Zoning Board of Appeals

RECEIVED By City Clerk at 2:07 pm, 2/1/22 MINUTES of the ZONING BOARD OF APPEALS MEETING THURSDAY, December 16, 2021 (Posted in accordance with the provisions of MGL Ch. 39, Sec. 23A, as amended) Council on Aging – 7:00 p.m. 68 Elm St. Amesbury, MA 01913 Attendance: Sharon McDermot (Chair), Donna Collins, David Haraske, Matt Vincent Absent: Michael McCarthy, Also in attendance: Building Inspector Vincent Tirone, Recording Secretary Janice Valverde _______________________________________________ Chairwoman Sharon McDermot calls the meeting to order at 7:12 p.m. Chair announces that there are no minutes from the October 2021 meeting. The September minutes will also be voted on at a later date. [The November meeting was cancelled.] There are no minutes to vote on at this time. Chair addresses applicant, says it requires four “yes” votes to approve an application for a Special Permit and since there are only four ZBA members present, it means they must all vote yes. She asks applicant if he is agreeable and wants to proceed. He says he agrees. PUBLIC HEARING. Chair opens the public hearing, reading: Richard Cunfi (co-owner), 99 Loring Rd., Winthrop, MA is seeking a possible SPECIAL PERMIT under the Amesbury Zoning By-laws, Section XI.K1 to convert an existing two-family structure to a three-family structure. The property is located at 22-24 Aubin St., Amesbury, MA in an R-8 Zoning District (Map 53 / Lot 147) according to the Assessor’s database. Chair invites applicant to podium to speak about application. He introduces himself as Attorney James McKenna, a land use attorney from Essex. McKenna says applicant seeks relief relative to occupancy as a three-family and a variance to add dormers to the third floor of the structure. Property is a “real jewel on the street.” The neighborhood is clearly a multi-family neighborhood with several multi-family units and a four-family adjacent to the property. Conversion to a three-family would be “an advancement in the neighborhood.” Cunfi “is a terrific builder” with many successful projects “south of here.” Cunfi sees this as an opportunity to introduce himself to the area. The property was a “two and a half family” for many, many years with an apartment on the third floor, although McKenna says he does not believe it was permitted. He said they cannot re-do the past but can hopefully “come right . . . going forward.” It offers a great opportunity to bring the property up to a current modern standard. “It’s a tired building” that needs a facelift. It is an opportunity for an owner- occupied investment in the neighborhood. It makes a lot of sense since it would improve existing dwellings, creating new units that do not add to the footprint of the town but adds density and increases the tax base. He submits that it is a “win win” for the city. McKenna states that the structure is “grandfathered’ with two nonconforming elements as it stands now, the setback in front and the height, which exceeds 36 feet. The variance would allow addition of dormers to the roofline, but not to exceed the peak of the roof, to bring natural light and more livable space into the dwelling. Two dormers are proposed on each side of the building. The lot would remain as is; it already has plenty of parking. The lot coverage requirement is 12,000 square feet; this property has 14,000+ square feet. There is substantial parking for three units. Dave Haraske makes a motion to close the hearing and move on to the discussion of the application. Matt Vincent seconds the motion. The motion passes unanimously. Haraske notes that the property is now a nonconforming two-family, with nonconforming height and front setback. He says a reading of bylaw on residential conversions, in the R-8 zone, says the minimum area is not less than required in all other zones. There is no issue since the lot is 14,000+ square feet. Haraske says that item #4 in the bylaw [Bylaw Section XI.K1] says that a conversion must meet “all other dimensional requirements of the zoning district on which the conversion is proposed are met.” He reads that to mean that to convert this structure to a 3-family, applicant must meet the zoning dimensions for R-8. That would be a minimum of 15 feet for the side setback, 30 feet for the rear, and 25 feet minimum setback in the front. He says the height requirement for R-8 is 35 feet, but this structure’s height is 36.4 feet. Matt Vincent says even though the property is now nonconforming, what the board would be approving is a new nonconforming structure. Donna Collins and Sharon McDermot say that since the applicant is not proposing a change in height, that the project would not be “expanding any existing nonconformities.” Collins asks if the nonconformities aren’t grandfathered? She interprets the law to mean that since the applicant is not changing any of the dimensions, such as the setbacks, etc., that the existing ones are not in question even though they are nonconforming as a 2-family. Haraske says he is concerned about what #4 requires. “The law is kind of clear that you still have to meet the dimensional requirements of the zoning district, and for R-8, that is 35 feet.” He suspects the law was written this way because conversions to 2 or 3-families increase density. . . so that the area around the houses does not get too dense . . . that the setbacks remain as they were. “The law reads separate for what he is trying to do.” He points out that it was the two-family that was grandfathered, not a three-family. Collins points out that “2 to 3-family conversion is something that we allow with a special permit” and repeats her interpretation that since the application is not changing any of the existing dimensions, . . . that it is [allowable.] Chair agrees with Collins saying it is already nonconforming and is not increasing any of the nonconformities. But Haraske says what matters here is that a new use is being proposed, a 3-family rather than 2-family, and that means the requirements must now be met for the new use, as he understands it. Matt Vincent says a proposed project cannot create the nonconformity, but these nonconformities pre- existed the proposed project. Haraske says it is not about the nonconformities, but rather is about the dimensional requirements. He reads from [Amesbury Zoning By-laws, Section XI.K1, item 4, Residential Conversions] “In the R-8 and R-20 Zoning Districts a special permit may be granted by the Board of Appeals for the conversion of one- family dwellings into two-family dwellings and of two-family into three family dwellings in accordance with the following provisions: 4. All other dimensional requirements of the zoning district on which the conversion is proposed are met.” He says it is pretty clear, that he has no issue with this request itself, but says the board “just can’t make our own laws here either. I do not see the justification . . . I do not know how else to read this.” Chair asks Building Inspector Vinnie Tirone for his opinion. Tirone says his professional opinion leans toward what she is saying. It is a nonconforming building and the proposal will not detrimentally change any other height requirements. So, it really comes down to the standard of “is a 3-family permitted in this district?” And it is. Since he is not changing anything else, it comes down to the question of sufficient parking for a three-family . . . that is in Chapter #8. There is. Tirone advises that if the board does not feel comfortable deciding, they might defer it to another meeting, especially since four votes would be required to approve the application. Matt Vincent asks if it is a matter of a legal interpretation, does the board want to put it to [name of law firm]. Haraske says it is not necessary. Chair says she does not want to do that. Chair asks for the board’s thoughts. Haraske points out that the board is just here to follow the law. Chair says she does understand Haraske’s concerns. Vincent says he thinks Haraske is reading the law right. It is one of those situations in which there is room for another decisions since the bylaw is straightforward. Haraske say the board must also consider the matter of setting a precedent for others who come before the board to convert a two-family to a three-family and say that the board ignored the bylaw once, why not in their case? Vincent cited a case decided last year by the ZBA regarding a chicken coop in which the board decided the coop could remain only if it was moved from its current location to within the dimensions spelled out in the bylaws, a certain dimensional setback. “If you want to use your property in a certain way, you can,” but you must do so according to the zoning requirement for setback and other dimensions.” McKenna asks if he may propose something. Dave Haraske makes a motion to re-open the hearing so that McKenna may speak. Matt Vincent seconds the motion. It unanimously passes. McKenna says he sees the problem the board is having. “The two matters combined may be a struggle at this point.” He ask if he can withdraw the application and “submit simply for the special permit . . . as the building inspector has suggested . . . and it’s no longer a question of changing the . . . “ Vincent asks McKenna id he means “keeping the existing two-family?” McKenna says. “No, we apply for the third unit under a special permit process. Because then, if we meet the criteria, we can move forward. It would not require . . . it would just be a special permit.” Chair says, “This is what we are talking about . . . the special permit.” McKenna asks if he needs four votes on a special permit as well. Chair says yes. Collins tell him there are four of us here, but there are five on the board. You need four votes for approval. Chair says that is why she asked before the hearing started if he was OK with four since it requires four to approve an application. McKenna says, “I’m trying to think that if we just submitted for a special permit. . . in and of itself . . . if we meet the criteria . . . I submit that the non-conforming matters of the existing structure, according to the McCarthy case, should not apply if we do not increase the nonconformity of the structure. What we are submitting is not increasing the nonconformity of the structure because we are not violating any of the dimensional requirements in your ordinance.” McKenna asks if the board’s concern is that pre-existing nonconforming elements of the existing building do not meet the existing zoning such that it could . . . Haraske states it does not meet the rules for the conversion to a three-family because of the existing zoning. McKenna says he is “trying to come up with a remedy here.” McKenna says it would change the economics of the project, change from a three-family “detracts from the value proposition.” Chair says applicant is free to withdraw and submit the application again. She add that if he comes back and applies for this again, he is still missing that [requirement]. Vincent says applicant can still apply to build what he wants to build anyway, but he will not end up with a three-family. The problem is that the conversion puts “handcuffs” on the board in terms of the nonconformity issue. McKenna says they had expectations that the board would understand that the building has been existing as a three-family, whether it is legal or not is one thing. He said the prior owners used it as a three-unit for years. “We felt that you would understand and say that it doesn’t pose any further detriment to the neighborhood, so the density issue really isn’t an issue because it has been that way very consistently with the rest of the neighborhood.” Haraske says he does not disagree. However, the legal standing is two-family. The applicant wants to take the legal standing from two to three, and that is why he had to come before the board. “You’re looking at the law. The law is pretty clear.” McKenna asks the board if they can sanction the nonconforming structures that exist all over the middle of the town, which have been used in the past as a certain number of units [without being permitted]. Vincent says that is not the problem. The problem is setting a precedent for those who do come before the board. Haraske says as a board we have to follow the law. Vincent says if the board were sued on a decision, and had been arbitrary and capricious, that is the standard. “We cannot, as a board, be arbitrary and capricious in the way we apply these zoning permits and give one owner a right to do something and not the other owner, when the fact patterns are no different.” McKenna says in this case, it has been acknowledged as a use for a long, long time as a three-unit. “Many communities need to bring out from the dark those units that are being using in such a way so that they are recognized by the tax rolls and so that they are properly inspected and called what they are.” Haraske says that may be, but that is a political question. Vincent says no one on the board believes the project would not be an improvement to the neighborhood, but that is not the issue. Chair says the ultimate issue is that it does not look like the matter is going to be solved tonight. If applicant is willing to withdraw the application, the board will take a vote and let him withdraw. Vincent says that if he withdraws and comes up with a different plan, he can submit it, but “I don’t know how it changes anything.” McKenna requests that he withdraw the application. He says he will see if he can find any case law that supports the application and suggests that pre-existing nonconformities should not bear weight on this application. Chair suggests that applicant speak to the Building Inspector, too. Chair asks board for a motion to allow the applicant to withdraw application without prejudice. Vincent makes the motion. Haraske seconds the motion. Motion passes unanimously. Chair says in order to withdraw, applicant must send a letter to her. Chair says there is one item to consider, but it is not on the agenda. Board has been asked to approve its 2022 schedule, but none of the board has received the schedule. Vincent asks if they can at least approve the January meeting. All agree. Chair says next meeting is January 27. It is on the calendar. Chair asks for a motion to adjourn the meeting. Collins makes a motion to adjourn. Vincent seconds the motion Vote to adjourn is unanimous. Meeting is adjourned at 7:45 p.m.