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HomeMy WebLinkAbout2019-06-27-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles N. Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 46 Winter Street 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 50 cubic yards of fill to be brought to the property. The petitioner submitted the following information with the application: Nature and justification. Also received was a request to waive the requirement for a certified 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, Zoning Administrator, and Conservation Administrator. The petitioner requested a continuance to the July 25, 2019 meeting. On a motion by Jeanne K. Krieger and seconded by Nyles N. Barnert, the Board voted 5-0, for a continuance to the July 25, 2019 meeting. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles N. Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 140 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), Section D. 1.04 to allow a temporary structure on the property. The petitioner submitted the following information with the application: Nature and justification and a plot plan. Also received was an abutter letter in support and a withdrawal request. 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, Planning, and Conservation Administrator. The petitioner submitted a withdrawal without prejudice submitted dated June 24, 2019. On a motion by Nyles N. Barnert and seconded by Jeanne K. Krieger, the Board voted 5-0, to withdraw without prejudice. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles N. Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 848 Massachusetts Avenue The petitioner is requesting a SPECIAL PERMIT, in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections 135-5.2.10 and 135-5.2.8.2 to allow a projecting sign. The petitioner submitted the following information with the application: Nature and justification and 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 Historic District Commission and the Zoning Administrator. The petitioner requested a postponement to the July 25, 2019 meeting. On a motion by Martha C. Wood and seconded by Jeanne K. Krieger, the Board voted 5-0, for a postponement to the July 25, 2019 meeting. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles N. Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 191/201 Spring Street The petitioner is requesting a SPECIAL PERMIT, in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) sections135-7.3.5(8) and 135-9.4.2 for a Modification of a Special Permit with Site Plan Review granted on September 1, 1988. The petitioner submitted the following information with the application: Nature and justification, plot plan and photographs. Also received was a special permit site plan review dates January 1, 1989. 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 Conservation Administrator. The petitioner requested a postponement to the July 11, 2019 meeting. On a motion by Jeanne K. Krieger and seconded by Nyles N. Barnert, the Board voted 5-0, for a postponement to the July 11, 2019 meeting. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles N. Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 14 Sherman 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 135-8.4.2 to allow an alteration to a non-conforming two-family residential structure in a single-family residential zone. The petitioner submitted the following information with the application: Nature and justification, plot plan, elevations, and floor plans. Also received was abutter letters in support a letter from the Historical Commission. 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, Historical Commission and Conservation Administrator. Presenter: Nick Earls, Property Owner, and Mark Sangola, architect The hearing opened at 7:10 PM Mr. Earls stated unit one will be 2,097 square feet and unit two will be 2,030 square feet of living area. Sun studies have been done to show they will not be generating any shadow on the neighbors. They have placed their HVAC units at the furthest possible point from the neighbor's lots. There is an existing non-conformity that they will be remedying. It is an 8.1 ft. setback from the neighbor on Sherman Street and they will be making it conforming at 13.2 ft. Additionally they already went through Historical Commission and an agreement was made to restore several historical features. A Board member, David G. Williams, asked if they could address some of conservations comments (Mr. Sangola stated the first sentences of the comments stated, "That although it is not required this is what I would like", we did have a civil engineer re-do drainage calculations and make enhancements to the plan). Mr. Williams asked if conservation has seen those plans and then read the five comments conservation made (Mr. Sangola responded no, but those were addressed). Mr. Williams asked about landscape (Mr. Sangola stated they did not do a landscape plan but they can. His wife is a landscape architect and can do something up). Chair, Ralph D. Clifford, stated on the sun solar plans, both are at noon, isn't that when shadows are least likely (Mr. Sangola responded yes, it's just the time that he picked). A Board member, Jeanne K. Krieger, asked about the gross floor area calculation (Mr. Sangola reviewed calculations). Mr. Sangola stated in summary the existing house was built in 1818 and moved to this site later on and fallen into to disrepair. They are going to enhance it. The design was based on keeping massing the same and a large drainage structure running through the site was a challenge. There were no questions or comments from the audience. On a motion made and seconded, the Board voted to close the hearing at 7:22 PM Mr. Williams suggested a condition that conservations concerns are addressed and satisfied. Also for the Design Advisory Committee to review the landscape plan (Mr. Sangola agreed to the conditions). There were no further questions or comments from the Board. On a motion by Jeanne K. Krieger and seconded by Nyles N. Barnert, the Board voted 5-0, to grant 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 an alteration to a non-conforming two-family residential structure in a single-family residential zone with the conditions stated. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk, James Kelly, Building Commissioner Address: 489 Concord Avenue As two petitions had been filed concerning the same address seeking the same type of relief, the Board Chair announced that they would be heard together. The Board Chair opened both hearings on June 13, 2019. The petitioner Benjamin Tymann on behalf of Sharon Cerny is requesting an APPEAL OF THE DECISION OF THE ZONING ADMINISTRATOR, DATED MAY 1, 2019, regarding the Cotting School Parking Lot Project located at 489 Concord Ave. 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, memorandum from Bruce Embry Date May 15, 2019 and memorandum from Benjamin Tymann and a letter from an abutter. 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. The petitioner Benjamin Tymann on behalf of Alyssa Goodman of 485 Concord Ave. and Mei Tuo of 501 Concord Ave. is requesting an APPEAL OF THE DECISION OF THE ZONING ADMINISTRATOR, DATED MARCH 27, 2019, regarding the Cotting School Parking Lot Project located at 489 Concord Ave. 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, memorandum from Bruce Embry Date May 15, 2019 and memorandum from Benjamin Tymann and a letter from an abutter. 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: Ben Tymann counsel for three applicants and Bruce Embry representative for Cotting School The hearing opened at 7:23 PM Chair, Ralph D. Clifford, clarified what was before the Board. Mr. Tymann stated there were two requests for zoning enforcement. On June 19 he submitted a letter to the board. The case law he sighted that the role of the Zoning Board of Appeals in reviewing an administrator's decision is not akin to abusive discretion. This is a different process, the board has discretion to engage in its own fact finding. Mr. Tymann stated and discussed the eight different grounds for the two appeals. The eight grounds are as follows: screening, traffic safety, light spill over, noise, flooding and run off concerns, placement and number of parking spots, snow storage and loss of property value. A Board member, David G. Williams, asked how wide the easement is (Mr. Tymann responded the easement is wider than what was actually there. It is Mr. Oscan who owns the road and who would have standing in a legal proceeding. The easement limits the right to pass and repass to all lawful purposes in common with all persons having such right. It is the responsibility of the Board to decide whether that is permitted). Mr. Williams asked what Mr. Oscan thought of this (Mr. Tymann responded that on February 27 the Planning Board Hearing was held on the subdivision. At that hearing Mr. Embry stated the use the Cotting School wishes to pursue is not overburdening the easement and they have the right to do it. Board Member Charles Hornig asked Don Borenstein if he agrees with Mr. Embry's position and he said he can't say that he agrees. From his perspective they don't agree). Mr. Clifford stated an easement for passing and repassing is broad. He asked is there anything in that document that indicates the easement is limited to residential use and asked if the land was already developed (Mr. Tymann responded just the language about uses in common. There were houses located at 497 Concord Avenue and 489 Concord Avenue). Mr. Embry discussed the original use of the easement and when it was created. Anybody has a right to use that driveway. The only person who can decide if Cotting School is using that easement poorly is Mr. Oscan. Mr. Embry clarified the terminology in the bylaw regarding driveways. This is a 100 year old driveway, not a driveway the Cotting School is building. The issue of the intersection is the real argument. Mr. Embry then discussed the situation when Mr. Oscan went before the Planning Board for a subdivision. He then stated this is a driveway not a street. He stated the Tufts case has no relevance here. The Cotting School has been working on this project for two years and has produced what has been asked of them from many departments. The main reason for this parking lot was to alleviate traffic in one entrance. It will be the same number of people and not cause more traffic. The Zoning Administrator stated on January 8, 2019 they received a request for zoning enforcement from Benjamin Tymann on behalf of Alyssa Goodman. On February 4, 2019 she replied to the request with the determination that the project does qualify as a protected use under the Dover Amendment but should be subject to reasonable regulations. So she stopped the project. She found they had not addressed specific zoning requirements related to lighting, screening, and landscaping. Cotting School was asked to submit an adequate site plan that would address these issues. In March herself and the Building commission received and reviewed new plans submitted. Screening, landscape and lighting were reviewed and found they reasonably met the requirements of the bylaw. Those are the three issues she had specifically looked at, the other issues brought forth in the appeal were not originally discussed. The Zoning Administrator then discussed the other issues that were brought forth in the appeal. The Building Commissioner stated the Dover Amendment protects these certain uses. We want to protect these uses, but sometimes they seem to be coming into some neighborhood and it's not compatible. There has been a lot of effort and consideration. They have made changes that in the future some of these exempt uses may require a site plan review. It's a struggle but this is a great place to hear all issues that go into the decision and how they are made. An audience member, Leon Goodman of 35 Maple Avenue in Sudbury, stated he is a licensed professional engineer and a certified professional traffic operations engineer. He stated this is a different situation and it's going to function as a street. He then discussed the design speed of a road way and the distance requirements in feet between streets and driveways. He discussed his concern for safety. Mr. Clifford stated there are a lot of intersections that would not meet modern code and asked how that is addressed (Mr. Goodman responded you can't correct all existing intersections, but this is creating a new situation. Any use for that driveway has been very sporadic). A Board Member, Nyles N. Barnert, stated the Cotting School states this will ease the traffic problems (Mr. Goodman stated traffic coming from west, this is not a good situation for making the turn into the driveway). A Board Member, David G. Williams, asked if a policeman posted would help (Mr. Goodman responded yes that would always help but not much). An audience member, Robert Harris of 500 Concord Avenue, stated his concern for the location of the driveway and traffic safety. Applicant, Sharon Cerny of 1 Barberry Road, stated she has spoken with Mr. Oscan and he thinks the use of the right of way for the parking lot is a disaster. She discussed her concern for traffic safety and discussed the number of existing parking spots Cotting School has. She showed the Board the other parking plan the Cotting School had in 2016. Ms. Cerny went on to discuss lighting, screening and flooding. She stated the arborvitaes will not be adequate for light screening. The parking lot lights should be hooded and directed down at the ground. Neighbors that have been flooded are concerned about it occurring again. We would like to see a water run off mitigation plan. Snow storage was a concern. In summary she stated the Cotting School plans have been undisclosed to the public and they had no knowledge. Landscaping along the easement was discussed. An audience member, Marina Thompson of 500 Concord Road, stated her concern for traffic going over the hill from Spring Street. An audience member, Ann Senghas, of 476 Concord Avenue, stated her concern for traffic safety and the blind hill. An audience member, Ashish Mamania of 2 Barberry Road, stated his concern for safety. An audience member, Deborah Lapides of 16 Barberry Road, stated her concern for traffic safety, stating it is a terrible hazard especially in the winter. An audience member, Jennifer Dillis of 481 Concord Avenue, stated her concern for traffic safety. She asked if it was correct that Cotting School was not using the house on the property because she has seen people going in and out (Mr. Embry stated there are no specific plans for how that house will be used. People go in and out to keep an eye on the house). Ms. Dillis then stated she hasn't seen plans for screening and was wondering what that would look like. Mr. Williams questioned why the Dillis' property had plantings that went half way across the yard (Ms. Dillis responded there was some planted all the way but trees have died most likely from water drainage). Mr. Clifford asked Mr. Embry why more parking is needed (Mr. Embry stated if what they are going to do is alleviate traffic in the morning you've got to move cars away from the main entrance. Also Cotting School has lost about 20 parking spaces over a conservation area). Mr. Clifford asked if the new lot is built will there be a problem with over flow parking (Mr. Embry responded that would be unlikely). Mr. Clifford asked how many out of the 150 or so spots will be empty on a daily basis (Mr. Embry responded 15 to 20). Ms. Krieger asked if the parking on campus is currently lit at night and for what hours (Mr. Embry responded yes, when Cotting School made its first proposal there was no lighting included. The police said they want lights. They can be moved up and down on the poles and are solar powered with timers and motion detectors. Every effort has been made to limit the impact on the neighbors. They can monitor it for animals too). Mr. Williams asked if they would be willing to have a four foot caliper for the trees (Mr. Embry stated he didn't know enough about calipers, Cotting School has been open to landscape requirements. They have gave more when asked). Mr. Williams discussed screening for the people on the left side of the easement. Mr. Embry stated what they have been asked to do they have done. Part of this process is that there is a questionnaire that goes out to various town departments whether they want to comment and none of them did and that's because they have been involved for two years and don't have any objection. Mr. Tymann stated the statement by Mr. Embry that no departments have commented is not accurate, David Pavlik commented on the appeal. They received an email from Ross Morrow who stated this work has not triggered an engineering review. There has been no review with regards to this driveway. No one in town has done an engineering review. He stated the concern for the conflicting left turns and traffic. He discussed screening and the fact that the Cotting School proposed no trees with regards to the driveway. He then discussed lighting and stated the concerns were ignored. A statement made at the Conservation Commission was clarified. The Board is free under Dover to say no to a particular plan, it's the Radcliff College decision. From the 2016 plan there are alternative ways for them to meet their needs for additional parking. Cotting School needs to demonstrate this is an educational use. The Board needs to decide if the Cotting School demonstrated the enforcement of the bylaw provision does not appreciably advance the municipality's legitimate concerns. On a motion made and seconded, the Board voted to close the hearing at 9:44 PM. Mr. Clifford stated they are the first and foremost authority of what the Lexington bylaw means. When it comes to the application of the bylaw the Board needs to be careful on how some of the bylaw provisions are phrased. There has been discussion about what the parking exception means in the Dover Amendment, the SJC is concerned about making sure there is sufficient parking and not with the set up or design. When it comes to a Dover case they have to be sensitive to not interfere with the statutorily allowed uses in the regulations that are imposed. The method for the decision will be to go through all eight issues raised individually. The Board reviewed each item raised in the Applicant's appeal individually and found that the enforcement denial should be reversed only for screening, landscaping, and lighting reasons listed above. Loss of property value and neighborhood character After a discussion on the intention of the Dover Amendment, on a Motion by Martha C. Wood, and seconded by Jeanne K. Krieger, the Board voted 5-0 to find that the Zoning Administrator's decision was proper in this decision. Snow storage The Board discussed that there is not a requirement in the bylaw on where snow placement should be and if there is an issue later on, it can be enforced thru the Town. The Board also referenced that the safety considerations from the Fire Department and the Conservation buffer zones were considered appropriately. On a Motion by Nyles N. Barnert, and seconded by Jeanne K. Krieger, the Board voted 5-0 to find that the Zoning Administrator's decision was proper in this decision. Placement and quantity of parking The Board discussed the intention to provide minimum parking requirements, not maximum, and to prevent off-site parking. On a Motion by Marth C. Wood, and seconded by Jeanne K. Krieger, the Board voted 5-0 to find that the Zoning Administrator's decision was proper in this decision. Drainage The Board stated that drainage is not under the jurisdiction of the Zoning Board, and is considered under the Engineering and Conservation Departments. During inspections done by Board members, there was no flooding observed during heavy rainfall and the Engineering Department did not have any issues. Mr. Williams expressed a concern with the vegetation dying in the area and did see an impact with the water. On a Motion by Nyles N. Barnert, and seconded by Martha C. Wood, the Board voted 4-1 (David G. Williams in opposition) to find that the Zoning Administrator's decision was proper in this decision. Light spill over The Board discussed concerns with the lighting that did not have a schedule of when it would be turned off during evening hours. On a Motion by Martha C. Wood and seconded by Jeanne K. Krieger, the Board voted 0-5 to find that the Zoning Administrator's decision was proper in consideration of this aspect citing that a lighting schedule for the lighting system that is proposed was needed. The Board found that the spill-over light into the adjoining residential parcels should be reasonably controlled and the light should be time-controlled so that it does not activate when not in use. The Zoning Administrator's decision was therefore reversed. Driveway location The Board stated that although this is may be a dangerous situation, there is little they can do about this because the driveway connects the parcel to the easement. The owner of the easement would only be able to enforce the screening issues and this driveway location was in place prior to this project. The Board recommended that the abutters bring their concerns to the Traffic Advisory Committee and contacting their Town Meeting Members. On a Motion by Nyles N. Barnert and seconded by Jeanne K. Krieger, the Board voted 5-0 to find that the Zoning Administrator's decision was proper in consideration of this aspect citing that traffic safety is not a zoning issue that can be considered because the location of the easement "ROW" is a pre- existing condition rather than a new construction. The Board found that the easement for ingress and egress was not limited as to purpose of the ingress and egress and, therefore, could be used to move cars between Concord Avenue and the subject parcel. Screening/Landscaping/Noise The Board discussed that more screening should be put in place to prevent headlight glare onto the abutting properties. Noise also falls into this category, as more landscaping and screening could potentially buffer the noise. The Board also discussed potential hardscape, such as a combination of fencing and plantings. Overall, the Board decided that there needs to be more density, height, and composition of the screening and landscaping. On a Motion by Jeanne K. Krieger, and seconded by William P. Kennedy, the Board voted 0-5 to find that the Zoning Administrator's decision was proper in consideration of this aspect citing that more density, height, and composition needs to be considered for the screening, landscaping, and noise considerations between the parking lot area and the adjoining residential parcels, but not for screening along the easement "ROW." The Zoning Administrator's decision was therefore reversed. Conclusion On a Motion by Jeanne K. Krieger and seconded by William P. Kennedy, the Board voted 5-0 to overturn the Zoning Administrator's decisions dated March 27, 2019 and May 1, 2019 only for the reasons specified above in accordance with § 135-9.2.2.3 of the Zoning Bylaw, Ch. 135 of the Code of the Town of Lexington. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room June 27, 2019 Board Members: Chair— Ralph D. Clifford Jeanne K. Krieger, Martha C. Wood, David G. Williams, and Associate Member Nyles Barnert Alternate Sitting: William P. Kennedy Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk On a motion made and seconded, the Board voted to adjourn.