2012-09-27CITY OF BEVERLY
PUBLIC MEETING MINUTES
These minutes are not a verbatim transcript of the public hearing or public meeting
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.
Board: Zoning Board of Appeal
Date: September 27, 2011
Place: Beverly City Hall, Councilors Chamber, 191 Cabot Street
Board Members Present: Acting Chairperson ,Jane Brusca
Regular Members:
Scott Ferguson and Margaret O'Brien
Alternate Members:
Pamela Gougian, Sally Koen, and John Harden
Others Present: Steve Frederickson — Building Commissioner /Zoning
Officer
Diane Rogers — Clerk for the Board
Absent: Day Ann Kelley, Chairperson and Joel Margolis
Jane Brusca, Acting Chairperson, opened the meeting to the public at 7:00 p.m. She
announced that there were (8) cases to be heard plus a continuance from July 26, 2011.
38 Western Avenue — R -10 Zone — James A. Birarelli
Special Permit Request Continued from July 26, 2011 Meeting
Voting Members were Kelley, O'Brien, Ferguson, Margolis, and Busca
(John Haden was present by not voting)
Mr. Birarelli stated at the last meeting the Board suggested he obtain new drawings of
the proposed addition to his existing garage. Mrs. Rogers submitted the new plans to the
Board members for their review.
Acting Chairperson Jane Brusca asked if anyone from the public had any questions or
comments regarding this proposal. There being no one present she asked the Board
members for their questions and comments. Ms. Brusca asked if the proposed new doors
to the garage were larger than the existing. Mr. Ferguson responded the plans indicated
the doors were 8 -feet 6- inches. Mr. Harden stated Mr. Birarelli had taken the Boards
suggestion and redesigned the proposed addition to the existing garage. He added that
the width was also narrowed by 2 -feet. Mr. Ferguson reviewed the elevation drawings
and stated he was in favor of the new design.
Mr. Ferguson made a motion to approve the Special Permit to James Birarelli of 38
Western Avenue to add onto the existing detached garage that encroached 12 -feet upon
the rear yard setback. Ms. O'Brien seconded the motion. Motion carried unanimously.
( Brusca, Ferguson, O'Brien, and Harden in favor)
676 Hale Street — R -15 Zone - Thomas E. & Judith A. Tetreault/M. Handly, Esq.
Temporary Conditional and Variance Permit Requested
Marshall Handly, Attorney for Thomas and Judith Tetreault spoke on their behalf. He
requested a Temporary Conditional permit and a Variance to alter an existing single -
family residence to include an accessory in -law apartment for two people to live in
proximity to, with independence from a relative. (their daughter) Atty. Handly stated the
Ordinance allows for temporary conditional accessory apartment for occupation by "a
person related within the third degree of consanguinity" to the Record owner. Both of
wife's parents qualify, and are currently living together, and would like to continue to do
so in proximity to their daughter and son -in -law. Atty. Handly stated an expansion was
constructed to the dwelling independent of this application prior to it. He added the
request is for a variance for two people rather than one to reside in the single - family
residence with their daughter and son in law.
Acting Chairperson Jane Brusca asked if anyone from the public had questions or
comments relative to this petition. Mr. and Mrs. Hayes of 329 Essex Street, Salem, MA,
owners of 680 Hale Street, voiced their concerns. Mrs. Hayes stated she was not against
the Tetrealult's parents residing in the dwelling; she questioned the two -story addition
being constructed and then going to the Board of Appeal for a Temporary Conditional
Permit. She was of the opinion the in -law apartment was to be within the existing
structure. Mrs. Hayes questioned who would enforce the permit. She added she
believed this puts the burden upon the neighbors. Atty. Handly responded that the
ordinance does allow an owner to amend a structure provided the addition meets the
dimensional setback requirements. He stated there is nowhere in the ordinance that
prohibits what was done. Atty. Handly commented that it's the people that do not apply
for a temporary condition permit that you have to worry about.
Ms. Brusca asked the Board members for their questions and comments. Ms. Brusca
stated she has concerns with the large size of the addition. Ms. O'Brien questioned if a
kitchen was already installed in the new addition. Atty. Handly responded no, and when
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the in -laws move out, within 90 days the new kitchen to be installed would then be taken
out. Mr. Harden discussed what would happen if the property were sold and if the
apartment had separate parking spaces. Ms. Gougian asked if the house could be sold as
having an in -law apartment. Atty. Handly stated if the dwelling was sold the new owner
would have to return to the Board of Appeals and specifically name the person or persons
who they request reside there. If granted, the City Clerk must register the name of the
inlaw /inlaws every four years. Mr. Harden asked if there were separate electric meters
and heat system. The owner responded there was a separate heating system. Mr.
Ferguson stated he made a site visit on Sunday. He commented that every decision is
independent. Atty. Handly stated an in -law apartment is recorded at the registry of deeds
and not to allow the homeowner his right to use his land would be a hardship. Ms.
O'Brien asked if after 10 years the dwelling is sold doesn't the variance go with the land
allowing in -law use. Building Commissioner, Steven Frederickson responded that each
application stands on its own.
Mr. Ferguson made a motion to allow the Temporary Conditional Permit and Variance
requested by Mr. and Mrs. Tetreault at 676 Hale Street, to have their two in -laws reside
with them. The hardship determined as the ordinance as presently written does not allow
people fair use of their property. Seconded by Ms. O'Brien (Motion Carries
Unanimously) (Brusca, Ferguson, O'Brien, Gougian, and Koen)
57 Balch Street — R -10 Zone — Alan R. and Deborah Timson
Temporary Conditional Permit and Variances Requested
(CONTINUED)
Attorney Eitan Goldberg spoke on the Timson's behalf. He stated he was requesting a
Temporary Conditional permit and Variances to erect an accessory in -law apartment for
two people to live in proximity to, with independence from a relative. The proposed one -
story addition is to be 24 -feet by 44 -feet, containing bedroom, kitchen, living room,
bath/laundry, on a nonconforming structure and lot. The Cape Cod style dwelling is
considered one and 3 /4 stories and covers approximately 1,104 sq. ft. on a lot that contains
16,405 square feet. (10,000 sq. ft. is required in this zone) The existing structure would
be difficult to divide into two adequate dwelling units.
Mr. and Mrs. Timson's would like to reside together in the new addition and have their
son David and his wife occupy the existing dwelling.
Plans for the proposed addition showing front, left side, rear, and right side elevations
were submitted to the Board for review.
A letter from Mr. James Mahoney of 55 Balch Street stating he was in favor of this
proposal was submitted to the Board for review.
Acting Chairperson Jane Brusca asked if anyone from the public had any questions or
comments relative to this proposal. There being no one present she asked the Board
members for their questions and comments.
Ms. Brusca stated she made a site visit and observed the dwelling on the left hand side
had a similar addition. She added that there is plenty of room in the rear of this property
for the expansion. Mr. Harden questioned if there would be a connection to the existing
dwelling. Robert Nelson who drew the plans responded not so. Ms. O'Brien stated she
was of the opinion you needed a connection for an in -law apartment. Mr. Nelson stated
one of the bedrooms could be reduced in size and the wall knocked out to join the other
dwelling if the in -law apartment was no longer needed. Mr. Ferguson stated he had made
a site visit and was concerned with the size and scale of the proposed addition. He asked
if the abutter at 55 Balch Street saw the plans. Mr. Goldberg stated the abutter was Mr.
Mahoney and his letter was read into the record. Mr. Ferguson stated he did have a
problem with the definition of what a hardship is. He added that financial problems or
poor health is not one of them. A hardship is the topography of the land, ledge, or
preventing the individual the right to use their property. Attorney Goldberg stated his
clients want to live with their children and the dwelling would not be a two - family.
Building Commissioner Steve Frederickson stated the existing dwelling is non-
conforming which you can increase by 25 %,however, this project is an 100% increase.
Ms. Gougian stated if the in -law apartment must be within the existing dwelling I cannot
see this proposed addition not connecting. Ms. O'Brien stated she had concerns with the
design of the project and the scale. Mr. Harden prefers the proposed addition be
connected. Mr. Frederickson stated there is nothing in the zoning ordinance that states
the addition must connect to the dwelling.
Mr. Ferguson suggested this case be continued and the plans modified. Ms. Brusca stated
she was unclear how his addition would be easily converted back to a single- family.
Mr. Ferguson made a motion to continue the temporary conditional permit and variance
until the next scheduled meeting October 25, 2011. Subject to the signing of a waiver.
Seconded by Ms. O'Brien. Motion carried unanimously ( Brusca, Ferguson, O'Brien,
Harden, and Gougian in favor)
13 Holding Street — R -10 Zone — James and Kelly Stapleton
Special Permit Request
Mr. Stapleton spoke on his own behalf. He is requesting to build a 15 -feet by 28 -feet
two -story addition off the rear of the dwelling. The proposed addition will conform to
setbacks but will not conform to zoning ordinance laws because the proposed plan will
increase the structure by more than 25% of the footprint and volume. The existing cape
styled dwelling was constructed in 1946 and has remained in the same location since
built. Mr. Stapleton stated that a family of (4) occupies the dwelling and is slowly
outgrowing livable space.
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A new foundation will be poured after excavation. Mr. Stapleton added the first floor of
the proposed addition will consist of a new living room, added closet space, and stairwell
relocation. The second floor bedrooms will be expanded and another full bath will be
added. He explained that the lot is quite large in comparison to the dwelling, which has
1,480 sq. ft. of living area on an 11,860 s. f. lot. He commented that there is parking for
(4) vehicles in the driveway along with a shed, which located in the rear of the lot. Mr.
Stapleton stated his plan was to add 36% of the footprint and 40% of the volume.
Mr. Stapleton stated the proposed addition would not be visible from the street and would
not infringe upon any neighbors privacy.
A petition was submitted and signed by 14 neighbors in support of this proposal. Plans,
elevation drawings, and photographs of the dwelling were submitted for the Board to
review.
Acting Chairperson Jane Brusca asked if any person from the public had questions or
comments regarding this proposal. Maureen Troubetaris, Ward One Councilor spoke in
favor of this petition. She stated the topography of this lot contains ledge and is a definite
hardship to the Stapleton's. Neighbor's are in favor of this proposal, which will allow
Mr. and Mrs. Stapleton to remain in their dwelling and raise their children in this Ryal
Side area.
Ms. Brusca asked the Board members for their questions and comments. Mr. Ferguson
stated he made a site visit and found the rear yard is flat and that there is ample room for
this proposal. He added that no one opposed and therefore, he is in favor. Ms. O'Brien
made a site visit and stated she was in favor of this proposal. Ms. Koen stated that all
abutter's seemed to be in favor of this proposal. She added she was also in favor. Mr.
Harden discussed the roof and chimney with Mr. Stapleton.
Mr. Ferguson made a motion to approve the Special Permit requested by James and Kelly
Stapleton to build a 15 -feet by 28 -feet two -story addition off the rear of the dwelling.
Subject to plans submitted. Also, per Section 29 27 C2 A -F excluding "B ". Have been
presented by local witnesses as well as being factually true. Seconded by Ms. O'Brien.
Motion carries unanimously. ( Bursca, O'Brien, Ferguson, Gougian, and Koen, in favor)
43 Cole Street — R -15 Zone — Gunter Steege
Special Permit Request
Mr. Steege spoke on his own behalf. He is requesting to construct a proposed 18 -feet by
18 -feet addition which encroaches upon the side yard setback by 4 -feet 3- inches. The
addition would be in the rear of the dwelling and not visual from the front. Mr. Steege
needs to increase the living space of his growing family. He explained he went before
this Board on May 27, 2008 but withdrew the petition without prejudice.
Plans for the addition, elevation drawings, and photographs of the dwelling were
submitted to the Board for review.
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Acting Chairperson Jane Brusca asked if any person in the public had any questions or
comments relative to this proposal. There being no one present Ms. Brusca asked the
Board members for their questions and comments. Ms. Brusca asked if there would be
more of a gable end on the structure. Mr. Steege said that was correct. Ms. O'Brien
asked what the addition would contain. Mr. Steege stated the proposed addition would be
for a bedroom with electric heat. Mr. Ferguson made a site visit and found the back yard
to be flat and acceptable for this proposal. He commented that the addition would not be
seen from the street. He asked if the abutter at 41 Cole Street was aware of his plans.
Mr. Steege responded that the abutter at 41 Cole Street did sign off on his proposal. Mr.
Ferguson stated he was in favor of this petition. Ms. Gougian asked about Mr. Steege's
previous decision in 2008 that was withdrawn without prejudice. Mr. Steege responded
he lost interest in that project. Mr. O'Brien stated she was in favor of the proposal.
A motion was made by Mrs. O'Brien to grant the special permit to Mr. Steege of 43 Cole
Street to construct a proposed 18 -feet by 18 -feet addition which encroaches upon the side
yard setback by 4 -feet 3- inches. The Board finds the following conditions are met:
a. That the specific site is an appropriate location for the proposed use, and that
the character of adjoining uses will not be adversely affected.
b. That no factual evidence is found that property values in the district will be
adversely affected by such use.
c. That no undue traffic and no nuisance or unreasonable hazard will result.
d. That adequate and appropriate facilities will be provided for the proper
operation and maintenance of the proposed use.
e. That there are no valid objections from abutting property owners based
on demonstrable fact.
f. That adequate and appropriate City services are or will be available for
the proposed use.
Subject to plans submitted with proposal. Seconded by Mr. Ferguson. Motion carries
unanimously. ( Brusca, Ferguson, O'Brien, Gougian, and Koen, in favor)
15 Thompson Road — R -10 Zone — Edward Comeau
Special Permit Request
Mr. Edward Comeau spoke on his own behalf. He stated the request is to construct a
proposed 30 -foot by 30 -foot one -story addition which will meet all setbacks, to an
existing non - conforming dwelling. The addition will contain a bedroom and family room
with an elevator for handicap accessibility. The existing one - family dwelling is of ranch
style with an attached garage and shed. Plans for the proposed addition, elevation
drawings, and photographs of the dwelling were submitted to the Board for review.
Mr. Comeau stated the front of his dwelling is 2 -feet to close to the street and that is why
he was present tonight. He submitted a list with abutter's signatures in favor of his
proposal.
Acting Chairperson Jane Brusca asked if anyone from the public had any questions or
comments relative to this proposal. There being no one present Ms. Brusca asked the
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Board members for their questions and comments. Mr. Ferguson stated he lived in this
neighborhood but saw no reason to excuse himself from this case. He added that the
direct neighbors had signed off of on this proposal and he therefore was in favor. Ms.
Brusca thanked Mr. Comeau for providing such well -drawn plans. Ms. Koen stated she
was pleased that all abutters had signed in favor of the petition. Mr. Harden stated the
addition was in proportion with the existing dwelling. Building Commissioner Steven
Frederickson stated an existing nonconforming one - family dwelling which is
nonconforming with respect to a minimum yard setback may be enlarged or extended in
any other direction in compliance with the Ordinance by up to 25% in either building
volume, footprint or area, after July 12, 2011 through the issuance of a building permit as
provided in Section 29 -29. (Mr. Comeau's proposed addition is larger)
A motion was made by Mrs. O'Brien to allow the 30 -foot by 30 -foot one -story addition
to Edward Comeau of 15 Thompson Road. The Board finds these conditions have been
met:
a. That the specific site is an appropriate location for the proposed use,
and that the character of adjoining uses will not be adversely affected.
b. That no factual evidence is found that property values in the district
will be adversely affected by such use.
c. That no undue traffic and no nuisance or unreasonable hazard will result.
d. That adequate and appropriate facilities will be provided for the proper
operation and maintenance of the proposed use.
e. That there are no valid objections from abutting property owners based on
demonstrable fact.
f. That adequate and appropriate City services are or will be available for
the proposed use.
Subject to plans submitted with the application. Seconded by Mr. Ferguson. Motion
carries unanimously. ( Brusca, Ferguson, O'Brien, Gougian, and Koen in favor)
152 Conant Street — IR Zone — Stephen J. Connolly
Special Permit Request
(CONTINUED, DID NOT APPEAR AT MEETING)
Mr. Stephen J. Connolly did not appear. The request was for removal of two existing
directory signs "152 Conant ", one facing Conant Street and one facing Route 128, both
measuring 12 -feet 6- inches by 5 -feet each and replacing them with a two -faced sign
measuring 5 -feet by 3 -feet each. The two directory signs being replaced were granted by
variance on August 23, 1988. A blanket sign variance was granted September 28, 2010
allowing no more than three tenants rights to install signage on two sides of the building
each.
Mr. Ferguson made a motion to continue without any discussion to the October 25, 2011
meeting. Ms. O'Brien seconded the motion. The motion carried 5 — 0. ( Brusca,
O'Brien, Ferguson, Margolis and Harden in favor)
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105 Cherry Hill Drive — IR Zone — Charles Ortner Agent
for Harvest Development, LLC
Special Permit Request
Mr. Ortner spoke on behalf of Harvest Development, LLC. He requested to install a 10-
feet by 5 -feet freestanding sign at the entrance to a business, where maximum 20 s. f. is
allowed. The site contains (155) suite 4 -story retirement residence and (9) duplex one -
story cottages. The sign is low profile landscaped and with the faux brick, which
compliments the exterior of the main building. Sign to read "Colonial Gardens" with
"Gracious Retirement Living" underneath. Photograph of the sign and typical composite
details were submitted to the Board members for review.
Acting Chairperson Jane Brusca asked if anyone from the public had any questions or
comment regarding this petition. There being no one present Ms. Brusca asked the Board
members for their questions and comments. Ms. Brusca asked the petitioner if he had
any photograph of where the proposed signs would be located. Mr. Ortner stated one
sign will be located right by the entryway and submitted a site plan showing the other
proposed location of the entrance sign 10 -feet wide by 5 -feet high. He also indicated
where the Axcelis sign was located that measures 6 '/2 -feet wide by 20 -feet high. Ms.
Brusca read into record the Design Review Boards letter regarding this sign. Mr.
Ferguson stated that he visited the site and found that the proposed sign would be of
minimum usage and an appropriate size.
A motion was made by Mr. Harden to grant the special permit to install a 10 -feet by 5-
feet freestanding sign at the entrance to a business, where maximum 20 s. f. is allowed.
The Board finds the following conditions are met:
a. That the specific site is an appropriate location for the proposed use,
and that the character of adjoining uses will not be adversely affected.
b. That no factual evidence is found that property values in the district
will be adversely affected by such use.
c. That no undue traffic and no nuisance or unreasonable hazard will result.
d. That adequate and appropriate facilities will be provided for the proper
operation and maintenance of the proposed use.
e. That there are no valid objections from abutting property owners based
on demonstrable fact.
f. That adequate and appropriate City services are or will be available for
the proposed use.
Subject to plans submitted with the application. Seconded by Mrs. O'Brien. Motion
carries unanimously. ( Brusca, Ferguson, O'Brien, Gougian, and Harden in favor)
449 Cabot Street — R -10 Zone — Cabot Fuel
Special Permit Request
(CONTINUED)
Rad and Cynthia Alkhatatbeh owners of the property spoke on their own behalf. They
are requesting to substitute a portion of an existing non - conforming use (an automobile
repair facility) with another non - conforming use (a convenience store). All work will be
within the exiting building. A "Finding" was granted with conditions on November 25,
2008 to the former owners Steve Atherton and James Zarella to add an accessory
convenience use (which would be limited to the current location of the office) to an
existing gas station use within the existing building envelope and footprint and to allow a
proposed infill addition measuring 11.2 -feet by 8 -feet. Also to allow ancillary used car
sales. The owner is proposing converting one of the existing garage bays to the existing
retail space. Mrs. Cynthia Alkhatatbeh stated she and her husband had been operating
the business for three years and when the fire happened a few months ago they decided to
increase the retail sales while renovating the building.
Acting Chairperson Jane Brusca read into record a letter from David L. and Linda J.
Burnham of 454 Cabot Street, who expressed their concerns of additional site activity on
the small lot. They stated they were not in favor of this proposal.
Photographs of the property and the existing floor plan were submitted to the Board for
review. The proposed floor plan and elevations were drawn and provided by DMS
Design, LLC, Beverly, MA.
Ms. Brusca asked the Board members for their questions and comments. Ms. O'Brien
stated the decision of November 25, 2008 was granted to Steve Atherton and James
Zarella not Mr. Alkhatatbeh. Mr. Alkhatatbeh responded that he purchased the property
December 2, 2008. He added that Mr. Zarella leased the property. Mr. Atherton stated it
took several months for the sale of the property to go through. He added that the new
owners would like to expand the sale of products such as tonic, coffee machines, etc. Ms.
O'Brien stated the sale of used vehicles is another business run from this property. Mr.
Ferguson stated there is also a U -Haul Rental business that was allowed one truck and
now there are several; plus the sale of gasoline on site. Ms. Brusca stated she had made a
site visit and found work ongoing at the site. She believes the owners are requesting to
have 3 /4 of the building a retail store. Mrs. Alkhatatbeh responded she thought it would be
only' /4 of the building. Ms. Gougian asked if the U -Haul Rental and Used Vehicle sales
would be a continued use. The owners are not quite sure what uses they will incorporate
into the site. Mr. Ferguson stated promises have been made, conditions were placed and
the owner has not complied. Ms. Gougian stated there are also propane tanks on the
property. She added there is only limited parking at this location. Mr. Ferguson asked
the owners "What do you actually want to do within this property "? Ms. Brusca stated
that because of the traffic flow, vehicles coming from North Beverly would find it hard to
take a left turn onto the property because of the vehicles waiting at the traffic light, which
would block the driveway to the property. Mr. Harden stated he would like to know
which of the multi businesses did the owner want and what would the parking
arrangement for each use be.
Acting Chairperson Jane Brusca asked if anyone from the public would like to add their
comments or questions. Mr. Henry Genthner of 465 Cabot Street stated the property was
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a legal gas station and the owners want to increase the retail sales part of their business.
He believed most of the customers would be students of the nearby school. He added
that he was in favor of this proposal.
Mr. Ferguson suggested continuing the case until next month and taking the time to
provide the Board with a site plan of what businesses they choose to have, parking spaces
required for each use and exactly what commodities would be sold. Mr. Alkhatatbeh
stated he would not be selling bread and milk. Ms. O'Brien asked how customers would
know that. Mr. Brusca reviewed the proposed plans and stated there are (3) large
Beverage coolers and (5) isles of shelves, which was a 600 s. f. large area. Cynthia
Alkhatatbeh responded the space is not that large because most of the shelves will have
moving supplies for the U -Haul business on them and that they would also need a large
countertop. Ms. Brusca responded that the owners are not substituting a gas station for a
convenience store and that makes it difficult for the Board to approve. She added there
are too many businesses on this location and the use is unclear. She commented that if the
owner chooses to delete the car sales business the Board could write that in the decision.
Ms. Gougian asked where the fuel truck would park. Mr. Atherton stated the sale of
propane tanks are no longer in use. Mr. Ferguson asked where the air- conditioning units
would be located. Mr. Alkhatatbeh responded the units would be upon the roof. Mr.
Ferguson stated he did not want any noise coming from the air- conditioners.
A motion was made by Mr. Ferguson to continue the proposal requested at 449 Cabot
Street until the October 25, 2011 scheduled hearing. A waiver of time to be signed.
Seconded by Ms. O'Brien. Discussion on motion: Ms. Brusca requested the owner
provide the Board with a site plan with parking all around to scale and what businesses
will be run on the site. She added the Board would like to know how the traffic flow
would be handled and what uses will be relinquished.
Motion carries unanimously ( Brusca, Ferguson, O'Brien, Harden, and Koen, in favor)
Business:
Mr. Ferguson stated he had read the Zoning Board minutes. He made a motion to adopt
the minutes of June 28, 2011 and July 26, 2011, subject to any corrections required. Ms.
Brusca seconded the motion. Motion carried 5 — 0. ( Brusca, Ferguson, O'Brien, Harden
and Gougian in favor)
Meeting adjourned @ 10:00 p.m.
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