COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS
ZONING BOARD OF APPEALS
ARLINGTON, MASSACHUSETTS
In the matter of )
)
1288-1290 Massachusetts Avenue)
Arlington, Massachusetts ) Docket Number 3168
)
James Magaletta )
Michael Magaletta )
Petitioners )
PETITION FOR VARIANCE
Hearing: Tuesday, November 27, 2001
Decision: December 18, 2001
OPINION OF THE BOARD
Members present:
Joseph Tulimieri
Patrick D. Dignan
Susan B. McShane, Esquire
OPINION OF THE BOARD
The Petitioners, James J. Magaletta and Michael Magaletta, appealed the decision of the Inspector of Buildings, who refused to issue them a permit to construct a driveway in the front yard of their two family residential dwelling located at 1288-1290 Massachusetts Avenue, Arlington, Massachusetts.
The construction would require a Variance from Section 8.07 - Parking in Residential Districts of the Zoning Bylaw for the Town of Arlington. Statutory Notice was given and a Hearing was held at Arlington Town Hall, 730 Massachusetts Avenue, Arlington, Mass. on Tuesday, November 27, 2001.
Appearing in behalf of the Petitioners was Attorney Robert J. Annese, and the Petitioners were also in attendance at the Hearing. No one appeared in opposition to Petitioners’ driveway proposal.
The relief sought by Petitioners is to construct a parking space in the front yard of their property which property is shown on a certified plot plan by Fleming & McCarthy, Land Surveyors, dated October 26 of 1997 and a plan identified as “Gravity Stone” retaining wall prepared for the Magaletta property by Celtech Engineering & Associates, Inc., said plan dated July 31 of 2001, with the plan consisting of three separate plan pages depicting the existing conditions, the proposed retaining walls, the proposed curb cut, the wall profile and other pertinent information. All of the aforementioned plans are incorporated by reference into this Decision.
Alan M. McClennen, Secretary Ex Officio, of the Planning Board for the Town of Arlington, submitted a Memorandum to the Board in connection with the relief sought by Petitioners.
FINDINGS OF FACT AND DECISION OF THE BOARD
James J. Magaletta and Michael Magaletta are the owners of a two family residential structure located at 1288-1290 Massachusetts Avenue and they have owned that real estate since October of 1997.
The subject structure consists of a two-family residential structure and the proposal requires a variance in accordance with the provisions of Section 8.07 - Parking in Residential Districts of the Zoning Bylaw for the Town of Arlington.
Petitioners’ lot contains 10,000 square feet and has a front yard setback of 28 feet from Massachusetts Avenue.
The right side yard is 8 plus feet and the left side yard is 5 feet and the rear yard is 25 feet. The structure contains two stories.
Petitioners wish to construct two parking spaces in the front yard of their two family house. The front wall of the house is about ten feet higher than the sidewalk.
There is presently a 3½ foot high wall at the sidewalk level.
Petitioners propose to cut into the hillside to form a parking area 18 feet deep and 18 feet wide with a curving 20 foot wide driveway leading to the parking spaces.
The excavation would require a 9 foot 4 inch high retaining wall at the rear edge of the parking area.
The Zoning Bylaw does not allow parking within the front yard set back and that is the reason for the requested variance.
There is presently no parking available to Petitioners with the result that the occupants of the two family residential structure park on Massachusetts Avenue and those individuals receive overnight parking violations quite frequently.
This Board granted a similar request for relief from a directly abutting owner whose single family residential structure is located at 1286 Massachusetts Avenue, Arlington, Massachusetts, namely, Mrs. Kathleen M. Lestition with that relief being granted on November 6 of 2000 and in addition, this Board also granted similar relief to property owners with real estate located at 1284 Massachusetts Avenue, with that relief being granted during the year 1998.
In the instant case, Petitioners’ plans provide that their retaining wall will be approximately 5 feet away from the abutting real estate at 1286 Massachusetts Avenue and directly adjacent to the lot located to the right of Petitioners’ lot at the property line separating that adjacent lot from Petitioners’ lot.
Motor vehicles entering the parking area will enter on the left side of Petitioners’ lot and will pull into the right portion of the lot and the stairway leading from the parking area to Petitioners’ structure will be located to the far right of their lot.
Any excavation to be done on Petitioners’ lot will at all times be 3 to 4 feet away from the property line separating their property from the real estate at 1286 Massachusetts Avenue.
The depth of the excavation would be approximately 15 feet and both the contractor and the engineer have assured Petitioners that the abutting real estate on either side of their property will not be impacted by way of any undermining of that real estate as a result of excavation and construction procedures on their lot.
There is an existing stone wall located on the right side of Petitioners’ lot which will be modified to a segmental block retaining wall as shown on Petitioners’ plans. The remaining front wall located at sidewalk level consisting of fieldstone shall be finished of and jointed as necessary.
A set of new wooden stairs will be constructed from the front door of Petitioners’ house down to the landing parking area.
The segmental retaining wall will be constructed in a manner similar to the construction of the driveway which was constructed at 1286 Massachusetts Avenue as the engineer in connection with both proposals is Celtech Engineering & Associates, Inc.
At the close of the evidence, the Board voted unanimously to grant Petitioners’ Request for a Variance for the following reasons and upon the following terms and conditions:
It would be impossible for Petitioners to construct a driveway such as to have a legal parking space because of the topography of their lot. Most of the lots within Petitioners’ zoning district do not contain the significant topographical features presented by Petitioners’ lot, including, but not limited to the significant elevation from sidewalk level to the front wall of their structure, mentioned previously.
Petitioners’ real estate is located in an area where the difference in elevation from the Massachusetts Avenue level to the level where the front wall of Petitioners’ house is located is significant. Most of the houses and buildings located on Massachusetts Avenue do not encounter this factual situation and indeed, even the houses located on the opposite side of Massachusetts Avenue from Petitioners’ structure have their front walls located at street level.
Without a variance, Petitioners have no ability to park vehicles at their residential structure resulting in vehicles used in connection with the residential structure being parked on Massachusetts Avenue, thereby creating additional motor vehicle congestion on a main thoroughfare which is already heavily traveled.
In addition, as mentioned previously, the occupants of the structure house are subjected to receipt of parking violations when they do out of necessity park on Massachusetts Avenue since they have no other place to park their vehicles.
Consequently, a literal enforcement of the Zoning Bylaw would involve a substantial hardship to Petitioners both relating to their land and economically.
The requested relief can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning Bylaw as the public good would be served by allowing the occupants of Petitioners real estate to be able to park their motor vehicles on Petitioners’ property without being concerned about incurring numerous parking violations and because vehicle congestion on Massachusetts Avenue will be diminished as a result of the ability on the part of the occupants of Petitioners’ building to park vehicles within Petitioners’ property.
It is a specific condition of this grant of relief that Petitioners plant two (2) four to five inch caliber trees within their property in an area located behind the newly constructed parking area fronting on Massachusetts Avenue.
While the purpose of the Zoning Bylaw is to restrict parking in front yards, the provisions of Chapter 40A clearly provide relief to a Petitioner in the event that the Board makes specific findings of hardship, no detriment to the public good and no derogation from the intent and purpose of the Zoning Bylaw and we so find.
The Board hereby makes a detailed record of all its proceedings relative to this appeal; sets forth the reasons for its decisions and findings; directs that this record be filed in the office of the Redevelopment Board and in the office of the Town Clerk and shall be a public record; and that notice of this decision be made forthwith to each party in interest. Appeals to this decision, if any, shall be made pursuant to Section 17 of the Zoning Act (Massachusetts General Laws, Chapter 40A), and shall be filed within twenty days after the date of filing of such decision in the Office of the Town Clerk.
Joseph Tulimieri
Patrick D. Dignan
Susan M. McShane
Bob Sprague
Webmaster, Arlington Online
| 
