##VIDEO ID:orz5bKHvfYg## [Music] [Music] m [Music] [Music] good afternoon everyone this is the December 19th 2024 meeting of the chadam zoning board of appeals pursuant to Governor Healey's March 29th 2023 signing of the act of 2023 extending certain covid measures adopted during the state of emergency suspending certain provisions of the open meeting law until March 31 2025 this meeting of the chadam zoning board of appeals is being conducted in person and via remote participation every effort will be made to ensure that the public can adequately access the proceedings as provided for in the order a reminder persons who'd like to listen to this meeting while in progress may do so by calling 508 945 4410 car conference ID 676 89754 pound or join the meeting online via Microsoft teams through the link in the posted agenda while this is a live broadcast and simoc cast on chattam TV despite our best efforts we may not be able to provide for real-time access we will post a record of this meeting on the town's website as soon as possible in accordance with Town policy the public can speak to any issue or hearing or business item on the agenda during the meeting when recognized by the chair and there is a five minute limit on those comments and there will be a clock up there that is strictly enforced if everybody could shut off any gadgets cell phones or anything that makes a noise that would be appreciated um the procedural steps are as follows we do a roll call of all board members to authorize this form of a meeting we ask if anybody is participating on the phone to make their identity known um Sarah clar on my right will read the notice as uh advertised you will be able to present your appeal and then anyone in favor of the appeal may speak for up to five minutes I will read the correspondences if there are any then anyone who is not in favor um or would like to ask a question we'll be afforded a time to do that then the applicant can have some rebuttal time um then we ask questions make comments close the public hearing the board deliberates and usually votes and after that um just it should be known that all votes are taken by roll call and at the end of the meeting will close for a via a verbal confirmation and note the time um at this point um so we'll do a roll call of all board members that are here uh we usually have eight eight members and uh a couple are absent tonight but we do have David Nixon uh who is voting Paul simple who will be voting um uh lee Hy who will I think not voting Steve D'Or will be voting and Virginia Fenwick will be voting as will I so let's do a roll call starting with Virginia Fenwick approving of the yes approving of this form of a meeting I approve the this form of the meeting Steve Steve deor approves Lee Hy I approve Paul C simple approves David F Nixon I approve and Randy podes I approve as well okay so the first application uh no the first thing we're going to do is meeting minutes from November 21 2024 if Paul could have a motion and Virginia Fen clerk will second that I think I will move to approve the am minutes as it as published uh I second and approve okay and a roll call vote Virginia I vote Yes Steve dor votes yes Paul Paul votes yes I vote Yes as do I that's unanimous first application is 24-13 Sandy Bliss LLC um and that will be uh 75 Main Street application number 24136 Sandy Bliss LLC care of Michael D Ford Esquire peel boox 485 West Harwich Mass 02671 owner of property located at 75 Main Street also shown on the town of chadam assessor map 16b block 64b lot 68 X2 the applicant seeks to modify special permit number 22-17 granted on January 26 2023 which allowed for the partial demolition installation of a new foundation and construction of additions the applicant now seeks to modify the special permit to allow for an increase in building coverage the approved building coverage was 3,675 5 ft and the constructed building coverage is 3,693 Ft where 2950 Square ft is the maximum allowed the lot is non-conforming in that it contains three dwellings on a site with 26266 s ft of land area in an R20 zoning District a special permit is required under Mass General Law chapter 4A sections 6 and 14 and sections 5B and 8D 2B of the protective bylaw good afternoon if you could just identify El to the record sure uh good afternoon attorney Jeff Ford here on behalf of the applicant along with John Barker from pus Savory to Silva welcome um so um as indicated the applicant seeking a modification from their previously approved special permit that was in January of 2023 um the dwelling at this point has been fully constructed um and a final as built was done and it was at that time that they discovered that they went over on the building coverage by approximately 8 18 square ft um this as the board may recall um was a very historic house it was being preserved I was being there was a small demolition there was a New Foundation going under all of it um and there there was going to be some additions so the New Foundation was poured everything was put in and with like many historic houses it wasn't always straight they ended up finding out that the walls were skewed and it did not fit on the foundation and needed to be squared off uh so John Barker has been working very hard on this and working with historic and and with his office and I don't if it makes sense to the chair perhaps we have him walk through the areas that were changed and and how that came about um I think we're if you're interested it's not that we're not interested but it just might not be necessary sure so so if you don't feel it it's necessary I did submit findings um same as last time around the only change I made obviously was the 18t difference um even with the slight increase the dwelling um is still 74 Square ft less than what it was previously and it certainly um is not more detrimental in our opinion and we think the board can make a finding yeah okay thank you so much and we do have those for the record is there anybody here on Microsoft teams that wishes to speak in favor of this application if so please indicate seeing um I will read the correspondence there is one from the health agent for 75 Main Street and Judith Georgio our health agent tells us on 124 2024 that she reviewed the changes um the the property was approved for a four-bedroom um at the time of the construction it has maintained the proposed and approved floor layout and she has no concerns is there anybody here or Microsoft teams that wishes to speak against this application or has a specific question again seeing none questions from the board um I guess we'll just quickly go through if there are any no questions Steve no questions no questions no questions none any questions no oh nor do I okay Paul I'll move to close the hearing and move into deliberations I second that and say yes okay Steve uh yes all votes yes yes yes do I okay deliberations um Dave Nixon well it's 18 square feet and it's been I think about two months since we've had a contract era and I guess that's pretty good for us huh 18 square F feet and as attorney Ford pointed out it's still less than what it was before we granted the special permit and that makes me I think it's okay yep okay Jenny yeah agree with Mr Nixon and this page I think is very very helpful and very clear the building footprint comparison one that you had that showed the issue with the wall um I also want to say I wasn't on the board at the time but I appreciate the preservation to the historic house so I have no issues and Steve I have no issues it was explained well yeah very good and Lee yeah I agree with my colleagues and Paul it's nice to see The A Team in here instead of Michael uh I did take another look at the property and it looks like a very nice job I do not think it's in any way substantially more detrimental to the neighborhood yeah and nor do I so we'll have a motion I'll move to approve the application as submitted I second and say yes Steve Steve deor approves well all votes yes yes as do I it's unanimous congratulations hey thank you so much for your time thank you and whenever SAR is ready we're going to go straight to 24- 137500 Orleans Road Steven Goldstein um 560 orings Road same address application number 24137 560 Orleans Road LLC car of Steven Goldstein 5 Oak Lane Larchmont New York 10538 owner of property located at 560 Orleans Road also shown on the town of chadam assessor map 13j block 7 lot G20 the applicant proposes to change alter or expand a non-conforming shed on a non-conforming lot via the replace of the shed the existing and proposed shed will be non-conforming and that they are located 26.7 ft from the road where a 40ft setback is required the law is non-conforming and that it contains 26566 ft where 40,000 ft is required in the R40 zoning District a special permit is required under Mass General Law chapter 48 section 6 and section 5B of the protective bylaw Excuse excuse me stepen goldsteen I presume welcome thank you uh um I think this is pretty straightforward we've got a a pre-existing shed 8 by8 it's not in great shape as you could see from the pictures and from site visit so we're proposing to Simply replace it okay any you want to go through any of the criteria no you don't have to okay so is that your presentation that's it all right thank you is there anybody here or Microsoft teams that wishes to speak in favor of this shed let us know seeing none I will read the one correspondence for 560 orans Road by our health agent also on 124 2024 Judith Georgio tells us that she got the application and pack it um and oh and she has no concerns about the shed replacement at this location is there anybody here in Microsoft teams that wishes speak against this application or has a specific question see none questions from the board are there any there might be yeah no anybody no I have no questions okay I'll move to close the hearing and move into deliberations uh Virginia fck seconds and says yes Steve Steve says yes yes yes as do I okay have a motion Paul I'll move to uh oh wait a minute no now we're in deliberation sorry deliberation Steve Nixon well I went and looked at the shed and as the gentleman at the microphone said it's not in great shape and uh in fact it's less than not in great shape I guess I would say and from what I saw he's just going to replace it simple thing makes sense so in no way is that detrimental to the neighborhood amazing that he even has to come here isn't it well it's it's a shame that he does but that is correct yeah okay Jenny yeah I agree with Mr Nixon I wanted to also add that um I thought your presentation the pictures and the explanation very thorough I mean we have existing previous surveys street views aerial views so it was very clear and that is very helpful to us so thank you all right Steve your thoughts on I think it's a good project that where that shed is now is completely hidden from from view from multiple sides so I have no issues with that and Lee thank meets our criteria and is in no way detrimental to the neighborhood okay Paul I agree with Jenny that the uh the presentation is is fantastic nice and clear leaves no issues you go past the property you can't see the shed I mean it certainly not substantially more detrimental okay very good I guess we'll take a motion I'll move to approve the application as submitted and Jenny Jennie seconds that and votes yes Steve deor approves all votes yes yes as D Wes unanimous congratulations thank you thank you for coming okay now we're going to slow things down next application 24-1 129 Noble House hotels via care of Sarah Tano Flores 359 Main Street whenever Sarah's ready uh and Miss chair uh you would like me to read all three of their okay yeah uh application number 24-1 129 Noble House hotels care of Sarah Toronto Flores Esquire 155 seport Boulevard Boston Mass 02210 operator of property located at 359 Main Street also shown on the shown on the talent of chadam assessors map 16c block 83 lot 67 the applicants are appealing The Building Commissioner determination that variances are required for the increase in rentable rooms as well as the increase in building height as AG grieved parties under Mass General Law chapter 48 Section 8 and Section 8 d2a of the protective bylaw under application number 24130 the applicant seeks dimensional variances from the buildable Upland area requirements for six additional rental units and the increase in Building height above the 30 foot maximum allowed and dimensional dimensional variances are required in M General Law chapter 48 section 10 and Section 8 d2c of the protective bylaw under application number 24131 the applicant proposed to change alter or expand a non-conforming hotel/restaurant on a non-conforming lot via the construction of additions the existing structure is non-conforming in that it is 21.9 ft from the road where a 50ft setback is required the structure contains 18 rental rooms plus manager Quarters on a lot containing 37,2 181 ft of buildable Upland where 64,000 ft is required the proposed six right rooms require an additional 18,000 ft of buildable Upland area the existing lot coverage is 20,24 squ Ft 48.3 2% and the proposed loot coverage is 20348 Ft 48.64 where 90% is the maximum allowed the lot contains 41,8 31 Square ft in a gb1 and R20 zoning District the special permit is required under Mass General Law chapter 48 section 6 and section 5 be of protective bylaw welcome good afternoon thank you madam chair uh Sarah Toronto farees on behalf of the applicant I did uh create a PowerPoint presentation that I think Sarah has uh queued up for me that I'm trying to distill and and perhaps give a a general overview of what I'm sure is a very dense narrative um as as that agenda item probably also indicates I want to try and make it as simple and straight straightforward as possible um so next slide first our team um I'm uh here as a project attorney Bill Riley is Al also uh in the audience today and uh has has substantial history with this project uh as well as the initial um permitting requests um Alex Eder from my office um also assisted with the zoning application and materials he's he's on the zoom um the project architect Jim Owen um is also here today and he prepared the six pages of your uh floor plans and building elevations which you should have in your packet uh Paul sweetzer was the site uh engineer and we have submitted both proposed and existing condition site plans uh with your package and David Crosby is the project uh contractor from Ocean Edge Construction I believe he may be on the line to answer questions once we get to that point next slide next sorry the chadam Inn um has been around for quite some time almost two centuries it's the oldest Inn on Cape Cod um we believe the structure was constructed in 1830 and it's been operating as an in since 1870 um the Inn itself obviously predates zoning it also predates a lot of uh the neighborhood that has grown up around uh the edge in the residential side uh which is all in recent years so this is uh uh an old pre-existing non-conforming uh in use on this property um two L's were added sometime between 1953 and the early 80s um and then in 2017 uh a a small two-story addition was added uh to the kitchen in the rear of to add a kitchen and restaurant to the rear of the building um this was allowed by this board via special permit in 2017 and I do talk about that later next slide um the site contains uh 37 2,281 ft of Upland it's actually larger than that 40 plus 40 plus th000 Square fet in total uh 37 of Upland the Conservancy District runs through it the top of the Coastal Bank is defined by the flood plane which comes in off a wetland that is adjacent um to the property so uh it is uh not under size there's only 5,000 square ft uh required in this zoning District however it is pre-existing non-conforming use uh for an inuse because the inuse requires uh in in section seven of your bylaw 3,000 square ft of Upland per room so the existing uh 18 units would require 54,000 square feet and we have 37,000 square fet of Upland so we are pre-existing non-conforming under that particular provision of your bylaw for inuse um the existing by uh Building height is also pre-existing non-conforming at just over 30 ft it's 3193 Square ft uh where 30 ft is allowed um and and in the upper right hand corner of our site plan you'll see the calculation for that Building height next slide so our proposal that's in front of you is kind of straightforward given the amount of materials that you've had to review um the owner is simply seeking to add six new guest rooms to the Inn uh not uh those guest rooms will not result in an increase in the footprint at all they are constructed an existing space on the third story of the existing structure and will be accommodated through Dormers so the reconfiguration of Dormers the total footprint expansion of 134 Square fet very minimal but it's related to the construction of An Elevator Shaft uh that will assist um handicapped and elderly uh and and uh guests to reach that that thir floor those guest rooms um so adding those six rooms is going to extend extend the pre-existing non-conforming use in use under Section seven of your bylaw um the Dormers themselves are going to be below the roof line so we're not the Dormers are not extending the height at all however the Elevator Shaft um requires uh 24 in of Dead Space dead air space above the equipment as a manufacturer requirement so that 24 in is going to rise above the the existing uh roof line um there's an argument that your your definition of Building height excludes ornamental um structures like kupas which this what this is essentially is but it it does h house that electrical equipment for the elevator um and uh the building inspector felt we needed relief uh for that um so uh at at best it is Exempted this additional height as as an ornamental uh Copa at worst um zoning relief is needed because we're going 24 in just again in that area of the Elevator Shaft next slide I included this chart this is just a duplication of what's in your um narrative and and I think uh I was hoping to it would give the real big picture here to show that we're really uh only making minimal changes um overall to the property both uh the property itself uh the building itself and the youth um the uh First Column is what is required or allowed in the districts now there are two of them this is uh transected by two districts um and so we've tried to clarify in each what is required uh the middle column is what is existing and on the right hand side uh is the summary of uh whether those uh requirements are going to be changed at all by The Proposal um and you can see that obviously the lot configuration is no change we're not impacting any setbacks um they will remain conforming um our lot coverage is increasing by only 32% uh but we're still well under the 90% coverage allowed so that will remain conforming um the um uh building coverage uh again is going to um increase only by that 134 square feet so we will remain conforming um the no change in the green area within the gb1 district um our height again uh pre-existing non-conforming because it's already uh just about 1.9 feet over the 30 foot requirement and we are requesting 24 additional inches um so extending that pre-existing non-conforming condition that's the first extension um parking will remain conforming fully conforming uh and then the buildable Upland per room is the other pre-existing non-conformity that we're seeking to extend um just for the six units so those are the two uh existing non-conformities that we're seeking to extend under our requests of zoning relief application here today next slide so the agenda item uh was was I think uh very complicated and I I hope I can simplify it for you back in uh even before September we we um as Bill Riley was working on this project and it was for the hbdc um it came to our attention uh that perhaps the town was of the opinion that a variance instead of a special permit was required so to get that question out of the way before we proceed too much into additional um permitting which as you know can can take time and money this threshold issue of whether this can proceed by special permit as we believe or whether it needs a variance uh needs to be determined and so we we filed a request for zoning determination um with our Building Commissioner Mr Briggs back in September um and it was my opinion and and it's sort of reflected in the narrative that I filed that this squarely Falls within the special permit relief provisions of your bylaw and that we don't need a variance um by email a week later Sarah um informed me that Town Council was of the opinion uh that variances and not the special permit relief that I had indicated were required for the the increases to both of the two non-conformities that I described so both the height and the number of in rooms next slide so pursuant to sort of the statutory process we have to take an appeal of that determination within 30 days so that's the first item on the agenda and with the chair's permission i' take that first um so that it can be decided whether the relief we're seeking is special permit or variance um depending on what you decide and again we're requesting um that you overturn the building determin the zoning determination and confirm that it is a special permit then we will seek the special permit relief that application is also included in the event you deny the appeal then we have requested in the alternative of variant uh we don't get to that uh unless and until you guys deny the appeal so that's why there are three separate applications and if appeal a special permit and an alternative request for a variance in the case you deny the appeal next slide so um this is the existing condition plan that you have this should be very familiar to you uh it was submitted full size with your packets um i' I've put it up here to sort of toggle between existing conditions and the next side which is the proposed conditions to show how minimal um Sarah if you just want to go through you can just see the the two um so here is one area and here is the other area uh the combined square footage of these two footprint expansions is 134 square feet only um otherwise everything is remaining the same on the site um we'll continue to have uh in excess of parking we have 27 spaces even with the increase we'll still have four n none of the site conditions are being changed save for that1 34 squ ft next slide so where the changes are coming are on the interior of the building uh next slide this is the floor plan for the third floor again this is currently dead empty space um once the Dormers are constructed or reconfigured I should say um the six bedrooms are going to fit here so it's uh guest room 21 22 23 20 23 24 and 25 um and you can see they're all contained within the existing uh footprint it is the Elevator Shaft that is uh the addition to the building envelope everything else is um within the existing space and the next two slides show the um Dormers and what what is how it's going to look different so this I thought was very helpful obviously there were six pages I don't want to take up your time with them all but this slide um on the B bottom shows the existing um building and on the top um Fades out everything that's remaining the same so the only thing changing is this Dormer here is being reconfigured and and um the Dormer extends out to here so that's that's where the bulk of the room um and building envelope change comes in the form of these uh Dormers you'll note that they are below the uh existing roof line so again the Dormers itself self are lower and won't increase the height the only height comes with this uh tiny um calling it a Copa but it's really uh the top 24 in of the Elevator Shaft and the next slide shows it without any of the fading so this is going to be the uh final uh proposed elevation once it's all done um and you can see the the minor nature of these changes in this proposal next next slide so I I don't I uh Sarah very kindly forwarded me uh Town council's opinion earlier this week um and it it it it's not exactly uh clear to me whether there's agreement on this point but I didn't see any disagreement with these two points so I wanted to start with them um my interpretation and and again I don't think that there's any disagreement is that this project wouldn't be allowed under the state act if if we just had the state act and there was no additional more uh language in your local bylaw we wouldn't be here under a a special permit because the state act limits um the extension or alteration or changes to commerci non single and two family residential dwellings so commercial uses such as ins and and stores and and the like it limits those types of changes um by special permit only to situations where the change you're you're proposing itself complies with zoning so as a general enal rule is what 4A says if you're if you're not compliant with zoning you can't do this by special permit unless you're a single or two family dwelling and that's the Rockwood versus Snow case um however and and there's even more cases that I'm citing here the law is equally clear that towns can be more permissive and um extensive case law supports the conclusion that even even if you intensify not just change not just alter but if you extend expand intensify that non-conformity you can do it by special permit if the local bylaw lets you do that and so that's the rub today are does your bylaw allow this kind of change by special permit next slide so although I know that uh he had a conversation with Sarah back in September and that's why we're here today but he did write an email dated November 22nd which I think you all have and I don't want to speak for him so um uh I I tried to call from um his his opinion um he cites Rockwoods versus snow and Harrison versus chadam zoning board of appeals which is obviously specific to this town uh for the proposition that the bylaw section 5B that I say applies here doesn't allow for changes of this nature he doesn't think it's the permissive type of bylaw that would let you do this and and so he's opined that it's a variance um with all due respect uh to Jay and I've known him for years I don't don't think um he is properly construing number one the case law but also uh the plain language of your bylaw and that could be because he's not as familiar with that language and he also doesn't know um the long history that I'll go through uh in later slides where this board so you don't kind of have to listen to me you don't necessarily have to listen to Jay but we've we've provided examples where this board has allowed the expansion and the intensification of pre-existing non-conformities in commercial structures under Section 5B so there's there's this long tradition and I think that's where Bill was coming from and that's why we're we're here appealing that decision next slide so where we disagree again comes down to that language of section 5B and um my interpretation is that it is a more permissive bylaw and I'm going to dissect it um Town Council in his opinion appears to be saying that chadam current B law is more akin to the 1991 version of the Harwich zoning bylaw that the Supreme Judicial Court analyzed in its 1990 Rockwood decision I will say that the 1991 harwitch zoning bylaw has since been amended and is now more permissive but back in 1991 um the SJC the way that it was worded determined it wasn't a more permissive bylaw so what the Rockwood sorry the snow wi wanted to do in that case back in 1991 it couldn't do because the SJC detered determined it the harw zoning bylaw was not one of those more permissive bylaws next slide so when you look at what the 1991 version of the hartch bylaw said that was examined by The Rockwood Court it is pre-existing non-conforming structures or uses may be changed extended or altered by special permit provided no such change extension or alteration would be permitted unless there's a finding that that change would not be substantially bormental to the neighborhood that is verbate take taken from chapter 4da that is the zoning act um there's no no difference between that language in Harwich and what was said in the zoning Act and the significance of the Rockwood decision is that because it mirrored the act the SJC found you can't do it because that language means that the extensions or changes themselves must comply with the bylaw so you you can't extend or you can't expand under this bylaw it's mirroring chapter 4 and that does not allow those types of expansions by special permit so for that reason the Rockwood decision said the Harwich bylaw is not one of those more permissive bylaws and you can't uh expand or intensify the non-conformities of a commercial use or structure by special permit you need a variant I don't agree with the way Town Council has um quoted that statement I think in fact my interpretation is even more conservative um Rockwood is saying no matter what it is uh if if if if it doesn't conform to zoning you're not allowed to do it he had a slightly different interpretation that I note at the bottom but I don't think it's really relevant for our our purposes um the can be no question that we wouldn't comply under the zoning act in contrast to the Harwich zoning bylaw however your bylaw does not exactly mimic the state act your bylaw has an extensive uh number of Provisions um it doesn't just use those uh few sentences from section six of the zoning act and instead it speaks directly to being able to enlarge and increase the nature of the non-conformities by special permit this is section 5B this is the provision that I'm standing before you to say is more permissive and that we should be allowed to do it so I've quoted it here it begins on this page first of all it's entitled enlargement extension or change of non-conforming lots building or uses so even the very it's contemplating that you can make it better you bigger you can expand it you can uh increase that intensity um the first first paragraph applies to single or two family dwellings so it's not applicable to us but it says as provided in 4A section 6 so as provided in the zoniac they're going to mirror the zoniac as it applies to single or two family dwellings but then it goes on in the next paragraph thank you Sarah to say other pre-existing non-conforming structures are use that's us maybe extended altered or Changed by special permit provided you make the substantially more detrimental finding and provided you consider each of the following considerations what I found most important in addition to the word enlarge right in the title is number three it requires you to view review the extent of the proposed increase that's that's the verb in the um or that's the descriptor in the byw itself increase in the non-con forming nature of the structure or use so the very provision in your bylaw contemplates that you can come before it on a special permit and increase that non-conformity uh and and provided this board makes the substantially not more detrimental finding we can proceed by special permit we do not need a variance so that's why I think this bylaw is so very much different than harwitch why Rockwood doesn't apply and next slide also why the Harrison decision that Town Council relies upon doesn't govern a different outcome here so Town Town Council I I feel has mistakenly distilled the rock with holding um and has also included that chadam bylaw is like the 1991 Harwich bylaw it's not more permissive um I think I've I've explained to you why neither of those things in in my view are true um I think a simple comparison of the two bylaws shows their vastly different and that the chat and bylaw expressly anticipates that we could increase increase and intensify non-conformity by special permit however he relies on Harrison versus the chadam Board of Appeals to say hey look this has already come before um at least the land Court this is a land Court decision in 2012 and that year is going to be important um but your your land court has already determined he says that cadams is not more a more permissive bylaw I think that's an overstatement of of Harrison the Harrison case next slide involved a um pre-existing non-conforming Auto Repair sales building and what they proposed to do was tear it down completely rebuild it as a convenience store in a new building on a new location on the lot and creating new non-conformities while doing it and the land Court said hey you you have this language in the bylaw but it doesn't it says you can alter change or extend it doesn't say you can completely reconstruct the building and it certainly doesn't say that you can create new non-conformities in other respects as well so if if if in chadam someone's proposal came to reconstruct entirely the structure um or uh created new non-conformities those two things this this holding and Harrison is saying you can't do that by special permit that's not what we're doing though right we're simply seeking to extend pre-existing non-conformities and I think that bits squarely within the bylaw and that's why we can do it next slide so I think I you can uh I I summarized it without needing to go so the most compelling thing again I don't think that you need to um you know Believe Me versus your town attorney I think the most compelling evidence here is that this board themselves has always used section 5B to allow and authorize extensions changes or alterations like the one we're doing um by special permit uh and not variant so we went we found these pretty quickly we went all the way back to '93 this these were I'm sure there are many many many more um we found these most compelling too because they they concern ins kind of the same use um but the non-conformities differed in in um various respects they all though the ones the examples I'm giving they all involved in either um altering that specific non-conformity and increasing it uh or extending it doing exactly what Town Council says that you can't do um these were all Allowed by special permits so in 1993 you had a special permit granted for the Wayside in um to add an addition that extended extended the pre-existing uh height of the not uh existing buildings height non-conformity um in 1994 again with the Wayside in um these are all by the way section 5B special permits this is the language again that I'm specifically um saying authorizes our use by special permit here they expanded the rooms exact same thing we did from 19 to 32 rooms in a district uh that wouldn't have allowed that increase in uh density so they were intensifying the exact non-conformity and they did it by special permit in 1999 um here again they enclosed an outdoor seating area within the required 5- foot setback that was done by special permit at the Wayside in um in 2007 the queen Anin was permitted uh to expand their existing pre-existing non-conforming structure and Hotel restaurant use uh to another non-conforming use within setbacks and exceeding height limitations and it was allowed by special next slide here are four more uh 07 uh chattam bars in allowed to alter and expand a pre-existing non-conforming commercial use by enlarging a structure 5T uh from the property line with it where 15 is required setback um in 2010 they were allowed to the Queen Anon was allowed to construct a carport within the setback 2012 now remember the Harrison decision in 2012 so even after Harrison this was still applied uh as a special section 5B special permit chattan bar in was allowed to expand the pre-existing structure by constructing the pergola and deck and board block within the setback to the coastal Conservancy District uh 2012 again the Wayside in and I did check both of those were dated after the decision um granted to expand the pre-existing non-conforming commercial structure and use via enclosing a deck 3.1 ft from the sideline where 5T is required next slide and these last three uh in 2017 our our own property Locust here we were allowed to construct a twostory Edition off the back it added a kitchen restaurant seating it expanded and reconfigured manager quarters and office space um thereby expanding the pre-existing non-conforming inuse um and it was done uh via special permit section 5B and it and and it specifically referenced that there was insufficient land Upland to accommodate the 18 uh rooms and man maners quarters um for this use um and the last two uh in 2018 and 2020 chat and bars in uh expanded uh wanted to expand the commercial use um across the entire uh property uh which including over the less restrictive Zone uh to allow for professional office space um and I should say a a five-bedroom apartment was also added there uh that was done via special permit section 5B um and finally uh the Wayside in again was uh granted to expand its pre-existing non-conforming building coverage uh for hotel and use uh where existing lock coverage was 28.7 feet and they wanted 29.9 25% is the maximum allowed in their zoning District so that was an intensification of the pre-existing non-conformity all of these were allowed by the section 5 special permit um so we feel strongly and and and certainly um the owners um who have recently acquired the property uh feel that they expected uh that that given the long tradition in chadam uh that section 5B would be available to them for this expansion uh that that not only does the case law and the express language of the bylaw itself um but this history that we've outlined here uh confirms that chadam has always allowed this uh to occur by um special permit pursuant to section 5B and particularly where not creating new non-conformities we're not um proposing any reconstruction uh we are seeking only to bump out existing space uh on an existing third floor with Dormers to accommodate six rooms um again the footprints only be expanding 134 square feet and I can get into all of the special permit criteria um if we get that far but I think I'll pause right there um so the board can consider our appeal and and um ask if you'd like me to hold off on going through the special permit criteria or if you'd like to um discuss the appeal first we're just discussing whether or not you should go through the special permit and just lay it all out okay or not um I'm happy to do either um I we we did as part of the application if we Prevail um file the special permit application as well it it's not going to hurt to have you do it um we might have some comments sure sure so please and and I think it does also plus you gave us the findings right and it it helps to yeah um review again um and I think that slide uh number seven on page seven um is helpful because I think it gives it's that chart hit that one um you know really defines and that you'll find that chart in my narrative too if you can't see it up on the board um that how minimal the changes overall are going to be and that we're just looking um for the two um extensions of the non-conformities so going through your special permit criteria uh first you have to ascertain if the site is adequately sized to support the proposal um again this this property is well over the minimum 5,000 square fet required um there's over 41,000 square feet in total 37,000 of which is Upland um so the building cover increase here is only 32% we're not changing any of the lot coverage or lot surface with this proposal um increasing it by0 32% is still well under uh you know brings us to some 40% coverage where 90 is required uh or and allowed so I think we uh can demonstrate that the um site is adequately sized I should also um reiterate that parking here remains more than adequate to accommodate the room count um we'll still have in excess of uh spaces per room 27 spaces to 24 rooms um these building changes we feel are compatible to the overall character um of of the neighborhood I think you can see how how minimal uh the Dormers look they're below the roof line they're obviously very aesthetically the New England character uh nothing um that puts them in opposition to the uh character of all the surrounding homes including the residences that are further down the way there these these architectural forms and breaking up the massing is all very very familiar to us here on Cape Cod um and again the the Dormers themselves Are No taller um than the existing structure the only um height above the existing ridgel line is going to be limited to that tiny Copa that is housing the um equipment and it is empty space 24 in above that existing Ed uh Ridge line uh we feel that the extent of the increase of the non-conformity this is the important one that I think makes clear to uh everyone reading the bylaw that this should be allowed by special permit uh asks you to look at the nature and extent of the increase here again that chart on page seven I think demonstrates this is really a modest increase um it's six rooms that uh do not require the building uh to change substantially um it's going to sit entirely within existing floor space with with the bumped out Dormer um all all rooms will be below that existing Ridge line uh and and only the Elevator Shaft of is is extending Above This is a 32% building coverage change no lot lot coverage change everything is with the only two non-conformities are that small building height and the um increase due to the lack of Upland of the room count uh we believe that the site is also suitable again we're as far back from that L well outside uh of the Coastal Bank where this uh building is situated and even the small 134 foot uh addition uh will not have any negative impacts to that Coastal Bank um uh all existing drainage uh will remain the same uh is more than adequate to uh accommodate these small changes uh roof runoff will be contained um again we feel that this uh project um will will uh have no impact on the suitability of the site uh for its already existing use um for special permit findings number five and 11 where they ask us to look at the visual impact to the neighborhood I just go back to the fact that uh you know the Dormers already exist they're one of them is being taken away and it uh that that that uh level is being reconfigured to a new shed type Dormer along uh the the EXT ENT of that section of the building the these Dormers are going to sit the roof line of the Dormers sit below the ridge line of the entire building uh all the windows match the existing architecture the uh hbdc has approved this project um uh the building we noted in our narrative is already partially screened and because we're not doing any site work those trees are going to remain and continue to screen the building uh including the the Dormers we're proposing um and the elevator that is proposed in the RO rear of the building kind of tucked in between the two L's of the building and so not only can you only see the 24 in um from the front if you're standing back far enough uh but even from the the sides um because of where it's tucked in you're not going to really uh be able to see it from any of the surrounding properties so we feel uh numbers five and 11 are also met um again uh for the uh criteria that asks us to analyze or asks you to analyze whether the existing in use is compatible with the neighboring use I would say um hearken back to the fact that this this Inn was here first all of the uses um were uh developed after the in was here so all the folks who have bought um properties and and built their homes um have come later uh the uh in use has been here since at least 1870 if not all the way back to 1830 when the structure was first built um it is at the end of the gb1 district and ab buts this residential district uh but again that all predates zoning are our use predates zoning and this came much later um and we notice uh we also note in our narrative that there are several um mixed use um businesses including at 400 Main um and further as you're going towards uh the center of Main Street chadam um that are clearly uh compatible with an Inu um we also note and I think Jeff and Kayla who are the current operators of the Inn wrote a letter today which you should have or earlier this week that you should have in your packet the talk about how these six rooms are really important to the town um where uh over the past few years in particular in rooms hotel rooms have gone by the wayside and been replaced with residential construction there isn't a lot of hotel rooms um that are available and so this is sort of much need needed in town There's a demand for it um and of course it does bring in the additional Revenue um uh to the town through those additional rooms um so we feel it's not only compatible it does further the interests of the Town um the last few I think I can go through quickly all the uh for numbers seven and 10 existing water sewer drainage utilities all will remain the same uh They Are all uh sufficient and can accommodate I noticed that the Board of Health um did note we have to come to them for the sewer connection approval uh which of course we will do and and request that you condition any approval here on getting that approval um otherwise all site conditions um and and drainage um and the like will and the utilities on site can remain the same um and finally uh no discernable traffic impacts noise or litter uh this is a relatively modest expansion of six rooms to the 18 that already exist we still have sufficient parking to accommodate these rooms and the people the guests who will be staying there on site um so we don't in anticipate any uh negative impacts for those last uh three criteria as well um and the 12th one I left off because it's not applicable um So based on all of that we do feel that the substantially more detrimental to the neighborhood finding is not warranted here we feel that it won't be substantially more detrimental um and that this board could uh Grant a special permit under Section 5B without uh derogating from the intent of the bylaw and in fact um given what we're proposing here will further a lot of the interest within the bylaw so we respectfully request that you approve our uh appeal uh overturn the determination and grant us a special permit thank you if you have the energy could you do the the variance now and then we'll have everything on the table okay I don't like the variance cuz I don't think we need it but I will we'll do it um so uh the variance criteria is exactly the same as the state um uh so we again in our narrative has out outlined why we feel that literal enforcement um of of the bylaw again the 24inch height limitation uh and the um Upland uh requirement for the encount uh would cause us substantial hardship here um I think I indicated we uh just had a new buyer of this property uh with a very uh Hefty sales price that was reliant on uh this uh board's pasted um uh practice of granting special permits to ins like ours who want to extend or expand the existing non-conformity um uh and and they expected although understood that they needed a special permit certainly didn't understand that a variance would be needed um we feel that uh again the height um if not allowed it it is only um for the Elevator Shaft and thus would cause a hardship because uh handicapped folk and elderly who are juggling their suitcases kids with children wouldn't be able uh to get up to the new rooms um we feel that the need for uh this variance is caused by the Topography of the site and again um it's the Upland provision uh that is um causing the need for the variance if you determine a variance is needed um 3,000 square F feet of upend is needed per room increase um and uh where this property AB buts the coastal Conservancy district and it's the flood plane in the back uh that limits the amount of square footage that we have available here um we feel that it is the topography that's causing the need for the variants it is unique uh to the neighborhood I included a color photograph of not phot uh color copy of the gis map to show uh that in the gb1 uh zoning District we're where're we but uh a wetland um and and thus the coastal Conservancy District in a manner that doesn't affect the other uh properties in in the district to the extent that it does ours and and again is the trigger for the variance because we don't have sufficient Upland um and finally the no substantial detriment uh provision of the the variance criteria I think is the same um uh arguments I just made for the special permit um particularly in light of the fact that the Inn has been here for over 150 years it was here first so to speak um the bylaw and and and most recently this in inuse uh provision is is even more recent um uh so this is a truly pre-existing non-conforming uh property uh and yet this expansion that we're proposing is very very modest and we feel can be done without substantial detriment to the neighborhood for all the reasons I just explained for the special permit um and so I think with that I'll stop no no thank you so much um is there anybody here on Microsoft teams that would like to speak in favor of this uh these applications any of the three 20 129 130 and 131 please uh let us know if you want to speak in favor seeing none I will read the correspond es for 129 yes so we have three different sets of correspondents because it's three different applications um some crossover so we'll start with the appeal then go on to the variance then finally the special permit we'll try to keep taking everything in order the best we can okay um okay so 24-1 129 which is the appeal of the Building Commissioner um that there's two letters December 15 2024 this is written by the president owner and um he tells us that as owners of the chattam in they'd like to present some background of the inn and the project for which we are requesting a special permit chattam Min is the oldest Inn on cape card recognizing the significance of this and having love cape card and chatam our entire lives we purchased the in 10 years ago while we knew that the property needed significant work at the time we wanted to save it for our future Generations since 2015 we have invested millions of dollars into improving the property and adding a worldclass restaurant our efforts have been well received with the in and restaurant by association chadam itself enjoying significant National and international notoriety in the past few years chattam Min has received countless accolades including the only relay in Chateau Hotel on Cape Cod and one of only 47 in the United States the first Forbes five-star property in chadam only only one of 11 Boutique five-star hotels in the United States top 50 restaurants in the United States condo Nash top 500 hotels in the world and number three luxury hotel in the United States we have sponsored and are supported every chattam Town Event over the past 10 years we have also brought in new events including the fundraiser for Michael J fox Foundation which featured participation by most of the cast of Back the future as well as two of Doran um two of the Doran from the film we also founded such events as Christmas with the Grinch and Christmas with Buddy the elf and participated in Taste of chadam October Fest chattam Christmas by the Sea and first night we won the annual pumpkins in the park contest three times and supported sharks in the park chadam Min was also the presenting sponsor of the chattam Chamber of Commerce golf tournament under our management since 2015 the in has generated more than $5 million in additional state and local taxes additionally we have increased from two full-time year round employees to 25 full-time yearr round employees our restaurants focus on fresh and seasonal and sustainable Cuisine um this since this is a little bit longer than our rules permit I'm going to sort of you know give you the highlights they talk about um how good their food is and how tourism has um has has been um better because of this Inn um and let's see chadam has been so famous being converted to single family homes and condos um if there are a few remaining small ins and uh bnbs follow this unfortunate Trend the only option for visitors would be to to stay in chadam would be enormous resort with four figure nightly room rate this will forever change tourism as well as the character and charm of chadam um so they they want to keep the bed and breakfast as as an alternative we have worked hard to continue the two centuries old tradition of the small Inn and um it's let's see these six rooms that we would like to put in will also help replace some of the scores of rooms in chadam that have been lost due to numerous small LS and B bnbs that have been forced to CL over the past few years we work closely with hbdc during the process they they and they've endorsed the design the chat and BW clearly states and then they they go on to make the same um argument that Council has made about why this should be a special permit um and however inexplicably and despite the clear and unequivocal language of the bylaws apparent chadam New Town attorney has somewhat misread the bylaws and erroneously stated that a variance is required for the project they say that this is incorrect and that the clear language of the bylaw basically Saves the Day for them over the past 10 years they've invested millions of dollars into the inn and have supported the town in every way and then they request the relief that they are seeking now Jay talaman Esquire is our town attorney now um and he tells us on let's see when we got this November November 20 yeah November 22nd um he basically tells us what council's already explained that in his view um for structures other than single and two family structures um The Rockwood case can be still distilled into the following principles for pre-existing non-conforming structures a change that is not related and does not intensify the non-conformities M merely requires a special permit for pre pre-existing non-conforming structures a change that intensifies these non-conformities will require a variance and that's basically what he tells us um let's see now okay and so now I'm going to read the internal agency's response to 24-13 and one letter against so 124 2025 our our health agent tells us that the Inn is currently connected to town sewer any additional flow as proposed will require approval by the Water and Sewer commissioner um this includes room flow um at 110 GPD per room and restaurant seating inside and out at 35 GPD per seat the health division will require details for seating and any kitchen layout changes for review additionally areas for Waste managment must be maintained in Easy accessable accessible locations then we have a note from um the historic business district and as Council has said on July 3rd they approved uh this project 5 um let's see then we have a note in opposition from Keith and Linda brookhouser and they live at for Homestead Lane East Cham mass and they write to tell us they oppose the variance request submitted by Noble House hotels concerning increasing number of rooms and Building height as a resident of full Homestead Lane I believe this proposal would be would significantly alter the character and integrity of our peaceful and historic neighborhood chadam has long been valued for its quaint charm commitment to maintaining the traditional atmosphere that makes our to Unique approving this variant would set a presedent for future development they may undermine these cherish qualities allowing exceptions to be established um to to establish zoning regulations would encourage further proposals that conflict with the town's values and longterm planning objectives specifically I am concerned that this proposal will one change the architectural landscape and aesthetic Harmony of the neighborhood two introduce a precedent for similar variances leading to potential overdevelopment three negatively impact the Tranquil residential nature of our community four set a precedent causing other residential neighbors locally and throughout the town to seek variances increasing their building Heights above the allowed 30 ft I respectfully asked that the zoning board will carefully consider the broader implications of this decision uh on the neighborhood and as as the town as the town as a whole upholding zoney regulations is essential to preserving the CH and appeal of chadam for current residents and future Generations thank you for your time and prioritizing the best interest of the community in in your deliberations we read this one yeah to mention that Yep this is from the owner again that one I already read and that's the extent of the variance and then for 130 we have also from the owner in favor hbdc which we've already read Health which we've already read and then we have one from the planning board the planning board has not received an application for this property two date and that was on Monday 12:16 2024 and that would be the end of the um correspondences now if there's anybody here are on Microsoft teams that wishes to speak against these applications please make it known I just want to point out I don't see anybody at this point on Microsoft teams there is a gentleman in the audience who's making his way to the mic and he knows that he's going to wait till he gets there to talk hi I'm Bob leer 296 Main Street um I'm welcome a lawyer that has dealt with some of these things before I just want to comment on Sarah's wonderful presentation although we've had our disagreements in the past but um I'd like to speak to the variance um first from some experience I think you're you would ignore Town council's opinion at your peril uh because he's he's your lawyer not Miss Toronto Flores and secondly in terms of expansion of the pre-existing non-conformities I from my V vantage point of the historical commission find that that Dormer on the street is certainly overly intrusive the elevator Tower is just beyond the pale it's that elevator is not required and I will add that I am chair of the commission on disabilities for the town of chadam I don't think it's required for that Vantage Point either as long as there are adequate accessible rooms on the first floor so it's I would say that taking this as a variance would be the appropriate thing to do and denying it also the appropriate thing to do thanks thank you is there anybody here are on Microsoft teams that wishes to speak against this application or these applications or has a specific question seeing none okay so we're going to go to questions oh did you want a chance to rebut anything Council um no I don't think so I I'll wait for your questions yeah that'll be great all right questions from the board we going to start with Paul me oh microphone let me just see if I can get some factually some things clear is uh is there an elevator in the building now no okay and uh can you do this project in terms of expansion without an elevator I'm looking to bill because he was involved in the um planning stage you can just state your name even though we Bill Riley on behalf of noble house um although Bob might be right if you have a certain percentage of accessible rooms uh you know you don't need to provide an elevator in our instance we really don't have any accessible rooms every room in the place has to be reached by going up steps the reason why they don't have accessible rooms is that um the Ada American Disabilities Act didn't come in until the 1980s all the existing rooms have been been created before that time so because we because we want to spend substantial amount of money modifying the structure the Ada now requires us to make rooms accessible and so there are several ways to do that uh one way would be to build ramps that are consistent with the ADA requirements which if you think the tower is ugly you know the ramps it's what the slope is 1 in for every foot so the ramp to service the rear of this building would be about 75 ft long it would have to wind back and forth to get people up to just the first floor so the purpose of the elevator is to make every single room accessible and I can tell you somebody who has worked with adaptive athletes in skiing accessibility in a matter like this is absolutely crucial to people with disabilities enjoying all the amenities that the town has to offer and so theoretically they could do ramps but that would be more intrusive of covering the ground and significantly less attractive uh can you uh install an elevator that just doesn't go to these top floor rooms so that you don't have to have it as high theoretically if that was a condition we would certainly accept it well it would eliminate uh would it not your uh your non-conformities your your expansion of non-conformities presumably yes because the um it's only 24 Ines above and that is dead space that Dead Space would have to come down and if you're taking a whole floor out I'm speculating here but I assume that that could be true yes so it it would eliminate the elevator portion of the issues yes it would not eliminate the square footage uh excuse the the number of units available based on uh your buildable UPL correct we still have the non-conformity related to the number of units per Upland 3,000 squ F feet of Upland but the height again I I I think our surveyor and I are of the opinion it's not a non-conformity because it's ornamental it's purely ornamental um um but uh the town attorney feels that it is uh your building height excludes ornamental uh structures uh but the town attorney felt that was a variance it's j bricks I think so sorry Jay's here but I was saying Town attorney I I sorry jay um I don't the other good-looking Jay with the beard yeah if you have a different opinion from your town attorney um that that uh it so the town attorney's opinion and I don't know if uh Jay Briggs shares it or not uh believes that because it houses the uh electrical equipment it is not purely ornamental and therefore it is a non-conformity that you are extending um if we were to only make it go to the first two floors and not the third floor I think we could tuck that in under the 24 in wouldn't extend above the ridgel line right and and by purely ornamental uh it doesn't really have to be purely or ornamental does it I mean the chimney is not purely ornamental M right thank you okay um so you could do the project without the elevator or by doing the project uh with an elevator that's lower in height but you would still have the question of the buildable uplet correct but you agree that the bylaw the current bylaw um does not authorize the expansion but for the exception that's provided for later in the bylaw I I think that the zoning act alone does not allow this right but your bylaw taken in its entirety including its title that says enlargement the provision that follows the reference to the ACT and then says other structures and uses can be extended altered or changed is another significant part of the bylaw and then further down where it requires you to consider increases to the non-conformity taken as a whole in my view that language is a more permissive bylaw and therefore um the ACT doesn't control your own bylaw does and this can be done by special permit if I could just if I could just add to that in the Harrison case the uh the judge cites titum versus the town of Sandwich and uh the titom case specifically references uh the fact that a bylaw can be more permissive and the language in the sandwich bylaw in the language in our bylaw are ver as to special permits virtually identical so have you had an opportunity to explain your position to uh Town Council I haven't um we had an initial call and in which I encouraged that he didn't reach out to me sort of an he issued his decision within days of me submitting it I was going to give him time to read it so I didn't have a chance and he issued his decision and I had 30 days to appeal I would still welcome the opportunity again I know Jay very well and I think um having that conversation would have been helpful I mean this is not Jay's first rodeo either right no no C certainly not although I mean it is very town by town spefic specific right you have to look specific and you have to sort of Turn the page of your pilot at least the PDF printed version you know to see the next page and it's buried and I highlighted it I underlined it I bolded it that word increase I mean you'd have to find it I'd love to point it out to him um that as well as the word enlargement in the title I think make it very clear and also he doesn't have the benefit of all the examples I gave of you how you've historically interpreted the bylaw I I think that combination make it very compelling that are by liw is in fact more permissive your your examples of what the board has done in the past are uh instructive there I take it that uh you sort of view those in two different categories one being the category before Harrison and the other the category after Harrison is there any indication that uh Town Council has opined since Harrison uh favorably with respect to the examples you've provided where section 5B was used uh by the board to uh allow a special permit as a as a way of approaching the issue I personally don't know whether he has done that I don't know if he and maybe Sarah there's nothing in the in the files with respect to those oh no no those yeah the the none of the special permit decisions I read indicated that Town Council had wait in we have some information maybe that would help um Paul too um start with Sarah and then we might go straight to Jay okay sry J so this is important um we'll start with application number 1256 which is 296 Shore Road that was filed before the Harrison decision so it was filed with the town prior to then decided on on June 28th of 2012 um so that one would have been preh Harrison I checked for the the CBI um Shore Road decision the next one for the Wayside in because we did go through our files once we received this from you this morning um 512 Main Street they had an existing deck that was 3.1 ft from the sideline where 5T was required and they were adding a a roof structure over it um in this case it was only a special permit because they did not go any further and it wasn't an increase in building coverage because in a GB Zone you do loot coverage um also on that property um well we'll go in order um 359 Main Street the subject property in 2017 the board did Grant a special permit to construct a kitchen addition and manager quarters um above that conforming addition uh variance was not required at that time because the manager's quarters already existed um we have documentation from 2016 and prior to that they were just reconfigured that show they just reconfigured it so there was no expansion so um it was determined only a special permit was required in that case but an addition was built a conforming addition okay um it's it's it's an for housing the use expansion of the footprint of the building that's housing the non-conforming use it was solely for the kitchen it it's still and and we can always seek further um clarification from Town Council if if the board feels that that's necessary um Chad and barav was uh there's a provision in our bylaw for uses in Split zones more restrictive less restrictive to allow for the use um only allowed in the more restrictive District to be allowed in the less restrictive District by special permit 512 Main Street um in 2020 that was for uh an office and storage area um what isn't shown on here is in 1994 they came for the same provision of the bylaw with the split Zone lot that allowed the whole lot to be viewed as gb1 rather than a split zone so that's some clarification of the different ones that were post Harrison it was an extension intensification of the loot coverage however that's written in the decision so in a gb1 they're allowed 90% lot coverage it it's but it doesn't matter the point is if you're making a change uh using the language of the ACT you need a variance it has to be fully compliant in the permitted in the bylaw it would be something if you have to come to the zoning board it's not fully permitted and so therefore you would need a variance that's what that's what Rockwood says and that's what Town Council says now and and the and these examples weren't done by variance they were done by special permit in each case because there was a pre-existing non-conformity that was expanded or extended even extended not all examples were intensifications but for example that Wayside in it states right in it that 25% maximum is allowed I quoted that from the special permit and they were increasing that non-conformity from 28.7 to 29.9 and I think you with all due respect to Sarah who who's very knowledgeable I mean this is a situation I mean that Sarah as opposed to this Sarah both if you have to come to the zoning board for a commercial building uh section six says that you need a variance unless it's fully compliant with the bylaw which none of these are because they all had to come here so but our bylaw specific speically allows us to come here that's what the point Sarah's making and so I think that s a clock's interpretation while it has the nuances of our bylaw uh this this is supposed to be questions so you know well I know but it doesn't fit it doesn't fit in the The Rockwood decision Rockwood says if you have to come here it has to be fully compliant or it's a variance but what that fully compliant so uh if if you uh if you apply Rockwood you basically are uh I mean Rockwood's pretty clear about uh the requirement for a variance um I guess your position is that Rockwood doesn't comp doesn't control here because the ordinance was different right under har than the ordinance that we have here that we have a more liberal right in effect ordinance um is there anything in Harrison that supports the idea that there is no need for a variance if you are dealing with u an issue um under this town ordinance aside from the other sort of of uh extra issues provided in uh Harrison about constructing a whole new building and all the rest of those kinds of things I mean because Harrison um was so so um sort of expansion the changes were so uh expansive that was the main focus all of the case law that Jay cites in his opinion that I cite in my narrative was also discussed in Harrison so the whole notion that 40a section 6 by itself if what you're proposing doesn't conform with zoning you can't do it by special permit you have to get a variance that's all in there the whole notion that you can have a more permissive bylaw um by by local uh town meeting vote that's also in there all of those cases the issue that they were looking at in Harrison was whether what whether Chatham's more permissive bylaw allowed what was being proposed there so chadam bylaw is clearly different than 4A and it can only be more permissive it can't be less permissive there's that's that's the other whole thing so it's a more permissive bylaw the question in Harrison was whether what they were proposing so it's very fact dependent analysis fit within what you have allowed to be more permissive and where there wasn't reconstruction and it doesn't say that and when there wasn't you can also create new non-conformities your bylaw doesn't say that judge men concluded you can't do what you're proposing by special permit but it wasn't a blanket saying nothing is ever going to be more permissive than the state act Harrison does not stand for that proposition it rather was very fact dependent and I agree with it I think his reasoning and I know judge Gman he's retired now but he's a um a a mediator uh very knowledgeable I don't think he was wrong I think that uh the word reconstruction certainly where you tear something down and rebuild it in a different location on the lot that's not contemplated by the words change alter or extend and similarly there's no Express reference to allowing the creation of new non-conformities um you know clearly a variance would be required in that instance but where you're merely extending altering or changing pre-existing nonc uh conformities in the way that we're proposing and we're not reconstructing and we're not creating new ones you're bylaw even even the words increase is included in your bylaw uh clearly contemplates that kind of um project by special permit okay the uh the height of the chimney right now versus the height of the elevator uh how much of a difference is there there I know you've got 24 in with respect to the elevator I think it's lower I was looking at that I let me pull it out is it the chimney looks higher if I but I I I haven't asked our same looks fire to me I can't I can't really tell there's no no ability for me to tell you that there's no measurement on the plan I'm sorry um I say it's similar in height okay to the proposed similar similar in height I well I can look at it and see that between the two of us um you you make a repeated reference to the fact that there New Town Council is there some indication that Town Council has provided an opinion prior to This Town Council which would support your efforts I just meant in in in referencing that that he may not be aware of your history of How It's traditionally been applied here um I do not know whether he has ever opined and I don't mean to suggest he has one way or the other before this is the only opinion I know that he's given on this question okay um and uh you you didn't receive an opinion from Our Town Council the prior Town Council no I no I did not provided anything okay um so previous Town Council um on a different project okay had um and this the his opinion hadn't been released um it was a project on coll Road where it was determined by um previous Town Council that both a variance and a special permit were required for an expansion um within a required Road setback for a mixed use structure so I think that what what's abundantly clearing me and and honestly your going through each of the special permit examples um kind of confirms always that you don't really ever set precedent here right every single fact every case that comes before you is is um fact dependent and so um prior Town council's opinion on other projects may or may not have any bearing because and and just like Harrison I feel is so factually different it can't be used to say oh you need a variance here either you got to look at the bylaw and you got to look at the specific project applied to that bylaw so um I don't know that it's really helpful um to to look at pass projects and except for I was uh and I do think it's compelling uh trying to establish and and demonstrate the pattern of section 5B special permits that have been given when there are pre-existing non-conformities and folks are in uh proposing either to extend them or in some instances even intensify them and I think that is squarely allowed in your bylaw by virtue of the language of the bylaw yeah I think I understand your position I guess I guess what town Town Council would say is that we basically screwed up in those prior Decisions by granting a special permit yeah okay and two rights don't make a wrong as or two wrongs don't make a right I should say I used to say that as Town attorney myself but so that's why precedent never good um and I I don't I mean it it's not intended to show precedence because I think as Sarah demonstrated each each case is different but I I think it's abundantly clear that your bylaw is very different from the bylaw in harwitch that was reviewed in Rockwood and it contains Express language that does allow by special permit in increases in the non-conformity I have no other questions Paul if I could just amplify one thing for Paul Paul's a retired lawyer the lawyers ever really retire if you if you take a look at the titum case in that casee the superior court judge ruled that Rockwood required a variance and the appeals court they they took the case to the appeals court the appeals court uh said that the judge was wrong in his analysis and that the more permissive bylaw Allowed by special permit okay thank you okay David Nixon questions and comments uh thank you yeah well one comment um you know our current Town Council also was Our Town Council in 2012 2013 2014 so he's not the new guy on the Block but anyway um I want to kind of go back to the first question which is are we uh supporting uh the building as I call him commissar because that's what he is his decision or not so i' like but it wasn't his decision I'd like to ask comrade Briggs um what uh what conclusions did you come to to rule that a variance was necessary in this scenario so ever since I've been here I've been reading a do doent from uh previous community development director and Building Commissioner Kevin McDonald who used to allow everything by special permit in chadam on commercial or non one and two family dwellings and in his letter on a conclusion after uh Rockwood he said and if I quote him in the future our referrals will have to require variances for any non-conformities which either remain be newly created or even be minimized but not wholly eliminated so from 2012 on we've been looking at these as needing variances and uh Sarah Sarah and myself had a phone conversation about this to go over the project early on and uh attorney Flores stated that she thought that the elevator Peak was purely ornamental and would not need a variance it it appears from looking at the elevation it's more than two feet but that's neither here or there if it's 2 feet over what's existing or four feet over as it looks um I don't see it as ornamental in nature it's a it's required it's required by the elevator company so I look at ornamental meaning you could remove it and and everything would be fine but if that's required for the elevator I see that as an intensification of the non-conformity and that requires a variance um also the addition of the rooms where they need a minimum 3,000 square foot feet of buildable Upland per unit uh they already don't have enough for what's existing now I see that also requiring a variance so that's where I came down on this and that's what's being appealed today and you've heard nothing to change your mind I have not and I have the benefit of uh being backed up with someone with a lot more experience than me than than I have is that's J tman thank you any more questions no no no that's it on all right Lee uh yeah I have a question I guess maybe just a clarification um the difference between extending a pre-existing non-conformity and intensifying it what is the difference maybe maybe both of you could Jay or Sarah um so in in uh they're often interchangeable and I don't think that they should be I think that uh extending is where your you have a building that exists in the setback and the addition is constructed along the same intrusion but doesn't further encroach and intensification would be and further encroachment um where your bylaw covers and uses Express language extension as well as an increase in the non-conformity I think either way were covered um but each and and also I should also say to make everything further complicated every town has its own definitions of what there might be a definition in some town and I don't think you have it but some towns actually def uh Define a difference between extension and intensification and it's usually what I just explained but you should be very specific to the bylaw when you're interpreting that yeah I also thought it was very interesting that in our um set of criteria number three has us take a look at that so okay thank you thank you Steve well I had a couple of questions and and Jay um just sort of clarified them for me because I was going to ask um the structure is already um about two feet over and the U the Mechanicals for the elevator are going to make it another two feet so it's 4 feet in total yeah already um or so I just wanted or close to four feet will be will be as proposed yeah exactly um what is the do you know what the dimensions of that Elevator Shaft is Jim is on the phone too perhaps Jim Owens can help us with that Jimmy you there hello yeah the uh footprint is um uh 9 fo8 by 7 fo7 the outside dimensions thank you so it's approximately u 10 by 8 let's go just round numbers yes um so there would be a structure above the existing Ridge that's 2 feet above it and 10 by8 10 by8 that's a very large koua okay uh and especially if it's if it's a required structure I don't think it's ornamental okay um so I I have a little bit of a problem with that the other thing is is the you're already over the the buildable Upland and increasing it substantially uh for six more rooms um I you know I I I don't know if that's a special permit I think I think that's an intensification of of of the use of that structure so and where the section five allows you to consider that increase I think that would Vector into the substantially more detrimental finding but not to say it's precluded by special permit all right thank you and Virginia F questions and comments oh and comments y okay um could you um elaborate again on the ownership change you mentioned it in your narrative we I see that there's a March 2024 ownership change um but then the letter refers to the owner having been there and made Renovations and improvements and R run the end for 10 years the uh Noble House owns 95% and uh Jeff I owns 5% so he's still an owner he's the one who's been operating it for the last 10 years in that letter okay so then 90% of the Inn has new ownership which is what's driving this interest in more rooms is that fair well I I think yeah business plan moving forward certainly yeah the proposal just for the proposal to increase the number of rooms was something that Jeff had started with me uh before he he made the deal with Noble House okay um quick question for the architect um it it looks like the Dormers and I know this was your second um uh rendering for the hbdc but are these are these wall Dormers or do they just look that way in the rendering and do you know what I mean they are yeah the front wall is actually um there's a couple elevation on A3 that kind of shows a side view and it shows that that front wall is caned back um I think it's approximately 10° or so to to have that you know minimize the impact okay so you so they really they have they are longer wider I guess you could say at the top portion and they are flush at the bottom which is really what I I consider kind of a wall Dormer I just wanted to see if that's what you is that what you're attempting here and what you would call it a wall Dormer well I mean a wall Dormer or um maybe like a shed door where the front wall is vertical and more of an extension of the front face of the building whereas this kind of pivots back uh again to kind of minimize that that face um along with the existing Eve line that that remains yeah no thank you for clarifying actually it's kind of two Dormers you're right it's a the shed Dormer going all the way across you know through the Gable and then it's also the actual windows I should have clarified the windows are kind of wall Dormer set is that right correct yeah that that's right yeah that piece was is vertical yeah at the window so the windows would be shown that way the six Windows if I could just amplify that for just a minute um the wall the Dormers as you see them now uh were modified to meet the request of the hbdc that was that was the request they made which we thought was an improvement so we accepted it and Incorporated it no I I watched those hearings so I I did and I agree I think this is is much improved but um I think um I mean where I'm going with this is streetscape is so important it's important to the neighborhood it's important to chadam and it's important ostensibly to the owners it's why in their narrative they're so successful CH chadam so Charming a wal Dormer is I think a little more um has more character so that's why I wanted to make sure I was reading the the depiction properly that's but the pitch of the shed is improved from the second application to hbdc okay um and then Sarah if you could just this is kind of a small item but to Steve's point about and every one and actually the the one of the main criteria that you don't meet the buildable upin in your narrative you say 72,000 I calculate 82,000 it's because you have 54 and the the ad the advertisement says 54,000 so what which is it just because I mean it's still needed versus what exists well you you need 18 more 18,000 more for the six rooms according to the site plan uh of uplend we have 37,000 right but somewhere in here you so plus 18 you you need 64,000 more square feet 16 64 no no no 3,000 time 6 talking about the total shortage the total right yeah because currently we're short y okay so but we're we're only increasing the deficit by 18,000 Square ft okay I I just wanted to reconcile that it seemed like in here Sarah's number was spacing on 54 and our what we had prepared what uh so Jenny the rental rooms require 3,000 square fet of buildable Upland yeah per room the manager's quarters requires an additional 10,000 squ that's the 10 that's the difference because it says 54 in here and your ad says 64 for the existing non-conformity requires 64 I mean it's it it was just I just wanted to make sure I understood what why that was different um that's all I have thank you so I just have a one thing that I I wanted to point out I we we generally listen to other boards you know and um I did listen to both hbdc and I was just slightly troubled by the fact that they were informed that there was no height increase and please correct me if I'm wrong please our surveyor also shows in the upper right hand corner no increase and I think that's because of the time we all understood to be ornamental it wasn't until after um the I did the zoning determination that we learned that the the 24 in of uh Elevator Shaft would not be considered ornamental and and I'm not convinced that if they knew it was going to be 2 feet higher that they would have been that excited about it I'm just not um so I'm a little concerned about that that's why to com I think I think the context of the meeting was the ridge height was not changing on the building yeah they were still told there were no height my memory of the conversation we had yeah we were always talking about the ridge height right but still it wasn't shown on the plan I just remember they were specifically told there was no height increase so I I think it might be a little disingenuous to say that way help me out no it wasn't it wasn't dising I was there it wasn't disingenuous at all the Elevator Shaft is clearly visible yep okay and it's clearly above the ridge what we said to them was the ridge height of the building is not going up you did yes that's what we said yes you did you did but I just got the general feeling that they thought there was no height increase so maybe I'm wrong like I said I I I I think you are okay yeah no happened before I I just I mean w it's a it's a um zoning distinction Building height and he did I I had the exact same conversation with the okay um site plan uh why why does it say no increase in height if it's 24 but it's because and they pointed me to the exception so I think it's whether you're calling it Building height for zoning purposes or whether you're saying there's an increase of the ridge height so I I think there was a miscommunication if anything yeah okay yeah no worries not intentional no no I didn't think that I just thought maybe something's changed between no you know I don't know okay so um and then I just want to reiterate that if you didn't put this um increase in for the um the Elevator Shaft you could do other things that would be inside that would make it compliant right with well they couldn't do that without losing rooms but there would be something you could do to make it compliant for the inside without we wouldn't see it on the outside right I know but you why would you lose eight rooms to add six you know I mean I think Paul suggestion of shortening the Elevator Shaft so that all the rooms on the first and second floor are become accessible that was the best idea you think this is the best idea okay okay so when so if if there's a possibility that you took that out of the picture then let's just say for the sake of argument we were deciding on a variance or special permit we would just be talking about the six I don't know so it's just I'm just floating that out there as we would need the Rel for that correct right and we would only be talking about that can they add six rooms and we wouldn't be talking about height correct if that was agreed upon yeah okay all right I just wanted to to express that all right so at this point um Paul I no Jay please yes I just wanted to say something because you brought up the elevator again and Mr Riley was talking about the switch back out front to get in the building I don't know what the access to the elevator is going to be from outside you might need that switch back anyway to get in the first floor do you want to add anything else um U Jay Briggs only if asked okay does anybody else have anything they want to ask the Building Commissioner y you do Steve sorry yeah I have one more question um is there a particular reason why the planning board wasn't engaged in this oh because we had the zoning issue to clarify and so to go through uh the appeal of the determination of the billing inspector uh to go through the planning board we don't have you know resolution of that issue all it's going to do is take staff time and planning board time for something that might never get to them so we felt it was really important to get the threshold threshold question answered first so is there an intention then to to go before the planning board eventually because you may have a parking issue well if I could address it for just a minute uh I represented uh the Inn through a previous planning board meeting and we talked about parking at that time and the and so what has happened uh the town built a nice parking lot right next door and what the end has done so they have sufficient parking spaces for the rooms so there's there's more than one parking space for room per room uh what the planning board has done routinely for downtown businesses is wave the parking requirement because there is no parking uh what the in has done is they've uh there's a contractor works for the town runs the parking lot next to the Inn so we have contracted with him so we have parking spaces for dining guests and staff using the town parking lot okay thank you okay so at this point um perhaps we should close all three hearings uh one by one Paul all right I'll move to uh close the hearing and move into deliberation uh with respect to each 241 24120 and uh I'll make the uh what 120 is that right 129 129 130 and 131 yeah we can do all three I would just um sir just there it was floated um that if I if uh Town Council if i' had an opportunity uh to consult with him or if he'd seen the information that I'd presented today and the answers were no if if it is the board's um wish to have that further um consultation with the town attorney if you close it then that can't be part of his response can't be part of the deliberations so I don't know if it's premature to close it or not we could do would you like us to do straw votes on all this um since we spent this time all all we could you could ask us for a continuance I guess it would be for you to talk to Town Council whatever you prefer either one well I think I think it'd be appropriate to have a continuance so the Town Council can weigh in on SAR arguments and I'd love to talk to him so we're not playing telephone you know the game telephone I would talk to him on the telephone sorry no that that that sounds you know I I I think we need a definition of the word other in our bylaw personally that that too extension would be helpful yeah enlargement what's your pleasure then um uh ear early in I mean I it's really how quickly I can get a hold of Jay um well they're going to get you know the holidays after when is your uh when are your meetings in January so our January meetings are rather full at the moment our first February meeting's rather full um and I might add we're also getting a 40b we believe in the month of February wow yes they're even making noise about January on that so so um February 27th oh gosh I mean I do think it would be beneficial I think we talked about um having me talk to him before we got to this point and where there is uh Jay read something from um Mr McDonald's previous uh I'd love to talk with Jay about that so um do you have a copy of that I don't I'd love a copy of that sure yeah that would be very helpful thank you um yeah I if that's what it has to be that's what it has to be so Paul so do I hear a motion to continue to February 27 2025 yes make one gosh okay that seems so I'll move to Grant the requested continuance to uh February 27 2025 for 24-19 130 and 131 corre thank you and next time it should be much quicker no that's fine no um okay J okay Virginia fck I approve Steve dor approves I approve we need a second I'm sorry I I second what Mr Simple said and I approve and Steve I still approve I I approve I approve as do I it's unanimous on that thanks so much thank you and have a nice holiday we wish everybody a Merry Christmas to you and a Happy New Year thank you happy Hanukkah thanks everyone happy H I heard that okay uh Randy did you see senent live last night they had Adam Sanders singing a Hanukkah song very funny about and all those other yeah it could go on yeah all right so at this point I think we have another agenda item uh annual election of officers going to hand that over to Mr Nixon I think thank you yes the committee met and that would be the nomination commit commit that would be Mr V and I and just for new members to know uh to be an officer you need to be a regular member and um voting is not super majority the two things that I can mention offand that our simple majority would be anything to do with 40 BS and also election of officers so with that uh I'm pleased to recommend the following slate uh clerk we would have Virginia Fenwick uh Vice chair we have Paul simple and chair Randy Poes and if anybody want to second that that'd be nice I'll move to second then we we would need a vote Yes Virginia fck I approve Steve approves Lee H approves all sample approves David S nexton appros as do I I guess that's unanimous as well um now I guess we need a motion to uh there's no public comments right I see that here on the agenda no there are none I saw it so I'm read I'll move to a journ and I second at that and approve and Steve dor approves Lee hav approves Paul approves a as next approv as do I and what time is it oh look it 3:59 p.m. and good night [Music] [Music] Chad for