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HomeMy WebLinkAbout1975-02-09February 9, 1976 - Monday R~gular Meeting The BOARD OF APPEALS held its regular meeting on Monday evening, February 9, 1976 at 7:30 P.M. in the Town Office Meeting Room. The following members~re present and voting: Frank Serio, Jr., Chairman; Alfred E. Frizelle, Vice Chairman; Louis DiFrusoio, Clerk; Sames D. Noble, Jr.; R~lph R. Joyce, Jr., Assoc. Member; Walter Jamitkowski, Assoc. Member; and Stephen R. Doherty, Assoc. Member. PUBLIC ~RING: (Frizelle, Noble, DiFruscio, Jamitkowski & Doherty sitting) 1. M~INAO VALT.~T ~ICAL CENTER - Chickering Rd.: Mr. St. Jean and Mr. Nar~is were present. Atty. John Spillane, Worcester, Ma. appeared before the BOARD and presented the petition of the above at 670 Chiokering Rd. He told the BOARD that this is a petition to redefine an existing special permit which the BOARD issued previously to C. Lincoln Giles (Chestnut Estates Trust). That permit w~s issued for a foundation slightly larger than what exists on the present map. Presently it allows a building of 3 stories and, according to Atty. Spillane, there is nothing different in this request tba~ what was given in the earlier one by the BOARD. By shortening the foundation there is a little more space for parking. It is designed for the use of professional offices, specifically doctor's offices which req~re quite a bit more blumbing, and he felt it would be a fine addition to the community. There are 2.26 acres of land involved in the project. Mr. St. Jean displayed a color schematic of the proposed building. The plan, dated Jan. 27, 1976, shows the parking area. The first floor will be office space or units and Mr. Spillane hoped that it would meet the Bu/lding Inspector's specifications. He called attention to the plan in which there is a redesign of the property to effectuate the parking and make the opti- mum use of the particular 9arcel. Mr. Frizelle asked what present interest the Merrimac Valley Medical Center had in the proper~y. Mr. Sp~llana stated that it is owned by Normand R. Marois with an i~erest by Dr. James O'Shea. Mr. Frizelle then asked what is the relationship to the party of the prior permit to the present o~ner. Atty. Spillane stated that Chestnut Estates Trust was owned by C. Lincoln Giles whose in~eres~were conveyed to Normmnd ~rois and Dr. O'Shea. Mr. Spillane was asked what his proposal to the BOARD was as to whether or not it should be treated as a new application or rescind the prior permit and grant a new one. He felt that the special permit that was ~ven before may well be able to serve their particular needs but that it was good legal bookkeeping due to the size of the foundation to receive the BOARD'S approval. He noted that the BOARD had some comments with respect to the building amd also the land~ and they felt that it should come before this B~J~D so that the paper work of the Building Inspector would be aided. Mr. Frizelle assumed that if the BOARD rescinds the present special permit and grants a new one that Mr. Marois would be a~reeable. The attorney stated that a new special ~ermit would be recorded as an instru- ment and by its terms would be the latest matter on record and the area of decision would be new. Mr. ~rizelle commented that the only reason they are in for a new special permit is because the land lies in 2 zones. Lincoln Giles explained what happened with the first special permit, which is all a matter of record. There is a posted concrete foundation already existing on the property. Mr. Spillane stated that they would like to have the first permit remain superceded by a new permit because they would like to hold on to ~hat they have. Then, the old permit could be rescinded subject to the filing of the new permit and expiration of the 21 day appeal period. OPPOSITION: John J. Willis, Sr. - he represents ~ near abutter and contended that this is a new petition with a re.~uest to have them provided with ~ entirely new consideration than previously. In order for the BO.ARD to grant this Special Permit there ~re many findings to be m~de: access, egress, parking, Zoning By-Law, etc., including the right to attach certain remtriciions if necessary to protect the s~rro~uuding area. He asked ~ebruary 9, 1976 - cont. the members to explore the plan presented tonight because in the original petition it showed the foundation had gone beyond the legal zone and alleged that the BOARD did not have any right to approve the first petition; this is the only recorded plan at the R~gistry of Deeds and the only one filed with the Towu Clerk. The one in the BOARD'S files referred to in the decision is the one not recorded, he said. There was no request for a variance and our ZBL makes a special exception to allOWing the extension of a boundary line (quoted Sec. 4.1 ~ ). ~obody can suggest, according to Mr. Willis, that they would be allowed to extend the business use within less than the dimensional requirements of the ZBL. He also cautioned the BOAPd) to pay parti- cular concern to where business abutts a residential zone - you must still remain 50 ft. from the residential district. He pointed out that this new petition shows less than 50 ft. from the boundary line. He then corrected Mr. Giles statement as to how this occurred - that at no time was it PrOPosed that this general business zone was to be extended in the new Zoning By-Law; all the new By-Law did was to adopt the existing gneeral business area. It was not a case of a mistaken description at that time. When the petition was originally before the BOARD there was a great deal of concern about access and egress. The colored photo shows 2 accesses onto Walker Rd. He cited a traffic problem in the area mentioning the new high school, overpass. Another point he brought out was the fact that we are not allowed to maintain parking in a residential area, it is not an accessory use in a residential zone. The origi- nal petition provided for 2 buildings, one a ba~uk and the other a 2 story professional building. They have eliminated the bank aad propose to put in a 3 stor~or building. }.ir. Willis claimed that there is absolutely no need for additional professional offices in the community s_ud cited the fact that his ovm offices have been suffering for 14 months - doctors are reluctant to get away from the center of the Town. Also, vacan- cies exist in the offices across from Merrimack College, McAloon's building and the Charles Construction building. He advised that we ought to concern ourselves with the taxpayers of many years as to whether or not the need is present. The construc- tion as proposed is outside the general characteristics of the area: ~) it is not the place that this type of structure ought to go; 2) it does not conform to our Zoning By-Law; 3) there is s~u outstanding permit which was illegally granted in the first place in so far as the plan that is recorded. ~,Ir. Frizelle spoke in regard to the zoning referred to, Sec~ 4.11 (3), and questioned. He felt that the boundary lines could be extended 100 ft. Mr. Willis retorted that a 50 ft. buffer must be maintained and can't park in the residential district. His opinion ,~s that an incomplete decisi°n was filed because the correct plan vms not filed with the To~,m Clerk. He took issue with the present Special Permit-request, and with respect to the new permit request felt that the rear lot line would prohibit any parking in this residential zone (because it is not an accessory use). Also, they have just one exit which was a factor of great concern in the granting of the original permit. Mr. Frizelle raised the question, strictly from a zoning point of view, as to whether or not the BOARD had the authority to deny the permit if it is a proper use in the General Business zone. Mr. Willis retorted that the BOARD would have to make certain that conditions as spelled out in the decision stated concern for hazard, etc. Mr. Jamitkowski asked Mr. Willis who he was representing - his wife~ he replied. Gayton Osgood, President of the Improvement Society: stated he had received several phone calls on this matter and the concern seemed to be for traffic problems and general business across from the high school. Atty. Spillane commented that anyone owning property on a roadway such as this has a right to use it~ the BOARD has a right to look at any proposal and inasmuch as it would be a Special Permit can impose conditions on it. This will be a building specifically designed for the purpose of health care; his clients are willing to make the investment and bring it to the community. This does not mean that other buildings are not adequate for this nor are Feb. 9, 1976 - cont. they in competition with one another. He continued, that he would hope if the BOARD did grant the permit and allow the existing permit to stand until the appropriate appeal period has eX~ired. Member Frizelle stated that if Atty. Willis' contention is correct they would have to set back the building 50 feet or apply for a variance. Mr. Spillane felt that on a petition of this sort the BOARD had the right to treat the total area as GB. If it troubles the BOARD they would be very happy to pull the building back 20 feet and would also adjust the parking area. Mr. ~rizelle felt it would be appropriate for him to send a memo on the 50 ft. setback ~e~uirement and the parking~ Mr. DiFruscio asked, hypothetically, if they wereto build, couldn't fill it BP, sell it what would the Town be left with? Atty. S~illane - the Special Permit is for professional offices only ~nd would go along with the property even if sold, if some- one else wanted to change the use it would have to be done by variance. Mr. Jamitkow- ski commented that it w~s presented as a medical center but the application states "professional office building". Mr. Spillane - if we are going to make this a medical center there arena great deal of requirements indigenous to doctors' needs, there is considerable money to be spent and risk to be taken but we are not at the point of a music theater or hamburg stand. Ted Phelan, Assessor: Mr. S~. Jean came to me as a member of the Industrial Committee and Assessor, It w~s zoned GB, we are having alot of trouble with our zoning through- out the Town, it is time we reviewed our zoning to find out what we can and cannot put in these areas, there is always a cfuestion and it is difficult to.give someone the proper guidance. Mr. ~'irzelle stated that there are a couple of open questions and asked for a motion to take the matter under advisement and set up a special meeting because there are finances at stake. Paul Lamprey, Planning Board member: mentioned access and egress and drainage per the Highway Surveyor. Suggested that a drainage plan be approved by Mr. Cyr. A motion was mazte by Mr. Doherty to take the m~tter under advisement. Mr. DiFruscio seconded and the vote was unanimous. (Frizelle, Noble, Jamitkowski, Doherty, DiPruscio) GEORGE PARKAS: (~rizelle, Noble, Jamitkowski, DiFruscio, Joyce) A'disoussion took place of the hearing which was taken under adwrisemen%. Letter dated J~n. 20, 1976 from Licensing Commission (Selectmen) was read an~ also a letter dated Dec. 9, 1968 from Town Counsel to Bd. of Selectmen was read. These letters are on file. Letter from Mr. Park~s was read and on file. The ~ice-Chairman asked for comments from She BOARD. Mr. DiFruscio questioned whether he had a license prior to 1968 - Mr. Frizelle said he had a license in 1963. An application dated Dec. 2, ~968 was denied. Mr. Noble observed that there is no evidence of a license from ~963 to ~968. Mr. ~rizelle reiterated Mr. Farkas' argument at the hearing regarding denial of permit based on the fact that it was in violation of zoning to which he answered that it w~s not because he had an allowed use in an Ind. L District and did have a parking license at one time, etc. Much discussion ensued pertaining to the years licenses were issued, sections applioab!e in the By-Law and non-conforming uses. No conclusions were drawn and the question will be taken up again on Sat. morning, Feb. ~4, ~976 at a Special Meeting. GILBERT REA: (Serio, ~rizelle, Noble, Jamitkowski, DiFruscio) Mr. Rea had questions regarding his application for renewal of earth removal permit. Mr. Serio told him he would have to come in under the new Sec. 5. Mr. Rea mentioned that he had an original plan and wondered if he bad to submit another one. He was told that if he felt his plan reflects current status to submit 7 copies of that. ~r. Rea told the BOARD that the operation has continued since spring of 1964 and the original permit was reviewed. Chapter 808 Revision to Chapter 40A: that Town Counsel may not care for. major changes in procedural aspects. regular meeting. Mr. Noble felt that there are some subtle changes Mr. Joyoe brought out %hat there will be some The matter to be discussed further at the next WAVERLY ROAD PROJECT DISCUSSION: The question arose whether or not it should be appealed to a higher court. Mr. Frizelle outlined some of the objections that the cour~ had found against the Town of N.A. M~~. Noble made a motion to continue the appeal and Mm. Jamitkowski seconded. The vote was unanimous. The BOARD would so recommend an appeal to the Appeals Cou~ to the Selectmen. HEREFC~ MATTER: Letter from Atty. Willis was read and the Chairman felt %hat he sh'ould be granted an extension of time in order to submit plans. Nay 1st was suggested. If we do not have them by then the permit will be cancelled. Mr. Noble made a motion stating the above %o be put in letter form to Atty. Willis. Mr. Jamitkowski seconded and the vote was unanimous. MISCELLANEOUS MA~ERS: A motion was made and seconded by Messers Jamitkowski and Prizelle that Mr. Joyce and Mr. Frizelle will act as counsel for the BOARD. Copy of letter from Arnold Salisbury to Bd. of Health re conflict of interest was read and is on file. Letter from Cry. Commissioner re Growth Policy Act was read and is on file. Copy of letter to Selectmen re Driveway Standards on State Highways was read and is on file. The BOARD decided to send a letter to Town Counsel re United Freightway~ requesting notification of status of appeal of the decision dated August 28, 1975 and noting that the operation is continuing and appears to have expanded. The meeting adjourned at 1t P.M. Chairman - k ',o, 4~.~, Gilda Blackst ock