HomeMy WebLinkAbout1960-09-23-min 168
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SQL-1ICTKiN 'S MATING
September 23, 1960
A special meeting of the Board of Selectmen was
held in the Selectmen' s Room , Town Office Building,
on Thursday, September 23, 1960, at 7 :30 P.M. Notice
of the meeting was filed with the Town Clerk within
the time required by law and the members of the Board
were notified by telephone Chairman Morey, Messrs
Adams , Ferguson, Cole and Richards were present Mr
Stevens , Town Counsel, and the Executive Clerk were
also present .
Mr. Stevens explained that the meeting was called
relative to the building at 1775 Massachusetts Avenue
He reported that on December 16, 1930, following t Town
Meeting vote authorizing the action, that the Selectmen
established a building line through the then O'Connell
property located thirty feet back from the existing line
of Massachusetts Avenue and that property. The order
of the Board establishing that line provided that any
structure existing at the time of theestablishment of
the said building line would be permitted to remain
and be maintained in its present location. The statute
under which this action was taken was Section 37, Chapter
82, which states in part that thereafter no structure
shall be erected or maintained between such building
line and such way, except steps , windows, porticos,
other usual projections appurtenant to the front walls,
fences and gates , to the extent prescribed in the vote ,
and except that any structure existing at the time of
the establishment of the building line may be permitted
to remain and be maintained to such extent and under
such conditions as may be prescribed in the vote es-
tablishing the building line .
Mr. Stevens explained that the order did not go as
far as it could have in mo-'e detail. It just used the
same language , it shall be permitted to remain and be
maintained in its present location . He said this build-
ing was there , as were other buildings Mr O'Connell
brought a petition for damages which were awarded for
$22,539.98 plus costs He said that, according to the
notes in Mr Wrightington' s files, the then Town Counsel,
the Judge in his charge to the jury said that so much
of the building between the building line and the street
may be repaired and kept in condition for the purpose
but there could be no change that would make the buildings
of a different structural character than they were at
the time of the taking.
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Mr Stevens said the builuing could be kept in
condition to use but there could not be any substantial
structural change . Within a few years after this, in
1932, on this same building which, at that time was a
bank building, Mr O'Connell proposed some changes that
the Building Inspector and Mr . Wrightington both felt
were structural changes Mr Wrightington advised the
Board of Selectmen that the character of those would
derogate from the rights the Town had acquired in es-
tablishing the building line and advised the Building
Inspector to deny the building permit, which he did
Mr. Wrightington had a draft of a bill in equity to
enjoin O'Connell and Custance Bros . who apparently were
going ahead without a permit Mr Stevens said he under-
st od that with the filing of the bill, it was dropped
Mr. Stevens stated that when this matter first came
up, about which the Board is now concerned, it arose be-
cause Charles Cole, the architect, filed an application
for a building permit. The plans were dated January 10,
1960, and he asked to make various alterations within
the walls of the present structure at an estimated cost
of $50,000.00.
Mr. Stevens said Mr. Irwin called him about it.
Mr . Irwin left the plans and Mr . Stevens looked at them,
checked the records and arrived at the conclusion that
under this building line , the owner could not make
structural changes in the building but could make repairs
and it might be that some alterations could be made Mr
Stevens told Mr. Irwin and Charles Cole . On January 18,
1960, Mr Stevens wrote a letter to Mr Irwin and sent
him a copy of a letter to be sent on Mr. Irwin' s Letter-
head to Mr Trani and Charles Cole . Mr. Stevens read
the letter sent to Mr. Trani, c/o Mr. Charles Cole :
"Your application dated January 10, 1960 for a building
permit to make alterations on the existing building,
1775 Massachusetts Avenue , Lexington, and to build an
addition thereto, accompanied by plans dated January 10,
1960 prepared by Charles H. Cole , 2nd, architect, is
denied. The reason for the denial is that as shown by
said plans the alterations proposed to be made to the
part of the existing building that lies between the
street and the building line established by the Town of
Lexington in December, 1930 go beyond the maintenance
of that part of the building and would derogate from
the rights acquired by the Town in establishing the
building line ." Mr. Stevens said he presumed the letter
was sent Subsequent to that, Mr. Charles Cole came in
one Monday evening and talked to Mr Stevens outside the
Selectmen' s Room. He had some sketches and Mr Stevens
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at that time reiterated to Mr Charles Cole that in his
opinion the status of the property was that there could
be no structural alterations, and he told Mr Charles
Cole that he knew of no decision on the point by the
Supreme Court of Massachusetts . Mr Stevens felt that
the Judge charged the jury in the O 'Connell case in-
terpreted the law clearly and that would be the basis
on which the Town would proceed Mr. Charles Cole in-
dicated to Mr. Stevens that they did not want litigation
to test this out and see whet could b% done and they
would cut out the structural changes . Mr. Stevens told
her and suggested that the Building Inspector refer to
the Board in an informal way the plans, and the Chairman
subsequently told Mr Stevens she asked the Building
Inspector to do that. She was told ttet a permit had
been issued and Mr Stevens, as Town Counsel, approved
the plans . Mr Stevens told the Chairman he had no re-
collection, and when the Chairman brought this up again
on Monday or Tuesday, he called Mr. Irwin and had him
bring the plans over Mr. Stevens said he knew then
that he had never seen them before . Mr. Irwin told him
that he spoke to Mr Charles Cole about taking them up
with Mr . Stevens, and Mr. Charles Cole told him he had
already gone over them with Mr. Stevens who had approved
them, and on that basis, Mr . Irwin issued a permit . Mr.
Stevens called Mr. Charles Cole and said the plans defi-
nitely called for structural changes and asked him how
it happened, because Mr. Irwin hadbean told that Mr.
Stevens had approved the plans and he had not . Mr.
Charles Cole said he thought it was all right and all
that Mr Stevens was concerned about was the stairway to
the second floor . The stairway and the two doors were
what Mr Charles Cole thought Mr Stevens was objecting
to.
Mr. Stevens said he told Mr. Charles Cole that was
only one of the items and told him there could be no
alterations and he accepted it . Mr Charles Cole wanted
to know why they were being picked on and said that when
they got into the project, found it necessary to do a
lot of work. Mr. Stevens told Mr. Charles Cole that his
client purchased the building subject to the restrictions
and Mr . Stevens did not give him any authority to pro-
ceed in violation of the Town ' s rights. Mr. Charles Cole
wanted to know who brought the subject up and Mr. Stevens
told him that the Chairman did and he could n± see how
they could go ahead.
Mr. Stevens said the building line is thirty feet
back from the inside line of the sidewalk . He stated
that Mr. W+'ightington prepared an agreement which was
submitted to O'Connell which, after reciting the build-
ing line establishment, etc . , contained an agreement
by O'Connell whereby if he did make the alt_,rations ,
he would accept as damages, in the event the Town at
any time in the future took any additional rights, a
sum that represented the then assessed value of the
* building which was $4,000.00, and that he would not
Mr. Stevens heard nothing further of it until the Chairman
asked what tileo
sus of the building was.
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ask for any damages increased joy reasons of the alterations
he planned to make . Mr Wrightington advised the Board
that it would be a binding agrement , but before the
Selectmen could authorize putting it into effect, they
would have to obtain To Meetin_ approval He said
O'Connell never signed it.
The Chairman said she has been talking about some
agreemert with T ani so he could go along.
Mr . Stevens sa d the Chairman thought the remodel-
ling could be done so the front part would be separated
from the front line but Mr Charles Cole said they tried
to work something out and it was not practical.
Mr. Adams asked what would happen if the Board took
no action.
M- Stevens stated that actually the fact that the
Building Inspector grants a permit does not take any
rights away from the Town He said the fact that the
Selectmen then in office let it go on, is a matter of
law He said as a practical matter, when the Tann de-
cided to relocate the street or widen the street, he
would be of the opinion thatthe jury would give it
considerable weight in arriving at what the damages would
be . He said if it is ev r decided to relocate the street,
the Town would h ve to take an easement for a Town way
and the owner is entitled to damages in that taking. He
stated that the value of the premises before th.e taking
would include the reduced value because of the establish*,
merit of the line He said even if there were no build-
ings on it, he would be entitled to some damages, and
with ttC,building on it, he would be entitled to damages
of the value of what was left of the building
Mr. Cole asked if Mr Stevens had asked the
architect to adjust his plans , and Mr. Stevens said it
looked to him that they have gone so far along they
cant go back
Mr. Stevens said he told Charles Cole that it was
a big building with wide open spaces with non bearing
partitions and that it seemed to him the basic structure
is all gone .
The Chairman reported that when she saw what was
being done , she felt something should be done about it
because it might incur future expense to the Town. She
asked Mr. Stevens to look at it, and he was in agreemert
with what she said.
Mr . Stevens said he had requested John Carroll to
send a photographer up to take pictures of it, and that
has been done .
Mr . Stevens skid hedid-not_ see anything that could
be done to that building now but to rebuild it, and to
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rebuild it is in violation
Mr. Adams said the only solution would be to have
an agreement .
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Mr Stevens said he assumed that at some time the
Board of Selectmen and Planning Board should give thought
to what they believe is the proper way to handle the
center .
Mr. Irwin, Building Inspector, arrived at the
meeting at 8 00 P M.
Mr Adams said that several times when the sale of
the fire station land was brought up, the thought was
to hold it for negotiating the setback
Mr Stevens said tht if the decision were that in
view of the small amount of depth existing between
Massachusetts Avenue and ;disbn Way, it was not desirable
to widen the street that way, the Town Meeting could take
action to discontinue this building line The question
would then be what would the owners pay to get this taken
from the land
The subject was discussed briefly before Messrs
Charles Cole and Trani ar-ived at the meeting at 8 :35 P.M
The Chairman stated that Messrs. Cole and Trani were
aware of the reason for the meeting and said that the
Board was a little shocked when it saw what happened to
the building owned by Mr. Trani, and questioned whether
the amount of alteration or change was an alteration and
whether it could be done under the terms of the court
decision which set up the building line through that pro-
perty.
She stated that after viewing the property and
in discussing it with Mr. Stevens, the Board feels it is
in excess of what was permitted. She explained that the
Board is in the position of heving observed the situation
and knowing that the Town spent twenty-two and a half
thousand dollars to estahlish a line through the property,
would not be doing its duty unless it took some action as
damages might be collected at a future date and the Boa-d
is trying to protect the Town
Mr. Trani said they thought they had a good plan
He said the building had no plaster, very little plaster,
mostly wallboard He explained that the floor was taken
out because it was not good. quality . He said if this
means they are replacing the floor and walls, the Board
could continue from that point on
Mr. Charles Cole said the main reason for taking
out the first floor was because it was obvious to him
that without any code recuiring 100 pound live load up-
stairs as well as downstairs, the conaition of the floor
was dangerous. He said the lally column also had very
little footings and the whole second floor of the build-
ing would probably come down . The new dode requires
heavier live loads than it did years ago so more than
double structural load is required He said no matter
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who went in the building, this would have to be done
The Chairman asked if he meant the building might
have b en condemned. She asked if Mr Irwin tested an
old building for the live load, and he replied in the
negative .
Mr. Charles Cole said the floor timb rs we 'e rotten
He stated that in the fall of 1959 he was w a' king with
Mr. Trani on this and completed the working drawings by
Janus y 10, 1960 and have plans dated January 10, 1960
to Mr. Irwin for permit purposes . Mr. Irwin notified
him that he ould have to consult with Town Counsel be-
cause therewas a line through there that had to be
checked on. Mr . Charles Cole said he sent Mr. Stevens
a set of plans which he had for a long period of time .
This set was turned down. Mr Charles Cole spoke to a
member of the Board and that member made a suggestion
after which he draw up a new plan and when that plan
was shown to Town Counsel, it was turned down because
Mr. Cole had not only altered but had destroyed the
original structure Then Mr Charles Cole and Mr. Trani
discussed the subject, and Mr. Trani asked him to go
back to Mr. Stevens to see if anytring could be done to
change the original set of plans . Mr. Charles Cole said
he went to Mr. Irwin' s office and took back the original
' A plans and had a rough sketch with two suggestions Mr
Stevens had made ; one to get rid of another door on
Massachusetts Avenue and have just one entrance ; two,
put it back of the line and three, keep the use of the
third floor commercial.
Mr. Charles Cole said that in the history of this
building, since the decision , it has been used in various
ways aria very extensive alterations have been going on
from time to time . He said then the new set of plans
came back to Mr. Irwin with the changes and they looked
like what Mr. Cole said they were going to be . Mr. Cole
said he took the original plans to make them agree with
Chief Belcastro' s requests; that was two sets of working
plans, plus revisions . He said a permit was issued April
28, 1960 on the set of plans here, the final set A He
said that at the pr sent stage of the plan, the upper
floor is empty. It is one office and goes back to its
original condition, has been painted and made to look
attractive , but is not the way it was built .
Mr. Charles Cole said that every attempt has been
made to do everything possible to meet the suggestions
of the Town Counsel. He said he would like to apologize
for getting Mr Irwin and Mr Trani in this position. He
said no intent was made to get around the decision and
he felt the reasonable and logical approach to this pro-
ject is what he has now. He said that he felt in view
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of what happened in the other store , the complete change
in the A. 3o P. and Bakery, his is the least extensive
type of renovation as far as tke future of the Town is
concerned He said he preserved the roof and old foun-
dations and saved the second floor and back of the line
the building is of first-class construction and fire-
proof. He said even though the Board feels this is an
alteration that exceeds the judgment and the Town is
putting itself in the position of possibly paying a lot
of money, he did not think that is the case at all.
The Chairman asked if Mr Charles Cole had the
building permit since April
Mr. Trani explained that he wanted to give the
tenants downstairs the summer to do business because
with the tourists, that was the busy season.
The Chairman stated that Mr. Stevens told Mr Charles
Cole things that were notacceptable in the earlier plans
but he did not see the latest plans
Mr Charles Cole said he told Mr. Irwin Mr. Stevens
told him to do this, He said the corner entrance has
been on the building from the very start and there was
no mention made to change it. He said they could go to
the center entrance but in view of the fact it has gone
this far, it would be a hardship now. He said very few
people know the condition of a building when they look
at a plan He said the corner entrance was not put in
the last minute but was put in at the start .
The Chairman stated that the corner entrance means
changing the structure
Mr. Cole said that if the building was vacated by
the restaurant and any other person came into the build-
ing to use it, extensive changes would have to be made
for anything other than another restaurant . He stated
that his attempt hes been to make something good for the
area and do everything possible not to make the part in
front of the line an extensive operation.
Mr . Richards said th^ t the Board does hot have the
power to release restrictions that the Town has imposed
and paid for, but only the power to enforce . He said
the Board relaizes that Mr. T ani is in a position now
where he can' t go back.
The Chairman said the Board' s problem is whether
the Building permit must be withdrawn at this point.
She said the question is what is the Board' s duty in
protecting the Town' s rights
Mr. Charles Cole said that the type of design he
would like to see is not what he has . He could design
a more attractive appearance and that would be one change
that could be met in the drawing without too much ex-
pense at this date He said he could offer that as a
175
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compromise but he would still have to take out the up-
stair partitions He said the ora Ehould consider
making it possible for Mr. Trani to proceed and have a
good place of business.
The Chairman said that Mrs Cole spoke about show-
ing Mr Stevens a set of plans and stated chat he saw
one set only.
Mr . Charles Cole said changes were made by con-
sultation with Mr. Stevens and then he took them to
Mr. Irwin. He said that on April 11, 1960, he left the
plans with Mr Irwin. He said Mr Stevens may not have
seen the plans he should have seen
The Chairman said that Mr Stevens did not know a
permit had been issued and the Board did not know .
Mr. Lincoln Cole asked if the architect had. checked
with Mr Stevens between sets A and D and the architect
replied that he changed his plans and used the suggestions
Mr. Stevens made , left the plans with Mr. Irwin but did
not take them to Mr. Stevens
Mr. Stevens asked Mr. Charles Cole ifth.ey had
talked about these twice , and Mr. Cole replied that Mr.
Stevens went to his office once and talked to him on
the 'phone
Mr. Stevens explained that he had been in Mr. Cole ' s
office a number of times on Town business . He recalled
that Mr. Cole waited one evening for Mr Stevens to come
out from a Selectmen' s Meeting
Mr. Cole agreed that it could have been in the Select-
men' s Office , that he knew it was a face to face meeting,
and not over the telephone .
Mr Stevens said he had Mr Irwin send a letter
saying the alterations could not be made and recalled
saying that the difference was between maintaining the
building and altering it .
Mr Charles Cole said that if he made that statement,
no building on the street is correct. He said he knew
the building was altered, and that of course it is altered
Mr. Stevens said if Mr. Cole carried out what he pro-
posed in the plans this would be an entirely different
building structurally than was there .
Mr. Charles Cole said the only thing that has to be
changed in the building is the central beam_.in the middle ;
one was balanced on a rock, and the floor timbers were all
decayed He said it would not make sense to put the build-
ing back to its original position
Mr Stevens said he did not see how it could be
Mr. Lincoln Cole asked what would happen if theTown
should widen Massachusetts Avenue, and Mr. Charles Cole
176 1.4
replied that the front part of t1 building would have
to be taken down, but the damages would not be large .
Mr. Trani said they had added something onto the
building so• he could bring the stairway back of the line
without losing any room in front .
Mr. Charles Cole said the old builuing is 43 feet
long so taking off 30 feet still leaves 12 feet .
The Chairman asked what would be done about the
foundation wh-re the building now rests and Ir Charles
Cole replied tht the new slab will rest on the ground,
and the foundation would be put only under the column
Mr Stevens said that according to the files of
the Town Counsel when the building line was established,
Mr. O'Connell took steps to alter the same building
about two years after the line was established, and the
Building Inspector said it could not be done . The changes
never were made He said at that time the proposition
was made to O 'Connell that he enter into an agreement
that if permitted to make tt ose alterations he would
agree to h- ve it run with the land if the Town made a
taking of any additional rights he would accept as
damages the sum of 4+, 000.00, the then assessed value of the
building, and th- t he would not ask for any additional
damages . He did not sign that . The Town Counsel then
said if he were to enter into an agreement , it could not
be in effect until after a Total Meeting, and it stopped
there .
Mr. Trani said that is what he was interested in.
The Chairman explained the reason for stopping the
building is to stop Mr. Trani from spending more money
so the Town will not have to spend more money later.
Mr. Trani asked if it would be possible for him
to have a few hours to talk this over with his counsel
The Chairman explained that such an agreement would
have to be ratified by a Town Meeting
Mr. Trani asked what the Board suggested he do, and
the Chairman replied that she supposed with such an agree-
ment he could forget the walls as they are now
Mr. Stevens said he thought theBoand would want to
review the situation and he would cave to look into it
Mr. Trani asked if it would be pos ible for him to
continue with the permit on the part of thebuilding be-
hind the building line
Mr. Stevens said if he tried to continue with what
he has now, the back is not completed without the front
Mr . Trani said he knew that . He said he has planned
it so that in the future if a taking is made, he could
add ten feet to the new building ana the thirty feet the
Board wants will come down
177
Mr. Stevens said if he continues to work on the rack,
the back is inadequate
Mr. Trani said he is interested now in cove ring the
hole the re
Mr. Irwin stated that it is permissable to issue a
permit for a portion of the bu_lding
Mr Ada-is asked if he would issue a permit for that
portion, and Mr Irwin replied it is quite possible if
they come in and change tre plans and crossed out what
they are not going to work on and reapply for a portion
that they can legally build, he could see no reason why
a permit could not be issued for that portion .
Mr. Charles Cole said time would be necessary to
work out an agreement and it would be advantageous to
have a permit for the part on which they can proceed
He said he would be willing to make some changes to
make the exterior of the building essentially as it is
now.
Mr. Trani asked if there would be any question
about a corner entrance if an agreement were entered
into.
Mr. Stevens replied that if the agreement was ap-
proved by ToT.Tn Meeting, he could have the corner entrance
Mr. Stevens suggested that the present building
permit be revoked by the Building Inspector and an ap-
plication be filed for a bu. lding permit on the rear on
the portion beyond the building line He said the
Building Inspector determined it could be done .
Mr. Richards said he heard rumors about a Special
Town Meeting for the School Committee to be held in
October or November and this would be a question of
getting whatever agreements are necessary to come up
at that time
The Chairman explained that it takes about three
weeks for a Town Meeting after one has been called
Mr. S+evens said if the Board decides to do what
has been discussed, he thought Mr. Trani would take it
up with his counsel.
Mr. Trani asked if it would be possible to keep the
front entrance temporarily and do the work.
Mr. Stevens replied that he did not see how Mr. Trani
can do any work in that part of the building, and it must
be understood that no work will be done .
Mr. Trani said he would get in touch with his attorney,
Mr. Tropeano, and that he could appreciate the Board' s
position
Messrs . Trani and Charles Cole retired at 9:25 P.N. .
Upon motion duly made and seconded, it was voted to
instruct Mr. Irwin, Building Inspector, to revoke permit
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#109 issued to Joseph Trani, Inc. , on April 28, 1960 .
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Mr. Irwin is to write a letter revoking the permit
for the reason that he finds the alterations proposed to
be made are in derogation of the Town' s established line .
Mr . Trani can then file an application for a build-
ing permit for the new building which can be issued, making
it very clear that it is limited to that portion
Mr. Irwin retired at 9:45 P.M
A discussion was held relative to the vote to be
presented at the Special Town Meeting, September 26, 1960
and an amendment that may be presented by Mr. Ferguson.
The meeting adjourned at 10:20 P.M.
A true record, Attest
�^ ec tivSelectm n
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