Zoning Board of Appeals

ZONING Board of APPEALS 14 Wallace Ave. Fitchburg, MA 01420 MEETING MINUTES September 19, 2017 1. ATTENDANCE: LM, MM, AZ, JB, JM & JS 2. PLEDGE OF ALLIGENCE: All 3 CORRESPONDENCE: LM 4. HEARINGS: ZBA-2013-06 Silvia Silvera 107 DANIELS ST 6:00PM No one in the audience for this hearing: JB – Plenty of parking and room for buses to drop off. In favor of the petition. LM – Looks much like it did when we approved it 5 years ago, glad it’s working out. MM – Suggest we approve and strike the condition of any further review. MM – Motion on ZBA-2013-08 to Approve the Review and retain all conditions except the condition of further review. JB – Motion Seconded VOTE: 5-0 Approve Review ZBA-2014-08 Timothy Pomerleau 150 BENSON ST 6:10PM Petitioner walked the Board through the new site plan, as-approved by the Planning Board. No one in the audience for this hearing: MM – Impressed with the orderliness of the site, it’s a very positive reflection on the business. Petitioner – We try hard to avoid the old “junkyard” mentality. MM – Front of the property is nice, but would like (as a request not a condition) further beautification as time and money allow. AZ – Second Mike’s impression: it doesn’t look at all like a “junkyard” and is meticulously kept clean. Very impressed. LM – Don’t think we need another review. MM – Motion on ZBA-2014-08 to Approve the Review with no condition of further review (other conditions intact). AZ – Motion Seconded VOTE: 5-0 Approve Review ZBA-2017-16 Andrew Mercurio 38 OMENA PL 6:20PM Mr. Mercurio indicates that he was able to purchase adjoining and facing lots to use existing parking spaces to service 38 Omena Pl. He submitted a parking plan clearly showing the proposed parking. No one in the audience for this hearing. Board discussed the purchase and details of the lots with Mr. Mercurio. AZ – Our only concern had been the parking, and that’s now satisfied. LM – Do we need language to make sure the lots can’t be sold separately? AZ – No, they’re already legally merged. MM – Not in favor of making more density by putting a structure on the side lot. Mercurio – I have neither the intention nor the resources to do that. JS – It would be nonconforming, not a buildable lot. AZ – Agreed, not an issue. Mercurio – The extra lot also makes snow removal a non-issue. JB – Does the guy who sold you the parking have parking for his other buildings? Not that it’s your problem. Mercurio – Don’t know, but the parking in question was only being used for a single non-functional vehicle. I plan to put up signs indicating resident parking only. MM – What’s time to completion? Mercurio – About six months, all told. CLOSE AND DELIBERATE MM – In favor, and I feel that it meets the statutory criteria. Would like to see a condition that the new lot is to be used only as parking. JM – In favor. JB – I think it’s great. LM – Very pleased. Would like to see a review in six months. AZ – Motion on ZBA-2017-16 to Grant the Special Permit, with a six month review, and the condition that the auxiliary lot is not to be used except as provided for on the plan as submitted, and that this restriction will be recorded at the Registry of Deeds. JB – Motion Seconded VOTE: 5-0 Grant Special Permit with conditions. 2 ZBA-2017-31 Clearwater Real Estate Investment Group, LLC 324 LUNENBURG ST 6:30PM Harold Matteo (owner) was accompanied by surveyor Jim Gaffney. They presented an updated parking plan for the proposed use, showing spots, buffer zones, and snow removal areas, as had been requested at the previous hearing. LM – What is the intention with the building at this point? Matteo – Residential/commercial, with two commercial units on the bottom (office-type businesses) and two residential apartments above. JB – What kinds of businesses? Matteo – Depends, but likely service businesses, such as an attorney or barber. MM – Could you point out entrances and egresses for each of the four units? Matteo – [Indicates them on the plan.] JS – Any tenants lined up yet? Matteo – None yet. JS – Floor plan? Matteo – Didn’t get a chance to get that, but not changing any layout. Just finishing existing rooms that had incomplete renovations. MM – How many bedrooms? Matteo – One in the rear unit, and three in the front unit. LM – Refresh my memory on fire compliance. Matteo – Does need full sprinklers. LM – Are you planning on doing all these renovations, not selling? Matteo – Planning to sell, but doing renovations first. LM – Special Permit ends with you, new owners would need to apply again, so renovations would have to be done before sale. Matteo – Yes, that’s the plan. CLOSE AND DELIBERATE MM – In its day, this was a single-family home with a barn. I’m in favor of renovating it, but as two commercial, one residential and one commercial, or two residential. Four units is too much density. AZ – I’m on the fence. We’ve seen everything we asked for last time, but four bedrooms does seem like too much. If we could figure out a way to limit occupancy to fewer tenants, I’d prefer that. I’d like to hear what everyone else has to say. JS – I want to see that floor plan. It was requested at the last hearing. 3 REOPEN Matteo – The bedrooms are all preexisting for at least 10 years. I’m not adding anything. JS – [Further review of parking] AZ – Do you intend to rent out each residential/commercial pair as a unit for a live-in owner, or rent them entirely separately? That might alleviate the density concerns. Matteo – I’d like that, but can’t guarantee it. Depends on the tenants. CLOSE LM – Do we want to deliberate tonight, or continue since we’re running late? JB – Tonight. JB – Looking at the parking and considering employee parking, there’s only two spaces for customers of the businesses. Also, one of the primary egresses opens directly onto a parking space. I feel this is just too overpopulated for too small a building. AZ – Motion on ZBA-2017-31 to Grant the Special Permit with plan as submitted and all conditions previously discussed at this or prior meetings. JM – Motion Seconded VOTE: 2-3 (MM, JB, JM opposed) Permit Denied ZBA-2017-32 Clearwater Real Estate Investment Group, LLC 1118 WATER ST 6:40PM Harold Matteo presented an updated plan showing green-space as requested and all parking within lot boundaries. LM – [Read in email from AJ Tourigny, indicating that Mayor’s office has not been in negotiations with Mr. Matteo, as represented previously, regarding the purchase of the land onto which the business encroaches, and that the owners of the land encroached upon (CSX) are demanding removal of the encroachments.] Matteo – This is the first I’m hearing of this, and I’d like to read my correspondence with the Community Development Office, the Planning Board, and City Solicitor Pusateri into the record as well. LM – You can, but first there’s another letter that needs to be read in. Matteo – I have that other letter. That’s what I’ve been talking to the CDO about. This business has been encroaching since 1952, though I understand that you can’t take railroad land by adverse possession. In 1997, the City Council issued a permit to the previous owner allowing him to have 13 vehicles on the lot. What was asked of me last time was a plan showing what I’ll do with my land, and that’s what this shows. Also, I’m attempting to gain an easement over the railroad land. LM – [Read in certified letter from CDO to Mr. Matteo, expressing that the business is encroaching and that the encroachments need to be removed in order to unencumber the title so that it can be sold to the City.] Matteo – [Read in correspondence from Mike O’Hara 5/12/17: The proposed rail trail itself is over 20 feet from the encroachment at the nearest point.] I am seeking an easement, since my use of that portion of the land will not interfere with the trail in any way. [Indicates proposed easement on map.] 4 JB – Can we table this until the easement issue is resolved? I’m not voting on anything that is this wide open. LM – I’ll open it to the audience, and maybe the Assistant City Solicitor would like to weigh in. Matteo – I’d like to make one comment. I’m only looking to get a permit tonight for the portion that’s on my property, not for the railroad property. NO ONE IN AUDIENCE Assistant City Solicitor Christine Tree – The easement won’t be possible because the federal grant being used to purchase the rail trail land legally mandates that all other uses be eliminated. It appears we will be legally required to demand actual removal of the encroachments. Matteo – I’ve been contacting some of my state and federal contacts, because my property is not the only encroachment. I don’t want only my property to be singled out for this. I want to hear what the government’s remedy is for this sort of situation where the encroachment is no detriment to the planned development. LM – Please understand that issues like that are beyond the scope of the Board’s authority or responsibility. Matteo – I understand. That’s why I’m only looking to talk about the land I actually own. JB – I can’t see how we can grant a permit on anything here, because this plan can’t reasonably be put into effect. The commercial building itself is going to be ordered to be torn down. MM – I wasn’t in favor of the Permit the first time around, because of the encroachments, but the Board went ahead and granted a limited Permit. In the meantime, though, we’ve been informed of these further encroachment issues, and we’d still be approving a plan for a business that partially exists on someone else’s property. I can’t see how we can allow that. I recommend that the Permit be revoked until this is resolved. AZ – I like that you gave us the plan we asked for, and I’m sympathetic to the encroachment/easement dilemma you’re in. However, the permit request is for a business, and that business includes the office building, correct? Matteo – Correct. AZ – So, the thing is, even though the cars will now be all on your property as we asked, the building still isn’t. I get that’s not your fault and that you’re working on it. Matteo – That’s fair, so let me explain. It’s not the whole building that’s encroaching, just a very small portion. AZ – Yes, but buildings are considered as a unit. We can’t approve your use of part of the building but not the back corner. Matteo – If I have to knock that portion down, I will. The same goes for the carport. AZ – In theory, not speaking for the Board or even necessarily for my vote, we could approve a permit solely for the use of your own property. However, we legally cannot grant a permit that would be without a strict condition that you cease all use of encroaching structures. Matteo – Understood. I would only be using my land. 5 AZ – So, it would certainly be a hassle to have to do something like chop off the back of the building, but… Matteo – It’s a concrete structure that’s been there since 1952, but if we decide in 2017 that it has to go, so be it. AZ – That’s not up to me. Matteo – If I have to, I’ll just build to the right of my land. AZ – Just understand that we legally do not have the power to abrogate those laws. LM – As to snow removal, it looks like it’s all going onto the encroaching area. Matteo – A portion of it. LM – Snow removal is a problem with car dealerships, so that’s a concern for me. Also, this last spot is a concern. Gaffney – The spots are all entirely on his property. AZ – No buffer zone needed because it’s a commercial district. LM – I’d prefer not to move forward tonight because there’s a lot of new information and we need time to hear from City departments. Matteo – What more info could we get? LM – I want to hear about this easement. Matteo – I’m hearing that the easement is not possible, at least in the short term, so I want to table the easement and talk only about my land. LM – OK, then let’s talk snow removal. Matteo – [Indicates on map how snow will be removed, including trucks if needed.] LM – I’m just not comfortable going ahead until we’ve heard from all the other parties involved in these discussions. Matteo – You already approved it last time, and I brought the plans you asked for. LM – That was two months ago, and there’s a lot of new information since then. I and several Board members are not comfortable moving forward tonight, so we’re going to close and deliberate. Matteo – That’s not fair. CLOSE AND DELIBERATE JM – With this encroachment letter and everything, none of this can go forward because we need to know how much of the existing property he’ll even be able to keep. LM – That’s one person not comfortable moving ahead. 6 JB – No way am I moving ahead. If we move to a vote, my vote is no. MM – Let me say that the applicant is correct that we approved it last time, but between then and now is when this information came in. I’d like to note that the Board seems to be willing to approve a permit for a business if a plan is shown to us in its entirety, with all elements of the business on the property. LM – So, you’re not in favor of moving forward, and if we did, you couldn’t approve the petition? MM – Yes. AZ – I’m going to take a slightly different direction. As I said, we don’t have the power to approve the use of the building as it sits. I do think we could craft a condition such that the permit would be conditional upon removal any and all encroachments as demanded by the property owners. That way, if he somehow can work out an easement, he’s fine, but if not, then either he needs to remove the encroachments or lose the permit. LM – We’ve heard that other members aren’t willing to move forward, though, so it seems it might be best for the petitioner to pursue a continuance, since if it goes forward tonight, we’re hearing that the vote will be no. AZ – That does seem to be the most strategic option. I would be in favor of either continuance or the permit with the condition as stated—as per the preference of both the Board and the petitioner. LM – [to Matteo] Would you like to? Matteo – Yes, I applaud you for coming up with the condition. I have no issue removing all encroachments… LM – We’re closed and we’ve deliberated, we’re not taking further information. Matteo – You looked at me and asked me. LM – I was asking if you’d like a continuance. Matteo – How long do we continue this? Until the business goes bankrupt? LM – OK, we’ll move to a vote. Matteo – I don’t want a vote, you said you’re not ready to vote. LM – Then do you want a continuance? [Further cross-talk] LM – You need to decide whether you want a vote or a continuance. Those are the options. I’m sorry we don’t have the answer you want tonight, but we feel we need more information. Matteo – What information? AZ – The easement. We need to know whether you’re getting an easement or removing the encroachments. Matteo – I said I’d remove them. LM – That’s hearsay. We need more than just what you’re saying. 7 Gaffney – It’s not hearsay, he’s making a statement. Why can’t we just have a permit that’s conditional on removal of encroachments? LM – We’ve heard Board members say they’re not comfortable going forward with that tonight. MM – I think what the Board is saying is that we are willing to approve if we are presented with a plan that shows the business in its entirety on the petitioner’s property. Gaffney – So, come back with another plan, after the encroachments are gone? Can’t you make that a condition of the permit? LM – Our legal person said we can’t do that. Matteo – Last time, you gave me a conditional approval. Why not this time? AZ – The thing that changed was that we received confirmation that the owners of the encroached property were intending to assert their right to compel removal. Before, it was only a possibility. Matteo – I hope that applies to everyone encroaching, not just my property. AZ – If the others come before this Board, it will. [Further back-and-forth, resulting in a request for continuance.] JB – Motion on ZBA-2017-32 to Grant a Continuance of the Review to November 14, 2107 AZ – Motion Seconded VOTE: 5-0 Grant a Continuance ZBA-2017-16 South Middlesex Nonprofit 94 HIGHLAND AVE 6:50PM David Viens of Bowditch & Dewey appearing for the petitioner, along with Susan Gentille, SMOC employee. Viens – Have you had a chance to go over the Dover Amendment issue? What are the issues on the table? AZ – We’re going to need a lot of factual findings to resolve each of those, and each piggybacks on the others. For instance, we’ll only reach the abandonment issue if we first resolve the Dover issue. LM – The package that was sent [referring to a 100+ page sheaf sent by petitioner] was received by the Board only tonight. I’d be inclined to postpone deliberation to another time, because it will be a lengthy undertaking. Viens – I’d like to develop the factual issues, and then you could go over the legal issues later. Just to give a summary of the position, it’s undisputed that the applicant is a nonprofit educational corporation, and the issue is whether the proposed use is an educational use. The cases we’ve cited illuminate this question—it doesn’t have to be a traditional school, and the courts have given it a very broad meaning. We feel that the precedent cases present very analogous uses that were determined to be educational. If it is a Dover use, then we need to address the abandonment issue. Is the abandonment ordinance one that can be applied to a Dover use? I don’t know if this Board has considered that question before… AZ – It hasn’t come up, but we’re giving it consideration. 8 Viens – In an unrelated pending matter? AZ – No, in this case. Viens – We couldn’t find any authorities on the issue, but we feel it’s a fairly simple textual matter. LM – I’m going to interrupt for a moment to check with the audience and make sure any interested parties can hear. [No one in audience] Viens – Even if it were deemed to be applicable, it would have to be reasonable under the circumstances. We would take the position that first, the abandonment provision cannot be applied, but second, if it can, it’s unreasonable, because it would entirely impede the intended use in order to enforce dimensional requirements that neighboring properties generally don’t comply with, which would advance no legitimate municipal concern. AZ – Before we go further into this, based on my research, I’d suggest two initial stipulations to the Board. 1) That if the property use is a Dover use, dimensional requirements would be inapplicable, and it would be parking we’d be looking at. Viens – What are those requirements? I’d like to reiterate [from the previous meeting] that this proposed use wouldn’t have much parking requirement, because most of the residents would not have vehicles, just the resident manager. AZ – I’m not suggesting that we debate the parking issue, merely that we stipulate to the fact that the dimensional requirements are a non-issue. The second suggestion is that we stipulate to the fact that the corporation is an educational non-profit as a matter of corporate identity. JB – That sounds fine. We can stipulate that they are what they say they are, just not that they’ll do what they say they’ll do. LM – I’d say we just allow them to make their presentation and deliberate at another time. JB – I agree. LM – My primary issue, as I’ve said before, is that I don’t think the primary use is educational. But let’s move forward. MM – Right, the packet is a lot of information and I need time to look it over. Viens – We sent it a week ago. LM – Yes, but we only received it tonight. AZ received it only on Thursday. MM – How many people will this facility serve? Viens – 17 program participants, plus one manager. MM – Participants don’t drive? Gentille – Most of them don’t. Most don’t have vehicles. AZ – Are they permitted to have vehicles? 9 Gentille – They’re permitted to have them, but most are very disadvantaged. We use vans to transport them. MM – How many people will be onsite to provide educational services? Gentille – One case manager plus a property manager. MM – How many overnight? Gentille – One resident case manager. MM – So one person to oversee 17? Viens – I don’t like that question. They’re not there to oversee—it’s not a prison. These people are there to be educated, not monitored. JS – When is anyone there to actually educate them? Gentille – There is an individualized assessment and service plan for each resident. It could range from college classes to volunteering, and we try to build a community support structure within the house. JS – How is one case manager going to manage all that for 17 people? Gentille – Depending on individual need, there can be one or more other case managers layered on top of the resident case manager. JS – That’s a lot of people coming and going. I understand now why you wanted to talk about parking. Viens – I want to interject and point out that there is case law cited to indicate that education happening off-site does not remove the use from the Dover amendment. MM – What hours does the educational portion start? Gentille – 8-4, but we have emergency response available and flexibility for residents who work. Viens – On that point, those hours mean that parking needs onsite will be mostly while other people are at work, and by the time neighborhood residents come home, the parking needs of the facility will be over for the day. AZ – You realize that this is the college district, right? So others in the area also aren’t working traditional 9-5. So that doesn’t really solve the parking issue. Students may be in class nights, or early mornings. Viens – Every time I go up there, there’s more than enough parking. MM – Got to take into account snow and winter parking bans though. Gentille – The parking available looks more than enough for our needs. MM – Does your plan show parking and snow removal? Viens – That wasn’t requested by the building department. MM – We’re talking about a lot of residents, so we need to know the property can accommodate them. 10 AZ – Especially since you’re saying it’s all so variable, so what if you get 15 of 17 residents who all have individual case managers for special issues? Gentille – That would be very unlikely. AZ – But we need to take into account reasonable possibilities, not best-case scenarios. Gentille – I think we have the ability to plan and schedule around that if we have that issue. LM – In light of the large packet and the large number of other cases, I think we need to move on for tonight. Anything you’d like to add real quick? Viens – On the abandonment issue, I’d just like to reiterate that even if it is applicable, there is nothing in the record to support a finding of abandonment. AZ – Abandonment or nonuse. Viens – It may not have been actively used, but it was marketed, maintained, etc. AZ – All that goes to abandonment, not to nonuse. I did the legal research, and Ka-Hur and Derby Refining both establish that a property need not be legally abandoned to be deemed to be in nonuse. Viens – One last point. We included an affidavit regarding a conversation with the Mayor in which he expressed an animus towards the project. We would assert that that’s an improper consideration. AZ – That’s as may be, but we’re not employees of the Mayor. Viens – Second, there were concerns expressed at the prior meeting where there were references to residents’ potential drug use and so forth… AZ – I did read that segment of the packet as well. That hinges on whether it is a proper Dover use. If it is, then that is not a proper concern to take into account, but if it is not, then those are perfectly valid concerns for a municipality to factor in. MM – Motion on ZBA-2017-16 to Continue until October 10, 2017 AZ – Motion Seconded VOTE: 5-0 Continue ZBA -2017-33 Elmer Eubanks 427 OAK HILL RD 7:00PM Mr. Eubanks indicated that the petition was actually only for a 2-family, not a mixed use. He explained that the previous use had been a 4-unit dwelling with an accessory business. He intends to use the whole building for his family, but wants to retain the legal designation of a 2-family. JM – Multiple meters? Eubanks – Yes, three meters. One for each unit and one for the house. LM – [Read in Fire Department note re: sprinklers and fire prevention for 3-family and up] Seems as though the switch to 2-family negates this. AZ – Motion to grant petitioner leave to amend petition from 2-family + business mixed use to 2-family only. 11 JB – Second. Vote: 5-0 Grant leave to amend. Ed Walsh, 446 Oak Hill Rd. – Want to know what sort of business is going in. LM – We just settled that he will not be looking to put any business in, just 2-family. Walsh – That’s what we want. Ron Maxfield, 424 Oak Hill Rd. – Been in the neighborhood for 47 years and that property has become an eyesore. Please remove the roadblocks preventing Mr. Eubanks from fixing it and moving in. Lisa [Menalgia?], 425 Oak Hill Rd. – Mr. Eubanks is a good guy, and this will benefit all of us in the neighborhood by cleaning up the squatters and addicts. Kelly Bernard, 407 Oak Hill Rd. – Squatters, vagrants, needles. Glad to have Mr. Eubanks moving in. Janice King, [muffled] Oak Hill Rd. – [testimony was unclear in recording, but Ms. King was in favor of the petition as well.] Councilor Dean Tran – Mr. Eubanks lives in the city, wants to rehab the property and put it back on the tax rolls. I am very much in favor. MM – Only one kitchen on each floor, right? Because the existing plan has five. Eubanks – Yes, I’ll be removing the others. MM – Timeline for completion? Eubanks – 6-7 months. JS, JM – No questions, strongly in favor. JB – Great property, plenty of place for kids to play. AZ – Would you be willing to stipulate as a condition that all but two of the kitchens will be removed, so it can’t be reconverted to multi-family? Eubanks – Yes, no problem. LM – How about parking? Eubanks – We have six spaces for two units. CLOSE AND DELIBERATE MM – I am in favor and feel that it meets all the criteria. Want to reiterate conditions that it be only a two- family, kitchens removed, parking as submitted, all work done in a year. AZ – Agree. JS – Give 18 months since winter is coming. JM – One year is enough, he can always ask for more. 12 JB – No review needed. LM – So, if we’re not reviewing, does it make sense to put the time limit at all? AZ – Yes, we may not be directly reviewing, but the condition would still be binding. MM - Motion on ZBA-2017-33 to Grant a Special Permit to reinstate with the following conditions: 1. All but two kitchens removed 2. Not to be used or advertised as more than two units 3. Parking as submitted 4. Work completed within one year AZ – Motion Seconded VOTE: 5-0 Grant Special Permit with conditions ZBA-2017-34 Clearwater Real Estate Investment Group, LLC 126 SOUTH ST 7:15PM Harold Matteo presented a single-family reinstatement—indicated that he intends it for first-time homebuyers. [No one in the audience for this case.] JB – In favor. Sufficient parking in the back, and house could use the work. MM – No questions. AZ – How many kitchens? Matteo – One. AZ – OK, good, just need to look to future potential owners. Then I’m in favor. JS – How many square feet? It’s pretty big for a single family. Matteo – I’ll check the land records. [. . .] JM – Looks good, no questions. LM – Could you speak to parking? Matteo – Two conforming spots for one unit. Also, property is 2,218 sq. ft. CLOSE AND DELIBERATE MM – Very nice architecture, meets the criteria for reinstatement. AZ – I agree, and I like that the parking is off a side street rather than off South St. Meets the criteria. JS, JM, LM – in favor, no questions. JB – One year timeline. MM – Motion on ZBA-2017-27 to Grant to amend the petition from a 3-unit request to a 2-family dwelling JB – Motion Seconded 13 VOTE: 4-0 Grant the Amendment to the Petition MM – Motion on ZBA-2017-34 to Grant a Special Permit to reinstate the property as a 1-family dwelling with the following conditions: 1. One kitchen 2. Parking plan as submitted 3. Completion in one year AZ – Motion Seconded VOTE: 5-0 Grant of a Special Permit with Conditions ZBA-2017-35 Reliable Property Development, LLC 99 NASHUA ST 7:30PM John Gerstenlauer presenting. Reinstatement of single-family with nonconforming setbacks. Planning to do a full update. Duration should be 4-6 months, and there is sufficient parking for up to 6 cars. [No one in audience for this case] MM – Going to side it? Gerstenlauer – No, siding is in good shape. MM – Paint? Gerstenlauer – All the trim. MM – Landscape? Gerstenlauer – Front will be cleaned up, back is all grass. AZ – No questions, in favor. Especially good to get a vacant property near the school cleaned up. JS, JM – no questions, in favor. LM – Owner-occupied? Gerstenlauer – Yes, but not by me. It will be sold to an owner-occupant. CLOSE AND DELIBERATE MM – Great shape, great parking, great land, petitioner seems committed, helps the tax base, architecturally sound. AZ – Agree. Meets all criteria. JS, JM, LM, JB – In favor. MM – Motion on ZBA-2017-35 to Grant a Special Permit for a single family dwelling with the following conditions: 1. To remain as a single-family 2. Plan as-submitted 3. Completion in one year AZ – Motion Seconded VOTE: 5-0 Grant of the Special Permit with Conditions 14 ZBA-2017-36 Philip Colameta 16 ST BERNARD ST 7:45PM 1-family reinstatement, intent to sell. [No one in audience.] JB – Looks good. MM – Picture-perfect. AZ – No questions, I love it. JS, JM, LM – No questions. CLOSE AND DELIBERATE MM – In favor, house is in excellent condition, ready to be occupied. AZ – Agreed, and meets other Special Permit conditions. LM – Sounds like no time needed for renovation. AZ – This one sounds like it should be a “clean” approval. MM – Motion on ZBA-2017-36 to Grant a Special Permit for a single family home with no conditions: AZ – Motion Seconded VOTE: 5-0 Grant Special Permit ZBA-2017-37 Loira Maldonado 30 PIERCE AVE 8:00PM Petitioner’s lawyer indicates that petitioner intends to renovate and live there with her mother. Randy Rosengranger, 130 Pierce Ave. – Concerned about the possibility of needing to tie into city water and sewer, which would have to run through his property. LM – Not sure that’s our area. AZ – Actually, we do have to make findings that there won’t be an adverse impact to utilities. Atty – No plans and no need to tie into public utilities. [No one in audience] AZ, JB, MM, JM – no questions. LM – You’ve owned the property for two years, but haven’t done anything yet. Atty. – She’s been going back and forth with the City and hasn’t gotten straight answers on how to move forward. LM – How long to complete? Maldonado – Aiming for 6 months, but not sure. 15 Atty. – Can we have a year? CLOSE AND DELIBERATE AZ – Suggest a condition on the permit that it not tie into city utility, so that if it ever does, we can then make our statutory finding on that matter. LM, MM, JS, JB – That’s beyond our remit. AZ – OK, then, that’s fine too. I’m in favor. JM – In favor JB – In favor MM – In favor, meets criteria. MM – Motion on ZBA-2017-37 to Grant a Special Permit for a single-family dwelling with the following conditions: 1. Work complete in one year AZ – Motion Seconded VOTE: 5-0 Grant Special Permit with Conditions ZBA-2017-38 Lucille T. Schroth 31 WOODWORTH AVE 8:15PM Renewal of Accessory Apt. for petitioner’s son. No changes since last approval 5 years ago [No one in audience] AZ – Have we covered the reconversion requirement? LM – No, that’s new since last time. So, how would you reconvert the house to a single-family setup once it’s no longer an accessory apartment? Schroth – It’s through a breezeway, but could easily be a den or family room. CLOSE AND DELIBERATE JB – In favor. MM – In favor, meets criteria. AZ, JS, JM, LM – Agreed. AZ – Motion on ZBA-2017-38 to Grant a Renewal of an existing Accessory Apartment with standard Accessory Apartment conditions. JB – Motion Seconded VOTE: 5-0 Grant Renewal ZBA-2017-39 Amy and Martin Walsh 37 JEFFREY KEATING RD 8:30PM Amy Walsh explained three separate issues: 16  1. Pergola constructed without permit—literally inches over the 120 sq. ft. limit for a permit-less construction. 2. Deck is closer than 35 ft. to the lot line. There is a yard exception for “swimming pools and uncovered decks” but the Building Commissioner interpreted that to mean only uncovered pool decks. 3. Shed placed by previous owner is slightly larger than allowable dimensions. Scott Haigh, 40 Forest Park – elements in question are very tasteful and evidence pride in ownership. AZ – Do you abut on the side the shed is on, or on the other side? Haigh – Neither. I’m a street away. JS – Do you have a copy of the building permit? When you submitted it, didn’t you submit a plot plan? Walsh – No. JS – That strikes me as odd. LM – Permit says nothing about deck, only landing and stairs outside slider. Walsh – Yes, we pulled that, realized we needed it slightly bigger, and the Building Department said it was fine. JS – Who pointed out this yard exception? Walsh – Another resident. JS – So, you made the assumption that this exception applied to you? Walsh – Yes, it seemed clear. JS – so, the shed is on a basketball court. Why not just move it to comply with the setbacks? MM – It’s the size of the shed, not the setback. MM – In the past, the prior Commissioner did in fact consider that yard exception to apply to decks not attached to pools. AZ – As a matter of statutory construction, the ordinance exempts two separate items: “swimming pools” and “uncovered decks”. If this is not the intent of the Council, then the Council needs to amend the law. MM – So, what’s the issue with the pergola? It doesn’t seem like it’s even a structure subject to setbacks to me. Walsh – The surveyor was surprised, too. AZ – So we’re really only talking about a 2-inch nonconformity in either direction? LM – Negligible. AZ – I’d even say de minimis as a matter of law. So, all we’re really looking at here is a variance for the shed footprint. 17 CLOSE AND DELIBERATE AZ – Motion on ZBA-2017-39 to Overrule the decision of the Building Commissioner so as to interpret the yard exception to encompass an uncovered deck attached to a house.. JB– Motion Seconded VOTE: 5-0 Overrule the decision of the Building Commissioner AZ – Motion on ZBA-2017-39 to Deem the pergola nonconformities to be legally de minimis. JB– Motion Seconded VOTE: 5-0 Deem nonconformities to be de minimis AZ – Shed is completely screened from abutting properties, and seated on existing concrete pad. Literal enforcement would require elimination of a good-quality shed to accomplish no reasonable objective. AZ – Motion on ZBA-2017-39 to Grant a Variance for the currently existing shed which is dimensionally nonconforming. JB– Motion Seconded VOTE: 5-0 Grant Variance ZBA-2017-40 Michael McNamara 0 WINTHROP ST & 2 BRIGHAM ST 8:45PM Chair recused herself from this case, as petitioner is her son and she has a direct stake in the resulting transaction. Michael McNamara owns a garage structure used for storage with a “backyard” serving no purpose save for attracting miscreants. Chris and Lauren McNamara own the house next door which has no yard and no off-street parking. Michael wants to give the yard to the other parcel, but by doing so, he would increase the nonconformity of his own lot. [No one in the audience] AZ – Is this one-foot access strip sufficient? Might it be worth recording an easement. C. McNamara – Not really, lots of hassle for no real benefit. CLOSE AND DELIBERATE JB – Gives a yard, gives parking, in favor. AZ – Agree. Meets variance criteria, and specifically, while it increases nonconformity on one lot, it decreases it on another. AZ – Motion on ZBA-2017-40 to Grant a Variance for a grant of land which will increase the nonconformity of the donor lot. JB – Motion Seconded VOTE: 5-0 Grant a Variance 5. MISCELLANEOUS 6. ADJOURNMENT 18 AZ – Motion to Adjourn JB – Motion Seconded VOTE: 4-0 Adjourn 19