2010-02-23CITY 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 include an examination of the Board's Decision for that hearing.
Board: Zoning Board of Appeals
Date: February 23, 2010
Place: Beverly City Hall, Council Chamber, 191 Cabot Street
Board Members Present: Full Members: Day Ann Kelley, Chairperson, Joel
Margolis, and Jane Brusca. Alternate Members: Sally
Koen and Pamela Gougian
Others Present: Building Commissioner — Director Steven Frederickson
and Clerk for the Board - Diane Rogers
Absent: Scott Ferguson and Margaret O'Brien
Chairperson Day Ann Kelley opened the meeting to the public at 7:00 p.m. She stated
there were two (2) continued cases from last month that would be heard first.
30 Fairview Avenue — R -10 Zone — Arthur V. & Sylvia Di Paolo
Section 6 Finding Request
Mr. Di Paolo addressed the Board and introduced Mr. Turner, of Turner Design from
Gloucester, MA who prepared the proposed plans that the Board reviewed last month.
Mr. Di Paolo stated he did not realize the Board was indicating that he obtain a new
designed plan. Mr. Turner stated he did not see anything wrong with the plans he had
prepared. Ms. Kelley stated she asked Mr. Di Paolo to reconsider his designs because
they appeared unusual to her. She added she believed the design would be detrimental to
the neighborhood and would have a large impact upon the neighbors. She thought it was
inappropriate for Mr. Di Paolo to come back to the Board tonight without a change in
design. Mr. Turner asked if a Section 6 Finding states that the Board can dictate the
design of a plan. Ms. Kelley responded that she did not understand the second floor
structure and the front room being underneath. She added that the Board does have the
digression in this situation because of the size of the addition which is detrimental to the
neighborhood. Mr. Turner stated that Mr. Di Paolo does not have the money to make the
first and second floors conform. He commented he believed the proposal was not more
detrimental to the neighborhood. Mrs. Di Paolo stated she had four children and two
were coming back from college and she needed bedrooms.
Chairperson Kelley asked if anyone from the public had any questions or comments.
Lisa Dibella of 28 Fairview Avenue stated Mr. Di Paolo did not review the plans with her
and she is his next -door neighbor. Ms. Kelley gave Ms. Dibella a set of plans to review.
Ms. Dibella stated she did not know how to read the plans but has concerns this addition
would block light from her dwelling. Ms. Kelley then asked the Board Members for their
comments and questions. Ms. Gougian asked if a list of neighbors in favor of the plans
were submitted to the Board. Mr. Di Paolo responded that he did speak to some of his
neighbors but did not retain any letters or petitions in favor of his design. Ms. Brusca
stated this design appears like another dwelling on stilts. She realizes the abutters are
notified but questions the large size of the proposed addition. Ms. Kelley stated the plan
does meet the required setbacks. Mr. Margolis stated that acoustically the proposed plans
affect the neighborhoods because of the size of the addition. He added that without
letters of approval from the neighbors he has concerns. Mr. Margolis commented that he
has been on the Board for 8 years and this is the first time a petitioner did not bring in a
new design when asked. Ms. Brusca stated the guidelines to a discussion of a Section 6
Finding are that the character of adjoining uses will not be adversely affected and that no
factual evidence is found that property values in the district will be adversely affected by
such use. Ms. Brusca stated she concurs with Ms. Kelley and not in favor of this
proposal.
Mr. Turner asked if the votes from the Board were negative could the proposal be
withdrawn without prejudice? Ms. Kelley responded that Mr. Turner could request the
petition to be withdrawn without prejudice. After a discussion with Mr. Di Paolo Mr.
Turner asked the Board to withdraw without prejudice the proposal.
Mr. Margolis made a motion to allow the petitioner at 30 Fairview Avenue to withdraw
without prejudice his proposal. Seconded by Ms. Brusca. Motion Carries 5 - 0.
(Kelley, Brusca, Margolis, Koen, and Gougian voted in favor)
116 Rantoul Street Unit 102 CC Zone Connie Payette
An Appeal from and Administrative Decision
Attorney Steve Greenbaum spoke on behalf of the petitioner. He is requesting
An appeal from an Administrative Decision of the Building Commissioner/Director,
Steven Frederickson on a Complaint for Enforcement Action concerning the use of Unit
102, 116 Rantoul Street, CC Zone, as a Health Club being operated under the name of
Balance Training Studio without a special permit as is required by Chapter 29 -17 of the
Beverly Zoning Ordinance for all health clubs. He stated his client Ms. Payette
purchased Unit 105 in June of 2007. An Art studio was beside her and there were no
problems with noise. In September 2009 the Balance Fitness Club, which is directly
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beside my Client's condominium moved in. On Tuesdays and Thursdays the music
begins at 5:30 a.m. On weekends the music begins at 7:30 a.m. The Building Inspector
informed my client that the Balance Fitness was not a health club for the following
reasons: It did not contain showers, swimming facilities and lockers. He also said to
telephone the police to report loud music before 7:00 a.m. Ms Payette does not want to
call the police every day. Atty. Greenbaum stated that he believed that this is
inappropriate. He added, in this case you have classes of people (approximately 15 each
class) going through an exercising program like any other health club. There are no
showers in this space but there is an area to change clothes in the rear of this location.
Atty. Greenbaum stated the size of the room should not be the issue. In a residential
neighborhood next to a resident this use should have been taken up by the Board as a
special permit process not allowed as a mater of right. Atty. Greenbaum commented that
his client cannot live in her unit a good deal of the time because of the noise. Atty.
Greenbaum submitted the Board with a Noise Transmission Report prepared by Hendrik
David Gideonse. He commented clients of the Balance Fitness are parking all over the
streets. Ms. Kelley asked the Building Commissioner to explain the character of a gym.
Mr. Frederickson stated there in no interpretation in the zoning ordinance relative to a
definition of a health club. He added he thought it was an issue of noise. He stated this
space is a 1,200 square feet room, which is similar to a dance studio or karate studio,
which is allowed by right. He added there is a noise ordinance, which is handled by the
Board of Health. Ms. Kelley stated "in looking at this, in 2004 this entire Building was
allowed by special permit." She believes there are comments in that decision on how this
space was to be used.
Atty. Miranda Gooding spoke on behalf of Grethen Driscoll, owner of the Balance
Fitness Studio. She submitted a floor plan of the space and other information for the
Board to review. She described the fitness studio as having (12) spinning bicycles, (12)
clients doing personal, or cardio training or working out on yoga mats. The classes range
from Monday & Tuesday 3.5 Hours, Wednesday and Sunday 2 Hours, Thursday 4 Hours,
Friday, 1 Hour, and Saturday 3 Hours, totaling 19 '/z Hours a week. Atty. Gooding stated
this one room studio does have a changing area, waiting room and office. There is no
memberships, lockers, showers, or swimming facilities. The public cannot come and go
frequently. She added this is a personal consumer establishment, which is a permitted
use in a CC District.
Mr. Jeffrey Belliveau, owner of the Windover LLC building stated he entered into a lease
with the Balance Fitness Studio two years ago. He added that when Ms. Payette's
complaints came in to him he took steps to elevate the problem by hiring an acoustical
consultant. He commented that no other complaints have been made. Ms. Kelley asked
how many other residential units are in this area. Mr. Belliveau responded there are (7)
units but they do not abut the studio. Ms. Gougian asked if sound proofing the floor was
done. Mr. Belliveau responded no, soundproofing was too expensive. He did install
acoustical mats under the spinning bicycles. Ms. Koen asked how many early morning
classes there were. Ms. Driscoll responded she had 4 classes beginning at 5:30 a. m. but
when she heard of Ms. Payette's complaint she cut the schedule down to two classes on
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Tuesday and Thursday. She commented that she has a family and this is a small business
operating not more than 25 hours a week.
Chairperson Kelley asked if anyone from the public had any questions or comments. Mr.
John Dawson of Gloucester, Ma. stated he stayed over night a few times in Ms. Payetts
condominium and the improvements done by Windover have not alleviated the noise
especially under the spinning bicycles.
Ms. Kelley asked the Board Members for their questions and comments. Mr. Margolis
stated he believed this was a Condo Association issue. He added that if a cleaners
business, hair salon, or coffee shop occupied that space there would be offensive odors
going into Unit 105. He added that the train goes by several times a day and that noise
would be very loud. Ms. Kelley stated if there is (12) people exercising and (12)
spinning bicycles, early in the morning, then this is a health club in her opinion. She
asked why they did not come before the Board for a special permit in the beginning so
there could be guidelines to protect residents. She stated she did not agree with the
Building Inspector. Mr. Margolis stated having a few pieces of equipment does not mean
it's a health club. Atty. Gooding asked if the Board is inclined to make a site visit to see
this operation. Ms. Kelley asked Mr. Belliveau what were the other options he had to
rent this space. He responded that was hard to say. Ms. Kelley asked, "Why couldn't
you have applied for a special permit ?" Atty. Miranda responded that when Ms. Driscoll
applied for a permit, she was never asked to go before the Board. She added that her
client has been in business for 18 months. Ms. Gougian stated that Windover LLC
should have known not to locate a bedroom next to a commercial space. Ms. Kelley
commented that she could certainly understand the vibration of the noise.
A motion was made by Mr. Margolis to uphold the decision of the Building
Commissioner. Seconded by Ms. Koen. Motion did not pass on a vote of 2 -3. (Koen
and Margolis in favor) (Kelley, Brusca, and Gougian opposed) As there was some
confusion over the vote, the Board voted again just to clarify the vote of 2 -3.
14 Windham Lane — R -22 Zone — John P. Collins
Variance and temporary Condition Permit Request
Mr. John Collins spoke on his own behalf. He stated he was requesting a variance and
temporary Condition Permit to construct a 13 -feet by 25 -feet 6 -inch two -story addition to
existing garage with In -law Suite above for Carol J. Collins. He added he was married
with two children and that his mother, Carol resided with them. He stated he went
through a process to determine the best solution for separate living quarters for his
mother. He decided to locate an addition on top of the garages. He stated his mother has
health issues and that was another factor for choosing this design. If he chose the attic
design there would be too many stairs for her to climb.
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Mr. Collins prepared a letter explaining his proposal to his neighbors. He included that
there was an area of ledge located next to the garage. He explained that an Excavation
Company would survey homes up to 250 -feet before and after the blasting. Three letters
were returned in favor of this proposal from direct abutters: Diane and Bob Adams of 10
Windham Lane, Edgar R. and Aura L. Deleon of 12 Old Planters Lane, and Paige K. and
Michael L. Katzenstein. Of 12 Windham Lane.
Chairperson Kelley asked the Board Members for their questions and comments. Mr.
Margolis asked what the hardship for the requested variance was. Mr. Collins responded
that he needed a long -term space for his mother and that he had no other place for the
addition. Ms. Kelley asked what specifically the variance request was for. Mr. Collins
responded that the Building Commissioner informed him he was required to obtain a
variance to build an extra kitchen /or bathroom. Mr. Margolis stated a hardship had to do
with the soil and topography of the land. Jeffrey Ward of Ward Construction stated a
variance is required on the proposed addition so as not to encroach upon the setbacks.
Ms. Kelley and Mr. Margolis were concerned because the design appeared to be two
dwellings. Ms. Kelley stated in a temporary Conditional Permit the in -law apartment is to
be within the existing dwelling. She has concerns with granting a variance because it
goes with the land. The Board recommended a review of the zoning ordinance regarding
granting a variance for in -law apartments going forward. Mr. Margolis asked if the deed
restriction stated the dwelling remains a single - family. Ms. Brusca suggested the Board
examine the drawings on page 8a because the design appeared much smaller. Mr. Ward
explained the drawings and design to the Board. Ms. Gougian stated she believed the
proposed apartment looks very large and like a separate structure.
Chairperson Kelley asked if anyone from the public had any questions or comments.
Atiq Sheikh and his wife Farida of 18 Old Planters Road questioned the blasting
procedure because their dwelling contains several windows. Mr. Ward responded the
blasting would be minimal and that the ledge would be covered with large metal and
rubber blasting mats. Building Commissioner Steve Frederickson explained what the
Fire Department does regarding blasting.
Mr. Margolis stated the design was somewhat over sized, but that he was in favor of this
proposal. Ms. Kelley stated that the name "Carol J. Collins" be filed on the variance as
long as she resides in the dwelling. Ms. Gougian questions if the dwelling remains a one
family. Mr. Frederickson responded if granted the dwelling would remain a one - family.
Ms. Kelley stated if the mother no longer resided in the house the kitchen must be
removed. (or the bathroom) Ms. Kelley reiterated that the blasting was to be minimal,
Caps placed on top of the ledge. Mr. Ward responded yes, there would be minimal
blasting.
A motion was made by Ms. Brusca to grant a temporary Conditional Permit to allow an
addition to a proposed accessory apartment at 14 Windom Lane to be occupied by Carol
J. Collins to accommodate one person to live in proximity to, but with independence from
a relative. There shall be no more than (2) dwelling units on said property, including an
accessory apartment. The accessory apartment shall be a self - contained dwelling unit
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with separate cooking, sanitary and sleeping facilities for designated occupant Carol J.
Collins. There is to be no more than (4) bedrooms and (1) bedroom respectively shall be
maintained as the total of both units. There will be only (1) frontage entrance. The
temporary Conditional Permit shall be issued to the owner of the property. The
temporary Conditional Permit shall run for a period of (4) years and may be renewed
every (4) year thereafter by the City Clerk. The temporary Conditional Permit for an
accessory apartment and renewal of said temporary Conditional Permit shall terminate
1. upon the death of designated occupant
2. upon the change of residence of designated occupant
3. upon the transfer of ownership of the premises, if such transfer is unrelated to the
issuance of the temporary Condition Permit or
4. upon the expiration of the permit period set forth above.
Also move to GRANT the requested Variance at 14 Windom Lane to construct an
addition for an in -law suite for the benefit of "Carol J. Collins" the primary resident.
The hardship being because of the topography of the land particular to the site but not
affecting generally the zoning district in which it is located and the application of the
standards of the Chapter would deprive the applicant of a reasonable use of the property.
Also, the cost of removing the ledge to expand their property. Seconded by Mr.
Margolis. Motion carries 5 — 0. (Kelley, Margolis, Brusca, Goudian, and Kohen in
favor)
6 Beverly Hills Avenue — R -10 Zone — Paul Ventresca
Section 6 Finding
Mr. Ventresca spoke on his own behalf. He stated he was requesting to remove the
attached garage and construct a 15 -feet by 24 -feet family room addition, add a full
dormer to the rear and divide upstairs into (3) bedrooms and a bathroom. Plans
containing first and second floor existing and first and second floor revised, plus
elevations and dimensions were drawn by Alan Carroll of Andover, MA on January 14,
2010. Mr. Ventresca stated he would be moving the existing bulkhead to the side of the
dwelling. A full dormer would be constructed to make a new master bedroom with walk
in closet, half bath, and 2 smaller bedrooms on the second floor. Mr. Ventresca stated he
spoke to two neighbors but he did not have any letters in favor from them.
Chairperson Kelley asked if any of the public had any questions or comments. There
being no one present she then asked the Board for their questions and comments. Ms.
Brusca complemented his plans. Ms. Kelley stated she had made a site visit and found
the request was for a minimal addition. Ms. Koen stated she was in favor of the petition.
A motion was made by Ms. Brusca to GRANT the Section 6 Finding to remove the
attached garage and construct a 15 -feet by 24 -feet family room addition, add a full
dormer to the rear and divide upstairs into (3) bedrooms and a new bath at 6 Beverly Hill
Avenue.
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The following criteria have been met:
A. The specific site is an appropriate location for the proposed use, and that the character
of adjoining uses will not be adversely affected.
B. That no factual evidence is found that property values in the district will be adversely
affected b such use.
C. That no undue traffic and no nuisance or unreasonable hazard will result.
D. That adequate and appropriate facilities will be provided for the proper operation
and maintenance of the proposed use.
E. That there are no valid objections from abutting property owners based on
demonstrable fact.
F. That adequate and appropriate City Services are or will be available for the proposed
use.
All plans submitted with the application are to be complied with, referred to, and
incorporated into, the Board's decision. Seconded by Mr. Margolis. Motion carries 5 -0
(Kelley, Margolis, Brusca, Koen, and Gougian in favor)
10 Smithson Drive — Continuation on Variance
Thomas Alexander, Esq.
Atty. Thomas Alexander spoke on his client's behalf. He stated he wanted to get a
sense of the Boards feelings regarding an amendment to this petition. He asked if the
Board might think the 6 -feet addition to the porch to be added on the side of the
dwelling would be a better design. He added his client had met with his neighbor
located at #8 Smithson Drive and they were in favor of this new plan. Ms. Kelley
stated a variance would require the Board to support a hardship. She added she
could support this design looking at the plot plan. Mr. Margolis concurs. Ms.
Brusca asked if the overhang would go all the way in the back.
Atty. Alexander made a motion to withdraw without prejudice his variance regarding 10
Smithson Drive. A motion was made by Mr. Margolis and seconded by Ms. Brusca to
allow the withdrawal without prejudice proposal regarding 10 Smithson Avenue.
Motion carries 5 — 0. (Kelley, Gougian, Koen, Brusca, and Margolis)
Administrative Business:
Meeting adjourned 9:00 p.m.
The Board of Appeals will not meet in the months of August and December
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