ZBA Minutes 3-29-20161,
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� c City of Beverly
Zoning Board of Appeals
March 29, 2016 at 7pm
These minutes are not a verbatim transcript of the public hearing 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.
Meeting Minutes
Members Present: Joel Margolis, Chairperson, Victoria Burke Caldwell, Jim Levasseur,
David Battistelli, Pamela Gougian, Kevin Andrews, alt.
Members Absent: Pamela Gougian, Margaret O'Brien, Alt.
Others Present: Leanna Harris, Zoning Board Administrative Assistant
Location: 191 Cabot Street, 3rd Floor, Councilors Chambers
Ms. Margolis called the meeting to order at 7:00pm.
I. CONTINUED PUBLIC HEARINGS
A. Paul Sandberg
In a petition for a request for a Finding to permit the addition of a fully conforming addition to
the first floor dwelling unit in a two family structure (allowed by Variance) in a single family
residential district in R10. The property is located at 44 Cross Street.
Attorney Marshall J. Handley of Handley & Cox addressed the Board on behalf of the applicant
and requested a continuance to the July 2016 meeting. The Plans have been given to an architect
and the applicant will be looking to having a meeting with the abutters to address any questions
they may have. Attorney Marshall stated he has read the letters that have come in and it is his
belief that there is some miscommunication and confusion.
MOTION: Mr. Battistelli moved to allow the continuance to the July 2016.
Second by Mr. Levasseur.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
B. Beverly Commerce Park, LLP
In a petition for a request for a Special Permit to move existing/previously approved exterior
tenant wall sign from its current location above the third floor windows to a new location above
the sixth floor windows on the same (north) side of the building. The property is located at 181
Elliot Street in the IG zoning district.
Page 1 of 10
MOTION: Ms. Caldwell moved to grant the request to continue to the April 26, 2016
meeting. Second by Mr. Battistelli.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
C. Ellen Goldstein
In a petition for a request for a Variance to construct a barn in compliance with required
setbacks with a height of 22'1" instead of the maximum allowed 15'. The property is located at
137 Lothrop Street in R -10 zoning district.
MOTION: Mr. Battistelli moved to grant the withdrawal request of the Variance
application for 137 Lothrop Street by the Applicant. Second by Mr. Andrews.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
D. Townhomes of Beverly
In a petition for a request for a Special Permit under Section 38 -26 ordinance number 61, 7 -12-
11 for Townhomes of Beverly to erect an internally illuminated monument sign. The property is
located at 201 Broughton Drive in the RMD zoning district.
Jason Parillo with Back Bay Sign addressed the Board on behalf of Townhomes of Beverly. Mr.
Parillo stated the proposed sign was approved by the Design Review Board. The sign will be
located on top of the hill so that it has maximum visibility fiom both directions and it will be
standing on a stone base and will be partially illuminated.
Mr. Phillip Bakalchuk the Principal for Phil -Mor Real Estate Investments was also present.
Mr. Margolis stated the Design Review Board had spent several meetings reviewing and
perfecting the sign and its location.
No public participation.
Mr. Andrews asked what changes were made and Mr. Parillo stated they simplified the design
and the changes mostly had to do with the location. The determined location works best for the
building and the public.
Mr. Battistelli asked whether it will impact driver's site lines and Mr. Bakalchuk stated it will
not impact driver site line.
MOTION: Mr. Levasseur moved to close the public hearing. Second by Mr. Battistelli.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
Page 2 of 10
MOTION: Mr. Levasseur moved to grant the Special Permit for the Townhomes of
Beverly and permit the illuminated sign as approved by the Design Review Board.
Second by Mr. Battistelli.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
II. MODIFICATION
A. Townhomes of Beverly
The Petitioner is requesting a Modification of the Special Permit granted for Townhomes of
Beverly dated April 16, 1963, located at Brimbal Avenue (201 Broughton Drive) in the RMD
zoning district.
Mr. Phillip Bakalchuk the Principal for Phil -Mor Real Estate Investments presented to the
proposed changes to the Board that were originally approved by Special Permit. They are
proposing to construct a 2,600 square foot accessory building adjacent to the pool area, re -grade
and widen the driveway and reconfigure the pool area. The other changes they are proposing are
all internal and will only affect the residents at Townhomes of Beverly.
No public participation.
Board Discussion
Mr. Margolis stated the Board needs to determine if this is a minor modification.
Mr. Levasseur questioned why in 1963 this was approved by a Special Permit and not by right
and Mr. Bakalchuk stated he the property was zoned partially in commercial and partially in
residential. Ms. Caldwell stated it was zoned residential industrial.
[Mr. Battistelli requested a f ve minute recess to reviely the application.]
Mr. Battistelli asked for clarification if the new 2,600 square footage will be used as an
apartment and Mr. Bakalchuk responded it would be used as a model apartment.
The Board discussed whether this Use Variance granted in 1963 could be reviewed as a minor
modification.
Mr. Andrews stated the change is only going to impact the people who live there, it's not going
to impact the public, it's not going to generate more traffic, etc. Mr. Bakalchuk stated they are
also adding handicap parking, convenience visitor parking and increasing fire department access.
MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Levasseur.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
Page 3 of 10
MOTION: Ms. Caldwell moved to grant the modification of the 1963 Variance to allow
the construction of the clubhouse and office space, subject to the plans submitted. Second
by Mr. Battistelli.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
III. NEW PUBLIC HEARINGS
A. Brendan Wynne and Colleen Ahearn
In a petition for a request for a Variance to lengthen existing garage by 13' and widen by 5'.
Existing garage is 10' by 22'. The side yard set back is 3.3' instead of the required 15'. The
property is located at 17 Porter Terrace in the R10 zoning district.
Brendan Wynne and Colleen Ahearn addressed the Board to request a Variance to increase the
size of their garage. The existing garage is from the 1950s and is very small and cannot fit a
truck. They would like to increase the width by 5' into their yard and extend 13' back. Mr.
Wynne stated the garage is also in need of repairs.
Mr. Margolis asked the applicants to address the hardship. Mr. Wynne stated the shape of the Lot
is very long and thin and so if they were to put the garage within their setbacks on the Lot they
would have to widen the driveway to access the garage and it would render their backyard
unusable.
No public participation.
Board Discussion
Mr. Levasseur stated its good they had their direct abutters sign off on their proposed plans. Ms.
Ahearn stated there are a couple of abandoned properties near their home. Ms. Caldwell asked
for clarification on the roof line.
MOTION: Mr. Andrews moved to close the public hearing. Second by Mr. Battistelli.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
MOTION: Mr. Levasseur moved to approve the request for a Variance to extend and
enlarge the existing garage due to the shape and size of the Lot, subject to the plans
submitted. Second by Mr. Andrews.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
Page 4 of 10
B. Mark McKenna on behalf of Tozer Road LLC
In a petition for a request for a Special Permit to install a freestanding sign with a front setback
less than 200'. The property is located at 30 Tozer Road in the 1R zoning district.
Romeo Morreira from Perkins & Wil addressed the Board on behalf of the applicant and stated
the sign will be put on an existing sign base. They have obtained approval from the Design
Review Board and they are now in front of the Zoning Board of Appeals because the sign will be
200' from the Lot line.
James Tracy addressed the Board and displayed the proposed sign plans.
No public participation.
Board Discussion:
Mr. Margolis stated they are putting a new sign on an original base. Mr. Battistelli asked if there
is a temporary sign and Mr. Morreira responded they currently have a banner there for patients to
be able to locate the building. Mr. Morreira stated there are two identical buildings and the one
they bought is being occupied by Pediatric Associates.
MOTION: Mr. Battistelli moved to close the public hearing. Second by Ms. Caldwell.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
MOTION: Mr. Battistelli moved to grant the Special Permit at 30 Tozer Road to use an
existing location for a new sign less than 200' feet from the Lot line, subject to the plans
submitted and as approved by the Design Review Board. Second by Mr. Andrews.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
C. Thomas Carnevale
In a petition for a request for a Special Permit to install a 4'x5' temporary freestanding sign to
advertise Lots in new subdivision. The property is located at 44 -52 Standley Street in the R22
zoning district.
Mr. Margolis recused himself.
Lynne Shanoski from J. Barrett & Company addressed the Board on behalf of the applicant and
stated the proposed sign will be advertising a new street called Emily Way. They are looking tc
have the sign up for 18 months.
No public participation.
Board Discussion
Mr. Andrews asked for confirmation that the sign will be removed once the units are sold and
Ms. Shanoski confirmed. Mr. Battistelli asked how close to City property it will be and Ms.
Page 5 of 10
Shanoski stated 20' from the road. Mr. Battistelli stated it isn't a busy area and that he doesn't
see the need for a sign, since it is unlikely they will get drive by traffic.
Mr. Andrews asked what the timeline will be for construction and Ms. Shanoski stated the first
homes will be built in July 2016. Ms. Caldwell asked when they are looking to put up the sign
and Ms. Shanoski stated as soon as she is permitted to do so she will go to the sign company and
have it produced.
Mr. Battistelli stated he is not fully comfortable but not necessarily against the open ended
timeframe as far as how long the sign will be up. Ms. Caldwell suggested putting a condition on
how long the sign can be up. Mr. Battistelli agreed and stated the applicant can come back to the
Board to request an extension if needed.
MOTION: Mr. Levasseur moved to close the public hearing. Second by Mr. Battistelli.
Votes 4 -0 (Caldwell, Battistelli, Levasseur, Andrews) Abstain: Ms. Margolis
Motion carries.
MOTION: Mr. Levasseur moved to grant the Special Permit to erect the temporary sign
to be installed 20' from the road and to stay up for a maximum of 18 months before
coming back to the Board for an extension, based on the Design Review Board approval
and subject to the plans submitted. Second by Mr. Battistelli.
Votes 4 -0 (Caldwell, Battistelli, Levasseur, Andrews) Abstain: Mr. Margolis
Motion carries.
D . Michael and Rachel Kwapniewski
In a petition for a request for a Special Permit to modify a primary residence to include an
accessory apartment in existing basement. The property is located at 3 Chubbs Brook Lane in
the R10 zoning district.
Michael and Rachel Kwapniewski addressed the Board to request a Special Permit for an
accessory apartment in an existing basement to be used by Ms. Kwapniewski's parents.
No public participation.
Board Discussion
Mr. Andrews asked what type of windows will be in the apartment and Ms. Kwapniewski stated
the existing windows are double hung windows. Mr. Andrews asked if they would be a point of
egress from the bedroom and Mr. Kwapniewski responded that there is a door leading outside in
the bedroom.
Mr. Margolis stated he has concerns regarding this request because the applicants are there
stating it will be used for Ms. Kwapniewski's parents but their application states otherwise and it
sounds like a business that could be rented to other people. It sounds like a B &B.
Mr. Battistelli stated he would only approve this if her parents were named and they would have
to come before the Board to request approval for anyone else to live there.
Page 6 of 10
Ms. Caldwell stated any new property owners would also have to come before the Board to
request permission to use it as an accessory apartment.
MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Levasseur.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
MOTION: Mr. Andrews moved to allow the creating of an accessory apartment at 3
Chubbs Brook Lane, subject to plans submitted and under the condition that it be used
solely for their parents, once the property is sold or no longer being used by their parents
they will need to come before the Board again to request approval.
Second by Mr. Levasseur.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
E. Thomas Alexander on behalf of Mary Sue Kilpatrick
In a petition for a request for a Variance to divide an irregularly shaped lot having the 2
addresses of 114 Valley Street and 9 Hemlock Street into 2 separate lots. The 114 Valley Street
Lot having an existing house and garage on it would have 66.34' of frontage and 8,606 sq. ft. of
area and the 9 Hemlock Street Lot would have 100' of frontage and 9,000 sq. ft. of area where
100' of frontage and 10,000 sq. ft of area are required. The property is located at 114 Valley
Street and 9 Hemlock Street in the R -10 zoning district.
Thomas Alexander, Esq. addressed the Board on behalf of Mary Sue Kilpatrick and stated these
are two separate Lots indicated by two separate tax bills. Ms. Kilpatrick acquired the Hemlock
Lot in the early 1980s as a gift from her godparents. Unfortunately this was not a sophisticated
real estate transaction and so the two parcels end up touching at a very small point in the back of
each Lot. Under Massachusetts law, this is known as a "merger" Lot and so what they thought
was a separate buildable lot, because it touched in the back, however the City has not recognized
this and has carried 9 Hemlock Street as a separate buildable lot and bills their taxes as such. The
vacant lot (Hemlock) is very close to the zoning requirements in R10 which require 100' of
frontage, which it has, but it only has 9,000 sq ft of land so it's a little short to be considered
buildable. There are five nonconforming houses on Hemlock Street and so building a house on
that Lot would be keeping with the neighborhood. This Lot fits the shape requirement.
Attorney Alexander distributed a map of the neighborhood highlighting the abutters in favor.
George Zambouras PE, provided a report on the drainage study that was conducted in the
neighborhood. Mr. Zambouras showed the Board the existing drainage patterns and the proposed
grading and roof drainage plans to alleviate the issue.
Attorney Alexander stated the Plans submitted keep with the appearance of the neighborhood.
Page 7 of 10
Attorney Alexander suggested making the roof drainage plans be a condition of the permit
granted.
Public participation
Mary Pomponi,5 Hemlock Street stated she opposes these plans and would like her lawyer to
speak for her.
Paul Delory, Esq. 365 Broadway, Everett addressed the Board on behalf of the applicant and
presented a map of the area showing the Lot and his clients' Lot. Attorney Delory stated the
proposed structure will overhang onto Ms. Riley's Lot and both of the Lots are nonconforming
and not buildable.
Attorney Delory stated there should be no discussion of topography, its flat and the soil condition
affects the whole area and has drainage issues, there are puddles everywhere. Ms. Pomponi
currently has 3 sump pumps in her basement and if one fails her basement floods.
Attorney Delory reviewed the zoning ordinance guidelines and purpose.
Gifford West, 120 Valley Street stated he lives opposite the Hemlock Lot and opposes the
proposed development plans. Mr. West stated he owns one of the 3 conforming Lots and has
well over 20,000' and over 100' of frontage and if this Variance is granted then he could divide
his lot too.
Eric Swansea, 7 Hemlock Street stated he owns the adjacent pork chop Lot and though he is not
necessarily opposed to them building a home there, he is concerned about mitigating factors. He
is concerned about the impact on his home value and quality of life.
Attorney Alexander stated a hardship exists, for an older person, the shape of the Lot, it is
difficult to get to and so it is difficult to maintain. Attorney Alexander stated that as far as it
being a detriment to the neighborhood, they have presented evidence that it's for the good of the
neighborhood as the drainage plan to redirect water into the City storm drain would benefit the
neighborhood. Attorney Alexander stated he doesn't believe they are overpopulating Beverly
Farms by constructing this one house and stated the City has recognized these as two separate
Lots for 60 years, with two separate addresses.
Mr. Margolis asked for Attorney Alexander to confirm there is a recorded easement for the
overhang of the garage onto the property. Mr. Margolis asked for clarification for the square
footage of the proposed house and the applicant responded that the proposed house is 44'x50'
and 2,500 square feet or 2,900 square feet if the space of the proposed garage is finished.
Mr. Battistelli asked if the second floor dormer shown in the plans will be utilized and the
applicant responded there will be 3 bedrooms on the second floor. She also stated there will be
no windows on the second floor that look into her neighbor's yard, it will just be roof on that
side.
Page 8 of 10
Mr. West stated if you look at other properties in the area and what they are paying for taxes, the
subject property is right in line with what everyone else in the area pays based on Lot size and
cost of dwelling. Attorney Alexander stated they dispute that.
Ms. Pomponi addressed the Board again and stated that on her side of Hemlock Street there are
not any no frontage Lots or pork chop Lots. Ms. Pomponi stated she has had 30 years of water in
her basement, there are 3 sump pumps and a French drain. They have a high water table, the
water is coming up into her basement, not running down her walls and so no one can tell her that
having a house built on that Lot will improve her water issue.
Attorney Alexander stated there is a way to redirect the water being pumped from her basement
by way of a pipe into the City storm drain.
MOTION: Mr. Andrews moved to close the public hearing. Second by Mr. Levasseur.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
Board Discussion
Ms. Caldwell stated she is not ready to vote tonight, she wants to review the cases presented by
Attorney Delory as well as the issues presented.
Attorney Alexander stated he would like to provide a legal brief to the Board to address the
issues presented.
Ms. Caldwell stated if they agree to accept legal briefs, its one brief from each and there are no
rebuttals permitted. Mr. Margolis agreed. Ms. Caldwell stated the legal briefs need to be received
by the Board by April 12
MOTION: Mr. Battistelli moved to continue the Variance application to the April 26,
2016 meeting subject to receiving legal briefs by April 12 from each side with no
rebuttals permitted. Second by Ms. Caldwell.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
PlanninlZ Department Presentation
Aaron Clausen, Planning Director and Darlene Wynne, Assistant Planning Director, presented
the proposed Zoning Amendment changes to the Board including artist live /work spaces;
brewery, distillery winery; and maker spaces.
Mr. Margolis asked for clarification on granting authority for each Use.
Mr. Claussen stated:
Live /work — Planning Board
Brewery — ZBA
Maker Space — ZBA in every district, except for the CC district which is granted by the Planning
Board for consistency.
Page 9 of 10
Mr. Margolis asked if the live /works spaces will be rented or owned and what will govern the
square footage to prevent a family of five from moving in. Ms. Wynne stated they could be
either rented or owned and Mr. Frederickson responded that the building code governs the square
footage.
Ms. Wynne read the list of qualifying arts.
MINUTES
MOTION: Mr. Caldwell moved to approve the Minutes from the February 2016
meeting. Second by Mr. Andrews.
Votes 5 -0 (Margolis, Caldwell, Battistelli, Levasseur, Andrews)
Motion carries.
ADJOURNMENT
MOTION: Mr. Levasseur moved to adjourn the meeting at 10:15pm.
Second by Mr. Battistelli.
All in favor.
Page 10 of 10