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HomeMy WebLinkAbout1976-01-12January 12, 1976 - Monday Regular Meeting The BOARD OF APPEALS held its regular monthly meeting on MondaY evening, January 12, 1976 at 7:30 P.M. in the Town Office Meeting Room. The following members were present and voting: Frank Serio, Jr., Chairman; Alfred E. Frizelle, Vice-Chairman; Louis DiFruscio, Clerk; James D. Noble, Jr. and Assoc. Members, Walter Jamitkowski and Ralph Joyce, Jr. The Chairman introduced the letter from the Board of Selectmen dated Dec. 24, 1975 Re use of alternate members due to William N. Salemme's resignation was received by the Board. Mr. Noble made a motion to accept the letter regarding Mr. Salemme's resignation and noted to send a letter to Mr. Salemme thanking him for his service to this Board and also to the Town of North Andover. Mr. Jamitkowski seconded and the vote was unanimous. Inasmuch as Mr. Salemme was the Clerk for the BOARD, the Chairman entertained the following motion for nominations for a new clerk: Mr. Frizelle made the motion to nominate Mr. DiFruscio for Clerk and Mr. Noble seconded. The vote was unanimous. PUBLIC HEARINGS: J & V REALTY TRUST - Jay Burke w~s present. Request was for a variance from Sec. 6.2 and Table 2 of the Zoning By-Law in order to permit Lot 3 to have non-conforming front- age. Mr. Burke showed the BOARD a plan showing how the lot would be if the variance is granted. He stated that %hey found out that the house on Lot 4 was placed closer to the corner than it should have been when the telephone company ~m~ out to put in the polls. The v~riance would in no way add density to the area because they do not own the lot on the right, said Mr. Burke. The lots have 125 ft. frontage right n°w, but the lot line between ~3 and #4 is right in front of the living room window of Lot 4 and would like to move it for aesthetic purposes. Mr. Frizelle questioned the hardship involved. Mr. Burke said it is a matter of economics - would have difficulty in selling the house. The Building Inspector stated that we have had this situati°n on other lots that have been approved on Form A's such as on Campbell Rd. where Ned Pa6ker lives. Mr. Burke assured the BOARD that this was not done intentionally. Assoc. Member Jamitkowski commented that Mr. Burke felt ~hat the selling point would be a hindrance but his thoughts were that the BOARD should not anticipate problems with two individuals at some future point. The Planning Board's letter of January 8th was read and is on file. They voiced no objection. There was no opposition. Ted Phelan, Assessor, brought in snapshots of the two houses on the lots in question for the BOARD to view. Mr. DiFruscio made a motion to grant the ~ariance and Mr. Noble seconded. During the discussion that followed Mr. FTizelle asked Mr. DiFruscio what he considered the hard- ship to be. Mr. DiFruscio felt that if the neighbors did not get along there could be problems. Mr. Jamitkowski stated that you can't project into the future nor solve problems with neighbors in the i~ature and, further, that the gentlemen already said that the house will eventually sell. He has not shown us any causes for hardship for granting the variance. Mr. F~izelle stated that it is difficult, but mnfortunately we have to look at what the statute says. Anyone who buys the house would know what theconditions are and the house does conform ~o zoning. The issue is only one of zoning. January 12, 1976 - cont. Anything else to be considered is an emotional factor, he said. The vote on the motion was taken with Mr. Di~k~uscio in favor, Messers Noble, Serio, Frizelle and Jamitkowski opposed. The v~riance was DENI~. GEORGE FARKAS: Mr. Joyce sat is place of Mr. Serio. Mr. ~rkas was present appealing a decision of the zoning enforcement officer regarding an outdoor parking area. The land in question is located at 16~50sgood St. Mr. F~rk~s stated that he sent the BOARD a letter on November 14, 1975 s~ud then referred to Town Counsel's letter d~ted November 3, 1975 which he felt was incorrect and misleading. Mr. ~rizelle attempted to reconstruct w~at h~s h~ppened to date for the benefit of all present. He read the letter from the Licensing Commission d~ted in May; on October 30 the BOARD OF APPEALS wrote to Town Coun- sel requesting an opinion with regard to whether or not the BOARD had the right to make a decision b~sed on the Farkas application; the letter from Town Counsel dated Nov. 20 was read stating that Mr. F~rkas had the right to file application. All aforementioned letters are on file in the office. Mr. ~arkas ~uestioned whether or no~ the terms "parking", "outdoor parking" and "open air parking" were 3 different meanings or one meaning. Mr. Frizelle told him that what the ~OARD was acting upon right now was his ap~pl~cation. What we ~Vse to know is what you are looking for. Mr. ~rkas answered that~H& w~s looking for/E-parking license. The fact that you ~eeeived a copy of this letter from Town Counsel should not have any bearing on your petition to the BOARD, said Mr. Frizelle. Mr. Fark~s then asked if his property is private or public and Mr. Frizelle asked him what zone he w~s in. Mr. Farkas stated that his question was not being answered. Mr. Frizelle stated that the property was private in that Mr. F~rkas owns it. He read the letter of November 3 from Town Counsel for the benefit of the BOARD, Mr. Di~ruscio stated that he thought that a license was a privilege that only the licens- ing commission could grant and, therefore, what the Selectmen conveyed was that the area is not zoned for what Mr. Fark~s desires to do. Mr. ~arkms brought up the definition of "parking garage , priVatW'and Arnold Salisbury's letter of Nov. 3rd which stated that nowhere is it described in the Zoning By-Law. The BOARD explained to him that it is only a definition, but it is not permitted. ~ir. Friz- elle suggested consulting the By-Law under the section where this property is located. Mr. Farkas stated that this was not necessary and went on with questions regarding Town Counsel's letter. Mr. ~rizelle commented that for the purposes of the hearing,, the letter from Mr. Salisbury should be put aside. As a final point, Mr. F~rk~s referred to the 1956 Zoning By-Law in which his property was designated Ind. L, Sec. 3.81 and 6.52 and at which time he received a valid license (June 17, 1963). He then showed the BOARD a copy of his lieense. He told the members that he bought his property in 1960 and that cars have been parked there since 1955. Then, in 1972 somebody rezoned our property to I-S mhd m~de everything that we h~ve illegal. He requested that the BOARD recommend that the Licensing Com~nission issue a license. Mr. Joyoe inquired as to if he ever renewed the license inasmuch as it expired on Dec. 31, 1963 and Mr. ~ark~s answered that he had it after that. Chris Adams interjected that he was told at that time by Fred 0akes that a license was not necess~ry. Member Frizelle felt that the question before the BOARD was that the applicant is seeking a variance from Sec. 9.22 and 9.23 of the By-Law and the letter dated Nov. 14, which was previously read. Based on the application and the letter the question is the parking license and th~ applicable zoning. Mr. Farkas purchased the property and established a use at the location prior to the enactment of the present By-Law and the question January 12, 4976 - cont. arose as to whether or not his land fails within Sec. 8 (non-conforming use). IN FAVOR: Christopher Adams, Maple Ave. & 0sgood S~., an abutter: Mr.~ Adams felt that this business of parking w~s left out of the Zoning By-L~w. He requested the BOARD to read permitted uses in Ind. L of the 1956 By-Law. It w~s read. OPPOSITION: None The Building Inspector asked Mr. ~arkas if he had a used car lot and he replied that he did. Did you get a variance or license for this, asked Mr. Foster. Mr. ~arkas couldn't remember, it w~s back in 1961. Nr. Foster then asked him if he had a special permit for the gas station to which Mr. Farkas stated that he didn't know. Nr. Foster desired to clarify the parking by stating that parking is required under Sec. 7 of the new by-laws Town Counsel was in error when he said that nowhere in the By-Law is it allowed; off-street ~rking is required parking as an acoessory use to the primary allowed use in the other sections of the By-Law except for Ind. ~. It w~s apparently left out of Ind. S in error. Parking is ~n accessory use anywhere that it is mentioned in the old By-Law or the new By-Law. Mr. Frizelle noted that im Sec. 6.52 (old By-L~ parking is allowed and not ~n accessory use. Mr. Foster added that certainly the out- door storage of m~terials is accessory and so the parking would be also. Was the permit valid at the time, he asked. The fact that you get a permit does not mean it conforms to zoning. To my knowledge, said Foster, this is the only place in Town where open air parking has ~ee and this is why Town Counseland I have said that a commercial parking area can/~ operated as an allowed use. The reason, Mr. Foster stated, that he brought up the used car license was because that was by variance. Mr. Frizelle stated that the present operation is either currently zoned for it o~ if it is not, then is i% a non-conforming use~ Mr. Joyce brought out the fact that Mr. F~rk~s h~d not prc~ the question ~orm~lly before the BOARD after which Mr. ~rizelle stated that his question doesn't conform to the application form, but his letter is incorporated into the form. Mr. Joyce agreed. Amotionwas then made by Mr. Joyoe to take the matter under advisement. Mr. Noble seconded. The vote w~sunanimous. DISCUSSION - LINCOLN GILES SPECIAL P~MIT, CHICKERING RD.: Mr. Robert St.Jean appeared before the BO~_W_D representing Mr. Merois, the developer, who is doing business with Giles. A plan was shown to the BOARD which Mr. St. Jean asked about regarding conformance with the Special Permit which w~s issued previously. He also showed an aerial photo of the land in q~estion. They would like to construct a 3-story building on a much smaller scale than the originally plsmmed for 2-story one. By using 3 stories they felt they could gain more parking. Ym. St.Jean stated that it would be primarily a medical center. The BOARD viewed a floor plan of the first floo~ at which time Mr. St. Jean stated that the 2nd and 3rd floors were alike. The building will be of limestone and brickandwill be condominium ownership. The Building Inspector relayed that Mr. St. Jean had come in to his office with the pro- posal, but where a special permit had been issued Mr. Foster felt that he should appear before this BOARD. Mr. Foster felt that there was no question with ex~ending the 100 ft. business zone, but there w~s different parking and a difference in the site plan which w~s part of the original decision. Mr. Frizelle stated that he thought St.Jean was looking for guidance as to whether or not he should build or come for another hearing. Mr. St. Jean felt that the BOARD had the power to allow them to proceed. Mr. Foster felt that Sec. 19 of the Zoning Enabling Act seems to allow the right to modify a pre- vious Special Permit or decision. Mr. ~rizelle felt it would rec~uire another hearing. due to the fact that the original Special Permit made reference to the plan and since Jan. 12, 1976 - cont. this plan is being changed another hearing is required. The previous plan was an integral part of the decision. Mr. St.Jean stated that originally the building needed that feet but now the building is within the confines of the General Business area. Mr. Frizelle stated that this would put the BOARD in the position of rendering an opinion and that is not our policy. He suggested that they come in for a public hearing for what they wish to do. St.Jean stated that they have the financing but it is only good for a 90-day period and they would like to start building in April. Mr. Frizelle brought out the fact that the decision refers to a site plan of 1/11/74 and, technically speaking, this is not in conformity. To be safe, Mr. St.Jean is looking for something to show that he is protected and to modify this Special Permit a public hearing is needed for the safety of this BOARD and for him, said Frizelle. The m~tter of a public hearing is to be placed on the February 9thAgenda. ~E~ORD MEMO: Copy of the letter from Town Counsel dated Dec. 19, 1975 to the Selectmen was read. Chairman Serio stated that this memorandum was reviewed again by the Planning Board and Mr. Joyce would like to make a few observations inasmuch as he a~tended the meeting on his own. Ralph Joyce's impression was that the whole point of controversy is framed around the question of whether or not it is a renewal cf an expired permit or a permit in perpetuity. He asked to re-~ir that point and asked if it is the consensus of the members who heard the petition that it is a permit in perpetuity. Mr. FrizeIle receRected that at the hearing and meetings when the BOARD first discussed this matter the position taken was that this permit was in existence and they searched back to' the originaA permit. We con- strued the matter at that time as being a permit in perpetuity. Mr. Noble said that this was one of the things we hassled on at the time. If, in fact, we have decided that it was in perpetuity, said Joyce, by applying Sec. 5 we have eliminated the rest of Sec. 5. Then, he questioned why the BOARD has to explain ever~hing as far as Eelleher case is concerned. Mr. Frizelle stated that he didn't know what the Planning Board wanted, so by using this reference he tried to spoon-feed them with as much information as possible. Mr. Noble's opinion ~as that the only way this is ever going to be resolved is if Town Counsel gets an advisory opinion from the court. The Building Inspector felt that this was a very important point but also felt i~hat froTM his permaal of the various court eases and, even though a permit is in effect,/you have new regulations adopted that permit is governed by the new regulation~ regardless of whether it is in perpetuity or renewable from year to year. Mr. Serio felt that there are enough provisions in the latest decision that if the operator does not meet them the BOARD can revoke his permit. Mr. Di~h~Ascio's comment was that it is a permit in perpetuity evidently was also felt by previous Boards because they imposed conditions along the way. Mr. Serio asked Paul Lamprey, Planning Board member, what his Board's main cbjectioue were. Mr. L~mprey said that he doubted very much if his Board would drop the court case because of the memo. Your Board still could have taken the new By-Law and abided by it, he said~ and if the pit operator can't Rive with it he could apply for a variance. Mr. Frizelle said they could not ~ve pleased the Planning Board no matter what they have done. Mr. Lamprey responded that there are two ways they could have pleased them - l) ask Town Counsel for his opinion and this whole thing could have been avoided and 2) when the Planning Board asked for reconsideration the BOARD should have listened. Mr. Frizelle disagreed with the idea of going to Town Counsel. Mr. Joyce suggested putting a line in the memo that the decision and memo apply specifically to Hereford and no other outstanding permits, and state that this has no value as a prece- dent. A motion was made by Mr. Frizelle to file the memo with the Town Clerk as it presently January ~2, ~976 - cont. stands (as revised at the last meeting). Mr. Di~ruscio seconded. The memo is to be prepared for filing with the To~n Clerk as revised pending passage of the motion. Messers Serio, ~rizelle, DiFruscio and Noble all voted in favor of the Copy of letter from A. E. Frizelle to Town Counsel, dated Dec. 29, 1975, which refers to Board of Appeals vs. Housing Appeals Committee et al. The letter was read by the Chairman and a motion w~s made by Mr. Noble to accept the letter. Nr. Ja~itkowski seconded and the vote w~s unanimous. Letter from Town Clerk Re Open Meeting Law - the letter was signed by the BOARD members in order that it may be returned to the Town Clerk. All members had read the letter. Brief by Town Counsel filed with the Court was received and is on file for public record. MISCELLANEOUS MATTERS: Mr. Noble was ~ppointed chairman of the Committee revising the Rules & P~. and Forms. OPERATING BUDGET: The BOARD went over each item and the secretary was directed to submit to Advisory Committee. The meeting adjourned at 11 P.M. / (GilAa Blacks~ock Chairman Secretary