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2008-04-07CITY 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 SPECIAL MEETING Date: April 7, 2008 Place: Beverly Public Library, 32 Essex Street Barnet Gallery 7:00 p.m. Board Members Present: Full Members Scott D. Houseman, Chairman, Margaret O'Brien, and Scott Ferguson. Alternate Members: Jane Brusca, Joel Margolis, and Noelle Faris. Others Present: Building Commissioner /Zoning Officer — Steve Frederickson and Clerk of the Board/Diane Rogers. Chairman Scott D. Houseman will arrive at this meeting at 8:00 p.m. Margaret O'Brien will be Acting Chairperson until his arrival. The first case to be discussed between 7:00 — 8:00 p.m. will be Donna Houton's petition, regarding 8 Victor Avenue. Jane Brusca will vote on this case. She will recuse herself on the 3 Greenwood Avenue petition, scheduled for 8:00 p.m. 8 Victor Avenue — R -10 Zone — Donna Houton Section Six Finding Request Robert Nelson spoke on Ms. Houton's behalf. He stated the request was to erect a 20- feet by 20 -feet one -story family room addition to a legal pre- existing non - conforming single - family dwelling structure that presently encroaches 4 -feet plus or minus upon the 20 -feet front yard setback requirement. Mr. Nelson added he had drawn the plans for this Page 2 proposal and was available for questions. He commented that because of this large lot the proposed addition could not be viewed from the street. Photographs of the property were submitted to the Board for review. Ms. Houton stated that David P. and Doris A. Leonhard owners of 81R, 83 & 83R, and 89 Corning Street signed in favor of the proposal. She added that Christine Matz of 10 Victor Avenue was also in favor. Acting Chairperson Margaret O'Brien stated there were no members of the public present who are in favor or in opposition to this proposal. She asked the Board members for their comments and questions. Faris stated she made a site visit and spoke to the owners. She commented that two neighbors had signed on a plan of the proposal, in favor of this petition. Margolis stated he had no questions at this time. Ferguson asked the petitioners to indicate on an assessor's map locations of the abutters in favor of this proposal. He added that the immediate abutter on the left did not sign for approval. Ferguson asked if there were any future intentions to add a second level to the proposed addition. Ms. Houton responded she had no intension to add a second level to the proposed addition. Ferguson asked that a condition be placed on the decision, if granted, that the proposed 20 -feet by 20 -feet addition shall remain one - story. He added that the plans submitted with the application be strictly complied with and incorporated into the Board's decision, and the elevation drawings be recorded with the decision. O'Brien stated she made a site visit. She added she determined that the proposed addition should be allowed because of the large size of the lot. O'Brien commented that she was in favor of this proposal. Brusca: Motion that the proposed 20 -feet by 20 -feet one -story family room addition at 8 Victor Avenue be approved. Move that the alteration /reconstruction/extension to this single - family structure does not increase the nonconforming structure to the neighborhood and that the special permit criteria are satisfied being that two abutter's signed in favor of the petition and no one was in opposition. A condition is to be placed in the Decision that the proposed addition remains one - story. The plans submitted with the application are to be strictly complied with, identified 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 5 — 0. (O'Brien, Ferguson, Margolis, Brusca, and Faris in favor) 3 Greenwood Avenue — R -45 Zone — Michael Otis An Appeal from an Administrative Decision This petition was heard at the January 22, 2008 Zoning Board of Appeals and continued to the February 26, 2008 meeting. At the February 26, 2008 hearing a waiver of time was signed by Attorney Harrington. A special meeting was then scheduled on Thursday, March 6, 2008 in the Councilor's Chamber. (Mrs. Rogers posted the meeting at the City Page 3 Clerk's office) After much discussion at that hearing the Board obtained a waiver of time from Attorney Harrington to schedule another special hearing because Alternate Member Noelle Faris was unable to attend the next scheduled meeting of March 26, 2008. Following the March 26, 2008 hearing, Attorney Harrington and Attorney Hurley were contacted by Mrs. Rogers regarding the new special meeting date, which was scheduled for Monday, April 7, 2008. (Ms. Rogers posted the meeting at the City Clerks office) Chairman Scott D. Houseman opened the public Special Meeting of the Board of Appeals on Monday, April 7, 2008 at 8:00 p.m. at the Beverly Public Library, 32 Essex Street. He stated that at the last meeting the Board had left open two issues, the burden of proof and checker - boarding, who had control of the lots and were the lots separate or merged. Attorney Harrington had provided a letter written on April 3, 2008 to each of the Board members to review. He stated that at the March 6, 2008 hearing a principle issue was whether the Stinson's property (Lot A -1) and the abutting lot (Lot A -2) had remained in common control and therefore "merged" for purposes of zoning. He added that the Stinson's bore the burden of providing that these lots had not remained in common control. Near the end of the hearing, Chairman Houseman provided his cogent analysis: Mr. Otis bore the original, burden of proof, but satisfied this burden by showing that the chain of title to Lot A -1 was incredibly similar to the chain of title to Lot A -2 for a period of twenty years. On the strength of this showing, the burden of proof "shifted" to the Stinson's, who are now required to prove that Lot A -1 and Lot A -2 did not remain in common control. Mr. Harrington submitted the record title to Lot A -1 and the record title to Lot A -2. (Page 2 of the letter dated April 3, 2008) For twenty years, both were owned by separate, but closely related, entities, and they were conveyed simultaneously. The obvious inference is that the lots remained in common control. Mr. Otis's "threshold" burden is satisfied. It now falls to the Stinson's to defeat the obvious inference and prove that the owners of Lots A -1 and A -2 could not have used the two lots in a manner that satisfied zoning. (see Harrington v. Fort 2005) There are no other documents on file with the registry of deeds, or otherwise available to Mr. Otis or the public, that discloses whether John and Paula Boyd are (or were) the beneficiaries of the Boyd Indian Hill Trust. Attorney Hurley submitted a letter dated April 2, 2008 for the Board to review. He stated the Stinson's and his position can be distilled to few points: (1) The April, 1985 variance authorized the creation of two lots. In June, 1985, the Variance holder, Shirley -Ann Huffnagle, moved forward by obtaining from the Planning Board an ANR endorsement of the two lot plan authorized by the variance. Ms. Huffnagle completed the exercise of the variance by conveying the two lots to the Sokolows in August, 1985. Under Hogan v. Hayes, 19 Mass. App.Ct. 399, 404 (1985) (2) Upon exercise, Lots A -1 and A -2 were legal and conforming lots as a result of the variance. Because neither lot was "non- conforming," the doctrine of Page 4 merger did not come into play. Thus, the question of whether Richard Sokolow controlled both lots is irrelevant. Merger only applies when at least one of the lots is "non- conforming." (3) Similarly, the question of whether John Boyd controlled both lots as of July, 1986, is irrelevant. While the Stinson's respectfully disagree with the conclusion that Mr. Otis met his threshold burden on the issue of control, the Board need not address the issue. Even if the lots had been conveyed to John Boyd individually in 1986, the merger doctrine would not apply as the lots were conforming and neither was required to assist the other in reducing or eliminating a non - conformity. (4) The definition of lot under the Beverly Zoning Bylaw (Section 29 -2, #37) was changed by virtue of an order of the Beverly City Council dated June 24, 2004 ( #161). That order excludes rights of way from minimum area requirements except where, inter alia, the right is open to governmental agencies. It is our view that the 2004 order did not affect the conforming status of Lot A -1. More- over, based on information provided by counsel to the Boyd's, John Glovsky, in 2004 the beneficiaries of the Boyd Indian Hill Trust were John Boyd and two of his adult children. Even if Lot A -1 somehow became non - conforming, it continued to enjoy protected status under G.L. c.40A, 6 and the Beverly Zoning Bylaw as there was no merger with a lot separately owned by Mr. Boyd and his wife. Mr. and Mrs. Stinson submitted that the Building Commissioner properly rejected the arguments advanced on behalf of Mr. Otis. As a matter of law, Lot A -1 is a legal building lot either because it remains a conforming lot by virtue of a fully exercised variance or because it has enjoyed protected nonconforming status since 2004. Chairman Houseman asked the Board for their questions and comments. Margolis asked Mr. Hurley what was the date Mr. Stinson took over the property. Mr. Stinson responded the date he took over the property was December 2006. O'Brien stated that she would like to know the names of the beneficiaries of the Trust. She stated that at this time, she is of the opinion this Appeal should be denied. Faris stated she is leaning toward the conclusion that the lots had merged. Ferguson asked when did the Stinson's hear that there were problems with the lot. Mr. Stinston replied he heard about the problems in late October, 2007. He explained the building permit had been issued in September, 2007. Ferguson stated he made two site visits to the property. He added that he would be ready to vote on this proposal tonight. He stated the new dwelling would fit into this neighborhood. He added that there are city services available. He commented that he would also like to know who the benefices were of the Trust. Mr. Ferguson stated the City of Beverly signed off on the public way and an A N R was filed. Mr. Harrington stated the zoning complaint was sent to the Building Commissioner in August of 2007. Page 5 Chairman Houseman stated this is up to the Board to decide. The law needs to be applied, that's the Board's job. He added that the existing variance is very old and he was of the opinion the lawyer for the Stinson's should have picked up on this problem. He commented that it is not the Zoning Board of Appeal's job to feel bad. Margolis stated the fact is that the title is indicating "transfer" no matter who the beneficiaries are. He asked the Board to review the chart of the record title to Lot A -1, that Mr. Harrington had provided. After further discussion the Board members stated that they were ready to vote on the proposal. O'Brien Motion: that the Administrative Decision being Appealed by Mr. Otis, regarding the property at 3 Greenwood Avenue be approved, and to revoke building permit #71517 because the lot is not buidable. Seconded by Ferguson. Motion failing the decision of the Board was that the appeal failed and was denied. (Houseman, Margolis, and Faris in favor) (O'Brien and Ferguson opposed) The motion failing, the decision of the Board was that the appeal failed and was denied. 548 Cabot Street — Tom Alexander Esq. Thomas Alexander, Esq. requested that the Board continue his case at 548 Cabot Street to the next scheduled meeting. A waiver of time was signed. A motion was made by Brusca to grant the continuance until the next scheduled meeting April 22, 2008. Seconded by Ferguson. The Board voted unanimously to grant the request to continue the case to the next scheduled meeting. ( Brusca, Ferguson, O'Brien, Margolis, and Faris in favor) 363 -399 Rantoul Street — Windover Properties, LLC Attorney Mark Glovsky submitted a letter dated March 24, 2008 requesting that on behalf of his client Windover Properties, LLC, he was asking for Leave to Withdraw the Application Without Prejudice. A motion was made by Brusca to grant the application to be Withdrawn Without Prejudice. Seconded by Margolis. Motion carried unanimously. (O'Brien, Ferguson, Margolis, Brusca, and Faris in favor) 13 Carver Street — Alana and David LeBlanc Alana LeBlanc signed a waiver of time and requested her petition be continued until the next scheduled meeting on April 22, 2008. A motion was made by Margolis to grant the requested continuance until the next scheduled meeting on April 22, 2008. Seconded by Ferguson. Motion carried unanimously. (Margolis, Ferguson, O'Brien, Brusca, and Faris in favor) Discussion on Minutes: Page 6 Ferguson made a motion to approve the minutes for the months of June 26, 2007, October 23, 2007, and November 23, 2007. Subject to editing. Seconded by O'Brien. Motion carried unanimously. (Houseman, O'Brien, Ferguson, Brusca, Margolis, & Faris) May 2007, given to Peg. June given to Scott F. and approved. July 24 and 31 given to Jane. August given to Peg. Meeting adjourned at 9:15 p.m.