The URL can be used to link to this page

Home My WebLink About2007-01-25-ZBA-min Minutes of the Lexington Zoning Board of Appeals Estabrook Hall, Cary Memorial Building January 25 2007 Board Members Present: Chairman — Arthur C. Smith, Nyles N. Barnert, John J. McWeeney, Judith J. Uhrig and Associate Martha Wood. Staff present: David George, Zoning Administrator and Dianne Cornaro, Administrative Clerk. Also attending this hearing was Town of Lexington Legal Council, Kevin Batt. Petition Address: 15 Belfrey Terrace The relief sought is for a Variance to allow a side yard set -back of 0.4 -feet instead of the 10 -foot required and a 28.5 -foot front set back instead of the 30 -feet set back required. The Chairman opened the hearing at 7:50 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 The Historic District Commission. Comments were received from the Health Department and the Zoning Administrator. Attorney Edmund Grant presented the petition for F. William Smith, Trustee of the Belfrey Realty Trust. Mr. Smith is looking to add a garage on the left side of the yard adjoining the house. The house is nonconforming on a nonconforming lot. The lot is severely sloped from front to back. The topographic measures indicate a 12.2 -foot change in grade. The rear yard is a heavily wooded slope where a stone retaining wall prevents soil slippage toward the house, which makes this area not feasible for a garage. The abutting property to the left side is the right rear parking lot of the Hancock Church which is striped for parking and used for a dumpster. The board questioned ability to walk around side of garage, how would maintenance be handled and asked about the original footprint of house and driveway. There were no questions from the audience. Dean Rutila representing the Hancock United Church of Christ spoke in favor of the petition stating Mr. Smith had met with them to discuss their concerns and had agreed to be responsible for all issues presented. A written list of conditions that were agreed to by Dean Rutila, as agent for Hancock Church, and F. William Smith was presented at the hearing. No one spoke in opposition of the petition. January 25, 2007 Minutes 2 The hearing was closed at 8:10 PM. Discussion: The Board discussed whether the conditions should become part of the decision. The Board decided that: (1) a copy of the conditions should be submitted to the Building Department for its information only and that (2) enforcement of the conditions shall be a civil issue between the interested parties. On a motion by Nyles Barnert and seconded by Martha Wood, the board voted 5 -0 to grant the two variances: (1) to allow a side yard set -back of 0.4 -feet instead of the 10 -foot required and (2) to allow a 28.5 -foot front set back instead of the 30 -feet set back required. January 25, 2007 Minutes 3 Approved Minutes Lexington Zoning Board of Appeals January 25, 2007 (Continued from December 14, 2006) Board Members Present: Chairman — Arthur C. Smith, Nyles N. Barnert, John J. McWeeney, Judith J. Uhrig and Associate Martha Wood. Staff present: David George, Zoning Administrator and Dianne Cornaro, Administrative Clerk. Also attending this hearing was Town of Lexington Legal Council, Kevin Batt. Petition Address: 27 Muzzey Street The relief sought is to amend a special permit to allow use as a corporate office. Before the hearing was continued Attorney DiMarco asked the Chairman to delay the hearing until after hearing 15 Belfry Terrace to allow time for an Attorney to arrive. The Board agreed. Prior to the original hearing, the petition and supporting data were reviewed by the Building Commissioner, Conservation Administrator, Town Engineer, Health Director, Zoning Administrator, Planning Board and Historic District Commission. Comments were received from the Planning Department and the Zoning Administrator. The Chairman started the continued hearing at 8:10 PM. The hearing was continued from December 14, 2006 for reasons including: • To allow the board to receive information on whether the parking in Lot A is allowed. • To receive a landscape and parking plan that has been reviewed by the Design Advisory Committee (DAC). • To receive proof of the lease arrangement between dentist tenant and the neighborhood business that is leasing parking to him. Attorney Roberto DiMarco presented the petition for Peter Feinmann, the potential buyer of the property. Attorney Pamela Brown was present for the current owners of the property, Seta and Mike Kalajian. The petitioner notified Board of Appeals staff that he was unable to reach the appropriate members of the DAC in order to set a meeting to review the parking and landscaping plan as requested by the Board. At the hearing Mr. DiMarco presented to the Board the floor plan for the Dentist office along with a letter from Brett W. Davis, DMD, P.C. stating the parking arrangement they have with Donald Weikert of 24 Muzzey Street. The board stated the parking lot legality is still an issue. Attorney DiMarco felt since the lot had been used as a parking lot for over ten -years and that would make it allowable under statue of limitation that protects January 25, 2007 Minutes 4 structures. Attorney DiMarco stated that case law outside of Massachusetts exists, which protects a parking lot. Attorney Batt clarified issues related to legal use of Lot A as a parking lot and stated that Lot A is not protected by a statute of limitations since a parking lot is not considered a structure and therefore not afforded the same protection Attorney Batt indicated that case law outside of Massachusetts was not relevant in settling the issue, and further indicated that he was not aware of any applicable Massachusetts case law that would support Attorney DiMarco's position. Attorney DiMarco indicated that the lot currently has catch basins. Attorneys agreed that the catch basins may possibly be considered a structure, however, the legality of Lot A as a parking lot would not be changed by the existence of catch basins alone. Attorney Batt requested Attorney DiMarco provide the case law citations that he mentioned regarding treatment of a driveway as a structure. The Board discussed whether the issue of use and parking could be taken separately. Attorney Batt advised the Board they could take the two questions before them separately. The Board could approve the special permit to modify the use of the building and then address the legality of the parking lot as a different matter. However, Attorney Batt recommended that the Board base its decision on the appropriate section of the by -law and make sufficient findings of fact. After further discussion, the hearing was continued until March 8, 2006 at 7:45 pm to allow the petitioner to go before the DAC to get the parking and landscape plan reviewed. David George requested that the petitioner seek a constructive grant waiver for at least one month so that the decision can be processed within its proper deadline. OTHER BUSINESS Zoning Administrator, David George, reported to the Board that legal counsel representing the owner of 7 -11 Massachusetts Avenue had not filed their variance with the Registrar of Deeds in Cambridge. Mr. George also indicated that he had spoken with legal counsel and understood that they were not comfortable with a condition of the variance, which sought fleet reduction and instead proposed the following condition in substitution of the decision filed with the town clerk on December 11, 2006.: "no tow trucks will be parked in the lot overnight. conditions the board indicated that it was agreeable to substitution of the one condition only through a modified variance. However, the Board discussed that there is a concern with the number of tow trucks and number of cars stored on the lot. On a motion by Nyles Barnert and seconded by Arthur Smith the Board voted individually (Martha Wood, yes; John McWeeney, yes; Arthur Smith, yes; Judith Uhrig, yes; and Nyles Barnert, yes) to go into Executive session and not return to discuss the impact of a recent finding regarding buildable lots and cases. Submitted by Dianne Cornaro, Clerk