Zoning Board of Appeals - Oct 28th, 2021

Meeting held via remote participation. Materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1448.

Comprehensive Permit - Thorndike Place

(Christian Klein, ZBA Chair) Mr. Klein begins by explaining the reason for the use of Zoom's webinar format. The board is entering the deliberation phase of the Thorndike Place comprehensive permit and cannot accept any more input from town staff, our consultants, or the public. The webinar format allows the public to observe the board's deliberations. He also reminds everyone that the board has three options: approve the permit, approve the permit with conditions, or deny.

First, we discuss the schedule for deliberations. The board sets Nov 3, Nov 11, and Nov 16 as dates for deliberation.

(Pat Hanlon, ZBA) On Tuesday, Mr. Hanlon suggested going through the waivers and conditions first, and saving findings until the very end. He's concerned that the board could get bogged down in a discussion of findings. He also notes that conditions and waivers are the parts of the decision that are binding on the applicant.

(Roger Dupont, ZBA) Mr. Dupont asks if the board can consult with Mr. Haverty, town counsel Doug Heim, or special counsel John Witten during deliberations.

(Paul Haverty, Counsel to the board) Mr. Haverty says the board is allowed to have discussions with counsel while rendering their decision.

(Roger Dupont) Regarding doing waivers and conditions first, Mr. Dupont asks if the board will be taking one vote on the decision, at the very end.

(Christian Klein) Mr. Klein says that was his expectation; one vote at the end.

(Steve Revilak, ZBA) Mr. Revilak recalls that several members of the public expressed a preference that the board deny the application, and they'd fight the proposal during the appeals process. He'd like to get a sense of how the other board members feel about this.

(Pat Hanlon) Mr. Hanlon says the board will have the opportunity to deny at the very end. If there aren't enough votes to approve the project with conditions, then there will likely be enough votes to deny.

(Steve Revilak) Mr. Revilak thinks that's a reasonable approach.

(Shawn O'Rourke, ZBA) Mr. O'Rourke asks about the appeal process. Suppose the applicants wanted to appeal; would they lose that right if the board denies the application?

(Paul Haverty) Mr. Haverty says yes. The abutters would lose their right to appeal if the board denies. In addition, a denial would allow the applicant to pursue any version of the project they've presented to the board.

(Pat Hanlon) Mr. Hanlon asks for clarifications about the applicant's recourse in the courts.

(Paul Haverty) Mr. Haverty says the applicants would not be aggrieved by the board's denial, and would not have standing if the applicant appealed to the Housing Appeals Committee (HAC). However, if the HAC overturned the denial, the abutters could be aggrieved by the HAC's decision. In theory, they could file a Chapter 38 appeal of the HAC's decision in superior court.

We discuss waivers first.

Waiver 1. Use of streets for construction conditions. This is a procedural waiver; denied as unnecessary.

Waiver 2. Wetlands protection bylaws. Denied as unnecessary, or overly broad.

Waiver 3. The waiver to work in AURA as shown on the final plans is granted. The request to waive the AURA as a resource area is denied.

Waiver 4. Waiver denied as unnecessary. Per the final plans, the applicants will provide 2:1 compensatory flood storage. Any restoration work should follow the town's regulations for wetlands restoration.

Waiver 5. Similar to waiver 3. The waiver to work in the AURA as shown on the final plans is granted, an the request to waive the AURA as a resource area is denied.

Waiver 6. This waiver pertains to bond requirements, and the board discusses how to word their response. The conservation commission and BETA suggested a bond of $179k and arrived at that amount by estimating the cost to restore the project and compensatory flood storage areas, and dividing by four.

Waiver 7. Denied as unnecessary. The conservation Commission doesn't have the authority to review this application under the local bylaws, and they can request chapter 53G funds to review under the state wetlands protection act.

Waiver 8. Denied as unnecessary, because the dumpsters will be stored in the interior of the building. If the applicant wants to put the dumpsters outside, they'll have to request a modification of the permit.

Waiver 9. This deals with stormwater mitigation. Mr. Dupont asks what happens if MassDEP or EPA changes their policies while the project is being constructed. Mr. Haverty suspects it would depend on the individual change. In general, he thinks that changes made after the applicant receives an NOI will not be applicable; changes made prior to the issuance of an NOI would.

Waiver 10. Tree protection bylaw. Denied as unnecessary.

Waiver 11--13. Town fees. Waiver requests denied.

Waiver 14. Zoning bylaw definitions. Denied, as there isn't enough information in the request for the board to make an informed decision.

Waiver 15. Waiver granted, in order to allow the project to be constructed according to the final plans.

Waiver 16. Zoning use regulations. Waiver denied as unnecessary.

Waiver 17. Dimensional and density regulations. Denied; there are more specific waiver requests for dimensional relief.

Waiver 18. The waiver request involves setbacks. Granted, to allow construction according to the final plans.

Waiver 19. Buildings in floodplains. Denied as unnecessary.

Waiver 20. Involves open space requirements. Granted.

Waiver 21. Signs. Granted to allow construction as shown on the final plans.

Waiver 22. Off street parking requirements. Waiver granted.

Waiver 23. Compact parking spaces. Granted to allow construction as shown on the final plans.

Wavier 24. Granted to allow construction as shown on the final plans.

Waiver 25. Special permits. Denied as unnecessary.

Waiver 26. Variances. Denied as unnecessary.

Waiver 27. Flood plain districts. Denied as unnecessary.

Waiver 29. Environmental design review. Denied as unnecessary.

Waiver 30. Affordable housing requirements. Waiver granted. The handling of affordable units is solely at the discretion of the subsidizing agency.

Waiver 31. Waiver from certain zoning board regulations. Granted.

Waiver 32. Noise abatement. The board added this during the deliberation, in response to the Oct 20th discussion about construction hours, and Ms. Kiefer's verbal request for a waiver. The board will come back to this after we've discussed the conditions pertaining to hours of construction.

Next, we move on to conditions.

Condition A.4. The board decides to go with numbers, rather than writing the numbers out. For example, we'll say "54" instead of "fifty-four (54)".

Condition A.10. There's discussion about the sidewalk on Dorothy Road, and whether to mention existing easements.

Condition B.4. This condition involves local preference. The board decided not to request local preference in the 1165R decision. Mr. Hanlon supports this. He suspects that Arlington's senior population is more homogeneous than Arlington's population as a whole.

Condition C.1. This condition contains requirements for the landscaping plans the applicant has to submit. Members of the board should verify that there's a performance condition associated with each plan requirement. There's discussion about wording, and recognition that the board should be cognizant of when "resource area" should be construed to include the AURA and when it shouldn't.

So far, the board has gone through condition C.1. We will pick up with Condition C.2 on November 3rd.

Meeting adjourned.