HomeMy WebLinkAbout2016-07-14-ZBA-min
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 52 Lincoln Street
Applicant submitted a Request to Withdraw without Prejudice, dated June 9, 2016.
There were comments from the audience from Paul Parr of 95 Lincoln Street, Frances
Frankenburg of 135 Lincoln Street, and Michael Alexander of 66 Baskin Road, who
stated that they did not receive notice of the Selectmen’s Meeting on this matter and
are opposed to the project.
The applicant, Thomas Shiple of 18 Phinney Road stated that all abutters within 100ft
were notified of the Selectmen’s Meeting.
On a motion by William P. Kennedy and seconded by Edward D. McCarthy, the Board
Request for Withdrawal SPECIAL PERMIT
voted 5-0 to grant the for a in
accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections
135-4.3.4 and 135-9.4 to install four (4) light towers at Lincoln Park. The light towers
would be a maximum height of 75 ft. instead of the maximum allowed 40 ft.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 48 Bellflower Street
This is a continuation from the April 28, 2016 meeting.
Request for Continuance
Applicant submitted a to the August 11, 2016 Meeting, and
a letter to the Board Members describing the reason for the request, dated July 7,
2016.
Additional comments were received from the Zoning Administrator.
On a motion by David G. Williams and seconded by James A. Osten, the Board voted
5-0 to grant the Request for Continuance to August 11, 2016 meeting date and an
Extension of Time for the Constructive Grant Period to October 15, 2016 for a
VARIANCE AND SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter
135 of the Code of Lexington) sections 135-8.4.1, 135-9.2.2.2, 135-8.4.2 and 135-9.4
to allow a side yard setback of 2.3ft instead of the required 7.5ft and modification to a
non-conforming structure.
.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 130 Waltham Street
The petitioner submitted the following information with the application: Nature and
Justification, Plot Plan, Elevations, and Photographs.
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, Planning Director, and Zoning Administrator.
MODIFICATION OF EXISTING SPECIAL PERMIT,
The petitioner is requesting a
DATED MAY 9, 2012
in accordance with the Zoning By-Law (Chapter 135 of the Code
of Lexington) section 135-9.4 for placement of three (3) additional temporary tear drop
signs.
The Chairwoman opened the hearing at 7:45 pm by reading the legal notice and
described information received from the petitioner.
The applicant, Dennis Sax and Helene Davis presented the petition. They are
proposing to place three (3) tear drop flags along the driveway of the Lexington Arts
and Crafts Society Building, not along Waltham Street. The reason for this is to gain
more attention from the surrounding community. The signs will state “join our art
community” and will only be used during special events. Over the course of a year,
the signs will be used about 6-7 weeks.
The Chairwoman, Ms. Jeanne K. Krieger, asked what the comments were from the
Design Advisory Committee (DAC). (The DAC wanted additional information in
regards to the spacing of the flags).
Mr. Sax presented additional information to the Board regarding the size and color of
the flags.
The Zoning Administrator, Mr. David George, requested that the applicant mark where
the extension of the flag into the ground is on the drawing and the length. (the
applicant marked on the drawing which was then entered into the file.)
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 4
A Board Member, Mr. James A. Osten, asked the applicant if there is a condition
regarding the hours the flags could be shown (He is not aware of any condition).
The Chairwoman, Ms. Jeanne K. Krieger, stated that the flags would be taken in at
night.
A Board Member, Mr. James A. Osten asked if the flags would be displayed in
conjunction with the other banners (the use of the flags would be during the same time
as the sandwich board signs used).
The Chairwoman, Ms. Jeanne K. Krieger, read the previous decision on signage for
the Arts and Crafts Society Building that states the signs would be removed at the end
of each business day.
The Chairwoman closed the hearing at 7:52 pm.
On a motion by James A. Osten and seconded by Edward D. McCarthy, the Board
APPROVEMODIFICATION OF EXISTING SPECIAL PERMIT,
voted 5-0 to the
DATED MAY 9, 2012
in accordance with the Zoning By-Law (Chapter 135 of the Code
of Lexington) section 135-9.4 for placement of three (3) additional temporary tear drop
signs.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 291 Emerson Road
The petitioner submitted the following information with the application: Nature and
Justification, Plot Plan, Elevations, and Photographs.
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, Planning Director, and Zoning Administrator.
SPECIAL PERMIT
The petitioner is requesting a in accordance with the Zoning By-
Law (Chapter 135 of the Code of Lexington) Article 41, subsection 135-4.4.2 adopted
by Town Meeting on March 30, 2016 and section 135-9.4 to allow a building with gross
floor area of 12,531 sq. ft. instead of the maximum allowed gross floor area of 9,447
sq. ft.
The Chairwoman opened the hearing at 7:54 pm by reading the legal notice and
described information received from the petitioner.
The applicant, Mr. Paul Laffey presented the petition along with the architect, Mr. Colin
Smith. Mr. Smith stated that this special permit request is a special circumstance due
to the timing of the bylaw. Any alterations that would be made would not affect the
shell of the home as it is built. Mr. Smith went over the permit timeline that was
submitted to the Zoning Board of Appeals on July 13, 2016. In April 2015 the design
documents were completed. In October 2015, they met with the Building
Commissioner to review the project prior to submitting the construction documents. In
November 6, 2015, they met with the Planning Director, Mr. Aaron Henry, who
confirmed there were not any 2015 bylaw changes that would affect their design or
upcoming bylaw amendments that would affect their project. On November 6, 2015,
they applied for a foundation permit. On December 8, 2015, the foundation permit was
issued. On January 11, 2016, the foundation was completed. On January 13, 2016,
they were notified by the Building Commissioner that an at-risk building period was
approaching. On February 22, 2016, they applied for the building permit. On
February 29, 2016, the building permit was issued, which was after the at-risk period
began. On March 30, 2016, the FAR Bylaw was passed, which became retroactive to
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 6
January 14, 2016. The proposal and design of the project doesn’t maximize the
building footprint of the setbacks to the lot. The massing and height conforms to the
bylaws and a denial to the Special Permit will not require the exterior to be altered in
any way.
A Board Member, Mr. James A. Osten stated that he looked at the diagrams and
asked where the difference in the area calculations comes from (the difference has to
do with the covered porches which count towards the square footage calculations).
Mr. Osten asked about the unconditional space in the basement and if the applicant
would be able to lower the basement ceiling to less than 7ft. (Yes, if the basement
ceiling was less than 7ft it would not count towards the gross floor area). Mr. Osten
asked the applicant if the area in the attic counts towards the gross floor area. (Mr.
Smith is not aware of that but if they were to classify that as unclassifiable square
footage they would request a clarification of that at this meeting). Mr. Osten asked the
applicant if the 950sqft garage is conditioned space and if there is anything that could
be done so that it would not count towards the gross floor area (garages count in the
gross floor area calculations).
The Chairwoman, Ms. Jeanne K. Krieger asked the applicant what would be done to
reduce the gross floor area if the Special Permit was denied (they are asking the
Board to approve the plans as submitted but if denied, they would discuss lowering the
basement ceiling).
A Board Member, Mr. David G. Williams, asked the applicant what would be done with
the space if they lowered the basement ceiling and how would the Board know it
wouldn’t be changed in the future (The applicant would install framing and it would
give them more room for building systems. The Board could make a condition of the
Special Permit to establish a square footage limit). Mr. Williams asked the applicant if
there is a plan for the basement bathroom (they are making provisions for a future
bathroom). Mr. Williams expressed concern about the Board being assured that no
changes would be made in the future that go against what they decide to vote. Mr.
Williams asked why they should be treated differently than anyone else that had an
“at-risk” permit (they were not notified of any upcoming zoning changes when they first
applied for the foundation permit. They can make provisions to reduce the limit but the
home was under construction prior to the date the by-law came into effect. They had
originally planned on having a third floor living space but they now have to be
cautious). Mr. Williams asked what they can do to make sure it’s reduced. (The
special permit and any variances would be recorded in the deed).
A Board Member Alternate, Mr. Hank Manz stated that they would need a reduction of
3,100sqft. so besides lowering the basement ceiling, they would need to make other
changes.
A Board Member, Mr. Edward D. McCarthy asked why this project would not create a
precedent for other projects (this is a special circumstance due to the timing of the
project. The foundation permit was issued and completed in January before the first
notice of the zoning change came out. No one else would have this circumstance.
The retro-active date is causing it to be an issue).
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 7
A Board Member, Mr. McCarthy asked the applicant if it is correct that the applicant is
asking the Board to grant him a Special Permit which would make the gross floor area
30% greater than what is allowable by the bylaw (that is correct).
Mr. McCarthy stated that the FAR bylaw was a very public issue and he is
unsympathetic to a request of that extent.
A Board Member, Mr. William P. Kennedy asked the applicant what the date was for
when they received the building permit and the date they started the work (they
received the permit February 29, 2016 and they started the framing immediately after
that).
A Board Member, Mr. James A. Osten, stated that the initial notice from the Planning
Board was on January 14, 2016 and asked when they were first aware of the initial
notice (Colin Smith was notified on January 13, 2016 and was given an at risk date of
February 24, 2016).
The Chairwoman, Ms. Jeanne K. Krieger, proposed that the Board granting a special
permit with two conditions to make the basement ceiling less than 7 ft. and make the
attic an unconditioned/non-livable space to reduce the gross floor area but not the
mass of the structure.
An audience member, Mr. Matthew Daggett of 11 White Pine Lane, spoke in
opposition to the applicant’s petition stating that the applicant knew the permit was at
risk and had the opportunity at the time to change it to comply with Article 41.
An audience member, Mr. David Fairman of 5 Tucker Avenue spoke in opposition to
the applicant’s petition stating that this petition should not be an exception to the
reason that Article 41 was created.
An audience member, Ms. Ann Redmon of 31 Woodland Road spoke in opposition to
the petition and wanted to know why the at-risk timing of the building permit doesn’t fall
under the bylaw.
An audience member, Ms. Vicki Blier of 41 Shade Street, asked the Board why the
building permit was issued before the design was finished. (The Zoning Administrator,
Mr. David George, stated that the Building Commissioner may issue permits in part).
Ms. Blier asked the Board if that happens often (yes).
The applicant, Mr. Laffey, stated that the drawings were done in April 2015 and are
actually 700sqft less than what was originally proposed. They met with the Building
Commissioner at that time and as things progressed, they got caught in the middle
and then the bylaw was made retro-active.
Ms. Blier stated that she was concerned about the space in the basement that would
be used for building systems and that concrete should be added so they know if
wouldn’t be changed in the future.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 8
Mr. Colin Smith stated that they had reviewed the plans with the Building
Commissioner and discussed with him the option of framing the basement less than
7ft. They proceeded with the project knowing if would be at risk and with the
understanding of what the backup would be.
An audience member, Mr. Gerald Paul of 43 Highland Avenue spoke in opposition to
the petition. He is a Town Meeting member in Precinct 4. Mr. Paul asked the
applicant if there was a discussion about making the change to the plans earlier (Yes,
they were on the earlier meeting but were moved to the next meeting).
An audience member, Mr. Bob Creech of 2 Grimes Road spoke in opposition of the
petition. He researched the size of other homes in the area and this home is much
larger than the two largest homes in the area.
An audience member, Mr. Frank Sandy of 353 North Emerson Road and Town
Meeting Member in Precinct 6 spoke in opposition to the petition.
An audience member, Ms. Ricki Pappo of 16 Blossomcrest Road spoke in opposition
to the petition.
An audience member, Mr. Jonathan Suber of 56 Taft Avenue and Town Meeting
Member spoke in favor of the petition stating that he voted against the Gross Floor
Area Bylaw and that the bylaw applies to smaller lots such as in Precinct 1 and 2.
An audience member, Mr. Joel Adler of 22 Village Circle and Town Meeting Member in
Precinct 1 spoke in favor of the petition and stated that he voted against the Gross
Floor Area Bylaw in Town Meeting.
Mr. Richard Canale of 29 Shade Street and a Planning Board Member spoke in
opposition of the petition. The Planning Director submitted a letter to the Board on the
Planning Board’s behalf.
The Chairwoman, Ms. Jeanne K. Krieger, read the comments that were submitted
from the Planning Department. Ms. Krieger stated that there is a petition in favor of
the project with 19 signatures (Mr. Laffey stated that he also went around to other
properties but 2 people wouldn’t sign and 18 people were not home).
The applicant, Mr. Laffey stated that he had a meeting with the Planning Director,
Aaron Henry on November 5, 2015 to get a letter for his mortgage company and was
told that there were no Bylaws pending that would affect his project. Mr. Laffey did go
back and read the Planning Board minutes and did see there was discussion in
October 2015 about the bylaw but was never told anything by Mr. Henry. The plans
he showed the Building Commissioner at the time were in compliance. During the
time period of January to March it wasn’t clear on what the limitations of the bylaw
would be. Mr. Laffey stated that he feels like he’s being made an example of.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 9
An audience member, Mr. Ari Salonen of 287 Emerson Road, spoke in favor of the
petition and stated that the new home will improve the look of the neighborhood.
An audience member, Ms. Danielle Fleming of 16 Meriam Street spoke in favor of the
petition. She is the real estate agent representing Mr. Laffey stating that this was a
circumstance beyond Mr. Laffey’s control.
An audience member, Mr. Michael Alexander of 66 Baskin Road spoke in opposition
to the petition and stated that if the Board grants the Special Permit, it will show that
the Zoning Board of Appeals undermines Town Meeting.
An audience member, Mr. George Burnell of 4 Eaton Road and Town Meeting
Member, asked if the contractor was granted permission to build the house when they
received the foundation permit (The Chairwoman, Ms. Krieger responded that when
the foundation permit is granted, it’s not obvious as to how many floors are being
built).
Mr. Laffey stated that they had full construction documents in April of 2015.
A Board Member, Mr. William P. Kennedy, asked for clarification on when the
foundation permit was received (December 8, 2015. It was completed January 11,
2016). Mr. Kennedy asked the applicant when they were notified of the new bylaw
th
changes (January 13, 2 days after the foundation was completed. There was some
uncertainty on what the conditions of the bylaw would be). Mr. Kennedy asked why
they didn’t change their plans at that point (The Building Commissioner told them that
they could make provisions by lowering the basement).
An audience member, Ms. Andrea Fribush of 61 East Street and Town Meeting
Member in Precinct 6, stated that she believes it could improve the look of the
neighborhood but there are currently many large empty houses in the neighborhood.).
An audience member, Ms. Diane Pursley of 21 Turning Mill Road, asked how the
applicant’s petition meets the requirements of the bylaw (He believes it’s a special
provision to the bylaw).
An audience member, Mr. James Poage of 17 Westwood Road, spoke in opposition of
the petition.
An audience member, Ms. Fan Hu of 2 Mill Brook Road, spoke in opposition of the
petition.
The Zoning Administrator, Mr. David George stated that a Special Permit is a highly
discretionary permit and requested that the applicant discuss the findings of fact he
submitted so the Board can determine if a no vote is warranted.
Mr. Laffey read the Findings of Fact that were submitted on July 11, 2016.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 10
The Chairwoman, Ms. Jeanne K. Krieger, stated that the findings of fact justify the
Special Permit.
There was a discussion of conditions if they were to approve the special permit.
A Board Member, Mr. James A. Osten, stated that he is in agreement with the
Chairwoman.
A Board Member, Mr. William P. Kennedy, stated that he believes the result would be
the same if they denied the special permit.
Mr. Colin Smith asked about clarification of the bylaw and if the attic measurement
would be done from the bottom of the rafter. He is open to making a portion of the
attic unusable but needs clarification (The Zoning Administrator, Mr. David George,
stated that a proposal might be that a basement be a crawl space and upper level be a
crawl space making it excluded from the FAR).
A Board Member, Mr. David G. Williams, asked the applicant if reducing the number of
bays in the garage would solve gross floor area problem (No. A bay is only 300sqft. It
would help but it wouldn’t solve the problem).
Mr. Colin Smith stated that if they remove the basement from the square footage
calculation, they would be allowed to have 739sqft for the attic.
A Board Member, Mr. Williams asked how they would make the basement unusable
(they would do the same thing to make the attic unusable by lowering the ceiling and
attic framing and install mechanicals and duct runs. No matter what is built could be
changed but the Board can decide to put a condition that is written into the deed).
Mr. Williams asked what would prevent them from making changes in the future (the
bylaw is specific about height and this is about square footage so it’s not how you use
the space).
The Chairwoman, Ms. Jeanne K. Krieger, stated that the definition of the basement is
7 ft. in height.
The Board Alternate, Mr. Hank Manz stated granting a Special Permit with conditions
is inferior to denying the special permit, which would allow the architect and builder to
work out how they will solve the problem.
The Chairwoman, Ms. Jeanne K. Krieger, stated that they have justification for
granting the Special Permit with conditions.
A Board Member, Mr. James A. Osten, stated that he’s in favor of a Special Permit
with conditions because it provides certainty and any conditions or restrictions would
be part of the deed and enforced in the future.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 11
A Board Member, Mr. Edward D. McCarthy, stated that a Special Permit with
conditions gives protection so they have a permanent record for the future.
The Zoning Administrator, Mr. David George asked for clarification on what the Board
is deciding. If the Special Permit was denied, the Building Commissioner would have
a copy of the denial.
A Board Member, Mr. David G. Williams, stated that it is not the Board’s responsibility
to design the house for the applicant.
Mr. Colin Smith stated that they would like approval of the Special Permit to allow
additional square footage. A denial wouldn’t be written into the deed and specify how
the rafter would be measured.
The Zoning Administrator, Mr. George, stated that a crawl space would solve that
problem for the basement and for the attic and that the Board can grant less gross
floor area than what is asked for.
The Chairwoman, Ms. Jeanne K. Krieger, discussed conditions. The measurement
would be floor to ceiling and would need to have less than 7ft. in the basement.
A Board Member, Mr. David G. Williams asked what the definition of legally habitable
space is for the attic (1475 sqft over 5ft of headroom and if they take the basement
out, they would have they would have half of that to use if they classify the other half
as non-classifiable square footage)
Mr. Williams asked how that would be done in the attic (Mr. Smith responded that they
could install a truss or frame it and plaster it off but they would still have to provide
access for the fire department. They would have to modify the framing to work with
that).
Ms. Jeanne Krieger stated that they providing a certain amount of flexibility by having
conditions on the special permit.
An audience member, Mr. Matthew Daggett of 11 White Pine Lane, asked the Board
how this doesn’t derogate from the intent of the bylaw.
A Board Member, Mr. William P. Kennedy, stated that if he was a Town Meeting
Member, he would have voted for the bylaw that was passed. He doesn’t think the
builder purposely avoided this. Once you get a foundation in place, you are locked
into the size of the house and would have to go through serious expenses to cut it out.
They are faced with what they are trying to avoid and they can’t get around it.
An audience member, Ms. Deb Rourke of 20 Adams Street, asked why it is important
that something be in the deed (Ms. Krieger responded that having a condition in the
special permit it would allow for one more hurdle to go through should there be a
desire to modify it in the future).
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 12
The Chairwoman closed the hearing at 9:35 pm.
On a motion by James A. Osten and seconded by William P. Kennedy, the Board
voted 5-0 to APPROVE the SPECIAL PERMIT in accordance with the Zoning By-Law
(Chapter 135 of the Code of Lexington) Article 41, subsection 135-4.4.2 adopted by
Town Meeting on March 30, 2016 and section 135-9.4 to allow a building with gross
floor area of 12,531 sq. ft. instead of the maximum allowed gross floor area of 9,447
sq. ft. with the following condition:
The entire basement level will have a ceiling height of less than 7ft and 700sqft of the
attic will have a ceiling height of less than 7ft.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 1628 Massachusetts Avenue
The petitioner submitted the following information with the application: Nature and
Justification, Plot Plan, Elevations, and Photographs.
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, Planning Director, and Zoning Administrator.
The petitioner is requesting an ADMINISTRATIVE APPEAL OF THE ZONING
ADMINISTRATOR, DATED APRIL 22, 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 9:45 pm by reading the legal notice and
described information received from the petitioner.
The applicant, Mr. Daniel Rapperport, presented the petition. His wife and he
purchased 2-4 Wallis Court from Mr. Bill Dailey. They renovated the 2-family
residence. 1628 Massachusetts Avenue is next door to their property. There are
parking and dumpster issues. Mr. Rapperport referenced photographs of vehicles
parking in the back lot of 1628 Massachusetts Avenue. The back parking lot of 1628
Massachusetts Avenue can have up to 8 cars in it along with a dumpster. He believes
that the back parking lot was designated as an accessory parking lot, which is defined
in the bylaws. He is arguing that it’s being used as permanent parking, not intermittent
parking and has resulted in the parking at 6-8 Wallis Court becoming worse. There
was a roofing project done at 1628 Massachusetts Avenue in 2014 and they applied
gravel to a portion of the yard that used to be grass. Mr. Rapperport stated that in
doing this, they converted the temporary parking area to permanent parking, which
isn’t allowed without going through the proper procedure. The gravel has been
pushed onto their property by snow plows and plants have been killed that were used
for screening. Mr. Rapperport has made attempts to contact Mr. Bill Frizzell, the
owner of 1628 Massachusetts Avenue but has never received a call back. He also
states that the dumpster needs to be screened and asked why they need a dumpster.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 14
Ms. Katherine Rapperport commented that if the parking lot was designed properly, it
would be in compliance with the bylaws.
The Chairwoman, Ms. Jeanne K. Krieger, stated that the parking area has been non-
conforming for 35 years.
Mr. Ed Grant, the attorney for Mr. Bill Frizzell/Federal Investment Trust No. 1, owner of
1628 Massachusetts Avenue spoke. He stated that Mr. Rapperport’s appeal only
addresses the parking issue. Mr. Grant also wants it noted that Mr. Rapperport
previously requested enforcement against the 1 Wallis Court property owner and 3
Wallis Court property owner. The Zoning Administrator’s comments are supported by
the record of the property. The Frizzell family has owned the property since 1965.
The dumpster has been there since the Frizzell family purchased it. The off street
parking provision was not adopted until 1984 and per Section 135-8.0 Non-Conforming
Uses and Structures, the Zoning Bylaw shall not apply to structures, uses lawfully in
existence or begun prior to any bylaw amendment . Therefore the Zoning
Administrator’s denial is supported. The claim of Mr. Rapperport that the crushed
stone created an unlawful parking area is without merit. Mr. Frizzell’s family has never
had any complaints about parking in their 50 years of ownership. They request the
Zoning Administrator’s Denial to be upheld.
An audience member, Mr. Bill Dailey of 114 Marrett Road spoke. He has owned 1620
Massachusetts Avenue for 40 years and supports the Zoning Administrator’s decision
that parking is allowable. He believes the Rapperports have done a great job
renovating their property. He has sent Mr. Frizzell letters in the past about not wanting
parking on his property but has never received a response. He allows church
members and town meeting members to park there. This issue should have been
resolved outside of the Board of Appeals. The owner of Sonia’s Dressmaking has
received written permission to park there. He has also requested the owner of Cake to
move their dumpster because the truck uses his driveway to empty it. The parking
issue should be handled separately with Mr. Rapperport. Cake should have to
purchase parking stickers instead of just parking wherever they want. No other tenant
has had any issues. Mr. Dailey agrees the Zoning Administrator’s decision should be
upheld.
An audience member, Mr. Colin Smith commented. He is the architect for Dan and
Katherine Rapperport. He stated that he understands that the parking is a pre-existing
condition but the use seems to have escalated. He wasn’t previously aware of the
access issue for the abutting lot.
Mr. Ed Grant states that he agrees with Mr. Dailey in that this is not a matter for the
Board of Appeals. Mr. Frizzell is willing to work with the tenants to resolve the parking
issue.
Mr. Frizzell stated that in response to the parking, Sonia’s Dressmaking is parking on
his property. Cake customers and others park on Mr. Dailey’s back parking lot. Prior
to Mr. Rapperport’s ownership of 2-4 Wallis Ct., the previous tenants would use Mr.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 15
Dailey’s property to access Massachusetts Ave. His father owns the property but has
Parkinson’s disease so he has been handling matters for him. He states that has not
received any correspondence from Mr. Dailey.
The Chairwoman, Ms. Jeanne K. Krieger encouraged them to work together informally
on the parking issue.
A Board Member, Mr. David G. Williams, asked how the dumpsters are accessed.
Ms. Michelle Ryan, the owner of Cake spoke. She rents the dumpster, which is
mandatory because they have to have a certain size because of their business. Its
placement is so it can be accessed and it was there before Mr. Rapperport purchased
2-4 Wallis Ct. She stated that Mr. Dailey’s driveway is a shared driveway with Cake
having 1/3 of it. The driveway is the only way to access the dumpster.
Mr. Dailey stated that the driveway is not shared.The dumpster was placed there
when Cake arrived and there is no reason it can’t be accessed from Wallis Court.
The Chairwoman, Ms. Jeanne K. Krieger, stated that the dumpster access is not a
zoning issue and the parties need to work together to resolve the parking issue.
Mr. Rapperport stated that as soon as he walks out of the room, he has no assurance
there will be a response. He wants it to be clarified that it will be used as accessory
parking, not permanent parking.
A Board Member, Mr. David G. Williams, stated that there are more effective parking
methods and the parties should be able to come up with a solution.
The Zoning Administrator, Mr. David George, stated that it’s accessory parking
because of the use, not the materials. The space has been historically used for that
parking. The issues of the driveway and dumpster are not properly before the Board
and are issues between the neighbors.
Mr. Rapperport stated that the graveling of the parking area should have gone through
the proper process.
The Chairwoman, Ms. Jeanne K. Krieger, stated that the findings of fact show that the
accessory parking is being properly used and she will uphold the Zoning
Administrator’s decision. The other issues are beyond their jurisdiction.
A Board Member, Mr. Edward D. McCarthy asked what the issue before the Historic
District Commission (HDC) is in reference to (Mr. Grant stated it’s for the crushed
stone that was put down).
The Zoning Administrator, Mr. David George stated that paving does not need HDC
approval.
The Chairwoman closed the hearing at 10:25 pm.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 16
On a motion by Edward D. McCarthy and seconded by William P. Kennedy, the Board
voted 5-0 to DENY the ADMINISTRATIVE APPEAL OF THE ZONING
ADMINISTRATOR, DATED APRIL 22, 2016, in accordance with the Zoning By-Law
(Chapter 135 of the Code of Lexington) section 135-9.2.2.3.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Address: 128 Spring Street
The petitioner submitted the following information with the application: Nature and
Justification, Plot Plan, Elevations, and Photographs.
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, Planning Director, and Zoning Administrator.
The Chairwoman opened the meeting at 10:28 pm.
The petitioner, Mr. Mike Tammaro, Vice President of Related Beal, presented the
application. There has been an increase in demand for incubator space for smaller life
science and biotech companies. They would like to address that demand at 128
Spring Street location. They would like to convert under-utilized space on their
property to incubator lab space, which is open storage space right now. There will be
no increase in space.
Mr. Matthew Snell, an attorney with Nutter, McLennan and Fish, LLP in Boston, MA,
spoke on behalf of Related Beal. The Ledgemont 1 property pre-existed the zoning
that was approved through a series of special permits throughout the 1960s to early
1980s by the Board of Appeals. The existing Ledgemont 1 was incorporated into the
planned district in 2009 at Town Meeting, which set the zoning and dimensional
requirements for the property as well as Ledgemont 2 and the proposed Ledgemont 3.
They are repurposing space that was storage space. They are not cutting up space.
The layout of the site as previously approved shows the modification is minor to
repurpose the space and the minor revision which increases the net floor area is
substantially in conformance with the 2009 plan. All of the work is within the existing
footprint of the building. It still conforms to the dimensional requirements of the FAR
bylaw.
Mr. Tom White, the managing principal with Act 2 Architects, spoke on behalf of the
applicant. He presented an isometric diagram showing the modifications to the
existing facility over the past year where they have removed usable tenant space and
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 18
converted it to other spaces. They have looked at how they can repurpose existing
management office space on the ground floor of the existing parking garage space,
roughly 1/3 of which is currently finished space. There is a net change of 5,879 sqft.
They have removed 670ft in the Richard’s House and removed 1,733 sqft. From the
ground floor and added another 800 sqft for common area. They also analyzed the
parking capacity and based on the bylaw they need 351 spaces. It doesn’t add or
remove any parking. It’s a minor modification because it takes space in the garage
and converts it to a different use. The change is an improvement. It’s simply a
reallocation of the square footage on the complex.
Mr. John Farrington, who represents 95 Hayden LLC (owner of 2 Ledgemont Center
and 3 Ledgemont Center) spoke. This complex was re-zoned in 2009 and the entire
complex is CD-14. The 2 buildings in the complex were built at various points in time
and modifications would be a re-visit to the Board to modify the Special Permit. The
applicant is adding 5,879 new net floor area. In the 2009 CD-14 requirements, there is
a cap of 405,573 sqft of net floor area on the entire complex. The current 1
Ledgemont building has 125,841sqft of net floor area, 2 Ledgemont has 150,132 sqft
and the proposed Ledgemont 3 will have 129,600 sqft. If you increase the net floor
area on the Ledgemont 1 area, the number become 131,720sqft, which causes the
total number to exceed the maximum allowable floor area of CD-14 zoning
requirements. If you want to exceed the dimensional standards, you have to go back
to Town Meeting to do that. If the net floor area is exceeded, he wants to be certain
that the 5,879sqft doesn’t come out of the Ledgemont 2 or Ledgemont 3 building. He
questions whether this Board has authority to make the decision on this matter. He
read section 135-7.3.5.8 of the current zoning bylaw, which states the requirements.
The Town is very sensitive to gross floor area and net floor area.It is a struggle to
change the net floor area calculations and get it approved by Town Meeting. If they
are increasing the net floor area of Ledgemont 1, they are changing the dimensional
standards of the zoning bylaw.
An audience member, Mr. Richard Canale, of 29 Shade Street spoke. He is not
speaking on behalf of the Planning Board because he didn’t know this was an item on
the agenda. Most minor modifications they receive are approvable but things may not
always be minor even if they appear to be on the surface. He is in opposition of this
being a Minor Modification.
The Chairwoman, Ms. Jeanne K. Krieger, stated that it might not be a Minor
Modification but they may need to bring it back as a Special Permit.
A Board Member, Mr. David G. Williams, asked the applicant if why there is a
disagreement between the owners (Mr. Tammaro responded that there isn’t a
disagreement. He had the same question as Mr. Farrington about the increase in
FAR. When they brought the question to the Planning Department, the response was
that they considered the FAR to be the operational requirement. It would allow
415,000 sqft within the district. It’s minor because it’s already within the building and
not necessary to go before the BOA or Town Meeting).
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016 19
Mr. Farrington responded to Mr. Tammaro’s comments that they are working with
defined dimensional standards in the zoning districts. Their concern is losing net floor
area when they build their area. There will be a change in the net floor area of the
building and they want to avoid any issues when they apply for their building permit.
A Board Member, Mr. David G. Williams stated he believes this should not be ruled a
minor modification.
The Zoning Administrator, Mr. David George stated that for the record, the agenda
was circulated to the Planning Department and no comments were received from the
Planning Department.
The Chairwoman, Ms. Jeanne K. Krieger, agrees that this should not be ruled a minor
modification so that they can receive comments from the different departments and
boards.
The applicant asked if the Board had reviewed staff comments (The Zoning
Administrator, Mr. David George responded that he did provide comments but the
comments do not endorse this project, they are simply an application summary. There
was also notice of this application to abutter’s within 300ft. of this site).
The Chairwoman closed the meeting at 10:50 pm.
On a motion by William P. Kennedy and seconded by James A. Osten, the Board
voted 0-5 for a Minor Modification Determinationin accordance with 135-7.3.5.8 of CH
135 of the Code of the Town of Lexington (Zoning By-Law) to allow a minor
modification of the 1981 and related 1968 and 1969 Special Permits granted for 128
Spring Street and the Definitive Site Development and Use Plan established pursuant
to Article 49 of the 2009 Annual Town Meeting.
Submitted by: Jennifer Gingras, Administrative Clerk
BOA Meeting July 14, 2016
Minutes of the Lexington Zoning Board of Appeals
Selectmen’s Meeting Room
July 14, 2016
Board Members Present: Chairwoman, Jeanne K. Krieger, Edward D. McCarthy,
David G. Williams and Associate Members William P. Kennedy and James A. Osten
Also present at the hearing was Alternate Hank Manz
Administrative Staff: Jennifer Gingras, Administrative Clerk and David George, Zoning
Administrator
Other Business:
1. On a motion by James A. Osten and seconded by William P. Kennedy the
Board voted 5-0, to accept the meeting minutes of June 9, 2016.
Submitted by: Jennifer Gingras, Administrative Clerk