MINUTES OF MEETING ASHLAND ZONING BOARD OF APPEALS May 22, 2018

MINUTES OF MEETING ASHLAND ZONING BOARD OF APPEALS May 22, 2018 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Present: John Trefethen, Chair Stuart Siegel Brian Forestal Smriti Choudhury Martin Garvey Also present: Josh Chase, Assistant Town Planner Call the Meeting to Order and Review of Minutes 7:01 PM Minutes from January 9, 2018 were discussed. Mr. Trefethen stated that he had made suggested changes in an email to staff. No additional changes were suggested by the Board. Mr. Garvey put forth a motion to approve the minutes. Mr. Forestal seconded the motion, and the motion passed 4-0-0. Ms. Choudhury did not vote as she had not arrived yet. Review Response to Open Meeting Law Complaint Regarding Posting of ZBA Minutes 7:03 PM Mr. Trefethen described the complaint, that minutes had not been posted on-line, and the overview of Town Counsel s response. This response stated that the minutes in question either are or shall be approved within the required timeframe. In response to posting the minutes on-line, the law does not require the Board to do so. Mr. Forestal put forth a motion to approve the draft as the Board s response. Mr. Siegel seconded the motion and the motion passed 4-0-0. Review Ruling of Open Meeting Law Complaint Filed April 2017 7:07 PM Mr. Trefethen gave an overview of the Attorney General s Office ruling, which stated that the Board did discuss a matter that was not on the agenda, and the appropriate remedy going forth. 368 Chestnut St. Special Permit for an Accessory Dwelling Unit 7:11 PM Mr. Trefethen read the Public Notice into the record as follows: Alex Manhaes DaSilva, owner, has applied for a Special Permit under Chapter 282 Sections 7.6 and 9.3 of the Ashland Bylaws to allow for the use of the basement as an Accessory Family Dwelling Unit. The property is located at 368 Chestnut St. in the Residential A Zoning District. A public hearing will be held on May 22 nd, 2018 at 7:00 PM in the Board of Selectmen s Room located at Ashland Town Hall, 101 Main Street, Ashland, MA. 1

42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Parties wishing to be heard on this matter should submit comments to the ZBA ahead of time and/or appear at the time and place indicated above. Materials may be viewed at Town Hall during normal business hours or at ashlandmass.com/543/projects. Mr. Trefethen noted the items that had been submitted to the Board, an application to the ZBA, a set of hand-drawn plans, a map of the locus, a letter from the applicant, a memo from the Assistant Town Planner regarding the questions answered in the letter, and a letter from the Building Commissioner. Alex DaSilva, applicant, stated that he wanted to build a one bedroom in-law apartment for his brother due to a fire at his brother s residence. He stated the unit would be approximately 480 square feet, which is about half of the 900 square foot basement. Mr. DaSilva stated that the basement is finished, but he will be adding a bathroom. He stated the height of the basement was six foot eight inches, which was higher than the six foot one inch required by code. Mr. Trefethen asked the applicant to explain the egress, as it was a basement unit. The Applicant stated there is a back door directly into the basement, and egress windows will be added to the walls. Mr. Trefethen asked how many people were going to be living in the apartment. Mr. DaSilva stated there would be three: his brother, his sister-in-law, and their daughter. Mr. Trefethen asked Mr. DaSilva if he had seen the letter written by Mr. Crisafulli. He stated that he had not. Mr. Chase apologized for the oversight. Mr. Trefethen read the letter aloud which stated, in part, that the Board should ask for additional documentations, such as a plot plan and the dimensions of the proposed unit. Specifically, Mr. Trefethen referenced Section 7.6 of the Ashland Bylaws, and the need for a site plan. Mr. DaSilva stated he thought that was what the Assessor s Office gave him. Mr. Trefethen stated that there may have been a site plan provided when the Applicant bought the house. Mr. Trefethen asked if Mr. DaSilva was going to do any work on the outside of the house. Mr. DaSilva stated that he would not. Mr. Trefethen further stated that while a certified plot plan is not relevant to the application, there is a requirement in the bylaws that one be provided, and the Building Commissioner s letter agrees that one is required. With that plot plan, Mr. Trefethen continued, the Board may be able to rule on the matter that night. Mr. Forestal stated he thought that that question was the jurisdiction of the Building Commissioner. Mr. Trefethen stated that Section 7.6.8 requires one. Ms. Choudhury stated that they could defer to the Building Commissioner on the date of the plan. She then asked the Applicant if there had been any work done since he purchased the property. The Applicant stated that there had not been any additions for the last two years he had owned the house. While Mr. Trefethen stated that he saw what Mr. Forestal was saying in regards to the filing the plot plan with the Building Commissioner, but added that the bylaws require it be filed with the Building Commissioner. Mr. Forestal agreed with that interpretation. Mr. Trefethen stated that there had been some consideration to postponing the Hearing due to lack of materials. Mr. Trefethen acknowledged the circumstances that Mr. DaSilva s brother is in, being displaced by the fire at Chestnut Place, and the help the victims need, but the Board can act only with the necessary items. He further stated that he suggested that if Mr. DaSilva has the plot plan, and that plan is submitted, the Board can review that plan for the next ZBA meeting in early June. Page 2 of 5

93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 Mr. Forestal asked if the application can go forward with the condition that the plot plan be produced in the future. Mr. Trefethen stated he was not comfortable with that as the plot plan is required for the application being heard. To make a determination without that plan, he felt was not a good idea. Mr. DaSilva asked if he could go home and get the plan in question. Mr. Trefethen asked the Board if they would be agreeable to that proposal. The Board stated that they would as long as they, in Mr. Forestal s words, weren t breaking any rules. Ms. Choudhury asked if it was proper to accept the documents the Applicant brought back, given the relatively unusual situation. Mr. Trefethen confirmed that the Board could. Mr. Garvey put forth a motion to suspend the meeting until the Applicant comes back. Mr. Forestal seconded the motion and the motion passed 5-0-0. The Board went to recess from 7:33 PM to 7:52 PM. At returning from recess, Mr. DaSilva submitted one large and one reduced copy of the Mortgage Inspection Plan dated March 4, 2016. The Board accepted the reduced copy, examined the document, and decided that it contained the required information to move forward. Mr. Trefethen asked if there had been any changes to the exterior of the building, to which the Applicant responded that there had been no changes. Mr. Siegel asked the Applicant to clarify the plans submitted, and questioned if the plans submitted were, in fact, the final plans. Mr. Siegel further stated, for the record, that he wanted final plans drawn to scale, and suggested that he is not sure he wants to act without those new plans and other additional information. Ms. Choudhury concurred with Mr. Siegel that she thought the plans needed more clarity. Mr. Forestal asked if the Zoning Board was supposed to approve the plan or approve if this use was allowed in this zoning district. He stated that he was not sure if the jurisdiction of the plans fell under the Building Commissioner in regards to the egress and other matters. Mr. Forestal concurred that the plans were incomplete, but thought that they were there to just rule on the zoning aspect of it. Mr. Trefethen agreed with Mr. Forestal and, referring to Section 7.6, listed some of the required findings. He stated that they could make some, if not all, of the required findings that night, but stated that he thought it was ultimately up to the Building Commissioner to make sure the building code is complied with. Further, they discussed the requirements of both Sections 7.6 and 9.3. Mr. Trefethen continued comparing the current application to the application of 366 Eliot St. from 2017, and mentioned specific conditions included in that decision. Mr. Forestal stated that his thought was to allow the applicant to build the Accessory Dwelling Unit due to a hardship, but include in the decision include the requirements of Section 7.6, and that the Building Commissioner gets proper plans with all of the requirements thereof. Mr. Trefethen stated he was comfortable moving forward to ask the questions to see if the requirements have been met. Mr. Siegel state that he took exception to including the hardship as one of the reasons for approval. He continued that the bylaws are the bylaws and the application should be judged by its own merits. Further, the bylaws do not allow the hardship to be taken into consideration, and that they may be a slippery slope in the future. Page 3 of 5

146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 Mr. Trefethen agreed with Mr. Siegel that the question on hardship should not enter into the discussion and the application should be judged by the criteria set out in the zoning bylaws. Mr. Trefethen read the requirements of Section 7.6, confirming the adherence to each one. Finding the application complies with Section 7.6, he suggested the Board move on to discussing Section 9.3.2. The Board agreed. Before discussing Section 9.3.2, Mr. Trefethen stated that the Members who would be sitting on this matter were Mr. Siegel, Mr. Forestal, who had been sworn in as a full member, and himself. In regards to Section 9.3.2, the Board discussed the following: 1. Community needs served by the proposal: The three voting Members agreed the needs are met. 2. Traffic flow and safety including parking and loading: Mr. Trefethen asked the Applicant how many cars would be parking at the property, to which the Applicant responded a total of 4 cars. 3. Adequacy of utilities and other public services: Mr. Trefethen stated that the home has public water and sewer. 4. Neighborhood character and social structures: Mr. Trefethen stated the home is next to single family homes and apartments. 5. Impacts on the natural environment: Mr. Trefethen stated there would be no impact to the environment. Mr. Forestal Agreed. 6. Potential fiscal impacts including town services, tax base, and employment: Mr. Trefethen stated there would be no impact. Mr. Trefethen asked if there was any more discussion. Ms. Choudhury asked if the Board is saying the plans submitted comply with Section 9.4, referring to Section 9.3.5. Mr. Forestal suggested that be made a condition, to the building Commissioner s satisfaction. Mr. Trefethen asked if Section 9.4 was relevant as the ZBA does not do any Site Plan Review, but instead suggested a finding that the plans are sufficient. Mr. Forestal stated he thought the plans were inadequate, but for the Board s findings the plans were adequate. Mr. Trefethen agreed. Mr. Siegel concurred and further stated he thought the bylaws were confusing for this case. After Mr. Trefethen started to bring up closing the hearing, Steve Morgan asked if there was going to be public comment. Mr. Trefethen apologized for his oversight and opened up the floor for public comment. Mr. Morgan stated that the Building Official has written that the application is insufficient and the Board should not act until those items are satisfied. Further he asked if the Town had plans that showed the basement was built with permitted construction. He continued suggesting that, because there were no formal plans of the finished basement submitted with this application, the basement was probably illegally finished without permits. Mr. Morgan also asked if the Board had reviewed the sanitary code, the fire code, the natural light requirements, and the type of furnace. The Board and Mr. Morgan argued if the questions were relevant to the Zoning Board. Mr. Morgan continued that the Board was ignoring the Building Commissioner s letter, not following the proper process, and of being willfully ignorant. The Board strongly disagreed with Mr. Morgan s claims. Seeing no further public comments, Mr. Forestal made a motion to close the Public Hearing and move to deliberations. Mr. Siegel seconded the motion and the motion passed 4-0-1 with Ms. Choudhury abstaining. Page 4 of 5

200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 Mr. Trefethen asked the voting Board Members if the application was appropriate to grant a Special Permit for an Accessory Dwelling Unit. Mr. Forestal stated he had no problem with any of the criteria. Mr. Siegel stated his agreement. Mr. Trefethen concurred. Mr. Trefethen again read out the five criteria of granting a Special Permit, mentioning the reasons as stated before. Mr. Siegel added that there should be mention of the child being able to stay within the Ashland school system in referring to community needs. The Board was satisfied with Mr. Trefethen s listing of the criteria. The Board mentioned several conditions. The inclusion of the requirements in Section 7.6, and that the building permits are only issued after the plans are approved by the Building Commissioner. Mr. Siegel asked for clarification of what the Building Commissioner wanted, which were architectural plans, the specific relief requested, the square footage of the unit, and a plot plan. Mr. Siegel also stated that he wanted a condition that the egresses must be clear of things such as snow. Mr. Forestal was unsure if it is the Boards responsibility. Mr. Trefethen offered a condition that the means of egress need to meet with the requirements of the Building Department. Mr. Siegel concurred with Mr. Trefethen and withdrew his request. Mr. Trefethen stated that he wanted to highlight the requirement that the occupant be a relative of the homeowner and that the unit contain no more than 4 people. Further, that the owner of record occupy the structure, there shall be no boarders, and that the applicant comply with any requirements of the Building Department with special attention given to the means of egress. Mr. Forestal made a motion to grant Mr. DaSilva a Special Permit to construct an Accessory Dwelling Unit in the basement of 368 Chestnut with the following limitations: that the applicant comply with any and all requirements of section 7.6 and the specific conditions mentioned previously. Mr. Siegel seconded the motion, and the motion passed 3-0-0. A voice vote was taken as follows: I, Stewart Siegel, vote in favor of the motion. I, John Trefethen, vote in favor of the motion. I, Brian Forestal, vote in favor of the motion. Mr. Trefethen directed staff to draft the decision. Staff Updates and Administration 9:23 PM Mr. Trefethen welcomed Mr. Forestal as a full member, taking over the term of Tom McNulty, who moved out of town. Mr. Trefethen thanked Mr. McNulty for his service. Mr. Trefethen mentioned that the Zoning Board of Appeals has two open seats and encouraged those interested to apply. Mr. Forestal made a motion to adjourn the meeting at 9:12 PM. Mr. Garvey seconded the motion and the motion passed 5-0-0. Documents Referred and Presented 1) Draft minutes for the January 9, 2018 Zoning Board of Appeals meeting. 2) Draft response to an Open Meeting Law complaint filed on April 30, 2018. 3) Ruling from the Attorney General s Office regarding case OML 2018-68. 4) Application packet regarding a Special Permit for an Accessory Family Dwelling Unit at 368 Chestnut St. filed on May 2, 2018. 5) Mortgage Inspection Plan for 368 Chestnut St. dated March 4, 2016. Page 5 of 5