Well, it is 733 PM on Tuesday, November 23rd, 2021. Good evening. My name is Christian Klein. I'm the chair of the Arlington zoning board of appeals calling this meeting of the board to order. I would like to confirm that all members and anticipated officials are present from the zoning board of appeals Roger Dupont here. Patrick handlin. Sean over work here, Aaron Ford. Here. I'm here as well. Kevin Mills is unavailable to us this evening and Stephen reflect had resigned at the end of our prior hearing to join the ARB. And recognizing town officials work fellow rally our board administrator. Good evening, Mr. Chairman. Evening Mr. Valerie and Vincent Lee assisting us as often thank you very much and and I don't think Kelly Linema is with us this evening from the front of planning and community development but she is assists us in many other ways. So appearing on behalf of 83 Palmer Street. Robert Nessie and you here. I am here. Good to see you. Thank you. appearing for 1618 Swan Place. Mr. Potterville. Yes, I'm here. Thank you. Perfect. Good to see you. You as well. Thank you. appearing for 25 Highland Avenue. I'm not sure who's representing them. Oh, is here. Thank you very much for joining us. Okay. And then appearing for 137 Robin Road. I think she's always here. The name. Hello, this is a G is for the 137 Robins Road. Yep. Perfect just making sure you're here. Yeah. Thank you so much. Thank you. And the next open meeting of the Erlington zoning board of appeals is being conducted remotely consistent with an act extending certain COVID-19 measures adopted during the state of emergency signed into law on June 16, 2021. This act includes an extension until April 1st, 2022 of the remote meeting provisions of Governor Baker's March 12, 2020 executive order to spending certain provisions of the open meeting law, which will allow public bodies to participate remotely. Public bodies may continue to meet remotely. So long as reasonable public access is afforded so the public can follow along with the deliberations of the meeting. An opportunity for public participation will be provided during a public comment period during each public hearing. For this meeting, the Erlington zoning board of appeals has convened a video conference via the zoom app with online and telephone access is listed on the agenda posted to the town's website, identifying how the public may join. This meeting is being reported and it will be broadcast by ACMI. Please be aware that attendees are participating by a variety of means. Some attendees are participating by video conference. Other participants are participating by computer audio or by telephone. Accordingly, please be aware that other folks may be able to see you, your screen name or another identifier. Please take care to not share personal information. Anything you broadcast may be captured by the recording. We ask you to please maintain decorum during the meeting, including displaying an appropriate background. All supporting materials that have been provided members of this body are available on the town's website and less otherwise noted. The public is encouraged to follow along using a posted agenda. This chair reserved the right to take items out of order in the interest of promoting an orderly meeting. As the board will be taking up new business at this meeting as chair, I make the following land acknowledgement. Whereas the zoning board of appeals for the town of Arlington, Massachusetts discusses and arbitrates the use of land in Arlington, formerly known as monotony in Algonquin word, meaning swift waters. The board here by acknowledges that the town of Arlington is located on the ancestral lands of the Massachusetts tribe, the tribe of indigenous peoples from whom the colony, province and Commonwealth have taken their names. We pay our respects to the ancestral bloodline of the Massachusetts tribe and their descendants who still inhabit historic Massachusetts territories today. We will begin this meeting. Number two on our docket, which is the approval of the decision for 31 Melvin Road. So this was a case that the board heard on November 9th. The handlet has prepared a very thorough set of written copy of the decision that was distributed to the board for comments. And I know some have submitted comments and they have been incorporated and it was reissued this afternoon. Are there any further comments on the decision for 31 Melvin Road? Seeing none. May I have a motion to approve the final written decision for 31 Melvin Road? Yes, sir. So moved. Thank you, Mr. Handlin. Second. Thank you, Mr. Dupont. So I vote on that. Roger Dupont. Hi. Patrick Handlin. Hi. Mr. Mills is not with us this evening. And the chair votes aye. So those that final written decision is approved. And so Rick, if you can go ahead and prepare that for signature by the board. Well done, Mr. Chairman. Thank you very much. This brings us up to the next item on our docket, which is item number three docket number three, six, five, eight, 83 Palmer Street. And so I will invite Robert Manessi to go ahead and address the board. Thank you very much, Mr. Chairman. Good to be with you. This is a matter that came before the board some time ago. And it's coming before the board now in a new guys. We have applied for a special permit. Just to summarize the history of the board. It was the subject of a zoning board of appeals case back in 1955. And in 1955. This particular lot was created. By the zoning board of appeal. In a zoning decision. And the lot that was created. Contained 5,504 square feet. Now the zoning bylaw at that time. Required 6,000 square feet with respect to. The requirement for a square feet on a lot. So I think we can infer that the members of the zoning board knew, and actually they said it in their decision. That the lot did not have enough square feet. To in fact comply with the then requirement of 6,000 square feet in the zoning bylaw. The other interesting point about the property at that point in time was that it was then as it is now in an hour to zone. And most of the properties in the neighborhood. Of the site. Were in fact two family homes. There are some singles, but most were two family homes. When the zoning board. Rented their decision. They did not actually make specific findings of facts. As we do today, as we've done for many years. They did not say, for example, we are allowing the subdivision. And we're allowing the subdivision. So that the lot. Lot B. That's the lot we're talking about. Would in fact be. A two family or a single family lot. They didn't say that one way or another. What we do know is that at that time. And now. The lot. Was in fact in a. Our two zone. Now there was no building on that lot. Another lot had been created. And it was a lot. Now there was no building on that lot. Another lot had been created as part of that subdivision. The other lot. I had 4,582 square feet. And that lot did in fact have a building on it. Had a single family home. Home on it. What happened subsequent to the zoning decision was. That a single family home. Was constructed on lot B. We now rapidly come forward to today. And I have a client who basically would like to construct. A duplex home on lot B. And his position is that he should be allowed to do that. And I think that's a good point. I would like you to focus on. Is the new accessory by law, by the way. That was just passed by tele-meeting. And I'm told recently approved by the attorney general. Which now allows. A homeowner in an hour one zone. Who might have a shed on their property. But now we're talking about existing buildings. Okay. Homeowner to put an addition on a building. In an hour one zone. And create an extra living unit as well. Now, the whole point of that is that there's a recognition. Certainly on the part of zoning. Which is our local legislative body. That we want to have more resident. Residential units in the town. Well, by creating a duplex on the lot. That in fact is what would happen. We would now have two units on that lot. We take down that single house. And we'd construct two. A duplex on that lot. We have, I have with me this evening, Dan Cameron. Who's a registered land surveyor who did the site plan. I also have with me, John Carney. Who is the contractor. Who can address any issues with respect to the building plans themselves. I would suggest to the members of the board as I did. In my zoning memo. That we essentially comply. With the requirements of the zoning bylaw. With respect to dimensional. Matters. With respect to open space. Landscaped usable. And other matters as well. One of the matters that had been raised by neighbors, by the way. Was that they were not really enamored. Of seeing a sunken driveway. At the property. That is something that we had in fact considered. Initially. Once we heard from the neighbors. That they did not really like that idea. We modified our plans. And as you can see from our plans, the site plan prepared by the registered lands of air. We're going to have surface parking. And not sunken parking. And the neighbors, I believe wrote a letter to the zoning board. And basically said, we don't object to, they put it on the basis of a change of zone to R2. Well, it already was an R2. The whole issue is whether in fact, my client can construct a duplex on the lot. I'm going to. Have the. The board open up any questions they may have for. Mr. Cameron, but before we get to that. I'm going to suggest to you that. With respect to the special permit requirements. I've covered those in my memo at the very end of my memo. All of them. And I believe that we do satisfy all of them. The duplex that we're proposing. Fits in nicely in the neighborhood. The photographs that were given to you. By the neighbors. Show other homes, two family homes in the neighborhood. And the duplex we're proposing fits in very nicely. With respect to the zoning decision that today would be defective. Because there were no findings of fact that should have been made. My position on that is. That the board. Now can in fact deal with the matter. Deal with the matter on the basis that we're complying with the zoning bylaw. With respect to dimensional and all of the other items. The only item that I fall short on. Would be the 6,000 square feet. We do not have 6,000 square feet. I'm suggesting to the members of the board. That they can in fact. Grant relief by way of a special permit. And by the way. We don't even know whether the subdivision that occurred in 1955. Was by way of a special permit or a variance. Because none of the documents filed. The paperwork at that time. Indicate whether it was a special permit or a variance. So therefore I am operating on the basis. It was a special permit. And so there I'm before the board this evening. Asking them to grant relief by way of a special permit. And not by way of a variance. I'm going to ask. The board if they have any questions for. Mr. Cameron first. On the site plan portion of the, of the property. And once we deal with that. Any questions of board may have for Mr. Carney with respect to the building plans can be addressed as well. By the way, we're only up two and a half stories. We're not a three story building here. We're two and a half stories and not three. Do any members of the board have any questions for Mr. Cameron. I'm going to go ahead and put up that landscape plan on the screen. So this is the current landscape plan. Is that correct? The one that just went out to you. Yes. Mr. Chairman. Mr. DuPont. So before we get to the next slide. Mr. Chairman. Mr. DuPont. So before we get to the surveyor and to the contractor, I actually have some questions for. Mr. Nessie. With regard to the application, the petition itself. So are we okay to go there, Mr. Chairman? Certainly. So the notice itself actually cast this as an appeal from the commission. I think that's a good point. I think that's a good point. I think that's a good decision of the building inspector. And I realize that this gets a little complicated. And we've seen these before where we literally have a decision by the board in 1955 that says neither of the lots comply with the zoning requirements. And I always find that puzzling as well in terms of, well, what was the basis? Was it a special permit or variance? So I guess the first question is if this is being cast as a, an appeal from the decision of the building inspector. I know we don't actually get written decisions from the building inspector, but I'd like to know a little bit more. About what the basis. For the, the denial was, and I'm not sure perhaps Mr. Valerie knows. I think Mr. Champ is also at least I saw his name. So that would be important for me to try to assess what it is that we are dealing with here. And I would just add that I think maybe the other way to ask the question is what would, what's preventing this from being a bill as a right. So I think that's a good question. I think that's a good question. And I know you've already said it's under the 6,000 square feet. So I just want to know sort of what the lay of the land is both figuratively. And literally. So that, you know, I know what it is that's being asked of us. Mr. Chairman. Yeah, sir. Could I, I will. I don't want to get in between Mr. and Mr. Chairman. I just want to remind the board that we had a number of questions about the sort of, I want to make of the decision that was made in 1955, given all of the defects and explanation that we had. And that Mr. revelack and I took that to. Mr. Heim to ask his view. And to the extent to which that seems to be relevant after Mr. Heim, I can fill you in on what Mr. Heim told me. I can add to that. If I could, Mr. Chairman, please. Mr. Heim and I did have a discussion about this. And we had talked about many of the undersized lots down in East Arlington. And that maybe some thinking might be. Maybe some thinking might be. I don't know what to add into what could be done about some of those undersized lots. That having been said. Mr. Heim said to me. Bob, I suggest to you that what you do. Is you file. Again, with the zoning board. And you file for a special permit. Now, Mr. DuPont with respect to your issue. Mr. Heim. I think the building department and I think rightfully so. Is a concern on their part. When they see a decision. From a 1955 zoning board of appeal. That basically doesn't make findings of fact. As we would have today. So with that, I think that. I don't think I should decide this at my level. I think maybe this should be decided at an appellate level. And the appellate level, of course, is the zoning board of appeal. So that probably is the reason why it's before the zoning board of appeal right now. I would have preferred quite frankly. That it's got the issue be dealt with. At the lower level. But that isn't the way my experience is that it's done. Mr. DuPont. Unfortunately. May I follow up? Mr. Sure. Absolutely. So what I'm trying to get a handle on then is are we talking about a. No decision. By the building department. Which says we're not deciding this. Go to the board of appeals. Are we. Are we dealing with a decision, which is a denial. Which is, you know, an affirmative denial, if you will. Express denial, if you will. So, so because if. You know, generally speaking, the building inspector will issue a permit. If the. If the project is in conformity with zoning. And so if there is an express. Denial, you would think then that there is a reason tied to the zoning bylaw. As to the, as to why it's being denied. If on the other hand. It's no more than I can't decide that go to the board of appeals. That's an important distinction for me. To know. So that I can sort of assess this from a different perspective. I don't know if that's a good point. Maybe Mr. Valorale has a different opinion than I do. But I think it's the second point. Mr. Dupont, that is. That the building department did not feel. That based upon the 1955 zoning case. They have enough information to decide the issue. This is almost like a Roger. You would understand this. But it's not a very. Preparatory judgment. Okay. It's being sent to the zoning board by the building department saying, you should decide this because we can't. I actually have the inspector. The director of inspectional services is asking to be recognized. I think at this point it's probably. Prudent to do so, Mr. Good evening. I might check by director of inspectional services. So I actually read the decision and then like today. It was beyond the authority of the building department to be able to issue. A permit for a new home on that lot because then like today, it was a member sized lot. So it had to go before the zoning board. Thank you for that. Mr. Chairman. Yes, please. I wondered if Mr. Good evening. Ordinarily, what happens when you get an appeal from the zoning administrator is that the zoning administrator has the authority to do a certain thing. And is and fails to do it. For reasons which are being challenged. And then it comes to us and we decide whether the, they have the authority to do that or not. It isn't common for us to. To do a special permit for which. Apparently there's not an application. And I'm, I'm just a little bit unclear at it. Usually the answer would to, to the answer to the appeal of the zoning. Of the, of the building inspector would be. You're wrong. But in that case. The building inspector can do. I mean. I think the building inspector is right. I think the building inspector is right. That. Can I grant it a building permit for this property? Because it doesn't comply with the zoning ordinance. It clearly doesn't comply with the zoning ordinance. Everybody admits that because it's an undersized lot. So it needs to have some relief from that in one way or another. And, but Mr. Heim is right. And I think that the appropriate way of getting that relief is for him to apply to us for a special permit. In which case we can apply the standard factors that always apply to that. And then grant us a special permit. And having a come to this in this. So that wouldn't have required. Anything other than an application to us. And we could have decided at that point, maybe that Mr. Heim is wrong. And that's not our interpretation of the ordinance or whatever. But now that it's come to us in the form of an appeal, if we agree that in fact we could issue a special permit. In order to. Grant this relief. We don't have this. We don't. So Mr. Nessie, how, how is it that instead of. That we give you the relief that you want. If it's not. If we don't have a formal proceeding for a special permit, then we don't have a special permit. Is there a subsidiary application that we could come on to? Well, I think you do have that. You have a, an application for a special permit. Basically the building department. Has basically sent us to the zoning board of appeal. And Mr. Heim suggested. That what I do is I file an application for a special permit. So that's what we're doing. So this is, so in effect, I'm not quite sure in terms of the notifications, but I'm not quite sure that. The appeal from the decision of the building inspector. Has much bearing on the way in which we consider the case just because. They were not able to grant. To allow you to proceed. And the entire issue really before us is whether you're entitled to get a special permit. Is that right? That's correct. That's correct. Let's say again. The question of the questions that usually come up in terms of an appeal to the building inspector is. Whether the building inspector was right here. It clearly is right. And the only issue that is really before us has to do with the issue with whether or not you should be get a special permit. Is that correct? That's correct. Okay. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. It's on the website identified as the ZBA package. It does include. The original notice, which. You know, states that it's appeal from the building inspector, but it does include. Request for a special permit for the town of Arlington as well. So we've sort of drifted a little bit from where we had. I think that's a good point. I just wanted to ask. In regards to your original question. You're on mute again. Sorry, sir. Where I can do. Okay. So as I look at the request and, and I realized that this is a little bit nettles some and. And so it's a little of this and a little of that. But when I look, as you said, it was advertised as an appeal, but then there's actually. Special permit request. And. At the bottom of that. It says request a special permit in accordance with dimensional and parking information. And so what I'm trying to fathom. Is, I mean, we start out with Mr. Champa's statement, which is it's an undersized lot. And therefore it was sort of beyond his authority. And if we're starting out. At the place that there's an undersized lot. Then it seems to me that we're requesting relief. From the fact that it's less than 6,000 square feet and usually dimensional. Issues are approached by way of a variance for the reasons that we well know the four criteria. And so. Otherwise, when we deal with special permits, we're typically looking at a section of the bylaw. Such as, you know, large additions, for instance, which say that, you know, in this specific case. The board can grant a special permit. And I'm just not clear. Where we have an authority to. Grant a special permit without language, which says in the case of a lot under 6,000 square feet. You know, fill in the blank. I don't know exactly what the language would be, but I just don't know of a specific reference that allows us to deal with the undersized lot in this particular situation. So that's where my concern and my. Question lies and I'm willing to listen to the rest of everything, but that's. That's where I am at this point. If you operate on the basis that the original zoning decision in 1955. Whether right or wrong. Was. A special permit decision. Then I'm being consistent and Doug Hyme. I'm being consistent in telling me that I should file for a special permit, which I have done. I understand what you're saying, Roger. This is a very unusual situation. The unusual part of this is that the zoning board, a board back in 1955. Didn't tell anyone what they really were doing at the time. So I'm asking for relief from the current zoning board to, to essentially almost interpret what the zoning board back in 1955 did when they rendered that decision. Now I don't know of any way to get a matter before a zoning board, other than by filing an application for either a special permit or a variance. There's no other way of doing it. I just did one in Sudbury, very similar to this. And we, we, I essentially argued in that case. To the Sudbury zoning board of appeal. I understand this is not traditional in terms of what we're doing. And I'm almost asking you to exercise some equity in terms of what you're doing. That's exactly what they did. The way they had the authority to do that or not is it's up to them, but they granted the relief. This is a situation where again, I understand that traditionally, if you don't have 6,000 square feet, but you have 5,000 some odd and you're going for relief, you need a variance, variants but that's not what I was instructed to do and that's not what I'm doing. And if you read my memo, I'm trying to hang my hat on what the zoning board did not do back in 1955. What they did not do is they did not say that it was not a two family. They didn't say anything about that issue one way or another. My client needs relief at this point and he can't go back to 1955 and ask those gentlemen what they really meant. They're not around anymore. You're around. That's why I'm before you at this point trying to gain relief. Mr. Sherman, so one quick follow-up then. Had they actually issued either a special permit or a variance? And they said that. What would your posture be here now? My posture here and now would be that they acted on this in a special permit guys back in 1955 as since they did and they knew that the property did not comply with the 6,000 square foot lot requirement, then I'm doing the very same thing now. I'm applying for a special permit when I know and you know that the property does not comply with the 6,000 square foot requirement. So in essence, are you looking at a modification of a special permit? I'm looking for relief from the point of view of my position is that what they really meant to do but they didn't do was say that the property could be an R2 could be a two family because it was in an R2 zone. Everything around it was two families at the time. They didn't say anything one way or another. They talked about the fact that it was undersized. They all knew that. Now if they meant to say you could not have a two family, then they would have said that they would have said we're granting relief but we're granting relief only for a single family home and not for a two family home. They never said that. So that's why I'm before you at this point because I can't go before them. Thank you. So it's a bit of a question as to whether this is under the board can grant by special permit. So our zoning bylaw has a lot of information about non-conforming uses and about non-conforming structures and it's very thin on non-conforming lots. Chairman. Yes, sir. This may be, this is the very same discussion that we had last time and it's the very thing that we referred to Mr. Hyde and the difficulty is that we're only just telling stories to ourselves when we say this was a variance or a special permit. There's no indication that there was even authority to create a specialist permit on an undersized lot back in 1955. Clearly the law and variances is what it was then. They didn't say they were doing a variance and they couldn't lawfully have done one at the time and it's a perplexity that we referred to the town council in part because they did this all the time. We had a similar case on 64 Brattle in which they created a non-conforming lot and it didn't seem to bother them whereas today we would not do it and we would not believe that we have the authority to do it. So there are a lot of legal doctrines that might be used to try to deal with this but from today's point of view is an anomalous situation. We could try to put this into the format of prior non-conforming uses and it's not really a prior non-conforming use but maybe the fact that it was created by the ZBA at that time means that similar rules should apply and there may be other options but the one that Mr. Hyde set along is the one that Mr. Enesi is asserting now that the way to deal with the kinds of questions that are being created by this is not to get into rarefied discussions but to treat it as if just treat it as a special exception application and it's not really rooted in the notion that this was in fact a special permit situation back then. It's rooted in the notion that this is the most practical way to get at a common practice in the 50s and 60s of creating lots that today could not be created by the board or anyone else really. The laws changed a lot since that period of time and we need to figure out a way of dealing with it. The Mr. Hyde was influenced to some degree by the fact that as anomalous as the situation is the the rules that give the ZBA the most the greatest degree of discretion in figuring out what to do and that leads us to be hoisted by our home retard's last is to treat it as a special to treat it as a special permit application and then to apply what today's standards would be to apply a special permit application. Later you'll find that I completely disagree with Mr. Inessie that the question here has anything to do with whether it's one or two houses on this lot but that really isn't as important as knowing what legal framework we're in and I think if the board really is feels uncomfortable with the town council's determination which was really based on quite a lot of research into doing into the situations in which this happened in the past that we should ask him to give us a formal letter rather than just than just rather than rely on me to convey his sentiments to you. But I think that Mr. Inessie is acting on the basis of the as the advice that he got in a separate conversation with town council after town council had spoken to me. Thank you Mr. Hanlon. I think possibly what this comes down to is under 813b in the in the zoning bylaw so essentially what we have we have a we have a non-conforming lot but we have a non-conforming building on a non-conforming lot and as Mr. Hanlon pointed out we had a prior case of 64 Brattle Street where an applicant wanted to raise an existing structure and build a new structure that was more conforming on the lot but wanted to do it by right and the board had stated that that was not something that could be done by right but had to be done by but it could be done by special permit and we had at that time if I remember correctly we were looking at 813b which says that no alteration reconstruction extension or structural change to a single or two-family residential structure that increases the non-conforming nature of said structure shall be permitted less as a finding by the Board of Appeals that the proposed alteration reconstruction extension or structural change will not be substantially more detrimental to the neighborhood and thus that's usually a special permit determination and this would be essentially a reconstruction. Mr. Chairman. In this case it is not necessarily increasing the non-conforming nature of the structure but it is a reconstruction of something that's existing as a non-conformity and as such this seems to imply that as a special permit the board could grant relief. Mr. Chairman. Mr. Hanlon. In the 64 Brattle Street case actually the issue there we decided that it couldn't be done at all and the reason was because the question was what a reconstruction meant and we took the position that was consistent with the long-term interpretation by ISD that a reconstruction was something other than tearing the house down and building up a new one in its place and that was the case that I'm not quite sure whether it's still in litigation or not but the contention by the applicant in that case was that fully tearing down the house was in fact a reconstruction and since there wasn't any extension of the non-conformity you didn't need a special permit that was the argument in that case. Here it's possible that that if the applicant had been right in 64 Brattle the case before us would not even be before us and it really would be an appeal from a building inspector and again I just want to stress that it is to avoid getting into difficulties like this of treating this as a this isn't really as was true of 64 Brattle prior non-conforming use at all and so you know we can go this way but you have to realize that relying on 8.1.3 b is something that raises lots of issues in town because of what the zoning board did back in those in those days and could have a pretty large impact on the community and that's part of what Mr. Heim was looking at. So with that in mind I'll turn to the trained lawyerly ones on the on the board how do we proceed on this? Mr. Chairman I suggested before that that we ought to hear from Mr. Heim himself rather than hear say from me and if this continues to be the issue from us Mr. Heim has done the research I believe that I've accurately conveyed his conclusions but I don't necessarily have the ability to convey all his reasoning and I think we should ask for for a letter from him to say in writing and maybe come before us and explain what what he thinks the legal framework is and what we have the authority to do. Would it would it make sense to go through the hearing and hear from the surveyor hear from the contractor so that you have all of that information and hearing from Mr. Heim could kind of be like a conditioned subsequent that Mr. Heim opines that it's something the board does have the authority to do then I think at that point at least you've heard the case if he decides the other way you've heard the case as well would that make sense? So certainly we could we could proceed with the hearing knowing that at the end of the discussion we have this evening that the board is going to continue to receive counsel from Town Council. Mr. Chairman. Mr. Hanlon. Just just to make an observation is practical matter if in fact we treat this as a case that involves a prior nonconforming root use and are some and in some way get around the reconstruction issue that we have the standard under 8.1.3b of not substantially more detrimental to the neighborhood is probably going to be something that is very close in fact to the standards that we'll be applying under the special permit so that we would not be wasting our time having a hearing on the merits regardless of what legal framework we ultimately decide should apply. So with that in mind let's proceed with the with the hearing on this case because Mr. Inessia had noted we do have a lot of people here present not only on behalf of the applicant but we do have I know a substantial number of people from the from the neighborhood who are here who would like to be heard as well. So let's go ahead and do that on the presumption that the board would be looking towards the criteria for a special permit and then at the close of this hearing rather than calling for a vote of the board we would be continuing and then issuing a request from town council to issue written either written guidance or appearance the board's next scheduled hearing is December 21st and so I think we would be looking to continue to that date. Okay the as I had indicated before we get into this part of the discussion if the board has questions for Mr. Cameron who is the surveyor he's here to respond and Mr. Carney is here to respond to questions with respect to the construction as well. Thank you. So I did find there was there is a slightly revised version of the site plan relative to what I had provided earlier and so this one does include I'm just going to reduce a little so it fits better some additional notations that the application so that the it's a proposed two-family duplex dial dwelling they're requesting a driveway on the one side and then they would need a special permit to request a second driveway on the opposite side they're proposing what appears to be a foot and a half wide landscape buffer on both sides which is a requirement under the bylaw and they have a large backyard space which is counts as usable open space to the point where the where the portion of the backyard is at least 25 feet in a specific direction so at this end it's a 23 and a half so at whatever point it reaches 25 feet the from there over it qualifies as usable open space is there any question from the board about the site plan if not I'll switch over to the none I'll go ahead and pull up the drawing set Mr. Nessie I don't know who you'd like to have speak to the plans Mr. Carney John Johnny you on John Carney yep yep I'm here good he's on okay if you could just walk us briefly through the plans that are on the screen and then I'll scroll by we can talk on the elevations as well so those are the interior floor plans it's basically kind of self-explanatory you have a living area and a kitchen on the first floor half bath two bedrooms a laundry a bathroom some closets on the second floor and a master bedroom and a master bathroom on the third floor how about the basement John what's in the basement mechanical space okay not living space correct no living space in the basement and it's two and a half stories correct all right now I was just going to ask that so the I'm not certain if the shaded area here represents specifically the area seven feet or greater or if it's at a different height but correct you're correct as it states so this year just need to confirm that to the boat does it only by law it's not the portion of the floor here with the ceiling a seven foot three it's actually seven foot zero I think no okay no it's the other way around that's decided okay elevations front rear the two sides and what is the maximum height of the building it's not like it depends on the average grade there but I'd say it's around 33 feet okay structural plans section so don't correct the section on the right hand side is the street side and the left hand side is the rear yard and that's the final sheet at this point are there questions from the board or regards to what your request is should I say sir anything further you'd like to say on the plans yes sir I was just wondering if somebody I'm trying to look for it now but if somebody could just say what the distance is between the two driveways switch back to that plan so our front lot line is 60 feet we're losing basically 10 and a half off of each side so we're losing 21 feet so we're 39 38 and change I guess the one question I would have in regards to the site plan is the location of driveways on adjacent properties are they immediately adjacent are they further away and are you on yes I am on this particular on the northerly side of the left side there's no driveway but on the right side there was a driveway on the house that abuts warren street and there is a driveway part of a driveway on number 93 warren street okay is that up on the lot line or is that further away on the for my recollection on the 97 to 99 warren street which is the property at the corner it's further away I believe there's a grass strip there's a garage there and on the the property at 93 warren I don't believe the driver comes all the way to the rear because it's you know it's coming in that's that's the real line of that property I think it ends you know before the fence from my recollection that in mind I'd like to open the meeting for public comment so public questions and comments are taken as they relate to the matter of hand it should be directed to the board the purpose of informing our decision members of public or will be granted time to ask their questions and make comments the chair asked of those wishing to address the board a second time during any particular hearing to please be patient allow those wishing to speak for the first time to go ahead of them members of public wish to speak should digitally raise their hand using the button on the participant tab in the zoom application and those calling it by phone please dial star nine to indicate you'd like to speak they'll be called upon by the meeting host they'll be asked to give you a name and address and you'll be given time for your questions and comments all questions are to be addressed through the chair please and remember to speak clearly and once all public questions and comments have been addressed the public comment period will be closed for this hearing the board and staff will do our best to show what documents are being discussed so are there go ahead stop share on this for the moment are there members of the public who wish to be heard on this matter seeing anybody i'm flipping back and forth here i'm not seeing the button for requesting ah the bigger part it has moved thank you zoom for updates is now hidden under the reactions tab so those who wish to call the bond should raise their hand using the button under reactions mr. hazelton go ahead well first of all i'd like to thank the applicants for taking into account the letter that the community sent to the board and you know it's obvious that this is in part responsive to the concerns that were expressed in the letter i guess what i'd really like to say is to ask a question of the board and my question is in in defining what's quote unquote detrimental to the community what weight if any would the arlington design guidelines have in the board's mind i mean i guess my question is are are these significant is that a significant document that means something or is is that just sort of pie in the sky that some architects put together um excuse me i mean the design the design guidelines are a set of guidelines that they're intended to help developers and those reviewing their plans to address neighborhood concerns and neighborhood patterns and development within the town um obviously the design guidelines were if your project is going through without review by the zoning board of appeals it does not apply the applicant is not required to abide by it but by coming before this board the board has some sway in terms of how it is applied and certainly up to this point the board has not discussed it in regards to this particular this particular application but that is certainly something that we will be discussing going forward are there specific um points of the design guidelines that you would specifically like to reference well i mean i guess i i understand where mr aness is coming from and and saying that we that they've been sensitive to the concerns that were expressed in the letter because probably uh 75 percent of the itemized items referred to the the park under feature and so i just want to be clear that from our point of view not having that is a is a distinct improvement so i i i want to be clear about that and not sound uh churlish uh the way i read the design guidelines it's it's not encouraging split driveways and 40 foot wide duplexes and it's encouraging consistency with the rhythm of the context uh which to my mind would be palmer street which is is mostly not duplexes i think there may be one on the street but i don't think it has a split driveway uh so i i don't think that the proposal as revised is adherent to the design guidelines but i do want to acknowledge that it's it's way more adherent than it was and and that's all i have to say thank you sir mr selzer thank you mr chairman don selzer Irving street uh i just have a quick question regarding the calculation of the gross floor area i think it's on the second page of the application now the area underneath that is a seller not a basement is that correct that is correct and i believe that seller in a residential use um the entire area counts towards the gross floor area so where it says 780 square feet it probably should be 1560 square feet and that has implications as far as the calculation of required open space both usable in landscaped searching through the open screen to come up with the document you're referencing so get down it's the part of the application has the dimensional and information at the two tables is this the proper table yes it would be on the next page the other gross floor area calculation so this is the end this is the end camera i can answer that um it's excluding the mechanical area as mr county said so that's my understanding is that the mechanical areas excluded only in basement areas in the seller it's the entire seller used for residential uses no if you look at if you look at the second item where it says basement or seller greater than five feet excluding mechanical area yes but the bylaw only excludes the mechanical area for basements it doesn't for sellers i believe it's both can you address that can i offer some insight here yes so again the issue before the board tonight is whether they agree that the applicant has a bill of a lot with insufficient frontage and insufficient lot area these dimensional numbers we're looking at this goes through a very rigorous process and isd along with 23 other regulations like stormwater mitigation the tree and just so many i kind of name them right now so i think um with all due respect and feel free to proceed if you like this is putting the way before the house none of these numbers mean a thing right now that is not their issue i think when the issue comes if the board agrees that this lot is buildable then it's turned over to isd from that point again it's just an insight in the interest to save it a little time feel free to proceed if you like just thought i'd touch base on that mr chairman yes sir we we eventually i think we one way or another are going to have to give make a discretionary decision and whether or not this these plans violate if we do it will be subject to final plans and these are the only final plans we have before us and it would be relevant to us whether or not we're approving something that is violating the zoning bylaw and we have to consider that we wouldn't be able not to consider that so with all due respect to mr valarelli uh i think we ought to understand at least what the rule is that's applicable to uh uh figuring out the to what extent the square footage in the seller slash basement uh applies is mr seltzer right or not that's that's what i really want mr valarelli to tell me so i can say this any area that depends on the ceiling height of the basement mechanical space is exempt in the basement or any other areas of the house we would have to take a look at the elevations with the ceiling height to make a judgment from there if i could refer you to the exact section of the bylaw to which i was making reference it's five point three point two two gross four area um bar a and it says the areas to be included in the calculation of gross four area are basement areas except as excluded and to be well and that's the reference to um mechanical areas and then the next item is sellers and residential uses without any exclusion that is specified for basement so basement and sellers do seem to be treated differently in terms of calculation of gross floor area again isd would look at the ceiling height the ceiling height from the finish floor to the underside of the framing is our seven feet or greater and we would add that in as gross floor area unless it was dedicated mechanical space i think yeah i think the point that mr seltzer is raising is that by the yeah by looking at the gross floor area definition in the bylaw it does appear to imply that sellers and residential uses are to be included um in their entirety and not proportionately and i don't um but obviously the the practice of the the zoning excuse me the practice of the inspectional services um is not under the it's not under the jurisdiction of the the zoning board of appeals at this time uh correct this chim and so uh mechanical spaces have always been exempt and that's that is the practice of ISD anything further mr seltzer no thank you i just wanted to call that calculation to your attention and i'm sure you'll decide when to take it up thank you sir appreciate that are there additional questions from the public on this application being done and not seeing anyone waving frantically in their window go ahead and close the public comment period for this hearing at the uh so the board has received a um to a number of comments on a number of different points um i think the the obviously the the biggest and most relevant question right now is is this lot buildable which is something that the board is going to need um input from town council on um i think it's also important to note that the you know there have been questions raised about the the size of the building and how that's that's probably calculated and also how the building is in compliance with the um excuse me with the the residential design guidelines and since we do have some time here um between tonight and when the board would be continuing this hearing to um i think it would be appropriate not only for the board to address to uh to request of council that we receive a memorandum specific to this site but that would the board should also take a look at uh this property in regards to um the residential design guidelines and possibly seek the advice of the um the planning department in that regards and we have a planning department memo um based on an earlier application and i think it would be um appropriate and i can go ahead and speak with the department of planning community development and see if they can um provide us some guidance in regards to the application of the residential design guidelines um for this property and then we can we reconvene um at the next hearing we can discuss that as well i may i say something Mr. Nessie please yeah i addressed the uh criteria for a special permit in my memo and that's what i think i'm supposed to address i'll be more than happy to look at the design guidelines as well but that's not contained in the uh special permit portion of the zoning bylaw with respect to what i as the attorney for the applicant need to demonstrate to the zoning board of appeal now maybe you'll get into that uh in an indirect way but uh there's nothing in the special permit portion of the zoning bylaw that incorporates those design guidelines i need to look at the criteria the seven criteria set forth in section 3.3 point whatever it is that's and that's what i've addressed in my uh in my memo one more thing uh i just need the board to understand i didn't do this application for a special permit on my own i'm not on a frolic of my own mr. Hanlon i did this because i was instructed and told to do it by mr. Hyme uh i i certainly would not have done it okay had i not been uh informed by mr. Hyme that this is the way i should proceed i just want that on the record at this point that i'm not here wasting anyone's time i did this because i was told to do it by town council the chairman mr. Hanlon i i just want to re-emphasize that uh that's exactly what i said that mr. Hyme had had a conversation with mr. Anessi where he conveyed that the right framework to deal with this is a special permit and now we're asking him to have a conversation with us where i assume he'll tell us more or less the same thing um so i certainly there's no implied depreciation of mr. Anessi who has been able to representing his client if while i have the floor i should just say that when it comes to the residential design guidelines they come into the special criteria the special exception special permit criteria by way of criterion six because we're looking at compatibility with the character of the neighborhood and those are guidelines that are designed to help us do that and we use them in that way not as rules that are enforceable but as ways of enabling us to apply the rules that are enforceable and applicants before us have recently been quite overt in using those criteria and those guidelines as a way of of of showing that they meet the rules that we're applying to them and obviously any applicant can either ignore them or not but our history is that we have given them a considerable amount of credence when we've been applying the special permit permit requirements we're certainly not ignoring them mr. Hanlon we we did have them in mind when we changed our sunken driveway to surface parking that was one of the things we changed to having heard from the neighbors as the mr. Hazleton indicated mr. Anessi i do appreciate that mr. Chairman Mr. Ork i just want to concur that i do think it's a good idea to get the memo from town council because as mr. Dupont pointed out i think it's mr. Anessi knows even though attorney heim said this we can do this under a special permit it would normally only be done under a variance and just like we're looking back at this old decision from 1955 and saying what how and why did they do that we should have something on the record for this decision as to why we didn't do it as a variance if we're going to go thank you thank you sir mr. Chairman mr. Dupont so i just when we request some guidance from mr. Heim i would just like when i'm looking at the section 3.3.1 special permit granting authority i would like some clarification of the second sentence it's a short paragraph and it says that the appropriate special permit granting authority is specifically designated where applicable and as i'd stated earlier to me that has always meant that there are provisions in the bylaw that say a special permit is permissible under the following conditions and then there are specifics and i realize that this is a completely different type of situation and we're going to encounter it more and more in town and perhaps it's something that the you know town meeting by way of a zoning amendment should address these types of situations but i would at least like to have some sense as to how mr. Heim views this case in light of that second sentence thank you thanks well so i think at this point where the procedure as far as we can absent information from council in regards to the the property and so i would with the agreement of the applicant uh request a continuance on this matter until the next scheduled hearing of the board which is tuesday december 21st so agreed thank you mr. Nessie with that i move the continuance on the special permit application for excuse me 83 Palmer street until tuesday december 21st at 7 30 p.m second thank you uh vote of the board mr. Dupont hi mr. Hanlon hi mr. Owork hi mr. Ford hi the chair votes i we are continue that uh going back to our agenda and thank you mr. Nessie and and uh and those who brought with you to uh for appearing before us this evening thank you the next item on our agenda is docket number uh 3676 1618 swan place um for the purposes of this hearing um board member roger dupont has for accusing himself as he um as a professional matter has some dealings with the family uh so there are four members of the board who are able to proceed with this um hearing at this time so with that i would uh ask mr. Potter to introduce himself and tell us what he is asking to do i'm ben potter i live at 16 swan place i am proposing i currently have no parking uh off street parking and it hasn't been an issue uh because we hadn't had kids yet and then we had kids and we only had one but actually our daughter was just born actually last night um yeah congratulations thank you and it gets to be an issue in the winter time parking on the street and um and then during snow emergencies have to park in say the town lot for another location and then bustling kids back and forth um and and so forth uh so i spoke to jeff sacca uh who was on this call at 730 um but had to go because of his kids to to come out and look at the the property and see if we could get parking um he put together uh a proposal where the 1618 swan place is a side by side duplex um built in 1820 there are three uh identical houses all in a row on swan place um and we're the middle house in that both the other houses have parking um we're the only ones without parking you can't get down the side of the house to put parking in the back because our front doors to each unit and this is all shown on the pictures that that we submitted um the front doors to each unit are on the side of the house there's no access to the house from the front um so jeff sacca proposed putting uh single car parking uh in in front of each door um so if you if you go to the pictures there so that picture's fine there uh if you look on the side that's the door um in the back there yep right there and then there's a front um kind of walkway in the front on on our side and then there's a porch on the other side which we're planning to peel back um so we'll we'll need to leave the door on the side and um and then we can get a car a car on each side um and not have a car parked on the on the uh sidewalk um and then that's the proposal he put together um and I was there that's a picture showing I guess we need vegetation so there's the front walkway that's my side on 16 um so we're gonna take up this this cement uh area and put uh so you could fit a car there um and that would require uh two curb cuts the curb cut for 16 side and a curb cut for 18 side um that's my neighbors who have parking um and then uh and that shows uh vegetation I guess the vegetation was needed um to document um and then I I I guess uh oh uh Jeff also spoke to um that's that's 18 side we're gonna move that um that wood area back to fit the car in um Jeff also spoke to engineering he explained the the plans to engineering and they agreed and said that they had no problem with it I've also spoke to Rick Valerelli um who advised me to submit the uh forms for the variance and special permit to have um a dry uh two separate driveways one for each um each side of the duplex and for parking in the front uh due to the fact that we can't get around um the front doors to each unit which are on the side and I I guess I can open it up for a question oh we also had I have spoke to I've lived in this neighborhood um since 1994 um my father um I grew up right across the street here at 7 Swan Street I know all the neighbors I spoke to all of them um a number of them said that they were planning on coming tonight I know that that some of them did um but they they weren't able to stay until nine um due to their schedules but everybody has been in support of this um and I've heard no objections thank you um did you receive a copy of um a memorandum prepared by the Department of Planning and Community Development in regards to this um I don't believe so okay I know because they have um some questions in regards to this application go ahead and switch documents um so they specifically had some concerns about the depth of the parking spaces that could be achieved um we're noting that um so I think I think this is all stuff that um that Jeff Saka had spoke to um that with the with the parking on the side we would have plenty of depth that we would not block um the sidewalk in any way okay on the building itself oops that's actually a good image no it's not your house um do you know what the distance is from like the edge of the port the edge of the top step here to the sidewalk is that greater than 20 feet you know the edge of the top set of the stairs yeah to get into my house I believe it is greater than 20 feet okay I can check right now as I was going to say because um there's those conditions there's that I think that's one of their larger um concerns but then there's the board also needs to consider the the criteria for a variance um and the criteria for the variants are set by state law they're not set by local ordinance yes I think that's that that's something that that Jeff Saka um who is bonded by the town has looked into and created the plan for that with that in mind okay so has he submitted any additional plans other than what we what we see here no um no he uh he has as I said he spoke to engineering uh in person he does a lot of work for the town and um and they said that that they didn't have a problem with it and then he advised me to fill out the the paperwork that I submitted uh to you okay well open us up for questions from the board other questions from the board uh Mr Chairman I guess I'll start I don't know this at all um uh how can we tell the distance from the structure especially the stairway out to the sidewalk from what we have well we certainly you know we have this one indication here that the you know before we get to the the house there's a space that's nine by 18 um but we certainly don't have anything that you know the seal here doesn't apply to these notes the seal applies to the plan in general so we don't have you know a true site plan that demonstrates so okay so if that if that is eight 18 feet as we have documented here then that shows if you go to the picture of my house with that cement pad um that's that's well over two feet that cement pad starts at the front of my house so so it's clear that that's that's over two feet yeah so it's tough to know from the the plan doesn't indicate the location of the sidewalk um it's tough to know if the sidewalk is on this you know if this if this is the line of the actual street then the sidewalk is inside of that and so we don't know we're still looking at the planning memo did you put up the um what you're looking at please sorry thank you for that so on this plan here yes so the the line of the street um it's can't tell from this plan if this is the actual line of the curb or you know in where the sidewalk is relative to that and the size of the sidewalk which i think as mr. Rourke is getting at a sort of very critical information for understanding exactly where the sidewalk would need to be constructed oh excuse me where the driveway would need to be constructed in order to avoid interfering with the sidewalk right right i completely understand it was my understanding that uh that that that plan is my uh my property it didn't it didn't occur to me that that would include um a sidewalk on the the site plan for my property yeah i mean it honestly around town it varies and sometimes the sidewalk is on the property and sometimes it's not so it's um we're we're in the center of town yeah yeah right so one of the one of the key questions the board is going to need to consider um if the board is allowing so the the town does not allow parking in the front near its setback so in order to allow parking the front near its setback the board would need to grant a variance to allow it and the variances have you know four very structured criteria that the board needs to address and so the one of the first question the board really is going to need to consider um as we're discussing how we would want to proceed is does the does this property does this uh does the property meet the criteria for a special permit uh variance need for a variance for a variance because short of in order to grant parking the board's going to need to grant a variance if the board wishes to grant uh a parking space on either side that that then is a special permit because it also would require um a second driveway but if the board can't find that the property meets the criteria for a variance then we're sort of stuck at stage one um by then before we before we discuss that um Lazarus anyone else on the board who wish to go forward I would like to open this up from the public um I know we have at least one person with their hand up but I think that if there are members of the public who are members of this um of this neighborhood it would be very good to hear from them okay so with that I will go ahead and open up the hearing for public comment um as I said before members of public wish to speak should digitally raise their hand using the button which is now on the reactions tab in the zoom application and those calling in by phone please dial star nine to indicate you'd like to speak you'll be called upon by the host and asked to give your name and address for the record and you'll be given time for your questions and comments so that the first speaker we have is Mr. Moore uh yes thank you Mr. Chairman Steve Moore Piedmont Street uh I am not uh in the neighborhood if you if there's anyone else that wants to speak that's a neighbor they should probably speak for me uh their hands up though so you're currently the only one with a hand up okay um just a just a quick question um there certainly are a number of properties in town uh significant number of properties in town that don't have parking on their sites uh and those are the folks of course of parking the town lots and such traditional emergencies um what is the board's general position on adding parking to uh structures and units like this in this case a two family or perhaps even a single family that doesn't have parking about adding parking when none exists the properties of that are under that condition certainly have changed hands number of times and purchased without parking uh um and sold without parking does the board have a general position on adding parking um I don't believe we have a general policy in regards to parking I know that the as a part of the zoning bylaw um one of the one of the intentions of the zoning bylaw is that parcels that are currently non or that are currently non-compliant are brought into greater compliance over time um and so currently this property is non-compliant and that it does not provide parking um and by the zoning bylaw it would be required as a two-family property to have two parking spaces and so it certainly was within the um I think sort of the the intent if you read the intent of the bylaw where it says that we should be seeking greater conformity with the bylaw then we should be considering adding the adding the parking spaces I know and there are other discussions in town in regards to you know net zero policy and others such such matters that are trying to reduce the amount of of vehicular use in traffic and certainly um arguments have been made at town meeting in regards to you know whether there should be you know how much parking is really required um but I think in you know in this particular instance there are there are reasons expressed by the applicant that you know certainly makes sense for his circumstance and for um circumstances of property like his in general but I don't think the the board doesn't have a very specific policy um in mind in regards to whether parking should be added when that exists okay thank you that that that helps me understand uh a little better but so generally the board's guidance in these sorts of cases is to try and bring a property into greater than a non-conforming property into greater compliance with the zoning laws correct that's generally your your approach so I mean that's that's uh in an intent of the zoning bylaw and so in as much as that that's what the bylaw is is requested the board does the the board tries to follow that as best it can okay uh thank you this is a uh a two-family home correct of which I assume the applicant lives in one half of it that's correct yes uh and is the current zoning is the current compliance with zoning bylaw two spaces per unit so there'll be four spaces required on the law so current zoning is one space per unit one space per unit okay thank you mr yes you're very welcome and um mr potter just to make sure I understand this properly the the there is no front doors to the property that's correct yes there's no front doors to the property the the access to each unit is on the side of the building okay yeah so that's our front door right there that you have your your mouse on that's okay that's 18's front door and there's but there's not a front door out here in this area that's correct there is no front door in the in the front of the building perfect okay thank you um next on our speakers list is mr kendall or is that correct yes hi if you give your name and address for the record and tell us what you'd like sure uh paul candellori it's 58 lombard terrace we're actually directly behind um ben and uh from the the plans here um initially I was watching to see if there was any talk about constructing a garage or something in the back apparently that's not the case um but I first of all I'd like to say completely for this um I have no objections and um we also it our um residents have no driveway so again I encourage anytime uh that someone can get the driveway and we do the same thing we you know in the winter time we're parking in the lot and you know schlepping back home in a snowstorm um because of the the lack of a driveway um I also just wanted to point out you were saying that um you know if you found a reason um for him to put the parking up front it seems just seems to me that having his front his entrances where they are completely eliminates the the possibility of him going beyond that and that hopefully that that will help um that that is your reason for saying they have to put the driveways up front um because there really is no way to get past thank you very much yeah and I also understand the certain distance from the sidewalk and that's not clear um so there could be you know stumbling blocks but again just wanted to give my my voice to encourage um you know when people apply for adding driveways to um uh you know properties that don't have them that it's definitely a good thing um I I find it you know it's odd because there's a no parking there's a no overnight law yet there are all these properties in town that don't provide parking so it's a it's a bit of a conundrum anything further sir but again no that's it just again no objections so uh I hope things proceed well for you Ben thank you very much paul I appreciate you coming sure yep thank you thank you very much sir you're welcome are there any further members of public to speak on this matter none of them go ahead and close the public comment for this evening um so I think the the first question before the board is do we have sufficient information to proceed um with findings of facts in regards to the possible applicability of the of the variance criteria to share this real work um don't we need a certified plot plane with these measurements or some sort of you know other than the mortgage inspection plan with with numbers on it of the distance from the sidewalk up through where the end of the driveway is going to be um you know I think maybe we should have a discussion about the criteria just so we don't go do that and then die on the criteria but I think we would need that but I welcome your thoughts yeah certainly I think where everything sort of hinges on whether or not the site qualifies for a variance um I think that's really sort of the first question and you know the first criteria is whether there's anything related to soil conditions shape or topography of the lot that um creates a heart essentially creates a hardship that can but that is unique to this property um Mr Chairman yes sir um I really would like to focus on that and I'm not sure and I think it might be dispositive but I certainly this is another case like the Webster Street case where I'd really like that to be able to do something to serve the objective um but I'm we know that there's nothing about the soil conditions that matter here we have heard a word about soil conditions and the topography is quite flat so there's no special requirements as far as topography so that pretty much puts you to shape and when you look at it this doesn't seem like an unusually shaped lot uh what's wrong the fundamental problem here is has nothing to do with the shape of the lot it has to do with the placement and design of the building that given where they are they can't get to where they need to be without without a whole lot of reconstruction um and you know that if we were to interpret this uh precisely because it's an attractive to try to find a way uh to to treat the the shape of the lot criterion in a relatively loose way we are likely to have that quoted back at us any number of times because this kind of problem comes up in almost every every uh every variance case and so even apart from the fact that state law it takes a strict view it seems to me that we need to be careful to be to approach this in a in a in a consistent way and I guess if there's if there's an argument for why this meets the the shape criterion I don't understand I don't understand what it is I do understand why there's a hardship because of the way in which the building is situated on the lot and much else that is the sort of the way things are uh but the state didn't see fit to make that the inquiry that we are supposed to do chairman yes sir could you pull up that first criteria so they can see what we're talking about absolutely the zoning by law on the variances of the variance criteria in our zoning by law would it be on this application um there's a request for special permit oh that's right oh and there but that's a special permit conventional form I think he included it I can bring up the memorandum special permit so the document that we have from so this is the memo from the department of planning and community development um and so here they in an abbreviated fashion they do the first set of criteria is a criteria for special permit but this is their reading of the interpretation of the variance criteria um but they don't provide much detail we did mr chairman yes sir if we might want to step if we want to it'll take me a couple of minutes but I can easily shoot you a copy of the provision and state law if I can just I've been trying to work through my hard drive while we've been talking and have been having a hard time coming up with it but I will do it I can certainly do it relatively quickly I do have the here I just found a very pulled up a variance a blank variance applications let me go have that yeah the variance applications actually also have to to uh paraphrase paraphrase state law um but I I can if you want if it's I don't I have no idea how you could enable me to screen share what I'm looking at now um but I could I could shoot it to you well I think this is fine mr chairman I just wanted the app to see what what we were talking about um in that in order for him to do this it's not a special permit it's a variance correct yes right so the first correct that and all four criteria have to be met and the first one is sort of the the circumstances related the soil conditions shape or topography which especially affect the land or structure in question which do not generally affect the zoning district which the land or structure is located um and so I think the the question is as mr handlin I think was phrasing it is you know that there isn't anything in particular about the soil conditions or the topography that lead to an issue um and so it really comes is there something about the shape of the property and how which officially it's especially excuse me affects the land or structure in question which doesn't generally affect the zoning district which the land or structure is located I think the the question then is is the is the plate so the building predate zoning um in town and so is there something about the the way that the building is cited on the lot which now there's now this zoning has been overlaid creates a condition whereby that you know is not general to the district means really there are other properties on this street that have sufficient side yard to get to the back because of the way the the houses either the houses were established after the the zoning act was enacted or um just happened to provide enough access be around the house um whereas this structure here does not um certainly one question to consider is the the building next door so the the building adjacent to it closer to massachusetts avenue does have two driveways and a parking space across the entire front yard um now I don't know and I don't know if if mr valarelli has any idea if those were constructed with permits um but certainly there are other buildings in this neighborhood where this approach has been taken and I don't know if that is something that should enter into the board's decision or not mr valarelli do you have any idea in regards to this how the parking that might be on adjacent properties may have been constructed I don't mr chairman so there's no building permit required for uh installing a parking space or a driveway there's there's ruled in regulations and if there is a curb cut that's dealt with a permit through engineering but as far as an actual building permit being required to construct a driveway no that doesn't exist um my guess would be those driveways are there for a while or the uh or the owners just put them in unaware of the restrictions and uh we're never rewarded or there's a lot of circumstances all over town so in regards to this first criteria I think that what mr was telling me was saying before is that certainly we you know in an attempt to try and validate and sort of substantiate what the applicant is requesting we could do we we don't want to get ourselves into a position where we agree to something that then become this you know canon for future cases before the board so I think my I guess the question I would have to ask other members of the board is you know where do we really stand on this question um and if we're uncertain will getting additional information about the site lead us to being able to to make a better decision or do we just or in general do we just find that the property does not meet the first criteria um mr chairman yes sir can I one of the things that we might want to think of that I've not adequately thought through um the as you can see in the variance criteria here is circumstances relating to the soil condition shape or topography which especially affect the land or structures in question and clearly the soil conditions don't affect the structures or at least they're not of the structures maybe they or maybe like I can see where that goes and topography is not a structure sort of thing either and I'm wondering whether there is any authority for the proposition that even that even though the plot the lot is of a perfectly ordinary shape or it doesn't pose any particular problems that this is the variance criteria are broader and that somehow the shape of the of the structure might might do so I feel nervous about the whole thought of that but it's a legal question and state law so it is something that that we may want to have advice on absolutely so if we if the board wanted to seek additional guidance from council we could do so and we would need to continue at this point um are there any other points that we would want to get input from council in this regards we're hearing none um whereas you know the whereas criteria number one really is the crux of everything at the point at this point um I agree with Mr. Hannah it would be helpful to get input from council as to whether we can grant the circumstance for criteria number one that would allow us to proceed I know that the the memo from planning um sort of notes that the side yards are of insufficient size to provide off-street parking for residents of the structure and there's no ability to provide off-street parking anywhere on the property except within the front yard setback that doesn't necessarily mean that the that this criteria is met um so if it's acceptable to the applicant that's acceptable to the board I think I would request I would recommend that we continue and receive written guidance from council in regards to that point and Mr. Chairman did your work I think we also need um you know clearer measurements on a plan uh before we're going to look at this again is did you agree I would certainly yes and I was wondering if you could pull up the the applicant's application and could we look at with parking where the the driveways would go up to the porches again um I just want to just be clear before they come back with some pictures with his application oh the picture sorry yeah that's the one side right here for example it is is so the proposed if you do the split driveways it would go all the way to would it go right to right to where the cement walkway is there leading to the porch or would that come out well I think that's part of what we would need to have detailed um because it may also be that in order to get sufficient depth um that the the stairs that are currently facing the front of the house um they may need to either face the rear or face the side in order to you know accommodate space and that's something the applicant would have to consider as to whether you know making that adjustment you know is worthwhile and in and making the you know a valid parking space so I I don't think that uh that that we would have to do anything with the stairs the the way Saka had had it um proposed is he would just take up that that cement walkway and then there would be it would it would go right up to the stairs but but you can fit a single car comfortably um you know we're not going to have a car butted right up to uh to the stairs um but that's how he had it planned out I guess Mr. Chairman we need a plan to that effect that said it would fit a legal size parking space which is what eight and a half by 18 um yeah I think it's yeah okay that's something I can get yeah so I think you'd yeah so you'd need to have a site a real site survey that would include that could then really demonstrate you know precisely where the property line is where the building is in relation to the property line the location of the sidewalk and then what space would be used for parking okay Mr. Chairman Mr. Hanlon I just is there anything else if if if for some reason we we got encouraging advice from council as to getting through the first criteria and we got into hardship and everything else one of the questions would have to do with the pedestrian impact and the things that that the memo says and if we all got by that we'd have to approve a special permit and the special permit will hold the applicant to plans and conditions that were submitted in connection with that and we're talking about three or four weeks delay here and I just wonder whether there is anything else that we haven't talked about that we would need in order for there to be the final plans that that the applicant would be held to if he got all the way through the gauntlet and one because I don't want to find ourselves in a position where we've waited for three or four weeks and we've gotten some of what we want but then we're faced with not having everything and this would be the time to make sure that the applicant has all the information that's necessary for us ultimately to make to make a decision on the special permit to certainly we're doing that criteria for special permit I think the questions are you know its impact on public convenience and welfare it's a question we would need to address the impairment of public safety as you mentioned is the question of the sidewalk and that the the plan department said that you know obviously parking a car on the sidewalk creates a distinct hazard for pedestrians who are now going to have to go and who would have to go in the street so I think it's very important that we make sure that any parking that we accommodate does not in any way hinder the free transit on the sidewalk there would not be an undue burden on municipal systems the special regulation is the regulation on the request for a special after a second driveway and then it comes down to integrity or character of the district and I think that the if you look up and down the street there are a number of because the you know these are older houses built in the center of the town I think a lot of these houses are probably predating the zoning ordinance and therefore they really have problems with parking some do have the ability to get around them and go to the back but you know as the you know a buddy neighbor to the left shows there are certainly other properties on the street that utilize a portion of the front yard for parking and I think one can make an argument that you know having these kinds of small parking spaces fit within the character of the district I think the board could come up with appropriate conditions that would make the appearance of those spaces more in keeping with you know with the sort of the you know front yard residential character and it certainly would not create a detrimental excess of a particular use so I think as you're saying if we can get if the board is able to get to make findings that satisfy the requirements of the variance criteria I think the board can through conditions come up with an applicable come up with with with findings with conditions that would meet the meet the requirements of the the seven criteria for a special permit. I agree Mr. Chair it's that first variance condition as Mr. Hammond pointed out that's going to be the issue so I think with that that we have two tasks one the board needs to get a written guidance from the from town council in regards to the applicability of using the the location of the building on a on a site predating the zoning bylaw whether that would be a circumstance that would be acceptable to meet criteria number one of the variance criteria this is to establish under state law and then the second would be to ask the applicant to come back with a more detailed site plan that addresses the concerns we had expressed before specifically the dimension of the area that would be available for parking and really locating the property lines the location of the house and especially the location of that sidewalk so that we're all very clear about where those things are I think it's also if I'm remembering correctly thought there was a manhole there there is a manhole and the way that that sacca had proposed it he was going around it and and again he spoke to engineering and they agreed okay so that was not an impact and is there anything further on this from the board none I would and I will move to continue the variance and special permit hearing for 16 18 swan place um until it's Tuesday December 21st at 7 30 p m and I have a second on that second um vote of the board mr handlin for work hi mr ford hi the chair votes eyes we are continued on that item which brings us and I thank mr potter and thank mr kandelori for for sticking around that percentage us this evening thank you thank you very much um and then we need to flag uh mr dupont that he is when we are back I'm here mr chairman oh there you are perfect okay so next on the agenda is docket number 367 725 highland avenue um here on behalf of the applicant is miss ban if you could go ahead and introduce yourself and tell us what uh you were planning to do for uh good evening my name is old government upon and I am the owner of 25 highland avenue thank you everybody for a long meeting so far and for patients with everybody that's um so uh what are we are asking we're doing this is a two family property that we are renovating and um this property currently has no parking spaces so we're asking to um have this two parking spots uh locate them in the front yard there are some challenges um with the little bit of topography of the lot it is on the hill so uh we will have to remove um some soil and have we'll have to construct the retaining wall to have comfortable 20 feet wide and 18 feet deep parking space for two cars and some trash cans for the people that will be living at 25 highland avenue as we will finish the construction um we did run into the challenge of having a tree on the um sidewalk in front of the house and I did speak with team from the tree ward and I was told that um there is no way around it we have to stay four feet away from the tree and that's why we updated the the the plot plan that we have in hand uh plot plan was professionally done um right before we started the renovation and uh we still have room to move the proposed parking space uh to the left from initial proposition and stay away from the tree so that way we're not harming the tree and should be comfortably going in and out from the driveway so um yeah this is this is the ask I mean the purpose of the bylaws is to promote the health safety and convenience for all the inhabitants of the town of Arlington and having a parking space in front of this property first and foremost will be safety for the future owners who will be residing in the property kids elderly um and um second of all um that will also remove the cars from the street allowing easy snow removal and street cleaning so that's what I have thank you I'm gonna go ahead and share the application package so this is the um the original package this is the original location of the proposed location for the parking and there's a tree in this location all right so a tree is about nine feet from the lot line and so this is the proposed revision so this yeah yeah so the tree is five feet from the lot line and we have to stay around away from it four feet I was told by the true word um and so for those of you who aren't familiar with Highland Avenue so this is the first of I believe it's four three or four houses in a row that have a substantial retaining wall at the sidewalk and itches up there to the house so the house is very high above the street yes well I'd like to add right away I mean listening to the previous um applicants as well I do understand that um since we're proposing the parking lot and that will take a removal of the soil in front I will have to provide um plan of a retaining wall and I already made a note of that okay have you done any research into whether there are any easements in the front yard of the property I did speak with the land surveyor that um has done the plot plan for us and there is no easement in um there's no record of any easement actually we were in a conversation with the zoning and um I I made the note if there's anything that is not with the um register of deeds that I should know about um just not there land surveyor I had a conversation with him he said there was no easements at this point okay are there questions from the board any at the moment so this is a request for a variance to allow the construction in the front yard so it would be a to the criteria that we're going to be evaluating are the criteria for for variance okay board is aware um unless there's a question specifically from the board that we'll go ahead with public comments seeing none so go ahead and open the hearing for public comment um as before uh if you'd like to speak if you could select the raise hand from um what is now the reactions tab or if you're calling in if you could dial star nine uh so first is uh mr moore uh yes mr german steve moore piedmont street and a member of the earlington tree committee um I when I first was looking at the uh the application I was surprised to find the street tree there right where they wanted to drive away I'm pleased to hear that they consulted with the tree warden it sounds like the tree warden is given specific guidance relative to protection of this tree um I do have um a couple of questions though um how long has the applicant owned this property if I may ask so we purchased the property in uh oh I have to uh look it up I think that was July for this one okay so uh and it was purchased with the understanding that there was no parking outside available right no no no no it's purchased with your knowledge that there was no parking related yes so um this is um uh we purchased this property to renovate with intention of renovation um this is uh not the first project in Arlington um we did know that there's no parking in front of the property however at this point as we proceed uh you know working on the project um I do know and I believe that having park in front that will benefit the um the owners just like previous applicant people have kids people have elderly and having cars on the streets and uh snowstorm it just besides being inconvenient it's a safety and um I would love to have the opportunity to to have that parking there if I could uh thank you um I it looks like you've already proceeded significantly down the road of renovation uh the siding is entirely off the house all the windows are out no one lives there I'm sure was the plan submitted for this property yes so the tree warden has that plan to tree warden no we submitted renovation plan to the building department no I mean the tree plan that goes as part of the application since this is a substantial renovation you need to submit a tree plan well I apologize this is what not to my knowledge and I will make sure I'll submit that to the true word yeah the tree plan would have the street tree on it plus any additional trees it looks from what I can tell from the satellite photography there's trees substantial trees around the property I don't know if it's on your property or on your neighbor's property particularly in the back um all the trees that are in the setbacks are protected trees by the bylaw since you're doing substantial renovation um so they need to have all have protection before renovation begins you now however have commenced with renovations it sounds looks to me prior to submitting the plan or doing any of the tree protections is accurate so we do have trees around the property um specifically larger trees on the left and if you in the back closer to lot line on the right side from satellite those are um actually those are not if you look uh if you see those are in your neighbor's property I see right right there's some on the neighbor's property and close but we have just some shrubs it's not those are not the trees okay right now the the the way that excuse me Mr. Chairman I'm uh right now that the protected trees by correct by the bylaw are eight inches in diameter or larger I don't know if any of the trees that you're talking about that are on the back sections of the property that are within the setbacks but greater than eight inches I don't know if they are but if they are they require protection measures and and maintaining of the trees not cutting them down as per the bylaw requirements the tree warden is familiar with all of that if you have spoken with him before you probably want to get in touch with him again and provide him with a tree plan that he must approve before renovation begins so I think you need to do that pretty quick uh this is what I will I'll make sure I'll take care of this week um latest Monday right that's that's very good news thank you one additional thing is when you do do construction in the front of that street tree if you're protected the type of construction you're discussing here is significant right it's going to be very difficult for you not to damage this street tree which is protected under chapter 87 bylaw I mean chapter 87 general laws so you're going to have to put significant protection on that street tree again the tree warden Tim look we can help you with that yeah I do appreciate the input um it is a challenging property to work on and we were uh by you know working on the demo and getting the materials to the side we're using um we can't put a dumpster none of that so we're working only with the smaller trucks um that minimizes the volume and it's um it's a I would say tedious process however we're working uh slowly on that um and I will make sure I'll work with the um I'll walk with another owner of our company um through the lot tomorrow and um I'll mark all the trees on those people team on that thank you very much thank you very much thank you for input thank you mr. Moore mr ballerelli what's the current status of the permitting on this project does it have a construction permit or just a demolition permit or what's the status they do mr chairman um they have a permit to renovate the first and second floor demolition of course and depending on the outcome of their request for the driveway they may go forward with additional work okay thank you um the next speaker um is uh ensign stewart thank you mr chair ensign stewart 12 molten road which abuts 25 highland to the northwest this is a substantial project project and a large edition of gross floor area which I'm happy about I'm looking forward to having some additional neighbors soon I would however like to raise a few issues for the board to consider regarding criterion three specifically the second bullet point under criterion three in the planning that suggests um there's insufficient detail in the retaining wall I understand the board now has some additional details on the retaining wall but I think there are some additional factors to consider specifically with respect to safety and visibility for drivers who would be exiting the proposed parking area so cars travel very fast on highland a couple months ago there was a two-car crash that actually impacted the house three doors down at 15 molten you go by 15 molten today you'll see that the front deck is being totally rebuilt because two cars collided and crashed into it and so I think visibility here is very important for cars that would be coming out of a driveway we certainly wouldn't want that driveway to be hidden by a tree or by a tall retaining wall the planning department memo did note that just up the speed at 39 highland there is a similar parking area built into the hillside I think it's important to note that that retaining wall is about half the height of what the proposed one would be and it's on a much more gradual slope so has significantly better visibility as proposed there would be a lot of dirt being here and I think it's important for the board to also consider zoning bylaw 5.3.12 b which would require no more than two and a half feet of retaining wall as I understand it going five feet back into the property so that would involve moving even more dirt that's a lot of dirt to be moving so I have a few concerns about that and some of the preliminary regrading that's already happened around the back of the site if the board does approve this variance I would want to know if there are conditions that could be added to make sure that that dirt is moved off site or that if it's kept on site there's work done to make sure that drainage and other considerations are addressed. Lastly on this on the topic of the parking itself I'll note that the one house to the left or two houses to the left and one house to the right so three other houses in this set of four all use on-street parking so there will be cars upstream and downstream of this so I'm not sure if there's benefit provided for plowing or street sleeping operations because there will still be cars parked there. So those are my concerns about the parking itself. One last note on the rear yard setback there the application says that that's going from 17.8 feet to 9 feet as I understand the minimum is 20 and as Mr. Moore noted there is a large maturity on the property here and I'm not sure what the applicant would say about kind of the port space with respect to the proposed new space going back into that setback increasing the non-conformity and being near that tree. Thanks. Thank you. So the application for us is only in regards to the front yard parking it does not relate to construction on the site. I would just ask Mr. Valerelli to quickly bring up a plan here. So this is the recent speaker what's questioning is the construction of this porch this two-floor porch structure here I believe is it a two-story structure here on the rear of the house. This is the decks we're proposing we have not received a permit on that yet it is proposed and Mr. Valerelli has requested from me details on the decks so the architect is working on it that's something we're proposing and if that will be approved would like to have those decks for the for the units in the back but that would be probably a conversation for another meeting. So just again so what exactly has been approved for scope of work so far Mr. Valerelli is it just interior work on the first and second floor and that's it? Correct Mr. Chairman they are digging out the basement slab to report that right now they have a permit for the renovation of the first and second floor only okay and the basement slab. Okay so these window wells on the on the uphill side the rear deck and these patios and landings on the downhill side those have not been approved? Again Mr. Chairman correct we're still we have not got to that point I cannot speak for the applicant but it's my understanding that if the board grants the driveway the proposed front yard parking they may go in a different direction with the renovation if they don't grant it they may go in a yet again another direction. Right now this is the driveway. Okay and Mr. Valerelli did I know we've touched on this in recent cases but sight lines from drive widths what is the believe the requirement is that you can have nothing higher than three feet within five feet of the sidewalk is that correct? Yeah that's called it's traffic visibility so the first five feet in from the property line cannot be any more than 30 inches. Okay so this we would need to be granting a variance from that requirement as well because that was not listed as a variance that is being requested just a variance from the requirement for front yard parking. Do you Mr. Chairman? Yes sir. I just wondered is the is the the ruling I take it the rule that relates to the size to the size of the retaining wall and the first five feet is the zoning ordinance rule correct Mr. Valerelli? It is Mr. Chairman it's actually 5.3.12 traffic visibility it is actually I think we're looking at B 5.3.12 B. Thank you so much. I'm going back to the speaker's list next is Laurie Amadiros. Hi I am actually a 21 island nav which is directly abutting the property so the retaining wall would be that they're going to put in for this driveway would be retaining my land as well. So I have a little concern about I mean these these this whole wall is like 92 years old. We've all we all have the same permit parking for the street so it's not like there's no parking on this street. I'm just kind of concerned at cutting into this property affecting my property and also for the safety on the street because I'm still going to have cars parked in front of my house. So the cars coming out of this driveway are going to be coming into traffic past cars are already parked looking up and down the street. Plus I mean it's just kind of one of those it's a big concern for me as far as safety we have four track teams that run up and down the street during spring and fall track from Arlington Catholic and Arlington High School. We have kids that walk to school. This stretch of road is probably the only one without driveways for a long period of time because of this wall.  So that that's my concern for you know the street. As I say I've lived here for 23 years we've always parked on the street. We probably have to move our car five times in the winter for snowstorms so I don't really know if it's that big of a concern for whoever lives next door. It's not you know an unbelievable thing to have to move your car five times in the winter but I guess that's all really I have to say. I mean that house that was hit that Mr. Stewart had brought up has actually been hit twice. So there have been four houses hit on Highland Ave. Over since I've lived on the street one was hit twice. We've had cars that have been totaled at the intersection of Wildwood and Highland Ave.  There's only four main streets that go between Mass Ave and Route 2 and Highland Ave is one along with Lake Street, Highland Ave, Park Ave and Pleasant Street. So I think it's just one of those things that this is more of a main street than a side street for transportation purposes. Just to clarify something you had said before so I believe these houses have a special can apply for an on-street parking permit to allow them to park there even though the town has a prohibition on overnight parking is that correct? So for each unit you get one parking spot so they wouldn't be losing a spot on the street. So you'd get a spot each for each unit so they're just moving the spots into their property. Okay and as you said when there's a snowstorm or when there's no emergency declared where do you have to move your car to? To the center parking lot. We also have neighbors that like if you know when my daughter was young as I say I've lived here for 23 years she's now 21 I would ask a neighbor if she was you know really little if I could just park the car overnight during a snow emergency no one's ever had a problem with that but as I say we have we are able to park at the right behind right in the center there by Russell Commons. Thank you very much for that. Appreciate it. Next on our list is Yana Strominger. Yes Yana Strominger. 22 Malton Road. I just had a question. I'm sure they figured it out but what about the utilities that are going to the house the gas and the water main do those have to be relocated? What do they do with them? Good question. Do you this band do you know the location currently of yes there would be subterranean? Yes actually the utilities will stay in the same location. They are following the staircase going up to the house. They're coming along straight landing almost in the middle of the house. Yep. So they're in this position. So they're not they're not affected. And so even when you move the you're moving the driveway over. Mr. Klein can you scroll down to the updated plan with the red ink that I sent? Yep. So they will still be in this position. Right. So and where it lands inside of the house it's a little bit more to the left so it seems like the line's going under that staircase more. And so the creation of the retaining wall that would be required on the side that would not interfere with the present location of those utilities? Looking at the plans it should not but we'll also we'll have to confirm obviously with the dig safe and all that make sure the lines are where they are. Okay. Thank you. Thank you so much enough for concern. Thank you for question. Next on the list is Ian Roth. Hi. I live with 31 Highlands. So a couple doors up the hill. My question is I mean I just I have some of the concerns that have been mentioned already but and one of them that I have is about the construction. I so there's in my basement bedrock coming up through a part of this lab and I I wondered if there's been any geotechnical evaluation to see what like how viable it is to remove this. Like we've talked about removing soil but I'm not sure that's all that's under there. Ben has there been a geotech survey to determine the location of stone under there? So we actually when we removed some of the dirt from the basement working on that we have there's no ledge under and that was obviously our concern because what is the four homes I'm just looking on the street four homes are so high up and that also was brought up by the zoning if there is a ledge where we're trying to bring it up while we're working on the foundation it's been a just a sand and dirt like dirt it's it was we did not hit if we hit the ledge we would not touch that. This has to be done by professional supervised and by hitting the ledge obviously knowing that there's a multiple homes built like that that it just not going to be good for anybody you are very right by bringing it. And so just to make sure I understand then if you were to start the construction of the driveways and you hit a ledge you would stop that construction okay. So then I think my other comment is just general about the parking and the vicinity like it's it's clearly an issue like is there an alternative that might include a closer parking area to alleviate some of these issues during a snow emergency that have we've heard about today and maybe this isn't the right venue for that but. Unfortunately it's not our not our jurisdiction okay but I think the select board would have that that discretion certainly I would have imagined the proximity to the high school that that might have been an option because I know there are other communities that do utilize school parking to alleviate on-street parking during snow emergencies there's other town-owned properties but most I think of the other properties that are. In immediate vicinity with the exception of the schools in the DPW yard are all are all privately held. Gotcha. Thank you. Absolutely thank you. Next on the list is Anna Burgess. Hi I'm at 10 Moulton Road so we're directly behind the property um Anson Stewart is my upstairs neighbor. I just had a quick question I just wanted to clarify the the only thing that's been approved is interior construction on this property so far is that right because what Anson was saying about like drainage and you know us wanting to be able to review some sort of plan as far as drainage we're already a little concerned about that just because we've seen a wall starting to be built that goes right into the back of our garage and so I just wanted to make sure that like I just want a clarification on what's been approved. So we have demo an interior renovation of a first and second floor approved also the basement work so the reason site small what is the height 30 inches um what to what are you referring is 30 inch wall built on site just to level the grading because as you know the lots you probably have the same on your lot it's going down so we're going from the left to the right so that's something that we just re-graded a little bit and building a wall to 30 inches does not require a special permit okay okay yeah I just I just wanted to again and I do understand your concern I'm working with the building department going step by step into this construction without starting anything that is not approved okay yeah I just wanted to check on that and and clarify thank you thank you question Mr. Moore I believe for a second time yes uh Miss Medeiros had raised her hand first but lowered it I don't know if she meant to lower it she's not spoken yet no miss Medeiros has spoken oh all right not for a second time but she did yes for a second a second time I'm Mr. Chairman thank you Steve Piedmont street I think from the comments that that I'm hearing about the wall and such I would suggest that any geotechnical research be done prior to trying to build the parking spaces because once the wall comes down the wall is down and it's it's too late to put the wall back up particularly if you find ledge I think you need to try and investigate what is underneath prior to taking the wall down so if you're not going to be able to do parking you don't completely turn over that side of the property as it faces the street and and perhaps impacts this street tree I think there's probably an excellent reason why no one's tried to construct parking spaces on these four houses I think it was along this wall it's a significant amount of construction I think the sight lines are very poor I think the concern raised by the neighbors are are significant in terms of trying to back into a street by parked cars on the neighbor houses without necessarily getting hit by traffic that's moving down uphill at a very high speed again I think there's probably good reasons this has not been done a lot and lastly by putting in parking spaces you're going to significantly decrease the open space in front of the house and I don't I'm not really that familiar with the amount of usable open space guidelines that are required by the town's zoning rules but by decreasing the amount of open space I don't know if it's going to still be in conformance with the zoning requirements for open space for the lot size of the plot plan and such so I think that is something to consider as well by putting in those parking spaces increase in the open space thank you Mr. Chairman thank you Mr. Moore are there any further public comments I'm seeing none go ahead and close public comment for this evening so the the question before the board um so it's a request for variance yes sir we're sort of at a point where there may be questions from the board and I I do have something that that it might be useful for uh Ms. Ben before we get into the analysis I'm looking at the criteria that we have and uh one of them the second criteria is that a literal enforcement of the provisions of the bylaw would involve substantial hardship financial or otherwise to the petitioner and appellant and the what what is in the planning department memorandum doesn't seem to me really to address that question and I would like Ms. Ben to take her best shot and showing why it is that literal enforcement of the zoning bylaw requirement here would cause substantial hardship and I want to sort of emphasize here that substantial hardship does not mean it would be very expensive or difficult to do what you want to do substantial hardship means that there's some kind of serious hardship that would come from not being able to do what you want to do and a lot of the evidence that we have just heard suggests that in fact there may not be such substantial hardship so I'd like to see I would like to hear her best shot at the at what the hardship actually is that would justify variance well as Mr. Hanlon just said not taking into consideration the cost and the work that will be involved in that probably the biggest concern is the the stability in building the retaining wall to make sure that structural sound for the property itself and the concern of neighbors especially to the right the family Medeiros family as she has voiced her concern I would I would say that would probably will be the the biggest concern thank you is there a further question Mr. Hanlon Mr. that that takes care of number two so the question for the board so this is a as you said this is a variance request so there are four criteria that the board needs to address um in its evaluation whether there is circumstances relating to the the soil condition topography or shape which especially affects the slander structure in question but does not generally affect the district um and then the literal as Mr. Hanlon just said the literal enforcement of provisions questions of all substantial hardship financial or otherwise um and then how relief can be granted without substantial detriment to the public good and how desirable leaf can be granted without nullifying or substantially um derogating to the intended purpose of the zoning bylaw Mr. Chairman yes uh Mr. DuPont so I I'm trying to it seems like the more that we get variance requests sometimes the trickier they become and so I mean I'm used to the sorts of variances where if you have a an oddly shaped lot and the house is situated in such a way that if somebody wants to put an addition on they can't uh they can't do it because it's too close to the lot line uh say the side yard lot line due to the fact of the odd shape of the lot so those are sort of the more everyday types of circumstances we run into where somebody wanted to build a garage but there was some sort of ledge and they would have to say move again over toward the lot line I mean those seem to be a little bit more straightforward um you know I have a question really for Mr. Valerelli through the chair which is if this lot were not on a hill if it were not sloped if it was just a flat piece of land given where the house is in relationship to the lot line and I think as you're looking from the street to the right hand side uh is there space enough to the side of the house to have the parking and again forget the slope uh in the hill but is there sufficient room to the side of the house to have the parking that you would normally want there is Mr. Dupont there's plenty of room okay again the slope um not withstanding did I hear you correctly on that yeah exactly sometimes yeah so yeah correct there's plenty of room and so as I look at this too um I think one thing that's important to note is there's no requirement for off street parking here I mean the people have permit parking and so in one sense it's not a requirement that there be any parking on the property whatsoever so that is in some ways to me a bit it needs to be noted and then the other part of this is in that first paragraph where it says that the can get soil condition shape or topography especially affect the land but do not affect generally the zoning district uh that part of it is a concern for me too because I know Highland Avenue very well and as has been noted there are actually four houses uh situated similarly and so to me in a way this is a matter of convenience as opposed to necessity and not that that's part of the variance calculation but I'm not sure that it satisfies that part where it says that there are conditions that affect this parcel but don't affect generally the zoning district just by the very presence of those additional three houses so those are my concerns when looking at this application thank you thank you sir mr chairman yes sir I come at it from a slightly different way than upon but I think I'm not very far ultimately from where from where he is we have had occasion sometimes in the past to deal with situations where there was a problem in a row of several houses um that we're not with that so that the problem of the one property I'm thinking of one up in west minster avenue where there were certainly it wasn't unique to this parcel but it wasn't certainly wasn't generally shared in the zoning district which after all was was a very broad concept anyway um but that being said so I'd be reluctant to go that way for me just because I think that we're already we've already gone that way and and not taken that strict view of what the of what the zoning district is I do think that that probably there's a topography issue here and that if it's zoning if a variance were otherwise uh advisable that they'd meet the first criterion which is not always the case as we know but I don't think there's any I don't think there's unreasonable hardship here and the reason there's no unreasonable hardship here is that it's not an unreasonable hardship not to have this part in space and that's exactly where I think I agree with with mr Dupont the underlying thing isn't that it's so expensive to do what you want to do that you won't be able to do it it's what you want to do is sufficiently important that you're not being able to do it it's a substantial hardship here it's clear that the applicant could go either way if we don't grab it if if they don't get a variance from us they've already thought that they'll work with mr ballerelli towards designing things in a different way and uh you know this isn't the kind of hardship that is is envisioned by the variance statute I think we've also had a lot of evidence that in fact there might very well be a substantial detriment to the neighborhood certainly some of the advantages like getting cars off the street is it will not be achieved because they only get one car off the street um and so between the set number two and number three I just don't think we're there for a very it's variances are very hard to get and uh we're pretty strict on what these what the interpretation of these things are and I think that the applicant has a plan b I think they will do fine with their plan b and I think that they should go to plan b thank you mr handlin the other comments from the board mr chair for work I would concur with mr jupyne mr handlin thank you yes I for me the the real question is number three um so I I I do live in this neighborhood I live higher up the hill so I do walk back and forth um along this sidewalk um and certainly you know you probably four or five years ago there was a section of the retaining wall farther up the street that was in danger of collapse um and that was repaired but sort of walking up and down the street often and sort of I think it would be you know the I understand the desire to to have parking off street that it you know it does make things easier and safer I think there's there are definitely some issues with creating a parking space um of this type of one is the is the stability you know it's generating this stability I'm sure um you know Mr. Ford and the on our board could certainly speak to the ability to create um such structures that would be suitable um but one of my concerns is where does the snow go uh when you have to shovel out those spaces there's really very little place to put snow now because you can't shovel it to the sides it's because you can't get it up over the over the top so it's got to go out um towards the street or towards the you know the the small grassy verge between the sidewalk and the street um and there's the sight lines it is just it's a very very difficult thing that you if you were to pull in forward to that parking space you cannot find your way back out again um and even if you were to be able to you know even if you did back in um you know pulling out your view is going to be you've got a narrow view slot before you're occluded by the cars that are parked on the street so I just I'm very concerned about the the potential safety hazards um for finding cars let alone finding you know pedestrians who use this street and as was uh put forward the um the various track teams that that use this use this street among other joggers and walkers and and all other members of the public um so I think I would have a very difficult time to describe how this relief could be granted without without a substantial detriment to the public good. Thank you Mr Klein as you were talking about the safety um installation of mirrors says um I know um a lot of uh places do and um I also had a comment on the retaining wall regardless this retaining wall in front of the property as it is right now um at this particular property 25 Highland Ab will have has to be um worked on substantially as we can see on the pictures um and that is the plan um to have that reinforced if there will be no parking um allowed um together with the steps going up to the property as um those are out of level that has to be all fixed. Okay. And I'm sure all the neighbors um um from the left and to the right uh that do have this large retaining walls uh that's something that has to be addressed. I think it's it's it's only four homes on Highland Avenue that um sitting this high up because the the last the last property um on Highland Avenue to the right from uh Medeiros family they do have a pretty long driveway in and um I think that uh that property actually has a huge retaining wall from from Medeiros side as well so only four of us don't have parking. Any further discussion from the board? Certainly my my sense from hearing from um Mr. DuPont Hanlon in a work um I'm not certain that a motion to proceed to approve a variance for 25 Highland would be successful um so we can either propose a motion and proceed or if the applicant would rather withdraw we could entertain that as well. Just the the issue is that if the board votes and denies then it's a it's a two-year before you can apply again. This is a question for the for the applicant. Mr. Chairman I have a question here that might impact I need to raise this because it might impact the applicant's decision. Okay. So she may reappear before the board for some dramas or something possibly in the future so that being said can she reappear before the board if you vote this down even on another matter or is that a blanket coverage if you will or because she is requesting something entirely different uh does that exempt her from the two-year wait period? That is a very good question. I just don't want to see the applicant get caught here. No absolutely. So it's three to five repetitive petitions no appeal or petition for a variance from the terms of the spy law denied by the board of appeals or a special permit denied by either the board of appeals of the redevelopment board shall be considered again on its merits within two years from after the date of denial except under the following circumstances at least all but one member of the redevelopment board votes to allow the refiling or the board that denied the initial application and then finds by unanimous vote of a board of three or vote of four out of five specific material changes in the conditions upon which the previous unfair reaction was based so it does sound like it is specific to the previous request. Okay thank you Mr. Chairman again they may be appearing before the board for some I think it's a lack of usable open space possibly thank you for that. Thank you so with that should we should the board entertain a motion in regards to this matter? So Mr. Chairman? Mr. Hanlon? Just to be clear about it I wonder if we could just hear from Ms. Bann one way or the other what her preference is? Certainly. I will immediately obviously any two will submit the permit to true ward. Can you hear me? Yep. No we can't yes. So there's a few important things that I have to address immediately first a submission to the true ward of address the tree situation on the lot at this particular moment. We are also I made a note of getting a geotechnical research first to the property to understand if there's a ledger or not in this and if that really will be possible at the end of the day and visibility issue is the big one for all the neighbors and the board and I want to look into the mitigation of ways of mitigating that and making it safer. It is only four homes that don't have the parking yes I mean only take two cars out of the street however it is only four properties that don't have parking and the other property at the beginning of the street has a parking has a driveway and other homes going out the street do have a parking on site so that that small stretch without a driveways. I do understand it is a safe stretch without anybody backing in and backing out. But after doing all this and consulting with the geotechnical research and making sure we do have ways of getting visibility solved plus getting structural plan for retaining wall that would be a possibility of getting the parking from the property. I think that addresses concern number addresses criteria number three but I think there were substantial questions regardless of criteria number two which is whether the literal enforcement of the provision of the zoning ordinance involves a substantial hardship and is there a substantial hardship in not having two parking spaces in the front yard when you already have two parking spaces on the street. Understand as I did say in my application it is you know big big inconvenience obviously I don't want to say it's at first first safety for whoever will be living after renovation in this property and to summarize really this is not a first project we're doing in Watertown and it's probably not the last one. As a builder we did a great job and all we're doing is to have as convenient and as besides having a beautiful home just a comfortable space for families to live in and as I was reading through the bylaws the purpose of the bylaws is to promote health safety convenience and morals welfare of the inhabitants of the town of Arlington. So I was taking it from in that direction. Again I will respect the decision of the board one way or the other just trying to get a nice property down for the future families to live in as comfortable as we can get. So for the zoning board of Arlington do we want to proceed with a vote at this time or do we want to do we feel we need to continue and allow the applicant to research the questions in regarding the tree the geotechnical and finding ways to improve the visibility of the site. Mr. Chairman. Mr. Hanlon first yes. I can only say that all of those things to relate to criterion three which I thought was were questioned and they were ably described by others but I'm still stuck on criterion two and it's unlikely that anything that the applicant would do in investing more time and resources and investigating this would change my view of the disposition of the case. Mr. Hanlon Mr. Ork. I am likewise still stuck on criteria two but I'm also stuck on three as well as Mr. Chair. Thank you. The research with all that information you want to get with change back. Mr. Chairman. Mr. DuPont. So and I appreciate Mr. Hanlon's remarks earlier about criteria criterion one. I still have some questions about that but I do agree that two is more problematic. Three perhaps somewhat problematic but I think it's the applicant's decision to either ask for the vote or to ask to continue because I think the applicant has a right to come back and ask for us to consider it you know despite any of the things that we've said today to see if those might influence those criteria so I think it's really the applicant's deci