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HomeMy WebLinkAbout2003-03-05-PB-minPLANNING BOARD MINUTES MEETING OF MARCH 5,200 The meeting of the Lexington Planning Board held in the Selectmen's Room, Town Office Building, was called to order at 7:30 p,m, by Claairrran Galaitsis with members Chase, Davies, Harden, Kastorf and planning staff Garber, McCall- Taylor, and Tap present. Mr. Galaitsis recognized Mr. Andrew Friedlich, chairman of the Town Meeting Members Association. Mr. Friedlich asked the Planning Board to take a position on Warrant Article 21, a resolution to urge the Board of Appeals to apply current MassHousing land acquisition guidelines as a condition to granting a Comprehensive Permit (40B). Article 21 is a citizen- sponsored article submitted by Mr. Friedlich and nine other registered voters. MINUTES Review of Minutes The Board reviewed and corrected the minutes for the meetings of September 4, and October 15, 2002, and January 8, 2003. On the motion of Mr. Harden, seconded by Ms. Chase, it was voted unanimously 5 -0 to approve the minutes as amended. * * * * * * * * * * * * * * * * * * * * * ** ARTICLES FOR 2003 TOWN MEETING PUBLIC HEARINGS Article 17, Technical Correction, ITE Manual Mr. Galaitsis opened the public hearing on Article 17, Technical Correction to the Zoning Bylaw, at 7:45 p.m. There were 12 people in. the audience. Ms. McCall- Taylor explained that the reference to the ITE Trip Generation Manual in Chapter 135- 72(t)(a) of the Zoning Bylaw would not become out -of -date if it referred instead to "The edition of the `Trip Generation Manual' prepared by the Institute of Transportation Engineers' that is on file in the Lexington Town Engineer's office, instead of to the `Trip Generation Manual, Fifth Edition', as is currently the case. That is the purpose of this technical correction. There were no questions or comments from the audience. After a brief discussion, the motion of Mr. Davies, seconded by Ms. Chase, the Board voted unanimously to recommend to Town Meeting approval of Article 17. The public hearing was adjourned at 7:50 p.m. Article 19, Banks Credit Unions in CS Zones by S ecial Permit Citizens Article): Mr. Galaitsis opened the public hearing on Article 19 at 8:00. There were 14 people in the audience. Mr. Jason Manganello presented the case for Article 19, which would add banks and credit unions to the uses allowed by special permit in the CS zoning district. He displayed a map showing the locations of the five CS, (Service Business Commercial) districts in town. Board Comments and Questions Mr. Kastorf asked why the uses allowed should be changed. Mr. Manganello responded that it would add convenience for residents. There are many banks in Lexington Center but it is too congested. Mr. Harden asked if he had studied impacts on real estae values that would result from the change in zoning. Mr. Manganello said the impacts would not be dramatic. in response to Mr. Galaitsis' question if there was a specific CS zone location that he had in mind for a bank, Mr. Manganello answered, yes, at North and Lowell Streets. Mr. Davies asked the staff if there are vacancies in the CS zones currently. Ms. McCall - Taylor replied that no, there is a shortage of space in the CS zones for tradesmen. Mr. Galaitsis noted that banks as a rule have more resources and could drive out smaller business concerns. Mr. Manganello said that the Board of Appeals could just turn down a bank if they thought it would drive a tradesman out. Mr. Nyles Barnert, Minutes for the Meeting of March 5, 2003 2 TMM, Precinct 4, said that the Board of Appeals can deny only on specific, overriding grounds. Mr. Paul Hamburger, Appropriations Committee, commented that Lexington already has plenty of banks. Mr. Manganello made no summary remarks. Tire hearing was closed at 8:15 p.m. Mr. Harden said that this proposed change to the bylaw poses some risk to the CS zones and that a compelling argument for more banks was not .n.rade. After a brief discussion, on the motion of Mr. Kastorf, seconded by Ms. Chase, the Board voted unanimously to recommend disapproval of Article 19 to Town Meeting. Article 20, Amend the Sign Bylaw {Citizens Article) Mr. Galaitsis opened the public hearing on Article 20 at 8:17 p.m. Ms. Lon Fournier, 24 Cedar Street, one of the principal petitioners to amend the Zoning Bylaw, Section 135 -74 through 13578, stated that portions of the Lexington sign bylaw are unconstitutional. Her concern about this stemmed from an incident in which the Zoning Enforcement Officer told a resident that she could not display a political sign on her residential property. The aim of this amendment is to bring the bylaw into compliance with the United States Constitution, which protects freedom of speech. She introduced Mr. John Bartenstein, attorney and Lexington resident, who would present their amendment, as its principal drafter. Mr. Bartenstein outlined his approach to amending the sign bylaw. He said there is abundant case law having to do with signs and First Amendment rights, in particular the case of the City of Ladue et al v. Margaret P. Gilleo, which arose from a situation somewhat like the one occasioning this proposed amendment. Fifth and Fourteenth Amendment issues are also cited in case law. By creating the broadly-inclusive category of Non - Commercial signs, and by making such signs Accessory or on- premises in nature, a legal vehicle is created that is wide enough to embrace political signs in residential districts. These concepts emanate directly from the extensive body of law on this topic. In addition, the .Article proposes content - neutral regulation of "time, place and manner," which is the reasonable regulation standard that emanated from court cases. Those regulations include non- commercial sign limits of four square feet in area, four feet in height and placement. Board Questions and Comments The Board members agreed that they need more time to study the copious material prepared by Mr. Bartenstein and Mr. Garber and to get guidance from Town Counsel. Mr. Kastorf stated that Mr. Bartenstein had satisfied him that the use of the word aesthetics in the sign bylaw would not be problematic, as he had originally thought. Mr_ Davies said that (1) yard sale signs, for example, are usually not removed, as they should be after the sale. Mr. Bartenstein said that yard sales are the purview of the General Bylaws, not the Zoning Bylaw. (2) Relative to the Dover amendment section (in MGL Chapter 40A, Section 3, for religious and non- profit educational use exemption), Mr. Davies asked why the article says non - profit corporations? Mr. Bartenstein responded that it reflects the language used in the Dover amendment. Mr. Harden commended Mr. Bartenstein on his work and presentation. But he wondered if the size limit of fora square feet might be seen as arbitrary. Mr. Bartenstein replied that this size does reflect actual . practice in Lexington, and that reasonable regulation has been upheld by numerous courts. Ms. Chase expressed her concern about unintended consequences such as the amount of time the Zoning Enforcement Officer might have to devote to enforcing the bylaw. Mr. Bartenstein defined "lawful" Minutes for the Meeting of March 5, 2003 content. Hate speech, profanity, incitement or libel are not protected. He said that all enforcement would not fall to the Zoning Enforcement Officer; the courts are another avenue of redress. Audience Comments and Questions Mr. Frank Sandy, Town Meeting Member, Precinct 6, commended Mr. Bartenstein on his research and his presentation. He questioned if some of the changes and the reorganization of the bylaw might be beyond the scope of the article. Mr. Bartenstein said that lie would consult with Moderator Margery Battin about this, but he maintained that all proposed changes relate to making the by -law consistent with the constitutional case law. He appealed to those present not to nitpick the article with specific "what ifs "; a coherent bylaw is the aim of the proposed wording of the amendment. Ms. Edith Sandy, Town Meeting Member, Precinct 6, noted the comprehensiveness of Mr. Bartenstein's amendment. She asked why the limit on the number of signs to two only applies to standing signs. What about wall signs? Mr. Garber pointed out that it is best not to over- regulate, but that he .bad initially been concerned that the two standing sign limit might be too restrictive. One cannot foresee all eventualities. Mr. Nyles Barnert, TMM, Precinct 4, suggested specifically referring to public street or right of way relative to the distance from it that a sign could be placed. The answer was that property lines are not necessarily visible and most people have no idea where their front lot line is, absent a survey or field monument. Mr. Garber also raised the issue of the law needing to apply to private ways as well. Both Mr. Julian Bussgang, 2 Forest Street, and Mr. Jerry Van Hook, 89 Meriam Street, expressed concern that no other municipality's sign bylaw was used as a model, that Lexington will be pioneering with this language. Mr. Bartenstein replied that he had sought a model, and called the state attorney general to see if he could refer him to one; the attorney general could not. Ms. McCall - Taylor, who was formerly the Zoning Enforcement Officer in Lexington, added that most municipalities' sign bylaws are riddled with constitutional issues. When there is a case like Ladue, what most often happens is that enforcement of sign bylaws changes, not the language itself. Mr. Garber added that in his long experience he has found that at least 95 percent of sign bylaws are defective in a similar manner. Ms. Sheila Hoadly, 125 Waltham Street, whose political sign precipitated the zoning enforcement action that led to this proposed amendment to the Zoning Bylaw, spoke briefly. She thanked Mrs. Fournier and Mr. Bartenstein for tackling the amendment, and also indicated her willingness to withdraw her amendment to the article, which is now viewed as being far too narrow in scope to achieve the objective. There being no further questions, the Board discussed what would be the next step for this amendment. Mr. Galaitsis asked the proponents if they could attend the March 12 planning board meeting; they could. The Board expects to receive a review from town counsel on. the proposed sign bylaw amendment by then. On the motion of Ms. Chase, seconded by Mr. Harden, the Board voted unanimously to continue the public hearing to March 12, 2003. * * ** * * * * * * * * * * * * * * * * * * * * ** PLANNING DIRECTOR'S REPORT * * * * * * * * * * * * * * * * * * * * * * * ** Mr. Garber reported the following: Transportation Element of the Comprehensive Plan A draft of some sections of the transportation element will be available soon. Work was delayed somewhat due to personnel issues at Vanasse, H:angen, Brustlin, Inc., consultant. Zoning Reform He suggested that Board members try to attend the ,p4jie hearing an the Zoning Reform Act. The various constituencies, for and against, are actively lobbyers .their representatives on Beacon Hill. Housin : Ms. Eli Machek is working on housing data with Philip )3. flerr Associates, consultant. Staff Minutes for the Meeting of March 5, 2003 4 also met with Harriet Cohen, chair of the Fair Housing Committee. They put the finishing touches on a draft letter the Committee will be sending to the Lexington Minuteman endorsing the Planning Board's affordable housing initiative. * * * * * * * * * ** ADMINISTRATION OF LAND DEVELOPMENT REGULATIONS * * * * * * * * * * ** RECOMMENDATIONS ON APPLICATIONS TO THE BOARD OF APPEALS Applications To Be Heard on March 13, 2003: Ms. Chase gave an oral review of the following applications: ■ 4 ROYAL CIRCLE - Special Permit to construct a tennis court The Board felt that there was insufficient information provided about the height, intensity and hours of illumination. They will recommend that the lights be shielded and that the allowed hours of illumination be set forth in the permit. ■ 1666 MASSACHUSETTS AVENUE - Nasos Phillips for the Boston lee Cream Corporation Special Permit to operate a take -out food service business selling ice cream, pies, cakes, yogurt and beverages, to be known as Minuteman Iee Cream. ■ 2 ANGIER ROAD - Variance from required 15 -ft rear yard setback to add a 2 -car garage with living space above it. ■ 354 WALTHAM STREET - Variance from required 15 -ft side yard setback to construct an addition. ■ 20 MAPLE STREET - 5 a_ia Permit to construct additions raising the roof above nonconforming portions of a single - family dwelling. The Board had no comment on these petitions. CORRESPONDENCE Massachusetts Housing Opportunities Corporation: Staff reported on the formation of a new non- profit housing development group called Massachusetts Housing Opportunities Corporation. Its goal is to work with municipalities to produce affordable housing. Mr. Kendall Brady, Easement Issues with Olde Smith Farm Subdivision Mr. Garber reported that staff received another letter in a long series of written and verbal communications from Mr. Kendall Brady, 29 Marrett Street, about a dispute over utility poles and his ongoing belief that he has rights to an easement through the Olde Smith Farm subdivision. Mr. Kendall has not provided any evidence that he has a right to an easement. Mr. Garber has told him that he should probably hire an attorney. REPORTS Board of Appeals. Rising Tide 4013 Project on Lowell Street Mr. Galaitsis informed the Board that the abutters have appealed the Board of Appeals' approval of Rising Tide's 40B proposal for 533 -577 Lowell Street. As one of the plaintiffs, he offered to resign as chairman if his fellow members believe he should. They assured him that resigning would not be necessary. On a motion by Ms. Chase, and seconded by Mr. Davies, the Board voted unanimou. y to adjourn at 10:20 p.m. Karl P. Kastorf, Clerk