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2008-03-06CITY OF BEVERLY MASSACHUSETTS PUBLIC MEETING MINUTES These minutes are not a verbatim transcript of the 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: March 6, 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: Joel Margolis and Noelle Faris. Others Present: Building Commissioner/Director Steve Frederickson and Clerk of the Board/ Diane Rogers. Absent: Jane Brusca Chairman Scott D. Houseman opened the meeting to the public at 7:00 p.m. He stated that this was a special hearing to review an Administrative Decision regarding 3 Greenwood Avenue, presented by Attorney Thomas J. Harrington. Representing the owner of 3 Greenwood Avenue was Attorney Brian M. Hurley. Chairman Houseman stated that Mr. Michael Otis residing at 1 Greenwood Avenue, was appealing the administrative decision of the Building Commissioner who decided not to revoke building permit #71517. Mr. Otis is represented by Attorney Harrington who believes this is not a buildable lot. Houseman stated the burden of proof is upon the party seeking relief. He asked the Board members who did a site visit of the property. O'Brien and Faris responded that they had visited the site. Chairman Houseman stated that before Mr. Otis spoke, his attorney must first swear him in. Houseman asked if Attorney Hurley had received the information packet that Attorney Harrington has presented. Mr. Hurley responded that he did have the exhibits. Houseman asked Mr. Harrington if he had Page 2 received Mr. Hurley's information. Mr. Harrington responded that he had received Mr. Hurley's information. Chairman Houseman stated that he was aware that abutting neighbors were in the audience but explained that because this is an Administrative Appeal the Board did not have to hear their opinions. Attorney Harrington swore in Mr. Otis. Mr. Otis stated he has resided at 1 Greenwood Avenue for nearly 20 years. He added that in September of 2006, Lot A -2 was considered buildable due to a variance that was granted in 1985. He stated that he is questioning the legality of the current building permit. Mr. Otis commented that if he wins this case he expects the new foundation to be demolished and the land replenished as it once was. He stated this was a cause worth fighting for. Attorney Harrington stated that Benjamin and Adrienne Stinson purchased the property at 3 Greenwood Avenue in 2006. The property is shown as Lot A -1 on the plan attached as "Exhibit B." Lot A -1 exists only by virtue of a variance that the Board of Appeals granted to Richard Sokolow on April 9, 1985. A copy of this variance is attached as "Exhibit C." This variance waived the minimum frontage requirement for both Lot A -1 and A -2 as to frontage on Greenwood Avenue and for Lot A -1 from classification as a "pork chop" lot. When the Board of Appeals granted this variance, Lot A -1 and LotA -2 did not, as a matter of record, exist as separate lots. Rather, they were both part of original Lot A. In 1985 a variance to allow Mr. Sokolow to subdivide Lot A into Lots A- 1 and A -2 was granted. Shortly after the variance was granted on June 19, 1985, the Planning Board endorsed an "Approval Not Required" plan showing both lots A -1 and Lot A -2. This plan was then recorded in the Registry of Deeds. Lot A -2 lacks frontage on any public way. Mr. Harrington added that when the variance was granted in 1985, Lot A -2 had already been developed and Lot A -1 was vacant. Lot A -1 remained vacant and no construction was ever undertaken until now. In addition, Lot A -1 and Lot A -2 were conveyed into nominally separate ownerships shortly after the 1985 variance issued, but the record title indicates on its face that the two lots remained in common control until 2006. Mr. Harrington is of the opinion that Lot A -1 is not a building lot and building permit #71517 should be revoked. Mr. Harrington suggested that the Board review Lopes v Bd. Of Appeals of Fairhaven, 27 and Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, Hogan v. Hayes 19 Mass. App. Ct., Asack v. Bd. of Appeals of Westwood, 47 Mass. and Berg v. Town of Lexington, 68 Mass, DiStefano v. Stoughton, 36 Mass, and Planning Bd. of Norwell v. Serena, 27. Mr. Harrington in conclusion states that the owners of Lots A -1 and A -2 never exercised the 1985 variance, and, accordingly, it lapsed after one year. Futhermore, Lot A -1 merged with Lot A -2, which lacks any frontage whatsoever, because the two lots, although conveyed separately, remained in common control. Finally, should the Board of Appeals conclude that the 1985 variance was exercised, and did not expire, and that the two lots did not merge, Lot A -1 still does not possess 45,000 square feet of area for the purposes of zoning, and is therefore unbuildable without further zoning relief. Page 3 O'Brien asked if A -1 and A -2 merged, is Lot A conforming? Mr. Harrington responded no. Houseman asked if prior to 1985, was it conforming. Mr. Harrington responded that there was a dwelling there, but he would say it was nonconforming because there was no frontage. Houseman stated that Mr. Stinson purchased the property in good faith, and did not know there were any defects. Houseman asked if Mr. Harrington thought Mr. Stinson acted with unclean hands. Mr. Harrington responded he did not. Houseman asked what was expected of the Board. Mr. Harrington responded that the Board can state that the variance lapsed when the lots merged. Attorney Hurley stated his clients Mr. and Mrs. Stinson obtained their building permit and then the abutter Mr. Otis attempted to block the issuance of the building permit later and requested zoning enforcement after the permit was issued. He added that Mr. Frederickson set forth in a letter dated November 12, 2007 after consultation with the City Solicitor, rejected the arguments offered by counsel for Mr. Otis. Mr. Stinson asks that the Board affirm the decision of the Building Commissioner, Steven Frederickson. Mr. and Mrs. Stinson previously responded to the arguments of Mr. Otis by a letter dated September 18, 2007 from their local counsel, Philip G. Lake, of Glovsky & Glovsky. Each of the arguments raised by Mr. Otis, were addressed except whether the doctrine of merger has any bearing on this case. On April 9, 1985 the Board of Appeals granted a variance on Lot A on a plan dated March 10, 1961 and recorded with the Essex Registry of Deeds. The Variance related to minimum frontage requirement on Greenwood Avenue (and a pork chop lot classification) for lots in the R -45 Zoning District. The variance authorized the creation of two lots from Lot A as shown on the 1961 Plan. As a condition to the issuance of the variance, driveway access to each of the lots was limited to Indian Hill Road. At that time of the variance, Lot A was owned by Shirley -Ann Huffnagle. The applicant for the variance was Richard Sokolow. On June 19, 1985, the Beverly Planning Board endorsed a plan "Approval Not Required" which showed Lot A divided into lots A -1 and A -2. The plan, prepared for Ms. Huffnagle and dated August 20, 1984 made reference to the variance . Lot A -1 consisting of 45,321 plus or minus square feet, was shown as unimproved. Lot A -2, consisting of 47,619 plus or minus sq. feet, was shown as improved with a residence and garage. With the exception of frontage, each of the lots conformed to existing dimensional requirements. With the variance, each became a legal, conforming lot. On August 15, 1985, Ms. Huffnagle conveyed Lots A -1 and A -2 to Mr. Herman Sokolow and Marilym Sokolow as joint tenants. On October 3, 1985 Mr. Sokolow, et al, conveyed Lot A -1 to Richard Todd Sokolow, Trustee of R & S Realty Trust. On October 3, 1985, Mr. Sokolow etal, conveyed Lot A -2 to Richard Todd Sokolow, Trustee of Indian Hill Realty Trust. As a matter of record title Lots A -1 and A -2 were separate lots shown on a recorded plan held in separate ownership. Mr. Hurley stated that from a zoning perspective, the variance had been exercised and the lots remained as separate, conforming lots. On July 17, 1986 R &S conveyed Lot A -1 to John Boyd, Trustee of the Boyd Indian Hill Trust. A schedule of beneficiaries was not recorded in the Essex Registry of Deeds. On July 17, 1986, Page 4 Indian Hill conveyed Lot A -2 to John Boyd and Paula Boyd as tenants by the entirety. The Boyd family has lived in the house situated on Lot A -2 since 1986. By deed dated January 20, 1989, Michael Otis and Jennifer Otis acquired Lot B as shown on the 1961 Plan and a very small piece of Lot A on that Plan. Lot B consists of .66 acres. With the addition of the small portion of Lot B, the total size of the Otis lot is less than 45,000 square feet. At best, it is a pre- existing, non - conforming lot. The Otis lot is improved with a residential dwelling. On September 27, 2006, the Trust conveyed Lot A -1 as shown on the ANR plan to Ben and Adrienne Stinson for $327,500. The Stinson's planned to live in a dwelling they hoped to construct on the lots. Attorney Hurley contends that thus, in Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 (1999) the Court applied the doctrine in a case where two lots (only one of which enjoyed the benefit of a variance) were held in common ownership. Because the lot with the variance was adjacent to "the nonconforming lot," the variance lot was available to ameliorate or eliminate the adjacent lot's nonconformity. As is obvious from the facts, the Asack decision has no bearing here. Lots A -1 and A -2 each had the benefit of the frontage variance. Whether or not they were held in "common ownership" after the exercise of the variance, merger was not required as the lots were nonconforming by virtue of the variance. This is not a case where merger would eliminate or lessen a nonconformity. The underpinning and rationale of the merger doctrine has no application here. Mr. Hurley stated that Mr. Otis has wholly failed to meet the burden. Rather, he points to deeds in the chain of title and simply assumes that there was such control. In the absence of evidence of common control, the arguments of Mr. Otis fail. Mr. Hurley concluded that the Stinson's have been unfairly and improperly delayed in their efforts to build a dwelling and to move into the neighborhood. The abutter's efforts to delay and hinder their plans should be rejected. Lot A -1 became a separate legal lot in 1985. Mr. Frederickson properly concluded that Lot A -1 is a buildable lot. His decision should be affirmed. Chairman Houseman stated that he would like to review the 1985 Zoning Ordinance. Ferguson questioned how one would know if Sokolows were in control. Margolis stated most lawyers are not zoning specialists and he can understand how this could be overlooked. Ferguson stated that the Stinson's lawyer would have had no reason to uncover this part of the case. Houseman stated he had made two site visits. He asked the Stinson's if a mortgage was involved on the property. Mr. Stinson responded that there is a mortgage on the property. Houseman asked if any attempt had been made to discover the beneficiary of the trust. After much discussion the Board agreed that they needed more time to read the case laws submitted by both counsels. O'Brien: Motion to continue until the next scheduled meeting March 26, 2008 meeting. Alternate member Noelle Faris is unable to attend the hearing. The Board will then discuss a date for a Special Meeting. Attorney Harrington and Attorney Hurley will submit evenings that they will be available. Houseman suggested that any new materials Page 5 provided to the Board should be received at least one week before March 26, 2008 meeting. Seconded by Margolis. Motion carried 5 — 0. (Houseman, O'Brien, Ferguson, Faris, and Margolis. In favor)