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2009-07-28Draft 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 be included in examination of the Board's Decision for that hearing. Board: Zoning Board of Appeal Date: July 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 Joel Margolis, Scott Ferguson, Jane Brusca and Margaret O'Brien. Alternate Members: Sally Koen. Others Present: Director of Municipal Inspections- Zoning Officer Stephen Frederickson and Clerk of the Board — Diane Rogers. Absent: Pamela Gougian July 28, and 29, Margaret O'Brien July 29 tH . Chairperson Day Ann Kelley opened the meeting to the public at 7:00 p.m. She stated there were 15 cases scheduled this evening. The petitioners requesting Section 6 Findings agreed to meet on Wednesday evening July 29, 2009. Re: 16 Bay View Avenue- R -10 Zone — Michael Harrington In an appeal from an administrative decision Mr. Michael Harrington is requesting an appeal from an administrative decision of the Director of Municipal Inspections, Steven R. Frederickson, Dated April 13, 2009, regarding Building Permit No. 09 -0598 for 16 Bay View Avenue. The Petitioners request for zoning enforcement was denied on the grounds that the "Open Space Residential Design" (OSRD) Ordinance does not apply to the property. The petitioner asserts that this decision was made in error. At the June 23, 2009 hearing the petitioner requested to continue the public hearing to the July 28, 2009 meeting. On July 28, 2009 Attorney Thomas Harrington spoke on behalf of Mr. Michael Harrington. He stated that Mr. Harrington was indeed an aggrieved party in this case. A Letter, dated July 17, 2009 was sent to the Clerk of the Board, Diane Rogers, from Brian Falk asking her to add four names to the list of petitioners, in addition to Michael Harrington's. The other names were Dorothy Harrington, 7 Bay View Avenue; Thad Outerbridge, 11 Bay View Avenue; Richard Malley, 15 Bay View Avenue; Richard Malley 15 Bay View Avenue and Kathleen Harney of 15 Bay View Avenue. Attorney Marshall J. Handly sent a letter dated July 21, 2009 to Mrs. Rogers stating that Mr. Harrington is not and cannot be "aggrieved" as that term has been defined by the Courts. However, in as much as none of the identified individuals requested enforcement action, none of them have any right of appeal from the rejection of Mr. Harrington's request. Attorney Thomas Harrington submitted Judith Quimby v Zoning Board of Appeals of Arlington for the Board to review. He stated the Appeals Court held that: (1.) trial judge should not have granted motion to dismiss, and (2.) fact that original plaintiff may not have had standing or presumptive standing was not sufficient reason to deny amendment to allow substitution of parties who had standing. On March 26, 2009 Mr. Harrington wrote a letter to Director of Municipal Inspections, Steven Frederickson stating Building Permit No. 09 -0598 for 16 Bay View Avenue was issued in violation of the Beverly Zoning Ordinances because the owner did not first obtain Site Plan Approval pursuant to the Open Space Residential Design (OSRD) Site Plan Ordinance (Section 29 -24.13 of the Zoning Ordinance). He believes the acreage of this track of land is shown as exceeding 2 acres on at least three recorded plans. Steve Frederickson, P.E. & Director/Building Commissioner wrote a letter dated April 13, 2009 stating in his opinion the above mentioned lot is not subject to the (OSRD) because the remaining parcel which comprises 16 and 16B Bay View Avenue, is 85,883 s. f. which is less than two acres. Chairperson Kelley suggested that the Board members must decide whether to vote to allow additional petitioners to be added to the application and is Mr. Michael Harrington an aggrieved party? A motion was made by Mr. Ferguson not to allow additional petitioners to be added to the application. Seconded by O'Brien. Motion carried 1 — 4. (Kelley, O'Brien, Ferguson, and Brusca, voting yes) (Joel Margolis voting no) A motion was made by Ms. Brusca to accept Michael Harrington as an aggrieved party because he has resided on Bay View Avenue for 35 years. Seconded by Ms. O'Brien. 2 Motion carried 4 — 1 (Ferguson, Brusca, O'Brien, and Margolis voting yes) (Kelley voting against) Steven Frederickson/Director/Building Commissioner stated his comments in this letter to Att. Harrington says it all. He issued a building permit based on the ANR plan that was stamped by the Planning Board. Att. Harrington asked if a few people could speak on behalf of Mr. Michael Harrington. Att. Handly stated that in an appeal from an administrative decision, no other people should be allowed to speak. Ms. Kelley stated you have to trust the actions of the Building Commissioner. Mr. Margolis stated the difference could be the lower and high water marks. Ms. Brusca stated she listens to Mr. Frederickson's advice and expertise. A motion was made by Mr. Ferguson and seconded by Ms. O'Brien to Uphold the Decision of the Building Commissioner relative to the application date of May 12, 2009. Mr. Harrington's appeal is denied. Motion carries 5 — 0. (Kelley, Ferguson, O'Brien, Brusca, and Margolis in favor) 5 Eastern Avenue — CN Zone — Ralph Parisella Section 6 Finding Request Mr. Jason Parisella spoke on behalf of his father. He stated he was requesting to be allowed to use the preexisting nonconforming use as an office to be changed to allow a second apartment. He is also requesting to add an open deck and staircase to the structure. Mr. Margolis stated he sometimes worked with Jason Parisella but felt that would not influence his decision on this petition. Jason Parisella stated the dwelling was attached to a commercial building. He added that his father, who presently resides in a single - family dwelling, might live in this proposed apartment where it is located on the first floor. He asked the Board to review the plan, which indicated there are 4 parking spaces available on the dwelling side and that the commercial parking has over 90 parking spaces. Mr. Ferguson stated he believed there was ample parking. He asked if the dwelling was included in the commercial property. Mr. Parisella responded the dwelling could not be subdivided because it was part of the commercial property. Site Plan, Demolition Plans, Proposed First Floor, Reflected Ceiling Plans, Proposed Second Floor, Exterior Elevations and Interior Elevations and ENL plans were drawn by Annette P. Austraw, AIA Leed, on April 29, 2009. Photographs of the dwelling were submitted to the Board to review. Chairperson Kelley asked if anyone from the public had questions or comments. Mr. Michael Boland owner of MTB Enterprises Inc. located at 83 Bridge Street spoke in favor of this proposal. Chairperson Kelley then asked the Board for their questions and comments. Ms. Koen stated the project seem fine. Mr. Margolis asked if the petitioner had any letters in favor of this project. Mr. Ralph Parisella responded that he had spoken to his neighbors but had not obtained any letters. Ms. Kelley and Ms. Brusca believed the project was ok. Mr. Ferguson stated he had made a site visit. He asked if the existing loading dock located by the edge of the foundation to the dwelling was active. Mr. Ralph Parisella responded that loading dock was not active because there was a larger one on the other side of the commercial building. Mr. Ferguson stated he did not believe that dock to be necessary and would prefer it be taken down. Mr. Parisella responded that once in awhile that loading dock was used by the tenants on the second floor to bring up heavy furniture. He added he would prefer that the loading dock remain. Mr. Ferguson asked if a condition could be placed on the decision that "there would be no parking by the loading dock ". Mr. Parisella agreed. A motion was made by Ms Brusca to grant the Section 6 Finding at 5 Eastern Avenue based on the following 1) That the proposed alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. 2) That the special permit criteria set out in the Beverly Zoning Ordinance per Section 29 -28 C (2) A -F are satisfied. 3) That there were no objections from neighbors. 4) That the plans submitted with the application are strictly complied with, are identified in and incorporated into, the Board's decision, and the elevation drawings, to the extent feasible are recorded with the decision. 5) A condition be placed upon the Decision that there be no parking in the area beside the new deck and the existing small loading dock. Seconded by Mr. Ferguson. Motion carries 5 — 0. (Kelley, Ferguson, Brusca, Margolis, and Koen in favor) 12 Parramatta Road — R -10 Zone — Douglas & Tammy Sload Variance and Special Permit/Finding Request Attorney Miranda Gooding spoke on behalf of Mr. Sload. She stated he was requesting a variance to reduce the minimum setback requirement for the left side yard from 15 -feet to 1.8 -feet for the proposed two -story addition on the rear of the dwelling with a new attached garage. The first floor will contain family and mudroom leading to new garage and a master bedroom and bathroom on the second floor. She added the request is also obtain a special permit /finding to allow an addition to an existing nonconforming single - family dwelling. The property consists of a long and narrow lot that is approximately 9,920 square feet in area. The petitioners intend to demolish the existing garage and deck and construct a 2 -story addition on the rear of the dwelling, together with a new attached garage. The location of the new garage will be in the approximate location of the existing garage except that it will be situated approximately 12 -feet further to the rear of the lot and about one -half foot closer to the side lot line than the existing garage. The following is a list drawn by Michel Beheshti of 399 Lafayette Street, Salem, MA, on June 5, 2009: Existing first and second floor plans, existing basement & roof plans, existing elevations, proposed basement plan, proposed first floor plan, proposed second floor plan, proposed roof plan, and proposed elevations. Photographs of the dwelling were also submitted to the Board for review. Att. Gooding stated the requested Section 6 Finding would not be substantially more detrimental than the existing nonconforming structure to the neighborhood. She added the plans submitted are what the petitioner can 0 afford. The Sloads stated the dwelling has always been is their family. They added that they do not want to upset any of their neighbors with their request. Chairperson Kelley asked if anyone from the public had questions or comments. Mr. Forest Rogers of 10 Parramatta Road stated had reviewed the proposed plans and was in support of the project. He added a garage has always been there and the new plan would move the garage further downward. He commented that the vehicles parked in the yard would now be in the garage. Chairperson Kelley then asked the Board for their questions and comments. Mr. Ferguson stated he made a site visit. He is of the opinion that the hardship on the variance is that the garage is in the rear yard and prevents the owners from using their property. Mr. Ferguson commented that the photograph of the flood conditions and water in the backyard is another hardship. Ms. Brusca stated she is ok with this request. Mr. Frederickson/Building Commission stated the proposed windows in the garage might not be allowed by building code and suggested the plans presented tonight may be altered without coming back to the Board. Ms. Kelley stated the lot is narrow and commented this construction might appear like a wall to the neighbors. She asked if the garage could remain a one -car. Mr. Ferguson stated he made a site visit and observed most of the dwellings in the neighborhood were of a Cape Design with rear dormers. He is of the opinion the hardship of the variance is the nature of the flood conditions on the land. He added this proposal will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. Mr. Ferguson stated the criteria of a Section 6 Finding per Section 29 -28 C 2. A -C -D -E & F has been met. He stated he was in favor of this proposal. A motion was made by Mr. Ferguson to grant the request of a Section 6 Finding to Mr. & Mrs. Sload of 12 Parramatta Road. He finds that the proposed alternation will not be substantially more detrimental than the exiting nonconforming structure to the neighborhood. That the criteria per Section 29 -28 C 2. A- C -D -E& F are factually true. If the plans are reduced to a one -story addition they must be according to the plans within the building code. Seconded by Mr. Margolis. A motion to grant the variance for the attached garage subject to plans submitted tonight. Limitations 1) 2.3 -feet from and parallel to the lot line. 2) The garage be constructed according to the plans submitted and also within the limits of the building code. Hardship is due to the nature of land, which prevents the residents of the locus the proper usage to their land due to periodical flooding. Seconded by Mr. Margolis. Motion carries 5 — 0. (Kelley, Brusca, Ferguson, Kohen and O'Brien in favor) 152 Conant Street — IR Zone- Jay Connolly/ Connolly Partnership Section 6 Finding Mr. Samolchuk spoke on behalf of Connolly Partnership. He stated he was requesting a variance to vary the zoning ordinance by allowing an 11.3 s. f. wall sign to remain above allowable height. The sign reads "CSL International" and faces Rte. 128. (2) photographs were submitted to the Board for review indicating the placement of the CSL existing sign. Mr. Samolchuk stated he is employed by Connolly Bros. and he believed 5 there was a mis- communication regarding the small existing sign that was installed higher than allowed, without a permit. Chairperson Kelley asked if anyone from the public had questions or comments. There being no one present, she asked the Board for their questions and comments. Ms. O'Brien asked if other than the height was the sign up to code. Mr. Ferguson stated he made a site visit and spoke to Jay Connolly. After observing the sign on the building Mr. Ferguson stated the sign is located at the correct altitude, if it were any lower it would be reflecting the occupant below. He commented that the sign was in an applicable location. Ms. O'Brien made a motion to approve the variance to Connolly Partnership by allowing an 11.3 s. f. under code wall sign to remain above allowable height. Seconded by Mr. Margolis. Motion carries 5 — 0. (Kelley, Ferguson, Margolis, O'Brien, and Brusca in favor) 4 Elnew Avenue — R -10 Zone — Paul Furnari/Meridian Const. Section 6 Finding Request Paul Furnari spoke on his own behalf. He stated he was requesting to allow the construction of a 16 -feet by 25 -feet one -car garage with attached mudroom, to construct rear shed dormer, 13 -feet by 34 -feet within footprint of the existing dwelling but encroaches 6 -feet upon the required 15 -feet setback and to allow a front gable awning 3- feet by 7 -feet over existing front entry platform which encroaches 10 -feet upon the 20- feet required setback. Mr. Furnari, owner of Meridian Construction, drew the plans and submitted photographs of the dwelling for the Board to review. Mr. Furnari stated he is proposing to re -hab this run down property, perhaps for his daughter and that the expense would be high. The Exhibit Plan of Land was provided by Bartram Land Survey, dated June 10, 2009. Chairperson Kelley asked if anyone from the public had questions or comments. There being no one present, she asked the Board for their questions and comments. Mr. Ferguson stated he made a site visit and spoke to the Lori Bergesen of 6 Elnew Avenue who would be most impacted by this proposal. She stated there has been a substantial betterment to the property. Mr. Ferguson asked when Mr. Furnari discovered the existing front overhang, an aluminum awning was an issue. Mr. Furnari responded that when he was looking up the garage rules in the zoning ordinance he also read the section pertaining to awnings. Mr. Ferguson asked if the rear dormer existing had anything to do with the Section 6 Finding he was requesting tonight. Mr. Furnari responded that dormer had nothing to do with his request tonight. Ms. Kelley commented the design presented was nice. A motion was made by Mr. Margolis to approve the Section 6 Finding to Mr. Furnari at 4 Elnew Avenue. 1) That the proposed alterations will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. 2) That the plans submitted with the application are strictly complied with, are identified in, and incorporated into, the Board's decision and elevation drawings, to the extent feasible, are 31 recorded with the decision. Seconded by Mr. Ferguson. Motion carries 5 — 0. (Kelley, Ferguson, Margolis, Brusca, and Koen) 230 Greenwood Avenue — R -15 Zone — George & Maura Gotsch Section 6 Finding Request Mr. Gotsch had his contractor represent him because he was on vacation. The request is to raze an existing porch and construct a new addition, which will contain a living room and sunroom with a mudroom and basement. The existing structure is nonconforming where the front setback is 19.1 -feet instead of the 30 -feet required. This dwelling was purchased from another family member. Mr. and Mrs. Gotsch have 4 children and need more living space in this wonderful but small dwelling. The setbacks in the rear and side meet the requirements. In the front of the dwelling is a porch that needs to be replaced. Photographs of the dwelling were presented to the Board for review. Proposed first floor plan, basement floor plan, elevations and proposed roof plans were discussed. The following abutters signed in support of this proposal on June 7, 2009: Wendy Rubin and Robert Johnson of 232 Greenwood Avenue, Judith McGuire of 233 Greenwood Avenue, Anne McPherson of 229 Greenwood Avenue, Louise Tarr of 227 Greenwood Avenue, Edward Brown of 223 Greenwood Avenue, and the Head of Glen Urquhart School, Raymond Nam, at 74 Hart Street. Chairperson Day Ann Kelley asked if anyone from the public had comments or questions. There being no one present she asked the Board for their questions and comments. Ms. Koen stated she was ok with this plan. Ms. Brusca and Mr. Margolis concurred. Ms. Kelley stated this property was nice and the request would improve the Petitioners living space issue. The contractor asked the Board if he could also replace the existing stairs within the "L" area, which is not a deck. Ms. Kelley stated that this should be included in the minutes. Mr. Ferguson stated all the abutters were in favor of this proposal. A motion was made by Ms. Koen to grant the Section 6 Finding to George and Maura Gotsch that 1) the proposed extension or alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. 2) That the plans submitted with the application are strictly complied with, are identified in, and incorporated into, the Board's decision, and the elevation drawings, to the extent feasible, are recorded with the decision. 3) The Board finds that the neighbor's signed letters in favor of the petition. Seconded by Mr. Margolis. Motion carries 5 — 0. (Kelley, Koen, Margolis, Brusca, and Ferguson in favor) 44 Echo Avenue — R -10 Zone — Peter Karvouniaris Section 6 Finding Request Mrs. Karvouniaris spoke on her husband's behalf. She stated she was requesting to raze the existing sun porch and construct a proposed 13 -feet by 18 -feet addition which will 7 contain a new kitchen in the rear of the nonconforming structure. She added the addition would not be beyond the corner of the existing dwelling, staying back 10 -feet. Photographs of the property were submitted to the Board for review. Chairperson Day Ann Kelley asked if anyone from the public had comments or questions. There being no one present she then asked Board Members for their questions and comments. Mr. Ferguson stated he made a site visit to the property. He found this single lot was flat, there were no sidewalks, and he felt there would be a low impact on the neighbors. He stated he was in favor of this proposal. Ms. Kelley questioned if the petitioner had a contractor for this project. Mrs. Karvouniaris responded she did have a contractor to construct the proposed addition. Ms. Brusca questioned if the plans submitted were acceptable to obtain a building permit. Mr. Frederickson/Building Commissioner responded that the plans were ok. A motion was made by Mr. Margolis to grant the Section 6 Finding to the Karvouniaris's at 44 Echo Avenue. That 1) the proposed alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. That 2) the plans are complied with, and incorporated into the Board's decision, and the elevation drawings, to the extent feasible, are recorded with the decision. That 3) the plans be accepted by the Building Inspectors office. Seconded by Mr. Ferguson. Motion carries 5 — 0. (Ms. Kelley, Mr. Margolis, Mr. Ferguson, Ms. Koen and Ms. Brusca in favor) 446 Rantoul Street — CC Zone — Gary McCoy /Agent /Sign Co. Variance Request Ms. Bugbee / Agent / Poyant Signs spoke on behalf of CVS. She stated this request was for a variance for proposed signage exceeding the number and size of wall signs allowed in the CC District with directionals exceeding 2- square feet. She added the subject property is located on the northwest corner of Elliott Street and Rantoul Street. The frontage on Elliott Street is 265- square feet and frontage on Rantoul Street is 340 -feet plus or minus. The building to be constructed is the new CVS Pharmacy. Ms. Bugbee discussed all the proposed signs. Ms. Joan Murphy of 36 Longview Drive stated she believed this request was too large. Ms. Kelley stated she was opposed to an increase in signs. Mr. Margolis asked how many proposed signs would there be compared to Walgreens, which is located across the street. Ms. Bugbee stated she was not aware of the signage at Walgreens. Mr. Ferguson stated he would like to review a better plan including landscaping and parking. Ms. O'Brien stated she would like to see what is allowed by right and then discuss CVS'S proposed added signage. Ms. Bugbe /Agent/ Poyant Signs stated she would like to withdraw without prejudice her application to install added signage at the new CVS, located at 446 Rantoul Street. A MOTION was made by Mr. Ferguson and seconded by Ms. O'Brien to allow Ms. Bug - bee to withdraw without prejudice her application. A waiver of time to be signed. Motion carries 5 — 0. (Ferguson, Kelley, O'Brien, Brusca, and Margolis in favor) 564 Cabot Street — R -10 Zone — Frank C. Kaminski , Trustee of Cabot Lot C Realty Trust Modification of a Variance October 27, 1970 and An Appeal of an Administrative Decision (continued from May 26, 2009 hearing) Attorney Thomas Alexander spoke on behalf of Mr. Kaminski. He stated he is requesting a Modification of a Variance granted October 27, 1970 which allowed use as professional medical offices be modified 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. Attorney Alexander stated that Mr. Kaminski bought the property from Dr. Teeling 14 years ago. Dr. Teeling was granted a variance in 1970 for medical offices that hired two doctors, 6 employees to be located on the first floor, with storage allowed in the barn. Attorney Alexander stated the Barn was built in the 1850's and was rebuilt and appears very nice. Mr. Kaminski operates an antique and appraisal business on related pre -owned estate items. His business helps people dispose of items. A commercial fire alarm was installed in the premises. Attorney Alexander stated Mr. Kaminski had spoken to his neighbors and submitted a list of 32 names, all in favor of this business. Ward Three Councilor John Burke wrote a letter in favor of this modification. A letter was read into record from former Building Commissioner Robert Nelson. He indicated that there was never a problem with this business to his knowledge. Deborah Gauthier, operator of a hair salon next -door, spoke in support of Mr. Kaminski's business. Attorney Alexander stated this is an appropriate neighborhood for this business, which is boarded by a church, funeral home, school, clinic, and Cabot Crossing. Chairperson Day Ann Kelley asked if anyone from the public had comments or questions. Ms. Joan Murphy of 36 Ledgewood Avenue stated she was opposed to all the businesses located upon this property. Chairperson Kelley then asked the Board Members for their questions and comments. Ms. Kelley asked Att. Alexander if he addressed the appeal of an administrative decision. His response was the former Building Inspector stated the property was a legal use the past 14 years and Mr. Kaminski thought his uses were ok. Ms. Kelley asked Steve Frederickson/Building Commissioner - Zoning Officer if he wanted to comment. He responded that when he tried to address the problems the woman next door was having, she questioned how the property next -door was allowed so many uses. This caused Mr. Frederickson to look into the matter. He commented that 564 Cabot Street is not a home occupation with only one room being used for business. Mr. Ferguson stated that in May of this year he observed the following: (6) shipping containers, 14 vehicles on the lot, (2) Insurance Agents who were appraising damaged vehicles for insurance estimates, 3 HC Units that were apparently being stored on the 9 property for 14 days, and a box truck being stored. Ms. Kelley stated Cabot Street is a mixed use. She believes the Board has to be specific on what is allowed at this property. She added that she had no idea Insurance Appraisals on damaged vehicles were located in this property. The Building Commissioner stated the number of commercial vehicles upon the lot should be determined and the periodically erected tents need times of operation determined. Mr. Margolis questioned Mr. Kaminski if he could live without selling cars. Mr. Kaminski responded yes, that he could. Mr. Ferguson stated the damaged vehicle insurance appraisals are not related to this business and should not be allowed. Ms. O'Brien made a Motion to Up hold the Building Commissioners Decision relative to the Kaminski Auction house located at 564 Cabot Street in the R -10 Zoning District. Seconded by Ms. Brusca. Motion carries 5 - 0. (Kelley, O'Brien, Ferguson, Brusca, and Margolis voted in favor) A Motion was made by Mr. Ferguson, to allow the Modification of the Existing Variance originally granted on October 27, 1970, with the following restrictions /conditions 1.) No storage of Industrial materials, 2.) Appraisals and the sale of Antique's and related pre owned estate items be allowed; 3.) The auction of (2) vehicles at the same time be allowed, not longer than 14 days; 4.) Auctions are to be one a month for a 2 day period; 5.) Tents are to be erected between the months of April to November. A permit must be obtained along with the length of time erected determined; 6.) No more than (3) storage containers to be located 50 -feet to the rear of the lot line at the rear of the property. Ms. Kelley would like some assurance that the land will not be subdivided. A Motion was made by Mr. Ferguson and seconded by Ms. Brusca to grant the Modification of the Existing Variance. Refer to Decision for restrictions and conditions. Motion carried 5 —0. (Kelley, O'Brien, Margolis, Brusca, and Ferguson voted in favor) 7 Lakeside Avenue — R -10 Zone — Neil E. Overbem Request for a Section 6 Finding Neil Overberg spoke on his own behalf. He stated he was requesting to erect a 12 -feet by 26'feet one -story family room addition and to expand the rear entry mudroom that is 4- feet wide by 12'- 6 ". Mr. Overberg stated the lot is legal nonconforming in the R -10 zone as the lot contains 7,678 square feet of area and has 90 —feet of lineal frontage. He added the present structure does not meet the required setbacks but the proposed additions will not create a new nonconformity. Photographs of the dwelling were submitted to the Board to review. The following neighbor's signed in support of the proposal: Laura Johnson of 5 Lakeside Avenue, Robert Levin and Yvonne Rep of 6 Lakeside Avenue, Philip and Carol Post of 5 Hooper Avenue, Loring Merrow of 4 Lakeside Avenue, and Linda White of 13 Lakeview Avenue. Chairperson Day Ann Kelley asked if anyone from the public had any comments or questions. There being no one present she asked the Board Members for their questions 10 and comments. Mr. Ferguson stated he had made a site visit and found that all the neighbors have signed off on this petition. He added that he was also in favor. There were no other questions or comments from the Board. A motion was made by Ms. Koen to grant a Section 6 Finding to Neil Overberg of 7 Lakeside Avenue to expand the current mudroom as shown in the plans and erect a 12' by 26' one -story family room addition. That 1) the alterations to this single - family residential structure does not increase the non - conforming structure to the neighborhood. That 2) the proposed extension or alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. That 3) the plans submitted with the application are strictly complied with, are identified in, and incorporated into, the Board's decision, and the elevation drawings to the extent feasible are recorded with the decision. Seconded by Brusca. Motion carries 5 — 0. (Kelley, Brusca, Koen, Margolis, Ferguson in favor.) 1 Boyden Avenue — R -15 Zone - Sharon Dockham Section 6 Finding Request Ms. Dockham spoke on her own behalf. She stated she was requesting a proposed addition 28 -feet by 16 -feet 6- inches, and a proposed deck 28 -feet by 12 -feet in the rear of the dwelling. The front setback has 4.5 feet instead of the 30 -feet that is required. The proposed kitchen and bedroom #2 and deck will comply to all setbacks. Drawings from Architect Alfred J. DiBiaso, dated June 11, 2009 were presented to the Board for review and photographs of the dwelling. Ms. Dockham stated the dwelling was built in 1945. Her 86 -year old mother resides with her and she has only two small bedrooms. She submitted a petition with the following neighbors in favor of her petition: Harriet Campbell of 2 Boyden Street and Kathrine and David Provenzano of 56 Cogswell Avenue. Chairperson Day Ann Kelley asked if anyone from the public had any comments or questions. Mr. Jack French, Jr. of 3 Boyden Street stated he has resided here since 1998. He read into record why he was opposed to this proposal. He submitted photographs of both his property and Ms. Dockham's. Ms. Kelley asked if Mr. French was in a flood zone. He responded he did not reside in a flood zone area. One of his concerns was he felt there was no location for the Dockhams to have a driveway and park their two vehicles. He stated he feels this would be detrimental to his property. Mr. Ferguson asked what the elevation of Mr. Frenches driveway was to the petitioner. Mr. French responded that he back filed his property and built a retaining wall with a French drain. Mr. Ferguson stated the elevation of Mr. Frenches driveway could be affecting the retaining wall that he created. Ms. Kelley stated that it sounds like there is a neighborhood problem with flooding. Mr. French stated that Ms. Dockhams parking also has an effect on snow removal and public safety. Ms. Kelley stated there are several streets in the City of Beverly that have snow removal and snow placement problems. Ms. Kelley asked if there was off street parking on Boyden Street. Ms. Kelley asked Ms. Dockham when her dwelling was purchased and how many vehicles she owns. Ms. 11 Dockham responded her mother has resided in the dwelling the past 50 years. She added that in the beginning, her dwelling was the only one there, surrounded by woods. She stated she owned two vehicles and when she had company they parked in Harriett Campbells property @ #2 Boyden Street. Ms. Dockham stated the proposed addition would meet the setbacks and that the addition and deck would be located straight out in her back yard. She added her front setback was the encroachment. Two letters were submitted from Ed Winslow of 48 Cogswell Avenue and Lisa and Jim Noonan of 5 Boyden Street who were in opposition of this petition. Mr. Ferguson reviewed the proposed plans and stated this addition is being built on pillars not a poured foundation. He believes that would make a marginal impact on the neighborhood. Mr. Margolis concurred. Ms. Dockham stated they have had water in their basement and back yard since the last two dwelling were built. Building Commissioner /Steve Frederickson stated a letter dated July 22, 2009 was sent to Ms. Dockham from the City of Beverly Conservation Commission. Ms. Maxner the Environmental Planer stated because this property contains the 100 -foot buffer zone associated with a bordering vegetated wetland resource area and may contain a portion of wetland itself. Therefore, Ms. Dockham must file an application with the Conservation Commission. Ms. Brusca read the letter into record. She commented that the large tree located in the back yard might not be able to be razed because of the water problems. Mr. Ferguson stated 1) this dwelling is an existing nonconforming structure; 2) this proposal will not be more detrimental than the existing nonconforming structure to the neighborhood; 3) this will be an approximate 45% increase in the footprint; 4) the addition and deck will be built on pillars not a foundation. He commented that he was in favor of this petition. Mr. Margolis stated after reviewing the plans he observed a piece of Ms. Dockhams property measuring 23 -feet which would allow two vehicles to be parked. He added that the pavement where she parks her vehicles is actually her property, not part of Boyden Street. Ms. Kelley asked if a second story could be built on the present dwelling. Ms. Dockham responded that her mother would have problems with the stairs. Ms. Kelley stated she saw no issues as far as the Section 6 request goes. A motion was made by Mr. Margolis to approve the Section 6 Finding to Sharon Dockham of 1 Boyden Street. The Board finds the proposed extension or alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. The plans submitted with the application are to be strictly complied with, are identified in, and incorporated into, the Board's decision and the elevation drawings, to the extent feasible, are recorded with the decision. These plans are to also be approved by the Beverly Conservation Commission. Seconded by Ms. Brusca. Motion carries 5 — 0. (Kelly, Ferguson, Margolis, Koen, and Brusca in favor) 629 Hale Street — R -15- Nathlie Maiorek Section 6 Finding Request 12 Nathlie Majorek spoke on her own behalf. She stated she was requesting to construct a gable dormer on the front of the roof. The dwelling has a setback in front of 10.1 -feet instead of the required 30 -feet. The side yard setback has 8 -feet instead of the required 15 -feet. Dormer plan and reframing elevation were drawn by Joseph A. Boccelli. Photographs of the property were submitted to the Board to review. Ms. Majorek stated she has a cape style dwelling and is requesting to change a one - window dormer to a three. Ms. Kelley stated this property is nonconforming. She added this dormer does not impact the property any more than it does now. Chairperson Kelley asked if anyone from the public had any comments or questions. There being no one present she then asked the Board members for their questions and comments. Mr. Ferguson made a site visit. He stated this proposal does not affect anyone. He added he had spoken to the petitioner's sister. He feels that the absence of the proposed dormer make the dwelling appear out of line. A Motion was made by Mr. Ferguson to approve the Section 6 Finding to Nathlie Majorek of 629 Hale Street that the alteration/reconstruction to this single family residential structure does not increase the non - conforming nature of said structure; that the proposed alternation will not be substantially more detrimental than the existing nonconforming structure to the neighborhood; that the criteria has been met per section 29 -28- (2) A -F; and there were no objections from neighbors; That the plans submitted with the application are complied with and incorporated into the Board's decision. Seconded by Ms. O'Brien. Motion carries 5 — 0. (Kelley, Ferguson, O'Brien, Brusca, and Koen in favor) n 78 McKay Street — R -10 Zone — F. Robert Shannehan and Eleanor M. Shannehan Modification of Decision on Petition dated June 29, 1976 Attorney Miranda Gooding spoke on behalf of her client. She stated the Petitioner seeks a modification of an existing variance permitting a professional office use in a non -owner occupied home in a residential district, which variance was originally granted on June 29, 1976. The petitioner seeks to modify said 1976 Decision by substituting "chiropractic office" as the permitted professional office use allowed by variance in lieu of "dental office." There will be no structural changes or alterations to the existing structure in connection with the proposed modification of use. Ms. Gooding stated the subject property contains approximately 8,090 square feet with frontage on Matthies Street and McKay Street, as shown on the plan dated June 8, 2009 prepared by Gerald R. Marsella. (registered professional land surveyor) There is parking provided for up to eight (8) vehicles, in accordance with said 1976 Decision. Attorney Gooding stated there would be (1) Chiropractor, Mr. Shannehan, and (1) receptionist. There would be no structural changes proposed. The request is to substitute one professional business with another. Photographs of the property were submitted for the Board to review. 13 Chairperson Day Ann Kelley asked if anyone from the public had comments or questions. Joan Murphy of 36 Longview Drive stated there were parking issues on that property. Ms. Kelley asked how many parking spaces were available. Atty. Gooding responded that there were (3) vehicles in the front, (3) in the rear and (2) for tenant spaces. Ms. Kelley asked if the petitioner had spoken to his neighbors. Atty Gooding responded yes, and submitted the following names in favor of the petition: Ann M. Leen of 76 McKay Street, Mary M. McGarr of 82 McKay Street, Thomas E. Fields of 2 Matthies Street and Diana L. Carito of 28 Glidden Street. Chairperson Kelley then requested the Board members ask their questions and present their comments. Ms. O'Brien stated she did see not much difference in the businesses. She stated neighbors had signed in favor of the proposal. Ms. Kelley stated she was concerned with the hours of operation in this residential area and thought the level of patients would increase. Mr. Shannehan stated the hours of operation are Monday and Wednesday 7:30 a.m. — 7:00 p.m. Tuesday 2:00 — 6:30 p.m., Thursdays off, Friday 7:30 a.m. — 5:30 p.m., Saturday 7:30 a.m. — 1:00 p.m. (Sunday off) Ms. Kelley questioned signage. Mr. Frederickson/Building Commissioner stated a 2 square foot sign is allowed for a home occupation business. Anything larger would have to go before the Board. A Motion was made by Mr. Margolis to grant the Modification of an existing variance to Dr. Shannehan at 78 McKay Street to change from a dentist office to a chiropractic office; with the condition the practice would be limited to (3) evenings until 7:00 p.m. Seconded by Ms. O'Brien. Motion carries 5 — 0. ( Kelley, Ferguson, O'Brien, Brusca, and Margolis in favor) 59 County Way Extension — R -10 Zone — Michael and Patricia Arsenault Modification of existing Variance or Special Permit and Variance Attorney Philip Lake spoke on behalf of the Petitioners. He stated the petitioners are requesting a special permit and variance or modification of the existing variance in order to enclose an existing porch. The Beverly Zoning Board of Appeals authorized the exiting porch by Variance issued in 1985. As part of the work the Applicant will pull the porch slightly away from the side yard, deceasing the encroachment into the side yard setback. The resulting structure will include 20 -feet by 15 -feet of enclosed framed porch and 6 -feet by 15 -feet of unenclosed framed porch. The existing porch was designed to keep it away from the lot behind the subject property, where a dwelling was being constructed. By designing the porch as shown in the attached plans, the applicant is maintaining the porch close substantially on its existing footprint and moving it back approximately one -foot from the side yard. The changes should result in little or no impact on neighbors. In addition, by doing so the Applicant will significantly reduce site work, minimize alterations to the residence, and avoid substantial additional cost. Chairperson Kelley stated this proposal should be a variance or modification of the variance of 1985 not a special permit. She added it was not up to the Board to define. Attorney Lake stated he believed the petition was a modification to an existing variance. Atty Lake stated the closest neighbor was present this evening to speak in favor of the proposal but the hour got late and she left. A list of abutters in favor contained 22 14 names and a letter written July 28, 2009 from Alma Young and Robert Young were submitted for the Board to review. Elevation drawings and section and frame plans, were drawn by Robert Nelson. Photographs of the dwelling were also submitted to the Board to review. Chairperson Kelley asked if anyone from the public had comments or questions. There being no one present she then requested the Board members ask their questions and present their comments. Ms. O'Brien stated this proposal is blocked off from the neighbors. She added the existing porch and deck are in need of repair. Mr. Ferguson made a site visit and spoke to the owner. This proposal is one -story and basic replacement. He added that the neighbor most impacted by this construction was in favor. Mr. Ferguson stated he believed the hardship was the width of the lot. Ms. Kelley stated a variance was allowed in 1985 and the Board is modifying that. She added the applicant was improving the structure. A motion was made by Mr. Ferguson to approve the modification of the existing variance originally granted on October 15, 1985 to Michael Arsenault of 59 County Way to enclose the existing porch. Plans submitted with the application to be incorporated into the Board's decision. With a condition that the porch will remain a one -story structure. Ms. O'Brien seconded the motion. Motion carries 5 — 0. (Kelley, Ferguson, O'Brien, Koen, and Margolis in favor) (& 65 West Street — R -45 Zone — Evan Wile, Trustee of West Street Realty Trust An appeal from an administrative decision re: Building Permit #BP- 2009 -0916 Dated May 21. 2009 Attorney Sander A. Rikleen spoke on behalf of Mr. Wile, Trustee of West Street Realty Trust, owner of 63 West Street, Beverly, MA, who is a direct abutter. He stated the owners property did not meet zoning requirements when created in 1985. Thus, Owner is not protected by a finding under M.G.L. c.40A, Sec. 6, Par. 1 or Sec.29 -27.D of the City of Beverly Zoning Ordinance. Mr. Rikleen stated the Locus is in an R -45 district, which currently requires 45,000 s. f. lot size, 175 -feet of Frontage, 175 -feet Lot Width, 30 -feet Front Yard Setback, 20 -feet Side Yard Setback, 25 -feet Rear Yard Setback, and 35 -feet Maximum Building Height. Although not disclosed in the application for the Building Permit the Locus does not conform to Beverly zoning in the following respects: 1) The dwelling, built in approximately 1900 before Beverly zoning, exceeds the 35- foot height limit, as pointed out in the Application. 2) the Locus has only 65.80 feet of frontage on a public way and only 19.47 -feet of frontage on the private way called 45 West Street. Unless frontage on the internal "Avenue" which I also a private way, is sufficient under the Zoning Ordinance, the Locus lacks the required frontage. 3) 65 West Street has not been approved by the Planning Board as a Pork Chop Lot even though its current boundaries were created after the Pork Chop Lot ordinance 29 -5.I, was significantly rewritten in 1984. To qualify as a pre- existing non - conforming lot with grandfather protection under Beverly Zoning Ordinances the Locus must be measured against the zoning in effect when 15 it was created to determine if it conformed to Beverly zoning at that tine. Because the current boundaries of the Locus were created in September 1985, the Locus must be measured against the Beverly Zoning as then in effect to determine if it was a conforming lot. Mr. Rikleen stated it is clear that when created in 1985, the locus did not conform with Beverly Zoning and the permit should not have been issued by the Building Inspector. Attorney John Connolly stated he represented Mr. Jeffrey Horvitz and was speaking on his behalf. He stated that this lot is a grandfathered property. He submitted a copy of Beverly's Zoning Ordinances. He asked the Board members to turn to Pork Chop Lots. He added that under section "G" you will find that this lot was created under a plan that did create this lot prior to 1984. He stated the lots were created in 1950. Mr. Frederickson/Building Commissioner stated Mr. Horvitz went before the Zoning Board and obtained a Section 6 Finding to add a gallery structure and upgrade cooling system. Ms. O'Brien stated the Board had heard this case and carefully considered it. Brusca concurred with Ms. O'Brien. Attorney Rikleen stated he believed the property is not a legal pre existing nonconforming lot and a finding does not solve the problem. He commented that is why he appealed the building permit, which stated "proceed with own risk ". Ms. Kelley stated she refers to the Building Inspector in these cases who reviews the information. She added she has not seen any changes in the property in the past years. Ms. O'Brien stated she believed Attorney Connolly was correct that 65 West Street was a legal lot. A motion was made by Ms. Brusca to Uphold the Building Commissioners decision in regard to the application dated May 21, 2009 in regard to 65 West Street. Seconded by Ms. O'Brien. Motion carries 5 — 0. (Kelley, Brusca, Koen, Margolis, and Ferguson in favor) The Board finds that the Petitioner did not meet his burden of proof in demonstrating the erroneous nature of the Building Commissioner's determination. Meeting adjourned 11:20 p.m. 16