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HomeMy WebLinkAbout2024-09-26-ZBA-minMeeting Minutes of the Lexington Board of Appeals Conducted Virtually, Via Zoom September 26, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, James A. Osten, and Martha C. Wood Alternate Member: Patricia Nelson Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 3 Baker Avenue (ZBA-24-31) The petitioner is requesting THREE (3) SPECIAL PERMITS in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) section(s) 135-9.4, 135-8.4.2, 135-6.2.4(4), and 135-4.1.1 Table 2 to allow for the modification of a non-conforming structure, and to modify the dimensional controls of §4.0 to allow the renovation of a historic and architecturally significant building to allow more stories than otherwise allowed. The petitioner submitted the following information with the application: Nature and Justification, Certified Plot Plan, Floor Plan, Gross Floor Area Calculations, Elevations, and Historical Commission Decision Letter (approval) dated June 19, 2024. 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, and Historical Commission. The Hearing was opened at 7:04 PM. Petitioner: Frederick Gilgun, Nicholson, Sreter, and Gilgun, 33 Bedford St., Lexington, MA Frederick Gilgun, presented the petition on behalf of Zhechun Zhang and Xue Fei. He provided an overview of the home, emphasizing that the home is a historical home on the Lexington Cultural Resources Survey. The existing home is non-conforming due to setbacks, especially the front yard setback that is 16.9 ft. instead of the required 30 ft. The family wished to add more living space to their home. The proposal has received approval from the Historical Commission and the Historical Commission has found the home to be preferably preserved. Advice and recommendations from the historical Commission were heard and worked into the plans that were submitted with this application. Mr. Gilgun described the proposed addition and highlighted the locations where relief is needed from the Bylaw. He emphasized that the proposal will not affect the neighborhood and granting relief will not stray from the intent of the bylaw. Mr. Gilgun clarified that if the special permits are not issued then inappropriate modifications or demolition could occur. The proposed addition adds no new non-conformity to the property and it will still fit with the character of the neighborhood. Mr. Gilgun mentioned the Noise Control Bylaw (Ch. 80 of the Code of Lexington) and stated the proposal will not bring with it any unwarranted or excessive noise. The balcony faces the secondary street and the deck is mainly in the rear yard and located a good distance from the rear abutters. Board Chair, Ralph D. Clifford, questioned what would happen to the home if the special permits are not granted. (It will likely be demolished and replaced with a new structure). No further questions from the Board. David Samour, 7 Baker Avenue, voiced the support of he and his wife for the project. They are aware of the scope of the addition and emphasized that is necessary for the owner given the size of the current home and their family needs. She stated they are terrific neighbors and community members and urged the Board to grant the special permits. No further comments or questions from the audience. Mr. Gilgun concluded stating that the proposed addition and request is exactly what the intent of Bylaw 135-6.2 is for. He emphasized he hopes the Board sees it the same way. Hearing was closed at 7:13 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 the Board. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant THREE (3) SPECIAL PERMITS in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) section(s) 135-9.4, 135-8.4.2, 135-6.2.4(4), and 135-4.1.1 Table 2 to allow for the modification of a non-conforming structure, and to modify the dimensional controls of §4.0 to allow the renovation of a historic and architecturally significant building to allow more stories than otherwise allowed. (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 September 26, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, James A. Osten, and Martha C. Wood Alternate Member: Patricia Nelson Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Address: 24 Fiske Street (ZBA-24-32) 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 more stories 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, and Existing Conditions Plan with Topographic Measurements. 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, and Building Commissioner. Hearing was opened at 7:15 PM. Petitioner: Frederick Gilgun, Nicholson, Sreter, and Gilgun, 33 Bedford St., Lexington, MA Frederick Gilgun presented the petition on behalf of the 24 Fiske Road Realty Trust. Walter Hatfield, 19 Winchester Drive, trustee of the 24 Fiske Road Realty Trust, was also present. Mr. Gilgun provided an overview of the proposed single-family dwelling. He described the Estimated Seasonal High Ground Water (ESHGW) of the property and emphasized the ESGHW is located only 2.8 ft. below average natural grade (ANG). Mr. Gilgun highlighted that the Zoning Bylaw requires a basement floor to be located 2 ft. above ESHGW unless multiple other conditions are met. He also highlighted that because the contractor would like the basement floor to be 2 ft. above ESHGW then the finished first floor then ends up being over 6 ft. above the ANG, which makes then classifies the basement as a story. The proposed dwelling is 3.5 stories because of this. Mr. Gilgun stated his clients have a substantial hardship because of the ESHGW on their lot in combination with the ANG. If the basement floor were located closer than 2 ft. from ESHGW then they would be required to provide lots of expensive mitigation, a complex foundation, drain system, and roof infiltration system which could all fail and result in water damage and further financial damage. He emphasized that there are no consequences that would come from the Board granting this Variance. Mr. Gilgun also clarified that Lexington requires ANG rather than finished grade like many other municipalities. He stated if this dwelling were constructed, the finished grade would completely cover the basement foundation and the dwelling would look like a 2.5 story home, which is allowed by right in Lexington. Mr. Gilgun stated many homes in the area are 2 – 2.5 story dwellings that have basements just like this proposal. He concluded that the proposal does not nullify the intent of the Bylaw and that the proposal will not bring unwarranted or excessive noise. Board Member, Martha C. Wood, stated her concern for proposed tree removal. She questioned which trees were being removed and why. (All the tress that can be saved, will be. The proposal will comply with the Tree Bylaw) She questioned how many trees are to be removed (Unsure of the exact number but it is the jurisdiction of the tree Warden. Tree 29 is marked to be saved). Board Chair, Ralph D. Clifford, questioned the proposed status of tree 31 and 3. (They will be removed). Board Member, Nyles N. Barnert, emphasized that in order to grant a Variance the condition(s) that create a hardship need to be unique to the property and not experience d by others. He questioned how the ESHGW being located close to ANG is unique to this property, specifically when these types of conditions throughout town are what instigated bylaw 135-4.5 to be written and adopted. (This property has very wet soil conditions. The abutting property is built up on a mound and does not experience this issue because of that). Building Commissioner, James Kelly, stated most do not deal with ESHGW, He is happy to see someone go through great effort to build outside of the groundwater. He stated building above the ESHGW is good for the homeowner, neighbors, and town, in terms of water quality and control. He believes this is a unique lot and the Board should consider granting the Variance. Mr. Barnert questioned why the applicant could not reconfigure the home and add space elsewhere in order to not remove the basement and therefore conform with zoning requirements for stories. (There is potential for the home design to change in many ways but the point is, they want to be located far from the ESHGW. The proposal has no consequences on anyone because finished grade will result in the basement being fully hidden. The house can be built closer to ESHGW but the cost and risk of drainage systems are the hardship.) Board Member, Norman B. Cohen, stated it seems likely the abutting property had the same issue and questioned what is really so different about this lot. (They artificially raised the level of ground so it was substantially higher than ESHGW. It is likely the existing grade on the abutting property is not the not the natural grade and the construction of the home likely predated the addition of Average Natural Grade in the bylaw). Mr. Hatfield state that the home was built around 2004 and the mound of land was not there originally. The Trustees want to limit the disturbance to others so they want to lift home 2 ft. above ESHGW. Mr. Hatfield stated that many engineers say mitigation systems are not guaranteed to work. The property only has one direct abutter and the proposed home will still be located lower than the neighboring home. The proposed home will look like a 2.5 story home with finished grade. Mr. Hatfield emphasized he will abide by all tree bylaws during this process as well. Ed Danielson, 19 Winchester Drive, and Ronald Buck 69 Swanton Street, Winchester, MA were also present. Mr. Clifford, questioned the proposed type of heating system type and its location? (A split system located in the attic and basement. The outside units will likely be in the rear of the home. They have utilized these systems previously and have had no complaints regarding noise from neighbors). Mr. Clifford stated he has qualms with the claimed hardship. He stated a differently designed home could be built here without any zoning issues or financial hardships. (Majority of homes have a basement that are consistent with this proposal. There may be a loss of value if the home were constructed differently which is a financial loss. There are no consequences that would come from granting this Variance.) No comments or questions from the audience. Mr. Cohen reiterated that it is a developer building this, not someone who bought the home and wants to reconstruct for themselves. He stated there have been many cases recently from developers claiming a home will never be sold if they cannot do a certain thing and they always do sell with no issue. (It is about about loss of value not whether or not it will be sold. The soil conditions on the lot, which is a variance standard, cause a financial hardship). Mr. Gilgun, summarized that common sense should prevail. There is a substantial hardship caused by the soil conditions and the ESHGW. Locating the basement floor closer than 2 ft. to the ESHGW would require a costly drainage system that can fail and cause more harm and financial hardship to the owner. No additional questions from the Board. 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). Board Member, James A. Osten, questioned what the consequences would be if the Variance is not granted (The current proposal could not be built because it is not in compliance). He asked to clarify that this would not prohibit the owners from building on the lot. (Yes, they could still build something that complies with Zoning and all other regulations). Ms. Wood, sated there were many issues raised with this proposal. Mr. Barnert stated zoning is for zoning and the Town has zoning bylaws for a reason. Mr. Clifford stated he believes there is not a sufficient hardship. A loss of a few dollars is not substantial. He stated it is possible to design a new home that would have similar value and the basement space could be located elsewhere in home. Mr. Barnert stated there are developers who have said they do not build basements because they get more money per square foot with more space above ground. Mr. Cohen stated he is worried about this proposal and does not think it meets the hardship standard. He stated he believes if the variance is issued and someone appeals it, it would be thrown out by the court. He does not believe he can vote in favor. Ms. Wood questioned if they should do a straw poll? (yes) Hearing was reopened at 7:52 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). The Applicant was asked if they would like straw poll. (Yes. A straw poll was requested). Hearing was closed at 7:52 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). A straw poll was taken with four (4) Board Members indicating a likely No vote and one (1) Board Member indicating a likely Yes vote. No further discussion from the Board. Applicant requested a withdrawal. The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to grant a WITHDRAWAL WITHOUT PREJUDICE (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 September 26, 2024, 7:00 pm Board Members: Chair – Ralph D. Clifford, Nyles N. Barnert, Norman P. Cohen, James A. Osten, and Martha C. Wood Associate Members: Patricia Nelson, Kathryn Roy, and Jeanne Krieger Administrative Staff: Jim Kelly, Building Commissioner, and Olivia Lawler, Zoning Administrator Other Business: 1. Discussion on the Noise Control Bylaw, Chapter 80 of the Code of Lexington 2. Minutes from the September 12, 2024 Meeting Board Chair, Ralph D. Clifford, provided an overview of the Land Court Decision regarding the Batting Cage Case and emphasized that the court believed that Board did not enforce the Noise Bylaw when the batting cage was relevant to it. The Board discussed their enforcement of the Noise Bylaw, emphasizing that they believe they must enforce it with every application that comes before them. They discussed the qualms they have with the Bylaw as it is currently written, including sound vs. noise, and the simple production of sound from daily activities in neighborhoods. They mentioned how the Bylaw currently creates the issue that even children playing outside would violate the Noise Bylaw because they would raise the level of noise at the lot line. It was mentioned that the bylaw utilized the term “reasonable person,” which the Board thinks can be difficult to describe due to differing opinions. They emphasized that the Noise Bylaw is currently very sensitive to any noise in Town and therefore, the ZBA has to enforce the Bylaw for every application. The drafted Memorandum was discussed. Mr. Clifford stated the Board should not be involved in the Noise Bylaw enforcement because they are not professionals in that field. The goal of the memorandum is to point out perceived flaws in the Noise Bylaw, to request that Bylaw be updated, and to remove the ZBA from being responsible for enforcing it. Board Member, James A. Osten, recounted a case in Brookline regarding pickleball courts and their noise generation, and stated he does not believe the ZBA should have any part in hearing appeals on the basis of noise as it is not their expertise. Examples of activities and structures that could violate the Noise bylaw as written were shared. These examples included: Pickleball courts, HVAC units, heat pumps, and playgrounds/play structures. Board Member, Nyles N. Barnert mentioned the residents of Shade Street and their experience with noise caused by an abutter. He emphasized that the 10-dBA noise level that is written in the Bylaw is there for that type of case. He stated raising it above 10 dBA in the bylaw could be problematic as it is at that threshold for a reason. Mr. Clifford described his reasoning for the input of 70 dBA in the draft memo, as it is a threshold that is generally agreed upon by professionals that will not negatively affect a person. Mr. Barnert stated his recommended edit to the draft memorandum is to change 15 dBA back to 10 dBA. Board Members agreed. The 70 dBA level was discussed. Jeanne Krieger mentioned that a level of 70 dBA was discussed at Town Meeting previously in regards to rock crushing and that that level was lowered due to concerns from residents. She mentioned the newly established Noise Advisory Committee may have different opinions on the level. The Board agreed to the recommended edits. Mr. Clifford stated that Town staff is drafting a form for Applicants to submit with every ZBA application that deals with the Noise Bylaw. The Board agreed that the Chair should present the memorandum to the Noise Advisory Committee and Planning Board in order to provide more background on the issue and the ZBA’s concerns. The Board of Appeals voted eight (8) in favor, zero (0) opposed, and zero (0) in abstention to edit the memorandum as discussed (a roll call vote was taken: Ralph D. Clifford– Yes, Norman P. Cohen– Yes, Nyles N. Barnert – Yes, Martha C. Wood – Yes, James Osten – Yes, Jeanne Krieger – Yes, Kathryn Roy – Yes, and Patricia Nelson – Yes). The Board of Appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to approve the minutes from September 12, 2024 Hearing (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). The Board voted to Adjourn at 8:36 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).