 So it is 734 p.m. on Tuesday, November 15th, 2022. Good evening. My name is Christian Klein. I'm the chair of the Arlington zoning board of appeals. I'm calling this meeting of the board to order. I'd like to confirm that all members and anticipated officials are present. Members of the board of appeals, Roger DuPont here. Patrick Hanlon here. Thank you. Here. Good evening. Dan Rickidelli. Have you been able to join us? He's in the waiting room. All right. Dan wanted to make sure you were with us. Yes, I'm here. I'm sorry. Just having a little technical difficulty this, this evening. Not a worry. And Ms. Hoffman will not be joining the board this evening. For the town, Rick Valerelli, our administrator. Good evening, Mr. Chairman. Good evening, Mr. Valerelli. Booze. Good evening. Good evening. Good evening. Good evening. Thank you. It's been good to have you. And then appearing. For 39 Woodside lane. Mario Conner. I'm here. Good evening to all. I think you're in for 13. 15 mill rook street, James Fleming. Present. Good to have you with us as well. law on July 16, 2022, this act includes an extension until March 31, 2023 of the remote meeting provisions of Governor Baker's March 12, 2020 executive order suspending certain provisions of the open meeting law, which suspended the requirement to hold all meetings in a publicly accessible physical location. Public bodies may continue holding meetings remotely without a quorum of the public body physically present at a meeting location so long as they provide adequate alternative access to remote meetings. 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 participation will be provided during the public comment period during each public hearing. 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The public is encouraged to follow along using the posted agenda and is chair or reserve the right to take items out of order in the interest of promoting an orderly meeting. I will promptly do. So I'm going to skip ahead to the two to the hearings directly and I'm going to go ahead and open the hearing for 39 Woodside Lane. Mary O'Connor who's here on behalf of the applicant is here to request a further continuance. I would just ask her to explain the nature of the request. Certainly thank you Mr. Chairman, members of the board. My client was contracted when meeting with the town engineer learned that there was an easement on the property that was not contained in the deed. The town engineer had a 1954 plan that shows an easement on the property. So this was indeed a unwelcome surprise to my client and it impacts where the proposed addition is. So we would need a continuance to address that issue. Thank you. You and I had spoken earlier and I believe we were looking at the date of December 20th. Yes that would be fine and we understand that the decision would not be done within the 90 days and we agree to the extension. Okay and I will I'll send you paperwork on the extension. I have asked the applicant if they would we would basically under law we have 90 days from the date that the hearing is open which expires on December 26th. So we're requesting an extension until January 31st 2023. So we will I will follow up and get that in writing. So with that we'll look for a motion to continue the public the special permit hearing for 39 Woodside Lane until December 20th 2022 at 7 30 p.m. So moved. Thank you. Mr. DuPont. Vote of the board. Mr. DuPont. Aye. Mr. Hanlon. Aye. Mr. Ruggedelli. Aye. Mr. Holley. Aye. The chair votes aye. We are continued on the special permit for 39 Woodside Lane. Thank you so much have a good evening. You're welcome and thank you to all the members of the public who came out for this. I apologize that we're not continuing we're not excuse me discussing this case this evening but we will be on December 20th. With that I will move to the next item on our agenda which is docket number 3721 1315 Melrose Street. This was a case that was looking to do an attic addition and stay within the existing footprint of the property and essentially the the nature of the request revolved around the availability of usable open space in the yard and this particular case was discussed between the Inspecial Services Department and the Planning Department and in terms of what jurisdiction the board has in light of the there was a case a Supreme Court case in Massachusetts of the Stalalta which sort of redefined how existing non-conformities are handled by zoning boards and so I'd like to ask Mr. Valarelli the board's administrator if he could explain a little bit of the background of as to sort of what has been going forward in Inspectional Services. Thank you Mr. Chairman. So there was a collaboration between the Building Commission of Planning and myself and the bottom line was look no further than 8.1.3a which says alteration reconstruction extension are structural change to a single or two family residential structure that is completely within the existing foundation walls does not increase the non-conforming nature of said structure. So no increase in the non-conformity no need to satisfy any open space issues that did not exist originally and the bottom line was look no further than 8.1.3a and that's how we're going to handle this sort of case going forward. And so the determination of the the zoning official for the town of Arlington was that because this property complies with 8.1.3a there is no extension of the existing non-conformity and therefore a vote of the board is not required to increase the nature of the non-conformity. That is correct Mr. Chairman. So this is a by-right permit. Mr. Chairman. Mr. Hanlon. If I could try to it seem just as people watching me will might are sort of missing a piece that we all have in our minds but this is always a two-step process. There first has to be an extension of the existing non-conformity and if there is then we would issue a section six finding if it was warranted saying in effect that the increased non-conformity was not worse for the neighborhoods and the non-conformity that already existed. If you don't keep past that first step you don't have any reason to get to the second step and the first step is within ISD's jurisdiction as our opinions have been recognizing now for some time and so ISD having decided there's no extension of non-conformity there's no occasion for us to reach the question about whether if there had been it would be worse for the neighborhood than what already existed. So as a result of that there's nothing there's literally nothing for us to do because the predicate for our jurisdiction doesn't exist. Thank you. Are there any questions from the board on what this what we're doing? Being none. So Mr Fleming with this to the board essentially has no jurisdiction in this matter and the permit is available by right from in special services so but because this is in front of us and you know as advertised as such we would need to have you withdraw the application from us which we would then vote on and then that would close out the hearing from our end. Okay so I mean what else am I going to say do I say it's always a no. Can I for my own clarity this is this is something that has always been there and ISD is realizing this is like does something change in state law? So there was a decision on a case in Brookline Delta versus Brookline which dealt with how boards of appeal can interpret non-conformities and what they're allowed to what they're allowed to do with non-conformities and what they're not allowed to do with non-conformities and essentially it's sort of broad and the board's discretion so it as Mr. Hanlon it says there's now a two-part process that looked the zoning ordnance official which in the town of in most towns and in the town of Arlington is the the building commissioner they would if there is a proposal where there's an existing non-conformity that is being modified that they make a determination whether or not that whether this increases the intensity of the non-conformity and if they make a determination that it does not then they are allowed to proceed with review of the application and issue the building permit by right if there is a determination by the by the zoning official that there is in fact an intensification then it then it has to go before the board of appeals and the board of appeals has to make what we refer to the section six determination where the board has to find that the change in the non-conformity is not substantially more detrimental to the neighborhood than the existing non-conformity and that's what we're planning on doing this evening but the zoning official has changed the opinion okay so this is relatively recent case law then this is relatively recent yes okay in that case i would like to request a withdrawal of our application you can go do it by right all right so we have a request from the applicant to withdraw the special permit application for 1315 Melrose street and the request is being made because the inspection services has made the determination that this can be approved by right without action of the board so i would move that the board accept the request without without prejudice second thank you Mr. Hanlon second i don't know is the second babe pardon that was it is there any question for the board as to what we're doing no okay so this is a vote of the board to accept the withdrawal of the special permit application for 1315 Melrose street as and without prejudice as the application will be reviewed by right by inspectional services so with that a vote of the board Mr. Dupont hi Mr. Hanlon hi Mr. Riccadelli hi Mr. Holley hi and the chair votes I and that is accepted so Fleming I appreciate you are going through the process with us and although we will not be issuing you a special permit you will proceed directly with inspectional services we thank you for your time that's good thank you you're very welcome so that is the end of the public hearings that were scheduled for this evening we'll now go back to the administrative items section so there are three administrative items before the board tonight the first item number two on our agenda the approval of the meeting minutes from October 25th 2022 these were well crafted and prepared by our own Mr. Valerelli distributed to the board for questions and comments are there any further questions or comments in regards to the written minutes for October 25th 2022 seeing none may I have a motion to approve the minutes from October 25th 2022 so moved second second from Mr. Dupont vote of the board to approve the minutes Mr. Dupont hi Mr. Hanlon hi Ms. Hoffman is not with us Mr. Holley hi and the chair votes I those minutes are approved brings us to item three on our agenda which is the approval of the written decision for 13 Edith street this is a decision that was prepared by our Mr. Hanlon distributed to the board for questions and comments and a final version issued this afternoon are there any further questions or comments in regards to the written decision for 13 Edith street seeing none may I have a motion to approve the written decision for 13 Edith street so moved second Hanlon and the second from Mr. Dupont thank you vote of the board to approve the decision Mr. Dupont hi Mr. Hanlon hi Mr. Holley hi and the chair votes I know Hoffman being absent that is approved that brings us to item number four on our agenda which is the approval of the decision for 24 Langley road this was a decision that was written by Mr. Hanlon distributed the board for questions and comments and a final version issued this afternoon are there any further questions or comments in regards to the written decision for 24 Langley road seeing none I may have a motion to approve the written decision for 24 Langley road so moved thank you Mr. Hanlon second thank you Mr. Dupont vote of the board to approve the written decision Mr. Dupont hi Mr. Hanlon hi Mr. Holley hi and the chair votes I'm as Hoffman being absent that that written decision is approved that is all of the items that were on our agenda this evening I did want to review some of the upcoming meetings so we do have a meeting scheduled for next Tuesday night November 22nd which is the continuation of the comprehensive permit application for 1021 1027 Massachusetts Avenue at that time the board will be voting to continue we're looking to continue to December 6th essentially it is taking the board in the town longer than anticipated to retain consultants to review the application on the board's behalf the actual contracts are being signed this week and so there's just not enough time for the consultants to thoroughly review the information and provide information back to the applicant in time for the applicant to be able to respond by the 22nd so we we're asking to them and they have they will agree to continue to December 6th on that chairman yes if a person found himself unable to attend that meeting we're all we're actually doing is continuing yeah is that the one meeting that you can miss without having without being disqualified for the rest of the proceeding that is a very intriguing question um I would hope not I might find myself in that position so it's not purely abstract okay uh let me follow up on that um mr chairman uh mr morr could I ask a an informational question even though i'm not a board member you may ask a question certainly uh right now that's the only item scheduled for that meeting is there a chance other items may be added to the schedule between now and then um so the only thing that might show up on that meeting would be the approval of the minutes from tonight's meeting um I think that's the only outstanding piece of business that would occur um but I think it would be more likely that we would just continue that to December 6th and do nothing else on the night of the 22nd okay so there's no public other uh I I I'm not that familiar with the public notification of meetings issues to be published for the paper I assume that a week out nothing can be added to an agenda basically other than a thing like you just mentioned right it's approval right so any hearing that any new hearing that is being proposed has to be advertised um twice in the paper of record at least one week apart and at least one week before the hearing so that backs you out about three weeks that that filled that that ends my question thank you mr you're welcome but like any other board um if there are items that are you know that are meeting items that are not hearings those is just 48 hour notice um so December 6th there will be a second there will be a new hearing on the 6th as well um Mr. Valrelli is working with the applicant to complete the information and expects to have materials on on that hearing for us later on um Mr. Valrelli are there any hearings currently scheduled for December 20th apart from the continuation now of 39 39 Woodside just the continuance mr chairman okay perfect thank you um and so that's our our schedule through the end of the year any any questions on that being none um I will go ahead and close the meeting so thank you all for your participation in tonight's meeting of the Arlington Zoning Board of Appeals I appreciate everyone's patience throughout the meeting I especially like to thank thank uh Rick Valrelli Vincent Lee Kelly Linema Marisa Lau and Mike Champa 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 the proceedings it is our understanding that 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 zba at town.arlington.ma.us that email address is also listed on the zba website and to conclude tonight's meeting I would ask for a motion to adjourn so moved second thank you Mr. DuPont go to the board to adjourn Mr. DuPont aye Mr. Hanlon aye trigger deli aye Mr. Holly aye the chair votes aye the board is adjourned thank you all very much coming out tonight thank you guys to see you good night everyone good night take care good night everybody