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HomeMy WebLinkAbout1988-09-13 The Board of Appeals held a regular monthly meeting on Tuesday evening, September 13, 1988 at 7:30 P.M. in the Selectmen's Meeting Room. The following members were present and voting: William Sullivan, Acting Chairman; Augustine Nickerson, Clerk; Raymond Vivenzio, Esq.; Walter Soule; and Louis Rissin, DMD. PUBLIC HEARINGS: John Rizza Special Permit - 95 Main St. Legal notice was read by Clerk Nickerson and Atty. R. R. Joyce represented the petitioner. Atty. Joyce presented a background of the premises and emphasized that the only alterations to occur were the moving of a parti- tion to separate the operative area from the reception area. There would be no exterior structural changes. When talking with the Building Inspec- tor he was told, he said, that the parking ordinance was a "change" which would determine appearing for a Special Permit before the Site Plan Review board and was, therefore, denied a building permit. The Building Inspector had determined that this was a non-conforming use and that the change in the By-Law deleting the "350" distance from a munici- pal parking lot..." would require additional parking spaces. Mr. Joyces's opinion was that under Sec. 6 of Ch. 40A, the Bldg. Insp. is required to make a determination that if you alter, change, or modify in any manner a legally non-conforming use that it will be a substantial detriment to the neighborhood. Mr. Nicetta made that determination. At that time, he introduced the next petition - that of Maureen J. Joyce in which as a party aggrieved, I am told that a simple change of tenancy requires obtaining a special permit and flies in the face of common sense. The subject property under the previous uses were retail. By the expan- sion of my office space and Dr. Rizza's office space, we now require 6 parking spaces. It it my opinion, he continued, that it is well within the guidelines of the By-Law to change from one to the other. Both uses are allowed in the GB zone. FAVOR: Dr. Rizza, who requested a decision be made on this date because of a month's delay already. NO OPPOSITION WAS VOICED. Correspondence read received from R. Nicetta, Bldg. Insp. & from Planning & Community Dev. Mr. Nicetta, who was present at the Meeting, stated that so long as he (Rizza) meets the zoning requirements he would have no objection to the dental office. Mr. Vivenzio then asked Mr. Nicetta what he considered a "change". Mr. Nicetta felt that an interior design change constituted an increase in the number of parking spaces and only 4 were shown in the proposal. He reiterated that the 350' requirement had been deleted in 1987 and told the Board that he brought up Sec. 8.2(6) of the By-Law to the owner at the time he applied for a bldg. permit, but Mr. Joyce declined to go for a variance from the parking requirement. "I am only interpreting the law as written and I would like guidance", he stated. Page 2 Atty. Joyce told the Board that there is presently sufficient parking behind the building for 4 cars and discussion ensued regarding possible potential numbers of persons that could be inside at one time. Dr. Rizza stated that he would have 2 chairs, would stagger schedule so as to have only 2 patients at one time. At this time, the Building Inspector brought out the fact that the plan detailed a second floor. The petitioner replied that the dental equip- ment for the 2nd floor had been cancelled and that it would remain as a storage area. Member Vivenzio felt that Rizza may need a variance rather than a S. P. Joyce disagreed and more discussion took place regarding legally non -conforming vs. substantial detriment, etc. Jos. Vernile, Water St., interjected his situation with commercial prop- erty on Water St. where he resides. Motion then made by A. Nickerson to take the matter under advisement and seconded by ~W. Soule; unanimous vote. Eastwood (Windle) - Variance (Remand 138 High St. from Court) The legal notice was read by the Clerk. Atty. George A. Stella represented Debra Pitochelii--outlined the details of the remand from Court of a Variance granted on Oct. 21, 1986 by this Board. On June 2, 1988 it was decided by the Superior Court that the Board did not present sufficient reason why the variance was granted. The Board felt that the request to subdivide the property into 2 lots did satisfy minimum lot size required for frontage on both lots. The minutes of meeting held described only 2 abutters in opposition at time of public hearing. There was a 4-1 vote grantin~ subject to conditions. Correspondence read. FAVOR: Debra Pitochelli, 138 High St. - advised those present that she is the new owner of property and has been tied up almost 2 years and would like to have the opportunity to build that single family home. She continued to say that the general condition of the property is about 95% better than before and would like to move forward. Also, that there are others on the street and on the appeals list who have multi-family homes. OPPOSITION: Atty. Ralph Joyce, counsel for Mary & Leonard Windle, recapi- tulated the facts of the remand from Sup. Ct. Inasmuch as the Court did not have the facts before it as to why you voted to grant this variance, I am going to ask you to .make the decision that the variance was improp- erly granted. Members Vivenzio and Nickerson questioned why it is necessary to go through this procedure again. Mr. Joyce--the facts are not present in order to create the substantial hardship necessary; namely, soil, shape and topography and to grant this variance would derogate from the intent and purpose of the By-Law. The neighborhood was not out previously because it was Mr. Eastwood who was the petitioner, but they are out now. I am requesting reconsideration. Page $ Leonard Windle, resident since 1953, also spoke in opposition of the shortcomings of the property. Other residents and/or neighbors: Judith & Jay Farrow, High St.; Mercedes Fabiano, Audrey & Ralph Wilde, Kevin & Jill Smith, all of High St. Abutters Mary DiZazzo, 148 High St. and Dorothy Barker, 146 High St.; Betsy Cote, 116 High St: cited congestion, traffic, speeders, etc. Mary Windle, 118 High St. presented letters from various persons not present; letters entered into the record. Acting Chrmn., Sullivan mentioned that although some of the information may not be appropriate to a later decision, the Board owes it to the people to have the ability to speak at this time. Mr. Stella asked if he could submit a written decision to be used. Mr. Joyce requested that specific findings be made as to hardship, etc. Upon motion of Mr. Nickerson and second by Mr. Soule to take the matter under advisement, a unanimous vote was recorded. The Secretary accepted a copy of Mr. Stella's written presentation for the files. Maureen J. Jo¥ce - Party Aggrieved - 95 Main St. Mr. Vivenzio did not sit on this petition due to the fact that he is a property owner at 89 Main St. The legal notice was read by Mr. Nickerson citing Ms. Joyce as a party aggrieved by the refusal of the Building Inspector to issue a permit at subject address. Atty. R. R. Joyce representing stated that Mr. Nicetta and he would concur in one respect--"We need some guidance from this Board." You are the appellate Board and need to resolve any ambiguities and, he added, that it appeared government is reaching an unwarranted and unacceptable level of control. Legally existing non-conforming uses are governed by Ch. 40A, Sec. 6, of the M.G.L. In this particular instance, the Building Inspector says my changing from the Xmas shop to the dental office is a substantial detriment. He then requested some kind of statement that the Bulding Inspector can guide himself by and that the property owner can be guided by. His opinion was that changing from retail to office was not a substantial detriment. He reiterated MR. Vernile's case in which he resides in a GB zone--will he be required to come before the Board if he changes to the right of the General Business zoning?? He felt that the zoning requirements had been "monkeyed around" with so that each owner on Main St. is now subject to coming in~ tenancy change and pleaded for the application of some standards. Joyce submitted letters received from M & M Assoc. & Jos. Vernile. Requested a fair and equitable policy for legally non-conforming uses because people are being denied their rights. Ail the parking ordinances have changed so that in every instance they will have to come before the Board of Appeals, he claimed. Bill Sullivan felt that Mr. Joyce's argument should have been presented at Town Meeting last May. FAVOR: Edward Sibeleski, 82-88 Main St.--experiencing the same problem with a change over. Paul Donovan, Colonial Shoppe, Main St.--my feeling is that this is nut "mid-town Manhattan"; anyone making a living here or owning a business should not have a detour thrown in his way. Page 4 Letter from the Building Inspector, Robert Nicetta, was read. Note: correct total spaces to "12" and law office from 9 to "3" Ralph Joyce rebutted that he is going from an allowed retail to an allowed dental with no changes. This constitutes a stagnation if not allowed and gave example of Ben Osgood's bowling alley in Andover. Mr. Soule reminded Mr. Joyce that the Board is not here to set "policy", they are the end of the tunnel to alleviate unresolved conflicts in the zoning law. NO OPPOSITION. Mr. Nickerson opined that the businesses existing for a number of years will violate the new by-laws. The question is, what to do in the future and felt that Town Meeting is responsible for this resolution--the Board can't do it by itself. Mr. Nicetta, stated that Town Meeting created the by-laws and he is just enforcing them. Mr. Nickerson made a motion to take the petition under advisement. Dr. Rissin seconded and vote unanimous-- 4 - 0. Mary McCarthy - Area Variance (2-acre zoning) - Lots 4, 5, 6 Liberty St. & Lot 7~ Sharpner's Pond Rd. Ail 5 members present and sitting on this petition. Clerk Nickerson read the legal notice. Mary F. McCarthy, 290 Johnson St., appeared in her own behalf and requested being allowed to withdraw without prejudice in order to obtain counsel and return at a future meeting. Upon motion of Atty. Vivenzio and 2nd by Dr. Rissin, Mrs. McCarthy was granted withdrawal without prejudice by unanimous vote. Peter & Leslie Kalafarski Variance~ rear lot line - 45 Dana St. The legal notice was read by the Clerk. Mr. Kalafarski represented himself citing the need for a variance from the rear yard setback in order to allow the construction of an addition. Gave history of the house and the family's residency there. When pur- chased only he and his wife; now, two children and needs space. Presented photos of present home; had spoken to abutters and none have a problem with his proposal. The addition would require a variance under Sec. 7.3 and Table 2 of the By-Law so as to permit a setback of only 20 ft. No restriction as to lot coverage. FAVOR: Heather Bond, 165 Marblehead St. NO OPPOSITION. Motion made by Member Soule to GRANT the Variance as requested. Second by Mr. Nickerson and unanimous vote. Page 5 Public Hearings (cont'd) L & L Vaughn - Special Permit/Family Suite - 439 Winter St. The legal notice was read by Mr. Nickerson, Clerk. Larry Vaughn, petitioner, represented himself and requested the addition of a family suite to accomodate his in-laws, M/M Jos. F. Cascone. He presented plans and photos of the Cascone's Mr. Sullivan advised Mr. Vaughn of the terms of the family suite. The existing house, Vaughn said, is 23 x 452' so the addition meets the requirements, it will be 900 s.f. FAVOR: Mrs. L. Vaughn. Correspondence from Scott Stocking, Town Planner, was read into the record. OPPOSITION: NONE Upon motion of Atty. Vivenzio to GRANT the request for Special Permit in accordance with the plans submitted and the usual boiler plate conditions (photo & annual inspection) with the correction to be made to the petition of dimensions of the addition (to be "45' x 18'); ~he dimensions of the addition shall be in accordance with the pi~n~ and second by Mr. Soule the vote was unanimous. Leona Morin - Special Permit~ Add'l Bldg. - Lot 10C, Forest Clerk Nickerson read the legal notice. John Clay ton , civil engineer, represented the Morin's. Mr. Clayton advised those present that the request was for a Special Permit under Sec. 8 (12) of the Zoning By-Law so as to allow the construction of an additional building on the property consisting of 3.44 acres. He noted that there is 650 ft. of roadway in the acreage of the house. The use of this storage building will be to park a 1 ton commerical vehicle and the owner's belongings. Basically, a separate facility for his hobbies. He could have gone to a 4-car garage without coming before the Board; the lot is well buffered; it is not a business, stated Clayton, just for personal use. Correspondence received and read from Scott Stocking, Planner, stating that the applicant had not shown proper buffer requirement, etc. Letter on file. Robert Nicetta's comment referred to Sec. 8 (12y'...parking for addi- tional vehicles may be allowed by Special Permit". He felt that given the 300 ft. buffer and reduction in size of the building to 36' × 36' it would fall under the terms of the request and he would be in favor of the granting. Chrmn. Sullivan informed the petitioner that the hear- ing could be continued to allow him time to confer with the Building Inspector on remaining within the limits of the Special Permit. Mr. Clayton and Mr. Morin, who was also present, were agreeable to Sullivan'8 suggestion. Motion then made by Vivenzio to continue the hearing until the Oct. 11 meeting. Second by Nickerson, vote unanimous. Public Hearings (cont'd) Robert & Claire Daisle - Variance & Sp. Permit Page 6 Hodses St. Legal notice was read by Clerk Nickerson. Atty. Gerald Cohen represented the petitioners and reiterated that a Special Permit was granted several months ago for the former Giard's Garage. We agreed to provide parking for 15 spaces, the plan was recorded. There was some question regarding a Certificate of Occupancy. The Building Inspector denied temporary occupancy and suggested dis- cussing the matter with Mr. Scott Stocking. He presented the plan & distributed same to the membership. He stated that they are trying to improve both lots and noted that S. Stocking preferred a circular pattern of parking , no backing out onto Morton, May, or Hodges Sts. It is a unique lot with unique setback problems, he said. The neighbors want to diminish the impac~ and seemed favorable, stated Cohen, toward 6 one-bedroom apartments. The setbacks of the lot severely limit the use. Requesting a 5' setback variance from Morton St., 5' from May St., and a 10' variance from the rear. Mr. Stocking had suggested that they apply for a Special Permit so that the plan can be modified. The Board of Appeals had already approved the parking on May St. There is no prohibition from backing out onto a street but it is a matter of good planning to eliminate that. The Building Inspector, Mr.Nicetta, will not issue us a C. O. until this area is resolved. Nickerson: reminded the petitioner that he had agreed the last time to occupy the 1st floor and only part of the 2nd floor; this is a non -conforming site and if you expand you will exceed the 25% requirement. Mr. Cohen confirmed that they would not expand this building. The proposed building would be 100% residential, said Cohen. Building Inspector, Robert Nicetta, read the correspondence from himself. The bulding is layed out so there is enough parking for this facility (6 bedrooms); 20 ft. setback on each side and 10 ft. in rear. He fur~er explained the plan and noted that as long as he meets the original curb lines, planting areas on May St. and covenants the property on Hodges St. and meets the appeal period he would recommend granting the request. FAVOR: Claire & Robert Daigle, Great Pond Rd. Questions were raised by the following abutters/neighbors: Larry Allen, 3 Belmont St., abutter to Hodges St. property - given the situation described by the B. I. then their major issues were addressed - safety and parking - and left the matter to his judgment to insure that once approved it doesn't fall out of the town's hands. Peter Voisine, Morton St. voiced concern regarding the one-way condition on Morton St., more traffic, etc. but was satisfied after discussion and review of proposed plan. Member Rissin asked if it will or will not be accessible to Morton St. Robt. Daigle advised that it will be closed off. At this time Lt. Andy Melnikas, NAFD, was asked if he is satisfied with the access - "Yes", he replied, but after more questioning stated that 10ft. would not be wide enough. His opinion was that they could work together on this as- pect and if they have 3 sided access they can live with it. Page 7 Public Hearings (cont'd): Walter Soule expressed concern regarding the height and possibly the footprint of the building - added alot of everything, not much green space. Atty. Cohen replied that it is a 2½ story building - 60' x 25' and difficult to do much differently. It was noted by Mr. Sullivan that parking for an elderly facility seemed to have been considered. They only require 6 spaces if all elderly with 3 1-bedroom and 3 2-bedroom. They must stay within the restrictions. Mr. Allen, abutter, asked for protection from a change & was told they would be required to appear before this Board or one of similar type. Mr. Cohen stated they could live with a 2-story building. Motion made to continue the hearing until the October regular meeting by Vivenzio, second by Nickerson and unanimous vote. Ronald A. Merino - Variance (oil~ lube company) - 164 Sutton St. The Clerk read the legal notice rquesting Variance from Sec. 7.3 (1) 8.2 (1) and Table 2. Mr. Merino represented himself and explained the plans, buffer zones,-= setbacks, granite curbs. He informed the Board that he proposed a quick lube center. Concern with the corner & 15 ft. buffer zone. Mr. Nicetta stated that the plan has never been before the Planning Board site plan review before coming here; bothered by curb cuts, danger in backing out onto the main street and suggested it be held in abeyance pending a site plan review. Stephen W. Bird, Pynne Const., general con- tractor, retorted that he had dealt with Scott Stocking and had all the paper work in hand but was informed just the opposite on Aug. 22. Correspondence read: Bulding Insp. recommended denial due to potential danger, safety hazard, traffic, etc. Scott Stocking, PLanner, recom- mended that the Board continue the hearing so they could apply for add'l variance, etc., discussion with Technical Review Committee (see letter). Merino stated he had never been informed about a TRC, cause of confusion at this time - filed in August, application accepted & only today hear of this TRC. Mr. Sullivan suggested continuance until next month so that he would have the time to submit the proper information and follow the proper process. Mr. Merino then presented photos and agreed to the Board's request for continuance. Mr. ¥ivenzio told him that the plans should be along the same line as those presented to Site Plan Review Board. Motion to continue to regular October meeting mare by Mr. Soule with second by Mr. Nickerson. The vote was unanimous unpon suggestion that Merino contact S.S. for any further details. Robert Jr. & Harriet Schick - Special Permit - 100 Court St. Atty. Marcia Damon-Rey , counsel for the Schick's, represented. Ms. Damon-Rey told the membership that they seek relief to allow an exist- ing swimming pool (inground) to remain which extends beyond the front building line of the house. She explained that the pool was constructed Page 8 in June , 1983, 10 months short of grandfathering in of the setback. The slight discrepancy was discovered by a buyer's lawyer and, therefore, relief sought from Sec. 4.121 (7) of the By-Law. Correspondence from the Building Inspector was read into the record in which he recommended allowing the existing pool to remain. NO OPPOSITION. Nickerson made a motion to GRANT the request for Special Permit as requested and upon second by Vivenzio the vote was unanimous. CONTINUED PUBLIC HEARINGS: Stephenson & Heather Bond - Special Permit, expansion, 165 Marblehead St. Nickerson, Sullivan, O'Connor, Serio, & Rissin sat on this petition - Jo~ J. Willis, Jr., representing presented 1 set of plans and stated that Mrs. Bond would make more sets available. The expansion require- ment was met, 17%, doesn't include porch. OPPOSITION: None Motion to take the matter under advisement made by Nickerson, seconded by Rissin, voted unanimously in favor. Mr. Willis informed that the Board will render a decision between this meeting and next month, David Ritchie - Variance - 200 Waverly Rd. Mr. Ritchie told the Board members that, based on parking problem on Waverly Rd., he created a 2 stall garage. He would physically have to move if not allowed to do it He presented a memo outlining a list of agreements between he and the ahhtters dated Aug. 30 , 1988 and revised Sept. 9, 1988. The garage itself will match the house in appearance, siding, color. FAVOR: Gene Northam, 196 Waverly Rd. - presented a statement from a major abutter who is much in favor of the proposal: Frances L. Cote, letter read dated Sept. 10, 1988. Correspondence: Building Inspector dated Sept. 13, 1988 recommending approval if Fire Dept. regs. are adhered to, etc. Mark Hall & Judy Hall, OPPOSITION: Tom Marcott, 206 Waverly Rd. voiced opposition to the over- development of the lotand the close proximity to his lot; had met with David Ritchie twice and minor adjustments made - lowering the height of the garage has made it a little more "palatable" but his basic concerns still there. Pat Marcott, 206 Waverly Rd., mimicked the above concerns of her husband and added they would be looking at a "black billboard'f. John Fragala, 1 Dana St., felt that the rules are made to protect the neighbors and the neighborhood and the project is awfully close to the Marcotte's property and they also have rights. Helen Soucy, Cabot Rd., still felt it is over-use of the land available and would devalue her property. Gene Northam repeated he is very much in favor; all necessary precautions taken regarding access to pool by outsiders, etc. This ~SY-WHEEL ELECTRONIC TYPEWRITER offers you state-of-the-art qualj~y with fea~such as: / wWDUAL PITCH ~G This ~CA pitch (10 characters~nch) This ~ ELt~h (12 characters~nch) ........... The quick bro~ fox ju~ the lazy dog. ~ ~ISY-~E~R ~ AND EASY ~PESTYLE CHANGES SUCH ww~ SIZE 12 INCH q~IAGE ~ WWALL KEYS ~C~IONS REPEAT ~ A~T A PRICE THAT'S NO MORE THAN YOU'RE USE TO PAYING FOR A RDINARY ~CTRIC ~E~ITER Page 9 Nickerson's motion to take the matter under advisement was seconded by Rissin - unanimous vote. Mr. Ritchie requested that the pool and garage be considered as two variances rather than one. Continental Cablevision Letter: In response to a letter received from Cablevision requesting that they be allowed to have their variance approved, the Board concluded they had met the conditions imposed. Mr. Vivenzio made a motion then to communicate to the Building Inspector that the conditions attached to the earlier application have been met and authorize him to issue a Building Permit to Cont. Cablevision for the satellite dishes at the Clay Pit Hill site. Dr. Rissin seconded and the vote was unanimous. Robt. Daigle, Hodges St~ Certificate of Occupancy: Mr. Sullivan felt that the Board should honor Daigle's request for a C.O. by erecting the temporary barriers to control one-way traffic. After a short discussion Atty. Vivenzio made the following motion: the Board to communicate to the Bldg. Inspector its feelings that he be authorized to issue a temporary Certificate of Occupancy to Mr. Daigle for the premises on Hodges St. with the condition that Mr. Daigle construct a temporary parking area on the lot opposite the existing building on Hodges St. and that ingress and egress will be from May St. only. Temporary barri- ers shall be erected to control the parking. The temporary C.O. will expire on June 1, 1989. The motion was seconded by Mr. Soule and vote unanimous. ~See below~ RIZZA PETITION - Board members discussed the petition briefly: both (retail & dental) are permitted uses and concurred that the parking would Probably be "less" than "more". Mr. Nickerson noted that, realis- tical~ly, there i~ not much that can be done about the parking situation in the downtown area as it stands right now. Upon motion of Louis Rissin to GRANT the Special Permit as~. requested at 95 Main St. for dental office and restrict the office space to the first floor; the second floor of the former retail space is to be utilized solely for storage of dental supplies. Revised plans and/or a letter from Dr.R±Zza~deleting any plans for construction on the 2nd floor shall be submitted to the Building Inspector. A. Nickerson seconded the motion and the vote was unanimous. W~DAIGLE - the temporary parking area, referred to in subject motion is considered to be temporary now and will become permanent once the bldg. is approved. If the bldg. is not approved, Mr. Daigle is obli- gated to make the parking lot permanent based on the prior decision on Hodges St. property and the Covenant on file at the Registry of Deeds. Mr. Cohen, Daigle's counsel, is to inform the Town of~ book & page of the recording before any issuance of a temporary C,O. ~ ~ The eet ng djo ed t 11 5 P M g..~B~t$~k~,~c~'~e~. William~u-llivan, Acting Chrmn. /