REPORT: MEETING OF THE ZONING BOARD OF APPEALS (7/11/19)

by Hilda Greenbaum

Two consecutive meetings were held: first an administrative meeting to orient new members to the Zoning Board of Appeals (ZBA) and then a regular public meeting of the ZBA with public hearings.

Highlights:

• New members were introduced and proper conduct at ZBA meetings was reviewed.
• Approval of management plans for a non-owner occupied duplex at 320 West Street and for the new owner of Pasta e Basta.
• Approval of special permit for regulating lighting at ATM at 472 North Pleasant Street.
• Discussion of a proposed addition of a non-owner occupied rental at 119 N. Whitney. Nine abutters spoke in opposition. Areas where the project did not comply with the zoning bylaw were pointed out.   A more detailed management plan was requested and the hearing will be continued on August 8.

Administrative Meeting

Continuing members present: Mark Parent, Chair; Tom Simpson; Steve Judge; Joan O’Meara.

New members present: Sharon Waldman, Tammy Parks, Aaron Arcello.  Absent: Matthew Wilk 

Staff: Rob Morra, Building Commissioner; Chris Brestrup, Planning Director; (for Brandon Toponce, Senior Planner); Maureen Pollock, Associate Planner

The Charter increased the number of full members required at a hearing from three to five. Four “yes” votes are required to approve a Special Permit. The Chair announced that there are still vacancies for alternate members (one-year terms).

Orientation and expectations for conduct of the meeting:

1. Meetings start promptly at 6 p.m.
2. Members must act as professionals at all times even in the face of rancor in the room
3. Hearings start with the required legal introduction followed by member’s financial or other disclosures
4. Legal abutters who are ZBA members are allowed to participate but the chair strongly suggested recusal.
5. Report of the site visit is a time for members to ask questions. Not a public hearing but all information will be repeated at the hearing for the public record.
6. All submissions are read into the public record.
7. Conduct of the hearing by the applicant—members take notes of questions to ask after the presentation.
8. Public comment.
9. Rebuttal by applicant

What is a special permit for?  To be asked: is the use appropriate for specific location and how will it be used (regulated by Conditions on the Special Permit).

The Chair emphasized that he does not agree with the Town Meeting approval of the non-owner-occupied duplex bylaw which contains a caveat that the Special Permits expire on change of ownership. He prefers that new owners come in with a new management plan for Board approval. This condition also applies to some restaurants and bars. The Chair intends to recommend amending the bylaw.

The Chair also stressed that Special Permits can fix bad management issues because conditions on the Special Permit are enforceable with daily fines until problems are ameliorated. He feels that Town has more control over a two-family unit (with up to 8 tenants) with a Special Permit than a single-family rental with no permit. He asserted that many “problem properties” have been improved because approvals were granted with special permit condition vs. simply being denied.

Public Meeting

The ZBA approved unanimously a management plan and Complaint Response Plan for the new owner of the non-owner occupied duplex at 320 West Street, on the north-east corner of Mount Holyoke Drive.

The Board  approved unanimously the management plan for change of ownership of Pasta e Basta at 26 Main Street. They also deleted the caveat that the special permit expires on change of ownership to be replaced with a condition that requires a new owner to submit a new Management Plan for the ZBA review and approval at a public meeting. The new owner has worked there for ten years (six as manager) and plans no changes.

Public Hearings

ZBA 2019-24. Approved unanimously a modification to Special Permit ZBA 2000-09, Condition 2, regulating exterior lighting of the ATM kiosk at 472 North Pleasant Street.

ZBA 2019-22 .  Addition to 119 North Whitney Street.  The current owner and his son purchased the four-bedroom (1768 sq. ft.) Italianate Victorian house on June 17, 2019 from the Joy family, owner/residents of the house since at least 1955.  He has operated the house as a non-owner-occupied rental for the past three years and proposes to construct a four-bedroom addition to the east with parking for nine cars. Staff reports that “the proposed addition meets all setback requirements as found in the Zoning Bylaw” yet Board members noted that the accompanying table showed that the required 100-foot minimum frontage is not met (the frontage is 84.94 linear feet, which renders it a pre-existing non-conforming lot). The  Board must determine that a conversion from a one to a two-family property is “not substantially different in character or in its effect on the neighborhood or on property in the vicinity…. shall not be substantially more detrimental to the neighborhood than the existing non-conforming use or non-conforming building” per Section 9.22 of the zoning bylaw.

After the presentation by an  attorney for the applicant, the Chair cited the need for architectural elevations drawn to scale of the new and existing structure to ensure that they fit in with the heights of the houses in the neighborhood. The Building Commissioner mentioned the poor condition of the wall on the north lot line, the need for lighting and landscaping plans, and more detail in the site plan. More detail about entrance, egress and parking. He also noted that the new addition (per the bylaw definition that a duplex shares a floor or wall) barely shares a wall with the existing building, that the doors on the living and dining rooms, as well as the “sewing room” on the second floor allow those rooms to be used as bedrooms. In fact, sleeping accommodations for at least six persons were seen at the site visit, which happened in the last few days.

Public Comment

Nine immediate abutters made the following comments:

1. The proposal is not in character with the neighborhood of single family homes, occupied by families, many with children
2. Square footage of more than 1600 s.f. in each unit is very large
3. Many problems with parking of cars now
4. Though only two formal noise complaints, neighbors have constant problems with noise, parties and car lights shining into their homes at all hours of the night. They have talked to the tenants.
5. The permitted 25 guests/tenant is too many.
6. Students keep late hours
7. Safety of neighborhood children an issue with cars backing out of narrow drive
8. Who will “police” the number of tenants in the units?
9. This project will change the neighborhood
10. One abutter corrected the presentation: the home is not a colonial but an Italianate Victorian on the inventory of historic houses.
11. One abutter’s house has been in his wife’s family since 1902. There are no apartments in the neighborhood.
12. The daughter of elderly parents noted that there are parties every Friday and Saturday night, constant lights shining into her parents’ windows, cars constantly coming and going from the parking lot, the entire length of her parent’s yard. She gave the Board photos of 18 cars parked on the site one morning.
13. Noise level and parties are disturbing to her grandchildren
14. Another abutter noted that the property had been in disrepair and had been pleased when the new owner improved it.
15. Another abutter asked that the existing lighting be included in the plan, that a grading and stormwater run-off plan be submitted, that elevations of the basement door be presented, that the plantings be native species to provide shade and wildlife habitat as well as screening. She mentioned the number of birds and animals in the area.
16. Student housing should be on University Drive, not in his neighborhood.
17. A house that is currently a problem will become a double-problem house.

The Chair addressed the audience that the Special Permit will fix the problems. “Fines add up quickly,” he said, “and I have seen more examples of success with special permits than failures.”

Mr. Judge asked for a more detailed management plan with addresses of three people who will enforce it. He also requested larger doors on the living and dining rooms so that they can’t be used as bedrooms. The number and length of stay of guests needs to be addressed in an improved/more comprehensive lease.

The project must comply with the design guidelines in the bylaw. With all these suggestions to the applicant, the hearing was adjourned, to be continued on August 8 at 6:05 p.m.

The ZBA web page can be found here.

Disclosure: The writer is the General Partner of Green Tree FLP,  owner of 85 North Whitney Street—a mixed use property. Her son is an immediate abutter to 119 North Whitney Street.