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HomeMy WebLinkAbout1973-10-30BOARD OF APPEALS HEARINGS October 30, 1973 A regular meeting of the Lexington Board of Appeals was held on Tuesday, October 30, 1973 at 7:30 p.m. in the Selectmen's Meeting Room of the Town Office Building. Present were Chairman Nickerson,'Vice-chairman Sheldon, regular members W. Brodhead, R. Morey and G. Wadsworth, a Minute -man Publica- tions' reporter, a League of Women Voters' observer and an audience of towns- people. Public hearings were held on the following petitions, notice having been mailed to the petitioners, to the owners of all property abutting the petition- er's land and to all abutters of the abutters as they appear on the most recent local tax list, to town boards and officials who will or might be affected by decisions made and also advertised in the Lexington Minute -man newspaper. Elizabeth A. Collins and John A. Collins - variance of the Lexington zoning by-law to maintain the garage at 82 Oak Street with insufficient rear and side yards and also a special permit to build an addition which will measure 12 ft. by 22 ft. to the rear of the existing non -conforming dwelling. Dorothy A. Coburn (Cramer) Trustee - variance from the zoning by-law of the town of Lexington to permit a division of Lot 6, Waltham Street, being 950 Waltham Street, into two lots, neither of which shall have adequate area and neither of which shall have adequate frontage, and to maintain an existing dwelling on one of them as shown on the plan submitted with the application. Norman Ostroff - appeal from an administrative decision of the town of Lexington Building Inspector, for a building permit for the construction of a single family, split level, type of dwelling on Lots 16, 17, and 18 on Land Court Plan 28051A (Sheets 1 and 2); said lots are in common ownership and is one building lot containing 6,600 square feet of land, 75 feet of frontage on First Street which is located northwesterly of Webb Street, off Young Street, Lexington, Massachusetts. Robert W. Connelly, R & W Realty Associates - site plan review and a special permit under Section 25, that the proposed placement of buildings, major topo- graphic changes, provisions for waste disposal, surface and ground water drain- age, erosion control, parking areas, loading areas, maneuvering areas, drive- ways, and the location of intersections of driveways and streets will constitute a suitable development and will not result in substantial detriment to the neighborhood. The address of this proposed building is 60 Westview Road, Lexington, Massachusetts. Present owners are Hartwell Westview Trust. Owners as of record on Thursday, September 13, 1973 will be R & W Realty Associates, P.O. Box 236, 1838 Massachusetts Avenue, Lexington, Massachusetts. Following the hearings the Board made the following decisions, all in public meeting: Collins - Granted unanimously. Construction must be started within one year. Coburn (Cramer) - Granted unanimously as follows: Lot 6A to have frontage on Concord Avenue of 16 ft. and area of approximately 70,000 sq. ft., Lot 6B to 1 1 1 October 30, 1973 (continued) -2 have frontage of 125 ft. on Waltham Street and the side line shall be so drawn that Lot 6B will be relatively rectangular in shape with an area of approxi- mately 25,000 sq. ft., subject to the condition that construction of the house on Lot B must start within the period of one year from date. Ostroff - Denied unanimously and with the understanding that the Board will have Town Counsel's guidance as to the write-up of the denial and any court proceedings that may follow. R & W - Granted unanimously subjectto the following conditions: 1. That if any noxious gases are generated at this site, compliance with stan- dards set forth by the Bureau of Air Use Management, Division of Environmental Health, Massachusetts Department of Public Health,is_required. 2. That grease and oil traps be placed within the storm sewers, as well as restriction on the uses of salt or other chemicals on the lot for ice control. 3. That all electrical wiring on the property be placed underground. 4. Any requirements under the Wetlands Protection Act, as administered by our Conservation Commission, must be satisfied. 5. Construction must start within a year from this date. The issuance of this conditional permit, site plan review and finding and determination, shall not in any manner affect the requirement that a building permit be obtained or any other permit which might be required by statute. The petitioner shall have the obligation to record a notice of this permit as required by statute. All pertinent material is on file under the name of each petitioner in the Board of Appeal's office. The meeting adjourned at 10:30 p.m. 0� Evelyn i7F. Cole Clerk BOARD OF APPEALS NORMAN OSTROFF HEARING October 30, 1973 ' Board Members present and voting: Chairman Donald E. Nickerson, Vice -Chairman George C. Sheldon, regular members: Woodruff M. Brodhead, George P. Wadsworth, and Ruth Morey. The Chairman read the notice as it was advertised in the Lexington Minute - Man and mailed to the owners of all property deemed by the Board to be affected in accordance with Section 17 of the General Laws of Massachusetts Chapter 40A and distributed to town boards and town officials according to the usual prac- tice of the Board of Appeals. October 11 and 18, 1973 The Board of Appeals will hold a public hearing on the petition of NORMAN OSTROFF for an appeal from an administrative decision of the Town of Lexington Building Inspector, for a building permit for the construction of a single family, split level, type of dwelling on LOTS 16, 17, and 18 -on LAND COURT PLAN 28051A (SHEETS 1 and 2); said lots are in common ownership and is one building lot containing 6,600 square feet of land, 75 feet of frontage on FIRST STREET which is located NORTHWESTERLY OF WEBB STREET, OFF YOUNG STREET, LEXINGTON, MASSACHUSETTS. The hearing will be held on TUESDAY, OCTOBER 30, 1973 in the TOWN OFFICE BUILDING at 7:40 P.M. ' Chairman: You have provided us with drawings and several exhibits. I think everything pertaining to it (the petition) is in this packet. As soon as I get through with stating what you have provided and I think you are all fam- iliar with it so far....... Mr. Ostroff provided us with 6 enclosures as follow: 1. A surveyed layout of Battleview Park, James E. Burke, Owner, by John W. McClintock, AMCE, dated November 30, 1913 and approved by the Board of Survey on May 29, 1914. 2. A "Plan of Land in Lexington - Battleview Park - Nellie M. Norris, Owner" made by Richard L. Savage, registered engineer dated December 1957, this certifying that it was made on the ground in accordance with Land Court instructions. This plan designated the portion of Webb Street affected and all of Young, First, Second and Third Streets as "Private". It was signed on December 9, 1957 by a majority of the Planning Board under the words "Approval under Subdivision Control Law Not Required". 3. A copy of part of plan filed in Land Registration Office on 16, 1957 by C. M. Anderson, Engineer for Court; this being a layout enclosure #2. This drawing is noted Ch. 96606, Book 613, Page 56. December copy of 4. Three drawings entitled "Battle View Park, Lexington, Mass., Lot ' Layout Plan by September 21, David W. Perley, 1973, this drawing Civil Engineer, Concord, Mass.", dated numbered #1 of 3. The second drawing num- ber 2 of 3 is entitled "Plan and Profile of First Street." The third draw- ing numbered 3 of 3 is entitled "Plan and Profile of Second Street." Drawing 1 of 3 refers to Land Court Plan 28051A, dated December 16, 1957. BOARD OF APPEALS Norman Ostroff Hearing, October 30, 1973 (continued) -2 S. Plan by David W. Perley, C. CE., dated 6/29/73 entitled "Plot Plan Proposed Dwelling on First Street." This shows a proposed dwelling 52' x 24" located on lots 16, 17 and 18. 6. A set of 10 drawings of a house all entitled "The Newport" consisting of a front and side isometric drawing unnumbered, a "Site Preparation Require- ments" drawing numbered 1 of 1, and eight drawings numbered 1 of 7, 2 of 7, 3A of 7, 3B of 7, 4 of 7, 5 of 7, 6 of 7 and 7 of 7, these comprising plans, elevations, details and heating, electrical and plumbing details. Chairman continues: You have given us a letter dated September 25, 1973 with the various reasons. Mr. Ostroff: I set forth the law and I would like to state my reasons for it. Chairman: I think at this point I will let you give your reasons. Mr. Ostroff: Mr. Chairman, "This is an application to appeal the decision of the Building Inspector to deny me a building permit. The reason is that the area doesn't comply with the dimensional requirements of the zoning by-laws, and it does not have access on a street which is a public way. I quote the law of the town of Lexington, dated March 15, 1924. Section 26.51 states 'lots laid out and recorded by plan or deed dated prior to March 17, 1924 can have any area and any frontage '# The lots in question are shown on a plan of land that was recorded on June 12, 1914 as Plan 14 in Plan Book 224. This clearly established the existence of the lots and it clearly conforms to the Zoning By -Laws. (Enclosure #1). As for the Building Inspector's determination that the lots do not have access on a street which is a public way, the Lexington Planning Board in 1957 endorsed a plan (Enclosure #2) and it was properly recorded. The Land Court accepted and approved the plan (Enclosure #3), which plan is known as Plan 28051A (sheets 1 and 2). Your attention is directed to the Massachusetts General Laws Chapter 41, Section 81W which states: "A planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan. All of the provisions of the subdivision control law relating to the submission and ap- proval of a plan of a subdivision shall so far as apt, be applicable to the approval of the modification, amendment, or rescission of such approval and to a plan which has been changed under this section. No modification, amend- ment or recission of the approval of a plan of a subdivision or change in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto without the consent of the owner of such lots and of the holder of the mortgage or mortgages, if any, thereon. So far as registered land is affected, no modification, amend- ment or recision of the approval of a plan nor change in a plan under this section shall take effect, until such modification, amendment or change has been verified by the land court pursuant to chapter 185, and in the case of recission, or modification, amendment or change not so verified, until ordered by the court pursuant to section 114 of said chapter 185. There has not been and there cannot be any modification, amendment, recision, or change of this BOARD OF APPEALS Norman Ostroff hearing, October 30, 1973 (continued) -3 Land Court Plan without the approval of all the owners and mortgagees of lots within this area who have purchased in good faith and for valuable considera- tion. I might point out that no two interior lots, with the exception of lots 16, 17, and 18, adjacent to each other, are owned by the same person. Each lot is assessed separately and taxed separately by the Town of Lexington. A valuable consideration was paid for these lots. The consideration was paid for these lots because it was thought that the lots could be developed accord- ing to the recorded plans. Since I do own other lots on First and Second Street, I have caused to be recorded at the Middlesex County Registry of Deeds a complete set of plans showing the road profiles, construction grades, water, sewer, drains, curbing, sidewalks, fire hydrants, catch basins, and the like (Enclosure #4). These roads would be superior in construction to adjoining Young and Webb Streets. The 44 lots in this area could be combined into 16 building lots. Most of the building lots would have 75 feet of frontage by 100 feet depth and they would be comparable to most of the other lots in this neighborhood.` Mr. Ostroff went on to explain that enclosure #5 is the plot plan and it conforms to all of the side yard, rear yard and set back requirements in the zoning by-law. Mr. Ostroff said that the building plans (enclosure #6) are exactly the same as the house that is presently being constructed on the corner of Young Street and First Street.``Also it is interesting to note that a house, the same as the one for which I now seek a permit, is being constructed on Lots 21, 22 and 23 shown on the enclosed Land Court Plan. The same house is also,, being constructed on Lots 63, 64, and 65 on said Land Court Plan. I believe, he said," Young Street is a private way, and Webb Street north of Dunham Street is a private way. First and Second Streets are shown on a street and precinct map of Lexington, signed by the Town Engineer.' Mr. Ostroff said that he had filed a formal appeal in duplicate with the Town Clerk as required by the Rules and Regulations of the Lexington Board of Appeals. Mr. Ostroff presented us with a copy of his request for a Building Permit dated September 10, 1973, refusal of which is the cause of this hearing. Attached to this request is an "Important Notice" referring to Ch. 131, Sec. 40 of the Mass. G. L. as amended (The Wetlands Protection Act) stating that if this permit is granted authorization to build must be obtained from the Lexington Conservation Commission. He gave the Board of Appeals a copy of the decision of Cassani vs Town of Hull decided August 30, 1973 (before the Superior Courtkargued January 16, 1973.) ' Mr. Ostroff said that he was aware of the necessity of sewage disposal and the securing of water and that the Board of Health, Engineering Department and Conservation Commission approval must be obtained. He agreed that if he could build he would make the street or streets to Town of Lexington specifi- cations. He expressed his intentions of building more houses if he got a per- mit for this one as he represented himself as owner of most of the area. He BOARD OF APPEALS ' Norman Ostroff Hearing, October 30, 1973 (continued) -4 purchased lots 16, 17 and 18 quite recently. Chairman: Let me remind you that the issue is whether the petitioner has been wronged by the decision of the Building Inspector to build a house on a street that doesn't exist and that has no water or sewage, or not. The Planning Board and the Board of Health have expressed opposition. Town Counsel's letter of April 12, 1973 refers to an extensive file accumulated by the Plan- ning Board over the years; the plan constitutes a subdivision; and agrees with former Town Counsel Donald Legro that this is the case. Letter from the Planning Board: October 29, 1973 Dear Mr. Nickerson: You have brought to our attention.the appeal of Norman Ostroff to reverse the decision of the Lexington Building Inspector to deny him a building permit for the erection of a structure on Lots 16, 17, and 18 shown on a plan of Battle View Park dated September 21, 1973. On this plan the three 25 ft. by 88 ft. lots in question are shown to have frontage only on First Street. Because First Street does not in fact physically exist, the Planning ' Board has not approved it as a legal street. Thus the lots do not have the required frontage on a legal street, and therefore the Planning Board recommends that the appeal be denied. Yours very truly, LEXINGTON PLANNING BOARD /s/ Eric T. Clarke, Chairman Eric T. Clarke, Planning Board Chairman defended the Planning Board's position by stating that the recent refusal of the Planning Board to sign a requested Form A had the effect of reversing the endorsement of the 1957 Board. Mr. Ostroff took strong objection to the ability of the Planning Board to reverse itself. He interpreted Sec. 81W of Ch. 41 of the Mass. G. L. to mean that there can be no modification, amendment, recision or change of a Land Court plan without the approval of all the owners and mortgagees of lots within the area who have purchased in good faith and for a valuable consideration. Letter from the Building Inspector: October 30, 1973 Dear Mr. Nickerson: The decision referred to is my refusal to issue a Building Permit on the lots numbered 16, 17, & 18 off Young Street in that they do not comply with the requirements of the Lexington Zoning By -Law, nor do they have ' access on a street which is a Public Way. Attached are copies from Robert Heustis, Director of Public Health and Norman P. Cohen, Town Counsel, which substantiates my position. Sincerely yours, Donald K. Irwin, Building Inspector BOARD OF APPEALS ' Norman Ostroff Hearing, October 30, 1973 (continued) -5 Letters attached to B.I. letter follow: Letter from Director of Public Health to Donald K. Irwin: 9/11/73 "No plans or specifications have been filed which will provide this lot with water and sewer service. No permits can be issued until applications and plans have been filed to provide these services and have been approved by the Board of Health." Respectfully, /s/ Robert C. Heustis Director of Public Health Letter from Norman P. Cohen, Town Counsel: Edward C. Mendler, Jr., Esquire April 12, 1973 Nutter, McClennen & Fish 73 Federal Street Boston, Massachusetts 02110 Dear Mr. Mendler: (Battleview Park) I have reviewed the extensive file on the question of Battleview Park that has been accumulated by the Planning Board over the years, together with a number of letters to the Planning Board from the former town counsel. The lots shown on the plan clearly do not have frontage on one of the three types of way defined in c. 41 SS 81L and therefore the plan constitutes a subdivision. In the circumstances I can only agree with the advice of Mr. Legro to the Planning Board that they should not endorse the plan under SS 81P, and advise the Building Inspector that no building permits should be issued until a proper subdivision plan has been submitted. Very truly yours, /s/ Norman P. Cohen Letter from Donald K. Irwin to Norman Ostroff: September 12, 1973 Mr. Norman Ostroff 89 State Street Boston, Mass., 02109 Re: Application to build on Lots 16, 17, 18 off Young Street, Lexington Dear Mr. Ostroff: The permit is denied for the reason that the lots do not comply with the dimensional requirements of the Zoning By -Law, and it does not have access on a street which is a public way. Yours truly, Donald K. Irwin Building Inspector 1 1 BOARD OF APPEALS Norman Ostroff Hearing, October 30, 1973 (continued) Chairman: Does anyone wish to speak in favor? IN FAVOR: .M Kennard Mandell: I own twelve or fourteen lots in that area. I don't know exactly how many or just where they are located. I'm in favor of the petition. Chairman: Anyone else in favor? No response. Chairman: Letters were received in favor from Constantine Eliades, 36 Fairlawn Lane and Lionel Jacobs, trustee of the Liman Trust. Both own land in the area. Contents of letter from Constantine J. Eliades: I would like to be recorded as in favor of the petition of Norman Ostroff, hearing to be held on October 30, 1973. I am a resident of Lexington and I own a home on the corner of First St. and Young Street and another home on the corner of Second Street and Young Street. Thank you for notification of this hearing. Contents of letter from Liman Realty Co., 53A Irving St., Boston: I have received notice of a hearing on Oct. 302 19732 by your Board to be held on the Petition of Norman Ostroff. I am an abutter and wish to be recorded as in favor of this Petition. Chairman: Anybody in opposition? IN OPPOSITION: Herbert Feinstein, 5 Young St.: As an 8 -year resident of the lot abutting this property, I can say that it is flooded every spring and fall and that all the houses in that area have a water problem in the basement. James Hansen, 29 Webb St.: This proposal is inappropriate. The lot is totally unacceptable to build on from the standpoint of drainage. You are really look- ing at the first step in a development of the whole area. I am strongly opposed. The hearing on the Ostroff petition was adjourned and the meeting was opened on the Robert W. Connelly, R & W Realty Associates'petition. On this same date, October 30, 1973, after hearings scheduled were heard, the Board gave consideration to the subject of each of the four hearings in turn. The third hearing being the Ostroff petition. After much discussion and more deliberation a motion to deny was made by Mr. Sheldon, seconded by Mr. Brodhead and passed unanimously. Mr. Ostroff's petition was denied unanimously. Respectfully submitted, X 1,1, t 4 Evelyn F. Cole, Clerk BOARD OF APPEALS