Historic Preservation Incentives

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BYLAW: Historic Preservation Incentives

MUNICIPALITY: Lexington

OBJECTIVES: The intent of the proposed article is to keep to a minimum the possibility that Lexington's zoning requirements will inhibit the cause of historic preservation. Zoning can inadvertently act as a disincentive to protect structures by having rigid permitted use restrictions, dimensional requirements (such as setbacks), on-lot building restrictions or other constraints that might have an unintended negative impact. In proposing special permit conditions, however, the aim is to provide prudent measures that offer an incentive to the applicant to preserve the structure while still protecting abutting uses and the neighborhood. Another need is to clarify the definition of what constitutes historic status-or potential historic status-for a structure. An additional requirement is to maintain a list of eligible structures and elements and a process for amending it

The following are general goals for the proposed amendment:

1. Employ the zoning power to encourage preservation of historic buildings, other structures and elements within and outside of historic districts.
2. Use the special permit granting authority that is (variously) vested in the Zoning Board of Appeals and the Planning Board, as a vehicle to implement broad historic preservation goals on a town-wide basis.

The following are specific objectives of the amendment:

1. Reduce the disincentives to historic preservation in the Lexington Zoning By-Law that might involve use restrictions, dimensional requirements or other provisions.
2. Substitute permitted use provisions that broaden the array of acceptable economic options in a property for the owner/investor.
3. Modify, where feasible, dimensional and development standards that create barriers to preservation for the property owner/investor.
4. Strengthen and make clear the definition of historic and potentially historic and architecturally significant buildings, other structures and elements.
5. Utilize the town's existing historic regulatory and protective processes for maintaining a list of eligible historic structures and elements; this list should be viewed as a changing and dynamic tool that provides oversight and consistency to the process of nominating items for historic status.

BACKGROUND

Collectively, many older residences and commercial buildings in Lexington help to give the town its special character. The community has long expressed its recognition of the value of Lexington's architectural resources by supporting preservation of particular historic buildings, creating historic districts and passing other protective regulations. It is apparent, however, as the town enters the new century, that limited public powers and individual preservation efforts, as important as they may be, are not sufficient to achieve broad community stewardship of the town's historical and architectural resources. Zoning powers, particularly those involving special permit granting authority, can be employed in a variety of ways to encourage preservation.

This article responds to concerns expressed by members of the Planning Board and the Lexington Historical Commission in regard to extending greater protection to historic structures and other historic elements in the community. These structures and elements may exist within or outside of the town's existing historic districts. In addition to buildings, historic status can include settings (such as a field), ancient ways, secondary structures (such as a barn), monuments or even a sign.

Structures within an existing historic district are covered by design controls that regulate alterations to the building. Structures located outside of a historic district do not have any layer of protection to encourage their preservation, with the sole exception of the town's Demolition Delay By-Law, which covers the entire municipality. That By-Law offers a six month postponement of the razing of a building during which the applicant must justify to the Lexington Historical Commission (not the same as the Historic Districts Commission) why demolition is the only feasible alternative.

HIGHLIGHTS OF THE ARTICLE

A number of points are important to understand in regard to the proposed article.

First, the actual or potential eligibility of any building, structure or other element under this article is not arbitrary and left to the whim of either a developer or the town. Whether in an accepted or nominated status, historic properties must have demonstrable architectural or historic significance under the criteria of some credible source, be it the National or State Register or Lexington's Cultural Resources Survey.

Second, the basic approach used in this historic incentive provision is to allow modification of the land uses permitted in various zoning districts to provide property investors with an economic inducement to preserve the property. These use modifications are, however, selected with caution, both in terms of the uses being of low impact to their area and the zoning districts in which they would now be allowed being limited and logically chosen.

It should also be kept in mind that these provisions apply only to properties that have met the eligibility criteria for historic and architectural significance, and not to properties on a wholesale basis. Similarly, dimensional and certain development standards such as yard setbacks or impervious surface ratios may be modified where they impede preservation.

The system would operate with checks and balances for the protection of the applicant, neighboring users and the general public. In addition to the eligibility "screen" for any property, the use of the special permit mechanism guarantees extensive public process, with public and abutter notice, a public hearing, review by all relevant town boards and departments, provision of written findings of fact by the SPGA, and the ability for the SPGA to impose protective special conditions on a case-by- case basis.

Finally, the article allows, where necessary, otherwise ineligible adjacent lots in a subdivision or cluster development to be used to make historic preservation on the eligible lot feasible. This could involve any purpose that helps to achieve the goal of preservation, ranging from provision of parking, to accommodating infrastructure, to restoring historic setting.

PUBLIC HEARING :

A duly advertised public hearing was held on February 24, 1999. Key questions and comments included: How many properties are on the National or State Registers and/or the Lexington Cultural Resources Survey? The Board has now determined that 645 buildings are presently eligible for this special permit, by means of being included in one or more of these lists. Another 500 have potential eligibility but resources have been insufficient to conduct additional architectural/historical surveys. Questions were asked about specific uses of buildings that might now be allowed under this By-Law amendment, and the Board and staff offered clarification. Other comments involved minor technical corrections.

M O T I O N

That the Zoning By-Law be amended by adding a new subparagraph 4.4 HISTORIC PRESERVATION INCENTIVES, as follows:

"4.4 HISTORIC PRESERVATION INCENTIVES

4.4.1 GENERAL OBJECTIVES

1. Encourage preservation of buildings, structures, sites and settings, and elements of historical or architectural significance.
2. Establish eligibility criteria for buildings, structures, sites and settings, and elements attaining protected status under paragraph 4.4.2.
3. Expand economic options for the owner/investor, by broadening the permitted uses in various zoning districts and removing barriers presented by development standards governing those permitted uses.
4. Permit the flexibility of development options by modifying dimensional requirements that might be an impediment to historic preservation.
5. Provide incentives to preserve contributory elements of historic or architectural significance, such as settings and sites, objects, monuments, trees or other elements.

4.4.2 HISTORIC ELIGIBILITY DEFINED:

1. Any historic element, as defined below, may qualify for paragraph 4.4.2, Historic Preservation Incentives, if it is included on any of the following lists or surveys:

1. National Register Of Historic Places
2. State (Commonwealth Of Massachusetts) Register Of Historic Places

3) Inclusion by the Lexington Historical Commission in its Comprehensive Cultural Resources Survey, or identification by that Commission of historic and/or architectural significance and thereby potential inclusion in the Comprehensive Cultural Resources Survey.

4) Pending nominations in good standing to the National or State Registers

b. Primary Qualifying Elements shall include the following: buildings, and other structures and outbuildings located on the property.

c. Secondary Qualifying Elements shall include the following: sites and settings, objects, monuments, trees or any element of historical, architectural and/or cultural significance which indicates their contributory value in establishing historical context.

d. Priority in granting special permits under these historic preservation incentives shall, in all cases, be placed upon keeping buildings and structures in place , rather than moving them to other locations, provided that the existing siting can be shown to represent valid historical setting and context. Moving of buildings, structures and elements to other locations shall be considered only if no other preservation measures are practical or reasonable on the existing site, or if the proposed removal is to return a building, structure or element to an original or more historically accurate location. The SPGA shall determine the validity of any such requests.

1. SPECIAL PERMIT AUTHORIZED: The Board of Appeals, or the Planning Board where it is authorized to be the special permit granting authority (SPGA), may grant a special permit to authorize actions that would otherwise not comply with the provisions of this By-Law and that would allow the renovation, repair, adaptive reuse or, in limited instances, removal, of historic or architecturally significant buildings.

a. The following uses, identified by the line in which they appear in Section 4.2 of this By-Law that are not usually permitted in the districts identified below, may be allowed in those districts, provided the SPGA makes the findings listed in 4.4.4.:

1. 1.13 Residential/Institutional/Agricultural Uses; the conversion of single family residences in the RD, CB and CLO districts.
2. 1.14 the conversion of single family residences in the CB and CLO districts.
3. 1.187 the conversion of municipal buildings to residential use in the RM, CB and CLO districts.
4. 1.21 the creation of Rooming Units in the CB, CLO and CN districts.
5. 1.22 the creation of Accessory Apartments in the CB and CLO districts.
6. 1.23 the creation of Bed and Breakfast Homes in the RT, RM, RD, CN, CB, and CLO districts.
7. 1.24 General Home Occupation Uses with a maximum of one (1) employee other than an owner occupant and with a maximum of 4 customers per hour, as an average during the course of the business day, in all districts.
8. 1.25 Professional Office Home Occupation Uses with a maximum of one (1) employee other than an owner occupant, in all districts.
9. 6.14 Office Uses, Professional Services, in CN districts.
10. 6.15 Advertising/Editing, in CN and CB districts.
11. 6.16 Employment Agency and similar uses, in CN districts.
12. 6.17 Manufacturer's Representative and similar uses, in CN districts.
13. 6.18 Other Business and Administrative and similar uses, in CN districts.
14. 7.13 Professional and Business Services, Tailor, Dressmaker And Shoe Repair, in CLO districts.
15. 7.14 Real Estate Sales or Rental Office, in CS districts.
16. 7.18 Repair of Household Appliances, in CLO districts.
17. 7.28 Private Postal Service, in CB districts.

b. Modifying 6.2, Development Standards for Offices (6.21 - 6.26) and 7.3, Development Standards for Personal, Business Services (7.31 - 7.32), provided that any negative impacts to the surrounding area can be feasibly mitigated.

c. Modifying the standards in Table 2, Schedule Of Dimensional Controls, with regard to minimum: lot area; lot frontage; front, side and rear setbacks; maximum percentage of site coverage; and maximum height (stories).

d. Modifying the standards in Section Five (5), Supplementary Use Regulations, sub-sections 5.2, 5.3, 5.4, 5.5 inclusive.

e. Modifying the dimensional and intensity controls in Section Seven, 7.1 - 7.6, 7.9.1 and 7.9.2.

f. Modifying the landscaping, transition and screening requirements in Section Ten, 10.3 - 10.8.

g. Modifying the off-street parking and loading requirements in Section Eleven, 11.1 - 11.9, inclusive.

1. FINDINGS REQUIRED: In order to grant a special permit, the SPGA shall determine:

1. that the uses authorized in 4.4.3. or the modification of standards and requirements authorized in 4.4.3 b. - g. are necessary to maintain the historic or architecturally significant building, structure or element on the site on which it was originally constructed or to relocate it back to such a site;
2. that the proposed renovation, repair, adaptive reuse or removal preserves, to the maximum extent feasible, the historical and architectural features of the building, structure or element, said determination to be made by the SPGA;
3. failure to grant the special permit is likely to result in inappropriate use

   or physical modification or pursuit of a demolition permit; and

4. that the proposed use will not generate negative impacts to the surrounding area or zoning district or that any negative impacts generated may be feasibly mitigated.

1. CONTRIBUTORY LOTS

For one or more lots that do not otherwise qualify under paragraph 4.4.2 above and are shown on a definitive site development plan submitted by an applicant, the SPGA may grant a special permit to modify:

1. the standards in Table 2, Schedule Of Dimensional Controls,
2. the standards in Section Five (5), Supplementary Use Regulations, (entire section, covering the special uses identified),
3. the dimensional and intensity controls in Section Seven, Dimensional Controls, 7.1 - 7.5,
4. the landscaping, transition and screening requirements in Section Ten, Landscaping, Transition and Screening Requirements (entire section), or
5. the off-street parking and loading requirements in Section Eleven, Off-Street Parking and Loading (entire section)

provided the SPGA makes a finding that such modifications are necessary to make historic preservation feasible on another lot within the same development on which a historic element, as defined in subparagraph 4.4.2. is located. The use of one or more lots that do not otherwise qualify may apply to a conventional or cluster subdivision (see Section 9) or to a two lot subdivision qualifying for a frontage reduction (see subsection 7.4.5)."

ARTICLE 5 ZONING BY-LAW, ADJUSTMENTS, SECTION 9, RESIDENTIAL DEVELOPMENTS

The Planning Board is withdrawing this article.

MOTION That this article be indefinitely postponed.

ARTICLE 6 ZONING BY-LAW, TECHNICAL CORRECTIONS

RECOMMENDATION: The Planning Board recommends that Article 6 be APPROVED.

BACKGROUND: Every year the Planning Board submits an article which includes a number of amendments that: 1) correct omissions, typographical errors and cross references, 2) bring the wording of the By-Law into compliance with Chapter 40A, the Zoning Act, State Law, or court decisions, 3) clarify interpretations, 4) remedy oversights and loopholes, 5) group provisions dealing with a subject into one section, and 6) update obsolete provisions and revisions in the By-Law. It is not the intent of this article to make changes that affect the substantive meaning of the Zoning By-Law.

This article is presented differently from the Planning Board report on other articles. The explanation (identified by the prefix Planning Board Explanation) of each of the proposed amendments, which are usually a separate part of the Planning Board's report on proposed amendments to the Zoning By-Law, are interspersed in the motion with the proposed amendments for easier Reference. The proposed amendments are identified by the prefix A-# in the motion that follows.

M O T I O N

That the Zoning By-Law be amended in various sections, as follows:

Amendment A1 b y adding a new section 1.7 as follows:

"1.7 HEADINGS

Headings, subheadings and captions at the head of subsections and paragraphs are for reference only and are not substantive provisions of the Zoning By-Law. They are not legally adopted parts of the Zoning By-Law as voted by Town Meeting."

Planning Board Explanation A1 The Zoning By-Law includes section headings and captions to make it more readable. Headings are provided to help the reader identify what each section is about. The Planning Board estimates that about 75% of the sections in the Zoning By-Law already have headings. This amendment will give the Planning Board the authority to add captions where needed and modify existing captions to clarify them and provide better information to the reader.

An example is:

7.3.1 MINIMUM LOT FRONTAGE REQUIRED

Every lot shall have a minimum frontage on a street, as defined in ....

7.3.2 ACCESS

An owner shall provide a means of access for .......

7.3.3 DESIGNATION OF FRONTAGE STREET

When a lot is bounded by more than one street, ........

7.3.4 MEASUREMENT OF LOT FRONTAGE

Frontage shall be measured in a continuous line along .......

Introduction to Amendment A2 During the debate on Article 34, Technical Corrections, at the 1998 Annual Town Meeting, an amendment was made from the floor that had repercussions for other sections of the Zoning By-Law that were not covered by the amendment from the floor such as the calculation of the number of stories and the calculation of gross floor area and floor area ratio. This amendment compensates for the amendments made from the floor a year ago.

Amendment A2 In Section 2, DEFINITIONS, in the definition STORY by deleting the words ".. but not including a cellar, a crawl space, .." so that the definition, as amended, will read:

STORY: That portion of a building contained between any floor and the floor or roof next above it [ words deleted: but not including a cellar, a crawl space,] or the uppermost portion so contained if under a sloping roof and not accessible, by an approved stairway, or not designed or intended for human occupancy.

In Section 2, DEFINITIONS, in the definition CELLAR, by deleting the second sentence which reads: "A cellar shall have a floor-to-ceiling height of seven feet or greater."

In Section 2, DEFINITIONS, in the definition CRAWL SPACE, by deleting the existing definition and inserting in place thereof the following:

"CRAWL SPACE: A space under a building not designed or intended for human occupancy or use that provides access to the underside of the building and has a height between the ground or floor level of the crawl space and the underside of the floor above it of not more than four feet."

In Section 7, Dimensional Controls, by striking out subparagraph 7.5.5 Parking Within Building in its entirety and by substituting in place thereof the following:

"7.5.5 CALCULATION OF STORY"

For the purposes of calculating the height of buildings in stories, a story shall not include: a cellar, a parking level, a crawl space or any other floor area not designed or intended for human occupancy provided its height is not more than four feet above the lower elevation as described in subparagraph 7.5.1.a. In the case of a sloping site, the height of such floor area above the lower elevation may be calculated using the procedure in subparagraph 7.5.3. Average Height Of Building. Where different parts of the space below the first floor would be classified as a crawl space, a cellar, or a basement, the number of stories shall be calculated as if the classification of space that comprises the greatest percentage of area covered the entire space below the first floor."

Planning Board Explanation A2 As a result of the amendment made from the floor during the 1998 Town Meeting, there was confusion about the height of three types of spaces under a building - a basement, a cellar and a crawl space.

The amendment stated that a crawl space may have a height of up to seven feet. That is an oxymoron for a crawl space. The definition proposed in this amendment states that a crawl space could not be more than four feet high and is not designed or intended for human occupancy or use.

A potential effect of any amendment to the text of the Zoning By-Law made from the floor of the Town Meeting is that it can have effects that require detailed analysis and are not immediately apparent during debate. "Crawl space" is referred to in the definition of Gross Floor Area but is excluded from the calculation of Gross Floor Area and is excluded from the calculation of the number of "stories" in a building.

One result of the amendment from the floor was to permit taller buildings. The reason is that, by definition, a cellar and a crawl space are not included in the determination of the number of stories. In the single family zoning districts the maximum number of stories is 2à. The new definition of crawl spaces means that the calculation of the number of stories could start at 6 or 7 feet above ground level and be measured 2à times above that level. There have been a few cases where builders have taken advantage of the new regulations to make buildings taller by treating the lowest level of the building as a crawl space.

Another result is that a commercial building could gain more floor space. Crawl spaces are excluded from the calculation of both Gross Floor Area and Net Floor Area and, in turn, Floor Area Ratio. Under the current definition a crawl space could be up to seven feet high and could be a usable space while still being exempt from the Floor Area Ratio calculation.

Yet another result is that the exclusion of crawl space from Gross Floor Area also effects the maximum allowable development in a cluster subdivision. Gross Floor Area is one of the five impact measures used in determining the maximum allowable development in a cluster subdivision.

If this amendment is adopted the classification of spaces below the first floor will be:

1. Basement: a space that is partly below and partly above the level of the adjoining ground that has at least one-half of its floor-to-ceiling height above the average level of the adjoining ground. A basement may be high enough out of the ground and may be considered "habitable" if it has enough windows of the requisite size (as defined by the State Building Code). People are familiar with the idea of a walk-out basement in which part of the basement is at ground level and part is below the level of adjoining ground. A basement is included in the calculation of the number of stories. [The treatment of basements is unchanged by the proposed amendment.]
2. Cellar : a space in a building that is more below ground than above because it has more than one-half of its floor-to-ceiling height below the average level of the adjoining ground. A cellar will not have enough wall space for windows of the requisite size to be "habitable". A cellar is excluded from the calculation of the number of stories. A cellar is included in the calculation of gross floor area, net floor area and floor area ratio.
3. Crawl space : a space below a building that provides access to utilities and the underside of the floor above it. A crawl space may not be more than four feet high. A crawl space is not included in the calculation of the number of stories or in the calculation of gross floor area, net floor area and floor area ratio. With a maximum height of four feet, it is not considered usable.

The proposed definition also removes any idea that a crawl space is similar to a basement or a cellar. It is a space used occasionally for access, not a space used on a regular basis. A basement may have large enough windows and enough of them to meet code requirements for a sleeping room. A cellar would not have large enough windows to qualify as a sleeping room. Both a basement and a cellar have a variety of uses, other than sleeping, such as recreation, storage, laundry, home office or entertainment and the like.

Another area of potential confusion is the height of a cellar. Last year's amendment proposed that cellars have a height of seven feet or greater. That was intended to be the standard for new cellars. There are numerous existing cellars in Lexington that do not meet that standard. This proposed amendment does not state a height standard for cellars so that both existing and proposed cellars are covered by the By-Law. If a space has a height of greater than seven feet, it would be a basement, or it could be a cellar depending on the ground level outside. If it has a height of four feet or less it will be a crawl space. Spaces with a height between four feet and seven feet would be classified as a cellar. A newly created cellar is also subject to the height requirements of the State Building Code.

Amendment A-3 In Section 2, Definitions, by deleting the definitions, TEMPORARY STRUCTURE and TEMPORARY USE, and by adding a new subsection 3.1.5 as follows:

"3.1.5. PERMITS FOR TEMPORARY USES

3.1.5.1. TEMPORARY USE

A building permit or certificate of occupancy may be granted for a temporary use where authorized by this By-Law . A special permit for a temporary use may be granted by the Special Permit Granting Authority or a permit for a temporary use may be issued by the Zoning Officer for a specific period of time that is consistent with the needs of the proposed use. No temporary use is permitted without a written permit for a time period prescribed by the SPGA or the Zoning Officer or as set forth in this By-Law.

3.1.5.2 TERMINOLOGY - TEMPORARY

The term temporary use in this context shall mean use, operation or occupancy of a parcel of land, building or structure, off-street parking, a sign, or outdoor lighting where the intent and the nature of the installation is not permanent and it will be removed or discontinued after the temporary use. A temporary use may be recurrent provided it is for a time period of not more than one month and the time between the issuance of permits for a recurrent temporary use is at least two months.

3.1.5.3 TIME PERIOD FOR A TEMPORARY USE

The time period for which a permit for a temporary use is issued may vary depending on the needs of the proposed use. The maximum time period for uses permitted by right as provided elsewhere in this By-Law shall be two years. The maximum time period for which the Zoning Officer may issue a permit for a temporary use shall be three months. The maximum time period for which the Board of Appeals may grant a special permit for a temporary use shall be two years.

The Board of Appeals or the Zoning Officer may disapprove the issuance of a permit for a temporary use if either the Board or the Zoning Officer determines that a permit for such use:

1. has been issued previously for long periods of time,
2. the use is recurrent for long periods of time,
3. would have the effect of allowing a use that would not otherwise be permitted by Table 1, Permitted Uses, or
4. is inconsistent with the purpose of the zoning district in which it is located, as described in paragraph 1.2.3., or with other specific purposes or objectives of zoning, as set forth in this By-Law.

Article 6, Technical Corrections (Cont.)

3.1.5.4 EXTENSION OF TIME PERIOD FOR A TEMPORARY USE

The Board of Appeals may grant a special permit for a temporary use to be extended beyond the maximum time period specified above or elsewhere in this By-Law provided:

1. only one such extension may be granted,
2. the period of the extension is not more than one additional year,
3. the Board of Appeals determines that granting the extension:

1. does not allow a use that would not otherwise be permitted by Table 1, Permitted Uses, and
2. is consistent with the purpose of the zoning district in which it is located, as described in paragraph 1.2.3., or with other specific purposes or objectives of zoning, as set forth in this By-law, and

1. there is no relaxation during the period of the extension of the dimensional and other standards referred to in subparagraph 3.1.5.5.

A permit for temporary uses that are permitted by right, as provided elsewhere in this By-Law, may be extended but only upon the granting of a special permit by the Board of Appeals.

3.1.5.5. RELAXATION OF DIMENSIONAL AND OTHER STANDARDS

A permit for a temporary use, whether granted by the Zoning Officer or the SPGA, may authorize a temporary relaxation of the dimensional standards set forth in Table 2, Schedule of Dimensional Controls, where it can be demonstrated it is not feasible or practicable to comply with those standards. In the case where the installation of a temporary dwelling (see Table 1, line 1.17) or a temporary building incidental to the construction or reconstruction of a building (see Table 1, lines 5.21 and 16.12) would result in a greater floor area ratio or a percentage of site coverage greater than authorized by Table 2, the amount of floor space occupied shall not exceed the maximum floor area ratio for the district.

A temporary use may not be required to comply with the standards in Section 10 for Landscaping, Transition and Screening or in Section 11, Off-Street Parking and Loading.

Nothing in this subsection shall reduce the authority of the Board of Appeals to attach conditions and limitations, as described in paragraph 3.3.3., to its grant of a special permit.

3.1.5.6. APPEAL OF PERMIT FOR TEMPORARY USE GRANTED BY ZONING OFFICER

An interested person who believes the permit for temporary use issued by the Zoning Officer is inconsistent with the purposes of the zoning district in which it is located, as described in subparagraph 1.2.3., or with other specific purposes or objectives of zoning, as set forth in this By-Law, may appeal the action of the Zoning Officer following the procedures set forth in subsection 3.2 of this By-Law."

In 4.2 TABLE 1 PERMITTED USES AND DEVELOPMENT STANDARDS:

1. In line 1.17 by deleting the words "., to be erected for a period of not more than one year. .." and "...; may be located in a required yard setback if not otherwise feasible to locate on the lot .." and by adding the words "(See subsection 3.1.5)" at the end so that the line, as amended, will read:

   "Temporary dwelling, which may include a mobile home to replace a permanent dwelling which has been damaged or destroyed by fire, natural catastrophe, or by demolition or substantial reconstruction. (See subsection 3.1.5)"

2. In line 5.21 by deleting the words "..for a period not to exceed two years provided a non-renewable permit is granted by the building commissioner. .." and by adding the words "(See subsection 3.1.5)" at the end: so that the line, as amended, will read:

   "Temporary building(s) or trailer(s) incidental to the construction of a building or land development. (See subsection 3.1.5)"

3. In line 5.22 by deleting the words "..and the time period of the special permit is not greater than two years. .." and by adding the words "(See subsection 3.1.5)" at the end, so that the line, as amended, will read:

   "Temporary structures and uses not otherwise permitted in the district provided the SPGA makes a finding that the proposed structure or use is compatible with the neighborhood. (See subsection 3.1.5)"

4. In line 16.12 by deleting the words "..development for a period not to exceed two years provided a non-renewable permit is granted by the building commissioner.." and by adding the words "(See subsection 3.1.5)" at the end so that the line, as amended, will read:

"Temporary building(s) or trailer(s) incidental to the construction of a building or land. (See subsection 3.1.5)"

e. In line 17.1 by adding the words "(See subsection 3.1.5)" at the end.

Planning Board Explanation A-3 The Zoning Officer recommended that the issue of "temporary" uses be addressed.

There are nearly 20 places in the Zoning By-Law that refer to "temporary" uses. There are several instances of inconsistency and conflict. In the Definitions section, both temporary uses and structures are defined as not exceeding a one year period, yet Section 4 uses a two year period to define temporary. In line 1.17 of Table 1 that deals with permitted uses, a temporary dwelling "may be located in a required yard setback if not otherwise feasible to locate on the lot". However in lines 5.12 and 16.12, which also deal with temporary buildings, there is no comparable provision about yard setbacks.

This amendment seeks to provide a consistent and coherent approach to the term temporary.

This amendment also seeks to provide an administrative procedure for short term temporary uses. The Zoning Officer points out there are regular requests for the temporary use of a property for signs and the like. Many of these are for just a few days. To the extent that the By-Law addresses these types of requests at all, the applicant may be required to apply for a special permit before the Board of Appeals. In order to comply with statutory requirements for advertising the hearing, filing a decision and the statutorily specified appeal period, a minimum of two months is required before a permit could be issued. That is usually much longer than the time period for which the permit is needed.

There needs to be a simple administrative procedure whereby permits can be issued promptly and for short terms so that the temporary use complies with the By-Law. The lack of a procedure now provides little alternative except non-compliance.

The proposed amendment allows this type of request to be handled by the Zoning Officer for permits up to three months. It also provides a mechanism for appeal of the Zoning Officer's action to the Board of Appeals.

The Planning Board received excellent suggestions from the Town Meeting members present at the public hearing and those have been incorporated in this final draft of the amendment. They include:

• Stating a maximum time period (three months) for the temporary permits issued by the Zoning Officer.
• Limiting extensions beyond the maximum time period to one, for one year only and requiring that normal dimensional controls, screening, landscaping and parking requirements be met during the extended time.
• Tightening the limits on recurrent applications that become so recurrent as to be nearly permanent.
• Restating the existing authority of the Board of Appeals to add conditions and limitations on the approval of a special permit for a temporary use.

Article 6, Technical Corrections (Cont.)

Amendment A4 in Section 7.4.5.2.b at the end of the paragraph by deleting:

":

1. the conveyance of the fee, or other interest, in land within the proposed subdivision to the Town for use for conservation, recreation, or other public purpose;
2. the provision of improvements within the right-of-way of the street, that provides the frontage, or of improvements to public facilities near the proposed subdivision. Such improvements may include, but are not limited to, the initial construction, expansion or rehabilitation of the type of improvements and services described in Section 3.6, Required Improvements, of the Development Regulations and the maintenance or restoration of buildings and places of historic or architectural significance;
3. limitations on the use or design of buildings or the site as described in Section 2.4.3, Documents, Exhibits, of the Development Regulations;
4. in lieu of the provision of improvements within or near the right-of-way, or the transfer of interests in land within the proposed subdivision, the Planning Board may consider a financial contribution to a Town fund for any of the purposes identified in 1) through 3) above."

and inserting in place thereof the following: "the public benefits listed in subsection 9.6.4.1 subparagraphs 1) - 3), and subparagraphs a. through l." so that the sentence, as amended will read "In determining whether a proposal by the applicant may benefit either the adjacent neighborhood or the town generally, the Planning Board may consider the public benefits listed in subsection 9.6.4.1 subparagraphs 1) - 3), and subparagraphs a. through l."

Planning Board Explanation A4 Section 7.4.5, Frontage Reduction, Lots in Small Subdivision, that applies only to two lot subdivisions, was adopted in 1995 the year before the complete revision of Section 9, Residential Development. Section 9.6.4.1 provides a broader and more complete list of qualifying public benefits that the Planning Board considers when reviewing certain types of cluster subdivisions that include three or more lots. The Planning Board believes that it should be able to consider the same broader list of public benefits when it reviews applications for Special Permits for two lot subdivisions under section 7.4.5.

Amendment A5 In Section 7, Dimensional Controls, by deleting section 7.6, Basement Floor Elevations, and by inserting in place thereof "Section 7.6 (Reserved)".

Planning Board Explanation A5 This section has been in the Zoning By-Law for more than 30 years. It specifies a minimum four foot distance that the basement floor or slab of a dwelling must be above the water table. Since its appearance in the Zoning By-Law years ago, a State Building Code (780 CMR) code was adopted that replaces the Building Codes of individual towns. This matter is more a building construction issue than a zoning issue. The State Building Code provides for appropriate construction techniques when the proximity of the water table is a design consideration.

Further, because it is a State regulation, the requirements in the Massachusetts State Building Code override this type of provision that deals with structural requirements in a local zoning by-law. The deletion of this language in the Zoning By-Law will eliminate the conflict between the two regulations.

Amendment A6 in section 14.2. in the first paragraph by inserting "14.2.1 APPLICABILITY" at the beginning of the paragraph and by deleting the word "or" at the end of subparagraph a, by redesignating the existing paragraph "b" to be "c" and by inserting a new subparagraph b. as follows:

"b. townhouses, three-family and four-family dwellings (see Definitions); or"

Planning Board Explanation A6 There was debate at the 1998 Annual Town Meeting on whether the provisions in the Planning Board's proposal for a new Section 14, Outdoor Lighting, were intended to apply to uses in multi-family zoning districts. The intent of Article 40 presented to the 1998 Town Meeting was to regulate outdoor lighting in apartment buildings such as multi-story buildings. By the definitions in the Zoning By-Law "apartment buildings" means "multi-family dwelling" - a building with five or more dwelling units. "Multi-family dwellings" are typically taller, multi-story buildings with a greater likelihood of "light spill".

Subparagraph a states that one- and two-family dwellings are exempt from the requirements for outdoor lighting. That meant that other types of residential buildings with three and four dwellings units were not exempted. Lexington has several RD, Planned Residential, developments, such as Fiske Common, Potter Pond, Drummer Boy and the like that are made up principally of townhouses which are defined as three-family and four-family dwellings. Nearly all of those buildings are low scaled, have direct access to ground level and are more comparable to one- and two- family dwellings that are exempt than they are to multi-story buildings

Not providing for the residential buildings that have three or four dwelling units was an oversight. The Planning Board said in 1998 that it would offer an amendment to the 1999 Annual Town Meeting to clarify the language to state that the residential buildings that have three or four dwelling units are exempt from the Outdoor Lighting requirements.

This amendment also adds the number 14.2.1 and the word APPLICABILITY which was inadvertently omitted from the motion approved under Article 40 of the 1998 Town Meeting.

Amendment A7 In Subsection 15.3 Location Of Facilities as approved in the motion made under Article 32 Wireless Communication Facilities of the 1997 Annual Town Meeting, by striking out subparagraphs 15.3.3.3 Municipally Owned Land in Residential Districts and 15.3.3.4 Municipally Owned Land in Commercial Districts and by renumbering subparagraph 15.3.3.5 Uses In Commercial Districts and all cross references thereto to be subparagraph 15.3.3.3.

Planning Board Explanation A7 In the review of all amendments to town bylaws that the Attorney General conducts each year, the two subparagraphs dealing with municipally owned land were invalidated. This amendment simply clears up the official record and straightens out the numbering sequence of subsection 15.3. to adjust for gaps in the numbering sequence that appear in the copies of the Zoning By-Law printed after the Attorney General's ruling.

Article 6, Technical Corrections (Cont.)

Amendment A8

(1) In Section 15.2.2, Terminology, in the definition of "TOWER", by adding commas after "receiving" and after "relaying";

(2) by adding a new sentence at the end of the definition of "TOWER" as follows:

"Components of the wireless communication facility used only to attach or support other elements of that facility are excluded provided such components are relatively less substantial than those other elements and do not materially affect a dimension of that facility.";

1. In Section 15.4.2, Setbacks, in the second sentence, by inserting a new third sentence as follows:

"However, if the antenna is being attached to an existing tower whose setback is already approved-either by right, by special permit or by variance-and, if the SPGA determines that the addition of the antenna does not materially alter the basis of that prior approval, then no new, independent, setback requirement shall be created by the addition of the antenna ."

Planning Board Explanation A8 These amendments were requested by the Board of Selectmen's Cable Television and Communications Advisory Committee which has assisted the Board of Appeals in drafting regulations for the special permits required by Section 15, Wireless Communication Facilities and is required by Section 15.6.3. to review all applications for special permits.

1. The addition of the commas is to improve readability.
2. The current definition of a "TOWER" in 15.2.2, TERMINOLOGY is "A structure or framework, or monopole, that is designed to support wireless communication transmitting, receiving and/or relaying antennas and/or equipment." Through the unqualified inclusion of "structure or framework," that also includes whatever is used to attach "support" facility elements e.g., antennas and/or equipment, to an existing "tower" as being, in and of itself, a "tower." The definition of "structure" in Section 2, Definitions, does not preclude that result; and as "framework" is not defined in the By-Law, its conventional definition also does not preclude that result.

(3) The effect of the current wording is that it is likely that every wireless communication facility will encompass a "new tower" (albeit not necessarily a "freestanding tower" as described in Section 15.4.5, New Towers). That, in turn, brings to bear an independent setback requirement under Section 15.4.2 Setbacks where "Any new tower shall be set back at least one (1) times the height of the tower plus ten feet from each lot line of the site on which the tower is located." Furthermore, that same Section prescribes another independent setback requirement that "Any non-concealed antenna shall be set back at least one (1) time the height of the antenna, as measured from the ground level, from each lot line of the site on which the antenna is located."

Carried to an extreme a simple bracket attaching a proposed wireless communication facility to an existing tower or antenna would constitute a "new tower" and trigger a new set of setback requirements.

PUBLIC HEARING : A duly advertised public hearing was held on February 10, 1999. For Amendment A-2 the Board answered questions and explained the interpretation of various types of space below the first floor of a building.

On Amendment A-3 dealing with temporary uses, Dawn McKenna, Precinct 9, noted that the draft did not deal effectively with extensions beyond the two years. She expressed concerns about recurrent, repetitive extensions and the need for protection of adjoining properties through landscaping and screening. Nyles Barnert, Precinct 4, suggested a maximum time period for use permits issued by the Zoning Officer. Robert Whitman, Precinct 8, suggested that the existing authority of the Board of Appeals to add conditions and limitations on the approval of a special permit for a temporary use be restated so that it does not appear that conditions could not be imposed.

On Amendment A-6, Betsy Whitman, Precinct 8, asked whether the exemption on one and two family houses from regulation of outdoor lighting would be removed. Mr. Davies responded that the Planning Board would like to do that in time, but that is not part of this amendment.

ARTICLE 7 ZONING BY-LAW, PROCEDURES, SECTION 8, SPECIAL ZONING DISTRICTS

RECOMMENDATION:

The Planning Board recommends that Article 7 be APPROVED.

BACKGROUND

Section 8, Special Zoning Districts, of the Zoning By-Law contains the procedures for adopting planned development districts. There are two types of planned development districts - the RD, Planned Residential district for multi-family housing, and CD, Planned Commercial district for commercial development.

In the Planned Development rezoning procedure, a petitioner presents a Preliminary Site Development and Use Plan consisting of a site plan and other conditions to the Town Meeting to be approved. The first PSDUP is due to the Planning Board and the Town Clerk in the second week in January. It is that Plan on which the Planning Board holds the public hearing required by State law.

The planned development rezoning procedure is a two step process. A developer presents a Preliminary Site Development and Use Plan (PSDUP) to the Town Meeting which decides whether or not to amend the Zoning Map to allow the proposal. If the land is rezoned a developer then presents a definitive site development and use plan to the Special Permit Granting Authority (SPGA) - now the Board of Appeals. The Definitive Site Development and Use Plan is a more detailed version of the proposal containing construction drawings. The two step process is attractive to developers because it does not require the expense of detailed surveys and construction plans until the basic zoning decision is made by the Town Meeting.

This article has two parts that are essentially unrelated. This report is organized so that the two proposed amendments (identified as Amendment A-#) are presented separately followed by the explanation (identified by the prefix Planning Board Explanation A-#). The explanations, which are usually a separate part of the Planning Board's report on proposed amendments to the Zoning By-Law, are interspersed in the motion with the proposed amendments for easier reference.

PROPOSED AMENDMENTS

Note : Amendment A-1 as it appeared in the draft dated January 15, 1999 and discussed at the public hearing was deleted by a vote of the Planing Board on March 8, 1999. The TMMA Warrant Information Report also refers to the amendment numbers as in the January 15 draft. The amendments presented below have been renumbered.

M O T I O N

That the Zoning By-Law be amended in various sections, as follows:

Amendment A-1 (This was previously Article A-2 in the January 15 draft. See the note above.)

In subsection 8.4 Rezoning Provisions Applicable To Both CD And RD Districts, by adding a new subparagraph 8.4.4. as follows:

"8.4.4 AMENDMENTS TO THE PSDUP APPROVED BY AN EARLIER TOWN MEETINGThe preliminary site development and use plan for an existing planned development district that was approved by an earlier Town Meeting may be amended. The proposed amendments shall be presented and acted upon in the same manner set forth in this section for an original petition."

Planning Board Explanation A-1 This amendment clarifies the procedure for what is inevitable - the need to amend a preliminary site development and use plan (PSDUP) for an existing planned development district that was approved by an earlier Town Meeting. Lexington has been using the planned development district procedure since 1975 and now has 17 separate zoning districts - 9 CD commercial and 8 RD multi-family residential.

The PSDUP voted by the Town Meeting is part of the text of the Zoning Bylaw. It is a "mini Zoning Bylaw" that applies in only one place in town. It might be thought of as a separate chapter of the Zoning Bylaw. [Because there are now 17 planned development districts in town and their provisions apply to only one zoning district, they are not printed with the main Bylaw.]

Amendments to the PSDUP must be adopted by the same process as an amendment to the text of the Zoning By-Law. That requires a petition to be included in the Warrant, a public hearing and a motion to amend the specific wording or other provisions of the PSDUP approved by an earlier Town Meeting.

Stating this procedure in subparagraph 8.4.4. should remove uncertainty that might be in any one's mind about what the steps to amend a previously approved PSDUP might be.

Article 7, Procedures, Section 8, Special Zoning Districts (Cont.)

Amendment A-2 ( This was previously Article A-3 in the January 15 draft. See the note on page 15)

In subparagraph 8.5.2 Special Permit Provisions, by deleting the existing subparagraph "d" and by inserting in place thereof:

"d. The SPGA may, in its discretion, permit revisions from the preliminary site development and use plan approved by Town Meeting provided they do not conflict with the provisions of the text of such plan. Such revisions shall generally be limited to the location of the building(s) and changes in the site plan."

In subparagraph 8.5.4 Revision Of Special Permit, by striking out the existing paragraph and by inserting in place thereof the following:

"Subsequent to an SPS granted by the SPGA, revisions may be made from time to time in accordance with applicable laws, By-Laws, and regulations, but the commercial or residential development approved under such SPS shall otherwise be in accordance with the preliminary site development and use plan approved by the Town Meeting."

Planning Board Explanation A-2 The amendment to subparagraph "d" revises some language that has been in the procedures dealing with planned development districts for a long time and has caused confusion for years.

The planned development district procedure is a two step process - a preliminary site development and use plan (PSDUP) is approved by the Town Meeting. Subsequently a definitive site development and use plan is submitted to the Board of Appeals for a special permit with site plan review. The "definitive" plan is a more detailed version of what was presented to the Town Meeting and may be based on more detailed site surveys such as soil conditions, topography, information on wetlands and drainage. It assumes changes in site design, not in the basic limitations approved by Town Meeting, such as density, amount of floor space, permitted uses and the like.

The confusion has arisen because of slight differences between the basic limitations approved by Town Meeting, such as density, amount of floor space, which are included in the text of the PSDUP, and the plans/drawings (the site plan) illustrating the proposal. It is assumed there will be refinements in the site plans, based on better site survey information. However some developers have seen an opportunity to increase the basic limitations and to seek a more intensive development.

For example, the language in the existing subparagraph d that says:

"The SPGA may, in its discretion, permit minor deviations from the plan approved by Town Meeting provided ... they do not allow the building floor area to exceed that shown on the approved plan by more than 10% in the RD district."

almost invites confusion. Some Town Meeting Members assume that if the PSDUP states a maximum floor area, there is a kind of automatic entitlement for a development bonus and the developer will seek a 10 percent increase. They have argued that the Town Meeting should assume that a development will be 10 percent larger than what is presented to it.

The new language in this amendment allows the SPGA to grant definitive plan revisions when it renders decisions on the special permit with site plan review, but not to any level that would exceed that of the PSDUP approved by Town Meeting. In this way, the SPGA's discretionary authority is affirmed, while the ambiguous provisions are eliminated and the quantitative limits set by the Town meeting vote are upheld.

A similar confusion has arisen over requests for revisions to the special permit with site plan review after the Board of Appeals has approved it. These are likely to occur several years later. Again some developers have seen an opportunity to increase the basic limitations and to seek a more intensive development. One technique is to request approval of a "minor" revision - a term that is not defined in the Zoning By-Law. The difficulty in guaranteeing compliance with the PSDUP is that a minor revision does not require a public hearing or notice to adjacent property owners. Proposals have been submitted that are not "minor" or are not even revisions; they are violations of the basic limitations in the PSDUP approved by the Town Meeting.

The Planning Board has long represented to the Town Meeting that a planned development district is a WYSIWYG - What You See Is What You Get. That assurance can be subverted if, through applications for various types of revisions, the development is increased in size and scope beyond what the Town Meeting thought it approved.

The proposed amendments to subparagraph d and to subparagraph 8.5.4. place greater emphasis on compliance with the basic limitations approved by Town Meeting, which are included in the text of the PSDUP. Revisions will not be allowed to exceed those basic limitations.

PUBLIC HEARING

A duly advertised public hearing was held on February 10, 1999.

Much of the comment at the hearing centered on amendment A-1 of the January 15 draft which sought to allow for revisions to the PSDUP after an unfavorable vote of the Town Meeting has been taken so that those revisions could be presented for reconsideration. The Planning Board has voted to delete that proposed amendment from these proposed amendments.

Paul Turner asked about revisions to the PSDUP referred to in part three of the amendment. Mr. Bowyer explained that the text part of the PSDUP is what controls, not the drawings. Frank Sandy, Precinct 6, commented that if the intent of paragraph b of paragraph 8.5.4. [ of the January 15 draft ] is to make sure that revisions do not violate the provisions of what Town Meeting approved, a simple method would be to strike out paragraph b and remove that possibility. The amendments now proposed have made that deletion.

Mr. Whitman commented that language already in the By-Law that says a revision must comply with an earlier special permit except as modified by the current special permit is circular and should be removed.

ARTICLE 8 AUTOMATIC TELLER MACHINES

PLANNING BOARD RECOMMENDATION

The Board recommends that Article 8 be APPROVED.

Based upon the public hearing held on February 10, 1999, with the public testimony offered and the discussion among Planning Board members, the proposed amendment seems to engender little concern, is covered by protective conditions and seems to be a desirable change.

OBJECTIVES

The proposed zoning amendment submitted by Ms. Deirdre W. Niemann and nine or more registered voters, removes restrictions on the use of Automatic Teller Machines (ATMs) and allows them by special permit in CN (Neighborhood Commercial) districts, where they are now prohibited. ATMs are now permitted by right in every other Commercial zoning district. If this amendment is approved, the effect is that any type of ATM would be either conditionally or fully permitted in every Commercial zoning district

At present in Section 4.2, the Table of Permitted Uses, Automated Teller Machines are addressed in Line 7.15a. in the following manner:

1. the type of ATM is restricted to "External (ATMs);" nowhere else in the By-Law is this term further defined;
2. the zoning location of ATMs makes them fully permitted in every existing commercial, office and manufacturing district, with the exception of CN. The term "external" in Line 7.15a. is not further explained and the cautious limit of interpretation is that this term implies an outdoor location. Additional definition as to how an ATM functions is not supplied.

The proposed amendment would remove both the type and location restrictions summarized in the preceding paragraph. Based upon the presumptions that ATMs are a widely used and valued service, that now come in different functional types (not just "external') there is no reason to prohibit them in CN districts. Specifically, the amendment strikes the word external from ATM and substitutes the acronym "SP" (for Special Permit) under the CN column, where there is now an "N" for not permitted.

PUBLIC HEARING:

Robert Warshawer, 11 Tower Road, spoke in favor of the article, saying that having ATM machines in neighborhoods would be an important convenience and it would reduce traffic in the central business district. Questions had to do with whether drive through ATMs would be permitted; if the machines' appearance would be regulated; if hours of operation would be limited; and what the Police have to say about the proposed amendment.

REASONS FOR RECOMMENDATION

There are several reasons for the favorable recommendation:

1. There was minimal concern or opposition expressed at the public hearing on February 10.
2. The 10 CN districts existing in Lexington are intended to--and do-- accommodate small uses such as medical and dental offices; small general offices, beauty and barber shops, dry cleaners, tailors and dressmakers, real estate sales, convenience and food stores, small service and repair establishments, and similar uses. It is difficult to argue that, in general, ATMs are of higher impact than these uses already allowed in CN districts.
3. ATMs are proposed to be allowed in CN not as a matter of right requiring only a building permit, but through a Special Permit, which includes a public hearing preceded by public notice, as well as the opportunity for the Zoning Board of Appeals, who are the special permit granting authority, to impose mitigating or special conditions specific to the site.
4. There is an added layer of protection offered by Section 4.2, Table of Permitted Uses, Development Standards, wherein a number of measures apply, such as: the requirement that commercial uses with more than 10,000 square feet of gross floor area be subject in CN and all commercial districts to the Special Permit with Site Plan Review process; or: prohibition of any outdoor storage of materials in CN districts; and other items that impose particular restrictions.
5. The "External" restriction seems arbitrary, given the fact that ATMs vary in their functional operations. They may be indoor or outdoor, drive-through or walk-up, accessory to a principal use or free-standing as the sole land use. Attempting to refine or restrict this mix of types would appear to be unnecessary. Minor increases in site impact from a given new facility can be readily mitigated by the special permit process..
6. The Police Chief submitted a public safety statement to the Board on February 24 , which indicated that ATMs pose little net risk to a neighborhood commercial district, beyond the uses that are there already, and affirmed that ATMs appeared to have little crime problem in Lexington.

MOTION

This is a citizens' petition and the Planning Board is not responsible for the motion. The Board believes the motion will be essentially as it appears in the Warrant.

ARTICLE 10 ZONING BY-LAW, AMENDMENT TO CD #8,16 HAYDEN AVENUE

RECOMMENDATION

The Planning Board recommends that the proposed amendment be APPROVED .

BACKGROUND

The proponents are seeking to construct a ground level modification within the existing medical building at 16 Hayden Avenue, for the purpose of housing a unit for Magnetic Resonance Imaging (MRI) services. This new facility, in effect, replaces the existing utility room of 750 square feet with the MRI unit of 1520 SF of usable floor area, according to the newly submitted drawings. Due to the fact that the building has no basement and that the MRI must be built at grade and free of encompassing structural steel (according to the developers), the proposed location for the MRI unit is the only practical one for the new facility. Effectively, this proposal is an interior modification and does not alter the footprint of the structure.

In building the MRI unit, five of the 144 parking spaces provided are removed. Approximately 1/3 of the parking spaces for 16 Hayden Ave. is provided within the building at ground level; the remainder on the existing 2-level parking deck. In addition, a surface area of 12 to 13 potential future parking spaces was reserved in the 1997 approval for later use, if needed.

It should also be noted that in September, 1998, the Lahey Clinic of Burlington signed a lease with Lexington Medical Associates for 100% use of the building. However, Lexington Medical Associates occupies a substantial part of the building, under this arrangement; LMA is an affiliate of Lahey. This could represent a shift to single-tenant occupancy from the original concept of multi-tenant occupancy by local physicians.

The proponents satisfactorily addressed questions in regard to floor area calculations and floor area ratio

DISCUSSION OF ISSUES: FLOOR AREA, RECONFIGURED SPACE AND F.A.R.

The Planning Board recently requested Lawrence Smith of Cranberry Hill Associates to provide a full clarification of the issues of gross floor area, net floor area calculations, floor area ratio (FAR), subsequent changes to internal space configuration (common and non-usable areas), and resultant changes to FAR. These calculations have been at issue from the beginning of this case in January of 1997, due to the subsequent changing of the internal space layout.

The floor-to-area ratio is now a commonly used mechanism in zoning laws and is applied to commercial uses throughout the Lexington By-Law. It is a control of the intensity of the use of a site, in that it relates the floor area of any building, regardless of how many stories it has, to the (dry, developable) land area of the lot. Thus it operates in two dimensions or planes, vertical and horizontal, in order to provide a precise measure of how intensively development exists or is proposed on a parcel of land). The Lexington By-Law makes a sharp distinction in FAR calculations between the GROSS and NET floor area of any building. Net Floor Area can be thought of the "usable" area--those parts of the building actively occupied and used by tenants/owners and their customers/patients in the exchange of goods and services. Net Floor Area does not include the "non-usable" areas, such as building system spaces, outer bearing walls, parking garages, elevator shafts and stairways. FAR is defined as the ratio of net or usable floor area to developable lot area. The latter is what remains of a site after undevelopable segments, such as wetlands, are subtracted. The accurate measurement of net floor area is therefore critical to establishing a reliable FAR for any site.

The Planning Board's concern was that although the proposed MRI unit adds more than 1500 SF of usable area to the building--a significant increase in a building with a net floor area in the 26,000 SF range--the overall figure for net (usable) area in the building for the proposed 1999 version, with the MRI unit, decreased from the building presented to the 1997 Town Meeting. This made no apparent sense, unless there were clear explanations as to the measurement of usable and non-usable interior area on floors one and two and the reasons why conditions changed.

The significance of these differences arose from the fact that the 1997 CD rezoning decision set limits on a number of dimensional and site intensity controls, including: 0.30 FAR; 26,275 SF net floor area; and 38% building site coverage. (The latter is item is relevant but not directly applicable to the present amendment because the building footprint is not changing). The development on this property--existing and proposed--is of sufficient intensity that the maximum limits noted in the preceding sentence are pushed to the limit. The proponents needed to make their calculations clearer in terms of the changes in net and gross floor area of this medical building. Architectural detail and annotation for doing so was insufficient in the new floor plans, particularly with regard to common patient areas on the second floor and relocation of utility systems on the ground floor.

The proponents submitted revised data, in response to the Planning Board's request, on the evening of their public hearing, February 24, 1999. That shows that the FAR is at .294, based upon a net (usable) floor area of 25,718 SF.

THE PARKING ISSUE

The proposed MRI unit removes five spaces from the building's parking garage, reducing the present site capacity from 144, not including the unbuilt reserve parking area of 12 to 13 spaces, to 139 spaces. (The petition appears to incorrectly read 140 spaces). In its 1997 deliberations on the rezoning proposal, the Planning Board and staff expressed concern that the parking provided--up to 157 spaces--would be excessive.

There was also analysis and discussion in 1997 of the proponent's decision to construct the parking deck, in terms of visual intrusion, minimal front setback and the expensive land economics that its building might generate (such as having to increase the size of the office building). While the deck was not viewed favorably, the question of off-street parking quantity was and is a separate issue and is therefore moot in terms of the present amendment.

For the preceding reasons, the reduction of five spaces inside the building's parking does not seem to be a significant issue.

TRAFFIC ISSUES

While the MRI unit will add some automobile trips every business day, the nature of the facility precludes use by multiple patients at one time and the trips will be evenly distributed throughout the day and/or evening. This greater distribution of some trips throughout the day and evening should not be a factor because of the physical setting of the office uses along Route Two. This is not a location where residences are situated in the immediate vicinity. The percentage of medical office use also decreased slightly from what was approved in 1997. Moreover, the proponents committed in 1997 to a program of transportation demand management and traffic mitigation.

For all of these reasons, traffic impact would not seem to be a relevant issue in the present amendment.

PUBLIC HEARING

A duly advertised public hearing was held on February 24, 1999 at which the following issues were raised:

• Questions were asked in regard to magnetic radiation from the MRI and any resultant safety concerns. Physicians whose offices are located at 16 Hayden Ave. replied that the facility is fully and heavily shielded and that there are specifications in the construction of the facility and its operating protocol that guarantee safety.
• The proponents were asked if the reduced parking supply after the five spaces were subtracted was still above the minimum required by zoning. They replied that the quantity of 144 spaces was still well above all interpretations of the minimum parking requirement.
• Questions were asked in regard to traffic generation from the MRI. The proponents replied that MRI use is self-limiting and not contributory to peak hour load due to the low level of patient use and its evenly distributed use pattern throughout the day.
• Lack of clarity in the modified floor area (from the 1997 Preliminary Site Development and Use Plan and floor area ratio was discussed and the proponents attempted at the hearing to provide the detail needed to resolve these issues.

MOTION

This is a property owner's petition and the Planning Board is not responsible for the motion. The petitioner will offer the motion.

ARTICLES 11, 12, 13 WIRELESS COMMUNICATION ANTENNAE SETBACKS

RECOMMENDATION

The Planning Board recommends that Articles 11, 12 and 13, all dealing with amendments to Section 15, Wireless Communications Facilities of the Zoning By-Law, be approved.

The three articles were submitted as a closely related set of amendments by a petition of ten or more citizens and are addressed in a unified manner in this report.

REASONS FOR RECOMMENDATION

While the Board unanimously empathizes with the citizens' concerns that brought them to propose these amendments, the Board feels that the articles, as presented, lack legal consistency and uniformity of approach and therefore cannot endorse them as they now stand. The votes by the Board not to approve the articles were unanimous, 5-0, except for that on Article 13, which was 4-1, Ms. Bridge-Denzak opposed. Specifically, the Board members find, except as noted, that:

1) Article 11 proposes to amend section 15.3.3.1 by prohibiting (concealed) wireless communications facilities in multi-family dwellings, as well as in structures on a lot with a multi-family dwelling, or a group care facility. There does not appear to be a compelling and clear reason why these particular uses and locations have been chosen for the prohibition of wireless facilities when compared to other uses and locations. Grounds for this restriction are not indicated in the proposed amendment.

1. Article 12 proposes to amend section 15.3.3.2 by prohibiting (concealed) wireless communications facilities in buildings or structures containing institutional, agricultural, natural resource or commercial uses in residential districts. The present By-Law defines any type of tower or antenna as a commercial use in a residential district. There does not appear to be a compelling or clear reason why these particular uses and locations have been chosen for the prohibition of wireless facilities. Grounds for this restriction are not indicated in the proposed amendment.
2. Article 13 proposes to amend section 15.4.2 by requiring that there be a minimum setback of 750 feet between a tower or wireless communications facility and any one of a designated group of institutional, educational, nursing home and day care uses indicated in the amendment. A setback of 500 feet from these uses is proposed for a Repeater, which is a small relay unit. There does not appear to be a specific basis for the designation of the 750 foot and 500 foot minimum setbacks.

   The presence or installation of an antenna could prevent a desired new institutional use, such as a school or religious institution or a day care center, from being established within these setbacks.

3. The Board further feels that designation of these setbacks and radii in all residential districts could, in certain instances, have the unintended effect of being more intrusive in the residential areas due to the facility having to be sited in a less appropriate location in order to comply with the required setback. In addition, the definition of setback in this context is imprecise and needs clarification in terms of measurement points.
4. Similarly, in regard to Article 13, there are insufficient grounds indicated in the proposed amendment to explain why the designated institutional, educational and child care uses warrant "sensitive receptor" status (a structure or object that is likely to be negatively impacted by the proposed antenna in question) requiring extra setback, when compared to any other uses within the community, such as persons in a single family residence or an office building.
5. In general, with all three articles, the Board believes that if it is implicit that the grounds for the proposed amendment are partly those of public health risk, as indicated by the proponents' testimony at the public hearing on February 10, 1999, then support of the proposed amendments is not yet possible due to the preemptive relief clauses of the Federal Telecommunications Act of 1996, which specifically precludes health as grounds for denial of a permit for a wireless communications facility.

The Planning Board, as mentioned, is strongly empathetic to the petitioners' desire to ensure the safest possible siting of wireless communications facilities. In their present form, however, the amendments are inconsistent and vague. The Board suggests that an approach which avoids targeting of specific uses and zoning districts and takes a more community-wide view would be worth exploring for a future zoning article.

PUBLIC HEARING

A duly advertised public hearing was held on February 10, 1999. A substantial majority of the audience was very much in favor of the proposed amendments, as evidenced by an informal poll Chairman Merrill conducted near the end of the hearing.

Among the key testimony were the following comments: George Eastman III explained the concept of precautionary principle as a way to approach the issue. He also said that the National Academy of Sciences has appointed an expert panel to look at the field and it warns against building a massive infrastructure despite uncertainty about health effects. He also cited examples of by-laws affecting antennae adopted by other municipalities.

Several people brought up the effect of antennae on property values and cited examples of adverse effects on the selling prices of homes. Antennae are perceived as health threats by many.

One person said he believes the Planning Board has a moral duty to support the articles.

Richard Canale, Precinct 3, said he thinks that some of these issues need to be addressed directly to the Federal Communications Commission. The petitioners need to look at who can address their concerns. Town Meeting might not be the appropriate body.

Questions had to do with what other towns have done to control antennae installations, and details about the provisions of the 1996 Telecommunications Act. David Kanter, Precinct 7, asked how the towns that passed antenna siting by-laws worded their articles.

Fire Chief John Quinlan, in a communication to the Planning Director, expressed concern that public safety communications systems that already exist in two of the schools in town could be adversely affected by the minimum setback amendments. His concern pertained to the possible loss of communications coverage in some locations in town.

ARTICLE 14 HOME RULE PETITION - MANSIONIZATION

This article has been inserted by the Board of Selectmen. At this writing (an early date necessary to meet printing deadlines for these reports to be available for the first session of Town Meeting), the Planning Board has not seen what motion will be presented to the Town Meeting under Article 14 and what form the Home Rule Petition will take.

The Board of Selectmen is seeking authority to file a Home Rule petition that would apply only to Lexington. The Planning Board understands that the Selectmen are seeking to accomplish essentially the same objectives as the proposed amendments to Chapter 40A, The Zoning Act, that the Planning Board asked Rep. Jay Kaufman to file. That bill, H1215, would amend the General Laws of the Commonwealth and would apply statewide.

In this report the Planning Board will provide general information about the mansionization issue and its proposed amendments contained in H1215. Others are more knowledgeable about the mechanics and tactics of a Home Rule petition than we are and should speak to them. The Planning Board speaks from a general understanding of the process.

The objective of both H1215, the Planning Board's proposed amendments to the General Laws, and the Home Rule petition is to remove barriers now in the State Zoning Act that prevent towns from using specific techniques to address the mansionization issue. If the Legislature enacts either, or both, a later Lexington Town Meeting will have to amend the Zoning By-Law before anything happens that deals with the mansionization issue.

In one sense, if the Legislature enacts either, or both, the real work of addressing the mansionization issue will only begin. Mansionization is a complex issue and the "problem", let alone possible "solutions", are perceived differently by different people. For more discussion of this point, see the Planning Board report, " Larger Houses in Existing Neighborhoods, " Chapter 3, Do Something! pages 11- 17 on the Town of Lexington Web Page at

http://www.lexingtonma.org/LexDir/towndocs/housing/report.htm .

Developing a set of zoning amendments for consideration of a later Town Meeting will require a process of discussion and consensus building on what aspects of the problem should be addressed, what specific controls will be introduced and what the potential effects on various properties might be. The specifics of what amendments might be offered are not known now and will need to be addressed.

The following is an explanation prepared by the Planning Director, of the specific amendments to Chapter 40A, The Zoning Act, in H1215.

"Mansionization" Amendments to Chapter 40A, The Zoning Act

The Lexington Planning Board has asked its Representative, Jay Kaufman, to file a bill that seeks to make two amendments to Chapter 40A, The Zoning Act, that will allow cities and towns to regulate the construction of large houses particularly on smaller lots. The bill is entitled "Relative To The Zoning Of Certain Residential Properties" and is identified as H1215.

The process of tearing down older, smaller houses and replacing them with larger houses is widespread throughout the Greater Boston area and is occurring throughout the country in suburban communities where residential real estate values are high. Recent experience in Lexington is that builders will pay $250,000 to $400,000 to acquire a house, tear it down and build a much larger house valued between $650,000 to $900,000 in its place.

This process counteracts attempts by communities to maintain economic diversity by reducing the inventory of reasonably priced housing that middle class families can afford. [All of this is relative.] It is also disruptive to the appearance and character of older, established neighborhoods because the replacement house is typically more than twice the size of what it replaces.

A more complete analysis of the issues and potential approaches involved in the "mansionization" problem and a statistical analysis of the phenomenon in Lexington can be found in a report, " Larger Houses in Existing Neighborhoods, " on the Town of Lexington Web Page at

http://www.lexingtonma.org/LexDir/towndocs/housing/report.htm

Floor Area Ratio

The Floor Area Ratio (FAR) technique that municipalities use to regulate the intensity of commercial development could be a good means of dealing with the problem of large houses on small lots. A floor area ratio regulates the amount of floor area in a house in relation to the size of the lot. A "floor area ratio" provides that the maximum floor area of a house may not be greater than some multiplier of the area of a lot. For example, a 10,000 square foot lot that has a floor area ratio of 0.15 could not have more than 1500 square feet of floor area. A typical 1950s era Cape Cod style house has about 1200 square feet of floor area. A 30,000 square foot lot that has a floor area ratio of 0.15 could not have more than 4500 square feet of floor area. A floor area ratio does not prevent the construction of large houses; it requires a larger lot area - proportionate to the size of the lot.

The problem is that the floor area ratio technique conflicts with a provision of The Zoning Act, Chapter 40A,§3 that provides

"No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building ."

Respected zoning authorities in Massachusetts, including the Director, Municipal Law Division of the Attorney General's Office and Lexington's Town Counsel, Palmer & Dodge, have taken the position that an FAR applied to one-family houses conflicts with Chapter 40A,§3.

The Attorney General's Office is required to review and approve any zoning amendment adopted by a town meeting. Thus it is unlikely any new floor area ratio applicable to one-family houses adopted by a town will be approved by the Attorney General's Office. Some cities have a floor area ratio applicable to one-family houses because cities are not required to submit zoning amendments to the Attorney General. A floor area ratio requirement in an existing zoning ordinance or bylaw might not withstand a court challenge.

The bill filed by Rep. Kaufman proposes that the word "minimum" be inserted so that the beginning of sentence will read "No zoning ordinance or bylaw shall regulate the minimum interior area of a single family residential building .." By implication a city or town could regulate the maximum interior area of a single family residential building. [The remainder of the sentence in the bill simply maintains the existing language of the statute.] A floor area ratio would regulate the maximum interior area of a single family houses.

Inserting "minimum" preserves the original intent of that part of Section 3, adopted in the 1960s, when some towns considered adopting high standards of minimum floor area to prevent the construction of smaller, less expensive housing that households with low or moderate incomes might be able to afford. By inserting "minimum" it would be clear that towns could not adopt a high minimum floor area requirement as an exclusionary device.

Dimensional Controls

The impacts of a larger house on abutting properties are caused by the size, which can be regulated by a floor area ratio, and the location of the new house relative to other abutting houses. There are several traditional zoning dimensional requirements that could deal with those locational issues. One is to increase minimum yard setbacks. Another would be to require proportionally larger lot sizes for larger houses. The most egregious examples of the large house phenomenon are when they occur on small, substandard lots.

Once again The Zoning Act, Chapter 40A ,§6 poses a significant hurdle:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

That language effectively exempts in perpetuity older, duly recorded lots and one- and two- family houses that are substandard with respect to the dimensional controls cited in Chapter 40A, §6. If a lot was created and recorded in 1932 or 1958, whatever the zoning requirements that were in effect at that time can not be increased. The difficulty is that yard setback requirements adopted by municipalities 40-60 years ago when houses were much smaller can not be adjusted to the new, much larger houses.

If a town did adopt requirements for increased setbacks or other dimensional controls, they would only apply to newly created lots. Thus if a mature suburban town like Lexington increased its yard setbacks, 99 percent of the lots in town (those already recorded) would be unaffected by the increase.

The second part of the bill filed by Rep. Kaufman proposes to change the time period in which a city or town cannot increase its dimensional standards from perpetuity (the current law) to five years - a time period that provides a reasonable transition for buildings and projects in the development pipeline.

The bill does not seek to change the current exemption that applies to lot area and lot frontage. Those two requirements are particularly sensitive controls for homebuilders because they affect their ability to build out subdivisions that have been previously approved. The homebuilders and real estate development industry are likely to be skeptical about allowing an increase in yard setbacks and dimensional controls. The bill does not attempt to deal with the fundamental right to build on an approved lot but instead to deal with the size of the house to be constructed in relation to lot size and the placement of the building on the lot with respect to adjoining properties.

For those passionately opposed to large houses, it is important to understand the scope of the bill. It will not eliminate the construction of large houses. It will allow municipal regulation to require that the size of the lot and setbacks from lot lines be proportionate to the size of the house.

The bill is not a new statewide mandate. It does remove some barriers so that individual cities and towns will be able to adopt modifications of their local zoning to meet their own circumstances and on terms appropriate to each city and town.