Loading...
HomeMy WebLinkAbout2019-04-11-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room April 11, 2019 Board Members: Chair— Ralph D. Clifford, Norman P. Cohen, Martha C. Wood, David G. Williams, Jeanne K. Krieger Alternate Sitting: Nyles N. Barnert Administrative Staff: Jim Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 62 Farmcrest Ave 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 135-6.7.7 to allow an accessory structure apartment. The petitioner submitted the following information with the application: Nature and justification, plans, plot plan, and elevations. 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 and Engineering Department. Presenter: William Cates The hearing opened at 7:00 PM Mr. Cates stated they are replacing a small 1926 garage that does not meet the needs they currently have. They plan to replace that with a 20 by 20 one bedroom, one bathroom accessory unit with kitchenette and TV area. It is intended to have full height basement. A Board Member, Martha C. Wood, asked what the structures use would be for. (Mr. Cates explained his wife's parents live in town in an inappropriate house for aging people. The proposed accessory apartment will have full access for wheelchair and elderly housing with interest of wife's parents to live there). Ms. Wood questioned the placement of the bedroom (Mr. Cates confirmed it was on the second floor but there would be plenty of space of the first floor if the parents were unable to go up to the second floor) A Board Member, Jeanne K. Krieger, questioned the parking situation (Mr. Cates explained the driveway holds three cars. They have contemplated building a permeable parking spot off to the side. He stated they can get by with one car if needed). There was discussion on whether the plans showed a basement and if there would be one. A Board Member, David G. Williams, expressed his concern for the parking and appearance. There was discussion if a condition could be made on parking. A Board Member, Norman P. Cohen, asked about parking location and asked if his neighbors approved of this (Mr. Cates explained their thinking of the parking situation and stated he did walk around to the neighbors houses and got generally positive feedback). Mr. Williams asked if he planned to finish the basement (Mr. Cates responded no). Basement access was clarified on the plans. Chair, Ralph D. Clifford, stated under Bylaw 6.7.4, the accessory apartment still needs to look like the type of accessory apartments that are typical in Lexington. He then asked Mr. Cates if he would be open to a redesign (Mr. Cates agreed). Associate Board Member, Nyles N. Barnert stated that the plans call it a guest house and wondered if it would be associated with an Airbnb (Mr. Cates responded they had no plans to rent it. Primary intention is pre-planning for parents to live there. It is possible to rent it though). Mr. Clifford asked for clarification if it would be a long term rental or more of an Airbnb (Mr. Cates Responded more of an Airbnb). Mr. Clifford stated this is not something the Board has encouraged in the past. The purpose of the Bylaw is to get additional housing in the Town. Mr. Clifford asked if it was something he will be willing to forego (Mr. Cates responded he didn't feel that was fair). An audience member, Stephania Beduschi, 64 Farmcrest Avenue, stated her house is on the driveway on right side and asked how it is going to get heated and cooled and if it be facing her house (Mr. Cates responded they will use a mini-split ductless system and they would locate it where it won't be a problem). Ms. Beduschi stated her bedrooms face the driveway so any noise coming from that side would impact her everyday life. Having A/C by the bedrooms would not be optimal. She expressed her concern for the proposed project and that it will impact her everyday life. She also has great concern on her property value because it's so close to her property line. This will lead to dramatic increase in activity. The past couple of years some neighbors have noticed an increase of activity at their house specifically of people in cars described as unfamiliar. She assumed it was family and friends, however, they found out the petitioners had been renting the house as an Airbnb on and off for 2 years. She felt neighbors should be informed out of courtesy. This could have a possible impact on safety and security. She requests the special permit to be denied. An audience member, John Spilewski, 63 Farmcrest Avenue, asked if there is there a percentage you can go up to that building can take on a lot and what is the distance building have to be on a lot line (Mr. Clifford stated it is compliant with all zoning by laws. It is 7 '/2 feet from the side yard). Mr. Williams again stated his concern for parking and he stated he would be very upset to find out if it is being used as an Airbnb. Mr. Cates stated they rented their place when they were on vacation. It has gone smoothly but they should have mentioned it to their neighbors. He also mentioned the proposed plan is not to be built for Air bnb, the intention was for his inlaws. He then commented on the disruption of sound to the neighbors and that they are not locked into the proposed location. Ms. Wood stated if he moves the location of the structure, the Board needs to know. Mr. Williams stated he is willing to have a condition that it will be used for the inlaws. He would not vote for it unless condition it will not be rented out. Ms. Krieger stated she would not prohibit long term rental but she would want a condition to prohibit short term rental. She also expressed concern for parking and suggested a condition on parking. There was further discussion on the parking. Ms. Beduschi asked if the apartment can be rented out and that Town Hall told her it's not allowed to be rented out (The Building Commissioner responded if an accessory apartment exists it can be rented). Mr. Cates stated he understood it can be rented for two years. The Building Commissioner clarified he didn't believe there is a definition of short term and long term but an accessory apartment can be rented out, many are built for that purpose. Ms. Beduschi stated they are changing the laws because they want to tax it and laws are going to change and she is worried she will end up with a rental in her backyard. Ms. Wood stated they are within legal rights to build that close to property line. The Board suggested a continuance to the applicant. Mr. Cates agreed. On a motion by Martha C. Wood and seconded by Jeanne K. Krieger, the Board voted 5-0, for a continuance to the June 13th, 2019 meeting. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room April 11, 2019 Board Members: Chair— Ralph D. Clifford, Norman P. Cohen, Martha C. Wood, David G. Williams, Jeanne K. Krieger Alternate Sitting: Nyles N. Barnert Administrative Staff: Jim Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 321 Marrett Road 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 Development Standards), Line J.1.02 to allow fast food service in CN district. 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 Zoning Administrator and Building Commissioner. Presenter: Jaspal S. Nagi The hearing opened at 7:48 PM Mr. Nagi stated he is requesting a Special Permit for a fast food location that was already existing. Everything will stay the same. He will be making Indian style food and pizza and the health department has approved the plan. An Associate Board Member, Nyles Barnert, asked if there will be any odors emanating from the restaurant (Mr. Nagi stated he didn't think so). Chair, Ralph D. Clifford, asked if he is familiar with the prior conditions (Mr. Nagi stated it will stay same). No comments or questions from audience. No further comments or questions from Board. On a motion made and seconded, the Board voted to close the hearing at 7:53 PM. On a motion by Ms. Jeanne K. Krieger and seconded by Mr. Norman P. Cohen, the Board voted 5-0 to APPROVE 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 Development Standards), Line J.1.02 to allow fast food service in CN district subject to the following conditions: 1. Permitted hours of operation are Monday thru Friday, 11:00 AM to 9:00 PM and Saturday and Sunday, 9:00 AM to 9:00 PM. 2. There will be no deliveries or trash pick-up before 7:00 AM or after 8:00 pm. All deliveries will be to the rear of the store. 3. One handicap-accessible toilet will be provided for patrons. 4. The dumpster will be screened and emptied as needed to meet Board of Health standards. 5. The dumpster shall be kept locked before 7:00 AM. 6. Trash receptacles shall be provided, and the parking lot shall be kept free of Litter. 7. A copy of the Special Permit shall be posted in a conspicuous location in the establishment. 8. This special permit is for a period of 3 years and will expire April 31, 2022. If the establishment is sold to a different owner, a new Special Permit will be required. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room April 11, 2019 Board Members: Chair— Ralph D. Clifford, Norman P. Cohen, Martha C. Wood, David G. Williams, Jeanne K. Krieger Alternate Sitting: Nyles N. Barnert Administrative Staff: Jim Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Address: 1734 Massachusetts Avenue The petitioner is presenting an APPEAL OF BUILDING COMMISSIONER'S DENIAL OF A BUILDING PERMIT, DATED FEBRUARY 15, 2019, which made the determiniation that the work description and plans described in the building permit application would be classified as a bank use and in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-3.1.6 and 135-3.4, Table 1 (Permitted Uses and Development Standards), would require a special permit. This appeal is made in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3 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 Zoning Administrator and Building Commissioner. Presenter: John Farrington, attorney and Joel Werrick, property owner The hearing opened at 7:54 PM. John Farrington submitted the petition by reading the letter that was submitted with the application. They are appealing the decision of the Building Commissioner to deny a building permit based on the determination that the use was a bank use, and required a Special Permit from the Zoning Board of Appeals. The property owner and building permit application contend that the use is for an ATM, which is an allowed use in the Lexington Zoning Bylaw. Chair, Ralph D. Clifford, stated that the Board will only be discussing whether the building application was for a bank use or ATM use. A Board Member, Norman P. Cohen, asked if it would be an ATM machine or ATM machines. Mr. Werrick stated two ATM machines and no cash deposits. It will occupy part of the space. Mr. Cohen asked if he walks in and something goes wrong what does he do (Mr. Werrick responded a similar thing can happen at Bank of America if you go after hours). Mr. Farrington added they do not know the answer to that. A Board Member, Martha C. Wood, asked who is going to occupy the second half of the building (Mr. Werrick responded electronics will be in a back room. He then explained the plans). A Board member, David G. Williams, asked if someone can make a deposit (Mr. Werrick responded yes, in the machine). Mr. Williams asked about advertising (Mr. Werrick answered yes advertising will be there) Mr. Williams stated he is not convinced there will be no interaction from the people at Chase, therefore he thinks this will act as a bank. A Board Member, Jeanne K. Krieger, asked about the structure between the ATM's set in the wall. It looks like there is a screen on it (Mr. Werrick responded from his understanding that's where deposit slips go). An Associate Board Member, Nyles N. Barnert questioned the bathroom. There was clarification on the bathroom not being used for public access. Mr. Cohen asked if this is open 24 hours (Mr. Werrick responded yes). Mr. Cohen asked if someone would need a Chase bank card to enter (Mr. Clifford answered you can use any card). Ms. Wood asked if she would be able to use the facility at 3 am and if it was possible for people to stay overnight (Mr. Farrington stated he would assume there would be security cameras). Mr. Clifford asked if there would ever be Chase personnel at that site for retail (Mr. Werrick responded no employees will be on site). There was discussion on the windows on Waltham Street. An audience member, Marci Cemenska, 59 Outlet Drive, asked if there will be signage outside of the building (Mr. Werrick responded yes there will be two signs that say Chase ATM to replace the two Good Feet signs). An audience member, Jerry Michelson, Chair of Center Committee, asked if they are renting the whole space and what the frontage is (Mr. Werrick responded that they are using the whole space and the back is for equipment and electronics. The frontage is approximately 50 feet). Mr. Michelson discussed the ATM in Belmont has a video screen going to a human being (Mr. Farrington clarified there will not be communication to off-site employees). An audience member, Amy Trute,60 Tarbell Avenue, asked what will prohibit that from being used for larger bank plans in the future (Mr. Farrington answered the Zoning Bylaw would require them to obtain a Special Permit. An audience member, Eric Michelson, 45 Circle Road, asked in regards to the interactive ATM Machines, what would it require to do this software fix (Mr. Clifford responded that would not be a legal use of zoning regulations). An audience member, Aavram Baskin, 43 Carville Avenue, asked if the Board can legally stipulate that the machines could not be capable of having the ability to interact with employees. (Mr. Clifford stated this Board will probably have to provide the staff and public of what our understanding of what the Bylaw means and therefore that does address a misuse or change in use in the equipment). An audience member, Thara Pillai, 53 Grant Street, asked how the Board would manage these types of issues with advanced technology in the future (Mr. Clifford stated he teaches cyber law and stated they are years behind in terms of legal response but they do the best they can). An audience member, Jim Shaw, Chairman of the Lexington Chamber of Commerce, read the handout received by the Board, which spoke in opposition of the permit application. Mr. Eric Michelson stated he came to support the building commissioner's decision. He then read an article that was handed out to the Board. An audience member, Pamela Lyons, 51 Grant Street, stated Chase has no presence in Lexington center. If we allow ATM's that will bring Chase bank to Lexington center. A banking function never leaves that retail space. Allowing Chase to come in will permanently remove another retail space. Mr. Baskin stated that if there is a sign that says Chase Bank and has facilities that allows banking business, it's a bank. It doesn't matter if it electronic bank or has tellers inside, it is still a bank. With 12 banks all within a 1-2 minute walk from each other, there is undue concentration of banks. The banks cannot participate in the Town events. It will not be visually engaging and the Building Commissioner made the correct call. Mr. Jerry Michelson read one part of the statement submitted from the Center Committee. Ms. Cemenska stated her husband uses a bank in California and she uses a local bank, Leader Bank. This is the modern Banking. Ms. Pillai stated she has worked in retail banking. The ATM Channel Manager is a critical role in a bank. The data insights you collect are mission critical for marketing, business development, understanding customers and how they bank. We are going to see more bank machines that we haven't even imagined yet that these bylaws are not going to cover. Massachusetts has one of the highest deposit areas per capita. An audience member, Elizabeth Ocean, 70 Woburn Street, stated no definition has been provided in the Bylaws as to what is an ATM and what is a Bank. The difference has been given to Zoning Board of Appeals to decide. An ATM is a bank and the words have become synonymous. As technology furthers they will become more synonymous. The Building Commissioner stated we spend a lot of time looking at Bylaws and these types of decisions because it is important to everybody. If you call the Building Department and ask an arbitrary question that is general we give you a good direction, but until you bring in plans we don't know. If we had seen the big picture the first time we were asked the use would have been clearly identified as a bank. The cost of work listed on the permit application was $367,000 for renovation of a building to create a bank. A bank is a building and an ATM is a machine. A machine might be something you see in a Dunkin Donuts or any retail establishment that can be picked up. We frequently go back and watch Town meetings to know what the town intended. We believe the town did not intend for a building to become a place that would call an ATM, they would have thought this was a bank. It is not prohibited, but it would require a Special Permit. Mr. Farrington stated there is a distinction between a bank and an automatic teller machine. They are not the same thing. The cost to renovate the building should not have any bearing on what it is. It's the same five lines in the zoning by law, so clearly the committee has considered the automatic teller machines and made the decision to not change that in the bylaw. Getting rid of the bank offices and substituting with machines would serve the purpose of what several Town committees are trying to do. These committees need to go back to Town Meeting and amend the Zoning Bylaw. Identifying the facility as belonging to a bank doesn't establish that space as a bank office. Mr. Farrington stated that the definition of a Branch Bank office is, a facility with people that provides bank services. Mr. Farrington stated that it's important to follow the Zoning Bylaw as it is written, not as how we would like it to be written and they are asking the Board to follow existing bylaw language. Mr. Clifford stated the Massachusetts law is not helpful in terms of defining what a bank is. They are calling these individual things that we are dealing with branches. Maybe this is a branch. Mr. Clifford then referenced MGL Chapter 167 (c) (1), of an Electronic branch, this is some indication within our statutes that indicate we are dealing with at least a branch for a bank. Chapter 167 c section 12 make a big difference whether something is manned. This transforms from just electronic to being a full regular branch. Mr. Clifford explained that the question in front of the Board is if this proposal is an ATM or not. If it is an ATM the Board has no discretion and it would be allowed as a matter of right. The problem is that there is no definition in the Zoning Bylaw for an ATM. Three possible explanations of what town meeting meant when they said ATM were 1)it's possible the Town Meeting was focusing in on only electronic with no personnel; 2)to interpret ATM and ATMs, in which case you would be talking about just machines; and 3)talking about a single ATM machine. Ms. Krieger stated an ATM is singular she thinks of an ATM as a machine that is part of something else, not a stand-alone banking function. An ATM in some other type of establishment. Having a facility dedicated to an ATM is more than she would think of as just an ATM. Ms. Wood agreed with Ms. Krieger and stated that a singular ATM machine in an extremely small space may be okay, but this proposal does not seem appropriate at all and seems to be a bank. Mr. Cohen stated his opinion is that the proposal is for a bank. Mr. Clifford stated there seems to be a general consensus of the proposal. He then phrased a definition for consideration, a stand-alone machine that does banking functions is an ATM, and anything else is not. Meaning in this case it would be a bank. There was further discussion on what an ATM is and the definition. On a motion made and seconded, the Board voted to close the hearing at 9:16 PM. On a motion by Jeanne K. Krieger and seconded by Martha C. Wood, the Board voted 5-0, to adopt the definition of an ATM as used in Table 1, Line H.1.07, is a stand-alone machine that does banking functions. On a motion by Martha C. Wood and seconded by Jeanne K. Krieger, the Board voted 5-0, on UPHOLD THE DECISION OF THE BUILDING COMMISSIONER TO DENY A BUILDING PERMIT, DATED FEBRUARY 15, 2019, which made the determination that the work description and plans described in the building permit application would be classified as a bank use and in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-3.1.6 and 135-3.4, Table 1 (Permitted Uses and Development Standards), would require a special permit. This appeal is made in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section 135-9.2.2.3. As a result the Applicant's appeal was denied. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room April 11, 2019 Board Members: Chair— Ralph D. Clifford, Norman P. Cohen, Martha C. Wood, David G. Williams, Jeanne K. Krieger Alternate Sitting: Nyles N. Barnert Administrative Staff: Jim Kelly, Building Commissioner and Sharon Coffey, Administrative Clerk Other Business: 1) Minutes of Meeting from March 28, 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 March 28, 2019 hearing. On a motion made and seconded, the Board voted to adjourn.