 The recording started. The chair notes the time is 6.05. I call this meeting of the Amherst zoning board of appeals to order. My name is Steve Judge, as EVA chair, I wanna welcome everyone to this meeting. We'll begin with the roll call of ZBA members. Steve Judge is present. Mr. Craig Meadows. Present. Mr. John Gilbert. Mr. Everill Henry. Present. Mr. Phillip White. Present. Ms. Alternates, Ms. Sarah Marshall. Here. Ms. Hilda Greenbaum. Here. And Mr. David Sloveter, who's not here. So we have a quorum present. Also attending the meeting tonight with Mr. Rob Moore of the building commissioner and Mr. Rob Wachilla, planner for the time. We're soon to tap the 20 of the acts of 2021, extended by chapter two of the acts of 2023. This meeting will be conducted via remote means. Members of the public should wish to observe the meeting may do so via Zoom or by telephone. No in-person attendance of the members of the public will be permitted, but every effort will be made to ensure that the public can adequately access the proceedings in real time via technological means. The zoning board of appeals is a quasi-divisional body that operates under the authority of chapter 48 of the general laws of the Commonwealth for the purpose of promoting the health, safety, convenience and general welfare of the inhabitants of the town of Amherst. In accordance with the provisions of the Massachusetts general laws, chapter 48 and article 10, special permit granted authority of the Amherst zoning bylaw, this public meeting has been duly advertised and notice thereof has been posted and mailed to parties and interest. All hearings and meetings are open to the public and are recorded by town staff and it be viewed via the town of Amherst YouTube channel and ZBA webpage. Tonight's public meeting is an administrative meeting, the purpose of which is discussed various zoning issues and zoning bylaw in general that are of interest to the members. I also was to provide ZBA members, both full members and associate members with the opportunity to discuss and raise questions about any topic related to the ZBA. We will also consider approval of minutes from the September 14th ZBA meeting. So tonight's agenda is the minutes, consideration of the meeting minutes from September 14th, 2023, a public meeting on a discussion, zoning discussions on various topics presented before the ZBA in previous meetings and the zoning bylaw in general. General public comment period where the public made comment on any matter not before the board tonight and adjournment. There's also other, excuse me, but there's other business which will discuss the upcoming schedule and hearings including the schedule for the 40B application and then adjournment. So the first order of business tonight is the minutes of consideration to approve the minutes of September 14th. I'd rather than, I think they are complete as anybody else, does anybody have any changes to those minutes? All right, if not, I would entertain a motion to approve the minutes from September 14th. Is there a second? Second. All right, it's been moved and seconded. Mr. White, I see seconded as well. Chair votes aye. Mr. Meadows. Aye. Mr. Everill, Mr. Henry. Aye. Mr. White. Aye. That's four votes of the full members motion has approved. Next order of business is the general discussion on issues, zoning issues that we've had before us and about which we had a lot of interest. And I know Mr. Mora has put some time into both the section 3.01, two uses on one lot and other things that we've come up with that come before us in the past few months. And I think we wanna talk about that. And I understand there are also other questions generally from the members. And this is a great opportunity for any of you or all of us to raise questions. If you have questions about the zoning battle in general or the process of the ZBA, please feel free to raise them. But let's move first to Mr. Mora and talk about some of the issues that you've been looking through, Rob, and what you've been considering over the last couple of weeks. Thank you, Mr. Judge. Yeah, I only have section 3.1 on my list to talk about tonight but definitely happy to talk about anything else that anyone else would like to bring up. And this, some of you will remember a case that was submitted a couple of months ago and recently ended in a withdrawal where the applicant was proposing to construct a second duplex on a property that already had a duplex. So the issue there was two duplex buildings on a single property. And this discussion is about a larger variety of combinations of uses but mainly having to do with the one and two families. So it could be one two family and one single family. It could be two single families, two duplexes and then either a single family or a duplex along with say an apartment building or a townhouse. So any of those types of combinations are kind of part of the issue here. And if it's helpful, Rob can bring up the language but I'm just gonna read section 3.01. It's a pretty short section but causes a lot of question and confusion. And it's the development or operation on a single lot of more than one dwelling or more than one principal uses. Described in section 3.3, so 3.3 is the table of uses all of the various types of uses. And that is expressly prohibited except where the principal uses are clearly complementary to each other or otherwise provided by the spy law. So right there, clearly complementary nobody knows what that means. There's very little guidance on that. And if that's in front of the board some day again or in front of the board at all we'll have to work through that. There are some very clear kind of clear examples of what that would mean. Examples we have in town a car wash and a gas station. The board might find that's clearly complementary. A daycare and a auto body shop might not be. So again, there's really no guidance on that. And what has come up recently including that case with the two duplexes is can we permit more than one of the residential type uses where there's dwellings involved where the bylaw doesn't expressly say that you can. And that was the two duplex question that's always been the two single family question on a lot and I've consistently not allowed two single families on a lot. And the board has in a couple of cases allowed two duplexes or two duplex in a single family that are one of those types of combinations. But as we look through this the issue that we have with this language is that we have to give meaning to this part of the section that says not more than one dwelling. And the way that I'm interpreting this is that any of our residential uses would be subject to that restriction of not more than one dwelling unless the bylaw in section 3.3 says otherwise. And if you work through that in examples that I've talked about with the single family or the duplex or the townhouse and apartments what you find is that when we're dealing with one family and two family the bylaw doesn't say anywhere else that it's allowed to combine those uses or have multiple buildings on a lot. It isn't expressly permitted anywhere else. Where it does say that you can do that is with townhouses and apartments. So we have a purpose for this language when we apply it to townhouses and apartments to allow the use and then when we are dealing with one family and two families we are finding that it's not permitted. So the interpretation going forward is going to be that single family dwellings cannot be combined with other dwellings other single family dwellings or other duplexes or any other residential use because our bylaw doesn't allow it and we'll recommend that the planning department take that under advisement and decide if there's any need to change the bylaw or clarify anything. But what we will continue to allow for applications that come forward is apartments and townhouses when there's more than one building. And again, that's because those sections clearly offer that opportunity both in the criteria of section 3.3 and the definitions. So that's kind of a general overview of that section. But happy to hear any questions or clarify anything. Mr. Mora, does it make a difference if it's a dwelling or dwelling unit? Is that at all, would that be more specific or that change the interpretation of 3.01 if it's a dwelling unit? So we don't define dwelling in the bylaw. Yeah, it was that room. Right, so it does add to that confusion. I think if it said dwelling unit it might actually be a little clearer to us what that meant and what uses that would apply to. But I think the result would be the same. Where, if you're thinking through what would make a difference here? It would be adding the clause except we're allowed by special permit. Something like that at the end of it or at the right point within this language. I think it probably, we probably work on the language a little bit more comprehensive than that. But that's the kind of thing we would need to see because the bylaw doesn't allow it in other places. So we need to have some mechanism to permit it. We would have to say by special permit or we'd have to go to section 3.3 in the single family and duplex sections. And again, either authorize something by a special permit or permit criteria where more than one building could be on a parcel. One thing that I was impressed with earlier today when I was reading through the zoning bylaw is that this is the 3.01 is like the first statement of restriction of use. Everything else is that kind of definitions that come up. It's almost, it's like a, I don't know if that's by accident or if that was intended to say that this is a fundamental principle that we're only gonna allow one dwelling unless otherwise provided by bylaw or the significance of being the very first statement after we go through articles one and two which are kind of definitional. So is that important? Was that a consideration given when it was adopted? Do you remember? Or is it just a few? Yeah, I wouldn't remember when it was adopted. What I would say is that probably not so much because it's a very standard format of a bylaw to come into the use regulations and start with what's prohibited and then go into what's permitted. So it's probably following a model bylaw that just puts prohibited uses first in the section. But I do think it was deliberate to prevent more than one single family dwelling on a lot. I'm not sure if it was fought out any further than that at the time. I don't think there's any information that suggests it was or was not that I have been able to come across. And I have one last question and I'll open it up. Can you help us with the contrast accessory use versus complimentary? Because I know it's defined and there's by example later on in the zoning bylaw, but sometimes they get confusing what an accessory use is as opposed to a complimentary use. And so can you kind of walk us through the differences there? Yeah, so when we're looking at this section and when you're proposed a project where you have to determine if they're complimentary, you're looking at two principle uses. So they're both the primary, a primary use of the property. The accessory uses are there in combination with a principle use. So you can't have an accessory use unless you have the principle use. And in section five, in article five, we talk about a few very specific types of accessory uses, home occupation or ADUs. But then there's kind of this clause in that section that says or any accessory use that's customarily found in Hampshire County. So that could leave things pretty open. And we've dealt with dog kennels and breweries and craft breweries and all kinds of things, right? So that's another section of bylaw that gives opportunity, but then it's tricky because it's not really clear on how far you can go with it. So when we're talking about complimentary uses, we're not looking at it principle versus accessory use. We're looking at the compatibility of the two principle uses to function on the site. And that's a hard one. That's a hard one. I was trying to give you kind of the clearest examples there are, which are rarely the ones we get. Yeah, that's helpful. Thank you. Mr. Everett, Mr. Henry. I think a couple of people have their hands up before me. Oh, they did. All right, who will beat you up? I think Mr. Meadows did. All right. Who was before me? And he'll, okay, we'll go back. So Ms. Greenbaum. All right. I won't bother giving you a history lesson. I could, but I'm not going to. But I did want to ask, we have been changing this bylaw so many times over the past many years, many decades as UMass laws. And especially say the last 20 years of town meeting lots of changes happen. But when these changes happened to upgrade to changes in state law, we didn't always get back, go back and get all of the tales that were left behind as such that we've been talking about revising the bylaw, getting a new kind of phone base code goes back a few years or a hybrid code like Northampton. And so I know Rob started before COVID revising the bylaw to get rid of the things that are incompatible with each other. And I'm just sort of curious, where do we stand in that process? Is this still going to be so a bandaid patch or are we really thinking of going ahead and finding the places where our sororities and fraternities the same thing, same use? And my second question is, when you look at the table of uses, especially under the resident, are they considered different principle uses or is it a category you look at as residential? What do we talk about? Okay, good questions, good questions. So at first I just want to be clear that all I'm talking about tonight is the interpretation of the bylaw, how I will apply it day to day and advise applicants who may or may not be considering applying for a permit. I'm not talking about changing the bylaw. That's not something that has been discussed with the planning department yet. And there's a long list of priorities that exist for bylaw improvements. So I have no idea any timeframe when that may happen. One question you had about work on revising the bylaw, it's true it's something that I took, this was before COVID, I had taken the idea with Christine Brestrop to the planning board to try to get support to have staff really go through as a to recodify the bylaw and make corrections. And a few that might be seen as substantive changes, but there wasn't a whole lot of support for that. There wasn't a whole lot of interest in that. And then that idea kind of got put aside and hasn't gone through or gone any further. So that's not in process. And definitely something that needs to be revisited again. So then we're back to kind of looking at section by section and you see what the CRC is doing or has done this year or counselors and what the planning department is currently working on with the planning board and that's about it. So that's where we stand with the bylaw and this is really just how we're gonna apply this language that we have that we wish could be a little bit different or some of us might wish it could be a little bit different to result in the opportunity to have some additional housing density built in the residential districts. And, but we just have to apply the language we have at this time. Your other question is a good one because that comes up quite often. What is the difference between duplex or what is the difference between oner occupied duplex and non-oner occupied duplex? They all have their separate categories, classifications and identifications in the bylaw. And just like in other sections, non-residential sections, I always apply each one as its own principal use. So you can in fact have a non-oner occupied duplex and an oner occupied duplex and be dealing with two separate different principal uses just because they all kind of get grouped under that residential category doesn't mean they're all the same classification. So that means you would put a unit if it was big enough for four units but apartments weren't allowed, you could put one oner occupied and one non-oner occupied duplex on the same parcel. And this would be a decision that's sort of a policy of the ZBA that allows you to do rather than have to be rather stamped by another board like the CRC for example. No, I'm suggesting that you can't do that because what you just picked were two duplex categories that neither one of them expressly permit constructing two buildings on a parcel. So the interpretation is going to be that no, you can't do that even though they're two different principal uses and you may or may not find them to be complementary to each other. The fact is that it's more than one dwelling and we don't authorize more than one dwelling anywhere else for that use or those two use classifications. So we're gonna say no in that case unless the buyback change. So 798-200, you knew was legal when, well, I don't wanna say what you knew but I mean, from what you're saying now really shouldn't have been pushed forward to apply for a special permit or they were allowed to do whatever they want whether it's legal and a lot. Well, I can't stop an application from being submitted but certainly to be as clear as like that case caused us to look at this language really closely and I was asked to come up with an opinion on how we're going to apply this language. So there was a lot of public response to that proposal and a lot of good thinking to go along with the bylaw and it made us have to look at it and made me have to decide what am I gonna do with this tomorrow when an application comes in. So that one, I think we all, it worked out for everyone because they withdrew and now they're reconsidering what they can do with that property if anything else but I would not suggest to an applicant that they submit that application in the future. Like I said, I can't legally stop them. I can not sign the application which doesn't look good when it finally gets to the board but I can't prevent them from filing an application with the town clerk under state law and ultimately the board has to open the hearing and take some kind of action even if it's a recommendation that we're giving the board to not move forward they have to do something with it. Now that usually doesn't happen. If I tell an applicant that this isn't really a good proposal, they're likely to listen but I think if there was a case where somebody wanted to challenge language of the bylaw they could. One last one and I won't be a pick. The first house, it looks clearly like from two centuries at least that's what they say there's an 18th century part and a 19th century part. Why could that not be submitted as a converted dwelling? And does it matter? No, it could be, it could be. So the converted dwelling only allows a very small amount of new construction. So if the lot area exists, I'm an existing two family and whether there's a little addition but mostly reworking the existing building there could be a result in an additional dwelling under the converted dwelling section and we allow up to four in the RN district. So that could be a possibility but we've been through that a lot and you probably remember it wasn't until, I don't know, 10, 12 years ago that the bylaw even allowed an addition to a converted dwelling. It used to not allow any addition. And then we went ahead and put in this very small, modest, it's a percentage of the overall footprint and gross floor area calculation that results in a small addition. We have been through the exercise with applicants before. You saw it recently with 65 Taylor Street used the converted dwelling section with an addition being proposed but it was a very small increase that was being proposed in that building was mostly reusing the existing building which is what it was intended to do. Thank you. Mr. Meadows, I think you were next on next up. In a similar vein, if the ZBA has granted a special permit, is it reasonable for someone else to come in and ask for an additional special permit on the same property? I mean, it doesn't seem to me that it would be, but and if so, then should we be taking more caution in granting special permits where there's the possibility of an additional special permit being requested for the same property. Mr. Moore, before you answer, Mr. Meadows, can you give an example? Well, a very simple example is what we just had on North Pleasant Street. But I believe that there are others that we've had come through where there was a special permit to begin with and then there was another special permit requested for the same property. So Craig, are you referring to a historic special permit that occurred years ago or a special permit that's contemporaneous withdrawn and then a new special permit coming up? Either way. Either way. I can probably work through an example here. So there isn't anything in our by-law or in 48 that prevents kind of that multiple kind of special permit attempts or even issuance. So and it's not an unusual strategy for somebody whether it's to kind of work towards fully developing a property or for financial reasons, we could have a single family, a large single family house that applies under the converted dwelling section to be termed into two units within the existing footprint by special permit and that could be authorized. And then five years later, the same property might have an outbuilding, a barn that they wanna convert into a dwelling unit and now that's the third unit under the converted dwelling section that needs another special permit. We often try to modify or replace the original special permit just to keep it cleaner. Years past, 20, 30 years ago there was a lot of multiple special permits on properties I think in recent years we tend to try to keep that cleaner and replace one with the next one even though it's authorizing more to happen. But I think that's expected. I think the by-law does allow that to happen. And it certainly would probably be more likely in non-residential uses that are authorized by special permits, say restaurants. You've got a commercial property where three restaurants or bars are located. Each of those require special permits was one after another on that property. Yeah, it's easy to see how multiple restaurants or similar would be working in that vein. I'm a little bit leery of housing the way that the requests have been recently. Are you thinking that they're kind of taking a step to achieve something that they would not otherwise be able to achieve? Is that what you're concerned about Craig? So that if you get step A, you couldn't go to where they eventually want to be right away. But if you take the first step, take a second step, and then a third step, you eventually achieve what you couldn't achieve in a single application. Is that what you're talking about? Exactly. Yeah, so that's... Yeah, I know that's a little bit different. And I know the board has one or two cases coming up where the original special permit restricted something. Let's just say the number of bedrooms perhaps. And that's not one coming forward. But if there was a limit on the number of bedrooms and then the applicants back and say, we really need that fourth bedroom in this dwelling unit or both of these dwelling units, let's have that condition removed by special permit. Yeah, that's something that the board faces has always faced that, I think I remember a lot of parking related issues where prior boards were the attempt to restrict parking, hoping that maybe that would reduce occupancy or limit the use of the property, ended up creating problems with parking that later boards tried to correct by adding parking on the site. So I think the board has to carefully review that and the original proposal. Whatever we're looking at these first thing Rob and I do is we go back to the original special permit and try to understand what was probably held up thinking at the time when they made that decision. And we try to really understand why was this prohibited or why was this limit put in place? And we use that when we talk with the applicants about do they really wanna pursue this and understand the challenge that might come up when the board realizes that there was good reason, there was good reason for this condition. But then there may be cases where the condition clearly didn't work or doesn't really have any effect or good purpose and should be removed. And we get both of those and you get a lot of expiration on change of ownership and different things that are conditions of permits that the newer owners are looking to remove. Well, that brings up exactly what I'm saying. Should we be more cautious and more thorough in the minutes and in what, in our rationale for granting special permits? So that when you look back at it, you've got a better idea what the rationale was. I think so. I definitely think that's important. I think it's important first for the board to take the time to carefully review why the condition is, why it's, they may off, the reflex may be that you don't agree with it because it's not the way you condition a permit now that you see that similar, but understanding why and taking that time to see why the board 20 years ago put that condition on, I think it's really important. Very good, thank you. Mr. Henry and then Ms. Marshall. Thank you, Mr. Chair. So Mr. Moore, if I understood you correctly, did you say that moving forward, and I'm gonna use the example of North Pleasant Street, you would advise the applicant that that petition is not allowed under 3.01? I would advise the applicant that there isn't, is not a permitting path to construct the second duplex on a property with a single duplex. And I would advise them that I would, that would be my recommendation to the board if it got into public hearing setting. But they still have the option to come before the board and the board can't say, no it is allowed under that complimentary clause. The applicant has the ability to, so the rules and regulations require that the applicant give me their application to review and I deem it complete and it moves along in the process. If I were to tell them that no, I don't think this application should move forward, they have the right under state law to take that application directly to the town clerk and have it certified stamped into the town record. And once that's done, the board is obligated to follow procedures for calling the hearing. And so that would be a way that an applicant could get to the board and in a case where I came to the board and said, why I wasn't supportive of the application and explain why, the board still has the decision. They interpret the by-law in the hearing setting and apply the language, how they see fit and can make a decision even if it's not consistent with what I'm doing. Thank you. So can I just ask a quick question, Mr. Henry? Is that an appeal of the building decisioner or is that a special permit case? So that example that we just went through is not an appeal. That is just taking it to the board on their own. Now, if I were to say, put something in writing to them or even an email that said, why I think the application didn't meet the criteria, the by-law and could be authorized, that's a decision that they can appeal to the zoning board as well. So it could come to the board in the form of an appeal but then they'd have to, depending on the answer, then they'd have to go back and start the special permit process over. Oftentimes, you might see that done concurrently. So there might be an appeal filed with a special permit request and they could file that together and that way they're right into that special permit hearing if the discussion goes their way. Thank you, Mr. Henry, I'm sorry to interrupt. That's okay. And the other thing I heard, owner-occupied versus non-owner-occupied. So I might understand that the only difference here in buildings are the same, principle use are the same, it is a dwelling but one is owner-occupied, the other one is not but arguably owned by the same person that is you would not permit that. So in the duplex category, I don't know, it was maybe 10, 12 years ago, we just simply had duplex as the category and then town meeting decided to separate and have non-owner-occupied and owner-occupied and apply stricter criteria obviously to those non-owner-occupied properties by requiring resident managers and expiration on change of ownership and so on. But by doing the way they created that category, it became its own use classification, it got its own number in the table. So that's two different principle uses and because neither one of those sections of the bylaw authorized more than one building to be on a single property, the interpretation of 3.01 will say that that can't happen. So what I'm struggling with is two different principle uses. I mean, simplistically, and maybe I'm being too simple, it is for me, it is not two different principle uses. And a dwelling is a house where someone lives or sleeps or they're being used, in my simplicity, they're being used for the same thing, the only difference here is that one is been lived in by the owner and the other one is just being rented. The principle use is the same, they've been used for the same principle purpose as a dwelling, that would not be permitted. I know what the answer is. The survey, I think I get to, I agree it's not permitted, but the reason for not permitting it, I think it's different than yours. So they, because of the way our bylaw is designed, each section of article three is a separate use classification. Therefore, any one of those can be a principle use. And when you combine any two of those, even the ones that are very closely related, and I think Hilda mentioned earlier, sorority and fraternity, you know, even though they're really closely related, they may be or may not be two different principle uses and the two family section, because it's split and non-occupied and owner-occupied, although they look and function very similarly, they are different uses. And that would create a multiple principle use of the property if they were to be combined, just like, and no different than if the townhouse and apartment was combined, the two principle uses that are combined and they're all dwelling units. Can I butt in and just say the reason for that? Yes. And it's still going on today. It's this anti-undergraduate tenant issue. That people in neighborhoods really wanted tight control over the behavior of some undergraduate and I will say they're very few, but they tend to have 180 different daily schedules of sleeping and playing than the neighbors next door. And the non-owner-occupied therefore, we put under special permit so that lots of regulations and conditions could be put on the permit where they figure, and this is a big generalization tool, that the people who are putting forward all of the new regulations for tenants tend to be in these neighborhoods. And I forgot what I was gonna say, but basically there's this anti-undergraduate guys in this town and the neighbors want control and they feel that the owners are living in the house and they care about their property. And I don't think that's necessarily true when you drive around town, but nevertheless, they're allowed to do it by right. That's the way things are. I think that's a justification, but I think that's perhaps a justification for why the town meeting created two principles, right? But there are, but the real reason... What? Go ahead. Well, I was gonna say the real reason that there are two principle uses because there's a specific reference in the table. One is 3.3210 and one is 3.3211. And they're two separate principle uses because they're defined as such in the bylaw, I think. And if I'm wrong, you know, but I think that's the case. And that's why Mr. Henry's question, I think, is even though it seems like the same use, that it's a residential use, but their principle use is defined in the bylaw, I think. Yeah, I would ask the impact on the neighborhood that people assume if the owner is there, the kids aren't gonna be having a party till midnight. You know? Well, yeah, I think that's... I mean, that's the impact basically needs to be, you know, ameliorated on the neighborhood. And so they are regulated and the owner-occupies are allowed by right. Basically, yeah. Mr. Henry, did you have other questions you wanted to ask? I did have one more question, but Ms. Marshall, for a while, I'll let her go and see if my question comes back to me. Okay. Thank you. I wanna, Rob, I wanna make sure I understand. Understand an example you gave to Craig where you imagined a single-family house becoming a converted dwelling in two units and that would take a special permit. And then you said maybe they have an outbuilding and I think you said they want converted to a dwelling. I assume that would have to be an accessory dwelling, otherwise your interpretation would not allow multiple dwellings, yes? No. So I was, my example was one that would be using the converted dwelling classification section of the bylaw. So not single-family, not duplex at all. So everything would be permitted under converted dwelling and converted dwellings are permitted either within existing single-family structure being converted into additional units or a detached accessory structure, such as a barn or a garage of a certain age being turned into a unit. So the bylaw has two different paths for converted dwelling, two different opportunities either in the principal structure or in the accessory structure because we specifically allow both to occur that could all be done as converted dwelling as one property, the property has a converted dwelling use and might have two units in one building and one unit in a barn that's been converted. So it's using that specific category. That sounds like a loophole. I mean, you couldn't build a duplex and then build a small single-family home next to it. Right, you said that would be disallowed because it's two dwellings. Right, so the intent of the converted dwelling section is to use existing housing, existing structures and repurpose them or improve them and with very, very little alteration. So I think it's quite different than a brand new building and then another brand new building subsequent to that. So it really is using a bylaw provision that was intentional to take larger homes, break them up or older barns and save them. Okay, but I won't get into ADUs, thank you. But that is a way to add another small dwelling, yes? ADUs are only allowed on owner-occupied properties that have only a single-family dwelling. Okay. That's the limit on ADUs. It can't be an ADU on a property with a duplex or a property that is an owner-occupied. Right, and it has to be small, otherwise it would be considered a second single-family home, yes? That was, I think that's the rationale for the lower square footage for the ADU. Okay, thank you. I was in town meeting when when that was passed and the planning board brought it up as a mother-in-law apartment. And so I have a separate garage from my house. It's not attached at all and that could be converted, but that was the rationale. So maybe when I get a little infirm, I might do that. We'll see, more infirm. Mr. White, you haven't asked the question yet, say your hand up. Yeah, just real quick. Mr. Henry, and please, Mr. Mora, correct me. Yeah, I'm probably wrong. But Mr. Henry, my interpretation of that as to why kind of they were looking at different things goes to intent because my interpretation, if you're talking about owner-occupied, the intent of that is to provide residents for the property owner, whereas the secondary residence is its purpose is to generate revenue for said owner. Yes, it's still a residence, but its purpose is to generate revenue. Otherwise, it wouldn't be there. Filed as that. Is that correct at all, Mr. Mora? I mean, it could be behind, you know, why they might have separated them or supporting that, but in an owner-occupied duplex, the other unit is generating revenue intentionally. I mean, that is the intent of the duplex. I think it's offering an opportunity to live in an area and afford a property that maybe you wouldn't otherwise have been able to. And I think there's a lot of that discussion going on now in the recent months on how to even allow, how to have to buy a lot, allow even more of that. So, I don't know, I guess I wasn't part of those discussions enough to be able to say one way or the other for short. Let me just, if I may just add to this, that assumes that every non-owner-occupied dwelling is for financial purposes. I mean, what if there's an elderly couple who realize that at the end of their days, they don't want to be in a hospice or nursing facility and they have children who will live close by and they're like, you know what? I can build this secondary unit on here. I'm the, you know, that there's no financial gain. It's just that it's a family property that's been used. So with that, there's no financial gain. And I'm just gonna leave my point right there. Well, there's no financial gain for a while until the building is sold or the unit becomes available. So for rental, right? Then it can be through. But there's no financial gain initially, right? No. Because you financial gain later on. But I don't think that's the, yeah, I see what you're, I see your point, Mr. Henry, yeah. But you had other questions I think you wanted to, that you- I think I heard something about the car washing at daycare. I didn't quite, I wrote some notes, but I'm, that the permit wouldn't be granted if, you know, a daycare wants to be built in the same area as a car wash. Can you help me understand that part? Because I'm sure it's allowed. And I know a daycare across the street from a gas station. Yeah. Sure. Yeah, maybe bad examples, but this is back to section 3.01. So if we take dwelling unit out of the equation and, you know, we're not looking at that language that says not more than one dwelling, we kind of skip over to say, or not more than one principal use, unless the principal uses are found to be complimentary. That's where this example is relevant. And this is typically, I think more often been dealt with by the planning board, but my example was of multiple principal uses on a property that we have today are say a gas station and a car wash. Something you typically see together, they can probably pretty easily be found to be complimentary. And where I was trying to go in an alternative thinking is well, what would it be like to have a daycare on a property with say, you know, an auto body repair shop or something, you know, something kind of completely unrelated. Could that be something that the board would have difficulty finding to be complimentary? Again, on the same parcel. So not across the street from each other, not in a zoning district that allows all these different types of uses, but on the same parcel interaction, you know, with people coming and going into the establishments, parking and so on. That's where, and I kind of preface that with, there's not a really good guidance on this. And it would be something that the board would have to think carefully about and work through and make that decision because we don't define complimentary how things can be compatible or should be compatible. And that's really left up to the board's discretion. So when you think of the larger retail or commercial developments, like out on University Drive, you know, you have medical office, banking, liquor sales and a restaurant. You know, they're all separate uses that are permitted and found to be complimentary with each other at some point in time by whatever board was permitting that. And when the next one comes, that same question comes up. Is it complimentary to the other uses that are on the property? And like that said, there's really no other guidance in the bylaw for that. So just thinking about the people prior to us who probably approve these, I would agree with them in the sense that complimentary that they're all commercial business. You know, people, it's very convenient for people. I mean, okay, you go to the bank, you go to your grocery store, they're all right here. It's complimentary. Let me ask this hypothetical with complimentary because what about say for like a strip mall? Where it's a, it's a singular building. However, you can have four or five different businesses in the same building and they're completely different from each other. For example, let's say with the whole daycare, daycare and a dojo or, and then next to it is a restaurant. Wouldn't those be complimentary to each other? Because again, they fall into the whole realm of commercial business. Sure, I would think so. But you know, what if it's some kind of manufacturing or something that creates law of noise or fumes or a lot of deliveries coming and going of large tractor trailers delivering products? You know, that I think your examples are easier. And those are the ones I was looking for and the easy ones to try to demonstrate what a complimentary use could be. But then there are the ones that maybe aren't so clear as that and maybe there is a detriment to having the two uses together. It could be safety related. So yeah, I don't think we have an example that we've done in town where we've said no, they're not complimentary. I just don't think we've been presented with that. But it all comes, we are presented with a questionable, a question about whether an activity is complimentary or not, it's up to us because it's not defined. And we have to use our best judgment as board as to whether it is not complimentary because of the danger to the daycare center for the fumes from the auto to the manufacturing plant next door or the traffic that is part of the fumes from the tractor trailer truck that's parked eight hours a day in front of the, behind the daycare center. So that really comes to us, right? To make that decision. And that's our discretion on that regard. It is. And you know, and to keep in mind this is just another level, another finding, another piece of the criteria that gets reviewed and the decision the board makes, you still go through your special permit 10.38 findings. And the proposal itself might have difficulty passing for those reasons. So it's just another layer, it's kind of like 9.22 when you're dealing with non-conformants, you got that second consideration after you've gone through all the impacts of the use. So, Mr. Moore, I am with you with, quite frankly, about 95% of everything that you said with the whole complimentary, but I'm still struggling with all these examples with why a second dwelling would not be complimentary. I get the whole, you know, I hear all the examples, I appreciate the examples, I understand them, but I'm still struggling where that project that was canceled would not have been complimentary. I'm still struggling with that part. Yeah. So back to 3.01, it's really given meaning to the portion of that section that says not more than one dwelling, not more than one dwelling shall be permitted on a parcel is what it's saying. Unless, and then it goes on to the principal uses, the multiple principal uses, but not more than one dwelling. So if we give the most amount of meaning to that clause, we're saying that dwelling units, they can't be combined on the same property unless the bylaw otherwise in other locations same, whether or not they're principal uses. So same principal uses. So essentially what I'm saying for residential dwellings, we have to first determine that the bylaw allows the different dwellings to exist, the different buildings and classifications to exist. And then we find that they're complimentary. So in one and two family, our bylaw doesn't allow more than one building. For townhouses and apartments, the bylaw does. For converted dwelling, the bylaw does allow more than one building. So when you're faced with an application that includes townhouses with apartment buildings, or townhouses or let's say apartment buildings with mixed use buildings, the board reviewing that application will be able to see that the bylaw authorizes it. And on top of that, you have to make the finding that they're complimentary. And you should be able to, right? I mean, I think I agree with you that any combination of residential uses seemingly could be complimentary to each other. There has to be something pretty interesting about it to say no to that, but we're stuck with giving meaning to this bylaw. And if we're gonna say not that we can't have two single family proper buildings and we can't have two duplexes, that's the way we gotta read this bylaw and be consistent with it applying to all of the residential uses that do not authorize more than one building. That were principal uses are clearly complimentary to each other. Right. I think Ms. Greenbaum has her hand up, Mr. Chair. Ms. Greenbaum. Yeah, I just wanted to say that when Mill Valley Estates was put in 40 years ago, they did have a daycare center as part of their 40B application. I don't know whether it's still running or not, but nowadays the trend has been for lots of corporations to provide childcare and people work from home part-time and other kinds of various things because that's the only way they can hire people is if somebody's taking care of their kids. So that's clearly two principal uses and I sort of, you can get torn with some of these home office things. Like my father was a doctor with an office in my house in the olden days. You could do that either as two principal, I don't know, it's a home office, it's in the same building, but the point is it's a pretty heavy use when they got patients coming in there all afternoon and all evening in the neighborhood. Some home offices are people who just code computer programs all day long and nobody ever comes in and out, which is sort of the difference of the doctor's office being two principal uses in one building, which the person who sits home and codes all works from this computer all day long is more like an accessory use because there's zero impact on the neighborhood. So that's sort of the difference between the two. The whole issue of 3.01 is these neighborhoods that are feeling overwhelmed, I think, and they want to be protected from what they were not considered particularly enlightened uses next door. So that's the issue we're debating now with 798. And if it was two families or 40 of you couldn't say anything about it, but if it was gonna be two families living next door, probably in attached houses, you wouldn't be getting a neighborhood up or over. You're probably nobody would come in and complain. But because of the history of that property, it's hitting the water neighborhoods. That's what we sort of run into, how to be fair to everybody because not everybody is like those landlords. And Rob, you know, there's probably 5% of landlords in this town that are problematic. Yeah, we're all, ultimately tenants are all gonna have to pay for this stuff, whether it's owning or whether it's regular bylaw. Landlords aren't gonna eat it and they'll just push the rents up, but they don't care, you know. I got tenants on all sides of me. I'm the only, well, I got a one owner occupied I haven't seen in 20 years, but I got tenants on all side of me that belong to Bruce Patterson. I don't even know who they are and they've been there for, one came over when my husband died and she said, I've been enabled for 18 years. You know, I don't know, they're there. That's behind people are very unhappy about other things too, it's global. Just one of many concerns people have, right? Yep, yep. Yeah. Eating tomorrow should be the one they only worry about. Well, I'm, this is representative of the, I think the intricacies and sometimes the Byzantine nature of the zoning bylaw. You get into it, you think you understand it and then somebody who really spends their time working on it a lot, Rob or Rob can point you to something that just opens up a new avenue that you didn't think about. And I find that that's the case a lot with what is really a complicated intertwined set of restrictions and permissions in the bylaw. And that's why it makes, it's really helpful Rob and Rob to have you guys help us guide through it. And also to remember that a lot of this reason that is complicated is that we have discretion. We have a lot of discretion as a board to allow these things if we can make the findings required to exercise that discretion. We have to make the find them. The bylaw sets out certain findings we have to make and if in our judgment we can make those findings based on the conditions that we add or upon the application itself, we have a lot of discretion to decide whether to allow the application to go forward or not. And that's kind of why it's important that we spend the time doing exactly what we're doing tonight to try to understand it better. So I guess that's a preaching that you didn't need to hear because you're all here to do this, so I appreciate it. But maybe there's other questions that people have about the bylaw or about the ZBA process, what we do or anything else that's related even tangentially to the ZBA. This is a good opportunity to ask those questions that raise concerns or reflections. I just want to add something to what you said. I absolutely agree with you that we're lucky to have the two Rob's with us because yes, it does add perspective to hear their positions into why. But when I read this and I don't think we should shy away from deciding making our own best judgment because the applicants that come before us, they want a decision as well. And we should, with their guidance, hear their position, make our best interpretation of the bylaws. And I think about it the way I go before a judge. The prosecutor make an argument, I make an argument, the judge reads the law, and sometimes it is not very clear as to what it says and that's what they do, they make their best judgment. Sometimes they get it right, sometimes they get it wrong. And but I think we have an obligation to say yes or no without saying we need more guidance because things are unclear. If Mr. Moore thinks this is not allowed and the applicant says I think we need a second opinion, we are that second opinion. And again, we may not get it perfect but hearing everyone's positions into Ms. Greenbaum's point, a lot of this is about his concerns and those are valid concerns but the people that come before us, they're also taxpayers. They are also members of our community. So we have to make a decision also for them as well. So I'm not saying we're gonna say yes all the time or no all the time, but they should be heard and we should make a decision for them whether it is a yes or a no. Mr. Moore. Yeah, I just want to say, I mean that agree 100% with that and just to state that that situation is so rare that I don't even know if it's ever happened before. It's very unusual that staff would be going to the board to tell them you can't process this application. That's not what we do. We typically don't even take that kind of a position. We just present the information and let you make a call. But what was very clear about that particular case and usually is when things aren't going well is that applicant didn't want your decision. They didn't want to know what the answer was. They still don't want to know what the answer is. I know this. And we've seen this too many times when things are not going smoothly, the applicants ask to get out of the process and think about where they want to go next. And I'm sure in other communities and maybe with your experience there are applicants looking for the answer but that's typically not what we're dealing with with these one and two family properties like you would be with a larger development or larger developer. So I knew that that applicant wanted to end the session as soon as possible. Rob, just a second with Greenbaum hands her hand up. No, I just wanted to say those guys spend a lot of money on that project. A lot of, I can tell you that Coon Riddle is not cheap and Berkshire is not cheap. And I would bet that they put well into five figures at least 20, 25,000 a week for something that wasn't viable. And I don't understand why they continued with it you know, why wouldn't Coon Riddle or somebody tell if they liked the money too, I guess it's all a question of who's stopping who's pocket. But they invested a lot of money in something that can happen. And they, I don't know how does something like that happen? How does it get, are they from Boston and they just don't know how things work in the Berkshire? So it happens and it does happen. We actually have other applications that were some of the applicants we've talked to about this already and some haven't even heard, you know what the interpretation of the bylaw is. Sometimes, you know, when you get a confident developer or investor, they're right into design. They're right into, you know, survey work. And, you know, that's when we get it, you know it's not, we see applications at all different levels from sometimes just from the idea to talk it through to, you know a set of plans rolled out in front of us for the first time in town hall. So we have other proposals that, you know, don't work. I mean, there's a pretty active case that's been in the public on Fearing Street where that's gone through the local historic district review at least initially, you know, where they proposed I think it was three duplexes on a property with an apartment building, you know that hasn't even come to the zoning office yet with an application. So, you know, we had to tell them, you know that's not going to work, you know and, you know, rethink your design, you know but the baseline information is still good. Survey is still good, you know, for the property and they'll use that to, you know work out maybe a different footprint for an apartment building or some other idea to add development on the property. I have to tell you something funny. When I back in 84-5 when I was watching zoning and planning for the legal women voters I discovered I had two quarters of an acre on North Whitney Street that was on RG. This is G, the only things I'm finding there at the end of the weekend, the things I don't want to see which you don't have that issue anymore but you did them and so I go, I talked to Chad he says, oh, draw me a picture. Then I run it up, I had a high rock I could check in the end anyway but he just says to me, draw a picture. Very different. You have a different time. Other issues, questions, comments, concerns anything from Rob, yes you had your hand up, I'm sorry. So to add on to what the other Rob said earlier about us providing you guys expertise and advice and interpretation of the bylaw those project application reports they're more like obviously they're cheat sheets they really help you learn a lot about the different permits and the different properties and the different types of use and stuff but I always come across a lot of times when there's interpretation in the bylaw itself in each of the sections where it could be interpreted any way that the board sees fit and it's very important that we usually make those aware to all of you that you do have authority to make interpretations certain ways throughout the bylaw as it pertains to a certain permit but there's other times where we see something that comes before staff and we're unsure whether or not the board would interpret it a certain way so those are sometimes questions that are really hard to answer and it's entirely up to you guys because essentially being a quasi-judicial body you have the ability to interpret the bylaw within the provisions of the bylaw however you see fit Rob basically just he interprets the bylaw from perspective as the zoning enforcement officer so in terms of co-compliance or interpreting the bylaw when we receive an application those are kind of important areas to consider too so I kind of wanted to add that on to what you said earlier Rob but you know Hilda asked a really good question in between so my apologies for the raise my hand late are we changing anything or are we just understanding each other better Hilda I couldn't understand you can you say that again I said after this discussion are we changing any policies or are we just understanding what's happening better I don't see any policies to change you know we can't change his zoning stuff and we haven't noticed any proposed policies in our bylaws that are rules and rules to change right so this was just the purpose of this discussion was just to let you know how I'll interpret the bylaw and inform applicants of what the bylaw says or how I would deal with an enforcement of the bylaw if I needed to you know we're going to try hard to never have what happened with that case on North Pleasant Street where I wasn't ready to I hadn't looked at it enough to even be able to give you the answer at the time so it made sense to get out of that meeting since everybody wanted to get on that meeting because there wasn't any other guidance to give I couldn't share my interpretation because I didn't know what it was going to be yet so it hasn't happened before and I'm hoping that doesn't happen again that we're not prepared for the meeting if a question like that comes up we should not find ourselves in that situation again great well if there are other questions I do want to go on to the schedule for the 40B and Rob you sent around a schedule with topics in the meeting packets and I think in our last meeting a week ago we asked staff to set up the meeting schedule for us and I looked this over it seems to make sense the only thing that about Rob is if the work that the concom has to do and what the applicant is being asked to do for the concom and the peer review the concom may have if that will be done in time for us to take up that matter on December 7 and for us to decide we need to have a peer review as well and will we be able to get it done with Christmas and everything coming up by January so I just don't know about the stormwater management schedule on December 7th and maybe you could talk that through yeah sure we kind of initially developed this schedule because of what was discussed at that last meeting in terms of concom's review I haven't heard anything from Aaron or our wetlands administrator as to whether or not there's any significant issues that might even need peer review and Rob correct me if I'm wrong I mean but they have to go back to concom right I think they're doing concom at the same time so they're doing both permits simultaneously Rob do you know more about the permitting process side of this through concom for this project I know they I don't think they're encroaching any wetlands and I fully I mean the December 7th date was picked because of the fact that it's after that initial concom hearing and you know this schedule also isn't finalized if we need to make changes to it we definitely could I think the most important thing is the fact that the first two hearings deal with the plans so for example the site plan and the architecture and one more note to add so for that November 2nd meeting for the site plans themselves we're going to have a site visit earlier that week so next week if the applicants able to before the meeting because we want the board to have a good visualization of what the layout is going to look like you know before they have that hearing date so I noticed there's two hands Mr. Chair I'll know if they if you wanted to ask their questions yeah Mr. Meadows um you might notice that I'm in a hotel room uh and I'm here in Orlando to learn more about um the new tax structures for mechanical systems um and we don't have that indicated we don't have mechanicals indicated in the in the schedule and that may take up some time um and I don't feel like it's my uh my position to go to them directly and make suggestions based upon uh tax credits and et cetera but but they're uh I've got some projects and we're a complete turn because of the fact that the tax credits are so meaningful that we're putting in different types of systems than we would have originally and it may have bearing on what they're doing I don't know maybe they're on top of it but there's a good possibility they're not um and so it would I think it would be worthwhile to include a discussion of the mechanical systems somewhere in there and the discussion of the tax credits available to them as a result of it so would it be wise to include that on that November 30 date in addition to architecture either the second or the or the 30th I would think that uh that the 30th is probably more logical because it would fit in with the architecture and and maybe they could they could have their mechanical engineers in there too or someone who understands the tax credits just to clarify referring to home heating and cooling systems correct for tax credits okay yeah so I want to make sure alright yeah I mean that makes that fits in because they incorporate a lot of stuff into the building design too as well so that I think logically speaking Mr. Chair um it would make sense to add that to November 30th as well and I'll definitely make that a separate bullet point so they're aware that they have to bring their architects into discuss that too and of course we can sorry as you know I'm not going to be here on January 4th so in that situation Mr. Chair I think so Craig did mention to me previously that he will be unavailable for January 4th so the only thing about that Craig is that we'll have to talk to the applicant and get them to agree to instead of doing the January 4th to do the week after that or I think the third sorry I'm fine from January 20th from December 27th to January 14th 14th okay let me see we can discuss this offline too Craig and we can discuss that during the next meeting for this just so we can you know make sure we're on the same page but thank you for making me aware of that and you know we'll try to accommodate your schedule accordingly to make sure you're on that panel so when because that last meeting is going to be important for voting on the permit itself so yeah I didn't mean to go off topic there but we'll have to figure that out I think there'll be a lot of we'll have to do this offline I think yeah I agree with that let's I have some trouble too in January so Rob we've got some challenges trying to figure out the last meeting okay yeah we can discuss that later time but I think two other people have questions Mr. Chair mine's very quick do we need any unanimous vote for this no three votes okay a comprehensive permit only requires a simple majority of the board as opposed to the four majority we need for special permits okay mr. Chair I know you can't see Miss Marshall's hand but she's had up for a while I don't know if you want to call her next you know it fades in your hand fades into your background oh I changed the color I'm trying to make it visible I'm not on the 40B panels I don't have the agenda in front of me am I needed anymore this evening that is entirely up to you no we have no other issue that unless you want to raise or we have no other issues than this okay then I'll say good night good night good night Mr. Chair so I guess in terms of this schedule just so we're on the same page January 4th that date might change we could discuss that at the next meeting and then November 30th I'm going to include a separate bullet point for mechanical systems and then mechanical systems and tax incentives Craig could be combines into the same topic and then we can make the applicant aware of those opportunities in the public you know hearing format but other than that I mean does the schedule seem okay to the board you know pending those changes that we just discussed definitely we may have to extend out the last hearing on January 4th and we'll have to talk to the applicant about that but I'm just wondering if we need more time for local preference because it was sounding from what she said last week that's not going to be an easy thing I didn't understand her answer so much but she said I don't recommend that you apply for local preference and I want to talk about that because I don't understand what she meant I think that December 21st meeting does have a lot of topics in it but we've gone through some of it already but local preference will always take a lot of time the screen but I might not if we need to have more time I can't understand what you said I said local preference always take I think it's a very controversial issue that will take a lot of time and if we don't have enough time in December 21st to do it we'll have to extend into a later hearing if we need to thank you I'm glad to hear that because I wasn't happy with her answer if I understood it correctly Mr. White Mr. White I think everything looks fine the only thing that I would ask that we have a discussion about at some meeting I don't actually have a preference where it goes but it was mentioned that there's a possibility of a wildlife corridor being disrupted so I would like to hear something about that at some point but other than that no I forgot about that yes we want to see maybe you can get the homeowner a butter to show us where it is when we have the site visit and wouldn't it be logically in the November 2nd meeting for site design and landscaping we could ask the applicant because we don't know if they did the work for that and if they were to create a presentation to discuss that wildlife corridor they're probably going to want an expert or somebody on the engineering firms team to be present to discuss that and I think give them only one week to prepare for that might be a little bit too soon so I think it might be wise to maybe push that off to December 7th meeting to discuss that as a topic but I could reach out to the applicant tomorrow and see if that's possible we can tie that into the November 2nd discussion but I just want to make the board aware that could be a real possibility on their end I appreciate it Rob yeah and I will I'll definitely take note of that too and I'll let everybody know and as the schedule changes I'll definitely keep everybody in the loop and set it out to all of you so you're not left out and forget a meeting or two there are no other questions I think we've dealt with the old business and kind of our administrative business the last thing we've got is a public comment so this is an option every public meeting we set aside time for public comments where they can come out on anything except those matters before the board tonight I think we've driven everybody away there's only nobody left attending other than us so we open it up but we're opening it up to nobody so there's no public comment likely to occur Mr. Chair, the only person who was in attendance was Chris Brescher of the Planning Director I saw that I checked through here so that was it there must be something else going on in town tonight I can't understand why people aren't dropping to watch us anyway with that I would entertain a motion for adjournment do I have one so moved we got and I'm assuming there's a second as well okay it's been moved and seconded that we adjourn this motion is not debatable the chair votes aye Mr. Meadows aye Mr. White aye Mr. Henry aye I don't know if you heard anything I heard you the vote is 5-0 and we are adjourned thanks so much everybody bye