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HomeMy WebLinkAbout2009-09-03 Zoning Board of Appeals Minutes Town of North Andover ZONING BOARD OF APPEALS °ir Albert P.Manzi III,Esq.Chainwa r k -AssoaYateAle hers o N tie Ellen P.11clntyre, Vice-Chairman 32 '' °c 'Monias D.Ippolito Richard J.Byers,Esq. Clerk � � Daniel S.Braese,Esq. Joseph D.LaGrasse ; * Michael P.Liporto Itichard Al.Vaillancourt 4 Zoxijtg Eufot ement Q11 er �'S p.s 05 1 Gerald A.Brown DRAFT MINUTES Thursday, September 3,2009 at 6:30 p.m. 120 Main Street,North Andover,Massachusetts Members present during the evening but arrived at separate times,which is noted in parenthesis. Members present: Albert Manzi(7:25pnr), Ellen McIntyre and Dick Vaillancourt(7:25prn) Associate Members present: Thomas Ippolito and Daniel Braese Excused Members: Joseph LaGrasse,Richard Byers, Michael Liporto Also in attendance: Thomas Urbelis,Town Counsel (excused at 7:45pm), Mark Bobrowski, Special Counsel (arrived at 8:35pm), and Community Development Director Curt Bellavance Vice-Chairman McIntyre called the meeting to order at 6:45pm MOTION: Mr. Braese to continue until 7:15pm Mr. Ippolito second(VOTE: 3-0) Vice-Chairman McIntyre called the meeting back to order at 7:29prn and returned the gavel to Chairman Manzi. COMMUNICATIONS: Lizetta M.Fennessy Finding Party Aggrieved R-4 #EM/RB/AM/RV/TI/DB/ML for premises at: 70 Elm Street,Trinitarian Congregational Church (Map 42,Parcel 2) Chairman Manzi verified that both Dick Vaillancourt and Daniel Braese were certified to be part of the deliberations and are eligible to vote on the matter. Both members verified that they were up to speed on the evidence,both reviewed the minutes and watched the DVD provided from the August 11,2009 meeting in which they did not participate. The Board is considering whether to approve minutes from 8-11-09. Ms. McIntyre motioned to approve minutes pertaining to Trinitarian Congregational Church. Discussion then took place regarding whether Board should approve sections of minutes or pages or paragraphs. The Board identified#70 Elm Street Section regarding special counsel stopping at the intermission (Page 2 thru Page). Vice-Chair Ms. McIntyre modified her motion to identify that particular section SECOND BY: Mr. Vaillancourt (VOTE: 5-0) Mr. Ippolito asked if the Board should wait until special counsel is present, Chairman Manzi asked the Board what they would like to do. Mr.Braese suggested adjourning until 8:20 until special counsel arrives. September 3,2009 Minutes Page I of 5 Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi 111,V sq. Chairman tAO oT1b'14, Ar;ariateA fetes Ellen P.Alchilyre, 1/ice-Cludi man �32R °c I7io��ias D.Ippolito Richard J.Byers,Esq. Clerk Daniel S.Braese,Esq. Joseph D.I.aGrasse q :° a Alichiel P.Liporto Richard Al Vaillancourt ��94APR j4P`y�y ZoadngEufoiremeut O()iter �s AFeP ATIP Gerald A.Brown Chairman Manzi suggested that the Board members could either discuss whatever we need to, or wait. Chairman Manzi stated that they did approve the minutes, but they can reconsider if someone feels someone thought it wasn't correct. Chairman Manzi asked if Atty.Bobrowski received a copy of the minutes. Mr. Bellavance mentioned lie doesn't think he received a copy. Chairman Manzi discussed procedures of what action the Board could take regarding the appeal of#70 Elm Street. There are procedural questions for Atty. Bobrowski; is a super majority needed(4 out of 5). (Atty.Urbelis had to leave at 7:45) Mr.Vaillancourt asked if we are becoming a party to the case against the Planning Board. Chairman Manzi stated that this could possibly become a federal case next—likely appealed by MetroPCS. Mr. Vaillancourt explained what he thought the two options were: 1. Turn over Building Inspector's decision. Does that equal a cease and desist? 2. If the appeal doesn't get approved then the applicant can appeal ZBA decision to surerior Court. Chairman Manzi stated: the questioned is, is the Bylaw being enforced? A vote to overturn on setback, probably would be appealed at Federal level by the wireless carrier. This would be likely. Mr. Braese questioned if the bylaw itself or the enforcement would be appealed? It is harder to show that the wording is against the TCA and stated that there are solutions to the bylaws. Mr.Vaillancourt stated that it is one-word and definition. Mr. Braese asked what is the"pre-existing structure"definition? If they put that in then we wouldn't be sitting here,a lot of ambiguity. Chairman Manzi agrees that there is a lot of ambiguity. Mr. Braese stated that it is very vague... extremely vague,with a lot of holes that can be resolved. Chairman Manzi stated that he agrees with Mr. Braese and that it is the enforcement or lack of enforcement of the bylaw. Depends on the finding;we could have a different result if we were looking at a waiver. If it is a question of a variance,then it's a question in gap coverage, but we could examine that through a public hearing, abutter notices,etc., Mr.Braese stated that there is no doubt in his mind that there's enough ambiguity and the Building Inspector should move that to our level instead of one person. We're five(or eight)people making the decision. Ultimately he made the right decision, but it was a shot in the dark. Chairman Manzi stated that the ZBA is a resident volunteer board—there's a process to make decisions. Mr.Vaillancout stated that the Inspector has no history of people and is making a subjective job. Mr.Braese stated that we have a good Building Inspector who has made good decisions, but this case should have come to the ZBA. Chairman Manzi noted that this is about the ZBA and the checks and balances. September 3,2009 Minutes Page 2 of 5 Town of North Andover ZONING BOARD OF APPEALS t% TH _Assot7ale blember7 .Albert P.llsutzi Ill,Esq. C64i'Mall �°4�t,, `° ,b a�dn Thomas D.IpQolito � L Flletl P.llclnt),re, Viie-Cliairi�rar! Daniel S.Braese,Esq. F &ichael P.Liponto Richard J.Byers,Esq. Clerk ose h D.I,aGrasse Iorrirlg Eufatvemer�t PlIker J Q Gerald A.Brown Richard'I.VaillailcOurt p*"ATE.Hof A t SSA 05 Mr.Braese Stated that the town deeds t0 get a hold oVl 1C11 way is ltlg0 going to needs to be the�virclesstc'otnpanies Chairman Manzi stated that this will be appealed face the burden,they have the resources. Mr. Braese noted that we have limited view and that we need to interpret the Bylaw. Mr.Ippolito asked if the current action is right,wrong r indifferent.This should be reasons out if that hands t or in something in the past can apply here whether it is right Federal court. Have all the petitions go to the Federal level not local boards. He wants to see what's best for us right now. The problem lies at the Federal level. Mr.Vaillancout asked if he was referring to the TCA? Mr. Ippolito said yes. Chairman Manzi stated that the ZBA could deal with GAP if i tc look gat the process, es ce deal ing with boards setback and should it have conic to the ZBA;that is what relying on staff and boards relying on other boards for each decision. Mr.Vaillancout is disappointed with the church in this matter; i o it is wort it he Inld ey", B t the bylaw is ambiguous,the Building inspector is interpreting the y aw the dangerous precedent. McIntyre questioned if there is a sectio3i that states the more stringent bylaw is in effect. Vice-Chair Ms. Chairman Manzi stated that Atty. Bobrowski addressed that issue. MOTION: Mr. Braese to take a short recess (8:17pm VOTE: 5-0} Second by Vice-Chair McIntyre Chairman Manzi called the meeting back to order at t epm ilea stated ule.that two members(Mr.Vaillancourt and Mr.Braese)were certified voting members under Attorney Mark Bobrowski arrived during the recess. minutes Chairman Manzi asked if the Board need#de° then asked asked to rev ew e wpthatiportion of tous minutes. Attorney Bobrowski stated that it was do required and t Attorney Bobrowski stated lie did not have a problem with the minutes. Chairman Manzi stated that after he reviewed the mitiiit�pienoticed tthem at the 8-11 tH that the meeting. complaint was entered into the minutes as an Exhibit;Attorney Bobrowski offered MOTION' Mr. Ippolito motioned to reconsider the previously approved section of the minutes Second by Vice-Chair McIntyre (VOTE: MOTION: Mr.Vaillancourt motioned to take the minutes up at the Tuesday(Sept. 8)meeting. Second by Mr. Ippolito (VOTE: 5-0) page 3 of 5 September 3,2009 Minutes Town of North Andover ZONING BOARD OF APPEALS Albert P.lfnnzi III,Esq. Cbrriaryraaa o* tiORTH tiieo e �y4 Associate kfmibers \IcInt}re, Vice P. -Cbairnwau a`� ¢`°` `''° pc Thomas D.Ippolito Richard J.Byers,Esq. Clo-k o Daniel S.Brnese,Esq. Joseph D.LaGrasse ; Michael P.I iportp Richard N1.Vaillancourt ° %o h p. Lufoacainat O ar 4 USE1% Gerald A.Brown Chairman Manzi asked if there were two or three options available to the Board? The first would be a vote in favor of the appeal(supporting Ms. Fennessy), the second would be to vote to intervene on the existing litigation? Attorney Bobrowski stated that the case was applicable to the 600-foot setback, and what that means. Attorney Bobrowski stated that the Planning Board implacably concluded that the 600-foot setback does not apply;the claim is that the Planning Board should not have heard that application based on that fact. Attorney Bobrowski stated that Superior Court will give you an answer but the appeal puts you in the middle, seeking a decision from the ZBA first, but it's already in court. The ZBA has to ask themselves if they want to be in the middle. Chairman Manzi asked how much weight would our vote Bold;whether pre-existing or existing? Atty. Bobrowski said the two sentences go in opposite direction and the Bylaw is inescapably ambiguous. Mr. Braese asked if the Superior Court Judge could strike the Bylaw? Atty. Bobrowski said they could but that this case is one way or another;yes or not. Mr. Braese stated that a definition of pre-existing structure would solve this! Atty. Bobrowski agreed. Atty. Bobrowski further explained that upholding- injecting yourselves into the controversy,you would be reversing the Planning Boards finding. The Building Inspector is entitled to make a decision, and Planning Board doesn't need to agree but they did. You would be negating the Planning Board decision, which is the exact issue that's in court. You would be fighting the same battle. Discussion ensued about court procedures and legal maneuvering. Atty. Bobrowski stated that under a super majority(4 of 5),you could part yourself in the shoes of the Building Inspector and order the pert-nit withdrawn. You would need (1)a Super majority to uphold, (2) a Super majority to revoke building permit, or(3) a simple majority to intervene(Atty.Bobrowski followed by stating that that would not be necessary because the case is already in Superior Court). Mr.Ippolito stated he is still in between oil this. Vice-Chair McIntyre suggested a motion to uphold the Building Inspectors decision but did not make the motion. The Board members discussed the suggested motion and if that was the appropriate motion. Ultimately, Vice-Chair McIntyre made the following motion: MOTION: to support the appeal of Ms. Lizetta b'ennessy as a party aggrieved pursuant to G.L. c. 40A, see. 8,and the Town of North Andover Zoning Bylaw from the decision of the Building Inspector acting as the Zoning Enforcement Officer regarding the Trinitarian Congregational Church at#70 Elm Street and the September 3,2009 Minutes Page 4 of 5 Town of North Andover ZONING BOARD OF APPEALS t;oRTH R �l.croci<rte�lle�y�Gerr Albert P.Manzi III,Esq. CGai nmu o �S�*p �b, tp Ellen P.Xldntyre, Vice-Chahwarr 3= "`' °� Tliamas D.Ippolito Richard J.Byers,Esq. Clerk ° xi Daniel S.Braese,Esq. Joseph D.LaGrasse n * Michael P.Liporta Richard lI.Vaillancouxt * Zoning ° M�SSacw Gerald A.Brown issuance of a building permit by the Building Inspector to MetroPCS Massachusetts for construction and operation of wireless communications facilities in a residentially zoned district SECOND by Mr.Braese Attorney Bobrowski stated that a"Yes"vote would support Ms. Fennessy's appeal and that a"No" vote would support the Building Inspectors decision to issue the building permit. Chairman Manzi called for a roll call vote: Vice-Chair McIntyre: YES Mr. Braese: NO Mr.Ippolito: NO Mr,Vaillancourt: NO Chairman Manzi: YES (The motion failed by a vote of 2-3) Chairman Manzi asked what other actions should the ZBA take? Mr.Braese stated that the Town needs to get this bylaw done and address the issue. Chairman Manzi questioned whether the Board wants to intervene, generally not. Also, does the Board want to send a message of any other form? Mr. Baese still thinks these types of applications need to come to the ZBA. The Board of Selectmen needs to take the lead on this issue. Chairman Manzi stated that we just had the chance to take this lead, but Nye didn't. Mr. Bellavance stated the Atty. Urbelis,on behalf of the Board of Selectmen, is working on a bylaw based on an overlay. Chairman Manzi stated that the ZBA's vote sent a message. Mr.Vaillancourt disagrees. Vice Chair McIntyre asked if they can appeal? Atty Bobrowski stated yes,they have 20 days once filed. Atty Bobrowski said it is not the ZBA's typical role to draft bylaw. We have 14 days to file. Atty. Bobrowski will have draft ready for the Tuesday(Sept. 8)meeting. Send minutes to Board of Selectmen to show them you're conflicted. MOTION to adjourn: Vice-Chair McIntyre Second by Mr. Braese (VOTE: 5-0) September 3,2009 Minutes Page 5 of 5