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HomeMy WebLinkAbout2018-09-27-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 27, 2018 Board Members Present: Chair— Martha C. Wood, Ralph D. Clifford, Jeanne K. Krieger, David G. Williams, and Associate Member William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk Address: 18 Tucker Avenue The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Elevations, and Floor Plans. Also received were five (5) letters of support from abutters. 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 Historical Commission, and 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 135-4.4.1, Table 2 (Schedule of Dimensional Controls) and Article 41 — Revised Definition Half Story (approved at Town Meeting March 8, 2017) to allow a 3-story structure instead of the required 2.5 story structure. The Chair opened the hearing at 7:07 pm. Presenter: Dan Hisel, Hisel Flynn Architects, and Josh Model, property owner Mr. Hisel presented the petition. The applicants are seeking a variance to allow a 3-story structure instead of 2.5 story structure due to the revised definition of a half story in Article 41. They are a family of 4 living in a 2 bedroom house. The attic currently has a walkup stairway and is used as a playroom. They would like to transform the playroom into a master bedroom. There is currently enough headroom to create a bedroom but there isn't enough floor area to fit a bathroom. Article 41 requires that the attic cannot be more than 40% of the 2nd floor, which they will be exceeding. The potential benefits for the home and family make it worth asking for variance. In reference to soil conditions, lot shape, and topography. The existing lot is very small at only 5,400 sq ft and the only open space is used for the children to play. The structure is existing non-conforming. Many of the adjacent houses are located on larger lots and have more opportunites to have an addition. Literal enforcement cannot improve the property. A by- right addition would make the cost more than double than by building the dormers in the attic. An addition in the yard would cost over 250K. Building a dormer on both sides of the ridge will allow the small house to have a master bathroom with full ceilings. There will be no detriment to the public good that would result from granting the variance. A modest home on a modest lot will maintain it's appearance in the neighborhood. Utilities, traffic flow and safety would be unaffected. They are holding the front dormers back from the front fagade, so they are barely visable from the front of the house. They will not be changing the height of the existing structure. Mr. Model stated that they love the neighborhood and would like to keep their family there. A Board Member, Mr. Clifford, asked when the shed on the property was put in (it was there when they purchased the property in 2009). A Board Member, Mr. Williams, stated that he noticed that they are lower than the house to the right, which would result in less impact to neighbor which is positive. Mr. Williams asked what the applicants to explain what the current staircase features and what they would do in case of a fire (the existing staircase meets code except for the railings so they are going to install new railings. There are also egress windows). Mr. Williams asked if they would be okay with a condition requiring an emergency exit ladder (yes). A Board Member, Mr. Kennedy, asked the applicant why the depth of the dormers isn't the same on both sides (they were trying to conform to the less than 50% rule). No questions or concerns from the audience. Ms. Krieger asked if they will be able to maintain the number of trees (Mr. Model responded that it won't affect the number of trees). Mr. Hisel stated that they did received numerous letters of support from abutters. On a motion made and seconded, the Board voted to close the hearing at 7:26 pm. Mr. Clifford stated the standards are higher for a variance. He is a little worried about the hardship argument because it reduces the zoning ordinances to a nullity. Another problem is the increase in density of housing. He appreciates that the dormers aren't visible on the front of the house but thinks the dormers may loom over the neighboring houses. The other issue that we face is the loss of diverse housing. Housing is becoming larger and this is a neighborhood of small lots and houses. Ms. Wood stated that there is no precedence and it doesn't affect the way the Board votes. Each case is individual. Ms. Krieger spoke in favor of the petition. Mr. Kennedy stated that it seems like there is a financial hardship. On a motion by Jeanne K. Krieger, and seconded by Ralph D. Clifford, the Board voted 4-1 to allow the VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.2.2.2 and 135-4.4.1, Table 2 (Schedule of Dimensional Controls) and Article 41 — Revised Definition Half Story (approved at Town Meeting March 8, 2017) to allow a 3-story structure instead of the required 2.5 story structure with the following condition: - An emergency exit ladder must be installed on a 3 d story window. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 27, 2018 Board Members Present: Chair— Martha C. Wood, Jeanne K. Krieger, David G. Williams, and Associate Member William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk Address: 53 Bedford Street The petitioner submitted the following information with the application: Nature and Justification, Plans, and Photographs. Also received was a Radio Frequency Engineer's Report, Radio Frequency Coverage Maps, Emissions Study, a DPH Policy Memo, and a Structural Letter. 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 Department, and Zoning Administrator. The petitioner is requesting a VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 9.2.2.2 and 135-4.1.1, Table 2 (Schedule of Dimensional Controls), and 135-8.3 to allow a 32 ft. antenna instead of the required 25 ft. on the existing 29 ft. utility pole, AND (2) SPECIAL PERMITS in accordance with sections 135-9.4, 135-6.4 and 135-6.4.6.2 to allow a Wireless Communication Facility to have a lesser setback than required. The Chair opened the hearing at 7:37 pm. Presenter: Mr. Edward Pare, Esq., Brown Rudnick and Adam Wolfry, Satallite Communications. Mr. Pare presented the petition. He represents Cingular Wireless (AT&T). They are proposing to put a new technology called small cells. The pole that they are proposing to put the antenna on is on a private property owned by 53 Bedford St, #2, LLC. It is located in a commercial district. The variance hardship is Zayed out in the materials provided to the Board. They are adding a 2 ft antenna to the top of the pole. The installation requires that the antenna wires down to an equipment cabinet that is 32 inches long and 18 inches wide. The electrical meter will have an emergency shut off in place. The foot print is small and meets capacity needs. They are a FCC licensed provider of wireless services and both state and federal services state that a need to fill gap in coverage is a hardship. There were no questions or comments from the Board. There were no questions or comments from the audience. Mr. Pare stated that they asked for a Special Permit for the setback requirement. They are not increasing any non-conformity but typically a wireless facility would require 1 x the height. They are only adding a 2 ft cap which serves as the antenna. On a motion made and seconded, the Board voted to close the hearing at 7:50 pm. On a motion by Jeanne K. Krieger, and seconded by William P. Kennedy, the Board voted 4-0 to allow the VARIANCE in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 9.2.2.2 and 135-4.1.1, Table 2 (Schedule of Dimensional Controls), and 135-8.3 to allow a 32 ft. antenna instead of the required 25 ft. on the existing 29 ft. utility pole, AND (2) SPECIAL PERMITS in accordance with sections 135-9.4, 135-6.4 and 135-6.4.6.2 to allow a Wireless Communication Facility to have a lesser setback than required. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 27, 2018 Board Members Present: Chair— Martha C. Wood, Jeanne K. Krieger, David G. Williams, and Associate Member William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk Address: Webb Street (Map 47, Lot 155A) The petitioner submitted the following information with the application: Nature and Justification and Plot Plan. 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, Conservation Administrator, Engineering Department, Health Department, and Zoning Administrator. The petitioner is requesting an ADMINISTRATIVE APPEAL OF THE BUILDING COMMISSIONER'S DECISION, DATED JULY 13, 2018, in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. The Chair opened the hearing at 7:52 pm. Presenter: James Decoulos, PE, and Mr. Alex Kavlakian Mr. Decoulos presented the petition on behalf of the property owner. They are here to challenge the decision by the Building Commissioner that they are required to apply for a Special Permit under Section 43 of the Zoning Bylaw. The property on Webb St has been used for agricultural purposes since the 19th century. Mr. Decoulos presented aerial photos to the Board, which were entered into the file. The photos show the historical pattern of farming. The Kavlakians have owned the property since 1986 and had a farm permit at that time. They have a certificate from the Town Clerk that was issued in 1998 to register Highland Farm. They let the permit lapse over the years, but this year filed for another business certificate to proceed with farming on the peroperty. The issue is whether they have a right to put fill and material on the property. Their intention is to begin farming apple and grape orchards. If they decide to bring in livestock, they will need permission from the Board of Health and they will need to drill a well eventually. Chapter 43 of the bylaw has a section for regulating the use of materials. In the Lexington Earth and Fill bylaw, there is an exemption provision in Section 9. They meet the exemption provisions in 43-1. They placed % inch crushed stone on the property to support heavy equipment on the property and to get a drill rig in there. The owners don't believe they are being treated fairly. Mr. Kalvakian stated that the family purchased the property in 1986 for farming purposes. The property has been used for farming since the late 1800s. Their intention is to continue the farming, but it hasn't worked out. They did continue to renew the farming business certificate every 4 years and renewed their license from the trucks. Now that their sons are grown, they would like to go into farming. They hired engineers and attorneys to move forward. There was a subdivision plan approved in the 1920s by the Planning Department called the Battlegreen Commons. The frontage that exists on Webb St is a result of this subdivision. Nothing has been done on the property for years and everything is overgrown. They started to clean up the property a few months ago and have received a lot of harrassment from the neighbors. The neighbors had been using the property as their dumping area, and for their own farming. Everytime they visit the property, they get harrassed by the neighbors. Mr. Decoulos stated that they have delineated wetlands and there is an appeal of the Order of Resource Area Delineation pending before Superior Court. It appears as though they are heading towards a denial from the Planning Board, so they are going towards using the property as an agricultural use. Mr. James Kelly, Building Commissioner, stated that his letter is clear as to what has transpired. He believes that the fill was placed unknowingly. The Building Department received a call from a neighbor and they went out there. Mr. Kelly stated he explained the Ch. 43 bylaw to the property owners. In this case, it's not currently an agricultural use, so they aren't exempt. The agricultural use has been abandoned. In addition, it's still unclear as to whether that material would even be allowed under that use because the material is not earth and matter material. The Chair, Ms. Wood, asked the applicants if any grape vines or trees have been planted (no). A Board Member, Mr. Clifford, stated he visited the site. Mr. Clifford asked if the material is gravel (yes). Mr. Clifford asked if there is at least 40 cubic yards of gravel (yes). Mr. Clifford stated that since it's more than 25 cu. yds. of fill, Ch. 43-1 applies. Mr. Clifford asked if there is a building permit for the land (no). Mr. Clifford asked if there is a street approved by planning board (the planning board approved extenision of dunham st. and the street where the gravel is located has been approved). Mr. Clifford asked if the property owners have ever received a special permit from the Board (no). Mr. Clifford asked if the fill is for placement of landscape or for gardening purposes (no); Mr. Clifford asked if it's intended to be a driveway (no). Mr. Clifford stated that for agricultural uses, the Massachusetts farm statute requires that 50% of the land be used for agricultural uses for this to apply. Mr. Clifford asked if they are aware of this (there is no agricultural use being conducted on the property at this time). For agricultural enterprises the material must contain compost, peet, loam, or soil. Mr. Clifford asked if the gravel meets that definition (no). Mr. Clifford stated that paragraph C of Section 43-9 states that if you are putting in fill for agricultural purposes, you have to give notice to the building inspector within 30 days of when the gravel was put down. Mr. Clifford asked if notice was given (no). Mr. Clifford stated that Ch. 43 section 3 applies to a farm. This land's primary purpose is vacant. A Board Member, Mr. Williams stated that he has been aware of this land since 1973 and has no recollection of a farm being in that area and asked how the property owners know that it had been used as a farm (the aerial photos are very clear. There was clearly farming taking place. In 1978 you can see crops in the aerial photos). Mr. Williams asked if the owners applied for an agricultural tax rebate (no). Comments from the audience: Mr. Neil Ruocco of 54 Webb St, spoke in opposition of the fill placement. Mr. Ruocco stated that the neighbors feel intimidated of the property owners. Ms. Meryl Epstein of 42 Webb St, spoke in opposition of the fill placement and stated that she has lived there since 1985 and just wanted to make sure nothing illegal is being done. Ms. Blair Ruocco of 54 Webb St spoke in opposition of the fill placement and stated that she has lived there since 1974 and has never has seen farming. Mr. Andy Friedlich of 22 Young St, stated that he supports the neighbors. The property hasn't been used for farming. Mr. Kavlakian, Jr., 82 Beverly Rd., stated that he and his brother are being intimidated by the neighbors in public and the neighbors have put in cameras to watch them. Another son of Mr. Kavlakian, 82 Beverly Rd, stated that he feels intimidated and can't walk on the property without being harrassed and recorded by the neighbors. Mr. Decoulos stated that the owners have a prospective agricultural use. Mr. Kavlakian stated that he wants to use the property for farming. They need the gravel to make the soil stable. They didn't violate any laws. They are 500 ft from the wetlands. There was minimal farming done before and when they purchased it, they didn't put anything in because it had to be cleared. On a motion made and seconded, the Board voted to close the hearing at 8:49 pm. The Board stated that the agricultural bylaw doesn't apply here and there isn't a current agricultural use. None of the exceptions apply. To have the fill there, a Special Permit from the Board of Appeals is necessary and was not obtained. On a motion by William P. Kennedy, and seconded by Jeanne K. Krieger, the Board voted 5-0 to UPHOLD the BUILDING COMMISSIONER'S DECISION, DATED JULY 13, 2018. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 27, 2018 Board Members Present: Chair— Martha C. Wood, Jeanne K. Krieger, David G. Williams, and Associate Member William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk Other Business: 1) Minutes of Meetings from the September 13, 2018 Hearing On a motion by Jeanne K. Krieger, and seconded by William P. Kennedy, the Board voted 5-0, to approve the minutes of September 13, 2018. On a motion made and seconded, the meeting was adjourned.