HomeMy WebLinkAbout2018-03-22-ZBA-min Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room
March 22, 2018
Board Members Present: Chairwoman, Martha C. Wood, Jeanne K. Krieger, Edward
D. McCarthy, David G. Williams, and Ralph D. Clifford
Alternate Present: Norman P. Cohen
Administrative Staff: David George, Zoning Administrator and Jennifer Gingras,
Administrative Clerk
Address: 69 Freemont Street
The petitioner submitted the following information with the application: Nature and
Justification, Topographic Plan, 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 Zoning Administrator.
The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law
(Chapter 135 of the Code of Lexington) sections 135-9.2.2.2 and 135-4.1.1, Table 2
(Schedule of Dimensional Controls) to allow a 3-story structure instead of the required
2.5 stories.
The Chairwoman opened the hearing at 7:06 pm.
Presenter: Brian Lessard, ALC Design and Phillip Trebasso of ALC Design
Mr. Lessard stated that the applicants propose a 3-story structure since the basement
level will be considered a half story. And they will be adding on a 2nd story. They are
looking to expand the home to add more bedrooms and would like to modify the house
without encroaching into the required setbacks. They will also be adding on a
vestibule to make it more functional to access their house.
A Board Member, Mr. Clifford, asked if the basement is a finished space (yes). Mr.
Clifford asked why the addition can't be moved to a different location on the lot (there
is a hill and it would be a significant cost of about $50,000 more). Mr. Clifford asked if
the vestibule is within the setback line (yes).
A Board Member, Ms. Krieger asked if the setback line to the vestibule includes the
overhang (yes). Ms. Krieger asked what the proposed height of the structure is (31.4
ft).
The Board Member Alternate, Mr. Cohen, asked what the name of the street is on the
back of the property (Constitution Road). Mr. Cohen stated that the structure looks tall
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from the back of the property because of the way the land slopes (it is a true 2.5
stories in the back).
There were no questions from the audience.
Mr. George stated that if it's approved, there needs to be a vote on the request for a
waiver of the certified plot plan.
The Board voted to close the hearing at 7:18 pm.
Mr. Clifford stated he will be voting against the variance as the hardship is not
compelling enough and there is plenty of room to build an addition without seeking a
variance.
On a motion by Edward D. McCarthy, and seconded by Jeanne K. Keiger, the Board
voted 5-0 to grant the Request for a Waiver of the requirement of a certified plot plan.
On a motion by Jeanne K. Krieger, and seconded by Edward D. McCarthy, the Board
voted 3-2 (Ralph D. Clifford and Martha C. Wood in opposition) to grant the
VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of
Lexington) sections 135-9.2.2.2 and 135-4.1.1, Table 2 (Schedule of Dimensional
Controls) to allow a 3-story structure instead of the required 2.5 stories. A 4-1 vote
was needed and therefore the request was denied.
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room
March 22, 2018
Board Members Present: Chairwoman, Martha C. Wood, Jeanne K. Krieger, Edward
D. McCarthy, David G. Williams, and Ralph D. Clifford
Alternate Present: Norman P. Cohen
Administrative Staff: David George, Zoning Administrator and Jennifer Gingras,
Administrative Clerk
Address: 30 Partridge Road
The petitioner submitted the following information with the application: Nature and
Justification, Topographic Plan, Plot Plan, and Floor Plans. Other information
submitted was an e-mail from an abutter in support of the petition, dated March 19,
2018, and 2 letters of support from abutters, dated March 19, 2018 and March 21,
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 Zoning Administrator.
The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law
(Chapter 135 of the Code of Lexington) sections 135-9.2.2.2 and 135-4.1.1, Table 2
(Schedule of Dimensional Controls) to allow a front yard setback of 214" instead of the
required 30'.
The Chairwoman opened the hearing at 7:21 pm.
Presenters: Ellen and Keith Law
The applicants are proposing to build a garage with a front yard setback of 21'4"
instead of the required 30'. The current garage is below grade, making it impossible to
get out and difficult to plow. After realizing that their original proposed plan was not
favorable to their neighbor, David Carroll, they have a second revised plan that is more
favorable to the neighbor, but it asks for more zoning relief than originally sought.
The Chairwoman, Ms. Wood, stated that the Board cannot grant more zoning relief
than requested at this hearing.
A Board Member, Mr. Williams, asked why the garage can't be moved so that it stays
outside of the setback line (they would lose a lot of trees).
A Board Member, Ms. Krieger, asked the applicants why the garage is so large (they
made it slightly larger to have room for firewood and bike storage).
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A Board Member, Mr. Clifford, stated that the hardship is not sufficient enough for a
variance.
A Board Member, Mr. McCarthy, agreed with Mr. Clifford.
The applicant, Mrs. Law stated that they are open to finding a by-right option but it
wouldn't be favorable to their neighbors.
Mr. Williams asked what will happen to the utility pole on the property (it would need to
be moved slightly).
The Board Member Alternate, Mr. Cohen, asked the applicants if they opted out of the
Neighborhood Conservation Committee, of which an article was coming up for in Town
Meeting (the applciants opted out but the neighbor opted in).
Ms. Law stated that the lot is difficult to build because of the way the lots are divided.
Ms. Wood asked what the existing garage is used for (just a workspace. It's too short
and narrow to use for cars and is difficult to access. They have never used the garage
for a car as their minivan cannot clear the roof).
Ms. Wood asked what the plan is for the existing garage (the applicants plan to knock
down the wall and return the garage to the house).
An audience member, Ms. Kathy Sullivan of 28 Partridge Road, asked the applicants
why they are proposing the driveway so far to the left (Ms. Law responded that that is
the level access point). Ms. Sullivan passed out a copy of the GIS map showing the
lots. The lots are angled so severely so the developer could give each lot 150 ft of
frontage. Ms. Sullivan asked if it's possible to change the lot lines (The Zoning
Administrator, Mr. George, stated the minimum requirement is 150 ft and they would
probably have to get variances and several A&Rs to create a new lot for every lot
effected).
An audience member, Mr. David Carroll of 32 Partridge Rd, stated that he is the most
affected by the variance request. Because of the shape of the lots, the proposed
garage will be in front of his house. He would like to reach a compromise with the
applicants. Mr. Carroll also expressed concern about the drainage and with the utility
pole.
Ms. Law stated that they have had discussions with their drainage engineers and
drainage will be taken care of and the utility pole will be put in an area as a matter of
right.
Mr. Williams suggested they may want to continue the hearing or withdraw and come
in with a new proposal.
The Board agreed that they would not vote in favor of this variance, but may be open
to some relief. The Board advised the applicant that if they continue the hearing, they
can only come back with less relief requested, not more.
Mr. Law asked what the definition of a hardship is (Mr. Clifford stated that it has to
have to do with topology, soil conditions, and/or extreme financial conditions. There is
clearly a hardship but there are high standards. There has to be a hardship caused by
the zoning).
An audience member, Ms. Sullivan, stated that they may be able to do an easement
into the neighbors lot (Mr. Clifford responded that they have to be careful about self-
imposed hardships).
The applicants requested a Withdrawal without Prejudice.
On a motion by Ralph D. Clifford, and seconded by Jeanne K. Krieger, the Board
voted 5-0 to grant the request for Withdrawal without Prejudice, dated March 22, 2018,
for a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of
Lexington) sections 135-9.2.2.2 and 135-4.1.1, Table 2 (Schedule of Dimensional
Controls) to allow a front yard setback of 21'4" instead of the required 30'.
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room
March 22, 2018
Board Members Present: Chairwoman, Martha C. Wood, Jeanne K. Krieger, Edward
D. McCarthy, David G. Williams, and Ralph D. Clifford
Alternate Present: Norman P. Cohen
Administrative Staff: David George, Zoning Administrator and Jennifer Gingras,
Administrative Clerk
Address: 0 Grant Street (Map 48, Lot 121 B)
The petitioner submitted the following information with the application: Nature and
Justification, and Plot Plan. Other information submitted was a letter from George
Foote, dated November 28, 2017; letter from David George, Zoning Administrator,
dated December 18, 2017; letter from the former Building Commissioner, Steven
Frederickson, dated May 27, 1987; and case law for Berg, et al. v. Town of Lexington,
dated April 9, 2007.
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, and Zoning Administrator.
The petitioner is requesting an ADMINISTRATIVE APPEAL OF 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 December 18, 2017, in reference to 0 Grant Street (Map 48, Lot 121 B) (building
permit for a new single family dwelling).
The Chairwoman opened the hearing at 8:08 pm.
Presenter: George Foote, Esq.
Mr. Foote represents Kevin S. Tait. They are appealing the determination made by
Mr. George concerning the lot of Grant Street losing its grandfathered status. Mr. Tait
purchased their lot on 21 Oakland St and his wife, Avis, purchased the lot on Grant St.
She purchased the lot on Grant St with money from her retirement account. Avis Tait
handled the finances on her own. When Mrs. Tait passed away, Mr. Tait inherited the
lot from 121 B. He would like to sell the lot so he can retire and provide for his disabled
son. In his statement of support, the main conclusion was that there was no
affirmative act taken by Mr. Tait. Building on the lot was Mrs. Tait's plan, but she
passed away before she could do it. Mr. Foote stated that the rules shouldn't be
interpreted to penalize someone who acquired the lot thru no affirmative action of his
own. Mr. Foote's memo details involuntary acquisition of the lot and he included
references to a few cases. The Board has an option to rule that Mr. Tait's receipt of
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the lot without conscious control of the lot, doesn't destroy the grandfather status. The
non-voluntary acquisition should allow the grandfather status.
A Board Member, Mr. McCarthy, asked Mr. Foote if his client could deny the devise in
the will and have another family member take the title of the will (Technically, yes, but
it's been 9 months since the death of Mrs. Tait so it is not possible).
The Board Member Alternate, Mr. Cohen, stated that in the Berg case, it doesn't
explain a distinction between involuntary or voluntary acquisition. Mr. Cohen asked if
there is a driveway (Yes, there's a pre-existing easement on the lot. There's a third lot
which is an easement). Mr. Cohen asked if the lot has been used occasionally as a
driveway (yes).
Mr. Foote stated there is a 14 ft lot. He is not using the lot, he's using the easement.
If somebody were to buy this, they couldn't use it either.
A Board Member, Mr. Williams, asked if all 3 lots have merged. Ms. Wood stated that
the Zoning Administrator, Mr. George, stated that in his memo, but Mr. Foote
disagrees.
Mr. Foote stated that he is not giving up the easement or the 14 ft lot because they are
combined to make a driveway.
Mr. Clifford stated that according to the common law merger doctrine, you cannot own
an easement across your own land. Once Mr. Tait acquired the land, the easement
ceased to exist.
An audience member, Mr. Ricardo Rullo of 48 Grant Street, asked if there has been
discussion about what would be put there (yes, there was a building permit submitted).
Mr. Ruller asked if they are asking for a variance (no, they are only making a
determination as to the Zoning Administrator's decision).
The Board voted to close the hearing at 8:32pm.
Mr. Clifford stated he will vote to uphold the decision. The merger doctrine operates
automatically and it doesn't matter what the intentions are. Even if they were
grandfathered lots, the idea that the lot has grandfathered is an equitable concept.
The Taits had common control of the parcels. He would be voting to uphold even if
checkerboarding occurred. For the purposes of zoning, these lots are merged.
On a motion by Jeanne K. Kreiger, and seconded by Edward D. McCarthy, the Board
voted 0-5 to grant an ADMINISTRATIVE APPEAL OF 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 December 18,
2017, in reference to 0 Grant Street (Map 48, Lot 121 B) (building permit for a new
single family dwelling). A 4-1 vote was needed, and therefore the Zoning
Administrator's decision was upheld.
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room
March 22, 2018
Board Members Present: Chairwoman, Martha C. Wood, Jeanne K. Krieger, Edward
D. McCarthy, David G. Williams, and Ralph D. Clifford
Alternate Present: Norman P. Cohen
Administrative Staff: David George, Zoning Administrator and Jennifer Gingras,
Administrative Clerk
Other Business:
1) Minutes of Meetings from March 8, 2018 Hearing
On a motion by Ralph D. Clifford, and seconded by Jeanne K. Krieger, the Board
voted 3-0, to approve the minutes of March 8, 2017. Martha C. Wood and David G.
Williams abstained.
On a motion made and seconded, the meeting was adjourned.
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