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HomeMy WebLinkAbout2021-06-10-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom June 10, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Martha C. Wood Alternate Member: Edward McCarthy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 1853 Massachusetts Avenue The petitioner is requesting a modification of a Special Permit dated March 8, 2018 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-3.4 (Table 1, Permitted Uses and Development Standards) line J.1.02 of the Zoning Bylaw (Chapter 135 of the Code of Lexington) to modify the existing fast food use to include a walk up service window. The petitioner submitted the following information with the application: Nature and Justification, Plans, Plot Plan Waiver, and a previously granted Special Permit. 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, Engineering Department, Health Department and the Historical Commission. Presenter: Jason Denoncourt on behalf of Abbotts Frozen Custard The Hearing was opened at: 7:00 PM. Mr. Denoncourt presented the petition. He stated the Historical Commission recommended they have a three pane glass window to match what is existing. The pandemic changed a lot and people stand outside the store and wait to enter. A Board Member, Nyles N. Barnert, asked how the applicant was handling the health department questions (They have a walk up window in the Arlington store and they use a screen. They can use a fan as well near the window to blow away insects). A Board Member, Martha C. Wood, questioned the accessibility and the height of the window (The window is low, does not know the exact height). Mrs. Wood expressed her concern with problems with getting wheelchairs in that area (They have not fully thought it out but they could add a small counter that would extend out). A Board Member, Norman P. Cohen, stated his concern for sidewalks being blocked by long lines (They probably won't have long lines. There are two registers in the store to reduce lines because they would be adding a third spot for people. This will help to move people along. It is not an easy business environment). Chair, Ralph D. Clifford, questioned the practicality. There are two cross walks on that corner. It is a busy intersection. If the lines turn out to be longer how would that be handled (Lines forming are going to the front door and near the library or visitors center. The line issue is already happening. It lasts for a few minutes and then goes). Mr. Clifford stated a little planning would go a long way (They are open to more planning. A lot of places have this type of window. He questioned the relevancy of this having to go through this process). Mr. Clifford stated it is changing the nature of the business process. The previous special permit was granted on specific conditions according to that application (They are open to conditions and working with the Town. Just trying to compliment what is happening). Mr. Clifford stated they do not define the best way for a business to do it, the applicant's solution is going to be better for the business. He stated his concern for bicycle traffic and lack of planning (It is not a lack of planning. People self-regulate. The Lexington Center Committee asked a lot of the same questions but all agreed it was good for the center). Mr. Clifford stated they are not saying it is a bad idea. He has concerns about pedestrian/bike traffic and trash. The opening is so low, not sure if it is a practical plan. The plan submitted is what is approved. There are no dimensions on the plan. The plans are not fully developed. (The window lines up with counter that is there now). A Board member, Jeanne K. Krieger, stated her concern for the height. The middle window makes much more sense. Traffic will take care of itself or they could put a condition to review in two years to address any problems. Mr. Barnert agreed with Mrs. Krieger. Ms. Wood stated the concern about trash is something the Board of Health would regulate. Mr. Clifford stated his inclination is to request much more specific plans and request a continuance. The plans can be turned over to the building department. Ms. Wood stated her concern for the Board of appeals approving this and then another Board making changes. They will need to come back (Historic condition asked for the three panel window). An audience member, Jerold Michelson Chair of the Lexington Center Committee, stated the Center Committee spoke on this proposal and voted in favor of this. They had the same questions as the Board of Appeals and decided they were okay with what could go on. They talked about trash and the weekend clean up begins this coming weekend. If it works for the business to do the lower window then that is appropriate. There were no questions from the audience. There were no further comments from the audience. Mr. Denoncourt stated something of this nature would be good for the area. The Hearing was closed at 7:37 (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). Mr. Clifford suggested conditions to the Board. A condition that Abbotts operates according to the Health Department, Historic District approval and the window be ADA compliant. He stated a review period of one or two years. The Zoning Administrator stated the existing Special Permit expires on March 8, 2023. She asked if they would be modifying that date. Mr. Clifford stated it would make sense not to modify the date. The Board agreed on the review period and conditions. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to waive the requirement for a Certified Plot Plan (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a MODIFICATION OF A SPECIAL PERMIT DATED MARCH 8, 2018 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-3.4 (Table 1, Permitted Uses and Development Standards) line J.1.02 of the Zoning Bylaw (Chapter 135 of the Code of Lexington) to modify the existing fast food use to include a walk up service window. (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom June 10, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Martha C. Wood Alternate Member: Edward McCarthy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 130 Worthen Road The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.2 and 135-4.1.1 (Table 2, Schedule of Dimensional Controls) of the Zoning Bylaw (Chapter 135 of the Code of Lexington) to allow 3 stories instead of the required 2.5. The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Plans, elevations and gross floor area calculation. Also submitted was 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, Building Commissioner, Conservation Department, and Planning Department. Presenter: Lane Goldberg, attorney, Leonard Saltzman, contractor and Yi Yang, homeowner The Hearing was opened at: 7:43 PM. Mr. Goldberg presented the petition. He stated they plan to construct a vertical addition on the home. They are currently filling to appear before conservation commission. The proposal is 33.1 feet in height which is well under the required height. The basement is considered a story. Due to soil conditions and topography a Variance is required to allow reasonable use of the home. The site boarders Vine Brooke and falls within bordering wetlands. Any expansion, other than vertical, is not permitted. The hardship falls on the use of the land. The property owner is requesting a dimensional variance as opposed to a use variance. The topography and soil conditions create a bigger challenge for this lot in comparison to other lots in that zoning district. They can't expand the footprint. Using the property to build a more suitable living space. Wetlands and technical issue in code with the height of the property. The basement has an egresses issue and makes it illegal to make living space and dampness. Livable one story home. The economic use of that home is constrained. Elderly parents need to move in with them. Most homes in the neighborhood have gone through similar expansions. A Board Member, Jeanne K. Krieger, questioned the existing height (Mr. Goldberg stated 23.8 feet). She then questioned if the height is measured to peak of the roof or the chimney, what is the height of the chimney (Mr. Saltzman stated the existing height of the chimney is about 5 feet. The new one will be to code which is 3 feet above the peak). A Board Member, Martha C. Wood, questioned the basements egress problem (Mr. Goldberg stated according to the building code in order to have a bedroom they would need egress windows. There are no egress windows, they are too high and too small.) A Board Member, Nyles N. Barnert, stated the comment for the Conservation administrator stated it would a challenge to do something in the backyard. That is different from saying you can't do something. He stated his concern for making a vote before they go before the Conservation Commission (Mr. Goldberg stated they are happy to continue and go before the Conservation Commission. They haven't done a soil report. Doing something in the back would create an issue of rear setbacks and require a rear setback variance). Chair, Ralph D. Clifford, stated it appears a portion of the lot in the lower left corner is within setback but outside of wetland area which seems to be available for development. He asked if there has been any attempt to look at that in terms of other possibilities (Mr. Saltzman stated it could be considered but it would not give them the living space they need). Mr. Clifford stated it looks like there could be development done outside of the wetland area. If it hasn't been examined it mitigates against the hardship. No one is saying they can't have a second floor. A half story is limited in size as a matter of right. In terms of hardship it is comparing a 2.5 story which can be built by right with a 3 story that cannot be done without a variance. That mitigates the quantity of the hardship. He then stated the current square footage on the first floor is 1,872 and its 40%. He stated they could have a 750 square foot half story which is a difference of 400 square feet and again greatly mitigates the hardship. Mr. Clifford asked where the hardship is (Mr. Goldberg stated it is not being able to reasonably use the property in the manner that is allowed by the zoning requirements due to the circumstances with the topography. The zoning code cuts of the story issue. The basement is not a livable space, it is one story. The hardship is limiting the economic use of the property by constraining it). Mr. Clifford stated this is not being caused by the zoning. It is being caused because the building exists. They could rebuild a house that is in the same footprint. Xiamoma Lu, property owner, questioned if the Chair was suggesting they tear down the house and rebuild. They talked to a few builders and were told because they are so close to the water it would be limited and no way could they build a new house. Economically it is not possible. He then described the basement conditions. Mr. Clifford stated the question is whether or not they are going to allow them to build a bigger and taller house than the zoning bylaws allow. The Board needs to explore whether or not this proposal fits within the strict requirements in terms of dealing with Variances. Mr. Goldberg stated generally where only dimensional Variances are involved even a very minor hardship can justify it. A use Variance is a completely different discussion. There is precedence here. The dimensional Variance is a technicality in the Lexington code under height. Mr. Clifford stated one of the major issues the Town is facing is how to keep housing so that is available for all economic levels. One of the ways to do this is by insisting it be of a certain size, the 2.5 story rule. They have chosen as a Town to implement these other considerations in the Zoning ordinance. He questioned how this does not just add another multimillion house (Mr. Goldberg stated there are other houses doing the same thing. It has to be a detriment and it's not a detriment to the public good). Mr. Barnert asked what the date is for the Conservation Commission meeting (Mr. Goldberg stated they have not filed yet but probably will be early July). There were no questions or comments from the audience. Ms. Krieger stated the height is wrong for the site. It could be done with 2.5 stories and not have a variance. She would like to see something less massive. Mr. Clifford stated the applicant needs to go before the Conservation Commission first. He suggested a long continuance. Mr. Goldberg requested a continuance to September 9, 2021. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a continuance to September 9, 2021 Hearing (a role call was taken: Ralph D. Clifford — Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). Minutes of the Lexinqton Zoninq Board of Appeals Virtual, Via Zoom June 10, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Martha C. Wood Alternate Member: Edward McCarthy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Other Business: 1. 20 Waltham Street: MINOR MODIFICATION DETERMINATION regarding a request to change the hours of the fast food use. Edward McCarthy has excused himself as he is an abutter. Chair, Ralph D. Clifford, stated the Board needs to decide if this is a minor modification. The Board discuss and agreed this could be considered a minor modification. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to authorize the application to be considered a minor modification (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). Brandon Mager, General Contractor, stated they were before the Board of Appeals on April 8, 2021 and the Board agreed on a condition of hours of 9 am to 9pm. They are requesting for 10 am to 10 pm on weekdays and 10 am to 11 pm on weekends. The target demographic are generally younger and like to stay up later. They hold tournaments that start at 8 pm and those can go for hours. There are no hour restrictions on fast food use in a CB district. The restaurants in the area are not open past 9 pm to that extra hour or so will open up potential for customer. The Board discussed on changing the request from 11 pm to 10 pm and decided on 11 pm. The Board discussed and agreed on the concern for noise complaints late at night. The Board agreed that could be addressed at the renewal. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a Minor Modification Determination regarding a request to change the hours of the fast food use (a role call was taken:, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). 2. Legislature virtual hearing vote Mr. Clifford stated he did send out a letter to the local legislatures about continuing the meetings on Zoom and have not heard back. The next meeting is planned to be in person and the inclination is to mandate masks. 3. Minutes from the May 27, 2021 Hearing The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention of approving the meeting minutes from the May 27, 2021 Hearing (a role call was taken:, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert— Yes). On a motion made and seconded, the Board voted to adjourn.