##VIDEO ID:WTB0NZtzPOY## we're going to open the public [Music] hearing public input public input shall be limited to statements from the public relating to any issues with the jurisdiction of the chumon zoning board of appeals that are not currently the subject of a pending public hearing before the zoning board of appeals public comment may be made on any pending public hearings shall only be heard during such public hearings and be limited to 3 minutes time there any request for public input at this time seeing none we have a new public hearing uh before we hop into that I just want to make sure anyone that is here uh understands that we're going to have a continuation of marose Avenue Cobblestone 5 LLC and ledge Road owner ledge Road realy Holdings and Newport Aggregates LLC will be Ed uh both till January 2nd without any comment or uh testimony our first new public hearing is 61 Smith Street thong Q Hoang and Linda Li requesting a variance under zoning bylaw section 1959 Conformity for construction of a 28x 24 square foot residential addition which does not meet the side setback requirement of 25 ft and other relief deemed necessary this property is located in the residential RB District CES parcel ID map 32 block 122 it consists of approximately 1.06 Acres someone here tonight for the 61 SM stre yes Mr chairman members of the board attorney Pete neosia from Tings borrow um coming out to visit for a different night um I represent Linda Lee and her son Thomas Wong who own 61 Smith Street is their primary residence this is uh mother and son uh they're looking to put on a twocc car garage addition with a you know some living space above it um if you look at the uh certified plot plan that was presented we have a fair amount of environmental challenges on the site um you know we've got uh areas of uh the no disturbed no impervious and the river fronts all that affect our developable envelope uh makes it a very limited developable envelope on the site those would be the hardships owing specifically to the lot under the statute that would qualify for the variance um so what we're looking for is a singular variance for a sidey yard setback supposed to have 25 ft uh we're providing 16 so we're looking for a 9 foot uh variance from the side yard setback other than that um the project and the property complies with all the table of dimensional requirements in the zone so originally we had some different you know versions of the construction plan so I had involved uh Building Commissioner Negron very early in the process uh and he and I went back and forth a couple of times on the plans to take it out of the category of a limited accessory uh use apartment um so uh the way that we resolv that issue is it's an open uh entrance way between the existence of the main dwelling and the new dwelling there is certainly separate you know access to get into the garage but in terms of Open Access between the two uh the two units um it's it's going to remain open so once we removed you know the doorway um commissioner Negron had indicated that it's just going to be viewed as an addition and not uh require the need for a special permit for an laa so it's really not more elaborate than that I think the construction plans are pretty self-explanatory as is the plot plan uh we will have to seek some conservation um approvals as well uh but we wanted to come here for us approach them yet no we're going to do that next um so we're prepared to do that we flagged everything so so with that happy to answer any questions that you might have can you describe the additional living space there's a uh of the sheet here Glen on the back of it is the so there's a floor plan and the construction set so there's uh know bedroom bathroom uh there is a kitchenet area again this is mother and son um his son advances in years and you know is establishing his own life um and Mom is advancing in years I think they're trying to at least create some level of privacy for the two of them without crossing the line into an in-law apoc um so sort of just a more of a getaway space for mom um is really the intent behind it so so mom's going to move into the new space and Son's taking over the house or he's in the house right now I mean they're they both live there right now it's just it's just giving Mom and son more space uh than what they currently enjoy right now I think they have as M explained it to me originally they both have different uh uh cooking desires and cooking habits and uh uh she wants to be able to exercise those without interference from her son no offense Thomas but um I think that was actually the primary motivating factor originally Glend did I I I didn't mean to step in front of you I just didn't know if you'd seen it and do you have other questions no I I just thought we should mention what that living He just mentioned it broadly as living space I thought we should have in record of what it's going to be yep are there any further questions from the board CH I took a ride by there and if there's one lot that needs a variance it's this lot because the shape and the Topography is like hilly as can be so amazed I think my my friend built that Walter Lewis many many years ago they had to go through a few versions of the the site plan um but ultimately this is what what worked yep good enough any other questions think I'll read the letters in if that uh seems like a good time to do that zoning board of appeals regarding 61 Smith Street this office finds the following the proposed addition existing structure must be brought up to the current code 780 CMR to smoke carbon monoxide heat detectors type locations and power source the applicant is advised to submit a plan to the fire prevention office for review and approval prior to the issuance of a building permit this office would approve this plan with these conditions and I asked that the board make this letter part of their approval process and public record sincerely Josh Abbott Captain fire prevention office okay we s we'll stipulate to those upgrades of course excellent I I don't think it's optional no it's not but I uh from Sheila Joy project engineer 61 Smith Street there officer reviewed the project application plans and documents submitted to the DPW on November 18th 2024 for the following public hearing notice on December 5th 2024 as a result of this review the office has the following comments no increase to the town of Chelson sewer infrastructure shall be more than 500 gallons per day per CMR 15 Title 5 sewage flow per bedroom of a dwelling is estimated equal to 110 gallons per day so that would be well under the qualifier um the proposed addition is flow is acceptable as of November 26 2024 the DPW shall mentor and monitor enforce sewer flow limitations and impose penalties for violations thereof in accordance with the town sewer policy for the town of chams at se use regulations the city commission established the estimated cost of increasing the treatment facility capacity to the system to be $15 per gallon of daily Wastewater flow to be 15 per gallon of daily Wastewater flow the sewer impact fee is $15 per gallon times 110 gallons per day would be 6 $1650 this shall be paid to the DPW sewer prior to the issuance of a certificate of occupancy if there's a change in use or expansion the applicant should submit the necessary flare pants to supplement the sewer allocation calculations erosion control dresses must retain the sediment on site these must be installed prior to any work or demolition the applicant should follow protocols and obain necessary uh approvals from the conservation agent as project is proposed in an environmentally sensitive area three consideration should be made to install roof drain drywalls or the equivalent to infiltrate roof runoff this is not a requirement for approval that was any engineering the Board of Health has no concerns at 61 Smith Street and the police have no concerns at 61 Smith Street that is the extent of my letters I'm going to open this up to uh the audience if anyone like to speak in favor or opposition to this now is the time seeing none and I entertain a motion to close motion to close the public ask one more question absolutely sir sure um are you or your client uh aware of the new Adu laws that are being imposed by the state yes okay doesn't go into effect until February U right second 1 you know the and I know most towns are still grappling with what what their special permit bylaw is going to look like U but I'm aware of what the the state limitations are so to the extent that this were ever to be converted to you know an in-law apartment um you know we would have to make some modifications to comply with that well the state is um we're still waiting for the state to flesh out their broad stroke at this point they're supposed to be giving you some model special permit regulations that you can use but um the only thing that would bother me or concern me is if if the addition were uh approved as an Adu under the new guidelines but again it's still up in the air uh the applicant could legally rent this space at any point in the future um and I don't think they could do that I don't I don't believe it would be compliant so with with what the Adu proposes right now under the state statute um the limitations on on Dimensions uh would be problematic for this addition would have to come back and retrofit that to be able to comply with the statute so we're not going to be able to do that just as a matter of right by Grant of this variance so I don't think that's a concern okay I'd also point out that every single home in town is under the same they they could choose to do this if if you have a home well I just thought that the owner should be aware of his options going forward fair enough any further questions I think there was a motion I me close the public hearing public hearing I'll second second it J all in favor unanimous opposed um we don't easily Grant variances uh in this case I think that you have a very strong argument to two of the three tenants anyways the uh soil condition and the Topography of the the site itself of the lot shape so uh I don't know if anyone else has other concerns about this so wants to voice them on that note go ahead J uh I'll make a motion to uh approve the variance request for 61 Smith Street under Zone under Section 1955-5 with including all letters read in I like a second second by Peter all in favor I opposed seeing none good luck with it yes we appreciate uh your consideration and I hope you all have a happy holiday that's a record isn't it think that's the first do you want the back this this is right this is why you have trying to be polite there's nothing crazy lot that is our second hearing is 150 North Road it is an administrative appeal requested by Michael I'm I say this wrong I apologize Goya 147 North Road under the zoning bylaw section 19512 B three regarding a planning board approval for the site plan review and a special permit for the construction of a 16,200 foot Child Care Center at 150 North Road good evening good evening uh address for the record Joya Jo Joya is that corre I'm sorry I knew I was GNA get a that's no problem nice maybe you tell us a little bit uh about what uh what is going on there I've heard uh so I own and reside at 147 North Road uh which is directly across the street from uh 150 um I know I covered a lot in the narrative uh the letter that was just passed out was in response to the uh letter that the attorney sent out yesterday um if I had more time I probably would have been able to get it to you a little sooner um kind of my first time being up here on my on my own so I'm not take your time yeah just I'm not not sure where I should uh where I should really go or I guess what is the reason for your appeal of the planning board decision so the my big reason for it is I believe that the structure as proposed is unreasonable uh which would fit into um the town's ability to regulate under the Dober Amendment um the planning board was more or less unanimously against this project but they felt compelled to vote for it because of the do Amendment uh and because of the specific advice from Council uh which upon after approval and reaching out to other attorneys I found that um it might not have been the correct advice uh they weren't able to um give me an example or confirm that the part of the law where you're able to regulate the bulk of a structure is tied directly to the flot of land that's available which is was the reasoning for approving it as it was proposed was they it was believed that you could not regulate the size of the building as long as it met the setbacks I was unable to confirm that type of information uh and I did con consult with an attorney who had handled over Amendment cases specifically uh and they weren't able to confirm that those two things were directly linked which was the big reason why it was approved uh if that case wasn't made to the planning board I don't believe they would have passed it as proposed okay what I'm going to do is uh ask Mr ikan to uh speak on this to the knowledge that he has because I I really don't have I don't even have a good background on how this came I know the gist of it but uh legally I guess I'd ask for your opinion on on his statements uh thank you Mr chair um is this getting to the mic I'm not sure how close I should be to this thing and if I was really loud picks up pretty well that's fine okay uh thank you so um the planning board did accept the fact that this use is a protected use under the so-called do Amendment that's a section of the state's owning act section three of chapter 40 it's a child care facility and what that statute says is that um the town may not restrict by special permit but may impose reasonable regulations related to certain dimensional characteristics including bu bulk setback lot coverage um the planning board seeing that applied the site plan criteria the applicant had applied for site plan the board applied that criteria understanding that the use was allowed by right they determined that the project as proposed met all the dimensional criteria in the zoning bylaw that would apply to a use on the property except for parking uh the board decided that the parking that was proposed even though it would did not meet that requirement was sufficient and the planning board does have authority to do that under the do Amendment it can decide when those regulations for that is that the process they did not explicitly do that but I think implicitly that's what they did um they do the town has authority to decide when a regulation is not reasonable as applied to a do use and I think they did that here so given that they approved the project um there was resistance to the facility in the neighborhood there was some resistance to the size of the facility um the difficulty with that for the planning board and I think for anyone considering an appeal is that the use is allowed by right it has to be allowed by right so considerations of whether the size of the use is appropriate for the town whether it's appropriate for the area those those are considerations of use since the use has to be allowed by right it's not really something that the board can consider it really cannot be correct a factor right so my understanding here is that there's a suggestion that the project is too big uh the difficulty for the planning board was that it complied with all the dimensional requirements setbacks more met correct right do you do you know the the parking like was were they asking for 100 and they got 80 or my memory is believe that the standard called for 80 or 85 they were asking for 50 um and Chris pushed for 57 and they spots right and I believe that's that that's my memory as well and I believe that's represented in their decision you'll see that in the facts so you can see what the requirements were there um there was some in fact I believe the applicant is here and can address this with their attorney as necessary um but I believe they presented evidence to the board of why that was appropriate so I think your question as to the petitioner here is what is the basis of your appeal is a good one because I think that's important um the board obviously is going to consider why the appeal might be inadequate or the decision might be inadequate they're not going to look at the entire appeal and try to redo it that's really the planning board's job cor question is what are we doing here and what what can the board look at and what is the right what is the actual right that they have the do that you referencing to right and you know not without I know it's long and I've kind of looked into it a little bit it's not that long um I will actually it's a short paragraph oh okay and I can actually um so what it says is no zoning ordinance or bylaw in any city or town shall prohibit or require a special permit for the use of land or structures or the expansion of structures for the primary accessory or incidental purpose of operating a child care facility um provided however and I think this is what the appeal is about that such Lander structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes lot area setbacks open space parking and building coverage requirements so that's the limitation that the town has as far as applying its regulations so as I said what the planning board did is it looked at those regulations through site plan review and said do they comply and the answer to that in every question was Yes except for parking and in that case the evidence was presented by the applicant that they had provided sufficient parking and the board made a determination although they didn't reference this specifically that that parking was adequate a difficult spot right Danny also isn't it under site plan review you can't deny the site plan approval unless there's a of information or safety concern that's absolutely correct I'm guessing they went through the fire department the police department with their approval process as well right and I know Evan has can referenc that information but yeah they did get comments from the boards the town boards and departments and they did the anr prior to submitting for their approval for the building plan to get the three blocks merged I believe so so they have the land coverage right I believe so I believe believe that would have been allowed by wri so how does this fall to the CBA what uh this gentleman is appealing a decision of the planning board right uh much to when uh Jose will make a decision and and someone will question it we are the the arbitrator of that we would be the arbitrator of the planning board gotcha our vote could could overturn that but there would I mean it would have to be it doesn't fit on the law it doesn't meet the town zoning requirements if I understand that correctly all they've met them all they're not asking for a special permit uh or a variance or any protection whatsoever there's their table they have fitted on the site correctly again going back to it fits within the bylaws why is it here I I realize we're the operator you have a right to appeal any decision to a point the analis if if we have the ability to appeal approve his request so that's what we're doing Mr chair if I may just just to clear this up I know the board doesn't see this very often appeals from site plan approvals um so the chelsford bylaw does not allow direct appeal of those approvals to this board so what has to happen here is that once the approval the approval site plan approval is a prerequisite to a building permit right once site plan approval is issued then the applicant can apply for a building permit once that permit is issued based on site plan approval that permit can be appealed to this board that's the standard how you see all of your appeals when a building inspector acts on a permit or takes enforcement action that can be appealed to this board that's what happened here Foundation permit was issued the the the petitioner had filed an appeal site plan approval once that happens the board can take that up yes Dan question for the petitioner yes so when you reference um the bulk and and what do you specifically mean by the bulk of it uh I mean the building footprint the 16,000 ft footprint um The Gardener School operates multiple locations that are smaller uh in addition to the multiple locations that they operate that are smaller uh there are multiple locations within less than a mile of the proposed site that are smaller as well um which is why I believe that the 16,000 square foot proposal is unreasonable especially in the location that they chose uh in a different location I might not be as unreasonable but where it is where on North Road it is it's you know it's like put in the mega mall in the middle of a North Road it's it's it's a lot um you know I think the is it the Learning Center on chumford Street uh they're 10,000 square foot that's a probably the best comparable even with PR Rose down the street you know right on the middle of chumford street right around all the houses that's the best comparable uh in the neighborhood where you know they operate a successful facility and you know I feel as if their bulk is not unreasonable given the what the project is for child care facility nowadays um do we know how many floors this is two floors two Flo just oh just one yeah it's a big building that's question Town Council um there seem to be some question of whether or not the speaker has standing on this issue what constitutes standing is there a definition exactly of what that means through you Mr chair yes there is essentially it's um an injury or depr deprivation of a legal right that the zoning bylaw provides so if the zoning bylaw protects a certain interest for instance uh views sometimes can be standing if the zoning byla expressly protects views um anything that will affect um the actual use of the the petitioner's property uh inadequate drainage um congestion if the zoning bylaw directly protects those in terms of site plan approval and the board issues approval and applicant who feels that they have been harmed in their property by this approval would have standing so challenge here is that the applicant he's correct the petitioner is correct he does have a presumption of standing because he is across the street so if you wanted to challenge standing you would have to bring forth evidence that notwithstanding that he did not suffer any actual injury that hasn't been addressed by the board to this point it's been raised as an issue but they haven't discussed it thank you y I guess the next question is what is the harm um I think that's a question over there uh well I am given the right of presumption um of legal standing uh beyond that I would say that you know we look at the harm as uh as a reduction in my property value um aesthetically um and those probably are the two biggest ones um value in my property would give me base standing in in a court of law technically um I believe that could be confirmed um but beyond the presumption uh that would be my next Bas standing I I I would need to consult with my own attorney to give you more of a written you know detailed type of injury uh layout but guess just sorry yeah outside of being outside of it being it's an RB district and obviously this is not residential building that's why they went to the planning board everything else is by right because they comply with all other of our regulations correct I think that's also by right that's P it is because of the because of over yes yeah yeah yeah yeah yeah okay it's still right hate to say this but by way of argument if you sold your house to a family with children it would increase the value uh that could be argued North Road itself it definitely has its own safety concerns oh definitely um I'm not sure how many of you are on jumps news but I've actually posted a twice uh since they approved that meeting one was a kid almost getting hit crossing the road trying to get to school in the morning uh and the next one was the mailman getting sideswiped in front of my house if so do we the there's definitely safety issues in regards to North Road and I don't feel as if another 800 transactions a day is going to help anything yeah I can't Vision 150 North Road do we have an image of of the neighborhood it's you know that you know the White House on the hill if you're driving towards the center there several L wigin street is do you know where wigin street is Charles you know the well it's right across the street from wig it's right next it's right up the street from the the well house the Well's house you can't see it's all it looks all wooded the house that's on that property is kind of run down and it's almost surrounded by trees you can't really see it anymore demolishing the existing house yep okay it's right down the sh for me and it's kind of it's kind of hilly it almost looks like a wood Woodland area at this point I would looks like it's going pretty far back from the road it does it the new prop the new build won't yeah so what's highlighted there that's going to be what's already there up the one that's highlighted the one below it and the one behind it to the right they merged three lots they merged three lots oh okay so they merg those three lots and they're going to consume 20% with building okay I know where you are it would seem not saying it's good or bad but it would seem to make the that area of Chumps with the child care the world it's turning into we're we're in a a challenging position I I think that we would have to find uh a mistake that the planning board made or or a decision that was not uh acceptable to overturn their decision so I don't know that the public safety aspect is not something to really be that's correct yes and because you're restricted by certain considerations that Dober amendment allows the town to impose those areas are the only areas that the town can oppose IDE being safe or unsafe is not something we can consider no not unless that arises out of bulk lot size Frontage Etc and since they comply with those it would not arise now I know where you are yeah I mean you really can't even see you can't even see the house from unless you're really look yeah but we don't know what they're going to make that's that but that's not our call what do you mean they split don't know if those trees are going stay there they won't I've seen their plans trees are coming down W trees the walls they're going to clear all that out you'll see the building from the street half the parking lot I think at this time if there's no further questions I'm going to open it up uh do we need to do that on an appeal I think I will anyways um so if someone like to speak in favor or opposition to this if you J would like uh a little time to explain your position we'd be glad to hear it yes uh thank you Mr chair members of the board I'm Bill prer I'm an attorney for um Viking which is uh the gardener School uh so just a couple of things um it's not just the do Amendment here and I know people get hung up on that it's you know it is difficult for municipalities and neighbors sometimes to accept that but the other thing to remember is it is a bught use under the by law well so it's not just the do Amendment so the town made the decision to make it a bught use in all the districts of the town and that's in the use table so that's one thing just to I like to just remind everyone about as well as the state the town has already decided this is acceptable yeah so that's one thing and the other thing is the town also can adopt regulations dimensional regulations that would apply to this use just like any other use but the town has chosen to let the underlying zoning Dimensions apply and that's the discussion that's happened here that there's compliance that the project complies with those so that's just another another way to um to see this you know some some communities have adopted regulations more specific to the child care use and then that creates a different discussion but chelsford has not decided to do that so we're we're all sort of working under those circumstances we could have larger setbacks or more restrictive space for it if if that had gone through the uh the town meeting and been approved as a zoning law correct small but we didn't didn't and this is a kind of not the Forum where you can in effect adopt new dimensional standards quite a process I understand yeah uh the other thing is there was a I think a mention of another center nearby and according to the town's assessment it's almost identical in size this is 16,200 square feet is the Montes Primrose Primrose Primrose okay and on Parker the corner Parker in North I have the Assessor's card here just I just wanted to check it out and it's 16,128 Square ft larger than that yep and just for comparison that parking permitted there was 47 spaces and this is 57 and the site plan review also included peer review so the town had a traffic engineer that represented the town and an analyzed our traffic study as well the effect that it would have for the use because and there's a lot of good data because as someone mentioned there are other centers in town so just to give you some perspective on that and then the last piece I wanted to just say it's in my papers I don't want to argue the standing thing but there's really there's a Pres assion of stand of standing but there also has to be some evidence and it can't be speculative uh so if you're going to claim that your property value is going to be affected you really need some evation to back that up okay so I don't again I don't want to really argue it here I just wanted to sort of point it out we did brief it in our letter so it's there for the board to consider if they'd like um and one more thing if I can and then I'll I'll shut up is the there's a case on point exactly on point here and it holds that if um a child care center meets the dimensional requirements and complies with all the dimensions that site plan review cannot be used to change the the dimensions you can't require an applicant to to be more restrictive in other words you want more setback or you want a smaller building or you want it just there's case law on that so again we're working in that context as well so I provided the citations in our in our brief um they're not they're not hard to find so I'm not sure why there was a difficulty finding that but that's all I have to say about it and I well one last thing because I think it's important to say I know I is um the planning board did a good job here they did their job they were thorough they were professional they took time they were thoughtful and they they did struggle with parts of this but in the end they they did the right thing and they got good advice from Council and they got good advice from the planner so they they really didn't do anything anything wrong they they did their job and they were um Bound by the bylaw as you know as we all are so if you have any questions I'm I'll be here but thank you thank you would anyone else in the honest wish to speak tonight on this matter in favor or against seeing none if uh we're comfortable we can close the public hearing if there are other questions before we do I guess I'm I'm just putting it in one sentence um we just we just need some proof that you're being harmed or some kind of information that you're being harmed so or just something like that I I understand uh what he said uh in the same case that he cited uh it it is determined that I have standing just off presumption by being in a butter I don't need to provide evidence unless it's challenged and given that we did not get a not notice until yesterday uh and no evidence was provided to challenge my standing um I do not need to have proof on me at this moment um and just to touch on one more thing on primrose uh because of the square footage this the um the footprint on that building is only about 11,500 ft which was mentioned in my narrative just to it there has a section of two floors uh just so the the the lot coverage was 11,000 is that what you're saying the footprint of the building yeah the total square footage is bigger because it has a second floor on part of the building but the the footprint which is what my main argument of being unreasonable on 150 is only about 11,500 ft I see absolutely so if that building was cut in half in two floors would the argument still stand uh I don't think so um assuming that they're not doing you know 15t ceilings and the building's going to be 45 ft tall type of thing I don't think that that's my argument uh would apply um you know if you're working with maybe 10ft ceilings and you know a 4 over 12 roof pitch or even a flat roof I don't feel as if this building would have its massive footprint and just this outlier uh and just you know the way it imposes on everybody in the neighborhood it wouldn't have that bulk and that Mass to it that would be so you know just mindboggling I can ask would that be a consideration sure I do have to State my name and everything yeah all right so Brian sansy with Viking development in the gardener School so although we do have some twostory locations that we open and or that are open and operating it does cause some hardship on our operations we serve children ages 6 weeks to 5 years old children under the age of 30 months old are considered non- ulatory and aren't allowed to be on an upper floor so operationally um a two-story school is not preferable for us this would be one of the concerns you had mentioned about changing the space correct that typically a planning board decision would be be be appealed directly to court subdivision decisions go to court special permanent decisions go to court site plan review is a creature of bylaw so if uh to determine what the correct appeal route is you have to look to the bylaw chelsford does not provide for direct appeal to court from site plan approval so what courts have told us is where site plan approval is a prerequisite to a building permit you you have to wait if you want to appeal site plan approval you have to wait until a building permit is issued that's based on site plan approval having been given so in this case the planning board approved site plan approval or gave site plan approval the petitioner wanted to appeal that but technically he had to wait until a building permit was issued that relied on site plan approval that happened here a foundation permit was issued for this project therefore he can appeal that issuance that's a building disector decision as you point out that comes to this board so through that he can then look at the reasons that the building inspector approved the permit one of which was site plan approval was granted he can then ask if that was a proper compliant with the bylaw so that's how we get to site plan approval being in front of this board so so the question at hand then is whether or not the the building coverage size the square footage uh is compliant or whether it is reasonable to the neighborhood yeah if you would yeah yeah yeah that's I think that's a question both for the petitioner to tell us what she has and for the board to determine you know what is his appeal what do we have to decide here that's really how the appeal is framed okay thank you thank you certainly question for Town Council I don't have the I'm not sure how familiar you you are and I don't have it in front of me uh but I believe in Rogers versus Norfolk um was cost to um do something like make it a two floor building part of uh something that's not was cost something that's not considered uh to be an issue for uh the boards when making a determination on forcing like a second floor or does it fall uh to the developer and cost being a reason to not do it I I would have to go back and read the case because I believe it was specifically touched upon in that case but I don't I don't have an in front the financial hardship to adjust the plan can't consider financial hardship to adjust the yeah that was my question I think please I don't know the case Mr chair yeah thank you um so through site plan approval um the board does not have to consider financial hardship in applying conditions of approval um I can also point out that that particular case Roger's case that was a denial of site plan approval so what the court is looking at there is very different from what you're looking at here and just to add something to that during the planning board proceedings that notion never came up of a second floor correct yeah I mean the the answer uh the or the uh owner gave was to me satisfactory that uh you know you can't have children or young children on the second floor uh that's a safety issue certainly as well so it's not a one-time cost it's a continual operational yeah operational restriction that in that manner may just one one issue the issue in the Rogers case was the town had a regulation a dimensional regulation if I recall that limited Child Care Centers to 2500 square ft and the proponent said that's unreasonable we can't run a school that size so when a town adopts a a specific regulation like that it's enforcable it's considered valid unless the proponent can show that it's unreasonable the proponent showed it was unreasonable so the was reversed and so exactly the the court said you know the presumption of re of validity has to go away here because the the protected user has shown that it can't isn't a practical thing but but chelsford doesn't have that it's a completely different situation right the situation could not apply yeah [Music] any other comments any other questions from the board uh you know I don't know if it's exactly Apple apples but in the past year we had a situation where a proposed project seemed to meet every criteria except the neighborhood was totally against it and the board elected to deny the petitioner it went to the state and it came back that we were wrong that the emotions have no bearing on anything it has to be demonstrated clear and cut harm which in this in that case it was not um it seems to be somewhat similar to this I will tell I was there I I think uh uh and I was there at their remediation and the uh the decision was made after uh quite a bit of bargaining it wasn't uh just you were wrong and that's it and it's changed uh we went to remediation we went through the process and we came to an amiable agreement that did allow the the decision to be reversed but there were substantial changes and how that was handled so the applicant was in front of us for a per a special permit I believe it was was the applicant was in front of us requesting a special permit this is that has it's totally a different situation like there's he the applicant was in front of us for a special permit that we it wasn't just a reversal of decision we we renegotiated uh what we felt was an a you know an amicable agreement to uh to make that change it was similar in that uh the reason that we used to uh go forward as opposed to allowing the petitioner to go forward was um a subjective uh you use you you use neighborhood and social character Y which is BAS based upon a butter input which we can under the bylaws well whether we could or we couldn't that was the decision we made yeah uh it did it did go to an appeal and it was heard and the remediation occurred and it was adjusted to a point that it was deemed amiable but it was definitely uh you know I I think what we applied the best we could was what we felt was accurate and there was certainly a enormous amount of neighborhood opposition to it um do the do the neighbors have any rights that they would not be heard so no I'm just saying I'm just saying it was based on many neighbors that case was based on many neighbors in this case we only have one and I don't know I still haven't heard a a a true grievance he's just appealing the de the the he's just doing an appeal to the issuance of the permit to get the site plan reviewed his initial appearance he had a an he had the you had the petition right the 200 signatures I have a petition where I walked the neighborhood and I got over 100 signatures I have an additional petition from change.org that has over 1300 signatures yeah so there's definitely that might have been something you wanted to present tonight but we're we're again not going to act in that direction yeah um to to decide it because it is you know uh what we are reviewing is did the in our opinion did the planning board do the right thing and we'll make that vote and decide you know after that fact you can still appeal our decision and then it would end up in an actual courtroom where you may get a better legal opinion than we can offer you right but that would be the path that you would pursue two should you not Prevail so I just want to offer one more piece um to everybody uh one benefits or advantage that a town has when denying a do permit a Dover use um application is that the applicant or the developer owns the burden of proof to prove that your decision was unreasonable um if I appeal it I don't have that same advantage to the same degree that the town has if they were to deny or restrict this type of use just so there there is an advantage uh just in the development process for the town to be the one that I I can't disagree with you I I think uh I would have to have a little more information to to understand but I I know what you're saying uh and again if you know you you need to take this to another level you you are able to Y but our our decision is pretty clear here what we need to do say is did the planning board follow their regulations when they presented to the building inspector and did he follow his operations when he issued the permit that that's our only decision here we wouldn't uh what further back than that is just to decide whether Mr Negan in fact followed his regulations when he approved the building permit and wrote it and their use of it as a daycare or educational facility is not under they're not claiming that right of use under the do cuz that's right of use under our bylaws uh that was something I didn't know till today yeah so the do protection that they're claim if I'm not mistaken right the do protection is our duplicit the planning board's limitations on what they can do when it comes to the construction plans like the construction of the site I don't think that came up in the planning board meetings either just so that's my understanding the only one thing uh problem I have is like I still don't actually see actual standing there's presumptive standing which gets him here but I don't actually see standing for us to be able to at least in my opinion to be able to make a decision on this unless the applicant can provide us with some actual proof of standing I don't think we even have enough to be able to make a decision well I I would understand what you're saying but wouldn't that make our decision we would decide that without standing that indeed the building inor did follow protocol I mean all we're really deciding is was the building permit am I correct about this we were deciding that the Building Commissioner issued the permit legally I but I I what I meant was like I think we should give the uh petitioner a chance to at least try to provide us with right proof that he has standing like some sort of like if there was a study done for and his house was devalued based on this property going up because then at that point if that applies which it sounds like it may I don't so I I defer to you if you think there's uh reason for us to continue I guess is the request no thank you Mr chair I mean my advice on standing uh in situations like this where the where the petitioner is in a butter is that and there is no evidence brought forward there's an allegation that he doesn't have standing but there's no evidence brought forward that he does not that he's not injured he's correct the burden is not on him at that point my advice to the board would be I would not rest your decision on standing I would go to the merits of the decision and if standing is still an issue it can be raised at court so you would you would be comfortable with us voting on whether C there standing whether commissioner Negron had the uh the right to issue the permit right standing and and go to the Mars okay are question I I understand the confusion there uh but you know Mass law case law it all supports that just being in a butter gives me presumptive standing um and that shouldn't be a question that's what he's saying that we assume that you have standing and then move forward with that assumption okay other questions I mean I guess do we have questions for the people in the audience or should we close the public here or the applicant it's close that'll be the end of our discussions will be at the table I think even of John as well right we when after we close after after you close you can continue to discuss among yourselves but we would not be asking you questions you could oh you could okay okay time for a motion make a motion to close the public here second by Rod all in favor opposed seeing that unanimous so I think we we need to focus a little on on what our job is here and that is to decide if uh Jose made the correct decision issuing the building permit based on the information he got from the planning board all the other things are not really in our purview or on our plate so what are the criteria that we can use to evaluate whether or not he did that correctly well I don't think there's any evidence that he didn't the setbacks were all correct y dimensionally we've proved that the RV District supports Child Care um it's on legally owned land the parking uh is the only thing you could hang your hat on and it sounds like the planning board did a good job deciding what the number should be and what the number was and and issued I guess a waiver of sorts I'm not quite sure how that worked but everything they're doing is byright except for the parking and the parking was not an issue for the planning board yes and that is all the information that would go to Jose for him to make that decision because everything dimensionally that he looks at was correct is correct so there's really no misstep in Jose's actions and by default in the planning board's actions uh that we can discern there's no evidence to the contrary that's kind of where my mind has been for like half an hour as I listen to lots of I'm like what is what is the core of this argument and there's a lot of things going around it but I want to know what I'm being asked to decide and it's like well I think that is our decision someone like to make a motion uh to the affirmative remember what the thing was it I make a motion to approve I think it's Deni the I make a motion to approve the administrative appeal for 150 North Road no no it's deny you always make your you always make your Motion in the affirmative if she is right about that so the vote if you are in favor of uh approving it approving it would be to deny the approve the appeal is that phrase correctly that's fine right you you need a second I think still Yes before we vote I want to make sure that I'm cuz there was a bunch of like it feels like double negatives going on so yes I'm making a motion to approve it do you agree with me right so whatever she said if we want to overturn what the planning board did we deny if we want to no no if you want to overturn it no if you want to overturn the planning board you approve the appeal okay if you don't want to overturn the planning board you would deny the appeal you disagree you vote against the motion Okay so again I make a motion to approve the administrative appeal for 150 North Road I second all in favor of granting the appeal all in opposition to all in wait wait opposition to the appeal opposition of the appeal it's unanimous appeal is denied thank you have a good night you you know he's Earnest It's just tough it's a tough spot really tough very I do think it has uh I think it has revealed some maybe some deficiencies in our own bylaws okay thanks Jonathan thank you we that thank you thank you my pleasure I hope that was uh no suitable for for the uh it's new to us for sure no well that's why I'm here I think thank you I told that sorry the guy had a lot of guts to come good lawyer he knew his stuff yeah it's hard is he a lawyer I'll take my leave thank you appreciate your time did his homework when he was talking about building I figured he had some sort of experience with building he was talking about floor Heights and pitchout I was like okay you know something about architecture well I I'm sure plan board was careful work on your own house for while for a continuation on marose Avenue Cobblestone 5 LLC till January 2nd I make a motion to continue Cobblestone Avenue to January 2os Avenue Cobblestone 5 yes I'm sorry Avenue Cobblestone Peter favor I opposed has there been any testimony on that yet you missed one I think you missed two Sten has missed two two of the hearings so he's no longer qualified to vote Jamie missed one but just submitted to V so as of now um it would be Brian Charlie Peter one two three four in R yeah did I count that right that's six one two three four five it's five Glen it's Glen are you here for everything yes y good six people we need five five okay but there's six still eligible eligible is what I'm saying yeah is Danny eligible yes El also we've got a potential of seven okay good luck guys that you did that on purpose strategic I looking for a motion for a continuance on ledge Road owner ledge Road realy Holdings at Newport Aggregates LLC till January 2nd I make a motion to continue ledge Road uh owners LED Road reality Holdings and Newport Aggregate LLC till January I'll second that but I ask if they're actually going to show up this time they're within their rights I I conly agree with you so we have a second all in favor I opposed and there's been no testimony on that one so everyone is still out still qualified including you yeah you're stuck for now for now what about the what about the meeting dates uh next meeting dates January 2nd and February 6th and I will have minutes posted for the next meeting okay so yes if a motion to adjourn is uh made we can leave we made I make a motion to adjourn no I just had I'll ask the question after all in favor unanimous a quick unanimous the shortest meeting to record have