 It is now 734 PM on Tuesday, January 23rd, 2024. Good evening. My name is Christian Klein and I am the chair of the Arlington Zoning Board of Appeals and I'm calling this meeting of the board to order. I would first like to confirm all members and anticipated officials are present. Members of the Zoning Board of Appeals. Roger Dupont. Here. Patrick Hamlin. Here. Venkat Holley. Here. Mr. Riccadelli is unable to join us this evening. Elaine Hoffman. Here. And Adam LaBlanc. Here. Good to have you all joining us. Also, we have Colleen Ralston, our zoning assistant. Here. And we have Mike Champa, who is the director of Inspectional Services. Here. And have you with us. And then for the cases we have this evening, appearing on behalf of 49 Dixon Avenue, you have Verma Soutir. Here. Good to have you with us. For Docket 37799 Morton Road, Kate and Anthony Gregorio. Here. Good to have you with us. For Docket 378253 Lansdowne Road, we have Rebecca and Timothy Center. Here. See you both. And Docket 3783186 Overlook Road. Lohana and Peter Cain. Here you are. Great. So good evening, everyone. This meeting, this open meeting of the Arlington Zoning Board of Appeals is being conducted remotely, consistent with an act making appropriations for fiscal year 2023 to provide for supplementing certain existing appropriations and for certain other activities and projects signed into law on March 29th, 2023. This act includes an extension until March 31st, 2025 of the remote meeting provisions of Governor Baker's March 12, 2020 executive order suspending certain provisions of the open meeting law, which suspended the requirement to hold all meetings in a publicly accessible physical location. Public bodies may continue holding meetings remotely without a quorum of the public body physically present at a meeting location so long as they provide adequate alternative access to remote meetings. Public bodies may meet remotely so long as reasonable public access is afforded so the public can follow along with the deliberations of the meeting. An opportunity for public participation will be provided during the public comment period during each public hearing. For this meeting, the Arlington Zoning Board of Appeals has convened a video conference via the Zoom application with online and telephone access as listed on the agenda posted to the town's website identifying how the public may join. This meeting is being recorded and it will be broadcast by ACMI. Please be aware that attendees are participating by a variety of means. Some attendees are participating by video conference, others are participating by computer audio or by telephone. Accordingly, please be aware that other folks may be able to see you, your screen name or another identifier. Please take care to not share personal information. Anything that you broadcast may be captured by the recording. We ask you to please maintain decorum during the meeting including displaying an appropriate background. All supporting materials that have been provided members of this body are available on the town's website unless otherwise noted. The public is encouraged to follow along using the posted agenda and as chair, I reserve the right to take items out of order in the interest of promoting an orderly meeting. As the board will be taking up new business this meeting is chair, I make the following land acknowledgement. Whereas the zoning board of appeals for the town of Arlington, Massachusetts discusses and arbitrates the use of land in Arlington formerly known as monotony, now Conquan word meaning swift waters. The board here by acknowledges the town of Arlington is located on the ancestral lands of the Massachusetts tribe, the tribe of indigenous peoples from whom the colony province and commonwealth have taken their names. We pay our respects to the ancestral bloodline of the Massachusetts tribe and their descendants who still inhabit historic Massachusetts territories today. We're going to start this meeting with agenda item number two, which actually there has been, item number two is a duplicate of item five. So we will cover that again. So we're item number three, which is the approval of the decision for docket 377795 George Street. This was a case that was heard at our previous meeting. The board voted in approval. We have a written decision that was written by Mr. Hanlon and distributed to the board for comment and final issue of the decision was sent out this afternoon. Are there any additional questions or comments in regards to the written decision for 95 George Street? Seeing none, I will take a motion to accept the written decision for 95 George Street. Mr. Hanlon, you are muted. Sorry about that. So moved. Thank you. Thank you, Mr. Dupont. So this is a vote of the board to approve the written decision for 95 George Street. Mr. Dupont? Aye. Mr. Hanlon? Aye. Ms. Hoffman? Aye. And the chair votes aye. That is approved. That brings us to item four on our agenda, which is the approval of the decision for docket 378096 Jason Street. This was heard at our January 9th hearing. The motion of the board was to approve the application. The decision was written by Mr. Hanlon, distributed to the board for questions and comments and final issue of the decision was this afternoon. Are there any additional questions or comments in regards to the written decision for 96 Jason Street? Seeing none, the chair will take a motion to accept the written decision for 96 Jason Street. Mr. Chairman, so moved. Thank you, Mr. Hanlon. Thank you, Mr. Dupont. So vote of the board to approve the written decision 96 Jason Street. Mr. Dupont? Aye. Mr. Hanlon? Aye. Ms. Hoffman? Aye. And the chair votes aye. That is approved. So this brings us to the hearing section of our agenda this evening. The before opening for public hearings, here's some ground rules for effective and clear conduct of tonight's business. After I announce each agenda item, I will ask the applicant to introduce themselves for themselves and make their presentation to the board. I will then request that members of the board ask what questions they have on the proposal. And after the board's questions have been answered, I will open the meeting for public comment. At the conclusion of public comment, the board will deliberate and vote on the matter. Any vote taken at this hearing will be preliminary until the written decision is approved by the board at a subsequent meeting. All votes will be conducted by roll call vote. So with that, the next item on our agenda is DACA 3776 49 Dixon Avenue. This is a continuance from a prior meeting January 9th. And so if I could ask the applicant to reintroduce themselves and tell us what changes have been put forward since we last saw them. Hi, everyone. Thank you, Mr. Clean for the opportunity. This is to the Verma 49 Dixon Avenue. This is a continuation of our request from the last time. Last time we submitted a special request for a large addition and a covered proposal. And there were some comments regarding the grading of the house. So we have updated the plans. And also there was a comment regarding the production of the tree, which was at the expansion of the driveway. For that also, we have added that to the plot plans. So both have been submitted. So I think that's the overview. Great, thank you. I will go ahead and share the updated plot plan. So as you see before here, so this is the plot plan. The numbers now that are in red are the proposed elevations. So the applicant is the issue as it was before was that there was a sufficient portion of the basement level that was exposed, that it would qualify as a story. And in that case, the house would have been three and one half stories instead of two and a half stories, which is not allowed under our bylaw. And so the applicant has gone back and is reworking the grade of the site to make sure that the, that lowest basement level no longer qualifies as a story. And so for that, there's the raising of the height, the site, it's noted here for the four corners, but essentially that would be the new grade. That grade would need to be verified at the conclusion of the project to make sure that the, that basement level does not qualify as a story should the board vote to approve the application. And then I'm just gonna switch. Oops, to a different sheet. So this, these are the proposed elevations. And so you can see the bubble number here that has changed. So this is the revised elevation, which now has the height from the average grade to the underside of the ceiling at four foot three and a half, which is less than four foot six. And so it no longer qualifies as a story. So because of that, a variance is not required, which brings it back to, it's essentially now just a request for a special permit. And specifically it would be for a large addition. We had discussed the initially proposed the proposed deck and the proposed porch. So there's a porch here at the front, which will be 20 feet from the front lot line. And then there's an open deck here, which will be 16.6 feet from the second front lot line, the front lot along Wheeler Avenue. Oh, excuse me, Wheeler Lane. Wheeler Lane. And then on this side, these steps are beyond the setback. So these are okay. And this is an existing deck that's being removed. And then as the applicant had also noted, this is the tree that we were asking about. So he is noting that the four inch tree is to be protected. Yes, I think the driveway is not extended all the way through the tree. So there is still space there. Okay, so this proposed driveway expansion will not happen? No, this will happen, but it will protect the tree because we have also a number that I will be with, which is a 16.7 something right now. So we chose not there before. Okay. Yeah, which is right now 10, and I think it's 16.7. No, yeah, I don't get it, yeah. Great. So with that, I know at the previous hearing, we had four members of the board who were able to hear the initial hearing. Ben Cahully has gone back and reviewed the recording and filed paperwork stating that he has reviewed the case to date, which under the Mullen rule allows him to vote on the final application. So we do have five members who are eligible to vote on this this evening. So with that, are there further questions from the board in regards to this application? Mr. Chair. Mr. Cahully. So the grade at the corner is 114.2 relative to what was the previous grade? So this corner shows 14, it was 13, 1358. And then at the bottom corner, left corner. It's 113, 14 going up to 142. So it's going up just over a foot. Thank you. Oh, you're welcome. And then I'm assuming so the grade, this, the grades would need to carry away from the building for a certain distance. And then they can taper back into the existing site level. So, yeah. And then this corner, yeah, 113 to 38. It's about the closest, it's going to 142. And then this corner here's already 115 and that's remaining at 1505. And so this is the proposed elevation to Dixon. This would be the elevation of facing Wheeler on the side. This would be facing the adjacent building and this would be facing the backyard. That note before, it's a rather high straight elevation. And I wasn't sure if that was concerning to other members of the board. I know on the side facing, the two public faces on Wheeler, there is a carved in deck up here and there is this exposed deck down below. And then facing onto Dixon, there's the covered porch and then the awning here. So there are some smaller scale features facing the street but the side opposite and the rear are relatively long and flat. So no questions from the board. Go ahead and... So I will now go ahead and open this hearing for public comment. Public questions and comments are taken as they relate to the matter at hand. Should be directed to the board for the purpose of informing its decision. Members of the public will be granted time to ask questions and make comments. Members of the public who wish to speak should digitally raise their hands using the button on the reactions tab and the Zoom application. Those calling in by phone can dial star nine to indicate they would like to speak. You'll be called upon by the chair. You'll be asked to give your name and address for the record and you'll be given time for your questions and comments. All questions are to be addressed through the chair. Please remember to speak clearly. And anyone wishing to address the board a second time should the chair will allow those wishing to speak for the first time to be called upon first. So with that, are there any members of the public who wish to address this hearing? I see Mr. Steve Moore. Yes, thank you Mr. Chair. Steve Moore, Cleveland Street. I want to thank the applicant for having done that drive-way shift to help protect that tree. I would further ask though through you, has the applicant spoken with the tree warden about a tree plane? I think that we have not talked yet but I don't know whether that was a request last night. Mr. Chair, I just wanted to remind the applicant that for large renovation, a tree plan is required and although the plot plan does show the trees, it doesn't speak to the protection methods that the trees are going to require during construction and also if there are any additional protected trees that are required, I mean, it doesn't look like there are and that's good. And I know that the applicant expressed a real concern for the trees himself before. And so that's good to know, but really there doesn't need to be a meeting between the tree warden and themselves because the tree plan has to be provided through a certified arborist. And I just wanted to make sure that the applicant was aware of that before they'll issue the building permit. And also I wanted to thank the board. I'm not sure if this happened by mistake or on purpose, but in looking at the materials added to the agenda particularly for continuous cases, there is a date on the renovation plan which is helpful to know what material is new and what came from the first meeting that's not new. However, I didn't notice a date was missing on the plot plan update. And I thought, well, maybe we just lucked out that there was a date on the first one because the dates really help people like me address what's new material or the continuance. So thank you for that, if that was the intent. Thanks, Mr. Chief. Thank you, Mr. Moore. Are there any other members of the public who wish to address this item? Seeing none, I'll go ahead and close public comment for the hearing on 49 Dixon Avenue. So this brings it back to the board. So what we have in front of us is application under 542B6, which is the large addition. And we also have a belief. Just want to go and refer to the zoning bylaw. So under 539, so porches greater than 25 square feet can extend into the front yard setback by a special permit and unenclosed decks which do not project more than 10 feet into the front yard or more than five feet into the side yard. So in this case, the proposed deck being 16.8 feet does not extend. So the proposed deck does not require a special permit. This property is in the R1 district. And so the front yard setback is 25 feet. So it does project into the front yard setback to propose porch. So that would also under 539A, it would require a special permit in addition to the large addition. So are there any, is there any further discussion among the board? Seeing none, to the board, if for a large addition, the board needs to make several findings in order to approve. The first is that the alteration or addition is in harmony with other structures and uses in the vicinity. This is a rather large addition for a large addition. But the size of the proposed building is not unduly out of scale with the district. And the use is allowed by right. And the size can be allowed and the porch can be allowed under the by-laws under sections 542B6 and 539A. Requested use is essential or desirable to public convenience or welfare. So the use of residential property in town for residential purposes, the expansion of that to fit the needs of residents in town are typically considered a public good. The expansion of the tax base is good for the town and the porch and the deck allow the property to have a connection with neighbors who would be passing on the street and allows the house to have more contact with the public. The number three, the use will not create undue traffic congestion or impair pedestrian safety. It does not affect the sidewalk because there is no sidewalk and just will not increase the number of the amount of traffic. It will have a wider driveway, but I don't think that adds significantly to any potential pedestrian safety in front of the property. Number four, the use will not overload any public system. It will not change the public systems that are required for the building. That there are special regulations involved and these are the two that have been mentioned which is the 539A regarding porches and 5042B6 regarding large additions. Requested use will not impair the character or integrity of the neighborhood. It will still remain a single family home in this neighborhood and should not impact the character or the integrity. It will not be detrimental to public health or welfare and will not cause an excess of use detrimental to the neighborhood. So those findings are the special permit findings which we use to determine whether it is in harmony. And the second for large additions is consider the dimensions and setbacks in relation to abutting structures and uses. So this is a single family home in a single family neighborhood. So there should not be any issue in regards to the uses in regards to abutting structures, the abutting driveways pretty much right on the property line adjacent to this house. So there is approximately 20 plus feet between the building, this house and the adjacent house. The board would need to find that that dimension is appropriate and consider conformity with the purposes of the bylaw. So that the bylaw that the intention is to preserve the character of the neighborhood, to preserve access to light and air and other things that's put forward in section one of the zoning bylaw. So those are the findings that the board would need to make by way of its vote. Are there any further questions from the board? Mr. Chairman. Mr. Hanlon. I just wanted to go one step further. When you look at the map and when you go there, the property that's immediately, I guess it's to the right of this property, the one at 45 Dixon, seems to, seems reasonably far away. And I'm focused now on where the structures are. And this will be somewhat larger than that house, which was I think recently renovated, but it certainly when you're there, it looks as if that's a reasonable distance. The closer house actually is the one in the rear that's at three Wheeler Street. And that too, that has a driveway that's immediately adjacent to the rear lot line. And when you're there, the driveway is, as you can see right on the rear lot line. Not the driveway, but there's a small area there. But that's ultimately a pretty fair distance as well. And if you imagine that house expanding the way that it will, it seemed to me at least in looking at it that the structures were sufficiently separated that what you're looking for here is a risk that an overly large building here would inappropriately lord it over a neighboring building. And I think that's not going to happen here. But so I just wanted to sort of go a step further to look at the map and see where all of these things, where all of these things are. But my conclusion still is that as is often the case, this is, well, it's quite a large building even for this neighborhood. It's not particularly large compared to the house in the rear, but it's a little closer and or will be a little closer, but not so much, I think, to create the problem that the zoning bylaw is aimed to prevent. All right, thank you, Mr. Hanlon. Anything further from the board? Mr. Chair. Mr. Blank. Just as another point, the applicant would need to, we need to vote to withdraw their application for the variance if they wish and say no, we need it. And it's on our docket, right? That's how we've done it in the past. That is a very good point. Yes, we will make sure to get that. Should the board vote to approve the special permit, there are three standard conditions that the board would include in a decision such as this. The first is that the plans and specifications approved by the board for the special permit shall be the final plans and specifications submitted to the building inspector of the town of Arlington in connection with this application for zoning relief should be no deviation during construction from approved plans and specifications without the express written approval of the Arlington zoning Board of Appeals. Number two is the building inspector is hereby notified they are to monitor the site and should proceed with appropriate enforcement procedures that any time they determine that violations are present, building inspector shall proceed under section 3.1 of the zoning bylaw and under the provisions of chapter 40, section 21D of the Massachusetts General Laws and Institute non-criminal complaints if necessary, the building inspector may also approve an Institute-appropriate criminal action also in accordance with section 3.1. And number three is the board shall maintain continuing jurisdiction with respect to the special permit grant. So with that, are there any additional conditions I would propose the board has in the past had a condition that the board request the applicant work with the tree warden to address compliance with the town's tree protection and preservation bylaw. And I think that would be appropriate here as it has been raised as a question. Are there any other items which the board would wish to raise? Seeing none, the chair will then accept a motion. Mr. Chairman, I move that the board approve the application subject to the three standard conditions and the additional condition relating to consulting with the tree warden that the chairman has just read into the record. So I can just to clarify, that would be a motion to approve the special permit application. Yes, let me just sort of step back for a second. It's all kind of confused. There are two different special permits and the motion includes both of them. Okay, so we'll go ahead and vote on the special permit and then with the board will go back and vote on the variance. So with that, what the motion, the board has in front of it is a motion to approve the special permit application for 49 Dixon Avenue with the three standard conditions and the one additional conditions. And this covers those two sections that we had referenced earlier, five, three, nine, A and five, four, two, B, six. So then a roll call vote of the board. Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Holley. Aye. Ms. Hoffman. Aye. And the chair votes aye. So the special permit is approved and then the chair will take a motion to withdraw the variance request for 49 Dixon Avenue. Mr. Chairman. Mr. Hanlon. Just in terms of the procedure here, I think that with the way that the withdrawal has been handled in the past as the applicant has requested that we has requested to withdraw and that we've approved his request to withdraw the application. I think that sort of lines up with the way the law is written. That very well taken. So with that, Mr. Verma, would you be willing to as the variance is no longer required, would you be willing to withdraw your request for variance? Yes. Okay, so then this would be a motion to accept the withdrawal for the variance for 49 Dixon Avenue. Mr. Chairman, so moved. Thank you, Mr. Hanlon. Second. Thank you, Mr. Dupont. So vote of the board to accept the withdrawal of variance request for 49 Dixon Avenue. Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Holley. Aye. Ms. Hoffman. Aye. The chair votes aye. The variance request is withdrawal is accepted. That's everything for 49 Dixon Avenue. Thank you very much. Thank you all for taking the time in the application and the blue one. Thank you. You're very welcome. So with that, because the board has the building inspector with it, I'm going to move, ask that we, the board to take up item docket, the item number eight on the agenda, which is docket 37831886 Overlook Road, which is an appeal of the decision of the building inspector. I'm bringing this forward to, so that this is the only item that he needs to be present for on tonight's hearing. So I just wanted to make sure to move this up so he could present his side of the case. So with that, I would ask the applicant to address the board and explain what the situation is and what the decision of the zoning inspector they are appealing. Oh, I'm sorry, you're still on mute, ma'am. That's mute. Can you hear me? Sure you can. Yep, you're all set. Okay. So I'm just replacing my old shed, which falling part after like almost 20 years. In the meantime, because I'm renovating my basement, so I make it a little larger so it can put all the junk from my basement to the shed. So that's, and it's under 200 square feet and there's a Massachusetts state law. It don't need permit. Also I will search on the online building code of Arlington and it doesn't mention anything about the shed. Then we had to be leaving Arlington for almost 20 years. I never really get informed about any law, by law about the shed. I mean, so I just replace it. And there's a replacement exactly the same spot as my old shed is. And around the shed is all six feet of the tall fence from my neighbors. All my neighbors have like six feet tall solid wood fence around it. So they really cannot see the shed, but all they can see is the roof. So obviously one of my neighbor in the blue house complained to the inspectors that he saw the roof. But the first thing, there's a roof there for almost 20 years. The second thing that the inspector told me to move my shed six feet away from the rear line. But that neighbor actually on the side, there's no house behind my backyard. So that neighbor in the blue house actually on the side, but in the back. So if I move forward my shed, that neighbor will see much more roof. So the inspector's order doesn't solve the complaint, but it's worse than it. So just make that neighbor complain to see more roof. Plus, so it's winter now. So and it's not easy to move that shed because it needs a foundation. So for this shed, the foundations stuff almost cost me 10K. And then not to mention the building app like they charge me over 5,000 just to build it up. I ordered the kit from the, it's like a shed kit from the Home Depot. So just put that together. And also actually I consider about my neighbor's fence. I actually cost spend almost over 1,000 to build a gutter. So make the shed, make the water actually collect the water and redirect the water to the away from my neighbor's shed, neighbor's fence. And actually all the way to the furthest point into my yard. It's cost me over 1,000 for doing that because I don't want my, I mean, water from my roof actually damage my neighbor's fence. It's cost me over 1,000, which I actually can buy a brand new plastic shed. So it's really, it's just a shed. I mean, it's replaced my old shed and there's a big fence around it. It doesn't affect my neighbor at all. And there's no house issue, no safety issue. And it's just a shed, seriously, a shed. It's so simple. And so because it's cost so much money to build that shed, it's not easy to move that shed, especially now the wintertime, the ground are frozen. And just very practical, very difficult. And also it's really a necessary hardship because if I move my shed forward six feet, I mean, that neighbor in a blue house will see more roof. It's really doesn't stop anything, but it just worsened. So I just request the relief from this order because it's just giving me a necessary hardship and practical difficulty. And lots of financial also lots of the, I mean, financial money too. So plus doesn't really solve any complaint. It doesn't really, the only complaint is because my neighbor say the roof. I mean, it's nothing else, but just order, if I obey the order and it doesn't solve the complaint and worsening. So it just doesn't make sense. So I just request for the relief for this order. Okay. I'm gonna go ahead and just show the, this is just the map of the area. So this is the property of 186 Overlook. And so the current, the shed's not actually straddling. This is, it's actually within the property. Is where the existing shed, the prior shed, excuse me, the prior shed was. And as you could see, there's houses, there's a budding house, properties on the other sides. And then this is an image from, this is from Google. So it just shows you, so this is that the initial shed that was there prior. Right, right, right. In the back corner of the lot. Yeah, it's falling part of the 20 years, yes. So I put a new shed exactly at the same spot. Yes. And then, oh, they're just sharing the right thing already. So this is the new shed was put up. So as you can see, it's right on the property line. It is larger than 80 square feet, but less than 200 square feet. Right, right, right. But it's, and it's taller than seven feet. It's just a kid, he'd come with this. Right, so that's just an image of it from, so you can see how much of it's exposed over the fence. So third image, oh, sorry, there's a third image. Yeah, so that's another picture of the shed from the yard. And then let's go to the, so this is the, I just wanted to go to the zoning by-law on this. So in the definition section, a shed is defined as an accessory structure, not greater than 80 square feet used for the storage of tools or equipment. So this is larger than 80 square feet. So it doesn't, so by the definition, it doesn't really qualify as a shed. It's more just sort of a larger accessory structure. And then an accessory building or structure is building the use of which is customarily incidental to the principal building located on the same lot and as that occupied by the principal building. So it is considered an accessory building in the by-law. So accessory buildings and other structures in residence districts, a minor accessory building shall be exempt from the side and rear yard requirements. It's said building dimensions result in a gross floor area of not more than 80 square feet and a building height of not more than seven feet. So as I've just stated, this is larger than 80 square feet and taller than seven feet. So would not be a minor accessory building. And so we go to the requirements for the district. So accessory buildings or structures need to be at least 10 feet from the front yard, which this obviously is, but the side and rear yard setbacks are six feet in both cases. And as an accessory dwell structure, greater than 80 square feet, it's allowed to be up to 20 square feet in height, but because of its proximity, it's the issue is not the height in this case. It's the location being closer than six feet to the property line. So I think that was a little bit over there in the 65. And so the other question is, would it be a garage? But private detached garages don't need to be conformed to the setbacks, but they have very specific requirements for fireproof construction, which is that type one, type two construction, which allows them to be constructed closer to the lot line. And then as I stated before, the state building code has no requirement for a building permit if it's under 200 square feet. So I think we're also gonna, we can sort of see that this building is not built to the, to what the zoning code requirement is. And so I would ask that, let me go ahead and stop share. And then questions or comments from members of the board in regards to sort of the nature of this shed and the statements brought forward by the applicant in regards to potential hardship of relocating the shed from its current position. Mr. Chair. Mr. Hanlon. A couple of things. One is that narrowly the first question before us is whether the building inspector's determination is in accordance with the bylaw. This isn't a discretionary thing where he can apply the, apply the district regulation on page 515. I think it is of the zoning bylaw. If it seems like a good idea or you can easily excuse it, there's a requirement that it be at least six feet away from the relevant property lines. And that requirement is not met. And there's really nothing that Mr. Champa could do about that. Even all of the things that Ms. Cain mentioned are things that have to do with an unfortunate series of circumstances, but they're not things that would justify or that would enable us legally to override the determination of the building inspector. There's no real discretion there. It is possible and is sometimes done. And we I think have got the legal authority to sort of change this into a variance application and say, well, it doesn't meet the zoning bylaw, but there's some sort of an unreasonable hardship there. In some places, practically every variance comes up through an appeal to the building inspector. So that isn't necessarily a crazy thing. But in that situation, you'd have to meet the criteria that are for variance under state law. And while I think that there certainly is a great deal of hardship there, it doesn't come from the topography, soil conditions or shape of the lot. And so it would not really avail the appellant for us to go in that direction. The state law doesn't allow for that kind of relief. I feel sort of sorry that we're in this situation. I would like when Mr. Champa addresses this, as I assume he would soon, is to understand better that if the state building code doesn't require a building permit, the way in which a zoning requirement of this kind is actually enforced. If one is assuming that there should be some sort of a permit or some sort of a review that enables people to present this in advance to inspectional services and determine whether or not this is a lawful change. And I'd like to know a little more about how that's done. Although I'm not sure that it would make any difference in either of the questions before us, which one is Mr. Champa right on the law and the other is if he's not right on the law, would this be a circumstance in which a variance would be appropriate? And I think both of those are determinable largely without have nothing to do really with prejudice and have a great deal to do with just what the law says. With that, I would ask Mr. Champa if he could go ahead and address the questions raised by Mr. Hanlon. Sure. So it's challenging when there's not a building permit required for work to be done. We do have handouts and guidelines, the guidelines on the requirements for different size accessory structures, et cetera. But often is the case that we're not consulted because a building permit is not required. The guidelines that we have, the handouts that we have specifically state that anything over 80 square feet or taller than seven feet, we require a plot plan to show the location of the structure. We didn't have the opportunity to have those conversations with the applicant and weren't called until the shed was almost, well, the accessory structure was almost completed. So it was just, it was an unfortunate situation. Mr. Chairman. Mr. Hanlon. One thing just to be really clear about this is that with the complaining neighbor, whoever that was, has every right to complain, of course. But the issue here is not his or her interest. Once it's come to Mr. Champa's attention, he needs to just apply the law. It is, it would be nice to think through some improvements to procedure to avoid the situation coming up that came up in this kind of situation. I don't know whether there's anything really that can be done about that. But it is unfortunate that the appellant is in the situation that she's in. But I'm not, I don't really see the relief that we can, any relief that we can provide to her. Mr. Chairman. Mr. DuPont. So I do have a question for the appellant and it may not be all that relevant, but is this something that a contractor constructed or is this something that the homeowners did themselves? Okay. I heard the contractor. The contractor says it's fine. It's abided with the building code. So that's my, I actually had two contractors, different contractors, they both said it's okay. Because I don't have the house behind my backyard, technically no setback requirement. So, my contractor said it's okay. That's why it doesn't require permit and the state law. And I checked the online building code about Arlington doesn't mention anything about the shed. And we never get informed about the towns by law about the shed. And I never get informed about that this way. So we just go ahead, just the contractor just started. It's a kit, it's bought by from Home Depot. So they simply just put it together. They're not really just cut wood or something. They just put it together. If I may then, so did the subject of the setback come up and the contractor then said that it met the setback requirement? Yeah, this is fine. That's what they told me. Because I would say to Mr. Champa, I mean, my thinking is, and I agree with Mr. Hanlon, I'm not sure what relief we could offer, but it strikes me that people who put up fences or sheds or those sorts of things in town would ordinarily be tasked with knowing what the setback requirements are and or if there are setback requirements. And so I don't know what the solution is to make sure that people who are doing whatever they're doing without building permits are made aware of the fact that there's still a setback that has to be considered. But it does strike me that this may have been a missed opportunity for somebody to have actually looked into this more carefully on behalf of the homeowner. But Mr. Chairman? Mr. Hanlon? I just built on that for a second. It sounds to me, I mean, the reference to not being a setback because there's no house behind. Of course, whether there's a house behind actually has no bearing whatever on the zoning bylaw. The setback is there whether there's a house or not. I have this vague sense that whether there's a house nearby may have some significance under the building code and have the general feeling that whatever advice contractors gave or contractors relating to the state building code and they were not familiar with or were not focused on the zoning bylaw. So I'm not sure Mr. LeBlanc knows a great deal about the building code and I'm not quite sure where the business about having a setback with respect to a house behind you comes from. But I think the difficulty is often the case that contractors don't necessarily understand the local zoning bylaws. They understand what they need to understand about the building code, but this is not a building code issue. Thank you, Mr. Hanlon. Are there any other comments from the board? Seeing none, I'm gonna go ahead and open up this hearing for public comment. As said before, public comment is taken as it relates to the matter of hand and should be directed to the board for the purpose of informing our decision. You may, if you're calling in, you can dial star nine. If you are online, you can use the raise hand button on the reactions tab. Are there any members of the public who wish to address this hearing? Mr. Moore. Yes, thank you, Mr. Chair. Steve Moore, Piedmont Street. Just one question. I was reading the materials that support this and I had a question. I wanted to ask a question of the app appellant. It looked from pictures that one of the, a butter submitted that another shed is built and being built in the opposite corner of this lot, also up against the property line. I guess I would at first ask, is that true? Oh, I think she froze. I think her window froze. Yeah. Give a second for it to clear up. Uh-oh. Oh, there you go. It's coming. I'm so sorry. Your window froze on us for a bit there and it put you back into mute. So if you could go ahead and unmute and respond back to that question, I apologize. Okay. Okay. So I do need, I'm just saying the only, I have one little shed, one little bigger shed to put out together the size, only one fifth some in my basement space. I have living here almost 20 years in my basement full of junk, but some stuff like key stuff, I don't want to throw it away. So I just, I just wanted to put it somewhere as a memory. So this is why I need, I do need the space, but they are both the shed key. I ordered from the Home Depot and I hire two actually different contractors. One is through the foundation and the one just put them together. Both of them told me it's okay. I actually, I do ask them, is this a building, it's okay with the building code? They said both of them say fine and two different contractors. So that's why I check online said it's a state law, Massachusetts state law said and there's 200 square feet doesn't require permit. So and the building code of the Arlington doesn't even mention the shed. So that's why I just go ahead do it. I didn't even, I mean, I didn't expect such a thing happen. And also then only my neighbor's complain is only because he saw the shed, the roof of the shed. It's really no other serious issue about the safety or house or something like that. Just so he saw the roof, but if the order of the inspector will make that as I said, if I move it forward to six feet we'll worsen the complaint of the neighbor because the neighbor can see much more roof because much more, because he's kind of behind on the side. If I move forward to the shed and they were against the more roof. So it's a worsen the complaint. So is it just the one shed or is there a second shed that's being? No, second and not even put up yet. Okay. Second is a small one. And when they stop then the second one doesn't even get a chance to do that. Okay. Thank you, Mr. Chairman. Mr. Hanlon. Since we don't know anything about the second shed it's entirely possible that the second shed might be under 80 square feet. In which case it would be a very different case. So this is not really before us. Mr. Trump hasn't made any orders with respect to that. But there is an option if an 80 square foot shed will be a value then the position 5.3.13 would excuse that from compliance with the setback requirement. As long as the height was reduced. As long as the height was, well, yes, right. As long as the height was reduced. Mr. Chair, Mr. Moore. Yeah, I understand that. Had we not had the frozen time there I would have mentioned that as well. I understand that the size of whatever's going and it's not even before tonight but I was going to ask Mr. Champa based on whether or not that was a second shed going up about what the limitations of that would be. And I think he probably would have echoed what you just said, Mr. Hanlon. So anyway, that's enough. Thank you very much, Mr. Thank you, Mr. Moore. Are there any members of the public who wish to address this hearing? Seeing none, I'll go ahead and close public comment for this hearing. So the matter at hand before the board this evening it is an appeal of the decision of the building inspector. The decision that the building inspector has directed the appellant that the shed that was constructed is too close to the property line and this is not compliant with the zoning bylaw and has directed the appellant to comply with the zoning bylaw which would require either relocating the shed or some other modification in order to comply with what the zoning bylaw requires. Are there, and as we've been discussing we had read the sections out of the local zoning bylaw in regards to sheds and accessory structures. We've had a comment back and forth. Is there any other questions or comments from members of the board? Seeing none, I think has been put forward unfortunately for the appellant I think the zoning bylaw is fairly clear in what's required and it's unfortunate that the contractors with who you relied upon were ill-informed about what the zoning bylaw requirements are for the town of Arlington. But as Mr. Hanlon has said, the board does not have a lot of discretion in terms of not enforcing portions of the zoning bylaw or we are required to enforce the zoning bylaw and has been put forward by Mr. Hanlon that our other option would be to consider a variance which would be the legal method for doing something different than what the zoning requires. But the first, there are four tests that are enshrined in state law. And the first is that there is some unique condition relating to the lot, to the soil conditions, to the topography or to the shape that would preclude abiding by the zoning bylaw. And as we had shown at the start, the lot, it's a rectangular lot, it's fairly flat. And so there's really, there's not a way for the board to adopt that first charge, that first finding that we would need to make. And so I would ask the board, but I think that I would put forward to the board a motion to deny the appeal of the decision of the building inspector. Second, if that's the appropriate. Thank you, Mr. Hanlon. So this is a roll call vote of the board. The motion is to deny the appeal of the building inspector in regards to 186 Overlook Road. Mr. DuPont. Aye. Mr. Hanlon. Aye. Mr. Holley. Aye. We'll go with Ms. Hopman. Aye. And the chair votes aye. So the appeal of the building inspector is denied with apologies to the applicant. I know that's not what you were hoping for, but unfortunately the zoning bylaw is clear in this regard. Mr. Chairman. Mr. Hanlon. One of the things that we ought to take into consideration, not in deciding this case, we've just decided the case, but in terms of, what went wrong here? When the chair first set this with the legal framework all out and started with the definition of a shed, that then word never really came back into play. Whatever use it is to define it in the bylaw, it was never referred to as sort of somehow something different from an accessory building. I convinced that Ms. Kame had no idea that what she had was called an accessory building for purposes of the zoning bylaw. And I'm sure that a good portion of the 45,000 people at Barlington don't have any reason to know that any better than Ms. Kame did. It's, you have to live with the bylaw a while in order to understand what the right categories are. There may be ways of making this clearer to learn from this sort of thing, but again, it's really important that the people whom citizens, residents ask to help them just need to understand what the underlying rules are and those are gonna vary. I don't think that there's anything particularly Arlington about the concept of an accessory building, but ordinary people just don't have a reason to know that language and the people who are in the business too. Thank you. I have my post-it note to talk with. See if there's a way that we can try to publicize this better with these requirements. Okay, with that, that item is, so now we move back to item number six, our agenda tonight, DACA 37799 Morton Road. If I could ask the applicants to introduce themselves and tell us what they're proposing. Hi there, thanks for having us tonight. I'm Kate Gregorio, my husband's also on the line, Anthony Gregorio. We live at Nine Morton Road. We started a project because we need additional office space to work from our house with our growing family and we looked into building a structure in our backyard that we could use as a quote unquote backyard office. We spoke to Colleen who is incredibly helpful in helping us figure out what we were trying to do and she suggested that we actually look into the building code for an ADU. So looking into that, we realized that we could not only potentially build ourselves a backyard office but also a dwelling unit in which any of our parents may be able to come and live with us at some point. Should that be a need, which is something we are very much living with as a sandwich generation, if you will. And so we looked into how to do this and we'd like to do it through a company who builds backyard offices. They are not a general contractor, which is why we've filled out this permit application ourselves and done the legwork ourselves. So apologies if anything is out of place. Happy to adjust as needed. But what we'd like to do is build a 10 by 20 unit which meets I think the ADU definition because we'd like to include a bathroom in it and electricity. And due to the shape of our lot here at Nine Morton Road, the back of the lot narrows to 27 feet in width. And so it'd be really hard to fit that 20 foot wide ADU in that area if we had to abide by the six foot setbacks. And what we would end up with is three and a half feet approximately. So we have applied both a special permit and a variance application. I think we now have submitted through the application process. And the main reason is everything else about the ADU and our open usable space falls well within the ADU guidelines. So really the only variance or special circumstances would be those setbacks. And so that is why we are here today. And Christian, if there are any additional images or plans that I can pull up on my end that would help illustrate. Just let me know and I'm happy to do so. Great, thank you very much. Go ahead and share. So this is the location here on Morton Road. And as the applicant described, their lot is oddly shaped. And so they are looking to construct here in this rear portion. And so one can see that this is sort of the portion, it's where the backyards all come together. So there are no other residential structures immediately adjacent in this area of their site. This is a revised plot plan that's been provided which shows the location of the structure here at the rear of the lot. So it's four feet off the rear lot line, four feet off the sideline, located here at the very rear of the structure. And this was the provided rendering of the outside of the proposed accessory dwelling unit. Are there any floor plans of the building or any plans with dimensions apart from just the current size listing? We have a floor plan that we have literally drawn ourselves in PowerPoint that we'd be happy to share. It doesn't have very specific dimensions, but I can pull it up nonetheless. And I have one other image that might be useful, so let me get those for you. Yeah, so Colleen, if you can give her the permission to share. Okay, so this is what we're looking at in terms of how we're going to use the space. So 10 by 20 with the bathroom aligned to the left hand side was just a toilet, a stall, and a sink. And then sort of a couch and a table and a sort of kitchen counter area. So pretty simple small space, but we're trying to make the most of the potential uses for it. And then I can also share, I thought this might be interesting to see just where, given Mr. Moore's comments and questions, we've also been thinking a little bit about the plantings and the bushes and such that are in and around the property. And that's one of the reasons that we kind of wanted to nestle it back here, because we have some. Sorry, we're still unfortunate. We're still seeing the floor plan of the. Oops, let me stop. I think you need to. No problem. There we go. That's kind of what we wanted to nestle it back here in this corner is because there are several nice big trees in the area that we don't want to mess with, obviously. So I thought I'd share that too. Oh, great. Thank you. How does one get from the street to where you're proposing? The primary way of accessing will be through, you know, coming out of our back porch. We have a patio here and we'll probably put in some like little pavers just back along here. If there is some sort of requirement to have a path from the front, we do have a path already that comes just to the edge of our fence, which is located here. And we could continue that path if that was a necessary thing. Okay. Yeah, I don't, unfortunately, I don't know if that's a requirement or not. But just I just wanted to make sure because it is located so far from the, from the street that they're, you know, that should emergency services need to access the building that they have a path that they can get there. Understood. Yep. I think just in general, just for, so should the board approve the project? One of the things because it's a special permit that needs to be registered with the Registry of Deeds. And so you will need to provide a certified plot plan with the location, final location of the building as a part of that application to the Registry of Deeds. So just let you know about that. Okay. So we'd have a new inspector come out and do a certified plot plan. So I think, yeah, so you need to have the survey or just survey. Survey, sorry. Survey it. And then one of the boards, I think this, I think it's a question, probably more for the board, but does the, does the board feel comfortable with the level of detail we have on the proposed building to proceed to a decision or does the board feel that it needs more detailed drawings that we can approve and then that the, that the building department can follow going forward. So that that's just something for the board to keep in mind. So if I could ask you to go ahead and close the share and then I will ask members of the board if they have any questions or comments for on this application. Mr. Chairman. Mr. Hanlon. So I wonder if, if Mr. Gregorio can explain a little bit more what they imagine the use of this building being it, it seems like it will be for the foreseeable future and office and might eventually be used as a residence if the circumstances should arise. But I wonder if there's any more specificity that you can provide to that. Is there any certainty that this will ever be used as a residential unit? Yeah, sure, of course. Can't say for sure, you know, but right now, let me back up. Immediately upon construction, it'll be used as a daily office for either my husband or myself. We both work full time from home. We work, you know, it's just an office for us in our computer. It's not for anybody coming to it. It would just be for us. And that'll be the primary use case. But by installing the bathroom, what we think we're doing is giving ourselves leeway for if and when either one of us may have a parent who may need to come live with us. I have a mom who is on her way to being unable to live alone by herself. And I would love to be able to offer this for either a short time period or an extended time period. Should that become necessary? I hope that's not the case. But you know, can't say for sure. Thank you. Are there any questions from the board? Mr. Chair? Mr. Lank. I guess kind of going to your point about, you know, just kind of looking at the definitions we have for an accessory dwelling unit. And do we have enough information in front of us to, you know, make that decision? So one point I get hung up on when looking at the information that we have so far in front of us is the final bullet point under the accessory dwelling unit. Part of the zoning bylaw, so 5.9.2B1, the final bullet point there, just about it complying with all of the state building codes and for both the building code and the fire code. Just with the information we have in front of us, I don't, you know, that's obviously from Mr. Jopoda and the building department to determine, but I'm not sure that they would have enough information with what we have to make that determination, especially with the building being closer to the lot line. I think of, you know, the other part of our zoning bylaw for garages that we have with the type of construction for a more fire rated construction since they're typically closer to lot lines. You know, just thinking about that part of the bylaw as well. And that, you know, very much in favor of wanting to do this, just kind of go into your point of the, do we have enough information in front of us. Great, thank you. Mr. Chairman. Mr. Hanlon. I'm in the unusual position of being concerned about this application when, with 80 huge applications generally, I seem to, I have a tendency to be the other way. I'm concerned about whether this is in fact an 80U. And so going back to the definitions, an accessory dwelling unit is defined as a self-contained housing unit, inclusive of sleeping, cooking, and sanitary facilities on the same lot as a principal dwelling. So it has to have all these other things, the sleeping and cooking and sanitary facilities, but you can have lots of accessory buildings that have all of those things. And that doesn't make them accessory dwelling units unless they're actually being used as a housing unit. When you look at the definition of a dwelling unit, it's a separated portion of a building containing living, sleeping, housekeeping, accommodations, and sanitary facilities for occupancy by one household. But this, the only occupancy that is reasonably certain here is occupancy by the residents of the principal dwelling. So I wouldn't want to be in a situation where we're so liberal about what an 80U is, that anyone who wants to build an office or an art studio or whatever could build an accessory unit, put the stuff in the back with this thought that maybe if they're old like me, we don't have parents anymore, but we could get a student or a caregiver to eventually come in if we need it, but it's all speculative and what it really is is an office. I'm not sure what I think about that, but I wanted to raise that with the board and to see if others have some concerns that this is maybe stretching the 80U ordinance a bit far. Mr. Chair. So, LeBlanc, why don't you go ahead? Okay. I kind of agree with Mr. Hamlin on that. And I think that's kind of where I was starting to go with my previous point. You know, just with the things that we've seen, I'm not sure if it really meets the you know, what a dwelling unit should be. And there might be maybe other options to look at if what you're really trying to get is, you know, a separate space for an office or something. Mr. Chairman, if I could just point out that it may very well be that if we decided that this, that the 80U ordinance didn't apply, that this is actually an appropriate case for variants after all, at the very least that what we're dealing with here is the potential of the shape of the lot being significant. And that is a first step that often people can't take. So I'm not sure that we would have to say no ultimately to building this building or building it where it is. If we concluded it wasn't an 80U, I'm just perplexed about this. I'm not going to be an advocate one way or the other on this, but I'm a little bit concerned about the precedent that it sets. Ms. Hoffman? I was just going to say that it also feels perhaps like it's not an 80U to me. But in addition to that, coming to the point that maybe Mr. Hanlon was just coming to about the location of the structure, I have another concern with regards to the variants. And that's with regards to the rear setback. If we look back up at the plot plan that was showing the dimensions, I think are we seeing a 3.5 foot setback on each side? It's definitely four at the side. That's four to the corner, but I think on the application it says 3.5 to the possible that this diagonal here would be tighter. So on the application, I think the rear setback may be 3.5, perhaps the applicant could confirm. Yeah, this particular site plan was something we had drawn up before we found our certified plot plan to include with the application. So this is actually out of date. We don't have, yeah, so basically the back width of the lot is 27 feet and the building width is 20 feet. And so that's where the 3.5 on each side number came from. Understood. Actually, it was helpful to have that plan up for me to complete my point, which is that it seems very reasonable to me with the odd shape of the site that you would need relief for the both side setbacks, but it's not clear to me that the rear setback couldn't be 6 feet if I'm just looking at this plan. Is there a reason that the... Yeah, our primary reason is because there's a couple of trees that we don't want to have to take down for, well, there's a couple of trees and bushes and other kinds of landscaping that we don't want to have to move, but primarily we just... We want it to be kind of tucked away and not intrusive in the yard and not intrusive for the view of our neighbors, not just not as close to the homes that are in the area. That was the primary initial reason, but you're right, there's no structural reason or a lot line reason. One other small thing is that the slope of our land, that's the highest point in our yard, and according to the plumbers that we've been talking to in order to plum a toilet out there, we need to have a certain slope meet from where the 80 or building is to where it connects to our sewer, and so the further back up against that hill we can go, the higher the more likely we'll be able to meet that slope, but that's sort of a sub point. Okay, well, I think that answers my question, except for maybe I'd be curious to see, and apologize if it already came up in the application materials, where the trees of concern are located exactly, if it would be possible in any way to move the structure forward without disrupting them. Yeah, I can go back to sharing that one. Yeah, if you could show that again, please. No problem. This is sort of, we'll have to remove a couple of bushes, but right now there's like a wood shed that's back here that we'll just tear down and a big boulder that we'll have to move. And then we're trying to keep a lilac bush that's like right here, and then these are other types of shrubs, bushes and trees. So that's why we're not proposing that we just like put it, you know, 90 degrees to where the proposed is on this drawing. Mr. Chair. It's happened. I think this plan is helpful, but it doesn't necessarily confirm that it would be impossible to comply with the six foot sat back in the rear without disrupting trees. So it might be useful to have a little more clarity around that. It might be possible to rotate it 90 degrees and sort of set it six feet off. It would fit six feet off of all the lines if it was rotated. Uh, like putting it here, basically. Yeah. Turned and put there, then it would be it would be an accessory. Sure. And it would be the setback requirements. We may be able to do that. I think like, you know, aesthetically for our backyard and, you know, we're very visible. Yeah. Well, ish to our neighbors. We're just trying to keep it tucked away right now. This is sort of like unused space. We have two little kids who play in the yard here. They have a little climbing structure. The neighborhood is full of kids who are constantly in and out of each other's backyards. We're just trying to maintain the sort of backyard play space. Um, I don't think that we would go through with it if we had to put it here, but totally appreciate the feedback. It's totally valid. And we can definitely experiment with what, what it would look like if we put it a full six feet from at least the backline, which would also put it a little further from this line as this angles out. Happy to look at that. Thank you for, for sharing that. Um, I mean, I guess I sort of put for the question, you know, what, if it's the accessory dwelling unit and it's set, it meets the requirements as an accessory dwelling unit, but it is not rented. Is it still an accessory dwelling unit? Um, could I ask if there's a different kind of structure that we should have applied under? At first we're looking at book building a shed. Um, so maybe we go back to building a shed. Um, because sheds have electricity and that means we don't have the bathroom. I don't know. Um, so the, the definition, so the, the limiting factor for a dwelling is, is a stove. It was my understanding. So if it doesn't have a stove, it's not a unit. Um, so you can have a garage with a, with a restroom in it, that's allowed. Um, but you couldn't have a garage with a kitchen. Um, and this, the stove being the defining characteristic of a kitchen. So in theory, you could do that. Um, but then it would not, it would not be a shed because the shed is 80 square feet or less. Um, but if it's up to 200 square feet, um, it would just be an accessory building. And as such, it needs to be sick. The only setback requirement is six feet off the rear and inside. Um, and so I think that you could, if it didn't have a kitchen in it, then it could be considered an accessory building, but you would have to manipulate it so it is not within six feet of the property line. Would we be able to apply for a variance on that? If it's, if it is less than, if it's less than 200 square feet, less than, I think it said, 20 feet in height and six feet off of the lines, I think you can build it by right. As you would not need a variance who would not need a special permit, you could just build it. But you, um, that I would absolutely have you confirm that with the, with the building inspector. Um, I think the question you were asking for, forgive me, chairman, Mr. Chairman, um, I think the, uh, what Kate was asking, um, was just whether we would have to, whether we could apply for a variance, um, on the side setbacks, um, if it's, if it's, if the application is for an accessory building rather than an accessory dwelling unit. Um, certainly. So there is a variance application filed. Um, and as Mr. Hanlon said the, the, there are different criteria for variance and one of them has to do with the shape of the land and whether there is something about the shape of the land that leads to a hardship. Um, and that's something that the board would have to have to consider. Um, so I, at this point, I think it would be helpful if to open up for public comment just to see if there's other, if there are other people who wish to speak to this. Um, so as we said before, um, you know, open the meeting for public comment, public comment is taken as it relates to the matter of hand and should be directed to the board for the purpose of helping inform our decision. Um, the, if you are calling in, you can dial star nine. If you are on Zoom, you may press the raise handed button on the reactions tab. So with that, we have Mr. Moore. I thank you, Mr. Steve Moore, Piedmont Street, not wanting to break my perfect strings of commenting on every single case. I figured I'd have something to say. Um, I want to, I want to thank, uh, Ms. Hoffman's, uh, for her comments about, about the trees and the locations. I think that was very thoughtful. And, um, I had similar sorts of thoughts about, uh, the movement of it and protection of the trees and the like. And also, um, Mr. LeBlanc and Mr. Hanlon, I love the way the board always thinks its way around corners. It was great to hear their input as well. Um, my point, I, I mean, I would just offer an opinion here, uh, and that's that a lot of this would not be an issue if this was simply rotated 90 degrees, moved slightly away from your plot line, uh, put as close to the, um, the plot line that is the, the trees on the other side of it. I believe they're owned by the owners, the property owners on the other side of the plot line. Um, and the space that then would not be occupied by the, uh, ADU would now be opened up for a child play, play, space. It would require a redesign of their, probably their backyard to accommodate what they want to do with play space and use of their lot and such. But it would not be very hard here to, uh, to, to nestle this a little bit less, but only a little bit less, still use that corner, odd corner of the property and actually be able to build it by right as, as the, as the chair already mentioned. Um, it really wouldn't be that hard to make this accommodated, uh, accommodated not by the zoning board, but just built by right. So that's just my, my rough opinion. Thank you, Mr. Chair. Mr. Chair, you're muted. Thank you very much. Are there, other members of the public who wish to speak to this matter? Seeing none, I'll go ahead and close public comment. Um, so I think there's a couple of questions before the board and, sorry, I think my question back to the board is, do we have, you know, do we have enough information at this time to move forward or do we, are there questions that we need answered? I think the, the question before, about whether or not an excess, whether this would be an accessory dwelling unit, if it was constructed as one, but used as a, an office, would that go against the intent of the, of the zoning bylaw? Does the zoning, would the zoning bylaw allow that occupancy of the, of the unit? And then based, I think on that question, then other, then we can have sort of the idea about, you know, do we, does, do, do they need to seek a variance for constructing an accessory building in the location it's in? Or would it be worthwhile to, to rotate and relocate so that it would not need to meet the setback requirements and could also, would then also have to, have to be constructed without a stove. So that would not be a dwelling unit. Well, Mr. Chairman. Mr. Hanlon. I think that, that you've stated the issue well. I think the part of the problem, however, would be if, suppose we, suppose it was decided, I mean, again, my concern has to do with the language that it has to be a housing unit. And that means inclusive of these various things, but it has to be used for housing. And to be sure that doesn't mean it only has to be used for housing or, or there's no, any period, but there's no definite plan here to ever use it as housing. It's just a contingency. And that's, to me, that's what's giving me some difficulty in applying the definition, the definition of the dwelling unit is for, is a residence for a household and there's no household that's proposed to be, to be put in here. So that creates a difficulty for me. I'm not sure how I feel about that. But I'm concerned about it because I'm concerned that, that anyone who has, wants to do an accessory dwelling unit for any purpose and wants to get closer to the, to a lot line would be in a position to say, well, I could eventually use this as an ADU. So that, that's that. If you were going for a variance, I think you do have an issue with the shape of the lot that, that constrains certain options. I think that the unwillingness that then the question is whether, whether that would occasion an unreasonable hardship, whether you could move it someplace else. And, and yes, it's physically possible to do this. You could stick this right in, right up next to the house if you wanted to. But the question is whether the solutions involve an unreasonable hardship and Ms. Hoffman's questions, I think, were related in, in part to that and Mr. Moore's comments, how easy would this be to do and what other sacrifices would have to be made in order, in order to do it. So the structure, it's always hard to get a variance, but, but at least here you have, at least in my view, some elements that we have working for this. But I think we need more information to actually evaluate whether, whether the ways in which you could, you could get around this and put this in here and observe the six feet, whether those are, have disadvantages that would prevent this from being an unreasonable hardship or not. Mr. Moore expressed the opinion that this would be relatively easy to do, but also only if you completely redesign your backyard. And Ms. Hoffman has raised some other questions about that, and we don't really know exactly what the trees are that are there. So I'm not sure how I would feel about that, but, but, you know, that sort of is the way one can do it as a variance if you were able to make that. In my personal view, and I'm, I'm probably one of the hardest people on variance applications on this board, but I actually feel a little bit more comfortable with the variance analysis than I do if the facts are right, than I do with the ADU, which seems to me to open up the ADU by law to potential for abuse. I'm not saying that this isn't abusive particularly, but, you know, if this got to be a regular thing for accessory units, it could be a problem. So I don't know. I just like, I think that having enough information about what it would be, what would be, what would be the downside? Where are the trees? What is, what does you actually lose? What do you lose in terms of the ability to use your lot in the way that that is sensible and intended? If that added up to something, then I think that, that I'd be attracted by it. But, you know, I, again, I'm, I'm, I'm not, I don't feel, I'm concerned about this, but not, not enraged or excited about it in the sense that I feel like this has got to happen in a certain way or not. But I think that we need to be building for the rest of, for the future here. I mean, to play doubles advocate. So I have a two family house. If I live in one of my units and I use the other unit as a home office, is that still, is it no longer a two family house? Because I'm not using the other unit for a residential purpose. I don't think that would be the case. But the use classification should not change, the ADU should not change the use classification of the property too, right? Right. Right. I don't know. Just say the dwelling unit definition says a separated portion of the building containing living, sleeping, housekeeping, accommodations, and sanitary facilities for occupancy by one household. Yeah. And what you're saying is, well, suppose I don't choose to actually, I still leave it the way it is, but I choose to use it as an artist's studio or whatever. Does that mean it's not for occupancy by one household? It seems, I mean, I'll leave that up to Mr. Webster to figure out what that is. I don't think anyone is really contemplating this. This is Gregorio. You have your hand up. Yeah. Thank you. I just wanted to clarify that we are entirely happy to remove the ADU classification. We don't need this to be an ADU. We thought that it might fit squarely into the guidance provided for ADUs, but if that's not the case, we can entirely remove, take that off the table. We're happy to reapply for variance as an accessory building. The bylaws are definitely a little challenging to understand as a common citizen. So we latched onto that because we thought it made sense, but it's not a requirement for the project at all. Mr. Chairman, just to, I wouldn't be precipitous there. I leave both options on the tables until we are able to proceed. You can leave them. I mean, the building, the building is actually one thing or the other, right? But you have to sort of decide which way you want to go, but I wouldn't necessarily make a decision now on one thing that maybe others members of the board are attracted to in order to take a road on a variance issue, which is always a little bit harder. So just move it all before us and let us work it out. Yeah. So say, do you suggest that maybe we need to have a sit down with the zoning enforcement officer and sort of discuss how this should be considered? Yes. Okay. Are there any other comments from the members of the board? So I think with the applicant's permission, I think the board would request a continuance so that we could have that conversation with the zoning enforcement officer and sort of clarify exactly how we need to categorize this. So we're sure we're making a decision that, you know, that that is the best interest of all parties. The next scheduled hearing we have is Tuesday, February 13th. Is that a date that's available for you? Forgive us just confirming. Yep. No, absolutely. Yes. Absolutely. Yep. That should be okay for me. Okay. For us. Yes. So then with that, I would recommend that I would then move that we continue the hearing for 9 Morton Road to Tuesday, February 13th at 7.30 p.m. Second. And then a vote of the vote of the board. So Mr. Dupont had to leave us. Mr. Hanlon? Aye. Mr. Holly? Aye. Ms. Hoffman? Aye. Mr. LeBlanc? Aye. Chair votes aye. We are continued on 9 Morton Road and we'll have a conversation with the zoning enforcement officer and get to the bottom of this and get back to you as soon as we're able. Perfect. Okay. Thank you so much. Thank you both for your time. Appreciate your time. Mr. Chairman, thank you board members. Thank you and I'm sorry for having one last clarifying question. Please. Mr. Hanlon, I think you mentioned additional clarifying information that would be helpful. I just want to understand if that information would be helpful before the next hearing on February 13th or whether that's information we would follow on with after you have the opportunity to sit down with the zoning enforcement officer. So I think that we would meet with the zoning enforcement officer as soon as we can and get back to you. Right. If there's additional information that he feels will be relevant, then we can let you know while ahead. Great. Thank you so much. Oh, you're very welcome. Thank you. All right. Cheers. Good night. Good night. Okay. So this brings us back to item 7R and our agenda, docket 378-253 Lansdowne Road. First, appreciate the patients, the applicants, and if they could go ahead and introduce themselves and let us know what they're looking to do. Good evening, Mr. Chair. Can you hear me okay? I can. Thank you. My name is Bill Nolan from Savoy Nolan Architects. I'm here representing Tim and Becker Center. They're the owners of 53 Lansdowne Road. Also with me tonight is David Crispin of the BSC Group. He's our civil engineer and Russ Boussa of Starling Holmes Development Corp who's the general contractor. Is it possible for me to share my screen? Absolutely. Colleen, can you connect Mr. Nolan? Thank you, Colleen. Can everybody see the site plan? Yes. Great. So I'll just walk you through the existing conditions. So this is the existing site plan of the existing conditions. It's a small, cape-style single-family residence built in 1940. It's one and a half stories, contains two bedrooms, and it has about 1370 square feet finished living area. We're in an R1 zone. The property is 7,061 square feet with about 110 feet of frontage on Lansdowne Road. The building, the existing building is non-conforming with respect to the left setback and the front Lansdowne Streets here. I apologize. This will be the only plan oriented this way. So I'll draw it to your attention when we switch. But to continue, it's not conforming with the left side setback here which is three foot eight from this porch here and nine foot two from the front setback. I believe it's conforming with all of the respects to the dimension and density regulations. Here's the building here. I wanted to point out two other things. The existing driveway is very steep and very narrow. It's hard to park a car there and the garage is actually quite narrow too although they do manage to get a car in there. And I also just wanted to point out the, you know, this is the side setback here. We're very close to the fence which is essentially the property line. We're also in this next group here. This is the back of the yard. I had the clients take some pictures this morning or this afternoon just to kind of show the setback here of the existing house. This tree line right here is essentially the property line. It's a little bit further behind and you've got a series of two and a half story houses over here kind of flanking it. So one of the design request was not to not to get too close to those houses because they're already kind of approaching the backyard. Basic floor plans. I won't spend too much of your time on on these. I just got a small kind of narrow garage. It's only about nine and a half feet wide unfinished basement. You've got a bedroom on the first floor, kind of an open living dining room and a kitchen kind of tucked away here in the corner and a small mudroom. This is the front of the house here and this is the nine foot two front setback. And the second floor has a standard cape, no dormers. It's just kind of like a tunnel room. One big room here in a small room that's used as an office. It's listed on the property card as a two bedroom. I suppose you could argue that it's three beds. Moving on to the proposed conditions. What we're proposing to do is take down the house, take down the existing house and create a new single family wood frame structure. It'll be a two and a half story colonial style with four bedrooms and a single car underneath garage. In design we referred to the Arlington residential design guidelines to take some cues on the style of it and the architecture, obviously with the owner's project goals in mind as well. Some of the key things that we hit on is encouraging consistent setbacks with the neighbors entrance facing the street and a walkway from the driveway. I'll get into the design of it, but the proportion of the entry was also something that we paid particular time to kind of work out. I'll get into that actually when I start to show you some of the drawings. There'll be a small single car garage, more generous than the one that's there. It'll be comfortable to pull in a car, but there'll be a single car garage here. We're proposing to increase the size of the driveway to allow for two off-street parking spaces as opposed to the one that's currently available and even that one's a little sketchy because of the slope of the driveway. If I could just go back real quickly. This doesn't really do adjust this, but you can see it kind of a hump here. It's fairly flat there and it dives to get underneath the existing first floor. That's about a 10% slope, which is about the maximum that the code allows. In this effort, we're going to change that and we've actually got it down to a 3% slope, which is significantly more comfortable. We think that those are all good things, promoting off-street parking or encouraging more off-street parking. The other things that we're improving are regarding the dimensional setbacks is we're eliminating the non-conformity of the side setback, which is at 3.8 feet. We're going to make that conforming and we've got that slightly over the 10 feet. I've got it shown here at 10 foot 6 plus or minus from the side setback. That's a big win. We are asking and the reason why we're here tonight is we are asking for some relief on the front setback. We're proposing a covered porch and you'll see that in the drawings to come with a front setback of 11 foot 6 and the main building with a setback of 16 foot 6 where 25 is required. I reviewed the bylaws and met with the building inspector regarding the rear setback and there's a regulation or an exception in the table of dimensional requirements that allows a lot that's less than 100 feet deep to have a 20% so I've done the math on that and we've come up to be a rear setback of 12 foot 9 so we will be conforming to that. In fact, I believe we'll be conforming to every setback every section underneath the dimensional and density regulations including the yards, open space, usable space, landscape, all that with exception to the front yard setback which we'll get into. Floor plans here. Again, I won't spend too much time going through them. One car garage. It's going to be 14 feet wide so that'll be plenty of comfortable space to get a car in there and a little bit of a storage, bikes, things like that. There'll be a mechanical room back here and the rest of the basement with the exception of the mud room and bathroom will be unfinished, potentially finished at the later date. The first floor, sorry, entering through the mud room you come up to kind of an open area or guests will come in through the covered porch, into the entry, dining room to the left, open kitchen, living room space to the right, access to the backyard through a small covered porch down to a patio and a small little part of room off to the side. Sorry, I'm jumping around here. We're also proposing a bulkhead off to the back, which you see here. On the second floor, continuing up the stairs, we have their son's bedroom, his name's Luke, and this is also going to double as a secondary master. The centers are actually young now, but as you know, everybody's getting older so their primary bedroom we're putting on the attic level, but this gives them the option way down the road if they decide that they want to move down and not go up the extra flight of stairs to have the secondary master here and Luke reaps the benefits of that being the only child at this point. And then there's two guest bedrooms with a shared bathroom kind of tucked in the corner back here. They're also quite busy and they do work from home. I don't think it's exclusively at home, but they do work from home as a lot of people do nowadays. So we've provided an office and kind of this open loft area for homework, reading things like that, and then a laundry room. And then the last level, the attic level. And I did confirm with the building department and we are under the 50% rule for the second floor here will be just the primary bedroom. So the primary bedroom here with the balcony off of it to the exterior, beautiful views of Arlington down there. We have a walk-in and two walk-in closets, isn't her the walk-in closets and a primary bathroom. This space is really just the byproduct of a sloped roof. We're keeping everything under seven feet and it'll be unfinished. So this is an habitable space, therefore not included in the square footage calculation. However, because their intent is to use it for some storage, we do have a door off of the staircase to get in there. I want to fast forward through the elevations because I have models which I think are better to see the exterior on. And I can come back to them if there are any questions. The only thing I did want to point out is we calculated the average grade to be 220. 35 feet up would put a set about 225. We are proposing to get pretty close to the maximum there. It's customary for us to at least leave at least four inches just to give the builders some room. But the intent of this is to apply that we meet the height regulations. And the three-dimensional models which I think are a little bit easier to understand. So this is the front perspective of Lansdowne Street coming up. You'll see the garage there. And I know it's not quite easy to see in the models and in the picture, but this is a significantly reduced slope. Again, 3%. A little bit wider driveway. So again, we'll have three spaces for off-street parking. This is the entrance that we came up with. Again, trying to take cues from the design standards to have a front-facing entrance and kind of make a statement with it. However, and we spent, I spent a lot of the design time working with the centers to come up with a porch that is not overpowering but in proportion with the scale of the building. And I think we arrived at that. We're also obviously because we're asking for some relief on the front. Didn't want to get too big with it either. So trying to strike that balance between a, you know, a smaller porch that fits the scale of the building. It's a colonial style with a couple modern tweaks to it. So the, the covered entrance. We have, we're proposing a low roof over the garage. We're proposing it to be a metal roof. This is the kitchen over the sink, the window. So we're building on a box out window. Most clients like that because it offers an extended sill beyond the sink for herbs, things like that. And it's a nice detail. Kind of breaks up a fairly flat facade on the, on the side, on the side, but it's actually, it's probably the first, as you're approaching up the hill and lands down road, this corner is the first thing that you'll see. So this is technically the front of the house, but this is also a very visible part of the property in that there's a vacant lot in front that the centers own and have combined. So there's a lot of green space in front of this. So this is a facade that will be seen. You can see two dormers up here in the, the primary bedroom balcony and then a small little covered porch that will get you down to the patio. This is their outdoor space. This is, we're currently the outdoor spaces. Front elevation. So again, just the front entry front entry, posing a double door there, a wood staircase coming down and then it transitions into a landscape, like a granite staircase. And then the retaining walls to carve out the garage under we're proposing to be clad in stone. It'll be a smaller retaining wall from here. I may have got a little too aggressive with the stone. We're probably not going to carry the stone out to the street like this because it's not necessary, but there'll be a little bit of a wrapped retaining wall to retain this portion of the earth. We're doing that based on your first meeting to keep the basement not as a story. So we're compliant with the, we're going to be less than the four foot six to the underside of ceiling for the vast majority. The only place that we're not is the small entrance for the garage. And then this is that side. This is the right side, more of an elevation shot showing the kitchen window, the porch leading out and then the balcony for the primary bedroom above. I just wanted to give you a little history on the design of the project. So once we completed schematic design, I set up a meeting with the building inspector to review the project because whenever we push kind of the max of height or really anything, I like to run it by the building department first, get their take on it and see if there's going to be any issues. So I met with the building inspector. We discussed the building height. We reviewed the definition of a hash story. The 20% rear setback is a new regulation for me. So I wanted to be clear that I understood that. And then we went over the section 5.3.10, average setback exceptions for the front, which allows an averaging of the front setbacks of the existing develop lots on the street. It's a difficult regulation, not real intuitive, and probably if I'm frank, could be written a little clearer. So that one, we spent a lot of time talking about. And the building inspector explained to me how they look at it. And if I could just, I'm going to stop sharing and then reshare a GIS map, if that's okay. Does it allow me to share my screen? You should still have permission. Yeah, I think I have permission, but it's not allowing me to share my screen. You don't see this. Do you see a GIS map? No. Okay, give me one more second. I'll try. Mr. Chairman. Yeah. You were showing a GIS map earlier. And I'm guessing that we could do that again if Mr. Nolan has a hard time to bring it up. Yeah. I am. Yeah, for some reason, it's not allowing me to share my screen. It's probably a safety thing. It's probably not a bad idea. It lands down 53. I will go ahead. I can share the GIS. Okay, perfect. Thank you. That's great. So as I was explaining, we were talking about section 5.3.10. And the building inspector explained to us that it is an average of the houses on the same side of the street between cross streets. So in our case, it's from Millet Street. Yeah, right there. And there is no additional crossroads. It's the end of the cul-de-sac. So for our property, well, there's really only one house that applies, but there's two houses on that block, if you will. So we discussed how it's interpreted. And that was crystal clear. So what I did is I asked if we were able to, since there's only one other house in the lot, if we were able to use our house and the other house to create an average. And at the time, the building inspector seemed to think that that was reasonable. So I left with that. And if you take the average of our existing house and 57, it ends up being just under 12 feet. So I rounded it up and I said, okay, so 12 feet will be our front setback. So we went through design, ended up doing construction documents. And at the last minute, I just again wanted to touch base with the building department and just make sure because we're getting ready to pull a building permit. And I just wanted to make sure that there weren't going to be any snacks. And this time I spoke with both the building inspector and the building commissioner. And unfortunately, the building commissioner had a different interpretation of the regulation. And that was also confirmed by the ZBA administrator assistant, Colleen. So, and unfortunately, we didn't meet, there's a clause in there that I didn't completely understand and we didn't really discuss in detail about a 50% threshold. And because there are a couple undefined lots here and only two houses on it, we don't meet that 50% threshold. So we don't qualify for 5.3.10 with the front yard setbacks. In addition, Mr. Champa also said that it's not customary for them to allow the existing house to count towards, well, in this case, he wasn't able to count the existing house towards it. So kind of both points made the ability to use 5.3.10 as a, we didn't have that at our disposal. So I just want to be clear, I'm not saying that the building department misled us in any way or that, you know, I'm not placing blame on anything. I'm just trying to explain to the board that we were doing our due diligence. We're trying to work within the bylaws. The bylaws are tricky, particularly this one too. And there was some, my interpretation was different from the building inspectors. Okay, so why are we here? We're here seeking relief for front setback requirement of 25 feet to be reduced to 11 feet for the covered porch and 16 foot for the proper building. I know that variances are a little harder to get. So our hardship is because of the location of our property on Landsdown Road, we do not qualify for the front setback reduction in per section 5.3.10 of the Arlington bylaws where the majority of residences on Long Landsdown Road, as well as the adjacent neighborhoods would qualify for that reduction. Because other than the house that's directly behind us 57, everybody else on Landsdown Street would qualify for 5.3.10. And several of the houses are, I'd say probably the majority of the houses are non conforming with regards to the setback and not just Landsdown Street, but the adjacent neighborhoods next to it as well. The proposed project isn't keeping with the size and style of the houses in the surrounding area. And furthermore, we're bringing the property into more conformity than the existing. So therefore, we feel that it doesn't have any negative or detrimental to the existing neighborhood. And I think it's going to be a bonus for the neighborhood. The centers have met with most of their neighbors in the neighborhood and reviewed the plans with them. And I think overall, that there was support from the neighborhood. We didn't get anybody speaking out against it or they didn't, I should say they didn't get anybody speaking out against it. And we did get two letters of support. If I could share my screen one more time. Yep, you should still have permission. Yep. Thank you. And do you see the letters of support here? Yes. Okay. So the first one is from 57 Landsdown Road right here. I really don't want to butcher their name. It's the... They're the bars. Bars. Okay. Sorry. Thank you. And it's actually the next name that I'm more concerned about. Luongo. Yep, that's right. Oh, there you go. Okay. So this is 43. Luongo. This is on the corner of Millet. And I believe, Rebecca, correct me if I'm wrong, they own the vacant lot. So it's on the corner of Millet. They own the two properties that were shown on the GIS map. And I think that's the extent of my presentation. I'm happy to answer any questions that you have. Okay. Thank you. So just for clarification. So the lot that the existing house is on and the adjacent lot, are they considered a single property or are they still held in separate lots? I believe that they're together. The surveyor and civil engineer have been showing them on the same lot. So I don't know, Rebecca, do you or Tim, do you know this for... We have one deed. Yeah. Okay. Okay. That's what I thought. Okay. Yeah. So this is that section 5, 3, 10. We've been discussing average setback minimum. So the required lot frontage of developed residential lots along a block amounts to more than 50% of the block frontage. And where said development has an average setback less than that required by this bylaw, then any vacant lot setback for a residential use may be reduced to set average of the existing development. So essentially as long as at least 50% of the block has to be developed in order for this to count. And then if that's the case, then a vacant lot can be then a vacant lot can use the setback set by the other set by the existing dwellings. So then going back to the GIS view, part of the reason I was asking a question. So Lansdowne appears to be a paper street that goes all the way out off the end on to Woodside. And if this is, if the 53 and its adjacent land parcel are considered a single piece of land and 57 and what I'm assuming is it's adjacent piece of land and 146 Woodside, which would be the corner house on the paper street with Lansdowne, that would constitute more than 50% of the block. The way that it was explained to me is that it needs, so I think 146 is on Woodside and 43 actually might actually be on Rockland. So I think that's why Mr. Champa didn't believe that this met the 50%. Okay. So this parcel here, see. That's a double lot for 57. Okay. Because it seems to me that at this point you've got these, no, it doesn't work that way. The four locks on Lansdowne Street are, if it's two parcels, they're two. The bylaw is looking for developed residential lots. And I'm uncertain why, you know, the 53 and this adjoining lot and 57 and it's adjoining lot could, is there a reason that that should or should not be considered? It sounds like inspectable services does not consider that the adjacent lot on the same deed for 53 doesn't count towards the 50% of the block. And the other part is that we can't consider the existing house or the building inspector as, I don't know how many times this has come up. This seems like a pretty unique case, but his interpretation was that we can't use the existing house to do it. So I think at that point we only have one property that has an existing front setback. It is not conforming, but with only one we don't trigger that 50%. Okay. Mr. Chairman. Mr. Hanlon. Just to elaborate on that just a second. This property ultimately will be able to, would be able to take advantage of it if it was vacant, right? And because they're rebuilding a new house, it would be treated as a vacant house for purposes, for purposes of the application of the averaging bylaw. And there's a certain logic to not being able to treat it as vacant for that purpose, but develop for purposes of figuring out the average. Right. Could I ask the applicant to put back up the proposed site plan? Sure. Okay. So I have another question. Let's see. We don't have a problem with frontage and we don't have a problem with lot area. So this section doesn't apply. Because the odd thing is if you shifted the home towards the north so that that the northernmost corner of the house was the corner of the existing house, it would just be a large addition. Yeah. So actually I asked them about that. It's really not a road that we want to go down. Because I appreciate the, I love the fact that you're trying to think outside the box and this is great. I asked them that question. I asked both the building inspector and the building commissioner that question. If we were able to keep a section of the house, could this be grandfathered in? And we don't want to do that number one because the existing foundation isn't in great condition. And it makes the other things. We're trying to get the basement or the driveway. We're lifting this house up a little bit. It makes that a lot more difficult. So we're really not interested in going that route. But even if we were, the building inspector said that you need to keep I think 50% of the existing foundation for this to even qualify, which really, we want to do a good project. We don't want to kind of, you know, Frankenstein it. So yeah. Yeah. Yeah. Because there's, we also have a section in the bylaw. There's an exception for energy efficient homes that allows the replacement of a foundation. But it, all it does is allow you to get around the requirement for minimum frontage and minimum lot area. Yeah. So unfortunately it doesn't address this. It doesn't address the need we have here. Well, and, you know, again, we're improving. I think we're significantly improving. I mean, you know, going from 3.8 from the side setback where the closest building to us is this neighbor 57 right here. You know, we're three foot 3.8 3.8 feet away from this side setback and we're bringing that in into conformity. We're also you can see the existing house here. Let me zoom in a little bit. You can see I don't know if you guys can see the existing house dash there. We're actually moving this back. All right. And one other thing I wasn't going to bring this up because I don't want to confuse the matter, but I'll float it out there and see what you guys think. The existing screen covered porch, we're actually allowed to put a portion of that in the setback. We've oversized it a little bit. Again, I think I've shrunk it down as much as we're comfortable shrinking it down and keeping it in proportion with the elements of the building and making it usable, you know, somewhat usable too. It's you know, nobody's having a party out there, but you know, you can you can put a decoration or maybe even a chair out there and watch the kids come home. So that's kind of what we were aiming for there. But this is a covered porch. The original proposal that we were going to submit to the town actually had a 12 foot setback and we were only putting 12 square feet of this porch within that setback using the regulation of I think they allow up to 25 or 30. However, I just thought this for this particular, since we were coming before you for a variance, regardless, we just thought that this was cleaner. The house though, the actual house, the main body of the house, this is the part that goes up two and a half stories, is actually 16 foot six, where right now the existing house is nine foot two. So that's a significant improvement. We're just on a thin, we're just on a thin lot, unfortunately, six, you know, 64 feet. If we were to follow the bylaws without the 20% reduction, I just did the math before the meeting. We would only be able to do an 18 foot house. So clearly the regulations were intending a larger lot here. So this is why, you know, I this is why we're before you asking for some relief. And topographically the site is falling towards the south. Correct. It's a hill, lands down as a hill, so high point right here and it slopes down. It also, yeah, yeah. And the, okay, as I say, there's a little quirk in the way the driveway is drawn, but that's just to avoid the telephone pole. Telephone pole, yeah. Yeah. Okay. I'd love to hear some comments from the, from the board, their questions and comments. Mr. Chairman. Mr. Hanlon. It seems to me that the question about section 5.3.10, if that's what it is, is really separate from the, from the question about the variants. And one of the reasons I was very interested in the previous discussion about how that would apply and think that maybe we ought to be, I don't know, I'm not sure that, I'm not sure that I've completely lost hope on that one. But when you get past that, the essential problem is that the fact that there are not enough other developed properties on this side of the street doesn't meet the requirement that the, that the circumstances related to the soil conditions topography shape of this property. Obviously, it does create a sort of sense of unfairness about, because across the street, it's that way. And that actually arises from the decision of the building inspector to regard each side of the street as separately. The statute itself says, along the block, it doesn't say anything about whether or not you count each side separately. If you didn't, then this probably would have a pattern that was established on both sides. If you do have them separately, then you have to assume that what the statute was initially aimed at is maintaining a certain consistency on each side of the street separately, and that it's consistent on one side doesn't influence what happens on the other. But if that's all truth and the sense of unfairness disappears, because of course, you would want to consider both sides of the street separately. It is rather odd. You know, as you drive around here, as everyone knows, the there's some, in fact, I think even one of the houses on this block seems to have a 25 foot setback, but it isn't the normal thing. And so it's really, if the underlying point is to maintain consistency with the neighborhood, somehow having the 25 feet observed on this side of lands down and only on this side of lands down in the whole area is a little bit awkward. But I don't know that the state law actually allows us to go very far in that direction. When you go back at it and say, well, all right, suppose you had to live with that, suppose you had to live with the setback, what is the basis under the state law for doing that? And it seems to me that everything has to ultimately hangs on the fact that this is a thin lot. And you've got 25 feet back in the front, you have your 12.75 feet in the back that leaves you with about 26 feet more or less to build. You've got a fairly long line. It's not a small lot particularly, but I'm sure it really messes up with all the design choices that have already been made. I suspect that there's enough flexibility. You can make a really nice house this way, but you'd be sort of back to the drawing board. If that problem though, if you could say that that thinness, it doesn't live you with enough flexibility to do what you want to do without undue hardship, you might have a sensible, you might have a case that would fit within the boundaries of the bylaw. But the key thing about it would be it all has to be predicated on the dimensions of the lot, the shape and the fact that it's long and thin. Excuse me, Chair, can I add something? Absolutely. So I've served on my zoning board in Denver for a few years and that is one of the criteria for a variance. Another one is if the lot is unique to the area. And that's my argument here, is that because of our location on Lansdowne Street, we're at a disadvantage of the other properties on Lansdowne Street because of how the bylaw is interpreted. So that makes it a unique issue to this and therefore you would be allowed to grant a variance with that. That is a hardship. I don't have the direct language in front of me, but I can provide it for you. The language, I don't have it either, but we have consistently interpreted the language has something to do with conditions relating to soil topography or shape that are not shared by other properties in the neighborhood. So it's not been an either or. You couldn't get by without being able to show the soil conditions topography or shape because somehow it's unique. The uniqueness has to relate to those. It would be a big reversal in our practice to change that out and to look only at whether it's unique in some other way than the way that's specified in the statute. I just had it. So I can read. Okay. Yeah. So the program authority specifically finds only the circumstances related to the soil condition, shape or topography of such lander structures and especially affecting such lander structures, but not affecting generally the zoning district in which it is located. Right. And that's the portion that we're kind of arguing that the prop where the property is situated is not a general condition to the typical zoning district anywhere else on the street with the exception of 57 has that large as that exception at their disposal. I've received variances from some other difficult not to say that you're a difficult board, but from difficult boards based on the premise that because the land has a unique characteristic to it that puts us at a disadvantage than other lands, but that meets that, you know, structures, but not generally affecting the zoning district in which it's located in. But under circumstances where they don't relate to soil conditions, shape or topography, some other thing than that. Well, it's the location of location isn't listed there. We have to find that owing to circumstances relating to soil condition, shape or topography of such lander structures and especially affecting this land or structures, but not affecting generally the zoning district in which it's located that that's your predicate there. And it doesn't say that you can see that it's unique in some way other than the soil conditions, shape or topography, and that that independently provides a sense of uniqueness. All of this the last part is all connected to the first part. Okay, so I'm looking under I'm looking under the requirement for Massachusetts zoning variance unique conditions and says requirement one for variance unique conditions. The first requirement for a variance is showing that the property has unique conditions, specifically that it must show that there are circumstances relating to soil conditions, shape, topography, or such land structures, and especially affecting land or structures, but not affecting generally the zoning district in which it's located. Yeah, I just I don't I'm not sure that they're they're saying that only those things apply. Yeah, they don't. I'm not sure it's a leap to say that those are the only things that could affect a property. So if the board if the board was just just for sake of argument, the board was to accept the premise that the board does have the authority to grant a variance, then we would still need to determine that the determination for the setback involves both existing properties before the demolition of one of the properties. And it would not just not just be that we would assume it's a vacant property and because one house has a 20 foot setback, this house has a 20 foot setback. Is that correct? Are you saying you want to make sure that the lots are combined? Well, no, so that if the so if the if we accept the the premise that you could have a variance based on topography or soil condition or whatever, what would you're also saying then that section 5 3 10 should be applied using the existing structure that you're then removing rather than just relying on the existing structure, which would be 57. Yeah, so that that's how we move forward with the design. And at the time we were just trying to use the you know what we had at our disposal. So now that it's been designed and built that that's what we're hoping that the board will help us with. We think it's reasonable if you did average the two houses that are currently on the street, you would end up with a setback that's actually a little bit closer than what we're proposing for the main house. So we are improving it. We're getting, you know, we're making improvements to the to the property. Mr. Chairman. Mr. Hammond. I'm not sure. I mean, you and your family would have more better grasp of the rigorous definitions of mathematical terms, but it seems to me that that you have an average of one thing is the is the value for that one thing that you just take it and divide by the number. You know, you take the value and divide by n and and I'm not sure why n can't be one as a definitional matter that I would find it. It seems arbitrary if you have the only I mean the reason for doing this, the reason for the statute is so that you don't sort of piggyback on these things and you and start with it, but the mostly undeveloped area, you build out, you disregard the setback and then that sets a new average, which gets lower and lower until you've got the whole street that is that could have been built out in conformity with the zoning bylaw now isn't because of the first house that went in there. So you can see why it is they might do that, but I don't know if mathematically I wouldn't get hung up on the average part and not having any reference. It's it's much more difficult to come up with the majority of the frontage part, but I don't know that we have the facts before us to be able to say that it isn't the majority of the of the frontage that when we went through this before when your guidance, Mr. Chairman, there are a lot of suppositions and and we might find out that that there's a stronger case on the facts than we than we know. And how would you recommend to get to that point? Well, I haven't really thought this through as well as as the rest of you have, but it seems to me that what we're trying to do is figure out what is the frontage that counts, right? And you know, when somebody has two lots together, does that does the entire frontage of those two lots count as the frontage that's developed? Or does the fact that one of the lot contains somebody's backyard or side yard mean that that's not developed? But we don't know for sure from the GIS maps whether they're two really two lots or one. And if they are, I don't know why you don't get to why you don't get to count the entire frontage. If it's one lot, that's what we are counting the unit. And that may be true of the other lots as well that are along that street. We don't really know. I don't know. You guys may know. So it is one lot. And by frontage, do you mean the actual frontage on Landon Street or do you mean the front setback? No, by frontage, I mean the frontage on Landon Street. When you read the 5.3.10, what it says is where the required lot frontage of developed residential lots along a block amounts to more than 50% of the block frontage. So what you're supposed to be doing is looking at the frontage on the street and separating out the developed residential lots from the not developed residential lots, seeing whether that comes up to 50% or more. Where you have, so if you had two lots conceivably, you'd have to separate that out. If the lots were combined so that it was really one lot, technically as one lot, then all of the frontage would be able to count. And that should be true of every lot along the side of the street. So the ones that do your right aren't developed at all. So those are going to come into the in developed category. I'm not equally certain about 57 on the other side and whether if it was just your lot and 57, whether that's enough to make up a majority of what you need. Okay, but that's not how the building inspector interprets these. So I mean, another way to look at it is if we're only allowed to do one house, the existing house on 57 has a front setback of 14, sorry, it's getting late, 14.5 feet. And we're proposing the house, the majority, the house at 16.5. So we're actually pulling it back from the front of theirs. So I certainly would like to be able to fit this under 5.3.10 rather than pushing our established definition of variance. Now it's true that even under our established definition, if you just look at the narrowness of the lot, that might give you something to work with. Shape of the lot is one of the things that we do get to look at. But I don't know whether you get all the way home if you start from that beginning point. Excuse me, Bill. Dave Crispin here. One thing you haven't mentioned tonight is topography. This lot has about 11 foot difference in grade from the top of the hill down. So it's very steep. It's over 10%. That certainly affects how you use the property. I was just looking at South Middlesex. So the property, it is a single deed, but it's listed as having two parcels. So I don't know if that affects how the building inspector was reading it or not. That's the case. Then we have like a 3,000 foot lot, 3,000 and change foot lot size of it becomes our hardship. I think the path is clear. Again, I think you're looking for a hardship, the uniqueness of the lot. I think we've given you a path to consider with the hardship. The building department, believe me, I wish this fit under 5.3.10 myself because we wouldn't, in theory, be in front of you. But they just don't look at it that way. So it seems like a variance is the cleanest path. Does the house meet the intent of the bylaw? Are we going outside of the norms of the neighborhood? Which we don't think we are. Mr. Chair. Mr. Holly. Isn't the lot on its own is less than 5,000 square feet and a merger theory would have been applied to the neighboring and combined to be merged into one lot to meet the frontage requirement. That leads us to that being one single lot with 100 feet frontage. More than likely, right? Based on that definition of 5.3 or based on what's written in 5.3.10, the lot frontage would be the whole lot of 100 feet and there's only two lots for calculations for those. And I don't know if deletion of not counting the existing makes any more sense in that case. Right. Mr. Chairman. Mr. Hamlin. The zoning bylaw defines a lot as an area or parcel of land or any part thereof not including water area in common ownership. Design were designated on a plan filed with the Inspector of Buildings by its owner or owners as a separate lot and having boundaries identical with those recorded in the Middlesex County Registry of Deeds. So presumably that's the definition that we have to work with. Yeah, because that certainly the deed for 53 includes both of those parcels. Right. And the first data I came across for 57 is just for the single lot. It doesn't include the other. So I can't tell if they're in common ownership or not. I'm not doing a deed research, but what does appear so the street itself is like 200 just scaling here. It's like 283, 284 feet long. And the properties, yes, between the two lots of 53 and a lot of 57 is like 156 feet. So it's more than 50%. So I just don't know is if it's a building department looking at this as you can't take that, you have to take the average assuming that 53 has already been demolished or in which case then now you do only have one small developed lot or are they saying that they don't think that 53 and 57 together currently meet the requirement for 50% of the block. That's a question, right? Yeah. But it is Mr. Charities that developed residential lot, right? That's where. Yeah. So certainly 50. Let me go back and share the GIS for years. So definitely 53 with it's a joining lot appear on a single deed. Right. So they're held a common ownership and certainly 57 and the parcel next to it are both owned by the same entity. So they're in common ownership, which is the requirement. So it would appear that from this lot lined from this parcel all the way up to this parcel here is currently developed and would quantify as developed land. And you would have this one when this lot, arguably is in common ownership, in common ownership with this, so this is a developed lot too. That's actually on Rockland now. I mean, the house is on Rockland. Yeah. But because this is by the definition that Mr. Handlin read, this would be considered a single piece, the two together because of the common ownership. Okay. So can I use 43 and 57 then? I mean, ultimately the building inspector has to I guess sign off on that. But if I'm able to use 43 to Rockland and 57 to lands down, then I will be able to be closer. I mean, we're not going to change it. We're hoping to stay for where we're at. Well, I think the question that I would have is, is the consideration that because we are looking to redevelop a parcel, that that parcel has to be considered vacant in order to make the calculation or can we make the calculation and then use that calculation in the redevelopment of a lot. Now, fortunately, that's a question to sort of talk to the inspector about. Yeah, when you're looking at the language, Mr. Chairman, in order to deal with the frontage issue, it's where the required lot frontage of develop residential lots along the block amounts to more than 50%. So you can say, well, so then you can say, well, 53 and the two lots or the combined lot should count for that because that's a developed residential lot. But then the last sentence is any vacant lot setback for a residential use may be reduced to set coverage of the existing development. And so now in order to take advantage of the last part, which is where you want to go, you have to treat that lot that has the address 53 on it as a vacant lot. And of course, in reality, that's exactly what's going to happen right now. It's developed and pretty soon it'll be vacant. But the theory that enables anybody to take advantage of this with all through the town is that when you do it, when you tear the structure down, you become a vacant lot. And the question is whether the fact that you, when you do the frontage calculation, you're not a vacant lot yet enables you to basically have it both ways. And I don't, I mean, I'm not sure that the building inspector has a preconceived answer about that. Right. What does sound that we're sort of a little bit of an impasse until we have an opportunity to discuss this with the, with the building inspector to better understand how they're interpreting this. Excuse me, Mr. Chair. Yes, sir. Could I, could I just ask, okay, instead of trying to jam this through 5.3.10, can I just ask that the, the board's opinion on granting the variance? Is this, is this project seen as a detrimental? I mean, it's really, so as you know, there's the four criteria for variance. You know, so circumstances related to soil condition, shape, topography, especially affecting such land or structures, but not affecting generally the zoning district in which it is located. So I think we agree that there's no issue with shape and there's no issue with soil conditions. So it comes down to a question of topography and, you know, that whole street is sloped. It's not like this is one lot that's quirky or one or, you know, of a small set of streets that is, has a topological difference. It's, you know, topologically this whole side of Arlington is this way. So our premise for a hardship that doesn't by your interpretation meet the definition of a hardship, that the fact that we're at a disadvantage with this particular lot based on the interpretations of the bylaw from the, from the town. Yeah. I mean, I was looking to see if, you know, maybe the, you know, because the lot's somewhat shallow. Like, you know, is that, I mean, can that, yeah, can that go along with the, with the shape of it? Yeah. So I mean, I'm looking at that, but then like all the houses that are on Rockland have that same depth as do the first two houses on the other side of Millet. So it's not, not all of them. I mean, the 30, 43 and 34 are quite close. Yeah. And they're actually quite, quite set back to, right? So they're, they're, they're not getting on the front, but they're, they're, they're really close to the back. Right. And then you look on Landstone Street, there's, there's similar, you know, particularly down 30, 26, 20, those are all, you know, kind of the similar and where, and, you know, you look at 54, 46 and 42, those are the opposite, those are very deep lots. And those are the ones that are closest to the street. Right. Absolutely. Right. So I've gotten variances in the past, again, based off of uniqueness of the, of the lot. I mean, I can pull up case law on that. So I believe there is a pathway there. It's up to this board to determine, you know, what is and what is in a hardship. But I would just try to, I'm just trying to ascertain that the board's, you know, view on this project and see this as a good project or, or a detriment. Yeah. I mean, certainly, I think it's a very well thought through process through project. You know, I, I like the building itself. I like the way it's designed. I think it reacts well to the, to the neighborhood and to the site conditions. It's frustrating that the way the bylaw is written, that you are taking a nonconforming building and you're making it more conforming. But because it is a new, because it's a new building and not an addition, it, there are certain advantages that it's not allowed to take advantage of. Right. But that's why we have the variance process to allow this board to look at specific circumstances and, but that's, this would apply to any house. There's nothing, I think the, I mean, the struggle I'm having is I, I'm not seeing something that's unique to this parcel or, you know, or to, you know, several parcels that doesn't necessarily apply to other, you know, to other houses in the, to the zoning districts. I mean, there's, because there's just, there are no other, no other house with the exception of 57 is disqualified from 5.3.10. Yeah. Mr. Chairman. Yeah, Mr. Hanuman. I don't think that that, I wouldn't, I would, I'm sympathetic with the project too. I think it's a good project and I, and for all of the reasons that the chair just said, I don't believe that it is an invidious discrimination that they can't take advantage of 335.3.10. I think that the statute was written precisely in order to prevent them from getting that, from being able to take advantage of that. And this wasn't an accident. It's not like something that was just done inadvertently. When they did that, they were deliberately intending to make sure that what this was about was filling in some, a few gaps on the side of the street, assuming that that interpretation is correct and you're not looking at both sides of the street. And because they wanted to be able to allow the last vacant lots, basically, to be made consistent with what's already done and not allowing the first vacant lots to establish a pattern that would be finished off by the rest and all of it in contradiction to the bylaw. So this is, this is a distinction that is there because the, the, because Tom Meading when it passed this bylaw intended it to be there. And that makes it not an invidious or an unfair discrimination. It's a discrimination that was established by law because there was a policy behind it. And this is to be sure, a really crazy bylaw. And we've talked about various amendments that could be made to it, but from where it is right now, the, I've at least not particularly moved by the argument that any, that the other side of the street can take advantage of it. And this side of the street can't. And the other house that's right next to it is in the same position as this. It's not, it's not unique. And, you know, it just rarely happens. It just rarely happens here. It's only a one, you were doing block by block. And this is a block that has at most what five, five lots to it. Mr. Chair, I would. Yes, Mr. Holly. Yeah, I would agree with with more what Mr. Hanlon is saying is because it is applied to me the way I read it is, you know, for a lot that's has for a block that has all, you know, many houses already built, you know, existing. And one lot they're trying to, you know, that's how I read the same thing. And it doesn't make it unique. It's, it's to address a unique condition, but not having application of this doesn't mean makes you the project unique, you know, the exception to that. So if the bylaw is there for the next, you know, to address a unique condition and not addressing it doesn't make the other way unique, you know, Mr. Chairman, I would say that it's unfortunate because the policy that I think the bylaw is aiming at produces will produce eventually a weird result. I mean, I, I, as a town meeting member, I'd vote against, I'd vote in favor of amending this appropriately in a heartbeat because you don't particularly want everybody else to be having, you know, as a relatively small, there's a pattern here of having relatively not deep front yards. And if this all developed with 25 feet front yard depths, it would look out of place with everything else. I mean, in that sense, from a, from a policy point of view, I think that the, the bylaw is, is not well designed here, but it was designed for an earlier area, era. Well, it's just sort of a, a thought experiment here. So if they were to construct this house on the lower half of the lot, the undeveloped half of the lot, and then demolish the existing house afterwards, it seems like they would be able to take advantage of that section. I don't think we can develop on that lot because it doesn't meet, but one, it's combined, but it doesn't meet the, it doesn't squiff. Yeah. It's not, it's not large enough to put another house on it. Okay. You had a good foundation, you could, you could take advantage of the law that, that allows you out of the restrictions on the, on the lot size. If you have a foundation that meets environmental, you know, the environmental rate, which, which pretty soon by code, you need to do anyway, because. I mean, could they take advantage of that on the current site? If, are they allowed to consider that? Or then there they are. The problem. Yeah. The problem is, if you're dealing with lot size, if that's the issue, you get lot size in front of that gets you out of. Yeah. Not the setback. Not the setback. I'm gonna, if I can add one thing, Dave, Chris, I'm a civil engineer on this. The uniqueness of this lot, as I look around, this is the only lot that has a garage under in the neighborhood, which is something that they're trying to fix with this design. I pulled my car into that driveway. When you pull your car into that driveway down into the garage, you can't see where you're going because it's so steep looking over the hood. I doubt a Chevy van would fit in this garage. Yeah. So from a uniqueness of a lot perspective, this is the only house in the area that topographically has a garage under that limits how the existing facility can be used. Just one more, Ryan. Yeah. Yeah. I think at this point, I'm not sure we really are near a resolution, but I do need to allow the public access to the hearing, which I have not done yet. So I will go ahead and open the hearing for public comment. So again, public comment is taken as it relates to the matter at hand. It should be directed to the board for the purpose of helping us inform our decision. There is nobody calling in, so you may use the reaction, the release hand button on the reactions tab. If you would like to raise a point, and we have Mr. Moore. Feed more, feed more street. Thanks, but no thanks. So anyone else who wishes to address this item? Seeing none, I'll go ahead and close public comment. So I think this is something that deserves a little more thought from the board and a little bit of discussion with the building inspector on exactly how he's interpreting things in this case. And I think it might do us to research and also the applicants to research the case law a little bit to see where it sort of comes down on this question. And if the applicants are amenable, I would recommend continuing. We can continue to February 13, which is our next date, if that date works for you, or the next one after that will be the 27th. We can make that I can make the 13th work. Yeah. Mr. Chairman, Mr. Hanlon, I wonder, I think that it would be nice if during this period of time that Mr. Nolan provided whatever guidance he has on the law regarding his broad view of what the first two mean, and we should take that and whatever and our own history, which is quite different and discuss it with Mr. Cunningham and see if we can come to a resolution of just exactly what those first two conditions mean. I think that we don't necessarily need to rely on unfairness as the hardship if we're able to first find that whatever the problem is there is due to soil topography or shape or doesn't have to be. We can get past that the hardship isn't going to be a real it's not nearly as hard as what it is that constitutes a unique condition. No, absolutely. And just just for the applicants benefit, Mr. Cunningham is the Town Council. Okay. I'm just a little unclear on what Mr. Hanlon was asking for though. So basically, I think you had mentioned that you had some case law that you felt reinforced your position. And so we would just, if you could identify what that is for us and let us know so we can So to be really clear on what Mr. Chairman, to be really clear, at least I think that the discussion we've had so far has to do with whether or not some kind of uniqueness that does not relate back to soil shape or soil condition shape or topography can count as being the distinguishing factor that can be the predicate for the rest of the variance process. We have always said that it has to be both one of those three characters and it has to be unique so that something that has a general soil problem, it's a marsh would not count because it's not because other properties have the same thing. And Mr. Dolan is taking the view that even if it's unique for some other reason than the reasons as named in the statute, that's enough uniqueness to count. And that's that's the proposition that has to be sustained in order to take the broad view of the first variance criterion that Mr. Nolan is advancing to us. If I could say something just briefly. Homeowner from the topography standpoint and Dave, please chime in or correct me if I'm wrong. Our particular lot the side of the lot that the house is on is more flat than the vacant lot that we also own the steepness gets worse as you go down the hill. And so and 57 which is uphill from us is actually a relatively flat lot for both of their parcels. And so the house being on the position that it is on the lot is if we were to move it sort of to the center if we were maintained by the 25 foot setback, we would enter a period of steepness that is not would not be something that for example 57 would encounter if they were to do the same. Mr. Chairman, if I could just also say that that illustrates why shape and topography go together. Because the reason why you'd have to go down the hill is because the shape is sufficiently narrow that you can't achieve your objectives without making it longer and making it longer means that the topography disadvantage fits in. So I mean that kind of an analysis is at least in my view in the right ballpark and could produce the conclusion that there would be an unreasonable hardship here. We've generally not been as tough on unreasonable hardship as we have been on soil shape and topography. I mean the other piece of that is that in the neighborhood on our street the double there are double lots around and as you've seen by looking at the GIS images throughout this entire conversation there each really positioned on one portion one parcel and there's the other spaces remained open and so if we were to generate a house that covered our whole lot both parcels it would be narrow and it would take over what we consider our backyard and would negatively impact the neighbors on the lower side of the hill and also behind us on that side of the hill that don't currently have a house right behind them. And so we're you know the goal of the project was really to maintain the the existing conditions as best as we can and we thought even moving it back a bit from where the house currently sits on the lot would be a benefit. Is it unprecedented to change our hardship can cannot can that now be our hardship if that's acceptable. I mean we're looking at any hardship the hardship that really exists you're not stuck with what position people before us have completely reversed positions on occasion can we do that now what are you looking to do again. So it sounds like by if we're forced to keep the the 25 foot setback front setback it's going to result in and achieve a similar similar size house to what they're looking to do and that we feel is in keeping with the neighborhood it's going to force us to have a long thin house the length of the house is going to take us from a flat area of our lot to a sloped area of our lot and create a hardship financially for us. Again essentially it's the same project we're trying to do a good project it fits the neighborhood we're just looking for a vehicle we're trying to give you guys license to be able to grant this yeah we got neighborhood support it's it's a it's a good project we're trying to do absolutely a good project I mean the other thing we haven't talked about yet is usable open space we meet that because usable open space can't be more than 8% and the whole lower part of the slope is site is sloped which I doubt there's enough land onto your site that meets the 8% category at all and certainly the site as it is occupied now the site does not have usable open space once you raise the house I don't know if it if there's land that qualifies Dave is it possible is it possible with the excavation to to change that from what do we need 7% yeah 75 has to be less than 8 slope think is I think is what it says what with the excavation for the the new house do you think we'll have enough fill to to gradually I mean because we're pretty close it's it's about 8% isn't it the site's about 10% right now okay so and we could we could could we create a patio that's 8% yeah we probably could that you could have to probably be dirt in to do it yeah so so that the usable I don't think that's before you so I think we can we could probably deal with that okay they do use it they have they have a garden on that 8% right now yeah that's usable I play soccer on it believe me this is a highly artificial definition and there's a lot of stuff that's actually usable it isn't usable for this purpose and there's you it's just it's it's a lot of people come it's a difficult it presents a difficult situation but it will be I mean if if in fact I mean if we gave you a variant or we didn't and it would only be for the what you've asked us to do if usable open space was not part of it then you and mr. Champa says oh by the way then you're no further along than you are right now we're putting in a drainage system so I Dave you know better than I any chance what's what's in Intel to get the site below 7% or below 8% the only way I without adjusting the floor grades of the house the only way I can think is filling the lower half and creating a significant embankment around the low perimeter yeah see I mean this is really not the bylaws shouldn't shouldn't be forcing people to do weird stuff to their properties I mean that's right sure it's it's yeah I don't know it's a usable site I mean they use it it's a vacant site in fact that was the main reason why they wanted to keep the house in the same location because they enjoy the yard I know you guys have a job to do and I know that you're just trying to follow the bylaws here but we're trying to give you an avenue to accept this project yeah absolutely yep well we're not in the center has done a pretty good job of that actually I think that there is at least a path that's worth thinking about I think that if we were able to find that I mean ultimately if you if this is worth the variance for one thing it's worth a variance for the other right you it's the the unreasonable hardship will be the same and to some extent the reason why it is that that you don't have usable open space has to do with the same topological conditions that we've just been talking about so it's all it's all bundled together as as you note as you've completely seen from a design point of view and so I wouldn't necessarily say well we we have a it meets the requirements for variants of the front yard depth but not the usable open space it's if it should be built notwithstanding one problem with the zoning bylaw probably it should be it can be done with respect to two so we need to resubmit a a variance for for the front setback based on the hardship of topography and also the usable space I don't know I mean we haven't Mr. Chairman what do you think what do we need to do I mean it's one thing what we can take into consideration I think we can take all arguments into consideration it's another thing if they're asking for another for variance that meets a different description and that the question there is whether or not you have adequate notice to the public so the variance yeah so the legal notice references section five three ten and five four two and five four two is the dimensional table so if the variance is in relation to those things so either the average setback or to the table of dimensional regulations then it no matter what it is we can cover it by under this notice so if they were you know if if they decided well we're just going to shift the house towards the back of the lot and we will meet the front yard setback but we won't meet the rear yard setback that would still qualify under here because it's still under five four two so I don't I don't see that as requiring a new request a usable open space is included in five four two as well right so the percentage of usable open space is part of five four two so you know it meets the terms of the notification I don't think that there's any formal new filing that needs to be done if there's if there's anything you want to put in writing and submit if we if we continue then you're obviously quite welcome to do that yeah and we certainly I know in the past we have granted variances on usable open space because of excessive slope of the site um and the inability to provide usable open space that um that the different that that use that providing the usable open space is not this now is not beneficial to the site or to the to the neighborhood in those in that case um so I yeah I think at this stage we really just need to continue to the 13th um and this you know the the board will have to talk to council and talk to the the billing commissioner to figure out exactly where you know what we're allowed to do in this circumstance and how we can you know what what we can do to come up with a defensible decision um and in the meantime I think we would ask the applicant to consider you know a sort of if there is case law that is supportive of of their of their case we absolutely would you know be very glad to hear of it um but I think you know also considering how if there are any modifications that that you know might be considered um that might somehow help the situation because and then we just reach it in on the 13th mr chairman can I just ask one other thing is that we've we've gone I mean the center has spent roughly 40 seconds talking about this subject a few minutes ago it may be that if that's the way we're going to go we need a little bit more information about developing that a little bit and it may very well be that mr christman would has some things to say that that would help us understand the the consequences of having of forcing them to try to comply with the the bylaw given the shape and topography of of the site but you know I wouldn't say necessarily you have to have 20 pages but having something with a little bit of evidence for us to rely on would make it easier to make that decision later on no certainly yeah we're happy to do that due to the technical nature we tried to uh leave it to the professionals but um yeah we'd be happy to center did great I can speak to the emotions of it here you go yeah I mean we did want to you know just briefly in terms of a personal statement right I mean we've lived you know in the town for you know seven years our first house starter home at the kid year you know neighborhood it's all a bunch of you know four or five year old boys you know we spent you know the last two years ago looking for houses in other towns you know the whole reason we're doing this is because we looked at a bunch of other towns and we wanted to be here I'm going to be in this neighborhood so we really want this to work so you know we're just you know we're dedicated trying to see the project through and you know hopefully making things work out so just just wanted to yeah say that no absolutely thank you one technical question unusable open space 80 percent yep can it be can it be terraced can it be two flat flattery areas terraced I think so so you only need to provide 30 percent of the gross floor area as usable or a lot of area of no of the gross floor area of the house before you only need to provide I think it's 1362 square feet of usable area we probably already have the patio with the patio yeah and like 75 percent of it you only need 75 percent of that so whatever that number comes down to but you need to need to be the 25 feet square part two yeah so yeah so it has to be at least 25 by 25 but any but you can count patio space as long as it's not as long as 75 percent of it is open to the sky above you can count it so patios are good decks are good stairs are you exterior stairs are usually included within that just not driveways we almost meet that with the patio now right well and if it's a new building with a driveway at grade then essentially it is it's only 20 by 20 I'm pretty sure have to investigate that all right then so then with the permission of the applicant I would move that we continue this hearing on 53 landstown street until Tuesday February 13th at 7 30 p.m. second okay so this is a vote of the board to continue the hearing for 53 lanes down road until Tuesday February 13th at 7 30 p.m. um mr. handlin hi mr. holly hi mr. rickard ellie hi mr. Hoffman hi mr. Leblanc hi the chair votes I we are continued on 53 lanes down road thank you all very much for sticking with us this evening thank you thank you thank you so that is everything that is on our agenda this evening um let me just confirm yeah that's everything so as we said a couple times our next meeting will be February 13th at 7 30 I believe there are two items on the agenda already so this will be two additional items the two continuances from tonight and then our next meeting is Tuesday February 27th after the 13th so that's what we're doing mr. chair yes sir before you move to adjourn could I make a comment mr. Moore I just I mean that last case is why new folks are one of the unsung group of heroes in the town I mean you have to interpret obstructs laws you have to apply them to odd or unique situations and you all do it for long hours and no pay and I wish there was more appreciation for folks that have that kind of dedication to the towns you know values and hopes and things so thank you for having me thank you mr. Moore thank you appreciate your kind words so is that I will thank everyone for their participation in tonight's meeting of the Arlington zoning board of appeals I appreciate everyone's patience throughout the meeting and especially would like to thank Colleen Ralston and Mike Jopov for their assistance in preparing for and hosting this online meeting please note the purpose of the board's reporting the meeting is to ensure the creation of an accurate record of its proceedings it is our understanding the recordings made by ACMI will be available on demand at acmi.tv within the coming days if anyone has comments or recommendations please send them via email to zba at town.arlington.ma.us that email address is also listed on the zoning board of appeals website and to conclude tonight's meeting I would ask for your motion to adjourn so move mr. chairman thank you mr. handlin and a second so I'm not here so without Roger we're stuck until the 13th okay motion to adjourn mr. handlin hi mr. Holly hi mr. cadelli hi mr. Hoffman hi mr. Leblanc hi the chair votes aye the board adjourned thank you all very very much