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.