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Finagle a Bagel - Decision Decision on Petition for a Variance Requested by Julian’s Cheesecake, DBA Finagle A Bagel A public meeting of the Zoning Board of Appeal (the “Board”) was held on Tuesday, January 22, 2002 at 7:00 p.m., Beverly City Hall, 191 Cabot Street, Beverly Massachusetts. The agenda included a petition by Julian’s Cheesecake, dba Finagle A Bagel, for a Variance “to move a previously permitted building sign to a new location and change the color of a previously permitted building sign”, regarding property located at 181 Elliott Street (the “Parcel”). The property is located in an IG Zoning District. The January 22, 2002 public meeting of the Board was called to order by the Chairman Scott D. Houseman. The following five members of the Board were present: full members Scott D. Houseman, Andre Fish, Scott Ferguson, Margaret O’Brien and Mark Schmidt. Alternate member John Colucci was present but not voting. The public hearing on this application started with the Zoning Clerk, Diane Rogers, reading the application request to the public and the Board members reviewing the application materials that show the location and zoning of the Parcel and the proposed signage. Attorney Thomas Alexander spoke on behalf of the petitioner Alan Litchman. Attorney Alexander stated that the petitioner is seeking to have the previously permitted building sign moved to a new location as well as seeking a change in the color of previously permitted building sign. He presented a letter from Gerald McSweeny, General Manager of Cummings Properties, authorizing this application. Mr. Alexander commented that the business in 13 years old and is in 16 locations, mostly in the Boston area. Mr. Alexander submitted a site plan that indicating the location of the business. He added that the business is 1/3 of a mile from the entrance of the property. He then submitted elevation plans showing the sign locations. Attorney Alexander stated that since the 1998 Variance was granted, a second floor was added but that this location was initially a first floor location. He added that the original Variance allowed for 9 signs within 14 locations, however, only 3 have been installed. Mr. Alexander commented that he is requesting a modification of an existing variance and is not here to prove a hardship, that has already been established. Mr. Alexander stated that the color of the sign is also part of the modification to the variance request and that the colors of Finagle A Bagel are very tastefully done. He then introduces Mr. Gerald McDonough of Cummings Properties and the owners of the business, the Litchmans. Mr. Houseman disclosed that Ms. O’Brien and Mr. Colucci both work at Cummings Properties and asked if either wanted to recuse themselves from discussion on this matter. Mr. O’Brien responded that she did not see a need to recuse herself and that she would like to vote on this matter. 1 When asked, no member of the public present at the hearing wished to comment on this petition. The Board members then questioned the petitioner. They made observations and obtained answers regarding the criteria upon which the findings must be made in order for the Board to grant a variance. The discussion had two parts. The first related to the basis of the Board’s 1998 Variance Decision. The Board members agreed and concluded that the underlying findings in that decision, that were pertinent and necessary to grant a variance, would be ratified and incorporated into this decision to amend it, in the event that the Board decided to grant the request in the present application. The second part of the Board’s discussion is summarized as follows: There was general discussion about whether it was appropriate to amend the 1998 decision of the Board in order to relax the uniform color scheme for signs at the Cummings Center. Mr. Schmidt favored it. Ms. Fish, Ms. O’Brien, and Mr. Ferguson did not think it would be appropriate to set a precedent that would second-guess or undermine all the work the previous members of the Board had put into that decision. Mr. Houseman said he did not want this application to be “the thin edge of a wedge” that started unwinding the efforts and decision made in 1998. However, he said that if a means of allowing some relaxation of the uniform color restrictions could be devised that kept intact some reasonable controls on sign colors at the Cummings Center, then he would be open to it. However, the application before the Board did not suggest or ask for such a modification and therefore he was not in favor of it. He did not favor creating ad hoc exceptions to the 1998 Variance on a case by case basis. The Board discussed the issue of whether or to what degree the color of a sign, in this context of the Cummings Center, would be advertising instead of identifying a business location. Opinions varied. Attorney Alexander stated that he wished to withdraw without prejudice the color request part of the petition. Ms. Fish motioned to allow the petitioner to withdraw without prejudice the color portion of the variance request, seconded by Mr. Ferguson. All members were in favor, and the motion carried 5-0. There was additional discussion about whether the sign would occupy one bay or two. Mr. Litchman said the sign would only be in one bay. Mr. Houseman commented that he is not bothered by the request to relocate the sign. He said that in 1998, the Board left it to the Cummings Center to determine where it wanted to locate the 14 wall signs described in the 1998 Variance Decision. Under the application before it, Cummings would not get more sign locations but would be able to respond to evolving circumstances to help its tenants succeed. In his opinion, that was in everyone’s best interests. Mr. Ferguson stated that he did not have an issue with the sign relocation either, only with the color. Ms. Fish started a discussion about the size of the proposed sign. The Board members and applicants discussed whether the sign would be in two bays in the building’s sign band or only one bay. The Board and applicant agreed and concluded that of the sign shown in the digital picture submitted with the application was wrong as it 2 made the proposed sign too long and showed it to be in two bays of the sign band, (2) the proposed the sign location in fact was within the one 16 foot-long bay of the sign band closest to the corner of the building that is closest to the “100 Building;” (3) the proposed sign is 12 feet long but the application before the Board in this hearing does not address or regulate the length of any sign in that bay. The Board incorporated its observations and conclusions as its general findings and also made the following specific findings: (1) that the request is a minimal one that could be granted and still allow the petitioner reasonable use of the Parcel; (2) that there were no objections from abutters; (3) that the granting of this variance would be in harmony with the general purpose and intent of the zoning bylaw; (4) that this proposal is not injurious to the neighborhood; (5) that no factual evidence was presented indicating that property values in the neighborhood would be adversely affected; and (6) that based upon the above mentioned factors, allowing the application would not result in the material detrimental impact on the neighborhood or be inconsistent with the zoning bylaw. The Board also incorporated by reference into this decision that plan dated June 12, 1998 used by the Board members in its 1998 Variance Decision and that portion of that plan that is marked up and attached hereto for this application. The legend of the attached plan is “January 22, 2002 ZBA Decision Plan” and contains the text: “This Bay is 16 feet long. The Allowed Sign at this location is limited to this specific Bay.” The attached plan shall be recorded with and as a part of this decision. The Board also found that the applicant carried the burden of showing, (1) that owing to conditions especially affecting the locus, but not affecting generally the Zoning District in which it is located, a literal enforcement of the provisions of the Zoning Ordinance would involve a substantial hardship to the applicant, and (2) that relief may be granted without substantial detriment to the public good and without substantially derogating from the intent and purpose of the Zoning Ordinance. Following the questioning and discussion, on a motion made by Ms. Fish and seconded by Ms. O’Brien, the Board voted 5-0 to GRANT the application to modify the allowed location of a previously permitted wall sign. All members voted in favor and the Motion carried. Appeals from the Board’s decision on this petition may be filed in accordance with the provisions of M.G.L. Chapter 40A, Section 17, within twenty (20) days of filing of this decision with the City Clerk. This decision shall not be valid unless recorded at the Essex County Registry of Deeds in Salem, Massachusetts after the twenty-day appeal period has passed without an appeal being filed. Respectfully, Scott D. Houseman Zoning Board Chairman 3