MINUTES MANCHESTER-BY-THE-SEA ZONING BOARD OF APPEALS. Meeting May 23, 2018

Transcription

1 MINUTES MANCHESTER-BY-THE-SEA ZONING BOARD OF APPEALS Meeting May 23, 2018 Members Present: Bridget Murray, (Chairman), James Diedrich (Clerk), Sarah Mellish, John Binieris, and Kathryn Howe. Members Not Present: Michael Sullivan. Ms. Bridget Murray, the Chairman, called the Meeting of the Manchester-by-the-Sea Zoning Board of Appeals ("ZBA") to Order at 7:02 p.m. Ms. Murray introduced the ZBA members to those in attendance. It is noted that the typed minutes represent the permanent record of the Board. The format of the hearing was explained to those in attendance by the Chairman. Ms. Murray explained the standard ZBA meeting procedures to the applicants and to the public. Ms. Murray stated that as Chairman of the ZBA, she has made the determination to close the meeting to go into an Executive Session to discuss pending litigation, and we have finished our discussion, we will return to open session. The applicants and audience stepped out into the hallway for 10 minutes, and then returned to the meeting room. NEW APPLICATIONS Ms. Murray introduced the application of Montserrat Vera-Llonch, for a Variance under Section of the Zoning By-Law, and/or other relief as may be necessary, to add 6 inches to front porch deck, to match the existing roof above the porch, at 16 Overledge Rd., Assessor s Map 5, Lot 32, District C, filed with the Town Clerk on April 12, Mr. Vera-Llonch explained that the purpose of the project is to increase the front porch (concrete, which will be covered with wood) deck 6 inches to align with the existing roof above the porch, which is a minimal modification and strongly suggested by the contractor to avoid the current issue of water runoff into the basement. The existing porch is already too close to the road, and this will be increased by an additional 6 inches. Ms. Murray explained that this application is requesting Variance relief which has a higher standard than a Special Permit. The Variance By-Law requires the ZBA to find a hardship, dependent upon soil, topography, shape or size of the lot, in order to grant the Variance. Ms. Murray explained that the applicants are required to provide a photograph or drawing of the project, and the applicants have not provided this information. Mr. Diedrich stated that he communicated on April 9 th via with the applicants explaining all the issues regarding this application, as well as the requirements necessary to grant a Variance. Mr. Diedrich explained that the southwest corner of this house is almost within the setback. The concrete porch is in the setback, so your proposed project will increase the non-

2 conformity, which is why you require a Variance. Mr. Diedrich added that neither the applicants nor a representative was present at the site visit on Monday, May 21 st. Ms. Murray opened the board member discussion. Mr. Binieris stated that he didn't see any issues with the proposed project, and the fact that the porch was in poor condition and had to be demolished and replaced to meet the required building standards is the hardship, but added that the contractor should be present to explain the technical details to the ZBA. Ms. Murray stated the curve in the road is the cause of part of the house being too close to the road. If this were a rectangular lot, there would not be an issue with the additional 6 inches, so there is a hardship with the lot's shape. Mr. Diedrich stated that aligning the porch with the roof is not an issue of hardship, and suggested installing a draining system for the water runoff. Mrs. Vera-Llonch explained that they have already installed a drainage system. Ms. Mellish stated that this is an existing dwelling that has a porch that was built within the setback, and I feel that this is a hardship with respect to the shape and topography of the land or structures, due to the curve in the road. Ms. Murray asked if there was anyone present from the neighborhood, and there was not. Mr. and Mrs. Vera-Llonch stated that their neighbors didn't have any issues with the proposed project. There were no further questions or comments from the ZBA members or the public. Ms. Murray made a motion to approve the application of Montserrat Vera-Llonch, for a Variance under Section of the Zoning By-Law, and/or other relief as may be necessary, to add 6 inches to front porch deck, to match the existing roof above the porch, at 16 Overledge Rd., Assessor s Map 5, Lot 32, District C, filed with the Town Clerk on April 12, Based on the finding that there is a hardship based upon the size and shape of the lot, vis-à-vis the setback to the road. Provided that the proposed project be constructed according to the specific plans provided. Ms. Mellish seconded the motion. Vote: Ms. Murray, Ms. Mellish, Mr. Binieris and Ms. Howe voted unanimously in favor of approving this application. Mr. Diedrich voted against approving the application. Ms. Mellish will write the decision, and Ms. Murray will review it. Documents Produced: Permit to Build #B (1 page). Proposed Plot Plan, prepared by LeBlanc Survey Associates, Inc., signed and stamped by Vernon J. LeBlanc, dated March 22, Page 2

3 Ms. Murray introduced the application of Michael and Kristen McLaughlin, for a Special Permit under Sections 6.1.2, 4.7, and 7.5 of the Zoning By-Law, and/or other relief as may be necessary, to tear down the existing home and construct a new home, at 22 Walker Road, Assessor s Map 32, Lot 16, District A, filed with the Town Clerk on April 25, Kristen and Michael McLaughlin (currently residing at 26 Bradley Road, Danvers, MA 01923) introduced themselves and Ms. McLaughlin explained as follows: We entered into a Purchase and Sale Agreement for 22 Walker Road (located in the Flood Control District) and we are set to close tomorrow (May 24, 2018). We plan to tear down the greenhouse that is currently on the property and build a new structure (2,800 square feet). Mr. Mike O'Neill is the civil engineer on the project, has ensured that this property is not located in a wetland, and that all the zoning setbacks and other requirements are met. We have also contacted the Conservation Commission, and everything appears to be in order, with the exception of the ZBA Special Permit. Mr. Mike O'Neill from JM Associates, North Reading, MA, the engineer on this project introduced himself and explained that the proposed project will result in a reduction of 51 square feet of impervious surface on the lot. The driveway turnaround will be made of pavers. A drain will be installed around the perimeter of the proposed house that will capture the water runoff from the back of the house. Ms. McLaughlin stated that she has spoken to all the abutting neighbors, and there isn't anyone opposed to the proposed project. Three neighbors are present this evening. Mr. James Aldrich, 20 Walker Road, who has been a builder for over 40 years, thinks the proposed project is "awesome." There were no further questions or comments from the ZBA members or the public. Ms. Murray made a motion to approve the application of Michael and Kristen McLaughlin, for a Special Permit under Sections 6.1.2, 4.7, and 7.5 of the Zoning By-Law, and/or other relief as may be necessary, to tear down the existing home and construct a new home, at 22 Walker Road, Assessor s Map 32, Lot 16, District A, filed with the Town Clerk on April 25, Based on the finding that the new home will not be substantially more detrimental to the neighborhood than the existing home, and will not exacerbate any of the flooding conditions in that area. Provided that the proposed project be constructed according to the specific plans provided. Mr. Diedrich seconded the motion. Vote: Ms. Murray, Mr. Diedrich, Ms. Mellish, Mr. Binieris and Ms. Howe voted unanimously in favor of approving this application. Mr. Diedrich will write the decision, and Mr. Binieris will review it. Documents Produced: Cover letter to the ZBA from Kristen McLaughlin, dated April 25, 2018 (2 pages). Exhibit A ZBA Application for Special Permit (2 pages). Page 3

4 Exhibit B Notarized letter of support from current owner of 22 Walker Road, Robb Erikson, dated April 23, 2018 (2 pages). Exhibit C Narrative from Civil Engineers, JM Associates, dated April 24, 2018 (2 pages). Exhibit D Plan of Land Currently, prepared by JM Associates, dated April 24, 2018 (1 page). Exhibit E Proposed Plan of Land, prepared by JM Associates, dated April 24, 2018 (1 page). Exhibit F Proposed First and Second Floor Plans, prepared by Moretti Designs, dated April 2, 2018 (1 page). Exhibit G Portion of Purchase and Sale Agreement, dated April 4, 2018 (1 page). Exhibit H Front Elevation and Right Side Elevation, prepared by Moretti Design (1 page). Ms. Murray introduced the application of Matthew Genta, for an Appeal of an Administrative Decision under Section and a Variance under Section of the Zoning By-Law, and/or other relief as may be necessary, to allow for the continuation of the current two dwellings residential use of the property, at 1 and 3 Boardman Avenue, Assessor s Map 24, Lot 31, District E, filed with the Town Clerk on April 25, Attorney Orestes Brown introduced himself as the attorney representing the applicant, and also introduced the applicant, Mr. Matthew Genta. Mr. Brown explained as follows: This property came before the ZBA in 2014, when a Special Permit was granted to enlarge the dwelling at 1 Boardman Avenue. That Special Permit was vacated by the Land Court approximately one year ago. The Judgment also stated the current use of 3 Boardman Avenue as a dwelling may not be continued. Subsequently, the Building Inspector sent Mr. Genta an Order to cease and desist the use of 3 Boardman Avenue as a dwelling. Chapter 40A, Section 7 clearly states that any use done in accordance with a Building Permit issued by the town may not begin an action to discontinue or abandon that use after six years. The Building Permit for 3 Boardman Avenue was issued in 1957; therefore, the case is closed on bringing any action to require discontinuing its current use. The Judge overturned the ZBA Decision because 1 and 3 Boardman Avenue was not a legally pre-existing non-conformity use. There was no sufficient proof the houses at 1 and 3 Boardman Avenue existed as residences before Zoning forbade two residences on one lot in that neighborhood in The Judge determined that our By-Law requires that a use be legally pre-existing in order to be expanded by a Special Permit. The Judge further stated that even if the property's use was legally preexisting, the proposed project requires a Variance. Mr. Brown continued to explain that the Land Court had only one issue before it. The Complaint only asked for an invalidation of the Special Permit. The issue of discontinuing or forcing the abandonment of the use of 3 Boardman Avenue was not an issue before the Court. We did not go to trial on that issue, so that issue was not litigated. Thus, the issue of Chapter 40A, Section 7 was never raised. Mr. Brown suggested input from Town Counsel regarding the Chapter 40A, Section 7 Statute of Limitations issue. Just because the Statute of Limitations runs does not make it a lawful use for purposes of zoning, so if an applicant wants to expand the dwelling, it would require a Variance. Page 4

5 Ms. Murray stated that in reading the Decision, it seems that the Land Court Judge is really saying there are two houses on the lot and they should not be used as two dwellings. It does make sense to have Town Counsel assess the more intricate legalities. Ms. Howe asked if this is one or two lots. Mr. Brown explained that in 1952, Ms. Lulu Nelson, the owner of the lot at that time, applied to the ZBA for a Variance to allow her to subdivide the one lot into two lots, in accordance with the 1952 plan. The Variance was granted to subdivide the lot and build the two houses in accordance with that subdivision. Ms. Nelson received the Building Permit, but neglected to go to the Planning Board for permission to subdivide the lots, thereby not completing the requirements of the Variance. This is the reason that the Judge determined that the terms of the original Variance were not met. Ten years ago, Mr. Anderson, the previous owner, got approval from the Planning Board to have the one lot divided into two. Ms. Stein stated that she will need time to review this case and then render an opinion, and asked Mr. Brown the nature of the Variance the applicant is seeking. Mr. Brown replied that Mr. Genta is requesting a modification of the 1952 Variance. Ms. Murray asked if anyone from the public would like to speak. Mr. Charles Pyle, 2 Boardman Avenue, reiterated his position that the Court's decision was clear in its decision, as well as the Building Inspector's Order. Mrs. Sara Pyle, 2 Boardman Avenue, stated that after Mr. Genta purchased the property, he deeded 3 Boardman Avenue to a friend, Mr. Gardner, and asked if the entirety of the property under Mr. Genta's ownership. Mr. Genta replied that he doesn't own both parcels. (One parcel is in Mr. Genta's name and one parcel is owned by a trust of which Mr. Genta and his wife are the beneficiaries). Mr. Genta stated that he controls the properties, pays the taxes, and rents out the houses. Mrs. Pyle asked for clarification about what Mr. Genta is asking of the ZBA: 1) Overturn the Court decision; 2) nullify the Building Inspector's Order; 3) modify the 1952 ZBA decision; and 4) grant a subdivision. Mrs. Pyle stated that this would be an extraordinary request of this land to support the proposed projects. Mr. Ron Skates, a neighbor, stated that part of Mr. Genta's current property was once a part of his property. Mr. Skates explained that his concern regarding overturning the Court's Decision is that the abutters and plaintiffs should be able to make their case as well, due to the confusing facts. Mr. Diedrich stated that there was a lot of information that was unknown when the ZBA heard this application over a period of almost one year, and there is information we are learning tonight that we didn't know then. Ms. Murray stated that her preference would be to continue this application while Town Counsel reviews this case. Ms. Murray asked for a clearer description of the Variance change that is being sought by the applicant. Ms. Murray filled out the Continuation form and Mr. Brown signed it. Page 5

6 Ms. Murray made a motion to continue the application of Matthew Genta, for an Appeal of an Administrative Decision under Section and a Variance under Section of the Zoning By-Law, and/or other relief as may be necessary, to allow for the continuation of the current two dwellings residential use of the property, at 1 and 3 Boardman Avenue, Assessor s Map 24, Lot 31, District E, filed with the Town Clerk on April 25, 2018, to the June 27, 2018 meeting. Ms. Mellish seconded the motion. Vote: Ms. Murray, Mr. Diedrich, Ms. Mellish, Mr. Binieris and Ms. Howe voted unanimously in favor of continuing this application to the June 27, 2018 meeting. Documents Produced: Notice of Violation letter to Matthew Genta from Paul M. Orlando, Inspector of Buildings, dated March 29, 2018 (1 page). Manchester-by-the-Sea GIS Viewer page of 1-3 Boardman Ave. (1 page). Existing Plot Plans/Drawings (3 pages). Cover letter and packet from Donald R. Pinto, Jr., Esq. from the law firm of Pierce Atwood LLP, representing the Two Boardman Avenue Nominee Trust, dated May 17, 2018 (by hand delivery) (27 pages). Cover letter and packet to the ZBA from the Boardman Avenue Association, dated May 21, 2018 (9 pages). ADMINISTRATIVE MATTERS ZBA Meeting Minutes: Review and approval of the April 25, 2018 minutes. The ZBA members had read and reviewed the minutes, suggesting some minor edits proposed by Ms. Murray and Mr. Diedrich that have been incorporated into the revised minutes. Ms. Murray made a motion to approve the April 25, 2018 minutes, as revised. Mr. Diedrich seconded the motion. Vote: Ms. Murray, Mr. Diedrich, Ms. Mellish, Mr. Binieris, and Ms. Howe voted unanimously in favor of approving the minutes, as revised. ZBA Application Revisions: The ZBA members discussed the current ZBA application and its potential changes. It was discussed and agreed upon that the ZBA application will be changed to state that one full original copy (for the Town Clerk file), and eight full copies be filed with the application (one for the ZBA file, and one for each of the seven members), and that all nine copies be 8-1/2" x 11" in size. However, this is listed in the By-Law as thirteen copies, and the ZBA will have to amend the By-Law through the Board of Selectmen. Mr. Diedrich stated that he ed Mr. Glovsky and Mr. Breuker, the two people who seemed to be most interested in possible changes to the revised (current) ZBA application, but has not heard back from either of them as yet. The ZBA members discussed the need for providing more room on the application for writing the narrative for the proposed project, which can be done without approval from the Board of Selectmen. Page 6

7 The original application provided information regarding which section(s) of the By- Law(s) the applicants are applying for, but the revised application does not include this information. It was also decided that Ms. Ardolino will the current and original application to the Board members for review and further revisions. Mr. Diedrich made a motion to adjourn the meeting. Ms. Mellish seconded the motion. Vote: Ms. Murray, Mr. Diedrich, Ms. Mellish, Mr. Binieris, and Ms. Howe voted unanimously in favor of adjourning the meeting. The meeting was adjourned at 8:45 p.m. Respectfully submitted, Adele Ardolino, Administrative Assistant Manchester-by-the-Sea Zoning Board of Appeals These Minutes were approved by the members of the Zoning Board of Appeals on June 27, N.B. These minutes are not verbatim. They are the clerk's interpretation of what took place at the meeting. Page 7