Loading...
HomeMy WebLinkAbout2016-09-08-ZBA-min Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 8, 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: 9 Sutherland Road The petitioner submitted the following information with the application: Nature and Justification, Topographic Plan, Plot Plan, Elevations, and Floor Plans. Also received was a Request for Waiver of a Certified Plot Plan, dated August 11, 2016 and Two (2) letters of support from abutters. 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. The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-4.1.1, Table 2 (Schedule of Dimensional Controls) to allow a 10 ft right side yard setback instead of the required 20 ft side yard setback. The Chairwoman opened the hearing at 7:34 pm by reading the legal notices and described information received from the petitioner. The applicant, Mr. Kevin Kaminski, presented the application. They are looking to construct a deck on the side of their home. A Board Member, Mr. Edward D. McCarthy, asked for clarification on whether it is a deck or a porch (part is a deck and part is a covered porch). Mr. McCarthy asked if there is a dirt road to the site of the property (it’s called Camden Road right now and was previously known as Smith Road). Mr. McCarthy asked if parking is planned for under the porch (no, it’s not going to be a car port). A Board Member, Ms. Martha C. Wood, asked if Camden Road is an unaccepted street or a private way (it’s an unaccepted street but not sure of the definition of a private way). Ms. Wood asked who the owner of the right of way is (there are two (2) homes that require that street. He doesn’t own the street. It’s on the town map as an unaccepted road but it’s not owned by any residents). A Board Member, Mr. David G. Williams, asked if there is any intention to make it a livable space year round (no). Mr. Williams commented it should be made a car port (not an option right now). BOA Meeting September 8, 2016 2 There were no further questions from the Board. There were no comments from the audience. The Chairwoman closed the hearing at 7:40 pm. On a motion by Martha C. Wood and seconded by Ralph D. Clifford, the Board voted 5-0 to grant a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-4.1.1, Table 2 (Schedule of Dimensional Controls) to allow a 10 ft right side yard setback instead of the required 20 ft side yard setback and to waive the requirement of a certified plot plan. Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 08, 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: 12 Blossomcrest Rd. 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 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 to allow reconstruction of a non-conforming structure. The Chairwoman opened the hearing at 7:41 pm by reading the legal notices and described information received from the petitioner. The applicants, Mr. Piotr Galecki and Ms. Teli Lenng-Galecki, presented the application. They are proposing to demolish the existing garage and reconstruct with a slightly larger garage in the same spot. The old garage is a one-car and the new garage would be two-car. The new garage would be two (2) feet wider and nine (9) feet deeper. The old garage is right on the border of the property with the neighbor. The new garage would be in the same location. A Board Member, Mr. Ralph D. Clifford, asked what the reason is for the garage not being able to be moved closer to the house (there is no room available to move it closer to the house.) Mr. Clifford stated that there is a 14 ft gap between the house and the garage (it would require moving the driveway). A Board Member, Mr. David G. Williams, asked what the easement on the property is for (it’s a 3 ft easement but they don’t know what it’s for).Mr. Williams stated it would state on the deed what it’s for. Mr. Williams stated it would be difficult for them to maintain their garage as they would have to go onto their neighbor’s property to do so and there is room to move the garage away from the property line (if they move it closer to the house it would be visible through their window). The Chairwoman, Ms. Jeanne K. Krieger, asked if Mr. Williams is suggesting to move it closer to the house or further back. BOA Meeting September 8, 2016 4 A Board Member, Ms. Martha C. Wood, stated that if they put the garage on the property line, it will have to be fireproofed. Ms. Wood asked the applicant if the backyard fence is on the property line (yes). Ms. Wood stated that she is in opposition to the garage going on the property line when there is space to move it further back from the property line. The applicant, Ms. Lenng-Galecki, asked if the Board would approve their petition if they proposed to move it 2ft from the property line (Ms. Wood responded stated that the setback requirement is 15ft and they would have to fireproof it unless they bring it in 5ft from the property line). The Chairwoman, Ms. Krieger, asked how many trees would be cut down (1 with the current plan and 2 or 3 if they move it back). A Board Member, Mr. Clifford, stated that if they move it 15 ft from the property line, it would be by-right (There’s only 14 ft space between the house and if they moved it back and did the 15 ft setback, then it would be in the middle of the yard). A Board Member, Ms. Wood, asked if they had talked to their neighbor about the project (yes and they are agreeable and all they asked was that the fence be repaired). A Board Member, Ms. Wood, stated that she would like to see something from them in writing. A Board Member, Mr. Williams, asked the applicants if they would like to continue this hearing and come up with a better plan and provide written support from the neighbor. A Board Member Alternate, Mr. Nyles N. Barnert, stated that if they move it 3 or 4 ft from the property line, they wouldn’t have to cut down any trees. An audience member, Mr. Caleb Rogers of 16 Blossomcrest Rd, stated he is an abutter to the property. The previous owners of 12 Blossomcrest disputed the property line and the plot plan used with the mortgage. There has always been a dispute of where the property line is between their properties. They are aware of the easement and his understanding is that the easement is for the garage to be allowed to partially be on his property. The Chairwoman, Ms. Krieger, stated that they most likely aren’t going to get a majority vote and the Board would be comfortable with the garage being moved 5 ft from the property line. Ms. Krieger suggested that the applicants request a continuance. A Board Member, Ms. Wood stated that it looks like they are encroaching on the property at 16 Blossomcrest Road because of the easement. The Chairwoman, Ms. Krieger, asked Mr. Rogers for clarification on the location of the garage (the garage there is the same garage that was there in 1987 and is the garage cited in the easement). BOA Meeting September 8, 2016 5 The applicants agreed to a continuance to the October 13, 2016 meeting and completed and signed the appropriate paperwork. On a motion by Ralph D. Clifford and seconded by Martha C. Wood, the Board voted 5-0 to accept the Request for Continuance of the hearing until October 13, 2016. Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 8, 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: 19 Clelland Road The petitioner submitted the following information with the application: Nature and Justification, Topographic Plan, Plot Plan, Elevations and Floor Plans. Also received was a Zoning Determination for 32 Clelland Road, dated January 25, 2002; a Property Rights Plan dated March 5, 2004; a letter from Fred Lonardo, Building Commissioner, dated July 7, 2002; a letter in opposition, dated September 8, 2016; a document entitled, “Grandfathered Lots and Plan Protections”, dated November 30, 2009, prepared by Donald J. Schmidt. 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. The petitioner is requesting an ADMINISTRATIVE APPEAL OF THE BUILDING COMMISSIONER, DATED JULY 7, 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 8:05 pm by reading the legal notices and described information received from the petitioner. The applicants, Ms. Miljana Bovan and Mr. Rasko Ojdrovic, presented the petition. They are appealing the decision of the Building Commissioner. The decision imposes a hardship on them. They have developed Clelland Road. They based their plans around the Town of Lexington Zoning Determination. In 2001 when they bought the first house on Clelland Road, they were told since it’s a paper street, it’s not developed. They needed a zoning determination by the town to tell them what they can and cannot do. They did everything the Town asked them to do. The Zoning Determination is attached in their application. It states that the lots are grandfathered and there is no expiration date on the Zoning Determination. They see no basis for the denial of the building permit for 19 Clelland Road since nothing has changed since this zoning determination was written. The lot ownership is the same as it was in 2001. The Town had gone through the ownership history. The lots were subdivided in 1910 and the road was not built until the early 2000s because of the steep terrain and challenging topography. Mr. Ojdrovic read a portion of the letter from the BC. Mr. Ojdrovic has read Ch. 40A and is unable to find a sentence that would support this BOA Meeting September 8, 2016 7 decision. In 2009, the Department of Housing and Community Development for Massachusetts reviewed the grandfathered lots and planned protections. A copy was submitted of the “Grandfathered Lots and Plan Protections”, dated November 30, 2009, prepared by Donald J. Schmidt to support their argument. Mr. Ojdrovic read the highlighted sections which list case law that support his claim. They had to construct Clelland Road in order to obtain the Building Permit. One lot on Clelland Road was buildable and one wasn’t, so they merged the lot as they were asked to do by the town. There is plenty of evidence that supports their appeal that the lot they consider a grandfathered lot has protected setbacks. A Board Member, Mr. Ralph D. Clifford, stated that he is an attorney and there is a lot of case law that has addressed this issue, most of it at the Court of Appeals level. When the Court of Appeals renders a decision in the Zoning area, it becomes binding. There’s one case in particular that seems to make the point for this - the Timperio case (84 Mass Appellate Court 151) that was decided in 2013. Mr. Clifford read an excerpt from page 155 of the opinion, which states that under common law merger doctrine, when joining non-conforming lots come into ownership, they are treated as a single lot for zoning purposes. The lot they are referencing was merged for zoning purposes. In regards to the hardship argument, the court in the Timperio case reversed the argument when the Zoning Board of Appeals decided it was a grandfathered lot. The Zoning Determination they are presenting is wrong and the court tells us that we have to treat it as a single lot. The current Board is not bound by that and has to go by the current zoning requirements. The applicant, Mr. Ojdrovic, asked what a merged lot means and referenced #10 of his submitted document (Mr. Clifford stated that it’s a case of the Essex court and we have to follow the Appellate Court, not a single trial judge). Mr. Ojdrovic asked what a merged lot means (it’s a single lot). Mr. Ojdrovic asked if it’s a grandfathered lot (it is still a merged lot). Mr. Clifford stated that it’s a merged lot that is entitled to zoning protection. Mr. Ojdrovic asked if it’s a conforming lot (In terms of the frontage and other requirements, they are required to comply with the zoning requirements). A Board Member, Mr. David G. Williams, stated that they now have a legal non- conforming lot and the problem is that they think the setbacks are grandfathered but the setbacks were not grandfathered and they have to conform to the new zoning setbacks (he has read Ch. 40 and has not found a section that states this). Mr. Williams stated that he has never heard of it mentioning setbacks in Ch. 40A (Mr. Ojdrovic read Section 6 in Ch. 40 which references units of measurements). Mr. Williams stated it doesn’t mention setbacks (the reference of yard is the same as the setback). The Chairwoman, Ms. Jeanne K. Krieger, stated that the reference of yard doesn’t mean the setback and that she is under the impression that they are working with one merged lot. Mr. Lonardo, Building Commissioner, stated that he wanted to clarify the letter he wrote. He is not disputing the lot is buildable; the house they are proposing to put on the lot doesn’t conform to the required setbacks. If they came forward with a house that conformed, it would be buildable. BOA Meeting September 8, 2016 8 Mr. Ojdrovic read the 1925 zoning definition of a yard and stated the term yard is used as a distance between the lot line and the building. The Chairwoman, Ms. Jeanne K. Krieger, stated that the 1925 decision states that any of the grandfathered setbacks are lost with the merged lot. A Board Member, Mr. Edward D. McCarthy, stated that they need to just deny the appeal and move on to the request for the variances. An audience member, Karen Meyers of 14 Lisbeth Street, spoke. She stated that it’s true that the applicants created the road in order to build their home but they also developed it to build other homes that they have sold and benefited by. They profited from the sale of the homes on Clelland Road. An audience member, Hai Xue of 320 Massachusetts Avenue, spoke. She is an abutter to 36 Clelland Road. She wants to stop anymore building on Clelland Road as she claims the area is all sand and and stone and the Engineering Department told her it’s not a buildable area. Hai Xue claims erosion is causing the house on 36 Clelland Road to slide down towards her house. She claims the 36 Clelland Road foundation is higher than the supporting wall. She moved to 320 Massachusetts Avenue in 1993 and claims her house has been destroyed by the house on 36 Clelland Road sliding down. A drain system is needed and she had to hire an engineer. She claims there has been significant flooding with that property. Ms. Xue stated that the applicants are not good builders and the land on Clelland is not buildable. There were no further questions from the Board. There were no comments from the audience. The Chairwoman closed the hearing at 8:40 pm. On a motion by Ralph D. Clifford and seconded by Edward D. McCarthy, the Board voted 5-0 to deny the ADMINISTRATIVE APPEAL OF THE BUILDING COMMISSIONER, DATED JULY 7, 2016 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 8, 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: 19 Clelland Road The petitioner submitted the following information with the application: Nature and Justification, Topographic Plan, Plot Plan, Elevations and Floor Plans. Also received was a Zoning Determination for 32 Clelland Road, dated January 25, 2002; a letter from Fred Lonardo, Building Commissioner, dated July 7, 2002; letter in opposition, dated September 8, 2016; drawing comparing a shallow lot to a narrow lot, received September 9, 2016. 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, Planning Department and Zoning Administrator. The petitioner is requesting TWO (2) VARIANCES in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) section 135-4.4.1, Table 2 (Schedule of Dimensional Controls) to allow a front yard setback of 22 ft instead of the required 30 ft and a rear yard setback of 10 ft instead of the required 15 ft. The Chairwoman opened the hearing at 8:40 pm by reading the legal notices and described information received from the petitioner. Mr. Ojdrovic and Ms. Boven presented the application. There is shallow depth to the lot. There is a long frontage but because of the steep slope, the lot is shallow. Literal enforcement of the zoning regulations would result in a long and narrow house. The sketch shows the difference between the shallow lot and the narrow lot. The zoning bylaw recognizes this as a hardship and reduces the sideyard setback from 15 ft to 12 ft. If they were to enforce the 30 ft, it would only leave 35 ft of buildable space. They are asking for a 10 ft on the rear yard and a 22 ft set back on the front yard. All houses on Clelland Rd have reduced setbacks.With a 22 ft setback, the house would still be further away from the street than any other building on the street but not too far away to affect the closeness of the community. There is a letter of support that was received from the neighbor at 32 Clelland Rd. Ms. Boven stated that they have support from the neighbors at 36 and 17 Clelland Road and on Lisbeth Road but they were unable to come to the meeting. BOA Meeting September 8, 2016 10 A Board Member, Mr. Ralph D. Clifford, asked the applicants if the retaining wall was something they constructed (yes, it was by design and it was part of the Clelland Road project and the town has signed off on it). A Board Member, Mr. David G. Williams, stated that tax title lots make up the space between them and Liberty Heights Park. The conservation land deserves just as much setback as abutters do. Mr. Williams stated they could design a house that conforms to the setbacks required by the Town. A Board Member, Ms. Martha C. Wood, stated that there is a wood storage structure that has to be in the setback and can’t be that close to the property line (it will be moved). Ms. Wood asked how many trees would be cut down (most are locust trees that are falling apart and quite a few are dead. They are planning on keeping the Maple tree in front, the Maple on the right hand side of the building and some of the trees in the back. They are planning on planting additional trees as well). The Chairwoman, Ms. Jeanne K. Krieger, asked the applicants what the proposed height of the structure is (they submitted plans and it conforms to the regulations). Ms. Krieger asked what the gross floor area will be (The number was supplied in the building permit application). The Chairwoman, Ms. Krieger, read the comments from the Building Commissioner from the Interdepartmental Comments page. Ms. Krieger agreed with Mr. Williams concerns with the closeness of the conservation land and also agrees with the Building Commissioner. Mr. Ojdrovic read the letter of support from the abutter at 36 Clelland Road. An audience member, Ms. Hai “Vivian” Xue of 320 Massachusetts Avenue spoke in opposition to the applicant’s petition. There is extensive erosion on her property as a result of Clelland Road. The Zoning Administrator, Mr. David George, stated that there was action in 2012 when this party made a complaint to the Building Commissioner, who investigated the matter and it was decided that this is a civil matter. The Chairwoman, Ms. Krieger, stated that they do not have control over the drainage problems for Ms. Xue’s property. Ms. Krieger stated that the size of the house is in conformance with the current zoning bylaws. An audience member, Ms. Karen Meyers of 14 Lisbeth Street spoke in opposition to the petition. Her house is just before Lisbeth Street goes up and becomes Clelland Road. She read the letter addressed to the Board in opposition of the pettion that she had previously submitted and submitted a petition in opposition to the petition with five (5) signatures. The Chairwoman, Ms. Krieger, asked if Clelland Road is accepted (it cannot be accepted because Lisbeth Road is a private way). BOA Meeting September 8, 2016 11 A Board Member, Ms. Wood, asked the Zoning Administrator, Mr. George, what the legality is of building a driveway off of a hammerhead and who is responsible for keeping the hammerhead clear (the Planning Board called for a hammerhead in that location. He doesn’t know if they can put a driveway in the hammerhead and would have to consult with the Planning Board). A Board Member, Mr. Williams, asked if the town plows the road in the winter and where they put the snow (the Town plows it and put it at the end and sides). The hammerhead should be kept open for the fire department. Mr. Williams stated the applicants could design a house that took advantage of the conservation land and stayed within the setbacks. Mr. Ojdrovic referred to his handout showing the comparison between a shallow lot and narrow lot. If they complied with the setbacks, they would be left with a narrow building that could not be occupied. A Board Member, Mr. Clifford, stated that they are looking at the measurement on the plot plan. The Chairwoman, Ms. Krieger, stated that they should preserve the rear setback because of the conservation land. An audience member, Mr. Alexander Ojdrovic, spoke in support of the petition. The applicants are his parents. His parents have spent a lot of time working to protect the conservation land. He stated his parents risked everything to buy the properties on Clelland Road so he and his brother could afford to go to a University and other items that his parents weren’t afforded. A Board Member, Mr. Williams, stated that they are not taking personalities into consideration; the Board looks at the setbacks and how a building is put on the property. The Chairwoman, Ms. Krieger, suggested that the Board vote on the two (2) variances separately. There were no further questions from the Board. There were no comments from the audience. The Chairwoman closed the hearing at 9:26 pm. On a motion by Martha C. Wood and seconded by Ralph D. Clifford, the Board voted 2-3 to APPROVE the VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-4.4.1, Table 2 (Schedule of Dimensional Controls) to allow a front yard setback of 22 ft instead of the required 30 ft. A 4-1 vote was needed to pass, the motion was denied. On a motion by Martha C. Wood and seconded by Ralph D. Clifford, the Board voted 0-5 to APPROVE the VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-4.4.1, Table 2 (Schedule of Dimensional BOA Meeting September 8, 2016 12 Controls) to allow a rear yard setback of 10 ft instead of the required 15 ft. A 4-1 vote was needed to pass, the motion was denied. Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 8, 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: Discussion: ‘Payment in Lieu of Parking’ proposed policy The ‘Payment in Lieu of Parking’ proposed policy was further discussed by the Board. The Board members were agreeable with the Chairwoman’s comments on the matter but had questions on what the money would be used for and if there will be limits on how much money can be extracted. The Chairwoman, Ms. Krieger, stated that she will submit the Board’s comments to the Selectmen’s office, to be considered at their Monday meeting. Minutes of the Lexington Zoning Board of Appeals Selectmen’s Meeting Room September 8, 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: On a motion by Martha C. Wood and seconded by Ralph D. Clifford the Board voted 5- 0, to accept the meeting minutes of August 11, 2016.