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HomeMy WebLinkAbout2016-07-28-ZBA-min Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room July 28, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, David G. Williams, Martha C. Wood, Ralph D. Clifford and Associate Member Nyles N. Barnert Also present at the hearing was Alternate Hank Manz Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 9 Hancock Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Floor Plans and Photographs. Also received was a Certified Plot Plan Waiver Request. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Zoning Administrator, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Building Commissioner, Selectmen’s Office, Historic Districts Commission and the Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (CH 135 of the Code of the Town of Lexington) and Article 40 (Amendment to the Zoning Bylaw, Accessory Apartment, adopted by Town Meeting at the March 30, 2016 session of the 2016 Annual Town Meeting) sections 135-6.7.7 and 135-9.4 to allow an accessory structure apartment. The Chairwoman opened the hearing at 7:32 pm by reading the legal notices and described information received from the petitioner. The applicant, Mr. Colin Smith, presented the application. The carriage house at 9 Hancock Street was built in the 1800s and over its life has had many uses. He is proposing to convert the structure to an accessory apartment. The house needs restoration work done to make fit for an apartment. The apartment would be contained st on the 1 floor and accessed through the side door. It would be a 1 bedroom apartment with a ¾ bathroom on first floor. The other space in the structure will be continued to be used as yard storage. Aside from structural work and insulation, there will be no other changes to the attic level. On the rear side along the bike path, there is mechanical venting that needs to be installed to accommodate systems. Near the lattice doors, they want to rebuild one existing wall. The doors will remain closed to maintain the outside appearance of the structure. Overall, the changes will be minimal. The Board of Selectmen and Historic District Commission (HDC) have approved the project. A Board Member, Mr. David Williams asked the applicant if he is putting lights on the building near the bike path (no). Mr. Williams asked if they plan to do any landscaping (There is nothing proposed and nothing can be removed or changed on the site BOA Meeting July 28, 2016 2 without permission from the HDC). Mr. Williams asked what the original purpose of the lattice work was (Unknown. The building was one time used as the Lexington DPW. They are preserving the historic look of the structure). Mr. Williams stated that he would like to see a condition put on the Special Permit to prohibit overnight stays. Ms. Dawn McKenna, 9 Hancock Street spoke. She is the owner of the property. They already went to the Board of Selectmen and were approved to do this project. Her son will be living in the apartment. It is not legal to condition who can live in the apartment. The Board of Selectmen tried to put a condition in but were unable to. The Chairwoman, Ms. Jeanne K. Krieger stated that the Board of Appeals could still put a condition on the Special Permit regarding the length of stay. A Board Member, Ms. Martha C. Wood stated she is concerned with the length of time the apartment could be rented (An overnight stay is not allowed in the lease). The Chairwoman closed the hearing at 7:47 pm. On a motion by Ralph D. Clifford and seconded by Martha C. Wood, the Board voted 5-0 to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (CH 135 of the Code of the Town of Lexington) and Article 40 (Amendment to the Zoning Bylaw, Accessory Apartment, adopted by Town Meeting at the March 30, 2016 session of the 2016 Annual Town Meeting) sections 135-6.7.7 and 135-9.4 to allow an accessory structure apartment with the following condition: The apartment will not be rented for overnight or weekend stays. Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting July 28, 2016 3 Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room July 28, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, David G. Williams, Martha C. Wood, Ralph D. Clifford and Associate Member Nyles N. Barnert Also present at the hearing was Alternate Hank Manz Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 324 Marrett Road The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, and Photographs. Also received was an Owner’s Authorization. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Zoning Administrator, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) section 135-5.2.4(1) for internal illumination of a gas pump topper signs. The Chairwoman opened the hearing at 7:49 pm by reading the legal notices and described information received from the petitioner. The applicant, Ms. Carolyn Parker, presented the petition. She had been in front of the Board of Appeals a couple years ago requesting a Special Permit for a Smart Pay Pump Topper but was denied. She is now proposing a standard pump topper with LED price signs. Ms. Parker presented an example of the price topper with red LED lighting. The proposed topper could have red or white lights. They have added a 3M film to the pump topper so they can change the brightness level of the prices. The proposed sign would remain static at all times. Ms. Parker responded to the Zoning Administrator’s questions in his comments. In response to the time it takes to change the price toppers, she stated that the pump signs are magnetic so it currently takes about 20 minutes to change the price. The employee has to close down to the lane and put a cone up to change the price. In response to what safety issues are present when changing the signs, she stated that the proposed pump topper will be a much safer way of changing the pump signs because the prices can be changed remotely. In response to the question about how the proposed signs will be more visible, she responded that they are not trying to make them more visible, they just want to change the price toppers from magnetic to LED. A Board Member, Mr. Nyles N. Barnert, stated that the sign is still too bright (Ms. Parker responded that the Board could make the allowable brightness a condition.) BOA Meeting July 28, 2016 4 A Board Member, Mr. David G. Williams, stated that the prices are already evident by the sign on the side of the road. He understands that law requires them to have a pump topper with the prices but it is rare to have the price changed in the middle of the day. The lights are intrusive and what they have now is appropriate. A Board Member, Mr. Ralph D. Clifford, asked the Zoning Administrator if other gas stations in the area have LED price toppers (Mr. George does not know of any other gas stations in Lexington that have LED price toppers). A Board Member, Mr. Williams, stated that at the Shell station that previously came in front of the Board, was not allowed to have LEDs on the price toppers. Ms. Parker asked why the LED price toppers wouldn’t be allowed since they are not flashing or alternating and are under a canopy. The Chairwoman, Ms. Jeanne K. Krieger asked when the price toppers would be illuminated (the hours of the store, 6:00 am to 11:00 pm). An audience member, Mr. DJ Modoono of 336 Marrett Road, stated that he is an abutter to the gas station. He is in opposition to the petition. He has been to other gas stations that have the same LED price toppers. Studies have shown that the LED lighting is bad for the eyes and also could be distracting to drivers at night. At this gas station, the pump lights are sometimes left on for 24 hours because the clerks forget to shut them off. Adding the LED price toppers would be adding more lights to the property. He has been at the station when the magnetic prices are changed and he has never seen the clerk close the lane for it. They price change is done very quickly. An audience member, Mr. David Turnquist of 321 Concord Avenue spoke. He stated that there is already too much light pollution on that corner already and it would be an additional eyesore for the town. The applicant, Ms. Parker, stated that the LED price toppers wouldn’t be adding any more light pollution than what’s already there. She will make sure that the lights get shut off every evening along with the music. They are looking to receive a Special Permit for the lowest light setting. A Board Member, Mr. Williams, stated that he is in opposition to the petition. The lights are distracting and intrusive for abutters (Ms. Parker responded that it’s not going to add any more light). A Board Member, Mr. Barnert, asked how they can approve this if the petition states they are proposing red lights but the example in front of them shows white lights (The Chairwoman responded that it would be just as bright). A Board Member, Mr. Hank Manz, asked if they can view the price topper with the lights out (lights were shut off momentarily). The Chairwoman closed the hearing at 8:08 pm. BOA Meeting July 28, 2016 5 On a motion by Martha C. Wood and seconded by Nyles N. Barnert, the Board voted 0-5 to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-5.2.4(1) for internal illumination of a gas pump topper signs. Submitted by: Jennifer Gingras, Administrative Clerk Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room July 28, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, David G. Williams, Martha C. Wood, Ralph D. Clifford and Associate Member Nyles N. Barnert Also present at the hearing was Alternate Hank Manz Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 11 Byron Avenue The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Floor Plans and Photographs. Also received was a Building Permit Application for 11 Byron Avenue, Letter from Mr. John Farrington, dated July 1, 2016; Updated letter entitled “Grounds for Appeal,” dated July 19, 2016; and Eight (8) Letters from abutters in opposition. Prior to the meeting, the petitions and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Board of Selectmen, the Zoning Administrator, the Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Historic Districts Commission and Zoning Administrator. The petitioner is requesting an APPEAL OF THE BUILDING COMMISSIONER'S DECISION DATED APRIL 15, 2016 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. The Chairwoman opened the hearing at 8:15 pm by reading the legal notices and described information received from the petitioner. Mr. John Farrington, the attorney representing Mr. Michael Martignetti, the owner of 11 Byron Avenue asked to speak first in reference to the standing of the applicant’s petition. Mr. Farrington objected to the applicant presenting some of the issues in his petition because they are not under the jurisdiction of the Board of Appeals. Mr. Farrington referenced the comments in Mr. Neurath’s petition of a gap. Mr. Farrington stated that if cannot provide a more updated survey report, then he has no dispute of what the land court has approved and what is of record. The petitioner, Mr. Christopher Neurath, presented his application. He stated that the addition of the large house on Byron Avenue has had a major impact on the neighborhood in many ways. He has addressed the Zoning Administrator’s, Mr. George, and Mr. John Farrington’s comments in additional documents that he has provided. There are different issues he is presenting than what will be presented to the Historic District Commission. In relation to zoning, he feels that the home would bring a substantial amount of additional traffic to their neighborhood. There is already limited parking on Byron Avenue. There is also an issue with the tree screening. The trees that were previously on that lot were cleared out. There are also safety issues BOA Meeting July 28, 2016 7 with the increase in traffic. The project does not meet the requirements of the Lexington Zoning Bylaw Section 135-8.4.1 which would allow the Building Commissioner to declare the project to cause no increase in nonconforming use. The existing structure on the lot was non-conforming. Section 135-8.4.1 deals with the reconstruction and alteration of houses. The new house on 14 Maple Street would be four times larger and on a completely different section of the lot. It also will have a new driveway to a different street. There has been recent Massachusetts case law that has clarified the use of non-conforming structures by showing that a house is more nonconforming than a pre-existing house, making the house exempt from the requirement of obtaining a Special Permit. Mr. Farrington stated that the streets meet the public access requirements. It was a safer determination to move the frontage for the property from Maple Street to Byron Avenue. He did submit an engineered plan showing that the driveway could be put on Maple Street but there is a plan for Maple Street to be expanded and widened in front of this property. It would be more dangerous to back out onto Maple Street. He does not agree with the petitioner that the new construction will be more detrimental to the neighborhood. That statement assumes there is a special permit in place. That language is from Section 9 of the Zoning Bylaw which states if a Special Permit is issued, they have to find it’s not more detrimental to the neighborhood. They are not under a Special Permit. They are not expanding a non-conforming structure. The structure meets all the dimensional requirements of Section 4, the non-conforming section of the bylaw. In order to get the final occupancy permit they will have to demonstrate that they meet the dimensional requirements. The Zoning Administrator, Mr. David George, read Section 135-8.4.1 of the Zoning bylaw. There is a table that sets forth what the side yard setbacks must be and what the frontage requirements are. The question is how the Town interprets this bylaw. The front yard setback must be 30 ft and because there is a secondary street so the side yard would be 20 ft. This structure conforms to the requirements so Section 135- 8.4.2 isn’t a question since the structure isn’t more non-conforming and is a by-right matter. The bylaw preserved exemptions from area and frontage. A Board Member, Mr. Nyles Barnert, asked the Zoning Administrator, Mr. George if Section 135-8.4.1 applies because they have a non-conforming lot, not a non- conforming structure (Mr. George responded that 135-8.4.5 states that you can add onto an existing lot to make it more conforming). A Board Member, Mr. Barnert, asked Mr. Farrington if they can meet the slope requirements to have the driveway go to Maple Street (Yes, they submitted an engineered plan showing they can meet the requirements). Mr. Clifford asked Mr. Neurath who is making the appeal (Mr. Neurath stated that he submitted a petition of supporters of the appeal he applied for which includes all of the neighbors on Byron Avenue). A Board Member, Mr. Ralph D. Clifford, asked Mr. Neurath how he has the right to bring the appeal to the Board of Appeals and how the project has injured him (there has been an increase in traffic. With it being a dead-end road, every service vehicle has to back out. Parking is also limited). 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. BOA Meeting July 28, 2016 9 The Building Commissioner, Mr. Fred Lonardo spoke. He wanted to clarify that this project is in a residential district so it’s an allowed use. He doesn’t recall Mr. Neurath coming into the office to ask him about interpretation and he doesn’t see anything that would show a zoning violation. An audience member, Ms. Wendy Russman of 15 Lockwood Road, spoke in support of Mr. Neurath’s petition. She stated that the Town is not seeing the issue as a whole. The building permit application for 11 Byron Avenue had false information but it was still granted. The application for 11 Byron had false information but it was granted. At the HDC meeting, they fought to have the house to remain and the driveway to go to Maple Street but they were told it’s impossible because it’s too steep. Now they are being told there can be a driveway. Mr. Martignetti is on the mansionization committee in his neighborhood and is against these types of projects in his neighborhood. One of the agreements with the HDC would be that the trees would be left in the setback but all the trees were taken down. An audience member, Ms. Andrea Yodsampa of 23 Byron Avenue, spoke in support of Mr. Neurath’s petition. The project has damaged the neighborhood by adding safety concerns. The neighborhood doesn’t know where to take this issue because every department they go to states it’s not their issue. Ms. Yodsampa encouraged the Board to take a serious look at the petition and take their argument seriously. An audience member, Ms. Sarah Higginbotham of 21 Byron Avenue, spoke in support of Mr. Neurath’s petition. An audience member, Ms. Barbara Murphy of 11 Lockwood Road, asked if there is any possibility of the driveway going to Maple Street instead of Byron Avenue (no). The Chairwoman, Ms. Krieger, stated that it is allowable under the Lexington bylaws to use the frontage on Byron Avenue. An audience member, Ms. Donna Moultrup of 10 Lockwood Road, stated that she met with Mr. Lonardo previously and he had told her that it’s not a Zoning Board of Appeals issue. The neighbors don’t know where else to turn but feel they should have an opportunity to have a say in what can be done. Ms. Moultrup asked the Board how they can get this issue changed. The Chairwoman, Ms. Krieger, responded that she has no answer to that. The Board of Appeals’ job is to correctly interpret the Lexington zoning bylaws. The house is being built by right and the applicant’s issues with the zoning bylaws have no merit. The applicant, Mr. Neurath, stated that he would like the Board to read the court cases and see how this is a misinterpretation of the zoning bylaw. The case law has set a new precedent in Massachusetts and Lexington is behind. Most towns don’t allow an exemption just because it doesn’t meet the setback requirements. An audience member, Ms. Andrea Yodsampa of 23 Byron Avenue, asked how Mr. Neurath’s argument doesn’t have merit before the Board of Appeals. BOA Meeting July 28, 2016 10 A Board Member, Mr. Clifford, stated that most of the court cases that are interpreting the zoning bylaw are deciding the interpretation based on that specific town’s bylaw. Just because one town has had an interpretation done, it doesn’t mean that all towns can be interpreted the same way. Standing is interpreted by state law, not by local bylaws. Just because there is a case that dealt with a particular term, doesn’t mean that it is a blanket decision for all towns. The Chairwoman closed the hearing at 9:17 pm. On a motion by Ralph D. Clifford and seconded by Martha C. Wood, the Board voted 5-0 to UPHOLD the BUILDING COMMISSIONER'S DECISION DATED APRIL 15, 2016 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. . Submitted by: Jennifer Gingras, Administrative Clerk Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room July 28, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, David G. Williams, Martha C. Wood, Ralph D. Clifford and Associate Member Nyles N. Barnert Also present at the hearing was Alternate Hank Manz Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Other Business: 1. On a motion by Martha C. Wood and seconded by David G. Williams the Board voted 5-0, to accept the meeting minutes of July 14, 2016. Submitted by: Jennifer Gingras, Administrative Clerk