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HomeMy WebLinkAbout2021-01-28-ZBA-min Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Martha C. Wood Alternate Member: James Osten Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Address: 7 Fulton Road As two appeals were filed associated with the same building permit, the Board considered them together. The petitioners are requesting an APPEAL OF THE ISSUANCE OF THE BUILDING PERMIT B-20-1226 DATED NOVEMEBER 16, 2020 in accordance with the Zoning By-Law (Chapter 135 of the Code of Lexington) section(s) 135-9.2.2.3. The petitioner David Ernst submitted the following information with his petition: Floor plans, plot plan, gross floor area calculation, and elevations. The petitioner Elizabeth Warren submitted the following information with her petition: Floor plans, plot plan, gross floor area calculation, and elevations. Also received from Elizabeth Warren and representative was a tree plan, letter from developer stating intent to remove trees, email from developer to Building Commissioner coordinating meeting with the Warrens, letter of developer notifying Building Commissioner of the Warrens preference, email from Conservation Administrator to Building Commissioner noting no demo permit and no rear lot line, Red Maple tree appraisal, original plot plan, email developer stating intent to raise grade, revised plot plan, email the Building Commissioner states grading is in compliance, Red Maple Critical Root Zone letter, email developer stating intent to raise grade, letter stating damaged maple tree driven by construction, certified survey of shared Maple tree, letter discrediting report by arborist, and relevant Lexington Bylaws and Massachusetts Case Law. The developer of 7 Fulton Road submitted the following information: A tree removal plan, PES Report, letter to ZBA, Email for John Livesy, tree plot plan, tree report, a second tree plot plan, and photographs. 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 the Building Commissioner. Presenters: David Ernst and Tim Fallon, attorney representing Nicholas and Elizabeth Warren The Hearing was opened at: 7:00 Chair, Ralph D. Clifford, stated the Board will consider the two appeals simultaneously. Tim Fallon, Upper Charles Law Group representing Nicholas and Elizabeth Warren, presented their petition. Mr. Fallon stated the Warrens are requesting a site plan which would preserve their property rights. Without any re-grading, trenching or additional weight within a critical root zone of a particular tree which straddled the property line. He then stated they are questioning if the Building Commissioner is obligated to observe Town Bylaws and discharge his duties as Building Commissioner. They understand the Building Commissioner is not responsible for enforcing these Bylaws. The issue is a shared tree between the properties. The Building Commissioner did fail to follow the order of operations. The Building Commissioner has denied the Warrens clear property rights. He then made a presentation and stated the role of the building Commissioner, discussed site plan, and discussed grade and fill in the critical root zone. David Ernst, of 1 Cooke Road, presented his petition. Mr. Ernst discussed the matter of his appeal the proposed driveway location with respect to the maple trees on either side of the driveway. He explained the dripline on trees. There is no space in-between trees in which the driveway is allowed. He referred to the Lexington Tree Manual which instructs building or other elements must be located outside of the root zone. The Building Permit is deficient because the driveway does not comply with the Tree Bylaw. The driveway must be relocated or proper tree protection matters must be provided. He requested a requirement for tree protection measures with respect to the driveway to be included in the building permit as an enforceable permit condition. Fredrick Gilgun, Nicholson Sreter& Gilgun, representing the developer of 7 Fulton Road, Mr. Orr, opposed the petitions. He stated all these issues are relate to the Tree Bylaw. Mr. Orr has made the Town and the Warrens aware of his tree proposal. The one maple tree is five separate maple trees that grew out of the same root base. It is the Tree Warden is the one who determines whether or not the trees present a hazard. The arborist has determined the trees to be removed are a hazard. The Town was made aware very early on of the removal of these trees. There is no reason why the issuance of the building permit should be overturned. Fill was brought to the property with the knowledge of the Building Inspector, it is consistent with the Towns Bylaw regarding fill. Much of what has been raised here is appropriately a private right of action. The Building Commissioner made a presentation. He stated his role is be a collector of documents. He receives the tree proposal and the tree warden takes that information and does his role. The tree warden is the enforcer and manages that process. He stated he does not enforce the tree bylaw. There was a building permit issued prior to the fill being in place. He suggested the stated concerns may be for the Tree Committee. He is confident they do a consistent, effective job of applying and managing the Zoning Bylaw. A Board Member, Norman P. Cohen, asked if the two trees in the front where the driveway is proposed are Town owned (Michael Novak, Patriot Engineering, stated they are Town trees, they are in the right of way). A Board Member, Nyles N. Barnert, questioned the landscape plan and grade (The Building Commissioner stated they are focused on the tree proposal plan. There is a plan that typically shows contours of elevations on the lot. Most often the elevations are changed on the lot). Mr. Novak stated there is proposed grading shown on the plot plan that was submitted as part of the building permit. Associate member, James Osten, questioned the existing soil around the maple trees (Mr. Novak stated they had two soil tests on the site and did find ground water six feet down. The fill would be tied back into grade prior to the tree trunk). A Board member, Martha C. Wood, questioned the wall and its impact on the roots (Mr. Novak stated the intent is to reuse boulders found on site, there is existing stone and they plan to tie that in). Mr. Clifford stated Mr. Fallon indicated there was not a tree plan filed with the building permit. He asked Mr. Fallon if it was correct that the bylaws, specifically 128-8B1, allow the tree plan to be filed with the demolition permit (Mr. Fallon stated they believe it was submitted after the Building permit). Mr. Clifford asked how the Building Commissioner is responsible for the tree plan (Mr. Fallon stated in reference to the tree manual it is clear in section 8B that there is the possibility for an agreement to modifications relative to the protected areas around the drip line. This is a shared tree). Mr. Clifford stated the tree manual is a reference to the Tree Bylaw (Mr. Fallon stated the Building Commissioner is required to work with the Tree Warden to make sure that these trees are protected). Mr. Clifford quoted 128-B2, "the Building Commissioner shall refer the tree proposal to the Tree Warden." He asked if there was anywhere else in the bylaws that provide a specific duty on the Building Commissioner to do something with the tree plan other than deliver it to the Tree Warden (Mr. Fallon stated he would defer to Mr. Clifford as he is familiar with the bylaws). Mr. Clifford stated he knows of nothing stating that. Mr. Clifford asked how 120-8B subsection C impacts the claims that the Warrens are making. He stated the developer can give money and take the trees down (Mr. Fallon stated that is correct). Mr. Clifford then stated denying a building permit is not a remedy listed in the Tree Bylaw. Mr. Clifford asked if there was any place in the bylaw that states a building permit should be denied if a tree bylaw is not complied with (Mr. Fallon stated he was not aware of any). Mr. Clifford asked how much fill was brought in (Mr. Fallon stated 7 truckloads but was not sure of the size of the truck). Mr. Clifford stated the Bylaws allow make a distinction between bringing in a lot of fill that requires a special permit and not bringing in a lot of fill which would be handled under the regulations of the building permit (Mr. Fallon stated knowing the amount of quantity is an important issue. He would like to know if the Town is aware how much fill was brought to the property). Mr. Clifford asked Mr. Ernst why it's appropriate to deny the building permit (Mr. Ernst stated he has not requested that the building permit be denied. He has requested a mechanism be put in place to assure that there is adequate tree protection for the Maple trees). Mr. Clifford stated the Zoning Board does not create Zoning, they enforce Zoning as it is given to them. He suggested Mr. Ernst talk to the Planning Board and bring it to Town Meeting. Mr. Ernst stated if the Board is not empowered to do this then he makes a moral stance that there needs to be some assurance that there will be proper protection of the trees. Mr. Clifford stated the Board is to decide whether these building permits were appropriately issued. Mr. Clifford asked the Building Commissioner if a demolition permit was filed (Mr. Kelly stated yes). Mr. Clifford asked if there was a tree plan, when was it submitted and how much fill was brought to the property (Mr. Kelly stated yes around October. He was unsure how much fill was brought in). An audience member, Elizabeth Warren of 9 Fulton Road, stated David Pinsano came out to the property and stated the tree is a single tree and that Doug Orr would not be able to take action. It's on that basis that brings them to question the issuance of the permit. They are not asking him to enforce the tree provisions, they are asking him to comply. In regards to mitigation, the neighborhood has been very active and has houses being built and sold for over 3 million dollars. The value for mitigation is dwarfed when you're considering the value of the homes that are going up. The fees are not meaningful. Chris Filadoro, Tree Warden for the Town of Lexington, stated they have done several site visits for this property. They have a good working relationship with the builders and they remind them of the rules and regulations. They are not allowed the demolition permit until they get the tree wardens signature. They do not get that signature until they have provided a proper plot plan with all trees in the setback and identifying anything within the private right of way. He stated they look at hazards very seriously. If there are any questions they require the builder to hire an arborist. There is a known hazard in one of those several maple trees. An audience member, Sirarpi Walzer of 5 Fulton Road, stated there are three trees that will be cut down. The trees were marked and abutters were not informed. Mr. Fallon stated there is no credentials by Mr. MacArthur, he is not qualified. They have had a consulting arborist visit the property who has determined the subject tree is one five stemmed tree, not five separate trees. He also determined the tree was in good health prior to the construction. There is a difference of opinion. Jim MacArthur, Arborist, clarified his credentials. He stated there are several definitions on what a multi-stem tree is. He then read a definition. He then explained the root systems of the trees. Mr. Cohen asked if the two trees with respect to the driveway die in a few years is there anything in the bylaw that states they should go back to the developer and get money to replace them (Mr. Filadoro stated they have discussed those two trees. Doug Orr's permit is going to instruct that he work with a licensed certified arborist on entering through that area and creating the narrowest driveway possible. He will be using similar methods of when they pave over sidewalks with tree roots). There were no further questions of comments from the audience. Mr. Ernst stated he remains concerned that there is no formal process by which necessary measures are conditioned on the permit. There were no further questions from the Board. The Hearing was closed at 8:29 PM (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, David G. Williams—Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). Mr. Clifford stated the Board should focus on the legal issue. The question is whether the zoning bylaw and other qualification were confirmed in order to issue the Building Permit. The Tree Bylaw is difficult to have. If they look at the permit the compliance is clear. There was a tree plan submitted with the demolition permit. The bylaw section 120 states the Building Commissioner fulfills his obligations by turning the tree plan over to the Tree Warden. That clearly happened. Obviously the trees have been looked at and the Town has done its job. He states he does not see the violations being claimed. Considering the town meeting in adopting 120-8 specifically allows for a remedy of money. If you take down a protected tree you can make a contribution to the Lexington Tree Fund. There is nothing found in the bylaw that says if there is a problem with trees deny the building permit. Mr. Barnert stated his concern for the landscape plan. Mr. Clifford stated it is compliant. A Board Member, Jeanne K. Krieger, stated she concurs with Mr. Clifford. There were no further comments from the Board. The Board of appeals voted zero (0) in favor, five (5) opposed, and zero (0) in abstention to grant an APPEAL OF THE ISSUANCE OF THE BUILDING PERMIT B-20-1226 DATED NOVEMEBER 16, 2020 on the petition of David Ernst and the separate petition of Elizabeth Warren (a role call was taken: Ralph D. Clifford — No, Jeanne K. Krieger— No, David G. Williams — No, Norman P. Cohen — No, and Nyles N. Barnert— No). The appeal was consequently denied. Minutes of the Lexinqton Zoninq Board of Appeals Selectmen's Meeting Room January 28, 2021 Board Members: Chair— Ralph D. Clifford, Jeanne K. Krieger, Nyles N. Barnert, Norman P. Cohen and Martha C. Wood Alternate Member: James Osten Administrative Staff: Jennifer Gingras, Zoning Administrator and Sharon Coffey, Administrative Clerk Other Business: 1. Minutes from the January 14, 2021 Hearing The Board of appeals voted five (5) in favor, zero (0) opposed, and zero (0) in abstention to approve the minutes from the January 14, 2021 Hearing (a role call was taken: Ralph D. Clifford —Yes, Jeanne K. Krieger—Yes, Martha C. Wood —Yes, Norman P. Cohen —Yes, and Nyles N. Barnert—Yes). On a motion made and seconded, the Board voted to adjourn.