2012-09-25CITY OF BEVERLY
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 outcome of the public
hearing should include an examination of the Board's Decision for that hearing.
Board: Zoning Board of Appeal
Date: September 25, 2012
Place: Beverly City Hall, Council Chamber, 191 Cabot Street
Board Members Present: Day Ann Kelley, Chairperson
Regular Members: Margaret O'Brien and Jane Brusca
Alternate Members: Pamela Gougian, Sally Koen, and John
Harden
Others Present: Building Commissioner/Director Steve Frederickson and
Secretary/ Diane Rogers
Chairperson Day Ann Kelley opened the meeting at 7:00 p.m. She announced there were
5 new cases to be heard this evening and one holdover from the July 24, 2012 meeting.
Attorney Mark Glovsky, representative of Winfrey's Olde English Fudge, Inc., submitted
a letter dated September 24, 2012 requesting the Public Hearing be continued to the next
meeting on October 23, 2012. He explained issues have arisen which requires resolution
prior to proceeding with the Public Hearing. Ms. O'Brien made a motion to allow the
continuance of Winfrey's Olde English Fudge, Inc. located at 115 Cabot Street to be
continued to the October 23, 2012 Public Hearing. A waiver of time to be signed.
Seconded by Ms. Gougian Motion passes unanimously.
181 Elliott Street — Bldg. 100 — Suite 535 -N — Xyem/Flow Control, LLC
J. Buchholz, Jr. Agent
Special Permit Request
At the July 24, 2012 meeting Mr. Ferguson made a motion to continue the hearing to
September 25, 2012. Seconded by Mr. Margolis (Ferguson, Brusca, Gougian, and Koen
in favor) (Ms Kelley voted in the negative)
At the September 25, 2012 Board of Appeal meeting Mr. Joseph Bucholz of Kay Gee
Signs spoke on behalf of Xyem /Flow Control, LLC. He stated he thought the Board had
concerns with the Cummings property not the two signs he was requesting. Mr. Steve
Drohosky, General Manager of Cummings Properties, submitted a letter dated September
7, 2012 from the Design Review Board approving the sign designs. He added that he had
invited the Board members to tour Cummings Property and look at the existing upper
floor signage on Building 100 and 500. On August 28, 2012 Ms. Kelley, Ms. Gougian
and Mr. Margolis walked the site with Mr. Drohosky. Ms. Kelley said that the signs
facing Elliott Street can't be seen from the street and she feels it would not impact the
neighborhood. The other sign is high up but is small and would not be too intrusive. Ms.
Gougian stated she did not find the signs overwhelming. She feels the two signs would
be directional. Ms. Koen and Mr. Harden concurred. Ms. Kelley asked what time the
illuminated signs would be turned off at night. Mr. Drohosky responded that some
people work late in the evening therefore, the illuminated lighting would go off at 9:00
p.m. Mr. Drohosky also confirmed that this sign would be under a new special permit.
The existing variance did not allow for any further signage above the first floor.
No members of the public had comments or questions regarding this proposal.
A Motion was made by Ms. Gougian to approved the special permit application from
Xylem, @ 100 Cummings Center to install two identical wall signs, above the 4 th floor,
which will face the south and west side of the property along McKay Street and will be
internally illuminated and constructed of aluminum and acrylic. The individual blue
letters will read "Xylem" and measure 8' -9 7/8" in length by 3' -5" in height. With the
conditions (1.) As per plans submitted (2.) The signs will not be lit after 9:00 p.m.
Seconded by Mr. Harden. Motion carries 5 — 0. (Kelley, Brusca, Gougian, Koen, and
Harden in favor)
181 Elliott Street — IG — Zone- Cummings Center 500 Building -
Edwin Juralewicz /Agent
Mr. Edwin Juralewicz represented the American Renal Associates LLC. The original
request was for a Special Permit at Cummings Center, Suite 6550, Building 500 to install
two signs above the 6 th floor windows, one on the north facade and one on the south
facade. The sign is similar in design and construction, and illumination to other signs
throughout the IG zone in general, and at Cummings Center in particular. Other upper
level signs in place at this site have been allowed by both variance and special permit.
The proposed signs comply with the intent of the sign ordinance in that their purposes is
to identify the business. The signs contain only the name and logo of the business and
have no other messages. The signs will be illuminated by LED modules, which required
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approximately 10% of the Energy a typical neon illuminated sign. American Renal
Associates will occupy suites on the 5 and 6 th floor of the 500 building, with a total of
49,928 s. f. This space gives them the capacity for 217 employees. Normal operating
hours are Monday — Friday 8:00 am — 5:30 pm.
Mr. Stephen Drohosky, General Manager of Cummings Property submitted photographs
of "Option E" showing the sign "American Renal" will now be installed on the third floor
of the building, opposite the existing Merrill Lynch signs. He added the sign will not be
seen by residents because of the garage north side.
At the September 6, 2012 meeting of the Beverly Design Review Board the application
from American Renal Associate, 500 Cummings Center. The identical signs, which will
face McKay and Balch Streets will measure 23' — 8" in length with a maximum height of
45 ". The internally illuminated white aluminum and acrylic letters will be in two lines of
text and read "American Renal" on the top line and "Associates" centered on the bottom
line. The signs will also feature the company's triangular logo in red and white. This
Board believes that the proposed location on the third floor of the building, opposite the
existing Merrill Lynch signs, is appropriate for the facade and provides symmetry to the
building.
Chairperson Day Ann Kelley asked if anyone from the public had any comments or
questions regarding this application. Mr. David Burnham of 454 Cabot Street stated his
concerns of the tall buildings blocking his views of the sunset and the illuminated signs
glowing in the evening. Mr. Drohosky responded that there will not be any signs on the
east side which would affect Mr. Burnham.
Ms. Kelley asked the Board members for their questions and comments. Mr. Harden
asked what floor this business was located. Mr. Juralewicz responded the business was
located on the fifth and six floors. Ms. Kelley thought the proposed signs being located
on the third floor level rather than the original proposal to locate them at the top of the
building would balance the appearance of the building. Ms. Koen and Ms. Gougian
concurred.
A motion was made by Mr. Harden to grant the special permit to American Renal
Associates, located at 500 Cummings Center to install two signs above the third floor
widows, one on the north facade and one on the south facade (Option E) per incorporated
updated plans dated September 5, 2012 and submitted September 25, 2012. Seconded by
Jane Brusca. Motion carries 5 — 0. (Kelley, Brusca, Koen, Gougian, and Harden)
151 Hale Street — R -10 Zone — Janet L. Pelleuini/T. Alexander, Esq.
Request for a Finding
Attorney Thomas Alexander spoke on behalf of Ms. Pellegrini. He explained his request
to confirm the division of the premises by the Planning Board into two (2) lots, one
containing the single - family residence and the other containing the store /business
pursuant to M.G.L. Chapter 41. Section 81 L. He stated there are currently two (2)
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buildings on the premises, one of which was built in 1881 and is a single - family residence
and the other is a store /business built in 1922 and continuously used since that time for
business purposes. The uses will remain as they have been for 90 years. Taste Buds will
remain with the same hours of operation and employees as presently.
A letter from the City of Beverly Planning Board, dated October 20, 2011, Re:
Subdivision Approval Not Required Plan was submitted for this Board to review.
A special permit was granted to Mr. Laurence S. Kemp and Colleen Kemp to increase
floor plans by 25% on November 24, 1992.
A petition was submitted from residents of the City of Beverly in support of this proposal
from the following locations: 140, 141, 145, 145A, 152, 156 and 228 Hale Street, 3 and
22 East Corning Street, 63 Cross Lane, 28 Colgate Road, 5 Wirling Drive, and 38
Northern Avenue.
Chairperson Day Ann Kelley asked if anyone from the public has any questions or
comments pertaining to this application. There being no on present she asked the Board
members for their questions and comments. Ms. Brusca asked Atty. Alexander what the
Planning Board approved. She then asked Ms. Kelley what her opinion was. Ms. Kelley
said it was not the Zoning Boards role to confirm the decisions of the Planning Board as
Atty. Alexander requested in this petition. She stated that she was not in favor of
creating an undersized lot for commercial use in an R -10 zoning district and was
concerned over the future use of the parcel.
Ms. O'Brien stated she is torn regarding this application. She asked if Taste Buds were
sold would they have to get a special permit for a change of use. Atty. Alexander
responded yes. He added that there could never be a dwelling constructed on that small
lot. Ms. Brusca asked what would happen if Taste Buds building came down. Atty.
Alexander explained it could be replaced within two years for the same use. Ms.
Gougian asked Atty. Alexander to explain the Planning Board's approval. She also asked
if the city presently considered the site as two lots for property taxes and Mr. Alexander
said no. He said that the deed for the two lots has been filed at the Registry of Deeds.
Ms. Brusca stated she was not against this but thought it had already been done by the
Planning Board. Mr. Harden discussed with Atty. Alexander what would happen if the
dwelling was demolished could it be rebuilt. He wanted the expansion term relative to
the lots explained. Ms. Gougian asked if the commercial property continues to be
grandfathered even though the lot is subdivided.
Chairperson Kelley restated that she was not sure what Atty. Alexander was requesting
from the Board. She suggested to the Board that they could vote on a finding request to
divide a property, however, Atty. Alexander responded that it is not the role of the
Zoning Board to subdivide property. The Board moved forward with a motion without
having a clear understanding of the request.
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A motion was made by Ms. Brusca to approve the petition to request a finding to divide
the premises located at 151 Hale Street in the R -10 Zoning District into (2) lots (1)
containing single - family dwelling and the other the store business as shown on the plot
plan submitted with the application pursuant to the guidelines of Section 29 28 C2, A -F.
Seconded by Ms. O'Brien. Motion carries 4 — 1. (O'Brien, Gougian, Brusca, and
Harden in favor) (Ms. Kelley voted in the negative)
CONTINUED - - -* * * * * SEE BEGINNING OF MINUTES
Mark B. Glovsky, Attorney for Winfrey's Olde English Fudge, Inc.
Variance Request
Attorney Mark Glovsky spoke on behalf of Winfrey's Olde English Fudge, Inc.
Dale E. and Sarah Ann Fowler, Trustees of the Fowler Wallis Realty Trust II
Mark Glovsky, Esq.
Requests for Variances
Attorney Mark Glovsky spoke on behalf of the applicants. He presented requests for two
variances for accessory buildings that were built by the owner without regard for the
Beverly Zoning Ordinance and without building permits. He explained that the purpose
of the first variance was to allow an existing accessory building, approximately 216
square feet in size and 11.5 -feet in height located in the required "front yard" and having
3 -feet plus or minus front yard setback and 3 -feet plus or minus side yard setback, to
remain in its current locations on the subject property.
Atty. Glovsky explained that the purpose of the second variance was to allow a second
existing accessory building, approximately 30 square feet in size and 7 -feet in height to
remain located 1 -foot plus or minus from the side lot line where 5 -feet is required.
Atty. Glovsky described the property and the possible hardships that would justify the
granting of a variance. He stated the subject property is presently improved with one 2
'/2 story wood -frame single family dwelling and two accessory storage structures which
are the subject of this application, all as shown on the accompanying plan. Although the
subject property contains 1.075 acres, more or less, (46,827 square feet +/- ) 15,625
square feet + /- is below an existing granite sea wall, 12,500 square feet +/- is "wetlands"
buffer zone and a 20 -feet sewer easement bisects the front of the property. Additionally,
the Easterly boundary of the property is an 8 -feet high granite wall and the Northerly
boundary on West Street is a 6 -feet wood fence on a granite wall. Atty. Glovsky's
opinion is that under the circumstances, the location of the two existing accessory
structures is more consistent with the purpose and intent of the Ordinance and less
detrimental to abutters than "conforming" locations would be. Atty. Glovsky stated the
Accessory structures are the minimum sizes necessary in order to store and maintain the
personal property located therein.
An aerial Photo of the lot in 2002 and 2008 were submitted to the Board for review.
The following abutters signed a petition in support of the proposal: 90, 97, 100, and 104
West Street.
Chairperson Day Ann Kelley asked if anyone from the public had any questions or
comments relative to this application. There being no one present she asked the Board
members for their questions and comments. Ms. Gougian asked if the plans for approval
of the dwelling when under construction included the sheds or were they removed. It was
confirmed that the shed was not included in the plans provided to the Building Inspector.
Ms. Brusca asked if the original shed was not taken down would it have been
grandfathered in. Mr. Frederickson replied yes. Ms. Koen's opinion was that the sheds
were fine although the one in the front yard is too high. Ms. Kelley stated the shed in the
front yard is too close to the street. She believes it should be relocated maybe close to the
other shed near the ocean. Ms. Gougian asked if the ZBA ever requires a property to take
down a structure that was built without a building permit. Ms. Kelley said the ZBA has
done so in the past. Ms. Brusca and Ms. O'Brien stated that they agree with the hardship
based on the shape of the lot and the fact that the front yard contains a sewer easement.
Ms. Koen stated there are not many places which to locate the sheds. Ms. Kelley noted
that the shed in the front yard already was situated partly on the sewer easement and
therefore the sewer easement could not be considered a hardship.
There was no objection to the small shed sited next to West Beach Corporation. Ms.
Gougian and Ms. Kelley were of the opinion that there was no proven hardship in regard
to the large shed situated in the front yard of the property.
Ms. O'Brien made a motion to grant the variances to allow an existing accessory
building, approximately 216 square feet in size and 11.5 -feet in height, located in the
required "front yard" having 3 -feet plus or minus front yard setback and 3 -feet plus or
minus side yard setback, to remain in its current locations on the subject property.
Additionally, to allow a second existing accessory building approximately 30 square feet
in size and 7 -feet in height to remain located 1 -foot plus or minus from the side lot line
where 5 -feet is required at 101 West Street in the R -45 Zoning District. The hardship is
that the lot although legal does not allow buildings too close to the high water mark or in
the buffer zones. Also, there is a sewer easement in the front yard. Seconded by Ms.
Gougian. Vote was 2 — 3 Denied
Attorney Glovsky asked if he could amend the vote by having the shed roof modified to
the legal and allowable 10 -feet. Ms. Kelley indicated that the Board could consider that
change. The Board voted to reconsider. Ms. Kelley changed her vote because at the
height of ten -feet the structure could not longer be seen from the street and would
minimize the impact.
Ms. O'Brien stated she would amend the motion to specify that the shed in the front yard
that is 11 '/z -feet in height shall be dropped to the legal 10 -feet. Ms. Koen seconded the
motion. Motion carried 4 — 1. (Kelley, Brusca, O'Brien, and Koen in favor) (Ms.
Gougian voted in the negative.
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9 Woodbury Drive — R -10 Zone — Judith Rich
Variance Request
Ms. Rich spoke on her own behalf. She is requesting to construct a second floor addition
with front yard setback of 13 -feet instead of the required 20 -feet. The plan is to
cantilever the 2nd floor addition one foot out. Exterior elevations, layout plans and
photographs of the property were submitted from McKinnon Construction for the Board
to review. Mrs. Rich stated she bought the property in 1986. The proposed addition
will be for three bedrooms and one new bathroom. Letters in support of this proposed
variance were submitted from the following addresses: 1, 3, 4, 5, 7, 8, 10, 11, and 12
Woodbury Drive and l OR Woodbury Street.
Chairperson Day Ann Kelley asked in anyone from the public had any comments or
questions regarding this proposal. Mr. Walter Riley of 8 Woodbury Drive spoke in favor
of this petition.
Ms. Kelley asked the Board members for their questions and comments. Ms. Koen stated
she had no objections to this proposal. Ms. Gougian asked if there would be an attic
space. Mrs. Rich responded that there would not be an attic but there are dormers in the
rear of the structure. Ms. Gougian discussed the roofline. The Board discussed the
hardship, which is the small size of the lot (5,400 s. f. not 10,000 s. f. that is required),
location of the building on the lot, and this is the minimum variance that will grant
reasonable relief to the owner and is necessary for a reasonable use of the land or
building. Ms. O'Brien commented that the lot was small.
Ms. Brusca made a motion to grant the variance to construct second floor addition with
front yard setback of 13 -feet instead of the required 20 -feet, located at 9 Woodbury Drive
in the R -10 Zoning District. The hardship is the size of the lot, location of the building
on the lot and reasonable relief to owner and is necessary for a reasonable use of the land
or building. Subject to the exterior plans submitted. Seconded by Ms. O'Brien. Motion
carries 5 — 0. (Kelley, O'Brien, Brusca, Koen, and Gougian in favor)
Attorney Mark Glovsky
Mr. Gary Palardy of 85 -87 Hull Street was granted an amendment and variance to a
December 15, 1981 Decision on July 24, 2012. Atty. Glovsky stated Mr. Palardy decided
to place the living quarters in the barn on the left side and located the storage area on the
right side, which was the opposite on his submitted plans. He also decided to build a one
car garage rather than a two -car. The Board discussed the changes and asked Attorney
Glovsky to put the changes in a letter, which would then be put in Mr. Palardy's file. The
Board felt Mr. Palardy did not have to come back to the Zoning Board for those interior
changes.
Other Business:
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Ms. O'Brien made a motion to accept the minutes of June 26, 2012 and July 24, 2012.
Seconded by Ms. Koen. Motion carries 5 -0