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2015-04-13 (Revised)City of Beverly Zoning Board of Appeals April 13, 2015 at 7pm These minutes are not a verbatim transcript of the public hearing or public meeting of the Board of Appeals. Reviews of the Board's Decision or outcome of the public hearing should include an examination of the Board's decision for that hearing. Meeting Minutes Members Present: Joe Margolis, Chairperson, Jim Levasseau, David Battistelli, Victoria Burke Caldwell, Pamela Gougian Others Present: Steve Frederickson, Building Commissioner Leanna Harris, Administrative Assistant Location: 191 Cabot Street, 3rd Floor, Room B Mr. Margolis, Chairperson called the meeting to order at 7:02pm. L PUBLIC HEARINGS A. Continued Hearing Project Adventure, Inc. In a petition for a request for a variance from minimum footage requirement contained in Section 38 -8. D2, to allow the creation of a single - family building lot in an R -45 zoning district with no legal frontage where 175 -feet is required. The proposed lot will be served by an existing common driveway. The property is located at 719 Cabot Street in an R -45 district. Miranda Gooding, Esq. respectfully requested this hearing be continued to the next meeting scheduled for May 26, 2015. MOTION: Mr. Battistelli moved to continue this hearing to the scheduled May 26 meeting. Second by Mr. Levasseau. All in Favor. Motion carries. B. Administrative Appeal In a petition for a request of an appeal from an Administrative Decision for the issuance of Building Permit No. B -14 -1599 for the construction of a new single - family dwelling [60' by 42' (4) bedrooms, (4) bathrooms, (2) car garage under] at 12 Beaver Pond Road, Map 83 Lot: 1D, on October 8, 2014 and seeks revocation of said Building Permit on the ground that subject property is non - buildable having merged with adjoining, nonconforming and /or noncomplying property located at 14 Beaver Pond Road, which completely lacks frontage where 175' is required in R -45 zoning district. Zoning Board of Appeals April 13, 2015 Ms. Caldwell read the application into record. David Tessier of 18 Beaver Pond Road addressed the Board. Mr. Tessier is a direct abutter and provided the Board with a photograph of the site. Mr. Tessier stated when they purchased their home they were told that the Lot directly across from was not buildable. The Lot is very narrow and so the only way to fit a house on the Lot is directly in front of their house. There is a 175' frontage requirement so that they don't have houses right across from each other. There are 2- acre lots in this area, its not downtown Beverly. Mr. Tessier shared the history of their discussions with the builder and stated they will sell their house if they build across from them. Mr. Frattaroli was the head of the HOA for years and collected dues on all the lots. Mr. Frattaroli's existing house was missing from the plot plans which was misleading and so the Building Department flagged the file. The Tessier's were notified from the Building Department that they were in fact going to issue the building permit because the Builder was going to use a shared driveway. There have been three or four attempts to try and obtain a permit without letting neighbors know. Mr. Tessier bought this house believing it was not going to have another house built directly across from it. William Heney, Esq. represents Todd Main. Atty. Heney stated the Building permits and ANR plans were issued on Plans supplied to the Building Inspector without public notice or involvement. Atty. Heney supplied a 200 page memorandum and asked the Board to follow the advice of Judge Piper on recent on point case law and provided a copy to the Board. A right of first refusal and a right of merger is at stake. Atty. Heney referred them to Page 9, 10 and 11 of that decision. Atty. Heney reviewed the Chain of Title and Exhibits attached to the Memorandum he provided. The Chain of Title contains ten transfer Deeds. Five of the transfers are inter family deed transfers for $1 or no consideration. There were five transfers to outside parties for consideration of $866,000. A Trust was formed to show and control ownership. Mr. Frattaroli took a Lot owned by his wife and combined it with a Lot owned by the Trust to create the frontage required to build 12 Beaver Road. (Exhibit U). Mrs. Tessier stated they would lose all of their privacy if the house is built and they will sell their house at a loss. The road they live off of is a single lane road and so that house being directly across from them is no more than a driveways length away. Atty. Heney provided the Board with the Plans showing the Lots. Atty. Heney directed the Board to review the Savery' decision by Judge Piper. The question is whether Lots 12 and 14 on Beaver Road were held in common ownership which is determined by control, not the record owner. The Board is required to determine where there is common ownership. Atty. Heney reviewed and sited applicable case law. All of Mr. and Mrs. Frattaroli transfers took place post zoning. The transfers were not subject to zoning law changes. There 1 Savery v. Duane Land Court, 12 Misc. 474707 (2014) Zoning Board of Appeals April 13, 2015 2 were many occasions where Mr. Frattaroli could have brought these properties together under one Deed. Atty. Heney believes if 12 Beaver Road receives a Building Permit then 14 Beaver Road will have no frontage. There are presently four homes that share the road. If a fifth home is built, there will likely be a 25% traffic increase. The road is very narrow and as Mr. Tessier explained, landscape vehicles currently have to turn around on his lawn because there really isn't much room for vehicles to maneuver. Thomas Alexander, Esq. represents Lee and Jaime Nilsson. Atty. Alexander gave a brief history on the purchase of the property dating back to 1982. Mr. and Mrs. Frattaroli had moved to Beaver Pond neighborhood back in 1982 and had always hoped their daughter would be able to live next door. Atty. Alexander stated there has been loose talk regarding underhanded transfers and he plans to show the Mr. and Mrs. Frattaroli followed all laws and local ordinances. Atty. Alexander displayed the Plan that was approved by the Board back in 2003 showing two buildable lots. Atty. Alexander provided the Board with the listing information provided to all of the home owners with the Plan attached to the listing and state that it was considered a buildable lot before the Mains or the Tessiers bought their Lots. Atty. Alexander showed the Board that the Mains' Deed references the very Plan that shows the intent create the Tessier lot and what is now the Nilsson Lot. The zoning in this district requires 45,000' Lots and this lot in question is 20% bigger than what is required. The City and the neighbors (except for the Tessiers) are all on board with this being a buildable Lot. Atty. Alexander provided copies of the letters from neighbors stating they knew this was a buildable lot and support this Project. The Building Commissioner had reviewed this with the City Solicitors. This is a matter of fundamental fairness and he requests the Board to uphold the Building Commissioners decision. David Jacob, Architect Mr. Jacob stated the rules and bylaws regarding pork chop Lots. Atty. Alexander stated that the Lot in question is not a pork chop lot, it's an ANR fully conforming lot with the City of Beverly. Atty. Alexander stated the Tessier Lot has the same exact configuration. Jay Johnson, 4 Beaver Pond Road Mr. Johnson stated he looked at the Plans and he has no problem with this project. Michael McNiff, Builder of the property Mr. McNiff noted he has worked with the Frattaroli's in the past and also Mr. Frederickson runs a very professional office. It takes about a month to get a building permit in Beverly, other towns it takes a day. Steve Binnie, 45 Beaver Pond Road Mr. Binnie stated he supports the Frattaroli's project and provided a letter in support. Atty. Heney addressed points that Atty. Alexander made and stated this is a question of enforcing the City's zoning ordinances, it doesn't have to do with a nice house and nice people. Atty. Alexander stated that the Plan is an ANR plan which does not require approval or require a public hearing. However, Atty. Heney disagrees and believes that this Lot should be reviewed as a pork chop lot and should have been reviewed and submitted for full subdivision approval. Zoning Board of Appeals April 13, 2015 Atty. Alexander stated he submitted the list sheet to show the Board that buyers had knowledge of this being a buildable lot. Board Discussion Ms. Caldwell asked Atty. Alexander about the process to get an Advisory Opinion at Land Court. Atty. Alexander to explain to the Board the distances of frontage between the two properties. Mr. Battistelli asked Atty. Heney when he believes a mistake occurred and Atty Heney responded back in 1999 when the Frattaroli's owned three Lots under three different names with what he believes with the intent to circumvent zoning ordinances. Ms. Gougian asked Atty. Heney to explain again how that circumvents zoning laws and Atty. Heney responded that Trusts were created so there would be different Record Owners of land so they wouldn't be merged. This is all post zoning. Ms. Caldwell asked Atty. Heney if the Savery case is under further appeal and Atty. Heney responded not it is not. Ms. Gougian asked when they are talking about frontage are they just referring to Beaver Pond Road and Atty. Heney responded yes not to the private way. Mr. Margolis asked the Board if they need more time to absorb the details of this case. Atty. Alexander respectfully requested the Board make a decision tonight due to Ms. Nilsson's due date. Ms. Gougian requested the original Petition being read and Ms. Caldwell read it into record. Mr. Battistelli stated it's his opinion that the Frattaroli's created a nonconforming Lot. Ms. Caldwell stated there are lots of nonconforming Lots in Beverly. Her concern is that if they make a decision that cannot be legally upheld then City resources will be spent in Land Court. Atty. Alexander addressed Ms. Caldwell's concerns regarding City resources. Carmen Frattaroli addressed the Board. Mr. Frattaroli stated he originally wanted to sell all of the Lots on Beaver Pond Road when he bought the strip, he bought it as a Trust and their daughter Jaime is a beneficiary. Ms. Frattaroli refused to let him sell this specific Lot because she wanted to save it for their daughter. Atty. Heney directed the Board to look at the Trust document provided in the appeal. Mr. and Mrs. Frattaroli are listed as 50% beneficiaries. Ms. Gougian asked Mr. Frederickson what the original request was and why was it rejected. Mr. Frederickson's recollection is that it was denied because it was common ownership. When new information was presented to him Mr. Frederickson went on the advice of the City Solicitor. Zoning Board of Appeals April 13, 2015 Jay Johnson, 4 Beaver Pond Mr. Johnson stated when he bought his frontage he wrote a check to the Trust for $175,000. Ms. Frattaroli had nothing to do with it. Jaime Nilsson addressed the Board and stated she is also a lawyer and understands that this is a legal decision that could be interpreted in either way. Ms. Nilsson agreed that it's not an issue of fairness and so she understands if the Board needs additional time to read through all of the materials provided. MOTION: Ms. Caldwell moved to continue this matter to the hearing scheduled on May 26t''. Second by Mr. Levasseau. Votes 5 -0 Motion carries. On the Motion Atty. Alexander stated the Appellant's time frame will be up before the next meeting. Atty. Heney agreed to continue sign a Waiver Agreement to continue. C. New Public Hearing Raymond, Charles — 39 South Terrace In a petition for a request for a Special Permit to construct a two -story addition to the rear of an existing non - conforming dwelling. Addition will comply with all setback requirements. The property is located at 39 South Terrace in an R -10 Zoning District. Ms. Caldwell read the petition into record. Charlie Raymond of 54 South Terrace addressed the Board. Mr. Raymond stated he is proposing to add in addition to the back of the house located at 39 South Terrace and increase the living space by 75 %. Mr. Raymond stated he spoke with his neighbors and showed them his plans and provided the Board with a letter stating support of this addition in which five direct abutters signed. Mr. Margolis read the abutters letter into record. Mr. Raymond provided the Board with an older plan showing the house. There was no public participation. Board Discussion Mr. Battistelli asked Mr. Raymond what his intention for this property is and Mr. Raymond responded it will be used as a rental property. The Board members discussed the property's location in the middle of the street as indicated on the map. Mr. Frederickson stated that is why he went to the City Solicitor. He didn't know how to treat this property and the City Solicitor stated it could be treated as a nonconforming structure versus an illegal one. Mr. Battistelli asked how close the new addition will be to the existing retaining wall. The architect explained they will need to remove the existing retaining wall and grade the back to divert the water to the sides of the property. Mr. Margolis asked what the impact will be on the Zoning Board of Appeals April 13, 2015 two abutters with the new soil placement and the architect explained it will be the same. Any water coming down, if it goes over the retaining wall will continue to go in the same direction as it does now. There will also be additional drainage put in. Mr. Raymond illustrated on the map where a big portion of the area that water is directed is green space. Ms. Gougian asked if Mr. Raymond or any of the abutters have water in their basements and Mr. Raymond responded that they do not. Ms. Caldwell asked Mr. Frederickson if a condition could be put on a Special Permit and suggested doing so regarding drainage. Mr. Battistelli is concerned with the additional building on the property that there will be less green space for drainage. Ms. Caldwell stated the two abutters directly across the street did sign the letter supporting the addition. Ms Gougian asked how much parking the property has and Mr. Raymond responded there is off street parking for at least two or three vehicles. Mr. Battistelli asked Mr. Frederickson what else could be done to divert the water and Mr. Frederickson suggested a dry well. Mr. Margolis asked Mr. Frederickson what they could put as as a condition. Mr. Frederickson stated you're not supposed to pump water out into a public way due to ice that it creates on streets and sidewalks. Mr. Battistelli asked Mr. Raymond what he plans to do for drainage and Mr. Raymond responded that there isn't a problem now so he wouldn't do anything. MOTION: Ms. Caldwell moved to approve the special permit for an addition at 39 South Terrace (9:44pm) Special permit is being approved because it will not be substantially detrimental to the community based on the responses from neighbors, there is no evidence that property values will be adversely affected, there is sufficient parking and no new traffic or nuisance will result. there are adequate city services and proposed use is appropriate for the location with the condition that special consideration is given to the fact that the addition could result in additional water draining down into the property and special attention should be made to ensure that does not happen. The condition of this Special Permit is due to the grade of the property, special consideration should be made to ensure that there is no flooding. Second by Mr. Battistelli. Votes 5 -0 Motion carries. II. OTHER BUSINESS Mr. Margolis addressed the Board regarding visiting applicant's sites. The City Solicitor advises against it and has invited the Board to vote and determine if they would like further instruction/information regarding visits. Ms. Caldwell stated she thinks the issue is that Board members could get more information by talking to individuals versus just taking a drive by the property and it then jeopardizes the open meeting aspect of the process since information influencing their decision has to yet been made public. If a member has information that is not public it should not be used in making a decision. Zoning Board of Appeals April 13, 2015 Mr. Margolis stated that by meeting with an applicant a relationship is built. The Board asked Mr. Frederickson if him walking on a property as a building inspector is trespassing and Mr. Frederickson stated that he cannot go on a property if the Applicant says he can't. Mr. Margolis is also concerned about liability if a member were to fall or get bit by a dog, etc. Ms. Gougian asked if she drove by a property to see where an addition was going and the Applicant happened to be home and invited her to the back of the house to see where the addition is going would she be able to go. Mr. Frederickson responded that in that situation she would then be invited on the property but she shouldn't discuss anything regarding the application. Mr. Battistelli stated the prior Chairperson told him he didn't need to make an appointment when going to see a property and that he could just tell the property owner that he is on the Zoning Board. Mr. Margolis he will request further clarification from the City Solicitor. ADJOURNMENT Ms. Caldwell moved to adjourn the meeting at 10:05 pm. Second by Mr. Margolis. Zoning Board of Appeals April 13, 2015