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HomeMy WebLinkAbout2007-03-15 Zoning Board of Appeals Minutes0 K RECEIVED Town of Reading TOWN CLERK ZONING BOARD OF APPEALS R UOI , M r C S Minutes of March 15, 2007 20101 AIR 2 P 2~ 49 Members present: Robert Redfern, Chairman Paul Dustin Clark Petschek Susan Miller Peter Tedesco Members absent: Michael Conway John Jarema 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. Also present was Glen Redmond, Commissioner of Buildings. Case # 07-02 A Public Hearing on the petition of Robert and Judith Devaney who seeks a Special Permit under Section 6.3.17 of the Zoning By-laws in order to construct a single family dwelling on a non conforming lot. The prior fire damaged dwelling has been demolished and removed from the site on the property located at 52 Bancroft Avenue in Reading, MA. Rich Bova, Agent and Contractor on the job, said the Applicant wants to replace afire damaged dwelling with a new dwelling. On December 1,. 2006, the previous house was involved in a fire. The setback of the new dwelling will meet minimum requirements and the lot coverage will stay the same. The proposed dwelling will have four bedrooms and two bathrooms which is the same as the fire damaged dwelling. The height of the proposed dwelling will be the same as the fire damaged dwelling: 23' to the mid-ridge. The lot is a legal non-conforming lot because of less than minimum required area and frontage. Don Wood, 36 Bancroft Avenue, said he and his wife support this project. He said it was a shame the house caught fire, he would like to support them and see that they get their new home as quickly as possible. On a motion by Paul Dustin, seconded by Clark Petschek, the Zoning Board of Appeals moved to grant the Applicant a Special Permit under Section 6.3.17 of the Zoning By-laws in order to construct a new 2 %2 story single family dwelling at 52 Bancroft Avenue with the following three e conditions: ZBA Meeting, March 15, 2007 1. The Petitioner shall submit to the Building Inspector a Certified Plot Plan of the proposed construction and proposed foundation plans, prior to the issuance of a foundation permit for the work. 2. The Petitioner's final construction plans for the new structure shall be submitted to the Building Inspector, along with the as-built foundation plan(s), prior to the issuance of a Building Permit. 3. As-built plans showing the completed construction shall be submitted to the Building Inspector immediately after the work is completed and prior to the issuance of an Occupancy Permit. The motion was approved by a vote of 5-0-0 (Redfern, Miller, Dustin, Tedesco, Petschek) Case # 07-03 A Public Hearing on the petition of Damian and Michelle Dell'Anno who seek a Finding that applicant's alterations fall within permissible" impervious coverage limits under Sections 4.8.6.1:9 or 4.8.6.1.10 of the Zoning By-laws in order to let the existing situation remain at this location on the property located at 19 Zachary Lane in Reading, MA. Attorney Chris Latham said there also was a request for the revision of the Restrictive Covenant. Mr. Dell'Anno paved over a part of his yard for a basketball court. The Town Engineer has a problem with the recharge system that is being proposed so the Applicants need more time in order to propose a recharge system that is acceptable to the Conservation Commission as well as the Town Engineer. This house is in a sub-division that had fill material brought in to Reading from the Chelsea fire of the early 1970's. Attorney Latham and the Applicant's engineer said the soil is basically impermeable and paving over it does not make the situation any worse than what is there. Mr. Dell'Anno admitted he made a mistake when he paved over a small portion of the yard to make the basketball court, but it was not done with malice. Mr. Dell'Anno explained there was much turmoil in his family at the time and the basketball court was built for the children's benefit. There is a previous Restrictive Covenant from ZBA Case No. 04-02. Attorney Latham submitted a proposal for an amendment to this Restrictive Covenant so the basket ball court can stay. Jack Sullivan, PE, the Applicant's engineer, tested the soils at this property. The front was all fill from the Chelsea fire after the first 8'and at the rear it was all fill after the first 5'. Based on the fill found it is not possible to construct a recharge system, but Mr. Sullivan described what he might be able to do that would help. The Town Engineer had some concerns with Mr. Sullivan's proposal. Mr. Sullivan said they could provide some storage and pre-treatment prior to discharge and this would be the best option. The Town Engineer had some concerns with Mr. Sullivan's proposal. The Chairman asked when they did the excavation for the percolation test did they reach ground water and Mr. Sullivan said they did not. Mr. Sullivan said the roof run-off from 2 ZBA Meeting, March 15, 2007 the house does go into the ground but they do not know what it goes into because there is no record of a recharge system. He would assume the run-off goes into some sort of system but he is not 100% sure. Attorney Latham said he would like the Board to consider an amendment to the Restrictive Covenant that was put in place in 2004. The Applicant is asking for a modification only for this basketball court so it can remain. Mr. Dustin wanted to know how this modification to the Covenant would affect the Conservation Commission. Attorney Latham said the Conservation Commission could not make any assumptions as to how the ZBA would decide. Mr. Dustin said if they cannot find a practical solution to this situation then the amendment to the Restrictive Covenant has no value. Mr. Sullivan said the proposed holding tank is not being considered a recharge system by the Town Engineer. He said maybe he could bore down about 10-12' and see what is there and do a massive excavation. Mr. Dell'Anno said if the soil is as bad as it seems, then if the basketball court were not there it would not really make much difference. He said the Conservation Commission did not want to act on anything until they saw how the ZBA felt about the situation. Attorney Latham said only the ZBA can amend the Restrictive Covenant. The Board questioned why the Town did not sign the Covenant and Attorney Latham said the Board was reluctant at that time in 2004 to be involved in the Covenant. The Applicant entered into the Restrictive Covenant voluntarily. The Board wondered why Town Counsel had not been involved in the original Covenant. Mr. Petschek said the Restrictive Covenant was very strong, it did not allow for any additional structures, and he was hesitant to change it now. The Chairman said he thought if the Applicants could get a recharge system for the basketball court they would not need a variance. Attorney Latham said they must get the Town approval for the recharge system. The Chairman said all the Applicants need from the Board is an amendment to the Restrictive Covenant and then get the Town to agree to a 20% recharge system for the basketball court. Ms. Miller said if the Applicants get the amendment, and then the recharge system is not approved, they must come back before the Board for a Variance. The Building Inspector said all of the materials must meet the criteria of being pervious and this Restrictive Covenant was to ensure that more area would not be covered. He said the pavers should not have been considered pervious. He said the Applicant did not do the drywell and they did increase the coverage. He thought the Board was stepping out on a limb. He also thought this was a major issue and a big difference from what the By-law allows. Attorney Latham said these pavers were installed with the approval of the Conservation Commission who at that time considered the pavers pervious but then the rules changed in the Aquifer Protection Zone and these pavers became impervious after that ruling. 3 ZBA Meeting, March 15, 2007 Mr. Petschek said the Applicant, who signed the Restrictive Covenant voluntarily just a few years ago, installed the basketball court without permission. He knew he could not add anything to the property but he did anyway and he also did not install the drywell as required. Mr. Dustin said it is a problem that a voluntarily instituted Restrictive Covenant is now being asked to be modified so that what was put there without permits, by someone who knew he could not, can stay. The Chairman said he thought if the Applicant cannot get that portion of impervious area over 15% to be recharged, then this basketball court could not be allowed to remain in place. Attorney Latham said all the presumptions by Ms. Fink indicate that the Conservation Commission now considers the previously installed pavers to be impervious. Ms. Miller asked Attorney Latham if there had been an immediate violation issued to the Applicant would there be anything different happening. Attorney Latham said they knew they needed to do certain actions. When they appeared before the Conservation Commission in December they thought the Commission was considering some of the solutions and offers made by the Applicant. On a motion by Mr. Dustin, seconded by Mr. Tedesco, the Zoning Board of Appeals moved to allow the Applicant to amend the existing Restrictive Covenant of July 13, 2004 to allow the installation and maintenance of a paved athletic court of no more than 450 square feet on the premises so long as the water running off of said athletic court is recharged in accordance with the requirements of the Town of Reading Conservation Commission. All other conditions and aspects of the Restrictive Covenant shall remain in full force and effect. A copy of the Amendment to the Restrictive Covenant, prepared by the Applicant's Attorney and presented to the Zoning Board at the March 15, 2007 meeting is attached as Exhibit B. This Decision is subject to the following condition: 1. The Amendment to the Restrictive Covenant, duly signed and notarized, is to be recorded at the Registry of Deeds, but not until an Order of Conditions has been issued by the Reading Conservation Commission. The motion was approved by a vote of 5-0-0 (Redfern, Miller, Dustin, Tedesco, Petschek) Case # 07-04 A Public Hearing on the petition of Paul McGonagle who seeks a Variance under Section(s) 5.0 / Table 5.12 of the Zoning By-laws in order to construct a two-story addition within the 15' required side yard setback on the property located at 8 Nichols Road in Reading, MA. The Applicant said he needs more room for his growing family. He tried many different options to avoid a 90 degree jog but could not accomplish this because his house is a cape style home. The addition is being proposed on the side of the existing house because it cannot practically be 4 ZBA Meeting, March 15, 2007 put on the kitchen/garage side. All the other houses in the neighborhood have square lots except for his. He explained the architectural problems he encountered in trying to pick the ideal location for the addition as well as his financial limitations. The Chairman said it appeared to be a legal non-conforming lot and it would be difficult to obtain a 15' side-yard setback for the addition based on the jog in the side property line. The Applicant said he had spoken with the Building Inspector and his engineers and he had become convinced to apply for the Variance and build a larger addition than he had originally envisioned. The Chairman said the 4' Variance that the Applicant is asking for is a major request. He explained sometimes the Applicant needs to be flexible. He also explained the four criteria that must be presented before the Board to apply for a Variance. The Applicant said Tim Brennan, Assistant Building Inspector, had advised him he could meet the criteria for a Variance because his lot has a jog unlike all the other lots in his neighborhood. The Chairman asked him if he had considered putting an addition on the entire rear of the house. The Applicant said he did but then he would be putting a corner on the outside and that room would become a separate room and not part of the house. It also would be mostly unusable due to the shape. Mr. Petschek explained the four criteria required for a Variance to the Applicant in greater detail. He also explained to the Applicant he would need to respond to these four criteria because a Variance is not routinely granted. The Applicant said because none of his neighbors had shown up at the meeting they must not object to the proposal because they had received notices regarding the hearing. Mr. Dustin said it appeared to him that the lot clearly met two of the criteria because of the property line jog and the financial hardship to the Applicant. The Chairman said with a Variance you must meet all four criteria. He said the Applicant met the first one but, in his opinion, the Applicant did not meet the fourth criteria because the requested 4' setback into the side-yard is a large request. He also worried about setting a precedent and felt the arguments did not substantiate the request. He suggested the Applicant speak with his architect again to see if they can come up with a different design. The Applicant stated he felt that the proposed addition was the only suitable option available Mr. Dustin said he did not think the Applicant was derogating from the intent of the By-law but Mr. Petschek did. On a motion by Susan Miller, seconded by Paul Dustin, the Zoning Board of Appeals moved to grant the Applicant a Variance under Section 5.1.2 of the Zoning By-laws in order to construct a ZBA Meeting, March 15, 2007 two-story addition within the 15' required side yard setback as shown on a Certified Plot Plan, dated February 12, 2007, prepared by Middlesex Survey, Inc., Land Surveyors, of North Reading, MA, attached as exhibit A. The Variance is subject to the following conditions: 4. The Petitioner shall submit to the Building Inspector a Certified Plot Plan of the proposed construction and proposed foundation plans, prior to the issuance of a foundation permit for the work. 5. The Petitioner's final construction plans for the new structure shall be submitted to the Building Inspector, along with the as-built foundation plan(s), prior to the issuance of a Building Permit. 6. As-built plans showing the completed construction shall be submitted to the Building Inspector immediately after the work.is completed and prior to the issuance of an Occupancy Permit. The motion was approved by a vote of 4-1-0 (Redfern, Miller, Dustin, Tedesco, Petschek) with Mr. Redfern the dissenting vote. On a motion by motion to adjourn by Paul Dustin, seconded by Peter Tedesco, the Zoning Board of Appeals moved to adjourn the meeting. The motion was approved by a vote of 5-0-0 (Redfern, Miller, Dustin, Tedesco, Petschek) Respectfully submitted, Maureen M. ight Recording S cretary 6 ZBA Meeting, March 15, 2007