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HomeMy WebLinkAbout2019-06-13-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 62 Farmcrest Avenue The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-6.7.7 to allow an accessory structure apartment. The petitioner submitted the following information with the application: Nature and justification, plans, plot plan, and elevations. 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 Administrator and Engineering Department. Presenter: William Cates and Heather Hartshorn The hearing opened at 7:00 PM Ms. Hartshorn stated they have improved their plan. In the previous meeting the concerns fell into three areas: parking, short term rental, and screening for neighbors. The apartment is to house generations for family and the intention is not for short term rentals. The backup plan until her parents are ready to move in would be renters with a one year lease for people who cannot afford to live in town. The apartment will be pre-fabricated in Maine to make the least amount of disruption in the neighborhood. The new design accommodates three cars in the driveway and they added additional screening to the closest neighbor. They also moved the apartment so it is further away from the closest neighbor. It will have a mini-split HVAC unit. The location of the air conditioner was discussed. A Board Member, Martha C. Wood, asked about windows and doors on the basement level (Ms. Hartshorn responded they would like a French door on that level to move things in and out). Ms. Wood asked if they have shown this new plan to the neighbors (Ms. Hartshorn responded yes). A Board Member, David G. Williams, voiced his concern for the parking situation (Mr. Cates responded that they do have space for three cars. They did draw up alternative plans for side by side parking but it did not appeal to them). Mr. Williams asked if the initial use would be to rent the apartment (Ms. Hartshorn responded right now it could be used for their children or as a rental for a teacher). Mr. Williams discussed the possible rent income. Mr. Williams questioned the location of the apartment and why they didn't just put an apartment on the back of the house (Ms. Hartshorn stated she felt that was the natural place to put the structure. She stated an addition would be out of their budget). Mr. Cates added they felt they addressed the privacy issue by moving the apartment back five feet. Mr. Williams asked if they are saying they now and never will use it as Airbnb (Mr. Cates responded that was correct). A Board Member, Norman P. Cohen, clarified they are not going to have parking in front of the existing home (Mr. Cates responded that's correct, they have decided on tandem parking). The concern for parking was further discussed. Chair, Ralph D. Clifford, stated his concern for the look of the accessory apartment. The Zoning bylaw indicates they are to maintain the appearance of accessory structures. He stated he suggested they make it look like a garage previously and they chose not to do that (Mr. Cates stated it was discussed. Another drawing would have been more money, although they are not against that. They do have garage doors they could repurpose). Mr. Clifford stated the Board approves the plan that is submitted. He stated it needs to not look like two homes on the same lot. Mr. Williams again stated his concern for parking. An audience member, Stefania Beduschi of 64 Farmcrest Avenue, stated she believes this accessory apartment is going to be rented out as an Airbnb. She asked if Lexington follows up on the rentals (Mr. Clifford stated it is likely there will be a condition against short term rentals on this proposal. He suggested if it becomes an issue she can call the Lexington Building Department). Ms. Beduschi asked if they can live in the apartment and rent out their house (Mr. Clifford responded that would be acceptable as long as they are a resident on the parcel). Ms. Beduschi stated all the neighbors are concerned for safety when it comes to short term rentals. An audience member, John Spilewski of 53 Farmcrest Avenue, stated his concern for parking. An audience member, Linda Caggiano of 43 Farmcrest Avenue, stated Farmcrest Avenue is a walking route for Clarke Middle School. If they rent it out then you have strangers coming in and out weekly, it's not safe. She then stated he opposition for two houses on one lot. There were no further questions or comments from the audience. A Board Member, Jeanne K. Krieger, suggested a condition on both structures not being eligible for short term rentals (Ms. Hartshorn stated you can't see the future. It's not their plan but what if something happens). Mr. Cates stated if they can come back in five years then they would agree to the condition. The Zoning Administrator stated the Board could make it a condition for them to come back to re-visit the condition or they could come back to modify it to remove that condition they could come back to modify the special permit (Ms. Hartshorn stated that was reasonable). Mr. Williams stated his concern for future parking. Mr. Cates stated the two new houses in their neighborhood both front yards are driveways. They are trying not to make their front yard a driveway. This accessory apartment increases the number of small dwelling units in Town. It also increases the range of choices and a potential for a more diverse population. On a motion made and seconded, the Board voted to close the hearing at 7:40 PM. A Board member, Norman P. Cohen, suggested a condition that parking would not be allowed on the front lawn. The Zoning Administrator stated the bylaw already prohibits parking outside a driveway or designated parking area. Mr. Clifford stated he will be voting against this proposal because it looks like a second house and is not compliant with zoning rules. A Board member, Jeanne K. Krieger, stated she will vote in favor of the proposal. Mr. Cohen stated he will vote in favor of the proposal. This plan is much better than the plan from last time. On a motion by Jeanne K. Krieger and seconded by Martha C. Wood, the Board voted 3-2 to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-6.7.7 to allow an accessory structure apartment with the condition of no short term rentals on either the main house or the accessory apartment. As a result, the proposal was denied. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 56 Blossomcrest Road The petitioner is requesting a SPECIAL PERMIT, on the PETITION OF JOHN FARRINGTON, ESQ., ON BEHALF OF BLOSSOMCREST ROAD, LLC, for the following relief in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) listed as follows: FOUR (4) VARIANCES in accordance with sections 135- 9.2.2.2 and 135-4.4.1, Table 2 (Schedule of Dimensional Controls), to allow Lot 9A to have a lot area of 19,416 sq. ft. instead of the required 30,000 sq. ft. and a frontage of 113.82 feet instead of the required 150 feet; and to allow Lot 10A to have a lot area of 28,556 sq. ft. instead of the required 30,000 sq. ft. and a frontage of 70.01 feet instead of the required 150 feet; and ONE (1) SPECIAL PERMIT in accordance with sections 135-9.4 and 135-5.1.14 to allow the use of a common driveway for lots 9A and 10A. The petitioner submitted the following information with the application: Nature and justification, topographic plan, plot plan, elevations and plans. 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 Administrator and Planning. Presenter: John Farrington, attorney and Mike Capachietti, engineer The hearing opened at 7:00 PM Mr. Farrington stated this is a two-step process. The first step was taken with the Lexington planning board, which voted 5-0 to allow the subdivision of 56 Blossomcrest into two lots. The property has two single family houses on it. Each house was built in 1915 and 1916 and have been occupied continuously. Under the state zoning statue lots with two structures built prior to zoning may be divided into two separate lots if each resulting lot has a pre-existing structure on it. Here there are two single family homes on a single lot. The current owner bought two abutting lots and the lots were combined by deed description for mortgage purposes. 56 Blossomcrest always was sold in a single deed with two lots described as parcel one and parcel two. The site is 1.10 acres with a 140 foot frontage. There is a single common driveway for both houses. Because of the history of the property and challenging topography it makes sense to subdivide. The Engineer subdivided it into two lots to allow a reasonably large flat area for each house. The resulting lots would be as follows, 9A will have 19,416 square feet in area and 113.82 feet of frontage and Lot 10A will have 28,556 square feet in area and 70.01 frontage. All setback requirements will be met. Mr. Farrington discussed the grade change on the lot. Dividing the lot into two separate lots brings the site more into conformity with the current zoning bylaw. There was discussion on the math calculations on the frontage and lot area (Mr. Capachietti stated there was limited information on lot line surveys and there was a lot line agreement worked out with the neighbor to the East. 47,993 is the calculated area based of their survey and the lot has 183 feet of frontage. He also stated the square footage and frontage they are requesting are correct). A Board Member, Norman P. Cohen, questioned how they can build on both lots (Mr. Farrington responded by stating the general ANR rules each of resulting lots has adequate area and frontage. Chapter 41 section 81 L of the state zoning bylaw allows you to divide the lot with two pre-zoning structures on it as you like as long as one of the lots retains one of the preexisting structures). Mr. Williams stated on the town assessor's map there were 7 similar lots, the neighboring lots are about the same size and have a shed or a garage on them. He then asked if they decided they wanted to subdivide, could they (Mr. Farrington responded no. Each of the structures has to have been built pre-zoning). Chair, Ralph D. Clifford, questioned why the larger lot of 28,556 square feet isn't it 30,000 square feet (Mr. Capachietti stated there has been a couple of modification going through planning. They wanted to make both of them over 15,500). Mr. Clifford asked if that is something that can be done (Mr. Capachietti responded based off the existing house they would need to shrink the line in to allow additional area). Mr. Farrington stated there are two flat areas which is driving how it was subdivided. He assumes they could have squeezed 1,500 square feet from somewhere. Mr. Capachietti stated it affects the buildable area along lot 9a. This creates a concern for proper setbacks. Mr. Clifford stated he is not convinced it couldn't be done without interfering with the project. There were no comments or questions from audience. A Board Member, Jeanne K. Krieger, stated the planning board asked for a condition on this that the gross floor area that is permitted be essentially that of the pre ANR condition in that the calculation of gross floor area for the total track be applied as a limited aggregate development of both lots. Mr. Farrington responded there is no reason for that being a limitation. The Zoning Administrator stated with the condition lot 9A will be allowed 5,000 square feet for gross floor area and without the condition lot 9A will be allowed 7,656 square feet. With the condition lot 10A will be allowed 7,250 square feet for gross floor area and without the condition lot 10A will be allowed 9,122 square feet for gross floor area. Mr. Farrington requested the Boards view on the condition. Mr. Clifford stated initially he thought it was a good idea, but he's not sure it is the planning Board that should be making that decision, rather it should be town meeting. Mr. Farrington agreed with Mr. Clifford. Ms. Krieger stated she would like to have that limit on size for the two houses. Mr. Williams stated neither lot would be acceptable under RS zone. Neither lot conforms. Do it to conform to zoning. Mr. Farrington responded by stating they are under a state zoning exception. They are trying to put the simplest set of requirements together for something that is allowed. Mr. Clifford discussed the grounds for hardship. The topology is clearly involved but does not trigger zoning. Although there is a lot of granite, soil conditions are not being triggered. The shape of the lot is a hardship. This is a lot that has two legal houses on it. There is no way to make the continuation of those two legal houses go forward without a variance. This is a relatively unique situation. Sufficient grounds have been establish where we could grant a variance here. It's imposing a real hardship. He stated he will be voting in favor of the variance. There were no comments or questions from the audience. There were no further comments or questions from the Board. On a motion made and seconded, the Board voted to close the hearing at 8:36 PM. On a motion by Jeanne K. Krieger and seconded by Martha C. Wood, the Board voted 4-1, to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) listed as follows: FOUR (4) VARIANCES in accordance with sections 135-9.2.2.2 and 135-4.4.1, Table 2 (Schedule of Dimensional Controls), to allow Lot 9A to have a lot area of 19,416 sq. ft. instead of the required 30,000 sq. ft. and a frontage of 113.82 feet instead of the required 150 feet; and to allow Lot 10A to have a lot area of 28,556 sq. ft. instead of the required 30,000 sq. ft. and a frontage of 70.01 feet instead of the required 150 feet; and ONE (1) SPECIAL PERMIT in accordance with sections 135-9.4 and 135-5.1.14 to allow the use of a common driveway for lots 9A and 10A. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 53 Grant Street The petitioner is requesting TWO (2) SPECIAL PERMITS per sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure and to allow a modification to a non-conforming accessory structure and ONE (1) VARIANCE per 135-9.2.2.2 and 135-4.1.1 (Table 2, Schedule of Dimensional Controls) to allow a sideyard setback of 15 ft. instead of the required 20 ft. The petitioner submitted the following information with the application: Nature and justification, topographic plan, floor plans, plot plan, photographs and elevations. 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 Administrator, planning and Engineering Department. Presenter: Patricia Nelson, attorney, Joe M. Abdinoor and Thara Pillai, homeowners and Amy Nastazi, architect The hearing opened at 8:39 PM Ms. Nelson stated there is no space for elderly parents to visit and possibly live there. The homeowners went to the Historical Commission to demolish the existing home. That petition was denied and put on a one year delay list. The Historical Commission encouraged the owners to find a way to remodel the existing home. The architect managed to preserve the exterior and the interior of the home. The house is built on small lot the leads to restrictions. The special permit is to take the front porch and reconfigure it so it is less non-conforming and more functional. The existing garage plan would be to demolish existing garage and reconstruct it as a part of the house. In moving the garage this decreases the non-conformity. The hardship is it is not functional and the homeowners would possibly have to move or demolish the existing home. Ms. Pillai stated initially they looked at tearing down the house but with Historic District guidance they explored other options. She stated staying in their home is important to them. Chair, Ralph D. Clifford, stated the driveway goes into a catch basin, which can't be done. He asked if it would be possible to curve the driveway (Ms. Nastazi responded they are working on working around the catch basin. It will be compliant). Mr. Clifford stated they would need a condition on that. An audience member, Paulo Cassano of 47 grant Street, stated his support. An audience member, Jason Dearling of 11 Sheridan Street, stated his support. An audience member, Susannah hock of 13 Sheridan Street, stated her support An audience member, Pamela Lyons of 51 Grant Street, showed her support. An audience member, Damon Hinkel of 7 Sheridan Street, Stated his support. An audience member, Alisson Strochlic of 78 Grant Street, stated her support. There were no further comments or questions from the audience. On a motion made and seconded, the Board voted to close the hearing at 9:05 PM. Mr. Clifford stated if the variance is granted there are three conditions that need to be added. The first is that the shed get removed. The second is it needs to be clear that the variance is for that one triangle going over the setback line. The third condition is that the driveway has to be designed in a way that is satisfactory to Lexington engineering. The shape of the lot causes all kinds of problems. Mr. Williams asked what the determination was for the existing driveway. Mr. Clifford stated it needs to stay on Grant Street. That way is has a 20 ft. setback on Sheridan Street. The Zoning Administrator stated they are using Grant Street as the frontage street so the setback is 30 feet from Grant Street, and then Sheridan Street is the secondary street. Ms. Nelson stated Sheridan Street is an unaccepted street. There is acceptable frontage on Grant Street. There were no further comments or questions from the Board. On a motion by Norman P. Cohen and seconded by Jeanne K. Krieger, the Board voted 5-0, to grant TWO (2) SPECIAL PERMITS per sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure and to allow a modification to a non-conforming accessory structure and ONE (1) VARIANCE per 135-9.2.2.2 and 135-4.1.1 (Table 2, Schedule of Dimensional Controls) to allow a sideyard setback of 15 ft. instead of the required 20 ft with the conditions that the shed get removed, the variance is only for the triangle going over the setback line, and the driveway has to be designed in a way that is satisfactory to Lexington Engineering. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 70 Ward Street The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure. The petitioner submitted the following information with the application: Nature and justification, plans, plot plan, and photographs. Also submitted was a petition in support. 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 Building Commissioner and the Zoning Administrator. Presenter: William Ward The hearing opened at 9:21 PM Mr. Ward stated he is applying to mitigate a pre-existing non-conforming condition. The front door of his house is not really a front door. The house is abutting conservation land and is on list of historical houses. Historical commission voted to take a year. Other plans to do to the house were discussed. He is requesting a 25 foot setback. The conservation commission has reviewed all plans. The front entry is on the side of house, the setback there is 7.5 feet. They plan to take the door and move it to front of house. The door on the side of the house is too close to the neighbors. He explained proposed and existing plans. The front setback already encroaches about a foot. The benefits of this proposal would be improved appearance of home, reduced run off issue and removal of significant encroachment. A Board Member, Martha C. Wood, asked if Mr. Ward would support a condition that the cement sidewalk be removed (Mr. Ward responded yes). There were no further comments or questions from the audience. There were no further comments or questions from the Board. On a motion made and seconded, the Board voted to close the hearing at 9:34 PM. On a motion by Jeanne K. Krieger and seconded by Norman P. Cohen, the Board voted 5-0, to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 23 Rangeway Avenue The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure. The petitioner submitted the following information with the application: Nature and justification, floor plans, plot plan, and an abutter letter in support. 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 Administrator and the Building Commissioner. Presenter: Shendel Bakal The hearing opened at 9:35 PM Ms. Bakal stated she purchased the house in April to be closer to work. The house was in a dilapidated condition. The front of the house has an existing non-conformity at a 23 ft. setback. The stairs have a 10.6 foot setback. Ms. Bakal stated she is going to make the front porch less non-conforming to 19 feet. The dormer didn't allow for appropriate height for the stairs, so they are changing the roof line to fix that. The purpose of this proposal is to bring the house to a better condition. A Board member, David G. Williams, asked about the garage (Ms. Bakal explained the garage will get demolished and it will not be replaced). Mr. Williams asked how Ms. Bakal will handle the granite in the backyard (Ms. Bakal stated they need to explore the options of posts. There is a ledge around the house and basement. There is a material you can drill into that and have a grout mix that expands and breaks the granite). Mr. Williams asked when the garage is taken down, can they change the driveway so that there is 5 feet between (Ms. Bakal stated she was not aware of that. The plan is to leave the driveway). Ms. Bakal stated she enjoys living in Lexington and this would be an improvement. There were no further comments or questions from the audience. There were no further comments or questions from the Board. On a motion made and seconded, the Board voted to close the hearing at 7:49 PM. On a motion by Martha C. Wood and seconded by Jeanne K. Krieger, the Board voted 5-0, to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure with the condition that the garage be removed. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 4 Patriots Drive The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 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, floor plans, plot plan, and abutter letters in support. 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 Administrator. Presenter: Robert D'amato and John Austin, original builder of house The hearing opened at 9:49 PM Mr. D'amato stated he is requesting to enclose the rear deck and turn it into a sunroom. All his neighbors have sunporches. There is very heavy pollen from the maple trees surrounding the lots and allergies prevent them from using the deck. Enclosing the deck puts them over the gross floor limit for their lot by 298 square feet. They are not changing the footprint or the setbacks. He then showed photos of the house and the porch. A Board member, David G. Williams, asked if it will be heated (Mr. D'amato responded it will have both A/C and heat). A Board Member, Martha C. Wood, asked Mr. D'amato to explain the hardship (Mr. D'amato stated they don't use deck. They are trying to find an area to get sun and not deal with allergies. It will increases privacy and decrease noise to neighbors). An audience member, Lauri Campana of 5 Patriots Drive, stated her support. Mr. Austin stated the lot lines are heavily treed which makes it hard to see this part of the house from the street. Mr. D'amato stated the front porch is covered and the rear porch is not. If he wanted to he could enclose his front porch because it has a roof and is already included in his gross floor area. He had it like his front porch he wouldn't need to do anything. The law was not written to impact him, he is just enclosing an existing porch. There were no further comments or questions from the audience. On a motion made and seconded, the Board voted to close the hearing at 9:59 PM. Chair, Ralph D. Clifford, stated this is not a sunroom. This is a closed insulated space. They are creating an interior space. The house is already larger and He will be voting against. A Board member, Norman P. Cohen, stated neighbors can't even see it and it is hidden from the street. Mr. Williams stated there was a similar situation on Clarke Street, they were right on the property line and he voted against it. He stated here he does not feel compelled to vote against it, there is no impact on the neighbor. A Board member, Jeanne K. Krieger, stated she would support this because neighbors cannot see it and it cannot be seen from the street. Ms. Wood stated going back to the house on Clarke Street it also couldn't be seen from the Road and they turned that down. It's similar and she has not been convinced there is a need. There were no further comments or questions from the Board. On a motion by Jeanne K. Krieger and seconded by Norman P. Cohen, the Board voted 3-2, to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-4.4.3 to allow more gross floor area than otherwise allowed. As a result, the proposal was denied. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 489 Concord Avenue As two petitions had been filed concerning the same address seeking the same type of relief, the Board Chair announced that they would be heard together. The Board Chair opened both hearings on June 13, 2019. The petitioner Benjamin Tymann on behalf of Sharon Cerny is requesting an APPEAL OF THE DECISION OF THE ZONING ADMINISTRATOR, DATED MAY 1, 2019, regarding the Cotting School Parking Lot Project located at 489 Concord Ave. This appeal is made in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. The petitioner submitted the following information with the application: Nature and justification, memorandum from Bruce Embry Date May 15, 2019 and memorandum from Benjamin Tymann and a letter from an abutter. 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 Administrator and Engineering Department. The petitioner Benjamin Tymann on behalf of Alyssa Goodman of 485 Concord Ave. and Mei Tuo of 501 Concord Ave. is requesting an APPEAL OF THE DECISION OF THE ZONING ADMINISTRATOR, DATED MARCH 27, 2019, regarding the Cotting School Parking Lot Project located at 489 Concord Ave. This appeal is made in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. The petitioner submitted the following information with the application: Nature and justification, memorandum from Bruce Embry Date May 15, 2019 and memorandum from Benjamin Tymann and a letter from an abutter. 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 Administrator and Engineering Department. Presenter: Ben Tymann counsel for three applicants The hearing opened at 10:05 PM Chair, Ralph D. Clifford, stated this is an appeal of an administrative decision. The Board's role is to determine whether or not the decision made is an improper decision. Mr. Clifford asked Mr. Tymann to clarify in his application if he was challenging the applicability of the Dover Amendment or challenging its application. Mr. Tymann clarified they are challenging its application, more specifically the nature of the restrictions that they don't believe were imposed but should have been. He introduced the three petitioners. There are four petitioner properties that are abutting to the driveway in question. Mr. Tymann reviewed the eight grounds for the appeal. He stated the Tuffs case is important for review when making their decision. He then handed copies of the Tuffs case to the Board and read a part of the case. It was inappropriate for the Zoning Administrator not to impose the requirements when you look at a law under Dover amendment regarding the balancing test that's supposed to take place. How important is it to apply relevant bylaw restrictions versus the educational use at issue. He then handed out an additional document to the Board. Alysa Goodman of 485 Concord Avenue made a presentation. She stated everyone says it's someone else's jurisdiction. She doesn't trust the Town or Cotting School and has installed surveillance cameras on her own property. Mr. Tymann stated this is relevant because it speaks to several of the impact areas they have asked the Board to determine that should have been applied. There were requirements not imposed that should have been. There are clear standards how Dover Amendment proposed uses are supposed to be handled that were not handled properly. He then read page 4 of his letter. The Cotting School should have had to come to the Town and met its burden with regard to the pertinent bylaw provisions. There was uncertainty with the Town Hall on how Dover Amendment uses was to be dealt with. They took the position that they don't have the ability to regulate Dover Amendment issues. He stated the process was backwards and then suggested a continuance. Mr. Clifford agreed and suggested it made sense to have the Board ask their questions now. Mr. Clifford asked in regards to the Tuffs decision that was cited, a town can take a look at traffic but does it say anywhere in the opinion that the Town has to take a look at traffic (Mr. Tymann responded no). Mr. Clifford stated if the Town doesn't look at traffic it hasn't done anything that violates the Tuffs case. Isn't that a good part of our decision, whether the Zoning Administrator didn't do something she had to do (Mr. Tymann stated he thinks the Boards review can be whether the Zoning Administrator was under a misimpression that she was restricted from looking at anything other than those words in the statute. She stated many of the issues could be looked at, that's wrong as a matter of law. The Zoning Administrator aired on the law of the Dover Amendment. Mr. Clifford asked what standard of review Mr. Tymann was asking for (Mr. Tymann responded he is asking for what is a kin to a judicial level of review on the issues of law, De novo on legal questions. If you were to affirm her decision, there will have been no review with regard to those issues). Mr. Clifford asked if the diagram submitted of intersections was of public streets (Mr. Tymann responded looking at Mass DOT regulations it doesn't restrict to public streets. Mass DOT standards that he cited do not distinguish between public and private). Mr. Clifford asked where it is made illegal for someone to do clear cutting on their own property (Mr. Tymann responded the conservation agent determined it was improper because Mr. MacCarron sent a letter that if they don't meet the following conditions then they were to stop). Mr. Clifford stated that was conservation issues and asked if that means the cutting down of the trees was improper (Mr. Tymann responded it at least violated conservation regulations. It also was improper because a school or church that is under the Dover protection is not entitled under the law to go forward with a project without seeking some kind of review or approval, which is what Cotting School did). Ms. Goodman stated its left turns against each other that is dangerous, it does say public streets. The planning board said Oscant (the servient parcel owner) can't build houses unless that driveway is turned into a public street. We are treating it as it is a street. Mr. Clifford stated it may function as a street but it is a privately owned easement. Mr. Tymann stated it's not just the Mass DOT standards but he cites in his memo the provisions of bylaw governing parking lot driveways. In the Lexington bylaw 5.1.10.2 says with respect to parking lot driveways shall be located to minimize conflict with traffic on a public street. There is no question of the applicability of that. No one ever said to Cotting School show us why you don't have to abide by that bylaw. Mr. Clifford stated the Board will not be going to construe that easement (Mr. Tymann stated that should not be the case, there is a bylaw that says if the private way or driveway is not permitted to be used then it should not be there. Someone needs to decide whether or not that right of way is permitted to be used). Mr. Clifford asked for an explanation on why 5.1.2 in the Lexington bylaw doesn't remove all of 5.1 from their consideration here to be explained at the next hearing. On a motion by Jeanne K. Krieger and seconded by Martha C. Wood, the Board voted 5-0, to continue to June 27, 2019 Hearing. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room May June 13, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk On a motion made and seconded, the Board voted to adjourn.