15 Sep 2014
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What's in a Diminuous Change?

The owner of the multi-family home at 5 Hancock St., which was destroyed by a deadly fire last December, wants to rebuild, but there's debate on whether the new house can be two stories or three.

What's in a Diminuous Change? What's in a Diminuous Change? What's in a Diminuous Change?

Ten months now after the three-alarm fire at 5 Hancock St. that led to the death of Peabody firefighter James Rice, the lot where the multi-family home once stood is just empty space.

The home was severely damaged in the fire and eventually torn down about two months afterward once a full investigation into the fire was completed.

Owner Kenneth Louf is hoping to rebuild the home on the same footprint and recover his losses, but Louf now needs zoning relief from the city because the neighborhood is only zoned for two-family structures, which would normally house four units, not six.

Under most circumstances, state law allows a building destroyed by fire to be rebuilt on the same footprint even if the size of the structure is out of conformance with zoning – it’s still treated as if it pre-existed zoning.

In this case, however, there’s some debate on whether required dimensional changes under building and fire codes for a new multi-family home actually nullify that allowance.

Louf and his attorney John Keilty will be back before the Zoning Board of Appeals for a variance Monday night (7 p.m.) at City Hall to argue their case. The appeal is on total square area, side yards, setbacks, lot coverage and parking, all of which don’t meet the guidelines for an R2 zone.

A 'diminuous' change

Keilty said in a previous interview that the footprint of the building isn’t really going to change much – the overhang would now extend about two feet further – and therefore, he’s arguing for a “diminuous change” in the footprint, which is allowed under state law and would still allow the new structure to be grandfathered in.

Initially also at issue was whether the home was ever legally converted into six apartments, but Keilty said, he researched old city zoning and building records that show permits approved for that many units. When Louf purchased the building, there were actually seven units, Keilty said, and Louf downsized it by one at the city’s request.

Former Building Commissioner Kevin Goggin said this summer that Hancock and neighboring streets are mainly single- and two-family homes (the multi-families are on Washington Street), so in that sense, No. 5 Hancock was out of character in the neighborhood.

In his opinion, the expanded size of a new building would be substantial enough to question whether it should be treated instead as a non-conforming use and therefore appropriate in that R2 zoning district.

Goggin said both the living space and an enclosed stairway would be somewhat larger in size, but Keilty contended it was only a negligible change.

Neighbors say streets are congested enough

And on top of those legal issues, the neighbors simply don’t want another three-story building there. They came out in force for the initial hearing and continue to argue their case.

Dianne Full, who lives over on 12 Sherman St. and owns her two-family house (across from 5 Hancock St.), is acting as a spokesperson for the neighborhood. She said she and the neighbors don’t mind if the building gets rebuilt on the lot, but they do mind having six units again in an already heavily congested area.

“We just do not need another six-family in that neighborhood,” she said, noting there is one other three-story house behind 5 Hancock St.

She added that the ZBA did ask Louf if he would consider a two-family instead and his reply, according to Full, was that he needed the six units to cover the mortgage.

She said one of her biggest concerns has to do with parking – there’s little of it to be had as is on Hancock and Sherman streets, and the plans for the reconstructed building are only to include two conventional parking spaces. Everyone else would presumably have to park on the street.

In this case, zoning would otherwise require 12 spaces for six units.

Full listed off several problems, including difficulty now finding a spot on the street, people parking on the sidewalk, children having to walk in the street and around cars on their way to and from the Welch School, parents clogging the streets as they pick up their kids and, of course, motorists backing down Hancock Street onto Washington – it’s a one-way street heading the other direction.

“It’s ridiculous, it’s craziness, it’s a mess on that corner,” she said.

Full said traffic has “increased tremendously” in the past 16 years she’s lived there, residents who live above Buddha’s Tavern also take up much of the parking along Washington Street overnight and emergency vehicles often have difficulty getting up Hancock Street now because of all the cars parked on the narrow roadway.

She said her sense is that Louf will not be open to any concessions on parking unless he is forced to by the ZBA.

Keilty, however, said his client is willing to consider leasing spots for the other tenants. He said the problem with the parking scheme at the building before was that it was stacked, which is not recognized in the city’s zoning ordinances.

The plan filed with the ZBA does say there is space on the lot for eight non-conventional spots, i.e. "stacked" parking where tenants would have to coordinate shuffling cars around.

The ZBA first received a petition for the variance in July, but has continued the hearing for months now, partly awaiting legal opinions from either side. The board has already heard from Keilty, but not from City Solicitor Michael Smerczynski or another city lawyer on zoning law.

Keilty and Goggin both said there were no concerns about bringing the new structure up to meet all current fire and safety codes, which would be required in any new construction.

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