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9.15.2026 Board of Adjustment

Video

Welcome to the September 15th, 2026 meeting of the Zoning Board of Adjustment.
Prior to getting on with our agenda, I would ask for, we have a couple of postponements tonight,
and I would ask for a motion to suspend the rules so that we can take those out of order.
Mr. Rossi?
Second.
So moved.
Okay.
Second, Ms. Janice.
All those in favor?
Aye.
Aye.
Okay.
So just this was previously postponed, but the Hope for Tomorrow Foundation is postponed to our September 5th, our October.
October meeting but we do need to act on some requests to postpone that were asked for
today and the first one is B a request to postpone the request of Amory
Wiley Rebockable Trust owner for property located at 64 Woodworth Avenue whereas
release is needed relief is needed to construct in addition to the existing
structure which requires the following one a variance from section 10.521 to allow
a eight and a half foot left yard where 10 feet are required
required and be 26% building coverage where 20% is the maximum said
property is located on assessor map 243 lot 42 and lies within the single
residents B district the request is to postpone to the October meeting mr.
Nees
Madam Chair I make a motion to postpone old business item B till the October meeting
okay is there a second second by mr. Reum all in favor aye aye aye aye any
opposed it is approved seven zero the next postpon it will be handled by
Vice Chair Madsen as I am recused from the next application okay so I'll read into
the record for item three new business a request to postpone the request of
Christopher H. Daniel for property located at 50 Wooden Street whereas relief is
needed to construct a rear addition and cantilever deck which requires the following
one varying some section 10.521 to allow a 9.5 foot rear yard where 25 feet are required said
property is located on assessor map 102 lot 66 and lies within the general residence B
in historic districts you get a motion to mr. chair I'll make a motion to postpone this
item to the October meeting and I will like to speak to my motion as well okay
if you need a second first or you can okay yeah second okay okay
thank you so we don't want to necessarily take this postponement request
lightly however this is being requested because there was some significant
information that was provided yesterday regarding this application and
concerns about it from from one or more abutters so with that
I think it behooves both the board to have time to consider that information more
thoroughly and also the applicants representative has requested additional time to also
consider the information and provide any kind of necessary rebuttal. With that I
think the request for a one-month post-moment is appropriate.
Okay. Does the second have anything to add?
Nobody. Okay. Okay, you got a motion.
A brief point of order from the abutter? This isn't, yeah. So this is not a public
hearing right now so it's up to you or any advice from staff we can take the
comment you could suspend the rules and take a comment but you'd be opening a
public hearing yeah submit I'd have to make a motion to suspend the rules I'm not
willing to make that motion okay so I guess we'll vote on post-bundment all on favor
Aye.
Any opposed?
No, okay.
This is postponed until our October meeting.
Thank you.
And now we will, I just want to inquire us too.
Yeah, I don't know if I want to wait for the technical issues.
Sorry, technical difficulty.
Yeah, we're having some technical difficulties, so I think I'm just going to give our staff aide and Mr. Sullivan time to.
So in the interim, just to let we have a lot of people who
here. Perhaps you're all here. There's only going to be two things on tonight's agenda,
and that is the old business for Zero Joffrey Avenue and 18 Barbary Lane, which will be heard
tonight, and then also an administrative appeal, which is for Blossom Street, and the rest of the
agenda is postponed. So if anybody is here for anyone except, if anyone is here for any
application that is not those two, please know they will not be heard tonight.
This is yours. And with that magically, we've got our technical problem solved. So returning now to a
regular agenda, the first item of business is the approval of minutes. And the first set of minutes is for
August 18, 2026. Do I hear a motion to approve? Madam Chair, I move to approve the
minutes from our August 18th meeting, I do have one correction.
We'll need a second, please.
Second.
Second.
And your correction, Mr. Rehom?
Yes, on page four of the minutes, it's page six of our package.
Second paragraph after speaking to the petition, the paragraph again's time stamp 48 minutes, 55 seconds.
Mr. Aram asked if there was anything in writing.
writing relating to the city regarding the street, a paper one. Just, it's missing a word there.
It should be regarding the street being a paper one. And then, actually, I do have a second item.
I'm sure, I apologize. I just think there's some text that is missed located. So on page seven,
really towards the end of the discussion on the item that was 315 Bartlett Street, there's
is a paragraph that's in italics, so it's page seven of the minutes, page nine of our packet.
It says the final motion as restated by the chair, is to postpone the public hearing and request,
end request to the September 15th meeting so that the applicant can provide information on how and when
driveway access will be provided to lot 233-135 and information on adopting the portion of Joffre Avenue
to add square footage to the applicant's lot. I think that paragraph actually belongs to the top of page six in lieu of
the wording that is at the top of that page.
But I will, I guess, we double check with the chair if you feel that that that is correct.
It's certainly a misplaced paragraph, at the very least.
It is. It is. And I noticed that in my review of the meeting minutes as well.
So are there any other corrections or amendments, Mr. Neese?
Thank you, Madam Chair. On page 10, third line of the last paragraph.
And that's, hang on a sec, packet page 12, I'm sorry, page 10 of the meeting minutes, packet page 12.
Third line of the last paragraph, it says given the length prior discussion, it's supposed to be lengthy, I believe.
Anything else?
No.
Okay.
Any other amendments, corrections?
Not amendments, but corrections to the meeting minutes?
Okay.
So with those revision suggested,
All those in favor of adopting the August 18 meeting minutes?
Please say aye.
Aye.
Obstain.
Okay, one assumption.
Okay.
The next item of business is the August 25th, 2026 meeting minutes.
Do I hear a motion?
Madam Chair, I'm going to make a motion to approve those August 25th, 226 minutes, but I do again have a few corrections.
Okay.
Is there a second?
I'll second, but I also have a comment.
Okay. You can do that.
Okay. Mr. Am?
Yeah. So, again, really, this case that we had during that meeting had a lot of subtlety associated with it,
some rather lengthy back and forth and complex discussions, so I thought that our notes taker did an outstanding job overall.
However, just a couple of spots where I think the record got a little misinterpreter or miswritten, as indicated.
So page four of the minutes, page 18 of our packet, the very top of the page has all
their parking behind them and not many properties complied with the two feet where 50 feet is required.
Really, what was being said there was you should read all their parking behind them
and not many properties complied with the parking being set back.
So delete two feet where and insert parking being set back.
And then 50 feet where.
50 feet and remove the word is and replace it with as.
So it should really read all their parking behind them and not many properties complied with the parking being set back 50 feet as required.
Right.
So that was the requirement.
And this specific applicant's case, it was two feet.
But in the other cases, they were not the 50 feet, not necessarily two feet.
Further down on that same page, sort of in the middle, there is a he said some of the applicant.
proposed uses would be allowed by special exception and that dining was a permitted use in the G1 and G2 districts.
There is a couple subtleties there that I do think are important, and it really should be that should be, that should be, he said some of the applicants proposed uses would be allowed by special exception, and that at the word outdoor dining was a permitted, add in the word, accessory use in the G1 and G2 districts, because that is how our
ordinance reads. It says outdoor dining is a permitted accessory use.
A little further down on page five of the minutes, page 19 of our packet. Again, a paragraph sort of
in the middle begins. Mr. Raylum said he agreed with almost everything Vice Chair Madsen said. He said
that Vice Chair Madsen thought there was nothing de minimis about the request, but Mr. Ram thought they were
justified. Again, that was a, you know, a discussion between the vice chair and myself. I think
this more would accurately represent it, and the vice chair can correct me if he feels differently,
that vice chair Matheson thought there was something de minimis about the request, but
Ms. Ram thought that they were substantial but justified, so change nothing to something and add in substantial
but before justified. I think that was the genesis of our discussion. And then just a little
further down the third to the last sentence, he said what?
the applicant was asking for is a small portion of the property. Just to clarify it,
and it kind of relates back to the prior sentences, but to make crystal clear, he said what the
applicant was asking for is outdoor dining on a small portion of the property. So add in the term
outdoor dining on. And then the physical constraints of the property of a further expansion of that
particular aspect, the outdoor dining. That's all I have, Madam Chair. Thanks. So just to chair inquiry,
these are changes that you noted when you, that when you reviewed the tape or you believe more adequately
they more accurately capture what we were talking about. I mean, I did go back and double check one thing that I had,
but yeah, they are in essence what I was talking about.
Okay. Any more changes, Vice Chair Mattson?
Yeah, so on page five of those minutes, page 19 of our packet in the beginning of the second paragraph,
or, yeah, the second sentence of the second paragraph, again, referring to the sentence
where it says, he said the vice chair, Mattson, thought there was nothing de minimis about the
requests. I agree with the change that to changing nothing to something, but I guess a point
that I would note is even though that's true that was said at this moment in the meeting,
my reference to de minimis earlier on in the meeting was actually.
actually referring to the impact of the surrounding industrial uses as opposed to the requests themselves.
So that's with the correction of changing nothing to something, this sentence is accurate.
I just thought it would be worth noting that my actual reference in the video of de minimis earlier in that meeting was regarding the industrial uses.
So I'm not sure if that would be added here, even though I didn't say it there,
or because of my original comment of de minimis was not included in these minutes.
So I guess it's at least, at least it's a comment.
I don't know how to amend that because I agree with Mr. Ram's changes to this particular portion of the minutes.
All right, then why don't we let Mr. Ram's changes be the...
Yeah.
that's okay that works are there any other changes corrections mr.
nese on page two of them minutes page 16 of our package timestamp 2330 the second line in
there reads a place of assembly is allowed to have entertainment comedy or music but is
not listed I think that's supposed to be they are should say they are not listed not
is are they are not listed any other changes corrections I should say
Okay. So with those revisions to the meeting minutes, the motion is to approve the meeting minutes.
All those in favor?
Aye.
And any abstentions?
Abstain.
Okay.
Okay.
Okay.
All right, with that, we'll move on to our first item of business, which is
old business, C.
The request of Michael J. Forelli, owner.
for property located at zero Joffrey Avenue and 18 Barbary Lane, whereas relief is needed
to construct a single family home on a vacant lot, which requires the following.
One, variance from Section 10.5 to one to allow for zero feet of street frontage where
100 feet is required.
B, allow for 12,185 square feet of lot area where 15,000 square feet is required.
C, allow for 12,185 square feet of lot area per dwelling where 15,000 square feet of lot area per dwelling
where 15,000 square feet is required.
And two, a variance from section 10.1114.31 to allow for two driveways on a single
lot where one is permitted.
Said properties are located on assessor map 233, lot 135, and lot 131, and lot 131, and lie within the
single resident speed district.
Before I ask who was here to speak to this, just for tonight, this is the only application
we have, but it'll be 15 minutes for your presentation and
and then five minutes when I open up the public hearing for the public to weigh in.
But who is here to speak to this application?
Thank you, Madam Chair, members of the board, Attorney Derek Durbin.
I'm here on behalf of the applicant, owner of the property, Mike Farrelli.
Hopefully I will not be utilizing 15 minutes, and I'll try to keep this as brief as I can.
My colleague, Darcy Pizer, was here on August 18th and presented the application that evening to the board.
At that time, quite a bit of confusion was expressed over a couple different items related
to the application, maybe most notably the Paper Street, also how legal access could
be appropriately provided for the rear lot, the lot that we're discussing in the future.
So ultimately, you voted to postpone the public hearing so the applicant could return to the board
and just quoting, provide information on how when driveway access will be provided a lot, 233-135,
and information on adopting the portion of Joffrey Avenue to add square footage to the applicant's lot.
David, I'm sorry for butchering the name of Joffrey Avenue.
I never took French classes, but I'm going to go with my version of it.
So what followed after the meeting is I did have an opportunity to meet with staff.
I met with Attorney McCourt.
I met with Stephanie, as well as Jillian, and Peter Stith to discuss the board's request for information.
Also, I know a question had specifically come up about the paper street.
how does the board verify that the city doesn't actually have any interest in the paper street?
And I think as a result of that, what, at least taking the first issue related legal access,
I think what I've come up with and proposed to the board in a letter that you should have before you tonight,
I believe is a reasonable solution to any concern that that rear lot,
could the relief for the rear lot could be granted by the board but then that there
could be some future question of access and what we've proposed are basically two conditions if
the board were willing to approve the request the request or before you tonight and I
would submit that there is some precedents for this type of approach which I provided one
example of as well with my letter
But the first condition is that an agreement, deed, covenant, or other written instrument
of similar effects shall be approved by the city legal department and recorded with the registry of deeds
reserving a driveway access easement across, and then it names the lot.
The second condition, the exact location and configuration of the driveway across that lot,
may be modified by the Department of Public Works, and Trevor had asked for an insert.
of the word or the fire department prior to issuance of a driveway permit.
Or the fire department did not appear in the letter that I submitted, but that is completely acceptable language to the applicant.
So that is how we are proposing to address that first item or request for information to the board.
The second issue regarding the Paper Street, Joffrey Avenue, I mean, you should have some correspondence from the city in your meeting packets that should resolve questions around the status of the paper street and that the city does not have or has not asserted any legal interest in the paper street.
I also, in my letter, pointed out some of the case law surrounding the paper street.
this just to the effect of that when there isn't any specific grant or dedication or acceptance of a streetway like this, or it can't be proven that the city has accepted it, the ownership does reside to the center line in the abutting property owners. That's been well documented in several Supreme Court cases. My client does own to the center line or
we would submit that my client does own to the center line of the paper street.
That is land area that is his not to acquire, but that he owns.
We applied in the manner that we did, excluding that portion of the paper street just out of an abundance of caution,
but it does not take away from the fact that the lot is a 14,152 square foot lot.
So any future effort to seek a release deed from the city would just be merely
for the purpose of clarifying title record in that land in the future, if a title examiner
were looking at it.
I think my client does want to do that, but just hasn't done it yet and isn't proposing to do it immediately.
So with that, I would just point out my client isn't seeking any other dimensional relief
that isn't associated with the existing lot itself, which is.
is a lot of record. It's actually could be argued as two lots of record. It's treated
as one lot by the city, but was historically shown as two lots actually on all the recorded plans
for the property, but we're presenting it as one lot tonight. And happy to answer any questions.
I could also touch upon the criteria again, but I would just incorporate what attorney
are put on record at the last meeting in that respect.
Any questions for the applicant? Mr. Sullivan.
I'm so dark. With regard to the access to the lot, the concern was that upon the granting of the
variances, one could acquire a building permit to build a house on that lot, and yet there
would still be at that time no access to the lot for the owner of that house.
So with that thought in mind, and looking at the condition that you proposed, would it be acceptable to you?
If at the end of that condition, the phrase was added prior to the issuance of a building permit on this law.
Absolutely.
I will just say, though, that I would not necessarily agree with the statement that you made,
but I do agree with what you just asked.
So yes.
When the time comes, I'll make the motion to add that.
Mr. Am?
Yeah, thank you, Madam Chair.
So one of the, some of the feedback that we preliminary early got from the fire department,
and I understand that you're talking about adding provision that would give them further opportunity to speak to it,
is that the proposed driveway be 20 feet wide, you know, recognizing that the current end of Barbary is like 16 feet,
according to what they provided for information.
It's a pretty steep turn trying to get into this driveway.
So the concern would be, you know, getting fire apparatus, being able to get it up there.
I believe your plan currently shows it as being a 20-foot-wide driveway access, but I just want to validate that information with you.
This is going to require my glasses.
Previously, you're counted if I brought an engineer, so that helps.
Yeah.
Yeah, it's actually proposed a 16-foot driveway in width.
20 feet, I believe, are the dimensions shown from the outside of the – that's basically the scope of the easement area itself.
So I think takes into account grading probably conditions of that nature.
The driveway width the paved portion would be 16 feet, easement being 20 feet.
Okay.
Yeah, if that makes sense.
Yep, nope, that does make sense.
Yeah, it's a little tough to tell from the print.
Yeah, I understand, and I had to look at it to be sure.
Okay.
And then, I would say that title examiners would always appreciate updated meets and bounce whenever that is an opportunity.
But looking at your new information that you provided, there's no page numbers for it, but page 51 of our packet, it's the last page.
You do say on here, and you haven't really emphasized it in your discussion, the applicant not only has the right to access this lot, talking about the rear lot, but also has reasonable development expectations in it.
And he is not seeing any dimensional relief to stink from the existing conditions of the lot.
And I guess I'm curious because we, again, have a zero foot front, you know, zero feet of frontage on.
any street with this lot and it's also, you know, undersized.
I understand you're now made a, you know, compelling argument that it's closer to the 15,000,
still somewhat under.
But I'm just trying to understand that statement in context of the zero feet of frontage where
a hundred feet is required.
Well, so it is a lot that was created by record.
It was created with the presumption that there would be a street constructed across
Geoffrey Avenue, the paper street.
That was never accomplished, but that doesn't take away, I guess, in getting to the statement,
it doesn't take away from the fact that that lot of record was created, whether the city
constructed the street or not, was not ever within any of the surrounding landowners' control.
So I think what it could be looked at is extreme relief for a zero-foot frontage, but there is
precedence throughout the city for that as well off of other paper streets.
And the reality is that, yes, it does get into questions of lot densities, which is one of the purposes behind furniture requirements.
I think the other purpose behind furniture requirements is really to allow, to provide sufficient access.
In this case, I would say that's being accomplished then through the driveway easement across the front lot.
The other alternative was for Mr. Farrelli to assert his right, I think, in an easement by necessity.
I don't know where that would ultimately go, and he doesn't want to upset his neighbors, one of which is a relative that has an objection to creating a driveway across Joffrey Avenue.
That's a long-winded way of answering your question, but
I do believe that speaking to the furnished requirements, this does accomplish the spirit
and intent behind why those are adopted.
Okay, thank you.
Thank you.
Any other questions for the applicant's representative?
Okay.
Okay.
Thank you.
So with that, I will open up the public hearing.
If there is anyone here, and I will say that the last hearing we received testimony
and some letters in favor.
I'm sorry, just point of order.
Do we need to reopen the public hearing because of the way we postponed it?
I would like to just because new information has been presented.
I don't disagree.
I just wasn't sure if you needed a motion to do so.
Well, we'll just be careful then.
I'm sure.
I move to suspend the rules and reopen the public hearing for our continuation of the discussion on this matter.
I second.
All those in favor?
Aye.
The chair votes aye.
So with that, I'll reopen the hearing.
the public hearing will reopen the public hearing is there anyone here who would
like to speak in favor of this application is there anyone who would like to speak
against it and is there anyone here who would like to speak to for or against and
just checking with our trustee aid to see if there's anyone on Zoom they took her
nobody has raised their hand okay all right so with that I will close the
public hearing
ask for the board's deliberations or a motion.
Mr. Janice?
I'm prepared to make a motion unless someone wants to talk about this first.
Your motion, please.
I move to grant the variances requested and advertised subject to two conditions.
Okay, and do I have a second?
Second.
Let me say the committee.
And the two conditions are they're going to be very similar.
to what is in Mr. Durbin's letter, but slightly different based on Mr. Sullivan's comment.
First condition number one is that an agreement, deed covenant, or other written instrument of similar
effect shall be approved by the city legal department and recorded with the registry of deeds
reserving a driveway access agreement across tax map 233, a lot one-third.
31 to tax map 233, lot 135, prior to issuance of a building permit for this lot.
All right. And your second condition, Mr. Neese?
The exact location and configuration of the driveway across tax map 233, lot 131 to tax map 23, lot 135 may be modified by the department of public
or the fire department prior to issuance of a driveway permit.
Okay.
Are those conditions acceptable to you, Mr. Sullivan?
Nothing to add.
Okay. All right.
So with that motion, your motion please, and then I'll restate the conditions after you're done.
So you want me to address the criteria?
Yes.
Sorry.
Just a couple of comments to begin with.
as is obvious from the submission and from the discussion that's going on.
This is a lot that was, it may have been two lots at one time, but this is a singular lot that was on a street that was never adopted, accepted by the city, and the city has no interest in it.
As a result, it has no street access.
I think that's important to note as we go through the criteria, and that leads to a couple other points that I'll bring up in the criteria.
up in the criteria. First, granting the variance would not be contrary to the public interest
and would observe the spirit of the ordinance. I'll take these two together as we usually do.
There's no evidence this will affect the health, safety, or welfare of the neighborhood.
It will not have any effect on light and air. It does not alter the essential characteristics of the neighborhood.
This proposed lot is undersized. It remains to be seen exactly how much undersized it is for the neighborhood.
But on one side, it's next to, I believe, a utility.
right of way or utility access on one side.
And so it's really not going to have any effect on any one on that side.
It has a paper street in front of it that may turn out to be properties owned by the property owners,
but as a result, it doesn't have any effect on that size either.
So the result, you know, a lot size is designed to prevent overcrowding.
That won't happen here.
In addition, the restriction on driveways, as has pointed out, does a couple things.
does a couple things.
It's kind of, I'm sorry, the requirement for street frontage, I misspoke there.
The requirement for street frontage, as was pointed out, is to help reduce and control lot density.
That's really not an issue here, and besides there's no access to it.
Street frontage also, the restriction on number of driveways, for example, also facilitates traffic
slow in the streetscape.
Because of where the two driveways are going to turn out to be, that's really a lot.
not an issue because of the street that's there, Barbary Lane.
So neither one of those is an issue.
For those reasons, I believe that granting the variance is not contrary to the public interest
and would observe the spirit of the order.
Moving out of the next criteria, it does substantial justice.
I can't see any possible benefit to the public by denial and there would be a significant loss to the applicant
as the applicant would not be able to develop this lot.
Granting the variance would not diminish the value of surrounding properties, no evidence is presented
that will. It doesn't seem to be any that could be presented that would show it would diminish
properties, the value of properties. Moving on to the hardship criteria, there are a couple
special conditions with this lot. It's created prior to the adoption of the zoning ordinance.
So it's an existing non-conforming lot with respect to size. The problem with street frontage
is that the street that was planned was never accepted by the city and has never been built and
the city has no interest in it according to the statement of attorney McCourt.
So it leaves no access to the lot.
On one side, as I pointed out, it abuts a utility right-of-way.
So for these reasons, I think it's reasonable to provide access via an easement over the adjoining
property.
Given these special conditions that distinguish it from other properties in the area, and owing
to these conditions, there's no fair and substantial relationship between the purpose of the
ordinance and specific application to the property.
Okay, anything for your second, Mr. Sullivan?
Nothing to add.
You agree? Okay. So any discussion on the motion before I call for a vote?
Mr. Am?
Thank you, Madam Chair. Yeah. So I still have a lot of reservations about this particular application.
I mean, I do, I think the zero foot set back, I think there's a little bit more to it than just
determining, like, the streetscape of, yeah, okay, you specify 100 feet. But really,
I don't think there's anywhere in our ordinance that says you can have zero feet and still
consider something available a lot, right?
We are extending, I think, a lot of leeway in where we're requiring a substantial amount of frontage
and getting absolutely nothing.
Are there other cases that happen?
I think there are.
But again, in this particular case, I do think that there was, there is a way out of this,
which would provide some street frontage, would be a bit more honest in the sense that this
easement that's going across the front lot really occupies a good portion of it.
I mean, I don't have the exact dimensions to know, but I'm saying about 20% of the front lot
is now burdened by a driveway that the owner is paying taxes on, but will never get any
benefit from, right?
Because it's really there to essentially act as a substitute street and support the building
of a structure on the lot behind.
That said, the applicant and their representatives have, you know, and again, I think through
lot line revision, you could get to 15,000 square foot lots with the added square footage
allowed by the fact that the paper street doesn't exist and that you have that additional square
footage, which would eliminate one of the two things that we're providing some relief for,
and then the other thing that we, that would no longer be as significant, would be you could
have some frontage on a city street, would not be 100 feet, but you could have some level of
frontage on a city street.
That said, I will support.
the motion ultimately. The applicant does seem to be set on this course of action.
I don't think there's enough with the unique circumstances surrounding this lot and especially
kind of the sort of the strange genesis of Barbary Lane with, you know, really what is essentially
used to be a railroad line on one side of the lot is now a utility passageway.
So with that, I mean, I think there's enough uniqueness here and it's kind of off on its own.
And with the fire department having an opportunity to weigh in on the adequacy of the proposed driveway,
because, again, that is now our, you know, the idea is you have street frontage.
Fire trucks can pull right up to the front, and they can use their standard methodologies to access your home
that needs some type of emergency response.
They would no longer have that with this lot that's sort of hidden behind.
Yeah, in subdivisions you get that, but a subdivision also goes through a technical advisory committee,
so this will not be where the fire department has an opportunity to weigh in on those kinds of considerations with fire safety.
So I will be supporting it, but I still maintain reservations about the project.
Thank you.
Any other comments or discussions on the motion?
Mr. Rossi?
I will not be supporting the motion because the requested degree of relief on lot size is no longer justified now that the city has acknowledged that
They have no ownership of the, you know, what would have been the street that's a paper street and it's not really a street anymore, and that is part of the lot.
So I don't think the hardship is there to justify the specific degree of relief that's being requested for lot size.
Therefore, I will not be able to support the motion.
Any other questions, comments?
So with that, I will call the question.
The motion is to approve the variance as presented an advertisement.
and with the conditions that are outlined in Attorney Durbin's memo to the board, the supplemental letter,
and that is that an agreement deed covenant or other written instrument of similar effects shall be approved by the city legal department
and recorded with the registry of deeds reserving a driveway access easement across tax map 233, lot 131 to tax map 233, lot 135.
And that is with prior to the issue.
of a building permit.
And then the second condition is the exact location and configuration of the driveway across
tax map 233, lot 131, to tax map 233, lot 135 may be modified by the Department of Public Works,
and then the addition was or the fire department prior to the issuance of a driveway permit.
So with those conditions, I will ask for a vote.
And I'll start with...
Mr. Lucas?
Yes.
Mr. Neese?
Yes.
Vice Chair Madsen?
Yes.
Mr. Rayum?
Yes.
Mr. Rossi?
No.
Mr. Sullivan?
Yes.
And the Chair votes no.
The variance is approved?
Five to two, sorry.
That little problem.
Counting there.
Okay, thank you.
So our next order of business is
the request of Kathleen B and Kent A. Logan, Susan E. Lassen, Scott A. Lucas, and Guy D. and Elizabeth R. Spires.
I hope I have that last name, right, appellants, for appeal of decision of administrative officials to classify the art studio attached to the side of the third dwelling unit as an R2 non-transient sleeping unit for property located at 28 Blossom Street.
Said property is located on Assessor Math 11, lot 40, and lies within the General Residence B, and his property.
historic districts. So before we start on this, I just want to state that this is an appeal from
administrative code official. The board will be reviewing this de novo as if we were the code official on this.
We, our our purview is, and I just, I do want to say, I recognize that this is a difficult neighborhood situation that's multifaceted. There's a lot of aspects.
to this situation. The board has a lot of sympathy for everybody involved in this situation.
That said, our purview is very narrow. So our purview is that we look at this at the zoning aspects of this.
The building code aspects of this are going to a separate board at the state level.
Our purview, what we are doing tonight, is actually fairly narrow.
And what we have to answer as a board is do the physical changes that determination requires convert the space from an art studio into something else?
And then if the answer to the first question is yes, is that new use accessory to a permitted principal use on the lot or a separate use that is not permitted by right in the GRV district and therefore requires a variance.
So with that, I just want to sort of lay the groundwork for that.
The way that we are going to proceed tonight is we're going to allow the appellant to do their presentation.
We have city staff here.
Ashanti is the building inspector for the city.
They're on Zoom, correct?
Yeah.
Also, we have Peter Brith, who is the planning and sustainability director.
We also have the deputy city attorney here, Trevor McCourt, for any assistance.
But the city's city attorney.
staff Chante and or Peter will have an opportunity to speak.
The landowner, there's an opportunity if we decide to have the landowner, have the opportunity to speak.
I would suggest that we allow the landowner to speak.
Then we will have public comment.
We'll close the public hearing.
We'll deliberate as a board and then we will vote.
So I just want to make sure, first of all, with my fellow board members,
if that way of proceeding is acceptable to everybody.
Now, I think for time limits, this is our only remaining application tonight.
However, I would like to be, you know, reasonable in the time that we allocate to this.
So I think that we can give the appellant, perhaps 15 minutes to speak,
and then city staff, however long they may need, and the landowner another 15 minutes.
And then for public comment, if we could please, if you could please limit your comments to five,
minutes. You can come up again. If you don't finish within five minutes, you'll be able to come up again.
That is consistent with the way that we hold public hearings on all of our applications.
And then the board will take whatever time it needs to deliberate and vote.
So with that, I'm going to ask the representative for the appellant to please step forward and
please identify yourself for the record and who you represent, if it's all the appellant.
if it's all the appellants.
Okay.
Good evening, Madam Chair, Mr. Vice Chair, members of the board.
My name is Robert Baker, and I'm from a firm called Pete Corporate Council LOP, and I'm here on behalf
of all of the appellants, various abutters, of 28, Boston Street.
So the, just a recap the situation we have, the building inspector, a chief building inspector,
issued a notice of determination, basically,
declaring that the structure which or the quarters which is being used by Mr. Christopher
Burke for sleeping and dwelling is going to be declared a R2 non-transient sleeping unit under
the 2024 International Billing Code.
And that is a, since 2023, the owners of the property have had their
adult son Christopher, sleeping in the studio.
Twenty Blossom Street is an improved lot with a two – originally a two-family dwelling that
received variance in 1987, authorizing a third residential dwelling unit.
And a barn-type structure on the end of the property contains a former Henry converted decades
ago into an artist studio.
That is the section of the property, which is at issue here.
So the chief building inspector's determination that it should be categorized as an R2
sleeping unit, in our opinion, does not comply with the current Portsmouth zoning ordinance.
And essentially, what we believe he has done is create an ad hoc use under the zoning ordinance
to basically create a new use that doesn't exist under the current version of the zoning ordinance.
The term dwelling unit, excuse me, appears 204 times under the portion of zoning ordinance.
The term sleeping unit appears exactly zero times.
So we believe what he's done is create a use which does not exist.
And as we all know, the ways to amend the zoning ordinance would be to file a formal amendment,
which would be approved by the board, or to petition the city council for a warrant article.
to make the same amendment.
So because that amendment has been ad hoc determined by the chief building inspector,
we would ask the board to take jurisdiction over this matter and reverse that determination,
and then also determine that based on this record, occupancy of the studio may not lawfully continue
in its current form.
Thank you.
Any questions for the appellants?
Representative.
I do have a question.
So the memo that we got identifies a dwelling versus a sleeping unit.
And a dwelling unit includes kitchen, cooking facilities, and whatnot.
The fact that this unit does not have that, how does that, how do you still think that that
that converses to a dwelling?
The dwelling unit is designed to house somebody on a more permanent basis.
And it seems that Mr. Burke, you know, having slept in these quarters since 2023 doesn't
quite match under the zoning ordinance what a dwelling unit consists of and the purpose of it.
And so in order to accommodate the conditions that would be necessary in order
to issue a certificate of occupancy, the chief building inspector reclassified it as a sleeping unit,
essentially saying that unless certain conditions were met, that, you know, that it could not
be considered a dwelling unit.
We also believe that having an accessory dwelling unit and ADU is impermissible here because
the owners don't live in the building.
So seeking an ADU and as we know or as we believe there hasn't been a special permit application applied for in order for them to to achieve that.
Any other questions to Mr. Ram? Yeah. Thank you, Madam Chair. I just would like to have you sort of talk a little bit more on, and again, you have page numbers for yours, but your section
one, Roman numeral one, statement of standing, you kind of go into, understand
that these are all butters, but then what is, what is the harm that's happening to them through
what is taking place?
And you talk a little bit about it, but I appreciate maybe you elaborating a little bit more on
that aspect.
Just in terms of statement standing as far as the, could you clarify your question a little bit?
Yeah.
So in your statement of standing, you state that all of the individuals who are appealing this are abutters.
And then you go on to say, with attendant impacts on neighborhood character, on street parking, density, and life safety, and life safety in the general residence B zoning district.
And I guess I would just like a little bit more specifics on how you see that what is taking place
or the decision by the code official is making those impacts.
What are those impacts?
So I would request that the board just focus on the narrower argument that it was an impermissible ad hoc creation
of a permitted zoning use on a zoning ordinance, and not necessarily.
What I'd like to do is avoid any kind of issues today that don't necessarily.
have to do with zoning regulations, that's okay.
I mean, you're more than welcome to answer in any way.
I guess I wasn't so much looking on, all right, that's fine.
I'll let it rest.
Mr. Rossi.
I think maybe my, excuse me, I think maybe my question is related, but a little bit different.
It's an interesting case, in my opinion, because in essence, what the,
Appellants are asserting here is that there is an approved use of that space as an art studio.
There are many other potential uses that are not specifically mentioned in our zoning ordinance at all, right?
It could be, I don't know, something else, but I'm not going to make one up, but clearly, conceptually,
there could be a number of uses that are not mentioned in the ordinance, and this perhaps is one of those uses where someone sleeps.
in the studio. I really don't even know if the studio is set up so that it would
legally qualify as a bedroom, but somebody's sleeping in it. It seems to me that based on this
assertion, there's a tacit assumption that once a use is permitted, in this case the use being
an art studio, that all other uses that are not specifically mentioned in the ordinance would be
prohibited. And I wonder where you get that logic from, because I have a hard time
seeing how that is a fair application of our zoning ordinance.
Good question. Thank you. I think that the most appropriate way to answer that is
that sleeping and inhabiting a space is unique to the public safety and health and
safety aspects of the zoning ordinance. And so sleeping and inhabiting a space should
can and should get a special consideration apart from other uses that might be permitted.
Okay. Thank you.
Any other questions for the appellant's representative? Mr. Janice.
So I guess there's a couple pieces in the zoning ordinance that confuse me a little bit,
and I'm interested in how you interpret them. So there's a line in the zoning ordinance somewhere
where it talks about accessory uses for residential properties, and it gives some discretion
to the code official or building inspector to determine what's an appropriate
an accessory use for a residential property. However, section 10.434.40 of our zoning ordinance
says any use not specifically authorized in Article 4 shall be deemed prohibited in all zoning districts.
So how do you reconcile those two different sections or do you?
Can you say again the section of your referencing?
10.434.4.4.4.4.
And so if you could rephrase your question a little bit more specifically, just in terms of the distinction you're trying to draw.
Give me a second, then I'll find the other section that I was referencing as well, so you can take some other comments there.
Okay. It'll only take me a minute or something.
Any other questions?
The appellant's representative. Everybody's looking at their zoning ordinance. This is a good thing.
give another try this in another way how does making this and the code is not
before us but how does making this into a non-train into a transient sleeping make it a
dwelling under as dwelling is defined under ordinance in terms of in terms of how
the building inspector is declaring it to be a sleeping unit or a in terms of the zoning
ordinance
Okay.
And what a dwelling is considered under our zoning ordinance?
So the definition of the dwelling unit would take me a minute to find just so I can repeat it
back verbatim, but I would like to focus on the building inspector's interpretation of it just
because I think that's the – that's relevant here.
And –
I think with all due respect, it is – that is – that is the –
a matter for the Building Code of Appeals Board.
I'm asking you how this fits into the dwelling, the definition of dwelling under our zoning
because this is the purview of tonight's appeal.
Well, dwelling should be, you know, a situation where somebody is using the accommodation for
things like sleeping and, you know, cooking.
you know, hygiene, showers, things like that.
If there aren't certain amenities provided in the dwelling unit, then it becomes an issue
of public safety, and then obviously a certificate of occupancy couldn't be issued for that.
So the term sleeping unit, I think, is a unique carve-out for something that, or something
that doesn't really exist under the zoning ordinance.
So, for example, we don't necessarily say that, you know, portions of retail stores are eligible to be categorized as sleeping units.
We wouldn't accept that, you know, somebody could sleep in, you know, a kitchen store on Market Street.
But at the same time, we need to make sure that any kind of dwelling units that are designated as such, you know, have those basic minimum of amenities so that they are safe and hygienic for people.
Did you find your?
I did find my section, and it might help clarify what my question was.
So there's, we've got two sections of the ordinance that I'm going to refer to.
The first one I referred to earlier is 10.434.40, which without quoting it again, basically says if a use is not specified in the ordinance is prohibited.
I would tend to support your argument that perhaps that allowing somebody to sleep in an art studio,
is prohibited.
Then we've got a later section in the zoning ordinance, 10.811.50, which says other accessory uses
and accessory structures, key here is accessory uses, I think, may be permitted if the code official
determines that such uses or structures are customarily associated with and subordinate to a
principle permitted use.
How would you suppose we reconcile those two in relation to your comment?
Because it would seem that what we have here is a code official making a determination that the accessory use may be permitted because perhaps it's customarily associated or subordinate to a principal permitted use.
Understood. I would.
And I'm just going to, and please remember, for purposes of now, we're your code official.
We are stepping into this de novo.
Okay. Yeah, I would say that the, um, um, um, um, um, um, um, um, um, um, um.
The accessory use in this case could be heavily implied that it was an accessory dwelling unit,
which would be permitted if the owners lived in the unit, uh, but because they don't, then that use,
and, in my opinion, would not be permitted.
Thank you.
Any other questions for the appellant's representative?
Okay.
Thank you very much.
Thank you, Madam Chair.
Next, we will hear from city staff.
Uh, shanti Wolfe.
Um, I don't know if.
So, Shanti wants to go first or Peter wants to go first.
I don't mind going first.
Can you guys hear me?
Yes, we can.
Okay.
Good evening, Madam Chairperson, members of the board.
Yeah, so I think for me, it was a little bit of a unique situation for sure.
This is a pre-existing residential multi-use space being used as an art studio,
according to the owners, as an overflow space, you know, for many years.
And so, but I had, you know, there was a complaint that I needed to follow up on asserting that essentially someone was living there.
So to me that was concerning because it, you know, it wasn't, it was never really approved or the previous use wasn't, wasn't ever described as a dwelling unit.
And so, and just so we all know, I don't have the zoning ordinance in front of me, but I'm quite sure that in order for it to be a dwelling, that the definition in the portion of the zoning ordinance in front of me, but I'm quite sure that in order for it to be a dwelling, that the definition in the portion of the
would be something along the lines of complete independent means of living and that would mean a stove, a way to bathe yourself, you know, egress, electricity, heat, light, you know, and a bed, of course.
Those are those are the primary. Without a stove, it's not a complete, without a permanent cook facilities, it's not complete independent means of living.
So, so I needed to go over to the property and take a look, first of all, and you see, and you see,
what was happening over there. So I did. On July 29th, I visited the property and there
was good egress, there was good windows, doors, you know, clear paths. However, smoke and carbon
not side detectors were not installed in proper locations and there were from styrofoam insulation
that wasn't covered with a thermal ignition barrier. While I was there, I did look to see if there was
any indication of anyone, you know, actually living there, using it as a dwelling unit. As I said,
the owners that had a served to me that wasn't the case. Their son, according to them,
has dinner, they washes his clothes, his stores his clothes, he showers at their home, not in fact
at that, you know, at the studio multi-use space. So that's what I saw. There were no clothes there.
There wasn't a bureau. There was no closet. There wasn't even a bed, to be quite honest. There
was a couch. There was no food visible, and there certainly was no means of cooking. So
At that point, my concern really was just to make sure that whoever was using the space,
for whatever reason, clearly it wasn't a dwelling unit, I want to make sure that it's safe.
So I revisited the home on August 13th to confirm the issues were corrected, which they were.
And so then I was at least happy and satisfied that my job, from a life safety perspective,
you know, that I had done my job to make sure that whoever was in there would be able to get out,
if there were any issues. So then back to the kind of the pre-existing, non-conforming use.
Because really, it was, back in the day, it was accessory to a primary. You know, it was an accessory
use, just like any of us that have a shed or a barn or a garage. You know, if I happen to go out
and set up a hammock in my garage and fall asleep, you know, I would hope that nobody's going to come
and tell them they have to leave. The difference here, of course, is that the primary is not,
on a different parcel of women. So that's what made it so unique. So you now have,
you know, three dwelling units with this studio attached to the end of it. And the studio,
it's not a commercial studio, it's not being rented, you know, it's not for let, for anything,
so it's not a roaming house, it's not a boarding house, because it's not being, under the definition,
it would have to be, you know, believe three or more for Starburst to be a room or a dwelling, a room
And it's not being rented. You know, it's being used by the family of the primary home on the other parcels.
So, so a little bit, a lot of gray area there. Well, I, what I did in my first letter is two letters there that I provided to the board.
And in the first letter, essentially, it did somewhat classify it, you know, as this R2 non-transient sleeping unit because from the building code perspective, from the lens of the building code, I should say, that's what I needed to find. Everything has a use.
And I wanted to find what you, how that would be described in building codes.
So then I couldn't move forward on directing them what to do with respect to life safety.
So that's what I did. And then upon, you know, further reflection, which is why there's two letters there.
And I feel that the second letter is pretty critical as well. It was kind of a supplementary.
And it got a little more into me really wanting to make sure that we weren't re-plasifying that in fact I was describing, that in fact, I was describing,
the use that I saw so I could define out a way forward. So the difference here in the sleeping
unit distinction would be that the clarification is based on the specific use of the studio
by the owner's son. He may spend nights in the studio, his primary residence remains 161 South
Street. Like I said, where he bays, eats meals, keeps his personal belongings. In the studio,
it just doesn't contain the necessary facilities to function as an independent drawing unit. So,
And, you know, so I understand, too, with zoning, if it's not listed, then generally it's not allowed.
However, this is a residential use, not a commercial use, and it's not something that would be allowed in a new construction.
You couldn't build a multi-home, a multi-unit home and then attach this accessory to a primary from a different parcel.
He just couldn't do it.
But that's why this is legal pre-existing.
And so, you know, the fact that somebody closes their eyes at certain times of the day,
I don't even know how often he's there or what exactly the story is, but whether it was him,
whether it was one of the owner or the owner's friends, I mean, that's why I really kind of had a hard time
saying, no, that's not allowed, because the use, it seemed like it had been there for so long.
So I know that's a lot, but that's kind of what it boiled down to, and welcome to ask me any questions.
Any questions for the city's building inspector? Mr. Ram.
Thank you. Yeah, Chief Inspector Wolf. So I think I heard a little bit, but I'm trying
to understand, like, what was the genesis of you getting involved in this? Was there a building
permit? I mean, isn't typically your involvement in anything predicated on a building permit?
And was one being requested by the homeowner?
Yeah, so I'm the code enforcement officer as well. And so there's a potential violation of not only
the building code, but zoning code.
building they do overlap quite a bit so there was alleged that someone was living there and that
would be you know technically that would be a violation I believe of both the zoning and the building
code because that use wasn't was never qualified as a as a independent dwelling unit so that's
why that's how I got evolved because if it was a dwelling unit and somebody was actually cooking and
living there you know on a full-time basis well that's a much larger deal as
then we want to make sure, A, that it was allowed by zoning, perhaps play a variance,
and B, that even if zoning did allow it, there is criteria within the building code that the folks would have to meet for the life safety standards.
So that's how I got involved.
Okay.
And I guess I can ask the planning and sustainability director a little bit more about how the code enforcement officer got involved.
Because that was one of my questions for you is where was the code enforcement officer in all of this.
But I'll table that for you.
We'll ask the Planning and Sustainability Director of that question.
So your conditions of approval, if I'm reading this here correctly, you did talk about adding a shower to be installed to satisfy hygiene requirements applicable to an R2.
What was the genesis for that?
I guess if your initial impression was no one was living there, and why did you feel that that was
an important addition.
Well, it wasn't, it was the one I felt it was, it was, it was what the
definition of the, of the, of this R2 non-changing sleeping unit as defined in the
international building code states. So you would need to have, you know, a toilet,
and a sink, and a shower, and no permanent cooking facility. So that would
be the sleeping unit. So like I say, this, this was a case that, this was a case that,
there was a lot of back and forth.
I really had to kind of dig deep to understand how I would look at it and what lens I would look at it through.
And that's the one that I, you know, I had landed on because there is a definition in the building code for the R2Nine and sleeping unit.
That's in my letter as well.
So that's the reason that I talked about the shower.
Now, at the end of the day, and even with the follow-up letter, you know, depending on where the board lands, is the shower critical?
Well, in my mind, no, because for all intents and purposes, you know, Christopher has been
bathing at his parents' house, you know, but I will add that when I was there, there was a shower
there. It had been there for many years, but it had been removed, there still a drain there,
there's still supply lines. So at one point in time, historically, there was a shower there. So it
really would not a big deal to put it back. But the only reason I said that was because it was in the
definition within the building code.
Okay. And then a little further down in that same set of conditions of approval, you have the words use limitation.
And you say that the studio is approved only as an R2 non-transient sleeping unit and shall not be rented, leased, or otherwise used as an independent dwelling unit.
So I guess what was the genesis of you adding that to the letter?
Well, what's behind that?
Because I did, because my goal here and my job wasn't to change how the space was being used.
it was only to describe it and make sure that whoever was staying there was safe.
Because that, according to, I believe according to the, certainly to the owners, and possibly
even the abutters, it was acknowledged that that space wasn't used as a dwelling unit and it wasn't
being rented. And so therefore, in my determination, I wanted to make sure that I wasn't crossing
any lines and saying, oh, now that it's this, or now that I'm describing it as this,
you can go ahead and rent it, sell the home and market it as such.
That was the reason that I was careful to make sure those conditions were maintained,
not necessarily introduced, but maintained.
Okay.
And then my last question for you is, is, you know, with all those caveats being put into this letter,
where is this letter, like, filed?
How is this kept on file?
Is this, does the, because I'm familiar with the planning and sustainability department,
you know, and keeping records on each home so that when we have,
have a question about what did the Zoning Board of Adjustment do? They can quickly go back,
look by property, and tell us the history of that property. Is there something similar for
the inspection records? And how is this documented and filed so that it could be found again
in the future, right? Sure. So, well, now it's going to be in the, you know, in the planning
side and in their folders. But before that, it would, every property in the city has a folder,
a hard folder, and anytime there's any permitting work or letters or legal bonuses from the
building department, they go right into that folder, into that hard copy. And we also have
a, all of our electronic records as well. This letter will be uploaded into there, so you'd be
able to look it up either way. You would come in a city hall and take a look at it, or you could
up online and go to that property and see it as an attachment. Okay, but it is kept officially
in the same record-keeping manner as
say a decision by this board is what you're saying. I can validate that with the
Planning and Sustainability Department.
100%. Yes, sir. Okay. Thank you.
Any other questions for Mr. Wolf? Okay. So, Mr. Wolf, I actually do have one question.
And keeping with that same paragraph, the conditions of approval, you say that the studio
currently contains a water closet and lavatory. What are those?
The toilet and the sink?
Toilet and sink?
They're within the building.
Okay.
Yeah, they have their own room, you know. So it's basically a studio style, an open floor plan with a loft and then a carve-out that has the toilet and the sink within the unit.
Okay, thank you. Any other questions from Mr. Wolf? Okay. Thank you. I don't know if.
I don't know if Mr. Brits would like to be heard from.
He is the planning and sustainability director.
And it appears he does want to be heard from.
Well, I have no question.
Anyway.
But you may have independent comments.
Good evening, Madam Chair, I'm members of the Board of Judgment.
You received the letter that I put together.
I don't really have much to add, but Mr. Rayume had a question, I think.
Or I can go through the letter.
if you want, what would you prefer?
If you could just go through the letter briefly and then go to Mr. Ames' question.
Yeah, a lot of it, Chanty touched on, and Chanty went there as the code official to determine,
you know, really was the property safe in his report back to me.
One of the things that wasn't touched upon much in his conversation was the fact that there's art supplies
in the art studio, which was important to see that it's still being used as an art studio to me.
Most importantly to me was that the fact that there's no kitchen.
in the dwelling. And Chanty also added there's no place for clothes or clothes washing and things
like that that you typically see or a bureau in an apartment or dwelling unit, as it's defined
in our ordinance, the big item being the kitchen where you can't cook your own food. So this would
not rise to the level of a dwelling unit from a zoning standpoint, and that's basically what my letter
says.
Thank you. Mr. Aum?
Yeah, and just sort of follow up. So the code enforcement officer, we have someone,
who specifically takes concerns from abutters or anyone really in the city and goes and
investigates them. What was the involvement of that individual and what was their conclusions?
Well, Shaddy was the code enforcement officer in this situation. I'd be the code enforcement officer
and other situations where it's a zoning code question. It's really just a term of art in the
ordinance. So it's the chief building inspector, the planning director or a designee in the planning
department could be a code enforcement officer. Okay. So the zoning, I guess the zoning, I guess the
zoning code ordinance? Because there is somebody in your office called the zone.
There's a zoning cord, in the legal department, there's a zoning code enforcement officer.
That's right. Oh, that's correct. All right. They fall under. And they get called out. You're right.
Specifically when there's a violation of the zoning ordinance, they'll get called in. Okay.
To report back to the legal department on the status there. Okay. And you don't know, was that individual
brought into this? Not in this case. Okay. And there was no request by your department? Not that I know of.
And there was no request by your department for assistance from the legal
department and looking at, you know, getting that person involved.
No, no. And I spoke to Shanti in detail about it.
If you like, I could touch on that very quickly.
Legal department was read in through the entire process. Yeah. And Jason Page is the, he's the
legal enforcement officer. I am the code enforcement officer as well. And my letter was, you know,
was read, you know, as I put my letters together on my notices, the legal department.
department along with the legal enforcement officer, looked at those letters and was
he ced every step of the way. So to answer your question, yes, he absolutely was right in and
fully aware all the way through. Okay. Thank you. Thank you. Any other questions for Mr. Brits?
Mr. Neese? So one of the things that strikes me a little bit in our zoning
ordinance is there are examples of things that are called a dwelling unit in our zoning ordinance that do not have
kitchens in them. They have access to kitchens. So, for example, the
independent living unit, which is in a continuing care retirement community, which doesn't
have to be one building, a dwelling unit is one of the places where residents live
independently there, but they have access to common facilities that have kitchens and other
things. So it's not really true that all our dwelling units have kitchens. We have
examples where they have access to common facilities, but not necessarily in the dwelling
unit itself. So those are living units like a like a co-living situation as well as a shared
kitchen. But in the case of a single dwelling unit, as this is being discussed, there's a specific
definition for dwelling unit in that letter I sent. And it does include a kitchen.
Right, but my point is our ordinance uses dwelling unit in a different way in other sections as well.
I think without the kitchen, they have to have access to a kitchen or the kitchen
has to be part of that dwelling unit to make it an actual dwelling unit. In this case,
there's no access to a kitchen. Not in a continuing care retirement community.
They have no access to a kitchen in that definition?
They have access to a common kitchen in another space.
Just like a...
I could argue this person has access to a kitchen in another building, which is not technically a
community, a continuing care retirement community, but I guess my point is that the ordinance is not
clear as it would appear to be if you just read the definition of dwelling unit.
Any other?
Mr. Brits, are you talking about access to a kitchen, the definition for dwelling for a single,
for residents?
Yeah, I'm talking about the definition of a dwelling unit and how it applies to this circumstance.
Okay.
All right, thank you.
Any other questions for Mr. Brits?
Okay, thank you, Peter.
Oh, wait.
Yeah, go ahead, Mr. Ross.
I'm not sure if I'm addressing the question to the right person now, because we have
had two officials speaking to us, but in your opinion, if there is a space that's approved
as an art studio and there is an artist who's there and is going through a productive period
and doesn't want to leave and decides to sleep there, does that change the use?
We discussed that in the process of this, and no, to me, it doesn't change the use because
that seems like something that would be, A, difficult to enforce, but be part of the process that an
artists might have. So I don't think it's anticipated that they won't ever sleep there in the
definite, you know, where we talk about an art studio. And sleeping isn't necessarily
something that's something that we regulate. Thank you.
Thank you, Mr. Brits. Okay. So we'll next move on to the landowner's opportunity to speak.
I know the landowner, I assume those are you folks right there. If you would like to address the board,
please come forward and state your name and address for the record.
And if you have any comments, and then you'll hear some questions from the board, probably.
Good evening. I'm Hannah Burke. Thank you. Just a couple of points.
The studio space is a multi-use space. It has been used in the exact same manner since the mid-1970s, when my parents fought the property.
Originally, it was for my dad to have an art studio as a professional artist.
But as I said, over the years, it's morphed in many different ways.
And again, has been used as needed for gatherings, for someone who, in our family or a friend that needed a space to be and be safe intermittently.
Our son has been there intermittently.
They are making it sound like he's been there consistently for years.
That is not the case.
This is not a permanent.
living situation for our son. This is not something that this is used as needed for his support and his safety. He has had some struggles.
He has a challenge in his life right now. And as has already been stated, he comes, we live literally two seconds around the corner.
Kathy Logan's house is in between our house. Houses, our two houses. He, again, bays at our house.
He has meals with us. He does his laundry there. He has a bedroom that was his that has all of his clothing in it.
This is simply a safe, personal space that he can go to as an adult and that we can have some separation.
It's nothing more than that. This is not a big deal. It shouldn't be a big deal.
Honestly, this is a persecution and a discrimination of our son who has had challenges. That's the body.
line here.
Good, that's good.
Any questions for the landowners?
Mr. Ram.
Thank you.
Yeah, I'm just trying to understand the configuration of the structure.
We really don't have, like, anything that's shown us everything.
Now, there are three dwelling units in it that are currently rental.
Let me just back to you.
So Blaston Street has a main house.
This is all attached.
Then there is a carriage house, which is, so the main house is an apartment downstairs and an apartment upstairs.
upstairs.
Okay.
There's a carriage house that is between the barn and the main house that is a third rental unit.
Okay.
And the space that we're talking about for the art studio is...
Is the barn.
Like a connector between them?
No, it is the barn.
Okay.
And it is physically separated from all the other dwelling units.
Is that correct?
All units are attached.
So the main house is attached on one side of the carriage house and the barn is attached to the other
side of the carriage house.
I'm more talking in terms of being able to transit from one to the other.
You would have to go outside of one of the structures to be able to trans...
Yes.
To be able to transit to another dwelling unit.
There is no internal connection.
No.
No, there is not.
And currently all of those dwelling units are rented to other individuals?
Is that?
They are.
Correct. Non-family members?
Yes.
Okay. Thank you.
And I might add we have almost a double lot.
Just shy.
And we have plenty of parking.
Okay.
Thank you.
Is there any other questions?
I have a question.
The space is still used as an art studio?
It is.
My husband is an artist.
He's also a residential architect.
So yes, it's a multi-purpose space.
It's really pretty cool.
So Paul has a drafting studio in one of the lofts.
And then there's a big desk for writing or drawing.
There's a couch.
There's a little hangout area.
some chairs in the table. It's just kind of a cool unique space.
And again, yeah, it's been used this way for over 50 years, yeah.
Just want to establish that is still being used as an art studio.
All right. Thank you.
To some extent, yeah.
Mr. Niz.
I'm struggling a little bit to understand the layout.
Just how big is this space?
It's a barn.
It's a barn that was turned into.
that was turned into a studio space.
So it's the size of a...
The space is almost 40 feet long by 20 feet wide when we did the plans for the cabbage house.
Those were included for the HDC so they could monitor the changes that we were proposing for the cabbage house.
So it's a pretty good size space.
Any other questions for the landowners?
Okay, thank you very much.
Thank you.
Okay, so next we will move to public.
to public comment.
And for those who wish to see, please step up to the podium,
state your name and your address for the record.
Thank you.
Good evening.
My name is Peter Carey.
I'm a retired lawyer.
I practiced for about 35 years and
spent the last part of my career about 10 years up north
practicing real estate litigation primarily
and sharing the little town of Hebron, the zoning board of a job.
investment. And I happen to be a neighbor to all these folks. And my living room, my house, is about 50 yards from the back of this barn. So I've got a very direct interest in this matter, too. I'll be very brief. Mr. Neese, I think your analysis is exactly right. Basically, there is not
under any definition of dwelling unit under our code.
This doesn't fit. This is not a dwelling unit, an independent dwelling unit,
any other kind of dwelling unit under our code.
That's important.
But it's also not a use that's specifically allowed under our ordinance,
and therefore it has to be prohibited.
Now, Shanti Wolf really sort of nailed the issue.
He basically has to be prohibited.
He basically has to be prohibited.
has in a fashion bootstrapped this situation into an accessory use but tied to an entirely different property.
That's the problem here.
That's a precedent I don't think you want to establish here in the city of Portsmouth.
So basically, again, Shanti explained that this is unique in that what we've got is this R2 non-tranchantin sleeping unit.
an accessory use, if you will, that is not attached to any principal use
that's been approved for those premises, specifically 28 Blossom.
It's tied to 161 South.
That doesn't work for all the reasons we advanced in the appeal that you have before you.
So that's really the critical analysis.
This really needs to come before the ZBA.
for an open public hearing where all the voices can be heard.
This is an end run and it shouldn't have happened that way.
Thanks very much for your time.
Thank you.
I would like to speak.
Please state your name and your address for the record.
My name is Kathleen Logan.
I live at 21 Blossom Street, which is directly across the street from 28 Blossom
and between 161, 161,000.
161 South and 28 Blossom.
I just wanted to clarify a couple of points that came up earlier.
I have lived here for 35 years.
To my knowledge, that space was always used as Mr. Zabarski's, Hannah's father's art studio,
but I never knew it to be an overflow space for visitors to sleep in.
But I'm just saying that's what my observations were for 35 years.
for 35 years.
You also asked about the zoning,
how this all started,
and whether the zoning officer was involved.
For over two years,
I and other neighbors have repeatedly asked,
I've asked Jason Page twice.
I've asked the police number of times
when they used to come to pick up Christopher
why the city allows the Berks
to put Christopher in this space, which I believe to be not approved.
And I asked Jason a couple years ago, and I asked him again this year.
And the response always was, it's all hunky-dory, there's not a problem here.
I looked at the hard folder within the last two or three months,
the one that was mentioned by the planning department.
There was absolutely nothing in that folder about the last two or three months.
folder about the studio or the barn space, you know, at all.
The last things were, you know, that I talked about was
1987 and the creation of the third apartment.
So there was nothing in that folder, and even while I was at City Hall,
one of the admin people went and asked an inspector,
what's the story with the barn at 28 Blossom Street?
And the response came back, not.
there's not a problem there, but it had never, to my knowledge, and in that folder, never been inspected.
So the issue that we have is it's fine if you turn this into a living space and you go through the process.
We don't, look, if Christopher lived at 161 South full-time for about the first,
three years of being in the neighborhood.
And then the last three years, when he would come back and forth
because it would be sometimes in a, you know, mental health facility or...
Discriminatory.
Or...
Ms.
Ma'am, ma'am, I'm going to ask, I recognize, I recognize this is a very different situation.
But if you cannot contain yourself, I will ask you to leave the chambers.
So please, there will be no interrupting.
I do, again, we do.
do recognize this is a very difficult situation.
However, I would ask that the comments be directed
as to the use and not the person.
Right.
But my point is, though, that Christopher was living at 161,
and he could still live at 161 full time.
What the problem was is that during the night,
he would be roaming around the neighborhood.
We felt unsafe.
But again, if we could please focus our comments,
on the use, on the issue before us,
which is, because it's not specific to this person.
Right, right.
This is, our purview is whether or not this is a change of use,
right, whether or not this constitutes a dwelling.
So could we please, let's not get into the specific.
I'm just trying to express to you about the code and zoning
and how this all started, and that we were concerned that this
wasn't up to code, wasn't allowed, and to mine, I don't know if it is now or not.
I mean, I understand that it's very complicated.
If there's three apartment units in that building that are livable,
we don't know that this space is safe for the neighborhood.
It's connected to a big wooden structure, and I guess that's all I have to say.
I just feel like it needed to be supervision.
and it's not safe.
Thank you.
Are there any other people who would like to speak to the board?
Is there anyone on Zoom?
Nobody that's raised their hand.
Okay. All right.
So I've kind of lost my agenda here just to what we're doing next.
Okay, so if does the, any of the board members have any questions to anybody who spoke?
Because I'm going to be closing the public hearing at this point.
One final two, four against?
Yes, actually.
Actually, well, yes, I thought there's no more public comment, but would anyone like to speak to for or against,
you know, this is an appeal?
So, okay.
And no questions to the board.
So I will close the public hearing.
And I will ask the board for its deliberations.
Again, I want to remind us of what our purview is here now is,
do the physical changes the determination requires convert the space from an art studio into
something else.
Mr. Rossi.
I have a question really for Mr. Neese.
What was the second portion of the zoning ordinance that you referred to?
I didn't quite catch that and I wanted to look at it.
Hang on.
I think I wrote it down, but not.
I don't have to look it up again.
Sorry about that, Tom.
10.8-11.50.
That's the section that...
Age 8-2.
That's the section that refers to the
section that refers to the code official can allow an accessory use under certain conditions
So it's under supplemental use standards.
And its other accessory uses and accessory structures may be permitted if the code official determines
that such uses or structures are customarily associated with and subordinate to a principal
permitted use.
And then you look up what are accessory use
is accessory structures, use in structures as those are defined terms.
Mr. Neese, do you want to keep looking at that, we can entertain other questions?
I'm prepared to make a motion.
Well, I would like more deliberations, actually.
This is, we are voting on, so we are acting as the code official here.
I understand that.
Okay, so I would like to hear more from other members of the board.
Mr. Ram, do you have anything to say?
It looked like you did.
Yeah, thank you, Madam Chair.
And again, we're limiting this to looking at, as a code official, do I have the authority to be able to make this determination regarding calling this an R2 unit?
Hold on, let me just make sure I get the term, R2 non-transient sleeping-sleeping.
units.
You know, certainly I think the appellant has made a good point in that that is not something that's in our zoning ordinance.
I guess in my mind it comes down to is this, as the appellant is trying to say, basically creating a use in the zoning ordinance that just isn't there.
Is it trying to
do something that our zoning ordinance should have, that it doesn't have, which may mean
that it doesn't think it should exist, or it may mean that it simply has never been considered
for inclusion into our zoning ordinance.
And again, none of my deliberations, and I believe none of the deliberations of this board, have anything
to do with whether or not the use has been proper, whether, you know, what exactly is going
on, the conditions of whoever may be where, and where they're.
they should be and shouldn't be.
It has nothing to do with this.
This really is just simply an academic exercise of the code enforcement official went and looked
at something, created a letter that came out of it, and sort of essentially said it can be,
we're going to consider it this thing, and that thing is called the R2 non-trains and sleeping unit.
And it's derived out of building code, which is separate.
from our zoning ordinance, right?
I guess my initial thoughts on it is that, you know, had this just simply continued on as being simply
an art studio, I think that, you know, would I say that somebody falling asleep in an art studio is
somehow a problem?
Probably not.
But going on to then try and sort of define this thing, and then more importantly, I'm
I'm kind of concerned with conditions of approval that came out of what the Cohen enforcement
officer did, which is that basically kind of said, hey, it needs a shower to satisfy
hygiene requirements of a non-transident sleeping unit.
That's kind of saying now you have to go and make some changes to bring it in compliance with
the thing that we're saying it is.
So that seems kind of odd to me is if we're simply going out there to sort of validate what this
thing is or has, you know, has a...
the current configuration to be, why are we saying it really needs something else to
now make it more like what it, what I'm saying it is?
And then the other real concern that I have is the fourth bullet down of use limitation.
It has the word right there, use, which to me implies more toward a zoning use rather than
simply something related to the configuration.
And, you know, all the things that we usually look for from the code official in terms of,
you know, safety, in terms of, you know, fire safety, electrical safety, those sorts of things.
And now kind of is talking to what looks an awful lot like stipulations or something that would
be in the ordinance where it says, shall not be rented, leased or otherwise to use as an independent
dwelling unit.
And I think that's kind of where it starts to cross over in my mind into something
that really is the purview of the zoning ordinance and this board rather than simply being
an interpretation of how do we make this establish use safe for carrying out the recognized
implications of that use.
And I think once the ball started rolling where we said we're going to intervene
and we're going to create some kind of a record on what what we think about this situation,
I think I get, I'm leaning towards that it overstepped and went into our zoning ordinance.
That's my thoughts.
Mr. Rossi.
I just like to add that I think two things can be true at the same time.
It is quite possible.
Actually, a lot of what David just said, I agree with that the zoning official overstepped
in trying to define a new use that's not in the zoning ordinance and would require deliberation
in a different body to get it there.
But that could be true at the same time as saying that the zoning official did not err
in stating that this is not a dwelling unit and is therefore not out of compliance with
what was approved for the use of the structure.
So I am still reluctant to go down the road of prohibiting something that is not specifically prohibited as a use.
Any other?
I guess I'm struggling with the idea that we have an accessory use, which doesn't appear to be an accessory use, which doesn't appear to be an accessory use for the property
it's on. And I'd be curious to hear what other board members think of that.
I mean, it does not, we've got an art studio that's located on a property, but at least from what
we heard, it's not being used by any of the residents on that property as their art studio unless
I'm over interpreting what was said, which is possible. I mean, it's been used as an art studio
from by somebody else you know this accessory uses are supposed to be associated
with the principal use of the property and it's not clear to me that that's the case
here now again this is something that could be allowed presumably through a
variance request but it's not clear to me that that's what's happened here but
I just wonder what other people think of that
Vice Chair Madsen yeah I definitely see what you're saying I guess one nuance
I would add is that the principal use of this property is residential and so in our
studio being accessory use to that is allowed I understand your point is that the
the property owners are not residing on the property itself but the fact that the
principal use is residential and in our studio being allowed secondary to
or accessory to a residential use is allowed but I agree with your point about the
Art Studio is not on the property that the owners use as a primary residence.
So I guess that would just be my comment to that.
Well, have my mind?
Yes.
I mean, there are examples of accessory uses on rental properties that are allowed that are not used by the owner.
I mean, a garage technically is a lot.
accessory use they're commonly used that way by the residents who rent there so
I'm not I'm not saying that it has to be the owner that uses it but it doesn't seem
like it's attached to the prints the current principal use but I see your
point it is a residential use but but it seems like a slippery slope to me at
some point mr. yeah in in response back
because mr. Neath asked for our thoughts certainly we ran into this
really just a couple of months ago with the term home occupation as an
accessory use certainly that had the word home in it and certainly implied I
think very strongly and that is how this board came to interpret it as being
tied to a specific person also residing on that same property if you're gonna say
you have a home occupation then it should also be your home right and we have a case
of someone who came to us and said hey a bunch of rental units and I want a home
occupation on it and we ultimately said no that said accessory use in general I mean
I also think there's a slippery slope where we would say well I want to put a shed on
the property but it's not for the use of the tenants it's for the use of all my
equipment that I need to maintain my multi you know my four four units or something on
the on the property is that now not allowed because you don't live on there that
that's an accessory use that's not being used by the renters I mean I I I
think that there's slippery slopes in both directions right there's there's a
slippery slope of I kind of agree it's a little unusual and that there's an
accessory use that's really not related to anyone who's probably residing on the on
the on the on the on that specific lot but that said there's probably some other
instances where that could come up as well so I'm I'm not ready to say it's as
exclusive as what we came up with for home occupation which in my mind had a
different sense associated with it comments okay so I will weigh in here I
think I'd like to bring us back to the way that I you know what we were tasked with
tonight and I look at this I think differently than some of the other members of the
board is that I do think it's a little strange that the code enforcement officer
will go in as it just changes to the space in order to make it IVC compliant but
that is not as before us tonight I think it's well
or not those changes actually convert it from an art studio and we've been
told it is still being into an art studio into something else and I think that
something else is is it a dwelling and there are it does not fit the definition of
dwelling under our zoning ordinance and that's where I'm coming from that's not
different from how I'm thinking about it by the way that is slightly different
than how I'm thinking about it and the sense that I do think that the
code enforcement official has put a label on it of this R2 non-trains-in sleeping unit
which was the whole point of writing up the letter in the first place was to label this
thing and then to sort of fulfill that label which is not dwelling unit but
it's something you know we've attached a label to may require some changes to be able to go
it no by the way I'm labeling this
thing but you're also limited in the types of things that you can go and do
with it i.e. you can't rent it out you can't you know lease it etc you can't go
and do those things on it to me that act of labeling it is the distinction here that
that is is critical mr. Rossi I'm trying to just go back to how you opened the
discussion and reminding us that we are acting basically in making a de novo
determination
yes so if we believe that it would be improper to label it as something that's not in our
zoning ordinance what the zoning official did doesn't really matter to us because we have an
opportunity to say this is how to view it correct in that yes this is what we are supposed to be
doing making our own determination thank you nice chair mattson um yeah if i could just elaborate on
that so if we're putting myself on the shoes uh of taking this de novo um
So this was in our studio that's allowed,
and it still is in our studio that's allowed.
Um, it's, uh, it's not a dwelling.
It's not considered a dwelling.
Mr. Neese did bring up an interesting point about,
because to me the real big thing is that there's no kitchen here,
so it's not a dwelling.
But I guess what I would add is that there's no kitchen in the structure
or on the parcel that could be used as a kitchen,
which would accommodate.
another more unique, a different use.
It doesn't really apply here, but it was a nuance worth pointing out at least.
So there's no access to a kitchen on this property for this art studio.
So it's the art studio that's still allowed.
It's not a dwelling.
And in a sense, there's no actual proof that it is being used as well.
And there has been discussion of it and at what point does sleeping there for however
many, however whatever duration does it supposedly become a dwelling.
But the big thing that's we're looking at here is nothing has actually changed.
If anything, it was an attempt to make a change to accommodate a perceived wrongdoing.
But if there was in fact no wrongdoing in the first place,
no change would be needed, specifically related to the zoning
zoning use here.
And again, just the reaffirmation of this not
being allowed to be rented is not a new condition being imposed and stepping into zoning
ordinance territory. This is just pointing out what was and still is true.
And then again, there's nothing that doesn't allow someone to sleep there. And I guess I would even add that
whether or not it has a shower, still wouldn't make it a dwelling unit.
But I would be hesitant to get too into that, too much of those details because it could cross over into the building code side of things.
Mr. Neese?
You know, I'm still struggling with the accessory use issue.
And, you know, to me, that's a legitimate question here.
Accessory use in our ordinance is a use that is, and this is a quote,
and subordinate to the principal use and located on the same lot with such principal use or building.
So, no, if you had a rental property, you wouldn't be allowed to store, if you owned a rental property and you had other things,
it would not be an allowed accessory use for you to store your equipment there.
That's not incidental to the principal use of the property if you were the owner and not living on the rental property.
And so, you know, this is the issue.
here to me, or this is at least one of the issues here with me, is that, you know, this is a,
if this was on 161 South Street, this would be a no-brainer to me.
But if it's not, a different property is what I'm struggling with.
We've got an accessory use that's removed from a principal building that the,
that is removed from the principal building that's using it.
It's not on the same lot.
Anyone else, Mr. Sullivan, do you have anything to have?
Every, everything that's been said has some validity to it.
it. Everybody in this room is in a very empathetic position. Every argument I could think of one way or another,
I can easily think of a counter argument, one way or another. I guess my position is if somebody
makes a motion, I'll vote on it.
Well, if nobody has anything else to add, I would ask for some sort of motion, a motion to vote.
I'll make a motion.
Mr. Rossi?
My motion would be to deny the appellant, to deny the appeal.
I'm sorry, what is that?
My motion would be simply to deny the appeal.
Deny the appeal.
Okay, is there a second for that?
Mr. Mattson.
And Mr. Rossi, your motion.
Can I ask the chair for some clarification on the structure that's required for this type of motion?
Well, our is.
is I can't give you any structure because it's very particular to each appeal.
But the...
You want to just give my rationale for the...
Or address the two questions?
Or address the two questions.
As was presented to us.
Okay.
And the first question as to whether or not the physical change is requested by the
zoning of the code official
would convert the space into something other than the art studio.
I would say that they do not,
because there's nothing in those physical changes that's incompatible
with the approved use of an art studio.
Okay.
And since the motion would be that it does not convert that,
we don't have to get to the second question.
That's correct, because there is no new use.
Okay.
So I will ask.
for who was the second on that?
Mr. Chair Masson, do you have anything to add to that?
I have nothing to add.
Okay.
All right, is there any discussion on the motion or would you like to add to it in any way,
Mr. Rossi?
Not before there is any discussion because that's all I could think of at the moment,
so let me hear what other people have the same.
It might be necessary to modify it.
Okay, so the motion is to deny the appeal and then
the physical changes that determination requires does not convert the space from an art studio into something else.
To a new use.
And secondly, there is no new use, so that...
We're just sticking with the first question.
Okay, is there any discussion on the motion?
Mr. Ram.
Yeah, I can't support the motion.
I'm not going to support it.
I do think that the code enforcement officer did classify it as an R2 non-transient sleeping unit to me.
unit to me that is different than the art studio use.
And it does then meet that first criteria.
I also kind of think it meets the second one as well, but I certainly think it meets the first one
that something did change here.
Okay.
Any other discussions in the motion?
Vice Chair Mattson?
Yeah, one minor thing that I would respond to with that is that what you're saying might be
might be true, but it's not a change regarding the zoning ordinance.
That's a building code classification with suggested changes to meet that classification.
Okay.
Any other discussion on the motion?
So the motion is to deny the appeal for the grounds that I stated.
And I will start.
start with Mr. Sullivan? Yes. Mr. Rossi? Yes. Mr. Rayhan?
No. Vice Chair Mattson? Yes. Mr. Nees? No. Mr. Lucas? Yes. And the chair votes yes. So it is denied by a vote of four to three.
Five to two. I'm sorry. With that, we don't get to the second question. All right. I want to thank everybody for
your patience and I recognize this is a difficult situation for everybody.
And thank you all for coming out tonight. Thank you.
And with that, I'll ask for a motion to adjourn.
So moved.
Second.
On favor?
Aye.