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ZBA Minutes 9 28 2017City of Beverly Zoning Board of Appeals September 28, 2017 at 5:30pm These minutes are not a verbatim transcript of the public hearing 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: Joel Margolis, Chairperson; Victoria Burke - Caldwell; David Battistelli, Jim Levasseur; Pamela Gougian; Kevin Andrews, alt.; Margaret O'Brien, alt. Others Present: Steve Frederickson, Building Commissioner Leanna Harris, Zoning Board Administrative Assistant Location: 191 Cabot Street, 3rd. Floor, Councilor's Chambers Joel Margolis began the meeting at 5:35 pm. and introduced the Board members present. L CONTINUED PUBLIC HEARINGS A. Henev & Associates on behalf Todd Main In a petition for a request for an Appeal of the issuance of Building Permit No. B -16 -1534 for the construction of a new single family house at 12 Beaver Pond Road. The property is located at 12 Beaver Pond Road in the R45 zoning district. Five full voting members. B. Tymann LLC on behalf of David Tessier In a petition for a request for an Appeal of Building Commissioner's non - action on Request for Zoning Enforcement to revoke Building Permit No. B -16 -1534 for the construction of a new single- family house at 12 Beaver Pond Road. The property is located at 12 Beaver Pond Road in the R45 zoning district. The hearing on the petitions were combined and William Heney, Esq., ( Heney & Associates) first addressed the Board on behalf of the Main family and stated they are appealing the Building Permit issued at 12 Beaver Pond Road. Atty. Heney stated his receipt of Atty. Alexander's brief late in the day felt like an ambush. The brief stated they did not file an appeal in time and so the appeal should be dismissed. Thomas Alexander, Esq., (Alexander & Femino) addressed the Board on behalf of the Frattaroli family who owns the Lot in question and also the Lot next to it where Mr. Frattaroli lives. The intention was to build a house for his daughter, however, there was a lack of frontage of both Lots when the Lots were merged. The Planning Board has since established that both Lots have Page 1 of 16 the required frontage and so a new Building Permit was requested on November 23, 2016. The Building Permit was issued on February 2, 2017. The 30 -day appeal period ended on March 6th and there was no appeal filed during that time. Atty. Alexander stated he received a letter dated January 27, 2017 from Atty. Heney stating the Mains did not agree with the issue of the Building Permit, illustrating they did know about the permit and failed to file a timely appeal. Atty. Alexander stated that this Board does not have jurisdiction of this matter and therefore the Main petition should be dismissed. Atty. Alexander stated Mr. Tessier did object to the Building Permit on March 16, 2017 after the appeal period and the appeal should also be dismissed for lack of jurisdiction. Atty. Alexander stated that Mr. Tessier claims he has been working with Atty. Heney and there are emails attached indicating payment. Benjamin Tymann, Esq. ( Tymann, LLQ addressed the Board on behalf of the Tessier family and stated there is no evidence that either Mr. Main or Mr. Tessier had knowledge of the issuance of the Building Permit. Atty. Tymann stated he received the brief from Atty. Alexander late that afternoon and he would like adequate time to prepare and respond to the allegations of not appealing prior to the deadline. Atty. Tymann stated that Atty. Alexander did not show that there was notice of the Building Permit being issued. Atty. Tymann stated the emails referenced show how quickly both Mr. Main and Mr. Tessier reacted the day they did receive notice of the Building Permit. In July of 2016 the Board upheld the neighbors' appeal that the Lots did not have adequate frontage. Mr. Frattaroli filed a barebones appeal to the Court. Atty. Heney stated in January 2017 he discussed with Mr. Frederickson that they had an issue with the issuance of the Building Permit, and that they were aware there was another Building Permit application. Atty. Heney stated on March 8th he heard through the grapevine that a Building Permit had been issued and so he immediately sent Mr. Frederickson an email and received a response on March 15th stating a Building Permit was issued on February 2nd. Atty. Heney stated if the Board wants to address their timeliness of an appeal he does have emails he can provide. Atty. Heney stated if the Board wants to continue along these lines he is going to request a continuance so that he can respond. Mr. Battistelli stated if the Board is going to address the timely issue then he agrees they should allow a continuance, however, Mr. Battistelli is questioning whether the Board has jurisdiction over this matter in the first place. Eitan Goldberg, Esq. addressed the Board and stated the issue raised in Atty. Tymann's letter referencing Chapter 40A, § 1 A, § 16 regarding the prohibition against the issuance of a second building permit within two years and stated that the provision doesn't apply to this scenario. Atty. Tymann had stated the two -year moratorium applied to a Building Permit, not a Special Permit. Mr. Tessier addressed the Board regarding the timeliness issue and stated he found out about the Building Permit around January 26 and that there was an application in process which is why there was correspondence on the January 27 t ''. Mr. Tessier stated he reached out to Mr. Claussen Page 2 of 16 and requested he let him know when the decision regarding using part of his driveway as frontage was determined. Atty. Alexander stated they now have confirmation that Mr. Tessier by his own admission knew this was going on and was in touch with the City. It adds more proof that they knew they missed the 30 -day appeal period and there is no jurisdiction. The Board discussed whether they wanted to hear the case now or give the attorneys time to review and respond to Atty. Alexander's brief. Ms. Caldwell stated she would like to hear the petition today. Atty. Heney stated they are appealing the Building Permit and provided the following timeline: • May 2014: Mr. Frattaroli began the process to get a Building Permit at 12 Beaver Pond Road. • Sept 2014: The permit request was denied due to 12 Beaver Pond not having enough frontage • Sept 15, 2014: Mr. Frattaroli requested Mr. Frederickson review the decision. • Sept 19, 2014: Mr. Frederickson responded to Mr. Frattaroli and stated that 12 Beaver Pond Road and 14 Beaver Pond Road had merged. • Sept 24, 2014: Mr. Frattaroli submitted a legal brief to the City citing case law that these Lots did not merge and Mr. Frederickson subsequently issued a building permit. • November 2014: Atty. Heney appealed the Building Permit. • November 2014: Mr. Frattaroli applied for an ANR Plan. Atty. Heney stated an ANR plan cannot approve frontage. • July 7, 2015: The ZBA issued a written decision revoking the permit stating that 12 Beaver Pond Road and 14 Beaver Pond Road had merged. • April 2016: Mr. Frattaroli went to the Planning Board with another ANR Plan and it was approved. Mr. Frattaroli then took that approved ANR Plan and applied for the Building Permit. Atty. Heney stated he doesn't think the Planning Board was apprised of all the facts and that the Board had already determined a lack of frontage. Atty. Heney used the exhibits provided in Atty. Alexander's recent brief to walk the Board through the documents Mr. Frattaroli is relying on. Atty. Heney referred to the (Exhibit A) ANR Plan approved in April 2016 and stated frontage cannot be created by stacking ANR plans together. Page 3 of 16 Mr. Margolis asked for clarification if other houses shown on the Plan established their frontage using the right of way and Atty. Heney stated no, they all have frontage on Beaver Pond Road. Atty. Heney stated if the Board upholds the Building Permit it will be a direct conflict with their earlier decision. If the Board upholds the Appeal, all this information will be heard in February 2018 in Superior Court. Atty. Tymann addressed the Board and stated they have asked the ZBA to review the Building Commissioner's decision, not overturn the Planning Board's decision. Atty. Tymann stated the applicant took the ANR Plan without their knowledge to the Building Commissioner and requested a Building Permit. Atty. Tymann stated, with regards to the timeliness issue, there is a process where people who have notice of an ANR plan can appeal but they did not have notice. Atty. Tymann referenced Siokv. Phoenix, WL2535183 (June 2014) Mr. Frederickson stated the ANR Plan is just saying the right of way exists for an existing structure, it's not creating frontage. Atty. Tymann stated they agree this could only be frontage if determined as a `way in existence' and this would create a bad precedence on Beaver Pond Road as well as in Beverly. They have contradictory emails from Mr. Frattaroli when he was President of the Homeowner's Association stating that this is not his driveway and they would not be plowing it. Mr. Tessier distributed a handout to the Board and stated it has always been considered a driveway. He took pictures of the driveway in different spots with a tape measure to show the width. He also took pictures of Beaver Pond Road with a tape measure showing how much wider it is than the driveway. Mr. Tessier stated if the Board approves this they are opening it up to everyone on Beaver Pond Road to do the same thing. Atty. Alexander stated this is a simple case that is just about frontage. They corrected the frontage issue which wasn't that difficult because there were 1978 Plans that did create frontage for the Dearborn property. They demonstrated to the Planning Board that this was in fact a `way in existence.' Mr. Alexander read the definition of frontage from Beverly's bylaws and stated that determination had already been made by the Planning Board who determined on two former ANRs that this was frontage. The Planning Board went out and drove the road to determine it was adequate. They had an issue with merging of the Lots and they solved that issue. Mr. Frattaroli's Lot and his daughter's Lot both have adequate frontage. Atty. Alexander stated on the merits and procedurally they are entitled to this Building Permit and they hope the Board votes in favor of that. Johanna Main, 10 Beaver Pond Road stated there is not enough room on the road for the houses that are already there. The winters are really tough, it becomes a one way street and the street is very concerning just the way it is. The fire department has told her that they would have difficulty getting there, the turn coming into their part via the extension road is very unique. The Page 4 of 16 thought of it becoming less is very concerning. MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Battistelli, Caldwell, Gougian, Levasseur) Motion carries. Mr. Battistelli stated they made a good decision when they voted against this issue previously and then the Planning Board saw it another way and created frontage. Ms. Caldwell clarified to the Board what they need to vote on. Mr. Margolis stated he feels the same as he did two years and he is more convinced now that it is a valid Lot with adequate frontage. MOTION: Ms. Caldwell moved to uphold the Building Inspector's issuance of the Building Permit and deny the two appeals of Todd Main and David Tessier. Second by Mr. Battistelli. Votes 3 -2 (Margolis, Battistelli, Caldwell in favor; Gougian, Levasseur opposed) Motion Failed. Atty. Tymann suggested coordinating with the City Solicitor as to the wording of the Motion. Atty. Tymann is requesting the Board reopen the hearing to allow attorneys to respond to the late filing by Atty. Alexander. The Board declined and a substitute motion was made. MOTION: Ms. Caldwell moved to reverse the decision of the Building Inspector and Grant the appeal. Second by Mr. Levasseur. Votes 2 to 3 ( Levasseur, Gougian in favor; Margolis, Caldwell, Battistelli, opposed) Motion Failed. As a result, the decision of the Building Inspector stands. [10 Minute break returning at 7:50 pm] C. Project Adventure, Inc. In a petition for a request for a Variance from the minimum frontage requirement contained in Section 38- 8.D.2, to allow the creation of a single family building Lot in an R45 zoning district with no legal frontage where 175' is required. The proposed Lot will be served by an existing common driveway. The property is located at 719 Cabot Street in the R45 zoning district. Miranda Gooding, Esq. (Glovsky & Glovsky) requested the Board withdraw the application without prejudice and stated there continues to be diligent efforts made to maintain this special place. Page 5 of 16 MOTION: Mr. Battistelli moved to withdraw the petition without prejudice. Second by Ms. Caldwell. Votes 5 -0 (Margolis, Caldwell, Gougian, Battistelli, Levasseur) Motion carries. D. John Keilty, Esq. on behalf of Votto Properties, LLC In a petition for a request for Special Permit to allow for the demolition of an existing structure and construction of a new single family residence. The property is located at 126 Lothrop Street in the R6 zoning district. John Keilty, Esq. addressed the Board and stated the applicant is seeking a Special Permit to demo the existing structure and replace with a single family home. The Board and the neighbors had concerns regarding the style and size originally proposed and so the team returned to the drawing board and redesigned the plans to address all of the issues raised. Atty. Keilty distributed a handout to the Board summarizing the new plans. Brigitte Fortin, Architect addressed the Board and reviewed the redesigned plans. The footprint has been reduced so the building can be walked around and additional windows can now be added. The square footage has been reduced about 10% from the original design. A first floor bedroom was eliminated, and the ceiling height on each floor was also reduced which reduced the overall height of the building. The roof line was changed so that it is lower but maintains the gables and slope. Mr. Griffin (Griffin Engineering Group) stated they have changed the general appearance so that it blends more into the neighborhood. They tried to replicate many of the gabled looks that are on the street. Mr. Griffin stated to make the building any smaller would result in just renovating the existing structure. Mr. Griffin reviewed the original Plot Plan showing the proposed building on the land and stated Section 300 -11 of the bylaws govern nonconforming lots prior to zoning laws and allows them to go to an 8' side setback. The house was built in 1918. The proposed building is further away from the rear Lot line. Toni Musante, 12 Willow Street Ms. Musante stated she is the owner of 12 Willow Street and also 14 -22 Willow Street so she is an abutter on two sides. The new proposal is still unacceptable and the right side of the building doesn't conform. The building has significantly higher elevations in the back, the basement is not below grade. The grade slope does not meet the ordinance's definition of a basement. The illegal expansion of this building was not addressed after the cease and desist issued in 1995. This will be the largest building on the smallest Lot in the neighborhood. They would not oppose as a 2 -story building which would be keeping with the other buildings in the neighborhood. The proposed building is not in proportion to the adjacent buildings and is in fact 75% taller. The balcony across the front is a significant increase and nonconformity. The proposed building should not be approved to be so much more nonconforming in the front than the existing structure. This building is simply too big, too large and not stylistically in harmony. Ms. Musante stated she is representing a large group of abutters, some of which are present. Page 6 of 16 Mr. Margolis asked Mr. Keilty if they met with the neighbors to review the new plans and Mr. Keilty stated they have not. Emma Bossa, 99 Lovett Street stated she is opposed to the proposed building and the height. This Lot was not meant for a building this height. The beauty of the neighborhood is in the character of the houses, the beautiful fruit trees and flower beds. This proposed building looks like a fortress from the back. Ms. Bossa is not opposed to new construction just this proposed building design. Chantal Glen, 8 Willow Street stated their property looks directly at this property from the back side and it would be an eyesore for them. This proposal is way out of proportion for the neighborhood, it just doesn't fit. This is a family neighborhood. Michael O'Brien, 9 Willow Street, stated they have lived there for about 40 years. The enormous house built at 130 Lothrop Street should never have been built. If the roofline of this proposed house could somehow fit in with the surrounding rooflines it would be better. Michael Marceau, 108 Lovett Street stated this is a very tight neighborhood and looking out from Lovett Street he can see all the neighborhood houses and he feels like this proposed building is a high rise that won't fit it. Mr. Margolis asked Mr. Frederickson if someone bought this house what could be done on this Lot if they didn't tear down more than 50 %. Mr. Frederickson stated they could basically just build what is already there but if they were to increase the height or setbacks they would have to come before this Board. Ms. Caldwell stated the fabric of the neighborhood is varied with the condos, capes, etc. Ms. Caldwell is pleased that they have changed the design of the house but she is still hearing concern about the height from the neighbors. Atty. Keilty stated the building height is less than 35' and so the height is not before this Board, it's within their right. Ms. Gougian stated it looks to her that the horizontal roof line is equal to the light gray house. Mr. Andrews stated he doesn't think it's fair to say that the garage is not included in the square footage because it is under the house. Mr. Andrews stated he understands that it's not habitable space but he thinks it needs to be factored into the total square footage of the footprint. Mr. Margolis stated he is hearing concern about the mass and size of the proposed building. MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Andrews. Votes 5 -0 (Margolis, Caldwell, Gougian, Battistelli, Andrews) Motion carries. Page 7 of 16 Mr. Andrews stated they made a good faith effort but he doesn't see much difference. Ms. Caldwell agreed and stated she does like the gable but it is still a very large 3 -story house on a very small Lot. Ms. Caldwell doesn't want to deny reasonable use but she doesn't think the Lot couldn't be used another way. Atty. Keilty requested to continue this petition to the October 26, 2017 meeting. MOTION: Ms. Caldwell moved to continue the hearing to the October 26, 2017 hearing, subject to signing the Waiver and Agreement. Second by Mr. Andrews. Votes 5 -0 (Margolis, Caldwell, Gougian, Battistelli, Andrews) Motion carries. E. Alexander & Femino on behalf of Harry and Nancy CoffeX In a petition for a request for a Variance to allow the construction of 3 additional residential dwelling units in the RMD District on an 18,135 sq. ft Lot that already has a building containing 3 residential units. The result would be a total of 6 residential units resulting in 3,022 sq. ft of land area per unit where the RMD District requires 4,000 sq. ft. per unit. The property is located at 31 Lovett Street in the RMD zoning district. David Battistelli recused himself. Thomas Alexander, Esq. (Alexander & Femino) addressed the Board and stated there have been some changes made to the architectural plans due to the Planning Department's input. They also made some changes to the Site Plan. The building is in the same location but the driveway has been moved. The property is in the RMD district which is a residential use for medium density. It's a large lot for the area, most of the other lots in the area are 5,000 sq ft. The lot goes back 200' from Lovett Street. It has some severe topography where it drops down 30 -40'. Presently there are 3 -units on the site and they are seeking to build 3 more units. The owners bought the property 50 years ago before they were married. They are longtime residents and this would be a retirement plan for them. They received comments from the Assistant Planner offering a number of suggestions which they adopted most of The prior plan had access via a narrow 11' driveway and so they are grassing that area over and putting in a new 18' driveway. The snow storage located in the back was unrealistic and so they moved that to the front for easier access. The recreation area has also been increased, it is over 1,800sq. ft. The dumpster was moved behind the building in a less visible location. Atty. Alexander stated they meet the requirements for a Variance as the request is appropriate and consistent for the neighborhood, there is no evidence that property values will be adversely affected, there will be no undue traffic or nuisance as a result, it has been designed with a parking area in accordance with the City's regulations, adequate facilities are available, all building will be up to code and there are no valid objections from neighbors. Mr. Coffey went door to door and met with neighbors and many signed a petition in favor. The Assistant Planner also suggested obtaining a drainage permit from the City which they plan to do. David Jaquith, Architect reviewed the proposed plans to the Board. Page 8 of 16 Ms. Gougian asked if the units will be rentals or condos and Atty. Alexander stated they will be rentals. Diane Vercollone, 22 Lovett Street stated she met Mr. Coffey about five years ago and she has grown to know Mr. Coffey is very well liked and respected in Beverly. There are many professionals, young people and long time residents who maintain their properties inside and out and she has no fear that Mr. Coffey will maintain his rentals as he maintains his property now. Thomas Sullivan, 27 Lovett Street stated he is in favor of the project but he objects to the 18' wide driveway. Atty. Alexander stated they can reduce the driveway to 16' they have already consulted with the Fire Department. Ms. O'Brien asked what the size of the existing units are and Ms. Coffey stated the units are about 1,200 square feet. The building volume is smaller than the front house. Atty. Alexander stated the hardship is the topography that has a major drop off and also the long, narrow shape of the lot. MOTION: Mr. Levasseur moved to close the public hearing. Second by Ms. Caldwell. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, O'Brien) Motion carries. Ms. O'Brien asked if they intend to fill in the drop off and Atty. Alexander stated they are going to work with the existing topography. Ms. O'Brien asked how much asphalt is going in there in comparison to what is there now and Atty. Alexander referred to the revised plan. Some of the parking area is porous and so it will be able to drain. Atty. Alexander stated rain gardens have been designed for drainage. MOTION: Mr. Levasseur moved to GRANT the Variance at 31 Lovett Street for the construction of 3 rental units, the hardship is the long, narrow shape of the lot and the topography (drop off), the driveway will be reduced to Wand the front chain link fence will be removed, subject to the conditions outlined in the letter by the Assistant Planner and subject to the plans submitted. Second by Ms. O'Brien. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, O'Brien) Motion carries. F. Alexander & Femino on behalf of 68 Dane Street LLC In a petition for a request for a Finding /Special Permit to allow the substitution of the legally pre- existing nonconforming twenty unit rooming house use with six new two bedroom units to be constructed within the existing building footprint and for the most part within the existing Page 9 of 16 building envelope, except for a approximately 719 sq. ft. addition to the rear of the building above the existing second floor flat roof. The property is located at 68 Dane street in the R -6 zoning district. Atty. Alexander moved to continue the petition to October 26, 2017. MOTION: Ms. Caldwell moved to approve the request to continue the hearing to the October 26, 2017 hearing, subject to signing the Waiver and Agreement. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. II. REQUEST FOR MODIFICATIONS A. Century 21 North Shore Original request June 1976. In a petition for a request to convert dwelling into art gallery and picture framing shop. The property is located at 16 Dodge Street in the R10 zoning district. Applicant seeking to modify existing Variance granted on August 9, 1976. Candace Pagliarulo Hodgson addressed the Board on behalf of Century 21 Northshore and stated they are requesting the Board modify the Variance at 16 Dodge Street (French Bridal) and replace it with a real estate use. MOTION: Mr. Levasseur moved to close the public hearing. Second by Ms. Gougian. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Ms. Gougian moved to GRANT the Modification to the existing Variance Granted on August 9, 1976 and convert the existing dwelling originally designated as an art gallery to office space. Second by Ms. Caldwell. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. B. Glovsky & Glovsky on behalf of Beverly Airport Self Storage, LLC Original request March 2017 In a petition for a request for a Special Permit to allow the premises situated at 105 Sam Fonzo Drive to be developed for mini - warehouse storage use in the IR Zoning District, under Section 300- 42(C)(i) of the Beverly Zoning Ordinance, together with such other relief that may be required to authorize the construction of the proposed project. The property is located at 105 Sam Fonzo Drive in the IR zoning district. Applicant seeking a Minor Modification Miranda Gooding, Esq. (Glovsky & Glovsky) addressed the Board and stated they are seeking to modify the set of plans approved by the Board in March 2017 to authorize mini storage use. The Use is not changing but there were changes made to the Site Plan as a result of the Page 10 of 16 Conservation Commission's comments. Two storage buildings were reduced in size from what the Board had approved and drainage had to be relocated. A summary of the changes has been submitted with the revised plans. Mr. Margolis stated the Design Review Board reviewed this without any issues. MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Ms. Caldwell moved to GRANT the Minor Modification requested for the Special Permit decision issued in March 2017 in accordance with the plans and request submitted. Second by Mr. Battistelli. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. C. Windover Construction In a petition for a request for a Minor Modification of Special Permit granted at 19 Chipman Road on February 17, 2015 in the R10 zoning district. Miranda Gooding, Esq. (Glovsky & Glovsky) addressed the Board and stated they are requesting a minor modification to a Finding by the Board issued in February in 2015 to authorize a second story addition on a non conforming dwelling. The addition that the Board approved was to add a second story to accommodate a disabled relative. Windover Construction is assisting Ms. Robinson with the redesign of this building. The contractor originally hired to build the addition started the job, took the money and left and so members of the community have rallied together to help Ms. Robinson. The plans are the same but now the house will be demolished and rebuilt on the same footprint so because it is a reconstruction and not an addition it needs a new Finding from the Board. MOTION: Mr. Levasseur moved to close the public hearing. Second by Mr. Battistelli. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Ms. Caldwell moved to GRANT the Minor change to the Finding issued by the Board dated February 4, 2015 to reflect the house at 19 Chipman Road will be demolished and reconstructed on the same footprint instead of a second floor being added onto a previously existing one story home, subject to the revised plans submitted. Second by Mr. Levasseur Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. Page 11 of 16 III. REOUEST FOR EXTENSION A. Glovsky & Glovsky on behalf of Vitality Senior Living, LLC Original request In a petition for a request for a Special Permit and a Variance to authorize a subsidized elderly housing facility in the IR district, in accordance with Section 300- 42.C(1)(a) of the Zoning Ordinance, where the affordable unit requirement will be satisfied by payment of a fee in lieu of on -site units. The assisted living facility will include 118 residential suites, together with associated common dining, learning and recreational facilities and a parking garage. The property is located at 50 Dunham Road in the IR zoning district. Applicant seeking six month extension of Variance through June 8, 2018 Miranda Gooding, Esq. (Glovsky & Glovsky) stated they are seeking an extension. The applicant had anticipated being under construction later this fall, however, one of the new facilities is in Houston under construction and they are delayed due to weather events there. They will not be underway until Spring 2018 and so they are seeking a six month extension of the Variance. MOTION: Mr. Battistelli moved to close the public hearing. Second by Ms. Caldwell. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Mr. Levasseur moved to GRANT the extension for the Variance for Vitality Senior living at 50 Dunham Road for six months through June 8, 2018. Second by Mr. Battistelli. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. IV. NEW PUBLIC HEARINGS A. Montrose School Park, LLC In a petition for a request for an Appeal of the Building Commissioner dated July 7, 2017 on petitioner's application for a grandfathered Lot determination, ruling that the subject property is not a buildable lot. The property is located at 108 West Street in the R45 zoning district. Donald Pinto, Esq. stated the applicant is appealing the decision of the Building Commissioner dated July 7, 2017 that 108 West Street is not a grandfathered lot and is not buildable. The Lot was created on February 14, 1956 by the recording of an ANR plan endorsed by the Planning Board. At that time the City only had one single residential district and that Lot was fully conforming at that time. The Board needs to interpret whether the Lot is covered under the 1958 Zoning Ordinance and determine whether it is grandfathered in and a buildable lot. At the time, 108 West Street was commonly owned but that doesn't remove it from the grandfathered protection. Atty. Pinto stated the Board has to find that the Zoning Ordinance at the time didn't include commonly owned property in 1958. In 1960 the land was conveyed in separate ownership and has remained that way since and so there was no merger that would interfere with that. Page 12 of 16 Marshall Handly, Esq. (Handly & Cox) addressed the Board and stated this has been going back and forth since 2013. Atty. Handly stated he agrees with Atty. Pinto that the critical issue is the interpretation of the language of the 1958 Zoning Ordinance. Atty. Handley stated the lot was not a lot of record when it was placed in the single family district and that is the only provision that would grandfather this lot in. Atty. Handly stated the Building Commissioner's decision should be upheld. Atty. Pinto stated Atty. Handly is confusing the Lot with the land. The Lot became of record in 1956, prior to that it was just part of a large parcel of land and prior to the 1958 Zoning Ordinance this Lot was buildable. Ms. Caldwell read correspondence from Robert Lewis, 903 Hale Street in opposition into record. Ms. Caldwell read into record the petition in opposition signed by several abutters. Ms. Gougian read the email received from Ralph Cerundolo (104 West Street) in favor into record. Atty. Handley stated the history is that it was never intended to be built on it, it was kept as such, it was taxed as such. Atty. Pinto stated there is case law supporting city ordinances protecting grandfathered lots and that's what applies not the Ch.40A statute. MOTION: Mr. Battistelli moved to close the public hearing. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Ms. Gougian moved to GRANT the Appeal submitted by the Montrose School Park LLC to overturn the Building Commissioner's decision dated July 7, 2017 ruling that the subject Lot is not buildable. Second by Mr. Levasseur. Votes (Opposed: Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion Fails. B. Expose Signs In a petition for a request for a Special Permit to provide relief of duration of temporary sign display. The property is located at 101 Rantoul Street in the CC zoning district. Andy Clark stated on behalf of Expose Signs that they are seeking relief for the temporary sign duration. They would like to put a temporary sign on the side of the building. They have been before the Design Review Board and have made some changes based on their comments. Mr. Clark stated the 14 -day sign duration really applies to retail businesses where they have sales. Leasing of space has a longer duration. This property underwent major renovations and they are requesting to have the banner up for two years. Mr. Clark stated there are other businesses with Page 13 of 16 similar banners that have been up for almost one year. It's affordable housing, rather than market rate. The building name has been changed to Station 101. There is onsite maintenance staff should there be any issues. Mr. Andrews asked if there is any lighting in the sign and Mr. Clark said there is not. Ms. Gougian stated these types of signs are similar to those flags people put out and it just looks like clutter. They are redoing Rantoul Street and its looking nice. The Board discussed approving the duration for one year, not two years as requested. Ms. O'Brien stated they could get the same affect with a smaller sign. Mr. Margolis stated they did come before the Design Review Board and they did redesign some of it. Mr. Clark stated the Design Review Board did narrow it down and simplify it. MOTION: Ms. Caldwell moved to close the public hearing. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. Ms. O'Brien asked if the banner will look good a year from now and Mr. Clark stated it is a vinyl fabric with a life span of about five years. MOTION: Ms. Caldwell moved to GRANT the request for a Special Permit for a temporary sign at 101 Rantoul not to exceed one year, subject to the plans submitted and approved by the Design Review Board. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. C. Brian and Jennifer Akeley In a petition for a request for a Special Permit and Finding to construct an addition to the left side of the existing house. Addition to have a front setback of 10.1' where 20' is required. The property is located at 25 Cliff Street in the R6 zoning district. Jamie White, Architect addressed the Board on behalf of the applicants and stated they currently live in a 700 sq. ft. house with two young children. The house has three bedrooms with a bathroom on the bottom level. They are looking to add a master bedroom and a bathroom upstairs and a new living room downstairs. The Lot is nonconforming due to the existing setbacks. The only place to put the addition is on the left side of the house. The laundry will be relocated upstairs. Mr. White reviewed the plans and the elevations. The roof ridge will go where the existing roof is. The existing roof is complicated and so this option reduced the cost significantly. There will be a deck added. Mr. White submitted a petition signed by abutters in favor of the proposed addition. Page 14 of 16 John Frederickson, 26 Cliff Street stated he is a direct abutter and he has no objection to the setback or the plans. The houses are old and sit close to the street so they sort of alternated the houses as far as set backs. Mr. Frederickson's only request would be to take into consideration that the addition looks directly at his house and to consider placement of windows for privacy instead of looking directly into his living room. Jeffrey, 27 Cliff Street stated he is a direct abutter and they are a great family. The design is nice and fits right in the neighborhood. MOTION: Mr. Levasseur moved to close the public hearing. Second by Ms. Gougian. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Mr. Levasseur moved to Find the addition is no more detrimental to the neighborhood, subject to the plans submitted. Second by Mr. Battistelli. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. D. Robert Guay In a petition for a request for a Variance to erect a 24' high garage where 15' is allowed with a left side setback of 3.6' where 15' is required. Garage to be located on existing garage footprint. The property is located on 5 Miller Road in the R15 zoning district. Mr. Guay addressed the Board and stated he bought the house in 2004. Mr. Guay grew up working on cars with his father and so he would like to raise the garage roof so that he can put in a lift and work on cars. The garage is nonconforming because it is not set back. The Lot is a long rectangle shape and the backyard trails off and there are drainage issues back there. Mr. Guay is just looking to use the existing foundation and go up 11' higher the existing 13.5'. Ms. Gougian asked if he is planning to have a business and Mr. Guay said he is not, it will just be his cars. Mr. Guay stated the hardship is due to the shape of the Lot he can't build a garage in the back and re -slope the driveway. Also in 2007 they had 13" of rain that flooded the whole back area. MOTION: Ms. Gougian moved to close the public hearing. Second by Mr. Levasseur. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. Mr. Battistelli asked the applicant why he needs the full height of the garage all the way across. Mr. Guay stated the attic storage is taken up central air duct work and so he is looking for storage space. Page 15 of 16 MOTION: Ms. Caldwell moved to GRANT the Variances for both the height and exceeding the minimum yard setback based on the hardship created by the topography and soil conditions as well as the position of the existing structure on the lot, subject to the plans submitted. Second by Ms. Gougian. Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. III. OTHER BUSINESS MOTION: Mr. Levasseur moved to approve the August 24, 2017 Minutes. Second by Ms. Caldwell, Votes 5 -0 (Margolis, Caldwell, Gougian, Levasseur, Battistelli) Motion carries. MOTION: Mr. Battistelli moved to adjourn the meeting at 10:45pm. Second by Ms. Gougian. All in favor. Motion carries. Page 16 of 16