Zoning Board

CITY OF METHUEN BOARD OF APPEALS THE SEARLES BUILDING 41 PLEASANT STREET METHUEN, MA 01844 MEETING MINUTES MEETING HELD via ZOOM WEB CONFERENCE WEDNESDAY, October 20, 2021 @ 7:00 P.M. 1. Roll Call. Chairman Matthew D’Agostino called the meeting to order at 7:00 pm Members in Attendance Matthew D’Agostino, Chairman Present Laura Walta, Vice Chairman Present Vincenzo Pesce, Board Clerk Absent Philip Cultrera, Member Present David DiNatale, Alternate Member Present Ronald Pitocchelli, Alternate Member Absent Others in Attendance Jodie Geary, Zoning Board Secretary Felix Zemel, Director of Inspectional Services Kathleen Colwell, Planning Division Director Attorney George Pucci, Board Counsel Petitioners and Representatives of Petitioners Chairman Matthew D’Agostino called for a moment of silence in honor of all American’s who have died for our country, then led the Board in the Pledge of Allegiance. 3. New Business: 2021-26 Kamalkant M. Patel, 16 Valley View Way, Methuen, MA 01844, Co-Applicant: Julio Romero, 30 Pearle Avenue, Lawrence, MA 01841 A Variance is required under Section VI-D in a RR (Rural Residential) Zone to construct a single family dwelling without the required area, frontage, & side setbacks at Map 410-Block 125- Parcel 23D Hampshire Road, Methuen, MA 01844. Chairman Matthew D’Agostino read into the record correspondence from the applicant’s attorney requesting a continuance to the next regularly meeting. MOTION: Laura Walta moved to continue this application to the November meeting. SECOND: David DiNatale DISCUSSION: None 1 VOTE: UNANIMOUS Chairman Matthew D’Agostino entertained a motion to move the YWCA of Greater Newburyport petition to the last item on the agenda. MOTION: Laura Walta so moved. SECOND: Philip Cultrera DISCUSSION: None VOTE: UNANIMOUS 2. Old Business: Any correspondence referring to: a. Request to Withdraw a Petition on the Agenda: For the record there were none. b. Request for a Reconsideration of a Denied Decision: For the record there were none. c. Request for Significant Change on a Denied Decision: 2021-27 Applicant: Ali Kalem, 39 Linden Street, Lynn, MA 01905, Co-Applicant: Evan Silverio, a/k/a Diverse Real Estate, 10 S. Broadway, Lawrence, MA 01843 (CONTINUED FROM SEPTEMBER 22, 2021) Special Permit required for a Restaurant in a Business Highway (BH) Zone at 91 Broadway, Methuen, per Section V-D of the Comprehensive Zoning Ordinance of the City of Methuen. Mr. Kalem described the material change from what he presented at the Board’s decision. In the original presentation there was no parking provided. He has subsequently made an agreement with a flower shop to provide 14 spaces. The have also set their hours of operation so that there isn’t a conflict with the flower shop. The restaurant will be take out and delivery, grab and go items which will manage the timing of the pickup orders. They are not planning to provide any inhouse dining. They will be using a third party for delivery, like Door Dash, Grub Hub or Uber Eats. Orders will be prepaid, and the drivers will come in for pick up when the order is ready. This will manage the time to two minutes in and out. He is confident there will not be a safety concern or traffic congestion because they can control the flow in and out. Ms Walta asked if there would be liquor for sale. Mr. Kalem responded that there will be no liquor license on the premises, nor will there be in the future. They will not be bringing dining in as well. It will be 100% takeout and delivery. Mr. Cultrera asked if the applicant had met with the Police Department to discuss the letter submitted at the last meeting by Interim Chief Randy Haggar. 2 Mr. Kalem responded that he spoke on the phone with the Interim Chief and explained their concept. Interim Chief Haggar stated that he had already spoken to Community Development and told Mr. Kalem that he was all set. Chairman D’Agostino asked if new correspondence had been received from the Police Department. Jodie Geary responded that there is only the original letter and in speaking with the Interim Chief, he said he was keeping the letter the same. Chairman D’Agostino stated that he had also spoken to Captain Haggar, and he didn’t think that there was any change that would improve the potential for traffic issues. He also spoke to the new Chief, and he felt that this would be an issue also because of the parking. Chairman D’Agostino added that he has seen Uber Eats in operation, they are sub contractors, they get in and out quickly, but they are not very observant of the parking rules, so he has an issue with that. Laura Walta pointed out that the petition was denied for lack of parking. He found abundant parking, right next door to his facility. He’s not serving liquor, which is the primary issue behind the police involvement at that address, and she doesn’t understand why this doesn’t represent a material change. The Board isn’t voting on the petition right now, they are voting on whether or not this is a material change. It appears to her that it was denied due to lack of parking and it is now being presented with parking. Chairman D’Agostino agreed that the Board was not voting on the petition. They are voting on whether this is a material change. He thinks the parking plan is loosely worded and loosely put together and he doesn’t know how enforceable it’s going to be. Chairman D’Agostino read the following statement into the record. You may submit a request to the Zoning Board for a specific and material change on your denied application. At this time, a new plan showing these changes must be submitted to the Board and receive a unanimous, favorable vote that the requirements have been met. The next step in the process is to submit the approved new plan to the Community Development Board for their approval. Once approval has been received by both Boards, you may submit a new application to the Zoning Board. Felix Zemel stated that he reached out to Captain Haggar himself and asked if the Police had changed their letter and was told that they have not reversed their letter yet. They are working on it with one of the community groups right now to try to figure out a solution. He suggested that Mr. Kalem request a continuance if the Board would support it, to see if it can be worked out with the police. Mr. Kalem stated that he is surprised and disappointed because he felt positive after his conversation with the Police. Chairman D’Agostino noted that an amended letter was not submitted to the Board, and they go by evidence. He doesn’t think the parking plan is enforceable and he doesn’t think you can fit 4 cars next to a fence. He also stated that he thinks there was no building permit for the work already done. He was told that no building permit was pulled when the work was done. Mr. Kalem responded that they pulled every permit. They only pulled gas and electric permits and moved equipment in and including fire code updating. They did not do any renovations. 3 Chairman Matthew D’Agostino asked Mr. Kalem if he would like to go forward with a vote or request a continuance to work with the police. Mr. Kalem requested a continuance to the next meeting. MOTION: Laura Walta moved to continue the petition to the November meeting. SECOND: Philip Cultrera DISCUSSION: Chairman D’Agostino stated that he would be willing to sit in on a meeting with the Police Department. Laura Walta stated that she would also be willing to sit in on a meeting with the Police. She noted that Methuen takes great pride in it’s support for its veterans, and she believes that Mr. Kalem deserves that kind of support and albeit, the police and fire take precedence, they need to fully understand what is being suggested. She encourages the continuation of this discussion and the involvement of advocates because she doesn’t want to unfairly discriminate against Mr. Kalem’s application. Chairman D’Agostino thinks that 2 months of discussion on this is a fair amount of time on their part. VOTE: UNANIMOUS d. Request for a time extension on a Granted Decision: For the record there were none. CONTINUED PETITIONS FROM SEPTEMBER 22, 2021: 2021-25 Anthony Vito Lafata, 26 Jasper Street, Methuen, MA 01844 Variance required under Section VI-D of the City of Methuen Comprehensive Zoning Ordinance in a RB (Residential B) Zone to subdivide a parcel of land in to 2 lots, and to construct a 26’ x 48’ single family dwelling, leaving both lots without the required area & frontage at 26 Jasper Street. Felix Zemel reminded the Board that at the last meeting, he suggested that Mr. Lafata reach out to him and work with him to see where we could go with his petition, and he hasn’t heard from him. He’s been doing research on this on his own and he thinks the applicant would be well advised to seek counsel because there are a lot of questions in play regarding this property; whether the two lots were under joint ownership and whether or not a subdivision is required, or whether it is in fact two separate lots. There is something recorded at the Registry of Deeds memorializing the fact that it’s two lots. The former city Assessor saw that it was joint ownership at one point and raised it to the appellate tax board and that it should not be two lots unless it’s legally subdivided. The appellate tax Board apparently said it was two lots, so it’s complicated and we don’t know whether it’s one lot or two, and if it’s one lot, the applicant doesn’t have complete standing on this because his former wife is the owner of one of the lots and she needs to give consent to this. He strongly suggests asking the Board for another continuance to try to get counsel and figure out what the options are. Chairman D’Agostino asked if there was a potential that this didn’t need zoning board relief. Mr. Zemel responded that if it’s determined that it was never under common ownership and it’s determined that these are two pre-existing grandfathered lots, then the lot that Mr. Lafata owns may be considered a grandfathered lot under 40A and might not need ZBA approval and might be able to be handled administratively. 4 Mr. Lafata stated that at the last meeting the Board had asked if there was soil testing done. He also presented to the office, documentation about ownership of the lots. He provided everything that was asked of him. Mr. Zemel stated that he confirmed that soil testing was done. Chairman D’Agostino recommended that Mr. Lafata seek counsel. This may not end up coming before the Board. Laura Walta asked, that if he were to come back to the board, that there be clear explanation of why the lots, if held in joint ownership at any point, would not be combined into one, and why it would be grandfathered otherwise. Mr. Lafata explained that there had been two houses at one time. Ms. Walta responded that that didn’t matter. Mr. Lafata asked for an extension to the next meeting. MOTION: Laura Walta moved to continue to the November meeting. SECOND: Philip Cultrera DISCUSSION: None VOTE: UNANIMOUS 3. New Business: 2021-28 Robert D. & Jodie Lamirande, 12 Emerson Avenue, Methuen, MA 01844 A Variance is required under Section VI-D in a RR (Rural Residential) Zone for an 18’ x 30’ addition that will be too close to the left side setback. Also a pool deck (20’ x 10.7’) that will be too close to the rear setback at 12 Emerson Avenue, Methuen, MA 01844. Mrs. Lamirande explained that they need a variance for the left side and rear of the house. Currently there is a shed on the left side of the house that they want to move to the right back corner. They are looking to add a little bit onto the left side of their current house for additional space. With the pandemic she has had to work a lot at home, and it would give her space for confidential conversations related to her work as a social worker. Chairman D’Agostino opened the floor for public participation. For the record, nobody spoke in favor or in opposition. Chairman Matthew D’Agostino closed public participation. In response to questions, Mrs. Lamirande explained that the pool would remain in the same place. They are looking to redo the existing deck. The left corner is not changing other than being updated with the new deck. The shed located in front of the pool will be moved. Laura Walta noted that the pool deck appears to be sitting on the lot line and asked if she’s spoken to the neighbors about it. 5 Mrs. Lamirande responded that this is the house where here husband was born and raised. They have known that neighbor for years. That neighbor has known that the deck was there for years and there have never been any problems about it. The plan is to update that deck. Ms. Walta noted that this vote would put the deck into compliance, which it currently is not. Felix Zemel observed that the footprint of the deck is not changing. Mrs. Lamirande responded that the footprint to the back is not changing but approximately a foot will be added to the left to accommodate the stairs. They are trying to put the stairs at the same place but at the side of the center of the yard, not on the side of the neighbor to the left. They are not seeking to enlarge the deck or go any closer to the neighbor on the left. The plan is to keep it and update it. Felix Zemel asked if it would be possible to keep the stairs within the existing footprint. If it’s not going beyond the existing footprint, there may not be a variance requirement for that provision. If the nonconformity has been there for 10 years, there may not be a requirement for a variance. There is still a variance requirement for the setback on the left hand side. Mrs. Lamirande commented that her ultimate goal is to have a safe stairway on the side that is toward the center of the yard. Chairman D’Agostino asked Mr. Zemel if the stairs were built to the right of the pool would there be any issues. Mr. Zemel stated that if the stairway was built to the right of the pool and is not less than 7 ½ feet from the lot line it could potentially be done without a variance. Laura Walta noted that what the Board is voting on is only the proposed addition to the left of the house and all of the other proposed additions are a part of the petition. Chairman D’Agostino stated that if the Board were to approve the petition, any other additions to the plan would have to been done in conformance with the dimensional requirements. He also noted that one of the building inspectors can assist with the location of the stairs. Felix Zemel noted that the department may require an As-Built plan because it’s so close to the lot line. ROLL CALL Matthew D’Agostino, Chairman Yes, per plan Laura Walta, Vice Chairman Yes, per plan Vincenzo Pesce, Board Clerk Absent Philip Cultrera, Member Yes, per plan David DiNatale, Alternate Member Yes, per plan Ronald Pitocchelli, Alternate Member Absent 2021-29 Applicant: Susan Browne, Trustee of the New 59 Lawrence Realty Trust of 4 Tiffany Lane, Andover, MA 01810. Co-Applicant: Edivaneia C. Kwon, 84 Keyes Road, Westford, MA A Special Permit is requested under Section IX-B (Non-Conforming Uses, Structures, & Lots) of the Comprehensive Zoning Ordinance of the City of Methuen, in a RG (Residential G) Zone to change from one Non- 6 Conforming Use, Doctor’s office, to another similar, Non-Conforming Use, Personal Services Establishments (Spa, Laser, Hair salon) for the property at 63 Lawrence Street, Methuen, MA 01844. Attorney Anthony Copani, representative of the applicant, explained that they are seeking to change one non- conforming use to a different non-conforming use. The premises are located in an RG zoning district which allows single and multi family residential dwellings. As far back as 1960 the City classified this parcel as commercial and it’s listed as an office building. It has been used for professional services up until recently. It is now vacant. The new proposed use is for a different kind of professional services, specifically for laser, boxtox treatment, spa and hair salon. Attorney Copani displayed photos showing the depth of the lot and that there is ample parking located on the side. The entrance that would be used is also located on the side of the building. The parking lot striping has faded but there is parking for at least 20 vehicles. The parcel is an oversized parcel that was always intended for commercial use. Across the street from this building are commercial buildings, Conlin’s Pharmacy and Sheehan’s Service Station. There is also a parcel owned by the City of Methuen directly across the street. To the rear are buildings owned by the Methuen Housing Authority. The proposed new business will have approximately 10 employees, however, not all 10 will be at work at the same time. The applicant anticipates, from her experience, that there will be 6 or 7 employees on the premises at the same time. The employees are all professionally trained and licensed by the state. There will be a nurse on duty every day. The proposed hours of operation are Monday – Saturday 9:00 am – 7:00 pm and closed on Sunday. Attorney Copani noted that the petitioner owns two other locations. One is in Westford where she resides. That location also has a school where she gives diplomas for estheticians. She has a location in Lawrence that she intends to consolidate into this Methuen location. Chapter 40A, section 6 is determinative of changing one nonconforming use to another non conforming use. One of the tests is that the new non conforming use is not substantially more detrimental to the neighborhood. It’s a matter of degrees and the Board can find that the petition meets those criteria. Chairman Matthew D’Agostino made Attorney Copani aware that with only four board members he would need a unanimous for approval. Attorney Copani responded that his client is under the terms of a Purchase and Sales agreement, and they wish to proceed. Chairman Matthew D’Agostino opened the floor for public participation. For the record, nobody spoke in favor or in opposition. Chairman D’Agostino closed public participation. Laura Walta noted that the parcel does have a very large parking lot behind it. Chairman D’Agostino asked if there would be a hair salon within the building. Attorney Copani responded that there could be a hair salon, but it would be ancillary to the main business of botox treatment, massage therapy, and laser hair removal. 7 Felix Zemel noted that the only use to not require a special permit for this business would be a clinic, but that would require her to bring on a doctor. The proposed use is very much in character with the medical use. She is before this Board at his recommendation so she can move her business from the rental in Lawrence to ownership in Methuen. Laura Walta asked if botox treatments require admitting privileges at a hospital. Ms. Kwon responded in the negative. The treatment is performed by Registered Nurses or Nurse Practitioners with certifications from the state. Chairman D’Agostino entertained a motion to add a condition of hours of operation to be Monday – Saturday 9:00 am – 7:00 pm and closed on Sunday. MOTION: Laura Walta so moved. SECOND: Philip Cultrera DISCUSSION: None VOTE: UNANIMOUS ROLL CALL Matthew D’Agostino, Chairman Yes Laura Walta, Vice Chairman Yes Vincenzo Pesce, Board Clerk Absent Philip Cultrera, Member Yes David DiNatale, Alternate Member Yes Ronald Pitocchelli, Alternate Member Absent CONTINUED PETITIONS FROM SEPTEMBER 22, 2021: 2021-24 YWCA of Greater Newburyport c/o Lisa Mead, Mead, Talerman & Costa, LLC pursuant to G.L. c. 40B sections 20-23 for a Comprehensive Permit to construct 96 rental housing units at 10 and 12 Ingalls Court Lot 1 including Assessor’s Map 716-115-2A and 716-115-2. Felix Zemel noted that there are four members present and two are absent. The members present and absent are the same that were present and absent at the last meeting, so it appears that the Mullin rule does not apply. He asked Attorney Pucci if the chairman should appoint the alternate member, Mr. DiNatale, as a permanent member for the purposes of this petition. Attorney Pucci of KP Law responded that it is important to be clear who the voting members are at the outset of the hearing. He recommends that there is a formal appointment of the alternate member to designate him as a voting member for this project. Chairman D’Agostino noted that he, Laura Walta, Philip Cultrera and David DiNatale have been present for the two meetings. He appointed David DiNatale as a voting member in place of the two absentee members. He asked Attorney Pucci if a Comprehensive Permit petition required the vote of a simple majority. Attorney Pucci responded in the affirmative. 8 Since the last meeting the applicant has received comment from TEC, they have completed the storm water report and provided copies to TEC and the City. They responded to the initial comments from TEC and have not received comments back. They expect that in the next week. A revised landscape plan has been submitted. There are several changes to the elevations of the architectural design. They just today received comments on those changes and have not had a chance to review them. The presentation on that tonight will be based on the changes made after the last meeting. A site visit was held, and it was determined that this building will not be visible from Broadway or from the lower portion of Granite Street. Regarding the changes to the elevations, the architect modified the roof design to lower the maximum roof height by adding some flat roof at the peak. A bump out was added at the south end of Phase One and door locations were coordinated with the civil plan. There were some revisions to the parking in the garage and on the exterior part of the building to accommodate some handicapped spaces, including an ADA van space. There were also some revisions to the Element Care windows. They are seeking a condition allowing for some flexibility with the glass storefront windows and typical windows. The architecture was reviewed. There will be parking below the building where there is a full level grade change, and it can be tucked under and still have the residences above. The primary first floor, is at grade with the future Phase Two as well as the current Nevins Rehab Center and they are looking to create a campus that ties everybody together across the landscape, with a nice front entrance, a residential building with a private patio, and a second entrance that will be connected to Phase two in the future. There is typical floor plan focused on individual one bedroom units. There will be laundry rooms on every floor. There are quiet areas on every floor and different levels of spaces on each level to create flexibility and different opportunities for interaction. She highlighted, relative to the future phases, the location of the bridge connecting the two phases. They tried to design the exterior with context to the existing buildings in the area. There is the existing historical Nevins building with a pitched roof and some articulation in the façade and most of the residential buildings in the area also have pitches roofs with gables and bays and dormers. They drew from that, which also allows them to hide a lot of the mechanical things which are often very visible on a roof. From a building performance perspective, they have created an environment that is highly sustainable, healthy and resilient and comfortable for the residents, that’s going to be a place that will have great ventilation. It’s a low energy building. Laura Walta asked if there would be any two bedroom units. Nat Caughlin explained that with this project, and partly what they are trying to target, working with Nevins and Element Care and also with DHCD, and their funding around senior affordable housing, which is an important piece in how they put these together, a lot of their guidelines have started to consolidate around focusing on one bedroom units, and to a certain extent, they are focusing on DHCD’s priorities. Lisa Mead spoke about the green space and presented the landscape plan. There will be a paved pedestrian path around the circumference of the entire building, which will be operational after Phase One and Phase Two. Four small gathering and rest areas have been intermittingly placed along the pedestrian pathway. Additionally, there is a 1000 s.f. patio at the front of the building adjacent to the main lobby and community room which will offer indoor/ outdoor space. Right now, they are holding some areas for mechanical equipment that may not need to be used, in which case, those will also become small gathering areas. She pointed out that there are a significant number of trees along the Spicket River which will remain, providing a barrier and screening to all of the adjacent 9 properties. One small area at the corner of the building will be disturbed, which is related to storm water, but other than that, it will not be impacted. T.J. Melvin, engineer for the project noted that most of the changes on the civil plan were incorporating changes to the landscape plan. A majority of the changes were relative to utilities and specifying of drainage pipe slopes and lengths. They also provided a full storm water report. They provided some detail to the front of the Nevins building and the parking along Ingalls Court, which was requested by TEC. Chairman Matthew D’Agostino asked if the walking path would be wide enough for wheelchair access. Mr. Melvin responded that it is intended to be accessible. Lisa Mead stated that the applicant is open to a condition requiring a 25% preference for Methuen residents to the extent it does not conflict with federal or state fair housing laws, or DHCD and funding source restrictions. They have confidence that DHCD will be fine with that condition. The City will be required to provide a letter to DHCD justifying the local preference requirement. She also noted that their traffic memorandum is still outstanding. They will have that for the next meeting and will present it at that time. Chairman D’Agostino asked Attorney Mead to address parking on site. Attorney Mead responded that that issue would be specifically addressed at the next meeting with the traffic memorandum. John Feehan noted that they would be working with Element Care for people to reside in these units and those are frail seniors, many of whom do not have cars nor drive. About 50% of the residents in the Nevins housing facility have cars. Their experience with low income housing in Salisbury and Newburyport is about half of those residents have cars and that is a much younger population that they serve in those units. Attorney Mead also noted that the AMI for these units is much lower than the Board is used to seeing for their Comprehensive Permits. That goes to the economic ability as well as the age of each of the residents to have vehicles. Laura Walta asked if changes to the architecture would be presented at the next meeting. Attorney Mead noted, that as she mentioned earlier, comments just came in regarding the architecture. They will review those comments and see what aspects of these that they can address. She added that this building is outside of the Historic District, and it cannot be seen from the street. Philip Cultrera asked if the official name of the site would be The Residences at Ingalls Court. Attorney Mead responded that they coordinated to get a name on the plan, but they are open to reconsider the name. Chairman Matthew D’Agostino opened the floor for public participation. For the record, nobody spoke in favor or in opposition. Attorney Mead commented that at the next meeting they will respond to the TEC peer review, submit and present the traffic memorandum, and respond to the comments regarding the architectural review. She also offered to 10 begin to draft some conditions for the Board and their counsel to review. She requested a continuance to the November 17, 2021 meeting. MOTION: Laura Walta made a motion to continue this to the November 17, 2021 meeting. SECOND: Philip Cultrera DISCUSSION: None VOTE: UNANIMOUS 4. Adjournment: There being no further business before the Board, Chairman Matthew D’Agostino entertained a motion to adjourn. MOTION: Laura Walta so moved. SECOND: Philip Cultrera VOTE: UNANIMOUS Chairman Matthew D’Agostino adjourned the meeting at 8:41 pm. Respectfully Submitted, Nancy P. Hudson Community Development Confidential Secretary NEXT ZONING BOARD MEETING: NOVEMBER 17, 2021 Anyone needing an access accommodation to participate in City of Methuen programs or services, please contact Gene Walsh, ADA Coordinator at 978-983-8625 or GWalsh@ci.methuen.ma.us at least 2 weeks in advance, or 2 business days before any Board or Commission meeting. This notice is available in alternative formats upon request. 11