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2008-02-26CITY 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 Appeal Date: February 26, 2008 Place: Beverly City Hall, Council Chamber, 191 Cabot Street Board Members Present Full Members Scott D. Houseman, Chairman, Margaret O'Brien, and Scott Ferguson. Alternate Members Jane Brusca, and Joel Margolis Others Present: Building Commissioner /Zoning Officer — Steve Frederickson and Clerk of the Board — Diane Rogers Absent: Noelle Faris, Alternate Member Chairman Scott D. Houseman opened the meeting to the public at 7:00 p.m. He stated that some administrative matters would have to be discussed before any public meeting could be heard. Chairman Houseman stated that the following cases were continued to this evening's meeting: 548 Cabot Street, represented by Thomas Alexander, Esq. He added that there have been discussions as recently as last week, between Mr. Alexander and Roy Gelineau, City Solicitor regarding this matter. Houseman stated that it is anticipated by the applicant that this case should be resolved between now and next month. A request was made to continue this case to the next scheduled meeting. A waiver of time to be signed. Ferguson: Motion to continue this case until the March 25, 2008 hearing. Seconded by O'Brien. Motion carries unanimously. (Houseman, O'Brien, Ferguson, Brusca, & Ferguson in favor) Page 2 3 Greenwood Avenue — R -45 Zone — Michael Otis An Appeal from an Administrative Decision Thomas Harrington Esq, signed a waiver of time to continue the hearing and requested a special meeting to be held on Wednesday or Thursday March 5 or 6 regarding the property located at 3 Greenwood Avenue. The property is owned by Ben and Adrienne Stinson. Mr. Harrington requested a continuance last month to allow sufficient time for a new Board member to be appointed. However, Noelle Faris the newly appointed Board member could not attend the meeting tonight. Chairman Houseman stated there was a request to hold a special meeting and he would give the Board the option of choosing Wednesday the 5 th of March at 7:00 p.m. in the Councilors Chamber or Thursday evening the following day. Margolis: Motion to accept the application of the waiver and hold a special meeting on Thursday, March 6, 2008 at 7:00 p.m. in the Councilor's Chamber, 191 Cabot Street. Seconded by O'Brien. Motion carries unanimously. (Houseman, O'Brien, Ferguson, Brusca, and Margolis in favor) 43 Water Street — WD Zone - Beverly Port Marina, Inc. An Appeal from an Administrative Decision Request Kevin Dalton, Esq. spoke on behalf of the petitioner. He stated that he was appealing the Building Commissioner's letter determination of December 4, 2007, that the parking at Port Marina is not grandfathered. Chairman Houseman stated he had a chance today to speak with both, Attorney Dalton and Roy Gelineau, City Solicitor, regarding this matter. Houseman added that there seems to be an agreement that the Board must deal first with the issue of whether the Board has jurisdiction to hear this matter at all. Mr. Dalton discussed the letter written on December 4, 2007 by Building Commissioner Steven Frederickson. He stated that this dates back to the former Commissioner Mr. Nelson for the 10 -A Mooring Float Permit. He submitted two documents to show the background. One letter is from the Harbormaster dated May 30, 2006 and a letter to then Commissioner Robert Nelson, from Mr. Jonathan Silver, regarding pending application for a 10 -A permit, relative to parking certification and harbor issues. Mr. Dalton spoke to Roy Gelineau, the City Solicitor. Mr. Gelineau provided Mr. Dalton with the following case law: Commonwealth Trust v. Arthur Smith, Town of Lexington that indicates that under Chapter 40A the Board might not have jurisdiction on this matter. Mr. Frederickson thought because of the repaving and paving at the site the grandfathered parking might be nil. Beverly Port Marina thought that decision might bind them down the road. Page 3 Houseman stated he would like to hear from Mr. Frederickson. He added that he does not believe the letter written by him was an order but rather an advisory response requesting information to determine conformance. There was no request or denial of a building permit. Mr. Frederickson stated that he expressed an opinion and requested more information in his letter written on December 4, 2007 to Mr. Jonathan Silver. Houseman stated that under Chapter 40A the Board has no jurisdiction in this matter. He read the case law statute. He suggested a Board member make a motion. O'Brien discussed the case law with Houseman. She questioned if Attorney Dalton was satisfied with this. Mr. Dalton responded yes, he was satisfied. O'Brien: Motion that the Board lacks jurisdiction to hear this appeal and will file a written letter with the City Clerk's office to that effect. Seconded by Brusca. Motion carries unanimously. (Houseman, O'Brien, Ferguson, Brusca, and Margolis in favor) 41 Dartmouth Street — R -10 Zone — Michael I and Mary Jean Raimo Section 6 Finding, Temporary Conditional /Special Permit and Variance Requests Robert Nelson spoke on behalf of the petitioners. He stated he was requesting a Section 6 Finding that a proposed 26' — 6" by 38' one -story addition that contains bedroom, kitchen, living room, sewing room and full bath will be no more detrimental than the existing single - family residential structure that presently encroaches 3 feet upon the 20 feet front yard setback and the lot has 80 feet of lineal frontage where 100 feet is required and a temporary conditional special permit to accommodate a person to live in proximity to, but with independence from, a relative; and a Variance to allow both mother and father in —law (Shirley and Ray Whittier) to reside on premises. Mr. Nelson introduced Mr. Whittier, the father -in -law who is requesting to be living in his daughter's dwelling. He stated that he has medical problems and living in a one -story quarters would benefit his illness. He added that his wife of 54 years and he could live comfortably for the remainder of their life. He stated that he raised 8 children and lives in Lynn, MA. He added that the dwelling is now too large for them, as the children are gone. He stated that he was in the sign business, which brought him to Beverly quite often. Mr. Nelson stated that he researched the in -law apartment permits issued in the past. Two cases were submitted to the Board for review. He added that the Zoning Ordinance only states one person can live in proximity to a relative. Mr. Thomas Bussone and Mr. Edward Bussone Page 4 were both granted a temporary special permit for an accessory apartment because they also applied for a Variance to allow (2) persons to reside in the apartment. Ferguson asked how the hardship relates in this case. He added that the narrowness of the lot and the way the dwelling is placed upon the lot did fit the criteria in this case. He added that he was in favor of the request. Houseman asked if anyone from the public would like to comment on this petition. There being no one present he asked the Board for their questions and comments. The Board reviewed the photographs and drawings submitted. Ferguson asked if all the abutters were notified. A petition was submitted from abutters in favor of the proposal. from the following: Denise D. Nervil of 39 Dartmouth Street, Daniel Gelsomini of 43 Dartmouth Street, Jason Clark of 3 Colby Road, Susan Cena of 14 Cornell Street, Richard Tiplady of 12 Cornell Road, and Edward O'Neil of 10 Cornell Road. Houseman asked how many bedrooms remain in the existing dwelling. Mr. Raimo responded that there are 3 bedrooms in the main dwelling and one proposed new in the addition. Houseman asked what would happen if Mr. & Mrs. Whittier moved. Mr. Raimo responded that he had five children and the additional space would remain in the family. Ferguson stated the shape of the lot was irregular and the position of the dwelling upon the lot is considered a hardship. He added he would like a condition placed upon the decision that the proposed addition would be one - story. He stated he would like the sun -shine clause also enacted. Section 29 24 C 1 — 11 Rev 6- 26 -87. Houseman stated that the four conditions listed in #11 on page 105 be enacted. 1. Upon the death of the designated occupant; 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 Commissioner of any change of occupancy. Houseman is of the opinion this site can accommodate this expansion. Ferguson: Motion on the Section Six Finding that the proposed alteration/reconstruction to this single - family structure at 41 Dartmouth Street does not increase the non- conforming nature of said structure and that the plans submitted with the application are strictly complied with, identified in and incorporated into, the Board's decision, and that the elevation drawings, to the extent feasible are recorded with the decision. The Board found that the hardship associated with the granting the variance is that is the shape of the lot is irregular and the position of the dwelling on the lot, therefore the hardship is met. That the temporary Conditional Permit for an accessory apartment, and any renewal of said temporary Conditional Permit, shall terminate: per Section 29 -24 -C 11- 1 -4 . (Page 105) That the City Clerk shall notify the Building Commissioner of any change of occupancy. Following termination of said temporary Conditional Permit, the designated occupant (of the accessory apartment) shall have ninety days to relocate; the kitchen built Page 5 as a result of the temporary Conditional Permit shall be removed by the owner ninety days after the designated occupant leaves. The dwelling will revert back to a one - family. Proposed addition to be one - story. Seconded by O'Brien. Motion carries unanimously. (Houseman, Ferguson, O'Brien, Brusca, and Margolis in favor) 9 Pearl Street — R -10 Zone — Michael W. Renfroe Section 6 Finding Request Mr. Renfroe spoke on his own behalf. He stated he was requesting a Section 6 finding for a change to a non - conforming one - family structure. To change the existing "hip roof' to a "gable" roof for a proposed attic space for a future master bedroom over existing footprint. Photographs of the site were submitted for the Board to review. Mr. Renfroe submitted new plans this evening for a change in the design of the roof. The new plan revised the length and setback of the bedroom dormer on the gable roofline. Houseman stated he made a site visit. He stated the structure and changes in the roofline of the dwelling would satisfy a Section Six finding. He asked what the intended use was inside. Mr. Renfroe responded the proposed attic space would be for a bedroom and future bathroom. He added that he spoke to his neighbors last evening and they were in favor of the proposal. A petition was submitted in support of the project from the following abutters: Linda Birch, 10 Pearl Street, John & Judy Doherty, 8 Pearl Street, Jim & Mary Archibald, 26 Gardner Street, Herbert & Sue Schlegel, 24 Gardner Street, Beverly /Smith Anthony Tr., 17 Gardner Street, Kimberly Daracy, 14 Pearl Street, Robert & Janice Rink, 20 Warren Street, William & Carol Hamor, 16 Warren Street, Sharon Lyons, 12 Pearl Street, and Lon Hamor, 8 Gardner Street. Chairman Houseman asked if anyone from the public would like to comment on this petition. There being no one present he asked the Board members for their questions and comments. O'Brien asked if the elevations on the plans would change because of the revisions. Houseman discussed the new plans with the Board members. O'Brien: Motion that the alteration/reconstruction to this single - family residential structure at 9 Pearl Street does not increase the non - conforming nature of said structure, and that the proposed extension or alternation will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. That the special permit criteria set out in the Beverly Zoning Ordinance at Section 29 -27 C (2) (a) — (f) are satisfied and signatures in favor of the project are on file. I move that the Board grant the proposed application, subject to the following conditions: (1) that the plans submitted with the application are strictly complied with, are identified in, and incorporated into, the Board's decision, and the elevation drawings, to the extent feasible, are recorded with the decision. Seconded by Ferguson. Motion carries unanimously. (Houseman, Ferguson, O'Brien, Brusca, and Margolis in favor) Page 6 18 County Way — R -10 Zone — Richard P. and Denise A. Dechamps /(Alexander) Section 6 Finding Request Attorney Thomas Alexander represented the petitioners. He stated his request was to allow a proposed 24 feet by 20 feet family room addition and a 7 feet by 24 feet open deck, to the rear of an existing one - family dwelling, which will encroach 10 feet upon the required 15 feet side yard setback and will not be substantially more detrimental than the existing non - conforming structure to the neighborhood. Mr. Alexander stated the property is abutted on the side by Stewart Avenue, the elderly public housing in the rear, and a group home on the left side. He added that there are heavily wooded areas also in the rear of the property. Mr. Alexander stated that because of the water issues the proposed addition will be built further out back along the rear of the property. He added that the proposed one -story addition will have a basement below. Mr. Alexander stated that the specific site is an appropriate location for the proposed use, and that the character of adjoining uses will not be adversely affected. He added that there are no valid objections from abutting property owners based on demonstrable fact. In fact the following neighbors signed in favor of the project: Dino & Corleigh Donati, 22 County Way, Patty Charette, 15 County Way, Bruce Abbott, 13 County Way, Debbie Mahoney, 7 Stewart Avenue, Marjorie Pasquale, 17 County Way, Linda Overberg, 14 Stewart Avenue, Joyce Oikle, 17 County Way, Peter Johnson, 17 County Way, and Kevin Ascolillo, 137 -R Bridge Street. (Elderly Housing Director) Mr. Alexander commented that the manager of the Group Home next door did not have the authority to sign the petition. Chairman Houseman asked if anyone from the public would like to comment on this petition. Linda Overberg of 14 Stewart Avenue and Dino Donati of 22 County Way stated that they were in support of this proposal. Chairman Houseman then asked the Board members for their questions and comments. Ferguson stated that he had concerns because the plans submitted for review did not show how the project would appear when complete. He added that the existing dwelling contained 720 square feet and that the proposed plan would increase by 480 square feet. He calculated that the increase in the footprint would be 66 %. Ferguson stated he was in favor of the proposal. Margolis and Brusca concurred with Ferguson. They would also like to view what the project would look like when complete. They stated they would like to have more adequate drawings. Brusca stated the proposal is ok, however, she did have concerns relative to the drawings. O'Brien stated she was of the opinion the drawings were good enough. Board members discussed their concerns with the drawings and then stated they would not hold up this proposal. Commissioner Frederickson stated the plans were sufficient to obtain a building permit. Page 7 Margolis: Motion to find that the proposed alteration/reconstruction at 18 County Way single - family residential structure does not increase the nonconforming nature of said structure and that the proposed extension or alteration will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. Seconded by O'Brien. Motion carries unanimously. (Houseman, Ferguson, O'Brien, Brusca, & Margolis in favor) 4 Burley Street — R -15 Zone - Bethany Nottingham Section Six Finding Request The petitioner spoke on her own behalf. She stated she was requesting to be allowed a proposed first floor addition, 4 feet by 16 feet, to enlarge the great room and a proposed 2nd level addition, 16 feet by 24 feet, to contain (2) bedrooms upon a nonconforming structure that encroaches 5.27 feet upon the front yard setback. Photographs of the property were submitted for the Board to review. Ms. Nottingham stated her neighbors were in favor of the project and she submitted a petition with the following neighbors signatures: Robert and Prudence Eriksen , 8 Hathaway Avenue, Louise Kennedy, 7 Hathaway Avenue, Margaret Morse of 7 Burley Street, and Michael Grassia of 1 Hathaway Avenue. Chairman Houseman asked if anyone from the public would like to comment on this petition. There being no one present he asked the Board members for their questions and comments. Ferguson asked if she had a copy of the Assessor's map showing her dwelling and the neighbor's lots. Ms. Nottingham responded she did not have that plan. Ferguson responded that he usually colored in the abutter's lots that were in favor of the petition. Houseman stated he conducted a site visit on Sunday. He added that this is quite a modest replacement. He commented this project would not impact the neighborhood. He stated that a Section Six Finding was in order here. After a discussion with all the Board members Brusca stated she would propose a motion. Brusca: Motion to find that the proposed alteration/reconstruction to this single - family residential structure at 4 Burley Street does not increase the nonconforming nature of said structure and that the proposed extension or alternation will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. She added signatures are on file of abutters in favor of the project. Plans submitted with the application are to be strictly complied with, are identified in, and incorporated into the Board's decision, and the elevation drawings, to the extent feasible, are recorded with the decision. Seconded by Ferguson. Motion carries unanimously. ( Houseman, Ferguson, O'Brien, Brusca, and Margolis in favor) Page 8 Administrative discussions: The Board made a motion to approve the February, March, and April 2007 minutes. O'Brien: Move that the Board approve the February, March, and April 2007 minutes. Seconded by Ferguson. Motion carries unanimously. (Houseman, Ferguson, O'Brien, Brusca, and Margolis in favor) Mrs. Rogers will give Joel the April 2007 minutes to review again. Margaret will review the May 2007 minutes, Scott Ferguson will review the June minutes, and Jane will review the July 24 and July 31, 2007 minutes. Mrs. Rogers will telephone Peg to see if she will also review the August minutes. Leah Zambernardi must also review the following minutes: June, July 24, and 31, and August 2007 before I distribute them to the Board members. Mrs. Rogers stated that the September (2), October, and November minutes were done by someone else. She suggested Scott Houseman ask Leah Zambernardi to review them and if any changes the woman can amend them and send them to the Board to be approved. The minutes on Holcroft Park Homes, LLC were time stamped on September 5, 2007. The decision was corrected and time stamped again on October 10, 2007. Remember to post the Special Meeting on March 6, (Thursday) Councilors Chamber for Mr. Otis, 2 Greenwood Avenue, Tom Harrington, Attorney Meeting adjourned at 9:00 p.m.