Zoning Board of Appeals Jul 23, 2026

[laughter] and you're recording. [sighs] >> The chair knows the point of time is 6 PM and I call this meeting of the Amherst Zoning Board of Appeals to order for Thursday, July 23rd. My name is Everald Henry, chair of the Amherst Zoning Board of Appeals. I want to welcome everyone to this meeting. We will begin with a roll call of the ZBA members. I'm Mr. Slovener >> here, >> Mr. Offeld >> here. >> Mr. Meadows >> present. >> Miss Morton >> here. >> The chair knows the quorum is present. Also present tonight is Mr. Jeffrey Bag, planning director with the town. Pursuant to chapter 2 of the acts of 2025 extended through June 30th of 2027, the ability of public bodies to meet in a fully remote or hybrid manner. This meeting will be conducted via remote means. Members of the public who wish to access the meeting may do so via Zoom or by telephone. No inperson attendance of members of the public will be permitted, but every effort will be made to ensure that the public can adequately access the proceedings in real time. The zoning board of appeals is a quasa judicial body that operates under the authority of chapter 48 of the general laws of the commonwealth for the purpose of promoting the health, safety, convenience, and the general welfare of inhabitants of the town of Amherst. One of the most important elements of Amor zoning bylaw is section 10.38. Specific findings from this section must be made for all of our decisions. No decision is final until the written decision is signed by the sitting board members and is filed in the town clerk's office. Once the decision is filed with the town clerk, there is a 20-day appeal period from a grief party to contest the decision with the relevant judicial body in the superior court. After the appeal period, permit must be recorded at the registry of de to take effect. On tonight's agenda, we have ZBA FY2026-927 new court. This is an appeal of the building commissioner's May 4th, 2026 and May 12th, 2026 determinations and refusal to enforce protected ADU gross floor area calculations pursuant to section 10.1 appeals and chapter 48 sections 8 and 15 pertaining to sections 5.011 and 11.41 of the AMZON bylaw. Chapter 48 section 3 and 760 CMR 71.0 set appeal pertains to 27 courts map parcel 14b-8 RG zoning district. Also on the agenda tonight also on the agenda tonight is ZBA FY2026-21 112 to140 North Witness Street. This is continued from July 9th for requests for a special permit to change the use from a 4-unit building to a non-owner occupied duplex under section 3.3211, a non-owner occupied duplex, an expansion of pre-existing non-conforming structure by enclosing an existing front porch under section 9.22. Said property is located on map parts 11D-150 RG zoning district. As always, we'll have general discussions, a public comment period, any other business not anticipated within 48 hours, and will adjourn. Um, the first order of business is the appeal ZBA FY2026-19 27 new court. As a matter of clarity on the P, um, it stated how the order would be. The commissioner would present first, then the applicant would go, then the appellent. Given that this is an appeal, typically in an appeal process, the person who is appealing um has the burden, they usually go first. Um because they bear the burden, the building commissioner um I would suggest would go second given his decision and the applicant can also present. Again, this is an appeal um as opposed to a special permit request. So for timewise um each party will have 15 minutes um for the presentation. That 15 minutes includes any rebuttal that may be made and so be mindful of your time um when you are doing rebuttal um when you are presenting as well as how much time you want to reserve for rebuttal. So [clears throat] again um each app each party gets 15 minutes. Within that 50 minutes you can reserve some time for rebuttal. Each person gets one rebuttal. Um the appellant goes first as they bear the burden. The building commissioner will go second and the applicants um will go third. After which we will have comments and questions from this body as well as any public comments on the on the appeal. Before we open the public hearing, does anyone on the panel have anything to declare or disclose? I see no answers in the affirmative. So Mr. flag. Given that there are no disclosures, I will open the public hearing and begin by reading into the record um the submissions. There has been a significant amount of submissions as well as public comment. Some um town staff has been very busy, so forgive us if everything is not read into the record, but they will be available um on the town website. Um, so the applicant packet application form filed with town clerk on May 15. Cover letter dated May 15, 2026. Exhibit A, B, C, D, E, exhibit F, exhibit G, exhibit H, exhibit I, exhibit J. Um those exhibits ranges from the building permits, the first floor plan, second floor plan, gross habitable space drawing, building plan, email exchanges between Noakun and building commissioner on May 4, 2026 and May 5th. Email exchanges between Nokun and building commissioner on May 8th, 2026 and May 12th, 2026. Email exchanges between Noakun and building commissioner on December 17, 2025 and December 18, 2025. email exchange between MAI Strehorn and Inspection Services between December 2025 and December 22, 2025. Um, exhibit J is relevant legal citations um from the town materials. We have written extension agreements between the ZBA and the applicant the zoning bylaw excerpt section 5.011 article 6 11 and 12 um 760 CMR 71.00 00. And as of July 17th, we had public comments. Michael Pill, later dated July 12th. Um, Ira Burke, email dated July 13th. Killian Okonnell, email dated July 13th. Yupan Zing, forgive me for pronouncing that name incorrectly, email dated July 17th. So with that, um, so as a matter of background, um, the town of Amoris worked through 2025 on amendments of the zoning bylaw to meet the state's updated AD regulations. Um, ultimately the amendments to section 5.011 were adopted by town council on November 17th and became effective on the new bylaw December 1st, 2025. The new zoning allowed two types of accessory dwelling units summarized as follows. Protected ADU which complies with chapter 4A section 3 and 760 CMR 71.00 which is allowed um as right no occupancy requirements and contains no more than half the gross floor area of the principal dwelling or 900 ft whichever is smaller as well as other requirements in section 5.011. A local ADU which is allowed by administrative approval requires that one unit must be owner occupied and is larger than a protected use but contains no more than 12,200 square ft or gross floor area as well as other requirements in section 5.011. In this case a building permit for a protected ADU was issued on December 18th, 2025. The appeal is not of the building permit. rather it is of the subsequent written determinations of the building commission issued on May 4th, 2026 and May 12th of 2026. That is the nature of the appeal. And with that, Mr. Bag, if you can just please invite Mr. as a panelist. >> Yep. So, that's been done. So, uh Mr. you should be able to unmute and turn on your camera if you wish. And as a matter of policy before speaking, please introduce yourself and your address for the record. >> Uh my name is Noah Keune and my address is 9 Newport. Um and may I share uh my screen to show some additional information while I speak? >> Yes, you can. All right. Um, good evening board, Mr. Chair. Um, I am the appellant, Noah Keune. My property at 9 New Court directly abuts 27 New Court and both properties take access from the same private way. This appeal presents one narrow question, but how the board answers it will determine whether Ammerst 900 ft ADU cap can be enforced as written. Can finished upper level dwelling space be excluded from a protected ADU's gross floor area by calling it an attic? The town determined this ADU contained 891 square ft of gross floor area or GFA. Yet, the approved plans also show a finished upper level with two bedrooms, a bathroom, closets, and stairs. The plans identify the two bedrooms alone at 290 square ft before counting the bathroom, closets, and stairs. None of that finished upper level space was included in the town's GFA calculation. After I requested a zoning determination, the commissioner concluded in writing that the ADU proposed an under construction at 27 New Court does not comply with the ZBL because it is too large in square footage to be considered an attic. The May 14th amended plan then reported an attic area calculation of 296.85 85 square ft, exactly 0.15 square ft below 1/3 of the 891 square ft first floor. That change appears directed to the upper levels story classification, but even if it resolves that classification issue, it does not answer the separate zoning GFA question before this board. Changing the knee wall dimensions can change a building code classification, but it cannot make bedrooms, a bathroom, stairs, and circulation space disappear. Under that interpretation, nearly 297 square ft of finished living space sits outside the 900 ft GFA calculation because it falls.15 square ft below a story classification threshold. Amoris GFA definition includes stories of compliant ceiling height, lofts, and intermediate floor tiers. The excluded categories are crawl spaces, garage parking areas, enclosed porches, attics, and similar spaces. I agree that the unfinished roof cavity above the ceiling and the eve space behind the knee walls may be excluded. Those aren't the subject of this appeal. The finished residential space inside those boundaries is the owner's comments now confirm that the upper level is additional living space. The question is whether that finished living space falls within the attic exclusion. This is the central issue. What does attic mean in this GFA exclusion? Amoris does not define it, so the word must be read in context. Crawl spaces, garage, parking areas, attics, enclosed porches, and similar spaces. The building code reinforces that distinction by defining attic as unfinished space and separately defining attic, habitable. Section 6.18 classifies floors and stories. It does not say that habitable attic space is excluded from GFA. These plans show two bedrooms, a bathroom, and circulation space. This is not the kind of attic this exclusion describes. This appeal isn't just about one ADU. Whatever interpretation the board adopts tonight will guide how applicants and staff apply this GFA limit in future cases. If this interpretation is upheld, applicants can add substantial finished upper level living space while continuing to describe the ADU as an 891 square ft structure for zoning purposes. On timeliness, I appealed the commissioner's May 4th and May 12th written enforcement responses within 30 days. In December, I asked whether the permit had issued. The commissioner said he would check and understood that it was ready to be issued after DPU DPW review, but I received no later notice. The public record identified an 891 ft ADU and an abuter who requested the plans received only a plot plan. When framing disclosed the upper level, I promptly requested enforcement. The town's May 12th permit record then stated that the permit does not incorporate the additional living spaces shown on the second floor plan and required a revised plan and permit modification. The amended attic floor plan did not exist in December. Those are the facts supporting timeliness. On standing, my property directly abotss 27 New Court. Both properties use the same private way and the ADU is plainly visible from my property. The challenge interpretation permits additional finished residential floor area and intensity beyond the protected use ADU limit immediately adjoining my property. Those are sight specific effects, not a generalized interest in zoning enforcement. I respect the commissioner's role, but this board is the body charged with independently reviewing his zoning determination. You're not supervising construction. You're making a threshold zoning determination. Unfinished attic and eve space may be excluded. Finished upper level dwelling space of compliant ceiling height designed for daily human occupancy must count toward protected use ADU GFA. The building code answers one question. Ammeris zoning bylaw answers another. Tonight, you're being asked to decide the zoning question. I respectfully ask the board to determine that finished upper level dwelling space count towards gross floor area and to reverse the commissioner's determination to the extent it concludes otherwise. Thank you. Thank you, Mr. If if I may, the gross the the GFA exclusion groups add atticss with crawl spaces, garage parking areas, and enclosed porches. Why should addicts in that list mean only unfinished space rather than any space under pitched roof? Um well when you don't have a definition you have to take the context for what the word is by what it's surrounded with and especially with the an similar spaces at the end of that line. Um those spaces are transient spaces. They're not meant for habitable heated living spaces. Um, I know that there's a a legal term for that. I'm sure you know it. Um, but yes, that is my that's the position. And in looking at sheet P3, um, itself, it distinguishes finished subfloor bedroom space from notice having no subfloor behind the knee walls. Does your position require counting all upper level space or only the finished subfloor portions? only the finished portion in the center. I I believe that the space above the ceiling and in the eve areas that is what should be intended to be excluded and I take no issue with excluding that space. I I'll yield questions to other members um of the ZBA for Mr. Um, the chair recognizes Mr. Offeld. Um, so you've, Mr. thank you for your presentation. You've shown us a revised bedroom plan, which is less than 300 square feet. I forget the number. Is it your understanding that that bedroom plan satisfies the current bylaw? Are you suggesting it does not or it does? >> I suggest that it does not um due to the fact that it is finished living space and it is not an unfinished attic which is what the exclusions are referring to. >> Okay. And that's the revised bedroom plan, not the original bedroom plan I'm speaking to. >> Correct. The original building plan was larger. Um, and when the commissioner reviewed that after my request, um, he determined that it was too large to be considered a habitable attic. Um, I believe the building code says that a habitable attic must be less than onethird of the floor space below. Um, so the redesigned version where the knee walls were moved in is 0.15 square ft less than that threshold. um and in the building commissioner's opinion makes that an attic that is no longer um counted towards the floor area of the building. You >> Thank you, Mr. Offel. Which recognizes Miss Morton. >> Hello. Um, so I believe I read that the um the definition of the floor area had to be measured from the inside of the exterior walls. And if you were measuring from the inside of the exterior walls, would you not have a larger square footage than what is shown on the um the revised plan? Because it would have to include not just the bedrooms, but the basically all of the finished space on that upper level. >> Um are you referring to the the first original plan? I'm referring to this even the second one that well both of them don't include all of the space on that upper floor that's inside of the exterior walls which is what what was listed as being the the definition of of the the gross square footage. >> Correct. Um I guess the the issue is the attic exclusion. So uh I believe that the eve space and the space above the ceiling of that finished space is a true attic unfinished attic and that is eligible to be excluded from that calculation. >> Right? But I think even the revised plan only showed the square footage of the the bedrooms and did not include all of the um finished square footage of the upper floor. >> As far as I can tell, um the calculation was accurate except that they did subtract the stairway. Um I can't speak to whether or not that is the correct way of determining a stairway. Um because it is technically within the interior walls. Um that would with the inclusion of the stairway that would put it over the limit. >> And this the stairway area is included in the measurement for the first floor. >> That's correct. >> So I would say that sounds like it's inconsistent. just I was just asking for clarification to to see that that I was seeing it correctly. >> Yes, that's that's my understanding. >> Thank you. >> Thank you, Miss Morton. Mr. Um, what measurable particularized harm do you expect at 9 court from this ADU's current size as distinct from a general interest in seeing the bylaw enforced? >> Um, well, we we share a a private way for access to both properties. Um, it's a gravel road. Um there is currently um another rental property on that that property. Um so the traffic to and from this building um will increase the intensity of use of that property directly adjacent to my uh property. Um you know we maintain the road together. um you know so yes that's why >> thank you Mr. are there any other questions from members of the board before I invite um Commissioner Mora >> Mr. tomatoes. >> I think one point that you basically just made No, is you have a young child. Is that not correct? >> Uh I have two. Yes. >> And are there sidewalks on New Court? >> There are not. >> And therefore your children are in the road or being going back and forth on the road, are they not? >> Uh to access Taylor Street. That's correct. So, if you had essentially four bedrooms additional beyond what there is now, that'll increase the traffic and make it more difficult and dangerous for your children, I would assume. >> I think that's a reasonable thought. >> Thank you. >> Thank you, Mr. Meadows. Mr. Sloer, any questions for Mr. >> No, thank you. Not at this time. >> Thank you, Mr. Silver. Mr. thank you for your presentation and answering our questions. Um, the chair recognizes Commissioner Mora. >> Thanks everyone. Rob Mora, building commissioner. Uh, Mr. bag has a few slides that he'll put up for me as I talk through some of the key points of this discussion. And we can skip the background slide. Uh Mr. Bag, I think Mr. Henry covered that in his opening remarks and we can go right into uh the third slide. >> Yep. Just give me one minute here. And as he's bringing that up, I'm going to talk about uh definitions in the bylaw. Um key sections and definitions of the gross slur area. Uh as you know, it's uh defined both in the state law and in our local zoning. Uh exact language was carried over from the state regulation into our zoning bylaw amendment. Uh I'm going to talk about story and half story and I'm going to talk about habitable space. So starting with the gross floor area that's up on the screen almost uh the sum of all areas of all stories of a building. Uh that's important because we're going to talk about stories in a moment. And as you've heard from um you know both the introduction and Mr. Cun's presentation is that uh this language uh in this definition excludes addicts among other uh spaces. Uh I will mention uh I might repeat this again at some point that nothing in my uh discussion or determination or part of the uh May email exchange includes a determination related to the building code. This is all about how we interpret and apply our zoning bylaw. Uh discussion and interpretation of building code is something that wouldn't be in front of the zoning board of appeals. [snorts] Um and I will mention that as we talk about some of these excluded areas. uh it will uh become clearer when we understand how the zoning bylaw defines habitable spaces [clears throat] which can include a lot of spaces that um you know may not be traditionally thought of as uh living uh spaces in a dwelling unit. Uh we can go to the next uh slide Mr. Bag. So story and half story are um relevant uh pieces of the bylaw for making this determination about attic. This language was added to the zoning bylaw in 2013 and helped to uh help us determine what number of stories might exist in a particular building. And that's as you could imagine very important when we have limits on the number of stories. We have two and a half uh story buildings in certain zoning districts. We have threetory buildings in other districts. Uh so these upper floor areas will be uh critical to understand what they are and whether or not they count to a uh count as a story uh to ensure that the property is in compliance or the building is in compliance. In this first definition uh the story uh definition you know simply it it sends us off to the building code as you can see in the highlighted in in the bolded language. Uh so you know I don't think there's much uh to talk about uh related to what is a story. Uh it's going to be about the halfstory. And as [snorts] you see in that first definition in the second clause there other than a half story in the top floor with attic in parenthesis or basement you know what we've essentially done is we've uh equated the top floor of a of a structure as an attic. So we've we've made that connection in this definition uh here and I I believe that was intentional as I understood as this this uh bylaw amendment was being produced in 2013 and introduced into the bylaw. uh at that time the new language in the second uh definition here for halfstory uh you know creates this unique uh uh term that you know doesn't really uh uh show up any in building code. It doesn't show up in in certain bylaws. It really is uh unique to us because we have a uh zoning district that has a halfstory allowance. Uh so a half story here is the habitable space. So everything we're talking about uh whether it be full story, half story, attic space includes habitable spaces uh as we define it and we'll get to that in a moment. But the half story in the top floor um of a compliant ceiling height and and the last uh part there that's bolded uh no less than onethird of the habitable floor area of the full story below. And I think as you heard uh in Mr. CUN's presentation that you know I do believe this was intentional because uh there is an alignment with building code on the one-third um determination you know making making onethird of the space uh the factor that determines whether or not it's an attic space or whether it's a story. Uh I think that was intentional to try to reduce conflict between zoning bylaw and and building code. [snorts] But what we have here is we have a floor that is a half story with more than one/ird of its habitable floor area. So in order to be the half story, it has to have more than one 1/3. Uh what happens to the 1/3 or less or less than 1/3? That's the remaining piece here. And our way of applying this, our understanding of this section as it was written, its alignment with the building code was that anything less than one-third is the attic as it's uh you know referred to in the first definition as the top floor space, but it's not a story. It's not a half story. What is it when it's a small space remaining? It's an attic. Uh next slide, please Jeff. So, um, what we take from general meaning of the term attic is that it's, uh, underneath a roof line within the volume of the roof. So, we're not we're not looking at a space that's totally surrounded by walls. That would be the primary floor for a second or or so on of the building. It can be finished or unfinished. There's there's absolutely nothing in our zoning bylaw that states otherwise. We refer to habitable space when we're measuring the attic space. Habitable space, as you'll see in a moment, can be storage spaces, it can be bedrooms, it can be bathrooms. That is very different from building code. So, there's no connection there. Building code would actually exempt bathrooms, exempt closets, and make these floors bigger. So, we we want to be uh careful of that. And I don't want to use uh definitions in the building code because it actually would allow uh the the square footage to be bigger. And in fact, what you learned a few moments ago from Mr. Cune is that the difference between the two plans that were presented with one being larger and then one being corrected was the method of measurement. The designer used the building code to measure the first uh set of plans and uh the second set of plans was corrected to to be accurate with the way we define uh habitable spaces and include more area in that measurement. uh as a result making the uh usable finish area smaller. Uh so the space uh has to be smaller than a half story as defined uh has a compliant ceiling height of less than 1/3 of the area below and the measurement is is taken using our habitable space uh meaning. Thank you Mr. Bag. Uh so this is our definition out of the bylaw article 12 uh the gross square footage of the enclosed interior space. Uh [snorts] this has has remained unchanged for many years. As you can see in the bold I'm just pointing out that it includes all of these spaces. Uh so we could have a upper floor area that gets defined as an attic but is completely unfinished open stud could be storage could be used for some other purpose not bedrooms not bathrooms and it is still habitable space. It could be turned into bedrooms. It could be turned into a uh art room. It could be turned into any other type of use uh and generally uh qualify as a habitable space according to our zoning bylaw. And this is used um and and it was used previously with our uh accessory dwelling unit definition but is no longer available in the gross floor area. Uh meaning uh next slide please. Uh so this is just to illustrate uh how we look at the stories. Uh hopefully it's helpful. Um this is just showing uh what would be traditionally down at the bottom uh underground perhaps or partially underground a basement or a crawl space. Uh what determines uh one or the other is going to be the ceiling height. The basement has a minimum ceiling height requirement. Anything less than that by definition would become a crawl space. Uh this this particular illustration shows three full stories. Uh and then the upper uh level there would either be a half story or an attic depending on the measurement uh that we talked about a little while ago. The area outlined in red. If you can see that up in the triangle on the gable end of the the building, that's the space that would be considered either a half story or an attic. If it's 1/3 or greater, it's a half story. If it's less than one/ird of the floor area below, it's an attic space. Uh next slide please. This is the uh section view the cut through of the plan uh for 27 New Court. Again uh similar to the last image uh we've got a lower level underground that uh they've uh built as a crawl space. Uh we've got a first floor uh the 891 square ft and then we've got the uh space up at the top which is uh the attic space. uh now as uh corrected is uh less than 1/3 of the uh 891 square ft below. Uh next slide please. I wanted to mention that um this is not uh at all a surprise to me. uh this uh particular issue about attic space. Um the uh the kind of awkward way we have to use and identify basement spaces for the measurements. Uh h the lack of habitable space as a um as a way to determine these square footages. Um and other parts of the the state law were, you know, were realized very early on. We talked about it in great detail uh a a year before this permit was uh applied for and and ultimately issued. Uh we did you know make efforts and presented comments uh during during the public hearing process for the state law changes. Um and as a last I think measure uh it was just a couple months before the bylaw went to its final vote. Um, if we looked back at those those drafts, you'd see that we actually kept habitable space in the definition of gross floor area. We changed the gross floor area definition from the state law to leave habitable space in there so that we wouldn't have these conflicts that we wouldn't have these questions and uh we asked the AG to consider that and give us comment back before we went to vote. Uh, and we never received a response to that. However, we were monitoring the AG's decisions for other towns across the Commonwealth and the use of habitable space and the definition of gross flurry was uh stricken out over and over again disapproved uh in in many other communities. So, ultimately we decided to remove it. Um when that happened, we discussed this uh in the final stages of the the bylaw amendment process. uh and and it was discussed several times uh during that time. So that takes me to just the last slide here. Uh you know, floors and stories are measured the same way for both ADU types. So protected and our local ADU types that Mr. Henry outlined earlier. Um this attic space exclusion would apply to both of those. Uh and you know as a result as odd as it sounds uh the habitable space actual living space of of a dwelling unit can be larger than the gross floor area. Um I would like to just if I if I have more time Mr. Henry, um I would like to address uh one of the comments I heard earlier about stairway [snorts] um you know whether or not it's included or not included. And this is for for a very long time in building design and measurement always been a an interesting question and discussion. But what we have done consistently um and for a very long time is count the stair once when we're measuring buildings for square footage. Um it is uh not floor area in the first floor. Uh there's an opening in the floor area and the stair is below the floor of the first level uh part of the crawl space. So the stair that goes up to the second floor or the upper level uh or the third level, it would that would count on each of those um next levels once. So we're not counting that floor area twice. All of this when we're talking about square footage and area is the measurement of the floor area. It's not the volume of the space. Uh if there's a large open foyer when you walk in the front door above you, um that's not floor area. That's not counted in square footage when we're making these uh dis, you know, determinations. Um so I just want to make sure that that's um that we're aware of that. If there's any questions, uh, happy to address that. Um, one last comment about habitable space. Um, and and the relationship to some of those other exceptions. Uh, you know, a threeseason room, an enclosed porch, and a deck is a very much a habitable space. It's a very usable space. Um, I don't understand that that exclusion either in the state law, but it is, you know, just another one of those items that we uh have to deal with and have to make adjustments for and consider when we're reviewing reviewing applications. Um and and once again just finally as as a to repeat that um you know nothing I spoke about here other than drawing relationships in certain areas uh you know is basing these determinations or the application of our bylaw on anything in the building code. Thank you. >> Thank you Commissioner Moore. If I may if I may just start with some questions and as a matter of clarity. So between your May 4th determination finding the ADA compliant at 891 square ft and your May 12th determination finding it too large to be considered an attic. Um which is your operative position tonight and what specifically changed? So, the building permit was issued based on the data that's put into the application. It's an online permit application. The applicant inserts the square footage and that gets reviewed. Uh the plans get reviewed for building code compliance, energy code compliance, and you know, ultimately the permit gets issued. Now, I don't review the permits. I don't issue the permits. Um, so you know, I can't explain exactly what happened in that case. When it did come to me through Mr. Keun's um uh questioning and I looked at it closely and and went out and looked uh in person at the ADU. I found that I believe what I found was that the attic space was designed and calculated by the designer using building code methodology rather than relying on the habitable space definition in our local zoning bylaw. and I asked for the adjustment to be made. >> So is your position tonight that um the space is too large to be considered ADU? >> My position tonight is that the space that is shown on the amended plan and ultimately constructed uh because I returned after it was constructed to make sure that it was built according to that new plan. Uh my position is that it is in compliance now. >> It is in compliance now. >> Yes. >> Okay. [clears throat] And if I understood you correctly just now, so even if an attic gets built out, bedrooms, bathrooms, um the classification doesn't change regardless. It still remains an attic and that is not counted in the GFA. [clears throat] >> That's right. As long as it's an attic, the attic would be excluded. >> Okay. And if the board finds that the second floor bedroom space must be counted, um what is the corrected total gross floor area for this ADU and does it exceed the 900 square ft requirement? If I understand your question, I if if the board determines that these this upper level is not an attic, >> then the two square footages would be combined for the gross floor area. >> And that's the 891 and the two I don't have the number in front of me, but the 290 >> understood. Those two numbers would be combined. >> Um and you can correct me here, but I think I saw something that said this particular design has been permitted multiple times. Um, to the best of your knowledge, how many other Ammeris protected use AD permits use the same attic exclusion approach and has any other been the subject of a similar enforcement request? >> I believe there were nine total. Uh and as a result of this uh um questioning that Mr. brought forward, my office reached out to each of those uh permit holders to ensure that the plans were in fact um either updated or accurately designed to the habitable space uh threshold of our bylaw. Uh and I believe all the corrections have been made. What we did was we put a hold on every permit that had this uh this situation until the corrections were made and and then the permits were released at that point. And just as a matter of clarity, has has is there a cease and desist order in effect for the property or is it still work still being done? there there is no cease and desist on on any uh ADU uh project. Um and this property does not have a stop. It does not have a hold. It did for for temporarily have a hold while we were both um you know making sure we knew what we were asking for after reviewing this, getting in touch with the owner and asking the owner to uh respond and make the corrections and they did so immediately. uh and there was no need to uh you know go to the cease and desist uh formal uh enforcement. Thank you. One of the provisions in the bylaws um 6.181 um which defines of a habitable half story in a top floor um as well as um GFA 5.0112A 0112A and I can appreciate if you don't know those numbers outright, but do you read the bylaw 6.1A1 definition of habitable half story in the top floor as governing whether the space counts toward GFA area under 5.0112A or are these two independent bylaw provisions in your view? In my view, if I found that it is a half story by that definition in 6.18, it would count in the gross floor area. If it was over uh if it was 1/3 or larger as it must be to be a half story, then it would count. >> Okay. But as of your testimony, it is still adequate definition [clears throat] >> because the adjustments were made and it is no longer 1/3 or larger. It is less than 1/3. It is no longer a half story. >> Okay. >> Therefore, an attic and excluded. When I when I made my initial vi visit and looked into this at Mr. Hun's request, I found that it was in fact a halfstory as designed and as uh in one case constructed. And that's where the hold was put on the permits and the owner was advised uh to to find, you know, a way to bring the the project into compliance. And ultimately they chose to make the floor remove the floor uh and remove the walls and rebuild it and redesign the other uh you know properties uh permit applications to come into compliance with what would be an attic so that it could be excluded. >> And one final question before I turn it over. Um, sheet P3 notes no subfloor behind knee walls, ceiling jo and insulation only in the eve areas distinct from the labeled bedrooms and bathroom. Does that does that distinction affect your gross floor area determination? >> It doesn't. So it wouldn't make any sense to talk about gross floor area if there wasn't a floor. There has to be a floor. It can't be above a ceiling. It can't be hidden behind walls that you can't access. The exclusion would have no meaning. You know, the the the other items in the exclusion are are places you can stand. You can stand on a crawl space floor. You can stand on an enclosed porch floor, an open porch floor. You can't stand above the ceiling. Uh so, you know, we have to give meaning to those those terms. I have to give meaning to that uh exclusion. And you know, in this particular case, it worked with the way that we have traditionally uh viewed attic spaces in single family homes and other buildings uh since 2013 when this these definitions were introduced in this language is introduced into the bylaw. >> Thank you, Commissioner. Um, do members of the panel have questions for Commissioner Mora? I know I asked a lot. The chair recognizes Mrs. Slovener. >> I just have two quick questions. What is the ceiling height in the crawl space? [snorts] >> The ceiling height in the crawl space is less than 6'8 in because if it was 6'8 in, it would be a basement. >> I But you don't know. I believe the plan is 6'7 in. >> Uh I don't have the plan in front of me. >> But you believe I'm I'm sorry. I just want to make sure I heard it correctly. You believe that it is that it is 6'7. >> That's right. which makes it below 6'8. But since I am only 5'8 and a half, I could stand there comfortably in the crawl space. And the crawl space has a The crawl space has a concrete floor. >> It does, I presume. >> Okay. >> And I believe that Mr. Cune made a statement about the square footage. I just I didn't take a proper note. How much less than onethird is the habitable space on what you call the attic level? I think Mr. Cun said it's something like 0.15T or something. >> I believe that's right. >> So.15 square feet. well under one square foot less. So if if the space was 2 square ft larger, it would no longer be an attic. Okay. Okay. Thank you. Thank you, Mr. Mora. >> Welcome. >> Thank you, Mrs. Sloer, >> Mr. Meadows, Mr. Offelds, Miss Morton. Any questions for Commissioner Mora? chair recognizes Mr. Offeld. Uh >> thank you. Um yeah, most of my questions were answered by by your questions or the answers to your questions, Mr. Mr. Henry. Um I just want to explore a little bit about uh the um the change how to characterize and how common is the change in a building permit. So in this case we have building permit was approved, construction starts and then there's a change which you have asked the owners to implement and I guess has been implemented. Um is that unusual? Is that can you talk a little bit about that please? >> Yeah. Um so it's amending a building permit after it's been issued. It's really common. um not necessarily for a situation like this, but um it's common because we typically try to get uh you know builders and developers started with their project as soon as they can, but they might not have all of their materials uh but perhaps could put in a foundation or could you know start work and amend it later with the information that's needed uh and catch up. Uh it's pretty common in single family uh permitting to have changes. Uh you know, it started off as a a kitchen design and you know, then the owner decided while I'm here, it's time to do the bathroom that's connected or or add the pantry and you know, the scope grows. So, it's it's pretty typical to amend a permit to increase the construction cost to um make a adjustment to the size of an addition. uh and and update those documents uh accordingly. >> Thank you, Mr. Offel. Thank you, >> Mr. Meadows. Miss Morton, any questions? >> I see no affirmative responses, Miss Morton. Um Sure. Miss Morton, >> thank you. I guess I'm still not understanding how the habitable space on that upper level doesn't need to be counted. It really does not have it does not feel like that is actually an attic um when it is obviously habitable space. Um, and I I don't I don't I I don't understand how how that gets away with not being counted. It seems like cheating. >> Yeah. You know, I when I was talking with the CRC about this, I referred to it as bonus space, you know, because there was no that was just how it, you know, it it made sense to me is that um based on the the definitions that we have, the way we treat addicts, um and and without a definition that would uh do something very different um which is is optional. So, you know, I I've worked in other communities where the the attic is defined in the zoning bylaw as an unfinished space. Um, you know, and if that were, you know, our situation, then we wouldn't be having this discussion. It wouldn't be included. Um, but I can't ignore that. Uh, you know, I I know how we've uh applied the the terms and what we consider an attic. Our bylaw, you know, says the top floor is an attic. And if it's not a half story, uh I think it's reasonable that whatever's remaining, that smaller piece that's remaining that didn't make it to the threshold of a half story, uh becomes the attic uh that it suggests there. Uh and you know, we end up with this as a result of the exclusion that was uh provided to us through this the state legislation. Um, you know, our old uh bylaw that this replaced didn't have this problem because we we counted everything as habitable that was habitable space when determining the size of the dwelling unit and that's what we wanted to do. That's what we asked to do and that's what we were told we couldn't do. Uh so that >> who told us that we couldn't do that? It was told to us through the AG's uh disapproval in 20 plus communities. I mean, it was we were one after another. Uh you know, we were watching all last year as the attorney general reviewed town meeting votes that adopted bylaws that included the the words habitable space in gross slur area. so that we would be talking about 900 square f feet of habitable space when determining gross slur area. Uh and that was disapproved over and over again. So we we made that decision uh while we were in session with the CRC and the planning board to delete habitable space from our definition because we at that point realized that we would be in conflict with what the attorney general is doing across the state. uh and ultimately took that out and we uh you know we didn't make further adjustments. We didn't change the attic definition at the same time. We we left the rest of the bylaw alone and as a result we have this this ability to create additional space [snorts] uh above above the 900 square ft of gross floor area in some cases. It's not you know it's not always going to happen. There are other there are other odd situations with this ADU regulation that um you know some are going on in this town, some are going on in other communities that I'm seeing. Uh it's not just uh having to do with addicts, but it's certainly not it's not aligned with the actual plain read and what you would think the meaning would be. um you know because in in particular the use of the uh the basement provision uh creates creates a complication with how you uh measure the two units and end up with one larger than the other. Uh so there's just there just other things and that's probably for another day, but there's other things about this regulation that are uh not ideal, you know, and not the way we we would have written it. Miss Martin, any more questions? >> It sounds like we need to change our bylaws then if it's if it's this unclear because this sounds very wrong to me >> if Yeah, I guess I would not suggest it's unclear. Maybe, you know, I can see that how it can be viewed as wrong. Um, but it's not it's not um it's not the only situation, right? So, you know, if we have an if we have this attic space that I took you through the you know, the very simple graphic of an attic space on a three-story building, you know, some might say having an attic above a three-story building is a fourstory building, right? But no, if it's an attic, you're actually not counting it as a story uh because it doesn't meet that definition of story or half story. So again, that that idea of a bonus space is created. So we have situations like that. Um with with ADUs and basement, uh you can have two equalizes on an on an ADU on a property. If you had a vacant lot and you built two 900 square f foot ADUs, um, and you put a basement under one, finished or unfinished, but put a basement under one and a crawl space, uh, on the other one, you have what I would say are two equal >> ADUs. Two equalsiz ADUs, but it meets the state's definition of primary dwelling and ADU. And I don't, you know, when I look at it, that couldn't have been I I would say that wasn't the intention if I was looking at it, but it had to be pretty well known because it's it's pretty obvious. So, and we have we have an example of that in town. So, when you stand at the road, it looks like you have two equaliz. One's larger only because it has the basement with, as we heard, one in uh higher ceiling height. >> Thank you, M. more. Thank you, Miss Martin. I heard a pop for a hand, but just now on the panel. Um, Mr. Bag, can you promote um Alan Sanhair um andor council as a panelist, please? Yeah, sorry. Just give me one moment. I'm trying to find the attorney. Okay, coming up. So, both Alan St. Helier and um Green Miles Lipton should be able to turn on your camera or on mute and and Mr. Chair, are you authorizing them to start? >> I am. Um Mrs. Helair and council, welcome. You're again, I know you've been listening for a while. You do have 15 minutes and from that 15 minutes, if you need to offer rebuttal, um, you need to reserve some of that time for rebuttal. >> Alan, why don't you go ahead? It's your livelihood and the hundreds of thousands of dollars you put in in good faith. So, Allan, please go ahead. I I'm not meaning to use my 15 minutes now. Thank you. >> Let me I'm sorry. Let me clarify. You both do not have 15 minutes. >> Yeah. And Allan, we're having a hard time hearing you. You haven't you don't look muted, but we haven't heard your voice yet. >> So, if I answer your question, is the time is still running when we're not speaking? I mean, ple please explain, Attorney Henry. >> Yes, you are the same party. So you um you you have 15 minutes as a >> in that place. I apologize for my misunderstanding and I see you've started over. I'd like to defer so that Allen can speak as long and in as much detail as he needs. Um since I have uh put everything in writing. Um and I think my position was made clear in my 17page memo. I I I I'd like to let him speak. It's his livelihood. It's his, you know, money he spent. Thank you. >> Thank you. Mr. Ser, can you say something? So we see if we can hear you. >> Still not still not hearing you. Sometimes uh Mr. Hillary, if you go into the settings at the bottom, it opens up a window with audio and sometimes that needs to be checked. One other is the volume on your computer at the bottom lower right of your actual computer. Is that all the way up? No, we still can't hear you. Sorry. Not yet, >> Mr. Chair. >> Okay. Now, now you're on as a third person, so maybe we can try this one. Unmute the new device. >> Can you hear me now? >> Yes, we can. >> Beautiful. I'm sorry for that uh technical difficulty there. >> Oh, that's okay. Thank you, Mr. Chair, and the members of the ZBA. Uh, my name is Alan St. Hillier. I own 27 New Court. Thank you for giving me the opportunity to explain my position as we have a lot at stake in this matter. Uh, I planned for this to be 3 minutes long. So, I'm happy to answer questions after I've uh submitted my comments here. Uh, I've submitted some written comments yesterday, which uh didn't sound like those were read into the record at the beginning of the meeting, but Mr. bag did acknowledge receipt. So, I would ask the board read and consider those comments if you have them. Uh, I also submitted a PDF document earlier today uh that shows the new court neighborhood including maps and photos illustrating how the appellants property is located with respect to mine as well as the rest of the neighborhood. The board may consider uh asking staff present those photos on screen tonight for context. Uh, Mr. Cun's one photo was carefully uh chosen um so that it was actually out in the roadway on the western side of what you're seeing there and not directly between the two properties. Um it looks like Jeff's got them up there. So you can see on that graphic uh new court that yellow outline shows my property as well as the private way. uh in the lower right portion of it shows the ADU and the upper left portion shows uh Mr. Cun's property. If you could advance to the next slide there is the uh just the map rather than the aerial image of the same uh map. Uh next slide. This first image shows walking down Newell Court looking to the south with Taylor Street behind you. uh nine new court on the right and uh number 10 New Court on the left and off in the distance on the left number 12 New Court. If we go to the next slide that shows uh uh progressing further south on New Court, I'm standing at the end of Mr. Cun's driveway. In the lower right corner of the screen, you see the arrow showing where Nine Newell Court is. The the shrubbery there is actually at the edge of his driveway. And in the upper left third of the image, you can see the very peak of the ADU, perhaps only one and a half or two feet of the peak of the ADU. The large majority of it is obscured by the shrubbery. If we go to the next slide, you will see uh the principal dwelling 27 new, the red hip roof structure ahead of you. Uh as we get closer to my property, you can see that the ADU disappears from view uh of the abuter. You can see 9 New Court lower right corner in the direction of their home. 12 [snorts] New Court across the street to the left. If we go to the next slide, uh now you can start to see the ADU come into view. This is standing in the circle uh as shown on the map of the neighborhood and uh 9 New Court is over the viewer's left shoulder to the northwest. If we progress to the next slide down, [snorts] uh this is the view that Mr. Cune had taken. Uh which you had to have been standing in the roadway to see it because you can see all the shrubbery that obscures his view of the principal dwelling at 27 New Court on the right and the ADU across the circle. Uh if we go to the next slide, you'll see the uh this is now with my back to the ADU looking at Mr. Cun's property across and up the street. You can just start to see his dwelling um just ekking out beyond the shrubbery and the trees. Uh in this lower left corner, you can see 27 New shoulder, the principal dwelling. If we go to the next slide, uh you will see this is standing on the front doorstep of the ADU looking towards Mr. Cun's property. It becomes pretty clear that there's no direct line of sight between the properties. Uh if we go to the next slide, uh this is a view standing in the parking area looking north. Uh, and you would see new court if in the center of the frame if it wasn't obstructed by the shrubs. And this shows the relationship between the ADU and the appellants property. I believe this is the last slide. Uh, so that I just wanted to use to establish context in the neighborhood and that there's not really any direct line of sight from the Cune household and nothing of any substance from the Cune property at all. Um, beyond that, what well before I go forward in my comments, are there any questions about what I've just shown? Okay. Uh, so I'll continue. In late 2025, we worked with the Amoris building department to submit a building per application for a protected use ADU at New Court. The building department reviewed the application, the plans, and supporting documents, and determined that it met building code zoning requirements and issued the permit. Upon issuance of the permit, we commenced construction and have continued to rely in good faith on the unchallenged building permit for over five months, investing hundreds of thousands of dollars. Commissioner Mora, I think, did a fantastic job of explaining the gross floor area. So, I will not go into that further. Our gross floor area calculation was confirmed by the building department when we submitted our building permit application uh and of course was corrected slightly uh when uh Mr. Mora pointed out the difference between building code and zoning measurement for the attic space. Uh I do go into more detail in the written submissions that I sent in yesterday. Uh I would like to point out as a second point uh the appellent's claim to injury over added occupancy or density due to added living space is incorrect. Between mass fire law and state sanitary code, I can legally house five occupants in a dwelling containing 900 gross floor area, whether it was on a single story with all gross floor area between the exterior walls or whether it included attic space. uh the upper limit of five occupants is what prevails here. So I could have five occupants in either configuration with or without a habitable attic. So there is no uh increase in density or occupancy that could take place under the relevant building codes which is by definition how the state ADU law uh spells out what you can and cannot do on these ADUs. Um, I am requesting that the board uphold the determinations of the building commissioner uh in this appeal as I will suffer significant financial injury otherwise as we've relied on the unchallenged building permit uh since the issuance back in November. I thank you, Mr. Chair, and the members of the board for listening to and giving me this opportunity. I'd be happy to answer any questions that the board may have based on my presentation. >> Thank you, Mrs. Sandler. Attorney Lipton, would you like to add anything before I stop the timer? >> I'm I'm sorry, sir. Green Miles Lipton is the name of the law firm of which I'm a partner. Um, I just want to be clear on the record. My name is Michael Pill. P as in Peter ill. Just I am a real pill. I can't deny that. Um, I would like please the opportunity to wait and see what other people have comments and then see if we have anything to say to use up our remaining time. Thank you, Mr. Chair. >> Thank you, Attorney Pal. Um, Mr. St. Hillier, why should the exclusion for attics in the gross floor area definition listed alongside crawl spaces, garage parking areas, and enclosed porches extend to finish heated bedroom space with a stairway and code compliant ceiling height rather than being limited to true unfinished attic space consistent with the new on P3. So the gross floor area calculation is including all stories of compliant ceiling height. The attic doesn't fall under the definition of a story as Mr. [snorts] Mora explained earlier. Uh and also the attic exclusion in the state protected Aedu bylaw as well as the Ammerst bylaw is very specific that the attic space is excluded. It doesn't say unfinished att. It doesn't say finished attic only. So our design uh as Mr. Mora mentioned as bonus space, our design is compliant with the definition of gross floor area and the definition is very important in uh zoning in building code and health code and many other laws. So we followed the definition that was available to us and as Mr. Moira mentioned it is um sometimes counterintuitive but that is the law. We followed the law in good faith and uh so I think Mr. Moira did a great job explaining how you can have a habitable attic that does add additional living space. Living space and gross habitable area are two different definitions. So I do want to be clear on that. But doesn't P3 label an 8ft ceiling height and P4 shows an 81 upper level section which are both above the building codes habitable threshold. So why should space at that height containing two labeled bedrooms and a bathroom be treated as an attic rather than count towards the GFA? >> Uh because as Mr. Mora explained earlier, uh, a habitable attic can under the zoning bylaw and under the building code include finished space. So there's there's no dispute that there's finished space there. Um, but under the definition of gross floor area with the attic being excluded, it doesn't add to the 892 square ft on the first floor. I think that Mr. Cun's uh interpretation of the definition of an attic is just a framed space with some cobwebs and and boxes of old papers when Mr. Moira's definition of the attic whether it be finished or unfinished remains excluded from the gross floor area calculation. >> So is it your position here then that the primary issue is this board making a formal interpretation of what is attic versus not attic? Uh I think that the appellant's position is the interpretation of the definition of gross floor area. Um but that's been established uh at both the state and the local level as Mr. Moira explained earlier. So I I am not an authority to say whether or not you know that's to be included in the gross floor area. I don't know if the this is the right forum to interpret state uh protected use ADU definitions. Uh the state protected use ADUs are protected by the do amendment which is allowed to things like places of worship and education. One of the highest protections in the state. >> You argue that if we were to rule against you on this, you'll be out hundreds of thousands of dollars. Um but isn't it fair to say that the moment um Mr. Cune filed this appeal, you were put on notice that this could be reversed? Did you what steps did you take once you know there was an appeal to protect your interest? Did you stop work? What what did you do? >> So once we got the notice uh through Mr. Moa that appeal was being filed, we did we we didn't stop work completely. We did slow down. We did think about you know what the possible outcomes would be. And so we haven't had significant construction since. We've had some work with plumbers and electricians to start to do the rough work. Um Mr. Moira was clear earlier that he didn't put a stop work or a cease and desist. He never once told us that um you know the building permit was suspended or you know we should stop working. So we continued to work uh you know under a valid building permit. Um and that's that's where we are today. >> Thank you Mrs. Slair. Are there any members of the panel who have questions for attorney pill or Mrs. San Hillier? And the chair recognizes Miss Morton and then Mrs. Soer. >> So um I would say that even if we were to say that the upper floor was had to be counted as part of the square footage, that wouldn't mean that you had to tear the building down. And you would just need to not build out that upper floor. And that upper floor would need to be made so that it it could not be habitable space. So it a true attic. So you wouldn't really be out a lot of money. You just wouldn't be able to build out that upper floor. So, um, I I want to be careful about what you're saying as a true attic. I think Mr. Mora did a did a great job of defining attic space under the zoning bylaw and that it can include habitable space and that it is a bit counterintuitive to what common knowledge might apply to an attic. Um, so, uh, it it would be a significant expense to tear out the rooms that have been framed and wired and plumbed in the upper story and it would have a significant impact on the future use of the property uh because we' be be confined to the first floor level only. And if we had been told that that would be the determination through zoning and building code at the time of applying for the permit, we would have designed the dwelling differently. Um to have only two bedrooms and one bathroom is a very very significant handicap on the property. Uh and it doesn't help to provide much needed housing in Ammerst. Um so that is the big impact if you know there is some ruling here that overturns the commissioner's um findings. >> Thank you. >> Thank you Miss Warner. Mrs. Sloder >> uh is there in the design I didn't I don't have it in front of me. I'm sorry. Is there in the design access from the first floor to the crawl space? >> Yes, there is. >> And is that is that a staircase? >> It is a staircase. Yep. >> Okay. Thank you. One other question. You made an assertion that Mr. CUN does not have uh visual access to the ADU because of the large I don't know bushes, shrubbery, leafy growth, whatever. I forget the term you used. I was told when I applied to the town for permission to modify a built-in porch that shrubbery or any plant growth is not taken into consideration when assessing a project because it's not permanent. Are you aware of that? So to understand your question um you made an example of your porch project. What what was the determination in regards to a permanent visual block? >> The the porch project was supposed to be not visible and um the all of the plant growth, the tall hemlock trees around this porch which made the porch not visible from the street. Uh I was told at that time by the town that u that is not a consideration of whether or not the house the the house is visible from the street. So I'm trying to clarify what the town if if what you're aware of in terms of existing shrubbery or foliage of any sort. How does that how is that relevant to Mr. Cune not being able to see the ADU because I was told that if that stuff dies then things change. So >> I'm wondering about what you're asserting. >> Sure. Um well I think that Mr. Pill can speak to the the legal technicalities, but what I'm asserting is that um to to claim injury um the that is special and different from everybody else in the neighborhood, uh the the appellant would have to say something, you know, along the lines of, "Oh, he's he's built a third story deck and he can view right into my bedroom window and that doesn't apply to any of my neighbors." So, the point of the shrubbery and also the distance, uh there's 100 over 150 feet between our properties. Um, and we don't actually share any property lines. Um, CUN is across the street and across the circle from my property. So, it's not like our two houses are 30 ft apart and we can wave to each other through the window. So, that was the reference of that. as to uh the efficacy of vegetation versus fences or walls uh in previous um special permit applications, we've been afforded uh for screening of parking areas and such, either fences or vegetation. So, um I believe that vegetation is considered a viable screening uh between neighbors. Uh that's something that if uh the building commissioner could add to if if need be, but that's my understanding. >> Okay. Thank you very much for that. >> You're welcome. >> Thank you, Mr. Slobeer. The chair recognizes Mr. Offeld. >> Um, I just am curious if you can enlighten us a little bit on how it came to be that the uh uh upper level needed to be redesigned. uh that is the the original design was larger with the closets up there and so on and then that had to be amended as the as the building commissioners described. So could you tell us your part of that story? >> Sure, I'd be happy to. So when we first designed the ADU floor plans, um as Mr. Moira mentioned, the designer uh did the calculations and Mr. Kun pointed out uh that just the building uh space just the the living space for the two sleeping rooms, the bedrooms were counted uh because if you look at the building code definition, it excludes closets, hallways, bathrooms as habitable space. And uh we were told that we could have habitable space in the attic as long as it was under onethird of the area below. and with the input of the building code excluding everything but the bedrooms that is where the discrepancy rose uh when this appeal came to be uh Mr. Mora approached us and explained that difference and then we uh quickly complied with that uh with his explanation. It made more sense. Uh so there was a a bit of a um difference of measurements that uh was clarified for us. >> Thank you. >> You're welcome. >> Thank you, Mr. Offeld. Mr. Meadows, any questions? >> No. >> Thank you, Mr. Meadows. Mr. Thank you. Um I will give you an opportunity to add anything you want since you have some time left before I go to public comments. Um after the public comments um there is an opportunity to add anything. So if you want to rebut anything that Mr. St. Helier said or um Commissioner Moore says, this is your opportunity and you have um about 9 minutes and 21 seconds. >> Thank you. Um, no, I'll keep it brief. I just need to correct two factual statements. Um, first, um, and I'll try to share this again. Um, first, our parcels do directly abut. You can see the two properties here. Um, I don't know exactly the number, but I think it adds up to about 190 feet of, you know, continuous linear um connection. Um Mr. St. Helair's property is in the yellow and mine is in the blue. So you can see the the uh the line being shared. Um second, the ADU is visible from portions of my property and the visibility increases when the the the deciduous foliage is gone. So you know, the owner's own photographs show the ADU from um areas near my property line. Um, but at the end of the day, you know, standing does not depend on an unobstructed view from every point in my yard. So, I directly above the property. We share private access serving it. Um, and so I just wanted to correct those two things. >> Thank you, Mr. Cune. We are at um 728. I did commit to rebuttal time. Mr. San Helair, um, for full disclosure, you have about 7 minutes and 15 seconds. I know you just spoke, but would you like to add anything else? >> Thank you, Mr. Chair. I would like to clarify. It seems that Mr. Cune is uh counting the entirety of New Court as my property when he states that the property lines a butt with 190 ft of frontage. And Mr. perhaps Mr. Bag can bring up the graphic. on the second page of my presentation. But um I do not own the entire public way. That is uh how the tax assessor has shown it on their maps. Um but a previous attorney has explained to me that each of the abutters own to the center line of a private way. So, if we can go to slide two and kind of zoom in a bit on Newell Court, the private way. Um, on the westerly side of Newell Court, I believe that Mr. Cune is is stating that that entire line highlighted in yellow is a joint property line of ours. Uh, however, New Court bisects our two properties. So if there's any kind of connecting tissue at all, it would be between 9 New um but I don't see that you know there there there's a property line that that goes between 3527 and approaches 9. Um so I just wanted to clarify that. Um and I'll leave it at that. Uh if Mr. Pill wants to add anything, I'd like to afford him some time to do that. >> Mr. Cune is incorrect. Um, the tax assessor is also incorrect. Mass General Laws chapter 183 section 58 called among us dirt lawyers the derelict fee statute makes it clear that everyone's property line goes to the center of new court subject to easements and I have tonight just looked at the deeds. Everyone has a right to pass and repass and I respectfully disagree with Mr. Meadows. The fact that a child speculatively might be allowed to be in the street, that does not create standing. Mass General Laws chapter 48 section 17 says measurable injury to a legally protected interest different from harm to the community generally. And according to everything that everyone has put up here, Mr. has a house beside his, two houses across the street. Looking at someone else's house in densely packed new court does not give standing. That's not measurable injury to a legally protected interest protected by the Amoris zoning bylaw different from harm to the community generally. And under the deeds, if one goes through the title history, and I'd be happy to submit that if the board wants, everyone has an equal right to access up and down new court. And in other words, there's been no basis for standing. Furthermore, and and um has Miss Morton left the hearing because I I specifically wanted to address her concerns. Oh, there you are. Great. Thank you so much. Two things. One, I think Ms. Morton made a very insightful comment about the need to amend the zoning bylaw. Mr. Moira also stated that when he was interviewed by Ammerst Indie, if there is an issue here, that's what needs to be done. Go to the town council mass general laws chapter 48 section 5. The bylaw provides it. It's cited at the end of my memorandum. That is the way to deal with this. And with respect to the issue about what Mr. [clears throat] St. Hillair did. What is absolutely crucial to keep in mind is we're talking hundreds of thousands of dollars from January to May when his building permit was completely unchallenged due sadly to Mr. failure to inspect the plans, which as you've seen, the habitable area in the attic in December was even larger than the habitable area today. And I respectfully submit the legal authority I cite makes it clear that it was Mr. Cun's obligation to inform himself as to the law and to review all of the plans, not blame Rob Mora because he asked for something and didn't get what would have showed what he waited 5 months to challenge. Alan St. spent hundreds of thousands of dollars from January to May while Mr. Cune allowed the statute of limitations 30 days from the issuance of the permit when he knew about the permit. And the case law I cited makes it clear that's the operative point in time. The statute of limitations expired. And now Mr. Cune is asking you in effect to destroy his investment. Of course he can rebuild the property. He shouldn't have to do that when he proceeded in good faith for five months and spent hundreds of thousands of dollars. This belongs in the hands of the town council. Um, and the only other thing I want to note is um I would hope that and I note that Mr. Cune and believe it or not he and I agree with something with his supplemental supplemental submission. He asks you I believe to make findings both on the statute of limitations issue and on the standing issue and I respectfully submit you have an obligation to do that. I do certainly hope you know you are free to make um what would amount to dicta comments about the merits of the case but it would be grossly unfair as well as not correct legally to pull the rug out from under Allen St. Helair. Please take this to the town council and clarify the zoning bylaw. I I certainly don't dispute it could use some clarification. The final point is with respect and again I'm I'm glad Ms. Morton is here a true addict Ms. Morton and I'm I just did a little online research but I'm familiar with this. I have a master's degree in planning. I'm not a practitioner like Mr. Bag but I do have a master's in urban planning. The Mansard roof m there's a number of them in Ammerst in 19th century houses. It dates back to 15 16th and 17th century France. uh Francois Monsart M-N was the architect. In other words, an attic as living space has been part of building design and construction since the 16th and 17th century. And those are as much true addicts as the attic here. And I respectfully submit that supports um Mr. Moira's interpretation. Um, I thank you very much for your time and um I app I'll I'll be quiet now. 3 seconds to go. Thank you. Thank you everyone for um your presentation as well as your answers. Um at this time I will take comments from the public. Um members of the public who wishes to make a public comment on this um appeal may do so by raising their hand or pressing the pound nine option on their telephone. Um please be mindful that public comments are limited to 3 minutes and given that there are a number of people in the audience we will strict very close to that 3 minutes. We will strictly adhere rather to that 3 minutes. Okay. And so in the audience, I see I'm going to promote Molly Strahorn um to panelist so she can unmute. And then I see Ira Brick. Those are the first two people that have raised their hands. So just give me a moment to do that. Okay, Miss Strayhorn, you should be able to turn on your and I see some other hands going up, but I you should be able to turn on your camera and unmute if you wish. And as a reminder for everyone before you speak, please just state your name and address for the record, please. >> Thank you, Mr. Chair and members of the committee. My name is Molly Ryan Strehorn and I am an abuter. My address is 35 New Court. I directly abut 27 New Court and you can see me on that map. I was also referenced in um Mr. CUN's uh original filing because there was an email exchange that I saw in December to get a copy of the plans. When I got the copy of the plans in December, what I saw was an ADU that was less than 900 square ft. Three Matun, which is actually the house right across from me, is 909 square ft. So in my mind I thought I understood what that would look like in our neighborhood. As has been mentioned, we are a very densely populated neighborhood. We are on a private road and to address the particularized harm, we do pay for both the upkeep and the plowing of this driveway. So, an additional neighbor definitely has an impact on the livelihood of the neighborhood and all the money that we put into maintaining the road. I'd also like to say that the infrastructure that we have also would be impacted, including the trash, water, sewer, privacy, and noise. because noise can travel through any kind of bushes, any kind of foliage, whether it's winter or spring. Uh that definitely impacts us. The other thing that I would like to say um about our particularized harm is that uh we we do a good job as a neighborhood making sure that everyone feels welcome and livable in our neighborhood. We train undergrads when they're driving down the road and we make sure that noise is respectful to everyone. So to address one thing that u Mr. Helair said is that five people could live there whether it's 900 square ft or the proposed 1,200 square ft. So if he they're confined to the first floor then I question what the particularized harm for him would be if he just had to have people living on the first floor. if he can have the same number of occupants whether it's 900 or 1,200 square ft. Let me look at my notes to see if I have anything else I'd like to bring up. I think um I would like to I just add I I appreciate everything that Noah has brought forward so that you can address this. It's going to be something that comes up a lot in Ammerst. I' I'd also like to submit written findings after this to talk about the impact that this has on my family. I I see my time is quickly eroding and there's other people who want to speak. Thank you for the time, Mr. Chair. >> Thank you. So, I'm promoting uh Ira Brick as a panelist and I'm going to um move Miss Strahorn back as as an attendee. >> Hi, I'm Ira Brick from District 4. The spirit of Ammerst ADU rules and the state law behind them was to add modest housing options, not to open the door to what is effectively a second large house with four bedrooms. That's the concern many residents are raising now. The law was sold as a way to create small secondary living space, but the way it's being used today may be stretching that intent beyond recognition. It's also hard to ignore how little interest there seemed to be in ADU's enamorous before this recent loophole or confusion. And then suddenly there are nine permit applications according to the building uh uh supervisor. I've also heard there are over 40. I just put in a request for that today. That suggests the rules may be creating an incentive for a kind of development that was never the real goal. Ammerst should not be afraid to say clearly that it needs rules that fit Ammeris, not just generic state language copied onto every town. One of the biggest problems is the use of gross floor area instead of actual living space. That is absurd. If the goal is to regulate the size of a real home people live in, not every inch of unfinished or incidental area on a plan. The town should be measuring what actually matters, the habitable space that creates a real residential unit. I think Ammer should pause and put a moratorium on ADUs until this is sorted out cleanly and openly with the state. I also think the town should have a legal fund so we don't just forfeit ourselves because we avoid being confronted or sued when we do what is good for our town. This is not anti-housing, it's responsible governance. Other communities, Nantucket and Marthur's Vineyard to name two brave towns, have been willing to stand up for their local needs, and Ammer should be just as brave in protecting what makes sense here given our circumstances are different from many other towns in Massachusetts. I also want to say that possibly the delay in Mr. tune complaining is that uh Ammeris now doesn't notify neighbors of an accessory dwelling unit is being built nearby and they're built by right and only require a building permit. And the other thing about fitting five people in an ADU, I just quickly asked AI how many people fit in a 900 foot ADU and it'd be like they are typically one or two bedrooms with the living, dining, and kitchen area in an open concept being 350 to 400 ft. Bedrooms 250 to 350 feet. Bathrooms 50 to 80 feet. Hallway closets and utilities 50 to 100 square feet. So that 900 square f feet gets eaten up quickly before you can squeeze five students or people in there. Thank you so much. >> Thank you, Mr. Brick. So now I'm promoting uh Aaron Gold Goldman and you should be able to unmute yourself and turn your camera if you wish. And I'm going to I'm going to move uh Mr. Brick back into as an attendee. >> Um hi everybody. Thanks for letting me uh chime in here. Uh I'm going to butter. Um maybe you could bring up the plot map so you can see my my property. Um, it wasn't labeled um for some reason on the map those up, but I can point it out. Uh, I'm a butter to this property. I'm also an a butter to one of Allen's other properties on the other side of my property. Um, and I also have two kids. And uh um uh it it everybody keeps using the word like maybe it's counterintuitive. I don't think it's definitely counterintuitive, but I think what people really mean is it's it's contrary to the purposes and objectives of this board, of the town, of the values of the intent of the legislation. So at a very minimum, even if you feel forced to be to approve this, um it seems like it would be very appropriate for this body in the town of Ammerst and even the planner to say this is completely contrary to our objectives and values without um prohibiting the the the what what he's doing perhaps. So that seems to be what the subtext of what several people have said already. Um, in terms of the the the measurable injury, it's definitely safety. It's definitely visual. The point about these projects just spontaneously appearing is is disturbing. That's not neighborly at all, right? That's designed to get away with stuff, right? Loopholes, the word has been used. Bonus. Um, and uh um uh oh um Mr. Pill keeps talking about how he spent hundreds of thousands of dollars. He said that like half a dozen times. If someone is spending hundred thousands hundreds of thousands of dollars in ways that are contrary to the objectives of this board and the town and our values, that's not something we automatically try to support and sustain, right? That becomes an an expression of the threat. Mr. Pill, not a reason why we should support his his his work. Um, and the other thing that we all know but no one's saying is this is for student housing, right? And I'm all for densification, but that has a tangible, measurable um, impact on the quality of life and property values, right? We all know that we're trying to make sure that we have real neighborhoods with families and sure, sprinkle some students in here, but one by one, the town is being converted to uh, dormitories. Um, and Allan has done a good job of uh uh of making sure that the tenants are relatively quiet, but when they have guests, they're loud and every weekend there are beer cans thrown over the over the over the fence, right? So, that's just a fact of life of having UMass students around and it needs to be done in a in a moderate, sensible um uh way. And we can tell with the basement and with the the attic that every measure is done to artificially create more space. >> Thank you, Mr. Goldman. >> Thank you. >> Thank you. Uh so now I'm I'm promoting uh Panzang and then the person after that who has their hand raised is listed as James Mallister and then after that there are currently no other hands. trying to again for Mr. Zang should be coming I'll give that one more try. So, it doesn't seem to be working for Mr. Zang. I'm going to try another option, which is to allow to talk. So, this should allow Mr. Zang to unmute and at least speak. If hopefully that will work. Mr. Zang, you should be able to speak and you've been promoted to Oh, it looks like you declined to be promoted, but you should be able to unmute and talk. Maybe you try that. >> Hello. Can you hear me? >> No, we can. >> Okay. Thank you very much. Uh, good night. Uh, I just have one one thing to point out. Uh so if the ZPA member decided to say building commissioner made a mistake interpreting interpreting the bylaws and the state law and ADU and stuff we are just joining the 20ome tongue already say that to the state and then so it will be 20ome plus one saying the same thing and this is like let's say fool's eron right this is not the right forum and this is not the right channel to do that. Again, it has been pointed out more than once, there is the right way to do it. And even if we reduce the square footage to I would say two bedroom, threebedroom, the demand is there. Okay, there will be supply to meet the demand. What we are talking about doesn't really change anything. That's my honest opinion and that's that. Thank you very much. >> Thank you, Mr. Z. Great. And then the person that says James McAllister didn't uh un raise their hand. And I'm going to try promoting um what's labeled as iPad MO with a bunch of numbers. So that person should be able to turn on your camera and unmute if you wish. We cannot hear you, ma'am. Mr. Chair, obviously the person's having a little technical difficulty. I could move on to the next participant and keep keep uh this person on on panelist in case they can find the >> sound. Um so I'll be promoting a person named Magnus uh Wenameir. So just bear with me for a moment here and promote to panelist. So uh Magnus should be able to unmute and turn on your camera if you wish. >> All right. Can you hear me? >> Yes, we can. >> All right. On the first try. Yes. I'm Magnus Wimir. I live on Grey Street. Uh there are three of these coming up um within a 100 yard of us. Uh we own uh 65 Taylor Street also and one is the direct neighbor to us. I don't want to belabor what's already been stated, but I wanted to emphasize this point that we were never given any notification and there was never any invites to uh any ZBA meetings regarding any of these properties near us. um which may be the the the appropriate process, but I I would submit that it would be better if public comments were um invited uh when you know really there's a big building coming up right next to uh neighboring yours. Uh and in this case there there wasn't for either of these. And I don't know if that was just the mailman or or what, but um um I would humbly submit that um that would probably be a preferred process. Thank you. >> Thank you, Mr. Meyer. >> Okay. And then the last uh the person named Jay Mallister did re raise their hand. I'm going to promote them the panelists and maybe we can give that other attendee one more try. So, um, James Mallister, you should be able to unmute yourself and turn on your camera if you wish. >> Okay. Can you hear me now? >> Yes, we can. Thank you. >> Okay, good. So, I live um right next door to um the ADU that we're talking about. It uh and and speaking about having no information about this, um when I actually when I walk out my side door, it's right there in front of me. Um, I had asked Mr. Saint he I saw him measuring in his yard sever quite a few months ago and I asked him what he was measuring, what was going on. He said he's built he's measuring for a garage for the girls who live in the house. So that's the information that I got. Um, not only did I get no information, I got misinformation. Then all of a sudden, several months later, there's a um trees are coming down and um there's a um you know, the basement is being built and the foundation and um and I asked him who is going to live there. He said a family is going to live there, not a whole bunch of students. Um and I me and I mentioned to him that uh now I no longer can see the mountains. I had a view of the mountains. He said, "Yeah, but you only saw them in the in the in the winter time when there weren't any leaves." And um and then the the the most horrible part about it is that the he built it so that the bedroom upstairs looks directly into my uh upstairs bedroom and my downstairs my bedroom. And my bedroom has uh a deck and it has sliding doors. So, one wall is a is a is all glass. Um, and I no longer have any privacy at all. And my and who whomever stays upstairs in the bedroom has no privacy. It And he built it exactly so it views right into my room. He didn't put it back a little. He put it right there. snack smack smack dab right in front of, you know, directly with a view into my bedroom and I'm just, you know, it makes me want to leave Amherst. You know, we've been there 15 over 15 years. Well, my husband has passed away now, but you know, we've lived in that house and um I you know, it just makes me want to leave Amherst. You know, everywhere when I walk around the neighborhood, every every everywhere I look down the street, there's another one of these popping up. You know, I feel like I'm living in the city. I think that this is just ruining Amherst, the quality of life in Amherst and and it certainly has ruined my quality of life. That's, you know, I have to now buy find a way to block that view right into my house. It also views into my kitchen and views into my dining room. That's not as as much of a privacy issue as it is in my bedroom. >> Thank Thank you for your comments. >> May I ask maybe I missed it. Did you get the name and address for the record? I I may have missed it. >> My house. >> Just your name and address. Yes. 12 12 New Court and it's Ununice Eu N I C E Macallister M A C A L L I S T E R. James was my husband. He passed away in March. >> Okay. Thank you. >> Thank you, Mrs. McAllister. >> Okay, >> Mr. Magaz. There are no other hands raised um in the in the participants list. >> Thank you very much. It is 8:00 and we do have another applicant that was continued from July 9th on tonight. There is a lot of information um that was presented. I know we've spent time going through most is possible that some of us may need more time. I know that I do need some more time. Um I took detailed notes here as well as before I was reading. Um so at at this juncture I would suggest we continue this to a date certain give us time to think this over. Um and then come back on that date and deliberate on this appeal. If members of the board think that they are in a position tonight, I see no I see no heads in the affirmative. Um, so I think we're all in agreement to I see Mr. Silver's hand. >> No. >> Yeah. >> No. >> Mr. Silver, you're on mute. >> Yes, I was. Um, we've heard a lot of information, but I don't know that that precludes us from making a decision tonight. uh we need to go to I believe we need to go to a public meeting after this in order to share our views and then vote, but I don't know that that would automatically preclude us making a decision tonight. I'd be I'd be willing to do it. I might suggest that it's 8:00 and my back would like a 3 to five minute break since we're a half hour after our normal break time. But uh I'd be I'm willing to go forward tonight. I don't think it's going to take that long. >> So I I agree with Mr. Slovder. I don't believe we want to push this off to a date certain. We want to do it tonight. We've had plenty of information. Sleeping on it is not going to do us any good, nor forgetting some of the things that were said tonight. >> I think we we we have had many meetings that have gone to 9:30, 10:00 before. We can continue on and as long as we need to. Thank you. As a matter of procedure, let's go in the public meeting um to have that conversation and then in fairness to Mrs. Sloer, we vote for the public meeting and we'll take a quick recess and then come back. >> It's 8:00. >> Yeah. So, I would entertain a motion to move to a public meeting to deliberate on the appeal while keeping the public hearing open. Is there such a motion? >> So moved. It has been moved. Is there a second? >> Second. >> It has been moved and second. Any discussion? >> With no discussion, the vote occurs. Mr. Ser >> I. >> Mr. Offeld. >> I. >> Mr. Meadows. >> I. >> Mr. Morton. >> Sorry about that. I >> thank you. And the chair votes I. The vote is 50. We will now move into public meeting while keeping the public hearing open. And given that we've been here to Mrs. Slover's point for the last two hours, as a matter of order, um, let's take a 5m minute recess. >> Thank you. I I can hear you. So, they need four votes to overturn MORA. It's called the supermajority. Um, how do you read those five people? Who's Ununice Mallister? What's the story there? >> Attorney Pill, Attorney Pill, you're on mute. I I am sitting here, but just so you know, you're >> I'm so sorry. I am That's okay. Mhm. I think the full panel is back. I'm not sure if Mr. Meadows you're there. I see that you are unmuted. >> I I'm I'm here but I'm eating something and I I don't want to uh make anybody hungry. >> That's okay. I understand. So, we are in the public meeting. So this is not um an opportunity for um the applicant or the appellant um to add information. This is a chance for um the board to deliberate on the appeal as well as get a temperature of where people are in terms of the position. So I will go around my screen um to get people's um input and I will go by order of my screen um and I will start with Mr. Ael. >> Uh Mr. Chair just to clarify you had commented on uh postponing until a date certain. Is that something we're not going to do? Is that what we're discussing or are we discussing the actual case before us? >> So I will leave it as if you are comfortable um making the decision tonight. Um so I think there are two options um making the decision tonight or continue to date certain and I will leave to each person to make that determination based on what you heard what you've read and how much time you need and then we put it to a vote. Okay. Um, and I should Are you interested in where people are leaning or inclined on the on the case itself? >> Yes. >> Okay. Very good. Well, I we have uh uh you know, this is the beginning of my second year on the board and I I I believe this is the first appeal we've had of this sort. Um, and it I think it's probably the largest volume of material coming in on a on a uh case before us and I haven't digested it all. We got something even this a late afternoon or evening. Um, so that's just u a fact. I've read much of it, but um uh so I I could make use of I I could review more material. I think I'm getting the picture though and I I have a preliminary uh inclination. Um, from what I've seen so far, and again that's it's incomplete, but uh, from what I've seen so far, um, I'm concerned about standing of the applicant. Um it's not clear to the we're we are we are charged with reviewing orders and decisions of the building commissioner. We can we can receive appeals of those. So was the May uh email correspondence that's been described was does that constitute a decision? I'm not so sure. That's a question for me. was the decision point the uh uh issuance of the building permit. I think that's more likely. Um the harm claimed that whole issue is something I might want to look further into. what we've heard from many commentators, both the those who gave public comment this evening and and thanks to all of them for speaking um and and also some letters we received was a um very uh uh clear concerns about um uh these ADUs being built with no notification to the public. or neighbors rather. Um, ADUs being uh put in put in neighborhoods and concerns about noise and and student parties and traffic and so on. These are all legitimate concerns, but it's state law and and we have no control over that. Uh, we also heard that the um definition of the attic is um strange, unusual perhaps. >> That does not make sense. We've heard several several of our um >> Hello. >> Someone accidentally unmuted. I just muted them. >> Okay. Okay. Uh we've heard u uh even I I I think I'm correctly characterizing Mr. uh Commissioner Moore's statements that the the staff isn't terribly happy with that definition, but that's the definition we have and I'm not clear that it's the role of this board to um change the zoning bylaw. I think that's up to the town council um and we just have to enforce the zoning bylaw as it exists. So, um, [snorts] I think that in a nut I I'll stop there. I could probably say more, but that's that gives you a rough idea of where I'm at. >> Thank you, Mr. Offeld. Going back to Mr. Meadows, I think I skipped you. >> I don't know if you skipped me, but I'm >> No, [laughter] >> I didn't know. We've never had a line, so there's there's nothing to skip. Um I I find um the tortured explanation of how definitions for addict came about to be um somewhat similar to our current administration's definition of what's going on in Iran. No, it's not a war. It's a conflict. Well, it's not an addict. It is an addict. And it is this board's obligation to make a decision here that should impact ADUs going up from now on. If it were not our obligation to make a decision, then we wouldn't be in line to do so. I find it impossible to go beyond the 900 square ft that is called for for an ADU. In my estimation, any additional square footage makes it not an ADU. Be interested to see what the other board members feel, but I think you understand where I'm coming down at this. >> Thank you, Mr. Meadows. Mr. Slovener. The definition of an attic is an unfinished space or room located directly below the pitched roof of a building. Most often utilized for storage. The definition of attic includes function. An attic is normally used to store things. Suitcases when you are not traveling. Christmas decorations for 11 months of the year. Boxes of personal items that people are too sentimentally attached to to dispose of. In almost every case, a real attic is not finished and normally does not have easy access in the form of a per of a permanent staircase. It also does not include a bathroom. A building of this size would normally have a pull down stair access rather than use precious living space for a stairs that is seldom used. You can call something anything you want, but that doesn't make it true. I can call my Honda a Ferrari, but it's still a Honda. The rule of whether this is an attic or not in this specific case turns on 21.6 six square in which is half the size of a standard number 10 envelope. No one disputes the byite ADU under 900 square ft. But this but the ruling that the attic that that the living space on the second level in this case is an attic and not uh not residential living space or however it would be called makes a mockery of the ADU 900 square foot rule. Not counting the second level seems a clear attempt to circumvent the rule and its intent. It is disingenuous to deny this clear attempt at increasing the number of occupants beyond the two on the first floor in compliance with the intent of the ADU rule. Even the crawl space, which is also excluded, would easily accommodate another occupant as long as he was not a member of the UMass basketball team. It is almost certain that it will be students as occupants. The history of rentals in Ammerst indicates two things. Four bedrooms means four students and four cars. Non-owner occupied means more likelihood of a nuisance which we are charged with preventing. I respectfully disagree with Mr. Afeld that we are forced to enforce the rule if it conflicts with our sense of what is right. I agree with Mr. Meadows that we are here to make a decision. Common sense has a role here. It may come down to a question of definition and our but our responsibility is to use our brains and our common sense and our sense of civic duty to protect the residents of Ammerst. I have a I understand that there are definitions and all of that, but I cannot support this uh project as it as it stands, calling two bedrooms and a bathroom and walk-in closets as not being uh space that is counted in the um the square footage of living space. Uh so I um well that's what I feel and I think that we are charged with using our heads. Thank you Mr. Chair. >> Thank you Mr. S. Morton. I have to say that I agree with David and Craig that the intent of of the the the ruling the law is that it's supposed to be a small unit and including that space on the the upper floor is cheating. So that's that's my the the way I'm leaning. >> Thank you, Miss Morton. >> For me, the core question comes down to um both the GFA definition under the CMR 760 CMR 71.02 and bylaw 5.0112. Count the sum of areas of all stories of the building of compliant ceiling height while excluding crawl spaces, garage parking areas, attics, enclosed porches, and simmer spaces. For me, the question is whether the finished second floor space shown on sheet P3, two bedrooms, a bathroom, closet, stairs, and landing under a stated 8 ft to 81 ceiling height falls within the addex exclusion. I think it does. We might not like the idea that um it is being used as an ADU because of the square footage that is required. But by the definition itself that Mr. Moore presented that the bylaw excludes attic from the gross GFA. Um an attic is an attic. Um one of the reasons that um rather you know the exclusion has no qualifier that it has to be habitable and that omission has to be meaningful. So even though that you know even though it has been built out nothing in the bylaw or the statute that allowed automatic ad use by right limits the word attic both simply exclude addicts full stop in the same clause as crawl space garage parking areas and enclosed porches. So wa state regulation uses unqualified language that a comparable local bylaw elsewhere uses in qualified form. The absence of a qualifier I would argue is evidence that no such limitation was intended. So I support um Commissioner Morris's position that it is an addict under the definition of the bylaws. I appreciate what the abutters are saying about you know the ADU space and that is a separate issue. Um the ADU there is no argument that the state law the bylaw requires that ADU be a certain square footage otherwise it is not. But that is not the core argument. Um I think that's before us. The question is an addict by definition in the bylaw in the statute is excluded from the GFA and I think um by the reading the interpretation listening to Mr. more looking at the statutes um I would argue that it should be excluded on a practical perspective there is very little modern buildings today construction wholly unfinished storage only attic space of the kind that Mr. Coon's reading would require to trigger the exclusion at all. So if attic means only bare uninhabitable roof cavity space the exclusion would rarely apply to any modern ADU built with a habitable upper level rendering the word close to useless. I think that um I've read a few cases earlier and I think that Massachusetts courts read statutory and regulatory text to give every word an operative function and where a reasonable alternative reading is available and the commissioner's interpretation that attic refers to any top floor space within the roof line of the structure whether finished or not gives the exclusion real continuing meaning consistent with how the term functions elsewhere in the same bylaw. So, as much as we may not like that, you know, it's going to be built out, it may have five occupants or many occupants, my position is to support Commissioner Mo's position. And I know that um I I think from I I know that Mrs. Silver, Mr. Meadows and I think M Miss Morton is um against that position. I am for that position. Mr. Offeld I don't know. Um because we need four out of five to override Mr. Moira. >> Mr. Chair. >> Yes, Mr. Al. >> Uh yes, I at this with the information I have right today, I would I would support Mr. Mor's U decision. >> Uh again, it's not my my and it's based on my understanding that what our job is as the ZBA is to interpret this the bylaw as it exists, not as as we wish it would exist. And I don't see any misinterpretation by Mr. Mora. I the I'm I'm looking at the definition. I've heard the numbers tonight and it appears that he has properly applied those definitions. So I don't see any error on his part that needs correction by us. >> I I am of that position. [sighs] >> Mrs. So there >> I almost hesitate to say anything because it looks fairly clear, but I would like to make two brief points. One is that I don't believe that we I believe that we are charged with protecting the residents of this town, not interpreting exa exact state laws. There are attorneys to do that. I believe that we are selected by the members of this of this community to look out for them and to use our common sense. So I would uh just like to reinforce the point that we each have votes that we can exercise based on what makes sense to us. And I think that's really important. The other thing is that I think that failing to go on record challenging a a definition that makes absolutely no sense sets a bad precedent for the town and for the ZBA. So I understand Mr. uh the chair and Mr. Afeld's positions. I respect both of you greatly. I know that you make these decisions with integrity and commitment. I just dis I think there are other factors involved here that we need to take into consideration. Thank you, Mr. Chair, for hearing me out. I appreciate it. >> Thank you, Mr. Slobe. Mr. Meadows, >> I I feel very similarly to Mr. to David that the charge that we have in our ZBA um requirements is that we are to look after the benefits of the town and the people in the town. The suggestion that Michael Pill made that it doesn't make any difference. If the children are walking down the street, we're not here to protect children and that the laws of the state don't protect children in that way. I I don't feel that way at all. I feel we need to protect the town. We need to protect the occupants of the town, the people that live here, that vote here, and that expect us to do something that is reasonable. Now I I understand where Mr. Moore is coming from. He's trying to follow some contorted definitions, but the definitions become contorted as a result of not the thought that you're considering, Mr. Henry, but by people not thinking. If it weren't our job to make interpretations every time that we gather as a ZBA, then there's no reason for us to be here. We have to make decisions based upon how we see that decision affecting the people that live in this town. I've I've been here for over 50 years. I've seen a lot of different ways that things are interpreted, but it is usually to the benefit of the people of the town, not to try and stick with a definition that the state pushes down on us or that was mistakenly put into our town bylaws because I know it was a mistake having talked to some of our town counselors. It perhaps is up to the attorneys in the long run to make a decision, but it's up to us tonight to make a decision to the benefit of the town. >> Thank you, Mr. Meadows. But my my response to that would be it's I wholeheartedly agree with um you and Mr. Slater in that we are charged to protect the town of Amherst and I would suggest that the position that I'm taking with Mr. Ael is in concert with that. It's our decision um to say that the bylaw as written is meant to be interpreted. If we I s I would say that if we take the position to redefine what an addict is, then we may have other applicants come before us with similar things to say, you know, this word makes no sense. You guys need to change this. That is not we are not charged with changing the bylaw. That is town council. And I think that was said by a lot of people um as applicants arguably in some public comments that if there is an issue with the text and the language of the bylaw then it needs to go back to town council for them to modify that. But until that happens we need to um act within the confines of such bylaw. So Mr. argues the exclusion common thread is ancillary non-primary living space. So addicts must mean only unfinished space but the common thread I would say among crawl spaces, garage parking areas and enclosed porches is not habitability. Enclosed porches are frequently finished as you heard from Mr. Amador heated used as a living space yet are excluded regardless. The better common thread is location and building form. Each excluded category sits outside the building's primary living floor envelope below grade within a grade bay in an attached appendage or under the roof line, not a habitability test. And I think that's what Mr. is asking for here. Um, so if we read the bylaw that way, attic fits the same pattern as enclosed porches excluded by location and construction type, not by whether it is finished. [clears throat] So even though the intent here is to add all this living space in the attic and one of the questions I ask Missa is if it is built out, does that change the definition? And under the bylaw, it does not. And I think as much as we may argue or disagree that, you know, it's going to change the fabric of the neighborhood, and I submit it absolutely will, um, that is not what the question is before us, and I yield to Miss Morton. >> Thank you. Um the taking into account enclosed porches. Enclosed porches are only a threeseason space. They are not a a fully occupied um space like what we're talking about on the um second floor of this building. The second floor of this building is a yearround space. Um, and so I would say that that those are not um th those can't be held as being the same type of space. Same thing with a garage. You don't live in your garage. You park your car in your garage. Um, so I I I don't see that those are the same thing. Um and the the intent of the 900 square ft for these ADUs is that they should be not more than 900 square ft. Not that oh well if somebody builds out space in their attic we don't have to count that. I would say the attic is the second floor and not the attic and it is usable space and therefore needs to be counted. Thank you Mr. Ser. um a an enclosed porch, a garage, other things like that do not in do not increase the number of occupants in in a building. They are shared by the occupants. The number of bedrooms determine the number of occupants. But that said, um I would be in favor of not continuing to go around on this. I think we're all clear and while I am intensely displeased, I would like to call for a vote and move on. >> Thank you, Mr. Meadows. >> No, Slovor Meadows. Meadows is [laughter] Meadows is the goodlooking one at the bottom of the screen. >> I'm the older one [laughter] >> barely. >> Thank you. Thank you, Mr. Ser. So I I think um it seems that we we have um and I will put this out there. Um I am comfortable taking more time to review and if there's anything that changes my mind, but my vote tonight would be to support Mr. Moa. Um, so if we are going to have a vote on this appeal, um, and I will give people options if it's an up or if we can do an up or down [clears throat] vote and resolve it tonight, um, or we can take things away and contemplate and just come back to a public meeting and make a decision. Mr. over there. >> Well, if that is if that is possible and you and you would like the opportunity to review and think about this and if Mr. Rafael would like to read the rest of the application that he hasn't had a chance to read yet, then I will be happy to change my position of let's vote tonight and let's put it off to a date certain if gathering more information will be productive. So, do you want me to make a motion that we do that? I don't know what you want. >> Yes, Mr. Sloer. So I would entertain a motion to continue this to a date certain um for a public meeting. Is there such a motion? >> So moved. >> Before we do that, I see Mr. Bag's hand. >> Sorry. I I think it's just a process question. So, I didn't mean to interrupt and I don't know the right time to ask this, but if you're proposing to continue this to a date certain, can you just clarify how you as a board handle the public hearing portion and whether you're accepting new information because I do want absolute clarity of whether you're continuing a public meeting would be no additional new information is submitted or it's a continued public hearing and you're going to get continued information. I I would like clarity as to how you normally handle that. I haven't sat with you guys for for very long. So, if you can clarify that as you talk about continuation. Thanks. >> We did keep the public hearing open, but the intent is to not relitigate. It's to go into a public meeting when we reconvene. So, I I wouldn't accept additional submissions. >> It's to we have a multitude of information already. Um I think you know just go through digest um if there is I I I don't necessarily think that we should take new information because then that could open the floodgates. >> Go ahead, Mr. Beck. >> Great. So, I just wanted to be clear that. So, I think my advice would be that the public hearing is closed and you're continuing the public meeting portion of this to another date. I just want to be super clear because we have to communicate with a bunch of people who have interest in this. So, I know that you probably handled it a little bit differently. I just want to be as clear as possible that you don't want to like the board is no longer accepting written testimony of any kind. Um, as you move to the next meeting, >> I can revise my motion if that will help you. >> Go ahead, Mr. Silver. I move that we close the public hearing and continue and and continue the public meeting to a date certain most likely >> August 13 August 13 the next time we have a scheduled meeting. >> Yes. Is there a second to that motion? Second. Second. >> Any disc any discussion? >> With no discussion, the vote occurs on the motion to close the public hearing and continue the public meeting to a date certain of August 13. Miss Morton, the vote. >> Uh, yes. >> Mr. Offeld, >> I. >> Mr. Mr. Slovener >> I >> Mr. Meadows >> I >> and the chair votes I ZBA FY 2026 dash 1927 renewal court is hereby continued to a public meeting to a date certain of August 13th um 2026 and let's put that first on the agenda 6 p.m. Mr. Bag got it. Thank you. This Thank you everyone for participating and appreciate if this may not be the decision you want to hear tonight, but I think continuing it um allows it to be fair for everyone. And so, um thank you for your patience while we work through this. Um, our second order of business tonight, um, and before I bring them in, thank them very much for their patience, is ZBA FY2026-21 1112 to 114 North Witness Street, which has been continued from July 9th, request for a special permit for change of use from a 4units building to a non-owner occupied duplex under section 3.3211 non-owner occupied duplex, an expansion of pre-existing non-conforming structure by enclosing an existing front porch under section 9.22. Um I know we continue this as I said from July 9th and again attorney Barbowski, Miss Goo, thank you very much for your patience. This is a very long night not just for us but for you as well. Um, being respectful of your times and our times, I propose that we have this public hearing. Um, and we continue the public meeting to a different date certain. That way, we're not here till 10:00. So, I don't want to kick this again, but I want you guys to have your hearing. >> So, um, Attorney Barrowski, Miss Goo, um, just bear with me. I do have to go through um the submissions. Um and so um just give me an opportunity to pull up. Um so on this application for North Whitney, the submissions um dated May 11th, May 28th, and July 17th. Um, for the ones that I do not read into the record, they can be viewed on um, the town website under the document submissions. We have a cover letter, the special permit application, the sample agreement, application form, complaint response plan, site plan prepared by Bergkshire Design Group, existing building plans, proposed building plans. Um the May 28th we have the cover letter, special permit application, sample agreement, application form, complaint response plan form, site plan prepared by Berkshire Design, um existing building plans, proposed building plans, and as of July 17th, we have an updated cover letter by Paul Browski, rental property management agreement with Hampshire Property Management, residential lease agreement, um elevations, first floor, second floor, foundation plan, and cross-section prepared by Laura's home drafting and design site plan layout prepared by Berkshire Design Group. Um there are no staff submissions. Um we previously had a site visit on July 7th. There was not one this week. Um so um in terms of permit history, it was initial special permit um ZBA FY1 1957-1 and a for Porsche renovation in ZBA FY1987-22. Um, Chan Berowski, Miss Goo. Um, welcome. The floor is yours. >> Thank you, uh, Mr. Chair and the ZBA. It's been a long night already. Um, I appreciate you hearing us tonight. What I was hoping to do, if I may, would be to do a quick summary, 30 seconds or so, and then go into the various aspects of the proposal. Hopefully, that'll accelerate your knowledge um and eliminate some questions. Um if that's agreeable, I will begin. So this, as you I think you know, this is [clears throat] a plan to convert a lawful four-unit building into two vertically organized duplex residences, coupled with physical rehabilitation, removal of obsolete apartment circulation, improved private outdoor areas, a continuous party wall separation, organized parking, and professional management. The plan preserves the existing building footprint, the roof form, the height, and overall residential scale, does not add floor area to the principal building, or increase lot coverage. The internal work removes two kitchens, reorganizes the building into two side byside vertically connected homes identified on the plans as unit A and B. Each unit has its own front entrance, internal stairs, firstf floor living space, second floor sleeping area, basement access, laundry, furnace, and electrical service. The plans remove obsolete exterior apartment circulation at the rear, separate the rear decks, enlarge the usable deck areas, and provide new stairs to grade. The front covered porch is rehabilitated as two threeseason porch areas within the existing porch roof and footprint. The existing structure is retained and reinforced as needed. The plans also show a continuous central party wall concept from basement through the upper floors um with a type X gypsum board indicated on both sides. Subject to final building commissioner and fire department review. It formalizes four 9- foot by 18 foot parking spaces, two on each side of the building, while retaining the existing building and mature site character. If we look at the site plan, there are four formal off- streetet spaces shown and they're approximately 9 ft by 18 ft. The building footprint, as I mentioned, remains unchanged. That's the principal building footprint. The plan notes a new rehabilitated porch and landscaping, but shows no enlargements. Moving on to the exterior elevations in the front. The existing front roof and porch roof remain. The proposal works within the existing porch footprint. The former open covered porch is divided into two threeseason porch areas, one for each unit, by adding exterior walls and windows where railings presently exist. The existing concrete columns and framing are to remain and be reinforced as needed. The existing central front stairs remain and are repaired as needed. The front facade remains symmetrical and residential in character with separate unit A and unit B porch areas rather than multiple unrelated apartment entrances. In the rear and side elevations, the existing covered rear porch roofs remain. Each rear deck is extended outward by approximately 5 ft, increasing the depth from appro approximately 5t to 10 ft. The existing connection between the two rear decks is removed, creating two distinct outdoor areas rather than a shared circulation platform. New stairs to grade are provided, improving direct access from each unit's rear deck. The existing upper level rear door and landing are removed and replaced with a bathroom window, eliminating obsolete exterior access associated with the former apartment arrangement. Moving on to the inside, [clears throat] the first floor plan is divided into two mirrored side byside units, A and B, around a central party wall. Each unit has a separate front entrance through its own three-season porch area. Each unit contains a firstf floor bedroom at the front, a living room, dining area, kitchen at the rear, and a full bathroom near the rear center. Existing interior walls are selectively removed to open the living dining arrangement and create a more coherent family scale floor plan. The existing kitchens remain in the rear first floor locations but are reconfigured as part of the new layout. The two former upper floor kitchens are removed. Each unit has its own internal stair near the center of the building connecting the basement, the first floor, and the second floor without reliance on exterior apartment stairs. The first floor rear door opens to that unit's covered porch deck area. Smoke detector and combination carbon monoxide smoke detector locations are indicated on the plan subject to final code review. second floor. Each unit contains three labeled bedrooms on the upper level, producing four bedrooms per duplex unit when combined with the first floor bedroom. Each unit has one existing full bathroom on this level. The former upper floor kitchens are removed. The former rear exterior door and steps are removed. A new window replaces the central rear door opening. Smoke and combination carbon monoxide detectors are also shown in the bedroom and circulation areas. Again, subject to final life safety design approval. The central wall, the party wall treatment continues up through this level down to the basement. The basement is divided into two sides by a new central party wall aligned with the division above. Each unit retains its own internal basement stair directly below its first floor stair. Each side has its own laundry area with washer and dryer locations. Each side has a furnace reinforcing [clears throat] separate operation of the two dwelling units. The plan shows an existing electrical panel on one side and a new electrical panel on the other. Existing basement exterior doors remain on the sidewalls providing service and maintenance access. Just coming down to conclude here. Um we we feel this plan reduces the intensity of the location from four independent units to and four kitchens down to two units and two kitchens. There's no expansion of the principal building. Improve unit organization for each unit functions vertically with its own entrance, internal stairs, living area, bedrooms, etc. We also removed the obsolete apartment features, upper kitchens, exterior doors, etc. The appearance to the neighborhood would be improved as well. The rehabilitated front porch, new windows, walls within the porch, repaired structure, landscaping, and organized parking. Most importantly, there is improved accountability. The physical plan aligns with professional management, lease enforcement, parking enforcement, and routine inspection commitments already before the board. That's all I have. Happy to take questions and so uh is Miss Goo. I've also want to note that uh Jeff Squire from Birkshire Design had a family commitment. I've texted him and if he's available, he'll he'll join the meeting as well. Thank you. >> Thank you, Mr. Babrowski. I I I just have um one question. Um can you clarify what no changes to exterior of the building means given that the porch, the stairway, the stable removal, the deck work and street facing landscaping already described. Um you know, is this different building exterior from site work? Because I I think I read somewhere says um no changes to the exterior but all the things I just said constitute change to the exterior. Can you help me understand that means? >> Yeah, that [sighs and gasps] the language is loose. I admit that. Um, I guess what we were trying to say there is that um there's no reconstruction there except uh removing elements that apply to the four apartment units versus the two that we're proposing here. So, we don't need those exterior stairs. We want to separate the decks um to make them more private for the two units, etc. But in terms of coverage, for example, there's there's no change. >> Okay. Um, thank you. Um, Mr. [clears throat] Bag, if >> Sorry. I I did want to just try to clarify because there could have been something in the project application report that was intended to to to conotate that no expansion of the footprint of the building was proposed. And I think that's relative to that that it's non-conforming. And so we did want to just identify that the the footprint itself is not expanding. So there are some exterior changes, but the footprint was I I I don't know yet if that was in the project application report. I just wanted to try to clarify that footprint is not expanding, which was pretty relevant to 9.22. >> Okay. Thank you. Do any members of the panel have any questions for Miss Goo or um Mr. Meadows? You're on mute. >> Sorry. Are there landscaping changes that are anticipated? Often we have a landscaping plan. >> There are not extensive landscaping plans, but certainly the applicant is willing to uh follow any conditions imposed by the board. We we've already started uh in front of the front porch uh ripping up old bushes there. Um and we'll do new plantings there. But of course that's subject to any new conditions imposed by you folks. But C applicant is certainly willing to um follow those instructions. Often we ask for pollinators to be planted. Um, if you're doing new plantings, >> sounds good to me. >> Thank you, Mr. Meadows. Um, Miss Martin, >> um, regarding the parking, the the plan that was submitted originally, um, wasn't very clear on the parking, and I noticed that the new one does have a more clear parking layout. Um, is that going to be paved parking or is that um, uh, some other type of parking? >> It will be paved. >> Paved. Okay. Thank you. >> Yeah, we've we've gone just be honest, we've we've gone back and forth about the parking in terms of number of parking spaces. I I know that the board based on I think it's section seven of the bylaw has some discretion there. Um we we have an alternate plan that shows three spaces as well, but uh we went with this one for now. >> Okay. Thank you. >> Thank you, M. Morning. Mr. Offel, >> two two little things. Uh first of all, on the P maybe this is a note to Mr. Beg. Miss M Miss Morton's name is not on there as a board member and I think it's just a matter of catching up. I I think the intention is that Miss Morton is on this panel. Um but my my more substantive question is um I was looking for a complaint response form and I'm not sure I can find the most recent one. the the one that I could found find still refers to Tristan Doyle as the person responding. And would it be instead the um the property manager? Um >> Moli. >> Yeah, it should be the property. >> Okay. I'm not sure we have the most upto-date >> form [clears throat] then or maybe I couldn't find it. That's If the board is interested or or wants me to, I can summarize uh parking enforcement issues that we've addressed and the role of the property management company that's been contracted with. Happy to summarize that very quickly for you. >> Yes, please. Thank you. >> Sure. Let me just pull that up real quick. So on the professional management um it gives them clear authority to enforce occupancy, noise, trash, safety, property maintenance and parking requirements. Any material violations, repeated rule violations, unlawful activity, damage or interference with neighborhood quiet enjoyment constitute defaults. Violations can be documented, noticed, cured where appropriate, and pursued through lawful termination process if they continue. Parking is specifically controlled. Only registered, inspected, insured, operational passenger vehicles connected to the approved occupants may use the property. Storage, repairs, abandoned vehicles, lawn parking, blocked access, and leaking vehicles are prohibited. Guest parking is subject to the same limits. Tenants must move their vehicles for snow removal or maintenance and unauthorized vehicles may be towed where permitted by law. Town approved parking plan and any special permit conditions >> will be >> will be expressly incorporated into the lease. Thank you, Mr. Bowski. Um, Mrs. Ser, you have questions? >> Uh, actually I have one comment more than anything because [clears throat] I remember very clearly from the site visit everything that Mr. Babrowski is um has mentioned and I approve of all of it. The parking was an issue because the spaces were not wide enough and they were parking on the uh on the grass. When we were there, there were two commercial related vehicles. A couple [snorts] um trailers I think were next to the house on both sides. >> You are correct. >> Will will they be gone? >> Yes. >> Okay. So, no parking of commercial vehicles will not be permitted. Correct. >> Correct. >> Okay. Um, just as a comment, it occurs to me that if they wanted since it's a narrow street, if they if the um devel if the homeowner, property owner wanted a third parking space, it was right there. It just happened to be occupied by trailers. So, u, your parking proposal is fine. If you wanted another off- streetet parking thing, I don't think it would be a problem. But I'm not I'm not designing your property for you, but I have no problem supporting this application. I think this is fine. Thank you. >> Yeah, I I would just make one final comment on the parking. Um if you're happy with the parking plan, great. Um there are four bedrooms in each unit and so the occupants of each unit will have to figure out their parking um with two spaces. >> Okay, >> presumably for each but if you're open to three unit three parking spaces per side of the house. Um, if you look at some historical photos, I believe we we've seen those in the um I've seen those at least with uh Mr. Bag, um there was parking all the way along the along the house on each side, not just in the front back in the day. Uh dirt dirt roads, so to speak, dirt driveways. Um a three a three parking space arrangement on each side would involve stacking two cars and then have another one next to them. Um, and maybe Mr. Bag is sharing that this is the one that's in the plan now. >> Yeah, I apologize because I don't I don't think I have have access to the plan that shows the three per unit. >> I I do have that. I can if I can figure out how to share that. I will. Let me figure out where I put it. >> Here it is. me share. My share button went away. Here it is. Sorry. So that would be the three and three arrangement. So again it would require some coordination but it would give um more assurance that there's space for the occupants. Well, I only I only brought it up because we tried to look out for the broader community and that's a fairly narrow street and having uh additional parking on the property that's properly done might take a a bit of strain off of uh North Whitney Street. I don't actually care if there's two or three. I'm just bringing up that I think your site plan is appropriate and uh whichever way you go, I don't have a problem supporting it. Thanks. >> Thank you. >> Thank you, Mrs. Soer. Are there any additional questions um for the applicant? >> Mr. Bag. >> Thanks. I don't know if that applied to me, but um I just wanted to say that, you know, this is a substantial improvement to the property and it sounds like the board is acknowledging that. I think that's important. Um in in working with the applicant, it's been good and working with Mr. Browski, we did we did encounter a question about the parking that we we wanted to have this discussion with the board to understand what there section 7.0, triple0 which clearly gives the board this this discretion and so we didn't really feel comfortable producing findings or talking about a condition on a plan until we had this discussion. Um I do I do recommend the board look at the three spaces per unit. It does help organize the property um and it's a little bit more in line with what might be expected. In order to do that though, the board would have to grant a couple waivers. Um, particularly parking in the front setback. Um, so just acknowledging that in order to get that arrangement, the board would issue some waivers and I just didn't get quite far enough to presume that the board would be comfortable with that. So, you know, I did have a conversation with Mr. Rasky that a potential continuation for for staff to produce [clears throat] the findings and conditions for the board to review at the next meeting would would make some sense, but we wanted to make sure we had this conversation and understand if the board had any other issues. Um, but again, I do com I do commend the owner for really taking this pretty seriously. the level of investment that's going to go into this property is significant and it would really um you know there are some findings that are required to acknowledge that going from four to two is actually a potential benefit. Um and so I just wanted to kind of acknowledge those couple things to understand where the board would want to go from here. >> Thank you Mr. Bag. [clears throat] If there are no other questions um or comments from applicants um at this time I would invite any members of the public who wishes to comment on this application tonight um to do so. Members in the audience who wish to comment can do so by do using the raise hand function. If you're on the telephone, I believe it is either star 9 um on the telephone and given where we are for time, I am being strictly adherent to the 3 minutes. >> Yep. So, as you'll see, I promoted um Bob Nukem raised his hand. There's there's a couple other people in the audience and they haven't raised their hand yet. Um but Mr. Nukem, you should be able to unmute and turn on your camera if you wish. Hi. Um, my name is uh Bob Nukem. I live at 87 North Whitney Street. Um, first off, I'm 100% behind this whole process being done. I think this is fabulous. Uh, that building definitely needs um, yeah, a lot of work. So, that's that's fine with me. However, my biggest concern is parking. And where we sit, there's two four bedroomedroom units. Um, I do like the idea of that third spot to minimize uh the number of cars that are on the street. We also have another house uh at the corner of North Whitney and Clifton that's about to open with I think there's two units in there. Um there's more cars coming onto that street. We live very close to Taylor Street, which is through the last hearing. There's two ADUs that are about well, one's about to open and the other the building is going up. That street, Taylor Street, if you've ever come down that, it's completely blocked with cars. Uh, North Whitney is a narrow street. There is um not a lot of room and cars come up very, very quickly up that street up and down. It's a cut through to the back of UMass. uh you can get to the middle school and high school coming down through there. Uh so it is uh definitely a concern of having a lot of cars on that street with the the the those two units opening. Um we've also neighbors have seen um on Clifton in particular um students coming in parking their car there for the day and walking down to the bus and um so the use of the neighborhood beyond the um just the residence is is another issue. So um the the the the parking is the big concern. There's also no limit on which side of the street you can park on. Um there is no no parking this side. And then we also have the hill down there which comes up from the railroad tracks which if cars are parked on the side of the road there, you can't see until you're at the top of the hill or can't see cars going down. So parking is a huge issue potentially for this street and that's that's my biggest concern. But um I'm really happy that this work is being done on that house. Thank you, Mr. Nukem. >> Thank you. >> I don't see any There's There's uh three other people in the audience, but I they're not raising their hand, so I assuming they don't want to speak to this. Seeing that there are no um further public comments at this time, unless there's any further questions or any comments from the applicant, I would entertain a motion to continue um to actually rather in tandem um move to a public meeting while keeping the public hearing open, but continue the public meeting to a date certain. So we can go through the findings and the conditions appropriately. [clears throat] >> So moved. >> It has been moved. Is there a second? >> Second. >> It has been moved and second. Um any discussion? No discussion. The vote on the motion. Mr. Sloer. >> I. >> Mr. Offeld. >> I. >> Mr. Meadows. >> I. >> Miss Morton. I >> and the chair votes I. The vote is 50-0. Um the public hear officially into a public meeting while keeping the public hearing open. However, we are continuing this public meeting to a date certain and this is I think we need to I don't think we should put it on August 13th. I think with what we just continued as well as what's coming up, there's already two other things on August 13th and I think the applicants were made aware of that. So the next date would be the meeting after August 13. So with everyone here, is that a good date for this current panel? Um, which would be August 27. Would that work for all of us? >> Yes. >> I'm not certain. >> I know. [laughter] Then it's not a date certain for you. >> Yeah. >> No, it's not a date certain. I' I my son has to have an operation that day and I don't know whether I've got to be how late I'll be in Boston. >> Would um so the next date I believe after the 20 um 7th I believe would be September 10th. I don't know if that's pushing it um too far. >> I'm not available September 10. >> Okay. So, Mr. Bag, the items that are on for August 13th, in an effort not to push this too far, is there an opportunity to move one of those um from August 13 to a further date that we haven't heard before? I don't think so because we just legally advertised the two other hearings for August 13th. Um I would say that the board has the appeal um which you just continued with no new information coming in. So it's a decision-m discussion. Um the other two that are scheduled, you know, I knock on wood, are relatively minor in theory. Um one is to extinguish a special permit that the use is now allowed by site plan review. So it's a formal process to just rid the property of the special permit. So in theory, that should be pretty straightforward. And the other is a change to a property on Northampton Street. It's in a larger apartment complex, but to change an on-site security guard uh requirement to an on-site manager. So, it's a it's a management type of project, not a large construction project or something like that. So, I would I would argue that with the clarity that the board has given tonight, um the cooperation of the applicant, I think we could draft findings and conditions for this for the 13th and it should be relatively straightforward. So, I I it sounds like a lot. there' be four items on the agenda, but I think it would be potentially manageable. >> I think we can with with those descriptions of what's before us. So, >> I think we continue to August 13. >> Mhm. >> Good. >> Great. >> Yeah. So, um we're continuing ZBA FY 2026. I believe it is dash um two 211214 North Witness Street to a date certain of August 13th. >> Does does that require a motion that you can't wait to hear? >> No, I think we already did the motion to We just didn't pick a date. Yeah. >> Ah. Oh, okay. >> Yes. >> Yeah. So we already voted and now the official is official. The date certain is August 13th. Yeah. Um so with that are there this is a general public comment for any items not before the ZBA tonight. Um I'm sorry. Um before we do that Mr. Babowski, Miss Goo, thank you for being here. Um this is being continued to um our next meeting which is August 13th and that that will be a public meeting. It's an opportunity for the board to deliberate on your application and as you heard there are other things on before you. We did continue the previous one to 6:00 which means yours will not start exactly at 6:00. So I don't necessarily think you have to be here right at 600. >> Okay. But Um, thank you again. Thank you for your patience and thank you for being here tonight and we will see you on August 13th. >> Very [clears throat] good. Thank you for your public service. Appreciate it. >> Thank you. >> Um, so back to our regular agenda. Are there any general public comments um of anything not before the ZBA tonight? I don't know if we have anyone left in the audience. Sorry, I got lost in my Zoom screen there. [laughter] >> That was struggling for a second. Um, >> that's the quickest of German I remember. [laughter] There are three other people in the audience but then none none have raised their hand to speak for something that not on the agenda. >> I will accept that. Um is there any other business um not anticipated within the last 48 hours um for us tonight? I do not believe that there is. And in traditional fashion, I know we alluded we just did a bit of this just now. Um Mr. Bag, I know we just discussed the 23rd, but what do we have coming up? Yep. So, the 13th you discussed, right? Um >> the 27th we do not have anything advertised, but we would potentially have Gosh, now I got to remember there is a homeowner request to expand or alter a pre-existing non-conforming structure. And then we do probably have a um it's an appeal. So, it's quasi enforcement action. Also, a special permit to change um from a owner occupied duplex to a non-owner occupied duplex. We're we're working with the applicant to make sure that they have enough plans and information available, but that's that's slated for August 27th. >> And that's there's an appeal as part of that you said. >> Yeah, it's it's ongoing discussion. The way that would work, the appeal is generally to preserve a right an access to to a use, but the the better path and the applicant is agreeable is to actually apply for the special permit to modify. Um, we're not we don't have all the paperwork in yet and we haven't advertised it yet, but I think we're working on that for that >> for that meeting. >> Okay. >> I apologize. I don't know if you normally have everything lined up. I we are we're working, you know, kind of double double time to >> to keep up. The board is very busy there. There are likely applications that are going to get queued up for se September as well. So, we're just trying to keep pace with some of this stuff. >> That's okay. We we usually don't have everything. We just said this may be coming up. This may be coming up. So, you're fine. Yeah. >> Perfect. Thanks. >> Um so, thank you for that. So, um with the time being 9:19, I will entertain a motion. Um Mr. soda [laughter] >> that this is not in the last 24 hours and I don't want to be even more hated by prolonging this meeting, but um I will not be available on September 10. So, I'm giving you notice so you can line up one of the associates in my absence. >> That's very helpful information. Thank you. And you may want to contact both in case Mr. Meadows is also not here. Um, is that was that September 10, Mr. Meadows? Was that the week before? >> No, that was the >> Mr. Meadows is the 27th. >> The 27th and I Yeah, I think it' probably be better to line somebody up since I I may get stuck in Boston as I was the last time. >> Okay. Yeah, I would just say I would imagine it was relatively usual for you to get pulled and I I can start to coordinate on the August 27th and just make sure we have an understanding of who who's available, who needs to be on the panel and I'll do the 27th of August with September 10th together just to make sure we have panel for those dates. >> Okay. If I may suggest if they're given that um if if if they are both available on both dates, I will suggest we give one one date and the other for the experience. Yeah. >> Okay. >> Yeah, >> I [clears throat] can do that. And Steven McCarthy who who's in the conservation development office will be stepping in a little bit more. Uh I'll be stepping back a little bit, but we'll be coordinating. But I think he's he's much more available for the August um dates and the September dates. So we'll we'll be shifting a little bit of the responsibilities around. >> Understood. And thank you. >> So with that, I would entertain a motion to adjourn tonight's meeting at 9:21 p.m. Is there such a motion? >> So moved. >> Is there move? Is there a second? It has been moved and second. The motion is not debatable. The vote occurs. Just requires a roll call vote. Um, Miss Morton, >> I. >> Mr. Meadows, >> I. >> Mrs. Slovener, >> I. >> Mr. Offeld, >> I. >> And the chair votes I. Vote is 50. Um, thank you all for your service. We are adjourned. >> Okay. >> Good night, everyone. >> Good night. Right. It's interesting that we're now back to we used to go through 9:20, 9, 10:00 every week, every meeting. So, we can get used to that again, [laughter] >> but only if we must. Okay. >> Yes. >> And best luck. Best of luck to your son. >> Thank you. >> Thank you. Good night. Good night. Good night. [clears throat]