Article 46 - Gross Floor Area

129 views
Skip to first unread message

Wendy R.

unread,
Feb 27, 2020, 8:55:36 AM2/27/20
to Town Meeting Members
I would like to thank Matt Daggett for his very hard work on this article and for his other efforts on trying to improve our zoning. He has shown a light on a rather outrageous practice of gaming the system to try to circumvent our gross floor area limits. 

As I learned at the meeting, a builder put in a basement floor that was much higher than the ground impervious surface so that the height from the top of the Finished floor to the ceiling joist was less than 6 feet 8 inches. That meant that the basement area did not count in the gross floor area calculation and he could build a larger building above ground.

It was the builder’s  intention that after all was approved, at some future time, he would remove the “platform floor” and then build out the basement level at full height to use as living space.

I totally agree that we need to plug this loophole and I am very appreciative of Matt’s highlighting this issue. Unfortunately, as the motion for the Article is currently written, it does not solve that problem. It creates in my mind two larger problems. Developers and residents alike spoke last night that forcing all basements to be included in the gross floor area would lower the values of the properties by very significant amounts as the above ground allowable, buildable areas would be significantly reduced. 

Also, by implication, under the proposed rules, basement space was considered of equal quality to above ground space and we all know that is not true. 

The thought occurred to me that all we have to do is changed the measurement point so the system cannot be gamed. The Planning Board explained that the measurement at the top is the bottom of the floor joists which is a fixed point so dropped ceilings cannot circumvent.

 It seems to me that all we have to change is the point of the lower measurement. If we change it away from using the top of the finished floor, which apparently can be manipulated, to the top of the impervious barrier above the gravel bed (or some better area - we would need input from builders and our building inspector) to a point that is as fixed as the floor joists are, we can prevent abuse of the system that we currently have.


Wendy Reasenberg
TMM Precinct 8

Vicki Blier

unread,
Feb 27, 2020, 10:36:03 AM2/27/20
to Wendy R., Town Meeting Members
Wendy- the word you're looking for is the "slab."
And the problem with defining the height of a basement as the measurement from slab to joist is that the basement can have multiple slab levels. The issue shown by Matt is that selected portions of the basement can be dug, formed and poured at different levels so that the whole basement won't count in the FAR calculation. Apparently, the trick of adding a removable floor on top of the slab is no longer, or has not been a common problem.
I think that excluding the basement altogether from the calculation is the only way to simplify the issue and to get the result that the town seems to want.
We should decide what the largest acceptable massing above the ground should be, and give building permits on that basis alone.
We can additionally prohibit two-story below-grade basements, or bedrooms without a certain ratio of window-to-floor area (which I think is already in the building code) to keep occupancy numbers reasonable for the neighborhood.

At the hearing on Wednesday night, a few homeowners objected to the loss in value - as a teardown- of their property. I feel that the loss in value would not be due to removing basements from the calculation, but rather it would be due to the above-ground massing size that is ultimately adopted by the Town.

I, personally, don't care if there's a movie theater, playroom, hobby room or 10-foot tall play structure in the basement.... unless it raises the water table for the rest of the neighborhood (but that's a different Warrant Article). 

I think that the basement should be removed from the calculation and our effort and angst should be applied to deciding what the visible massing above the ground should be.

Vicki Blier
Pct. 9

    



--
You received this message because you are subscribed to the Google Groups "LexTMMA" group.
To unsubscribe from this group and stop receiving emails from it, send an email to lextmma+u...@googlegroups.com.
To view this discussion on the web visit https://groups.google.com/d/msgid/lextmma/57309210.952807.1582811730722%40mail.yahoo.com.

Wendy R.

unread,
Feb 27, 2020, 12:24:59 PM2/27/20
to v...@blier.net, Town Meeting Members
Thank you Vicki. While I pass many houses under construction and I have seen them pour foundations and garage floors, I am not sure about what goes under the house.

There are so many different terrains in Lexington, I still think we need a simple, objective measure. For example, if an area measures less than x from slab to joist, it is not in the GFA. If it is over x then it is in GFA - period and let the individuals design as they wish. 

Multiple slab levels might result in some areas of the basement being in the GFA and some not in GFA. We need to keep the rules simple for the builders and building inspectors in a way that is of a definite method and then not subject to trickery.


Wendy Reasenberg
TMM Precinct 8

Harry Forsdick

unread,
Feb 27, 2020, 5:05:41 PM2/27/20
to Vicki Blier, Wendy R., Town Meeting Members
It is possible that Matt's proposal, or improvements I'm not aware of, already solve this problem, but shouldn't there be something added to the Bylaw to the effect that "the same limits on GFA apply to any changes made to a structure through a subsequent building permit".  The concept that someone could agree to build a new building within the limits on the GFA ( perhaps by including "crawl space" ) and then appeal to be able make permitted building changes ( e.g., removing false ceilings and raised floors ) that would then circumvent the limit on GFA seems ludicrous.

The other thing about about the existing bylaw that has been bothering me for the two years since the Zoning Board of Appeals meeting on the property on the corner of Adams and Emerson is the ease, without penalty that a builder can ignore a bylaw and then come and submit an appeal and refer to the need as "a hardship".  Does anybody think that a builder should be able to willfully ignore a restriction and then make an appeal referring to the appeal as based on "a hardship"?  Sure, changing the shell of a nearly completed building is a hardship, but one brought on by the builder's willful violation of an agreement.  That's not a "hardship" in my understanding of the word.

I am concerned that the enforcement of Bylaws such as the GFA restriction, but also others, is extremely lax in Lexington.  Another case in point just occurred in Lexington regarding the restrictions of the Tree Bylaw that limits cutting down Trees.  Apparently neighbors in the Woodcliff Rd area of town had been assured that large trees on the property of a teardown would not be cut down.  But lo-and-behold, the Tree Warden gave the developer permission to cut down one or more mature trees contrary to assurances made to the abuttors.

A third example relates to the proposed Citizen's Article changing the Noise Bylaw which seeks to limit the long duration of repetitive loud noises or vibrations in construction sites.  Abutters of construction projects that have had life spans measured in many months rather than several days speak about having nowhere to turn to receive relief from disruptions to their lives due to incessant pounding on ledge rock.

I fear that without meaningful penalties and enforcement of violations of Town Bylaws, Lexington is gaining a reputation as a paper tiger regarding its Bylaws.  Maybe it already has this reputation...


Lexington either needs better performance by the Town Staff in enforcing existing Town Bylaws or Town Meeting should stop passing Bylaws that purport to support improvements to the ecology, the peaceful and calmness of Lexington or the established history, character and atmosphere of the Town.  

If such Bylaws are violated with impunity, residents are justified to view Town Meeting and the Town with cynicism.

Regards,

-- Harry


Robert Rotberg

unread,
Feb 27, 2020, 5:07:54 PM2/27/20
to ha...@forsdick.com, Vicki Blier, Wendy R., Town Meeting Members
Harry’s points are excellent and important.  It would be good if the Town Manager or the Building Commissioner could reply, with real reassurances.

Albert Zabin

unread,
Feb 27, 2020, 5:20:36 PM2/27/20
to Robert Rotberg, ha...@forsdick.com, Vicki Blier, Wendy R., TMMA List
Perhaps protected trees should have the benefit of a hearing and abutters should have standing to appeal.  As for the developer who violateds a by-law and then appeals on the ground of hardship, HJarry is right you can create a hardship by violating a restriction.  I thought we were passed the time when the ZBA granted or denied appeals on whim or influence.  Who reviews the performance of the ZBA?

 Albert P. Zabin
1Page Road
Lexington,MA 022420
ajz...@gmail.com






Harry Forsdick

unread,
Feb 27, 2020, 5:27:00 PM2/27/20
to Robert Rotberg, Vicki Blier, Wendy R., Town Meeting Members
Bob,

I'm not so much asking for assurances from Town officials as I am asking Town Meeting Members to support and vote for inclusion of more intentional enforcement in Bylaws and stronger penalties in Bylaws for violating Town Bylaws.

"Assurances" are difficult to evaluate and easy to forget.  Bylaws passed by Town Meeting can be much more effective since they appear in a written agreement. 

Charles Hornig (Lexington)

unread,
Feb 29, 2020, 9:07:39 AM2/29/20
to Town Meeting Members

All zoning restrictions, including the GFA limitation, already apply equally to new construction and later changes.

There are cases where the ZBA can permit new construction or changes through a special permit or variance that would otherwise not be permitted, but only after a public hearing and a demonstration that the relief is appropriate. Those decisions can be appealed to court by any parties negatively affected.

 

Charles Hornig
Planning Board

 

From: lex...@googlegroups.com <lex...@googlegroups.com> On Behalf Of Harry Forsdick
Sent: Thursday, February 27, 2020 17:05
To: Vicki Blier <v...@blier.net>
Cc: Wendy R. <wendyle...@ymail.com>; Town Meeting Members <lex...@googlegroups.com>
Subject: Re: [LexTMMA] Article 46 - Gross Floor Area

 

…

Thomas, Ruth S

unread,
Feb 29, 2020, 9:13:07 AM2/29/20
to Charles Hornig (Lexington), Town Meeting Members
How is a "modification" granted by the Planning Board different from a "variance" granted by the ZBA?

Ruth Thomas,4
From: lex...@googlegroups.com <lex...@googlegroups.com> on behalf of Charles Hornig (Lexington) <horni...@charleshornig.org>
Sent: Saturday, February 29, 2020 9:07 AM
To: 'Town Meeting Members' <lex...@googlegroups.com>
Subject: RE: [LexTMMA] Article 46 - Gross Floor Area
 
--
You received this message because you are subscribed to the Google Groups "LexTMMA" group.
To unsubscribe from this group and stop receiving emails from it, send an email to lextmma+u...@googlegroups.com.

Harry Forsdick

unread,
Feb 29, 2020, 9:53:45 AM2/29/20
to Charles Hornig (Lexington), Town Meeting Members
Charles,

Re: All zoning restrictions, including the GFA limitation, already apply equally to new construction and later changes.

Two questions:
  1. What's to prevent a homeowner without a building permit from making interior changes with easy to remove false ceilings or raised floors?  Yes, it might be illegal, but the possibility of getting caught is very small.  As I understand the state of inspections by the Town building department, there are no "check-up inspections" to ensure that the building code is being followed once a certificate of occupancy is issued.

  2. I seem to recall reading that developers have come before the ZBA after they have been granted a building permit with false ceilings and floors creating "crawl spaces" that bring a structure into GFA compliance appealing for new permits to remove such false "crawl space" mechanisms.  Am I correct in saying this happens?  And, are any of these appeals upheld?
Thanks,

-- Harry

--
You received this message because you are subscribed to the Google Groups "LexTMMA" group.
To unsubscribe from this group and stop receiving emails from it, send an email to lextmma+u...@googlegroups.com.
To view this discussion on the web visit https://groups.google.com/d/msgid/lextmma/006001d5ef09%2498e75820%24cab60860%24%40charleshornig.org.

Thomas, Ruth S

unread,
Feb 29, 2020, 10:01:59 AM2/29/20
to Harry Forsdick, Charles Hornig (Lexington), Town Meeting Members
Charles answered my question offlist.

PB "modification" is different but the reason and outcome are the same in my view:

After construction the developer seeks a modification that increases livable area, such as "modifying" a basement ceiling.

The case in point is 434 Lincoln St.

Ruth Thomas, 4


From: lex...@googlegroups.com <lex...@googlegroups.com> on behalf of Harry Forsdick <fors...@gmail.com>
Sent: Saturday, February 29, 2020 9:53 AM
To: Charles Hornig (Lexington) <horni...@charleshornig.org>
Cc: Town Meeting Members <lex...@googlegroups.com>

Charles Hornig (Lexington)

unread,
Feb 29, 2020, 11:28:06 AM2/29/20
to Town Meeting Members

First of all, false ceilings are not an issue at all. The height is measured from the floor to the bottom of the floor joists above, not to the ceiling. You can’t remove the floor joists – the floor would fall down.

I can’t speak in detail about false floors, as I don’t know the history. I would be interested in specific recent examples of people removing false floors without a permit. If you did it yourself, you couldn’t ever do any other improvements that require a permit (like electric wiring or plumbing) in or near the altered space without getting in more trouble.

Any owner can go to the ZBA for a special permit to exceed the GFA limits under 135-4.4.3 (https://www.ecode360.com/31512084#31512084) either before construction or for a later change such as an addition. The considerations for the ZBA are the same in either case. In cases that have arisen, they have sometimes approved exceeding the limit and sometimes denied permission, based on the specific situation.

 

Charles Hornig
Planning Board

 

From: lex...@googlegroups.com <lex...@googlegroups.com> On Behalf Of Harry Forsdick
Sent: Saturday, February 29, 2020 09:53
To: Charles Hornig (Lexington) <horni...@charleshornig.org>
Cc: Town Meeting Members <lex...@googlegroups.com>
Subject: Re: [LexTMMA] Article 46 - Gross Floor Area

 

Charles,

 

Re: All zoning restrictions, including the GFA limitation, already apply equally to new construction and later changes.

 

Two questions:

  1. What's to prevent a homeowner without a building permit from making interior changes with easy to remove false ceilings or raised floors?  Yes, it might be illegal, but the possibility of getting caught is very small.  As I understand the state of inspections by the Town building department, there are no "check-up inspections" to ensure that the building code is being followed once a certificate of occupancy is issued.
  2. I seem to recall reading that developers have come before the ZBA after they have been granted a building permit with false ceilings and floors creating "crawl spaces" that bring a structure into GFA compliance appealing for new permits to remove such false "crawl space" mechanisms.  Am I correct in saying this happens?  And, are any of these appeals upheld?

Thanks,

 

-- Harry

 

On Sat, Feb 29, 2020 at 9:07 AM Charles Hornig (Lexington) <horni...@charleshornig.org> wrote:

Tom Shiple

unread,
Feb 29, 2020, 3:34:54 PM2/29/20
to Charles Hornig (Lexington), Town Meeting Members
I'm wondering if a different approach to tackle the current basement "loophole" is to simply change the definition of a crawl space.  The current definition is (Section 135-10.1):

A space in a building having its floor surface entirely below average natural grade and a height of less than six feet eight inches from the floor surface to the bottom of the joists above. 

Six feet eight inches is still high enough for most people to be able to walk comfortably, in other words, people can walk in the crawl space.  What if the allowable height of a crawl space was changed to something like five feet?  Then anything over five feet would be considered basement, and would be counted toward the GFA.  In addition, following along the lines of the 2017 change to measure the ceiling height at the joists above, the floor surface could be measured from the slab to prevent the "workaround" of raised floors.

Tom Shiple, Pct 9





--
You received this message because you are subscribed to the Google Groups "LexTMMA" group.
To unsubscribe from this group and stop receiving emails from it, send an email to lextmma+u...@googlegroups.com.
To view this discussion on the web visit https://groups.google.com/d/msgid/lextmma/014201d5ef1d%2437ffd1e0%24a7ff75a0%24%40charleshornig.org.

Matt

unread,
Feb 29, 2020, 3:57:49 PM2/29/20
to Town Meeting Members
Fellow Town Meeting Members,

Lots of replies on this topic -- here are a few responses to some who commented:

(1) Regarding Mr. Forsdick's comments on the ZBA and enforcement of the GFA bylaw, the issue of the house on Emerson Road I think was more focused on the at-risk nature of the project, as it was mostly framed by the time the bylaw passed in 2016.  This was the ZBA's first action on the new GFA bylaw and they approved 12,531 square-feet GFA instead of the new maximum of 9,447 GFA, with the special permit requiring the entire basement and 700 SqFt of the attic have a ceiling height of below 7'.  When you look at the massing of the 12,531 SqFt house on the lot, I think we are all reminded of why we need GFA limits and why it's critical for this bylaw to be working effectively.

That said, from my analysis of ZBA meeting minutes there have been 10 applicants before the ZBA looking to exceed the allowable GFA.  Four were approved, four were denied, and two were withdrawn without prejudice, with a mix of both developer and homeowner applicants.  One example of an approval was a homeowner with a small house on a 3,804 SqFt lot who was looking to add a small addition to provide space for new children's rooms for their growing family.  The ZBA has a complex job requiring consideration of many factors, and when you read the meeting minutes of these hearings it is clear the Board is engaging in very thoughtful discussion and consideration off the issues of massing, and I believe is acting in congruence with the intent of the bylaw's limits and when they should be allowed to be exceeded.  This tells me that the GFA bylaw special permit accommodation is working and providing realistic relief where it's warranted, and will continue to do so after Article 46.


(2) Regarding Ms. Blier's note about raised false floors no longer being an issue based on a comment from staff at the hearing, I have not seen this in the permits I have analyzed.  Many times decisions of how to partition the basement is made after the foundation is poured and major construction has begun, and there are often updates from the permitting plan-set to the final as-built plan-set. There is no incentive to permanently reduce the ceiling height using poured concrete, when a raised wood-framed floor complies with the zoning -- "a height of less than six feet eight inches from the floor surface to the bottom of the joists above."  As I highlighted in my presentation on Wednesday about the applicant recently before the ZBA to, "ask that the ceiling height in the finished basement where it is currently under 7' be reconstructed and raised to a finished height of not more than 8'4". Part of the basement already has a ceiling height of 8'4", that there is incentive to restore reduced ceilings to full height, especially when the home is on the market for $4.3M and buyers likely expect full heights on all levels. 


(3) Regarding Mr. Hornig's comments on false ceilings not being an issue since the 2017 definition change, they were permitted for some time after that change judging by the permit dates, before the reduction method switched to raised floors.  With regard to the ability of having other legal permitted work performed, such as electrical or plumbing work, in a dwelling where a homeowner has illegally removed a false-floor, the Town would not require an as-built GFA certification as a condition of those electrical or plumbing permits, and I doubt an electrical inspector would be checking finished basement areas against the plans on file in the ViewPoint system, as its out of their scope.

--

That said, the purpose of Article 46 is to avoid these both real and hypothetical issues altogether, and I believe we should follow suit with our peer communities and not include basement areas in our single and two family dwelling size regulations, in order to ensure that our bylaw is effective in it's stated purpose to:  "encourages small- and medium-sized housing stock, in the interest of providing diverse housing sizes throughout the Town, § 4.4 limits the massing of buildings, which may impact owners of abutting properties, the streetscape, landscape, and the character of the neighborhood and Town."

Thank you for all your thoughtful discussion and consideration of this article.

Very respectfully,

Matt Daggett
Precinct 2


Reply all
Reply to author
Forward
0 new messages