00:00:00,200 S1: Welcome everybody to do we have the applicants here to just so I know. Yes we do okay. 00:00:10,600 S2: Yes as well. 00:00:12,560 S1: Okay. 00:00:12,960 S2: Jonathan Collins uh, with the builder. 00:00:17,040 S1: Okay. All right. Great. Okay. So, uh, we'll start the meeting. Uh, welcome to the Hamilton Zoning Board of Appeals meeting of Wednesday, August 5, 2026. Uh, this is a fully zoom meeting. Uh, we have a couple things to talk about here. First is, uh, I'll just go through the agenda for now. Um, public hearings. The application is for the property at 21 Beech Street and zero Lakeshore Ave. Assessor's map 66, lots 47 and 48. Zoning district R-1A, Groundwater Protection Overlay District. The owner of the property is Chebacco Park LLC and the applicant is Luxurious Homes LLC. The application request a special permit for Dimensional Relief due to lot size and a G pod to reconstruct a single family home. Under zoning bylaw 9.1.9.1. 00:01:24,100 S1: And then after that, we will close that meeting once we've voted on that. And then we're going to probably have an executive session, uh, pursuant to G.L. c. 00:01:42,260 30A, Section 21 S1: (a)(3) to discuss strategy relating to pending litigation known as Construction Management and Builders, Inc. versus Town of Hamilton zoning Board of Appeals, Massachusetts land Court, case number 20:06 a.m. I SC. 00:02:04,520 000305 S1: parentheses d rr close parentheses. If the chair declares that discussing the matter is in in an open meeting may have a detrimental effect on the litigating position of the board. A vote regarding whether to go into executive session is expected, and votes may occur during the executive session. Um, and then we have some other things to talk about after that meeting minutes. Stuff like that. Um, before we get going on anything. Uh, we've had a lot of shifting around, um, with members. Uh, we've some people coming up for people to re-up their time on the board, and I have continued with as being the chair. And Andie has continued as one of the members key members, and Steven Derocher has decided to leave us. Unfortunately, he's moving tactics, so I'd like to give him a big thanks for everything he's done on this board. It's been great working with him. He's brought a lot of good insight and, and, uh, you know, thank you, Steven, for everything you've done. You can, you can. 00:03:27,090 S3: Steven, it's been great working with you. 00:03:30,250 S4: Yeah. Thank you. Much appreciated. Um, yeah, I didn't I'm not choosing to leave the SDA. I have to if I'm moving house to another town. So. 00:03:39,450 S1: Yeah. 00:03:40,090 S4: If you let me stay, I'd stay. 00:03:42,210 S1: All the way to Essex. So I know not too far. 00:03:46,490 S4: I feel like a traitor. Yeah. 00:03:48,970 S1: Right now you can join that board. Slide right in. Uh, wish you luck, though, and hopefully your move goes really well. Um, and then we have for, uh, taking his place will be John Green, who we met with last month, I believe. Um, and he's not able to join with us tonight. Uh, to listen. Well, he might. Is he listening in at all, or is he. 00:04:16,350 S5: No. He's, uh, he's on a family vacation. So this next meeting. 00:04:20,910 S1: Okay. He has to be sworn in, and, uh, but once he's that's completed, he'll be full time with us. Um, so in light of all this shifting around, we need to have a clerk assign someone assigned to the clerk position. So, um, and he's the only one here that can volunteer to do that since John isn't here. We can wait until next month if you would like. 00:04:52,110 S3: I'm happy to be the. I'm happy to be the clerk. 00:04:55,030 S1: Okay. All right. That's great. So we'll have you as the official clerk. Um, okay, so I think we're ready to go ahead. So we as we've seen, we have Steve and Andie and myself and Mark Connors here to listen to the first, uh, application of 21 Beech Street. So who is presenting that? Please state your name and, um, describe what you're proposing. 00:05:27,890 S6: Absolutely. My name is, uh, Charlie Clapp, and I'm an attorney with offices located at 254 Bay road. I'm representing luxurious homes. Um, in an application for, um, an approval of an enlargement and, uh, replacement of a home in the groundwater overlay district. Um, this might look familiar to you guys because, um, back in believe the application was in January, and you did a hearing back in February 4th, 2026, and the board approved a similar project to this. Um. We did. Uh, my my clients went before, um, uh, Rich and asked if they could use that special permit because our home is being situated in a different location. He recommended that we get a different special permit. He wasn't comfortable issuing a building permit. Um, based on the prior special permit. So here we are. Um, if you look at the site plan, it does differ, um, a little bit from the prior, um, application. The house is being pulled a little bit closer to Beach Street, and, um, we're eliminating the garage and also the long driveway going into the garage. Um, you can also see from the site plan that we are going to be conforming with the R-1, a zoning district. Um, setbacks. The 28 foot on the front, 100 to the left, 80 to the right, and 38 to the rear. So the house will be conforming for the Arjona district. Um, the driveway access will continue to be from Beech Street. Um, and we're going to eliminate the Lakeshore Drive access, which I think will be good. Like I said before, the existing garage will be removed. Um, the application before the board's it. Like I said, it is similar in nature to what was before the board. Before. Um, one of the big differences. By eliminating the garage and the long driveway. We're reducing the amount of the impervious surfaces. Um, significantly. Um, the prior submission, I believe, had a 13% impervious area on it. Were the proposal before the board is for around 10%. Um, which is a significant reduction. Um, in the prior submission, the board had approved anything up to 15%. So we're going to be below that. Um, the the proposed structures, you can see from the plans. It's a three bedroom property. It's going to be. It is going to be two stories, as opposed to one story which the board had approved before. Um, but, you know, in the groundwater overlay district, the the impervious. Um, my understanding is the impervious area, uh, is more of the greater concern. The the new home will be around 3600ft². Is what we're proposing right now. Um, and, you know, as before, the board, before you can see from the plans and everything there is, um, you know, it's going to look better than what's there now. There's ample precedent for allowing this kind of thing, um, in the neighborhood, which I believe, I think it's going to benefit all the neighbors by, um, kind of taking a house that was not great and putting something that looks nice. Three bedroom. The the applicant has been in touch with the Board of Health. Obviously. Um, they have submitted a application for a three bedroom septic. I think they will request a few requested changes, but and those have been resubmitted to the Board of Health, I think board Health might the health agent may be out of the office this week. So I but I don't think there were major changes that were being requested. But overall, it's very similar in nature to what we're doing before, with the added benefit of reducing the amount of impervious area on the property. 00:09:24,560 S1: And what the I don't have it. I didn't get to compare the two measurements. Um, what's the building in? Square foot increase. Do you have that number? Um. 00:09:38,160 S6: The last I don't know. I know the footprint on the house is now 1872 is what we're proposing, I think. Hang on a second. I can tell you what. 00:09:51,240 S6: I mean, two seconds. Let me just pull up the old application. 00:09:54,260 S1: Yeah, I had it up, but I lost it too many screens. 00:09:56,420 S6: Yeah. No. Hang on. Pull it up. It was. And this is kind of. This is just going off of the plan. I believe it was 50 by 48. Memory serves me right. Um. 00:10:15,100 S6: I apologize, I should have it. It is. The actual footprint is bigger. But because the garage is going away and that huge driveway is going away, the impervious area is significantly reduced. 00:10:27,260 S1: Yeah, that's that's the trade off. Yeah. Okay. 00:10:29,460 S6: Right, right. Yeah. I mean, and the house isn't that much bigger. I don't think it's just the fact that it's going to be a set, um, a two story, two story. 00:10:41,180 S1: Right. 00:10:41,700 S6: Yeah. But I mean, it'll still obviously comply with, uh, we're not looking for any relief. Uh, here I have it. So the old house was. Or. I mean, the Primarily approved house was 50 by 28, but that does not include the deck, which it did have a wraparound deck. And it also had a a garage that was 38 by 24. And I don't see any dimensional drawings on what that driveway was, but it was a significant sea of asphalt, let's put it that way. 00:11:13,080 S1: Yeah, I remember that being a I was putting you over that 15%. 00:11:18,080 S6: Yeah. I don't know if it was over. Yeah. I mean, I don't know if it was approved, but I don't know if that, um, you know, I know. 00:11:26,120 S1: It was approved, I think with keeping that either gravel or something like, you know, a pervious, uh, pervious driveway. 00:11:32,000 S6: Okay. 00:11:32,520 S1: It's, you know, you know, minimizing asphalt, basically. 00:11:37,760 S6: Yeah. Yeah. 00:11:38,800 S1: Keep it under 15. 00:11:39,840 S6: Was so the total. Yeah. I'm looking at your prior approval. Your prior approval approved 4,564 square feet² of impervious. I think our impervious is going to be 3,078 square feet. 00:11:55,970 S1: Okay. 00:11:56,970 S6: All right. So significantly less. 00:11:59,330 S1: In the right direction. 00:12:00,450 S6: Yeah, yeah. Eight on or something. 00:12:01,730 S1: Okay. 00:12:02,570 S4: The overall structure footprint too is smaller if you include the garage. So it looks like my map now is like 2300. Was the house and garage in the previous. 00:12:12,370 S6: Yeah. 00:12:13,170 S4: What about 2000 in the, um, current design? 00:12:17,010 S6: Well, the idea is you pull right into the garage as opposed to driving around the house up to a standalone garage. So, I mean, yeah, I think it's a better use of the space and better project. To me, personally, I might be biased. 00:12:32,050 S1: Okay. Um. 00:12:36,610 S1: This always pops up. Uh, it's a three bedroom house on the second floor. There's three bedrooms and then another rooms. It's just as big as the other two smaller bedrooms. That's labeled office and it has closets in it. Right. So it's going to have to be a deeded three bedroom house. 00:13:01,150 S6: Okay. 00:13:01,750 S1: And, um, and then the other thing I see a lot is a basement that has a full bath in it with a shower or a tub. 00:13:13,190 S6: Is that. I don't think our plan has that, though, does it? 00:13:16,110 S1: It does. It has a shower stall. Okay. A bathroom stall, toilet sink and a linen closet. 00:13:21,870 S6: Yeah. 00:13:22,270 S1: Which kind of tells me like that could be a, you know, bedroom, even though it's not a legal bedroom. I don't. 00:13:28,710 S6: So I think the plan was to build the structure. And then. John. 00:13:35,790 S6: Uh, so I think we were talking about I think we were talking about the bathroom and the basement. Right. John. Yeah. You do you. I mean, I think I would assume the applicant would be okay with the three bedroom restriction. Um, I don't think we have a choice. It's a three bedroom septic, so. You know. 00:13:53,650 S1: Right. 00:13:54,490 S6: It kind of is what it is. And in terms of the bathroom, I think these are initial plans. Um, I mean, they'll need to pull a building permit, I would think, but, um. Yeah. 00:14:07,250 S2: With the basement down the bathroom, I mean, that's going to be recreational room. Um, often we'll put a gym down there and just. It's a matter of convenience. Not nowhere in the basement is meant to be a bedroom. So that. 00:14:23,530 S6: Yeah, I don't I don't think there are any windows down there. Right. 00:14:26,650 S2: It's a matter of convenience. And to get obviously to get. It's it's a matter of, um, money as well to get the money we want for the house that having the extra bathroom downstairs is the intent is never to have someone throw a bedroom down there. It's to use the gym or be able to use the bathroom while you're watching a movie go down. It's it's a rec area. 00:14:46,210 S1: Yeah. So I don't I don't have a problem with the bathroom at all. It's the shower that makes it more personal, a more personalized space. 00:14:59,750 So could we do it? Could we do it without the shower? S2: I could talk to my investors, but I'm. I mean, that's it's something that we can be discussed. If if I'm a shower away from being approved, then I'm sure that I can make that work. But, um, that the whole, the main purpose of the shower is, hey, you get that extra quarter of a bath and be, like I said, if we got the gym down there, you don't want to go trounce it up two floors to the next bathroom, to the next shower, and you've got that right there, you can hit it and then go about your day. That's the intent of space. 00:15:28,910 S6: Yeah. I mean, Jonathan, there are no windows down there, right? I mean, that's not I mean, it's a bulkhead access area, right? Judging by the elevations. 00:15:40,510 S2: Yeah. No, there's no, uh. 00:15:42,230 S6: There's no way. I mean, it's it's a it's a basement. 00:15:45,670 S1: Yeah. Window Wells. 00:15:47,360 S2: Yep. 00:15:47,880 S1: That's it. Three window wells. Correct. 00:15:50,160 S6: Right. Yeah. It's not walk out or anything like that. I mean, I don't think that's. Yeah I think. 00:15:54,760 S1: No no no it's not. Yeah. It's not set up as a legal legal bedroom. But I just worry about it being used as a bedroom. 00:16:03,920 S6: Right. But I would imagine the Board of Health would opine on this right when they pull a building permit. Um, I would imagine. Right. I mean. 00:16:13,480 S2: When we had the project on Maple Street, we were just, um, with number of rooms in the layout. Um, and there we just went with the, uh, deed restriction and had that recorded. And that satisfied the health department of the building department. We moved on. Right. 00:16:27,280 S1: Right. Okay. Well, you know, um. Andie. 00:16:40,080 Stephen, do you have any thoughts on this? S4: Uh, I don't I think, um, the the reduction in impervious area is a good addition I was curious about, um, lot coverage comparisons, but I was able to do that earlier in the meeting, and it's actually less if you include the garage and the previous lot coverage. Um. 00:17:04,380 S4: And I think we discussed this way back in February when we first discussed this, but I think the the groundwater Overlay Protection District doesn't necessitate anything special with the septic. I'm not mistaken. 00:17:19,900 S1: No, I don't think so. No. Yeah. I guess just lot coverage, impervious lot coverage. So. And that is less so. 00:17:30,980 S3: Andie I'm good. 00:17:33,580 S1: You're good. Okay. Um. Well, if if we're all if we have no other further comments, I'd entertain a motion to vote on this. 00:17:46,600 S4: I move. 00:17:47,320 S1: Too, as it's designed uh, with, with the, uh. Three bedroom, uh, deed restriction applied to it. 00:17:59,840 S4: I move to approve the project at 21 Beech Street with an added three bedroom deed restriction. 00:18:07,280 S3: I second that. 00:18:09,080 S1: Okay. Uh, roll call vote. 00:18:12,200 S4: Steven Derocher, aye. 00:18:13,120 S3: Andie Philip, aye. 00:18:15,840 S1: Bruce Gingrich, aye. I so you have I have 20. Oh, boy. It's been 20 days to 14 days to write the, um, the decision. And then there's a 20 day wait period. Um, for any appeals from abutters. Um. Oh, I you know what? I didn't ask if there's anybody out there. Um, have any comments on this? I don't think we had any last time, so that's why I'm not thinking of that. I just want to make sure there's nobody in the outside world there that has any comments. 00:18:57,420 Is there anybody? S1: Okay, so I think we're all clear. Okay. So yeah. So 20 days to uh, for that to to clear the, um, appeals process and you start your construction. 00:19:09,420 S6: Great. Thank you guys very much. All right. 00:19:13,420 S1: Thank you. 00:19:15,220 S2: Thank you sir. 00:19:17,300 S1: Okay. Um, so the next thing that we, uh, note is that. 00:19:28,140 S1: Uh, we're going to move. 00:19:30,580 S5: If you'd like. Bruce, you can, uh, you could you have the option to move the agenda around. So you do all the public stuff before the the executive session, if that's easier. 00:19:41,420 S1: Yeah, that probably would be. Um, so the other the other things we need to do take care of is the approval that the draft meeting minutes of June 3rd, 2026. Uh, anybody have any, um, issues with that meeting? Minutes. 00:20:06,400 S3: Then. 00:20:06,960 S1: Stephen. You're good. Okay. I didn't have any problems. 00:20:13,560 S4: My my last name is spelled wrong. 00:20:16,400 S5: Uh oh. No. 00:20:18,480 S4: It's all right in one place and wrong in another place. 00:20:21,600 S1: So I can't find you when you finally move. 00:20:24,080 S4: You're all. You're all fine with that. And I'm fine with that. 00:20:26,560 S1: Yeah. Okay. All right. Uh, I'll entertain a motion to approve the meeting minutes of June 3rd, 2026. 00:20:34,920 S4: I move to approve the meeting minutes from June 3rd, 2026. 00:20:40,120 S3: I second that. 00:20:41,600 S1: Okay. Roll call. vote. 00:20:44,410 S4: Steven Derocher, aye. 00:20:45,330 S3: Andie Philip, aye. 00:20:47,570 S1: Bruce Gingrich, aye. Guy. Okay, so those are approved. Um, and then we had, uh, vote by board for chair and clerk. We've discussed that already. Um, and so we're all set there, and, um, there's, we're trying to pull together information on for the new members and stuff to, to. Uh, so we're all kind of in line with what's how the zoning board is going to work in the future. Um, I think that's still in the process. Uh, so I don't really have anything else. 00:21:30,090 S5: I think just the last thing is, um, Robin's going to join us to talk about some new changes in the state law that were made to the criteria to grant variances that, um, are now in effect. So. 00:21:44,550 S1: Okay. 00:21:45,510 S5: I believe she's joining right now. 00:21:48,670 S1: Oh, good. Okay. 00:21:50,630 S3: Bruce, did you say that David is still on the ZBA or has he resigned? 00:21:56,630 S1: Um, David Perinchief and Michael Madden are both resigned. 00:22:03,830 S3: Okay. 00:22:04,190 S1: Got they've they've they've pulled out. They're just too, too busy and in real life. Um, so they. Yeah. So, um, if we run into anybody who might show any interest as being an alternate, uh, we love to hear from them. Great. 00:22:23,030 Um, S1: we it's good to have two if we can do that. Um, that'd be great. We just need to stress that they need to be available for each meeting that we hold so that we're not, you know, they're not missing out, and they're kind of learning the the process and the, you know, just what's happening around town. 00:22:47,410 S1: As far as our board is concerned, okay. 00:22:52,930 Is Robin did she join us? S5: I believe she just hopped on. Yeah. 00:22:55,090 S3: Okay. Hi, everyone. 00:22:58,250 S1: Hi. 00:22:59,090 S5: Hello. 00:22:59,730 S1: Welcome, Robin. 00:23:00,530 S7: Hello. Hello, everyone. 00:23:04,610 S5: Um, so Robin is, uh, as I was saying before Robin joined the. The governor signed the budget, uh, last month. And, um, there were some non budget related things in, in the budget. And one of those was quite a few non budget things in the budget. 00:23:25,610 S7: It happens. 00:23:26,970 S5: And so Robin's going to kind of briefly brief us on what some of those changes are. Which um those went into effect immediately. So they're kind of in effect moving forward. 00:23:41,510 S7: Yeah. So good evening everyone. Good to see you all. Robin Stein from KP Law. Um, I don't know if. Mark, did you share with the board we had sent the update over just to kind of give folks background. 00:23:55,030 Is that something you have shared with them or not yet? S5: Yes. 00:23:57,750 Do you want me to, um, put that on the screen? S7: No, I just I just didn't know, like, if folks were totally new to it, you know, had some sense of the changes or what have you. So, um, happy to kind of have an initial conversation about it tonight and go over some of the high level things. And then if there's, you know, a reason in the future to maybe do a more in-depth training, we certainly can. Obviously, we're working our way through the new language as well. I mean, there are plenty of things in there that ultimately a court might have to weigh in on, but we're working our way through and getting a handle on, um, you know, what we think things mean. So less than clear in some regards, but there are definitely some wholesale changes. The two areas that I think are going to impact you the most as a zoning board are the changes of 40A, Section 6 and then the changes to the variance provision. So that's kind of what I was going to focus on tonight. And then if anyone has any other questions, you know, given that you have our update, I can try to answer those as well. So the first paragraph of Section 6 is the paragraph that regulates existing nonconformity. And essentially they added a sentence in here that says that provided. However, notwithstanding the rest of the paragraph, pre-existing nonconforming structures or residential uses that do not conform to zoning because of lot size or shape frontage, lot coverage, or floor area ratio requirements can be extended as of right without a finding if the extension complies with height stories and setback. So what that means is you're probably going to get less finding applications because in the past you would have gotten, you know, a finding application when, say, a lot was undersized and somebody wanted to alter the structure, even if, you know, certain changes were conforming. And so the implications of this are making it easier for people to make changes to nonconformity. So essentially, if the reason they're undersized is lot size, shape frontage or lot coverage or floor area ratio. So they're undersized lot undersized frontage. Um, and they want to make a change and whatever they're changing is going to comply with height stories or setback. It's not going to come to you anymore. So you won't have to do it much with this. But you may see less applications in general for findings for nonconformities. The legislature made it easier for folks to, um, you know, to make certain changes. So, you know, that's one of the ones that is more zoning board applicable. 00:26:36,940 S3: So. 00:26:37,940 S7: Yes. 00:26:38,840 S1: A quick question. So if someone has a ten foot setback and they need 25, but they're going to build something at 23. 00:26:52,160 S1: On the same face, do they have to come to the Zoning Board of Appeals because they're not 25? Yes. 00:26:58,760 S7: So if, if the if the new. Well, so I just want to make sure I understand your question. Right. So if the if they I'm not sure I'm following the way you said it. So when you say they have a ten foot setback. So right now they're ten feet off the property line. 00:27:14,640 S1: Right. So that's. 00:27:16,000 S8: They're supposed to be. 00:27:17,440 S1: Nonconforming. 00:27:18,160 S7: And they're supposed to be 25ft off. 00:27:20,280 S1: Yes. 00:27:21,240 S7: They're still going to have to come to you because setback is not one of the things that they set. So it's if you're nonconforming because of lot size, shape, frontage, lot coverage and floor area, and what you're doing complies with setback. Um, then they would not have to come to you. So in that case, they would have to come to you. 00:27:44,460 S1: Yeah. Okay. 00:27:49,420 S7: Does that make sense? 00:27:50,580 S8: Yeah. So it's just has to be clean. 00:27:53,860 S1: Completely clean. As far as all the all the, uh, parameters. 00:27:58,660 S8: Yeah. 00:27:59,380 S7: So, I mean, I'm sure we're going to spend a lot of time looking at the language, looking at what people are doing. Um, but that's the. Yeah, that's the one change. So, um, that one, you know, again, it's not necessarily that you're going to be applying, but it's just may result in you getting less applications. So that's one of the changes. Um, another change within 46 is that the abandonment period is now four years instead of two. So it used to be abandonment or just it used to be that if you, um, abandoned or discontinue to use for two years or a structure for two years, you could lose your non-conforming protections. They made the two years, four years. So again, it's going to have an impact on what folks are doing. It may impact what comes to you and how it comes to you, but nothing that you're going to be applying yourselves. The changes to 40A, Section 10 and variances, that is going to be something that all of our zoning boards are going to have to get used to this new language. And it is a very dramatic shift in my opinion. So, um, I'm sure you're all familiar with the old variance language that said that you had the power to grant variances if the variance criteria are met, right? So hardship, soil shape, topography. You're you're all familiar with the old standard that they struck the entire old section, put in an entire new section. And that new section, as opposed to saying the permit granting authority, the Zoning Board of Appeals has the power, if things are met, to grant the new language actually says that the permit granting authority shall grant the variance. If it finds that a strict enforcement of the ordinance or the bylaw would result in practical difficulty. Now, we don't exactly know what practical difficulty means, so that that phrase, that terminology is something I expect that we're going to have litigation over, and it's probably going to come up maybe in the degree of what folks are looking for. You know, somebody says, I want a variance to let me do 50 units. And you're like, well, we think you should only do 30 units and you're only allowed to do ten units. What's the practical difficulty like? What does that mean? What's reasonable? So, um, you know, I can can I am I able to screen share because I can put up the, um, like the new language if you want. 00:30:27,210 S5: I think I can give you that power. Hold on. 00:30:30,450 S7: All right, let me see. I can send you a request. 00:30:37,430 S5: Yeah. We should be able to now. 00:30:39,430 S7: Okay, so let me see if I can figure out how to do this. Okay. 00:30:52,230 So can you guys see the track changes on my screen here on the red? S8: Yes. 00:30:53,270 S7: Okay, so the new provision says the permit granting authority shall, after a public hearing for which notice has been given by publication and posting as provided under section 11, mailing to all parties and interest. So you shall grant upon appeal or petition with respect to particular under structures, a variance in the terms of the applicable zoning ordinance or bylaw. If the permit granting authority specifically finds that strict enforcement of the ordinance or bylaw would result in a practical difficulty. And I'll be honest, we don't we don't know what that means. I'm sure applicants are going to come in and say, well, if I can't do what I want to do, it's a practical difficulty. And certainly this is a much more lenient approach to variances, then you're used to the whole notion, in my opinion, of the variances being sparingly granted seems a little bit out the door. Um, it does go on to say, in making your determination that you shall weigh the benefits to the appellant or petitioner and to the public interest, including the interest in supporting production of housing against the detriment to public health, safety and welfare of the neighborhood. And that you may consider if the practical difficulty relates to soil shape or topography of land or structures. You may consider whether the strict enforcement would impose a financial hardship on the appellant or petitioner, and you may consider whether the benefit sought by the appellant or petitioner can be achieved by some other method feasible, and whether the practical difficulty was self-created. So, you know, even though like this and then there's I'll just go on real quick. So um, there's also a change in the use variance language. So you may recall in the past that zoning boards could only grant use variances at all if the local zoning bylaw allow them to grant use variances. Now, and the language is a little unclear, but I think what they what they mean to be saying here is that whether your bylaw says it or not, by statute, use variances can be granted for residential uses, but the bylaw needs to explicitly allow use variances for commercial uses, because what it says is, except where the local ordinance or bylaws expressly approved for variances, no variance may authorize a user activity other than residential, not otherwise permitted in the district in which the land is located. And then the other change in here is that in the past, you had to exercise a variance within one year, and then you had the ability to come in and ask for a six month extension, and now you have two years to exercise the variance. You also can ask for a two year extension, but they said this as well, and we're really not sure what this part is going to mean. It says if the rights authorized by variance are not exercised within two years after the variance is granted, which shall not include the time required to pursue other entitlements necessary to construct the project authorized by the variance or wait the determination of an appeal. Then the rights lapse. And I'll be honest. The concept of entitlement in zoning is is uncommon. So at a minimum, folks are going to have two years to exercise the variance and they can ask for a two year extension. I imagine, you know, there may be in time some litigation over, you know what this the time required to pursue other entitlements necessary to construct the project means, you know, is that just a building permit? Is that state permitting? You know, we don't we don't know for sure what that's going to mean. So a lot of changes in 40A, Section 10 really wholesale change as to how variances are granted, how they're exercised. You know, all of it. Um, so I mean that that's kind of the high level explanation, I'm sure, as you start to get in new applications. Um, you know, we'll get questions and, you know, we'll start refining our advice on these things as we get specific facts and questions in front of us. And then, you know, I imagine there's going to be litigation, you know, at some point, probably sooner than later about what some of this means. So happy to answer questions. There are other changes in here, but these are the, um, these are the big ones that really impact the zoning board itself. So I can I can stop sharing. But, um, it's kind of an introduction to the new changes. 00:35:25,860 S5: So, Robin, our zoning bylaw references the old variance criteria. I imagine that's unenforceable at this point. 00:35:33,600 S7: Yes. So I do think that's a great question, Mark. I think that, you know, many most zoning ordinances or bylaws don't just say, see, 48, ten. They actually have the language in there. Um, you know, it's something in time, I think you're going to want to update because it's going to confuse people, you know, and the abutter is going to come in and say, well, your bylaw says they need a hardship. And it's, you know, it's confusing, right? Like The ADU stuff, you didn't have to make changes, but you want to because you want the bylaw to reflect the law and you want to have less of that confusion for folks. So I do think you're going to want to, you know, go through and figure out, you know, what needs to change. And that's something you and I can talk about. But for now, the statute is going to control. So to the extent that there's anything in your zoning bylaw that's different than any of this stuff. So for example, if you're a zoning bylaw says abandonment and discontinuance after two years, it's for no, you know, that's not something you have to change to make effective like the statute is going to control. So, you know, my opinion is the new variance language controls regardless of what your zoning bylaw says. Anything that's in here that's inconsistent, that doesn't require local action is going to control. 00:36:42,100 S5: Okay. 00:36:48,700 S1: I'll be fine. 00:36:51,260 S8: Yeah. I mean. 00:36:52,060 S1: Uh, self-inflicted, uh, hardship and. 00:36:54,860 S8: Not. Well, you know, I mean. 00:36:56,020 S7: I, you know, it's interesting because I, it's hard for me other than if you owned a property and like the town say, took a corner for a road or something. It's hard for me to really think of what's not self-created. Like, either you bought it knowing there was a problem, or you did something to create it, or you weren't proposing something that you couldn't do. Like I, you know, you're allowed to consider it. You don't have to consider it. But I think there's, you know, you're going to hear some arguments just about everything you have some responsibility for. I don't know if it's self-created, but you know, short of literally, you know, a taking or something that's not self-created. So, um, yeah. And again, like I said, I think a lot of the, the weeds of this are going to involve like the extent of what people want to do. You know, somebody could come in and they could say, well, practically, if you apply your bylaw, I can't do the maximum I want to do. I don't know that this means they get to do that maximum. You know, there still needs to be some reasonableness in, you know, what I think and what folks are proposing, but definitely, um, you know, the legislature is showing their intent to, you know, make variances easier to get and particularly variances that support housing growth. So. 00:38:25,360 S5: Any other questions on it before we go to public? 00:38:37,170 S1: And that was just for me. I'll read through that again. I read the first thing about it, so it'll be interesting. 00:38:45,090 S7: And you can. 00:38:45,530 S8: Certainly. 00:38:46,370 S7: Reach out to me with any questions. So if you have specific questions, feel free to reach out. Like I said, you know I can come back at some point, maybe even in person. They're hard to do trainings over zoom sometimes, and we can go through it in more detail if we need to. Um, we had talked about maybe doing some like regional trainings just from our office, but I'm not sure the status of those at this point, so. Well, we'll see. There might be more to come on those. 00:39:09,770 S1: Great. 00:39:10,650 S5: That'd be great. Yeah. 00:39:14,650 S8: But. 00:39:17,410 S7: Do you have a question? 00:39:18,450 S9: I do, if it's okay. Bruce, may I ask a question just to clarify the question? This caught me a little bit by surprise. Robin, thank you for coming on. Just a question. Um, as of. Right. Pre-existing non-conforming can happen as of right. In some instances. Could you just review those criteria? Again, I'm not sure I caught that on. 00:39:43,390 S7: Yeah, sure. So I can hear. Let me I'll put it back up so you can see it too. Hold on. Because I didn't have it off. Let me find the red line section in here and I'll put it back up for you. Okay, so let's see, how do I. 00:39:59,190 S7: Share. 00:40:00,790 S8: Okay. 00:40:05,590 S7: So you should be saying this. So what it says now at the bottom of. So this is the first paragraph of 40A, Section 6. Um. Oh, and one other thing I should mention. So I think some of you are familiar with the concept that, um, a proposed zoning change would apply to a project if the special permit or the building permit wasn't issued before first publication of the zoning change. They changed that from issue to apply for. So before there was no application freeze for projects and now there is. So that is another change to keep in mind. Um, and again, not so much for your board and how you apply the zoning, but just something to be aware of how the zoning will apply. So if you go down here so we have our normal. This is all the regular language that was already in 40A, Section 6 about pre-existing non-conforming structures being extended or altered and findings. And then they added a sentence that said provided. However, notwithstanding the foregoing, pre-existing nonconforming structures or residential uses that do not conform to zoning because of lot size or shape frontage, lot coverage, or floor area ratio requirements may be extended or altered as of right, but without the need for a finding. If the extension or alteration complies with the current dimension. Requirements for height stories and setback. 00:41:41,830 S9: Great. 00:41:42,430 S8: That's that's. 00:41:44,230 S9: Much, um, that's much clearer. Thank you. 00:41:48,110 S7: Sure. Of course. 00:41:52,230 S8: Okay. Okay. 00:41:53,830 S7: Any other. Okay. I'll stop sharing. 00:41:55,750 S8: That. 00:41:57,950 S7: Okay. 00:42:01,790 S5: And, Bruce, when you don't have anything else more for this, um, there's that little script for the executive session. 00:42:10,550 S8: Yes. 00:42:11,550 S1: So I think we're. Do we want to close the public hearing now and then or just go into this? 00:42:20,310 S5: And then I think if you read the script, it'll sort of take you there. 00:42:27,160 S1: Okay, so I now propose the board enter the executive session to discuss strategy regarding the pending litigation in Construction Management and Builders, Inc.. CMB versus Town of Hamilton ZBA. As it is my opinion that discussing the matter in an open meeting may have a detrimental effect on the litigating position of the board. The board will reconvene in open session at the end of the executive session. 00:43:03,800 S5: Actually, we. So since we did all the public, we don't need to do that. So we can just say, well, we'll adjourn. 00:43:10,160 S8: Okay. Oh yeah. 00:43:11,120 S1: So we'll we'll adjourn after this executive session. 00:43:16,720 S7: So you're not going to come back to the public session. You'll just end from executive. 00:43:21,240 S1: Yes. 00:43:21,840 S8: So should we. 00:43:23,000 S1: Vote to end the public session now and. 00:43:28,460 S7: I. I think you're covered by simply saying you're going to go into executive session, and then you won't be coming back. You'll just adjourn from the executive session. 00:43:36,980 S8: Okay. 00:43:38,300 S7: Yeah. 00:43:38,900 S8: Okay. So, uh. 00:43:41,420 S1: I'll entertain a motion to move into an executive session, and that will include, um, myself, Steven Derocher, Andie Phillips, um, Mark Connors and Robin, uh, Stein, and I believe. 00:44:04,220 Is that it? S8: Yep. Okay. 00:44:05,620 S1: So, um, entertain a motion to open executive session. 00:44:11,700 S4: Uh, motion that. 00:44:12,420 S7: We just. 00:44:12,820 S8: Have a. 00:44:13,300 S4: Second. 00:44:13,620 S8: Session. Yeah. 00:44:15,140 S3: I second that motion. 00:44:16,860 S8: Okay. Roll call. Vote. 00:44:19,700 S4: Steven Derocher, aye. Andie Philip, aye. 00:44:22,180 S1: Bruce Gingrich, aye.