2016-07-28-ZBA-min - Laserfiche WebLink

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BOA Meeting July 28, 2016 8 A Board Member, Mr. Clifford, asked Mr. Neurath if there are any financial impacts on him (yes, Mr. Neurath believes there is a decrease in his property value). Mr. Clifford asked him if there there are any other impacts besides the traffic and financial detriment (Tree screening, etc.). Mr. Clifford stated that as a Board, they have to decide if the applicant has standing to bring this matter in front of the Board. The Chairwoman, Ms. Jeanne K. Krieger, stated that the hearing has already been opened so they have to hear it. A Board Member, Mr. Clifford, stated that the gap on the map from 1956 is from a court judgement. The Board cannot change what the court has decided. The map was accepted from the land court and the Board can’t ignore what the land court has decided (Mr. Neurath stated that it conflicts with the 1928 opinion). Mr. Clifford stated that we have to go with the later court judgement. Mr. Clifford asked Mr. Neurath how the house is more detrimental than the previous structure (the previous home was small, the driveway didn’t go to Byron Avenue, traffic wasn’t an issue, no problems with snow removal, no safety issues, trees have been removed). Mr. Clifford asked what those issues have to do with zoning (it should have required a Special Permit. The Zoning Bylaw requires a Special Permit if there is an increase in special use. In regards to the issue of the zoning requirement that there be physical access to the frontage, there will be limited access). Mr. Clifford stated that there will be an inspection done before occupancy is issued. A Board Member, Mr. Williams, stated that this is a grandfathered non-conforming lot. The building that was put there conforms to the building requirements. He doesn’t see anything that would say that this doesn’t meet the zoning requirements. Mr. Neurath stated that there is an interpretation of 8.4.1 which exempts it from a Special Permit because it meets the setback requirements has been demonstrated by Massachusetts Case Law to be the wrong interpretation. The structure is significantly different from the existing nonconforming structure. A structure on a non-conforming lot is considered a non-conforming structure. The Chairwoman, Ms. Jeanne K. Krieger, stated that the structure is there by right and the use of Byron Avenue for its access is allowed in the zoning requirements. The zoning bylaws do not regulate tree coverage. They have proof that the 1956 land court decision stated that the property is tangential to Byron Avenue. Although snow plowing and tree coverage are issues in the neighborhood, none of them are issues that the Board can act on. There are no zoning issues here. Mr. Neurath stated that the Town of Lexington has been misinterpreting 135-8.4.1. Current Massachusetts case law has proven that a structure so drastically different cannot be deemed as conforming. The Town of Truro had a recent determination that showed this. There are Supreme Court cases that could have an impact on how Lexington deals with “mansionization”. Instead of creating new bylaws, Lexington could simply interpret the bylaw differently. This project should not be exempt from a special permit. Mansionization could be controlled by following current case law.