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Waksmonski - Decision Decision on Petition for a Special Permit Requested by Virginia J. Waksmonski A public meeting of the Zoning Board of Appeals (the “Board”) was held on Tuesday August 27, 2002 at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly, Massachusetts. The agenda included a petition by Virginia J. Waksmonski for a special permit to encroach 11 feet plus or minus upon the required 25 feet rear yard and to encroach 11.5 feet upon the required 15 feet side yard with a 13 feet by 40 feet one-story addition that contains a bedroom, living room, bath and kitchenette, regarding the property located at 15 Garfield Avenue (the “Parcel”). The property is located in a R-10 Zoning District. The public hearing on this petition was opened at the July 23, 2002 public meeting of the Board and was continued to the August 27, 2002 meeting. At both meetings, the hearing was called to order by the Chairman, Scott D. Houseman. The following five members of the Board were present: full members Scott D. Houseman, Scott Ferguson, Margaret O’Brien. Mark Schmidt and Andrea Fish were not in attendance at the July public hearing and did not vote on this matter. Alternate members Jane Brusca and Joel Margolis assumed voting positions for this application. The public hearing on this application started with the Zoning Clerk, Diane Rogers, reading the petition request to the public and the Board members reviewing the petition material. Virginia Waksmonski spoke on her own behalf with the assistance of her architect, David Jaquith at both meetings. At the July meeting, Ms. Waksmonski stated that her mother, Mrs. Clark has chronic emphysema and she would like to have her reside in her home. Jaquith presented plans and stated that the parcel is typical of most Ryal Side lots, with an area of only 5,000 square feet. The existing dwelling encroaches the right side and rear setbacks. He felt that this addition would provide light and air to the present kitchen and dining room. Waksmonski stated that her mother is unable to climb stairs therefore the addition would be one-story. Building Commissioner Tim Brennan stated that this is not an in-law apartment because the addition has no separation between the living areas. Chairman Houseman questioned if any member of the public would like to comment on this petition. At the July meeting, William James of 16 Taft Avenue, rear abutter, stated that he has resided there for 40 years. He stated that in the R-10 zone, the minimum lot size is 10,000 square feet. The properties in their neighborhood are all 5,000 square foot lots and the neighborhood is already very crowded. He stated that from his house, a large (25’ x 25’) two-story barn is located to the left of the Parcel. It is setback 30 inches from the side and rear of the Waksmonski property. This addition would be literally up against the barn and this proposal would block light and air into his yard. He stated he is against this proposal. He also stated that the Ryal Side neighborhood does not have a fire station. Mr. James added that he is not opposed to the concept but that Ms. Waksmonski needs to stay within the boundaries of what is allowed. He stated a creative solution is needed. Kathy Healy of 12 Adams Avenue stated that she lives with Margaret and Hugh Nelson. They have concerns regarding fire, density and possible water problems because of ledge. William Conlon of 13 Garfield Avenue stated that he has resided there for 33 years and he owns the large barn being discussed. He stated that Waksmonski’s present dwelling is 5 feet from a concrete wall, which is on his property. He feels this addition would block the wind and sun, devalue his property and would be a fire hazard. He commented there was a fire at the Waksmonski residence some time ago. Mr. Jaquith responded that there would be an encroachment problem wherever the addition was proposed. He asked for a continuance to see if they could come to a compromise with the neighbors. Chairman Houseman suggested that Ms. Waksmonski try to come up with a redesign that is less detrimental. He suggested they work to find common ground with all three abutters as they are opposed to the plan as proposed. At the July meeting, members of the Board voted unanimously to continue the public hearing to the August meeting. At the August meeting, Jaquith stated that the shape of the addition had changed. The addition would encroach 4 ½ feet on the rear and 6 ½ feet on the right side. Ms. Waksmonski’s brother, Wayne Clark spoke on behalf of his mother who would live in the proposed addition. He stated he had spoken with abutters James and Nelson. Mr. Jaquith stated the addition no longer encroaches on the side yard setback toward the Nelson’s side of the house and will maintain the 15 feet side yard requirement. At the August meeting, Chairman Houseman questioned if any member of the public would like to comment on this petition. William James of 16 Taft Avenue stated he feels this unit is an accessory apartment as defined in the Zoning Ordinance and asked the Board for clarification. Building Commissioner Tim Brennan stated that there is no separation between the units, and therefore, the addition is not considered an accessory apartment. There was considerable discussion on the subject with Mr. James concluding that the new plans are an improvement but he remains opposed to the petition. Kathy Healy reiterated her concerns that the addition will restrict sunlight on her property. She stated the lot is too small for the proposed addition and stated it increases the fire hazard. Judith James of 16 Taft Avenue stated that she examined the proposed plans and then commended the petitioner for wanting to help her mother. She questioned if there were not more appropriate options for Mrs. Clark, such as elderly housing. She commented that the proposed addition is too large and that she is not in favor of the proposal. Mr. Conlon of 13 Garfield Avenue thanked the architect for the alternative proposal presented, however he remains opposed to the project. Wayne Clark stated that his mother has been an independent person living alone on Fayette Street for many years. He is concerned because his mother now has emphysema and may no longer be capable of independent living. The neighbors have listened and he understands their concerns. The new plan shows the addition wrapped around the house and moved back as much as possible. His goal is to find a comfortable place for his mother to live. He added that moving from a large house to such a small space is daunting for his mother. His sister, Ms. Waksmonski has looked into moving but has not found adequate space. Jaquith stated they tried to keep the addition to a minimum and that the addition was not intended to be an accessory apartment. Chairman Houseman asked the Board members for their questions and comments after the period of public comment at the August meeting. He stated that this is a hearing for a Special Permit, which requires a Section 6 finding that this proposal will not be more detrimental to the neighborhood than the existing structure. O’Brien stated that all of the neighbors are in opposition therefore she opposes the proposal. Ferguson stated that if the abutters are strongly opposed, he would consider that, however he understands the concern of the applicant and said he would like to find a compromise. Extensive discussion ensued in an effort to find some common ground and a compromise that would adequately address the neighbors concerns and still give the application relief from zoning that would address her needs. Concerns were expressed about the scale and footprint of the addition, as well as about the how any conditions imposed by the Board could or would be enforced. The discussion involved all members of the Board, all the abutters, Mr. Brennan, and Mr. Jaquith. A generally satisfactory compromise was reached that reduced the size of the proposed addition and attached conditions. The Board made the following findings of fact about the proposed structure: (1) that the specific site is an appropriate location for the proposed addition, and that the character of the adjoining uses will not be adversely affected; (2) that no factual evidence is found that the property values in the district will be adversely affected by such use; (3) that no undue traffic, nuisance, or unreasonable hazard will result from the addition; (4) that adequate and appropriate facilities such as electricity and city water and sewer currently exist on the parcel; and (5) that there are no valid objections from abutting property owners based on demonstrable fact. The Board also made a Section 6 finding that the non-conforming structure with the proposed addition will not be substantially more detrimental to the neighborhood than the existing non-conforming structure. Following the questioning and discussion, a motion was made by Mr. Ferguson to GRANT the special permit subject to the following conditions: (1) the rear yard setback requirement of 25 feet must be complied with, the sideyard setback for the addition on the Easterly side of the Parcel may be reduced to no less than 8.5 (eight and one half) feet, and the building height of the addition portion of the structure shall never exceed one-story; (2) the following provisions for accessory apartments within the Beverly Zoning Ordinance shall apply to the kitchen facilities in the addition as follows to safeguard the neighborhood against the addition from being used for rental housing, even though the addition will not constitute an accessory apartment as the zoning ordinance defines it: Section 29-23.C.2 The relief granted concerning the relative of the applicant is temporary and specific to Ms. Waksmonski's mother, Mrs. Clark, who will occupy the bedroom in the addition. The relief is granted to the owner of record of the property, Ms. Waksmonsk. Section 29-23.C.5 The owner of record shall reside in the dwelling on the Parcel, which shall be said owner’s principal residence. Section 29-23.C.6 Except as amended by the decision and the Plans submitted with it (as they are consistent with this decision), no alteration to the structure on the Parcel shall not be allowed so as to result in greater non-conforming than exists presently. Section 29-23.C.10 The relief granted by this decision shall run for a period of four (4) years and may be renewed every four (4) years thereafter, by request to the City Clerk. Upon reapplication by the record owner, the City Clerk shall renew the request only if the conditions which led to its original granting still exist and all other requirements of this decision still are met. The City Clerk may consult the Building Inspector, the Planning Department, or other appropriate City agency or this Board with concern to the reapplication process described above. Section 29-23.C.11 The relief granted herein, namely for Mrs. Clark to use the bedroom in the addition, shall not be used, and is not granted, to allow the addition or any other portion of the dwelling on the Parcel to used for rental housing purposes. Any renewal of the relief granted herein, shall terminate automatically: 1. Upon the death of the designated occupant (Mrs. Clark); or 2. Upon the change of residence of the designated occupant; or 3. Upon the transfer of ownership of the premises, if such transfer is unrelated to the issuance of the temporary Conditional Permit; or 4. Upon the expiration of the permit period set forth above. The City Clerk shall notify the Building Inspector of any change of occupancy concerning the designated occupant, Mrs. Clark. Following any applicable termination of said temporary relief granted herein, as applicable: (1) the designated occupant (of the addition's "apartment") shall have ninety (90) days to relocate and (2) the kitchen facilities built as a result of this decision shall be removed by the owner ninety (90) days after the designated occupant leaves. The motion was seconded by Ms. O’Brien. The motion carried 5-0. 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 Houseman Zoning Board Chairman