Zoning Board of Appeals - Jan 12th, 2021

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Meeting held via remote participation. Meeting materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1238.

Approval of Minutes

The board approved minutes from their January 5th meeting.

Docket 3641 - 69 Epping Street

The homeowners, Derek and Amina Kelley would like to add a vestibule and covered porch to their home. This requires a special permit because the porch would project into the front yard and occupy more than 25 square feet.

(Christian Klein, ZBA Chair) Mr. Klein points out that ZBL section 5.3.9(B) allows projections into the front yard of up to ten feet. Plans submitted for this hearing indicate that the combined vestibule and covered porch would project eleven feet into the yard.

There's no public comment.

The board discusses the 10' requirement in 5.3.9(B) and the 11' shown on the architect's plans. The applicants are willing to reduce the size of the front porch by 1', in order to meet the 10' limit.

The board imposes several conditions on the permit. These include: submission of an updated dimensional worksheet, submission of revised construction drawings, and compliance with section 5.3.9(B) of the Zoning Bylaw.

Permit approved, 5--0.

Docket 3642 - 64 Brattle Street

The property owner is proposing to completely demolish and rebuild a two-family home on a non-conforming lot at 64 Brattle Street. The lot is non-conforming because it has slightly less than 20' of frontage in a district that requires 50'. This hearing is an appeal of the building inspector, who believes that demolition of the existing structure would render the lot unbuildable.

(David Mack, Attorney for the petitioner) Mr. Mack represents FTO Realty Trust, the owners of the property. He believes this project should be considered as the reconstruction of a non-conforming structure. The existing house was built in 1920. It's less than 10' from the side property line, and less than 20' from the rear property line. Both yard setbacks are nonconforming.

Mr. Mack says that this parcel was part of a larger lot, and was subdivided in the 1960s. The owner proposes to demolish and rebuild the home, but with conforming setbacks. The building inspector has stated that a complete demolition would render the lot unbuildable.

Mr. Mack cites section 8.1.3 of Arlington's zoning bylaw, which is modeled after the second "except" clause of MGL Chapter 40A section 6. He believes that governs here, and the home should be rebuildable by right. He feels that case law provides for the by-right reconstruction of non-conforming homes, as long as the reconstruction doesn't create any new non-conformities.

(Aaron Ford, ZBA) Mr. Ford asks about the size of the house.

(David Mack) Mr. Mack says the existing house has approximately 1246 square feet per unit, and the new building would have approximately 1680 square feet per unit.

(Roger Dupont, ZBA) Mr. Dupont asks Mr. Mack to clarify that he said that Arlington's ordinance allows for demolition and reconstruction.

(David Mack) Mr. Mack explains that he did.

(Roger Dupont) Mr. Dupont says he thought reconstruction had to do with damaged buildings. He believes that the notion of the demolition and reconstruction being allowed is contrary to how our bylaw has traditionally been interpreted.

(David Mack) Mr. Mack thinks demolition and rebuilding is allowed, since our ordinance explicitly allows "reconstruction".

(Christian Klein, ZBA Chair) Mr. Klein asks Mr. Mack what he considers to be the difference between construction and reconstruction.

(David Mack) Mr. Mack says that construction would be something like building an addition. Reconstruction would be like taking a house down and rebuilding it.

(Steve Revilak, ZBA) Mr. Revilak believes the question centers around the definition of "reconstruction". That term is not defined in Arlington's zoning bylaw. The Merriam Webster dictionary defines "reconstruction" as the act of building something again. In Mr. Revilak's interpretation, reconstruction would involve rebuilding a building in the same two-dimensional footprint as the previous one, in the same location on the lot. That isn't what's being proposed here.

(David Mack) Mr. Mack notes the memorandum he submitted to the board. He cited the Dial-away case to illustrate the significance of the word "reconstruct".

(Pat Hanlon, ZBA) Mr. Hanlon asks about the importance of reconstruction in that case.

(David Mack) Mr. Mack says the court was trying to determine what part of 40A Section 6 applied. Paragraph 1 of section 4 applies where a structure exists, and paragraph 4 applies where there's a vacant lot. The court's decision in this case was partially predicated on the fact that the local bylaw didn't contain the word "reconstruction".

(Pat Hanlon) Mr. Hanlon feels that in the Dial-away case, the court didn't have to wrestle with what the term "reconstruction" meant. He asks Mr. Mack if he can site a case that focuses on the definition of reconstruction.

(David Mack) Mr. Mack thinks the Willard decision does this.

(Pat Hanlon) Mr. Hanlon asks if Willard's definition was different than Mr. Revilak's.

(David Mack) Mr. Mack thinks that reconstruction means tearing something down, and putting something new in its place.

(Roger Dupont) Mr. Dupont says he saw something in the Dial-away decision about non-conforming uses rather than non-conforming structures. He asks if the decision can be displayed again.

Mr. Klein displays that part of the decision. It involves a non-conforming use.

(Aaron Ford) Mr. Ford thinks it would be okay if the petitioners planned to demolish and rebuild in the same shape and size, but with a more conforming structure. He feels like what they're proposing doesn't follow the meaning of the word reconstruction.

(Roger Dupont) Mr. Dupont suggests that the board may want to wait, in order to obtain more information and digest it.

The chair opens the hearing to public comments.

(Chris Loretti) Mr. Loretti says this is a very non-conforming lot, and the ZBA shouldn't have allowed it to be created in the 1960s. He says this isn't simply a matter of a non-conforming structure. He suggests the board look at Bjorklund v Norwell (450 Mass 357). He agrees with the decision of the building inspector, and says one can't tear down a building on a non-conforming lot and then build a new one.

(Don Seltzer) Mr. Seltzer thinks there's precedent for this in Arlington, 89 Robbins Road for example. He says the owner demolished a house, and rebuilt with a different footprint. He says that 11 Arnold Street is another example. Mr. Seltzer also says they shouldn't be allowed to have parking spaces in the front yard.

(David Mack) Mr. Mack says that the property currently has a garage. The planned replacement building would have parking in the foundation.

(David Damon) Mr. Damon agrees with the concern about reconstruction. He asks how large a reconstructed building can be, and also about impervious surface.

(Steve Revilak) Mr. Revilak cites language from Section 5.1 of the zoning bylaw. Under normal circumstances (i.e., where the lot is conforming), when a old building is torn down, construction of the new building is completely governed by regulations in the bylaw. In other words, the new building can be as large as the dimensional regulations in the bylaw allow it to be.

Regarding impervious surface, Mr. Revilak says there's nothing in the zoning bylaw that restricts the amount of impervious surface on a site. Arlington has a stormwater management bylaw that applies when the amount of impervious surface is expanded by 350 square feet or more. But there's nothing in the zoning bylaw, and nothing under the jurisdiction of this board.

(Loren Hoekzema) Mr. Hoekzema has a question about parking. He asks if the new two-family will have parking underneath the structure.

(David Mack) Mr. Mack says their plans aren't any more specific than a side-by-side duplex with parking underneath. This hearing is an appeal of the building inspector, so the plans for the new building really aren't in question. He says if the outcome of this hearing prevents them from moving forward with their current plans, then they'll have to come up with something else.

(Loren Hoekzema) Mr. Hoekzema wants clarification on what Mr. Mack said -- that parking isn't being considered at this hearing.

(David Mack) Mr. Mack says his client has not laid out specific plans yet.

There are no more comments from the public.

(Christian Klein) Mr. Klein would like to continue the hearing, and get legal opinions. He moves to continue the hearing until Feb 9th.

Board votes to continue, 5--0.

Case law that may be relevant to this docket:

Thorndike Place Comprehensive Permit Hearing

This is a continued hearing of the 40B comprehensive permit for Thorndike Place. Tonight's hearing will focus on the traffic impact assessment.

(Scott Thornton, Vanasse and Associates) Mr. Thornton says that a standard traffic impact assessment (TIA) involve collection of data, evaluation of a project, and estimates for build vs no-build scenarios going out to 2027. TIAs include an analysis of impacts and mitigations.

He says there's no direct access to Route 2 planned, nor are there plans to provide a connection to the pedestrian overpass that crosses route 2.

BETA provided recommendations for the study area. Mr. Thornton displays a slide showing all of the intersections that were considered. He points out that some intersections have turn restrictions while others do not. The TIA doesn't propose changes to any of the existing turn restrictions. Several of these intersections typically have four vehicles queued during peak traffic hours.

Mr. Thornton says that trip data was generated based on ITE standard estimates, and categorized by mode split. He believes the mode split is appropriate, given the project's proximity to the Alewife T station and minuteman bikeway, as well as due to transit trends.

Mr. Thornton says the TIA used Vox on Two as a comparable development. Cambridge requires them to perform a transit survey each year, and submit the results to the city. The single-occupancy vehicle, public transit, and bike split is similar to the census. Vox on Two has a higher percentage of walking trips, which may be due to its close proximity to Discovery Park.

Mr. Thornton believes that Thorndike place will generate one additional vehicle trip every two minutes, during peak traffic hours. He says this is a 60--64% change in the way the project was proposed in 2016.

The applicants are proposing to add a blue bike station, and there will be covered bicycle parking in the garage. The building will have an on-site traffic coordinator and transit screens in the lobby.

(Steve Revilak, ZBA) Mr. Revilak asks if the 60--64% change was an increase or a decrease.

(Scott Thornton) Mr. Thornton says it's a decrease from the earlier iteration of the project, which used traffic data from 2010.

(Greg Lucas, BETA) Mr. Lucas says he's had discussions with Vanasse, Arlington's Transportation Advisory Committee, and the town. He advises that we make sure to identify pedestrian and bike connections and accurately capture recreational activities. He agrees that Vox on Two is similar to this project, but it may not be appropriate to assume the same number of walking trips. He suggests the board consider impacts to Dorothy road during construction. For example, understanding the type of construction vehicles used and the number of trips they'll make.

(Shawn O'Rourke, ZBA) Mr. O'Rourke asks if Mr. Thornton can talk about the baseline traffic data used for Lake Street.

(Scott Thornton) Mr. Thornton says he had pre-covid data for Lake Street, but not for all of the intersections that BETA wanted to include. He says that MassDOT has procedures to adjust data collected during the COVID pandemic; Mr. Thornton applied those adjustments and felt the traffic counts were too low. This led him to use data from a MassDOT permanent counting station, in order to get a more realistic adjustment. He says that existing side streets have a service level of "F", which is the lowest grade possible. With adjustments, the service level rose. TAC noted this in their review of the traffic study, and asked that the service level ratings be revisited.

(Greg Lucas) Mr. Lucas believes the study accurately captures pre-COVID conditions.

(Shawn O'Rourke) Mr. O'Rourke asks if we're essentially taking a bad situation, and making it minimally worse.

(Scott Thornton) Mr. Thornton agrees with Mr. O'Rourke. They're looking for additional ways to address and mitigate backups.

(Shawn O'Rourke) Mr. O'Rourke asks why there won't be direct access to route 2.

(Scott Thornton) Mr. Thornton says this is an environmentally sensitive area. In addition, there are design issues with the elevation change between Route 2 and the site, and issues with MassDOT's preferences. He says that abutting a highway doesn't automatically mean you can connect to it.

(Greg Lucas) Mr. Lucas believes this project is too small for MassDOT to provide direct access.

(Kevin Mills, ZBA) Mr. Mills asks whether families with children generate more traffic.

(Scott Thornton) Mr. Thornton expects that to be the case.

(Kevin Mills) Mr. Mills asks what we know about the demographics of Arlington's apartment renters.

(Pat Hanlon, ZBA) Mr. Hanlon says that the basic traffic projections came from ITE's estimates, which presumably consider a range of building types. He asks if we'd need to know more about ITE's assumptions.

(Scott Thornton) Mr. Thornton says he doesn't know what ITE's assumptions are. He says we can find out the number of kids living in Arlington's apartments, but he's not sure how to apply that information to ITE's mode splits.

(Howard Muise, Transportation Advisory Committee Chair) Mr. Muise says that TAC reviewed the TIA and BETA's peer review comments. TAC's executive committee concurs with nearly all of BETA's comments. They'd also like the applicant to consider offering transit pass subsidies. He sees that there are an average of 1.3 parking spaces per apartment felts that number is high for a transit-oriented development. He suggests the number of parking spaces could be reduced.

TAC's executive committee suggests a service level analysis at the intersections of Brooks Ave and Lake Street, and at the intersection of the Minuteman Bikeway and Lake Street. They felt the TIA's level of service designations were too good and should be re-evaluated.

He notes that the TIA assigned turns to intersections with turn prohibitions, and thinks the TIA should be consistent with traffic restrictions. TAC's advisory committee thinks there should be a detailed analysis of construction impacts. Finally, he thinks the applicants should consider the effects of traffic calming measures on neighborhood streets.

(Steve Revilak) Mr. Revilak asks for a clarification on the comments on turn restrictions. The traffic counts show turns at intersections where there are turn restrictions. That means some number of people are making turns, despite the restrictions. He asks if Mr. Muise is proposing that the build scenario projections assume that everyone obeys the turn restrictions.

(Howard Muise) Mr. Muise agrees that the existing turn movements are there. He'd like to see projections where those turns aren't made, as that would effect traffic quality on Lake Street.

(Scott Thornton) Mr. Thornton says that, restrictions or not, vehicles were making those turns off Lake Street. He feels that some portion of traffic will still make those turns. However, a revised analysis like Mr. Muise suggested would provide a more conservative picture.

(Pat Hanlon) Mr. Hanlon asks if traffic flow and turn counts would affect the design of any traffic mitigations.

(Scott Thornton) Mr. Thornton says that Mr. Hanlon is correct. Traffic calming on Margaret Street may address some concerns. But it will depend on how often the restrictions are followed.

(Pat Hanlon) Mr. Hanlon recalls the working session with TAC. There was discussion about the pedestrian bridge over route 2. He asks if that idea is in play.

(Howard Muise) Mr. Muise says the condition of the overpass is an issue. There's also the matter of getting people from the project site to the overpass.

(Scott Thornton) Mr. Thornton says they're not proposing access to the pedestrian overpass.

(Christian Klein) Mr. Klein says he tried the overpass last spring. It's intact, but there are number of holes in it.

Mr. Klein says there are 71 dwellings on Littlejohn Street, which generate 30 trips to Lake Street. Thorndike place would increase that number to 230 or so. He asks why there's such a small change to the number of trips.

(Scott Thornton) Mr. Thornton says the TIA assumed different routes out of Thorndike place, depending whether the person planned to turn right or left onto Lake Street.

(Christian Klein) Mr. Klein asks if the TIA assumes some number of trips being taken through the neighborhood.

(Scott Thornton) Mr. Thornton says yes. Drivers will generally take the route with the shortest queue.

(Christian Klein) Mr. Klein asks about visitor traffic and parking.

(Scott Thornton) Mr. Thornton says they can look at that, and perhaps designate some number of visitor parking spaces.

(Shawn O'Rourke) Mr. O'Rourke asks about emergency vehicle access.

(Scott Thornton) Mr. Thornton says that's not something he'd typically look at for a TIA. An important factor is the width of the road. He notes that emergency vehicles usually create their own paths.

(Shawn O'Rourke) Mr. O'Rourke asks Mr. Thornton if he's ever looked at traffic counts and said "this just isn't feasible".

(Scott Thornton) Mr. Thornton says that when streets reach capacity, there tends to be gridlock and congestion everywhere. He says the development isn't at that point.

(Greg Lucas) Mr. Lucas agrees with Mr. Thornton.

(Scott Thornton) Mr. Thornton says that when dense development is located near transit, the development itself is often the mitigation. Regional traffic wants to come in to this area. He expects this development will be a draw for people that want to use non-automotive forms of transit.

(Steve Revilak) Mr. Revilak has a question about parking. Earlier, Mr. Muise noted that there will be an average of 1.3 parking spaces per unit, and felt that number was high. Mr. Revilak asks how many parking spaces/unit Mr. Muise would expect.

(Howard Muise) Mr. Muise said he'd expect one space/unit. He thinks the development could be a draw for people who don't want to get around by car.

(Steve Revilak) Mr. Revilak asks if the ITE trip data is based on the number of units or the number of parking spaces.

(Scott Thornton) Mr. Thornton says it's based on the number of units.

(Christian Klein) Mr. Klein says that overflow parking has been raised as an issue.

(Kevin Mills) Mr. Mills asks Mr. Muise if he said one space per unit.

(Howard Muise) Mr. Muise says yes, he'd expect one space per unit.

(Kevin Mills) Mr. Mills asks if the amount of parking should depend on the number of bedrooms.

(Steve Revilak) Mr. Revilak says the number of parking spaces proposed conforms to our zoning requirements. Parking requirements in our zoning bylaw are based on the number of bedrooms per unit.

(Christian Klein) Mr. Klein points out that families are a protected class of residents, and cannot be singled out. He says that the discussion of families here only pertains to parking needs.

The chair opens the hearing to public comment.

(Jeff Maxtutis) Mr. Maxtutis is the vice chair of the transportation advisory committee, and he'd like to comment on the average of 1.3 parking spaces per unit. He says that MAPC did a parking study of Metro Boston, inside route 128. They recommended parking maximums rather than parking minimums. He suggests having one space/unit, max.

(Lisa Friedman) Ms. Friedman says she moved into this neighborhood due to it's close proximity to the T. She finds the T unsafe, and has ended up driving instead. She believes this development will lead to left turns onto Lake Street and more turns onto route two. She says that traffic queues are routinely longer than four cars. She's concerned about being rear-ended, and believes that Vox on Two has increased the number of accidents on route two. She thinks the development will be a threat to the neighborhood.

(Matt McKinnon) Mr. McKinnon asks for a clarification about not changing the existing turn restrictions. He asks if traffic will have to make a right turn onto Burch, and then head into the development.

(Scott Thornton) Mr. Thornton says that is the expected route, given the existing turn restrictions.

(Matt McKinnon) Mr. McKinnon thinks the number of different traffic routes will create chaos. He says there are no parking restrictions on the neighborhood streets, and that people ignore parking restrictions around Thorndike field. He asks if there will be changes to street configuration, like one-way streets and parking restrictions.

(Christian Klein) Mr. Klein asks Mr. Muise if that's something the town could consider.

(Howard Muise) Mr. Muise says that would part of looking at traffic calming measures, which could include one-way street designations. Mr. Muise says that parking generally slows traffic down, and some people like that. He hasn't considered what the calming measures might be.

(Matt McKinnon) Mr. McKinnon says there was a traffic calming pilot done during the summer. He thinks calming will just cause traffic to move onto different streets. He asks if that will mean calming measures on other roads.

(Robert DiBiase) Mr. DiBiase says he's a direct abutter, and asks what the impact to him will be. He says that getting on and off Lake Street is a challenge, and asks what will happen to this quiet neighborhood with kids playing on the street. He says he's been living here for 35 years. During that time, he's only had one neighbor and now he's going to have 180 of them. He says his property values will drop like a rock. He says that Vox on Two has direct access to route 2. The old bowling alley had its own curb cut, and so did the old hotel. He thinks a curb cut for Thorndike place will solve a lot of problems, and he thinks they should be able to get one. He says that traffic will pass his house every single day.

There are no more comments from the public.

(Christian Klein) Mr. Klein asks if the project conditions can include items that don't relate to waivers. He's thinking specifically of traffic conditions.

(Paul Haverty, Attorney/Consultant for the town) Mr. Haverty says the board can impose conditions that would be appropriate for site plan review. He suggests asking the peer review consultant for recommendations.

(Pat Hanlon) Mr. Hanlon has been looking at opinions issued by the housing appeals committee. If an applicant claims that a condition will make their project uneconomic, then the town must show very specific local needs related to that condition. He suggests thinking about what we'd tell the HAC in order to defend conditions.

Hearing continued to Feb 26th, 7:30pm.

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