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Home My WebLink About2009-02-19 Zoning Board of Appeals Minutesow~ CTown of Reading ZONING BOARD OF APPEAL Minutes of February 19, 2009 13 Members Present: Paul Dustin Robert Redfern John Jarema Peter Tedesco Jeffrey Perkins John Miles Members Absent: Clark Petschek Also In Attendance: Ellen Doucette, Town Counsel Glen Redmond, Commissioner of Buildings A meeting of the Zoning Board of Appeals was held in the Selectmen's Meeting Room of the Town Hall, 16 Lowell Street, Reading, Massachusetts, at 7:00 P.M. Case # 09-02 (Remand by the Land Court - Case # 08-01) Pursuant to a Remand Order issued by the Land Court on January 5, 2009, the Zoning Board of Appeals will hold a Public Hearing in the Selectmen's Meeting Room at the Town Hall, 16 Lowell Street in Reading, Massachusetts on Thursday, February 19, 2009 at 7:00 PM to further consider the petition of Sandra M. Carter for a Special Permit to demolish an existing single family dwelling on a non-conforming lot and to construct a new single family dwelling on the property located at 355 Franklin Street in Reading, MA (ZBA Case # 08-01) which led to the Board's decision, and will consider the application, as it may be revised and resubmitted by the Applicant, under, among other things, Sections 6.3.10 and 6.3.11 of the Zoning By-laws. The chairman gave a recap of why the Board was rehearing this case and stated that the matter before the Board involves an abutter's appeal from the grant of a special permit pursuant to Section 6.3.17 of the Reading Zoning Bylaws ("By-Laws) to allow for the voluntary demolition of an existing dwelling, and the construction of a new dwelling at the property located at 355 Franklin Street, Reading. On January 5, 2009 Judge Piper of the Land Court issued a Remand Order, which annulled the special permit, and ordered the matter to be remanded to the Board of Appeals for a new public hearing and further action on Sandra Carter's application (the "Application"). Specifically, Judge Piper ruled "as a matter of law that Section 6.3.17 of the Zoning Bylaws applies only when the prior use of the site involved was by special permit". ZBA Minutes, February 19, 2009 1 of 4 Judge Piper made no other determination on that discrete issue other than to comment that it is the "only plausible reading of Section 6.3.17". The Board of Appeals was ordered to make its decision on the Application "on the basis of either Section 6.3. 10 or Section 6.3.11 of the Reading Zoning Bylaws, with the Board to determine the applicability of either or both sections." Attorney Richard O'Neill, who is representing the owner, Sandra Carter, said he agreed with Town Counsel that Section 6.3.17 is the appropriate section for this case. He said the original application that was approved by the Board is the appropriate course of action. Town Counsel said only Sections 6.3.10 and 6.3.11 of the By-laws are before the Board at this time as remanded by the Court. Town Counsel thought the Board has been consistent in their use of Section 6.3.17 of the By-laws and the Court should defer to the Town's interpretation of this section. Town Counsel said she could ask the Court to reconsider the decision. The Board said they have other Section 6.3.17 cases that were continued and are awaiting the outcome of this particular case, and the Board thought Town Counsel's petition to the Court would be an appropriate direction to talce. Attorney Mark Favaloro, representing the abutter, gave his interpretation of the Court's ruling as to why Sections 6.3.10 and 6.3.11 were chosen as the appropriate sections of the By-laws for this case by Judge Piper. Although he did not think Section 6.3. 10 was applicable, he did think Section 6.3.11 was appropriate for this case. Ron Weston, 63.Blueberry Lane, said certain standards and questions protecting the character of the neighborhood were not applied when the Board granted the Special Permit under Section 6.3.17. The Building Inspector agreed that Section 6.3.17 was the appropriate avenue for this case. On a motion by John Jarema, seconded by Robert Redfern, the Zoning Board of Appeals moved to take a short recess to draft an appropriate motion with the help of Town Counsel. The motion was approved by a vote of 5-0-0 (Dustin, Redmond, Miles, Jarema, Tedesco). On a motion by John Jarema, seconded by Robert Redfern, the Zoning Board of Appeals moved pursuant to the remand order by the land court on January 5, 2009, at the location of 355 Franklin Street, Reading, MA, that ZBA Case # 08-01 does not meet the special requirements of Section 6.3. 10 of the Reading By-laws. The Board opinioned that Section 6.3. 10 does not apply in this instance, as remaned Case # 08- 01 is dealing with the demolition of an existing dwelling and the subsequent construction of a new residence or dwelling, as opposed to a use. The motion was approved by a vote of 5-0-0 (Dustin, Redmond, Miles, Jarema, Tedesco). ZBA Minutes, February 19, 2009 2 of 4 On a motion by John Jarema, seconded by John Miles, the Zoning Board of Appeals moved pursuant to the remand order by the Land Court on January 5, 2009, at the location of 355 Franklin Street, Reading, MA, that remanded ZBA Case # 08-01 does not meet the requirement of Section 6.3.11 of the Reading By-laws. The Board is of the opinion the Applicant has not made a new case or modified his case for his proposal from the original proposal made in January 5, 2008, ZBA Case 08-01. The original submission dealt with the complete demolition and removal of an existing dwelling and the construction of a new dwelling, larger than the existing one that would be demolished. Section 6.3.11 does not apply in this case because Section 6.3.11 of the By-laws deals with an expansion or enlargement of an existing dwelling, and Case #08-01 does not fit under Section 6.3.11 of the By-laws. The verbiage of the language in Section 6.3.11 does not address complete demolition or removal of an entire structure and the Board is hesitant to redefine an existing bylaw as Judge Piper and Attorney Favaloro are attempting to do. The Board wants to meet the By-laws to the greatest extent possible. The Building Inspector is also of the opinion demolition of an existing dwelling and construction of a new dwelling is not covered under Section 6.3.11 of the By-laws. The motion was approved by a vote of 5-0-0 (Dustin, Redmond, Miles, Jarema, Tedesco). Other Business The Chairman wanted to discuss what the Board would like to recommend regarding proposed changes to the sign by-laws. Some members thought the Zoning Board should not really be involved and felt the Building Inspector would adequately cover the areas that needed changes. The Chairman will contact the EDC and say that the EDC should speak to the Building Inspector who has an existing list of proposed changes and who is the best judge of what changes need to be made. On a motion by Robert Redfern, seconded by John Jarema, the Zoning Board of Appeals moved to notify the EDC that they should contact the Building Inspector for his list of proposed changes. The, motion was approved by a vote of 5-0-0 (Dustin, Redmond, Miles, Jarema, Tedesco). Nick Safina of the CPDC stayed to hear the sign discussion by the Board. The Board offered their opinions to Mr. Safina regarding the sign by-laws that they would like him to convey to the CPDC. Adjournment On a motion by Jeffrey Perkins, seconded by Robert Redfern, the Zoning Board of Appeals moved to adjourn the meeting. The motion was approved by a vote of 6-0-0 (Dustin, Redmond, Miles, Jarema, Tedesco, Perkins). ZBA Minutes, February 19, 2009 3 of 4 Respectfully submi tI ~ Maureen M. Knight Recording Secretary ZBA Minutes, February 19, 2009 4 of 4