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HomeMy WebLinkAbout1985-01-22J~nua~y 22, 198§ ,Special Heetin~ The BOARD OF APPF2%LS held a special meeting on Tuesday evening, January 22, 1985 at 8:30 p.m. in the Senior Center with the following members present and voting: Frank Serio, Jr., Chairman; Alfred E. Frizelle, Esq., Vice Chairman; William J. Sullivan; and Associate Members Walter F. Soule and Maurice S. Foulds. Building Inspector Charles Foster was also present. CONTINUED PUBLIC HEARING Goodrich, Robert and Monique - Party A~rieved - 100 Flagship Dr ive Mr. Charles Foster, Building Inspector, made the following presentation: - This is a re-hash of a previous appeal. The only difference this time is that condition #7 of the Planning Board's decision has been recorded at the Registry of Deeds. He based the issuance for the new building permit for the addition on the same interpretation that the court made which was that setbacks are taken from the property line. If industrial zoned land abuts residential zoned land, then a 50 foot additional setback is required. In this case, a portion of the applicants' land is zoned industrial. Mr. Nigrelli's land does not abut a residential district. The Planning Board informed many people who were in opposition to the subdivision that all setbacks would be 100 feet from the property lines. One can only assume that the property line and the zoning line were the same. The Planning Board does not have the authority to impose that condition. The Planning Board does not have the authority to require anything to be shown on plans or in their conditions that is not allowed in the Zoning By Law. They cannot require an additional setback from a lot line. - The setback requirements are spelled out in the Zoning By Law. Any interpretation of the Zoning By Law is not made by the Planning Board, but by the Building Inspector. Chapter 41 gives the Planning Board the right to rule on the subdivision of land. If a road does not meet the requirements then they cannot approve it. This is not a Special Permit situation where they can impose conditions. They are acting under Subdivision Control Law, not the Zoning By Law. Condition #7 is not binding because the Planning Board did not have the authority to issue it. Attorney Nicholas DeNitto, representing the applicants, testified as follows: From what the Building Inspector testified, he seems to be making some legal determinations as to what the Planning Board can and cannot do. The Chapter gives life to the Planning Board and gives it the authority to establish conditions and restrictions. Specifically, there was a Form C application filed by Mr. Regan. The law clearly states that if the developer does not like what the Planning Board has done, the remedy is exclusive - appealing to the Superior Court. Mr. Regan did not do that. - The land in question must comply with condition #7. The Building Inspector does not have the authority by statute and case law to supervene a condition prescribed by either the Planning Board or the Board of Appeals. The issue with regard to Advanced Reproductions on the primary building was could they be charged with the knowledge of conditions #7. The court said no, based on the information they had. It did not say that the Building Inspector did the right thing. With regard to him, the action is still alive. The case law is clear. If the Planning Board makes a condition and it is within the reasonsable confines of their authority, the remedy is not with the Building Inspector. Cases say the right of appeal is with the developer to challenge the condition. The Building Inspector by state statute did not have the authority and this is why the court is still keeping him in the action. The Building Inspector cannot say that because the plan was not recorded the Planning Board did not have the authority to do it. Advanced Reproduction cannot take that position now because they have knowledge of condition #7. The Building Inspector in no way could say in 1980 that he did not know about condition #7. He says now that the Planning Board did not have the authority and so he is making the determination. He is incorrect. In Chapter 84, "Conflict of Laws", the main point there is that it is supplementary. He reads the latter part that if the Zoning By Law and not the Planning Board restriction requires a more stringent requirement, then the Planning Board prevails. We have a reasonable judgement in our own view that the Planning Board made a reasonable decision and that it was not the intent of the Master Plan to cut out a piece of property. It was to avoid crowding. This is not stricter than what the Planning Board mandated. It is yet to be adjudicated by the court. Regarding the addition to the building on Lot W, he knows now as he knew then that the Planning Board made that condition. The Planning Board now has a public hearing going on to rescind the subdivision. Advance Reproduction says they obtained a permit on reliance of the Building Inspector. By doing it again, he flies in the face of legal action. The town indemnifies him and the curious thing is that you cannot have it both ways. The plan that was submitted by Advanced Reproductions showing the addition ironically shows it to be more of a detriment to the R-2 district than it did before. Note: Atty. DeNitto presented a plan showing the existing building in Lot W, the Goodrich's property, and the proposed addition. It also shows the zoning district from R-2 to I-1. He continued with: The addition is 50 feet away from the R-2 line. The Zoning By Law does not distinguish between who owns I-1 and R-2. If the decision in issuing this permit in chief is that it is 50 feet from the zoning line and not the property line unless they are abutting an R-2 district, all I am asking of the Board and the Building Inspector is to have 100 feet away from the zoning line. Mr. Foster says that he always measures from the property line. Why does Table 2, Footnote 3 say 50 feet from the property line unless it abuts a residential district? Footnote 3 says you add another 50 feet. The Building Inspector took the exact opposite view in writing. - The petitioners live there and they see the building and hear the noise and their rights have been adversely affected. They should get something for their peace of mind. Nobody has come forward to resolve this. We will go forward if we don't receive a favorable decision. Building Inspector Charles Foster added the following: Advanced Reproduction's parcel does not abut a residential zone. The way we have interpreted it in the past is that the setbacks have to be taken from the property line. One should not get confused on where the zoning line is. The applicant for the building permit can provide a buffer elsewhere. Taking the setback from the property line has always been the case. The interpretation is whether or not a permit can be issued and for informational purposes, there is no other regulation regarding zoning in this town. The Planning Board's Rules and Regulations exist. When it comes to interpreting zoning and apply it to the job of whoever is designated in the Zoning By Law - in this town is is the Building Inspector. The applicants in this petition have had bad advice from their counsel. If the applicants had the sliver of land rezoned, the addition would not be where it is. Also, they did not take it to court when they should have. Attorney Joseph Fitzgibbons, representing Advanced Reproductions, added the followings Condition #7 does not apply to Lot W because Advanced Reproduction purchased that lot before that condition was recorded. Having purchased the lot it cannot be burdened. It cannot be burdened now even though it is on record. Condition #7 has always been complied with. The Planning Board did not have the authority to issue condition #7 on the industrial park, There has never been a violation of condition #7. - The owners of Lot W are the victims here. They have tried to be a good neighbor. They went to a great expense two years ago to establish the correctness of the Building Inspector's and the Board of Appeals's decisions. It came at a time when they were under a loan of great magnitude. All they want to do is live within the law. Mr. Thomas Nigrelli of Advanced Reproduction added: When this problem came up a few weeks ago, the Goodrich's were approached and asked if planting of trees would make them feel better and they said no. Mr. Goodrich, the applicant, added: There was a telephone call made to me by Mr. Nigrelli at my home and I cannot characterize his call as one which comes under the heading of an offer. We are not talking about trees. We have an amphitheater view. The altitude is higher and we can look at their property. Trees or shrubs would not do. We are talking about 50 feet of dense 80 foot trees. Attorney DeNitto added~ The court did not say that the Planning Board did not have the authority. Town Counsel said that the Planning Board did have the authority to make that condition. In addition, condition #4 of the Planning Board's approval states that no work shall be done in the subdivision until security in the form of a bond or covenant has been recorded and the plans have been signed. As there was a requirement made after the building was put up, it is a non-conforming use. If you view the Zoning By Law, you would have to call this building a non-conforming use. Any viable remedy to cut down on the noise and visual offense would have to be substantial. It depends on the extent to which a buffer would be provided. Building Inspector Foster added: This decision was reached in accordance with a long standing practice regarding industrial and co~lmercial land. The courts gave no indication that we are applying the Zoning By Law improperly. MOTION: by Mr. Frizelle to take the petition under advisement. SECOND: by Mr. Sullivan VOTE : Unanimous - motion carries The Board designated Member Sullivan to view the site and report to the Board at the next meeting. D~CISIO~S Continental Cablevision - Special P~rmitj.- Johnson Street Member Foulds reported that the existing building has doubled and the use may have increased by more than 25%. MOTION: by Mr. Frizelle to grant the Special Permit with the con- dition that the 8 foot pad be enclosed with a chain link fence. SECOND: by Mr. Soule VOTE : In favor - 4 (Serio, Frizelle, Sullivan, Soul,) Opposed - 1 (Foulds) Motion carries - petition granted Joyce, ~ureen - Special Permit and Varia-ce - Main Street MOTION: by Mr. Frizelle to grant the variance and Special Permit subject to the following conditions: That the addition be reduced from 23 feet to 20 feet, providing a 15 foot passageway. That the plans be revised to reflect the above revision and submitted to the Board for approval. That the second floor be used for storage only. That the roof be a mansard roof and shingled with asbestos shingles. That any necessary adjustments to the ventilation ducts on Val's Restaurant be made by the petitioner. SECOND: by Mr. Soule VOTE : In favor - 4 (Serio, Frizelle, Soule, Foulds) Abstained- 1 (Sullivan) Motion carries - petition granted OTHER BUSINESS }onir~ chanties for 1985 Annual Town Meetin~ Chairman Serio read a letter from Town Planner Karen Nelson and directed the secretary to forward a letter to Ms. Nelson con- taining the Board's recommendations on two proposed changes to the Zoning By Law regarding Site Plan Review and the Watershed District. The meeting adjourned at 10:30 p.m. Fra6~ Sekio, ~i, Chairman Jean E. White, Secretary