 So it is 7 33 p.m. on Tuesday the 25th of January 2022. Good evening. My name is Christian Klein. I'm the chair of the Arlington zoning board of appeals and I'm calling this meeting of the board to order. I'd confirm that members and anticipated officials are present. Members of the zoning board of appeals. Roger Dupont. Here. Patrick Handlin. Here. Kevin Mills. Here. Daniel Wrikadelli. Here. And Ben Kenhaly. Good evening to all. Town officials Rick Valorelli, the board's administrator. Good evening, Mr. Chairman. Good evening. And assisting. Good evening. I believe he's here. I believe that is all. I don't see anyone else on behalf of the town here. Appearing for 11 16, Lowell street. Mr. Nessie. Good to see you. Well, and I believe you are also appearing for 83 Palmer Street. Yes. And I am going to be asking that that matter be continued. I sent a letter to the board. Hopefully you did receive that. Okay. And then is there anyone here appearing on behalf of 25 Highland Avenue. Don't seem as bad, but I believe she was her intention. And you can confirm her intention was to continue this evening. Okay. Okay. Okay. First item on our agenda, which is our. Remote participation details. This open meeting of the Arlington zoning board of appeals is being conducted remotely consistent with an act extending certain COVID-19 measures adopted during the state of emergency signed into law on June 16, 2021. Public bodies may continue to meet remotely so long as reasonable public access is afforded. So the public can follow along with the deliberations of the meeting. An opportunity for public participation will be provided during the public comment period during each public hearing. For this meeting, the Arlington zoning board of appeals is convened to video conference. To participate remotely. Public bodies may continue to meet remotely so long as reasonable public access is afforded. So the public can follow along with the deliberations of the Arlington zoning board of appeals is convened to video conference via the zoom app with online and telephone access is listed on the agenda posted to the town's website identifying how the public may join. This meeting is being recorded and it will be broadcast by ACMI. Please be aware that these are participating by a variety of means. Some attendees are participating by video conference. Other participants are participating by computer audio or by telephone. Accordingly, please be aware that other folks may be able to participate remotely. But please note that there are no longer any appropriate materials to be shared or to be cared to not share personal information. Anything you broadcast may be captured by the reporting. We ask you to please maintain decorum during the meeting, including the display of an appropriate background. All supporting materials that have been provided. Members of this body are available in the town's website. Unless otherwise noted, The public has encouraged to follow along. Using the posted agenda in this 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 at this meeting Whereas the Zoning Board of Appeals for the town of Arlington, Massachusetts just gusses and arbitrates the use of land in Arlington, formerly known as monotomy, an Algonquin word meaning swift waters. The board here by acknowledges that the town of Arlington is located on the ancestral lands of the Massachusetts tribe, the tribe of indigenous peoples from whom the colony province and commonwealth have taken their names. We pay our respects to the ancestral bloodline of the Massachusetts tribe and their descendants who still inhabit historic Massachusetts territories today. So the next item on our agenda number two, we have items two through seven are administrative. I'm going to go ahead and move those to the end this evening so we can move forward on other matters. I'm going to go ahead straight to docket item, excuse me, to agenda item number 10, which is docket three, six, seven, seven. And Miss Ban is not here at the moment, but she had requested she at the end of the last meeting we had approved a special permit, but there was still an open variance request. And she was waiting on information to come from her engineers. That information has not made its way to her yet. And so there's nothing to discuss. So she has asked for a continuance. I had spoken with Mr. Valarelli this morning. It looks like our continuation date our next hearing will be February 22. So if I could have a motion to continue the hearing for 25 Highland Avenue until Tuesday, February 22, 2022, the moved. Thank you. Have a second. Second. Thank you, Mr. DuPont. Vote of the board. Mr. DuPont. Aye. Hamlin. Aye. Mills. Aye. Mr. Riccordelli. Aye. And the chair votes aye. So the docket 367-725 Highland Avenue is continued to Tuesday, February 22, 2022 at 7.30 p.m. And then with that I will move backwards up to agenda item number nine, which is docket number 3658-83 Palmer Street. And Mr. Nessie is here on behalf of the applicant and Mr. Nessie, as you had said earlier, your intention is to request a continuance on this. Yes, it is. I did receive a Doug Himes memo and I read it very carefully and I was fully prepared to proceed with my zoning app based upon that memo. However, my client has indicated that he is going to be filing plans. I think he's prepared them already with the building department applying for a permit in accordance with section 5.42 subsection B for the subsection eight, which of course is the energy efficient bylaw. It's a new provision in the zoning bylaw, which allows an applicant to file for a building permit in an R1 or an R2 or an Ozone and gain certain relief because they're going to be building an energy efficient home. What I do not want to do is give up my ability to pursue this matter if in fact those plans do not follow through to fruition. That's the reason I'm asking that this matter be continued until the next zoning hearing. Thank you. So with. Are there any questions from the board? I would look for a motion to continue the special permit hearing for 83 Palmer Street until Tuesday, February 22nd, 2022 at 7 30 p.m. So moved. Thank you, Mr. Hanlon. Second. Second. Thank you, Mr. DuPont. Go to the board, Mr. DuPont. Aye. Mr. Hanlon. Aye. Mills. Aye. Mr. Rigor deli. Aye. Chair votes aye. We are continued on 83 Palmer Street until February 22nd, 2022 at 7 30 p.m. And with that, next item will take up is item number eight, which is docket number three, six, eight, seven, eleven, thirteen Lowell Street. Yes. And with that, I will introduce Mr. Nessie to go ahead and tell us what he would like to do. Yes, thank you. I believe I'm accompanied this evening by Jason Khan, who is the architect and by Chris Garrelopoulos, who is the owner of the property as well. I will make my opening statement and Jason Khan may want to jump in or you may may have questions for him. The filed the application with respect to simply an appeal from the building inspector where the building inspector indicated to me that he could not corroborate the fact that the use was, in fact, a two family use. And by the way, I received my champ's memo to the zoning board about a half an hour ago, hadn't hadn't seen it before. Then I did have a chance to read it. So I know what it says, so I'm not being ambushed. OK, and I'll say that for the board. The property is a building that was built in 1816. And I'm given to understand and Jason Khan can corroborate this that the clients have been before the Astura Commission and with their plans to do some work on the building. And those plans have in fact been approved. Again, I wasn't involved at that point. But Jason Khan talked to that issue a bit later. We're here really on the issue of whether, in fact, the use is a two family use. Now, my memo to the board, which I hope you've had a chance to read, basically cites a couple of documents from the building department. And this is the same old story, unfortunately, with the building department where records cannot be found that go back to the 1950s and the 1960s. What could be found with respect to the use of the property was a building card, which I have given you in my memo and cited in my memo as well. And that building card essentially is dated October 10 of 1961. And it indicates subject alter a three family dwelling to a four family dwelling. So that, again, is dated October 10 of 1961. And very interestingly, directly beneath that, it says permit 201 on July 17 of 1961. I've given that to you as well as part of my memo. And that permit, essentially, which again predates the zoning case, but that permit talks about the addition of a room on the second floor on the side of the house. Now, I can only surmise because, again, I don't have any documentary information that I can argue and show to the board. I can only surmise that the reason why permit number 201 was written under the building card for the the grant of the relief from a three family to a four family was to basically retroactively approve that permit to add that room. Adding that room would be a furtherance of any contention that, in fact, the building was a four and not a two. Why would there be a permit to add an additional room on the building when it already had at least two or three rooms? But for the fact that it was based upon something that went before the zoning board, the zoning board looked at it and the zoning board basically said, OK, they may perhaps they should not have done that, but it was done and we're now going to corroborate that. And we're doing that by way of the grant of the permit. Again, no decision can be found. And, you know, it gets a little bit frustrating for applicants to essentially have a home that they understand is a two, a four or a three and operate on that basis. And then at some point, check with the building department and find out that the building department has the property listed in this case as a two family and not a four family. The assessing record, of course, indicates that the property is a four family. No question about that. So again, our position is that the property is, in fact, a four family. Our position is that the building card that was issued by the zoning board and in the contained in the records of the building department clearly state alteration of a three family dwelling to a four family dwelling. Now, are we to totally ignore that and say that that isn't a document that folks going to the building department cannot rely on for the purpose of knowing what the status of their property is. I don't think that that's that's fair. I don't think that that's equitable. And I just I'm asking the board not to, in fact, conclude that. Now, I did have a chance quickly to read Mr. Champ as a memo as well. And I know that he does say that at the time of the decision and question, it was common practice for the zoning board to grant a use change with a five to 10 year limit or expire upon new ownership. I can't honestly say that I ever experienced that on any case I had before the zoning board going back to the 19 late 1960s onward. There might have been a condition that basically was a condition subsequent that resulted from the grant of a special permit where if the ownership changed, then the new owner would have to come back before the zoning board. But I never experienced that with a change of use, quite frankly. And I think if if, in fact, that did happen, that certainly would be a violation of the of the law as it existed then and probably any local bylaw as well. I mean, why would you allow a grant of zone a relief for a use a person then purchases the property for that use? And then it gets sold two years later. And the use that they thought they had, they don't have because that use basically was extinguished by virtue of that prior zoning case. Again, I never experienced that. If it happened, I'm not questioning Mr. Champa, he's the building inspector. He has access to records. I don't have access to, but I never saw that in my experience. Again, I might have seen that within a special permit situation, but never in a change of use situation. So essentially I'm asking and it actually a very limited matter before the board, I did submit a plans to the board so the board could see what the applicant was planning to do with the property. Everything that's being done with the property is being done within the footprint of the property. We're not exceeding the footprint. And again, Jason Khan can talk about that. I'm doing more talking that Jason would otherwise do because he basically is experiencing COVID. I'm actually here. I'm here. All right, Jason, Jason, you can jump in again, Jason. We're not here for the purpose of discussing building plans. We're here for the purpose of discussing the use. So we don't have to get into an elaboration with regard to building plans. OK, the question before the zoning board is going to be whether, in fact, I can get relief from the board with respect to the property not being a two, but rather being a four unit residential use. OK, I can give you a very quick history of how I'm involved with this. Prior to the current owners, I was became involved with from what I was told a problematic, I believe, was being used as seven unit kind of illegal kitchens here and there. So it was a life safety matter that I was brought into this at the beginning, which resulted in recommendations and a report to the prior owner. When I when I walked at the first time, it was pretty rough inside. You know, I didn't know it was for the purpose of sale of oh, there was a lawyer involved in the time. There was definitely definitely three extra kitchens or somewhat kind of quasi kitchens and it was kind of a rundown kind of like elderly. I don't really know what even the other group home is what it was. So I was not, you know, brought into the zoning area and more like the life safety perspective and looking at the overall structure and and the need for potentially life safety measures. They ended up selling to new clients. You know, during that time, I was provided with a bunch of documentation from the National Historic Registry all the way to which which it's on. It's got a little bit of a story to it, the Benjamin Lockhouse and it's on the historic registry. So I'm intimately involved with it now. I then got hired by the new the new owners to convert this into and not really convert renovate, I should say, as it stood. It was when I walked at the first time, I have I have a Matterport scan of the building. There were seven units, not that there was legal. I'm just reporting on what I saw. Some were more vacant, some were not. It was in very bad shape. Obviously, we'll report to the owner then saying, you know, egress wise and life safety, that there was a set of decks on the left and the right. They were rotted out. It just looked bad. It looked like a hazard. No other way to really say anything otherwise. So when the new owner took over there, they wanted to, you know, perform a renovation, which at the time, I forget, I must have reached out to special services and, you know, kind of went back and forth. That's in the two family zone, you know, and at that point, we went through the process and filed our initial submission that they triggered a historical review or historical. Forgive me, I haven't I think it was a historical. It was Joey Robinson and Victoria Rose was who I dealt with. And I can't remember there's a board. I know there's two in Arlington. That we went through five or six iterations of exterior preservation of the front building. At that point, we realized that we don't have to do the astura all over again, Jason. All right. Yeah, yeah. So either way, a bunch of traditions throughout the years are permitted. My purpose was to provide a safe code compliant by a sprinkler alarm monitored, you know, upgrade of what was there, which was not like the only way to describe it. It was pretty close to the rear of this building was had multiple additions that you can see over the years probably predates all of us. You know, that's that's kind of my background. So what you're looking at is just a is a I can tell you the end result of the historic. That's important. Historic, the end result was removed the rear of the building rebuilding kind on the footprint of the existing foundation, a match of the existing historical house. So it's basically you turn 90 degrees and build the same thing that was there, but code compliant. And that's kind of what you're looking at here. You know, I wasn't able to I was there was no need for relief that I thought of because we weren't going for anything that wasn't there prior, you know, that that's basically my role. I can speak to speak to, you know, I can speak to anything that you want in between from start to where we are now. There's been a lot of revisions spent a lot of time collectively to kind of satisfy historical and we can stay within code compliance and basically fix what was there before, because it was like I said, did historic approve the plans? Yeah, historic approved the plans. I spoke to Ms. Robinson who lost her drive or lost her data on her drive. And I don't know the process if it gets recorded in, you know, like other places or if it's not, but she said that she would reach out to, I don't remember names, but she should have reached out to someone that I sent to the plans that were approved and signed off on by the historic and I didn't talk to her today. I wasn't able to reach her, but she did sign off. There's probably seven meetings that will be attended. All right. All right, Jason, why don't we maybe let the members of the board pose any questions to us that they may have with respect to our position at this point. Okay, thank you. Thank you. Just follow up quickly on what the architect had said. So the design of the renovation that you have undertaken would be done under the commercial code as opposed to the single and two family code. And you had said it so it meets all the fire separation requirements and is it gonna be sprinkled under, I guess 13R? So it's gonna be fully sprinklered, fully monitored, dedicated fire service coming in. So it's gonna be sprinkled on our NFP 13, I believe it was 13R, it might be 13. I got to look at the egress again. I think it's a full, a full 13 system, only because of, let's see. No, it's 13R, you're absolutely right. So it's not over 12,000 square feet. It meets all the criteria for 13R. Okay. And then has the, do you include in your application, do you have calculations for the half story on the upper floor? In the existing, existing or the new? In the new. Yeah, I mean, I do. So kind of hard to gauge what was there before. I do have, there should be an Asbuild somewhere. It's similar, it just looked a little different than the design intention as requested was to match the, make the back look like they're front. So within say, because I kind of presume this to stay within the FAR and not further any non-conformancy or any of that. I just, they're reusing the existing foundation. Or that was the plan. Okay. So I'm just gonna quickly switch. I have the switch to the letter from the building inspector. Yes. Essentially this is as was summarized by Mr. Nessie. Say again, Chris. I was just saying that the letter from Mr. Champa is essentially as you had. Yes. Summarized. And just to review the record on the house again when was the house initially built? 1816. Obviously predating the 1929 bylaw. Yeah, by a few years. And do we know it, was it originally established as a single family house or a two family house or four, do you know? As of age 16, I can't tell you, Chris. Okay. At what point do we have the first record that indicates that it was for a family? Well, certainly it was used as a four family for years prior to 1961. But my prediction is that all we really need to do is look to 1961. Because 1961 is the date when the zoning board and again, Mr. Champa is using the word variance, okay? We don't even know whether it was a variance or a special permit, okay? But as of that date, it's my position and the applicant's position that the property which had been a three family at that point according to the building card was converted to a four family. So that date would commence as far as I'm concerned when we definitely know that it was a four would be 1961. And that would have nothing to do with the 1925 enactment of zoning in town, but rather that would have to do with a grant of relief from the zoning board of appeal. And that I believe is up on the screen now as your exhibit A. Yes, it's 290 at the top and it starts off 13 low and subject alter three family dwelling to a four family dwelling granted October 10th of 1961. And beneath that handwritten in is permit number 201 and permit number 201 is the building a permit that basically predated the grant of zoning relief. And my position on that is that what the zoning board did is the zoning board went ahead and dealt with the issue of the permit having been granted, perhaps without the proper zoning relief when they acted on October 10th of 1961, having in mind that the building permit to add the room was I think in June of 1961. So predated the zoning case. But again, my argument is the poor homeowner is at the mercy of the records in the building department and the records in the building department can be here one second and gone the next. And that puts the homeowner in a very perilous position. But again, I point to this card and I point to the building permits that issued and I say, if you look at the two of them, I think you can conclude that the zoning board did in fact grant relief for conversion of a three family dwelling to a four. Now, I also argue in my memo, if I'm going to rely on the building permit in June or July of 1961, that in fact the work went ahead with respect to that. We know that the work went ahead, whether there's a CFO or not, we know the work went ahead and if the work went ahead and the building inspector at the time didn't come down to the property and say to the homeowner, the property owner, stop, issue a stop order and six years went by, a building permit had issued and six years went by, then the building department is precluded from stopping that job even now and saying that it's not a four family use because the six year statute of limitations under chapter 40A, which I cite in my memo has long expired. The first record we have of four family is that 1961. Yes, I think we could conclude that Chris by just looking at the language all through a three family to a four family. Okay. And do you know in 1961 was the town still operating under the 1954 zoning bylaw? This came up in one of our prior cases and it was the same bylaw that got produced in my prior case and I'm trying to think of what the date on that was. I think it's the same bylaw, okay? Okay, yeah. Yeah, I don't think it was substantially changed between 1954 and 1975. I just wanted to confirm that that's true. Yeah. Okay, questions from the board? Mr. Hanlon. Mr. Nacey, what was the property, what was the property zoned as in 1961? What was the zoning district? I believe it was an R2 at that time. So I believe it's true that if you look at the 1946 map, it appears to me at least that the property was zone business A at the time. And there wasn't any R2 yet that would have been residential B. But if it was business A, that would include any of the residential zones including an apartment house. So here's the map that I'm looking at. And unfortunately, one question I have is whether or not this was still, but if you look at where this property now is, it's just before you get to Lock Street as you go west, correct? And that area there looks to me as where the house is and it looks to me as if it was zoned business A. Do you have any idea whether or not that changed between the date of this map, whether there was another map that intervened between then in 1961? Well, I know from the assessing record that the assessing record has as an R2. But as of when? It doesn't tell me that and I don't know that. R2 didn't exist in 1961 if the 1954 did. So that I suspect is what it currently is. What I'm trying to get at Mr. Inessie is the possibility that in 1961, the use of three or four was, if it was an apartment house at that time, which was defined in the zoning bylaw as anything that was three or more apartments, that it was already allowed and it didn't require any particular relief from the zoning board in order to justify going from three to four. Three would be a violation of R2. Sure. And so I'm exploring whether or not the real analysis of what happened in 1961 is that they were dealing with a prior non-conforming use. Right. And that, or that it became a prior non-conforming use but it wasn't non-conforming necessarily in 1961. In that case, if it went to four in 1961 and then it was rezoned R2 in a subsequent change of the map, it would have whatever rights you would have as a prior non-conforming use. You guarantee father, sure, yeah. And in any event, you know that it was already a three because it went from a three to a four in 1961. So at least more than two was already in established use even before any of this activity that happened in 1961 would be. Does that seem right to you? That's my understanding, yes. So that would suggest it's entirely possible. I mean, we're dealing here with historic reconstruction and we don't know. I would like very much to know what the zoning was here. I mean, it should be findable out in 1961 to know if it had been rezoned to residence B which was the equivalent of R2, then you're kind of back where you started. Although you might have a prior non-conforming use at three but if it was a conforming use to go to four and then R2 intervened later on that would put you at a different situation and maybe lead you not to have to rely on trying to infer the existence of a zoning record that we don't have. Yeah. I would have to check with the building department on that. I don't know whether Mr. Champere is on this zoom. And even if he is, he probably would not have access immediately to the zoning information or the zoning map for that particular period of time but I can certainly look into that, Mr. Hamlin. I believe that the zoning that the playing department does have records of all these things all the way back and they should be able to ascertain this. Yep. He might be at home. That's my point. Yeah. Mr. Champ is not on the call this evening. Again, I come back Mr. Hamlin to the building card dated October 10th of 61. And query, does that have any meaning? Does that have any significance? And should it not have significance to a homeowner who basically goes to the building department and looks and checks through the records? And if a homeowner does that, they're going to see that as of 1961, the property which might have been a three family, probably was a three family before that became a legal four family. So again, I go back to 1961 and that's the date I start with. Mr. Chairman. Mr. Dupont. So I started out with the same question that Mr. Hamlin did. What was the zoning in 1961? But I didn't do the deep dive that he did with respect to the analysis that led to the question as to whether it may have actually been a permitted use or permitted, you know, property change from three to four units. And then that might have predated the rezoning to the R2 district. I think it's important to know for our decision to be able to know which approach we're taking. So I think what Mr. Hamlin was suggesting and which requires a little bit more information to fill in the blanks is a much cleaner approach if it's at all possible. So I personally like to see those blanks filled in. If in fact that is not the case and it wasn't a matter of right to switch from three to four. I had a question as to, well, what was it? Was it two and then it was changed to three and was that permissible? And then if it was then changed from three to four was that permissible? And if it had been zoned for two family at the time, then that might be another concern or question. But the other thing that Mr. Nessie addresses in his memorandum is section seven of chapter 40A. And I do think that if there is a building permit issued and I think that's what Mr. Nessie is suggesting. And if then a period of six years or more elapses after the issuance of the building permit, there can't be any enforcement action brought to alter that building permit. And so that led me to the follow-up question of, okay, if in fact there was a building permit issued, if it was issued to convert from three to four families, even if that was an incorrect act on the part of the building department, it still seems to be protected. The next question though is, do you get to do more work after the fact? Because you do have the protection of section seven. After that, however, then what wherewithal do we have to say, yes, you can go ahead and you can do more work even though we might think that the initial permit was incorrectly issued. And I don't have any conclusion as to that, but I think that that's the next sort of alternative approach if in fact, Mr. Hanlon's suggestion is not the path that was actually followed. Mr. Chairman. Mr. Hanlon. I was thinking along the same lines, the literal language of section seven doesn't match up with this that well. It talks about having, springing an action to invalidate the building permit and to somehow undo the thing that was allowed, which in this case was building an extra room. And there's something of a jump between that and saying that there's a broad, a broad prohibition on questioning the use. And it seems to me that if in fact, that the statute is susceptible to that extension or that meaning in this context that there's probably some case law or something that that interpreting gives you a sense of what it is that it means. Surely if Mr. Anessi was arguing this in the Superior Court, he would be looking at seeing what he could get out of the precedence that must exist over time about that. And I just encourage him that if in fact there's any time to do that, I'm sort of reluctant to extend that statute into the situation without a little bit more confidence that that's the way the courts would interpret it. But in any event, once you decided that it did apply in this kind of situation, you still have got the question that Mr. DuPont raised as to whether that would protect you not only for what was already done, but for all the things that you might want to do based upon something that is an assumption underlying the permit that was previously granted. I had a question for Mr. Valarelli. Yes, Mr. Chairman. So the card that's the basis of exhibit A was, is this a card that's used for the zoning board at that time or was this a building department card? Do you know what- Yeah, so back in the day before we had Novus and all the stuff we have now, card catalogs were used to document the zoning hearings. And this particular zoning hearing was documented case number 290, docket number 290 that the person went. Looks like Alter three family dwelling to a four family dwelling. And it looks like the decision was granted. I think I'm not definitely with really the bones in this case, but I believe that the building commissioner was not totally convinced that this card in this hearing determination back in the day, 1961 was good enough to say, okay, this is actually a four unit building. Go ahead and remodel it as such. Thus, being uneasy with what he had, it came down to Mr. Renesi having to convince the board that in fact, if he has his sufficient, and in fact, the building is a legal four unit building. Thank you. You know, from my perspective, I certainly, Mr. Hamlin will see what I can do about coming up with what the zoning map showed for the property prior to the zoning case in October of 1961, what the zone, what the property was zoned for. I can certainly, I can get that information from the building department. But again, I come back to why do you have this information in the building department if people can't rely on it? Why don't you just throw it away? Okay, if in fact it's meaningless, okay? Why would you lead people down the primrose path by having this information, this documentation in the building department that people can come in, pull the jacket, see it in the jacket, rely on it, and then find out two, three years later that no, no, no, the building inspector is saying, well, I'm not sure I wanna rely on that. Well, why is it there? Take it out of the jacket. Don't leave it in the jacket, all right? All right, I think I've had my say on that. I can't say that any more aggressively than I have. Thank you. Are there further questions from the board? We do have a couple of hands up, but is Mr. Kahan, is he the architect? Mr. Nessie, what's your architect's name? Jason Khan. Jason Khan. So I saw Jason has his hand up. So Jason Khan. Yeah, two minutes are out of here. I might have done that inadvertently before. Oh, okay. I apologize. No, that's fine. Thank you. Thank you. That's it. Well, I'm now gonna be opening the meeting for public comment, public questions and comments will be taken as they relate to the matter at hand and should be directed to the board for the purpose of informing our decision. Members of the public will be granted time to ask questions and make comments. The chair asks that those wishing to address the board a second time during any particular hearing, please be patient and allow those which should just speak for the first time to go ahead of them. Members of the public who wish to speak should digitally raise their hand using the button on the participants tab and the Zoom application. Those calling in by phone, please dial star nine to indicate you would like to speak. You'll be called upon by the meeting host. You'll be asked to give your name and address. 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 once all public comment and questions have been addressed, the public comment period will be closed. So with that, Mr. Moore. Yes, thank you, Mr. Chairman. Steve Moore of Piedmont Street. I just, very, very quickly, I wanted to say first, I was unable to join you at the last meeting and there was a number of issues that came up that would have been of interest to me. I just wanted to say, I want to applaud the board's sensitivity to the three issues that came up at that meeting. Clearly it was discussed on a number of levels and I appreciate that even though I wasn't there. So thank you for that concern. But in terms of my first question would be, did Mr. Nessie say that the assessment office was assessing this building as a four family? Mr. Nessie? The assessing record that I pulled has it as a four to eight unit residential building. I have it in front of me right now. Okay, Mr. Chairman, I would say then that the current owner as well as any recent previous owner has been paying taxes on this property as if it was a four unit property, correct? Is that assumption correct? That would be correct. That yes. And wouldn't we be able to follow the assessment records back to how far back they've been paying taxes on this property as a four unit property? I have to assume the assessing records are probably in this case more complete than the building records. I believe that would be able to be accomplished. I would therefore just suggest to Mr. Nessie that he go call the historic records of the assessor's office to see how long it's been assessed at a four unit property. Because I would have to say that if the previous owner or owners have been paying taxes as such, you'd have a very strong case to blame that even if the building department has incorrect records here, almost by historic right, it should be now a four unit property, I would guess. Just that one point. Also, so, and I guess this might be for Mr. Valarelli. I guess, as you said, it was a card catalog system previously. There are records that must be maintained by the building department as card catalog records, but they sound to be somewhat incomplete or just they are what they are. And in some cases, the records don't have much detail that's correct, Mr. Moore. There are so many records, honestly, all over the place. This comes down to the building commission and not being comfortable enough on his own or given his authority with ISD to declare this a four unit building. And that's why he asked the applicant to reach out to the ZBA for their opinion to see if Mr. Ornasi could in fact convince them that it is and was and has been a four unit building. Mr. Valarelli, are some of the issues involved in producing the record due to the fact that the building department was recently moved from Grove Street over to Maple Street? It's part of it, Mr. Chairman. Unfortunately, ZBA records of this old are kept in three locations. One was the engineering department, which has now been relocated to 23 Maple Street. The basement of the town hall, which is just for lack of a better term, not very well organized. I think every part is made to dig up the original jacket for this particular case. I will say this. Unfortunately, we do have accessibility to just thousands of zoning board cases. Dating back to the beginning of time, if you will, we just didn't have this one for some reason. I don't want to give the board the impression that the case folders are just unaccessible. They are. It just so happens that this one was not. It could not be found. Hey, Mr. Chairman, I appreciate that insight. If these records were in the basement of the town hall, I've been there and you're, that's a disaster down there. So. I didn't want to say that, Mr. Moore, so thank you. I'm not sure why more effort has been placed on cleaning that area. However, I would suggest in the future, perhaps for Mr. Valarero, take it to further management that they, when they get interns in the summer, they should put some effort towards the organization of the building department's old records. It's an area which unfortunately seems to get ignored by many boards and commissions. And as is shown clearly by this case, it's a mistake to let that happen. And it needs, some effort needs to be put to remediate it. I mean. It is. And if I can, to Mr. Champ's credit, he has already started that process. Oh, excellent. Yeah. So we are actually in a temporary location now at Maple Street, heading back someday soon, I hope, to Grove Street in a much better organized situation than we ever had before. Prior to the renovation of that building, we just didn't have them wrong. That's why the doctors moved to the town hall and engineering and all over the place, but doesn't much help us on this particular case, but that, that rule is in the works. Mr. Chairman, that's excellent to hear. I'm happy to hear that the new building inspector is putting efforts that direction. It sounds like they're on a path to improvement, which is great. One last quick point I'd like to make is when this case is resolved, there are a number of significant trees, around this building. And I just want to remind the architect and the developer and the owner that they're going to have to protect those large trees that are all in the setbacks. And if you're going to do significant construction, that will have serious implications for those trees. You'll have to talk to the tree woman about it. Thank you. We are very sensitive to that, to the tree issue in this town. Excellent. Thank you, Mr. Chairman. Thank you, Mr. Moore. Next on the list is Mr. Seltzer. Thank you, Don Seltzer. I was just looking at the store. Sorry, I'm sorry. Oh, sorry, Irving Street. And I was just looking at the historical record for it. This is the Benjamin Walk store, built apparently by the son of the more famous Benjamin Walk of the Monadony Minuteman. And apparently it was built originally as a store and then it was converted to a two-family house in the mid-1800s. And it was still a two-family house in 1912. But the records I see here don't go any further than that. But two historical photos that I've uncovered clearly show it having four mailboxes in front. And if we could date these photos, one of which is in the collection of the Arlington Historical Society, I believe it might give a better idea of when it was converted to a four-family. Great point, thank you for that. It's a very good point, Mr. Seltzer. Yes. And that's a photo that you said is at the Arlington Historical. Well, I'm coming up with two photos. One is in the MACRES database, which I thank you for alerting to me many months ago. And if you zoom in on it, it's clear it's got four mailboxes. I don't know, I can't date the photo from that. Doing a quick search of the historical Society records brought up a better photo, which also has four mailboxes in front. And it doesn't have a clear date on what I found online, but maybe checking with this Historical Society, they might have some photos that are dated and might provide something useful. Thank you very much for that. Good point. Any further public questions or comments? Any further public comments? Seeing none, I'll go ahead and close the public comment hearing for this hearing. Mr. Chairman. Yes, sir. So a little while ago, I outlined one possible avenue too, for looking at this, that as Mr. DuPont said, had some gaps in the record. And it has one thing that Mr. Innessi pointed to that I wanted to comment on. And that is that the record exhibit A that we have in front of us clearly indicates that something happened in 1961. It indicates that there was some, something was granted, and that was apparently not by the, that was apparently by the zoning board. And that it seems to be a three family to a four family, where three family wouldn't be compliant with an R2 zone either. It's not clear what the reason is, why it is that they would seek the, maybe it was why they would exceed, need to get the zoning board approved to do that, but something apparently happened. Mr. Champa's article argument is more or less concedes that the zoning board took some action that at that time authorized a, moving to a four family dwelling. What Mr. Champa's concern is that that doesn't necessarily, that was often in his view made time limited in a way that you can't be sure that if on October 11th, 1961, it was okay to have a four family dwelling that that would continue to be true throughout the decades all the way up to now. And I guess Mr. Anessi has suggested that in his experience, making these things time limited or limited by the owner and something was not typical, and Mr. Champa suggests that it was, and it's on that degree of uncertainty that the debate in this case rests, because if in fact you could be, Mr. Champa seems to accept that, but for the possibility that this was limited or conditioned in such a way that the permission that was given in 1961 is no longer good, then I think he would concede that this is evidence that the permission was in fact given. And I guess that's a fact question as to what the practice was in those days. And I certainly respect Mr. Anessi's memory. He was there and I wasn't quite old enough to be there. Thank you for that. Mr. Champa clearly wasn't very old enough to be there, but presumably has looked back to see what the practice was. So if we're going to take this route and follow the case as it has been laid out for us by the building inspector that I would sort of like to understand a little better what the actual probability is that the action that appears to be noted in the exhibit A might have been conditioned in such a way that we can't rely on that but have to make sure that it wasn't somehow reversed later on or the condition expired later on. Am I allowed to say something, Mr. Klein? Mr. Anessi? Yes. I hear what you're saying, Mr. Hanlon, and you're an attorney and I'm an attorney. And we've both presumably tried cases, I've tried many you probably have as well. And I think that from me to suggest to you that it would be pure speculation to try to surmise that in fact, there were some sort of a condition subsequent to the grant from a three family to a four when in fact you don't have that language on the building card. If there was in fact a condition, a limiting condition with respect to the grant of zoning relief then certainly from an evidentiary point of view in a court of law that would have to be in that form because otherwise you could never get the speculation you're talking about into evidence because the judge would never allow it. So I'm suggesting that again, the building card is the key here. We look at the building card, we see the language in the building card, we don't see any limiting language in that building card, not withstanding what Mr. Champer might have said and believed to be the practice back in the sixties and the seventies about grants being limited and the like, none of that language is contained on the card. And the card is the only document that could go into evidence in a court of law. The speculation could never make it to over the rail to the jury. All right, that's all I need to say about that. Mr. Chairman. Your point. So I see this sort of three times on a fork. The first is that this was a special permit or some version of a special permit because as we see the apparently according to what Mr. Valarelli had explained, this is a record that references action taken by the board. And a question I have is whether or not at that time, if in fact this was a special permit, whether special permits were grant were recorded as they are currently at the registry of deeds. And that would be something of an important question for me to have answered because if you do get a special permit and you don't record it, I believe you use your rights. So I'm not sure that this is a special permit, but I'd be interested to know if at the time, special permits were in fact decisions, favorable decisions were recorded. So there's that possibility that this was granted in accordance with the zoning bylaw at the time. And it was converted from a three to a fourth family. The other possibility as Mr. Hanlon was sort of exploring earlier is that perhaps this was actually a matter of right that you had the zoning district that permitted this type of three or four unit building, but then of course that begs the question as to why you would have had a special permit request put in if you could do it as a right. But those two possibilities at least exist in my mind. The third is that these were not that this building card shows that there was in fact a decision that allowed the conversion from a three to a fourth family, but that somehow it did not conform with the zoning law at the time. And that there was a building permit issued for the construction. And that that building permit was actually issued in error. And then we get back to the section 48, section seven that Mr. Hinesi had cited in his memorandum. That would protect what's there. And I think we've said this already, so not to belabor the point, but that would protect what's there. But then the question arises as to whether it would permit any further modification of what's there. I would like to know the answers to those things as best as we can in order to make the decision. And I do agree with Mr. Hinesi that if at the end of the day, this is all we have, then we have to deal with that fact and make a decision based upon common sense as well as, you know, how we view the zoning bylaw. So at the moment, I'm just saying that I'm not really in a position to make an informed decision. And I would like to a little bit of follow-up on both what Mr. Hanlon had suggested earlier and any of the other questions which may seem open. I intend to follow up with Mr. Hanlon's suggestion. As I said earlier, Mr. DuPont, for sure. Just for Mr. DuPont's first question on to Mr. Valorale, the question about whether special permits would have been registered with the registry of deeds back in the early 60s. Do you know? Mr. Chairman, according to Mr. Chairman's memo, he researched that from the... So this one is not, but do you know if it was standard practice at the time to file? I do not. I do not. Mr. Hinesi, do you know if it was practice back in then? Quite frankly, do not remember. I don't remember, sorry. Mr. Chairman, we keep doing these forensic zoning cases now. I feel like it's cold case files and all of the laws from the bowels of whatever building they're contained in. So it's interesting that it's also a challenge I think for the applicants these days. No, absolutely. My position would be that even if it had to be reported, I still fall back on chapter 40a, section seven. That's all I'll say about that. So there's a further question from Mr. Valorale. If the board was to find that in fact, the four family was an allowed use and this property could continue as a four family, then the four family use would be considered pre-existing non-conforming in regards to the current bylaw. And as such, would the board need to make a finding under section 811 on an alteration reconstruction, extension or structural change? All right, that's in relation to a single family home. Non-conforming uses, it's a change in non-conforming use, that's non-conforming accessory uses. Permit is not going to be changed. Valorale, would you apply to any changes, substantial extensions to this building from the general manager? Not entirely sure if we're required to make a finding or not. Okay, I'm gonna be asking if there would be an extension of a non-conformity, is that what you're going? So just because this, I haven't even looked to see, I mean, I know that the use would be non-conforming and there would be an alteration to non-conforming use. I'm not convinced that the board needs to make a determination in regards to an alteration of a structure with a pre-existing non-conforming use, is there any alterations to the property that would be required because of the building being a non-conforming structure, which I'm assuming it is because there's no front yard setback and there's almost no rear yard setback, with the exception of the dog lake portion of the site. Well, that's correct. So I think the question before the board tonight, Nessie has provided enough evidence to convince the board that it is in fact, it was a four family unit and still is based on the evidence that Mr. Nessie presented that the board is comfortable with that. A lot of other things will go on here, such as it exceeds three units, so automatically we're into fire suppression systems and the like, those are building code issues. So ISD will deal with that. But would the board be required to make any findings on the structure? I'm just trying to figure out basically if the board was to say the board was to accept the four units, would the applicant then have to file for a special permit under section eight for work on a pre-existing non-performing structure? No, without examining the plans, I don't think they are becoming more non-performing. Okay. Again, just a quick look, but I saw no expansion of the footprint. In fact, maybe a reduction in GFA, I don't know. Okay, but certainly when the plans are under review and the special services, if questions were to come up on that regards, then they could come back to us at that time. They could, in fact, it happened. It happened too high with that just two months ago. All right. Okay. Mr. Chairman, I had a question about that as well. Sure. So on the GFA spreadsheet on page 12 of today's agenda, it looked like the increase in GFA was about 1,100 square feet. So I was wondering, does that mean that we're also asking about a large addition in addition to the designation as up for unit structure? I believe we're staying within the existing foundation. Rick, if we're staying within the existing foundation, would there be a need for any relief with respect to a large addition? I would not. Mr. Nessie, that only applies to a full expansion of the footprint. Thank you. Thank you. You're welcome. In looking at the table as well, if the attic floor is proposed to be 1,645 square feet and the second floor is 2,272 square feet, that's more than 50%. So it's no longer a two and a half story building. Mr. Chairman, we may have to look at, but I'm not 100% sure. It's a little ambiguous because I believe that that only applies to one or two family units. Now we are dealing with a four family unit and a two family zone. I don't know, but I do know this much. If it does apply, then they are right back to the board for another issue. Yeah, my intent is if I make it by the zoning board with respect to the issue that I brought before the board, my intent is to file a plans with the building department. And if in fact we need relief at that point, Chris, then he's going to send us back to you folks. Okay, are there further questions from the board? No, I'm going to go ahead and stop the share here. So at this stage of the board feel that they have sufficient information to reach a decision on this case, or is there additional information that we would like to have available to us before we can make a decision? You know, there's some questions about, I'll go back to my notes here, firm any information about what the use was. I think there's some questions about what the use was prior to 1961. I'm sure when Mr. Seltzer brought us up, you know, there was a two family in 1912, and then there's a question in regards to when the house appeared to have four mailboxes, and then we have a record that had changed from three to four in 1961. Do we have enough information at this time, or is there more information we're looking for? Mr. Chairman. Mr. Hanlon. Mr. DuPont indicated earlier that there was, you know, several, there were three different, or three different times here, all of which required a little bit more information. Mr. Nessie has already indicated his willingness to go and run some of these things down, and I would, I personally would like to give him the opportunity to do that so that we can, that we can operate on a firmer footing here. I would like to do that, yes. Can we clarify what those three things are, Mr. Chairman? I can tell you what I think they are. Okay. That would be perfect, yeah. Okay, all right. One of them is what was the use of the property prior to 1961? If I can ascertain that. Mr. Hanlon had asked what was the zone that the property was in in 1961? At the time the zoning board granted the relief, they granted from a three to a four. Mr. DuPont has asked whether a zoning decision had to be reported in 1961, and I can easily find that out, I'm sure. And Mr. Hanlon also had some questions about the implication and the reach of chapter 40A section seven. I'll see what I can do about shutting some light on that as well. And Mr. Salsa brought up a very good point, which I'm going to see what I can find out about in terms of those four mailboxes. And I'm going to see if I can ascertain when that photo would have been taken showing four mailboxes, because that would show as of that date that it probably was a four family use. That's what I have. I may be missing something. That sounds really complete, Mr. Hanlon. I just wanted to point out that while the decision in 1961 says something about it going from a three to a four, that doesn't necessarily mean that it hadn't been used at some point prior to that as a four. And so, it would be interesting to know that if it had been used as a four, say in 1955 or 1946 or whatever, that would have a bearing on a bigger bearing on where we are than if we just confirmed that after 1961 it became before because it's to be assumed that that's what the point of exhibit A is. Is there any additional information we were hoping to achieve? Looking around the board, I see none. With that, I think we would be looking to continue this hearing. Mr. Nessie, would you be amenable to that? I would, absolutely. So we would be looking to continue until Tuesday, February 22nd. I'm just noticing now it's 222, 2022. February 22nd, 2022 at 7.30 p.m. That's fine by the applicant. May I have a motion to that effect? I moved. Thank you, Mr. Hanlon. Second? Second. Thank you, Mr. DuPont. Vote of the board, Mr. DuPont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Riccadelli. Aye. The chair votes aye. We are continued on 1113 Lowell Street until Tuesday, February 22nd, 2022 at 7.30 p.m. Thank you all for your time. Mr. Chairman. Yes, sir. I'd like to point out that as a result of all this, there are no new opinions to write as a result of this meeting. Something for which I thank you all. All right. We now return back to the start of our agenda. So back to item number two, which is the approval of meeting minutes from December 21st, 2022. These minutes were distributed by Mr. Vallarelli to the board for comment. I know comments were received. Are there any additional comments in regards to the minutes from December 21st, 2021? Seeing none, may I have a motion to approve the minutes from December 21st, 2021? So normal. Thank you, Mr. Mills. Second? Second. Thank you, Mr. Hanlon. Let's go to the board, Mr. Dupont. Aye. Mr. Hanlon. Aye. Mills. Aye. Mr. Riccadelli. Aye. Mr. Haldi. Aye. Those minutes are approved. That brings us to item number three on our agenda, approval of the decision for 238 Park Avenue. So this was distributed, this was written by Mr. Hanlon, distributed to the board for comment. Has everyone had an opportunity to review the decision? Okay. Are there any additional questions or comments on in regards to that decision? Seeing none. I have a motion to approve the final decision for 238 Park Avenue. So moved. Thank you, Mr. Hanlon. May I have a second? Second. Thank you, Mr. Mills. Vote of the board, Mr. Hanlon. Aye. Mr. Haldi. Aye. Mills. Aye. Riccadelli. Aye. Chair votes aye. That is approved. Brings us to item four on our agenda, the approval of decision for 47 Crosby Street. Again, this is a decision written by Mr. Hanlon, circulated to the board for questions and comments. Are there any further questions or comments in regards to 47 Crosby Street? Seeing none. May I have a motion to approve the final decision for 47 Crosby Street? So moved. Thank you, Mr. Hanlon. Second. Second. Mr. Mills. Vote of the board, Mr. Hanlon. Aye. Mr. Haldi. Mr. Haldi, you there? Sorry. Aye. Thank you, Mr. Mills. Aye. Riccadelli. Aye. And the chair votes aye. So that motion is approved. Brings up to item number five on our agenda, approval of decision for 1618 Swan Place. This is a decision that I wrote, circulated to the board for questions and comments. Are there any further questions and comments in regards to the final decision for 1618 Swan Place? Seeing none. May I have a motion to approve the final decision for 1618 Swan Place? Mr. Chairman, so moved. Thank you, Mr. Hanlon. A second. Second. Thank you, Mr. Mills. I'll vote of the board, Mr. Hanlon. Aye. Mr. Haldi. Aye. Mr. Mills. Aye. Mr. Riccadelli. Aye. Chair votes aye. That final decision is approved. Brings to item number six on our agenda, which is the approval of the decision for 121 Brattle Street. This is a decision written by Mr. Hanlon, circulated to the board for questions and comments. Are there any further questions or comments in regards to 121 Brattle? Seeing none, may I have a motion to approve the final decision for 121 Brattle Street? So moved. Thank you, Mr. Hanlon. Have a second. Second. Mills, a vote of the board, Mr. Hanlon. Aye. Mr. Haldi. Aye. Mr. Mills. Aye. Mr. Riccadelli. Aye. Chair votes aye. That one is approved. Brings us to item number seven, discussion of potential zoning by-law amendments. So I had circulated to the board prior a list of six potential zoning articles, which were sort of based on the practice that we've had recently. So I had brought those to the attention of the zoning by-law working group, which is a town group of which I'm a member. And from there, they were discussed yesterday evening, at the Arlington Redevelopment Board's meeting. The Redevelopment Board has agreed to take them on as their own articles. So they have recommended them, along with four additional articles to be included on the warrant that has gone to the select board and to Town Council. Town Council has agreed to, has accepted them. So those six articles will be going forward onto the warrant and I'm not entirely sure what the hearing schedule is going to be for the Redevelopment Board in regards to those, but the Redevelopment Board will be having public hearings on all of those. And if anyone is interested in following along or being a part of that process, let me know. And I'm happy to share anything on that. Mr. Chairman. Yes, Mr. Hanlon. It seems to me that I've seen and support all of these amendments. It does seem to me to be important that this body, which gets so used to the ways in which the zoning by-law just doesn't work where there's frictions, there's inconsistencies, there's what they're usually is. It's almost as bad as the tax code. And the only way that people actually get an opportunity to figure out how to make those incremental improvements, which don't catch the imagination and don't blow with the winds of the time is if this body takes responsibility for articulating these things and working to make it work better. And it seems to me that it's important for the town that we do that because when you have a situation where the zoning by-law doesn't mean what it seems to mean or whatever, it begins to cause people who's confidence in the by-law itself. And that in turn leads to sort of an atmosphere in the world that we're living in that is more typical of Washington DC. So I would think that it's very useful and I'm thankful to the chairman for bringing these things up. And that is a really important role for this board to play. And I'm looking forward to doing that. Thank you. And the ARB was very receptive to the discussion and I think that they were very gracious in accepting all six of them under their own auspices because they are allowed to put items directly on the warrant which the zoning board of appeals is not allowed to do. And they did speak very favorably of working with the zoning board of appeals, both on these but also in the future to be able to more fully vet what may need to be changed in the zoning by-laws or what little things need to be adjusted. So these were the six that we had talked about before and all six of these will be discussed further at the ARB. That's the auspice of all our business for this evening. I know it's very early for us, but not a bad thing. And then our next hearing as we'll state it several times is going to be Tuesday, February 22nd at 7.30 p.m. And Mr. Valerelli, I think you said there might be two new cases on that date. That's correct, Mr. Chairman. I have two very incomplete applications and if they are submitted in time, time to advertise that we'll put those on the list about 20 seconds. I'll let the board know as soon as possible. Perfect. Anything further this evening? Yes, Mr. Chairman. Mr. Mills. I just like to take the opportunity to thank you and Patrick for your hard work on this board. Pat has done Yeoman's work writing up these decisions time after time. He's made an excellent model as was shown in your recent decision you wrote up. You're using it. I mean, that was a difficult decision swore in place, you know, with the variants and all that in the subtleties to carry forward. And I think you guys have done a great job, Pat. You know, you really did have a goal of making these much more uniform and easy to follow when you've done a land office job, just great job. Thank you. Totally agree, Mr. Mills, totally agree. Same here. Thank you very much, Mr. Mills. With that, I would like to thank you all for your participation in tonight's meeting at the Arlington Zoning Board of Appeals. Appreciate everyone's patience throughout the meeting, which is especially like to thank Rick Valaralee and Vincent Lee for all their assistance in preparing for and hosting this online meeting. Please note the purpose of the board's recording the meeting is to ensure the creation of an accurate record of our proceedings. It's our understanding that reporting made by ACMI will be made available on demand at ACMI.tv within the coming days or weeks. If anyone has any comments or recommendations, please send them via email to zvaatown.arlington.ma.us. That email address is also listed on the Zoning Board of Appeals website. To conclude tonight's meeting, I would ask for a motion to adjourn. So moved. Thank you, Mr. Hanlon. Second? Second. Mr. Dupont, vote of the board. Mr. Dupont. Aye. Mr. Hanlon. Aye. Mr. Mills. Aye. Mr. Rickidelli. Aye. Mr. Hawley. Aye. And the chair votes aye. We are adjourned. Thank you all so very much. Thank you all. Thank you, gentlemen. Stay healthy. Have a great night.