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HomeMy WebLinkAbout2018-09-13-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 13, 2018 Board Members Present: Chair— Martha C. Wood, Ralph D. Clifford, Jeanne K. Krieger, David G. Williams, Edward D. McCarthy Alternate Present: William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk and Acting Zoning Administrator Address: 7 Albemarle Ave The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Elevations, and Floor Plans. Also received was a Zoning Board of Appeals decision, dated December 11, 2014 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 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 non-conforming structure. The Chair opened the hearing at 7:08 pm. Presenter: Karen Thompson Ms. Thompson presented the petition. She is looking to re-build the deck that is decaying and build a car port and deck addition. A Board member, Mr. Clifford, stated that he doesn't see a floor plan in the application so it's hard to determine where the steps come down (the steps will come off the deck and turn into the back yard). A Board member, Mr. McCarthy, asked if this is the same application from 2014 (yes, she has had trouble hiring a contractor and didn't realize that the Special Permit expired after 2 years). There were no questions or comments from the audience. There were no further questions or comments from the Board. On a motion made and seconded, the Board voted to close the hearing at 7:13 pm. On a motion by Jeanne K. Krieger, and seconded by Ralph D. Clifford, the Board voted 5-0 to allow the 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 non-conforming structure. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 13, 2018 Board Members Present: Chair— Martha C. Wood, Ralph D. Clifford, Jeanne K. Krieger, David G. Williams, Edward D. McCarthy Alternate Present: William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk and Acting Zoning Administrator Address: 22 Bartlett Ave 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 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 15.1 ft side yard setback instead of the required 20 ft; and a SPECIAL PERMIT in accordance with the Zoning By-Law sections 135-9.4 and 135-8.4.2 to allow modification to a non-conforming structure; and a VARIANCE for sections 135-9.2.2.2 and 135-4.3.5 to allow a structure of 34 ft instead of the required 29.6 ft. The Chair opened the hearing at 7:14 pm. Presenter: Shannon Tang Ms. Tang is proposing to build an addition to her house. She and her 4 children currently live in the 1,000 sq ft house, so they need more space. She doesn't want to move and would rather build an addition. Her house is currently non-conforming because of the front setback and left setback. The lot is a corner lot and is also small. Because of the secondary road, she's required to have a larger setback. The height is restricted because of the setback on the left side of the house, which is very small. The house currently is a cape style and she would like to build a colonial. The neighborhood is a mix of capes and ranches, so the design would fit into the neighborhood It would fit in with her neighborhood. A Board Member, Mr. Clifford, stated that in order for a variance to be granted, there has to be a significant hardship. Mr. Clifford stated that when he inspected, he found the lot to be relatively flat and basically square. Mr. Clifford asked if there are any unusual soil conditions (No, the addition would be built on a slab. In terms of different circumstances, her lot is small and the secondary street causes the setback to be further in. Her house is also non-conforming in terms of it's location. She only has 1 window where her kitchen is and moving the addition further in would cause the window to be blocked). Mr. Clifford asked if there is a financial hardship (Ms. Tang stated that it would be more expensive to move into a larger house). Mr. Clifford asked why the addition can't be placed in a different location (she is trying to preserve the house and is slightly more restricted because it's a corner lot). A Board Member, Ms. Krieger, asked the applicant why she needs a height of 34 ft (the left side porch is 3.3 ft from the border and based on the new bylaw, it restricts the height). A Board Member, Mr. Williams, asked why she choose not to put a basement in, since it would give her more usable space (she was told that if she did a basement instead of a slab, it would be more expensive. She also wouldn't be able to connect the basement because she doesn't think her current basement meets the ceiling height regulations). The Chair, Ms. Wood, stated that if she put in a basement, she would be able to move the addition in a couple of feet. Ms. Wood asked why the stairs can't be moved into the backyard (When the architect did the design, he put the addition as far to the left as he could without blocking the window. Ms. Tang stated she would be okay with the stairs being moved to the back yard). A Board Member, Mr. McCarthy, asked how long she has lived in the house (since 2013). An audience member, Kenneth McCracken of 20 Bartlett Ave, asked where the 15.1 setback would be (on Pearl Street). Mr. McCracken spoke in opposition to the petition. He read a letter that he wrote to the Board, which he submitted to the Clerk that was entered into the file. The Board gave Mr. McCracken a copy of the plot plan. There was a discussion about the applicant withdrawing the variances and coming up with new plans. The applicant requested a withdrawal of the (2) variances and a continuation of the special permit to the November 8, 2018 meeting. On a motion by Ralph D. Clifford, and seconded by Jeanne K. Krieger, the Board voted 5-0 to approve the Request for Withdrawal without Prejudice of the (2) Variances and Request for Continuation to the November 8, 2018 meeting for the Special Permit only. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 13, 2018 Board Members Present: Chair— Martha C. Wood, Ralph D. Clifford, Jeanne K. Krieger, David G. Williams, Edward D. McCarthy Alternate Present: William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk and Acting Zoning Administrator Address: 27 Clarke St The petitioner submitted the following information with the application: Nature and Justification, Plot Plan, Elevations, and Floor Plans. Also received was a Zoning Board of Appeals decision, dated December 11, 2014. 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 an ADMINISTRATIVE APPEAL OF THE BUILDING COMMISSIONER'S DECISION, DATED JUNE 15, 2017 AND ISSUANCE OF PERMIT EXTENSIONS DATED SEPTEMBER 19, 2017 AND MAY 31, 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 7:51 pm. Present: Mr. Mina Makarious and Ms. Christie Zaleski (Town Counsel), Kathryn Colburn (applicant), Mr. Mark Salvati (Attorney for Developer, Speedwagon Partners LLC) Mr. Makarious stated that they are going to break up the hearing into three (3) categories, Standing, Timing and Merit. The Board will need to determine if the petitioner has standing, or the right to ask for this relief. If you are an abutter within 300 ft of the address , or an abutter of an abutter within 300 ft, you have standing. For the issue of timing, the initial issuance of the building permit was June 15, 2017. MGL Ch. 40A, Section 15 states that an appeal must be made within 30 days of adequate notice. If the Board was to reach the merits, there are a few different issues. The decision being appealed from is the final extension of the building permit. There needs to be justifiable cause for the extension. There is also the question on whether the property owner used their building permit in time and the question on whether the Historical Commission demolition delay is a legal reason for the delay. The third question is whether the initial building permit should have been issued at all, because of the change in the zoning bylaws on July 1, 2017. Part of the reason that the Chair is taking this piece by piece is the issues of the merits. If the Board decides the decision was untimely, it is his opinion that the Board doesn't have to go further in the appeal. Ms. Colburn presented the petition. Ms. Colburn is asking the Zoning Board of Appeals to revoke the building permit that was issued for 27 Clarke Street. The proposed house is 3,000 sq. ft larger than what is allowed under the current bylaw. The Historical Commission imposed a demolition delay on June 21, 2017. Ten (10) days later, the zoning amendments became effective. In addition, according to the Lexington Zoning Bylaw Section 8.1.1, any building permit that is not acted on within 6 months, must comply with the current bylaws. The Building Permit was issued on June 15, 2017, the demolition delay was imposed on June 21, 2017, and the Zoning change became effective on July 1, 2017. The contractor was granted extensions of the building permit on September 19, 2017 and June 15, 2018. The Building Commissioner may argue that the extensions were warranted because of the demolition delay. When they applied for the building permit, the developer knew that the home was under the Historical Commission list and subject to the Demolition delay. When the current Building Commissioner granted the extension, he was not aware that the developer had been under the demolition delay, so it was not intentional. The previous and current Building Commissioner violated the zoning bylaws. In reference to standing, the abutters within 300 ft and abutters within 300 ft of abutters have standing. In this case, 13 of the 20 neighbors have that standing. The neighbors brought this appeal based on the Town Manager stating that the neighbors have standing. The next step that's taken is whether the neighbors have been injured by the bylaws such as gross floor area bylaw. In the timliness issue, the developer claimed that the neighbors should have brought this appeal right after the Historical Commission meeting. The neighbors found out at the Historical Commission meeting that the building permit had been issued. At that time however, they knew the developer would have to change his plans after 6 months to comply with the current zoning bylaws according to section 8.1.1 of the zoning bylaw. They also knew that the 1 year demolition delay had been imposed. Although they knew about the building permit, there was no reason to file an appeal at that point. The standard to follow is whether they had adequete notice. Although they found out on June 21, 2017 that the building permit was issued, they didn't find out the permit was in effect until June 7, 2018. At that time, she contacted the Building Commissioner, Jim Kelly, and they spoke about the project. That afternoon, the Assistant Town Manager, Carol Kowalski, read her an e-mail that was sent from Mr. Kelly to the Developer that sounded like it was a stop work order. She didn't find out until June 21, 2018 that the project was moving forward. They filed the appeal within 30 days of June 21, 2018. A Board Member, Mr. Clifford, stated in regards to standing, they have particular standing. One of the standards for if they have standing is if their concern is different from the rest of the community. Their concerns about the massing of the building seem to be similar to the rest of the community (Ms. Colburn responded that it's different because it's so close to the abutters). Mr. Clifford stated that the Board can assume the developer would be able to reduce the basement ceiling height so it would comply and keep the house exactly the same on the outside. This is something they have to consider for standing purposes (Ms. Colburn stated that merely filling in the basement would not be enough as there are also issues with the 3 d floor. The presumption of standing is met with 13 of the 20 neighbors being abutters. They only have to prove injury as it's under the bylaw). Mr. Clifford stated that they need to show injury as it's related to the entire community. Mr. Clifford asked what makes the neighbors special and different as opposed to the rest of Lexington (Ms. Colburn responded that the Town specifically passed limits to keep the character of the neighborhood. The neighbors will now be looking at a 3,000 sq ft house). Mr. Clifford stated that one of the main issues with Lexington zoning is that it doesn't regulate the size of the house on the exterior. It's an indirect way of keeping the size of the house down. The developer has a point that he can build a house and just change the interior to comply with the zoning bylaw. In reference to the timliness, Mr. Clifford asked the applicant why the 30 day clock didn't start on June 21, 2017, when they noticed that a building permit was issued (it wasn't adequate notice. Ms. Colburn stated that it's important to look at purpose of demolition delay bylaw, which is to preserve homes in Lexington. The Building Commissioner was undermining the purpose of the demolition delay bylaw. There is nothing that says that the Building Commissioner can't issue the building permit before the demolition delay expires. The building permit was only good for 6 months though). Mr. Clifford stated that the Historical Commission can't tell the builder they can't tear down the house, they can only slow them down. All other aspects of the construction could start as long as he didn't tear down the house. There's some overlap in issuing the building permit, but there are legitimate reasons of why they would want the building permit before demolition. A Board Member, Ms. Krieger, asked what changed between June 7, 2018 and June 21, 2018 for why the work could go forward (Ms. Colburn stated she doesn't know). Mr. Makarious responded that on June 7, 2018, Ms. Kowalski stated that she and Mr. Kelly had met after Ms. Kowalski spoke with Ms. Colburn and decided it was not a stop work order. Mr. Makarious's legal view is that it did not stop work at that point. The change on June 21 is that the demolitiion delay expired. The e-mail is not a stop work order for the timliness issue. There may have been a misunderstanding with the conversation between Ms. Colburn and Ms. Kowalski. Ms. Colburn stated that she was told by Ms. Kowalski that she believed the e-mail would have an affect of a Stop Work Order. This is why they didn't file an appeal until Mr. Kelly called her and told her they were moving forward. The issue is what they heard verbally at the time. Mr. Clifford asked Town Counsel what the actual language in the statute is (Mr. Makarious responded that any appeal must be taken within 30 days of the date of the order or decision being appealed. Mr. Makarious stated that a government entity stating something verbally doesn't bind the government. The e-mail was what it was regardless of what it was described as. Ms. Colburn stated that while that's true, the issue of whether there is factual notice is still there. Getting information from a Clerk is different than getting information from the Assistant Town Manager. A Board Member, Mr. Williams, asked if there is anything in the bylaw that precludes issuing the building permit before the demoltion delay (Mr. Makarious responded that there is nothing in the bylaw that states that. They are currently working with the Town to make sure that the process makes sense. Mr. Makarious stated he can't speak to as to why Mr. Lonardo, the previous Building Commissioner, had issued the permit at that time). Mr. Williams stated that they have had similar appeals come before the Board and even when they have made the Developer change the gross floor area, the exterior of the house would stay the same. A Board Member, Mr. McCarthy, asked if there is a timeline that the Board could view. Ms. Colburn passed out a timeline to the Board which was entered into the file. Mr. McCarthy stated that it doesn't make sense that a permit would be issued during a demolition delay (Ms. Colburn stated that she was told by the developer that this happens all the time to avoid zoning changes). Ms. Colburn stated that she doesn't think they should fail to support bylaws because a developer can get around the bylaws. They need to enforce the bylaw and the developer should be forced to comply. Mr. Clifford asked when the Zoning Board of Appeals application was filed (July 17, 2018). The Board Member Alternate, Mr. Kennedy, asked if construction can be started before the demolition bylaw ended (Ms. Colburn responded that the builder claimed that some paperwork was done but it doesn't rise to the level of commencing construction). Mr. Kennedy asked what the first thing was that happened on the site (Ms. Colburn stated that the water and sewer lines were capped on June 7, 2018 and then the building was demolished). Mr. Salvati spoke on behalf of Speedwagon, the developer. Mr. Salvati stated that the neighbors learned about the building permit issuance at the Historical Commission meeting on June 21, 2017. Case law would show that the 30 day appeal period should have started then. Failure to do so deprives the board of jurisdiction. In addition, no evidence was presented that the additional square footage would cause more traffic, noise, or be significantly detrimental to the neighborhood. They are complaining of the size of the house but his client could build the exact same house that looks exactly the same, except for a reduction of space internally. There is no injury if they can't prove that what he's building would be a detriment to the neighborhood. The intent might have been to limit the massing but it's not the effect it has. In regards to merits, one of the neighbors has a house that's 8,400 sq ft. The footprint is over 4,000 sq ft. Mr. Salvati stated that there isn't a neighborhood standard when the house next door is that large, the other house is 1,000 sq ft and there's a condo complex across the street. Significant hardships would be if there was significant flooding, blocked sunlight, etc. The complaint about the building mass is something that anybody in the Town could complain about. The Historical Commission admitted there's no jurisdiction at this point and because they have no jurisdiction, this has nothing to do with the demolition delay. Mr. Williams asked if there has been any attempt between the builders and the neighbors to come together for a resolution (Mr. Salvati responded that there was a meeting between the neighbors and the developer and a discussion of reducing the house but he didn't attend the meeting. Ms. Colburn stated that they did meet with the developer and he offered to reduce the house by 500 sq ft by pushing in the setbacks about a foot). Mr. Clifford asked if there was any construction in June of 2017 (no). Mr. Clifford asked if there was construction after June 21, 2017 (Ms. Colburn responded that the utilities were capped in June 2018). Questions and Comments from the audience in regards to standing: An audience member, Ms. Susann Luperfoy of 31 Clarke Street, asked if there has to be significant loss between the structure that was there and the structure proposed in order to have standing (Mr. Makarious responded that if you are the person aggreived, the answer is yes. Your standing is based on the decision you are appealing from. Mr. Clifford responded that it has to be something significant and established based on proof and evidence. An audience member, Mr. William Cotter of 36 Forest Street, stated that he is an abutter and has standing. Ms. Colburn doesn't respresent him as a neighbor. There had been e-mails going out a year ago trying to drum up the neighbors and the direct abutters have had valid conversations to have with the developer. Mr. Cotter stated that the previous house on that lot was in delapitated condition and it's in the collective interest that the property gets developed well. An audience member, Mr. Lei Shu of 34 Forest Street, spoke in opposition to the project. He is a direct abutter and the house could increase traffic with the amount of bedrooms, and his bedroom windows will be blocked by the proposed house. An audience member, Mr. David Duff of 31 Clarke Street, stated that he is a direct abutter, and spoke in opposition to the project stated that the issue of whether the builder could build a larger building to challenge the standing is ridiculous. An audience member, Mr. Gaurav Chhabra of 7 Forest Street, spoke in opposition to the project. He had to go thru the Historical Commission for approval of his home and most of the neighbors have a lot of respect for their homes. An audience member, Mr. Kevin McDonnell of 25 Forest Street, people are generally opposed to development in the neighborhood and it feels that the neighborhood has been aggreived. An audience member, Ms. Upasna Chhabra of 7 Forest Street, spoke in opposition to the project. She stated that they want the builder to be treated the same as everyone else and be subjected to same bylaws. Questions and Comments from the audience in regards to timliness: An audience member, Mr. Kevin McDonnell of 25 Forest Street, spoke in opposition to the project. He attended the Historical Commission meeting and at that point if the neighbors assumed that the building permit had been going forward, they would have been given notice (The Board responded that there is no requirement for notice of a building permit. If there was a special permit or variance requested, it would have required notice to the abutters because it would have gone thru the Board of Appeals). An audience member, Ms. Susann Luperfoy of 31 Clarke Street, stated that they heard about the building permit being issued at the Historical Commission meeting in June of 2017 because it was an off hand comment. People were living in the house until June 2018. The previous owners had told her that they were planning to put the house on the market in the Spring of 2018. The neighbors were led to believe that it was not going to be demoed and re-built, they believed it would be put on the market. An audience member, Mr. David Duff of 31 Clarke Street, stated that the builder knew the bylaws were going to be passed. An extension of the building permit shouldn't have been granted more than 6 months. Questions and Comments from the audience in regards to merit: An audience member, Ms. Bebe Fallick of 4 Diehl Road, stated that she was on the Historical Commission when the Demolition Delay Bylaw was written. Ms. Fallick asked that Board what the process for demolition is (Mr. Makarious responded that there is a form that needs to be completed with signatures for demolition. There is nothing that specifically prevents an applicant from getting the building portion of their permit before receiving a demolition permit. The issue before the Board is whether the issuance by the Historical Commission of the demolition delay was sufficient cause for the Building Commissioner to issue the extension). An audience member, Mr. Peter Enrich of 35 Clarke Street, stated that what has happened undermines the integrity of the town decision making processes. State law regulates zoning process to regulate rights of property owners. There is nothing in the Town bylaws to allow more than a year after a loop hole was closed to act on the loop hole. The developer achieved this by witholding information and misrepresenting repeatedly. An audience member, Ms. Upasna Chhabra of 7 Forest Street, stated that when she renovated their home, it was clearly communicated that without final Historical Commission approval, they weren't going to get a building permit. The builder's intent in this case was to bypass and violate the process in place. Mr. Williams stated that this case is different because the Historical Commission isn't involved in the construction, only the demolition. An audience member, Mr. Leonard Heimrich of 12 Bellflower Street, stated that he worked on the Planning Committee to develop the new FAR bylaw. On a previous appeal, the Board had stood on enforcing the new FAR and had the builder reduce the basement and 3 d floor after the house was built. In this case, it's different. The house is demolished and if the Board wants to back up the intent of the FAR, there is no reason to enforce the new bylaw. Ms. Wood stated that this is an administrative appeal of Building Commissioner's decision to grant the permit and to extend the time. An audience member, Ms. Susann Luperfoy of 31 Clarke Street, stated that the neighbors don't know where they can make themselves heard about this but thinks that the character of the neighborhood will be lost. An audience member, Ms. Bebe Fallick of 4 Diehl Road, stated that when the Demolition Delay Bylaw was passed in Town Meeting, they felt it was something that Lexington needed. It's an issue that the Building Permit can be issued before demolition and they are aggreived that there have been attempts to circumvent what has been achieved. An audience member, Ms. Diane Pursley of 21 Turning Mill Road, stated that she is a member of the Historical Commission and the Commission has discussed this matter at several meetings and is concerned with the building permit being issued before the demolition permit. The Building Commissioner, Mr. James Kelly, stated that part of his job is to prevent him from having to deal with this. In general, he appreciates the issue and this is the forum to come to with concerns. He did try to communicate with the neighborhood to share what he knew. Mr. McCarthy asked Mr. Kelly if notice is sent to the abutters when a building permit is extended (no). Mr. McCarthy asked how an abutter would know if there was a building permit issued (they would call the Building Department). Mr. Williams asked Mr. Kelly if thinks there could be a resolution between the neighbors and the builder (Mr. Kelly responded that this process is the solution. This is the opportunity for the neighbors to voice their concern and file their appeal. It's always important to talk to your neighbors about what's going on). Ms. Colburn stated she would like to thank the Board. If the house was built as proposed, it would have an effect on their view, privacy, and value of their property. The neighborhood is not against the developemnt, they just want the bylaw to be followed. This building permit was issued while it was still under the Historical Commission. We need to enforce the laws that we have. She is requesting that the Board reverses the decision of the Building Commissioner to grant and renew the building permit. On a motion made and seconded, the Board voted to close the hearing at 10:13 pm. The Board discussed whether the petitioners have standing in order to bring the appeal forward. On a Motion by Edward D. McCarthy and seconded by Jeanne K. Krieger, the Board voted 5-0 in favor that the petitioners have standing to bring the appeal forward. Ms. Wood stated that the Board will now discuss if the petition was filed in a timely matter. Mr. Clifford stated that the statute requires the appeal to be 30 days from the date of the order or decision. He believes that date was June 15, 2017 so the 30 day appeal period has expired. In his mind, that was June 15, 2017 so the 30 day period expired. Several of the neighbors indicated that they knew that the building permit was issued. Ms. Krieger stated she thinks that the June 2018 date was the starting date in which the neighbors knew the building permit was going forward. Mr. McCarthy stated he agrees with Ms. Krieger. Mr. Williams stated that he agrees with Mr. Clifford. On a Motion by Ralph D. Clifford and seconded by Jeanne K. Krieger, the Board voted 2-3 (Ralph D. Clifford, David G. Williams, and Martha C. Wood in opposition) that the petitioners did not meet the timing requirements to bring the appeal forward. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room September 13, 2018 Board Members Present: Chair— Martha C. Wood, Ralph D. Clifford, Jeanne K. Krieger, David G. Williams, Edward D. McCarthy Alternate Present: William P. Kennedy Administrative Staff: Jennifer Gingras, Administrative Clerk and Acting Zoning Administrator Other Business: 1) Minutes of Meetings from the August 23, 2018 Hearing On a motion by Jeanne K. Krieger, and seconded by Ralph D. Clifford, the Board voted 5-0, to approve the minutes of August 23, 2018. On a motion made and seconded, the meeting was adjourned.