Zoning Board of Appeals - Jun 22nd, 2021

Meeting held via remote participation. Materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1368.

Docket 3658 - 83 Palmer Street

This is a continued hearing, where the applicant has asked the ZBA to clarify the intent of a subdivision plan that the board issued in 1955.

(Robert Annese, Attorney for the Petitioner) At the last hearing, Mr. Annese recalls, the board wished to refer this matter to Town Counsel for guidance. The subject was a 1955 ZBA decision, and the board was unsure of the ZBA's capacity in making that decision. Mr. Annese offers to withdraw the petition in order to provide town counsel with sufficient time to research the matter. He asks that the withdrawal be without prejudice, and that filing fees be waived when his client re-files.

(Pat Hanlon, ZBA) Mr. Hanlon spoke with Town Counsel, who indicated that the legal archaeology was proving to be a time consuming process. He'd like Town Counsel to have the time he needs, without being pushed along by repetitive continuances. Mr. Hanlon says this is mainly a time management issue for Town Counsel. He expects the case to eventually come back to the ZBA, and we'll have a better understanding of how the law applies.

There's no public comment.

(Pat Hanlon) Mr. Hanlon wishes to confirm that Mr. Annese wishes to withdraw all aspects of this petition.

(Robert Annese) Mr. Annese says yes. His intention was to have all applications withdrawn without prejudice.

Comprehensive Permit - 1165R Mass Ave

(Mary Winstanley O'Connor, Attorney for the petitioner) Ms. Winstanley O'Connor plans to address several issues tonight, including a letter from an abutter, and the Transportation Advisory Committee's (TAC's) memo the board.

She starts with the letter from an abutter on Ryder Street. Ms. Winstanley O'Connor thanks the abutters for their input in this process, but she strongly disagrees with the statement that traffic and parking issues have not been addressed. The applicants re-did their parking study at the request of abutters. The applicants are proposing to provide 80% of the parking required by zoning. She notes that some parking counts (of nearby apartments) were done during the pandemic, and some were done outside of it. During the pandemic, people spent a lot of time at home, and didn't travel. For this reason, she believes that residential parking counts taken during the pandemic are likely to be higher than normal.

The property owners have agreed to instruct tenants not to park on Ryder Street. The abutters wanted there to be penalties for tenants who do this, and the owners have agreed to lease non-renewal as a consequence. Similar concerns came up when the board was permitting 40 Westminster. She feels the abutter proposals (as contained in their letter) are not reasonable.

The applicants have agreed that no construction vehicles will travel on Ryder street during the hours that children are coming to, or leaving from the middle school. Referring to the applicant's proposal that overnight guests could park on Mass Ave, Ms. Winstanley O'Connor notes that all residents have the right to request overnight parking waivers on public roads.

Regarding the utility pole in the Mass Ave right of way, the applicants have hired ICO Engineering for utility coordination. The utility pole does not service this property, it's 14' 11" from Mr. Annese's property, and it's been there for 50 years. Moving the pole would require someone else -- either Mr. Annese or the owners of Mirak Hyundai -- to allow the pole to be placed on their property. Neither are willing to do that. She suggests the project will improve the Mass Ave right of way, and the applicants have offered to install railings along Mr. Annese's sidewalk, if he wants them. We can't relocate the utility pole. We've studied it, we'd like to move it, but we can't.

Ms. Winstanley O'Connor moves on to the TAC memo. Item 2(a) suggests a contraflow bicycle lane on the west driveway. The driveway is too narrow to accommodate this, and widening the sidewalk would remove landscaping that the Conservation Committee wants. There will be 114 interior (long term) bike parking spaces. It's not possible to relocate the entrance to the bike room due to the slope near the exterior building, and its proximity to a swale. They have unbundled parking from leases (i.e., parking is not included in leases), and have developed a transportation demand management plan.

Construction vehicles will stay off Ryder street during school travel hours. The applicants will perform vibration monitoring, and take photographs to document pre-construction conditions.

(Kevin Mills, ZBA) Mr. Mills asks what accommodations were offered, regarding the telephone pole. He's surprised that no one was interested in granting an easement in exchange for financial compensation.

(Robert Annese, abutter) Mr. Annese doesn't want the pole on his property. We've heard from the applicant that much of the problem is from Mirak Hyundai, but this development is a new ingredient. He thinks there ought to be a way to do something with the pole, without putting it on his property. He thinks the party introducing new development should be the one that pays for it.

(Kevin Mills) Mr. Mills says he's not stating that Mr. Annese should pay for the utility pole relocation. He thinks the applicants should pay Mr. Annese for an easement.

(Robert Annese) Mr. Annese says that hasn't been part of the discussion. His property will pass to his kids, and he doesn't want them burdened with a headache.

(Kevin Mills) Mr. Mills asks Mr. Annese if he'd be open to financial compensation, in return for granting an easement to have the pole on his property.

(Robert Annese) Mr. Annese doesn't want the pole on his property.

(Pat Nihan, ICO Engineering) Mr. Nihan says they've talked with Eversource. The pole doesn't meet current standards -- for example, the wires pass over property that's not served by the pole -- but they're okay with grandfathering it. If they touch the pole, they'd have to make it compliant, and that would require moving several other poles in the vicinity.

(Kevin Mills) Mr. Mills asks if anyone has considered burying the cables.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says that would be very expensive. The pole has been there for 50 years, and 30 Sunbug Solar vehicles drive by it each day.

(Pat Nihan) Mr. Nihan says the pole contains three different voltages, 120, 208, and 240. Moving them underground would require two manholes (for the different voltages), and changing service hookups of the existing customers.

(Christian Klein, ZBA Chair) Mr. Klein asks where the power for the apartment building will come from.

(Pat Nihan) Mr. Nihan says it will come via overhead lines, from Ryder Street.

(Steve Revilak, ZBA) Mr. Revilak has a question regarding the conservation commissions memo on waiver requests. They've advised the board not to waive the bonding requirements in Title V, Article 8, Sections 10 and 11 of the town bylaws. Mr. Revilak asks, approximately, what the bonding amounts for this project would be.

No one from the Conservation Commission is available to answer this question.

(Steve Revilak) Mr. Revilak asks what the parking ratio for this project is.

(?) There will be 128 spaces for 124 apartments. So, slightly higher than one.

(Steve Revilak) Mr. Revilak says that 40B was enacted to provide for the construction of low- and moderate-income housing in cities and towns where local restrictions hamper such construction. He believes that our parking regulations for apartment buildings are such a hampering local restriction. Our zoning requires one off-street parking space per dwelling for single-, two-, and three-family homes. For apartments, we require more: one space for a studio, two spaces for a three-bedroom, and one and a half spaces for a two bedroom. Allowing a parking ratio of one would just put this project on parity with the requirements for single- and two-family homes. He suggests to the board that this is within the spirit of 40B.

(Steve Revilak) Mr. Revilak asks a hypothetical question of the applicant: if an abutter were to notice a car parked on Ryder Street, and provided building management with the license plate number, would building management (a) be able to determine if the car belonged to a tenant, and (b) take follow up action.

(?) Yes. Since parking spaces will be rented separately from apartments, building management will have the plate numbers of all tenants that park there. And there will be a lease restriction that prohibits parking on Ryder Street, with non-renewal as a consequence.

(Aaron Ford, ZBA) Mr. Ford suggests maximizing the number of compact parking spaces in the main garage.

(Joel Bargmann, Architect) Mr. Bargmann says they'd need to turn nine regular-sized parking spaces into compact spaces, in order to make enough room for one additional space. They've taken this approach in one building, but won't have runs that long in building four.

(Missed a bit here.)

(Christian Klein) Mr. Klein asks if they're planning to have electric vehicle charging stations.

(Joel Bargmann) Mr. Bargmann says they are.

(Christian Klein) Mr. Klein asks if additional charging stations could be added, if there's a need for them.

(Joel Bargmann) Mr. Bargmann says yes. They assume it will be necessary to add additional charging stations over time.

(Christian Klein) Mr. Klein would like to review the waiver list, and discuss the process for writing a draft order of conditions. He'd like some opportunity to address issues (in the order of conditions) before the public hearing closes.

Wetlands bylaws, Section 20C. The Conservation Commission agrees with the waiver request.

Wetlands bylaws, Section 22. The Conservation Commission agrees with the waiver request, subject to the condition that the relocated Ryder Brook be protected in perpetuity.

Wetlands bylaws, Section 24. This waiver request is not addressed in the Conservation Commission's memo, but Ms. Winstanley O'Connor believes it's implied by the relocation of Ryder Brook.

(Laura Krause, BETA (peer review engineering firm)) Ms. Krause believes the project is designed to meet the requirements, and the waiver is unnecessary.

(Pat Hanlon, ZBA) Mr. Hanlon would like to know if Ms. Winstanley O'Connor objects to any of the Conservation Commissions recommendations, so we know which waiver requests need work.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says she agrees with the Conservation Commission recommendations.

(Laura Krause) Ms. Krause feels that BETA's recommendations are consistent with the Conservation Commission's.

Wetlands bylaws Sections 25C and 25D. The waiver requests were withdrawn.

Another waiver involves a regulation that prohibits building within the inner 50' of an AURA. Ms. Winstanley O'Connor says that waiver request can't be withdrawn.

(Laura Krause) Ms. Krause believes that waiver request may not be required, because the project meets local standards.

Section 16.11, permits and consultation fees. Ms. Winstanley O'Connor notes they've requested a 50% reduction, and the Conservation Commission recommended a 20% reduction. They'll accept the Conservation Commission's recommendation.

Sections 10 and 11, bonding requirements. Ms. Winstanley O'Connor feels those requirements are an added capital hurdle, and are not necessary.

(Christian Klein) Mr. Klein asks if bonding requirements are sometimes waived for 40B projects.

(Paul Haverty, Counsel for the Board) Mr. Haverty says it fairly typical to waive bonding requirements, place standards in the order of conditions, or consolidate bonding requirements into an umbrella bond.

Waiver to allow a residential use in the industrial district. The project cannot go forward without this waiver request.

ZBL section 5.6.2, dimensional regulations. Again, the project cannot go forward without this waiver.

Bicycle parking. The applicants have asked to use stacked bike parking, which our bylaw doesn't permit.

Parking requirements. Zoning would require 160 spaces, and the applicant has proposed 128. Eight of the 128 spaces are compact. The 128 spaces includes indoor and outdoor parking.

The project has requested a waiver from town design standards.

Fees and charges for review and permitting. They applicants have requested a 50% reduction of all fees not related to inflow and infiltration (I/I) and a 100% reduction in I/I fees.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says there are no written standards regarding when I/I fees apply, so she asks they not be applied here.

(Kelly Lynema, Planning Department) Ms. Lynema confirms there are no formally written standards for I/I fees.

(Paul Haverty) Mr. Haverty says there's Housing Appeals Committee case law that says fees without a set schedule cannot be applied to affordable housing projects. However, the HAC has never required the waiving of local fees, such as those for building permits.

The chair opens the hearing to public comment.

(Robert Annese) "The board knows how concerned I am about the phone pole", Mr. Annese begins. He sent the board a set of photographs, and asks to have photo #4 displayed. The pole is a problem, and Mr. Annese won't be able to live with it unless he's done everything possible to deal with it. He believes that people will take the path of least resistance and use the Mass Ave right of way rather than Quinn Road. He has rights in that private way.

Regarding putting a fence around the pole, the distance between the pole and his stairs is narrow. He believes a fence would be struck, and he'd be impacted. He's already had to install two bollards to protect his property. The people who use the sidewalk are mostly from Workbar. Mr. Annese is asking the board to be fair, and says he doesn't have the economic wherewithal of the Miraks. He wants fairness with respect to safety issues. He hopes the board will treat him fairly. He doesn't want the pole on his property, but is open to other suggestions for dealing with it. He notes that Mr. Klein did a site visit, and noticed part of a headlight sitting next to the pole. That headlight part is still sitting there.

(Steve Moore) Mr. Moore asks how compact-only parking spaces will be enforced. He also thinks Mr. Annese has been very reasonable, and there has to be a resolution to the telephone pole issue.

(Daniel St. Clair, Spaulding and Slye) Mr. St. Clair says property management will properly coordinate residents with compact cars with compact car spaces.

(Peter Maradianos) Mr. Maradianos says he heard that construction vehicles won't be coming down Ryder street, and wants to know if that's correct. He also wants to make sure the applicants will follow the town's noise ordinance, and that Ryder Street will only be used as an exit.

(?) Construction vehicles will not come down Ryder Street during school travel hours, but may use the street at other times. Yes, the Ryder Street driveway will be exit only.

(Peter Maradianos) Mr. Maradianos asks why tenants can't have stickers in their car windows, so that residents can identify them. He thinks it should be easier for residents to identify people who live in the apartment building.

Mr. Maradianos says he's reviewed the traffic study, and he thinks it's missing vehicle trips. For example, it doesn't include trips to and from the recycling center. He doesn't have much confidence in the traffic study. He's complained to the town about a neighbor who's been polluting, and it's disheartening that nothing was done. He thinks it would be irresponsible for the ZBA to allow this project, knowing what his neighborhood goes through. If the town can't deal with complaints from one neighbor, how will they handle complaints from 120? He thinks the project has more cons than pros, and wishes the ZBA would just turn it down.

(Kelly Lynema) Ms. Lynema says she's followed up Mike Rademacher and Adam Chapdelaine regarding some of the Ryder Street issues raised during the last hearing. They're working on suggestions for this area.

(Pat Hanlon) Mr. Hanlon asks if the applicants have considered giving tenants window stickers, as Mr. Maradianos suggested.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says the sticker by itself isn't useful, because it doesn't identify who the tenant is. They'd need a plate number to do something.

(Peter Maradianos) Mr. Maradianos says he's good at remembering license plate numbers, and could provide that too.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor suggests that Mr. Maradianos could simply provide plate numbers, as Mr. Revilak suggested earlier.

(Mariah Contreras) Ms. Contreras says her property has been characterized as encroaching on Ryder Street, but those encroachments were they when she bought the property. She only became aware of them through this hearing process.

She believes that overflow parking will involve more than just residents. There will also be guests and delivery vehicles, which have the potential for overflow parking on Ryder Street. She thinks that lease non-renewal is an unethical consequence for parking on Ryder Street, and she will not report residents who park there if that will prevent their leases from being renewed. She doesn't take housing destabilization lightly. She feels this proposal forces abutters to be police, and the influx of new units gives her anxiety. If the developer had proposed enough parking spaces, then we wouldn't have this problem. Structural problems should not fall on abutters.

(Christian Klein) Mr. Klein pulls up the picture that Mr. Annese asked to see earlier. Mr. Annese talks through the photo.

There are no further comments from the public.

(Christian Klein) Mr. Klein says there are still a few outstanding questions, regarding the interface with the neighborhood. He asks Mr. Haverty about a draft decision.

(Paul Haverty) Mr. Haverty doesn't think he could prepare a draft before July 2nd.

There's discussion about scheduling.

Mr. Haverty will endeavor to deliver a draft decision by July 2nd.

The next hearing will be on Monday, July 19th.

The public hearing period will have to be extended to accommodate the next meeting date. The board and applicant agree to extend until July 23rd.

Vote to extend the public hearing period to July 23rd passes.

Vote to continue the hearing until Monday July 19th at 7:30p passes.

Upcoming Dates

The chair reviews upcoming dates for the board.

• June 29. Thorndike place at 6:30. 10 Sunnyside and 55 Sutherland at 7:30.
• July 13th. Tentative date for Thorndike Place.
• July 16th. Close of public hearing for Thorndike Place.
• July 19th. 1165R Mass Ave
• July 23rd. Close of public hearing for 1165R Mass Ave.

Meeting adjourned.