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HomeMy WebLinkAbout2005-06-16 Zoning Board of Appeals Minutes,/T6wti1 CLERK Town of Reading ZONING BOARD OF APPEALS Minutes of June 16, 2005 Members Present: Susan Miller Paul Dustin Robert Redfern John Jarema Michael Conway Members Absent: Mark Gillis i L ICLERK "ry M 11ASS. tOQ A : 3 -if 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 in attendance was Glen Redmond, Commissioner of Buildings. Case #05-13 A Public Hearing on the petition of Michael J. Garrity who seeks a Variance/Appeal from a decision of the Building Inspector under Sections 2.2.13 (frontage) / 7.4.2.1 of the Zoning By- laws in order to occupy a single family dwelling that does not comply with Section 6.1.1.3 off- street parking and loading/unloading requirements on the property located at 51 Colburn Road. Also does not comply with the definition of frontage (2.2.13). Attorney Mark Favaloro spoke for the Applicant. The Building Inspector would not issue an occupancy permit because the parking did not comply with zoning regulations as shown on the original plan. Attorney Favaloro said the requirement is now met by 2 spaces to the rear of the property and the house as constructed meets with Massachusetts State regulations. The present issue is frontage; the purpose of the definition according to Attorney Favaloro is not to require access over the frontage but to provide the area required. If the Board does not agree then the Applicant requests a variance. The Town Engineer told Attorney Favaloro that he did not yet review the proposed plan submitted. The Building Inspector said the two spaces shown on the proposed plan do comply with the size and number but there is no access to these parking spaces through the actual lot. V Attorney Favaloro said the Applicant has expressed the right to use Hillcrest Pass as an easement to these two spaces. The Applicant would grant access to whoever purchases 51 Colburn Road. The Building Inspector said when the building permit was granted the plan showed where the house was going to be built and the driveway access. All driveways have to be approved by the Town Engineer in order to get a curb cut permit. Engineering approved the driveway originally shown on the plan. Now the Applicant is saying he does not want to put in the driveway that was originally proposed but instead access the parking via Hillcrest Pass. It was understood at the time of the building permit application that the proposed parking and access was as shown on the submitted original plan upon which the building permit was issued. The Building Inspector does not know what the slope is or what Engineering thinks about the proposed driveway. The Board members discussed that the Building Inspector would not have issued the building permit unless the Town Engineer had approved the original proposed driveway. At the time it met all the requirements and did not have any zoning issues. Now there is a change that requires a variance because the driveway and parking area was not built in accordance with the design shown on the approved building plans. In February 2001 when the building permit was issued it was predicated on the plan submitted without parking in the rear. The Board questioned Mr. Garrity about when and why he decided to access the structure off of Colburn Road and whether he had discussed this with the Building Inspector. Mr. Garrity said that as the construction continued it just seemed the natural way to do it because with such a large amount of ledge it would have put them at a financial disadvantage. The Board asked if he was aware of the extent of the ledge before he had received a building permit. Mr. Garrity said that he was aware of the ledge where the house was going to be situated. He said the ledge in the front where the approved driveways were would make it very expensive and so this alternate driveway and parking was, to him, the natural way to access the home. He also thought it would be much safer than blasting and an easier access for people walking because there was less incline and height. The Board asked Mr. Garrity if all of these points that he made were not fairly self-evident from the beginning and why they were not considered at that time. Mr. Garrity said he wanted to make it as nice as possible because he was originally going to live in this house and he wanted a nicer looking home with a view. He thought the placement would be better and he wanted something different. The Board questioned at what point did it become clear that blasting would be such an issue that he would not be following the original approved plans for the parking requirements. Mr. Garrity said it was when Mike Lynch said it would cost $50-60,000 and the surveying would be an additional $2,000. Mr. Garrity said he decided on pounding instead of blasting and it took several weeks at $180 an hour. He said there was a lot of ledge that did come out and he did not do anything that anyone else had not done in the past. 2 Mr. Garrity said he had an approved plan, the land is old, everything was in place, the lot was there and he could build a house on it. He said the owner has the right to put what he wants where he wants, and that anyone who resides on an unaccepted Town road owns half way into that road and the other abutter also owns half way in. Based on those assumptions he assumed he would be able to do this. Mr. Garrity pointed out on a map where Hillcrest Pass was and the access. He said he thought he had the right to pave but he erred by paving 4' over into lot S. He said he made a mistake but not an error because he owns 10' on one side and 10' on the other side. He said he has the right to grant an easement in the deed if accepted. His understanding was that Hillcrest Pass was an accepted sub-division by the Town since 1938 or 1943 and since then there have been amendments and by-laws that increased the frontage of lots allowed and several amendments so further development cannot be made on Hillcrest Pass. He said if they did not start construction by April 2001 the lot would have become obsolete because it is less than the 10,000 square feet that is now required. The Board asked if there was a subdivision plan somewhere in the Town. The Building Inspector said the normal procedure is for the Applicant to submit a plot plan to the Town Engineer who makes the determination on the public ways. The Board asked what parking and driveway facilities were on the lot now since the approved ones were never built. The Building Inspector indicated that paving took place without any permits or curb cuts. The Board asked the Building Inspector if someone was building a house and it was not in compliance with the plans submitted for the building permit would he issue a stop work order. He responded yes and also said as far as he knew the driveway was going to be constructed in the front as indicated on the plans submitted for a building permit. The Board noted that when this plan was accepted it was based on two parking spaces and a curb cut on Colbum Road. At present the only way an occupancy permit can be granted is that all conditions on the,approved plan be satisfied and access provided from Colbum Road for both pedestrians and vehicles. If the Applicant wants to join with the other people on Hillcrest Pass and develop it, this would be out of the Board's domain and the Applicant could petition to have his address on Hillcrest Pass. The house was built under the condition that there would be a 40' area off of Colburn Road with a curb cut for two vehicles. Access from Hillcrest Pass was a convenient way for the builder to get up there and build the house. There is a simple solution to the situation, Mr. Garrity creates the two parking spaces on Colburn Road with access to the house from those spaces. Mr. Garrity said he would write to each of the Hillcrest Pass owners that he would not impede or block their access. He said Hillcrest Pass is just ingress and egress and no one can park there. It is a public way and if it is in your deed you have access and if it is not in your deed then you don't have access. The Board noted that the last correspondence from Town Counsel and Town Engineer both state that the Applicant had not demonstrated that he had legal access to Hillcrest Pass. The Board wants to see a legal document or a letter from Town Counsel stating the Applicant has this right. The Applicant has to prove to the Town that he has the legal right and that his driveway and parking spaces will meet all Town standards. He is asking for a reversal of the Building Inspector's decision and/or a variance. Mr. Garrity said he never intended to totally develop Hillcrest Pass and anyone who has a right to use Hillcrest Pass can use this access. The Board said if the Applicant had originally come before the ZBA and proposed a plan that showed access to his property off of Hillcrest they would still have concerns that the access would be on Hillcrest Pass instead of Colbum Road. The Building Inspector said he would not have issued a building permit but would have required the Applicant to come before the Board for a frontage variance. Ronald O'Connell, 63 Colbum Road, said his deed says his property abuts Hillcrest Pass but it is a private way owned by someone else. He said Mr. Garrity has developed and paved a driveway on Hillcrest Pass. Mr. O'Connell said this was done specifically for Mr. Garrity's purpose only and no one knew exactly where Hillcrest Pass was located. The exposed ledge was not there until Mr. Garrity exposed the ledge while developing the land. It is now impassible and abutters do not have access to the back of their lots anymore. Linda Landry, 57 Colbum Road, said when they first moved in, the moving van came in that way to the back of their house. Now it would be impossible to do that. Her husband, Geoffrey Landry said Mr. Garrity changed the grade of the land as well as the paving. He said no one could get in that area now. Patricia Garrity said they gave the Landrys' permission to use the land. Mr. Landry said he went to the Building Inspector when Mr. Garrity changed the grade and water now runs into his basement. He said they asked Mr. Garrity to bring in some heavy equipment and put in a retaining wall but this was before Mr. Garrity put in the road. Now no one can get to the back of the Landry property. Nicholas Demateo, 81 Colburn Road, said Mr. Garrity should be made to meet the original plans. The Garritys have a sale pending and they will be gone but the rest of the abutters will all still be there. Carole DiDomenico, 28 Landers Road, said she didn't understand why Mr. Garrity did not just do what he was supposed to do. She said he didn't have the right to do what he did and he didn't get a curb cut. He knew what he had to do and he knew that when he got the permit. Mr. Garrity said the lots were not on the building permit application, an approval was not required, he did not have to come before the Board, and he did do the right thing. Marion O'Connell, 63 Colburn Road, said they all have children and financial hardships but they teach their children to work within the law and obey the rules. She said this was not happening in this case and not only did Mr. Garrity pave the road but he also put a piece of wood across the Pass so that there would not be any access. Susan Dematteo, 81 Colburn Road, said the zoning by-laws are a long process to put in place and the Board has to uphold the frontage by-law. George Stewart identified himself as the potential buyer for the Garrity property. He wanted to know if the abutters would be happy if Mr. Garrity put the driveway down on Colburn Road as originally planned. He also wanted to know if the abutters expected Mr. Garrity to rebuild Hillcrest Pass. Ms. DeMatteo said the issue is that his legal frontage is based on the Town by-laws and his address is 51 Colburn Road. Ms. DiDomenico said Mr. Garrity knew exactly what he was going to build and he just went along and did it. He did just what he wanted to do. Mr. Garrity said he thought through the building process and bought the property 23 years ago. He said he did look at everything that was necessary to building in the Town. He walked the land with Charlie Stamatis who was the Building Inspector back then and he told Mr. Garrity where he should put the house. He said he has tried to do everything within reason to comply with the current Building Inspector's requests. Attorney Favaloro said he only knew the situation from last year and now maybe the Applicant is asking for forgiveness rather than permission. He thought the Board should continue the hearing until they heard from the Town Engineer. The Board told Attorney Favaloro that the Town had never granted a variance from frontage. The Board stated that they thought the easiest solution was to have the Applicant put in the access and two parking spaces on Colbum Road which would get them an occupancy permit and allow Mr. Garrity to sell the property. Then a second means of access from Hillcrest Pass could be pursued. Attorney Favaloro requested a continuance of the hearing until the Board heard from the Town Counsel and the Town Engineer. On a motion by John Jarema, seconded by Robert Redfern, the Zoning Board of Appeals voted to continue the hearing to July 21, 2005. The motion was approved by a vote of 3-0-0 (Miller, Jarema, Redfern). Case #05-14 A Public Hearing on the petition of James & Sheila Brady who seek an appeal from a decision of the Building Inspector under Sections 7.4.2.1 of the Zoning By-laws in order to construct a single family dwelling on property located at 9 Norman Road, Map: 0079, Parcels 0121, 0122, 0123 and 0124. Timothy Shand spoke for the Applicants, James & Sheila Brady. They are seeking relief from a decision of the Building Inspector. Mr. Shand said they should be allowed to build a dwelling on 4 combined lots and this should be grandfathered in. Norman Road is a private way and is not an accepted road by the Town. There are also conservation issues and the zoning setbacks will also not be met by the proposed dwelling. The Board explained that there is a difference between private roads and roads accepted by the town as determined by the Engineering Department. Many of these small lots have been combined together but most are not build-able. If the four lots in question have been in mutual ownership since 1942 then they could be grandfathered. The Board would want Engineering to issue a statement saying this project would be viable. The Board also wanted evidence that Mr. Shand has power of attorney because the people petitioning are the Brady's and not Mr. Shand. - The Building Inspector said there must a title search on the abutting lots. He said there is also a proposed 7' side-yard setback for this proposal that would not be acceptable. He also said that the Engineering Department has already told the Applicant this is not an accepted road and that a building permit cannot be issued because of this. The Board explained to Mr. Shand that they would only be considering the merging of the lots at the hearing. The Applicant also has to prove with a title search that the four lots were held in common ownership before 1942. The Board also told the Applicant that they have never approved a 7' setback. Both the Building Inspector and the Applicant told the Board that Engineering said this was not an accepted road so the Board did not think they needed to go forward from this point. The Building Inspector can only issue a building permit if this was an accepted way. Mr. Shand said he still would like to ask for a continuance until August 18, 2005 so that he could get additional information from Engineering and also do a title search. The Board told him in order to go beyond the approved time period they needed a letter signed by both him and the Bradys requesting this extension as well as a power of attorney from the Bradys by August 1,2005. On a motion by Robert Redfern, seconded by John Jarema, the Zoning Board of Appeals voted to continue the hearing to August 18th provided they received the continuation request and the power of attorney from the Applicants by August 1, 2005. The motion was approved by a vote of 3-0-0 (Miller, Jarema, Redfern) On a motion by Robert Redfern, seconded by John Jarema, the Zoning Board of Appeals voted to adjourn the meeting. The motion was approved by a vote of 5-0-0 (Miller, Redfern, Jarema, Dustin, Conway). Respectfully submitted, Ma een M. Knight Recording Secretary