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HomeMy WebLinkAbout2019-01-24-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 24, 2019 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: James Osten Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 56 Webb Street POSTPONED FROM 12/13/18 HEARING The petitioner is requesting a SPECIAL PERMIT in accordance with the Earth Fill and Removal Bylaw, Chapter 43 of the Code of the Town of Lexington, to allow a maximum of 100 cubic yards of fill to be brought to the property. Applicant: Angie Kavlakian Applicant requested a withdrawal without prejudice, dated January 23, 2019. There were no questions from the Board. On a motion by, Jeanne K. Krieger and seconded by, Martha C. Wood, the Board voted 5-0 to allow the withdrawal without prejudice for a SPECIAL PERMIT in accordance with the Earth Fill and Removal Bylaw, Chapter 43 of the Code of the Town of Lexington, to allow a maximum of 100 cubic yards of fill to be brought to the property. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 24, 2019 Board Members: Acting Chair—Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Member: James Osten Associate Member: Beth Masterman Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 251 Waltham Street 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 135-6.4 to allow a wireless communications facility. Applicant: Daniel D. Klasnick, O/B/O Cellco Partnership, D/B/A Verizon Wireless. CONTINUED FROM JANUARY 10, 2018, HEARING Ralph D. Clifford recused himself from the discussion and decision for 251 Waltham Street. Acting chair, Jeanne K. Krieger raised questions of concern from the previous meeting on January 10, 2019. Ben Moroze, Communications Advisory Committee, was introduced to the Board. Daniel Klasnick, Attorney representing Verizon Wireless, stated that in the prior meeting he described facility and requirements. The Board had requested an engineer attend this meeting to further explain the need of the tower. The Acting Chair, Jeanne K. Krieger questioned whether Verizon Wireless has justified the need for the new cell tower. (Ben Moroze clarified his role as the Communications Advisory Committee is to make sure the application is complete and within the Zoning by-laws. He also explained that the Justification data is proprietary and stated the committee does not have a role in justifying that data). Ms. Krieger asked if the Verizon engineer could comment on the two towers. (Engineer for Verizon Wireless, Keith Valente stated that the towers are intend to serve two purposes. He further explained the intent of the small towers and how they are working with each other to handle demands on the network. The high school is putting high demand on the Verizon Wireless system. The small towers are not intended to cover large areas and only intended to cover limited areas where there is higher usage). A Board Member, Martha C. Wood asked if in the future we will see more towers in areas where there are more people who have cell phones (Keith Valente confirmed that as usage continues to grow they will need more towers). A Board Member Associate, Beth Masterman asked what happens when capacity is reached, and stated right now the people at the high school are borrowing from the tower on Baskin Road. She wondered how it works that the towers communicate that the signal should switch to another tower. (Keith Valente responded that as you move throughout the area you get a connection, theirs overhead messaging and the facility chooses the best server. LTE is a wide band channel that is shared amongst all the users. Therefore the tower will be able to better serve the high school) Ms. Masterman clarified that the signal goes from the towers to the customers and the towers do not communicate with each other (Keith Valente responded by explaining that the sights go back to a central location but the small towers do not talk to each other). Alternate Member, James Osten wondered if the towers were going to be able to be modified to eventually be 5G towers (Keith Valente stated 4G is what is proposed and that he did not know if they could be modified). James Osten asked if the communications license offers that band width and if it doesn't allow you to go above or below it (Keith Valente responded that was correct). A board member, David G. Williams found it odd the tower on Baskin Road was in a residential area and wondered why it wasn't placed in a different location like on the high school property (Keith Valente does not recall as to why it was located on Baskin Road and says he cannot comment. He continued to explain why some locations are chosen due to usage rates increasing and choosing a location becomes less flexible). Ms. Krieger explained it was not appropriate to discuss the location of the tower on Baskin road because it sounds like the towers do not communicate. A Board member, Norman P. Cohen inquired about how many health complaints they receive (Mr. Klasnick stated that Verizon Wirelesses is in compliance with FCC licensing and as far as complaints they can't comment). Mr. Cohen sked if they had jurisdiction over this (Ben Emerson stated that as long as they were within the By-laws they did not have jurisdiction). An abutter, Mr. Derek White at 4 Baskin Road, questioned how much range the towers have and does the existing tower cover the entire high school. He also asked Keith Valente to explain how the towers interfere with each other (Keith Valente responded by explaining the range is going to vary because of ground cover. The purposed sight is to be a 360 degree angle and the Baskin road tower is angled in one direction. Therefore the Baskin Road facility is not going to penetrate to the Northern side of the high school, explaining the reasoning of the second tower creating a two pronged approach. Interference is a huge concern when you have a shared band width. So with that design it is important to compartmentalize each area and too many can create a poorly performing network. All sights will have some degree of overlap so you can move around. The two facilities are not intended to cover the same area). Mr. White asked for clarification that the Baskin road tower is currently maxed out at capacity and that is why they need the tower at the high school. (Keith Valente explained that he did not have access to that information). Mr. White asked what is a safe distance to be from the antenna (Keith Valente said it's not an analysis he has done and made a judgment guess of five feet). An abutter and partner of Mr. Derrick White, Ms. Mary White also located at 4 Baskin Road, presented before the Board. Ms. White stated that initially Verizon Wireless stated the towers do not interact with each other. She clarified that there is an interaction between each tower as the usage between the two goes up and down. (Keith Valente responded by saying no the frequency will not change, the facilities operate on the same channel). Ms. White asked again if there was interaction between the two towers (Keith Valente responded no). Ms. White asked Keith Valente if he would want two towers within fifteen feet of his home. (Mr. Klasnick stepped in to state they are there for the particular proposal and applicants view point on proximity to their private residence is something that is necessary for the Board to make its determination). Ms. White asked is it possible for Verizon Wireless to provide a graph of frequency from the level of the home to the pole to better understand the level of current exposure. (Jeanne K. Krieger stated this is was not relevant) Ms. White stated the tower on their location is omitted from the application for the Zoning Board and asked if they knew this (Ben Emerson responded that by his assumption Verizon Wireless had that proprietary data) Ms. White clarified that the application did not have the tower on it. She then continued to discuss the health issues she has been having sense the tower was put up in her yard. She stated she didn't understand why Verizon Wireless needs a second tower and stated her and her husband are willing to help pay to move the tower out of their yard. She was upset with the way it was done and asked if there was anything they could do to help her with this. (Jeanne K. Krieger stated the topic of this hearing is for the position of the tower on the high school property. She is glad they had the opportunity to voice their concerns but the placement of the tower on Baskin Road is not critical to this meeting. She also stated the decision they have to make is whether or not the applicant is in accordance with the zoning regulations). Beth Masterman asked if they have to prove if there is a need for another tower before they go forward with the plans (Mr. Klasnick stated FCC explained it was sufficient). Beth Masterman then stated that the tower on Baskin road was built to service the school property. She asked why that was not considered (Keith Valente responded that Verizon Wireless designs their network as a network. All of the towers are considered). Mr. White said Keith Valente stated the requirements to have more density. No discussion as to why they are not covering the same area. He explained again the application did not have the tower on it but it was on the map. Mr. White insisted on showing the Board the map. (Beth Masterman and Jeanne K. Krieger agreed it is on the map which means it is listed and they did not need to see the map because they had previously seen it). On a motion made and seconded, the Board voted to close the hearing at 7:45 pm. Jeanne K. Krieger stated she felt the tower was in accordance. Martha C. Wood explained health issues are not under Zoning Board authority. Norman P. Cohen stated that the need for capacity has been proven and wondered if Verizon would agree to monitor the need for capacity. He had heard the residents at 4 Baskin Road tried to reach Verizon Wireless and were not contacted back, and wondered if they can put in a condition for Verizon Wireless to monitor these issues when someone calls. Mr. Klasnick showed concern about vagueness with the condition. He also explained Verizon Wireless worked extensively with the residents at 4 Baskin Road through the public health official, Jerry Cody. Ms. White explained Verizon Wireless did not cooperate through this process and she did not hear back from Robert Bois when she tried to contact him. On a motion by Beth Masterman and seconded by Martha C. Wood the Board voted 5-0 to approve the request for a SPECIAL PERMIT in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-9.4 and 135-6.4 to allow a wireless communications facility. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 24, 2019 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: James Osten Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 11 Fulton Road The petitioner is requesting an APPEAL OF THE BUILDING COMMISSIONER'S ISSUANCE OF A BUILDING PERMIT DATED NOVEMBER 26, 2018, in accordance with the Zoning By- Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. On December 21, 2018, the Applicants filed the Application for Hearing, the Nature and Justification, and the Plot Plan ("Appeal"). On January 23, 2019, Attorney Mark Salvati filed a Memorandum in Opposition of Neighbor's Appeal, on behalf of Speedwagon Partners, LLC ("Permitee"). At the hearing, Ms. Warren submitted: A PowerPoint presentation with 7 pages and 15 signatures in support of the appeal of the building permit. At the hearing, Jason Brickman submitted: Photos of current retaining walls/walls on property in the Town of Lexington. 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, Zoning Administrator and Engineering Department. Presenter: Mark Lanza on behalf of Elizabeth Warren and Nicholas Warren. Also present: Attorney Mark Salvati and Builder Jason Brickman on behalf of Speedwagon Builders, and James Kelly, Building Commissioner. The hearing opened at 7:53 pm Chair, Ralph D. Clifford made clear to the audience that this ZBA Meeting was zoning only. Trees and water ways were not to be discussed in this hearing. David G. Williams announced 10 years ago he had been a realtor involved with the purchase of a home from this builder but has not been in contact with him for many years, he will not be recusing himself. Attorney representing Mrs. and Mr. Warren, Mark Lanza presented to the Board. Mr. Lanza explained that the retaining wall runs on the common lot line. The issues are the height of the retaining wall and the set back. The Town of Lexington allows structures within the side yard but the requirement is to be fifteen feet from the side yard. The retaining wall is less than fifteen feet from the lot line. He explained what a retaining wall is. He then stated that the builder raised the natural grade of the land and then explained the Town of Lexington By-laws. There is vagueness in the By-laws explaining fences or walls as if they are the same. Walls are not mentioned in the yard section of By-laws. The retaining wall ranges in height to six and a half feet tall to three feet ten inches tall. There is also an issue of the fence. Plans show a six foot fence on a six foot wall. Those are the zoning problems. What Mr. and Ms. Warren want is zoning by-laws to be enforced. They want the wall moved and proper grading to be done. Elizabeth Warren, 9 Fulton Road submitted additional paperwork to the Board and presented a slideshow. Ms. Warren explained her neighborhood and the loose zoning by-laws that need to be tightened. She explained the grading and discussed pictures that were shown. The wall was not put in place to hold fill. Her interactions with town employees were not pleasant. She texted Jim Kelly, Building Commissioner, multiple times and did not hear back. She eventually had a meeting at her home on October 26 and had been made clear that the retaining wall had been built without a permit. She further explained it has been difficult to contact Town employees and to obtain public records, which she seems to be missing some of those documents. The data is inconsistent. There was no permit for the back porch. Her issues are with the view and the material difference of a fence. She stated more than ten percent of her neighborhood is under construction. She restated she wants the removal of the wall and the land to be regraded. Norman P. Cohen clarified with Jennifer Gingras, the Zoning Administrator, about what was originally permitted (Jennifer Gingras explained what to do if a builder wants to change their plans). Norman P. Cohen asked if it is true that Town staff has gone out to measure and found the wall is not more than 6 feet (Jennifer Gingras confirmed). Ralph D. Clifford asked for the counsel's understanding of what height was. (Mark Lanza responded by discussing the average natural grade of the site and explained height). Attorney, Mark Salvati for the builder Jason Brickman presented to the board. Mark Salvati stated the wall does in fact meet requirements. The term wall means all walls including retaining walls at or near lot line. Photos of retaining walls from around Lexington were submitted to the Board. Mark Salvati explained that building plans can change from the original permit. The original plan was a four foot exposed wall which does not require a permit. He clarified the retaining wall does not run along the common lot line. The retaining wall starts at three feet from the lot line then runs six feet away from lot line. The retaining wall is no higher than five foot seven inches and they have no intent to put a fence on top of the retaining wall. Mr. Brickman clarified the client wants to put a fence in the backyard. He was under the incorrect assumptions and that is why the permit was late. A Board member, Jeanne K. Krieger inquired about the location of the fence and why the client needs a fence (Mr. Brickman stated the client has small children so they would like the fence for privacy and as a safety concern). Jeanne K. Krieger pointed out that the proposed fence runs along the side yard (Mr. Brickman responded yes the plans show a fence along all sides. Which has been changed to just the backyard). Norman P. Cohen asked if the wall wasn't there would all that dirt slide down into the neighboring yard (Mark Salvati responded yes). Norman P. Cohen voiced his concern about the opposing measurement of the retaining walls heights (Mr. Brickman stated the surveyor has measured it as five foot seven inches and so has the town). Building Inspector, Jim Kelly presented to the Board He stated they deal with a lot of zoning and permits every day and it gets complicated. The By- law allows a wall to be on the property line as long as it's not over six feet tall. Zoning purposes are to protect the neighborhood. The height is measured by the grade before work has begun. If you want to put up a fence you are measuring that from the ground. He also stated that it was measured by the land surveyor. If you have a six foot wall it would not be permitted to put a six foot fence on top of it. Mr. Kelly stated that as soon as he saw that he spoke with Mark Lanza. The intent of that landscaping plan was not to permit it. An audience member, Erik Brown 14 Douglas road, voiced his concern about the fence being built on top of the retaining wall. He asked if the wall is allowed to stay, at what point are you allowed to build a fence on top of the wall (Jim Kelly explained the higher a fence or wall is built the further off the property line it has to be. You would have to be that number of feet from the property line). Mr. Brown stated he thought he understood that within the setback which is fifteen feet, six feet is the maximum for a fence or a wall. If that's correct now they are at six feet and you move it back another four feet so you are ten feet total. He asked if then you can be ten feet even though you're in the fifteen yard setback. He further explained that suggests if you're fifteen feet back from the property line you can be fifteen feet high (Jennifer Gingras explained the By-law states that if a wall or a fence are higher that six feet in height it must be set back at least the equivalent of its height. If you have a seven foot tall fence or wall lit has to be set back seven feet from the property line). Mr. Brown asked again if the By-law states that if you are fifteen feet off the property line you can be fifteen feet tall (Jenifer Gingras stated yes in section 4.3.1 it states if it's greater than six feet in height it has to be setback equivalent the distance of its height). Mr. Brown clarified that if they have a six foot wall that's four feet back and they put a fence on top of the wall the fence has to be at a forty five degree angle. Ralph D. Clifford clarified that was not correct and if it's a 12 foot wall it needs to be 12 feet away from the property line. Mr. Brown then requested a condition on the wall (Ralph D. Clifford responded explaining a condition cannot be set due to it not a special permit). An audience member, Bob Creech 2 Grimes road, stated the builder brought in hundreds of yards of fill in, it's not a retaining wall it's a wall. He asked as a wall shouldn't it be set back (Ralph D. Clifford stated the ordinance clearly allows walls within the setback). An audience member, Jennifer Ray 6 Fulton road, asked why the retaining wall had to be built if there were no issues in the past (Mr. Brickman explained the architect designed it that way because the client wanted a level yard). Mrs. Ray asked if they needed the retaining wall because they added the loam. (Mr. Brickman stated it's all within town by laws). Mark Salvati stated the fill is irrelevant in the sense that they had a legal right to build that way. An audience member, Kenneth hadith 14 Cooke Road, stated the survey height of the state is 221 feet and asked what those plans reference the hundred foot to. (Mr. Brickman answered that it's from the bench mark. He stated it was a question that was discussed with Elizabeth Warren when she thought the building height was too tall. The 200 marks have nothing to do with one another). Ms. Warren stated she does not recall the conversation and asked Mr. Brickman not to speak for her. Mr. Hadith asked why the average level plan is around 200 feet (Ralph D. Clifford explained the measurements are the same). Mr. Hadith continued on to discuss the trees (Jim Kelly responded that they rely on the tree warden and explained the tree warden is responsible for calculating and ensuing some number of trees are to be put back). An audience member, Richard Wagner 11 Douglas road, stated his concern about hearing that permits come in after work has been done. This is something he hears often (David G. Williams explained permits are always pulled and Mr. Wagner's illusion is incorrect). Ralph D. Clifford added that years ago he built his own home and yes they had permits but as you build there are always minor changes. Those changes are cleared with the building department but can be cleared orally because they are such minor changes. He stated plans cannot be exact and minor changes can happen. Jim Kelly stated plans changes are significant and the goal is to make the building department aware so we can ensure compliance with building and zoning code. If you do start work without a permit there will be an additional fee charge, so please do not start work before pulling a permit. Ms. Warren asked what a triple fee violation is and why this wall applies (Jim Kelly explained that if the builder comes to get a permit after the work has already begin that builder will receive a fee that is triple the fee they would have paid if they got the permit on time). Ms. Warren asked how the violation was recognized (Jim Kelly said it was a penalty). An audience member, Kate Colburn 49 Forest Street, talked on revisions on 27 Clarke Street without the commissioner approving those changes. An audience member, Pamela Lyons 51 Grand Street, asked what the penalty cost is (Jim Kelly stated whatever the cost of the construction is, twelve dollars per thousand, that cost would be tripled. Ms. Lyons inquired about the cost of construction on the house (Mr. Brickman stated the construction is ongoing so there is no final cost currently). An audience member, Linda Farkas Wagner 11 Douglas Road, pleaded the Board to drive by and look at the property before making their decision (Ralph D. Clifford reassured Ms. Wagner that all the Board members have already done so). An audience member, Erik Brown 14 Douglas Road, asked if every project submits an as built survey afterwards to see if it's in compliance (Ralph D. Clifford responded yes). An audience member, David Ernst 1 Cook Road, stated that from a citizens view point it appears that the town did not follow proper permitting process. He urged the Board to take a hard look at the by-law and decisions. An audience member, Bob Creech at 2 Grimes Road, stated that he expects the builders to follow the rules. An audience member, Jennifer Ray 6 Fulton Road, again urged the Board to take a hard look. She also encouraged the Board to set precedent with builders, hold builders accountable, or else builders will continue to build without permits. An audience member, Lawrence Schwartz 7 Fulton Road, is not satisfied with how things were handled by the Town. An audience member, Pamela Lyons at 51 Grant Street, said a penalty is not a penalty for a home of that price. Walls and retaining walls are two different things. The building permit was improperly issued (Mark Salvati stated a wall is a wall. The issue is with the zoning code. They got a permit when they were supposed to. The argument was to change the code). Mark Lanza restated he had letters from an engineer saying the wall was six feet five inches. He repeats that the plans were contradicting with the wall and fence. On a motion made and seconded, the Board voted to close the hearing at 9:23 pm. Ralph D. Clifford stated to remember their limited role to determine whether or not this building permit was validly issued or not. Norman P. Cohen noted there is a Planning Board in this Town and that the people don't come to those meetings until there is something right in your own neighborhood. An ambiguity has been noted. The town measured it at 5.7 ft. He then states that if the wall is taken down he worries about 9 Fulton Road, that dirt is going to roll down into the neighboring yard. Jeanne K. Krieger stated they are entitled to put a wall or fence as long as it's less than six feet. Martha C. Wood added the property was filled. So they don't know the original natural grade, but as it stands its legal. James Osten shared that observing stone walls have been built in his neighborhood, with fill. He was not notified of this because it was permissible. Ralph D. Clifford agreed there is some ambiguity in the by-law with the use of the word wall and definition of height. He then read the definition of wall from a Merriam Webster Dictionary, "A high thick masonry structure, a structure that serves to hold back earth". He then explained that there are different types of walls. He continued on to read the definition for the word height from a Merriam Webster Dictionary "The part that rises or extends upward". The dictionary uses the example of a tree, when you are measuring the height of a tree are you going to dig up under the roots or are you going to start from where the roots are at the top of the earth and measure up. You are going to start at the earth and measure up. On a Motion by Ralph D. Clifford and seconded by Norman P. Cohen, the Board voted 5-0 to interpret that a retaining wall is considered a wall within the meaning of§ 135-4.3.1.1 of the Zoning By-Law (Chapter 135 of the Code of Lexington), and the height of a wall is measured from the natural grade. On a Motion by Marth C. Wood and seconded by Jeanne K. Krieger, the Board voted 5- 0 to UPHOLD the BUILDING COMMISSIONER'S ISSUANCE OF A BUILDING PERMIT DATED NOVEMBER 26, 2018. As a result, the Applicant's appeal was denied. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 10, 2019 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Norman P. Cohen Alternate Sitting: James Osten Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Other Business: 1) Minutes of Meeting from January 10, 2019 Hearing On a motion by Jeanne K. Krieger and seconded by Norman P. Cohen, the Board voted 5-0 in favor of approving the meeting minutes from the January 10, 2019 hearing. On a motion made and seconded, the Board voted to adjourn.