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HomeMy WebLinkAbout2016-09-22-ZBA-minMinutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room September 22, 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: 27 Muzzey Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Drawings, and Photographs. Also received was a Request for Waiver of a Certified Plot Plan, dated September 7, 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 Engineering Department and Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with sections 135- 5.2.8.3 and 135 -9.4 of the Zoning Bylaw (Chapter 135 of the Code of Lexington) to allow a free standing non - illuminated sign. The Chairwoman opened the hearing at 7:33 pm by reading the legal notices and described information received from the petitioner. The applicant, Mr. Donald and Sandra Kurson, presented the application. They would like to put a sign in front of 27 Muzzey Street. The Chairwoman, Ms. Jeanne K. Krieger, asked if they had been to the Design Advisory Committee (yes, they went 2 days ago). The Board hasn't received anything yet. A Board Member, Ms. Martha C. Wood, asked for clarification on how many signs there are currently on the property (there are two (2) signs and they will be changing the direction of their sign so that it's parallel to the other sign). Ms. Wood asked why there couldn't be a sign listing all tenants (the other tenant's sign is existing). A Board Member, Mr. David G. Williams, asked the applicants why they can't create one sign with both tenants listed (the sign has been there for 28 years and they only want to replace the sign). Mr. Williams stated that it would better suit the Town to have one sign listing all tenants. The applicant, Ms. Kurson, stated that the signs are far apart from each other. BOA Meeting September 22, 2016 2 The Chairwoman, Ms. Krieger, suggested the applicants request a continuance so they may go back to the tenant and redesign a single sign listing both tenants. A Board Member, Mr. Ralph D. Clifford, stated that he doesn't agree that there should be any commercial signs because it's a residential district and it dramatically expands the non - conforming use. Ms. Kurson asked for clarification on what the Board wants them to do. A Board Member, Mr. Williams, stated that the landlord should try to consolidate one directional sign for both tenants of the building. Mr. Kurson said they are only the sign company and will have to go back to the tenant. Ms. Kurson asked if the Board would approve a single sign if they come back. The Chairwoman, Ms. Krieger, responded that the Board would strongly consider a single sign listing both tenants. There were no further questions from the Board. There were no comments from the audience. The applicants agreed to a continuance to the November 10, 2016 meeting and completed and signed the appropriate paperwork. On a motion by Ralph D. Clifford and seconded by Edward D. McCarthy, the Board voted 5 -0 to accept the Request for Continuance of the hearing until November 10, 2016. Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room September 22, 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: 128 Spring Street The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Floor Plans, and Photographs. Also received was Net Floor Area Calculations, Special Permits from 1962, 1965, 1968, and 1986; a 1988 Subdivision Plan, Memorandum from John Farrington, dated September 1, 2016; Letter signed by John Farrington, Attorney for 95 Hayden, LLC and James Ward, Attorney for 128 Spring Street Lexington, LLC; existing and proposed floor plans, entitled "Exhibit B ", received September 22, 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, Economic Development, and Zoning Administrator. The petitioner is requesting an AMENDMENT TO SPECIAL PERMITS GRANTED IN 1962, 1965, 1968, 1969 AND 1986 and CHANGES OF USE OR SITE DEVELOPMENT PLANS developed in accordance with the Definitive Site Development and Use Plan established pursuant to Article 49 of the 2009 Annual Town Meeting. Such zoning relief has been requested in accordance with the Zoning By -Law (Chapter 135 of the Code of Lexington) sections 135 -9.4 and 135 - 7.3.5.8 to allow reallocation of certain space within the existing garage located on the Ledgemont 1 property. The Chairwoman opened the hearing at 7:46 pm by reading the legal notices and described information received from the petitioner. Mr. Jim Ward, Attorney for 128 Spring St, LLC, owned by Related Beal, presented the application. He represents 128 Spring St, LLC, owned by Related Beal. They are proposing to repurpose space in the existing garage. It was previously used to store lawn equipment but since they don't do their own landscaping anymore, the space is not utilized. The renovation wouldn't reduce the amount of parking spaces in the garage and its purpose is to create office and lab space. They had previously applied to the Board in July for a minor modification under the CD14 district, but the Board decided it wasn't a minor modification and they needed to come back for a full. They are here for an interpretation of the bylaw on what they believe is an ambiguity and BOA Meeting September 22, 2016 4 interpreting that the FAR percentage is the controlling percentage on the entire property, and to modify the Special Permit. Ms. Erin Orpik, General Manager of Related Beal spoke. She has been working on Ledgemont 1 since 2014. They have noticed the real estate industry in life science has a high demand. They want to help fill some of that demand and utilize their unused space. They are not trying to add a new footprint, they just want to utilize their space to fit that need. Mr. Tom White, the managing principal with Act 2 Architects, spoke. He can provide 3 main points of overview: describing how under the terms of the CD 14 district and original net floor square footage of Ledgemont 1 how they have done many projects recently that has reduced that square footage and how this project will add back some square footage; how they calculated parking; and the aesthetic difference for the property. Mr. White presented a diagram of Ledgemont 1. Mr. White explained the isometric drawing. They removed sections of space from Ledgemont 1 and then added a space of 7,854 sq ft. of tenant space and garage area and 393 sqft of common area. The new net square footage of 131,720 sqft. This is described in the narrative provided. Drawings A -2 and A -3 were presented to show the net space being added and difference between existing and proposed. Mr. White presented a parking table (Exhibit C) that was submitted. There are 351 spaces required and they currently have 417 parking spaces (331 in the garage and 86 on the surface). Parking spaces are not changing. The project doesn't change the parking requirements. Photograph of site showing existing and proposed and showing the aesthetic difference. Mr. Ward stated that the way the zoning bylaw is written has an ambiguity between the square footage and the FAR. The bylaw says that you try to interpret the ambiguity to try to effectuate the purpose of the zone. They read the FAR as 0.33. It's currently .321 and if approved it will be .326 which would leave an excess of 4,400 sqft extra for the entire property. The Chairwoman, Ms. Krieger, stated that the issue is there is ambiguity between the net floor area and the Floor Area Ratio (FAR) but there is also an issue between both tenants. Mr. John Farrington, Attorney for 95 Hayden LLC, Ledgemont 2 and 3 spoke. Mr. Farrington and Mr. Ward agree that there is an ambiguity and the gross FAR should be driven by the ratio 0.33 times the developable site area, which leaves the available net FAR of 10,000 more than the number in the dimensional standards of the zoning requirements. Ledgemont 2 and 3 does not have an issue with the space being used but want to make sure there is no negative impact to their buildings. Mr. Farrington and Mr. Ward signed the letter from September 21 was has the agreement between the parties (Ledgemont 1 and Ledgemont 2). The Chairwoman, Ms. Krieger, stated that the Board is being asked to agree that the prevailing dimension is the floor area ratio and that in so doing an increase of 10,300 to the Net Floor Area in the CD -14 zoning district is not significant and that 5,879 sqft will be used to build out the existing garage. BOA Meeting September 22, 2016 5 The Zoning Administrator, Mr. David George, stated he would like to clarify that the Board is considering that the net floor area should be 415,880 instead of the 405,573 and the increase is not a substantial change and is in compliance with the DSDUP and the relevant CD -14 rezoning document. The Chairwoman, Ms. Krieger, stated that the Board is approving that the significant dimension in determining the net floor area on CD -14 is 415, 880 sqft which is consistent with the 33% of developable land and the Board doesn't regard that as a substantial increase and that 5,879 of sqft will be used to build out the existing garage as laboratory space. There were no further questions from the Board. There were no comments from the audience. The Chairwoman closed the hearing at 8:09 pm. On a motion by Edward D. McCarthy and seconded by Ralph D. Clifford, the Board voted 5 -0 to grant an AMENDMENT TO SPECIAL PERMITS GRANTED IN 1962, 1965, 1968, 1969 AND 1986 and CHANGES OF USE OR SITE DEVELOPMENT PLANS developed in accordance with the Definitive Site Development and Use Plan established pursuant to Article 49 of the 2009 Annual Town Meeting. Such zoning relief has been requested in accordance with the Zoning By -Law (Chapter 135 of the Code of Lexington) sections 135 -9.4 and 135 - 7.3.5.8 to allow reallocation of certain space within the existing garage located on the Ledgemont 1 property. Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room September 22, 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: 430 Concord Avenue The petitioner submitted the following information with the application: Nature and Justification. Also received was a copy of the Special Permit Decision, dated September 11, 2014; Order of Preliminary Injunction and Memorandum of Lis Pendens for Superior Court Case No. 16- 643 -D, Artis Senior Living of Lexington, LLC v. John H. Sellars; Letter from Louis Vitiello, Esq., Attorney for John Sellars, dated 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 Conservation Administrator and Zoning Administrator. The petitioner is requesting an extension of a previously granted Special Permit, dated September 11, 2014. Such request is made in accordance with section 135 -9.4.6 of the Zoning Bylaw (CH 135 of the Code of the Town of Lexington). The 2014 special permit was granted in association with the rezoning of the property -430 Concord Avenue, to allow construction of a 72 -unit assisted living care facility. The Chairwoman opened the meeting at 8:11 pm by reading the legal notices and described information received from the petitioner. Mr. Ed Grant, Attorney for Jay Hicks, Senior Vice President of Artis Senior Living, LLC, presented the application. He is requesting an extension of the previously granted Special Permit. Artis had a purchase and sale agreement with the property owner, John Sellars. Artis also agreed as part of the rezoning proposal approved by Town Meeting, to restore wetlands on the property with an approximate cost of $500,000. The Special Permit was approved by the Board on September 11, 2014. Per Zoning bylaw section 135 - 9.4.6, the Special Permit has a 24 month expiration date, in this case October 20, 2016. Artis would like to request an extension of the Special Permit for one (1) year as set forth in his letter. Mr Vitiello, the attorney for Mr. Sellars, sent a letter stating that he would agree to a 6 month extension but Artis feels that a one (1) year extension would be more realistic. A Board Member, Mr. Ralph D. Clifford, asked Mr. Grant if he thinks the litigation will be finished in a year (there are good prospects for settlement. Artis would like to get this done). BOA Meeting September 22, 2016 7 A Board Member, Mr. David G. Williams, asked if there is someone here representing Mr. Sellars. An audience member, Ms. Holly Sellars, spoke. She is the daughter of Mr. John Sellars. The $500,000 restoration for wetlands was in their building plan and John Sellars had an approved restoration plan that was estimate at $70K and paid out at over $90K and it was considered 90 -95% complete upon meeting Artis. The $500K figure is not an exact responsibility of John Sellars. Ms. Krieger sated that the issue before the Board is if there is significant cause to approve an extension. A Board Member, Mr. Williams, asked Ms. Sellars if she is opposed to a one (1) year extension (this has been on hold since April 2013 and that's why they presented a 6 month extension. She can't speak to whether they can agree on a year). A Board Member, Mr. Edward D. McCarthy, stated that six (6) months is not realistic for the litigation to be resolved. (Ms. Sellars can't speak to that as their attorney is not present). A Board Member, Mr. Williams, asked Ms. Sellars if what will happen if they don't reach a resolution in a year (if they don't reach a resolution in 6 months then they have to walk away. With her father's health, it would be difficult to wait another year). A Board Member, Mr. Williams, stated that he is not sure who has precedence. Mr. Grant stated that Artis is the one that applied for and received the Special Permit. They have made a lot of progress in the ongoing litigation. Artis has the right to ask for an extension of the Special Permit. The court has issued a preliminary injunction and Lis Pendens that Sellars can't sell the property to anyone but Artis. In addition, it can only be used as a nursing facility per the zoning. A Board Member, Mr. Clifford, stated that they need to wait for the Court to reach their decision and there is nothing to decide at this time. There's no point for the Board to put a road block on the litigation. The Chairwoman, Ms. Krieger, stated that the matter before us is about an extension of a Special Permit. An audience member, Mr. Steven Heinrich of 11 Potter Pond and head of the Lex Civic Association and Town Meeting Member spoke in support of the petition. The Town has put a lot of effort into this property. They rezoned the property. Mr. Heinrich stated that he is concerned that because of the rezoning, any additional damage will be in violation of the new zoning. Mr. Heinrich stated that he encourages the Zoning Administrator and legal counsel to make sure that the current owner respects the new zoning regulations. Town Meeting approved the change and it is a benefit to the Town of Lexington. He doesn't want to see further damage done to the property during this extension. BOA Meeting September 22, 2016 8 Ms. Sellars stated that Mr. Sellars did everything that was required of him up until the closing date. They gave their tenants full notice. On May 14th they were told there was an issue and it wasn't Mr. Sellars' fault that it didn't close on May 15th The Chairwoman closed the meeting at 8:26 pm. There were no further questions from the Board. There were no further comments from the audience. On a motion by Martha C. Wood and seconded by Edward D. McCarthy, the Board voted 5 -0 to grant an extension of a previously granted Special Permit, dated September 11, 2014 in accordance with section 135 -9.4.6 of the Zoning Bylaw (CH 135 of the Code of the Town of Lexington). Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room September 22, 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 Ralph D. Clifford and seconded by Martha C. Wood the Board voted 5- 0, to accept the meeting minutes of September 8, 2016.