Before addressing question, ZBA rejects try for 2nd appeal
A Bedford resident with long experience in planning matters has lost his second appeal regarding a home under construction on Lower Washington Street.
As town officials stuck to their reading of various laws, the Zoning Board of Appeals at a March 28 hearing followed suit, focusing on whether to hold the hearing and not addressing the claims about building height brought by Donald Corey, a former selectman in that neighboring town.
Discussion about height took place after a resident asked that public comments be heard – and they were – but there was no ruling on that issue.
"I am obviously disappointed by the ZBA's refusal to hear our appeal of the building permit," Corey wrote in a statement April 9. "We are still considering options to prevent further degradation of our property" (full text below).
As it did last December, when YourArlington first reported about the issue, the decision-making process illustrates the frustrations involved in controlling the kind of homes built in Arlington.
As Carl Wagner, a Precinct 11 Town Meeting member who attended the hearing, put the matter: "The gist of the evening was that the structure was built and already judged compliant with our existing laws by the building department."
The issue that perplexed Corey, Wagner and others attending the hearing was how a narrow building appearing to be four stories high could be 2 1/2 stories, according to the town's view.
The hearing, with five board members and one alternate present, began by setting limits.
Board Chair Patrick Quinn cited a memo from town inspectional services describing Corey's petition as repetitive and saying the town agreed. ZBA admin Ashley Maher says Town Counsel Doug Heim signs off on all legal matters (scroll down to read the full memo). "Unless there have been material or significant changes since the last hearing, there is a 24-month waiting period" to appeal again, Quinn said.
"It is incorrect that it is repetitive," Corey responded. "Tonight's appeal is about the height of the building, which was not part of the first appeal." He said the height issue was mentioned at the first hearing, Dec. 13, 2016, "but you would not hear it, because it was not included in the appeal."
Quinn responded: "We said you could withdraw and reapply before the vote."
Corey countered: "No, you said I needed to make an additional petition."
What should board do?
ZBA member Suzanne Spinney said, "I'm not sure what you want us to do. We hear what people want to do to their own property. You're asking for judicial review of what was done by the building inspector."
Corey was blunt: "The town bylaw was deliberately circumvented and violated."
Board Vice Chair Christian Klein pointed to two questions: Is the board allowed to hear this case in the light of 40A, Section 16, of state law, and what are the merits of the complaint?
ZBA alternate member Shawn O'Rourke asked whether building plans existed at the time of the December appeal, and Corey said they did. Later, he said, that at the time of the original appeal, the plot plan was not certified.
"You must put forward everything at one time," O'Roarke said, referring to the issue of whether the claim about building height constitutes a repetitive appeal. "That is my opinion, my reading of the statute."
Bruce Fitzsimmons, the attorney for Brian Callahan, the builder of 50 Washington, said he agreed.
'Talked to attorney?'
"Have you looked at other remedies?" Spinney asked Corey. "Have you talked to an attorney?"
The appellant answered, "I don't want to lawyer-up," and asked whether the town has a precedent for a repetitive appeal.
He was told that the town has had no previous appeals like this.
At this point, Chris Loreti said from the audience, where six people listened: "This is a public hearing. Shouldn't people be allowed to comment? Read the text of the memo; it doesn't disallow a public hearing.
"This -- building height -- was not within the original scope. I am a former member of the Redevelopment Board, appointed by Governor Patrick and Governor Romney, so I know something about this."
Wagner supported Loreti's comment about allowing public comment, adding that he had visited the building site.
Town Meeting member comments
In a Facebook post following the hearing, Wagner wrote about the proceedings: "Happily, a small discussion began about this structure ....
"Discussion occurred about a 2001 decision by the ZBA about how the stories and height should be measured and if the inspectional services department erred in determining legality or changed their methods from what should have been done in that process.
"Four floors were really 2.5 because the ground near part of the foundation was built up at a specific time, and the fourth floor has a ceiling less than 7.x feet or some such nonsense.
"Also, it was said the roof is clearly a 1/2 story roof, by the rules. It's also not going to win a roof beauty pageant, in my opinion. Regardless, this two-family structure is currently considered legal and will be occupied within 24 months, unless the zoning department rejects it in final review ....
"Town Meeting last year featured a plethora of proposed bylaw changes to limit development of structures in Arlington which failed. We did not pass any ... because there was concern that the changes would limit good normal folk from making small to modest changes in our small to modest houses.
"Arlington developers and others got up and spoke to us in TM about protecting our home values, should we choose to expand them -- and thus rejecting new restrictions on us ....
"Town Meeting has a chance to revisit common-sense changes to your bylaws to prevent crazy developments, like 50 Washington St., and to still allow you and me moderate changes to our homes."
Memo refers to 2001 case
At the March 28 hearing, Corey continued by addressing the inspectional department memo's discussion of the 2001 decision involving a project at 2 Hemlock St., at Summer Street and not far from 50 Washington. He said it was not a legal precedent but a ZBA opinion.
The 2001 opinion said the town could use the level of the finished grade before construction to calculate height. Corey said that, in his memo, inspectional-services' chief Michael Byrne mixed "finished grade" with "final grade" and left out "before construction."
Donna Little, who lives next door, called the home at 50 Washington "an eyesore. I feel imprisoned in my own yard."
Corey added that the building department is "going out of their way to interpret your zoning laws in a way that really injures abutters like us."
Corey quoted longtime building inspector Rick Vallarelli as saying that the slope of a lot greater than 5 percent requires a certified plot plan showing site contour. That would determine height compliance, Corey said, but Byrne is expressing this differently in the memo, and height compliance is "not typically interpreted this way."
In the ruling about the home at 2 Hemlock, Corey said, the plot plan should be used to determine height compliance based on finished grade before construction. The plot plan would be necessary in order to calculate average grade for a lot with more than 5 percent of slope. Corey claims Byrne thinks that using the final grade and allowing developers to add fill after building construction in order to comply with building height bylaw is acceptable (see his statement below).
In the bylaw definition of a half story, the roof is described as gambrel, hipped or gable, but the roof at 50 Washington is nearly flat. The plan for the home describes it as a "low pitch roofing system."
Discussion said to move beyond scope
Fitzgerald said the discussion was moving outside of scope of the repetitive appeal, and Quinn made motion to deny the appeal.
All board members except Klein voted in favor, and so discussion continued.
Klein expressed concern about the issue of the height of the building at 50 Washington, and alluded to previous efforts to change the bylaw to make clearer the definition of a half story.
"If you go by the book, it's not one of those shapes that qualifies as a half story," he said. If roof shape is left out of the analysis, a building's top floor with a ceiling height that is 7 feet 3 inches for less than 50 percent of the floor and only marginally lower for the rest of the floor could be considered a half story. This would be "consistent with other previous decisions they've made."
He also noted that the definition of gross floor area suffers from the same problem, resulting in attic space of zero square feet when ceiling height is only slightly lower than 7 feet 3 inches.
Spinney commented, "Unfortunately, this may be a consequence of trying to maximize what can be built on an odd-shaped lot."
Klein said there has been "no material change" to documentation or what's been built.
"If you use finished grade before construction," Corey said, "this is an illegal four-story building. They sprang [the 2 Hemlock decision] on me after the [December] hearing. They held back their basis for the decision."
Board member O'Rourke responded, "You should have brought all issues at once in original appeal."
Spinney added, "If you feel like it's malicious and underhanded, there are separate options."
The lack of material change illustrates "issues with current zoning" as far as 40 A, Section 16, Klein said, "and I don't see there have been any."
Quinn made a final motion to deny, citing a repetitive appeal. Spinney seconded, and all six present, including Joseph Moen, voted in favor.
Wagner asked how the building could be removed. The lack of a certificate of occupancy could trigger that, he was told.
Full statement by Donald Corey regarding ZBA vote on 50 Washington St.
"I am obviously disappointed by the ZBA's refusal to hear our appeal of the building permit approved by Commissioner Michael Byrne for the 4-story building abutting our property. We are still considering options to prevent further degradation of our property by the actions of Brian Callahan and Michael Byrne.
"People who attended the hearing were frustrated because the ZBA's refusal to hold the hearing prevented the information from becoming available on how a building so tall could be erected in a R2 District, with 2-1/2 stories being the maximum height under the Zoning Bylaw.
"We had tried since last October to obtain information from the Building Department regarding its basis for approval of the 4-story building and were repeatedly sandbagged, 'No, you're wrong, it's all legal, ...'. Shortly before our hearing in December on side yard encroachments, I received a call from Comm. Byrne regarding that matter. During the conversation, I asked him about the building height and was told, 'The bottom floor is unfinished so it isn't counted.' That was a flat-out lie.
"At a meeting on January 27, 2017, long after the original hearing, Comm. Byrne finally cited a 2001 ZBA Decision (2 Hemlock Street - Docket No.3130) as precedent for his approval of the 4-story building. A careful review of that decision strongly indicates that Comm. Byrne's interpretation is a serious and deliberate misrepresentation of that Decision. He has taken the phrase 'finished grade' completely out of its context in the decision and redefined it to circumvent the height limitation.
"The 2001 decision dealt with a site where ledge and groundwater problems required a limited amount of fill above the original grade in order to establish a 'finished grade' of the building site and the ground adjoining the building. The ZBA reasoned that 'height should be calculated initially by using a proposed finished grade at the beginning of construction.'
"The decision was applied by measuring the height to the top of the roof from the actual 'finished grade' upon which the house was built. Comm. Byrne has taken the term 'finished grade' out of its original context and changed it to mean 'average final grade around the building after construction and massive discretionary filling to an elevation determined by the developer.'
"The 'average final grade' used by Comm. Byrne for computation of building height at 50 Washington St. is an imaginary grade in mid-air more than 5 feet above the 'finished grade before construction' upon which the building has been built.
"While we are disappointed in Comm. Byrne's interpretation and the ZBA's refusal to consider our appeal, the citizens of Arlington should be very alarmed. Arlington's Zoning Bylaw maximum height limitation is entirely negated by that interpretation, and developers will fully exploit that precedent if it is not overturned."
Declines to comment
Asked to comment, Byrne wrote April 10: "Thanks for offering, but Inspectional Services has no comment to make on Mr. Corey's remarks and we believe our memo to the ZBA adequately explains our views on the matter."
March 24, 2017, memo from Arlington's Inspectional Services Department
From Michael F. Byrne, director of inspections, to the Zoning Board of Appeals
"We again write to you as Arlington's Zoning Enforcement Officers, as authorized under Massachusetts General Law Chapter 40A Section 7 para. 1, which charges the inspector of buildings, building commissioner or local inspector with the enforcement of zoning ordinances or bylaws.
"This repetitive appeal against the property at 50 Washington St., although not completely clear and actual zoning bylaw sections are non-existent on the application page which states (see attached), the proceeding pages go on to discuss building height including Zoning Board of Appeals Docket #3130 dated February 14, 2001 regarding a variance appeal at 2 Hemlock St., Arlington, stories, principle structures in R2 zoning, Environmental Review Standards; Section 11.06, and 11.07 Filling of Any Water or Wet Area.
"We will attempt to provide our reading and interpretation of the Arlington Zoning Bylaw and the Zoning Board of Appeals previous decision at 2 Hemlock St which strongly ordered this department to issue a certificate of occupancy using "finished grade,, which in its pertinent paragraph states 'After all, the grade may be adjusted upward or downward as construction conditions dictate. It is not reasonable to assume that if construction requires the addition of fill or soil, as in this case, finished grade would be an imaginary grade which has no relevance to the actual setting of the structure on the site.' It is this ZBA order on which Inspectional Services has determined average grade on all projects thereafter. It is from this definition of 'finished grade' a buildings height and basement story definition is determined.
"The appellant in his notes mentions that this department consented on 2 points during a meeting on January 25, 2017; one that the building is 4 stories and two that we find the building unattractive. We'd like to briefly dissent on point one and explain the context of point two.
"Point one is most likely the crux of the appellants misunderstanding in that 'stories' and 'living levels' are not one in the same where zoning is concerned. The structure at 50 Washington St upon completion will be no more than two and one half stories nor more that 35' in height from average finished grade. In description, the top floor for zoning purposes is considered a half story as less than one half the area is 7'3" or more measured from the sub floor to the underside of the rafters, the two stories below are self-evident to be stories, and the basement is not deemed a story as under Section 2 of the Zoning Bylaw Definitions: 'Basement' A basement is not considered a story unless its finished ceiling is four(4) feet six(6) inches or more above average finished grade. Thus, the structure meets the requirements of being not more than two and one-half stories.
"As to point two, whether anyone in Inspectional Services likes or dislikes the aesthetics of a project is irrelevant in zoning enforcement, as we recall the statement was made in the same context that although we may not like the appearance of solar panels, we don't have the right to deny a properly applied for conforming permit.
"As to principle structures vs. accessory structures, the retaining wall in question was removed prior to the appellants previous appeal thus there isn't an accessory structure to appeal, further if the board was to set a precedent of acting on contents of theoretical discussions held by members of Inspectional Services, I personally believe that would be beyond the boards scope. In the applicants appeal its indicated that the left side vestibule is in violation of setbacks.
"I'd like to point out that Section 6.19 - Projections into Minimum yards states; projecting eaves, chimneys. bay windows, balconies, open fire escapes, and enclosed entrances not more that 25 square feet in floor area or more than one story in height which do not project more than three and one half feet beyond the foundation wall may extend beyond the minimum yard regulations otherwise provided for the district in which the structure is built. Thus the side entrance referred to complies with Arlington's zoning.
"The appellant mentions Environmental Design Review Standards Section 11.06 for which this project is not applicable and Section 1l.07 - Filling of Any Water or Wet Area, which is not applicable but whether agreed or not the amount of fill used does not exceed 500 cubic yards.
"Finally, after much review and consultation I would like to bring to the Boards attention that Repetitive Appeals must wait a two year period prior to re-appealing a project unless first the Board votes per Chapter 40A Section 16 which states: No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to patties in interest of the time and place of the proceedings when the question of such consent will be considered.
"Any petition for a variance or application for a special permit which has been transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the special permit granting authority or permit granting authority. It is our belief that this appeal falls under the category of a repetitive appeal even though the appellant has chosen different sections of our bylaw, we emphasize the plans and project have not undergone specific and material changes, thus requiring the Boards action prior to hearing the appeal before them. Again, we wish to assure the Board and Mr. Corey that prior to performance of final inspections or issuance of a Certificate of Occupancy, this office verifies that all bylaws and codes are in compliance."
The memo concludes with the following from Chapter 40A, Section 16, of state law:
Part I ADMINISTRATION OF THE GOVERNMENT
Title VII CITIES, TOWNS AND DISTRICTS
Section 16 FINAL UNFAVORABLE DECISIONS BY PERMIT GRANTING AUTHORITIES; RECONSIDERATION; WITHDRAWAL OF PETITIONS FOR VARIANCE OR APPLICATIONS FOR SPECIAL PERMIT
Section 16. No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.
Any petition for a variance or application for a special permit which has been transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the special permit granting authority or permit granting authority.
This news summary was published Saturday, April 15, 2017.
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