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2009-04-28 (3)1 :: CITY OF BEVERLY MASSACHUSETTS 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 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: April 28, 2009 Place: Beverly City Hall, 191 Cabot Street, Councilors Chamber, Y floor, 7:00 p. m. Board Members Present: Full Members: Day Ann Kelley, Chairperson, Margaret O'Brien, Jane Brusca, Scott Ferguson, and Joel Margolis. Alternate Members: Pamela Gougian and Sally Koen. Others Present: Director of Municipal Inspections- Zoning Officer Steven Frederickson and Clerk of the Board — Diane Rogers. Chairperson Day Ann Kelley opened the meeting to the public at 7:00 p. m. 3 Connolly Place — R -6 Zone — Edward Manion Variance & Section 6 Finding Mrs. Alison Manion spoke on her husband's behalf. She stated she was requesting a Variance to allow the existing shed /entranceway to have a one -foot to one - foot -.3 inch side yard setback instead of the required 10 -feet. She added her request was also for a Section 6 Finding to have a 16.7 -feet of frontage instead of the 20 -feet required. Mrs. Manion stated they received a letter dated February 19, 2009 from Local Building Inspector Tod E. Biggar, regarding the single -story entry addition located on their property at 3 Connolly Place. The letter stated the violations were: (1) Failure to submit an application and obtain a building permit prior to construction. (2) Failure to submit proper construction documentation. (3) Failure to have the constructed structure inspected. (4) Failure to comply with the required R -6 minimum front yard setback: 20 feet and minimum side yard setback: 10 -feet. Mrs. Manion discussed a letter she had submitted to the Board for review from the previous owner, Mario A. Castallo, III. The Castallo's owned the dwelling from June 16, 1995 to December 6 2006. During their ownership the existing shed and entrance way was attached to the residence when they purchased the dwelling. Mrs. Manion added that during her ownership in 2006, she upgraded the electrical service and put siding on the shed. She commented that she did not change the footprint of the original structure. Mr. Castallo's letter was signed on the 6 th day of December, 2006, before a Notary Public. Mrs. Manion did try to research to locate a plot plan dated 10 years earlier, which would show the existing shed /entranceway. A structure built ten years prior with or without a permit is exempt. A plot plan was submitted and dated March 5, 2009. Chairperson Kelley asked if anyone from the public had questions or comments regarding this proposal. Jennifer Luttrell owner of 5 Connolly Place for the past (5) years, was represented by her Attorney Mr. Griffin. Mr. Griffin submitted Ariel photographs taken in 2002 -2006 which indicated the mudroom addition was not existing at that time. Building Commissioner Steven Frederickson stated that he also viewed Ariel photographs in the year 2000 that clearly showed that the mudroom was not there. Mrs. Manion stated the former owner signed a legal document that the mudroom was existing and she could not conceive someone doing that. Mr. Griffin stated that perhaps the former owner could not sell the property because of the illegal addition built onto the dwelling without a permit. He added that the mudroom showed on the plot plan dated December 1, 2006 when the Manions purchased the property. He stated that presently Mr. & Mrs. Manion rent out their dwelling to students from Endicott College. Mrs. Manion commented that her family would be moving back to the residence that she was renting a place for a short time to be closer to her work. Jennifer Luttrell stated the students sit on the mudroom roof and drink, dispose of cigarettes, and relieve themselves on her property. She added she had to search for the Manions because they had moved and she wanted to apprise them of the issues that had began after their departure of the property. Attorney Griffin stated he had received conformation from the former owners, Mr. & Mrs. Christopher Dalton, confirming that the mudroom/shed structure was not on the dwelling when they sold the property in 1995. Mr. Griffin requested the Board deny this application for a variance. Chairperson Kelley asked Board Members for their questions and comments. Ms. Kelley stated she was of the opinion that this was a unique area and the existing mudroom was 1 '/z -feet from the neighbors lot line, there was no substantial hardship, and that the structure was just a convenience. Mr. Frederickson confirmed that no building permits had been obtained. Ms. Kelley informed Mrs. Manion that when she purchased this dwelling she did not get a clear title and that she should investigate this matter. Margolis asked if the property was currently rented. Mrs. Manion responded that the dwelling was occupied for the school year by Endicott College students. Mr. Ferguson stated he had made a site visit and spoke to one of the college students that stated he would be leaving the premises in May. He added that he believed the structure was built illegally less than 2 ten years ago. Mr. Ferguson commented that asking the new owners to tear down the structure was asking allot. He suggested the two neighbors come up with a plan acceptable to both parties. Ms. Kelley and O'Brien stated they would like a compromise. They suggested a postponement until the next scheduled meeting May 23, 2009 to see if a possible remedy could be reached. Mr. Ferguson commented the structure could be turned 90 degrees and redo the roof. The Board moved to continue the case until the next scheduled meeting May 26, 2009. Subject to the petitioner signing a waiver. Motion carried unanimously. (Kelley, O'Brien, Margolis, Ferguson, and Brusca in favor) 18 Bay View Avenue — R -10 Zone — Michael Harrington - Petitioner An Appeal from an Administration Decision of Director of Municipal Inspections Steven Frederickson Attorney Thomas Harrington spoke on behalf of the petitioner. He stated this was a request of an appeal of an administrative decision of Director of Municipal Inspections Steven R. Frederickson, dated February 11, 2009. The petitioners' request for zoning enforcement was denied on the grounds that there is no front yard setback violation at 18 Bay View Avenue. Mr. Harrington stated he represented Mr. Michael Harrington of 7 Bay View Avenue. He added that on November 18, 2008 the Planning Board gave an "ANR" endorsement to the Plan of Land 14, 16, & 18 Bay View Avenue dated 10/23/08. The plan was recorded on November 19, 2008, in the Registry of Deeds. One of the purposes of this plan was to remove Parcel Z for 18 Bay View Avenue and to add Parcel Y, and the owners have now carried out this plan. Mr. Harrington believes that by conveying Parcel Z to the owner of 16 Bay View Avenue, the owners of 18 Bay View Avenue have caused their lot to violate the 20 -foot setback required in the R -10 District. Mr. Michael Harrington is challenging the Building Inspector's interpretation of the Zoning Ordinance. He received a written decision from Mr. Frederickson denying his request for zoning enforcement, thus rendering him a person aggrieved for the purposes of M.G.L. c.40A, -8. Mr. Thomas Harrington read the definitions of "yard, front" and "setback" from the Zoning Ordinance. Based on his measurement of the front yard setback 18 Bay View, depicted on the Sketch Plan "Exhibit D" (which he submitted copies to the Board members) the open space area serving as the front yard does not provide 20 -feet between the front line of the building wall and the front lot line. He believes the exchange of Parcel Y and Parcel Z reduced the distance between the front line of the building wall and the front lot line at 18 Bay View to less than 20 -feet. Mr. Tom Harrington added that in his opinion despite the clear language of the definitions for "Front Yard" and "setback" in the Zoning Ordinance that Mr. Frederickson's decision is based on an erroneous interpretation of the Zoning Ordinance. Mr. Frederickson's letter of February 11, 2009, stated the intent of the Beverly Zoning Ordinance is that the front yard is an area 20 -feet in depth, measured parallel to the street line. Since no portion of the structure projects into the front yard, there is no violation of the 20 -foot front yard setback and no violation of 29 -5 (F) (2). Mr. T. Harrington stated that nowhere in the definition of "front yard" or "setback" does the Zoning Ordinance call for a measurement "parallel" to the street line. He added that one of the lines used to determine the front 3 yard area is the front line of the building wall. He does not believe Mr. Frederickson's decision that implies that because "front line of the building wall" is not specifically defined in the Zoning Ordinance, it is to be ignored when calculating the front yard setback. Mr. T. Harrington requested the Board to overturn Mr. Frederickson's decision and direct the Department of Municipal Inspections to enforce the front yard setback requirements of the Beverly Zoning Ordinance at 18 Bay View Avenue. Ms. O'Brien asked Mr. T. Harrington how he measured the setback on the map he provided the Board. Mr. T. Harrington responded that he was not allowed to go on the property therefore, he went to a surveyor to lay out this strip of the property. Ms. O'Brien asked if the owners at 16 Bay View Avenue gave the land back would there be a problem. Mr. Harrington responded that he believed the front setback would be wrong. Ms. Kelley asked how Mr. Harrington interprets measuring and setback. Mr. Harrington responded that there is nothing written in the Zoning Ordinance regarding arcing 20 -feet. Mr. Frederickson stated he has always measured from the street back to the dwelling for frontages. After a discussion with Mr. Frederickson, Mr. Ferguson concurred. Chairperson Day Ann Kelley asked if any member of the public have any questions or comments regarding this petition. Attorney Marshall Handly stated he represented Cabot Company, (the Hubbard's) owners of 18 Bay View Avenue. He stated that the required frontage was 20 -feet and that his clients did have that measurement. He added that Front and Width mean the same thing. He asked the Board to read page 6 of the Zoning Bylaws. Mr. Handly submitted a copy of the letter to Mr. Frederickson, the Building Commissioner that he had written regarding this case. He stated in the letter that the front yard setback requirement for an R -10 zone is 20 feet. This setback must be maintained for the entire "front yard" of the property. The "Front Yard" for 18 Bay View Avenue is a set back area of 20 -feet between "the front lot line" and "foundation wall and /or any covered porch or other enclosed portion of the building." Mr. Walker Thompson of 18 Bay View Avenue concurred with Mr. Handly He stated there is no point on this home that is less than 20 -feet from the lot line, front or side. Ms. Kelley stated some of the Zoning Ordinance is not always written well however, she does not feel Mr. Harrington's way of calculating the setback is the correct way. The required front yard at 18 Bay View Avenue, as shown on Exhibit "B" to the Harrington letter, is maintained along the entire length of the required frontage on Bay View Avenue (as shown on the plan, the nearest point of the "foundation wall and /or any covered porch or other enclosed portion of the building" to Bay View Avenue is 25 -feet. The required front yard interlineated on the plan by Mr. Harrington is drawn with reference only to the building, and assumes that there is a requirement in the ordinance that buildings be constructed parallel with the street (which there is not). Setbacks must be maintained from the boundaries of the lot; frontage is defined without regard for the orientation of the building, and the designation of frontage is what determines the characterization of the remaining lot boundaries as side or rear lot lines. 18 Bay View enjoys 186 feet of frontage on Bay View Avenue, as shown on Exhibit "B ". The boundaries with 16 Bay View are side lot lines from which a set back of 15 -feet must be maintained. The Harrington interlineations ignores the requirement in the ordinance that the setback be maintained with reference to "the front lot line ", ignores the fact that "Lot Width" is the 0 same as "Frontage ", and purports to characterize a substantial portion of the lot's frontage as a side lot line. Mr. Ferguson made a motion to uphold the Building Inspectors Decision at 18 Bay View Avenue. Seconded by Ms. O'Brien. Amend. Motion> To uphold the decision of the Building Inspector at 18 Bay View Avenue, the Appeal is denied. Ferguson: Motion that the appeal of an Administrative Decision of the Director of Municipal Inspections, Steven R. Frederickson, dated February 11, 2009 by Michael Harrington be denied. The request is being denied because there is no front yard setback violation at 18 Bay View Avenue. Seconded by Ms. O'Brien. 0 -5 (Kelley, Ferguson, O'Brien, Brusca, and Koen in favor) 181 Elliott Street — 600 Cummings Center, Suite 170 -X — IG Zone — Beverly Commerce Park Inc./United Sign Variance Request Ed Juralewicz, from United Sign Co. spoke on behalf of the property owner, Beverly Commerce Park, LLP. He stated he is seeking to change an existing sign from "North Shore Athletic Club" to "Beverly Athletic Club ". He added he would install the new "Beverly" Raceway mounted channel letters, overall size 45- inches by 207 - inches. There will be red faces with black trim cap and returns. The raceway will be painted to match the building. A photograph was submitted for the Board to review, dated March 10, 2009. Mr. Juralewicz stated that Mr. Ed Soul who operates a Health Club on Reservoir Road in Beverly made the decision to purchase the North Shore Athletic Club located at the Cummings Center. Mr. Soul spoke to the Board informing them that he thought the new name "Beverly" was a good one because he liked the name and he liked this city. He added he was a good businessman and looked forward to 10 to 20 customers a day using his new facility. Mr. Soul stated it was important that the public be able to locate his new business. He stated the white background on the existing sign did not show up. Mr. Juralewicz stated the North Shore sign predated the sign variance of 1998. He added he installed the existing sign in 1996/97. There was a white color in the background with red faces. These colors did not work well with the new proposed sign. He added this change would be a decrease in the footprint size by 4 -feet less. Mr. Juralewicz stated there are over 500 businesses within the seven buildings in the Cummings complex. He added that the buildings' distance from the road and the size of the complex is a hardship, which justifies the need for a variance. He stated that this proposal would not affect the area outside the parcel and would not be detrimental to the public good. Ms. O'Brien stated the colors red and blue were now allowed. Mr. Juralewicz responded he spoke to the Building Commissioner and it was decided that the existing sign was originally put up as a conforming sign and it does not fit into that. Chairperson Kelley asked if any members of the public had any questions or comments? There being no one present she asked the Board members for their questions and comments. Ms. O'Brien stated the proposed request does reduce the overall size of the sign. Ms. Brusca had no questions at this time. Mr. Ferguson was in favor of the request. 5 Ms. O'Brien: Motion To approve the variance request at Building 600 Suite 170 -X, 181 Elliott Street, by changing the signage from "North Shore" Athletic Club to "Beverly" Athletic Club. Seconded by Ferguson. (Kelley, Ferguson, O'Brien, Brusca and Gougian voting in favor.) 40 Central Street — R -6 Zone — Alice Miller, North Shore Properties, LLC Requesting a Section 6 Finding and an appeal from an administrative decision Attorney Thomas Alexander spoke on behalf of the petitioner. He stated he was requesting a Section 6 Finding that if the Building Commissioner's determination is upheld that the Board allow (5) units, as has been the case since approximately 1946 /and/ or an Appeal from an administrative decision that the Building Commissioner's letter Dated February 9, 2009, (Exhibit A) indicating (4) units is disputed in that property has been used as a (5) unit and taxed by the City of Beverly as five (5) units for many years. Mr. Alexander stated he represented Ms. Miller, owner of the property located at 40 Central Street. He distributed photographs of the dwelling to the Board for review. Mr. Alexander stated the dwelling was approximately 100 years old and located in the R -6 Zone. He added that the dwellings across the street were located in the RMD District. Ms. Miller purchased the property with her husband in 1995 -1997 as a 5- family dwelling. In a divorce settlement she obtained this property and refinanced. At that time the appraiser checked the records in the Building Department and found that the building cards indicated that the dwelling was not a 5- family, which is not uncommon in older buildings. Ms. Miller, on her own, wrote a letter to the Building Department asking for a determination. Mr. Alexander researched the "List of Persons" directory (Snoop book) the City of Beverly provides. He found that in 1946 there were 5- units, 1947 there was no 40 Rear or 40 1 /2 Central Street listed and the Building Commissioner considered that unit grandfathered. In 1954 the dwelling was listed as a 5- family. If you look at the property it certainly does not appear that any units have been added. Each unit has an access and an egress, which is unusual to find. Mr. Alexander stated he applied for an administrative decision and /or a finding in the alternative. The Building Commissioner has found this property to be a legal 4- family unit. Mr. Alexander stated they were asking the Board to allow a finding, which allows extending or altering an existing nonconforming use and therefore to allow the 5th -unit. He added the use is allowed by the requirement that the nearest abutting residential zone is the RMD district, which is located across the street. Mr. Alexander stated that such structure or use is neither increased in building volume or area by more than twenty -five percent. He added that the property has been taxed for many years as a 5- family. Ms. Kelley asked if there was a copy of the tax bill indicating 5 -units and Mr. Alexander replied no. A copy of the Assessors map indicating abutters in favor of the proposal was submitted to the Board to review. The neighbors on the list were John W. Carr of 42 Central Street, Gordon Lassar of 38 Central Street, Paul Brumagin of 44 Central Street, Samuel Rulon- Miller Jr. of 52 Lothrop Street, and Bret Nichols of 43 Central Street. Chairperson Kelley asked if there were any members of the public that had any questions or comment regarding this proposal. There being no one present Ms. Kelley then asked 31 the Board members for their comments and questions. Ms. Kelley asked if any permits were obtained to make the 5 th unit. Mr. Alexander responded there were no permits obtained. Ms. Brusca stated she had no questions at this time. Mr. Ferguson stated he made a site visit and found the structure to contain 5- units, 5 -gas burners, 5- electric meters, 5 -hot water tanks, and 5 -mail boxes. He added that he believes this is a 5 -unit building but the question is "how long has it been a five family ". Ms. Gougian stated the 5 th unit might have been there a long time but that does not make it right. Ms. Kelley commented this is a dense area and she believes the property needs upgrading. Ms. Brusca stated she also had concerns and would suggest the structure be inspected and brought up to code. Ms. O'Brien asked if the unit count would show on a title search. Mr. Alexander stated the number of units would not show on a title search. Building Commissioner Steve Frederickson stated he receives requests continuously on the legality of a building. He added that the property at 40 Central Street received a variance in 1947 to allow an addition to a two - family dwelling. Ms. O'Brien made a motion to uphold the decision of the Building Commissioner, Steven Frederickson in regard to the number of units located at 40 Central Street. Seconded by Mr. Ferguson. Motion carries 5 — 0. (Kelly, Ferguson, O'Brien, Brusca, and Gougian) Mr. Ferguson made a motion regarding the second issue presented a request for a Section 6 Finding that will allow 5 -units (only) at 40 Central Street. The Board discussed the following conditions that had to be met: Hardwired smoke detectors and carbon monoxide detectors be installed. Landscape the rear and right side of the property to screen the two properties. Subject to the Building Commissioners full inspection that the building be brought up to code. Mr. Alexander stated that older buildings cannot be brought up to current codes. The Board finds all the criteria relative to Section 29 28 C 2 A, C, D, E, & F have been met. Seconded by Ms. O'Brien. Motion carries 5 — 0. (Kelly Ferguson, O'Brien, Brusca, and Gougian in favor) 564 Cabot Street — R -10 Zone — Frank C. Kaminski Trustee of Cabot Lot C Realty Trust Requesting a Section 6 Finding and or an Appeal from an Administrative Decision Attorney Thomas Alexander spoke on behalf of the petitioner. He stated he was requesting a Section 6 Finding that the preexisting nonconforming use as professional medical offices (Exhibit B) be changed to allow for the sale of antiques and related pre- owned items on the premises together with administrative offices related to such use and appraisals of all types and or /an Appeal from and administrative decision the Date of determination: February 5, 2009 (Exhibit A) use of the premises is within the terms of the variance granted for the premises (Exhibit B). 7 (ALEXANDER REQUESTED TO POSTPONE CASE UNTIL NEXT MONTH. STATED NEW LAW CONCERNING THIS WAS DUE)