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HomeMy WebLinkAbout2018-03-08-ZBA-min Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room March 8, 2018 Board Members Present: Acting Chairman, Ralph D. Clifford, Jeanne K. Krieger, Edward D. McCarthy, and Associate Members, Nyles N. Barnert and James A. Osten Administrative Staff: David George, Zoning Administrator and Jennifer Gingras, Administrative Clerk Address: 17 Banks Avenue The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Elevations, and Floor Plans. 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 Conservation Administrator, Engineering Office, and Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-8.4.2, to allow modification to a non-conforming structure. The applicant submitted a Request for Postponement to the March 8, 2018 hearing, dated January 31, 2018. On March 7, 2018, the applicant submitted another Request for Postponement to the April 12, 2018 hearing. On a motion by Edward D. McCarthy, and seconded by Jeanne K. Krieger, the Board voted 5-0 to grant the Request for Postponement to the April 12, 2018 hearing. Page 1 Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room March 8, 2018 Board Members Present: Acting Chairman, Ralph D. Clifford, Jeanne K. Krieger, Edward D. McCarthy, and Associate Members, Nyles N. Barnert and James A. Osten Administrative Staff: David George, Zoning Administrator and Jennifer Gingras, Administrative Clerk Address: 1833 Massachusetts Avenue The petitioner submitted the following information with the application: Nature and Justification, and Floor Plans. 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 Historic Districts Commission, Economic Development Office, and Zoning Administrator. The petitioner is requesting a SPECIAL PERMIT in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-3.4, Table 1 (Permitted Uses and Developmental Standards), Line J.1.02 to allow a fast food use. The Chairman opened the hearing at 7:05 pm. Presenter: Mr. Colin Smith, Architect Mr. Smith stated that the new tenant of the building is proposing a takeout as well as fast food use. In response to Staff comments, deliveries will be made once a week before noon by a box truck and will go thru the front door. Mr. Smith also verbally requested a waiver of the requirement of a certified plot plan. A Board Member, Mr. McCarthy, asked if the use should be limited to this applicant only (Mr. Smith responded that he would be agreeable to that being a condition). A Board Member Associate, Mr. Barnert, asked if there will be cooking on the premises (no). A Board Member, Ms. Krieger, asked the applicant if it would be an issue if they impose a time limit of 5 years for the Special Permit (that would not be an issue). The Chairman, Mr. Clifford, asked how trash is handled (There is a common dumpster. The trash will be stored in the basement before being taken out). Page 2 The Zoning Administrator, Mr. George, requested that the decision be posted in a conspicuous place so it can be renewed in the appropriate time (that would not be an issue). There were no further questions from the audience. There were no further questions or comments from the Board. The Chairman closed the hearing at 7:10 pm. On a motion by Jeanne K. Krieger, and seconded by Edward D. McCarthy, the Board voted 5-0 to grant a waiver of the requirement of a certified plot plan. On a motion by Nyles N. Barnert, and seconded by Jeanne K. Krieger, the Board voted 5-0 to grant a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-3.4, Table 1 (Permitted Uses and Developmental Standards), Line J.1.02 to allow a fast food use with the following conditions- 1. onditions:1. Permitted hours of operation are- Monday — re:Monday — Sunday 7:00 AM — 10:00 PM; 2. No more than 16 seats shall be provided at the establishment for indoor seating, as per the plan referenced as "Proposed First Floor Plan," unknown attribution, unknown date. The plan shows the location of the business at the left front corner of the building located at the corner of Merriam Street and Massachusetts Avenue; 3. The special permit is granted for five (5) years and will expire on March 8, 2023- and 4. This decision shall be posted conspicuously in a public place where other permits and decisions are customarily displayed. Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room March 8, 2018 Board Members Present: Acting Chairman, Ralph D. Clifford, Jeanne K. Krieger, Edward D. McCarthy, and Associate Members, Nyles N. Barnert and James A. Osten Administrative Staff: David George, Zoning Administrator and Jennifer Gingras, Administrative Clerk Address: 60 Bedford Street The petitioner submitted the following information with the application: Nature and Justification, Floor Plans, and Photographs. Also submitted was a request for a waiver of the requirement for a certified plot plan, and a Zoning Board of Appeals decision, dated January 28, 2010. 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 Economic Development Office, and Zoning Administrator. The petitioner is requesting TWO (2) SPECIAL PERMITS in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-3.4, Table 1 (Permitted Uses and Developmental Standards), Line J.1.02 to allow a fast food use; and 2.) Table 1, Line J.1.03 to allow a take-out food use during hours not otherwise allowed. The Chairman opened the hearing at 7:12 pm. Presenter: Mr. Daniel Brennan Mr. Brennan is representing Starbucks at 60 Bedford Street. Starbucks had renewed their Special Permit in 2010 and they are late again for the renewal so they need to request new Special Permits since they missed the deadline. Mr. Brennan requests that the Special Permits be permanent with no renewal period. They have 37 interior seats and 12 exterior seats. If they Board doesn't want to make it permanent, they will post it with their other certificates so it will not be missed. A Board Member Associate, Mr. Barnert, asked for clarification on the opening time the condition stated (the condition was amended in 2010 to make the open time 5.00am instead of 6.00am). A Board Member, Mr. McCarthy, asked for clarification on the number of seats (They have 37 interior seats and 12 exterior seats. A recent inspection found that the store had an additional 3 seats and the manager was notified resulting in the seats being removed immediately). Page 4 Mr. Brennen stated that there are 143 abutters they have to notify each time they come in front of the Board so that would be another reason to support not renewing the Special Permit every 5 years. The Board discussed the 5 year renewal period and agreed they would want that as a condition. Mr. Brennen stated that Starbucks is requesting all the conditions remain the same except to add that the decision be posted in a conspicuous location. There were no further questions from the audience. There were no further questions or comments from the Board. The Chairman closed the hearing at 7:21 pm. On a motion by Edward D. McCarthy, and seconded by James A. Osten, the Board voted 5-0 to grant a waiver of the requirement of a certified plot plan. On a motion by Jeanne K. Krieger, and seconded by Nyles N. Barnert, the Board voted 5-0 to grant TWO (2) SPECIAL PERMITS in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-3.4, Table 1 (Permitted Uses and Developmental Standards), Line J.1.02 to allow a fast food use; and 2.) Table 1, Line J.1.03 to allow a take-out food use during hours not otherwise allowed subject to the following conditions: 5. Permitted hours of operation are- Monday — re:Monday — Sunday 5:00 AM — 9:00 PM; 6. No more than 37 seats shall be provided at the establishment for indoor seating; 7. No more than 12 seats shall be provided at the establishment for seasonal outdoor seating. 8. There will be no deliveries or trash pick-up before: 5:30 AM Monday — Saturday 6:30 AM Sunday; 9. One American with Disabilities Act accessible bathroom will be provided for patrons; 10. The dumpster will be screened and emptied as needed to meet Board of Health standards; 11. Trash receptacles will be provided, and the parking lot will be kept free of litter from the Starbucks Coffee operation; and 12. The special permit is granted for five (5) years and will expire on March 8, 2023. 13. This decision shall be posted conspicuously in a public place where other permits and decisions are customarily displayed. Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room March 8, 2018 Board Members Present: Acting Chairman, Ralph D. Clifford, Jeanne K. Krieger, Edward D. McCarthy, and Associate Members, Nyles N. Barnert and James A. Osten Administrative Staff: David George, Zoning Administrator and Jennifer Gingras, Administrative Clerk Address: 927 and 945 Waltham Street The petitioner submitted the following information with the application: Nature and Justification. Also received was a copy of a letter from David George, Zoning Administrator, dated November 9, 2017; a Vicinity Plan, dated October 11, 1984; a letter from Attorney Ed Grant, received March 1, 2018, with attachments; and site plans from 2014 and 2018. 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, Planning Office, Economic Development Office, and Zoning Administrator. The petitioner is requesting an ADMINISTRATIVE APPEAL OF THE ZONING ADMINISTRATOR in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3 to appeal the decision of the Zoning Administrator, dated November 9, 2017, in reference to 927-945 Waltham Street (Wagon Wheel Nursery and Farmstand). The Chairman opened the hearing at 7:22 pm. Presenters: Attorney Mark Lanza, representing Jeremey N. and Farhana R. Stevenson, also present Also present: Attorney Edward Grant, representing Wagon Wheel Nursery; Nick Cannalonga, Sr., owner of Wagon Wheel Nursery Mr. Lanza stated they are in front of the Board because they disagree with the Zoning Administrator's decision in reference to the Wagon Wheel Nursery at 927 and 945 Waltham St. The submitted a written request for zoning enforcement to Mr. David George, which was denied on November 9, 2017. The Stevenson's disagree with his decision and have exercised their statutory appeal. They are requesting that a cease and assist order be issued to Wagon Wheel Nursery as they are not in regulation with the zoning bylaw. The Stevenson's are direct abutters and have presumed standing. If there standing is challenged, there would need to have something about the use that harms them, which would be that the noise and orders disrupts their lives. If there is Page 7 an adverse decision and they appeal, that issue will be addressed there. If it is appealed to court, the issue of standing will be appealed. Wagon Wheel started out as a country farm stand in the 1950s and it is not a farm stand anymore. It is more like a grocery store with a small part of the area used for growing. The outside is a retail landscaping supplies area. There are many large trucks and large equipment on the property. The noise and smells bother the appellants. The area is commercially zoned in the intersections but it's a residential zoning district. Commercial agriculture is regulated and the property is about 2 acres. Evidence shows it is not being used for commercial agriculture. The building at 927 Waltham Street is being used as a grocery store. Mr. Lanza stated that this isn't about whether it's a good business or about whether the family does a good job; the problem is that the business doesn't fit the location anymore and it was never intended to be a full scale grocery store, which isn't a use allowed in a residential zoning district. Wagon Wheel Nursery states they are an agricultural use bur only a minuscule amount is being grown there. Mr. Lanza stated that he cited a case from 1977 in their letter in which it was decided that where less than 1/3 of the land is being used for agriculture, it is not exempt because of the commercial agriculture. In reference to Wagon Wheel Nursery, less than 1/3 of the land is used for agriculture. It doesn't state in the zoning bylaws that landscaping businesses are allowed and the use doesn't fit within the roadside stand definition either. The business use of the office area is also not allowed in the zoning district. The Board is obligated to apply the zoning bylaw and a cease and assist order should be applied by the Board. Mr. Stevenson stated that the primary problem is the noise. It is comparable to a construction area starting in the spring and going through the fall. There are large trucks that deliver early in the morning. Mrs. Stevenson stated that she has no problems against the owners or Wagon Wheel Nursery. Living across the street makes it difficult to open their windows because of the noise and smell. It was a quiet, quant nursery stand when they first moved in and now it's a large landscaping business. Mr. David George, the Zoning Administrator, stated that he was requested to take enforcement and declined to do so. His letter from November 9, 2017 states the reason. It's an agricultural state use. The agricultural definition is meant to be interpreted broadly not narrowly and is not just about growing plants. You can nurture and maintain materials brought to the site. The building that's there is an office that supports the use. The store has products that are brought from places inside Massachusetts. The mulch on site is used to nurture plants that are brought to people's houses. The operations have been continuous. The two site plans submitted from 2014 and 2018 are pretty much in concurrence with the property. A Board Member, Mr. McCarthy, asked when the appellants bought their property (2002 and they have been living there since then). A Board Member, Mr. Clifford, stated his understanding is that the store sells produce and asked the appellants if they know where the produce is grown (Mr. Stevenson said he sees Frito-Lay trucks). Mr. Clifford asked the appellants if they know what plants are grown there (Mr. Stevenson responded that there are trees brought in from outside and sold for retail landscape use). Mr. Ed Grant presented photographs to the Board, showing the nursery premises during growing seasons. The photo shows the green house which has a lot around it. Mr. George may only take zoning enforcement only when he sees zoning issues. The Cannalongas began their nursery operation in 1959. They didn't have any incidents until 2013 when the state law was amended to require no Special Permit under the "Right to Farm Act". The State change was adopted by Lexington in the Zoning By- laws. Mr. Cannalonga has submitted statement as well, which was distributed to the Board. In 2016 there was a letter from the Cannalonga's to the Stevensons to resolve issues raised by the Stevensons. Mr. Cannalonga's statement summarizes those efforts and costs. They put in 15 evergreen trees and a concrete wall on the property line to help those issues. The claim that the building on 945 Waltham Street is a commercial office is without merit. The nursery office is used for the nursery and storage of tools, and other nursery-related equipment and Wagon Wheel doesn't not receive any income from 945 Waltham Street. Wagon Wheel performs most nursery activities in the field and grows all shrubs, trees, perennials, and annuals in containers and brings in container material to nurture, and maintain the plants in preparation for sale, which has been a component since 1960. Also, the 40A-3 State law exemption also includes use and structures for commercial agriculture to include the sale of produce, wine and dairy products, in which 25% of gross annual sales may be produced from on-premises and 50% produced elsewhere in Massachusetts. The 2013 State plan also reduced the owner's minimum threshold from 5 to 2 acres. There were 25 farms in 1958 and now there are only three. The consumption of food makes in economically validated. The photos show the agricultural use on the whole property. An audience member, Mr. Bill Dailey of 114 Marrett Rd, spoke in favor of Wagon Wheel Nursery. He owns the gas station next to the property and he has regularly observed what has gone on. The farm stand has always been there but has since been remodeled. Altogether, the nursery and operation hasn't changed much over the years. Mr. Nick Cattalonga, Sr. stated that he and his Dad began Wagon Wheel in 1954. Over the years, they have had to do Special Permits. If there had ever been an issue, they would take care of it. When they first began their business, there were no other businesses around them. Progress is necessary for any business. There used to be over 20 nurseries and farms, now there are only 3. In order to survive the competitive times, a small business is at a disadvantage to Home Depot, etc. Since the 1980s, industry has changed. Everything is now put in containers but they still have to water, etc. They have also employed thousands of high school and Minute Man Tech students. A Board Member Associate, Mr. Barnert, asked for clarification on the landscaping material since Mr. Dailey said that he buys mulch as retail (Mr. Cattalonga stated that it goes along with horticulture, which is their main focus, but people need to have supplies to complete the project they're working on). A Board Member Associate, Mr. Osten, asked about the "Right to Farm" Act after 2013, which was intended to make it easier to have an agricultural use. (Mr. Cattalonga stated the State changed it from 5 to 2 acres and he used to have to go to the ZBA for a Special Permit every year. When the state law passed it, it made it a possibility to be included under the "Right to Farm" act. Nothing else has changed with the business. A Board Member, Mr. McCarthy, asked about how the noise is reduced (Mr. Cattalonga stated that they purchased a new farm tractor, which is much quieter and has reduce the noise. They also built a 15ft barrier and put evergreens in front of them. They told their employees to move some of the operation near the fencing. They constantly talk to their vendors. Five years ago they had a compost pile and moved it because the smell was horrible). The Chairman, Mr. Clifford, asked when the photos were taken which were produced by Mr. Grant (within the last 2 years). Mr. Clifford asked if the photos show the typical summer (yes). Mr. Clifford asked if the plants are started or if they are bought in pots. (They are brought in in pots. They come from all over but most from areas in Massachusetts). Mr. Clifford asked where the produce is from (Busa Farm provides a tremendous amount along with other local growers). Mr. Clifford asked what the Frito- Lay truck delivers (bread). An audience member, Mr. Malcolm Kasparian of 956 Waltham Street, asked if the Board would be able to have the Nursery come back every 2-3 years for a Special Permit (Mr. Clifford stated that the Board doesn't have the legal authority to make that decision and it's a state law). An audience member, Mr. Hongsheng Tang of 952 Waltham Street, stated that it may help if the zoning was changed from residential to commercial. An audience member, Ms. Sharon Spelding of 1666 Massachusetts Ave, spoke in favor of Wagon Wheel Nursery. Mr. Stevenson distributed a photograph of boulders at the Nursery which was entered into the file. Mr. Stevenson also showed the Board a video dated May 11, 2016 which showed mulch being delivered to the nursery. Mr. Stevenson stated that the landscape supply is significant and they are requesting the Board to shut that part down. Mr. Grant stated that the photograph of the boulders showed work being done to put the wall up in response to the appellants complaints. Mr. Grant also stated that the noise from the equipment is exempt by State law. There have also not been any other complaints by anyone on Hampton Road. Mr. Stevenson stated that it's not correct that the neighbors haven't complained. They have complained, but are not able to be at the hearing because they were requested not to by the owner. Mr. Lanza stated that looking at the photo, you can see how little of the property is used for agriculture. In order to qualify for the 2 acre zoning exemption, 1/3 of the area has to be used for agriculture. The appellants are requesting a cease and assist order. There were no further questions or comments from the audience. There were no further questions or comments from the Board. The Chairman closed the hearing at 8:43 pm. On a motion made and seconded, the Board voted to approve the request to extend the final action deadline for drafting and filing a decision to April 15, 2018. On a motion by Jeanne K. Krieger, and seconded by Edward D. McCarthy, the Board voted 5-0 in support of the decision of the Zoning Administrator, dated November 9, 2017, in reference to 927-945 Waltham Street (Wagon Wheel Nursery and Farmstand). As a result, the ADMINISTRATIVE APPEAL OF THE ZONING ADMINISTRATOR in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3 was denied and the decision of the Zoning Administrator was upheld. Minutes of the Lexington Zoning Board of Appeals Selectmen's Meeting Room March 8, 2018 Board Members Present: Acting Chairman, Ralph D. Clifford, Jeanne K. Krieger, Edward D. McCarthy, and Associate Members, Nyles N. Barnert and James A. Osten Administrative Staff: David George, Zoning Administrator and Jennifer Gingras, Administrative Clerk Other Business: 1) Minutes of Meetings from February 8, 2018 Hearing On a motion by Edward D. McCarthy, and seconded by Jeanne K. Krieger, the Board voted 5-0, to approve the minutes of February 8, 2017. On a motion made and seconded, the meeting was adjourned. Page 12