HomeMy WebLinkAbout2009-12-10-ZBA-min Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 82 Cliffe Avenue, Map 20, Lot 41
The Chairman read an e -mail from Andrea Bell, owner of the property, requesting to
withdraw the application for two variances without prejudice.
On a motion by Carolyn C. Wilson and seconded by Martha C. Wood, the Board voted 5-
0 allow the petition to be withdrawn without prejudice.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 2
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Martha C. Wood and Associate Member Leo P. McSweeney
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 36 James Street, Map 90, Lot 77
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Building Commissioner
and the Zoning Administrator.
The Board received a second letter of concern from Samuel and Margaret Chen of 18 Fox
Run Lane.
This hearing had been continued from the November 12, 2009 meeting. The applicant
seeks to tear down the existing garage and reconstruct the garage to a greater dimension
than the existing structure, as shown on plans submitted with the application.
Vivant Chan, representing the owner of the property Rui Hui Li, presented the petition.
Mr. Chan is requesting a variance from section 135 -38 (A) 2 to allow a side -yard setback
of 2.9 -ft. instead of the required 7.5 -ft. side -yard setback.
Mr. Chan presented a site plan with changes in the driveway.
The Chairman asked the applicant where the drywells for drainage are on the plan. Mr.
Chan told the Board that by moving the driveway he was creating a buffer on the right
side of the property. He was told that there is a Bylaw that does not allow water runoff
to go into another property.
The applicant will put a drywell under the driveway for the run off The Board shall
make a condition that the drywell be satisfactory to the Building Commissioner.
One of the Board members asked about the landscaping buffer on the plot plan. There
was no description of what type of plantings there would be. The Board also wanted the
planting to be done before an Occupancy Certificate was issued.
There were no questions from the audience.
BOA Meeting, December 10, 2009 3
Samuel Chen spoke in opposition of the petition. He addressed the Board telling them
the existing garage was never designed to be used for cars. He had a concern about the
drainage from the water run off and was disappointed with the site plan that it did not
show where the drywell would be. He also questioned the property lot line that the
applicant was using. He had tried to get together with the applicant and was troubled that
it had not happened yet.
No one in the audience spoke in favor of the petition.
Mr. Chen had asked the Board if they changed the plans for the garage and stayed within
the 7.5 ft side setbacks would they still have this issue. The Chairman told him if they
were within the setbacks they would not need to come before the Board.
After discussing the concerns of the Board it was agreed that the applicant would
continue this hearing until February 11, 2010 in order to have time to meet with the
neighbor to work out differences and to prepare updated plans for the placement of the
proposed garage, driveway, landscape plans and drainage system.
On a motion by Martha C. Wood and seconded by, the Board voted 5 -0 to continue this
hearing until Thursday, February 11, 2010 at 7:30 pm.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 4
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 71 Bow Street, Map 20, Lot 90
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and Historic Districts
Commission Clerk. Comments were received from the Planning Department,
Engineering and the Zoning Administrator.
The Chairman opened the hearing at 7:58 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Letters of concern to save the footpath were received from Karen Thompson, 7
Albemarle Avenue and David Weissburg of 11 Rindge Avenue.
Attorney Donna Jalbert Patalano, representing Dianne and Anthony Augustine, presented
the petition. She presented the Board with letters of support for her petition from 8
Rindge Avenue, 77 Bow Street, 79 Bow Street, 83 Bow Street, 84 Bow Street, 94 Bow
Street and 99 Bow Street.
The applicant is requesting to modify a condition of a variance granted March 20, 1997.
The board approved the variances subject to the condition, "... that a marker and
cobblestone striping be installed on the footpath to clearly identify and delineate the area
of the right of way." The `right of way' is located adjacent to the applicant's lot and is
shown as 7 -ft. wide footpath on the plan of land submitted with the application.
Attorney Patalano explained the history of the neighborhood development and concluded
that, "... the locus does not abut or contain a right of way... [and] ... it is impossible to
delineate a non -exist right of way or footpath." The applicant contends that the ZBA was
in error in placing the condition and overstepped the bounds of its authority in placing the
condition to the variance.
To support their point, the applicant provided research conducted in 2007. Her conclusion
was that no deeds exist that contain an easement allowing access to the paper street to any
other party beside the direct abutters to the paper street. As a result, the condition should
be removed.
BOA Meeting, December 10, 2009 5
The Board. questioned the applicant regarding the "rights of prescription" for people
using the path over the years and the rights of the people who abut the path.
Jay Luker of 26 Rindge Avenue, asked for a clarification of the Augustine's address and
what makes a paper street.
Karen Thompson of 7 Albemarle asked about the area between Bow Street and Rindge
Avenue.
Eric Arnold of 54 Cliffe Avenue asked why there was a sign placed on Rindge by the
Town that instructs users as to how to use the path. Also asked who has the legal right to
use the path.
Ivan Asch of 3 South Rindge Avenue asked if the Augustine's paved driveway is legal
and wanted to know who put up the orange cones and did they have the right to do so.
Mr. Asch commented that the neighborhood is confused if there is a path or not.
Marion Fein -Cole of 68 Cliffe Avenue uses the path quite frequently and has a major
concern if she can no longer use it.
Pierre Mitchell of 41 Albemarle Road asked if it does turn out to be a paper street will
abutters be allowed to use it. (The Chairman answered that the path would be treated as
private property.)
Jay Luker of 26 Rindge Avenue, Larissa Smelkov of 6 Melrose Avenue and Lee Tec of 5
Rindge Avenue spoke in opposition of the petition.
It was asked to give a show of hands of how many in the audience was in support of
removing this condition. There were 14 in support of removing the condition, 16 in
opposition of removing the condition.
After hearing the issues with this petition, the Chairman felt that the Board needed to
have the Town's legal counsel review the petition.
On a motion by Martha C. Wood and seconded by John J. McWeeney the Board voted 5-
0 to continue the hearing until February 11, 2010 and the applicant agreed to move the
constructive grant hearing decision deadline until April 15, 2010
Submitted by: Dianne L. Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 24 Muzzey Street, Map 49, Lot 45
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Zoning Administrator.
The Chairman opened the hearing at 8:53 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Tracy Patterson, DMD, MSD, owner of the business, presented the petition.
The applicant is requesting a special permit to allow a free standing non - illuminated sign.
A Board member asked if the property was residentially zoned. The use is allowed for
offices.
The Board discussed the height of the sign with the applicant. She would like the sign to
start at 18 inches off the ground and agreed that the overall height would not exceed 4
feet.
A Board member asked if she had considered putting the sign on the building. She is
looking for the sign to help guide her patients to the driveway.
There were no questions from the audience.
No one spoke in favor or in opposition to the petition.
The hearing was closed at 9:01 pm.
On a motion by Carolyn C. Wilson and seconded by Martha C. Wood, the Board voted 5-
0 to GRANT the special permit from the Code of the Town of Lexington (Zoning By-
Law) in accordance with section 135 -78 D and section 135 -11 to allow a free standing
non - illuminated sign at 24 Muzzey Street with the following conditions:
1. Sign shall be 2 ft wide by 2 ft 9 inches high.
2. The height of the sign with posts shall not exceed 4 ft.
3. The sign shall be placed in line with the building.
Submitted by: Dianne L. Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 7
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, Arthur C. Smith, Carolyn C.
Wilson, Martha C. Wood and Associate Member Leo P. McSweeney
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 400 Patriot Way, Map 18, Lot 15G
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Zoning Administrator.
The Chairman opened the hearing at 9:01 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Jason Panillo of Back Bay Sign, representing Shire HGT, presented the petition.
The applicant is requesting a special permit in accordance with the Zoning By Law
section 135 -77 A (3) and 135 -78D to allow a free standing non illuminated sign.
At the hearing Mr. Panillo explained the signs they are presenting are designed to match
other Shire signs in the complex.
There were no questions from the Board.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:03 pm.
On a motion by Carolyn C. Wilson and seconded by Leo G. McSweeney, the Board
voted 5 -0 to GRANT a Special Permit from the Code of the Town of Lexington (Zoning
By -Law) section 135 -77A (3) and 137 -78D to allow a free standing non illuminated sign
as shown in plans submitted.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 8
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 1656 Massachusetts Avenue, Map 48, Lot 28
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the HDC Clerk and the
Zoning Administrator.
The Chairman opened the hearing at 9:03 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Jim McCoy, representing Atlas Travel, presented the petition.
The applicant is requesting a special permit in accordance with the Zoning By Law
section 137 -78D to allow for additional signage from which is allowed.
At the hearing Mr. McCoy explained the need for the signs to be placed on the balusters
on the front porch of the building.
There were no questions from the Board.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:07 pm.
On a motion by Carolyn C. Wilson and seconded by John J. McWeeney, the Board voted
5 -0 to grant the Special permit in accordance with the Zoning By Law section 137 -78D to
allow for additional signage from which is allowed as per plans submitted.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 9
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 10 Woburn Street, Map 48, Lot 201
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Planning Administrator,
the HDC clerk and the Zoning Administrator.
The Chairman opened the hearing at 9:07 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Tim Lott, representing Allcot Donuts, presented the petition.
Mr. Lott is requesting a special permit in accordance with the Zoning By Law section
135 -16, Table 1, line 9.13 to allow a takeout food service.
When questioned by the Board as to why special permit had not been renewed the
applicant had no clear answer why the permit had not been renewed in time.
The Board discussed the use described by line 9.13 which was changed at Fall 2009
Town Meeting from a takeout or fast food service serving food or beverages, such as
coffee, snacks, ice cream, or donuts, but not enough to comprise a meal to takeout food
service, with takeout food service defined as an establishment primarily for dispensing
prepared food to persons carrying the food away for consumption elsewhere. However,
the change is not final until the Massachusetts Attorney General's (AG) office reviews
the bylaw change. As of this writing, the AG's office has not submitted a
recommendation on the bylaw change. If the AG reverses the bylaw change the previous
version of line 9.13 would apply.
The applicant was going to call David George, the Zoning Administrator regarding how
these changes would affect the special permit.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:11 pm.
BOA Meeting, December 10, 2009 10
On a motion by John J. McWeeney and seconded by Carolyn C. Wilson, the Board voted
5 -0 to grant the special permit to continue to operate a take out and fast food restaurant
with the following conditions:
1. Permitted hours of operation are 6:00 AM to 9:00 PM, seven days a week.
2. There will be no large -truck or trailer deliveries before 8:00 AM or after
7:00 PM.
3. The dumpster will be locked and emptied as needed to meet Board of
Health standards.
4. All lighting will be confined to the property so as not to produce glare or
spill onto the neighborhood, and will be extinguished at 10:00 PM except
for security lighting.
5. There will be no sales or transfer of food product or sold items conducted
through windows.
6. There will be no cooking of donuts or related products on the premises.
7. Trash receptacles will be provided on -site and emptied regularly. In
addition, the parking lot and surrounding area will be kept free of litter
from the Dunkin' Donuts operation.
8. This special permit is granted for five years and will expire on December
31, 2014.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 11
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 135 Massachusetts Avenue, Map 13, Lot 379A
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Zoning Administrator.
The Chairman opened the hearing at 9:11 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Tim Lott, representing Allcot Donuts, presented the petition.
Mr. Lott is requesting a special permit in accordance with the Zoning By Law section
135 -16, Table 1, lines 9.12 and 9.13 to allow a takeout food service.
When questioned by the Board as to why special permit had not been renewed the
applicant had no clear answer why the permit had not been renewed in time.
The Board asked the applicant about the delivery times for the donuts and the applicant
explained how the central kitchens worked for Dunkin Donuts.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:16 pm.
On a motion by Carolyn C. Wilson and seconded by Martha C. Wood, the Board voted 5-
0 to grant the special permit to continue to operate a take out and fast food restaurant with
the following conditions:
1. Permitted hours of operation are 5:30 AM to 10:00 PM, seven days a
week.
2. There will be no deliveries other than for donut products before 7:00 AM.
3. There will be no deliveries before 5:00 AM.
BOA Meeting, December 10, 2009 12
4. The dumpster will be locked and emptied as needed to meet Board of
Health standards.
5. Trash receptacles will be provided, and the parking lot will be kept free of
litter from the Dunkin' Donuts operation.
6. This special permit is granted for five years and will expire on December
31, 2014.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 13
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson, Martha C. Wood
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 321 Woburn Street, Map 46, Lot 110
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Health Department and
the Zoning Administrator.
The Chairman opened the hearing at 9:17 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Tim Enright, DBA Aunt Mary's, presented the petition.
Mr. Enright is requesting a special permit in accordance with the Zoning Bylaw section
135 -16, Table 1, line 9.12 to continue to operate a retail takeout food service.
The Board asked how business has been since they opened. The applicant stated that it
was not good at the beginning but is better now.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:19 pm.
On a motion by Carolyn C. Wilson and seconded by Arthur C. Smith, the Board voted 5-
0 to grant the special permit to continue to operate a retail take out food service with the
following conditions:
1. Hours of operation shall be 7:00 am until 10:00 pm, seven days a week.
2. Special Permit is for a period of five years and will expire on December 31, 2014.
3. Applicant shall be responsible for renewing special permit 8 weeks before the
expiration date.
4. Proper ventilation equipment shall be maintained to minimize cooking odors.
BOA Meeting, December 10, 2009 14
5. Additional trash receptacles shall be provided if required, and the area in front of the
establishment shall be kept free of litter from the food operation.
6. The dumpster will be maintained and emptied as needed to meet Board of Health
regulations.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 15
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, Arthur C. Smith, Carolyn C.
Wilson and Associate Member Leo P. McSweeney
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 36 Bedford Street, Map 57, Lot 14F
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the HDC clerk and the
Zoning Administrator.
The Chairman opened the hearing at 9:19 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Christina Moreau from Agnoli Signs, representing Stop and Shop, presented the petition.
As part of its rebranding, the applicant seeks two special permits in accordance with the
Zoning Bylaw section 135 -78 D to allow for more or larger signs than that which is
allowed. They will remove and replace two signs: 1) the existing main wall sign and 2)
the secondary wall sign (Worthen Rd side).
The Historic District Commission has approved these signs.
The Board had no questions.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:22 pm.
On a motion by Leo P. McSweeney and seconded by Carolyn C. Wilson, the Board voted
5 -0 to grant two special permits for more and larger signage than that which is allowed at
Stop and Shop, 36 Bedford Street as per plans submitted.
Submitted by: Dianne Cornaro, Administrative Clerk
BOA Meeting, December 10, 2009 16
Minutes of the Lexington Zoning Board of Appeals
Selectmen's Meeting Room, Lexington Town Hall
December 10, 2009
Board Members Present: Chairman Nyles N. Barnert, John J. McWeeney, Arthur C.
Smith, Carolyn C. Wilson and Associate Member Leo P. McSweeney
Staff Present: Dianne L. Cornaro, Administrative Clerk and David L. George, Zoning
Administrator
Petition Address: 14 Banks Avenue, Map 13, Lot 206
Prior to the hearing, the petition and supporting data were reviewed by the Building
Commissioner, Conservation Administrator, Town Engineer, Health Director, Board of
Selectmen, the Zoning Administrator, the Planning Administrator and the Historic
Districts Commission Clerk. Comments were received from the Building Commissioner,
the Conservation Administrator and the Zoning Administrator.
The Chairman opened the hearing at 9:22 pm by reading the legal notice and described
information received from the petitioner relative to the petition.
Architect Jonathan Chase, representing the owners, Philip and Elizabeth Porter, presented
the petition.
The petitioner is requesting 1) Variance: To allow a side -yard setback of 7 -ft. 6 -in.
instead of the required 15 -ft. side- yard setback. 2) Variance: To allow a front -yard
setback of 7 -ft. 7 -in. instead of the required 30 -ft. front- yard setback; and 3) Special
Permit: To allow modification of a preexisting nonconforming structure.
Mr. Chase presented the Board with an amended site plan showing new setbacks for the
stairs.
The Board asked about the difference in the setbacks than what was advertised and if the
lots had been combined. The lot is deeded as one lot and it was purchased as such.
There were no questions from the audience.
No one in the audience spoke either in favor of or in opposition to the petition.
The hearing was closed at 9:29 pm.
On a motion by Carolyn C. Wilson and seconded by Arthur C. Smith, the Board voted 5-
0 to approve a variance to allow a side yard setback of 7.6 ft instead of the required 15 ft
setback.
BOA Meeting, December 10, 2009 17
On a motion by Carolyn C. Wilson and seconded by Arthur C. Smith, the Board voted
5 -0 to approve a variance to allow a front yard setback of 7.7 ft instead of the required 30
ft front yard setback.
On a motion by Carolyn C. Wilson and seconded by Leo P. McSweeney, the Board voted
5 -0 to grant a special permit to allow expansion of an existing nonconforming structure.
Submitted by: Dianne Cornaro, Administrative Clerk
Other Business:
1) On a motion by Martha C. Wood and seconded by John J. McWeeney, the Board
voted 5 -0 to approve the November 12, 2009 minutes.