a particular proposal would cause a health problem. The Board discussed and agreed to take a position regarding Article 13 with the below statement. "We may agree with the goals in Article 13, but 9.4.2 as drafted does not give the Zoning Board of Appeals sufficient guidance to make rationally-based special permit decisions. There are words used that are vague. Additionally, the draft requires the Board to consider subject matter that is outside of the Board's zoning expertise. We advise Town Meeting, therefore, that Article 13 not be adopted in its present form" (a role call was taken to adopt the above language as the Boards position on Article 13: Ralph D. Clifford—Yes, Jeanne K. Krieger —Yes, Beth Masterman —Yes, Norman P. Cohen —Yes and Nyles N. Barnert—Yes). The Board voted to adjourn.