HomeMy WebLinkAboutMinutes - ZBoA - 12/01/2014 Minutes—Zoning Board of Appeals December 1, 2014
Members Present: S. Woodworth Chittick, Chairman
Charles Higginson
Benjamin Lacy
David McMorris
Jennifer Schultz
Member not Present: Peter Goedecke
Others Present: Attorney Kimberly Saillant, Deutsch/Williams
Jennifer Brennan Oram,Assistant Clerk, ZBA
Meeting held in the Board of Selectmen's Office,Town Hall.
Chairman S. Woodworth Chittick called the meeting to order at 7:1013M.
Chairman Chittick moved to go into Executive Session under Exemption 3,to discuss strategy with
respect to litigation,as a discussion in an Open Meeting may have a detrimental effect on the
litigating position of the body. The Board will reconvene in Open Session. Mr. Charles Higginson
seconded the motion. A roll call vote was taken:
Mr. Charles Higginson—Aye
Mr. Benjamin Lacy—Aye
Ms.Jennifer Schultz—Aye
Mr. David McMorris—Aye
Chairman Chittick—Aye
The Board returned to open session at 7:40PM.
Board Business
Approve Minutes—Chairman Chittick moved to approve the minutes of November 3, 2014 as
amended. Mr. Charles Higginson seconded the motion and the vote was unanimous.
The Board agreed that the next meeting of the Zoning Board of Appeals would be January 5, 2015.
CONTINUED HEARINGS/DELIBERATIONS
APPEAL - Filed by Attorney Philip B. Posner,on behalf of his clients,Jason and Carolyn Soules, of the
Building Inspector's denial of enforcement action at 392 Jerusalem Road (landowner David F. Crowley-
Buck,Trustee of 392 Jerusalem Road). File#14.08.22.
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Minutes—Zoning Board of Appeals December 1, 2014
After a brief discussion regarding the letter provided by Attorney Philip B. Posner requesting the
hearing be continued,Chairman Chittick moved to continue the hearing until January 5,2015. Ms.
Jennifer Schultz seconded the motion and the vote was unanimous.
APPEAL—Filed by Attorney Jay Talerman, on behalf of his clients,Alexander Koines of 380 Atlantic
Avenue and Stephen J. Crummey of 394 Atlantic Avenue,of the Building Inspector's decision to issue a
building permit for a single family home at 390 Atlantic Avenue(landowners John and Martha Shaw).
File#14.08.26.
Attorney Jay Talerman addressed the Board. He stated that he did not have much to discuss this
evening because they have already covered most of the ground a few times. He stated that he certainly
did not have any additional factual evidence to provide to the Board. He stated that he did recently
submit a memo (dated November 25, 2014) but the memo only underscored items previously discussed
and items that were transmitted to him by his Partner, Lisa Mead, from the previous meeting. Attorney
Talerman did want to address some printed comments he had read in the paper that Mr. David
McMorris had stated that the bylaw was ambiguous. Attorney Talerman stated that he did not think
that at all. Mr. McMorris said that is not what he said, what he said was that he felt the bylaw was
unambiguous. Attorney Talerman stated the Board is a quasi-judicial forum and sits as the judge and
jury and the trier of facts. He feels that his clients have the facts and the law on their side and he feels
there is only one way you [the Board] can come out; that it's quite clear. He thinks his memos say it all.
He stated he would be happy to answer any further questions. The Chairman asked if the Board thought
they needed anything further. Mr. Charles Higginson stated that he found the various memoranda
helpful. Attorney Talerman said he felt they were ready to close the hearing. Chairman Chittick asked
Attorney Talerman what the videos were being used for. The appellants have provided the Board with
the recording of the first hearing and will provide the remainder when they are available. Attorney
Talerman said they were being used to preserve the record as they are entitled to do, and he was
hoping not to have to use them. They are just keeping their own records. Ms. Schultz asked if the
videos had any running time data or metadata in the video. Attorney Talerman said that he is not sure
how sophisticated they are, but the hearings are short and the video is pretty clear.
Attorney Talerman stated that he did have a question. He saw the there was an Executive Session
beforehand, he said that he did see that the Executive Session was posted, but that he did not see
anything listed for a topic. Chairman Chittick stated that they would not typically list a topic except for
possible litigation to discuss strategy. Attorney Talerman stated that under the new Open Meeting Law
it is required that you identify the topic, and if the posting didn't list it, his view is that it comes a little
short. Attorney Talerman asked the Chairman if he wished to divulge the topic and if it has anything to
do with 390 Atlantic Avenue. The Chairman stated that it did. Attorney Talerman then asked what
exemption the Executive Session was under and he was told it was under Exemption 3. Ms.Jennifer
Schultz pointed out that the exemption is listed on the agenda.
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Chairman Chittick asked if Attorney Henderson had anything to add. Attorney Henderson told the Board
that he could not add much other than trust the cases that he submitted that all state a local bylaw can
be more liberal than the state statute, and this Town's bylaw is indeed more liberal than c 40A.
Chairman Chittick asked if the Board had any additional questions for either Attorney. They had none.
The Chairman then asked if anyone in the audience wished to speak. They did not. Chairman Chittick
moved to close the hearing. Mr. Lacy seconded the motion and the vote was unanimous.
Chairman Chittick stated that sitting with the Board is Town Counsel,Attorney Saillant, and in the
interest of time, he asked if the Board would like to deliberate now where they have such a full agenda.
They agreed they would. Chairman Chittick stated that Ms. Schultz had a draft decision that the Board
had received individually but had not yet discussed as a group. Chairman Chittick asked Ms. Schultz to
take the Board through her proposed findings. She stated she feels the appeal is properly before the
Board and reviewed how she came to her conclusion. On the merger question, she reviewed the
statutory background. She also listed all of the cases that had been submitted and discussed
extensively. She further reviewed the bylaws from other towns and cities that had been cited in those
cases. The conclusion that she comes to is that lot 12,the lot for which the building permit was issued,
remains a buildable, legally nonconforming lot pursuant to §8.3 of the Zoning Bylaw. She said that she
found the plain language of the bylaw most helpful and reviewed how she came to that conclusion.
Being that the plain language of the bylaw is clear, it would be improper to go beyond it because there is
no ambiguity. However, in addition to this, she reviewed the relevant cases that bolstered her
conclusion. She stated that some of the cases filed by the appellants, in fact, helped bolster her opinion
and those are discussed in her draft as well. Chairman Chittick asked if her final conclusion was that she
would deny the appeal. She stated she would. The Chairman asked the Board if they had any questions
for Ms. Schultz. Mr. David McMorris stated that the he felt the reasoning was very well done and very
clear. He stated that the appellant's argument of merger troubled him until he read the Delbac case.
Mr. Higginson stated he thought the decision was very well considered. He has a few small edits. Mr.
Benjamin Lacy stated that he was very convinced that the appeal should be denied. He feels that the S.
J. C. Case, Marinelli, is a very strong authority supporting denial. Chairman Chittick stated that the more
he read,the clearer it became. He stated that he agrees with Ms. Schultz' rational, her exposition and
her conclusion. After a brief discussion regarding the language of§8.3 in comparison to other towns
and the state statute, the Chairman asked if they Board would like to give Ms. Schultz the small edits
now or submit them to her after we render a decision? Attorney Saillant stated they do have time to
write a final draft of the decision. Chairman Chittick stated that since the time the Board had been sent
the proposed draft, additional memos from Attorney Talerman and Attorney Henderson had been
submitted and that the decision should mention those. Attorney Talerman asked if there had been a
subsequent submission by Mr. Henderson. Attorney Henderson stated that he thought he had emailed
it to everyone. Attorney Talerman stated not to him. Chairman Chittick stated that the Board had
received it and was sure Attorney Henderson would provide it to Attorney Talerman. Ms. Schultz stated
that all of the cases, laws and arguments presented by both Attorneys was duly considered. Attorney
Talerman stated that he was just trying to understand the chronology of when Attorney Henderson's
final memo was sent. Mr. Lacy stated that the content had been discussed by Attorney Henderson at
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the previous hearing. Chairman Chittick stated that there was nothing new [in the additional memo
provided by Attorney Henderson]. Ms. Schultz added that it was discussed at the previous hearing.
Attorney Talerman stated that he was not suggesting that it wasn't. Ms. Schultz stated that if it helped
streamline things, minor edits could be sent individually to her or they could go line by line now.
Chairman Chittick stated that given the workload ahead of them this evening, and being that they have
two weeks to file the decision, he thought that getting her the small edits is ok, as he does not feel they
are at all substantive. Mr. Lacy said that his edits were not [substantive]. The Chairman said if any
Board member had any substantive edits they would need to hear them now. There were none.
Chairman Chittick moved that the Board finds the appeal was lawfully called, that the appeal was
properly before the Board, that the Building Permit was properly granted and consequently that the
appeal of the issuance of the building permit should be denied. Mr. Charles Higginson seconded the
motion and the vote was unanimous(Chairman Chittick—Aye, Mr. Higginson—Aye and Ms. Schultz—
Aye).
At the end of the hearing, Attorney Talerman stated he has real issues regarding the Executive Session
and that he would be looking into it. As Attorney Talerman got up to leave, Mr. Crummey said "let's
head to court".
HEARINGS
SPECIAL PERMIT—Filed by Megan Hayes and Dan Ok. Seeks to construct a second story addition
within the existing footprint at 35 Elm Court. §8.7.2. File#14.11.06A.
Mr. Dan Olk, Megan Hayes and their Architectural Designer Brenda Tower, addressed the Board. They
are seeking relief to put a second story addition over an existing first floor. The proposed addition is in
the setback, but the footprint remains the same. Mr. McMorris asked for the percentages that would
show what the increase in massing is they are proposing. He added that the Board has been consistent
with this requirement and it helps with the determination if the relief being sought is more detrimental
to the neighborhood. Chairman Chittick said that it seemed that they would have to continue the
hearing and alerted the applicants that the Board will ask for"as built" plans to be filed with the Building
Inspector. Chairman Chittick asked if anyone in the audience wished to speak. No one did. Mr. Lacy
moved to continue the hearing. Mr. Higginson seconded the motion and the vote was unanimous.
SPECIAL PERMIT—Filed by Rosemarie McGillicudy seeking to restore a previously existing razed
garage with a new garage,family room and deck at 53 Bow Street. §§§8.8,9.7.8 and 9.11. File
#14.11.06B.
Mr. Lacy, a near neighbor to the subject property, recused himself from this hearing and left the room.
Attorney Richard Henderson and Ms. Carmen Hudson of Cavanaro Designs addressed the Board.
Attorney Henderson addressed the Board and apologized for the reference he made on the application
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which said that the previously existing garage had been razed. He said they now know that there was an
attached structure, but are uncertain if it was a garage. Ms. Hudson then reviewed the background of
the site. In 2000, the property came before the Zoning Board and the then owner sought relief for a
septic field that required a lot of fill. He also had to remove a portion of the structure to build the septic
field. The property is now on Town Sewer. The current owner, Ms. McGillicuddy, would like to attach a
22 x 22 garage,with living space and an attic above. The lot is 44,000 square feet, but it is still short of
the required 60,000 square feet. Bow Street is very narrow. The main structure is closer to the street
than the proposed garage. Also, prior to the change in the Flood Maps, only part of the lot was in the
flood plain, now the entire lot is within the flood plain. The proposed addition will be flood compliant
with three flood vents within the foundation. Under§9.11,the increase is only 60 square feet on the
ground foot print within the Flood Plain. The height on the proposed garage is 21.57 at the mid-point of
the ridge of the new roof(sheet NP-2). Mr. McMorris asked for increase calculations within the setback.
He noted that the percentages were not on the plan. Ms. Hudson will submit the information to the
Board. Attorney Richard Henderson submitted a letter of support from neighbor Jean White of 190
Jerusalem Road. Chairman Chittick asked if anyone in the audience wished to speak. They did not. Ms.
Schultz moved to continue the hearing. Mr. McMorris seconded the motion and the vote was
unanimous.
Mr. Lacy returned to the meeting room.
SPECIAL PERMIT—Filed by Cavanaro Consulting on behalf of landowner,Jeffry Schwartz, seeks to
change the grade within the Flood Plain; alteration of building within the front yard at 40 Hobart Lane.
§§8.7.2,9.7.8. File#14.11.06C.
Chairman Chittick opened the hearing. Mr. Higginson recused himself and moved to a seat in the
audience. Mr.John Cavanaro and Ms. Carmen Hudson addressed the Board. Mr. Cavanaro reviewed
the project for the Board. The existing house exceeds allowable height, extends into the front-yard
setback and is non flood compliant. They are before the Board seeking relief under§9.7.8 and also
under§8.7.2 for work on a garage located in the front yard setback. The drainage conditions on and
around the property are poor. The project will allow them to reconfigure the drainage by installing a
drainage system on the South East side of the property and have it discharge onto a private beach.
Chairman Chittick stated that he applauded what was being done to reduce the nonconformities, but
asked if there was a way to eliminate the setback nonconformity in its entirety. Mr. Cavanaro said that
the zoning bylaw requires a 50' setback in that area so it cannot be done. Mr.Tom Catalano,the
Architect on the project reviewed the plans for the Board. He explained that they are putting in a
driveway which needs to be at a certain grade. This will allow them to centralize parking on the lot and
take cars off of the street. There was then a conversation regarding the calculations within the setback.
Ms. Hudson stated that all of the calculations are outlined in the memo they submitted on November
25, 2014. There was then an extensive conversation about the height of the existing main dwelling and
the parking area.
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Minutes—Zoning Board of Appeals December 1, 2014
Ms. Hudson reviewed the stormwater plan for the Board. They will be going before Conservation
December 18th to review the plans. Chairman Chittick asked if the project would require ledge removal.
Mr. Cavanaro stated that most likely it would, but to what extend they were not certain at this point.
Mr. Cavanaro said there is an extensive landscaping plan. It was explained that they hope to
incorporate the ledge into the landscaping. The Chairman stated that the Town does have a ledge
removal bylaw, but for construction; not for landscaping. After further discussion, Chairman Chittick
moved to continue to the hearing. Mr. Lacy seconded the motion and the vote was unanimous.
Mr. Higginson then returned to his seat with the Board.
SPECIAL PERMIT—Filed by Cavanaro Consulting on behalf of landowners Hugh & Pam Kelly, seeks to
build an addition to an existing non-conforming accessory building at 15 Border Street. §8.7.2 File
#14.11.06D.
Mr.John Cavanaro and Ms. Carmen Hudson of Cavanaro Consulting addressed the Board. They
reviewed a previous application filed on this property. The project was never completed. The
proposed is a much smaller project. They are proposing to extend the existing garage back in order to
and add a second bay to the garage. Mr. Cavanaro then reviewed the site plan for the Board.
Chairman Chittick asked about the kayak rack that is presently attached to the garage. He stated that it
is considered a structure within the setback and would need to be removed. The applicants agreed to
do so. Chairman Chittick confirmed that the space above the garage would only be used as a guest
house. Mrs. Kelly said that it would only be used for extended family. Mr. Higginson asked for the
percentages for the additional fagade within the nonconformity. Ms. Hudson gave the Board the
following calculations;they are proposing 315 square additional feet in the fagade for a 36% increase,
the roof would increase by 52 square feet for a 15% increase and the footprint would increase by 154
square feet for, an increase of 35.3%of building footprint within the setback. After a brief discussion,
Chairman Chittick moved to continue the hearing. Mr. McMorris seconded the motion and the vote
was unanimous.
SPECIAL PERMIT—Filed by Cavanaro Consulting on behalf of landowner Steven Mathews&Cathy
Forest,seeks to setback conforming addition to existing non-conforming dwelling at 36 Parker
Avenue. §8.7.2. File#14.11.06E.
Mr.John Cavanaro and Susan Hoadley of Hoadley Martinez Architects addressed the Board. Mr.
Cavanaro reviewed the site plan for the Board. He stated that the lot is small. 18,000 square feet is
required, but the lot is only 7,072 square feet. It also excessive coverage. They are proposing to remove
the existing nonconforming garage which is likely currently within the side setback. They want to attach
a single car garage behind the existing house. This area is setback conforming. They can't increase
coverage where they are already nonconforming, so they are proposing to go up. Mr. Cavanaro stated
that they had already been before the Conservation Commission and they issued an Order of
Conditions. The Conservation Commission is pleased that they are eliminating the nonconforming
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garage. They will be putting in a driveway using permeable asphalt and pavers which work very well in
this area.
Ms. Hoadley then addressed the Board. She stated that the major advantage of the proposed project is
the removal of the garage. This will actually reduce the footprint. They will still be nonconforming in
coverage, but less so. She then addressed the height. Chairman Chittick said that he is concerned about
massing. Mr. McMorris said the Board's concern is the increase of massing within the setback. Ms.
Hoadley stated that they will actually be moving the structure out of the setback. After further
conversation, it was determined that they are removing more than they are adding, but they are going
up. The house will be going from 26' (to the ridge)to 32'+ (to the ridge of the addition), but is set way
back. Chairman Chittick asked if they could address §9.11. Mr. Cavanaro stated that they are altering a
pre-existing non-conforming structure within the Flood Plain. They are also removing the
nonconforming garage and replacing it with a driveway. He added that they are making improvements
to the lot, but no matter what they do, it will always be nonconforming. After further discussion
regarding the application, Chairman Chittick moved to continue the hearing. Mr. McMorris seconded
the motion and the vote was unanimous.
Topics not reasonably anticipated by the Chairman 48 hours in advance of the meeting:
Building Inspector, Robert Egan, discussed a letter he received from Axiom Architects regarding the
building height of 488 Jerusalem Road. The Board agreed that the Chairman will meet with Mr. Egan to
look into the issue and will get back to the neighbor who has complained about it being too high.
Chairman Chittick moved to close the hearing. Mr. Lacy seconded the motion and the vote was
unanimous. Meeting adjourned at 11:40PM.
Respectfully submitted,
Jennifer Brennan Oram
Assistant Clerk, Zoning Board of Appeals
Documents:
Motion to go into Executive Session.
Letter dated November 4, 2014 from Attorney Philip B. Posner requesting the hearing be continued for
392 Jerusalem Road.
Memo from Attorney Jay Talerman received via email on 11/25/2014, emailed to Board members on
11/26/2014.
Memo from Attorney Richard Henderson received via email 11/26/2014 emailed to the Board members
on 11/26/2014.
Stormwater Permit and Conditions for 53 Bow Street
Order of Conditions for 53 Bow Street
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Letter of support re: 53 Bow Street from Ms.Jean M. White
John Cavanaro Memo re: 40 Hobart Lane
John Cavanaro Memo re: 15 Border Street
John Cavanaro Memo re: 36 Parker Avenue
Letter from Christopher and Molly Kerr of 30 Parker Avenue in support of 36 Parker Avenue application.
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