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HomeMy WebLinkAbout2024-07-25-ZBA-min-copyMeeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom July 25, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James A. Osten Alternate Member: Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 47 Wood Street (ZBA-24-22) The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-6.7.7 to allow an Accessory Structure Apartment. The petitioner submitted the following information with the application: Nature and Justification, Certified Plot Plan, Floor Plan, and Gross Floor Area Calculations. 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, Building Commissioner, Conservation Director, Engineering Department, Fire Department, and Planning Department. The Hearing was opened at 7:03 PM. Petitioner: Paul Umbro, 47 Wood St., Lexington, MA Paul Umbro presented the petition. Mr. Umbro began by describing the large lot that abuts Route 128. The ADU will not bother neighbors due to its siting. He emphasized the ADU will provide additional housing options in town and provides opportunity for the owner to downsize while renting the home or utilizing the ADU as a guest home, In-law apartment, or long-term rental. Mr. Umbro listened to advice from the Fire Department and is proposing a wider, 14 ft. driveway which is wider than originally proposed. Board Member, Norman P. Cohen. Questioned if the proposed accessory apartment is in an accessory structure. (yes, 1000 sq. ft. accessory structure apartment.) Board Chair, Ralph D, Clifford, questioned the purpose of adding an accessory apartment to the lot. (To help the town with increasing housing options and availability and to improve the property.) Board Member, Martha C. Wood, asked to clarify the location of the proposed apartment. (Separate structure located behind the current home with its own 14 ft. wide driveway.) Mr. Cohen questioned if the applicant had spoken with his abutters? (No, but they all received abutter notification cards regarding this application and hearing) Ms. Wood questioned what the purpose of the proposal and who the apartment would be serving. (There is not a concrete plan, applicant will reside in either the main dwelling or the accessory apartment.) Board Member, James Osten, questioned if trees will be removed and if there will be ample parking for the apartment. (Yes, the apartment will have its own driveway with plenty of room to turn around in it. Some trees will have to be removed but the lot is a heavily wooded 66,000 sq. ft. lot so there will still be plenty of trees.) Ms. Wood questioned if the Board should consider continuing the hearing until conservation approval was acquired and the applicant spoke with abutters. (Abutters were notified via mail and a condition can be added to the decision about conservation approval being required.) No further questions from Board. No further comments or questions from audience. Hearing was closed at 7:20 PM (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Mr. Clifford stated the Board will add a condition that the special permit is contingent on the applicant receiving approval from the Conservation Department/Commission. Mr. Cohen emphasized that the Accessory Structure Apartment cannot be utilized as a short- term rental. No further discussion from Board. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-6.7.7 to allow an Accessory Structure Apartment with conditions. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Meeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom July 25, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James A. Osten Alternate Member: Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 2 Field Road (ZBA-24-24) The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-8.4.2 to allow modification to a nonconforming structure. The petitioner submitted the following information with the application: Nature and Justification, Certified Plot Plan, Floor Plan, Applicant Special Permit Application Statement, Gross Floor Area Calculations, Site Plan, 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 Zoning Administrator, Historical Commission, Engineering Department, and Planning Department. The Hearing was opened at 7:23PM. Petitioner: Martha Pavlakis, 2 Field Road, Dylan James of Patriot Homes, 13 Woodcrest Avenue, Burlington, and Britta McCarthy of Britta Design, 7 Butler Avenue Martha Pavlakis presented the petition. She introduced the project designer, Britta McCarthy and Dylan James general contractor. Dylan James gave a verbal overview of the proposed detached garage and emphasized the pre-existing non-conforming nature of the property. He mentioned that Field Road, while it functions as the front yard, it feels more like the side yard and the siting of the housing emphasizes this. Mr. James clarified that existing fence will be removed when the garage is constructed. He stated that the siting of the garage allows for protection of the view out of the windows of the dwelling, minimizes the extent of paving, and allows for the protection of trees on the property. The proposal is not a detriment to neighbors or to site lines on Field Road. Board member, James Osten, asked to clarify the GFA and if the proposal conforms to GFA regulations. (Yes.) Norman P. Cohen, questioned the siting of the garage and asked to clarify how it would be blocking the views if it were pushed back inside the setback. (The views from inside the home would be blocked if the garage were pushed back. The natural setting and the view of the plantings outside is part of what makes the home so special and the homeowner does not want to lose that view. Much of the front yard space would also be lost if the garage were pushed back.) Zoning Administrator, Olivia Lawler, shared a photograph of the home and view of the front yard. Ms. Pavlakis confirmed the carport will be removed if/when the garage is constructed. No further questions from Board. No comments or questions from audience Ms. Pavlakis highlighted that she spoke with multiple abutters and has the support from 3 that she spoke with whom had no verbal objections to the proposal. Hearing was closed at 7:35 PM. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). No further discussion from Board. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4 and 135-8.4.2 to allow modification to a nonconforming structure. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Meeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom July 25, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James A. Osten Alternate Member: Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 8 Mason Street (ZBA-24-21) The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.2 and 15-4.1.1 Table 2 to allow a side yard setback to be less than otherwise allowed. The petitioner submitted the following information with the application: Nature and Justification, Certified Plot Plan, Topographic Map, Floor Plan, Elevations, Gross Floor Area Calculations, Historical Commission Submission Packet, Historical Commission Decision Letter (approval), and Abutter Support Letters. 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, Building Commissioner, Conservation Director, and Historical Commission. The Hearing was opened at 7:36 PM. Petitioner: Dan Hisel, Hisel Flynn Architects, Massachusetts Avenue, 52 Peacock Farm Road Lexington, MA Dan Hisel presented the petition on behalf of Suzanne and Zachary Matus. He provided an overview of the historical nature of the home and the neighborhood. The proposed addition was described in detail. The site plan and topographic map were shown along with photographs of the existing home. Mr. Hisel stated the lot is irregularly shaped and also is in Conservation Commission jurisdiction due to being within the wetland buffer zone. He stated an Administrative review has already been submitted to the Conservation Department. An image was shown depicting that while the frontage of the lot conforms, the lot cannot fit the lot regularity circle as required by zoning for lots in Lexington. Mr. Hisel emphasized the walls of the proposed addition are conforming but the roof overhangs which add to the historical character of the home will project into the setbacks. Mr. Hisel clarified the financial hardship caused by lot irregularity, a non-conforming lot, and conservation land that is not experienced by other homes in the neighborhood. The topography in the front also limits options for additions and alterations and creates a hardship. He stated a literal enforcement of the Zoning Bylaw would impose a hardship on this property because literal enforcement makes the home stuck in standards of the 1950s. The property is in an underdeveloped state, which poses a financial hardship for the current and any future owners, when compared to other properties in the neighborhood. Mr. Hisel stated the proposal was created to ensure the addition would be in keeping with the historical and architectural character of the home and neighborhood while also complying with the zoning regulations to the maximum extent possible. He claimed there will be no detriment to the public good with this addition and o impact to traffic or noise. Granting this variance would not nullify the intent and purpose of the Zoning Bylaw. He highlighted letters of support received from two abutters and the approval and endorsement of the proposal from the Historical Commission. Board Member, Nyles N. Barnert, questioned if the applicant was aware of the Historic Preservation Bylaw which may allow the Board to grant a special permit to alter required setbacks for the sake of historic preservation. (No.) Board Member, Martha C. Wood, questioned if trees would be affected and/or removed with this proposal. (Yes, 3 trees total. The Landscape Architect used by the Peacock Farm neighborhood has made a visit to the home to review and approve the removal of trees. The homeowners will either replace the trees or contribute to the tree fund if necessary.) Board Chair, Ralph. D. Clifford, questioned the financial hardship and if the statements came from fact or assumption. (Assumption and familiarity with investments on other properties in the neighborhood and their home values. A real estate agent provided feedback as well that provided the same analysis.) No further questions from Board. No comments or questions from audience Mr. Barnert questioned if the Board could grant a special permit during this hearing for a special permit under 6.2. (No, it has to be advertised.) Board member, Norman P. Cohen, questioned if neighbor supports are direct abutters. (Yes, both supporters are direct abutters.) Mr. Clifford stated he is against the variance because the hardship is not sufficient and that they cannot grant the variance based on the historical justification of the proposal. Mr. Cohen emphasized the support from the neighbors and a good presentation but stated it does not seem the request meets the criteria for the Board to issue a variance. A special Permit under 6.2 seems like a better option. Mr. Clifford stated the variance request would not be approved as it currently stands. Mr. Hisel requested a continuance until September 12, 2024, emphasizing his desire to attempt to request a special permit instead of a variance under 135-6. No further discussion from Board. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to continue the hearing until the September 12, 2024 meeting. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Meeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom July 25, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James A. Osten Alternate Member: Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 0 Short Street (ZBA-24-23) The petitioner is requesting an APPEAL OF THE ZONING ADMINISTRATOR DETERMINATION DATED MAY 16, 2024 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3 to appeal determination of the Zoning Administrator regarding a determination that the Property is not a grandfathered lot. The petitioner submitted the following information with the application: Nature and Justification, Zoning Administrator Determination Dated May 16, 2024, Title Reports, Appeal Narrative Dated June 18, 2024, Certified Plot Plan Waiver Request, Abutter Opposition Letters, Abutter Opposition Signature, Opposition Letter from Abutter Legal Representation, Letter to ZBA From Applicant Dated July 25, 2024, OpenGov Activity Log. 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 Director, Engineering Department, and Planning Department. The Hearing was opened at 8:16 PM. Petitioner: Fredrick Gilgun, Nicholson, Streter, and Gilgun Board Chair, Ralph D. Clifford, stated the Board must first consider the timeliness of the submitted appeal. Fredrick Gilgun presented the petition on behalf of the Estate of Dennis Carroll. Mr. Gilgun stated the application is for a request for administrative review rather than an appeal of a determination. Due to it not being an appeal, he believes the application is not untimely because Chapter 40A of MGL Section 15 does not apply. The OpenGov Portal filing procedure was mentioned and Mr. Gilgun stated his submission was signed and acknowledgement statement accepted on June 13, 2024, within the 30-day appeal period. He believes the time of payment is a non-issue and should not constitute the timeliness of filing. He emphasized MGL 40A states a submission is complete when notice of intent is giving and grounds for appeal are provided. He stated these two things were achieved within the 30-day period. He requested the Board provide him the opportunity to withdrawn his application if necessary before any votes are made. A new determination request has already been submitted to the Building/Zoning Department. Zoning administrator, Olivia Lawler, shared an image of the OpenGov Activity Log for the application highlighting submission date of the application. Board Chair, Ralph D. Clifford, read Chapter 138 Section 7 of the Code of Lexington regarding submission. He highlighted all requests for appeals from the ZBA must be submitted through the online portal and an application is considered submitted when the Building Department accepts said application as a complete application. He emphasized that the submission was submitted on June 18th, 2024 and the deadline was missed. He stated the Board is bound by MGL 40A Section 15. Mr. Gilgun stated he does not believe the town can add additional provisions about filing and what is deemed a complete submission outside of Section 15. He emphasized that he does not believe this application is for an appeal, and that if it were, all that is required for a timely submission per Section 15 is notice of intent and specific reason for the appeal and that was submitted on June 13th he claims. Mr. Clifford emphasized the ZBA is allowed to adopt additional provisions and ordinances. Board Member, Nyles N. Barnert, stated he does not believe the intent of the change of the Bylaw pertaining to submissions and filing was to prevent notice from being an accepted form of appeal submission. The intent was likely to ensure a person could not have a hearing scheduled and then not have all the proper information and documentation for the Board during that hearing. Mr. Clifford stated the Board is bound by what the Bylaw states. Chapter 138-7 covers applications for special permits, variances, and appeals. Board Member, Norman P. Cohen, stated his belief from the start that the appeal was not timely. He emphasized the Applicant did not do everything in a timely manner as he likely would have before the process went online. Mr. Gilgun claimed the application process outlined in the Code of Lexington goes beyond what is required by statue under MGL 40A. He emphasized his claim that the application was submitted on June 13, 2024, within the allowed appeal period. Mr. Cohen questioned who the applicant is representing. (Nancy McCue, one of many heirs to the Estate of Dennis Carroll.) He questioned if the property was taken for non-payment of taxes. (The Title lists Dennis Carroll as the Owner. Property was previously taken in the 1940s.) Board member, Martha C. Wood, questioned if taxes have been paid since the property owner passed away? Mr. Clifford, stated the question of ownership is not relevant during the current discussion about the timeliness of filing. No further questions from Board. Jonathan Silverstein, 80 Reed Street, indicated he is the legal representation for Dan and Marissa Murray. He outlined multiple issues with the appeal. He emphasized that this application is an appeal of a determination and therefore must adhere to Section 15 of MGL 40A. He highlighted the untimeliness of the filing of the appeal and emphasized that the Board does not have the authority to hear the appeal and should dismiss it. Yuanxi Qian, 15 Ward Street, stated their support of dismissing this appeal due to the untimeliness of the filing. Yunling Shi, 19 Ward Street, questioned if the applicant submitted the appeal in person to the Town Office Building before the end of the appeal period. (No, the appeal was only submitted online, after the end of the thirty (30) day appeal period.) Dan and Marissa Murray, 88 Reed Street, stated their support of the dismissal of this appeal due to the untimely filing of the appeal. Carolyn Kosnof, 10 Ward Street, also stated her support of dismissing the appeal. Robert Collins, 86 Reed Street, emphasized his support of dismissing the appeal and stated the applicant should be unable to resubmit for a new determination. No additional comments or questions from audience. Mr. Gilgun questioned if he would have a chance to request a withdrawal following a straw poll vote from the Board prior to their final decision-making vote. (Yes.) Hearing was closed at 8:52 PM (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Mr. Clifford, stated there is specific way to submit and this application was not submitted timely. If the appeal was submitted on or before June 16th the Board could hear the request for appeal but the appeal request was submitted on June 18th. The clarified the Board does not need to decide if an additional request for determination is allowed, they can only vote on whether to dismiss the appeal. He questioned if the Board believes the Appeal should be heard. A straw poll was taken and no one indicated belief that the appeal should be heard. Mr. Clifford made a motion to dismiss this appeal No further discussion from Board. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to DISMISS an APPEAL OF THE ZONING ADMINISTRATOR DETERMINATION DATED MAY 16, 2024 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3 to appeal determination of the Zoning Administrator regarding a determination that the Property is not a grandfathered lot due to untimely filing. (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes). Meeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom July 25, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, Martha C. Wood, and James A. Osten Alternate Member: Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Other Business: 1. Minutes from the June 27, 2024 Meeting 2. Discussion on Land Court Decision on Batting Cage Case (23 MISC 000233 and 23 MISC 000347 MDV) Board Chair, Ralph D. Clifford, gave a synopsis of the Land Court Decision and highlighted the areas of highest concern to the Board and its operation. He specifically emphasized sections in the bylaw pertaining to Structures and their definition and the Noise Control Bylaw. He mentioned the conceivable need to speak with the Planning Board to discuss changes that must be made to the bylaw. He summarized that the Board will have to change the ways they conduct meetings and make decisions moving forward. Board Member, Norman P. Cohen, stated he interpreted the decision as the Board has to follow any bylaw. He believes the Board did not believe they had a need to consider the Noise Bylaw during this case and that it seems the Court wants each and every Bylaw to be considered by the Board during all hearings. Mr. Clifford shared his dissatisfaction with the Court and its decision. He stated the Board is one with great experience and a strict commitment to their job. He emphasized his belief that these concerns should be brought to the Planning Board for review to help to alter certain bylaws, such as the Noise Control Bylaw. The Board is experienced and committed. He questioned if the Board wishes to have a more active role in Town Meeting and Bylaw changes. Board Member, Nyles N. Barnert, suggested they should contact the Planning Board as a Board to share their thoughts and concerns. Mr. Cohen mentioned how the Bylaw once had the mention of “permanent” in the definition of a structure which has since been removed from the Bylaw and that may be part of the issue. The Board discussed the Noise Control Bylaw and all of the instances in which they may have to enforce it now as a Board. Play structures were mentioned as something they would now have to consider a structure and they would also have to consider the noise these structures bring with them according to how the Court decided in the Batting Cage case. Board Member, James Osten, shared an experience in which the HVAC of a building was cause for concern due to the noise pollution it created, and emphasized that there is proper reasoning for having a Noise Control Bylaw to help mitigate these types of issues. Ms. Wood stated her concern that the Board’s responsibilities may become too expansive if having to worry about every type of structure and all the noise control issues that could also arise. The Board mentioned the new Tree Bylaw and their authority and/or jurisdiction to enforce it during Board of Appeal hearings. Building Commissioner, James Kelly, stated he believes it is most crucial to consider everything a structure from the start and them make decisions on a case by case basis. He emphasized that the Noise Advisory Committee will be examining the Noise Control Bylaw in depth and exploring ways in which to improve it. The Board discussed sharing their thoughts and concerns with the Planning Board to recommend possible areas of the Bylaw that should be reexamined and potentially altered. The Board agreed a written statement to the Planning Board with a few specific points laid out would be most appropriate. It was decided James Osten will draft a letter to the Planning Board and it will be discussed at a future Board of Appeals meeting as part of the Agenda. The Board of Appeals voted four (5) in favor, zero (0) opposed, and zero (0) in abstention to approve the minutes from June 27, 2024 Hearing (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, and Martha C. Wood – Yes, James Osten – Yes). The Board voted to Adjourn at 9:38 PM (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, and James Osten – Yes).