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HomeMy Public PortalAbout1 Dana Terrace_ZEO Appeal Memo_Final_201403201009314919Town of Watertown Department of Community Development and Planning Administration Building 149 Main Street Watertown, MA 02472 (617) 972-6417 FAX (617) 972-6484 To: Zoning Board of Appeals Steve Magoon, Director of CD&P From: Mike Mena, Zoning Enforcement Date: March 19, 2014 Subject: APPEAL OF THE DETERMINATION OF THE ZONING ENFORCMENT OFFICER, 1 DANA TERRACE PURPOSE An application to Appeal the Determination of the Zoning Enforcement Officer was submitted on, January 15, 2014, in response to a Code Compliance Order regarding an unpermitted, separate fifth -unit, in the attic of an existing non -conforming four -family residence. The subject application is appealing the determination that the unit is unpermitted and the order to remove the kitchen facility in the attic, including the stove/oven and the kitchen sink; SITE AND SURROUNDING USES The subject property is located within the "T" -Two Family Residence Zoning District. The "T" district only permits single and two family residences in addition to other institutional and home based businesses/occupations. The property is considered a Legal Non -Conforming four (4) family residence. The property is surrounded by single, two-family and another non- conforming residential property located to the north, east, and south. To the west of the property, across Summer Street, are commercial/office uses located in the "CB" Central Business zoning District. PERMIT AND COMPLIANCE HISTORY Building Permit history dates back to 1919, where a permit was issued for a single family residence. Various other permits were issued over the years for a variety of work, including a permit issued in 1976, to construct stairs to the attic and enlarge a dormer. A separate permit was issued the same year to construct a bathroom on the attic (3rd) floor. The application for the 1976 permit, listed the property as a four (4) family and neither permit reflected a request to convert the attic area to a fifth unit. APPEAL ZEO DETERMINATION 1 Dana Terrace March 19, 2014 Page 2 Consistent with the building permit history, the Assessor's Records show the property assessed as a single family in 1919 through 1957, when it was reassessed as a three-family residence. Subsequently it was assessed as a four -family in 1973 through 1986, again consistent with the Building Permit issued in 1976. Not until 1991 is the property assessed as a five -family residence. The town has no history of permits after 1976, for the fifth residential unit. Zoning Map records as far back as 1924 show the property was originally zoned for only single or two family residences and has remained as such through today's current zoning of "T" -Two Family Residence District. Code Compliance Order - 2009 The Watertown Health Department issued a violation letter to the above address on July 30, 2009, regarding a separate living unit in a non -habitable area (attic), in addition to other Housing related violations. The violation letter was forwarded to the Zoning Enforcement Office, which sent a subsequent violation/compliance order regarding the conversion of a non -habitable attic to a separate, fifth unit, in an existing non -conforming four -family dwelling in the "T" -Two Family Residence District. The Compliance Order required the removal of the kitchen sink and the stove/oven (see attached violation/compliance letters). The Health Department's violation were corrected and the tenant vacated the attic unit, closing the Health Department's code case. It appears the Zoning Enforcement case was never closed, or the kitchen facility was removed and replaced at a later date in order to resume renting out the attic floor as a separate unit. Code Compliance Order — 2013 (pending) In October 2013, the Zoning Enforcement Office received a complaint regarding excessive vehicles parked at the subject property and a possible unpermitted unit. The Zoning Enforcement Office sent a compliance letter to the property on October 8, 2013 requesting an inspection of the property (attic area). After the granting of extensions to provide the owner opportunity to provide evidence to show proof the unit is legal, an inspection occurred on December 27, 2013. During the inspection, staff noted that an interior stair from the second floor to the attic was enclosed, resulting in the blocking off a portion of the second floor and a bathroom at the return of the stair case. It was also noted that the attic floor consisted of a living and sleeping area, a kitchen, full bathroom, and a separate exterior egress to the rear of the property. Staff also noted that the ceiling heights throughout the attic floor were less than 7'-0". The Zoning Office issued a subsequent Code Compliance Order for the unit to be vacated and to apply for permits to remove the kitchen facility, noting that the attic could not be considered "habitable area." APPEAL ZEO DETERMINATION 1 Dana Terrace March 19, 2014 Page 3 PROPERTY OWNER/APPEALANT EVIDENCE The following information was submitted to the Zoning Enforcement Office on December 4, 2013: • Appellant's Cover Letter. The letter states that the appellant filed a "Request for Hearing" with the Zoning Enforcement Office with no response. Staff response: This is inaccurate, as the attached records shows the "Request for Hearing" is a Department of Health process and not a Zoning Appeal process/form. The form was submitted to the Health Department which is a separate process from zoning. The resolution of is unknown. • Rent and Lease Documents. Rent and lease documents back to 1977 indicating the attic was rented since that time. Staff response: Lease records alone, do not substantiate the conversation of an attic space to a legal separate unit. • Assessor's Records. Assessment Records indicating the property is currently being assessed and has been assessed as a five (5) unit development since 1991. Staff response: Assessment of a property does not legalize a use of a property and is only a tax on the use of the property as noted by the Town Assessor. Further research by staff indicates that the property was assessed as a four unit dwelling from 1973 through 1986. • Health Dept. /Zoning Compliance Record. A letter from the Department of Health, dated, September 14, 2009, regarding their code compliance order was sent. The letter closed the code case stating that, Violations #1 and #2 had been fixed (#1 — rodent/pest control/ #2 — carbon monoxide detectors) and item #3 was closed because the attic unit had been vacated by the tenant. Staff response: Item #3 was a violation, since the owner had someone living in a non - habitable area, since the attic ceiling height did not meet building and housing code minimum requirements (minimum 7'-0"for habitable rooms). Since the attic was vacated, the Health Department's case was closed. This did not close the Zoning Enforcement's Code Case/Compliance Order. A letter dated, September 11, 2009, by the Zoning Enforcement Officer stated that the unit was unpermitted and that permits were required to be obtained to remove the kitchen facility. • Estate Filings/Real Estate Appraisals/IRS Records. Staff response: These documents do not reference the number of units on the property. The private real estate appraiser is simply apprising what they see on site, this does not APPEAL ZEO DETERMINATION 1 Dana Terrace March 19, 2014 Page 4 legalize a use of a property. • Voter Registration Records (1969-2012). Staff response: These records to not state the number of units and many of the records show groupings of last names which indicate less than the five (5) units the applicant is attempting to prove are legal. ANALYSIS The fact that the town's permit records only reflect the property has been zoned for single or two family residences, the recognition of a four -family dwelling in 1976, consistent with assessor's records through 1986, Code Enforcement history, and the lack of sufficient ceiling height to meet minimum building code requirements for habitable area; both from 1975-1979' when the appellant states the most recent work occurred, in addition to current building code regulations, staff can only conclude that the unit is not permitted and is essentially an illegal unit. RECOMMENDATION Staff recommends that the Zoning Board of Appeals find that the attic area and use, at 1 Dana Terrace is consistent with an unpermitted, separate unit and that the cooking facilities, stove/oven, hood/fan, and the kitchen sink be removed within 30 days of this decision/ determination by the Zoning Board of Appeals. MIKE MENA, Zoning Enforcement Officer Community Development and Planning Attachments: 1. Zoning Enforcement Appeal Application, received January 15, 2014; 2. Code Compliance Order, dated October 7, 2013; 3. Revised Compliance Order, dated December 30, 2013; 4. Appellant's Evidence, received December 4, 2013 (distributed via email to the ZBA) 1 1975 MASS STATE BUILDING CODE (SECTION 2.01 GENERAL DEFINITIONS) - Habitable Attic: a habitable attic is an attic which has a stairway as a means of access and egress and in which the ceiling area at a height of seven and one-third (7-1/3) feet above the attic floor is not more than one-third (1/3) the area of the floor next below. 1979 MASS STATE BUILDING CODE (SECTION 5.06.5.1 CEILING HEIGHTS) - Habitable (space) rooms, other than kitchens, storage rooms and laundry rooms shall have a ceiling height of not less than seven (7) feet three (3) inches.... If any room in a building has a sloping ceiling, the prescribed ceiling height for the room is required in only one-half (1/2) the area thereof.