Zoning Board of Appeals - Feb 9th, 2021

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Meeting conducted via remote participation. Meeting materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1264.

Thorndike Place Comprehensive Permit

The board votes to continue the Thorndike place hearing until February 16th.

Approval of Minutes

The board approves minutes from their January 26th meeting.

Docket 3642 - 64 Brattle Street

This is a continued hearing. The petitioner is appealing the decision of the building inspector. They have a lot at 64 Brattle street which is non-conforming with respect to frontage (less than 50') and a house which is non-conforming with respect to side and rear yard setbacks. The petitioners would like to demolish the non-conforming house and build a conforming one in its place. However, the building inspector believes that voluntary demolition of the building wound constitute abandonment, and render the lot unbuildable.

There is one other factor in this case. The lot in question was an L-shaped through lot, with frontage on both Brattle and Summer streets. In 1963, the owner petitioned the ZBA to subdivide off the section adjacent to Summer street. The non-conforming lot (with insufficient frontage on Brattle street) was created by this subdivision. (See hearing material for further details.)

(David Mack, Attorney for the Petitioner) Mr. Mack says this case concerns a two-family structure. The applicant wishes to demolish and reconstruct the building, removing the non-conforming side and rear yard setbacks. Mr. Mack has submitted a memo and relevant case law to the board. Town Counsel has provided a memorandum to the board, and Mr. Mack has written a reply.

The lot was created in 1963; it has sufficient area, but insufficient frontage. We asked the building inspector if we could demolish the building and rebuilt. The building inspector said 'no', and stated that demolishing the structure would extinguish protections for the non-conformity. Mr. Mack believes this was an erroneous decision.

The last hearing put substantial focus on the meaning of "reconstruction". Mr. Mack believes that reconstruction doesn't require a building to be in the exact same location. The definition of "alteration" in Arlington's zoning bylaw includes the word "reconstruction" and allows for a change in location. In light of that definition of alteration, Mr. Mack feels that section 8.1.3(B) permits demolition and a change of location. As defined, alteration allows demolition and construction. He believes this should be by-right, as it does not increase the non-conforming nature of the structure or the lot.

Mr. Mack wishes to raise a second point. Town counsels memo discusses "abandonment", and cases where demolition rendered a parcel of land vacant for some period of time. He believes these cases are not on point; both involve demolition and leaving the land vacant for several years. In this case, the applicants plan to rebuild the structure within the two-year period for abandonment.

Mr. Mack notes that town counsels memo talked about section 8.1.3(B) and rebuilding within the existing foundation. Mr. Mack feels that's not an exclusive requirement.

Finally, there is the 1963 variance. The ZBA allowed the lot to be created with insufficient frontage. The house was built decades earlier, and the variance didn't create the non-conforming yard setbacks. Mr. Mack points out that MGL Chapter 40A Section 6 is the minimum set of protections afforded to one- and two-family homes, and he believes Arlington's zoning bylaw is more liberal.

(Patrick Hanlon, ZBA) Mr. Hanlon asks why Mr. Mack used the term "variance" when referring to the 1963 ZBA decision.

(David Mack) Mr. Mack says it could be a frontage waiver. A later plot plan refers to the decision as a variance.

(Patrick Hanlon) Mr. Hanlon believes that reconstruction doesn't cover a change in location.

(David Mack) Mr. Mack believes that "construct" and "reconstruct" both contemplate changes to a building. He feels that these words are just adding detail to ways an alteration can occur.

(Patrick Hanlon) Mr. Hanlon asks if demolition and reconstruction would fall under the guide of alteration.

(David Mack) Mr. Mack thinks they could be considered as an alteration or a reconstruction.

(Steve Revilak, ZBA) Mr. Revilak wishes to clarify that the existing building is non-conforming with respect to side and rear yard setbacks, and the new building will remove these non-conformities.

(David Mack) Mr. Mack says that's correct.

(Steve Revilak) Mr. Revilak cites a clause from section 8.1.1(A): "It is the purpose of this Bylaw to discourage the perpetuity of nonconforming uses and structures whenever possible." With that clause in mind, Mr. Revilak believes the removal of non-conformities is a step in the right direction. However, there's still the matter of the insufficient frontage. He asks Mr. Mack if the ZBA issued a variance in 1963.

(David Mack) Mr. Mack says it's not clear from the records. He thinks it was an implicit variance, as the ZBA knew it was creating a lot with insufficient frontage.

(Christian Klein, ZBA Chair) Mr. Klein asks a question about abandonment.

(David Mack) Mr. Mack thinks this is a case where Arlington's zoning bylaw needs to be read in conjunction with Chapter 40A section 6. He doesn't think our bylaw's definition of "abandonment" trumps the protections in Section 6. He feels the two-year period has to factor in. If they demolished the building and waited five years to reconstruct, then they would have lost the protections.

The chair opens the hearing to public comment.

(Chris Loreti) Mr. Loreti wonders why no one is talking about the Bjorklund decision, which says that building a larger house on a non-conforming lot cannot be done by right. He reads part of the decision. He believes that the ZBA did not grant a variance in 1963; rather, they only approved the creation of a non-conforming lot.

There are no further comments from the public.

(David Mack) Mr. Mack says the issue before the board is an appeal of the building inspector's determination. He says that many of the cases involving non-conforming lots involved undersized lots, and those might require a special permit. He says Bjorklund didn't involve demolition and rebuilding on a lot of sufficient size, while removing existing non-conformities. This proposal doesn't involve increasing the size of a house on an undersized lot.

(Christian Klein) Mr. Klein notes that the question is whether the building inspector made the correct determination.

(David Mack) Mr. Mack agrees. The building inspector believes that razing the house would render the lot unbuildable. That is the decision they are appealing. They have not submitted plans nor filed for a building permit yet.

(Patrick Hanlon) Mr. Hanlon begins by summarizing the facts in this case, and the history of the lot subdivision. If we were only thinking about this single case, then Mr. Hanlon would find it attractive to move in the direction the applicant it leaning. However, he thinks that agreeing with the applicant would have very broad consequences, because Arlington has a large number of non-conforming lots. So, it's important that we're willing to live with the principle.

Mr. Mack is asking us to overturn a longstanding interpretation of Arlington's bylaw. Typically, we'd require some preservation of the existing structure. Mr. Hanlon thinks this is a difficult ask. He says the case is governed by section 8.1.1 of the zoning bylaw and the second except clause in 40A section 6. And, our ZBL acts to discourage the perpetuity of non-conformities.

Mr. Hanlon says that "reconstruct" is not defined in Arlington's bylaw, nor in state law. He agrees with town counsel's opinion that reconstruction involves creating a substantially similar structure. He thinks that demolition would constitute abandonment, and notes that abandonment can be an instantaneous action. He believes that "alteration" implies a connection to an existing structure, and the board should not take the view that reconstruction is the same as alteration.

Mr. Hanlon says the board doesn't need to adopt broad circumstances to deal with the special conditions created by the 1963 ZBA decision. He makes a motion to uphold the building inspector's decision, noting that the applicant can pursue other avenues.

Board votes 5--0 to uphold the decision of the building inspector.

Docket 3645 - 5 Forest Street

The petitioners wish to establish a consumer service establishment in the B1 district, which requires a special permit.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor represents Swifty Printing. They'd like to relocate to 5 Forest street, which is in the B1 district. The B1 district requires a special permit for consumer service establishments with fewer than five employees. She says that Swifty Printing is a staple of Arlington. They have two full-time and one part-time employees. She says they will not overload municipal services or cause an excess of use in this particular area.

(Roger Dupont, ZBA) Mr. Dupont asks Ms. Winstanley O'Connor to explain how she arrived at the "Consumer service establishment" use.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says she went through the uses under "Personal, Consumer and Business Services" and felt that Consumer Service Establishment was most appropriate.

(Steve Revilak, ZBA) Mr. Revilak points out that "Copy center or print shop for sheet-fed printing" is a use listed in the table. He asks why that use isn't applicable here.

(David Wooldridge, Swifty Printing) Mr. Wooldridge thinks that use describes something like a UPS or Staples copy and print center. He says that's not what Swifty Printing does. He believes his business will have a low impact on this location.

The chair opens the hearing to public comment.

(Ann LeRoyer) Ms. LeRoyer supports Swifty Printing moving into this location. She questions the statement that 1--3 customers will visit the business in any given day (this statement appeared in the application materials). She thinks the number will be higher. She asks how the rest of the building will be used.

(Christian Klein, ZBA) Mr. Klein asks how the applicants estimated 1--3 customers/day.

(David Wooldridge) Mr. Wooldridge says that business is cyclical, and that 1--3 is an average. Some days there could be more, and some days there could be less.

(Christian Klein) Mr. Klein asks what the maximum number of customers would be.

(David Wooldridge) Mr. Wooldridge thinks the maximum would be five. He says that customers generally come to the shop to view proofs, or to pick up finished product.

(Christian Klein) Mr. Klein asks if they plan to rent the whole building.

(David Wooldridge) Mr. Wooldridge says they plan to use the first floor of the two-story building. The second floor has a one-bedroom apartment, which is currently vacant. They plan to look for a tenant for the second building.

(Chris Loreti) Mr. Loreti says he looked at Swifty Printing's website, and it seems like their primary product is printed material. He thinks the idea that this is a consumer service is a fiction. He says that the B1 district is for lots formerly occupied by single-family homes, and not for intensive uses.

(Christian Klein) Mr. Klein asks about printing vs graphic design.

(David Wooldridge) Mr. Wooldridge says the website is outdated. They do offer printing services, and some of that is done off site. He says that most of their work involves digital file manipulation.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor believes this will be a less intensive use than the business which was previously on the site.

(Christian Klein) Mr. Klein note that there used to be a commercial print shop on this site, until 1994.

There's no further public comment.

Special permit granted.

Meeting adjourned.