 All right, it is 733 PM, yep, 733 PM on Tuesday, February 22nd, 2022. And this is the meeting of the Arlington Zoning Board of Appeals. Good evening, my name is Christian Klein, I'm the chair of the Arlington Zoning Board of Appeals I like to call this meeting of the board to order. First, like to confirm all members and anticipated officials are present members of the zoning board of appeals, Roger Dupont here. Patrick Hanlon here. Kevin Mills here. Daniel Rickardelli. Here. And then get Holly. Yeah. Good evening to all appearing on behalf of the town, Rick Valerelli. Good evening, Mr. Chairman. Good evening, sir. And see Vincent Lee is with us as well. Yep. Glad to have you. I don't believe there's anyone else, specifically from the town with us. Is, and then is Mr. Nessie joining us. See him on. So he was hoping to avoid it. Robert Nessie is the attorney for 1113 Lowell Street. But we are going to be continuing on that case. Is Mr. Pointer here on behalf of 108 Pleasant Street. Yes, I am. Can you hear me. Yeah, we can hear you. Thank you for joining us. And then I don't know. Thank you, Mr. Chairman. Thank you, Mr. Chairman. Thank you, Mr. Chairman. Thank you, Mr. Chairman. Thank you, Mr. Chairman. Mr. Chairman is present on behalf of 25. Highland Avenue. She may not be because that will be continued this evening as well. Hey. So this open meeting of the Arlington zoning board of appeals is being conducted remotely. Consistent with an act extending certain COVID-19 measures adopted during the state of emergency. Signed into law on June 16, 2021. The public bodies may continue to 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 participation will be provided during the public comment period during each public hearing. For this meeting, there are only 12-20 executive orders suspending certain provisions of the open meeting law, which suspended the requirement to hold all meetings in a publicly accessible physical location. Further, all members of public bodies are allowed to continue to participate remotely. Public bodies may continue to meet remotely. For this meeting, the Arlington zoning board of appeals has convened a video conference via the zoom app with online and telephone access is 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 needs. Some attendees are participating by video conference. Other participants are participating by computer audio or by telephone. Please be aware that other folks may be able to see you. Your screen name or another identifier. Please take care to not share personal information. Anything you broadcast may be captured by the reporting. We ask that you please maintain decorum during the meeting, including displaying an appropriate background. Also, supporting materials have been provided. Members of this body are available on town's website unless otherwise noted. The public is encouraged to follow along using the posted agenda as chair or reserve the right to take items out of order in the interest of promoting an orderly meeting. As the board will be taking up new business at this meeting as chair, I make the following plan acknowledgment. Whereas the zoning board of appeals for the town of Arlington, Massachusetts, discusses and arbitrates the use of land in Arlington, formerly known as monotomy and Algonquin word meaning swift waters. The board hereby acknowledges that the town of Arlington is located on the ancestral lands of the Massachusetts tribe, the tribe of indigenous peoples from whom the colony province and Commonwealth have taken their names. We pay our respects to the ancestral bloodline of the Massachusetts tribe and to their descendants who still inhabit historic Massachusetts territories today. Turning to our agenda for this evening. Mr. Chairman, can I make a, can I ask a question please? Mr. Moore. Please. Just briefly, I've tried to access the agenda online a couple of times. I'm getting regular errors. Is there some problem with the service that other people are experiencing as well? That is a very good question. I thought maybe it was just my machine or a temporary error, but it's happened repeatedly now and I can't access the agenda at all. I can't. Can you. Mr. Lead, are you aware of any issues with that? I am not, but I'm going to look into it right now. Let me go check it out. Okay. Thank you, Mr. Kim. Oh, I, I see it. Yeah. When I access it through the town's website that it does. Go to an error. Is there another way to access it that I should use that? Not that I'm aware of. I have a. Sort of a supervisors access. As chair of the board, but. Unfortunately, that doesn't help you. Mr. Chairman, I was on it earlier and I had no issues. Between that and now, so we'll check it out. Okay. Thank you, Mr. Kim. Okay. I apologize for that. That was the situation. On the agenda for this evening, there are five items. There's two administrative items. One is the remote participation details, which we've already covered. The second is. Which we're moving to now. Is the approval of a special permit decision for 25. Highland Avenue. And then we have three hearings on the docket. One is 108 Pleasant street. One is 1113 Lowell street. And the third is 25 Highland Avenue, the variance as opposed to the special permit. And those are the five items that are on our agenda for this evening. And then we have the approval of the special permit decision for 25 Highland Avenue. This was written by. Patrick Hanlon and distributed to the board yesterday for comment. Excuse me. And that. Was we received comment on that and it was redistributed this afternoon. And are there any further questions or comments on the decision to approve the final decision for the special permit application for 25. Highland Avenue. Seeing none, may I have a motion to approve the final decision for the special permit application for 25. How it happened. Mr. Chairman. Mr. Hamlin. I move that the application for 3677. Docket number 3677 25 Highland Avenue. For the special permit only. Be approved. Second. Thank you. All those in. Do a roll call vote of the board. Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Goodellie. Aye. Chair votes. Aye. That is approved. That brings us to item number three. But before we move on to that. I do have another question which may be in relation to the agenda itself. Mr. Loretty. Sir Loretty, did you have a question or regards to the agenda? You are on mute. But your hand is raised. Sorry, can you hear me now, Mr. Chairman? I can. Sorry, I just wanted to say I got that error too when I first tried to get to the agenda. If you highlight the web address in your browser in return again, you get the normal list of agendas in minutes. So there's some problem in getting to it, but you can. I just wanted to mention that I was having difficulty. Oh, thank you so much. I appreciate that. Mr. Chairman. Yep. Yeah, I can get to the list. But when you try and get to the actual agenda. Download or online. It gets the error. I can get to the listing. Fine. But thank you, Mr. Loretty. That's a. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Just other people looking into it too. Yeah, it worked for me when I clicked on online agenda. I'm getting things. Thank you. It sounds like it's just. I'm going to quickly take two items out of order. Just because they are quick votes. And we can close those items for this evening. Okay. The first is item number four on our agenda, which is docket three, six, eight, seven, 11 to 13 Lowell street. There was a request for a continuance. By the applicant and the board. I would like to encourage the board to go ahead and approve that continuance. And speaking with the applicant, I would like to encourage the board to go ahead and approve that. And I think that the. Case was initially applied for in the timeline thereof. And so they have a request. Some additional time to look into that. The board has a hundred days in order to hear. An appeal to the decision of the building inspector. And that hundred day period expires on March 11th. So. Working with the applicant. We've agreed to extend that period by 30 days. Okay. So. I would like to move that we. Continue. The case in regards to 11, 13 Lowell street until. Tuesday, March 22nd at seven 30 PM. Second. Thank you. Vote of the board. Mr. Dupont. Hi. Mr. Hanlon. Hi. Mr. Mills. Hi. Mr. Hanlon. Hi. Chair votes. We are continued on that. Going to item number five. Dock at three, six, seven, seven, 25 Highland Avenue, the variance application. There's an additional piece of information we've been seeking for several months. It is still not. Been made available. And so we are. We are looking to continue. Mr. Dupont. Is being called out. I'm coming out of Highland Avenue. Second. Thanks. Hamlin. Is there a date certain on that, Mr. Chairman? I apologize. Yes. Thank you. To. So continue to Tuesday. March 22nd at seven 30 PM. Thank you. Mr. Dupont. VOTE of the board. Mr. Dupont. Hi. Mr. Hanlon. I. Mr. Riccadelli. Aye. And the chair votes aye, so we are continued on that item. So then I will return to docket 3678, 108 Pleasant Street. So now turning to public hearings on tonight's agenda. Here's some ground rules for effective and clear conduct of tonight's business. After I announce each agenda item, I will ask the applicant to introduce themselves and themselves, make their presentation to the board. Request that members of the board ask what questions they have on their proposal. And after the board's questions have been answered, I'll open the meeting for public comment. At the conclusion of the public comment, the board will deliberate and vote on the matter. So with that, I would invite Mr. Chairman. Mr. Coiner to introduce themselves and to tell us what he would like to do. Mr. Chairman. Yes, sir. I have a point of procedure that I'd like to raise before the board, before Mr. Coiner addresses this. And it might be helpful if you could give me permission to share my screen. Absolutely. Rick, can you take care of that for us? We can do that. Oops. It should be good, Mr. Hamlin. Let me try again. Well, it seems like it is. Let me see if I can do this. Share, got it. So is everybody is everybody actually seeing a screen that says section 15 on it? We are. Okay. So here, the section 15 of the chapter 48, the Zoning Enabling Act establishes the procedure for granting for appealing a decision of the building inspector. And I would like to, before we get into any merits on the hearing, if we have any factual questions that are outstanding. But the record that we have before us does not indicate that the procedural prerequisites for actually having a hearing have been met. And I question whether we actually have the jurisdiction to proceed with the hearing tonight. The appeal should be have been initiated within 30 days of the order that is being appealed from. And we don't really know what that order is at this point. And that is jurisdictional. The notice of appeal is supposed to be filed with the town clerk who will certify the time and date on which it was filed, which is important because there are strict timelines which are jurisdictional in this entire area. The notice certified by the town clerk is supposed to be filed by the petitioner with the board whose appeal, whose decision is being appealed, which here would be ISD. And then ISD would have an obligation to assemble the record to include all of the documentation that exists and to provide it to us so that we would have some idea what's going on. Instead, we have a notice as if this were a special permit and we have a special permit application that has been filled out. We don't know exactly what the decision is that is being appealed or when that decision was made and we don't have anything that really counts as the proper way of initiating an appeal. It seems to me that we ought to be turning square corners here, we create all kinds of problems for ourselves if we start having hearings when we don't even have a proper application before us. And the way in which the state statute sets this up means that when we actually do have a hearing, we have a record that tells us what's going on and provides all of the facts before us and we don't have that now. We have something that is not directly relevant for appeal at all and it seems to me that having a hearing under these circumstances, taking oral testimony of what may or may not have happened when we don't have the documents, we can't ask questions about it is a mistake. And I would think that the best way to proceed there is to continue this on the docket just so that we don't do anything fundamentally wrong. Although I think ultimately this needs to be dismissed and give the applicant an opportunity to initiate an appeal in the proper way and to require the Inspectional Services Department to meet its obligation upon receiving notice of it to provide us with a record that we can evaluate. Thank you, Mr. Hanlon. I have been trying and I'm sure Mr. Feller-Eller can attest to this as well. I've been trying to get from Inspectional Services a statement in regards to exactly what their decision was that is being appealed that we have not received that statement. And I certainly understand the points that you have brought up in regards to this. Is your sense that, and I would certainly appeal to the other members of the board with legal background what their sense is in regards to proceeding or whether we need to continue immediately. Mr. Chairman. Mr. Dupont. So I think the other members of the board with the legal background would be me. We have made that singular rather than plural. Anyway, you know, when I was reading this and I think if I heard Mr. Hanlon correctly that this was filed on an application for a special permit. I'm sorry, I just don't have it in front of me. Was that accurate? Mr. Chairman. Mr. Hanlon. The, what we have before us is a regular notice that is to say the application that is before us. It's a regular notice of an appeal that is published into advocate. And when you turn underneath it unless I'm making very much mistaken about what's there what we have is an application for a special permit that fills out the form that we have for applications for a special permit. And that's what was done. Now what was supposed to be done is filing an appeal, a notice of appeal with the town clerk and going through the process that ultimately results in our having all of the documents relating to this, all the correspondence and whatever before us at the time that we hear the appeal. To me, this is a lot like having a hearing in a civil action when nobody's actually filed a civil action and both as practical terms and in terms of jurisdiction I don't think that we have the ability to do that. Mr. Chairman. So I would just go on and add that based upon what Mr. Hanlon had just said I'm in agreement that I don't think that we really have enough of a basis to move forward. And the other point I would make and perhaps offer to the applicant is if in fact this is not truly an appeal I guess the question is in what other way can relief be sought? And I'm not saying one way or the other whether it would be successful but it does seem to me that considering it or at least consider filing as a special permit application might be worth considering. So I'm just throwing that out. I don't know enough about the appeal issue to have a real opinion. But when I was looking at the materials originally I was wondering about why it was not applied for as a special permit. Well, unless there's a reason not to I would like to hear from the applicant just to clarify what the nature of the appeal is. So the board can get at least get a basic understanding and the public can get a basic understanding of what the issues might be. And then I would recommend that we then continue so that we can get further clarification from the inspectional services and we can move this forward. Is there any objection to proceeding along those lines? Mr. Chairman? Yes. I don't really object to proceeding along those lines but I do think that if this is in fact an appeal if that's the nature of what we have for us that the problem goes beyond asking is the inspectional services either for a statement of what their basis is or anything like that. We have in the other case that we had that we continued an insistence by inspectional services itself on strict compliance with the requirements of section 15. And I think that includes all of them and that we just need to follow state law in the way in which these things are filed and heard. So if it is in fact, the nature of it is that it's an appeal then it seems to me that the applicant should be filing something with the town clerk a notice of appeal expressing what it is and we should just go through what... The reason I put this on the screen was so that everybody could see what the statute requires. And I think that the statute should be complied with and that it's dangerous for us to begin not turning square corners on this. So we should insist on the procedure that is set forth in the state statute actually being filed. Thank you. Then with that, if I could ask Mr. Coiner to tell us exactly what his understanding of the nature of his application is and what he had requested to do and what he has been advised. Good evening, can you hear me? We can answer. Okay. I'm Carl Coiner, I'm the owner of 108 and I am appealing to get a special permit or allowance or variance. I really call it to allow me to expand the number of units within that building. So I have just a short presentation and I'm just gonna bring you up to date as to where the building stands and why I'm asking. So have you applied for a building permit? Yes, I have a building permit. Do you have a building permit? Yes. What is the building permit cover? It covers rehabbing of the building. Okay. Just construction and we've been working under that permit for two to three years now. Okay. And then your application to the board, is it in regards to a determination from the building inspector that you're not able to do something you have intended to do? No, we had intended to have three units. It's an R4 zoning, which allows two by right and we have to ask a permit for a permit to have three units. Okay. Okay. So in that case, three units are allowed at the special permit. Was that your intention to apply for a special permit for three units? Yes. At this point, three units, possibly more for right now, three. And Mr. Valerelli. So within the existing, so for this project, is there any reason that he cannot apply for a special permit for, excuse me, for three units? In fact, Mr. Chairman, so I just went online to look at permit search and this whole property is new to me. Other than research I did in preparation for tonight anticipating the questions the board might be asking on behalf of the special services. So in the permit system, I see that two permits were issues for two units only, seeing nothing about a third. So our zoning allows a third unit in an R4 district by special permit. So that's what brought Mr. Koiner to the board. So Mr. Pamlin raises a good point which the board will have to take from there. So I do not see that a permit was issued for a third unit. And I think that's what the applicant is asking for tonight. I think Mr. Hamlin is raising a different direction and it's up to the board to tell IST what to do going forward from here. So I think the confusion is that the legal notice states that it's an appeal from the building inspector? Yeah, so that is derived from the fact that I'm going on assumptions. I would assume that the applicant asked for a third unit in the building, the chief zoning official, which is the building commissioner denied it. However, the zoning bylaw section 5.4.3 allows a third unit in an R4 district by way of special permit. So I would take a shot and say that the applicant was given a permit to renovate two units right away, by right, and then requesting a special permit to increase the units to a third. So then the bigger question then becomes, whereas this was advertised as an appeal from the building inspector, but it's really a request for a special permit, are we able to proceed under the notice that was provided or does this need to be re-noticed? Historically, Mr. Chairman, when the chief zoning enforcement officer of the building commissioner denied a permit, it was advertised as such. I think that's for advertising purposes. We can dig into it, which we're doing tonight. We're finding the reason why the applicant did in fact apply for a special permit because the building commissioner basically said no. So he is challenging that decision. He has the right to under 5.4.3. So I think ISD is looking for direction here as well going forward. Mr. Chairman. Mr. Hanlon. I wonder if Mr. Valariedi, I'm a little bit unclear as to whether or not the inspector, in almost every case that we have, that's a special permit. In fact, in every case where there's a special permit, the building inspector either has or would deny proceeding without one. And so I'm wondering if, is there an issue here? Maybe Mr. Koiner could tell us. Is there an issue that Mr. Koiner says he ought to be able to proceed without a special permit? Or is, I mean, the beginning to sound is if this ought to be just a garden variety special permit case. My understanding is there's no problem. I'm not in touch with the various inspectors and town governance, but my understanding is there's no issues outstanding. We proceeded under the permit to create two apartments. I've got over 9,000 square feet of area to work with. And my understanding is I would just be asking for a special permit to create three units. And then at a later date, a special permit for four units and then eventually a special permit for five units. So I guess the, so I think it brings us back, I think to the question that the chairman asked is that if this, there wouldn't be any difficulty if this had been advertised as a special permit case. We'd be having a hearing. Everybody would know what the rules were and we would proceed on the basis of the information that we normally have, which is basically what it was provided here. And so the notice is wrong in the sense that this isn't really an appeal of a decision of the building inspector. This is really an application for a special permit. And I guess the question is, couldn't we just sort of say, well, that shouldn't keep us from hearing this tonight or whether we should continue this for a month and then have a proper special permit hearing. I guess the only thing that troubles me a little bit is that the rules are so different on what a special permit is that I'm not sure that the public has had adequate notice of what, or for that matter, we haven't had adequate notice of what's actually before us. But if it is, I mean, I don't wanna waste everyone's time and if we can proceed on the basis that it's a special permit and everybody is ready for that, then maybe that's better. I don't think that's a legal thing unless we're in a situation where the notice is incorrect. I mean, where the notice is incorrect in a way that infects the whole proceeding. Mr. Chairman. Your point. So I would just say that with all due respect to the applicant, because I understand the desire to have things addressed expeditiously, I was looking at this in a different light than I would have had I known it was a special permit to begin with. And I think I may have different questions in the event that it is characterized as a special permit. The other thing based upon Mr. Koiner's comments is that when he said he may be looking for a fourth and then a fifth unit, I think that that's something that he would need to take into consideration if he's going to come to us. Because I honestly don't see that as an option under the section 5.4.3 of the bylaw. But I'm not saying that that's all there is. Maybe there's some other provision that would permit that. But I do think that we need more definition, both in what it is that Mr. Koiner is looking for ultimately. And then I'd like a little bit more time to take a look at this sort of and view it as a special permit. Because I really did not look at it through that lens. So I would be in favor of continuing this. Mr. Chairman, if I could just add one thing. If everybody had known from the beginning that this was just a special permit, then we would in addition to everything else have a memorandum from the playing department explaining their position on it. And because of the way it's come up, we do not have that memorandum. And here I think it would be helpful because it's a somewhat confused situation. I certainly agree with that. With that in mind, does it make sense for the board to request that we readvertise this as well as continuing that it should be readvertised as a special permit request? I think you should cover all the bases. Okay. Mr. Valrelli, is there any problem with doing that? No, I have just enough time, Mr. Chairman. Okay. I can advertise this and it will go through the proper course and the proper time and we'll be okay for March 22nd if we're looking at that date. Okay. So with that in mind, March, so March 22nd now this would be, we currently have four other items on the agenda for that evening. So would we want to continue on that date or would we want, well, we actually won't have time to advertise for an earlier date. I apologize. So we would be sticking with the 22nd as the possible date for continuation. So Mr. Koiner, just I just want to make sure, do you understand the sort of the nature of our conundrum here and what we are proposing to do? No, I don't understand, but I will just follow what you're saying. Okay. So essentially the advertisement that was placed was that this was an appeal for the decision of the building inspector when it's really a request for a special permit which is actually covered in a different. Well, the request of the building, I wasn't, Mr. Chamber, I wasn't made aware of this internal workings of the inspection being denied. This is the first I've heard of this. Yeah. So I don't, I'm not exactly sure why the notice went out the way it did, but unfortunately because of the way it did go out, it creates an issue for the board and that it wasn't properly noticed. And so with your indulgence, we would like to continue this hearing until March 22nd. And in the meantime, Inspectoral Services will properly notice the public about the nature of their request, which is a special permit. And that the board will receive guidance from the planning department where they will review the property. They'll review the zone, the issues that are brought up as a part of the decision for a special permit. And then when we reconvene, we'll have sort of all the information in front of us will be able to proceed in a much more forthright manner. Okay. Mr. Chairman. Brandon. Just in other cases where things have been a little hard to understand, Mr. Valarelli has frequently worked with the applicant to get things clear and to make it and to make things all work well. He's super at doing that. And I'd hope that he might be able to help Mr. Koiner out so that we can proceed in an effective way. That's not a problem, Mr. Han would be happy to. Mr. Valarelli. Any further questions from the board? That in mind then. After the discussion we've had, I would move that the board continue the hearing in regards to 108 Pleasant Street so that it may be re-noticed as a special permit and be re-heard on Tuesday, March 22nd at 7.30 p.m. Second. Thank you, Mr. Hanlon. Any questions from the board? Okay, vote of the board. Mr. DuPont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Riccadelli. Aye. And the chair votes aye. So we are continued on 108 Pleasant Street. And that was the final piece of business we had this evening. So as we have saved a couple of times this evening, our next meeting is Tuesday, March 22nd at 7.30 p.m. where we will be discussing two new applications. One is 4.6 River Street, one is 44 Edmond Road. And then we have the three hearings which were continued from this evening when being 11.13 Lowell Street, when being 108 Pleasant Street and the third being 25 Highland Avenue. And so those will all be coming up on Tuesday, March 22nd at 7.30 p.m. So thank you all for your participation in tonight's meeting of the Arlington Zoning Board of Appeals. Appreciate everyone's patience throughout the meeting. Especially wish to thank Riccadelli, Vincent Lee and everyone else for their assistance in preparing for and hosting this online meeting. Please note the purpose of the board's recording the meeting is to ensure the creation of an accurate record of its proceedings as our understanding the recording made by ACMI will be available on demand at acmi.tv within the coming days. If anyone has comments or recommendations please send them via email to zbaattown.arlington.ma.us That email address is also listed on the Zoning Board of Appeals website. And so to conclude tonight's meeting I would ask for a motion to adjourn. So moved. Thank you, Mr. Hanlon. So second. Thank you, Mr. Dupont. Vote of the board, Mr. Dupont. Hi. Hanlon. Hi. Mills. Hi. Mr. Riccadelli. Hi. Holly. And the chair votes aye. We are adjourned. Thank you all very much. Mr. Chairman, could I ask Mr. Hanlon a question please? Rick Valoran. Yeah, yeah. Mr. Hanlon, first of all, thank you for drafting that decision. I just don't know if everybody knows how much time that takes. So is it fair to me to say that the decision that was approved tonight is the clean copy and I can send that signature page off the docusign? Yes. I've taken the draft watermark off. Yeah. Thank you. Thank you so much. If the board would look for that in their email, I would appreciate it. Absolutely. Thank you so much. Thank you, everyone. Good night guys. Thank you guys. Good night. Thank you all. Bye.