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HomeMy WebLinkAbout2024-05-09-HC-min Lexington Board of Appeals Lexington Historical Commission Meeting Minutes May 9, 2024 Meeting Conducted by Remote Participation Commissioners Present: Robert Rotberg, Chair, Marilyn Fenollosa, Wendall Kalsow, Susan Bennett, Diane Pursley. Commissioner Absent: Associate Commissioners Present: David Kelland. Associate Commissioner Absent: Board of Appeals Chair Ralph Clifford called the May 9, 2024 Zoning Board of Appeals meeting to order at 7:02 pm. AGENDA ITEM: Hosmer House – 43 Blossomcrest Road/ 790 Waltham Street (Record # ZBA- 24-16) APPLICANT: Lexington Historical Commission APPEAL OF THE BUILDING COMMISSIONER DETERMINATION DATED MARCH 7, 2024 section(s)9.2.2.3 to appeal a determination regarding a request for enforcement Susan Bennett and Robert Rotberg on behalf of the Lexington Historical Commission. Ms. Bennett began the presentation. She gave a review of the legal requirements governing the relocation of the Hosmer House and why the Historical Commission (HC) believes enforcement action is warranted and necessary. She stated these legal requirements have three (3) elements: the Zoning Bylaw, the original Request for Proposal (RFP) and the original Special Permit (SP). She gave an overview of zoning bylaw 135-6.2 and the HC’s involvement in the relocation of the Hosmer House. She stated their relocation approval was based on plans submitted, assurances from town officials, RFP, and the Zoning Bylaw. She gave a summary of the original SP and RFP and highlighted words and phrases the HC finds most important and relevant to their request. Spoke of the clapboard siding, windows, and trim needing to be retained based on these original documents/agreements. Emphasized legal commitment by owners. RFP stated its purpose is to ensure that exterior architecture, and historic and cultural features of the building would be retained. Ms. Bennett quoted the RFP stating “it is very important that prospective purchasers view the property prior to submitting a proposal...no exceptions for errors or omissions resulting from the proposers not being familiar with existing conditions” and highlighting that the applicant would be responsible for costs of relocation and that the Carrolls accepted these conditions. Photographs of the Hosmer House before the relocation, during the time when the second floor was removed, and after the move during the addition construction phase were shared. Ms. Bennett noted how Historical Commission 1 much of the original house was no longer in existence and stated the home was stripped of historical features that were crucial to preserving it, which was required through the SP and RFP. The HC believes that the town was supposed to benefit from this sale and having this historical home preserved but instead only the new owners benefitted being allowed to make a non-conforming lot buildable while neglecting certain requirements of the SP and RFP. Ms. Bennett stated that when the HC became aware of the Hosmer House demolition in February 2023, they alerted the Board of Appeals Chair, Town Manager, Building Commissioner, and Town Counsel. She quoted an email response from Town Counsel stating “it seems really incongruous, with what the Carrolls knew the deal was, for the Hosmer House to be destroyed.” And emphasized the HC’s agreement with this statement. Mr. Rotberg stated the Carrolls directly and purposefully neglected to honor the conditions and legal requirements of the SP and RFP. The HC believe the legal and binding contracts between the Town, Town boards, and the Carrolls needed to be abided by and that they were not and therefore the HC asks the BC to impose the maximum fine of $300/day. The HC does not want the house removed or demolished but insists that enforcement action in the form of fines be imposed. He stated that it is crucial for promises that were made to the town to be kept and requests that until all rights in this matter are addressed and answered the Certificate of Occupancy be withheld. Board Member, Norman P. Cohen questioned when in the process HC had jurisdiction over the home (during the relocation consideration and plan the HC was consulted. HC agreed to relocation specifically with the understanding that it would historically maintained and preserved.) He asked to confirm that the HC is no longer requesting the home be given back to the town or demolished as they had previously stated at the Board of Appeals hearing on January 11, 2024. (No, HC wants enforcement action) Ms. Bennett stated that under the Bylaw pertaining to relocation, the HC is consulted regarding the appropriateness of relocation and whether it will jeopardize the preservation of the historical character of the structure. The HC had a formal meeting and agreed upon the appropriateness of relocation based on the plans submitted to them. Ms. Bennett stated the HC is focusing specifically on the legal requirements that the homeowners have not abided by. She emphasized that the relocation was only to be valid under the RFP and the SP and their conditions, specifically the requirement of preserving the historical character. She stated that although the Building Commissioner mentioned that replication is not referred to in the bylaw of the SP. She reiterated that Town Counsel’s reaction mentioned earlier perfectly encapsulates the situation and emphasizes the need for enforcement action. She stated there had been no commentary during this hearing that the overarching conditions have been met nor that historic preservation had occurred because the home has been largely demolished. Mr. Rotberg stated that it is immaterial how the house looks or does not look. The agreement was regarding retaining the historical character and nature of the home and not about the appearance. He stated the home is essentially a new home. He emphasized his belief on how crucial it is for a town like Lexington to Historical Commission 2 ensure promises and agreements are honored and kept. He stated it is unnerving that the Building Commissioner believes the home complies. The one remedy for the situation instead of demolition the HC supports is fining the owners. Mark Connor, 16 Highland Avenue, is a former Historic District Commission Commissioner, who resigned following the decision to allow the relocation of the Hosmer House. He stated his support of the appeal and emphasized that it is the Town’s responsibility to ensure agreements are abided by. He outlined that the one thing promised with HDC agreeing to the relocation was that the home would be protected and preserved. HDC agreed to help solve the problem with the new police station. He believes the home does not live up to the promises made and does not represent the meaning of the Bylaw. He concluded that Lexington is a historic town and the town needs to help ensure historical structures are protected. Wendall Kalsow, 25 Summit Road, stated he is a preservation architect by trade. He stated his support for the appeal. He shared his belief that this is a case of basic governance and that since commitments were made, they must be enforced. Mr. Kalsow stated that replication is not preservation. David Kelland, 884 Massachusetts Avenue, a HC member stated his support for the appeal. He stated a rhetorical question asking if the HDC approved demolition of the home and answered “no”. He stated the home did not just consist of clapboard and windows and that it could never be reproduced due to the quality and type of materials used on the original house. Ms. Bennett stated in response to Mr. Dailey that the Historical Structure Report completed between 2010- 2013 clearly called out elements of the structure that were well worth preserving that were not preserved by the Carrolls. She clarified that degradation of historic homes over time is inevitable and minor repairs and replacements will take place but what the Carrolls did to the Hosmer House was basically demolition of a historic structure and therefore in violation of their SP and RFP. Hearing was closed at 7:56 PM (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Martha C. Wood – Yes, James A. Osten – Yes and Nyles N. Barnert – Yes) Mr. Clifford, stated the Board had three (3) matters to decide, the first being if the Historical Commission is an interested party in terms of this appeal. Board Member, Martha C. Wood, stated it is obvious that the HC is an interested party. There was consensus among the Board that this is correct. Next, Mr. Clifford questioned what authority the Board has if they find that they disagree with the determination of the Building Commissioners. He stated he disagrees with the Building Commissioner’s belief that they have no authority to make him take enforcement action. He proposed the Board should adopt the abuse of discretion review standard for this appeal. Mr. Cohen emphasized that this is the third time they have had a hearing regarding the Hosmer House. He highlighted that the prior decisions were not appealed even though interested parties had the chance to appeal and therefore these decisions are in effect. He stated that after ample discussion at the second hearing, it was decided to remove the two conditions that were tied to the Certificate of Occupancy. Historical Commission 3 Board Member, Nyles N. Barnert, asked to clarify the meaning of abuse of discretion. Mr. Clifford stated the abuse of discretion standard would mean that the determination of the Building Commissioner would stand unless it is found that no Building Commissioner could have made the same determination and that the determination was made in error. On the merits of the appeal, Mr. Clifford emphasized that throughout all hearings regarding the Hosmer House, the facts have not been laid out well and have been presented differently throughout the course and clarified that this does not affect the course of the decision making for this hearing. He provided an overview of the Zoning Bylaws 135-6.2.4 and 135-6.2.5(2). He emphasized that nowhere in the bylaw does it say a relocated home must be preserved in its original format. Mr. Clifford shared a condition from the original SP in which the word retained was utilized and highlighted how retained does not necessarily mean keeping all of the original aspects of the structure is required. He highlighted that the USS Constitution ship located in Boston only has approximately 10-15% of its original structure due to a plethora of repairs and replacements over time and yet people still view it as a historical structure and believe it to have been historically preserved. Mr. Clifford said that historic preservation is not interpreted as solely locking something in a constant state without any alterations. Mr. Osten stated it is important to note as Mr. Dailey mentioned that in order to obtain a Certificate of Occupancy, current building codes must be met. He stated that this regulation drives the capacity in which a structure can be preserved and dictates the options available for construction. Mr. Barnert stated that at the last hearing there was not clear evidence presented to prove that the original house would have qualified for a preservation restriction through the Massachusetts Historical Commission. He shared that this is the main reason that he voted to approve the SP modification. Ms. Wood stated that it is evident that there had been no attempt by the town in earlier years to preserve the home so much of the historical character had already been diminished or lost. Prior changes made it difficult for the Carrolls to preserve the home and they did not have many choices in her opinion because the preservation piece was already missing before they owned the home. Mr. Cohen highlighted the state of disrepair that the home was in for many years where it previously sat. He stated he does not believe the Board has jurisdiction to control the BC and force him to issue fines. Associate Board Member, Patricia Nelson, stated her belief that there was no abuse of discretion by the BC in making his determination and shared that she is leaning towards supporting his determination in question. No further discussion from Board of Appeals. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to determine the Historical Commission is an interested party for the purpose of this appeal (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James A. Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). Historical Commission 4 The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to confirm that a decision on the appeal of the Building Commissioner Determination will be decided through the abuse of discretion review standard. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, James A. Osten – Yes, Martha C. Wood – Yes and Nyles N. Barnert – Yes). The Board of Appeals voted zero (0) in favor, five (5) opposed, and zero (0) in abstention to grant an APPEAL OF THE BUILDING COMMISSIONER DETERMINATION DATED MARCH 7, 2024 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135.9.2.2(3) to appeal a determination of the Building Commissioner regarding a request for enforcement. Therefore, the appeal was denied and the determination was upheld. (a roll call vote was taken: Ralph D. Clifford– No, Norman P. Cohen– No, James A. Osten – No, Martha C. Wood – No and Nyles N. Barnert – No). AGENDA ITEM: Adjourn The Board of Appeals made a motion to adjourn at 8:22pm. Motion carried. All in favor. Historical Commission 5