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HomeMy WebLinkAbout2023-04-27-ZBA-min Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom April 27, 2023 Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James Osten Alternate Member: Kathryn Roy Administrative Staff: Jim Kelly, Building Commissioner, Julie Krakauer Moore, Zoning Administrator, and Sharon Coffey, Administrative Clerk Address: 71 Woburn Street The petitioner is requesting a SPECIAL PERMIT section(s) 135-9.4 and 135-8.4.2 to allow modification to non-conforming structure. The petitioner submitted the following information with the application: Nature and Justification, Floor Plans, Plot Plan, Elevations and Gross Floor Area Calculations. Also submitted was the Historical Commission Decision. 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, the Planning Department, and the Engineering Department. Chair, Ralph D. Clifford, stated the applicant has submitted a continuance request to May 25, 2023. The Board agreed to continue to June 8, 2023 due to a lack of available Board Members. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a continuance to the June 8, 2023 Hearing (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom April 27, 2023 Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James Osten Alternate Member: Kathryn Roy Administrative Staff: Jim Kelly, Building Commissioner, Julie Krakauer Moore, Zoning Administrator, and Sharon Coffey, Administrative Clerk Address: 20 Waltham Street The petitioner is requesting TWO (2) SPECIAL PERMITS RENEWAL 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) and 135-5.1.4 and 135-5.1.14 to renewal of TWO (2) Special Permits to allow Fast-food service in the CB Zoning District and to allow 0 parking spaces instead of the required 22. The petitioner submitted the following information with the application: Nature and Justification, Floor Plans, and a 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 Planning Director, the Historic District Commission Clerk, Historical Commission, Economic Development, and the Zoning Administrator. Comments were received from the Zoning Administrator, Building Commissioner and the Planning Department. The Hearing was opened at 7:07 pm Presenter: Henry Jones on behalf of Omar’s World of Comics Mr. Jones presented the petition. He stated this is a renewal of special permit that is expiring. A Board Member, Nyles N. Barnert, asked if there have been any concerns about people hanging out there during late hours (Not a problem). Zoning Administrator, Julie Moore, stated she has received no complaints. There were no comments or questions from the audience. Building Commissioner, James Kelly, stated Omar’s has done a great job and is a fantastic place for gathering of young adults. There were no further questions from the Board. The Hearing was closed at 7:11 pm (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Chair, Ralph D. Clifford, suggested the Board keep all the standard conditions and condition for a five-year renewal. The Board agreed to the conditions. There were no further comments from the Board. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a waiver for a certified plot plan (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – 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 TWO (2) SPECIAL PERMITS RENEWAL 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) and 135-5.1.4 and 135-5.1.14 to renewal of TWO (2) Special Permits to allow Fast-food service in the CB Zoning District and to allow 0 parking spaces instead of the required 22 (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom April 27, 2023 Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James Osten Alternate Member: Kathryn Roy Administrative Staff: Jim Kelly, Building Commissioner, Julie Krakauer Moore and Sharon Coffey, Administrative Clerk Address: 0 Vine Street The petitioner is requesting an APPEAL OF THE ZONING ADMINISTRATOR DETERMINIATION DATED March 10, 2023 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.3 to regarding a 'batting cage' structure. The petitioner submitted the following information with the application: Nature and Justification, Floor Plans, and photographs. Also submitted was a Certified Plot Plan Waiver Request, Zoning Administrators Determination Letter, a Plot Plan for 116 Woburn St, a Plot Plan for 162 Vine St, an Abutter Letter, the Determination Requests, the Zoning Administrators Determinations, and Batting Cage Letter to 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, Building Commissioner, Conservation Administrator and the Planning Department. The Hearing was opened at 7:13 pm Presenter: Philip Posner on behalf of Rogers & Company, Inc Chair, Ralph D. Clifford, stated under the statute the Board is required to determine the party appealing the ruling has the standing to do so. They have to be able to demonstrate that they have been aggrieved by the circumstances in the appeal. If standing is found, the Board will go on and hear the merits of the appeal. If the Board determines there is no standing is found, they do not need to evaluate the merits of the appeal. Mr. Posner addressed standing. Mr. Posner stated his client believes the use of the object will cause a nuisance. The use will produce high levels of sound causing annoyance, upset, potential diminution in property values and property damage. He stated he believes there is a presumption of standing because his client is an abutter. A Board Member, Norman P. Cohen, confirmed the appeal was filed in a timely manner (yes). Zoning Administrator, Julie Moore, clarified the time deadline was met on the first determination, the second determination has not yet been appealed. There were no questions or comments from the audience on determining standing. There were no further questions or comments from the Board on determining standing. Mr. Posner summarized that there is a presumption of standing for abutters and if the issue is brought into contention, then the burden shifts to provide evidence. He stated he hasn’t seen anyone bring it into contention but notwithstanding that they presented evidence that the use of this object would cause a nuisance and potential property damage. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to find that there is standing (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Mr. Posner presented the appeal. He started by showing an image of the batting cage. He discussed a land taking. Mr. Posner stated the object is big, when covered with heavy net it can catch wind and cause property damage or personal injury. He discussed the securing of the batting cage to the ground. Chair, Ralph D. Clifford, stated that is not zoning, it is building code. Mr. Posner stated the definition of what is and what is not a structure is not exhausted in the Lexington Bylaw. It does not say a kid’s toy, deck or shed are structures. It is a matter of utilizing common sense. This object has placed an object within the Conservation Commissions easement. Mr. Posner stated his client is building a house and invested a substantial amount of money. A Board Member, James Osten, questioned the definition of a structure (The definition was read). A Board Member, Norman P. Cohen, questioned the location of the batting cage, he asked if it was part of Mr. Posner’s clients land (No, it is within about 6 feet of the boundary line). Mr. Clifford questioned who owns the title of that land (That is a matter of debate, he discussed a land taking). An audience member, Sean Kinneen of 136 Vine St and 0 Vine St, stated he installed a stand- alone batting cage, which is a temporary structure. It did have stakes but those were removed. The intention was so his son and his sons’ teammates could use the batting cage. He has no problem with putting the stakes back in if the neighbor feels it is safer. There were no further questions or comments from the audience. A Board Member, Nyles N. Barnert, questioned if the batting cage is on the easement (Mr. Kinneen stated it is not on that easement). The Zoning Administrator, Julie Moore, made a presentation. She stated she emailed the manufacturer and received a letter that stated it is not a permanent structure and the stakes are optional. Based on that letter and the fact that it is no longer attached to the ground, it is not a structure. She reviewed the history of her correspondences. Mr. Cohen questioned if a batting cage that long would require a fixed location to the ground. Ms. Moore stated they would consider a deck a structure. The batting cage can be moved, it does not require a fixed location on the ground. Mr. Clifford asked if a lawn chair would be a structure under our zoning bylaw. Ms. Moore responded no. There were no questions or comments from the audience. There were no further questions from the Board. Mr. Posner stated the chair versus this object is an excellent analytical tool. A chair does not need to be attached to the ground to be safe. The letter the Zoning Administrator received is from a sales representative not a civil engineer. If the batting cage blows over it may become a hazard which is why there is a recommendation that the object be fixed to the ground. If it is fixed to the ground then it is a structure. The Hearing was closed at 8:26 pm (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Mr. Clifford stated this is an appeal and the only thing they are determining is if this letter was appropriately written or not. Mr. Osten, stated the fixed location and attachment to the ground are not met in this case. Mr. Barnert stated the bylaw stated the use requires for it to be attached. The batting cage can be used without requiring that. Ms. Wood stated it doesn’t seem to need a fixed location, it is not a structure. Mr. Cohen stated the batting cage is 45 feet long and this is a difficult decision. He questioned if it could be considered a structure with the netting on it. Alternate Member, Kathryn Roy, stated there is another batting cage along the bike path and there has not been complaints about that. Mr. Clifford stated this is not a structure. A chair can be moved around. When something is readily moveable they don’t consider it a structure. The batting cage is moveable. There were no further comments from the Board. The Board of appeals voted zero (0) in favor, four (4) opposed, and one (1) in abstention to grant an APPEAL OF THE ZONING ADMINISTRATOR DETERMINIATION DATED March 10, 2023 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.3 to regarding a 'batting cage' structure. (a roll call vote was taken: Ralph D. Clifford– No, Norman P. Cohen– Abstained, James Osten – No, Martha C. Wood – No, and Nyles N. Barnert – No). Therefore, the appeal was denied and the determination was upheld. Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom April 27, 2023 Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James Osten Alternate Member: Kathryn Roy Administrative Staff: Jim Kelly, Building Commissioner, Julie Krakauer Moore and Sharon Coffey, Administrative Clerk Address: 16 Oxford Street The petitioner is requesting an APPEAL OF THE ZONING ADMINISTRATOR DETERMINATION DATED February 2, 2023 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.3 to regarding outdoor lighting. The petitioner submitted the following information with the application: Nature and Justification, and photographs. Also submitted was a letter stating the requested relief, Abutter Letters, A presentation, Complaint Progress Reports, Additional Letter from Applicant and Zoning Administrator’s Determination Letter. 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 Planning Department. The Hearing was opened at 8:37 pm Presenter: H Christian Floyd Chair, Ralph D. Clifford, stated under the statute the Board is required to determine the party appealing the ruling has the standing to do so. They have to be able to demonstrate that they have been aggrieved by the circumstances in the appeal. If standing is found, the Board will go on and hear the merits of the appeal. If the Board determines there is no standing is found, they do not need to evaluate the merits of the appeal. Mr. Floyd stated they are an abutter and they experience light trespass and glare. The glare causes annoyance and discomfort. They are impacted in a safety matter because they cross the bike path in their automobiles. Mr. Clifford asked if a significant amount of glare reaches their property (Yes). Mr. Clifford stated the range of location stretches from the Arlington line. He questioned if the glare is coming from the Arlington line (No). Mr. Clifford asked what amount of glare is shining on to the property and from where (It shines from multiple luminaires across the bike path, which would be a distance of about 200 yards). A Board Member, Norman P. Cohen, asked if the appeal was filed in a timely manner. The Zoning Administrator, Julie Moore, responded yes. Mr. Clifford questioned if it is blinding glare (It is distracting glare). There were no further questions or comments from the Board on determining standing. There were no questions or comments from the audience on determining standing. Ms. Moore stated an abutter to an abutter across a public way is an abutter. She addressed specifically which properties the Floyd’s are an abutter to an abutter and would have standing. She shared a map which showed a radius of the properties. The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to find that there is standing within the radius discussed (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Mr. Clifford stated the light issues the Board is interested in hearing about going forward are not all the issues, it is only light that originates from the particular parcels discussed. Norma Floyd of 16 Oxford Street stated the original complaint of 2021 addressed all of the lights from the Arlington line to Lexington Toyota. The determination does not match the original complaint. Mr. Clifford stated the Board is not in change of lighting in Lexington. The Board has to make the best decision it can to enforce the Zoning laws and it has to do so pursuant to the statues that authorize them to act. The statues of Massachusetts expressly require the Board to limit this to places where there is an aggrievement and the Board has determined by a vote that only source lights originating from that radius are within the jurisdiction. The presentation will need to be limited to those sources. Mr. Floyd presented the appeal. He discussed the bylaw provision that are violated in their neighborhood. He then reviewed the history of the complaint. He suggested a proposed remediation. He read the reasons to grant the requested relief. He shared photos of lights in Town. Mr. Clifford questioned when the lights were installed (I don’t know). Mr. Clifford asked if Mr. Floyd had done research to see if Special Permits had been issued for the lights (No). Mr. Clifford stated some may have Special Permits. An audience member, Elizabeth Higgins of 9 Cliffe Ave, stated there is a glare. If the lights are not the way they are supposed to be it would be nice to have them addressed. An audience member, Christine Zendeh of 42 Baker Ave, stated she is in support of Appeal. There were no further questions or comments from the audience. Ms. Moore made a presentation. She stated the definition of light trespass and shared a photo of light trespass. She also stated the definition of glare. She reviewed the timeline history. Ms. Moore addressed the properties in question and lighting. She then addressed the requested relief. Mr. Floyd stated it is not relevant to bring in dictionary definitions. Town Meeting has gone through the Town to define these terms in the bylaw, those are the definitions and are what should be used in assessing whether or not there is light trespass or glare. Mr. Floyd stated if you read 135-5.4.4.1 carefully, it states that if you see direct light above the horizontal in any direction it is a violation of the bylaw. The Hearing was closed at 9:40 pm (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Mr. Clifford quoted section 135-5.4.2. He stated there is nothing in the bylaw that applies to existing lighting fixtures and these lights have clearly been there for a while. Mr. Clifford suggested the Board uphold the Zoning determination. A Board Member, Nyles N. Barnert, stated he is not sure he agrees. The bylaw states the word including, it does not mean the ones that are not being done are not included. Mr. Clifford stated in that case it should say included but not limited to. Mr. Cohen stated the word glare is in the bylaw and he sees nothing wrong with the way the Zoning Administrator applied it. He stated he would vote to uphold the Zoning Administrators Determination. Mr. Barnert stated it is clear there is no trespass onto 16 Oxford Street. A Board Member, James Osten, stated a comment that stuck with him was that a measurement of lighting should be done by a professional. All of these conditions can be waived by Special Permit. It would be relevant when these buildings come up for renewal of permits that there be a note to look at the lighting. Mr. Clifford stated they already do that. A Board Member, Martha C. Wood, stated there is no light trespass, it may be bothersome but it has been there for over 50 years. Alternate Member, Kathryn Roy, stated she is sympathetic but doesn’t see the bylaw allows them to do anything. There were no further comments from the Board. The Board of appeals voted zero (0) in favor, five (5) opposed, and zero (0) in abstention to grant an APPEAL OF THE ZONING ADMINISTRATOR DETEMINATION DATED February 2, 2023 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.3 to regarding outdoor lighting (a roll call vote was taken: Ralph D. Clifford– No, Norman P. Cohen– No, James Osten – No, Martha C. Wood – No, and Nyles N. Barnert – No). Therefore, the appeal was denied and the determination was upheld. Minutes of the Lexington Zoning Board of Appeals Virtual, Via Zoom April 27, 2023 Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James Osten Alternate Member: Kathryn Roy Administrative Staff: Jim Kelly, Building Commissioner, Julie Krakauer Moore and Sharon Coffey, Administrative Clerk Other Business: 1. Minutes from the from the March 9, 2023 Hearing The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to approved the minutes from December 12, 2023 Hearing and January 12, 2023 Hearing (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). The Board voted to adjourn