Zoning Board of Appeals

Lowell Zoning Board of Appeals Minutes November 13, 2023 at 6:30 P.M. Note: These minutes are not completed verbatim. For further detail, contact the Division of Development Services, 375 Merrimack Street, Lowell, MA or refer to video recordings available online at www.LTC.org. Members Present: Chair Pech, Vice Chair Callahan, Member McCarthy, Member Briere, Member Procope, Member Hovey Members Absent: Member Nickerson Others Present: Peter Cutrumbes, Assistant Planner The following represents the actions taken by the Zoning Board of Appeals at the 11/13/2023 meeting. This meeting was held in the City Council chambers. Attendees had the ability to participate via Zoom as permitted by Chapter 107 of the Acts of 2022, signed into law on July 16, 2022. Chair Pech called the meeting to order at 6:30 PM I. Continued Business ZBA-2023-20 Petition Type: Variance Applicant: Mitesh Mistry Property Located at: 22 Carly Way 01854 Applicable Zoning Bylaws: Section 5.1 Petition: Mitesh Mistry has applied to the Lowell Zoning Board of Appeals for variance approval to construct a two-story addition at 22 Carly Way that would exceed the maximum allowed Floor Area Ratio (FAR). The property is located in the Suburban Single Family (SSF) zoning district and requires variance approval under Section 5.1 and for any other relief required under the Lowell Zoning Ordinance. On Behalf: Mitesh Mistry spoke. He said his 85 year old father is living with him so he wants to construct an addition. Speaking in Favor: Nilesh Soni of 30 Carly Way spoke in support. Speaking in Opposition: Carla Miller of 46 Carly Way spoke in opposition. She stated that she is unclear on the plan. She said there are several cars on the street during events at the home and that she is concerned about parking. Elizabeth Tighe of 31 Carly Way also spoke in opposition. She expressed concern that this would set a precedent for large additions in the neighborhood. Discussion: M. Mistry spoke at the invitation of the Chair. He said it is not actually two stories but high ceilings. He is doing this for his 85 year old father. G. Procope asked about the size of the addition. M. Mistry said 18x22 feet. G. Procope said he appreciates that neighbors do not want to change the dynamic of the neighborhood. G. Procope noted the addition is behind the house. He also said the FAR is fairly high. G. Procope said the Board has to determine how it impacts the rest of the neighborhood. Because the addition will not be seen, he stated he is not sure it would impact the neighbors too much. He noted that the FAR is 45% above zoning, and therefore asked if the addition could be made smaller. M. Mistry said he would absolutely consider that, but that he has seen another neighbor with a similar sized addition. M. Briere asked for permission to speak to the two neighbors who spoke in opposition. He asked what they would like to see as a compromise. E. Tighe said she would want it to be one story. K. Miller said maybe a sunroom would be better. She clarified her comments on parking--she is concerned the large space could be used for events that put a strain on parking. M. Briere asked M. Mistry what kind of changes he is amenable to. M. Mistry said he would absolutely change the height if needed. D. McCarthy noted that the public notice was not readable from the street and that he believes this violates the public notice rules. He would like to see a public notice on the site that can be read from the street. D. McCarthy said he’d like to continue the application because of this. He stated that the room will be 18x22 but on concrete posts. D. McCarthy asked if this will be a family room as labeled on the plan. M. Mistry said yes. D. McCarthy asked about the closet being added to the balcony. M. Mistry says that it is adjacent to his bedroom. D. McCarthy said if it is continued he would like to see new plans that show the roofline in-line with the current structure, and to reduce the FAR by eliminating the 110 square foot closet. S. Callahan agreed that scaling the project back is the best bet to make it compliant with Zoning. He stated that he would be okay with keeping the 110 square foot closet if the project was scaled back in general. He thinks 18x22 is too much. S. Callahan also noted that the sign was not visible from the public right of way, but that it also says “Special Permit” when the application is for a Variance. S. Callahan said neighbors seemed confused about the plans because of this. S. Callahan is in favor of continuing so it is properly visible to the public, and that the project should be scaled back. T. Hovey said he remembers this project from when it was first sent in. He does not think that the addition is particularly large for the neighborhood. He noted that this is all invisible from the street. T. Hovey stated he will follow the will of the Board, but that he understands why the applicant is doing this for his dad. V. Pech said he appreciates the updated plans. He agreed with the previous comments about public notice and that the matter should be continued. V. Pech noted that he believes all parties can reach a compromise. Motion: D. McCarthy motioned to continue the matter to the January 8th meeting, seconded by G. Procope. The vote was unanimous (6-0). II. New Business ZBA-2023-38 Petition Type: Variance Applicant: David and Tamara Oliviera Property Located at: 604 Central Street, 01852 Applicable Zoning Bylaws: Section 6.1 Petition: Davd and Tamara Oliviera have applied to the Zoning Board of Appeals seeking Variance approval to utilize the upper floors of the existing commercial building for an office or business use. The subject property is located in the Traditional Mixed-Use (TMU) zoning district. The project requires Variance approval per Section 6.1 for relief from the minimum off-street parking requirement and any other relief required under the Lowell Zoning Ordinance. On Behalf: John Bavuso spoke on behalf of the applicants, who own a business called Maximus. He noted that there had been four permits pulled by previous owners to convert the top floors to office and business use. He says they believe they need 5 more parking spaces based on the Zoning Ordinance. The pastor at 547 Central Street has agreed to lease them 5 parking spaces, and that there are public spaces at the Richmond Street lot. In Support None In Opposition Cheryl Kenos, owner of 11 and 19 Mill Street, spoke in opposition. She said she previously rented space to the Oliveira’s business and they continually ignored parking reserved for other people. She also stated that they often park on the sidewalk. Fernando Sousa, of 6-8 Richardson Street, said that Maximus continually parks seven trucks on Richmond Street. He noted that his car had been vandalized after speaking to Maximus employees about parking. Dina Koch of 18 MIll Street spoke in opposition. She said that they are going to take all the parking from the neighbors. She said they frequently park in crosswalks. David Koch, also of 18 Mill Street, spoke in opposition. He said parking is very congested in the neighborhood. Discussion: V. Pech asked J. Bavuso if he would like to respond to the neighbors concerns. J. Bavuso stated that the property has been commercial since 1901 and he believes it is legally pre-existing nonconforming in terms of parking. M. Briere said he would like to see businesses flourish in the neighborhood, but he does not see how the parking allows for that. He read a statement from Ali Carter, the Economic Development Director for the City, who asked for a detailed parking plan for the businesses employees. M. Briere asked J. Bavuso if he had any idea how many vehicles the business owns. He said no. M. Briere noted that the 5 additional spaces from the Pastor would not solve the parking challenges in the neighborhood. He also wants to receive more information on the terms of the lease and how long the lease will last. M. Briere said the concerns of the neighbors are absolutely legitimate and that the current proposal does not address their concerns. D. McCarthy asked if the Pastor owns 547 Central Street or is a tenant. J. Bavuso said they are the owners. D. McCarthy then noted that there is no parking plan provided with the proposal. D. McCarthy asked if there is any information the City has on file for previous violations at the property of parking. P. Cutrumbes said yes. D. McCarthy stated he would like this to be continued. S. Callahan said the Board would like to see this succeed but that parking in the neighborhood is extremely congested. He said the Board must ensure the project meets their 3 criteria. He said the parking is an obvious hardship. He then noted that creating additional businesses is in the public good. He also said that because the building has been commercial since 1901 when parking was not an issue, so granting a Variance meets the intent of Zoning. He stated his support for the Variance approval with the condition that the petitioner confirm the lease agreement and that signs in front of the building note that there is parking at 547 Central Street. T. Hovey said he appreciates that the new owners of the building are trying to operate in good faith. However, he noted that there is an issue with staff not being good neighbors. He stated that it is not possible to perfectly enforce parking laws to prevent neighborhood concerns, so addressing the parking issue right now is crucial. He noted that he wants to see the lease and how long it lasts, but that he is inclined to agree with Member Callahan. T. Hovey said he would like the business to have to make their signs compliant with zoning as a condition. G. Procope said he believes the parking definitely falls under hardship. He expressed concerns that the business is not a good neighbor. He also agreed with T. Hovey’s statement about parking law enforcement. He said he would like to see a formal agreement with the church and that he also expects the business to enforce parking rules with its employees. He stated he believed the project should be continued in order to better address parking concerns. V. Pech said he had some questions for J. Bavuso. He asked if he or the clients had read the comment memos from the City staff. J. Bavuso said he did not believe so. V. Pech also asked if the clients can bring their signage into compliance with the Zoning Ordinance. He stated he also believes that the matter should be continued. He also agreed with D. McCarthy’s request for violation history at the property. S. Callahan said he does not believe that the parking plan from the church is necessary and asked D. McCarthy for clarification. D. McCarthy said that some of their vehicles are larger than a normal car, so he believes it is necessary to see the dimensions of the church parking lot. He stated it is important to confirm the area can adequately park the business’ vehicles. S. Callahan asked where the business usually parks its larger commercial vehicles. J. Bavuso said they park at a separate garage at 181 Steadman Street. S. Callahan stated he believes it is unfair to ask a different property to provide a site plan. Motion: Motion by D. McCarthy to continue the matter to the January 8th meeting, seconded by G. Procope. The vote was 5-0-1, with S. Callahan abstaining. ZBA-2023-31 Petition Type: Variance Applicants: Edina Braga Property Located at: 380 Lawrence Street, 01852 Applicable Zoning Bylaws: Section 6.1 Petition: Edina Braga has applied to the Zoning Board of Appeals seeking Variance approval to construct a 2,850 square foot commercial building at 380 Lawrence Street. The subject property is located in the Neighborhood Business (NB) zoning district. The project requires Variance approval per Section 6.1 for relief from the minimum off-street parking requirement, the minimum drive aisle width requirement, and for any other relief required under the Lowell Zoning Ordinance. On Behalf: K. Lania spoke on behalf of the applicant. He noted that the applicant, Edina Braga, and the architect, Phillipe Thibault, were in attendance. He described the project in brief. The project would construct a two- story 2,850 square foot commercial building at the site. The project would include a breakfast and lunch restaurant on the first floor and an office on the second. He said the building would be built right on the street, eliminating the Rogers Street entrance and only allowing entrance from Joiners Court. He stated that the project would also provide a new stormwater system to the site. He listed the hardships as the parking area, the size of the lot, and the proximity to a 5-way intersection. He noted that the project will provide 20 spaces, requiring a Variance for 10 spaces. The applicant owns a property 400 feet away at which most employees would park. K. Lania stated that the roadway on Joiners Court will be expanded to 17 feet to allow better maneuvering for emergency vehicles. In Support Jim Lewis of 13 Merrill Street spoke in support. His lot abuts the previous restaurant there, the Whipple. He is very happy they are expanding Joiners Court. He never had any parking problems when the Whipple was there. Jose Mendonca, of 4 Rogers Street, spoke in support. He believes the project would enhance the area. Dominic Ndungu of 9 Clarks Court spoke in favor because it is only breakfast and lunch and will not effect high traffic times. Dina Coach of 18 Mill Street spoke in support. She believes many people will walk to the site and that it will not pose parking issues because it is breakfast and lunch. In Opposition Cheryl Kenos, who is also the owner of 270-300 Lawrence Street spoke in opposition. She stated her belief that parking is essential to the neighborhood and that not having enough parking would have a negative effect on the neighborhood. She noted that the applicant’s other property abuts her businesses at 11 Mill Street and illegally park there. Discussion: D. McCarthy said there were a lot of comments from the City. He asked why they chose to make a larger restaurant that would require parking variances, rather than designing an establishment that would fit. K. Lania said the shape of the lot is very unique. He said the shape of the lot generally would not allow many more spaces that are dimensionally compliant. He also noted that the profit margins on breakfast and lunch are not as high as dinner services. The applicant’s architect, Phil Thibeault, said the shape of the building is designed to accommodate as much as parking as possible. D. McCarthy asked what the plan is for snow storage. K. Lania said the owner will have to have the snow removed. D. McCarthy said the staff is requesting a landscaping plan. K. Lania said he is providing four street trees for every 2000 square feet of parking area. D. McCarthy said he would want to continue the matter and to see a parking agreement, a more thorough landscaping plan, dimensions for Joiners Court, and comments from emergency personnel on how expanding Joiners Court would help. S. Callahan said he believes the project fits the neighborhood. He believes the breakfast and lunch use will help parking. T. Hovey said that K. Lania has answered a lot of the outstanding questions. He noted that he thinks a lot of the patrons will arrive on foot. G. Procope said he thinks the project is a vast improvement to what’s there now. M. Briere concurrent with G. Procope. He noted that the neighbors favor the project as well. V. Pech said that, parking-wise, the project is less intrusive to the neighborhood than the previous use. Motion: Motion by D. McCarthy to grant the Variance requests with the following conditions, seconded by T. Hovey. 1. The applicant shall plant four shade trees with a minimum caliper of 2.5 inches along Lawrence Street 2. The applicant will provide snow removal to be stored offsite 3. The applicant will provide a legal document confirming the leasing of 6 spaces at 23 RIchmond Street. The vote was unanimous (6-0). ZBA-2023-39 Petition Type: Variance Applicant: Citywide Properties, LLC Property Located at: 21 Marginal Street, 01851 Applicable Zoning Bylaws: Sections 5.1 and 6.1 Petition: Citywide Properties, LLC has applied to the Zoning Board of Appeals seeking Variance approval to construct a three-story addition and create three new residential units at 21 Marginal Street. The subject property is located in the Traditional Multi-Family (TMF) zoning district. The project requires Variance approval per Section 5.1 for relief from the minimum lot area per dwelling unit, rear yard setback, and usable open space per dwelling unit requirements. The project also requires relief under Section 6.1 for the off-street parking requirement, and any other relief required under the Lowell Zoning Ordinance. On Behalf: John Geary, the applicant’s attorney, and Matt Hamor, the applicant’s engineer, spoke on behalf. Jason Mello, of Citywide Properties, was also in attendance. J. Geary briefly summarized the project. He said Marginal Street is a mix of multi-family and single family homes, with UML dorms at the end of the street. He noted that the three dimensional Variances for the property are already nonconforming, and that the project would simply extend these nonconformities. J. Geary said that the rear of the property is abutted by the MBTA. He also noted that most units do not currently park two cars. Lastly, he stressed that Citywide Properties owns several properties throughout Lowell and have an excellent reputation with the City. M. Hamor discussed the design and floor plans of the projects. He went over the existing conditions on the property. He noted that not only is the railroad track 30 feet away from the property, but that it is also 10 feet lower in elevation. He said the existing rear section of the building will be removed and replaced with the proposed addition. M. Hamor then briefly discussed the elevations. J. Geary then submitted a letter of support from the abutter at 27 Marginal Street. In Support None In Opposition Stephanie Giroux, of 33 Marginal Street, expressed opposition. She expressed concern about the mature trees on the site of 21 Marginal Street, as they provide soundproofing and screening from the rail line. She wanted to make sure none of the trees are cut down. She also expressed concern about parking. Discussion: V. Pech allowed J. Geary to respond to the neighbor’s concerns. J. Geary said they will be removing one tree in the rear of the property but will be planting three shade trees on the street line. J. Mello noted the tree that is being removed at the rear of the property is a crabapple tree. S. Callahan said it is a very unusual lot due to there being two separate structures on the lot. S. Callahan asked how the project does not run afoul of Section 5.2.2. J. Geary said that because the project is pre- existing non-conforming, Section 4.5 allows them to extend the use via Special Permit from the Planning Board. S. Callahan asked why the roof of the addition is higher than the existing structure. J. Geary said the height is for the additional unit to have 8 foot ceilings. M. Hamor said it is also to add pitch to the roof for snow to run off. T. Hovey asked about the stacked parking located on the site plan and how far it is from the property line. M. Hamor said about 5 feet and that the spots are existing nonconforming, and that the spots will be assigned. T. Hovey asked about the Site Plan noting three trees coming down, as opposed to one as J. Geary said. M. Hamor said the other two are in the parking area, and that they only meant one tree is being removed to make the addition. He confirmed that three trees total are being removed. T. Hovey also asked why the bedrooms are located on the back wall closest to the train. He additionally noted that there is a dumpster on site, and that he thinks both structures should be able to access the dumpster, as opposed to municipal garbage. J. Mello said that can certainly be done, and that they could have the dumpster serviced twice a week. G. Procope said many of his concerns have already been addressed. He asked about the garage on site. J. Geary said it is coming down. M. Briere expressed support. D. McCarthy asked about the state of the pavement. J. Mello said the plan is to rip up the old pavement, put new stormwater mitigation in, and repave the site. D. McCarthy asked for an updated landscaping plan from the applicant. M. Hamor said yes and that they also are amenable to adding a fourth shade tree of 2.5 inch caliper. D. McCarthy said he wants to have some landscaping conditions. V. Pech expressed support. Motion: Motion to grant the Variances with the following conditions by D. McCarthy, seconded by G. Procope 1. The applicant shall provide four shade trees along Marginal Street 2. The applicant shall provide shrubs along the east side of the existing three family 3. The applicant shall preserve the mature trees on the west side of the existing three family. The vote was unanimous (6-0). ZBA-2023-37 Petition Type: Variance Applicant: Mehida Gonzalez Property Located at: 105 Longmeadow Drive, 01852 Applicable Zoning Bylaws: Section 6.1 Petition: Mehida Gonzalez has applied to the Zoning Board of Appeals seeking Variance approval to construct a second driveway at 105 Longmeadow Drive. The subject property is located in the Suburban Single-Family (SSF) zoning district. The proposal requires Variance approval from the Zoning Board of Appeals per Section 6.1 from the maximum curb cut requirement, and any other relief required under the Lowell Zoning Ordinance. On Behalf: Dorcas Gonzalez, co-owner of the house with Mehida Gonzalez, who was also present. D. Gonzalez summarized the proposal. Mehida Gonzalez noted that there was a discrepancy on the plans. The plans showed a 20 foot opening but a 16 foot driveway. She said she believes this was addressed by her surveyor. In Support None In Opposition A letter of opposition was submitted by the owners of 110 Longmeadow Drive expressing concern about runoff water. Discussion: T. Hovey asked about the size of the existing driveway. M. Gonzalez said they were unsure. G. Procope asked if the driveway will go up to the house. D. Gonzalez said that there will only be a paved walkway, with the rest of the space being landscaping. He said he does not think it will negatively impact the neighborhood. M. Briere expressed support with the proposed condition that the applicant will maintain landscaped open space on all portions of the lot not used as a driveway. D. McCarthy said he may want to propose a condition that the proposed parking spaces slope to the street, away from the neighbors foundation. V. Pech expressed support pending these conditions. S. Callahan said he is struggling with why the applicant needs two driveways. He is not sure why the existing driveway will still be required. D. Gonzalez said that there are 4 cars and they don’t have enough space to park. D. McCarthy noted that the second driveway may be required because most houses in the neighborhood have driveways that are multiple cars deep. This is not the case at the property. Motion: Motion to grant the Variance with conditions by D. McCarthy, with T. Hovey seconding. 1. The proposed driveway will slope towards the street 2. All space not used for parking or walkways will be landscaped open space The vote was unanimous (6-0). III. Other Business Minutes for Approval: 10/23/2023 Meeting Minutes Motion to accept the minutes by D. McCarthy, seconded by G. Procope. The vote was unanimous (6- 0). D. McCarthy motioned to adjourn with T. Hovey seconding. The meeting was adjourned at 10:02 PM. Per Order of the City of Lowell Zoning Board of Appeals – Van Pech, Chairman New business to be advertised by October 30, 2023 and November 6, 2023.