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HomeMy WebLinkAbout2001-03-01-PB-minPLANNING BOARD MINUTES MEETING OF MARCH 1, 2001 The meeting of the Lexington Planning Board held in the Guard Room of the Police Station was called to order at 7:35 p.m. by Chairman Colman with members Chase, Galaitsis, Planning Director Garber, and Assistant Planner McCall - Taylor present. Mr. Davies and Ms. Bridge- Denzak were absent. The meetings opened with a brief presentation by Mr. Galaitsis on behalf of the Board, thanking Mr. Colman for his service on the Planning Board. This was Mr. Colman's last meeting before the Town Election when a replacement will be elected. MINUTES Review of Minutes The Board reviewed and corrected the minutes for the meeting of the January 22, 2001 joint meeting with the Board of Selectmen, and the meetings of January 29, 2001 and February 7, 2001. On the motion of Ms. Chase, seconded by Mr. Galaitsis, it was voted unanimously 3 -0 to approve the minutes, as amended. * * * * * * * * * * ** ADMINISTRATION OF LAND DEVELOPMENT REGULATIONS * * * * * * * * * * * ** PLANS NOT REQUIRING APPROVAL UNDER THE SUBDIVISION CONTROL LAW Form A /01 -03 The Board reviewed an Approval Not Required Plan for land at 196 Burlington Street. On the motion of Mr. Galaitsis, seconded by Ms. Chase, the Board voted unanimously to endorse the plan entitled "Plan of Land in Lexington in Massachusetts, Surveyed for R. M. Whalen Construction ", dated February 7, 2001, prepared and certified by Douglas W. Thompson, Registered Land Surveyor, Design Consultant, Inc., 265 Medford Street, Somerville, MA, with Form A /01 -03, submitted by Robert M. Whalen of R. M. Whalen Construction, applicant, as it does not require approval under the Subdivision Control Law. * * * * * * * * * * * * * * * * * * * * * * ** ARTICLES FOR2001 TOWN MEETING PUBLIC HEARINGS The public hearing portion of the meeting was called to order at 7:50. There were 19 people in the audience. Presentation of Articles 17, 18, and 19 . Mr. Loren Wood was the proponent for these three articles and he presented them in sequence. Mr. Wood, through a series of overheads, presented the purpose of zoning, the definition of a structure and a deck. He went on to explain that purpose of Article 17 was to allow a particular type of patio, one made of wood. He said that such a patio would be different from a deck, as it would not be open underneath. He argued that this was a cheaper alternative. He explained that he had had such a patio but had removed it after enforcement action by the Town. Article 18 deals with the definition of a hardship used in the granting of a variance. Mr. Wood explained that there has to be a hardship in order to get a variance and that one can never get a variance for a deficiency of frontage or area. He quoted from three court cases, including the one he had brought against the Lexington Board of Appeals. All of these cases deal with the interpretation of a "substantial hardship ". He maintained that the courts say the only hardship is if the land would have to stay vacant without a variance. His interpretation of the hardship requirement was that if a building were on. a lot there could be no hardship as the owner was able to make use of the property, even if it was not the most advantageous use of the property. Mr. Wood said that he was proposing this amendment to the Lexington Zoning By -Law so that it would actually state what case law said about "substantial hardship ". He felt it would bring the By -Law into "obvious conformance" and that individuals would not have to look up court cases to interpret the By -Law. Minutes for the Meeting of March 1, 2001 2 Article 19 adds a requirement that a decision denying a variance shall contain the grounds for denial by each member voting. Mr. Wood said that he wanted to promote the concept of the Zoning Board clearly setting forth the reason for its decision. He felt it would be good public policy to be more explicit. He related it to his experience of seeking a variance where the reason for denial was simply stated as a lack of hardship. He felt that the variance was denied based on. his having received a reduction in the purchase price, and that if that reason had been stated in the decision, the decision would have been overturned. Mr. Wood went on to state that from 1990 through 1997, the Zoning Board of Appeals has only five times given insufficient hardship as its reason for denial without any further explanation. He speculated that the "citizens of Lexington might wonder what the real reason was, and why a variance was granted on re- application in two cases." Questions and Comments Regarding Articles 17, 18 and 19 There was some discussion of the difficulty of interpreting the new definition of patio and the change from it being a paved surface. Mr. Galaitsis said that the definition of structure was something constructed and he felt that any time he used nails lie was constructing something, so wasn't a wood patio really a structure? Mr. Wood said he supposed that it was open to interpretation. Mr. Frank Sandy felt that since the definition of structures, which excludes paved surfaces, is not being changed it seemed little would be gained by this amendment. Mr. Kanter asked about the overhead entitled "Proposed Patio Option ", pointing out that this was not a part of the proposed amendment and so was not a part of the proposed definition. Mr. Nyles Barnert said he was concerned about mansionization and the amount of wood covering a property that would be allowed under this proposal. Mr. Wood said in summation that there was nothing harmful about planks. Regarding Article 18, Mr. David Kanter asked if this were the sole definition of substantial hardship or are there others? He was bothered by adding just a portion of a set of what is not a substantial hardship. Mr. Wood maintained that if someone is making use of the land than there is no hardship on which to base a variance. Mr. Frank Sandy asked what was the purpose of this amendment. He said that we don't put everything the court says in the by -law. He further stated that if this is what the court says, it doesn't matter if it is in the by -law or not, it is still the law. Mr. Wood said that variances are not to be granted to allow more advantageous use and dimensional variances should not be granted. Mr. Garber said that he was curious as to why there would be a Zoning Board of Appeals if use variances can not be granted and, according to Mr. Wood, now dimensional variances will not be allowed. David Kanter said he was concerned by what might appear to be an all - inclusive definition when it wasn't. Mr. Garber said, the issue of setback variances aside, the planning staff had reviewed the standard zoning references and they all uphold 40A section 10. As to the requirement of requiring individual reasons for denying a variance, Mr. Kanter said he looked at the board as an aggregate process and that lie didn't like the idea of individual decisions, rather than a board decision. He felt the board decision was the result of a process, and individual opinions might change through the course of a hearing. Mr. Wood said that be objected to a finding of insufficient hardship only. Mr. Galaitsis said he viewed a variance as a privilege, not an entitlement, and that it was up to the applicant to make the best case for a variance, including hardship. He felt it was not the responsibility of the ZBA to make the case. Mr. Kanter spoke to Mr. Wood's comment about cases where an initial denial was followed by approval, saying that a subjective element is part of the process. He asked Mr. Wood if he was suggesting that once a variance is denied there could never be another chance to get a variance? Mr. Wood said that that should be the case, as the land had not changed. Mr. Barnert said that it is now up to the applicant to prove there is a hardship and this amendment would now require the ZBA to make the case. When asked to give a summation, Mr. Wood said that he would like to make a patio of boards and he didn't think that dimensional variances should be allowed. Presentation of Article 20 , Mr. John Farrington presented this article. He said that most of the proponents are owners of businesses in the downtown. He gave the background for the proposed amendment as Minutes for the Meeting of March 1, 2001 follows: Few buildings in the downtown meet the Zoning By -Law rules for parking. As a result the properties are treated as grandfathered or non - conforming properties and are subject to the rules of Section 6 of the Zoning By -Law. When a new tenant is being considered by a building owner, that tenant must require the same or fewer parking spaces than the current tenant. If a new tenant required more parking than the vacating tenant, the new tenant would not meet the Zoning By -Law Section 6 parking requirements and could not be considered. If a new tenant requires fewer parking spaces, the number of parking spaces for the building ratchets down. This rule eliminates flexibility in the downtown business district. Mr. Farrington explained that the proposed By -Law change sets a baseline for parking spaces attributable to a building. The baseline is the parking demand for the current tenant or combination of tenants in the building, which cannot be exceeded. However, new tenants with lower parking demand can move in, but the number of parking spaces attributable to the particular building still is based on the current tenant mix. Thus, in later years, space could be rented to new tenants with a greater parking demand than the tenant they are replacing as long as the tenant parking demand never exceeds the established baseline. Comments and,Questions Regarding Article 20 A copy of a letter from Joe Marino, Lexington's economic development officer, in support of the parking amendment, was distributed to the Board. Mr. Galaitsis wondered if there had been a net decrease in the parking requirements for the downtown as a whole since the passage of the current parking requirements. Mr. Farrington said he did not know, but that there had been no net increase in the total parking requirement. Mr. Sandy asked about the parking at Decelle's. Mr. Farrington said if it were now conforming it would not be covered by this amendment. Dawn McKenna said she was wondering if the parking spaces attributed to the downtown businesses were just a fiction, why not eliminate the parking requirement completely? Robert Bowyer, who had been planing director when the current parking requirement was passed, said that it wasn't fiction, but that the parking demand factor had taken into account that people made multiple stops within town while parking only once. He said that when there had been no parking requirement buildings had expanded into parking areas, thereby raising demand at the same time they were decreasing available spaces. The basis of the current by -law is that movement will be towards conformity and, once closer to conformity, cannot go back. Mr. Bowyer said that the building department had records of parking credits and deficiencies based on 1984 figures. Mr. Farrington said the proposal takes into account the changes since 1984, including the ratcheting down. Mr. Kanter wanted to know what was the legislative intent and was there a social good in reducing aggravation due to the inadequacy of available parking spaces? He felt that there was still a good to reducing excessive demand. Mr. Farrington said that the current inflexibility does not necessarily produce a good tenant mix. In addition he doesn't see a proposal on the near horizon for a parking structure. Mr. Bowyer said the objective was to not make the parking situation worse, but it had been had thought that public action would be taken to increase available parking. Ms. Chase wondered why this was being brought forward now, after 17 years? Mr. Farrington replied that the current rules were not working; business owners with empty spaces are not able to find tenants without reducing the parking numbers. Ms. McKenna said so far the discussion had been about the value for landlords and it seemed to favor high -end renters like banks. She was interested in keeping a mix of uses. Mr. Galaitsis wanted to know if all the businesses wanted this. Mr. Farrington said that about fifteen owners had signed the warrant article and he had not asked for other input. There were several business owners in the audience who expressed their support of the article. Mr. Galaitsis wondered if the level of parking demand had decreased enough since 1984 that the town would be comfortable with freezing the level. He wondered if there should be a "central bank" for parking spaces, rather then attributing them to individual buildings. Minutes for the Meeting of March 1, 2001 4 Mr. Farrington summed up by saying that the key point is the current system doesn't serve the business owners and it has not succeeded in ratcheting down the number of parking spaces to compliance since it went into effect in 1984. Business owners need flexibility in who they can rent to. The real solution is a garage and that is far in the future. Article 21 was presented by Tom Cox of Citizens Bank. He explained that 7 Hartwell Avenue is a planned CD zoning district, the first of its kind to be passed by the town. The 1979 rezoning allowed bank use at this site and the owners now want to have general office use. The bank is planning on selling the property and would like to have a variety of allowed uses in the CD- 1 zone. After talking with other town boards and committees, they plan to abandon the drive - through area and put it in grass, and they will remove ATMs and doctor's offices from the list of allowed uses. Mr. Cox said that the proposed office use would have a decreased traffic impact. The physical plan will not change; there will be general office use within the existing building. In order to change the site plan, an owner would have to still have to go back to Town Meeting. Comments and Questions Regarding Article 21 There was a general discussion about the traffic impacts of the rezoning. Among questions asked were would the traffic demand really decrease, would peak traffic hours change, and was anything being done to mitigate peak demand? Ms. McKenna suggested that for Town Meeting Mr. Cox have the actual operating hours and what the traffic counts were when the bank was in uses. Mr. Galaitsis said that Town Meeting doesn't like to issue blank checks and that Mr. Cox would need to show that traffic was lower for those categories that they were asking to be allowed. Mr. Garber pointed out that eliminating certain uses from the list would greatly raise the comfort level of Town Meeting members. He suggested that they might consider an overall ceiling on trip generation that would in turn control the intensity of use. Mr. Charles Hornick said he would like to see more retail along Hartwell Avenue so workers could avoid trips to the center. Mr. Kanter said in principle he was in favor of the proposal and felt that WYSIWYG (what you see if what you get) was still there as any physical changes to the site would have to come back to Town Meeting for approval. The public hearings on the zoning amendments were closed at 10:30 p.m. Planning Board Discussion of the Warrant Articles Articles 17, 18 and 19 did not have the support of the Board members. They felt that a patio was something paved and should not include wood placed on the ground. The amendments dealing with variances were seen as unnecessary. These articles seemed to be in response to one person's particular concerns and were not the result of some greater public need or good. The Board directed the staff to write a report that would not recommend these articles to Town Meeting. Article 20 on the parking was supported by the Board. Although an argument could be made for waiting until the parking study by VHB was completed and the comprehensive plan was further along before modifying parking requirements in the downtown area, no one felt that passing this now would preclude any future action by Town meeting. The Board did not expect this change to have a major impact on the parking situation in the center, but it might give a psychological lift to the business owners. Article 21, the expansion of allowed uses in the CD -1, was also supported by the Board, with the exception of full - service banks, medical offices, and the general, "other business" uses. The Board felt that the ATM use should remain as an allowed use. An ATM at this site would be a service to the employees of Hartwell Avenue and might reduce traffic in the center. The meeting was adjourned at 11:00 p.m.: / Sara B. Chase, Acting Clerk