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HomeMy WebLinkAbout1975-12-08December 8, 1975 - Nonday Regular Neeting The BOARD OF APPEALS held its regular monthly meeting on Monday evening, December 8, 1975 at 7:30 P.M. in the Town Office Meeting Room. The following members were present and voting: Frank Serio, Jr., Chairman; William N. Salemme, Clerk; James D. Noble, Jr.; Louis DiFruScio; Walter Jamitkowski, Alternate; and Ralph R. Joyce, Jr., Alt ernate. The Chairman announced that the Hearings on the following petitions would be held at the Jan. 12, 1976 meeting: George Fark~s and J & V Realty Trust. LETT~ FROM C. ADAMS RE OPEN AIR PARKING: Mr. Ada-~s' letter dated Nov. 9, 1975 stated that he would be happy to meet with the BOARD to settle the matter but that he is in no way asking for a variance. The BOARD questioned what he is really asking. Mr. Serio stated that he can appeal the dec~sion of the Building Inspector on zoning or file under some section of the By-Law that he wishes the BOARD to consider. Mr. jamitkowski m~de a motion to accept the ~tter as read. Mr. DiFruscio seconded and the vote was unanimous. H~OP~ CORP. MATTER: The Chairman read from the Planning and Zoning Newsletter of August '75 and stated that recent oases make it clear that any new permit requirements may be applied to all existing operations as well as new ones. It appears that this may be the exact situation we are in now. He then introduced adding a memorandum of record for clarification of the BOARD'S opinion on this matter to specify that the intent was that any land under excavation at the time of the new Zoning By-Law would fall under the old By-Law and any new land worked would fall under the new BylLaw. Mr. Salemme stated that he thought when he voted on the motion at the regular meeting that the BOARD was talking about Sec. 5.1 (5) and felt that this was a reasonable posi- tion to take. Mr. Noble added that before it is put in writing the BOARD ought to agree on the general content of what it is going to say. (8 1. STEPHEN J. & DIANE SCULLY - the clerk read the legal notice. The request is for a 5 ft. variance from the 30 ft. side setback on a lo~ located on Essex St. Dr. Scully was present. The BOARD ~iewed the plans after which the letter from the Planning Bcard was read which voiced no objection. There w~s no opposition. A motion was made by Nr. Noble and seconded by Mr. Jamitkowski stating that based on the minor nature of the variance requested and no objections voiced the BOARD OF APPEALS shall GRANT the variance as requested. The vote on the motion was unanimous. 2. JOHN L. BERTHOLD - the clerk read the legal notice. Atty. John DAly represented the Berthold's and stated that the situation is one in which the petitioner, intending to purchase a pony for their small daughter, asked what was the necessary recfuirement for a permit for a pony. They were told they did not need a permit. Having purchased the pony they received two specific complaints - they were too near their neighbor's well and there was a pollution problem,and they didn't~ have the required area. Pursuant to that they contacted their neighbor, Earl Foster and obtained a lease from him enabling them to b_~.ve the use of in excess of 3 acre~ to maintain the pony. They then re- contacted the Building Inspector and he determined that at that time they had met the intent of the By-Law. The lease was for an indefinite term. Su.~$equently, the complaint was still pending with the Board of Health and before ruling on/~ey had the land inspected by ~rank Gelinas, registered engineer, who determined that there would be no December 8, 1975 - cont. pollution (he q~oted from the letter which is on file) and he ultimately concluded that it would be appropriate for the Board of Health to issue a permit. The Board of Health then contacted Town Counsel who rendered his opinion which stated that 3 acres was required and this requirement must be read in light of Sec. 2.43 which defines a "lot" as a area of land in one ownership with definite boundaries. Now, said Daly, we have the Building Inspector initially saying that he felt the intent of the By-Lawwas met and Town Counsel saying it was in violation of the By-Law. The attorney then read a section of G.L. Ch. 40A, Sec. 3 which generally defines zoning purposes. He asked for reasonable application of the By-Law to this particular instance and cited the case of Brett vs. Building Inspector of Brooklin~ spoke about constitutionality of laws regarding public safety, public health, etc. In this case, he said,~he assumption is that what was intended was that if someone was going to have animals they should have 3 acres avmilable. Nr. D~ly introduced R. Ashton Smith who is a horse owner and has had a great m~y dealings with them. Nr. Smith stated that one pony could hardly be much trouble even on one acre of land. It is encumbent upon the owner to keep a clean barn and animal. He voiced agreement with the Berthold's that 3 acres is more than adequate for a small pony. He also said that there is a "horsey" odor in a l~arn l~ut not from manure once it dries. Mr. Smith owns 35 acres of land and stated that it is not necessary to pasture the horses ee long as they are kept ~lean. Mr. Daly mentioned that ma~y people have contacted the Ber~hold's and cited the follow- ing names: P. Dinardi, Salem St.;R. Monroe, Winter St. (horse owner); Dr. NarryLove, Boxford Dambrow~ki, Salem St.; Larkin, Salem St.; Pitman, Boxford St. (abutter); J. Flynn, Boxford St.; M. Hebert, Boxford St.; F. Hollins, Stiles S$.~(horse owner); Borys, Boxford St. (abutter). Mr. Noble questioned how many acres they have under tentative lease and the answer was 2 acres. The lease agreement is not recorded. Mr. Daly stated that they would consider reasonable a request from the BO~RD to notify them from year to year as to termination of the lease. Mr. Daly then presented a paper stating, in effect, that F~rl Poster would lease 2 acres to the Berthold's; however, this paper was not notarized. He added that with the Borys' on one side of the property, Poster's on the rear and Pitman's across the street it seems the neighborhood is in agreement with this. Charles Poster showed a sketch submitted in September with thetease arrangement and the attorney marked where the pony is being kept at present. He stated that they intend to move the shed. The Chairman read all the letters received in regard to this petition. The letters are as follows and are on file in the office: letter dated September 11, 1975 " " 18, 1975 " " 19, 1975 " October 6, 1975 to " " 7, 1975 to " " 9, 1975 to from Chairman of Board of Health, to Board of Health from Berthold, to Berthold from Board of Health, Board of Health from Prank Gelinas, Arnold Salisbury from Dr. I~y, Dr. I~y from Arnold Salisbu~y, " 23, 1975 to Mr. Be~thold from Board of Health, I~c. 5, 1975 from the Board of Assessors, " 4, 1975 from Planning Board, " 5, 1975 from Board of Health. Charles Poster g~ve the BOARD a copy of his letter to Mr. Berthold regarding his lease arrangement and also the latest order issued to Mr. Berthold by the Building Inspector's office. The Nov. 3, 1975 letter to Mr. Berthold from the Building Inspector was read. December 8, 1975 - cont. Er. Poster, Building Inspector, asked to speak and emptm~sized that he was not speaking for any party or person, but speaking for uniformity and continuity in interpreting our ZoningBy--_Law. Ne seem to be in a dilemma between two interpretations by Town Counsel. One has been the literal interpretation, such as what does each wox~t mean and~he other was a decision of Town Counsel, although not in writing, that was based on the intent of the By-_~w. The section that we now have is similar to the 1956 By-Law; it has changed somewhat in allowingfrom 3 to 10 acres as to how many animals can be kept. I happened to be a member of the PAC, he stated, which was a group of citizens who helped the PLANNING BOARD in revising the Zoning By-Law in 1972 and yon can see we have many problems on just how to handle animals. This committee tried to proteot the interests of all parties. Er. Foster said that he wanted to drop the minimum require- ment for an animal to one acre. The intent of the By-Law is for one animal per acre, however the 3 acre minimum stood in the By-Law. If it had said a '$ieoe of land" or a "parcel" we would not be here tonight. He went on to say that some 4 years ago a p: ace of property was left to the Town known as the Reynolds property in which the house is on one side of the road and the barn on the other; Mrs. Reynolds kept the two pieces separate. The house was sold to someone and the remainder of the land was left to the Town for recreation purposes. The people who purchased the p~perty owned homses and decided to have them at that location so a lease arrangement was entered into by the Town and these people. This, to mFknowledge , he said was the first time that leasing was used to meet a minimum acreage requiremen~ for people having animals. Town Counsel had arranged this lease with the attorney representing the buyer an~ as I recall, he said he thought this met the Zoning By-Law and from that time on I thought that leas- ing could be permissible in other areas. This is why I put it in writing to this effect for Er. Berthold. Now, Town Counsel's reasoning is that because the Town had in excess of ~0 acres of land it was permissible. O~ the Berthold sase, the decision was based on what one word meant and if we were to interpret the Zoning By-Law literally at all times it would present many problems. In conclusion of his presentation Mr. Poster stated that he felt the main isst~e is whether or not leased land will be allowed to be used to meet the acreage requirements for keeping animals. OPPOSITION: Anthony Campa~ma, Boxford St.,an-abutter - stated that he was speaking for himself and two others, GigliottA and Bielevich. The Berthold's stated in an article in the Eagle- Tribune that they have tried to satisfied the Town. He brought the pony in last August and it h~s remained although he has been told many times to remove it. The Board of Health did no% give them a permit contrary to a statement in the newspaper. Two years ago, he said, ~r. Berthold built a barn in which he wishes to house this pony. He pays no taxes andhad no permit for this barn. He also is in violation of the Zoning By-Law in its location. Ny attorney has written to Mr. Poster m~ny times about this but nothing has been done, said Campagna. Fonr years ago Vnr. Bertholdbuilt a family roomwithout a permit and does not pay taxes on it - does this constitute satisfying the Town, violating the law andbuildingwithout a permit? He cited how he has been aclive in community affairs and does not have the intent of taking a pony away from a little girl. These laws were made to protect the taxpayer and the homeowner. This bas gone on.for 4 months and nothing has been done. Virgilio Gigliotti, Poster St. - stated that the land purported to be leased from Earl Foster is wooded, rocky and there is no place where the pony can get in and felt that the animal would kill himself in there. Mr. Salemme asked where Campagna's water supply is located. Mr. Campagna a~mswered that actually the shed is about 50 Pt. from his well but the pony walks around much closer to it than that and the whole area slopes toward his well. Campagna complained about the horse fty. s~d odors in the area, especially when it is warm. He felt that the ~eer December 8, 1975 - cont. h~d been blown out of proportion and that the horse will not be on that extra leased' land, it will be where it is now. Atty. Daly said he contacted the fellow who put in both wells and they are encased. Nr. Jamitkowski asked if Ber~hold's land was he~ly wooded and was answered that some of the land had been cleared. Mr. D~ly's rebuttal stated that the BOARD'S first consideration should be the intent of the By-Law and once having met that he suggested that it should consider the constitution- ality of that Section which deals with the keeping of animals on property . Mr. Serio cited the 4 conditions for granting of v~riances if a v~riance were to be granted. He then asked what hardship was involved if they had to give up the pony. D~ly said that it would be a hardship to give up the pony on Mr. Bertholdand, secondly, that this whole thing was occasioned by the Town in the first place. William Chepulis, P~.-ning Board, ~tated that he did not own a horse nor claim to be a horse lover but lives right across from Treadwell's Ice Cream Stand where horses are kept nex~ ~oor. He mentioned that the horse has a free reign and the land slopes down into Lake Cochichewiokand the ~ing Station is not that far aw~y. Mr. Campagna stated that he did-not write the laws, they were here and he is trying to abide by them. Mr. Salemme made a motion to plan a site inspection to clarify some of the questions regard- ing the matter. Mr. Jamitkowski seconded the motion. Mr. Noble commented that it boils down to whether or not you can lease a parcel of land and felt that there are many such types of situations existing in the Town. The BOARD agreed that no technical lease exists. Mr. Campagna brought up the fact that the Reynolds proper~y is a 99-year lease which denotes ownership. D~r. Noble thought some questions might have to be asked of E~rl Foster. The vote on the motion was unanimous. The Chairman stated that the BOARD ought tow rite a memorandum of record to clarify its opinion. Mr. Chepulis and Mr. Lamprey agreed that this would be a good idea but with that some regulations from the new By-~aw should be imposed such as the fee, a current plan of the land, etc. Much discussion ensued regarding the memo to accompany the decision. Mr. Serio wrote the memo after which Mr. Noble made a motion that the BOARD a~t on it as written. Mr. Salemme seconded and all four regular members voted unanimously. B~THOLD PETITION: Mr. DiFruscio s~ated that the only thing before the BOARD is whether or not he has three acres. He made a motion to D~2~Y Mr. Berthold's appeal, and uphold the decision of the Building Inspector. Mr. Noble seconded. A discussion followed regarding ~he word "lot" as defined in our By-Law. Right now he has 1.2 acres and even if he did have a lease it could be revoked in 30 d~ys because there w~s no guarantee as to time w~s the consensus of the members. There w~s a unanimous vote on the motion. Nessers Serio, S~lemme, Jamitkowski, Di~¥uscioand Noble voting. The meeting adjourmed at 10:30 P.M.