 Can I write on this? What? Can I write on this? Oh, yeah. Yeah, sure. Do you need to share this? He has one. He has the original file in front of him. There you go. It's in there. No, I don't know. Doc, you have the original one. Yes. How much do we backtrack over things before the internet is taken? OK. I call this meeting to order, which I believe is what I need to do. And we would begin with, do we need to ask for public comment? It's a good one. Yeah, it's on the agenda. OK. So the first item on the agenda is public comment. Does anybody have a comment that they wish to direct to the board for its consideration? Hearing none, and having a limited number of people who could do so, I will consider that the opportunity for public comment has been offered and not taken up by anyone. And I will move to the next item on the agenda, which is to reopen 75 Hitchcock Street variance request, which is a tabled agenda item from the November 9th meeting of the Development Review Board. So I'll just say that you. So maybe I should just say for the record that Paul will be giving a statement of the reasons and the determination that he made that led to the request for a variance. It's not a request for a variance. It's an appeal. It's an appeal. It's an appeal. OK. So I received an application. I wrote this in a brief letter to the applicant. I wrote the application for the permit because the existing structure is a nonconformity. I think our bylaw says, or the ordinance says, you can't expand or extend nonconformities. And I've looked at the court decisions in the past where there's been the request to either go up or do something that would make the nonconformity greater than it is now. So in my estimation, if they were to build on top of the nonconforming structure, it would make it more nonconforming. And so I denied the permit. And then let me follow up by saying that from where I sit, I oftentimes get people who come in and say, how did they build this? Some buys a property and they come to me and say, how did they build that next door to me? It doesn't conform with the zoning bylaw. And I have to say to them before my time, so I don't know how it happened. But if the ZA at the time had strictly adhered to the zoning ordinance, that window or that door or that building wouldn't be as close to the property line. So I think that the consideration for me is both the expansion of the nonconformity and then also future owners of the precedent. So that's really all I have to say about the application. Can I ask a couple of factual questions because we won't have the benefit of the background once you leave? I can stay here if you want. I don't have to leave. No, I think it makes sense. And we'll certainly call you back if we have additional questions. It's the back setback that we're talking about? Yes. And what's the required setback? I believe it's 10 feet. OK. And so the structure as it exists now is within that 10-foot setback. Do we know by how much? Do you know how much? How close it is to the property line? It's exactly 10 feet. The bottom section is right on the property line. Above that is because it was already a structure when we did it. So that was already a structure. And then we were going to build up and close. And because back then the ordinance was 10-foot setback. So we went in 10 feet. So that balcony is literally 8 by 10-foot space. So maybe I misunderstood the permit application. I did ask Brian for clarification. So we're working on top of the existing structure. So we already have. So when we did the addition, I don't know if you have visual pictures or not. Yeah. We've got a couple of different ones here. Should she be sworn in or anything? Yeah, she should be sworn in before. So this is the structure we're talking about. So this part down here was already existing. We did the addition. And because of the rule, the statue of the 10-foot in, they would not allow us to enclose the space. So for the addition, we're going to have a structure. So this is the structure we're talking about. So this part down here was already existing when we did the addition. And because of the rule, the statue of the 10-foot in, they would not allow us to enclose the space. So, but they did say we could put a balcony in. So this is literally eight feet back and it's 10 feet from the side of the property. So it goes over 10 feet. And if you look, and that's, right. And so when we did the second, we did another addition afterwards. And that is also set back 10 feet. So we're not asking to, when we expanded the first time, we went by the statue and we did not enclose the space. So we put it up. And what we're asking for now is to be able to enclose that area. Yeah. And I'll tell you why we're writing for them too. So you're the new house. The structure itself on the bottom side includes all of the property lines. The outer, what you're saying is that the outer boundary that says it extends back. Yes. The original house where I moved in, when I moved in, because that was the addition we made when I moved in with my family, is the bottom was all the way out and then there was another shed behind it even. So it went right up against the property lines. Because I'm guessing that when they built those houses that was where it was. Now it is. Could you draw it? I'm having a hard time. Visualizing it. Okay. So that is the balcony. This is the balcony. And this is the side side back or is that the back? That is the back of our house. That is our backyard and it goes all the way back. This is the backyard. That is all of our backyard. Right up to... Right, there's our fence on the bottom. Right here. And right now, this is 10 feet from there. This is 10 feet from the side, yes. So this is an angle. So if you're looking at if you're standing on the balcony and you're looking at how property line is right here on the side of the house. The property line on the south side. Okay, so... I'm sorry, this is going to help me though. That's okay. Do you want to do the whole back of the house? Do the street. So this is the back of the house. So we're not talking about the front of the house. The front of the house is already on the property. Right, right. Because that was existing. So the whole back of the house and then there's another addition that comes out a little ways this way. And that's angled. And then this is enclosed. So above this, this is all connected. Is the balcony. So the balcony is here. And then this is... There's a window here and then there's two windows here. And all we were asking is... And where's the property line? Right here. But that's the side one. Yes, it's the side. It's not the back. The back of the house is our yard. And the back is way out here. The back is way back here. So it's the side setback. It's the side setback. It's the side setback. Right, right. So when you... The new statue... Well, the statue when we did it in 07 was you had to be 10 feet away from the side. Right. But you had built this... This was already existing. So you were building it on top of it. We built on top of it and we didn't realize that we couldn't go all the way up until they came when we did the permit. And they said we couldn't. So we put a balcony there since the structure... The roof was already dead. If that makes sense. And you can't build up because it wasn't conforming? I mean, is that... That's what they said. That's why... So here's how I would view... And I don't have the benefit of the e-corp cases that Paul was talking about. But the purpose to my mind of a setback is that we have decided that structures should be a certain distance away from property lines. And to my mind, I don't understand why it would make any sense if it... Any difference if it was a one-story structure within encroaching on the setback or a two-story or a three-story, when I hear increase the non-conformity, I hear move closer to the line. So if I have a pre-existing non-conformity that's five feet in a ten-feet setback zone, I can't go any closer to the property line. But I don't understand why you couldn't build up. Vertically? Because it doesn't... Unless there's a vertical... Is there ever a vertical... Well, I guess there's a vertical height limit. Yeah, but we're not talking about that. We're talking about... It's just included as all the segments were... Actually, I think... I'm just making sure I'm simply here. It's the side setback, not... Yeah, we figured out with the ten-feet sign in residential C. So, and the only reason we're asking... We did ask Steven, when we first did it, the first one that owned the neighboring property is out of country, the previous one. But then Steven fully bought it. And so over time, that thing was really nice for a while. It was awesome. But over time, things changed. The weather is really getting inside the balcony, rotting the floor, and putting the room downstairs. And so, in closing it, we allowed the weather to not get in. And then also, with the expansion of all the development, and the big house that's going across behind us, like, that's our view now. I mean, it's... Our third view is the big, huge apartment complex, I guess. Is it fair to describe this as a balcony? It is a balcony right now, yes. What is underneath? A room. So it's not a balcony. A balcony is a free, standing... Yeah, it's essentially a roof with a roof over it. Right, basically. So, it's like a porch. It's like a porch. It's an enclosed... It's a porch. I don't mind being here. Is it a room or...? I don't mind. The balcony is not a room. It's not. There's no heating. There's nothing on it. So the foundation underneath... Yes. Underneath the bonfire, yes. Which is already there. So you have, you have literally a footprint. Yes. Underneath which you're calling a balcony, but which I would call a roof deck. Yeah, the only cover... Covered. The roof deck has a roof deck over it. But this is the way... Oh, I see. It's a porch. When we turned on the stairs, we went out... Yeah, an upper porch. But like I said, the way that I would view this is we have a footprint, a first-story structure that is on the line. It's non-conforming. And I understand why moving it closer to the line makes it more non-conforming. I don't understand how building on top of it. Like if you had... If I had a structure that was within the setback that didn't have a roof on it, and I put in an application to put a roof on it. Does putting a roof on it make it more non-conforming? Well, I think where the court has come in is they call that an expansion of the use. So you're taking what is outdoor use and making it enclosed use, which is... And again, this is... I'm not an attorney, I don't. I tend to be one. But that's what... In John's audience, I had lengthy discussions about various cases where the court said that's an expansion of use. And so by... Again, I don't have a dog in the fight. That's how you perceived it. I just don't really buy that. I mean, I don't understand... I don't know whether it's binding, pressed in or not. I don't imagine it is. The eCourt comes out with a lot of decisions that don't go up to the Supreme Court. But I just don't understand the logic of... Okay, so you're expanding the use. You could say, okay, I have a vacant room within five feet of the setback. Am I not allowed to put a bed in there? That's expanding the use. The purpose of a setback is to keep the structure away from the property line. I don't really care what you're doing inside the structure. And I don't think that the purpose of a setback cares either. That's not why we have setbacks. It's to keep structures away from property lines. It doesn't matter how big or how small the structure is. That's how I would view it. I don't know if I agree with that in that when you go up, it becomes a lot more invasive. I mean, a setback is to not... So I guess giving up space between units in order to allow to breathe. But if you go up, that takes off a lot... I guess it's more invasive. The thing is for me here is that that's already two-story. It's not... it's just shutting that in. I guess from a use standpoint... Yeah, no, I get your point. If you wanted to add a story, maybe it would be different because if you're standing on the property line, you have to tilt your head up more to see the sky. In terms of impact on the neighbors, it's the same. This is the back view, right? Yes. This is the back of the building. This is the sideline. It's already built up to the sideline, the house. I mean, I looked at it three weeks ago, or shortly before the 19 November meeting, so it's more than three weeks ago, from the street. It appears to me that there's about a foot, or a foot and a half between the two buildings. Yeah, let's say it's the same whether we... No, but is that true? I mean, is my perception... that the space between the two houses on the side is very small, right? So what you're... See, I was confused. I thought this... This is the back. Yeah, so this is the back on the side, there are two open sides to the under-the-roof, non-room, deck, balcony kind of... It can't be a balcony because it has a firm, solid, enclosed structure beneath it. Let me ask you this. We're looking at it from the back, and the side is right here, and this is the foot and a half alley that we're talking about. Is this side open as well? Yeah, the neighbor's... No, it's enclosed with deckboards for privacy. But the neighbor's house is set back from the east. This side is already enclosed, so it's not permanently enclosed. But again, in terms of altering the use, we're not like the difference between permanently enclosing this deck and having these deckboards up for the neighbor on the side where the setback is impacted, is like zero. It's either it's covered up by deckboards or it's covered up permanently. Exciting. Yeah, my side. It would all look as if one would replace the siding with windows in. I would agree with all that. I think it just comes down to the use, and I sort of want to... So what do you mean by use? It's just a change of use, and that before it was an external use, and now it's an internal... It's actually our master bedroom. But not the porch. It is. It's right on our bedroom. We have doors that lock out onto it. Right, but you know, instead of exterior, it's interior now. So I guess that's the difference in use? Right, so it would be interior, but it's more use for that room. The room will not change. It will still be our room. But it's more just... For... Because we have to do some work on the bottom part anyways, we thought we'd come in and see if we could just enclose it and get rid of that weather. See, I wouldn't view this in terms of a non-conforming use. I know that that might be the terminology. It's not the use that's offensive to the bylaws. It's where the structure is. So... If... Again, I view the setback as a structural... not a use. So like if this were an enclosed, you wouldn't need... If this were already enclosed, you wouldn't need permission to change it from a bedroom into an arcade. As much as that's a great idea. So... So... You might. Because... You know, there's... I think... That's probably a bad example. A bedroom into an upstairs living room. So we're keeping it within residential. I meant a personal arcade. Okay. Not a commercial. So... That's where... And again, I don't know the reasoning of these court decisions, but... I also don't think we're bound by them. Unless they're Supreme Court precedent. And it just seems to me that it's a minimal change. Really has... No impact on the neighbor that is bordering the property on the setback side. And... I mean, we can talk about variants. The application, the appeal, the request of variants, I suppose in the alternative, if we disagree, or if we agree with Paul's decision, that's more involved of an analysis. My inclination would be to take the path of least resistance and just, you know, politely disagree with the reasoning that this is an increased non-conformity. Is there a mechanism we can grant them a variance? That would... I think procedurally require a different... You'd have to warn... This was warned as a appeal of a denial. So to have a new agenda item, which would be to approve a variance, I think we'd have to put that on an agenda and warn it as such. I saw the variance language in the notice of appeal, which is what I think to mind. So that's an alternative path we could take is to say you know, the denial is upheld, but come back and talk to us about the elements of a variance. But those elements are involved. What does that mean? So there are four elements. Can I take my packet back? Yes. Someone stole my packet for today. I think... did I take that? Yeah, it might be... No, this is the official one. No, it might be the stapled one. My book saw it. How's this one? So the four elements of a variance, I was just looking... Maybe they're not in here. They're not in the ordinance. But there's something to the effect of this is the only way and increasing this non-conformity is the only way we can accomplish our goal. And I think there are four elements. We could talk about those. I'm still in favor of taking the easier road. What's the easier way? Just reversing... The denial? Perspectively, reversing Paul's decision saying that the logic of the application and it's a unique application in terms of what we might see in the future, I doubt. There's not a property in the city that has a deck with a roof on it. Don't be so sure. Don't be so sure. Don't be so sure. I also don't see a line forming at the door. Can I just... Under non-conforming use there's a list of five items. The fourth one which says shall not be intensified by any means whatsoever except with the approval of the DRB subject to conditional use review in accordance with the provisions of section 6.7 of these regulations. Again, I think that would be a different hearing. Right now Kevin is suggesting that you perfectly disagree with me and that's fine. That's part of the purpose of our... Part of the purpose of the appeal and then just let me also say that when I feel uncomfortable with the decision that I might make that might have consequences that's when I can also deny to kick it to you to essentially put the responsibility on the board's shoulders as opposed to the sole action of the administrative officer so if you chose to respectfully disagree I'm not insulted or offended. No, but I mean we are enjoying not to intensify any non-conforming use as I see it in the color. And changing a balcony to an enclosed part of an existing structure even though I admit that the lower part of this sub-roof deck is rests on that extended foundation that is in the the non-conforming structure because that's where I draw the distinction. We're not talking about really a use we're talking about the footprint of the property relative to the property line. Yeah, but every structure also has a use so for example non-conforming sheds that are set back that are less than 100 square feet are allowed but ones that are larger than that aren't. So that's it's a question of the use and this is a more intensive use because you're going to winterize what is now only a seasonally applied usable portion of the structure. So when we're talking about non-conforming sheds it's either non-conforming or conforming because it's a shed. The zoning bylaws call out you can have sheds here but not arcades or have residences or other things. This isn't changing the use a deck a bedroom, they're all residential use this is residential it's zone for residential use I don't think of it as in terms of a non-conforming use because it's a zone use it's permitted use. I think of it in terms of a non-conforming structure the structure does not have the right dimensions and unless we're using my example of turning it into an arcade I actually don't think that use is a dimension that is at play but maybe I'm wrong about that. Personally I'm comfortable with what you're proposing and I mean I think yes from an administrative point you had to deny it because that's specifically what the rules say in the rules it allows us in certain circumstances like this to you know use our best judgment and come up with our own opinion and if it's something we're comfortable with I think there's clearly a mechanism in here to grant a waiver in this instance, in my own opinion you're right, the building is already there the structure that you want to enclose is already there close to the property line I don't have a problem with it that's my opinion I guess it's how how we want to what the rest of you think and how we want to go forward to get to that place I would be hesitant to phrase it in terms of a variance or a waiver because those are specifically defined terms in the bylaws that would require elements to be met that we really haven't heard testimony about but I think it's kind of six of one half dozen of the other and you know I would if Doug were to entertain a motion make a motion based on the logic that I've been talking about and let us kind of continue to debate how I set it and see if we can come to an agreement and if we can't then we can go down the path that Doug is pursuing and the variance path and the waiver path just tell me your idea again I'm sorry I basically want to make a motion again if Doug would entertain one to reverse the zoning administrator's decision on the theory that this board does not consider the proposed application to increase the non conformity of the structure because it doesn't bring it any closer to the setback and we're not convinced that any other changes are relevant to the analysis or at least I'm not did you write that down? it sounded good I mean I haven't made the motion yet why don't you read some I would be comfortable with that you can talk amongst yourselves while I write this down so if we accept Kevin's wording of the motion what does this mean going forward I think I denied it you're undenying it and therefore granting it I believe it is there would be an appeal period probably for the nobody that showed up so there would be a 30 day because if I had just granted it administratively there would be a 15 day appeal period because it's way up to your level there's now a 30 day appeal period but I would say what we would do is I would write findings that say essentially what the motion says and the application I think would be granted for a couple reasons well no it would be granted it would just be subject to appeal and if no one appealed it within 30 days how would somebody who might be moved to appeal it they can't you have to participate to appeal so it's a formality we never acknowledged our friend from historic preservation did you is it historic neither Joe nor the guy I didn't want to leave you out of the process just an involved citizen perfect so they would get a Z card and they would go on their thing and it would be filed in the land use records with the decision and technically you're writing the decision on me that's right because you're not really here if someone appealed it would come back to us it would go to e-court environment environmental court is above us so the sequence goes I make a decision or not it goes to them with appeal it would only go there if there was an appeal whatever the board decides so essentially you have to hold your breath for 30 days and hope that nobody appeals nobody will nobody I think you and Brian were the only ones here who had standing with respect to the case I don't think there was any of the neighbors or what have you even though that would work emails here from Stephen Paul into granting permission to enclose it he has he only has standing to appeal he doesn't have standing to grant anything so basically it's just a formality it's unlikely anyone would appeal because you have to show up and say something in order to appeal so unless you want to appeal yourself actually you don't have to say something you have to sign a list that says that you want to have standing I think you would have to in the writing within 5 days sure usually it's the joiners people who are directly impacted so if none of them are here that's good news for you they were warned they were warned the windows were too close and then they would have had to show up and then the motion was tabled application was tabled not up to me or it was it was tabled and not even though Brian showed up and it was carried forward I don't know if it was a problem but I want to make sure we follow I just want to say something I just want to say something and that is that Kevin and I have this disagreement about the use versus footprint and I'm kind of torn about that because I recognize that it's within the footprint I believe it's an intensification of use and I think intensifying the use of a nonconforming structure is not what the code intends so I just want I want that clear on the table well I sort of agree with you on that but I guess what I wanted to understand though is what's sort of the definition of a nonconforming use and that does that mean is it nonconforming use when something is a standard use in a nonconforming space in a nonconforming structure so I guess I'm torn do you know what I mean in the case law between use and so issues that I deal with often for clients are how many bedrooms sorry how many units does your property have how many unrelated people are living there together I think of you says outside the structure things that code enforcement can't see when they're driving by I think of structural violations as outside that is obvious to code enforcement and the operative difference for me is often whether you there's a statute of limitations for enforcement so if a city ignores a nonconforming structure for 15 years that wasn't zoned they have to live with it enforcement action after 15 years but if it's inside if it's a nonconforming use like you've been operating your property as a commercial arcade for 15 years there's no statute of limitations because the city would have no way of knowing unless it parked into your house so okay I understand that but the porch is I mean it is outside but it is covered so I'm just curious if this was just a deck differently? No because the reason it's nonconforming isn't because it's a porch it's because it's within a certain number of feet of the property line physical structure and look at this table of land use under uses it doesn't say it doesn't say porch or bedroom it says single family dwelling or two family dwelling you know they're not expanding it from a single family house into a duplex or a bed and breakfast or a family child care home or a group home but you're not putting that part of your house in a child care? no we do not use the upstairs part as the child care but in my so I guess for that it's unlicensed but I mean if you thought it was a large deck off the back of the house that was a ladder and it was right on the property line and the other house was right there and someone came in say it was a 20 by 12 deck someone came in and built another room and a roof right next to your house to me that makes that structure a lot more unconforming if you're talking about a freestanding deck that's not like say it's on top of the structure but without the roof on top maybe you're right maybe what's getting me is that it really does look like an almost enclosed structure and maybe it would be I mean I don't know whether intellectually the defensiveness of it to the neighbors would matter in my distinction between structure and use but it would certainly kind of not my mind here one of the reasons I'm more comfortable with my logic is because it's really not going to have a difference for that neighbor right so it may be a no foul analysis so I've got my motion written out I'm looking for a motion on how to proceed I make a motion to respectfully reverse the zoning administrator decision on the basis that this board disagrees with the zoning administrator's reasoning that the application would increase the nonconformity of the structure and this board does not consider any of the changes in the proposal excuse me in the proposed use to be relevant to the analysis whether to grant or deny the application motion is second motion has been made is there a second I would second that is there further discussion discussed it do we discuss it before we vote yes yes yes what am I thinking not at all is there comment or discussion I have no further comments no comments I don't think I have any further comments as well motion has been made seconded and discussed all in favor of the motion indicate by saying aye aye opposed to the motion opposed anybody abstaining I guess I certainly am I guess I am for the motion the motion carries 3 to 1 and it would have failed if it was 2 to 2 but it would have failed if you abstained it was just 2 to 1 I think because you have to have a majority of the official complement of the board to pass the quorum so if we have 4 we still need 3 votes if we have 3 we need 3 votes if we have only 2 favorable votes and 1 against is that what I was going to say we need a majority of the full complement that's always been my understanding sorry if we had this is a total side note but if we had 3 of us show up for a meeting and someone made a motion would we need all 3 votes to pass it I had a whole debate with Seth about that and the charter and I'm pretty sure I won that debate so we need to change that so can I take your sure it's I extemporaneously changed a couple of words but this is the substance if you can read it is there any any way to add to that conditions you're already done yeah yeah you would have had to have done that we're learning what would be your conditions well no I'm just to sort of protect ourselves for future people that come with the same issues well I think we are protected because you know in the future he can read the permit as he feels fit and if he denies it it comes back to us and there's you know we don't have to say yes we're going to do it or no we're not going to it does establish a precedent however well it only establishes a precedent to the extent we want to follow it because we don't have to and I do think this is not going to come up again in the same way I think we'll easily find distinctions in future applications that look different if they come at all I think what changed my opinion of this is that it had a roof it basically almost had sides and so to me it was it's actually the same roof as the whole entire house so that whole addition is this one room so that's what I'm just saying if someone comes with the idea of a deck I would yeah you might get me on that next time we'll it'll be the one that will be a lot I would be just the opposite the second addition we did we actually noted the statue of the deck he would have allowed so it was a deck could convert the deck to an enclosed no where are we talking about the deck being placed here no no no I was saying instead of a porch it was a deck motion to adjourn the meeting yeah do we have any other ideas to discuss I need to ask for minutes review of minutes from the previous meeting we don't have the minutes from the previous meeting because this is basically the way to that meeting so there'll be minutes from this meeting and there'll be meetings minutes from the previous meeting there'll all be one minute one minute one minute it'll be one minute minutes, tables table to further date continuation of the minutes or reopen so is there any new business or I should say is there any other old business that we need to not that I'm aware of there will be two agenda items that just came in for January you'll get your information packets soon what that means we would have one of them is actually a variance a real live variance oh real variance and we are looking at January 18 the third Thursday again okay I will entertain a motion to adjourn a motion to adjourn this meeting of the development review board the motion has been made seconded all in favor aye opposed everybody is even here to head home I'm going to Star Wars Star Wars thank you for your patience Star Wars yes