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2008-10-28CITY 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: October 28, 2008 Place: Beverly City Hall, Councilor's Chamber, 191 Cabot Street, Y Floor, 7:00 p. m. Board Members Present: Full Members: Day Ann Kelley, Chairperson, Scott Ferguson, and Margaret O'Brien. Alternate Members: Joel Margolis, Jane Brusca, and Pamela Gougian. Scott Houseman and Noelle Faris will be present to vote on Curry Architecture at 9:00 p.m. Others Present: Building Commissioner /Zoning Officer — Steve Frederickson and Clerk of the Board -Diane Rogers Chairperson Day Ann Kelley opened the meeting to the public at 7:00 p.m. She stated Scott Houseman would Chair and Noelle Faris would vote on the continued case of Curry Architecture which is located northwest of the intersection of Conant Street and Cherry Hill Drive. The scheduled time for this proposal will be 9:00 p.m. this evening. She added that the continued cases from the September 23, 2008 meeting would be heard first. Page 2 Chairperson Kelley stated that Stephen Drohosky, Vice President - General Manager of Cummings Properties, wrote a letter October 3, 2008 requesting that the ZBA grant a second two -year extension of time, through December 7, 2010, for the construction of a hotel, suites hotel and restaurants at 950 Cummings Center. Mr. Drohosky stated the original special permit was granted by the Board on November 23, 2004 and filed with the City Clerk on December 7, 2004. The request was for a special permit under Section 29 -10.C. of the Beverly Zoning Ordinance. Mr. Drohosky added that in addition to various municipal approvals. This project also required a Chapter 91 Waterways License from the Massachusetts Department of Environmental Protection ( "DEP "), because the building will be located on filled tidelands. He commented that Cummings filed a Chapter 91 Waterways License Application with the DEP on January 7, 2005, but to date after several telephone and written inquiries by the office, the application is still pending with DEP. As such, construction has not begun. At the same time, market conditions are such that an operator for the hotel remains unable to secure. Chairperson Day Ann Kelley asked if there was anything in writing from the DEP in reference to the Chapter 91 Waterways License. Mr. Drohosky responded that he did not have anything in writing from the DEP. He added to date, notwithstanding several telephone and written inquiries by his office, that the application remains pending. Kelley stated to the Board that a one -year extension could be offered. The Board members asked when the construction on the proposed hotel would begin. Mr. Drohosky responded, that would depend on the market conditions. After due deliberation, the Board found that Cummings Properties, LLC had demonstrated that "good cause" exists for the delay in construction use. The Board then voted unanimously to extend the special permit for a two -year period, with the condition that specific detailed information from the Department of Environmental Protection be presented to the Board if there is another extension sought. 181 Elliott Street — 500 Cummings Bldg, Suite 1100, IR Zone, Beverly Commerce Park Inc. Variance Request Not heard A WAIVER Will be signed and petition continued to the NOVEMBER 25 TH , 2008 MEETING Page 3 8 Princeton Avenue — R -10 Zone — Stephen Picone Variance Request Mr. Picone spoke on his own behalf. He stated he was requesting to demolish the existing one -car garage and breezeway and build a proposed one -story addition to contain new covered porch, 4- Season room, mud room and attached two -car garage, that encroaches ten -feet upon the required 15 -feet side yard setback. Mr. Picone stated the proposed addition would allow the homeowner to reorient the driveway so that it is accessed from Princeton Avenue, the front of the dwelling rather than from County Way, which is a one -way street, which restricts the current access to the existing garage. He added that he had provided the Board with the proposed first floor plan, proposed front and right side elevations drawings designed by Tiro Design, which is located at 180 Cabot Street. He stated photographs of the front of the dwelling, located on Princeton Avenue, side, located on County Way, new garage location and view of the rear property were also provided for review. Mr. Picone stated he must drive his vehicle around the block to access his existing garage. He added that County Way is a one -way street and sometimes, backing out of his driveway is a safety concern for himself as well as his neighbors. Mr. Picone stated he met with his abutters and they reviewed his proposal. Four letters in support of the proposal were submitted for the Board to review from: Jeffrey and Deborah Naugler of 6 Princeton Avenue, Mr. & Mrs. Peter Concannon of 12 Princeton Avenue, Peggy Friedland of 5 Princeton Avenue, and Gregory and Kathryn Kowalski of 1 Dartmouth Street. Chairperson Kelley asked if any member if the public had any questions or comments relative to this petition. There being no one present she then asked the Board members for their questions and comments. Ferguson stated he thought Mr. Picone did a fine job presenting his proposal. He added that he believed the shape of the lot and the one -way road is the hardship of this case. Brusca and Margolis concurred. O'Brien: made a motion to approve the request for a variance at 8 Princeton Avenue to demolish the existing attached garage and breezeway and to build a one -story addition to contain new porch, 4- season room, mudroom and attached two -car garage, that encroaches ten -feet upon the required 15 -feet side yard setback. The hardship is the shape of the lot and the one -way road that the existing garage accesses on. Brusca moved that the Board GRANT the application, subject to the plans submitted with the application are complied with, referred to, and incorporated into, the Board's decision. The Board made the following findings of fact Per Section 29- 28 -C -2 A.C.D.E. & F. Seconded by Ferguson. Motion carries 5 — 0. (Kelley, O'Brien, Ferguson, Brusca, and Margolis in favor) Page 4 45 Cornell Road - R -10 Zone — Gregory Deschenes Temporary Conditional Permit /Special Permit Request Mr. Deschenes spoke on his own behalf. He stated he was requesting to allow an accessory apartment that would accommodate a person (Beverly Hurley, In -law) to live in proximity to, but with independence from, a relative. He added that originally the basement was to be finished off for his children. As time evolved though his mother -in- law lost her job and needed a place to live. Mr. Deschenes stated that he made the decision to take part of the basement room and let her live with us. He added that he was sorry for any confusion that this caused. He stated he is hoping that the Board would allow this proposal so that she can continue to live with the family. A drawing of the original proposed basement room and the new design of an In -Law apartment were presented to the Board to review. Photographs of the property were also provided. Letters were submitted to the Board from Hugh and Louise McKenna of 46 Cornell Road, and Michael & Sheila Driscoll of 43 Cornell Road in favor of this proposal. Chairperson Day Ann Kelley asked if anyone from the public would like to comment on this petition. There being no one present she asked the Board members for their questions and comments. O'Brien asked if a building permit was obtained for the construction work Mr. Dechenes responded that he did obtain a building permit for his construction work. Kelley asked if the proposal meets the setback requirements. Mr. Deschenes responded that the construction met the front, side, and rear setback requirements. O'Brien made a motion to Grant the Temporary Conditional Permit for an accessory apartment. This approval is subject to substantial compliance, to the extent feasible, with the drawings provided. Pursuant to Zoning Ordinance Section 29 -24.C, the Temporary Conditional Permit shall run for a period of 4 years and may be renewed every 4 years thereafter, by the City Clerk. This temporary Conditional Permit, and any renewal of said temporary Conditional Permit, shall terminate: (1) upon the death of the designated occupant; (Beverly Hurley); 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 Following termination of said temporary Conditional Permit, the designated occupant (of the accessory apartment) shall have (90) days to relocate; the kitchen built as a result of the temporary Conditional Permit shall be removed by the owner ninety (90) days after the designated occupant leaves. The dwelling will then revert to a single - family residence. The Board made the following specific findings related to the request for the special permit factors associated with granting a variance: (1) that the specific site is an appropriate location for the proposed use, and that the character of the adjoining uses will not be adversely affected by Page 5 allowing one more person to live in the accessory apartment; (2) that no undue traffic, nuisance, or unreasonable hazard will result; (3) that adequate and appropriate facilities such as electricity and city water and sewer currently exist on the parcel; (4) that there are no valid objections from abutting property owners based on demonstrable fact; and (5) that adequate and appropriate City services are or will be available for the proposed use. Seconded by Brusca. Motion carries 5 — 0. (Kelley, O'Brien, Ferguson, Margolis and Brusca in favor) 11 Rezza Road — R -10 Zone — Kevin and Jennifer Stacey Section Six Finding Request Mr. Stacey spoke on his own behalf. He stated he was requesting to allow the proposed construction of a 2nd story addition, 28 -feet by 48 -feet over existing 1 st floor; and a front porch, 5 -feet by 22 -feet to replace existing crumbling brick steps that have no railing to the front door. He added that he would not be expanding beyond the existing footprint of the dwelling. The proposed front elevation after second floor and attic is built and front porch addition, were provided for the Board to review. He added that on the existing first floor plan two bedrooms were to be converted to a family room and office. The proposed second floor plan was provided. There will be (3) bedrooms, laundry, (2) bathrooms and a master bedroom. The attic is to be unfinished on the third level. Photographs of the property were submitted for review. Mr. Stacey said the property was purchased this August. A petition containing 18 names and addresses in favor of the request were submitted to the Board for review. Chairperson Kelley asked if anyone from the public had any questions or comments. There being no one present she then asked the Board for their questions and comments regarding the petition. Kelley asked what the frontage of the lot was. Mr. Stacey responded that he had 100 -feet frontage. Brusca commented that there was plenty of room on the sides and in the rear for this second story addition proposal. Ferguson and Margolis had no questions. O'Brien commented that she was in favor of this proposal. O'Brien made a motion to GRANT the Section Six Finding to allow the construction of a 2nd story addition 28 -feet by 48 -feet over existing 1 st floor; and a front porch, 5 -feet by 22 -feet to replace existing brick steps to front door. The proposed alteration reconstruction to this single - family residential structure does not increase the non- conforming nature of said structure, and the proposed alteration - reconstruction will not be substantially more detrimental than the existing non - conforming structure to the neighborhood. The Board finds there is support from neighbors based on the petition submitted. Therefore, I move that the Board grant the application subject to the plans submitted with the application are complied with, referred to, and incorporated into, the Board' decision. Seconded by Margolis. Motion carries 5 — 0. (Kelley, O'Brien, Ferguson, Brusca, and Margolis in favor) Page 6 555 (formerly 567) Hale Street — R -45 Zone — Caleb Loring, III Modification of a Variance Request Attorney Mark Glovsky spoke on behalf of the petitioner. He stated he was requesting a Modification of a Variance dated April 26, 1983, which allowed the conversion of an accessory building to a dwelling unit. The petitioner requests a proposed single - story, one bedroom/one bathroom addition containing approximately 430 square feet of floor area. Mr. Glovsky stated this property is surrounded by Lorings. He introduced Mr. and Mrs. Loring to the Board. Mr. Glovsky stated that on April 26, 1983 a variance to allow conversion and use of existing accessory building (detached garage) as a dwelling unit on the same lot with an existing one - family dwelling at 567 Hale Street was granted. He added that today, use variances are no longer allowed. Therefore, he is seeking a modification of the variance of 1983. Mr. Glovsky stated presently there is an open room above the garage and the Loring's would like to add a one - bedroom one - bathroom addition. This would allow his grandchildren space to stay overnight. He added that the garage was 350 feet from Hale Street and would not cause any traffic or noise to the neighborhood. Chairperson Kelley asked if anyone from the public would like to comment on this proposal. There being no one present, she then asked the Board members for their questions and comments. Board members reviewed the photographs, elevation drawings, floor plans and cross sections drawn by Gary Tipson. The Board members did not have any questions. A motion was made by Bursca to GRANT the modification of the Variance dated April 26, 1983, which allowed the conversion of an accessory building to a dwelling unit. Petitioner requests a proposed single - story, one bedroom/one bathroom addition containing approximately 430 square feet of floor area above the existing garage. The Board finds that the application is subject to the plans submitted with the application are complied with, referred to, and incorporated into, the Board's decision. The proposed alteration will not be substantially more detrimental than the existing non - conforming structure to the neighborhood. Seconded by O'Brien. Motion carries 5 — 0. (Kelley, Ferguson, O'Brien, Margolis, and Brusca in favor) CONTINUED CASES: Withdrew Without Prejudice 2 -4 Vestry Terrace and 21 Vestry Street — RHD Zone — Cormier Realty Trust Variance Requests Page 7 Attorney James Sears spoke on behalf of the petitioner. He stated he was requesting the Board to allow for (1) modification of parking plan submitted for the existing 1982 variance, by relocating six spaces and providing 3 offsite spaces and (2) the size of three of these parking spaces to have a reduced dimension size of 8 -feet wide by 16 -feet long. Mr. Sears stated the residential building on 2 -4 Vestry Terrace contained six one - bedroom units (previously four units) and one single - family home located on 21 Vestry Street. The property at 2 -4 Vestry Terrace requires 1.5 parking spaces for each of the six dwelling units in the building, thus requiring a total of nine parking spaces. He added that this new plan being submitted for the Board's approval is being put forward to improve the layout and position of parking spaces on the existing plan on record (hand dated August 20, 1982) and to make the spaces more conforming to setback requirements. Since this plan is being submitted to correct deficiencies in the 1982 plan, the petitioners are requesting that the Board allow that the total parking space requirement of nine spaces per the 1982 requirements of Zoning Ordinance: Chapter 29 Section 29 -25 continue to be permitted for the new plan. Mr. Sears stated this new plan identifies six of the nine required parking spaces located on 2 -4 Vestry Terrace and Parcel `A' of the said plan. The remaining three parking spaces are being eased on the parking lot identified as 130 Cabot Street, which is located within 500 feet of the subject property. A letter dated August 7, 2008 from Jay Levy Trustee of 130 -140 Cabot Street, indicated the agreement intent to lease (unsigned) document. He added that these three leased parking spaces as allowed by Paragraph C. Sentence 1 in the said Ordinance, in addition to the five on -site parking spaces on Parcel `A' and single parking space on the 2 -4 Vestry Terrace property, fulfill the total parking space requirements for the six -unit building located on 2 -4 Vestry Terrace. Mr. Sears stated that in order to provide adequate room for emergency vehicles that may enter the property located at 21 Vestry Street and to preserve the integrity of that property, the petitioner is hereby requesting a variance for parking spaces 1, 2, and 3 identified on Parcel `A' of the plan, that each of the parking spaces be allowed to be sized as eight feet wide by sixteen feet long. Mr. Sears submitted a letter dated July 22, 2008 containing the "History of Subject Properties" written by Director/Building Commissioner Steven Frederickson for the Board to review. Photographs of parking spaces #1,2,3, looking easterly toward 21 Vestry Street and 1, 2, 3,and 4 looking south - westerly, 4 and 5 looking northwesterly toward 2 -4 Vestry Terrace and space six looking northeasterly (2 -4 Vestry Terrace on left) were provided for the Board to review. Chairperson Day Ann Kelley asked if anyone from the public had any questions or comments. Harry Coffee, Jr. and his wife Nancy owners of 23 Vestry Street stated the street is one -car wide. He submitted photographs of the properties. He asked where the hardship was relative to this case. He commented the parking should be located upon 2 -4 Vestry Street and 21 Vestry Terrace, which, was on the original plan. Thomas Walsh of 25 Vestry Street commented that parking in the winter is even worse in that area. He stated he is concerned for the entire neighborhood. He is of the opinion that (3) leased parking spaces down the street would cause more problems. The leased parking space drivers would pull up to the residence "just for a minute" and take the space away from the resident that occupies it. Robert Page 8 Nelson owner of 24 Vestry Street sent a letter dated October 28, 2008 stating he would be in favor of any proposal that would help alleviate the tight parking problem that exists in the neighborhood, but the proposal would have to be guaranteed in perpetuity. He also questioned the basis of the hardship in this proposal. Attorney Sears stated he would agree to install a fence. He then presented letters in favor of this proposal from the following: Jay Levy 145 Cabot Street who agreed to lease (3) parking spaces for $1,800 a year on his lot. Mardee Goldberg of 16 Broadway, Mr. Tannebring, 32 Broadway, Roberta Wallace of 2 Vestry Terrace, Hilary McKinnon of 4 Vestry Terrace, Kim "Cavesky of 4 Vestry Terrace, Dianne Belisle of 4 Elm Street, Dan/Dale Acciavatti and Anthony Maczura of 4 -6 Vestry Street. Chairperson Kelley then asked the Board for their questions and comments. Kelley stated that the parking requirements presently are two -cars per unit. Margolis stated that to have (3) vehicles leasing parking spaces on Cabot Street could create problems. He questioned what would happen when the lease ran out, the parking would have to go back to the way it was. Mr. Kevin Cormier stated Mr. Levey would continue the lease. Kelley questioned the ownership of the land and converting it to 2 -4 Vestry Street. O'Brien asked if anyone could park up top? The response was that in the winter months the snow is another issue. Kelley stated this proposal is requesting a variance. She is of the opinion this is not a unique situation, which, is part of the criteria for obtaining a variance. Brusca stated no hardship has been proven to her. The petitioner is trying to square off one lot to sell. She is of the opinion it is not the Board's job to facilitate the separation of lots. Attorney Sears then requested that the Board allow him to withdraw without prejudice his petition. After a discussion Ferguson made a motion to allow Attorney Sears to withdraw without prejudice the Cormier Realty Trust petition at 2 -4 Vestry Street and 21 Vestry Terrace. Seconded by Margolis. Motioned carried 5 — 0. (Kelley, Ferguson, O'Brien, Brusca, and Margolis in favor) 29 -Rear West Street — CN Zone — Todd F. & Deborah Michaud Modify and Expand a Variance Attorney Thomas Alexander spoke on behalf of the petitioners. He stated the request was to modify and expand a variance granted January 24, 1977 to substitute the use allowed, operate a foreign auto repair service, with the use "operate a motor vehicle repair service" and to remove the existing sheds and stairs at the rear of the building and replace them with a one -story peaked roof addition of 28.5 -feet by 91.3 -feet encroaching 5.5 -feet upon one side yard setback, 9.4 -feet upon the other side setback, and 24.67 in the rear yard setback. The use of the addition would also be to "operate a motor vehicle repair service ". Mr. Alexander stated this petition has been continued since August 26, 2008 Page 9 but not heard. A variance application was withdrawn without prejudice on April 26, 2005 to build a 28 -feet by 63 -feet one -story addition that would expand the auto repair shop by more than 25 %. The original Variance to operate a foreign auto repair service with a class two, used car dealers license, excluding the display of cars for sale, was submitted to the Board to review. A site plan, proposed addition, and various elevations drawings were prepared by George J. Zambouras, dated June 24, 2008. Mr. Alexander stated the petitioner purchased some land in the rear of the property from the B & M Railroad. This would provide a second entrance in the rear of the property for commercial vehicles to enter and be parked inside the new proposed bays, which would be constructed in the building. Mr. Alexander submitted a "site history" document for the Board to review. He stated that this is the CN Zone (neighborhood commercial) and the present building was built in 1960. In December 1923 Samuel Knight & Sons Co. constructed a 32 x 56 x 56 wood storage building. In June of 1957 a new masonry building 40 by 40 x 30 (contractors garage) was granted. Mr. Alexander read into record the letter written from the Beverly Farms Improvement Society. They acknowledged their full support for Mr. Michaud's variance request. Wendy A. Drinkwater, President of BFIS stated that the proposed architectural plans will aesthetically improve the existing building and that the new garage bays will provide blockage from a segment of the train and tracks, and to some extent, serve as an additional noise buffer for abutters. A letter dated August 25, 2008 from Cassandra R. Smith of 37A West Street was in favor of the petition. A second letter dated September 22, 2008 from Kevin D. Monahan and Susan E. Monahan stated they had reviewed the proposed plans and that they support the Michaud's application to modify the variance. Mr. Alexander stated because of the shape of the lot, it made sense to shift the new bays in the rear of the property away from the residences. This building does not have frontage on West Street. Currently, traffic flows through a congested area of commercial and residential abutters by redirecting traffic to the newly installed private drive in the rear of the building abutting only the railroad track. Mr. Alexander added that the conditions have been met for Section 29- 28 -C2. Chairperson Kelley asked if anyone from the public was in favor to this proposal. Steve Brown of 29 -R West Street, Mark Solomon of 37 West Street, and Jeff Lawler of 114 Hart Street were in favor of this proposal. A petition was submitted to the Board from Attorney King specifying the neighbor's names and addresses who were opposed to this proposal. He stated the names on the petition were residents of the condominiums. Mr. King also submitted photographs of large trucks parked waiting to be repaired in the front of this business. He added that the issue is not automobile repair anymore it is truck repair, which is not allowed. He also asked what the hardship was on this proposal. Page 10 Chairperson Kelley then asked the Board members for their questions and comments. Margolis asked if the trucks due for repairs would be put in the new space if this proposal were granted. Mr. Michaud responded the trucks would enter from the new driveway in the rear and be brought into the proposed new addition. He added that his truck clients never parked on the condominium parking area. Kelley asked why the addition had to be so large. Mr. Alexander responded that Mr. Michaud is planning on taking the vehicles out front and having them park in the rear. He added that there would be no more repairs to vehicles out side of the building. Kelley asked if a buffer zone could be installed by the condominiums? Ferguson stated he had no questions at this time. Brusca reviewed the photographs of the trucks and commented that they were not parked on the condo side of the building. She asked could a restriction be placed in the decision that "no parking or servicing would be done on the condominium side "? Kelley stated she often walks by Mr. Michaud's business and realizes that he is trying to improve his property and alleviate the stress of the condominium residents. She added she was in favor of this application but felt restrictions should be placed upon the decision. After a discussion between the Board members Ferguson stated he was ready to make a motion. Motion to GRANT the request to modify and expand a variance granted January 24, 1977 to substitute the use allowed, operate a foreign auto repair service, with the use "operate a motor vehicle repair service ", and to remove the existing sheds and stairs at the rear of the building and replace with a one -story peaked roof addition of 28.5 -feet by 91.3 -feet encroaching 5.5 -feet upon one side yard setback, 9.4 -feet upon the other side setback, and 24.67 in the rear yard setback. The use of the addition would also be to "operate a motor vehicle repair service" with the following conditions: 1. That no trucks park in the north side of the business. 2. That six vehicles be the maximum parked on the north side of the building. 3. That there will be no outside repairs done on the north side of the building. 4. That hedge plantings and vegetation be planted along the public parking area and a screen of arborvitae on the west side of the property. This will create a screen between the property and the adjacent town parking lot. 5. Subject to the plans submitted with the application are complied with, referred to, and incorporated into, the Board's decision along with the letters and photographs submitted. Seconded by O'Brien. Motion carries 5 — 0. (Kelley, O'Brien, Ferguson, Margolis, and Brusca in favor) Mark Glovsky requested to WITHDRAW WITHOUT PREJUDICE NW of intersection of Conant Street and Cherry Hill Drive — IR Zone — Curry Architecture — Special Permit Request Page 11 Attorney Mark Glovsky stated in a letter to the Board dated October 28, 2008 that in light of the imminent change in the membership of the Board and the need for submission of additional information, it has been determined that it would be appropriate to withdraw the Application of his client, "Curry Architecture ", without prejudice. Mr. Glovsky stated a new filing would be made in the near future. Ms. Kathy Faulk, representative of the direct abutters stated she had raised objections. She added that she had attended four hearings in 5 '/z months. Ms. Faulk commented that Curry Architecture had asked specifically for 30 more days to gather information and tonight that time was up. She asked the Board not to allow the petitioner to withdraw without prejudice because this is the wrong project for this site. Mr. Glovsky stated that he had not been included with all the discussions relative to this proposal. O'Brien: Motion to allow Curry Architecture to withdraw without prejudice their application. Seconded by Margolis. Motion carried 5 — 0. (Houseman, Ferguson, O'Brien, Brusca, and Margolis voting in favor) Brusca commented that there should be more substantial changes in the new proposal.