Board of Zoning Appeal for the City of Cambridge
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1 BOARD OF ZONING APPEAL FOR THE CITY OF CAMBRIDGE GENERAL HEARING THURSDAY, SEPTEMBER 28, 2017 7:00 p.m. in Senior Center 806 Massachusetts Avenue First Floor Cambridge, Massachusetts 02139 Constantine Alexander, Chair Brendan Sullivan, Vice Chair Janet Green, Member Andrea A. Hickey, Member Patrick Tedesco, Member Slater W. Anderson, Associate Member Sean O'Grady, Zoning Specialist ____________________________ REPORTERS, INC. CAPTURING THE OFFICIAL RECORD 617.786.7783/617.639.0396 (Fax) www.reportersinc.com I N D E X CASE PAGE 2 BZA-013691-2017 -- 346 Washington Street Original Hearing Date: 07/27/17 7 BZA-013611-2017 -- 35-37 Berkshire Street Original Hearing Date: 07/13/17 295 BZA-013730-2017 -- 8 Brattle Street Original Hearing Date: 08/1017 12 BZA-014160-2017 -- 1160 Massachusetts Avenue 320 BZA-014181-2017 -- 81 Kirkland Street #2 279 BZA-014217-2017 -- 144-146 Raymond Street 335 BZA-014237-2017 -- 156 Line Street 342 KeyWordIndex 3 P R O C E E D I N G S * * * * * (7:00 p.m.) (Sitting Members: Constantine Alexander, Brendan Sullivan, Janet Green, Andrea A. Hickey, Patrick Tedesco.) CONSTANTINE ALEXANDER: The Chair will call this meeting of the Zoning Board of Appeals to order. As is our custom, we will start with continued cases. These are cases that started at an earlier night and for one reason or another have been continued until tonight. And then we'll turn to our regular agenda. Before I start the meeting, I'd like to read a statement: After notifying the Chair, any person may make a video or audio recording of our open sessions or may transmit the meeting through any medium subject to reasonable requirements that the Chair may impose -- UNIDENTIFIED MEMBER FROM THE AUDIENCE: Microphone? CONSTANTINE ALEXANDER: Sorry? 4 JANET GREEN: Microphone. UNIDENTIFIED MEMBER FROM THE AUDIENCE: Microphone. CONSTANTINE ALEXANDER: I thought I was talking loud enough, but, okay, sure. UNIDENTIFIED MEMBER FROM THE AUDIENCE: There's a fan. CONSTANTINE ALEXANDER: Okay, understood. Thank you. Okay, I can be heard. I'm going to start again, the statement I wish to read. After notifying the Chair, any person may make a video or audio recording of our open sessions or may transmit the meeting through any medium subject to reasonable requirements that the Chair may impose as to the number, placement, and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the Chair will inform other 5 attendees at that meeting that a recording is being made. And I wish to advise is that there are two recordings being made: One is by our stenographer. She, to assist her in preparing the transcript of the meeting, she records to help her out. And the other, a citizen of the city has left a tape recorder right there. So there are two recordings being made. Is there anyone else here regarding this meeting? I assume nobody is making a video since we can't see any. Okay, with that, beginning -- no, I'm going to start with the continued cases. * * * * * 6 7 (7:00 p.m.) (Sitting Members Case BZA-013691-2017: Constantine Alexander, Brendan Sullivan, Janet Green, Andrea A. Hickey, Patrick Tedesco.) CONSTANTINE ALEXANDER: And the Chair is going to call first case 013691, 346 Washington Street. Is there anyone here wishing to be heard on this matter? (No Response.) CONSTANTINE ALEXANDER: There's no one here wishing to be heard? Is the petitioner -- SEAN O'GRADY: No. CONSTANTINE ALEXANDER: She doesn't plan to come? SEAN O'GRADY: No, no. We viewed this as just a loose end. CONSTANTINE ALEXANDER: Okay. All right. Let me then explain. Back in several meetings ago, on July 27th at our 8 hearing this petitioner sought relief from our Board seeking a Variance for construction of stairs and the like and a Special Permit with regard to putting windows in the setback. At that meeting the Board was favorably disposed to the granting of relief. We in fact voted to grant the Variance and we commented favorably on the Special Permit, but low and behold we failed to take the actual vote on the Special Permit. So the purpose of tonight is to now take the vote that we didn't take the last time. I think all five members are here tonight. We were here on, when we -- back in July. So I don't think there's any need unless people feel otherwise need to go into the case, discuss what it's all about. JANET GREEN: I'm comfortable. ANDREA HICKEY: Take a vote. CONSTANTINE ALEXANDER: Okay, so we'll now move to a vote for the Special Permit. The Chair moves that this Board make the following 9 findings with regard to the Special Permit being sought: That the requirements of the Ordinance cannot be met without a Special Permit. At that traffic generated or patterns of access or egress resulting from the relocation of the windows will not cause congestion, hazard, or substantial change in established neighborhood character. That the continued operation of or development of adjacent uses that's permitted in the Ordinance will not be adversely affected by what is proposed. And in fact, there is a letter from one of the abutters in support of the relief being sought. That no nuisance or hazard will be created to the detriment of the health, safety, and/or welfare of the occupant of the proposed use or the citizens of the city. And that generally what is being proposed will not impair the integrity of the district or adjoining district or otherwise derogate from the intent and purpose of this 10 Ordinance. So on the basis of these findings the Chair moves we grant the Special Permit requested on the condition that the work proceed in accordance with the plans that we initialled and approved with regard to the Variance. All those in favor please say "Aye." (Aye.) CONSTANTINE ALEXANDER: Five in favor. Motion granted. (Alexander, Sullivan, Green, Hickey, Tedesco.) * * * * * 11 (7:05 p.m.) (Sitting Members Case: BZA-013730-2017: Constantine 12 Alexander, Brendan Sullivan, Janet Green Andrea A. Hickey, Patrick Tedesco.) CONSTANTINE ALEXANDER: The Chair will next call case No. 013730, 8 Brattle Street. Is there anyone here wishing to be heard on this matter? ATTORNEY JAMES RAFFERTY: Good evening, Mr. Chair, members of the Board. For the record, my name is James Rafferty. I'm an attorney with offices at 675 Massachusetts Avenue. I'm appearing this evening on behalf of the applicant &pizza and this is an application for a fast food Special Permit to be operated at -- CONSTANTINE ALEXANDER: Some people can't hear. ATTORNEY JAMES RAFFERTY: Okay. This is an application for a Special Permit by the technical name of the application the applicant is set forth in the application, it's IMA Pizza Store 21, LLC, doing business as &pizza. The case seeks a fast order Special 13 Permit at a location at 8 Brattle Street in Harvard Square. As I'm sure most of the Board are familiar with, this case was heard. It was a prior application for a Special Permit by this operator that was heard by the Board and decided at your April 27th meeting. And at that meeting three board members voted in favor of the Special Permit and two board members did not and thus the Special Permit was not granted under the provisions of the repetitive petition requirements of the Ordinance that would limit the ability for an applicant to return within two years once a negative petition, a negative decision was issued on a case. I provided the Board in an earlier filing with a copy of the leading case in this area, which deals directly with the question or the issue of repetitive petitions. It's called the Ranney case. And in that case the Court examined Section 16 of Chapter 40A which is the, at which is identical and is the statutory predecessor or rationale for our provisions in Article 10 regarding the repetitive 14 petition case. CONSTANTINE ALEXANDER: Mr. Rafferty, let me interrupt you just for a second. I want to give some comments to the audience so that everyone -- we're all on the same page. As Mr. Rafferty correctly has stated, petition was denied in -- that was submitted was denied in April. Ordinarily that means you cannot come -- the petitioner cannot come back before our Board with that same proposal or something very similar for two years. However, Section 10.51 of our Ordinance, which is identical provision in the state statute, says that, if we vote, this Board votes that there are specific and material changes in the conditions upon which the previous unfavorable action was based, we make that finding. Then we can hear the case tonight and the petitioner does not have to wait the two years. So, what's going to happen tonight, and this is really the reason why I wanted to speak a little bit, we're 15 going to deal first with the Section 10.51. Namely, is what they're proposing tonight contained specific and material changes in the conditions upon which we previously denied relief? That's a narrow issue. And to the extent when we deal with that issue, I'm only going to take comments to people who address that issue. We're not going to get into the merits of the case at this stage. And if anyone does lapse into the merits, I will rule them out of order.