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HomeMy WebLinkAbout2006-10-12-ZBA-min Minutes of the Lexington Zoning Board of Appeals October 12, 2006 Present: Acting Chairman — Arthur C. Smith, Nyles N. Barnert, Maura L. Sheehan, John J. McWeeney and Associate Daniel A. Lucas. Also present David George, Zoning Administrator and Dianne Cornaro, Administrative Clerk. Petition Address: 7 -11 Massachusetts Avenue The relief sought is for a Modification of an existing Variance to allow permission to park up to 35 vehicles on the premises on an overnight basis. The Chairman opened the hearing at 7:45 PM by reading the legal notice and described information received from the petitioner relative to the petition. Prior to the hearing, the petition and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Health Director, Zoning Administrator, Planning Board and Development Review Team. The Building Commissioner referred to notification of zoning violations to the Petitioner. Conservation wrote a letter with recommendations not to grant the modification and the Zoning Administrator submitted background information relative to the petition. An abutter submitted photographs of various cars and tow trucks parking on town owed property. Attorney William Dailey presented the petition for the owners of the property, Mr. and Mrs. Malcom Kilikian, by presenting a background of the 40 -year old business. They are seeking permission to park up to 35 vehicles on the back lot by the bike path on an overnight basis. Mr. Kiljikian has a contract with the Town of Lexington for towing. He stated that this was the only place in Lexington that he was aware of that stores towed vehicles. Attorney Dailey presented the Board with a 2006 Revised Master List of Discarded Vehicles and a list of vehicles from the State Police. He spoke of three groups of cars stored at Mal's: wrecked cars from accidents, police towed vehicles and abandon cars. Attorney Dailey explained the problems and the laws pertaining to discarding these vehicles. Maura Sheehan asked what are the Capies on the Revised Master List? They are abandon vehicles. Was the environmental report also signed off with Conservation? The Order of Condition from Conservation will be taken care of by the petitioners. John McWeeney asked if Mal's had any agreement with the MBTA for the Right of Way? The answer was no. Mr. McWeeney said there were over 100 cars and trucks there yesterday, how do they know which ones will go? A lot of them would be gone over night; the rest of them would be moved to the rear of the property. Attorney Dailey said if you went down there October 12, 2006 Minutes 2 tonight there would not be more than 3 5 cars. They are going to hold to storing no more than 3 5 cars overnight and they are looking for a combination of answers for the problem of discarding towed cars. John McWeeney read from the Variance previously granted to Mal's, which read they could have 55 cars parked during the day and that there would be no storage of cars outside of the building during the night. Daniel Lucas asked how many cars on average were left in the lot, yesterday and just before the meeting he was there and there were about 130 cars. He was answered that there is usually between 35 to 40 cars left in the lot. Nyles Barnert stated that the granted Variance was for parking employee and customer vehicles; abandon cars are not customers, Mal's currently is in violation of the Variance. Attorney Dailey answered that the first twenty years of the Variance was not a problem but in the last 10 to 15 years abandon cars have become a problem. Mr. Barnert asked what would happen if Mr. Kiljikian said they couldn't take the vehicles? Attorney Dailey said they don't want to do that to the Town Officials. When asked if the State has their own towing the answer was no. After asking about the issues with Conservation with illegal landfill , the hazards of parking leaking wrecked cars were discussed. Attorney Dailey was not aware that Conservation was going to have an issue. They had put wood chips down and have been asked by Conservation to put in an eighteen -inch small drain area. One of the requirements is that they control leakage from wrecked vehicles when they pick them up. They have received no complaints of contamination into the brook. Arthur Smith said that according to the Zoning By Law the use they are asking for is forbidden; what they are looking for is a use change. Attorney Dailey replied that the use Variance was permitted in 1973 and they are asking for a modification of that Variance. Arthur Smith read from Section 135.55, Table 1, Line 11.14 of the zoning By Law. Attorney Dailey said the BOA are allowed to grant a temporary use until such time that the applicant could make arrangements to go to Planning to get a solution for the towed vehicles. Arthur Smith told Attorney Dailey that the original Variance was for employee and customer parking only during the day. There was a condition on that Variance that unused vehicles were not be parked there. John McWeeney asked about the trucks lettering that say Lexington and Arlington, do you tow for Arlington as well? Yes, every fourth week they tow for Arlington. The building across the street is in Arlington and they park the Arlington cars there. October 12, 2006 Minutes 3 Arthur Smith asked if they had any written communications from the Police on this towing problem. James Lima spoke on behalf of Mal's explaining the legality and the process of removing abandon cars. Mr. Lima had been on the Lexington Police Force for over 30 years and now worked for Mal's helping them through the process of discarding abandoned vehicles. Maura Sheehan asked if Mal's had a contract with AAA, the answer was no. John McWeeney asked Mr. Lima if he knew of any municipality that operates their own lot. To his knowledge there is no place around here but he did think Nashua NH has their own. Arthur Smith asked how many tow agencies to the Lexington Police use; the answer was only one, Mal's. Questions from the audience were as follows: • Issac Silvas, 85A Pleasant Street 1. Wanted to see on the map where the parking was going to be. Attorney Dailey showed the plot plan to the audience. 2. Who pays for the towing? The owner of the vehicles as long as the owner is identified, they do not collect from vehicles that are abandoned but it is in the contract with the town that they have to pick up all vehicles that they are called to tow. 3. Lot is saturated with cars now, what will happen if problem grows? They are working on reducing the amount of abandoned cars in the lot. 4. Are you asking for the extension of the land to park more cars? No there will be no more that 3 5 cars over night. 5. Why should we expect him to make things better when they have been in violation before and nothing was done? There was no response to this question. • Arlene Burns, 37 Cliffe Avenue, referred to the Gas Station next door asking if that is where they were planning on parking. They answered that they will not be parking there and no cars will be parked on Massachusetts Avenue. • Fareena Sultan, 7 Ridge Avenue, was concerned with are the cars being parked closer to the bike path, what cars are by the Brook and next to Conservation land. She had concerns with the impact on the neighborhood stating noise all day and all night, impact of wrecked leaky cars on the ground, lights at night, fumes from idling cars and trucks, noise from the radios and concern with the conservation area. She wanted to know what are they going to do to protect the neighborhood. Attorney Dailey assured her that Mr. Kiljikian confirms that they will only park along the pathway and will make every effort to address the concerns of the neighbors. October 12, 2006 Minutes 4 Arthur Smith asked Mr. Kiljikian if the Board were to grant this modification would he accept a condition that vehicles would not be brought in during the night. His answer was that he could not agree to that condition. • Martha Kaplan, 4 S. Ridge Avenue said she walks the bike path and quite often the vehicles are triple deep along the bike path. Her concern with that is that the longer the wrecked vehicles stay there the more likely the leakage and back in 1973 Conservation prohibited that activity. Why take this approach now when it was not allowed in 1973? Attorney Dailey's answer to her concern was that things have changed as to the ability to get rid of cars and the Town regulates no overnight Street parking. • Ivan Bach, 3 S. Ridge Avenue, asked if Mal's were legally bound to pick up cars when called? Mal's have a contract with the Town to tow and respond 24 hours a day, 7 days a week. Mr. Bach said he would like to see paper work from the Police that force you to violate your Variance. Answer: Police do not have the authority to do that, it was a condition on the bid that Mal's would need to be able to tow 24 hours a day, seven days a week. John McWeeney told the audience that it becomes a liability issue for the town if cars are not picked up by the side of the road. • Tara Manning, 1 S. Ridge Avenue wanted to know why did they wait this long to make it legal? Attorney Dailey said that they have been discussing this issue with the town over a period of time and it had reached a point that they needed to come before the Board to have it addressed. • Khatri Khalil, 1 S. Ridge Avenue told the Board that where he comes from the Police are corrupt and wanted to know why nothing has been done in 10 years. John McWeeney told Mr. Khalil that the town typically needs to receive a written complaint to get the process started and Arthur Smith explained the process to the audience. Attorney Dailey said that when the Building Commissioner Steve Frederickson got in touch with Mal's regarding the non - compliance issues, Mal's started working to clean up the area of abandon vehicles. Attorney Dailey assures the audience that the Town had been diligent in keeping in touch with him about the clean up. • Lilly Silver, 85A Pleasant Street and who owns a business at 12 -14 Massachusetts Avenue, asked if there was any requirement or law that states whatever is towed in Lexington needs to stay stored in Lexington? Attorney Dailey answered that there is none that he is aware of but doesn't think that other Towns would want to store vehicles from other towns. October 12, 2006 Minutes 5 • Ms. Silver stated that to his credit it is wonderful see that Mal's business has grown, but there is getting to be more and more trucks and customers. The problem with parking during the day is getting worse and worse for all businesses around him. His growing business is great for him but not good for neighboring businesses. • Ms. Silver was also concerned with people's first impression coming into Lexington, an abandon gas station and a large towing company with cars and trucks all over the place. • Tara Manning wanted to know how they could be sure that there would be no health issues with storing the wrecks there. Answer: They drain any signs of leaking fluids from the wrecks before they are towed from accident scenes. • Arlene Burns asked why the cars couldn't be towed to John Carroll's junkyard? The answer was that these cars are not all junk cars, some have not been legally abandoned and John Carroll will not take cars without titles. • Krish Menon, 1 S. Ridge Avenue, questioned if they had any sort of a record how many vehicles had been stored overnight in the last couple of years. Attorney Dailey said that it varies depending on the time of year but the average is between 35 to 45 vehicles, based on Mal's estimate. No one spoke in favor of this petition. The following spoke in opposition: Anthony Caliendo, 1520 Massachusetts Avenue, Arlington, had the following he wanted to address but was cut off because the Chairman had asked for questions pertaining to the petition and that he would have a chance to talk about his concerns at a later time in the hearing. 1. Integrity — Came before Board to receive Variance for a repair shop working 8 -6. He never closes the shop and the trucks advertise they are open 24 hours a day. He never received permission to operate a towing business from this location. The solution would be for him to buy a lot somewhere where it is permitted to park cars. 2. Enforcement- He keeps expanding with no limitations. Who is going to enforce this? Past performance is that he cannot be trusted. 3. When Mr. Kiljikian purchased the property he got use of the Road and a Variance — which Mr. Caliendo thinks is illegal in a residential area. The area keeps changing to accommodate his business, which keeps growing and the neighbors are the ones suffering. Daniel Lucas asked if there had been any employee health issues, have any employee filed for disability. This is was answered — No, none. Maura Sheehan asked if there had been any DEP issues? Attorney Dailey answered no. October 12, 2006 Minutes 6 Ellen Bash of 3 S. Ridge Avenue came before the Board with a statement signed by 18 abutters in opposition of the petition. She read the statement to the Board and audience. Arlene Burns, 37 Cliffe Avenue, opposed the petition stating that trying to get in and out of Bow Street is very difficult due to the trucks that are constantly there. Daniel Lucas asked if there had been any employee health issues, have any employee filed for disability. This was answered — No, none. Maura Sheehan asked if there had been any DEP issues? Attorney Dailey answered no. Maura Sheehan also asked Attorney Dailey to define the difference between storing wrecked and abandoned vehicles. Attorney Dailey explained wrecked vehicles either move right out of the lot within a day or so or stay in the lot until the insurance company appraises them and the owner decides where they are to be fixed. An abandon vehicle sometimes stays in the lot for months until they go thru the legal process of disposing them. John McWeeney felt that Mal's was doing beyond the scope of the 1966 Variance. There was to be no exterior parking on the premises and they had certain hours. Attorney Dailey responded by saying that the 1973 Variance allowed parking in the back. John McWeeney noted that he did not see anything in either Variance that allowed change in use (for towing). In closing comments Attorney Dailey said this is a very unique lot and very limited as to what can be done with it. Mal's bought this property with the idea of parking there. Attorney Dailey asked the Board to consider the need the town has for Mal's services. The hearing was closed at 9:46 PM. Discussion: John McWeeney felt two things have happened since the business first started; the sub - division was built around the business and the business has grown and changed, as the business has demanded. The operation is out of control for the neighborhood and for this site. The town dump could be a temporary spot for storage for these vehicles. Something needs to be done about reducing the trucks and the noise from the neighborhood. Arthur Smith mentioned that the original Variances were just for car repair; now it is doing a lot more than was intended to be done there. October 12, 2006 Minutes 7 Maura Sheehan said to stop this business over night is not in the Town's best interest. She is not in mind to say stop operating today. There is a problem here and the solution is not at this location. She would feel okay with giving them a year to work on a solution of an alternate site. A year should be a reasonable amount of time to fix the solution. Daniel Lucas asked if the property on Lincoln Street could be considered an alternate site. He agreed that the neighborhood has grown up around Mal's and would support giving them a year to work on the solution with strict inspections of progress made in fixing the solution. Arthur Smith said he couldn't envision that this type of business is appropriate for where they are. But the town does benefit from their towing services. John McWeeney said there are other towing services in town. A year gives a reasonable time to review. This is beyond the scope of what the neighborhood has to deal with. The Board continued to discuss what changes to the variance would be expected in a one -year time. They need to address the following issues: • Stop the use of load speakers. • Reduce nose level of the trucks by not idling and turning radios off • The use of lights during the night. • Have an alternative site worked out within the year. • Address the conservation issues. • Submit to the Board a signed agreement that he has read and will abide by the conditions. • Have a requirement for reporting on the environment for where the wrecked cars will be kept and the leakage impact to the area. • Hours of operation for repair should be kept between Sam and 6:00 pm. • Plan for Fleet reduction of trucks • Leakage issues into the environment • A detailed parking plan for the year. • How the idling will be handled. • Also should be included is an enforcement reporting system. The majority of the Board felt that Mal's has ignored the town's interest in the property and they do not want to give him the opportunity to continue doing so. The Board requested a written plan from Attorney Dailey as to what will be done and when to be submitted at the next Board of Appeals meeting scheduled for October 26, 2006. October 12, 2006 Minutes 8 On a motion by John McWeeney and seconded by Nyles Barnert the Board voted 5 -0 to re -open to give Attorney Dailey time to respond with a written plan of action to address issues on behalf of Mal's. On a motion by Nyles Barnert and seconded by John McWeeney the Board voted 5 -0 to continue the hearing until October 26, 2006 at 7:30 PM. Submitted by Dianne Cornaro, BOA Clerk