Agendas are nice, but boy, you really have to read the backup documents to know what’s going on. Take just one item from the Land Use Public Hearing agenda for February 11 (thank you to the person who alerted me to this agenda):
4) Information needed by the City Engineer to evaluated drainage and infiltration has not been provided.
ALBERT PINKHASOV petition for a SPECIAL PERMIT/SITE PLANAPPROVAL for walls of more than 4 feet in the setback at 78 LOVETT ROAD, Ward 8, Newton Centre, on land known as SBL 82, 15, 97, containing approximately 16,004 square feet of land in a district zoned SINGLE RESIDENCE 2. Ref: Sec 30-24, 30-23, 30-5(b)(4) of the City of Newton Rev Zoning Ord, 2012.
You might think they want to build walls. Only by reading the Planning & Development department memo will you fully appreciate the multitude of sins behind this one paragraph, but here’s the Cliff Notes version:
1) The walls have already been built. (The property was a teardown, with construction happening in 2013. Part of a hill was excavated to create a very large patio.)
2) The walls were not shown on the plans provided for the building permit.
3) The walls are within 3 feet of the north side lot line, and 18 inches of the south side lot line, where 15 feet is the minimum setback.
4) Information needed by the City Engineer to evaluated drainage and infiltration has not been provided.5) Fencing between driveway and patio shown on the site plan has not been constructed.
6) Despite all of the above, a temporary Certificate of Occupancy has been issued.
You really have to wonder who’s minding the store. How does this happen? From Attachment A, the Inspectional Services memo of December 18, 2013:
Because of the significant slope in the rear of the property, the applicant built a system of walls. Each wall is individually less than four feet in height – they are 3’11”, 3’10” and 3’10” from front to rear wall. Section 30‐5(b)(4) requires a special permit for a retaining wall within the setback in excess of 4 feet. The definitions section of the Ordinance states that a “retaining wall” is a “wall or terraced combination of walls”. In total, the terraced combination of walls reaches a maximum height of 9’7” within the side setback.
So we are supposed to excuse the developer not understanding, or reward them for willfully ignoring, that it is the total height of a terraced combination of walls that counts? If he really thought what he was doing was okay, why wasn’t it in the building permit plan?
The cynic in me suspects that developers do this kind of thing because they expect there’s a good chance of getting away with it. Perhaps someone who’s spent more time at Land Use meetings than I have can offer insight as to how often this happens. It reminds me of a few years ago when developers would build a new driveway behind a street tree, then petition to have the tree removed because it was in the way.
The only way to get people to follow the rules is to make it very expensive not to. Here’s an idea: make the developer tear down that wall, restore the area within the setback to its previous grade, build a retaining wall that they could build by right (after Engineering approves the drainage and infiltration), and impose whatever fine is justified for filing a misleading building permit plan. Does anyone in ISD or Land Use have the backbone to do this?
AAARRRGGGHHHHH!
Who’s minding the store? Why bother having standards, or an inspectional service for that matter, if developers don’t have to conform to rules.
It won’t change until someone holds their feet to the fire.
Thanks Julia.
I agree with Julia’s suggestion to make them restore it to its original state and go through a proper application process.
A skeptic might say that that envelopes must get exchanged in instances like this.
PS Definitely not saying that happened here though!!! I’m sure it was all above board!!!
PPS On a side note, looks like quite an ugly monstrosity of a wall. Pretty infuriating that they’ve gotten away with this.
Thanks, Julia. In fact, the city does make property owners remove structures that are out of compliance with the regulations. This one is a no brainer – it should come down. What flagrant disregard of the city’s regulations.
Interesting contrast. Jane thinks it’s a no-brainer to come down, and Michael thinks they’ve gotten away with it. (BTW, Michael, it reminds me of Red Rocks Amphitheater outside Denver.)
I would hope it’s a no-brainer, but for the oddly detached tone of the Planning memo. Is that because their only function is to provide a “balanced view of the issues” as they state in the opening paragraph? Or do they really believe that with fencing, landscaping and proper drainage, “the proposed retaining wall will not adversely affect the neighborhood”? What about the adverse effect on the city in general of the bad precedent of rewarding bad behavior? The more this happens, the more it will happen.
Reading the memo, it sounds a bit like false balance. “Research has shown that cigarette smoking causes cancer. Others disagree.” Some things are just wrong!
Julia, just a quick note to thank you for doing the home work and writing this up for posting. This is really helpful to know.
The final tier is the violation. It shouldn’t be that costly to fix it given the excavation was done. This is the kind of thing the Land Use Committee looks at? That’s nutty
@Hoss. It’s not only the rear which is in violation of the ordinance, but the sides as well. Zoning states no retaining wall (or terraced retaining wall) over 4 ft in any setback – side or rear.
No fault of Inspectional Services. That’s who found the problem, raised the issue, and made the developer apply for a Special Permit. And no potential buyer is going to close on that house without the issue being remedied first.
What’s missing from this story though, is why the developer made the mistake in the first place. I use the word “mistake,” because they took a big risk putting in that wall without the required approval. This left him fully exposed to the demands of any abutter who doesn’t like the retaining wall. How does something like this happen?
Mark & others, I didn’t really do any work here, except putting together the before & after satellite photos. Having gotten a head’s-up on this item from an interested citizen, I found all the information online in the Friday Packet on the city website. There’s a lot of interesting stuff in the Friday Packet for the weekly meetings that Andreae updates us on. We’re a city of 86,000. Imagine if even 1% of us actually read it, even if just the information that affected our own villages.
Here’s something else I noticed in the Planning memo, which is more of an oddity about land use, I guess, than about this specific project:
In other words, if the patio is connected to the driveway it wouldn’t count as open space, but if you put up the fence, it magically becomes open space, even though it’s the same surface material either way. What’s up with that?
Maybe I don’t understand Newton… My recollection is that Alderman have forever been saying that individual property decisions have taken up so much resource, that the BoA must forever be a team of 24 members. Why can’t an emplowered City Hall chief or committee walk up to this investor and ask that they remove the last two levels of blocks or take it all down? This small home shouldn’t take up any BoA time.
Hoss, sometimes it is not that simple. You have commented twice that you think this is a waste of the BOA’s time, yet there have been at least a few situations in the past year where grade changes have caused abutters serious flooding issues which have cost tens of thousands of dollars to rectify at their own expense. I certainly do not think it is right that in a case last year a neighbor had to fork out upwards of $70,000 of their own money to correct for drainage issues caused because plans next door were not followed or properly enforced when transgressions were subsequently reported to the city?
The property owner in this Lovett Rd case had the option of either taking down the retaining wall or filing for a special permit. Choosing the latter means it HAS to go before the land use committee as a public hearing. I don’t consider this a trivial matter at all. What happens if the wall collapses after heavy rain? The city inspectors have not had an opportunity to review anything but the finished product so who knows if the base or drainage was done properly.
Peter, It’s not a waste of Newton’s resources to ensure regulations are met, that I agree. But leaving aside this one property for the moment and the legitimate neighborhood concerns, not every City franchise in Massachusetts deals with this kind of violation at the legislative level. City Councils don’t. The question of why we don’t have a powerful committee to deal with this is the exact question of why we have 24 aldermen and not enough good residents to compete for every one of our many elected positions. We need to empower a trusted City Hall together with appointed experts in the form of a committee in this kind of violation. But as I said, I could be all wet and not understanding what powers are at play. If this is legislative time (BoA), that’s problematic
We all might trust Newton to help, but if all else fails we ourselves are empowered to take things like this to court if they impact us. I do trust Newton, but the BoA is addressing too much if they are looking at something like this
Hoss, I agree with some of what you are saying. What should not be necessary though (and there has been a recent uptick in this), is having to resort to take things to court and in some cases spend 6 figure amounts in legal fees in order to have our ordinances applied correctly and enforced as intended. I purposely use the word “intended” rather than “written” because some of our zoning laws are so complex and sometimes seemingly contradictory that they are ripe for misinterpretation by everyone (City Hall included). It should not take an English professor to decipher the meaning of our zoning ordinances.
You are absolutely right that “we need to empower a trusted City Hall”, but in trust it needs to be a City Hall which is neutral and unbiased and will look out for the good of the City and its residents as a whole.
@Peter – I’m curious to hear your thoughts on the current zoning reform process to try to achieve exactly that- a zoning ordinance that is both clear and concise and also follows the Comprehensive Plan approved in 2007.
This was intended to be a two-part process, the first of which was to be a clean up of the existing ordinance to make it legible and to eliminate inconsistencies. The second was to make the policy changes suggested by the Comp Plan.
As I understand it, the phase I clean up has hit a snag in that there are several points of inconsistency in the current ordinance that require the BoA to make decisions on zoning policy. In other words, exactly to your point above.
The better solution is to go to Inspectional Services the moment you spot a developer/owner breaking an ordinance. I’ve found that the sooner you go, the faster they respond because it doesn’t require dismantling structures. In a sense it was a pain in the neck for us with a recent project next door, but the developer finally began following the regs once he realized he was being closely watched.
In fact, I have no idea why a neighbor would allow that wall to go up without reporting it to IS. What were they concerned about? The developer in our case became angry with me every time I caught him breaking an ordinance, but we now have a lovely new family in the house and I don’t anticipate ever seeing him again so who cares?
In fact, this flagrant disregard of ordinances will continue until home owners begin to report them to IS. I wouldn’t count on Land Use to do anything about this, and forget the Historic Commission. My advice is to go to the Enforcers.
There are probably people who don’t know who to report things to, or who may assume that if someone is building something so out-in-the-open and easy to spot, that they must have gotten permission from the city. Or maybe they get confusing answers when they ask. I haven’t been able to get anyone to tell me whether a project near me is going to require a Special Permit.
And it’s a completely different department, but I couldn’t get anyone in Public Works to care about all those signs on the sidewalks on Washington Street around West Newton, including the gas station one chained to the tree. I never got any answer to 311 phone calls or online requests, and the poor tree is in such bad condition it’s now tagged for removal, so the gas station will have to find something else to chain their sidewalk sign to.
Julia. Thanks for posting this and for all the research you did to prepare it. I find this whole case appalling from beginning to end of the construction period. It would be interesting to know if any of the neighbors did, in fact, complain about this to any part of Newton City Government and what answer (written or verbal) they may have been received. I’d be less concerned about this if it was an isolated incident, but I’m hearing other stories which suggest there may be a pattern of poor, careless and misdirected oversight by ISD at other sites in the City. If so, this is troubling and it could have a slow, corrosive effect on much of city government if the people of Newton start believing that high powered contractors can get away with breaking the construction laws and zoning regulations our elected representatives have put in place.
My first boss at EPA in Washington during the early 70’s was a wise old guy who first went to work in public health during FDR’s New Deal. He said more often than I can remember — “the only thing government agencies and public servants really have going for them is their credibility. Lose that and the ballgame is over.” This applies to local governments as much as it does to big ticket national items like Watergate, Vietnam, lax banking oversight etc.
It doesn’t sound like Inspectional Services was to blame in this case. It appears to me they were the ones who caught the problem, and made the developer apply for the permit. And let’s keep in mind that the neighbors may have had no objection, which could explain why they didn’t call about the violation. It’s worth repeating again that there’s a missing piece to this story, and that’s WHY? the developer built the wall without a permit. That’s some very pricey stonework there, and he took a big financial risk building it without a permit. Any abutter can show up at the new hearing, and they’d be well within their rights to insist on removal.
Meanwhile this thread has touched on a couple of different things I’d like to comment on. I don’t know if the area cleared for the wall in question was just dirt, or if it required ledge removal. But this city desperately needs much tighter restrictions on ledge removal. It’s a disgrace that a developer can disrupt an entire neighborhood for weeks, smashing ledge with huge machinery. A few years ago I took a developer to court in order to get him to stop the pounding, which had done substantial damage to my home as well as one of my neighbors. Because of our weak regs, the City could do nothing to stop him. Limit ledge removal to one hour per day, and a lot of the more annoying projects will go away.
Also, this issue that Julia raises about signs on the sidewalks is spot-on accurate. I see these signs all over the city from village centers to Needham Street. Now THAT is a result of lack of enforcement, and it’s completely ridiculous. Get those damn signs off of our sidewalks!
@Mike Striar. What action Inspectional Services ultimately took begs the question. It seems clear that the developer thought they could get away with what they did and there must have been some past history about these matters that led them to believe so.
Not necessarily, Bob. This could easily have been a mistake. The developer could have misinterpreted the regs or have been given the wrong information. I’m not ready to subscribe to the theory that this was an intentional violation, until and unless we are made aware of the other side of the story. I tend to believe it was not intentional for the reasons I previously stated. It’s an expensive wall, and [due to the lack of prior approval] subject to removal. So if it was in fact intentional, the developer was taking a huge financial risk, gambling that Inspectional Services would miss it and no one would complain. In defense of Inspectional Services, it’s important to keep in mind that they are not onsite during most work. They come back to a site intermittently to inspect various construction milestones. So if the wall went up between inspections, it’s hard to fault the inspector.
This kind of construction was more common before the Board of Aldermen adopted the current rule recommended by the Zoning Task Force, which I chaired. Previously, a special permit was required for any grade change in excess of 3 feet. To get around the rule, builders would construct multiple tiers of retaining walls 2 feet 11 inches high, which were colloquially referred to as “wedding cakes.” The other way to get around the former rule was to build a huge retaining wall exploited the “garage under” loophole, which allowed an exemption for retaining walls built to accommodate driveways to below grade garages. Regrading and retaining walls were cited for causing drainage and erosion problems for neighbors, as well as for aesthetic concerns.
ISD frequently found violations of the so-called “3 foot grade change” rule because excavation for foundations and regrading of the land after construction often required grade changes exceeding 3 feet. Enforcement and detection were difficult because it was often impossible to tell what the pre-existing grade had been. When ISD determined a violation, it generally required owners to seek a special permit or remove the walls. As a result, three to four special permits a year were filed, many seeking forgiveness, rather than permission, for completed construction of retaining walls.
To address these problems, the BOA adopted the task force recommendations to require a special permit for all retaining walls exceeding 4 feet in the setbacks, and required ISD and the Engineering Department to review and approve plans to ensure that substantial regrading of a lot would not cause drainage or erosion problems for the neighbors. To prevent the “wedding cake” problem, the current ordinance defines a retaining wall as a “wall or terraced combination of walls to hold a mass of earth material at a higher position. When a combination of walls is placed within a setback, height is to be measured from the foot of the lowest wall to the top of the highest wall. For the purposes of this ordinance, a berm with a slope of 1:1 or greater is to be considered a retaining wall.” Because the rules are clearer, we get fewer of these petitions but there are still builders who obviously think they can “game” the system by reverting to the old tricks.
Of course, if the construction plans do not show the regrading and retaining walls, the inspectors cannot enforce the law until the owner seeks an occupancy permit, which is apparently what happened here, or a neighbor complains. Indeed, changes not shown on plans have led to some of the serious problems that are referred to above by Peter and others. In addition, I recall that on one particular special permit, which involved a very tall “wedding cake” retaining wall in the side and rear setbacks, the neighbors who had complained had, in fact, had themselves flagrantly violated the 3 foot grade change rule and had used the same engineer and construction company.
A number of years ago, I docketed an amendment which would have delegated non-major projects to the ZBA (which already handles variances) or the Planning Board. Unfortunately, not enough of my colleagues were interested in relinquishing control over minor residential projects involving FAR, mudrooms, grade changes, and driveways in the setbacks. So the BOA voted No Action Necessary on my docket item.
Construction like this should not be happening on the back of an envelope from the tailgate of a pickup truck. These designs / proposals, should be considered, and professionally documented. Accurate and detailed grades should be shown and certified by a registered land surveyor and permits issued ( or not ) accordingly.
Right now the only design review we have is via the plans examiner on duty for a specific permit application. The Historical Commission has even been dissuaded / criticized for issuing design opinions. I would suggest that instead of objections being raised within 30 days of a permits issuance by neighbors / abutters (the cat is out of the bag by then, because construction / demolition can begin the same day ), there should be an official notification of a permit being APPLIED FOR, that same day. Abutter / neighbors should be able to review and have input to permit applications. Currently thats not possible. I know this verges on design by committee but if developers want to do things by right and keep neighbors and a future owner happy they should be made to jump through a few hoops, not cut corners ( build cheap concrete block retaining walls), and act professionally themselves. This might as well relieve Aldermen from some of this responsibility.
The owner showed up at the Land Use Committee hearing with no back up. He was not impressive at all, and the committee (from the hearing alone – I did not attend the working session) did not seem thrilled with his buildout.
The Working Session was postponed for 3 weeks to allow the owner time to provide documentation for several statements he made at this hearing. Some committee members were clearly irked that he hadn’t brought along the developer, surveyor and landscaper whom he claimed had made all the various unapproved changes the Committee was concerned about. Two neighbors gave testimony about how the huge new house, bright nighttime security lights and other features have totally disrupted the symmetry and peace and tranquility of the street.