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HomeMy WebLinkAbout2016-05-12-ZBA-min Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room May 12, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy, David G. Williams, Martha C. Wood, and Ralph D. Clifford Also present at the hearing was Alternate Nyles N. Barnert Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 31/55 Allen Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, and Photographs. Also received was a map of the property from the Massachusetts Historical Commission, dated February and March 1984; E- mail from Marie Tulin to Fred Lonardo, dated February 3, 2016; Letter from Attorney Edmund Grant, dated April 21, 2016; (4) Letters of support from abutters; Promotional pamphlet from Bina Farm Center. 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, Conservation Administrator and Zoning Administrator. APPEAL OF A BUILDING COMMISSIONER'S The petitioner is requesting an DECISION, DATED JANUARY 30, 2016 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. The Chairwoman opened the hearing at 7:34 pm by reading the legal notice and described information received from the petitioner. Ms. Marie Tulin presented the application. She is speaking on behalf of the neighbors and abutters around 31/55 Allen Street that presently houses Bina Farm, a charitable organization, educational. It’s afforded protections under chapter 40b3 under MGL C. 40 B-3 gives leeway not a free ride. The building inspector can interpret the law but cannot offer blanket exceptions from zoning bylaws. How she reads 40b3, it doesn’t automatically entitle educational or charitable organizations to complete, total relief from zoning bylaws by reading the language in the bylaw - they may be subject to reasonable regulations concerning the bulk height of structures, lot area setbacks, open space and parking and building requirements. No evidence the BC considered the impact to the neighborhood. When she spoke with him and asked if he had any idea how large the structure was, he replied it was big. He also said that he did not see the construction site but had sent someone else. It doesn’t demonstrate the kind of knowledge that should have gone with this decision. The abutters agree that it doesn’t meet zoning regulations; for example parking and is not in compliance with zoning regulations and it’s not entitled to receive relief from zoning regulations. They don’t Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 2 contend they aren’t entitled to some relief per the statute, however the Building Commissioner should not have let it go forward without any comment from the abutters. Ms. Tulin referenced the photos provided to the Board. There might have been some constructive input from the abutters. Bina Farm was responsive about signage but only after the abutters made a big deal about it. There should have been a hearing with the abutters present if someone was asking for an exemption from the zoning laws. Given the fact that Bina Farm needed a variance, there should have been a notice to abutters before a decision was made. The Chairman, Ms. Jeanne Kreiger asked for questions from the Board. A Board Member, Mr. Edward McCarthy stated that he commends Ms. Tulin for being involved and stepping forward on this controversial topic. The Chairman, Ms. Jeanne Krieger asked for comments from Mr. Edmund Grant, who is representing Bina Farm. Mr. Edmund Grant, the attorney representing Ms. Coryn Bina of Bina Farm, spoke. John Carroll, owner of Bina Farm consists of 23 acres and 2 parcels. Bina Farm installed an arena for therapeutic horse riding facility. Mr. Grant read his letter dated April 21, 2016 to the Board. Mr. Grant also stated that Ms. Tulin said that there should be a requirement that abutters and neighbors have an input on the building permit regulations but this is not the law. The Building Commissioner can sign a building permit without a hearing on that matter. Requiring a hearing is not part of the zoning bylaw or state law. The Building Commissioner was in his discretion to apply the zoning bylaw and also to apply reasonable standards and has the flexibility to do so under state law when you have an exempt use organization such as Bina Farms. The bulk of the structure is in scale with the 23 acres of the property, most of which is open space. There was a pre-existing horse riding space to begin with, which Bina Farms took over. It is provided in a statement Bina Farm continues to operate to help neighbors and is bringing public benefit to community.Mr. Grant believes the Building Commissioner’s and Zoning Administrator’s determination in granting this permit was appropriate and justified. The Zoning Administrator’s analysis is thorough, well documented and correct. The town has discretion to apply the bylaw with flexibility to avoid undue hardship to a 501(c) organization. The decision to issue the permit should be upheld. An audience member, Ms. Alexandra Swietzer of 7 Allen Street spoke. She wanted to stress that Ms. Tulin is speaking on behalf a large group of neighbors, abutters and non-abutters who have concerns about the wetland issues and zoning issues. They all share the same concerns about the due process. They are interested in a constructive dialog before decisions are made and not after the fact. She appreciates the sentiment that Bina Farm wants to work cooperatively but not after the structure is built. An audience member, Ms. Eleni Splagounias of 50 Allen Street spoke. She wants to point out there was no covered structure existing. There was an arena but nothing Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 3 else. She feels frustration but there was a meeting in the winter regarding the permit process for the area. On the same day she came down to look at the plans and the plans showed the structure to be in a completely different section of the land that turned out to be wetlands and without her knowing the plans were moved to the other side of the land. They didn’t have the opportunity to understand what was happening. She understands the importance of special education but she feels that if a neighborhood had had an opportunity to discuss the possibility of a different material, it would have helped. An audience member, Mr. Subi Dey of 36 Allen Street spoke. He feels like it’s oversized for the property, even though it’s built on a 23 acre piece of land. It’s unnatural material for the area. He has seen similar arenas built with a natural structure that go better with the surrounding environment. He is not sure there is a need for such a big structure. A Board Member, Mr. Ralph Clifford addressed Mr. Grant with questions. In regards to area of standing, he asked if Mr. Grant is in agreement that the abutters have the standing to challenge this matter (He hasn’t looked at that. There is only one person that applied for the application. Presumptively, since Ms. Tulin lives across the street, she would have standing. Since she is the only person that signed the application, he can’t speak for anyone else). Mr. Clifford stated that the statute in question indicates that the structure may be subject to reasonable regulation to the height of the structure. Mr. Clifford asked why that doesn’t include the 40ft limitation in the Lexington bylaws. (The 40ft zoning height regulation is in play. The ZA and BC have discretion to apply that as long as it doesn’t bring detrimental harm to a 501-c3 organization as they advance their purpose. They have the flexibility to apply that standard and not apply it literally. Strict compliance is not necessary. A 2.5 differential from the height is pretty de-minimus). Mr. Clifford stated that in section 3 of the statute, the town has discretion but he doesn’t see where the building department has discretion. Although a lot of educational and religious organizations are exempt completely, He doesn’t see in the regulation that a reasonable height regulation can be ignored. (Mr. Grant stated he doesn’t think the regulation was ignored – it was applied with flexibility). Mr. Clifford asked Mr. Grant if the Zoning Enforcement Officer doesn’t have to go by the regulations (The Zoning Administrator has to be mindful of the zoning regulations because under state law the town has certain things they can do but have to be mindful of 501c3 when you have use as of right as Bina Farm does. They wouldn’t have even needed this structure if it wasn’t for adverse weather. Coryn Bina is amenable to trying to work with neighbors. The Building Commissioner and Zoning Administrator looked at the building regulations and decided that the 42.5 ft didn’t have to be in compliance with the 40ft standard. They were mindful of the standard.) A Board Member, Mr. Edward McCarthy addressed Mr. Grant and asked what happened with the sign issue. (Coryn had applied for the zoning relief for signage and withdrew it without prejudice stating she would be happy to listen to what the neighbors wanted to do as far as signs go.There are currently 72 people in Lexington using the facility. The signs are evidence of her trying to work with the town.) Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 4 The applicant, Ms. Marie Tulin stated that she would like to reiterate they are not challenging the use or the effectiveness of the program, they are challenging the dimensional issues, such as parking and they feel that if they had had the opportunity to comment, Bina Farm could have avoided all the problems. Mr. Fred Lonardo, the Building Commissioner spoke. Mr. Lonardo stated that from a litigation standpoint that he and the Zoning Administrator looked at in issuing this permit, they have to be careful with educational uses. He had felt that the dimensional standards of the town would prohibit the use. If the dimensional requirements of the town prohibit the use, they can’t restrict that or they would be open the Town up to litigation. As proposed, Bina Farm had presented information to address those issues. The parking was specifically addressed on what they felt the need was under the bylaw. There was no specific number addressed in that. They addressed the height based on the structure they needed to have.If he had prohibited the size that would mean he would have prohibited the use. It comes under the Dover amendment. A Board Member, Mr. David Williams spoke. He asked Mr. Grant why the structure had to be 42ft high. (The engineer is specialized in this and they had to make it that way. Mr. Grant is not sure why but the difference is de-minimus.) No matter where you put it it’s out of place. He doesn’t know where else they would have put it without obstructing the view. (It had to be moved due to proximity to wetlands.). Mr. Williams stated that there shouldn’t be any parking on Allen Street because it’s too narrow (There are spaces on Bina Farm’s property). Mr. Fred Lonardo, the Building Commissioner spoke. As submitted, the plan for the structure was actually 40ft and a few inches. Because of the way the bylaw was written, it wasn’t until after the structure was built they realized it was 2.5ft. over the limit. It wasn’t until they did the site work that they realized that. They had had to change the grading to accommodate the structure. Mr. Grant stated that he wasn’t aware of that but it shows again Bina Farm was trying to comply with the issues. An audience member, Ms. Eleni Splagounias of 50 Allen Street spoke. She appreciates Mr. Williams referencing the parking. There is parking on Allen Street right now and was blocking her driveway. Need solution to avoid that. There are other therapeutic riding schools in the area that have wooden structures that could have been under 40ft. She wanted to know if it was a financial thing and it could have blended in better with landscape. Mr. Grant stated that Mr. Carroll would like to mention as a property owner he would like to add tree screening around the property to minimize the view of the structure. A Board Member, Ms. Jeanne Krieger stated that she recommends that the neighbors work with Bina Farm and Mr. Carroll. When Ms. Krieger walked by the site yesterday, there was one (1) vehicle parked on the side of the road. Two (2) weeks ago when she walked by there were five (5) or six (6) vehicles and two (2) of them were idling. Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 5 There is an idling law of 5 minutes. She wants them to keep in mind there is no parking allowed on Allen St. A Board Member, Mr. David Williams asked why there was parking on Allen Street. (Ms. Coryn Bina answered that she tells all clients and volunteers to park on property. While parking is being figured out, they are still having them park on property. Neighbors have had parties in the past that they have blamed on them. They have been telling clients to not park on Allen Street and they have enough parking. Ms. Coryn Bina spoke. She stated that when there is a child with a disability, it makes more sense to park close to the barn, not on the street. She can’t control every parent that comes but finds it odd that anyone would park on the street when they have parking on property. She doesn’t want to be blamed when there is parking on the street. The Chairman, Ms. Jeanne Krieger, stated that there is no question this is an intrusive structure. The Board is limited in their discretion due to the Dover amendment since this is for an educational use. The parking is sufficient. She is prepared to uphold the decision of the building commissioner. A Board Member, Mr. Ralph Clifford, stated that the Dover amendment is not unlimited and there are regulations the town can impose on the property. They can’t regulate religion or education. He doesn’t see that the regulations on height are unreasonable. He has problems with the building department avoiding the regulations contained within the zoning. He doesn’t think the statute requires it here. A Board Member, Mr. Edward McCarthy stated that there should be a condition or provision that there will be appropriate screening of types. Mr. McCarthy stated that it is not the most handsome of structures.He’s not concerned with the height but thinks there should be screening. In regards to the parking, there seems to be plenty of room A Board Member, Ms. Martha C. Wood stated that it’s not the Board’s decision to say there’s no parking on Allen Street and they can’t dictate the parking on Allen Street. Landscaping might help but it is a big structure and landscaping is not going to prevent this immense building from being seen. A Board Member, Ms. Jeanne Krieger stated that there are restrictions of because of the Dover amendment. There is a need for Bina Farm to provide a structure for all seasons use. Ms. Krieger stated that the Building Commissioner acted within his rights to grant this permit. A Board Member, Ms. Martha C. Wood stated that the Board can’t dictate what the structure is made of. The Chairman, Ms. Jeanne Krieger stated that the Board can’t dictate landscaping. They can only encourage it to be provided and for Bina Farm to work with the neighborhood. She supports the decision of the Building Commissioner Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 6 There were no additional questions from the Board. There were no additional questions from the audience. The Chairwoman closed the hearing at 8:21 pm. On a motion by Martha C. Wood and seconded by Edward D. McCarthy, the Board voted 4-1, in support of the issuance of the Building Permit dated January 30, 2016 to allow an indoor horse arena and accessory pariking. As a result, the Applicant’s appeal was not upheld. Submitted by: Jennifer Gingras, Administrative Clerk Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room May 12, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy, David G. Williams, Martha C. Wood, and Ralph D. Clifford Also present at the hearing was Alternate Nyles N. Barnert Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 10 Bowker Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, and Floor 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. SPECIAL PERMIT The petitioner is requesting a in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) sections 135-8.4.2 and 135-9.4 to allow modification to a non conforming structure. The Chairwoman opened the hearing at 8:24 pm by reading the legal notice and described information received from the petitioner. The applicant, Mr. James Manning presented the petition. They currently have a nonconforming porch that is falling apart. The width is currently 4.5 ft. The stairs come out to certain distance from property line. They wish to widen the porch from 4.5ft. to 14ft. to be able to sit on the porch and have more ease when entering their house. The stairs are currently too narrow and don’t conform to code. A Board Member, Mr. David Williams asked if the stairs will be turning to the left. (No they are going out straight. The depth of the stairs isn’t changing, only the width.) A Board Member, Mr. Edward McCarthy stated he deserves to have more room on the steps. A Board Member, Ms. Martha C. Wood stated it will improve the look of the house. There were no additional questions from the Board. There were no additional questions from the audience. The Chairwoman closed the hearing at 8:28 pm. Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 8 On a motion by Ralph D. Clifford and seconded by David G. Williams, the Board voted SPECIAL PERMIT 5-0 to grant the in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-8.4.2 and 135-9.4 to allow modification to a non conforming structure. Submitted by: Jennifer Gingras, Administrative Clerk Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room May 12, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy, David G. Williams, Martha C. Wood, and Ralph D. Clifford Also present at the hearing was Alternate Nyles N. Barnert Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 22-24 Sherman Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Elevations, and Floor 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 Building Commissioner, Engineering Department, Health Director, Historical Commission and Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) sections 135-8.4.2 and 135-9.4.2 to allow modification to a non conforming structure. The Chairwoman opened the hearing at 8:29 pm by reading the legal notice and described information received from the petitioner. Mr. Bill Erickson, the architect for the applicants, presented the petition. He is also a neighbor living at 31 Sherman. The house was built as a two-family. They had gone before the Board eight (8) years ago to do same thing on the other side of the two- family. They want to extend the nonconformity and build a mudroom and add a deck on the back. The structure will be 13 ft. tall. There will also be interior renovations on ndrd the 2 floor and they would buildout the 3 floor. A Board Member, Mr. Edward McCarthy asked if it’s still a two-family (Yes). A Board Member, Mr. Ralph Clifford asked if the setback was currently 18ft and would be changing to 12ft (Yes). An audience member, Mr. Damon Hinkle, 7 Sheridan St. He asked Mr. Erickson if he was moving closer to the Sheridan side of the street (Yes. The intent is to enclose and extend that 6 ft. It falls outside of driveway space. It would look symmetrical to outside of the house). Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 10 A Board Member, Mr. David Williams asked about the health department comments. (The Zoning Administrator answered that the Health Department doesn’t have a say in what is decided through the Zoning Board. The Health Department comments were read. The applicant will have to show that if there is impervious cover more than 25% they will have to show a system that captures the ground water (He identified it as about 2% and applicant will be able to comply). There were no additional questions from the Board. There were no additional questions from the audience. The Chairwoman closed the hearing at 8:36 pm. On a motion by Martha C. Wood and seconded by Edward D. McCarthy, the Board voted 4-1 (Ralph D. Clifford opposed) to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-8.4.2 and 135-9.4.2 to allow modification to a non conforming structure. Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 11 Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room May 12, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy, David G. Williams, Martha C. Wood, and Ralph D. Clifford Also present at the hearing was Alternate Nyles N. Barnert Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Address: 10 Fletcher Avenue The petitioner submitted the following information with the application: Nature and Justification, Topographic Plan, Plot Plan, and Floor 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 Building Commissioner and Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) section 135-8.4.2 and 135-9.4.2 to allow modification to a non conforming structure. The Chairwoman opened the hearing at 8:38 pm by reading the legal notices and described information received from the petitioner. Mr. Bill Erickson, the architect for the applicant, presented the application. He also lives across the street at 31 Sherman. They have a narrow, small front porch in disrepair and it needs to be replaced. They want to extend the deck. It would be 4ft tall with a handrail. A Board Member, Mr. David Williams asked if it was previously a two-family. (Yes, a developer bought it and cobbled it together and attached a garage). An audience member, Mr. Tom Mitchell of 25 Fletcher Ave spoke. He is in favor of the modification. There were no further questions from the audience. There were no further comments from the Board. The Chairwoman closed the hearing at 8:43 pm. Submitted by: Jennifer Gingras, Administrative Clerk BOA Meeting May 12, 2016 12 On a motion by Ralph D. Clifford and seconded by Edward D. McCarthy, the Board voted 5-0 to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-8.4.2 and 135-9.4.2 to allow modification to a non conforming structure. Submitted by: Jennifer Gingras, Administrative Clerk Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room May 12, 2016 Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy, David G. Williams, Martha C. Wood, and Ralph D. Clifford Also present at the hearing was Alternate Nyles N. Barnert Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning Administrator Other Business: 1. On a motion by Edward D. McCarthy and seconded by David G. Williams the Board voted 5-0, to accept the meeting minutes of April 28, 2016. Submitted by: Jennifer Gingras, Administrative Clerk