Vows to pursue issue after zoning board rejects appeal
A Bedford resident with long experience in planning matters vows to continue pursuing issues raised in the construction of a home on Lower Washington Street that he said showed the building inspector lacked control over the project.
Donald Corey, a member of Bedford's Historic Preservation Commission, heard the Arlington Zoning Board of Appeals' unanimous vote on Tuesday, Dec. 13, rejecting his appeal. Six days later, he said he would continue the matter after the holidays – first with the town inspection department and, after that, on the state level.
In general, the board decided that, because the contractor, Brian Callahan of Arlington, was correcting issues that Corey had brought to his attention, it had to deny the appeal.
A Planning Department memo about the case issued the day of the hearing supports a number of the Bedford man's claims, but not all of them. Read the full text of the memo below.
This story reflects the quandary faced by those who hear zoning appeals when a resident has a hearing after errors are in the process of being corrected.
Board member: 'Troublesome'
Board member Christian Klein said at the hearing what he found "troublesome" – issues that might not be technically out of compliance but are very close to being against the intent of the bylaws.
Here is how issues involving the home under construction at 50 Washington St., a private way near the Minuteman Bikeway, came to the attention of town officials:
Corey said he owns the property next door, at 46 Washington St., which he said he inherited from his son, Douglas. Callahan bought 50 Washington St., which sold last March 15. He is listed as owner on all building permits except for the first one, for demolition in June.
Corey told the board that, in the last week of September, with no notice or warning, a "massive" concrete wall – about 11 feet high and 40 feet long – was built on the property line next to 46 Washington St. Corey noted his familiarity with zoning and building laws, in the light of more than 40 years of experience in town issues.
The Bedford man said Rick Vallarelli, the regular building inspector, declined to tell him who signed off on September changes in plans.
Appeal Oct. 24
After discussing the issue with Michael Byrne, director of inspectional services, Corey said he filed an appeal on Oct. 24, citing the retaining wall and multistory structure. Building officials and Callahan got back to him after that.
The issues listed in Corey's statement to the zoning board Dec. 13 were:
– The building department's decision to allow a nonconforming setback and retaining wall.
– No certified plot or foundation plan by Oct. 21.
– The department's decision to approve on Oct. 14 the lower-level unit with a one-story entryway encroachment as well as the multistory entryway encroachment.
– The Planning Department memo of Dec. 13 says the retaining wall was not part of the principal structure, but according to bylaws, all structures are subject to setback provisions.
[In his Dec. 13 statement, Corey wrote that only structures greater than 80 square feet are subject to setback provisions.]
– The pencil markup with yellow highlight was the only plan showing the retaining wall. State regs are specific as to how retaining walls are built to withstand pressure and water. The wall was built without footing; per the manufacturer's literature, it should have had footing.
Corey drew some conclusions among these points in his appeal:
-- Construction proceeded weeks before the plan appeared;
-- Some building department personnel have interpreted bylaws to help the builder; and
-- The building inspector had no control over the project.
Then on Nov. 14, after filing the appeal, framing for the home had reached full height, Corey said, adding that the maximum height allowed in an in a R2 zone for a residential home is 2 1/2 stories.
Following his appeal, Corey said the retaining wall and the two-story encroachment have been removed. With steps taken to correct violations, he said, Byrne suggested a hearing was unneeded.
Insisted on public hearing
But Corey says issues remain, including questions about regrading for storm-water runoff and how the alleged violations allowed in the first place. Thus, he insisted an open, public meeting be held.
During the Dec. 13 hearing at Town Hall, Chairman Patrick Quinn said the zoning board is limited in scope to hearing issues raised in the original appeal. Those two – the retaining wall and the multistory encroachment – have been addressed, he said.
Corey asked about other issues, including this question: that the building department created some of the issues.
The chairman reiterated that the board can deal only with actual conditions. If corrected, there's nothing they can do, he said.
Referring to the modest neighborhood near Hills Hill recreation land and fairly recently built condos, Corey commented that moderate- and low-income neighborhoods would be most likely to suffer from situations similar to what has taken place on Lower Washington because of the time and expense involved in filing an appeal.
In his statement, he said: “I believe that greater transparency of the Building Department's operations would be very beneficial to the public. However, the $400 that the Building Department charged me in order to appear before you would obviously be a huge deterrent to public participation by most others.”
Board member Suzanne Spinney suggested to Corey that Town Meeting would be a better place than the hearing to raise these issues.
She also suggested speaking to state building inspectors regarding the retaining wall and storm water.
Warrant article? He won't
Corey said Dec. 19 that he is not an Arlington resident and would not seek a warrant article, but he suspects residents might be interested in his case.
Corey was a Bedford selectmen for one term, elected in 1977. He has served on that town's Planning Board for 15 years, has been on the Historic Preservation Commission for about two decades and is a member of the Community Preservation Act Committee there.
Attempts to contact Callahan, the builder, for this story were unsuccessful. The Arlington number listed for him is not in service. His comments are welcome.
Dec. 13 Planning Department memo to the Zoning Board
From: Jennifer Raitt, Director, Dept. of Planning and Community Development
[NOTE: The Planning and Community Development Department provides a memo to the ZBA on all cases they review,” Raitt told YourArlington.]
The Applicant, owner of 46 Washington Street, had concerns about the granting of a Special Permit under Section 6.00 and the Building Inspector’s decision in relation to the decision for 50 Washington Street in Arlington, MA. The following is a summary of the concerns raised by the Applicant and the Building Inspector’s responses:
1. Concern: The developer of 50 Washington Street failed to submit the required documentation demonstrating that a newly-constructed retaining wall adjacent to the Applicant’s property is structurally sound.
Response: The Building Inspector verified the failure to submit and required the developer to obtain a structural stamp for the retaining wall.
2. Concern: The above-mentioned retaining wall is considered a principal structure according to the Zoning Bylaw, and as such, illegally encroaches into the side yard setback. The Applicant maintained that the developer must obtain a special permit to construct the wall.
Response: The retaining wall is not considered a principal structure.
3. Concern: A foundation wall illegally encroaches into the side yard setback.
Response: The foundation wall is for an enclosed entrance. The Zoning Bylaw permits enclosed entrances to extend beyond yard setbacks, provided that the entrances are only one story high. While the Applicant maintained that the enclosed entrance is two stories (since the entrance structure incorporates portions of the basement and first floor), the Building Inspector maintained that the basement is excluded from the calculation.
The developer has committed to removing the retaining wall and relocating the enclosed entrance to another part of the house where it will not encroach into the side yard setback (the basement portion of the enclosed entrance structure will remain at the original location). The Applicant still intends to appear before the ZBA to express concerns about the developer’s grading plan for the side yard portion of the property (adjacent to the applicant’s property) in lieu of the retaining wall.
The Department of Planning and Community Development recommends that the ZBA ensure that the grading plan meets all applicable regulatory standards.
This news summary by volunteer Karen Gruber was published Monday, Dec. 26, 2016.
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