Appeals, Zoning Board of

CITY of BEVERLY Zoning Board of Appeals November 30, 2022 at 7:00 pm These minutes are not a verbatim transcript of the public hearing of the Board of Appeals. Reviews of the Board’s Decision or outcome of the public hearing should include an examination of the Board’s decision for that hearing. Members Present: Kevin Andrews, Chairperson, David Battistelli, Pam Gougian, Jim Levasseur, Will Cosmas, Margaret O’Brien, alt. Others Present: James Butler, Building Commissioner Leanna Harris, Administrative Assistant Location: Council Chambers City Hall, 191 Cabot Street, Beverly Kevin Andrews began the meeting at 7:06 pm and introduced the Board members present. I. NEW PUBLIC HEARINGS Nathanael Yellis requests a Special Permit to add a second floor to an existing nonconforming dwelling with a left side setback of 10.1’, where 15’ is required. There will be no change to the building’s footprint. The property is located at 26 Laurel Street in the R10 zoning district. Nathanael Yellis addressed the Board and stated his house was built in 1890 and in the mid-50s they built an addition on the rear of the house. Mr. Yellis bought the house in 2017 and they are looking to add a second floor addition, approximately 300 square feet on the original footprint. No one from the public spoke in favor or against. Mr. Cosmas asked for confirmation that the signatures included with the application are from direct abutters and Mr. Yellis confirmed. Mr. Battistelli asked if 26 Putnam Street signed the petition and Mr. Yellis confirmed. Mr. Andrews stated the design is really nice and it does match the original house. Mr. Andrews asked how much taller the house will be and Mr. Yellis stated about 16’ but confirmed it will be within the 35’ height limit. MOTION: Mr. Levasseur moved to close the public hearing. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries.  MOTION: Mr. Levasseur moved to GRANT a Special Permit at 26 Laurel Street to add a second floor to an existing nonconforming dwelling with a left side setback of 10.1’, where 15’ is required. There will be no change to the building’s footprint, subject to the plans submitted. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. Diana Alan requests a Special Permit to add a 3' x 4' roof over new exterior stairway. Roof will be no closer to left side lot line than the existing house. The property is located at 27 High Street in the R6 zoning district. Diana Alan and David Rodkey addressed the Board and stated they are looking for a Special Permit to add a 3’x4’ roof over exterior stairs. Mr. Rodkey showed the Board on the submitted drawings where the left side of the house is within the 10’ setback and about 8.5’ from the side line. Mr. Rodkey stated they couldn’t just extend the deck back so they put a 3’ stairway at each side of the deck. Ms. Alan distributed photos to the Board showing how the stairs exist today. They are currently framed awaiting Special Permit approval for the overhang. Mr. Battistelli stated that this is not the way things are normally done, usually an applicant comes before the Board first. Ms. O’Brien stated it does look very nice. Meredith Johnson, 29 High Street stated they live next door and provided the Board with photos of their property. Ms. Johnson stated they have been in their home for 12 years, since 2010. It has been difficult for them to determine what they should do and they would like to note that they have not taken this lightly. They have talked with contractors and had meetings with the previous building commissioner. Ms. Johnson stated they are formerly objecting to the proposed overhang request. The overall structure has “changed the vibe” of their yard and they have not spent as much time in the yard as compared to previous years. The neighborhood has tight backyards and the overhang of the roof is 8” closer to their home. Ms. Johnson stated the deck is more like a viewing platform into their yard. Ms. O’Brien stated the original permit was for work that was done by right and Mr. Butler confirmed. Ms. O’Brien asked if they would need to come back before the Board to enclose the existing deck and Mr. Butler confirmed and stated they would need a Special Permit. Mr. Andrews suggested the applicant consider not having the overhang in light of their neighbor’s concerns. Ms. O’Brien stated she appreciates the abutter’s concerns regarding enclosing the deck. Ms. Gougian stated on the application, they originally asked for it to go no closer to the side lot line than the original house and now they are asking to go a little closer but questioned it being ok because it’s a deck. Mr. Butler stated they are requesting a Special Permit. Page 2 of 9 Kent Sinclair, 18 High Street addressed the Board and stated he is a neighbor, not a direct abutter. Mr. Sinclair stated he is concerned about the process not being followed, although the proposal does not impact him directly. For permitting purposes, a plan was submitted that was flush with the wall and then the applicant did additional work without permission. Mr. Sinclair stated it is important to take into account that the applicants have decided to not follow the rules and then seek permission after the fact. MOTION: Ms. O’Brien moved to close the public hearing. Ms. Gougian seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, O’Brien) Motion carries. Mr. Andrews stated he would like to give the applicant the opportunity to withdraw their application without prejudice. Mr. Cosmas stated one of the criteria to grant a Special Permit is if there is considerable concern from the neighbors enjoying their property. Mr. Levasseur stated the objection is that someone is going to be looking down into their yard, they have to take one forward step to look over the yard, its not like 10 feet. The deck is there, its not coming down, its allowed by right. If this had come to them as a minor modification, it probably would have flown. Ms. O’Brien stated she agrees with Mr. Levasseur but it still encroaches more than the front area. Ms. Gougian asked if the first floor deck that was already there was extended or if it is new and Mr. Rodkey stated it is new. Ms. Gougian asked for confirmation that they could extend the deck right to the lot line with no roof and Mr. Butler confirmed. Ms. Alan requested a continuance to the January meeting. MOTION: Ms. O’Brien moved to approve the request to continue the application to the January 25, 2022 meeting. Mr. Levasseur seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. Arsenio Delarosa requests a Finding to construct 12' x 16' roof deck on nonconforming dwelling. Deck is to be accessed by new door from 2nd floor bedrooms. The property is located at 4 Chase Terrace in the R10 zoning district. Arsenio Delarosa stated he is requesting a Finding to build a 12’x 16’ second story roof deck. Mr. Delarosa explained that when he owned the house he had started the process of getting a permission to build the roof deck. The new owners are present today. Mr. Delarosa stated there are a lot of roof decks in the neighborhood. Page 3 of 9 Richard Turner, 30 Crescent Avenue stated his property abuts 4 Chase Street by about 20 inches and he has huge privacy concerns. Mr. Turner stated he objects to the roof deck because it will negatively affect light into his garden and also encroach on his privacy. Mr. Turner stated there were changes to the roof design and in his opinion, the building permit was not issued correctly and he feels victimized by the lack of permitting policy. Mr. Turner stated he does have alternative solutions to offer involving pushing the deck back. There was a century old maple tree there and the owner had branches cut back 30 feet resulting in a huge loss of privacy for others in the neighborhood. Ms. Gougian stated she doesn’t feel that this is an application for a Finding. Mr. Andrews asked Mr. Delarosa what will be offered for privacy. Mr. Delarosa stated the Hennessey’s are open to different privacy screen options. MOTION: Mr. Levasseur moved to close the public hearing. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. A letter was submitted from 34 Crescent Avenue in favor of the roof deck. Mr. Andrews stated he does not have a significant issue with the design. MOTION: Mr. Levasseur moved to GRANT a Finding at 4 Chase Terrace to construct a 12' x 16' roof deck on the nonconforming dwelling. The deck is to be accessed by a new door from the 2nd floor bedrooms, subject to the plan submitted. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. Alexander & Femino o/b/o Carlos Delgado requests a Variance to construct 3 new dwelling unit buildings on a 3,473 sq. ft. lot in the RHD district which is 1,158 sq. ft. per dwelling unit where the zoning ordinance calls for 3,000 sq. ft. per unit. The front yard setback which is currently 8.2’ would be maintained where the zoning ordinance calls for 15’ and the parking would be within the required 5’ setback. The property is located at 28 Bow Street in the RHD zoning district. Tom Alexander, Esq. (Alexander & Femino) addressed the Board and requested a continuance to the next meeting so they can have an opportunity to address abutter’s concerns. MOTION: Mr. Cosmas moved to GRANT a continuance to the January 2023 meeting for the application for 28 Bow Street. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, O’Brien, Gougian, Cosmas) Motion carries. Page 4 of 9 Alexander & Femino o/b/o Nathan M. Seavey and Monica D. Seavey request a Variance to resubdivide 2 lots from the original subdivision. Lot A to have 8,046 sq. ft. of land and 35’ of frontage and Lot B to have 7,662 sq. ft. of area and 85’ of frontage where the zoning ordinance calls for 10,000 sq. ft of area and 100’ of frontage. The new house to be built on Lot B conforms with all zoning setbacks. The property is located at 9 Kernwood Avenue in the R10 zoning district. Tom Alexander, Esq. (Alexander & Femino) addressed the Board and stated this property is similar to many others that have come before this Board. The lot is over 15,000 sq. ft. and it was two lots on the original subdivision. Many lots in the subdivision have an area of approximately 6,000 sq. ft. with 60’ of frontage. The 2 lots would be resubdivided into two lots, one being 8,046 sq. ft. and the other 7,662 sq. ft. Atty. Alexander stated the City allocated a street number for this vacant lot some time ago. The existing dwelling on the site is very old, the assessor records indicate it was built in 1900. It is only 2½ feet from the rear lot line which is very unique in this area. Atty. Alexander stated when they reconfigure the lots the lot lines will be adjusted due to the location of the existing house. The new house will comply with current required setbacks and the relief granted would not be detrimental to the public good, it would be keeping with the neighborhood. Atty. Alexander stated the Variance would keep the lot size in accordance with the other lots in the neighborhood, it would not create anything unusual. Atty. Alexander provided a petition signed by neighbors in favor of the project. Mr. Cosmas asked Atty. Alexander about 13 Kernwood Avenue not signing the petition and Atty. Alexander stated Mr. Seavey met with the owner of that property a couple of times. Mr. Cosmas stated according to the map provided, the City treats this as one lot and Atty. Alexander confirmed and stated the City did reserve a street number for the lot. Nicole and Garreth Fell, 13 Kernwood Avenue stated they have a number of concerns and oppose the Variance. It is one lot now and they are concerned about the precedent set if approval is granted. They were informed late in the game about this and they have not had any conversation about the design of the building. Each house on the street is in a row and the plans show the house set back which will interfere with what they see in their yard. Nicole stated she is also concerned about the new structure interfering with enjoying their wrap around porch. Paula Contilli, 7 Kernwood Avenue stated they have lived there for 29 years and she was told that that the area used to be a farm. Ms. Contilli stated their living room overlooks the Seavey yard and currently it is an unpleasant design. All the lots are equal and they feel the Seavey’s changing the lots would not be a bad thing. Ms. Contilli stated they are a young family looking to make use of the second lot. Ms. Contilli stated they have seen the plans and they are in favor of the build. Everyone’s yard overlooks everyone’s yard, it is very tight. Greg Nowak, 63 Livingstone Avenue stated he is a neighbor, not an abutter. Mr. Nowak stated he spends a lot of time walking around the neighborhood and he thinks what is being proposed is keeping with the neighborhood and he supports the project. Mr. Nowak doesn’t think it matters where on the lot the house is built. Page 5 of 9 Atty. Alexander stated he thinks they can address some of the abutter’s concerns and requested a continuance to the January 2023 meeting. MOTION: Ms. O’Brien moved to GRANT a continuance to the January 2023 meeting. Mr. Levasseur seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, O’Brien, Gougian, Cosmas) Motion carries. II. MODIFICATION REQUEST Original Request: Alexander & Femino o/b/o Andrew and Alison Rapisardo request a Variance to allow for the restoration of the 2 lots at 8 and 10 Dolloff Avenue for single family residential purposes. Currently there is an existing single family residence at 10 Dolloff Avenue and a large structure that had been used as a residence for many years at 8 Dolloff Avenue. The variance would result in 8 Dolloff having 81.92’ of frontage and 5,010 sq. ft. of area and 10 Dolloff Avenue having 44.70’ of frontage and 6,902 sq. ft. of area where the zoning ordinance calls for 100 feet of frontage and 10,000 sq. ft. of area. The existing former residential structure at 8 Dolloff Avenue which is 1.7’ from the side lot line would be torn down and replaced by a new single family residence that is 10’ from the front lot line and 11.8’ from the rear lot line where the zoning ordinance calls for a 20 foot front yard setback and a 25’ rear yard setback. The property is located at 8 and 10 Dolloff Avenue in the R10 zoning district. Tom Alexander, Esq. (Alexander & Femino) addressed the Board and stated they are seeking a minor modification at 8 and 10 Dolloff Avenue. The plans misidentified the size of the footprint of the proposed house. The Variance was originally granted at the September 28, 2022 meeting. There were over 30 abutters who had signed in favor. Atty. Alexander showed on the map the proposed house and the existing garage/residence. Presently it is 25’ from the side lot line and they are requesting 23’. MOTION: Ms. O’Brien move to close the public hearing. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, O’Brien, Cosmas) Motion carries. MOTION: Ms. O’Brien moved to Find the change is a Minor Modification. Mr. Levasseur seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, O’Brien, Cosmas) Motion carries. Page 6 of 9  MOTION: Ms. O’Brien moved to approve the Minor Modification at 8 and 10 Dolloff Street to now approve a 23’ setback, where 15 is required. Mr. Levasseur seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, O’Brien, Cosmas) Motion carries. II. ADMINISTRATIVE APPEAL Heney & Associates o/b/o Charles Harris, Trustee of the Ober Street Realty Trust of August 1986 request an Appeal to the City of Beverly Zoning Board of Appeals from the issuance of Building Permit No. BLD22-01170 for conversion of existing three car garage with home office above into a guest suite at 7 Ober Street, Beverly, MA 01915. Map 12 Lot 229 without first obtaining zoning relief from the Zoning Board of Appeals including a Special Permit, Variance and/or Finding under G.L. 40A, Section 6. The property is located at 7 Ober Street in the R10 zoning district. Bill Heney, Esq. (Heney & Associates) addressed the Board and requested the Board reverse a building permit issued by the building inspector. Atty. Heney stated they were here before the Board in July for a much different project asking the Board to deny the building permit. In the end, the Board upheld the permit and they appealed that decision. The new project is much different in many ways, but it has streamlined their opposition. Atty. Heney provided the Board members with copies of the Zoning Ordinance sections they are referring to. Atty. Heney stated there are two parts of their opposition: 1. The applicant should be in front of the Board seeing a Finding under G.L. c.40A, Sec. 6; 2. The applicant is referring to it a guest suite and it is truly an accessory apartment Atty. Heney stated this is a pork chop lot with 10’ of frontage, it is nonconforming. In July, Mr. Frederickson stated that in the past, Beverly has been more lenient if the structure itself meets the setbacks. Atty. Heney stated, according to Land Court, they are not treated separately and the applicant should have requested a Finding. They still have their pending case in Land Court and this issue will be added to it and will likely be remanded back to this Board. Atty. Heney stated the applicant did not have the Section 6 Finding and so the building permit cannot be issued without it. Mr. Cosmas referred to the Memo that Atty. Heney submitted and stated if it is a nonconforming lot, the lot dimensions can’t be changed to increase the nonconformity. Atty. Heney stated the lot is nonconforming and they missed a step in the procedure. Mr. Battistelli stated, when he voted in July, his intent was that this was not substantially detrimental to the neighborhood. Page 7 of 9 Mr. Andrews asked for clarification that they are stating they should have requested a Finding for the building. Atty. Heney confirmed. Atty. Heney stated the applicant referred to it as a “guest suite” to bypass requirements in the zoning ordinance. Mr. Cosmas stated one of the arguments for the initial appeal of the building permit was that the existing house was lawfully created because it was built in 1900 and therefore is grandfathered in. Atty. Heney stated back when the house was built, the lot was much bigger. Mark Glovsky, Esq. (Glovsky & Glovsky) addressed the Board and stated they were here several months ago discussing the prior building permit. That was a project encouraged by the neighbors in lieu of doing a different project. The Avallons were quite surprised when the project they proposed was objected to by the neighbors who encouraged it. Mr. Andrews asked if the guest suite meets the setbacks as a building and Atty. Glovsky confirmed. The Avallons are trying to make it as simple as possible so they can proceed with the project. All of the work being done for this project is done within the four walls. It is a house that conforms in all respects. Atty. Glovsky provided a copy of a letter from Thad Siemasko. The Avallons need to create additional space for their parents when they visit. Nothing will be done to change the footprint of the house or create any doorways. Atty. Glovsky stated it is established that you can have two kitchens in one house but they are not proposing a kitchen, there is a snack center, there is no stove. Before an occupancy permit can be granted the building inspector will need to inspect the addition. The house complies with all dimensional requirements. Atty. Glovsky stated there are a lot of houses in Beverly that do not have adequate frontage and if they all needed to come before this Board for interior renovations, they wouldn’t leave this room. Mr. Andrews asked Atty. Heney why he thinks this is an accessory unit and Atty. Heney stated it has bedrooms, bathrooms and a snack bar. Mr. Cosmas stated he doesn’t believe there is information before them that shows people are going to live there. Atty. Heney stated the ordinance doesn’t say live, it just says occupy. Ms. Gougian asked what is meant by anc expanded snack bar and Mr. Avallon stated it has more counter space and a microwave. MOTION: Mr. Levasseur moved to close the public hearing. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. MOTION: Mr. Battistelli moved to uphold the appeal at 7 Ober Street and require the applicant to come before the Board for a Special Permit, Variance and or Finding under Section 40, Section 6. Mr. Levasseur seconded the Motion. Votes opposed: 0-5 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion Failed. Page 8 of 9  OTHER BUSINESS A. Approval of November 1, 2022 Meeting Minutes (Levasseur) MOTION: Mr. Levasseur moved to approve the minutes from the November 1, 2022 Zoning Board meeting. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. B. 2023 Meeting Calendar MOTION: Mr. Andrews moved to approve the 2023 ZBA calendar with the exception of the February 2023 date. Mr. Levasseur seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, Gougian, Cosmas) Motion carries. MOTION: Ms. O’Brien moved to close the public meeting at 9:45pm. Mr. Battistelli seconded the Motion. Votes in favor: 5-0 (Andrews, Battistelli, Levasseur, O’Brien, Cosmas) Motion carries. Leanna Harris, Administrative Assistant Board of Appeals of the Zoning Ordinance Page 9 of 9