 My name is Christian Klein. I'm the chair of the Arlington Zoning Board of Appeals. I have to call this meeting of the board to order. Today is Tuesday, February 9th, 2021 at 7.34 p.m. So to begin, I'd like to confirm that members and anticipated officials are present. So members of the Zoning Board of Appeals, Roger Dupont. Here. Patrick Hanlon. Here. Kevin Mills. Here. Erin Ford. Here. Stephen Revillac. Here. And Shauna Work. Here. Wonderful. From the town, Rick Valorelli. Here. And Vincent Lee. Here. And I believe Kelly Lenema is here as well. Excellent. Here. Thank you for joining us. To Mr. Chairman. Yes, please. This is Pat. I wondered if you could give me or whoever's the host could give me the permission to record the meeting on my computer so that it would facilitate the preparation of the opinions that might come out of tonight's meeting. Then can you take care of that for Pat? Let me see if I can do that. Pat, you're all set. This is Rick. Oh, perfect. Good hearing that. OK. And just looking around, I see the council is here for both 64 Brattle and 54th Street and for Thorndike Place. OK. So this open meeting of the Arlington Zoning Board of Appeals is being conducted remotely consistent with Governor Baker's executive order of March 12, 2020. The order suspends the requirement of the open meeting law to have all meetings in a publicly accessible physical location. Further, all members of the public bodies are allowed and encouraged to participate remotely. Public bodies may 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 discussion will be provided during the public comment period during each public hearing. For this meeting, the Arlington Zoning Board of Appeals has convened a video conference via the Zoom app with online and telephone access as listed on the agenda posted to the town's website, identifying how the public may join. This meeting is being recorded 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. Others are participating by a computer, audio, or telephone. Accordingly, please be aware that other folks may be able to see you, your screen name, or another identifier. Please take care not to share personal information. Anything you broadcast may be captured by the recording. We ask that 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 unless otherwise noted. The public is encouraged to follow along using the posted agenda. As chair, I reserve the right to take items out of order in the interest of promoting an orderly meeting. So with that, I'd like to turn briefly to the Comprehensive Permit Hearing for Thorndike Place. So the previous hearing on this project was held on January 26, 2021. In the days before that hearing, there were several documents submitted by the applicant and the board's peer review engineers. At the hearing, there was significant comment from the board and the public in regards to the proposed development. In order to fully review the additional information, I'm recommending that the board vote this evening to continue the hearing on Thorndike Place until Tuesday, February 16, 2021, at 7.30 PM. Second. That is seconded. Do a quick roll call vote to the board. Roger Dupont. Aye. Patrick Hanlon. Aye. Kevin Mills. Aye. Shauna Rourke. Aye. Erin Ford. Aye. Steven Revillac. Aye. OK. So that is continued. With that move to the next item on the agenda, which is the approval of the minutes from the January 26 meeting, I saw there were comments from myself and Mr. Revillac. Are there other comments to the minutes that were not submitted previously to Rick? No. Seeing none, we have a motion to approve the minutes. So moved. Second. Roger. In a second. Second. Thank you. Again, quickly running down the roll. Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Rourke. Aye. Mr. Ford. Aye. And Mr. Revillac. Aye. Fantastic. That brings us to item three, dockets 3642-64 Brattle Street. Attorney Mack. Good evening. Can everyone hear me OK? Yes. Great. We can. Thank you. So good evening, everyone. This is a continued hearing. If you recall, back in late January, this concerns a two-family structure in an R2 zone where the applicant wishes to demolish an existing non-conforming structure and rebuild it in roughly the same location, but remove a non-conformity at the side setback. And we started the hearing last in late January, and it was continued so that the board could get the opinion of town council on issues, frankly, that are quite complex and nuanced. And that subsequent to that hearing, I submitted a supplemental memo to give some further background on the lots and the formation of the lots and some of the case law. And town council issued an opinion, I believe, on Saturday, which I was able to review and provide a short reply. I don't know whether everyone received it or had an opportunity to review it. But what I'd like to do is to go through a couple of those points, but to step back a little bit, the issue is whether this lot is a lot that was created in 1963 as a sufficient land area has insufficient frontage. A structure has existed on this lot in the same location on this lot since the inception of zoning. So as a result of the enactment of the zoning ordinance and the side setback, this structure became a non-conforming structure. And we applied or we didn't apply for an official building permit, we requested a determination from the building department as to whether we could demolish the existing structure and rebuild it in a different location, pretty close to the same location, and there's an overlay that was submitted but which would eliminate the side setback. And the building inspector determined that when you demolish the structure, you eliminate any protections afforded single family and multi and two family residential structures under Chapter 40A, Section 6, the first paragraph, the so-called second accept clause. And it's our view that that's an erroneous determination respectfully. Now, and the memoranda that I submitted speak for themselves, but I'd be happy to answer questions. But I'd like to point out a couple of things that my reply goes into, which is one that there's actually we've been focusing on the definition and the meaning of reconstruction as that term appears in the ordinance and as that term appears in Section 40A and the second accept clause. And it's our view that reconstruction is does not mean that you reconstruct something in the exact same location. There's nothing in 40A or the case law or the ordinance that in our view restricts the meaning of that term to that meaning. And reconstruction is not a defined term. However, upon reviewing the Town Council's memo, he pointed out the definition of alteration, which I admittedly did not focus on, but perhaps it's even more clear than the word of reconstruction. Alteration is defined in the ordinance at Section 2 as, quote, any construction, so it uses the term in that, any construction, reconstruction, or other similar action resulting in a change in the structural parts, height, number of stories, exit, size, use, or location of a building or other structure. So if you use that definition of alteration and put it into the section that we're talking about, which is 8.1.3B, it reads as follows, no construction, reconstruction, or other similar action resulting in a change in the structural parts, height, number of stories, exit, size, use, or location of a single or two-family residential structure that increases the non-conforming nature of said structure shall be permitted unless there is a finding, et cetera. So it's our view that actually the word alteration as it's defined in the ordinance permits the demolition and a change in location of a single family or two-family non-conforming structure. And that's an additional way that this board could determine that the building department's conclusion was erroneous. And so it's our view that that definition when you apply it clearly allows the demolition of a structure and the reconstruction as long as you don't increase the non-conforming nature in a way that substantially is substantially more detrimental to the neighborhood. And as town council correctly points out, if you agree with me, either on the meaning of reconstruction or on the applying the definition of alteration, then this is an as-of-right project because there's no increase of the non-conforming nature. So that's one point that I thought was really important to emphasize that has not been emphasized in anything until late this afternoon when I submitted this memorandum. The second point is that there's a discussion at some length in the memorandum from town council about abandonment and what happens if you demolish a structure on a non-conforming lot. And town council cites several cases that he suggests stand for the proposition that if you demolish a structure, you eliminate the protections and you render the land vacant and you cannot rebuild on it. However, if you look at the three cases that are cited, they are just not on point. There are two cases that he cites, the Nelson case and the Kibbe case. Both of those have to do with a lot that was non-conforming because the zoning ordinance changed the lot area. The owner in each case demolished a building on the lot and let it sit there unimproved for years. In Nelson, it was 31 years. In Kibbe, it was 20-something years. And then the owners in those cases came to the building department many, many years later and said, I wanna build a home on it. And the building inspector and the court properly said, well, you can't get the protection of a non-conforming lot under the fourth paragraph of section six in 40A because you have a lot that was once improved upon and you don't get the benefit of that section of the ordinance when you once had a structure, you demolish it and then you don't rebuild within a certain period of time. You've abandoned those rights. That, of course, is not the situation here because we have a structure that's been on the lot and we haven't demolished it yet. And it's our view that you can demolish it and as long as you rebuild it within the abandonment period under the ordinance, which is two years, you have a right to do it as long as, again, it doesn't increase the non-conforming nature. The third case cited in the memo is this cane case in that case, the lot became a prior non-conforming lot in way back in 1955 when the minimum lot size increased. But in that case, 30 years later, the owner built the garage on the lot. So it was two lots, one had a house on it, the other was vacant. Then the owner decided I want to build a garage to serve the house, put it on the other lot and then the land was sold and the owner comes along in 2013 said I wanna take down the garage and build a house. Well, the board said properly, you can't do that because you can't get the benefit of a non-conforming lot and build on it because you put a structure on it. And once you put a structure on it, you don't get the benefit of that fourth paragraph of section six. The only benefit you get is if you have a prior non-conforming structure. If you have improved land and then you demolish a structure and you rebuild it within a certain period of time, you can get the protections of the second accept clause. But if you have a non-conforming lot and you put something on it and then you wanna take that down later, you don't get the benefit. If you have vacant land and excuse me, you have improved land and you take the thing down and then you rebuild, try to rebuild many, many years later, you can't do that either. But none of those three cases has any bearing on the situation here. What we have is a non-conforming structure that's been non-conforming because of the side setback for decades and decades and decades. And so this is governed by 8.3.1B. Now, two final points and then I'll stop talking and field any questions. One is there's an emphasis in the Memorandum of Town Council that in 8.1.3A, it says, well, if you rebuild or reconstruct entirely within the existing foundation, you by definition don't increase the non-conformity. Well, that's fine, that states the law and that's perfectly consistent with all the cases. But what it doesn't say is that that's the exclusive way that you can reconstruct, alter, or extend. If there's nothing in the ordinance or in the case law that says you are limited in your protections under the second accept clause only to the situation where you rebuild within the existing foundation, one whole or in part. The last point I wanna make is the impact of the 1963 subdivision slash variance because that wasn't addressed in my original memo. It is addressed in my supplemental memo and it is tricky because in 1963, of course, the lot was created and the lot was allowed to be created with insufficient frontage. However, the variance, if you will, that was allowed to permit the lot to be with less than sufficient frontage did not do anything and did not impact the non-conforming structure. That non-conformity existed and was not created by that variance. What that non-conformity was created by the zoning change long before 1963. And so what happens in that situation is there's case law that says, and I think it was the Palitz case that was cited in my supplemental memo that says you can't take advantage of the variance by increasing a non-conforming structure and add to the non-conformity that was established by the variance. That's the important point. We're not proposing to increase or change the non-conforming structure in a way that impacts in any way the variance that was established in that 1963 subdivision. It would be different, for example, if the 1963 subdivision, for example, allowed an undersized lot to be created and have the structure on it. And then we were to come to you and say, we wanna increase the footprint of the structure and thereby create an even bigger structure on an undersized lot. We would be affecting the non-conformity established by the variance, namely the undersized lot. That is not what we have here. We have a non-conforming structure due to a side setback that was not created by the variance and it would not be impacted in any way by the proposed demolition and reconstruction. So I acknowledge that this is complicated and I appreciate town council and I also appreciate that the history of the town may have been inconsistent with what I'm suggesting, but I don't think with all due respect that that's a reason to maintain that practice because I do think that it's erroneous and I do think that in this specific situation, which is unique, that we have a project that is as of right. And the demolition, whether it's demolished or built in the same foundation, if we're moving the structure in a way that gets rid of a non-conformity and we're not impacting the variance created by the subdivision, then the fact that we're demolishing it and rebuilding, especially when you factor in the definition of alteration, in the ordinance, then we believe this is as of right. And remember again, section six is the floor. That's the floor, that's the minimum rights that the town must afford owners of non-conforming one and two family homes. That doesn't mean it can't be more liberal and we believe that this is by the definition of alteration, it is more liberal. And I think we fall within that definition. So for these reasons, we respectfully, it's tough. I've been in the situation many times as a planning board member in my town where you get an opinion from town council. And I'm asking, I know I'm asking for a lot to say that the town council's opinion is off the mark but it's the board's decision, obviously, whether to follow that advice or that opinion. And we think that it's just off the mark. Thank you. Questions from the board? Mr. Chairman, I have a couple of questions. Mr. Hanlon. Mr. Mack, I'm curious, you talk about the variance in the 1963 decision. And I was wondering why you use that word. The, of course, we all agree that in fact, it created a lot that was going to have a non-conformity and it admitted that it did that. It nowhere said that what it was doing was granting a variance, however, nor did it purport to apply the principles that are applicable in deciding whether to grant a variance. And so I'm not quite sure I see what the significance is of characterizing it as a variance, but in any event, I wonder why you did. I can, the short answer is that there was a, if you look at exhibit D, and I agree with you that it wasn't, it didn't seek a variance. Maybe it's more applicable to call it a frontage waiver, if you will. But if you look at exhibit D, the reason I call it that is because there was a plan recorded after that filing, after the decision in 1964, if it's exhibit D to my supplemental memo, where it refers to it as a zoning variance. And you're correct, Mr. Hanlon, that it does not, there wasn't a variance requested. And I can't really go back in time, obviously, to 1963, I wasn't even alive to get into the minds of what was going on then. But all I know is that they created a lot that had insufficient frontage. I'm not even sure, frankly, whether the side setback requirement was even in effect at that time. But I did, perhaps it would have been better to reference it as a frontage waiver, but it is referred to as a variance in a subsequent recorded plan. I guess I have one other question. I'd like to look at the language that on construction, on that, excuse me, on alteration. An alteration is defined as any construction, reconstruction or other similar action, resulting in a change in the structural parts, heights, number of stories, exits, size, use or location of a building or other structure. As I read that, it isn't necessarily true that any of the three nouns that are the subject of that sentence, construction, reconstruction or other similar action, all necessarily could result in any of the things that follow the, including the location of a building so that it is certainly true that a construction could do that. It might be true and you argue that it is true that a reconstruction would do that, but it would be perfectly consistent with the way the English language is constructed or reconstructed to say that all this really means is that some kinds of those actions might involve a change in location, others might not. And the language here doesn't seem to resolve that for me one way or the other. And I wondered if you could address that. Sure, I think the point of this is that the ordinance certainly contemplates that if you are doing any one of these things, construction, reconstruction or other similar action, resulting in et cetera, you can end up changing the location of the building. And I think that that's important because when you look at the, what we're trying to figure out is, well, what are you allowed to do as an owner of a prior non-conforming structure? What are you allowed to change? And obviously the ordinance, excuse me, the statute that this is 8.1.3 is modeled after protects certain things that you can do as long as you don't increase the non-conformity. What this definition in my opinion does is it adds some depth and detail as to all the various ways in which a construction and reconstruction or which an alteration can occur. And I think the fact that it reflects that one possibility is the location of a relocation of a building or change in the location seems to me that the drafters of the ordinance intended that the actions or the rights not be limited by the location. Sure, of course it's true that you can have many different projects that don't change a location but what I think this does is expand the options for an owner. So is it your contention that whether or not this is a reconstruction that what you propose to take place that is demolishing the building and building a new one, a little bit different place and a considerably different size that should be conceived under the zoning ordinance as the zoning bylaw as an alteration? It can be either, I think it can be either an alteration based on the fact that the definition of alteration itself has the word reconstruction in it or it can be reconstruction. I think you could find it either way. These are not, I will contend models of clarity and there's no definition of reconstruction but the fact that alteration itself uses one of the key terms reconstruction to me suggests that you can use either reconstruction or alteration to get to the same place. Now reconstruction is not defined in this way that includes a change in location. I think alteration frankly is clear but I think you could do either. Thank you. Thank you Mr. Hanlon. Other questions from the board? Mr. Ravillac. Yes, I thank you Mr. Chair. First I'd like to thank Mr. Mack for providing the case law background that was a lot to digest but it was helpful. I just wanna clarify my understanding is that currently we have a structure that is non-conforming, has several dimensional non-conformities. I think two. Side yard set back and I think the rear. Yes, I omitted that, yes. The both of those would be eliminated I believe. Right, so what we're do, so the proposal is to basically replace it, replace the existing building with a new structure that is dimensionally conforming. There is a clause in our zoning by-law. I'd have to, if I'm going to cite it, I might as well make sure I'm citing it correctly. It's the last sentence in 811A where we talk about, or where the by-law talks about, it's a purpose of this by-law to discourage a perpetuity of non-conforming uses and structures whenever possible. So to my mind, replacing a dimensionally non-conforming structure with a dimensionally conforming one is a positive step. The one remaining hurdle for me is the frontage, the insufficient frontage because this is a non-conformity that exists now and I mean, the lot's not gonna change. So it's going to, the non-conformity is going to be there. But I'd like to under what, I am somewhat swayed by the fact that the ZBA in 1960, granted permission for this subdivision. And as town council noted in his memo, if the applicant had gotten a bit, were to apply for a variance and we said, yes, this would all be well and good. So I'm just curious to what extent we can consider the board's actions in 1963 as a granting of variance. Yeah, I mean, that's along the same lines that Mr. Hanlon asked. I don't know, it's hard for me to say because the opinion just speaks for itself. I don't think it was referenced as a request for a variance. I think it was interpreted subsequently by the then owner when referring to it as a variance. But I don't think, I don't have it at the tip of my fingers, what the ordinance looked like at that time. I just know that from the text of the opinion, there was 60 feet of frontage required. But I think that, I don't think frankly, the existence of the structure at that point and in that location, that had been true for 40 plus years because the lots were created in this configuration. That aspect of the lot relative to its neighbor has been true since the house has been there. So I can't say, it doesn't say it on its face. It doesn't appear to be something that was specifically addressed, but I certainly think that the board understood that they're creating a lot with insufficient frontage and there's a structure on it already. So maybe you could call it an implicit variance. That's, I think the best I could legitimately and with a straight face say. Thank you very much, Mr. Mack. Thank you, Mr. Irvine. Other questions on the board? I have one question. So the definition of abandonment as we have in our zoning bylaw is longer, but just to sort of truncate here, the cessation of a used as indicated by the replacement of a non-conforming structure by a conforming structure. So in what way is removing a non-conforming structure and replacing it with a conforming structure not an abandonment? Because I think, because I think that that is, you have to read that in conjunction with chapter 40a and the second accept clause. Because I don't think that, and I think there's also a specific provision that talks about abandonment being a two year period. I believe section 40a, excuse me, chapter 40a, section six, the second accept clause is clear that you cannot remove the rights of a prior non-conforming structure as long as that whatever structure replaces it, is not, doesn't increase the non-conformity. And even if it does, you still have to make the font, you still have to let that happen if it doesn't increase, or it doesn't substantially harm the neighborhood. So I don't think the definition of abandonment trumps the meaning and protections afforded under section six, the second accept clause. And I think that the abandonment cases that have been cited, again, largely deal with the lots that had a structure on it, you remove it and then you let it sit there and then try to come back and build on a non-conforming lot. It doesn't render the import of the dial away cases is that if you have an improved lot and you demolish it or change it, you can't then later come back and then get the benefit as well of the non-conforming lot under the fourth paragraph of section six. What you have to do is if you make an alteration, you have to avail yourself of the rights within the time permitted by your ordinance, which is two years. So I think that that's the way I read all of these things in harmony with one another. Now, if we were to demolish it and then come back five years from now, we will have lost all our rights. And that's why we didn't obviously go ahead and demolish it right away. Certainly, certainly. So just sort of to summarize that, sort of using the definition of abandonment that that makes sense relative to the two-year time period. Correct. Okay. Last call for questions from the board. Okay, seeing none, I'll open up the meeting for public comment, just a couple quick points. Public questions and comments will be taken as they relate to the matter at hand and should be directed to the board for the purpose of informing our decision. Chair will ask members of the public who have identified themselves by logging in through Zoom who wish to speak, to digitally raise their hand using the button on the participants tab in the Zoom application. You'll be called upon by the meeting host. Your audience video will be unmuted and you'll be asked to give your name and address. You'll be given time for your questions and comments. All questions to be addressed through the chair, please remember to speak clearly in a way that helps generate minutes. And if you are calling in this evening, if you dial star nine, that will do the same thing. So looking at the list, excuse me, Mr. Loretty. Mr. Loretty, you are muted. Thank you, Mr. Chairman, can you hear me now? I can hear you now, yes. Okay, Chris Loretty, 56 Adams Street. And thank you and the board and the applicant's attorney for their comments. I'm still wondering why nobody's talking about the Bjorkland decision. And this is a decision of the state Supreme Court that said, if you have a non-conforming lot and reconstruct a home in that case, a much larger single family home that completely complies with all the dimensional requirements of zoning bylaw, as is the case in this particular situation, it increases the non-conformity. And therefore it must go before the zoning Board of Appeals for a decision. It's not something that can be done by right. And I'd like to read one particular statement from the Supreme Court decision. And what it says is our decision recognizes that many municipalities do not welcome the building of structures that represent the popular trend of mansionization. This is especially so when the structure, when the structure involve reconstruct, is especially so when the structures involve reconstruction on non-conforming lots. And that's what we have here. The expansion of Smire houses into significantly larger one decreases the availability of would-be starter homes in a community, perhaps excluding families of low to moderate income from neighborhoods. Municipalities may permissively exercise their police power to attempt to limit these potential adverse effects. And I really would ask the Board to consider that. And finally, I would just end by saying, there was no variance for this lot or this structure. What the ZBA did, and I would argue, did inappropriately years ago was allow the creation of a non-conforming lot. But I think it's beyond dispute that it is non-conforming and remains non-conforming. And I think the relevant legal decision, and this is one of the state supreme court, as I said, is the Bjorkland decision. It's quite clear that this applicant cannot by right tear this house down and do their own two-family McMansion. Thank you. Thank you, Mr. Loretty. I'd love to respond to that, if that's permitted. Second, ask it to hold for a minute, please. Sure, of course. Are there other questions from the public? Going once, going twice? I see no further. So I will go ahead and close the public comment. Mr. Mack, if you could address the Bjorkland decision. Sure. So first of all, I remember that the issue before the board is whether the building department's determination that we cannot demolish the building period is correct. There is a line of cases, and we do cite them that started with this Bransford case, which says that there are certain circumstances where you have a non-conforming lot, such as I think all, if not all of them, then certainly almost all of them have to do with undersized lots. And there is, as I note in my supplemental memo and a footnote, there is case law and Bransford was the first one that suggested that just because you have a fully compliant, dimensionally new structure, doesn't mean you can't increase the non-conformity because you might increase the density relative to an undersized law. And in those circumstances, you may well need a special permit to address the issue of whether the increase in the non-conformity substantially creates a substantial detriment to the neighborhood. But what we don't have here, what Bjorklin didn't involve is the demolition, the question of whether you are prohibited from demolishing and rebuilding on a lot that is fully compliant in terms of its size and where you remove a non-conformity. If we determine, let's say the board agrees with the position we're taking and we go to the building department and then file an application for a building permit and the building department, we believe this wouldn't be the case, we're to determine, well, you're fully compliant dimensionally, but I don't like the size of this thing. I think you need to go to the board of appeals to get a special permit to get that determination. We might disagree with that, but that's not what the board is being asked to determine. We don't have a proposal whereby we are proposing to increase the size of a house on an undersized lot. We don't have that. We are proposing to the non-conforming nature of this structure is the side setback and the rear setback and we are proposing to eliminate that. If for whatever reason, the building inspector were to determine, well, because of the shape, somehow it affects the frontage. I don't see how that would be the case because the location is so far back and the driveway is not changing. Maybe there would be a requirement for that finding, but that's not what's before the board. So I don't think Borkland is applicable. Thank you. Questions from the comments from the board? Mr. Hanlon? Nope, not yet. Okay, so the question before the board is whether or not the decision of the building inspector was correct in denying an as right permit to demolish the existing structure and create a new structure on an existing non-conforming lot. Can I interject for a minute, Mr. Chairman? I'm sorry. Just to put a finer point on it, we did not file a request for, we didn't file an application for a building permit. What the building determined but the building inspector determined was that if we raise the building, we lose all rights to build. It becomes a non-build of a lot. That's the issue before the board and I respectfully believe that that was erroneous. What happens with regard to a specific project would remain to be determined, but what the issue before the board is whether that determination, namely that if you were to raise the building to demolish it, it becomes a non-build of a lot. Okay. Mr. Chairman. You had just asked the building inspector for a determination. You had not filed any form of application. Correct. Okay, thank you for that clarification. Mr. Chairman. Mr. Hanlon. I would be ready to make a motion on this one. And if it's the appropriate time to explain what the motion is and why I'd like to make it, I may have been too hasty in declining the opportunity to talk a moment ago. Seeing no further comments from the board, please proceed. So the issue in this case is whether the under the Arlington zoning bylaw, a property owner can voluntarily raise an existing non-conforming residential structure on a non-conforming lot and by right-building new much larger structure located in a different place on the lot that does not increase the nature of the non-conformities. In this case, the existing building and lot are non-conforming with respect to the fundage, side yard width and rear yard width. And the frontage non-conformity was created as we earlier discussed as a result of this board's 1963 approval of the subdivision of a larger lot that was done in order to enable the construction of an additional house that is located between this house and Summer Street. The appellate proposed new building wouldn't increase the nature of any of these non-conformities. And on the contrary, it would actually conform to the requirements of the zoning bylaw except with regard to frontage. So if we were only looking at this case and if we were only thinking about the rules that ought to apply in this case as if it was a one-off or something that was unique as Mr. Mack described it earlier, certainly it would be very attractive to move in the direction that Mr. Mack has suggested. But at least as I see it in Arlington, the principle for which the appellate contends that the demolition of an existing non-conforming structure and its replacement with the building that doesn't exacerbate the non-conformities is a reconstruction allowed by right under the town zoning bylaw would have very broad consequences. As we all know throughout the town of Arlington, there are many, many, many lots that are non-conforming, some of which are non-conforming because of inadequate frontage. That's particularly true in the western part of Arlington and the eastern part of Arlington, it's frequently true that there's inadequate lot size. So it's important that the principle that we adopt here is a principle that we're willing to live with going forward as applied to a large number of potential properties. As Mr. Mack has pointed out, he's sort of swimming against the tide here. He's asking this board to overturn a longstanding interpretation of what it means to reconstruct and when you do and don't have your rights. And in particular, we have for a long time required some degree of association of the reconstructed structure with the original structure. And that, according to the town council's memorandum, has involved some preservation of the foundation or of a certain portion of the building, but clearly we didn't regard and have not in many, many years regarded as a reconstruction, the demolition of one building and its replacement by an entirely different building. And secondly is of course, Mr. Mack is asking as to disregard the opinion of town council, which we have every right to do. And a town council is super in giving us options and presenting arguments in either way. And so, but nevertheless, it is a difficult ask to upset essentially many years of history in order to adopt a brand new interpretation that will affect a fairly large portion of the lots and houses in Arlington. So this case is governed in the first instance by section 811 of the Zoning By-law. And I wanna stress that the issue here is not so much the construction of the state law that this is close to, but it's our by-law and to some extent the principles that apply to our interpretation of it are principles that are Arlington principles. The decisive language is the second accept clause, which says that which preserves non-conformance rights, where alteration, reconstruction, extension or structural change to a single family or two family residential structure does not increase the non-conforming nature of such structure. And as Mr. Revolak pointed out, that same provision also says it's the purpose of this by-law to discourage the perpetuity of non-conforming uses and structures wherever possible. And that sentence is not found in the state act. So at least as we originally heard this case, the second accept clause in the by-law would only apply if the applicant's proposed replacement of the current structure counts as a reconstruction. Tonight we've heard an argument that maybe it would be an alteration, but to some extent that is really a semantic difference because the reason it might be an alteration is that reconstruction is included in the definition of an alteration. And I'll get to the reason I'm not entirely persuaded in Mr. Mack's argument on that in a moment. The term reconstruction is not defined in the by-law or in the state zoning act. And I agree, and I think I will recommend that the board agrees with the town's council's observation that logic and case law support the conclusion that a reconstruction implies a rebuilding of a substantially similar structure in the same location. For the reasons that are stated in the discussion and in the opinion of the town council, I don't think that the new structure that is proposed by the applicant would be substantially similar to or in the same location as the existing building. And accordingly, the new structure would not be entitled to the protection of the second accept clause. I also would recommend that the board agree with town council that a total demolition of the existing building would constitute an abandonment which would also terminate non-conformance rights. And I'd stress the conclusion of town council that an abandonment in contrast to non-use is capable of being instantaneous and doesn't require the lapse of any particular period of time. So two more points. One is to return to the question of alteration. I suggested earlier that the way in which that sentence is written doesn't necessarily imply that a reconstruction could involve a moving of a change in the location of the original structure that a construction itself may involve moving where that structure, where a structure might be and alteration itself usually implies some connection to an existing structure which here would not exist. So just as a grammatical matter, it doesn't necessarily apply or suggest that a change in the location of a building would fit within the definition of a reconstruction. To me, it doesn't push one way or the other in the thing that's most important is that what we have here is really a new building. And that's what we're being asked to do is really say you can destroy the old building and build a new building and treat that as a reconstruction. And I think the board should not take that view. Now, this isn't going to leave the applicant or the appellant rather without narrower avenues for relief as the town council pointed out. The appellant could seek an amendment of the 1963 decision to delineate more clearly what the rights and parameters of the lots of the lot in question is. And it could also seek a variance and in part because of the shape of the lot, it might very well have a decent claim for making a variance here. We don't have to and we should not now prejudge what would happen if the appellant rather followed either of those courses and just point out that you don't need to adopt the broad principle that the appellant is arguing for in order to deal with the special circumstances that exist because of in this somewhat unusual situation made unusual by the 1963 decision of this board. So Mr. Chairman, in light of that, I move that that the zoning board of appeals affirm the decision of the building inspector on the grounds first that demolition and replacement of a non-conforming structure is not a reconstruction under the zoning by-law and that demolition of a non-conforming structure constitutes an abandonment for the reasons that are set forth and as discussed in the town council's February 6th memorandum to the board. Thank you, Mr. Hanlon. Do I have a second? Second. Thank you. Mr. Rourke. Any questions on the motion? Seeing none. Call Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Rourke. Aye. Mr. Rourke, I can't hear you. Aye. And the chair votes aye. So the motion is passed and the decision of the building inspector is retained. Mr. Chairman. Yes, Mr. Hanlon. I'd like to, I mean, at this point, I'd like to compliment Mr. Mack for excellent briefs and an excellent presentation. It is, as he described it, a complicated case. It's one that involves a lot of somewhat conflicting policies. And I think that he served his client well and that he served this board well in presenting an extremely thoughtful consideration of a difficult issue. Thank you very much for that comment. Thank you, Mr. Hanlon. And thank you, Mr. Mack. I would second that too as well, Mr. Chairman. That was truly an excellent presentation on behalf of his client. Thank you very much, Mr. Rourke. Agreed. Thank you all. Thank you. Good evening. Good evening. That brings us to our next item, which is agenda item number four, docket 3645, number five, Forest Street. Mary, when Stanley O'Connor is appearing for the applicant. Good evening, Mr. Chair, members of the board. I represent Neil J. Crowley, LLC, which is the owner of five Forest Street and David Waldridge. Mr. Waldridge is the owner of the building owner of the LLC. And some of you may know, he is the owner of Swifty Printing. He is seeking a special permit pursuant to section five, subsection 5.53 of the bylaw to conduct his business, a consumer service establishment at that location. This property is located in a B1 zoning district and a special permit is required if the consumer service establishment has less than five employees on site at the same time. Now the principal business of Swifty Printing is graphic design, digital file editing, color text, data merge and digital printing. It's all primarily computer generated. And Mr. Waldridge is here to answer any questions on the call. I would suggest to you, so some of the back history, you may recall that this board granted a special permit to operate a doggy daycare center on that site, I believe in 2011. In 1994, Osmond Brass Instruments obtained a special permit to sell instruments, repair instruments and conduct music lessons on that site. With respect to the special permit criteria, I will go through them. The use is listed in the table of use regulations, as I said, in section five, subsection 5.5.3. I would suggest that the use is essential or desirable to the public convenience of welfare. This use has been a staple in Arlington for years and provides a valuable and necessary consumer service. The use will not create undue traffic congestion or unduly impaired pedestrian safety. The use is presently located at 1340 Massachusetts Avenue. It will be relocating to a building with customer parking. There will be two full-time and one part-time employee and the business expects, on average, not more than one to three customers actually daily coming to the site because things are sent in by way of computer and returned that way. The use will not overload any public water drainage or municipal systems. There are no special regulations for this use in Article 11 to be fulfilled. And I would suggest the use will not impair the integrity of character of the district or adjoining districts. And finally, the use by its addition will not, by its addition to the neighborhood, cause an excess of a particular use in that area. So I would suggest that, and I just wanna point out that in 5.5.3, they give several consumer type businesses, but that's not an exhaustive list. I think it's hand laundry, dry cleaning and a tailor. And I believe that in the file, there's a memorandum from Carol Kowalski who was the former planning director, specifically on this point to say that was not meant to be the only definitive list. It is, the board needs to make a determination as to this being a consumer service business. And I would suggest that it is. And we'll answer any questions that you may have. Thank you. Are there questions from the board? Mr. Chairman. Mr. Trump. I have a question for Mrs. O'Connor. So I was actually just looking through 5.5.3 and I was trying to actually identify specifically which of those sections you were under, because certainly it has in the personal consumer and business services, it has copy center, but you're not going under that. No. And so then you dropped down and it was consumer service establishment, but this was with more than five employees. So you're gonna have fewer than five employees, correct? I think if I read the bylaw correctly, Mr. DuPont, if you have more than five employees, you cannot operate in a B1. A consumer service establishment in a B1 has to be less than five employees. Okay, because I was actually wondering if it was artistic creative production or other principal uses. So I was just having a little bit of a time trying to figure out exactly where you were coming in. So under then the consumer service establishment, you're suggesting, and I apologize because I see the bullet point there. So you're just saying that it's fewer than five employees, it would then fall within that heading and then therefore with a special permit you could conduct that business. That's correct, Mr. DuPont. Okay, thank you. Thank you, Mr. DuPont. Mr. Revillac? Yes, my question, I do have a question and it also relates to the table of uses for the B districts. As Mr. DuPont mentioned, there is a use listed, copy center or print shop for sheet-fed printing. I'm curious why that use does not apply in this case. It's not a sheet-fed printing business. This is more graphic design. One follow-up, could you just for my own clarification, give an example of a business that would be considered a copy center or print shop for sheet-fed printing? I'll leave that to Mr. Waldrich. That's beyond my expertise. Mr. Waldrich? That's him with the raised hand. For the sheet-fed printing, we don't have that type of equipment. As far as the copy center, I think that is more in line with what the UPS store or Staples has. They have self-serve machines where people can come in and make their own copies. We don't provide that service. Okay. Thank you very much. Thank you. Thank you, Mr. Revillac. Thank you, Mr. Waldrich. Other questions from the board? Seeing none. I'll open this up for a public comment just to reiterate from book four. Public comments and questions will be taken as they relate to the matter at hand. It should be directed to the board for the purposes of informing the decision. Ask members of the public who have identified themselves by logging in through Zoom who wish to speak, please raise their hand digitally using the button on the participant tab. Or if you are just spending by phone, please raise your hand and I'll start nine. With that, I will return to Mr. Waldrich. Mr. Waldrich, did you have comments you wish to make? I think that will be a very low impact business for this location, certainly less than what the doggie daycare was prior to us arriving. Thank you. Ms. LaRoyer. Hi, Anne LaRoyer. My name is Anne LaRoyer. I'm from Fair Street, just opposite from, opposite Faris Street from the site. I'm a frequent user of Swifty Printing and I certainly support their, their moving here. It'll be convenient for me at least. I do have a couple of questions though, just when I read some of the materials. One is that I question the suggestion that there'll be just one to three customers per day. Often I've been in the store at their other locations and there's certainly more than one to three customers per day. So I, that was one question. And the other question has to do with the rest of the building, how that's going to be used. Because it sounded like the Swifty Printing was only going to use part of the two-story building. There's just the first floor of the two-story building and there's the second floor of that building, plus a larger second attached building. So I just curious what kinds of uses are going to be in those spaces and whether, how, how those will be addressed at some future time. Well, thank you. Mr. Wildridge, how many customers do you typically have in the store to, on a given day, currently? So we use the one to three as an average, because the business is cyclical. So July and August are slowest times where we would not have, you know, maybe one customer a day. Some days not even in the fall and the winter. We do have more customers. So, we use the one to three as an average. What would sort of be the high that you normally would see? I don't think that we would have more than five customers. And if they are, our business is set up that the customers are coming just to pick up their jobs. That is the majority of what our traffic is. We do have some customers that are, you know, they'll bring materials with them, but it's a very short period of time. And like I said, the majority of them are coming to pick up the finished product. Okay. And are you leasing the entire property or just a portion? No, we will, we will be located in, the two story building on the ground floor. The second floor of that building is a one bedroom apartment, which is vacant. And then the left side of the building. Is will be vacant. It needs to be renovated. And then we would look like we would look for a tenant for that portion. Okay. Thank you. Thank you. Anything further, Ms. Well, I just, I don't know. Depending on who that second tenant might be, or that that could add additional activity to the, to the neighborhood. I just, but I'm not sure how that would be addressed. I guess that's the question. If I could, it would have to be addressed in the context of another special permit. If it's not a by right use. Yeah. Yes, until there is a known. Second tenant. There wouldn't be any. Known action in regards to that. Oh, I mean, basically I'm supportive of. So if you're printing and Mr. Wolfridge and his business and I. I just wanted to ask those questions because I, it was a little big. Just leaves open some. Question for. Activity in the neighborhood. That's all. Okay. Thank you for that. Mr. Loretty. Thank you. Mr. Chairman. Chris Loretty again, 56 Adams Street. Can you hear me this time? We can. Great. Thank you. Just a couple of questions. Mr. Chairman. I'm looking at the Arlington. Swiftie print. Dot com website. And I'm wondering about this characterization of the business as primarily being in design. Because what the website says is. Large format printing offset and digital printing. I mean, it seems to me like the primary product is, is something you can hold in your hand. And that indeed is why people have to go to the business to. Pick up the materials. So it's not like it's a virtual business or anything like that. And I really have to wonder if they're only getting a one or two years. Three customers a day with how long they're going to last there. And I suppose, you know, if the board wants to adopt the fiction that this is a consumer service establishment rather than a print shop, we can do that. But it seems to me that's really what it is. And I have absolutely nothing at all against Swiftie printing. But I would remind the board of what the B1 zoning district is and that in what it is, primarily in perhaps not in this case, but it was set up generally for lots that were formerly occupied for by one or two family homes. And I really wonder if this type of use is appropriate for the B1 zoning district. And whether you don't set an inappropriate precedent for conversion of other B1 properties. Into more intensive uses that the bylaw really doesn't contemplate. So I would just leave you with that and hope the board will give that some, some kid's consideration. Thank you. Thank you, Mr. Loretty. I was going to actually address the question quickly to Mr. Woolridge in regards to the nature of the, how much of your business is sort of more on the graphic design side and how much is more on the print side. So, graphic design is part of what we do. In addition to the print side. But the, I would just leave you with that and hope the board will give that some, some kid's consideration. Thank you. Thank you, Mr. Loretty. I was going to actually address the question quickly to Mr. Woolridge in regards to the nature of the, how much of your business is sort of more on the graphic design side and how much is more on the print side. So the website is outdated. And we do sell offset printing. It's just not performed by us on site. It's done elsewhere. But all our work is, is done. Through a digital file. And it, we have to manipulate. We have to make sure that we have a, we have to make sure that we have more than 90% of that type of work. So every job gets touched electronically before it can go anywhere. So that's why we put the design and file manipulation. First, but it does end up being. A printed product at the end. Okay. Ms. O'Connor. I just want to point out that compared to the B1 uses that we're using, it is not a print shop. It is not a copy center. It is primarily computer driven. And the traffic to the site is very, very minimal. And this is a use that was in the heights available to. To people in Arlington and to small businesses. And I would suggest to you it's a perfect fit for the area. And I believe in. In the 1994 application to change the. To allow the. Osmond brass instruments to operate on this site. Prior to that, it was a commercial printing. That, that is correct. I actually was on the ZBA when that decision was entered. Mr. Loretty, did you have any further questions? Sorry, just moderate. No, I do not. Thank you. Thank you. Are there any other members of the public who wish to speak on this matter? Seeing none. I'm going to go ahead and close public comment on this. Discussion on the board. Is there. Anyone with further. Questions or points of discussion. Seeing none. And in the matter. And do I have a motion. Mr. Chairman, I move to approve the special permit. Second. Are there. Any. Conditions that the board wishes to put on the. Special use application. Seeing none. Mr. Mills, is that your second? Yes. Thank you. Actually, Mr. Chair. Yes. One of a possible condition. And I just raising this as a suggestion. That there be no more than five employees employed. At this location. That's fine because that was the permit that we. One of the provisions. Five for this business. Yep. Correct. So conditions that no more than five employees. For requirements. Of. Use under. Five. Five. Three. And zoning by long. Okay. So we have a motion before us to grant the special permit with the condition that no more. No more than five employees. In this. Use. For the requirements under 553 and the zoning by law. Yes. Okay. So we have a motion before us to grant the special permit. But that will do a roll call vote of the board. Mr. Dupont. Hi. Mr. Hanlon. Hi. Mr. Mills. Hi. Draw work. Sorry. Didn't hear you, Mr. Hi. I apologize. Like that you can't hear me. Sorry. Okay. And the chair vote. That is a. Thank you very much. Mr. Jim and members of the board. Thank you. You're welcome. Thank you. That closes the. Hearing on. The application. We had previously. Continued the project place hearing until next Tuesday, the 16th. So that was our last item of business for this evening. So moved. Thank you. Second. Second. Mr. Mills. Those board members in favor, please say aye. Aye. Aye. All of the post. We are adjourned. Good night, guys. Good night, guys. Good night. Good night.