Zoning Board of Appeals

ZONING BOARD OF APPEALS MEETING MINUTES Thursday, September 24, 2020 (Posted in accordance with the provisions of MGL Ch. 39, Sec. 23A, as amended) 7:00 p.m. City Hall Auditorium 62 Friend Street Amesbury, MA 01913 Attendance: Sharon McDermot (Chair), David Haraske, Michael McCarthy, Matt Vincent, Donna Collins Also in attendance: Building Inspector Denis Nadeau, Recording Secretary Janice Valverde _________________________ Chairwoman Sharon McDermot calls the meeting to order at 7:00 p.m. Chair announces that the agenda includes the minutes of the August 20, 2020 meeting, one administrative matter, a request for an extension of a special permit at 2 Fifth Street, and four public hearings: Sean Roaf is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw Section VI.B to replace an existing garage with a new garage. The property is located at 6 Cedar Court, Amesbury, MA in an R-8 zoning district (map 40, lot 233) according to the Assessor’s database, Kebbi Nowland is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw, Section VI.F:13 to raise chickens in the rear yard of the property. The property is located at 5 Unicorn Circle, Amesbury, MA in an R-40 zoning district (map 23, lot 32) according to the Assessor’s database, John S. Mercer is seeing a Special Permit/Finding under the Amesbury Zoning Bylaw Section VI.B to replace a garage. The property is located at 167 Main Street, Amesbury, MA in an R-8 zoning district (map 52, lot 300) according to the Assessor’s database, and Gordon M. Stockwood is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw Section IX.B to construct an accessory structure on a pre-existing nonconforming lot. The property is located at 4 South Hunt Road, Amesbury, MA in an OP zoning district (map 87, lot 3) according to the Assessor’s database. MINUTES August 20, 2020 Donna Collins moves to approve as written the minutes of the Zoning Board of Appeals meeting of August 20, 2020. Matt Vincent seconds the motion. All vote in favor. ADMINISTRATIVE 2 Fifth Street – Permit extension Elizabeth O’Leary (Trustee of Elizabeth B. O’Leary revocable Trust) requests an extension of the Special Permit approved September 27, 2018 and due to expire September 27, 2020. The Chair read the following letter from Ms. O’Leary into the record. August 19, 2020 To: Amesbury Zoning Board of Appeals From: Elizabeth O’Leary On September 27, 2018 I was granted a special permit for my property located at 2 Fifth Street (R20 Zoning district). The permit was to allow for the conversion of my pre-existing, nonconforming camp house to a single- family home. Because of unforeseen circumstances regarding my finances, I find myself still in the planning stages for this project. The permit is set to expire on September 27, 2020. Due to the COVID pandemic and the financial disruptions, work delays, and supply interruptions that are inevitable in the new future, the amount of time needed to complete this project may now take much longer than expected. I would very much like to the complete this project as soon as I am able but based on these new circumstances, I would anticipate that this permit would have to be extended beyond what is considered as normal. In anticipation of prolonged COVID delays, I would greatly appreciate if the board would consider granting me as a minimum, a 3 year extension, and if possible, extending it to 4 years. Thank you for your consideration in this matter. Sincerely, (SIGNED) Elizabeth O’Leary ________________________________________________________________ Chair McDermott asks for any comments. Donna Collins says the extension should not exceed beyond the length of the original permit, two years. Matt Vincent agrees. Donna Collins says two years is fair. McDermott says she agrees that two years is a fair extension. She asks if there is a motion to extend the permit for two years. Debbie Swanson, daughter of Elizabeth O’Leary, poses a question to the board. Swanson asks if the project must be completed before the two years are up. Denis Nadeau says it must be started before the end of the extended two-year permit but does not need to be finished. If it is not started within that time period, the applicant can apply for another extension, but the board will not necessarily approve an additional extension. He says, “You must apply before the permit expires.” Nadeau adds that Massachusetts General Law and zoning have changed the special permit to three years and a variance to two years, but the City of Amesbury has never adopted that new section, so for Amesbury, it remains two years for special permits and one year for variances. Chair McDermot asks again for a motion to extend the permit for two years. Matt Vincent makes a motion to extend the permit to September 27, 2022. Dave Haraske seconds the motion. All in favor. The motion was passed to extend the special permit for 2 Fifth Street for two years, to expire on September 27, 2022. PUBLIC HEARINGS Chair moves the next case to the bottom of agenda. Applicant Sean Roaf let the Board know that he is not able to come right away but will try to arrive before the meeting is adjourned. Kebbi Nowland is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw, Section VI.F:13 to raise chickens in the rear yard of the property. The property is located at 5 Unicorn Circle, Amesbury, MA in an R-40 zoning district (map 23, lot 32) according to the Assessor’s database, Chair invites applicant to speak about the application. Kebbi Nowland says based on the fact that many neighbors had chickens, she thought it was acceptable in Amesbury. She said they looked up regulations online, and found they were “kind of vague and not clear” so “basically, [it’s] ask your neighbors.” She did not realize she needed to get a permit. “We were told that our coop was too close to the neighbor’s, which I guess is true, and that we had too many chickens, which I guess is true, and we should have gotten a permit, and that we were not supposed to even have chicken on less than an acre,” Nowland says. Nowland says chickens have escaped many times, but they are trying to take care of this. They have a chain link fence around most of the yard, wooden fence section in the front. They thought it was pretty secure but then discovered that chickens had dug holes behind bushes and under the fencing, and when they went out of town, the chickens escaped. They have covered the “surrounding problematic areas” with netting and blocked holes underneath the bushes and the chain link fence. They already got rid of the rooster and half the chickens. She said the are still hoping to keep their chickens. Chair McDermot asks how many chickens they have. Nowland replies “six.” She asks about the rooster. Nowland says the rooster is gone. Chair McDermot asks if there are any questions for the applicant. Matt Vincent says he is a bit confused looking at the application that the Nowlands completed, specifically the section where they were asked to list lot line setbacks; he questions the location of the chicken coop relative to lot lines. Nowland says the coop is in the corner of the yard. Dave Haraske asks if the chain link fence on the side near the coop is on the lot line. Nowland says she is “pretty sure” it is. He asks about the chain link fence on the other side of the yard; is it on the lot line? Nowland says she assumes it is, but she did not put up the chain link fence. Vincent says he assumes the coop is less than 15 feet from the side lot line running between 5 Unicorn Circle and 7 Unicorn Circle, and less than 30 feet from the rear of the lot. Nowland says yes, but the issue is how far the coop is from buildings. Vincent says no, it is also a matter of distance from the lot lines. Denis Nadeau agrees and cites Amesbury Zoning bylaws Section 5 where it says, “No structures used to house chickens in Poultry Use . . . shall be any closer than 100 feet from any residential and dwelling house located on an adjacent property.” Chair McDermot says, “That is right in the bylaws.” Vincent cites Section 6 of the Zoning bylaws that says poultry can only be located on rear yards, and the beneficial relief for accessory buildings, such as a shed, does not apply to chicken coops. Coops must comply with “normally prevailing rear yard and side yard setbacks.” So you have to look at the both the side and rear setbacks, and not view it as an accessory building, he says. Vincent said he conjectures that when it enacted this by-law for lots less than an acre, the City Council wanted to strike a balance between allowing people to have chickens but not allowing them to be so close to a neighbor’s yard, and for health reasons, they added the requirement that coops be 100 feet from any neighboring residence. The Zoning Board’s hands are tied in regard to providing any relief from these setback requirements. Vincent asks Nowland if there is any place on her property that could comply with the setback requirements. Nowland says it would not be possible to move the coop 30 feet from the rear lot line since that would put up against her deck, “practically right out my back door.” Vincent repeated that in “your zone, the minimum setbacks are 25 feet from the front, 30 feet from the rear lot line, 15 feet from side yard lot line.” Chair McDermot adds that it must also be 100 feet from any adjacent residence. “So basically, I couldn’t have a chicken coop,” Nowland says. Vincent replies that it remains to be determined, but it cannot be in its current location. Chair McDermot asks if there are any other questions from the Board. Matthew Nowland, husband of Kebbi Nowland, introduces himself and says he believes it may be possible to relocate the chicken coop within the setback limits, except perhaps for the 30 feet from the rear property line. We were hoping we wouldn’t have to move the coop, but we are willing to do that. Relocating it will require some excavation, so I am not sure how long it would take. Vincent says his concern is that since the City Council took away any of the Zoning Board of Appeals’ ability to give any relief to those dimensional requirements, the setbacks must apply. M. Nowland says he will remeasure and if it is not 30 feet, it would be very close. “It might actually work. I don’t have the dimensions in front of me,” he says. Vincent says the Zoning Board’s hands are tied, and even if Nowlands come back with a request to place it 29 feet from the rear lot line, it could not be approved. Chair McDermot states that the board is bound by the bylaws. She says she must read some emails into the record. The first is from Barbara Foley, addressed to Denis Nadeau, dated September 14, 2020. The chickens at 5 Unicorn Circle are still coming into my yard on a daily basis. They are flying around and are landing on my Garden fence which is now bending over. The chickens are burrowing in our mulch and pecking at our plants and I finding chicken fees in our yard . . . The Nowlands went away this weekend (9/4/20 – 9/6/20) and their chickens were out and about in our yard and the street . . . No wings clipped, no appropriate baracade [sic] around the chain link fencing and the neighbors disregard your requests. . . I will be notifying the Animal Control Officer today. Barbara Foley Clerk Collector/Treasurer’s Office Kaila, please send a copy of this email to the ZBA. I want the ZBA to have a copy of this e-mail prior to the meeting on September 24, 2020. Thank you. Chair McDermot reads an email addressed to the ZBA from Julie Regan, dated September 1, 2020 into the record: To whom it may concern: We are residents of Unicorn Circle and are not in favor of a special permit for Kebbi Nowland of 5 Unicorn Circle. Currently we have chickens that roam the neighborhood. They are a nuisance, a public health issue and an attraction for small predatory animals. We are owners of a small dog and do not want him to become at risk due to the presence of additional chickens and by default any prey that might be attracted to the area because of the chicken coop. Should you have any questions we can reached by email at juliearegan53@gmail.com or by phone at 978 360-0285. Sincerely, William and Julie Regan Chair McDermot reads into the record a letter from Rocco Thurber, dated September 9, 2020. September 9, 2020 SUBJECT: 5 Unicorn Circle, ROOSTER/CHICKENS/COOP Please be advised that I give Barbara Foley permission to submit this letter to the Zoning Board of Appeals regarding the above subject. My concern is the crowing rooster at 5 Unicorn Circle. I would like to ask if the rooster be removed from the property/garage/home. Thank you. Regard, Rocco Thurber 6 Unicorn Circle Chair asks if there is anyone who would like to speak. Barbara Foley introduces herself and says she lives at 7 Unicorn Circle. Foley says: I have talked to them numerous times. My husband has too. We went back and forth about the chickens and the rooster. They were becoming a nuisance. We asked them to fix up the fencing, build a barrier. I took pictures of the rooster in my yard. I submitted photographs to the ZBA, called the building inspector. From my house to their house is approximately 70 feet. They did comply and get rid of some of the chickens. The wings are not clipped as the bylaw says. The chickens are still flying. They put up some additional barricade, but not in every place needed. The chickens still slide under the fence. She says Nowlands did not submit a complete application. If they are going to have chickens, she thinks the coop it should be in the middle of the yard and then fenced so that they cannot escape. She said she is also concerned about the disposal of the waste and the content of the mulch pile on the Nowland’s driveway. Chair McDermot asks if there is anyone else who wants to speak for or against the application. Denis Nadeau says he has been addressing the situation for the last month. A violation notice was sent out to the applicants. They asked for an extension. During the violation he told them the chickens need to be completely enclosed. They need to either be covered with netting or kept inside the coop. The bylaw says that chickens need to be fenced within a traditional solid wooden or plastic fencing. All sides and the top of the coop must be covered if the chickens can fly. “These chickens can fly.” He said he has pictures of them and “they have been everywhere.” After several visits, and no matter what he asks the Nowlands to do, they say they try, but the chickens are still escaping. After several visits and an extension, these chickens are still escaping. Nadeau says the bylaw states that chickens capable of flying must be completely contained. These chickens need to be netted in as some farms do, or kept in the coop, or gone. Right now the Nowlands do not have a permit, and they are in violation, he states. Chair McDermot asks if there are any other comments or concerns. Dave Haraske makes a motion to close hearing and discuss the case. Mike McCarthy seconds the motion. Haraske refers to Section 4 of the by-law stating that property shall be fenced in with solid wooden or plastic fencing, and that page fencing is not acceptable. He has seen the property and the fence, and saw holes under the chain link fence that are not filled in very well. The Nowlands’ chain link fence is not acceptable according to the by-laws. The chickens can easily fly over it. Second, he says if the chickens can fly, they have to be netted in and that is not the case with the Nowlands’ chickens. These issues need to be addressed on any application for a permit as well as the siting of the coop. McCarthy said the Board must discuss the finding of whether it is more or less detrimental to the neighborhood, and it seems it is more detrimental. Collins says the Nowlands are not “too compliant.” They have pretty much ignored or delayed everything they have said they would do. They cannot guarantee that they can meet the 30-foot setback, “so that is a done deal.” “I am not comfortable that anything they say they will do tonight will be done.” They did not fill out the form properly with the setback measurements. Vincent says that the “three big pieces” for the Nowlands to consider in order to come before the Board again for a permit are Sections 4, 5 and 6 of the by-laws. Section 4 calls for traditional solid wooden or plastic fence, and screening and buffering to neighboring properties. The City’s expectation is that keeping chickens should not impinge on one’s neighbors. If you want to move the coop, you need to think about this aspect of fencing if you want to get a permit from us, he says. The second piece is the setbacks. Vincent says he appreciates that 30 feet from the rear line may put the coop closer to your house, “but you are the ones that should bear the burden, not your neighbors.” He says the Nowlands have to consider if it is too close to their house and decide if they still want to do it. The third piece is the question of the coop being 100 feet or farther from an adjacent neighboring house, which should be pretty easily solved. Vincent continues, “If you do not clip the chicken’s wings, you have to enclose the top of the area to keep them from flying. This is not a matter for the Zoning Board, but the Health Department. The Board’s hands are pretty much tied because the City Council set this up so that we cannot give you any relief. They put it together in a way that we cannot offer relief and allow you to place the coop closer than what they thought was fair. Vincent says if the Nowlands come back with another application for a permit, these three things would be the “sticking points for us.” The Board would consider these for anyone’s application for a chicken coop permit. Chair McDermot asks if going through a summary of findings is applicable since the Nowlands are already in violation and are asking for a permit. Board agrees that it is not appropriate since the Nowlands are already in violation and without a permit. Nadeau requests that if the board denies the application, that a stipulation be included to remove the chickens within a certain amount of time. Chair McDermot asks his opinion of what is reasonable. They decide that 20 days is fair. Haraske says although the Nowlands are currently in violation, they do have a right to correct the situation and asks how the Board should proceed under these circumstances. Vincent points out the Board cannot approve a permit with a stipulation that Nowlands move the coop. They need to first get into compliance, i.e., not have chickens on the property, and then come back with a new application once they have a new site for the chicken coop. Chair McDermot says the stipulation is not for approval of the permit based upon their moving the coop. Rather it is to stipulate that they remove the chickens before they reapply. Nadeau says the permit must come first, and then the chickens. Matt Vincent makes a motion to deny the Nowland’s application for a chicken permit at 5 Unicorn Circle, and as part of our denial the Board stipulates that they remove the chickens from their property within the next 20 days. Donna Collins seconds the motion. All in favor. Chair McDermot says that Nadeau will follow up with the Nowlands. John S. Mercer is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw Section VI.B to replace a garage. The property is located at 167 Main Street, Amesbury, MA in an R-8 zoning district (map 52, lot 300) according to the Assessor’s database, John Mercer introduces himself and says he has owned the house since 1974. It has a 3-car garage and a 2-car garage. The 2-car garage was in a progressively worse state of repair. He hired a contractor to “do stabilization and repair work.” After the work commenced, the contractor said was unsafe and it would be better to tear down and rebuild the garage. By coincidence, Denis Nadeau was walking past the property and noticed that there was a new building under construction. Mercer said that Nadeau correctly told him he needed a permit, and that is why he is appearing before the Board. Chair McDermot notes that no plans for the garage were submitted with Mercer’s application. Nadeau said the structure is exactly the same as the previous one, it is well built, it is built on the same slab, and there are no changes in the design. He says that Mercer has been “very, very cooperative,” and that work stopped immediately upon Mercer’s learning that he needs a permit. Collins asks if Mercer would have needed a permit if he was only doing repairs. Nadeau says it would depend on the amount of structural work involved. Where they tore it down, they should have had a finding from the Zoning Board. Vincent said it would have been the same finding for the same nonconforming structure that was issued previously. Chair McDermot says she appreciates Mercer’s cooperation, but the question remains of his application not being complete since plans for the structure are missing. She says others who have come before the Board without a plan have been asked to come back with a complete application. She asks how the Board feels about the application. Collins adds that if Mercer comes back with a complete application, he also needs to complete the dimensions on the application form. As it is now, it does not show where the garage is sited relative to property lines. Chair McDermot says that she does not want to set a precedent for acting on applications that are not complete, and that, as Collins pointed out, the Board also needs the dimensions on the application. Vincent says the idea may be “a long shot” but since plans are typically reviewed before ground is broken ground, and since this structure has essentially been inspected by Nadeau, would it be acceptable to issue a permit with a stipulation that Mercer adds plans to the application that conform to what Nadeau has already seen. Chair McDermot says she is not comfortable with the idea and does not think that it would be fair to other applicants who must include plans with their application. Haraske agrees it would be a good idea as a neighbor, but not on a legal basis since it would be unfair to past and future applicants. Chair McDermot asks if the Board wants to consider moving the matter to the next meeting. Mercer says he is willing to come back for the next meeting. Matt Vincent moves that the Board allow a continuation until the next meeting for the application of Jon Mercer for 167 Main Street. Donna Collins seconds the motion. All in favor. Chair McDermot told Mercer to write a note to her requesting a continuation of his case until the next meeting on October 22. Mercer submitted the following on a handwritten note: September 24, 2020 To Whom It May Concern: I, John Mercer, am requesting an extension until the next meeting, October 22, 2020. [SIGNED] John Mercer Chair McDermot says next on the agenda is Gordon M. Stockwood seeking a Special Permit/Finding under the Amesbury Zoning Bylaw Section IX.B to construct an accessory structure on a pre-existing nonconforming lot. The property is located at 4 South Hunt Road, Amesbury, MA in an OP zoning district (map 87, lot 3) according to the Assessor’s database. Paul Gagliardi introduces himself as an attorney with an office at 24 Market Street in Amesbury. He is representing applicant Gordon Stockwood. He distributes aerial photos showing the current condition of the property, plans showing the proposed location of the accessory structure, and renderings of what is proposed to be built place on the property, and a copy of a letter from Kyle and Sarah Mallet, abutters at 19 Martin Road South, in support of this application. Gagliardi says the applicant is seeking a finding that construction of the proposed accessory structure will be no more detrimental to the neighborhood than the existing nonconformity of the lot. The lot was created when it was zoned R-20; at that time it was in compliance. ubsequently, it was changed from R-20 to an Office Park (OP) zone. It does not meet the area requirements of the OP zone. That is the only way in which the lot and what is proposed to be constructed on it is nonconforming. The existing structure is nonconforming in front setbacks. However, it pre- existed the current zoning, and no change is proposed to that structure. The proposed accessory structure will meet all the setback requirements of the Amesbury zoning by-laws. Gagliardi says, “The only reason we are here before you is because we are placing a structure on a conforming lot, a pre-existing nonconforming lot. Under By-law Section IX.B we have an obligation to get a finding from you that this change, the addition of this accessory structure, shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure or uses.” The purpose of the proposed building is to clean up the lot. A lot of the equipment and supplies that are now outside will be moved to the inside of the new structure. The applicant also plans to plant arborvitae along the fence dividing the two properties in order to block the view of the residents at 19 Martin Road South. The abutters have submitted a letter in support of the application. September 24, 2020 To: Amesbury Zoning Board FR: Kyle & Sarah mallet 19 Martin Road South Amesbury, MA 01913 Re: 4 South Hunt Rd. Amesbury, MA 01913 Our neighbor, Stockwood Management, LLC and their tenant G&B Electrical Service, Inc. have come to us with plans and an artist rendering of the proposed accessory structure that they would like to erect and the improvement of landscaping with arborvitaes along our fence. We support this request as it will provide them with covered storage and improve the appearance an value of their property—therefore having a positive enhancement to our property. _________________________________________________________________________ Chair McDermot asks if there are any questions or concerns from the Board. McCarthy asks what is the ultimate goal for the property? Gagliardi replies that the owner is currently using it for his business as an electrician, G&B Electric, and he plans to continue to use it for that purpose. Nadeau says that G&B Electric has a home and an office on Pleasant Valley Road and several years ago neighbors were complaining about the amount of equipment on the property. Stockwood moved his business to the Hunt Road location and he is keeping most of his equipment there. It is a legal use of the property. Gordon Stockwood introduces himself and says he and his wife are owners of G&B Electric. He notes that Gagliardi may not have been aware that the property was originally a facility for fiberglass repair and where fiberglass boats were built on the second floor. He says it never should have been zoned as an office park because it never had that use. “All we are trying to do is clean it up since it is messy,” Stockwood stated. Chair McDermot asks for a motion to close the hearing and discus. Haraske makes a motion to close hearing and discuss Vincent seconds the motion. All in favor. Vincent says it is a “pretty straightforward matter.” McDermot agrees McCarthy says he agrees. Haraske agrees. Collins agrees. Chair McDermot asks for a review of the findings. She asks: Is their proof that it predates zoning? Yes. It predates the zoning. The zoning was changed. How is it nonconforming? The lot size, which predated the OP zoning. The front setback is nonconforming, but that also predates the current OP zoning. It is only 19’ 7”. Is it more or less detrimental? Less. Does the extension/alteration create a new conformity? No. All Board members agree. Donna Collins moves to approve the project as presented. McCarthy seconds the motion. All in favor. Chair McDermot says to Gagliardi and Stockwood, “Your application has been approved. There is a 20-day appeal period.” Chair McDermot says the last case on the agenda is not here. Sean Roaf is seeking a Special Permit/Finding under the Amesbury Zoning Bylaw Section VI.B to replace an existing garage with a new garage. The property is located at 6 Cedar Court, Amesbury, MA in an R-8 zoning district (map 40, lot 233) according to the Assessor’s database. Chair McDermot says she got word that the applicant’s wife had surgery and he requested moving his case to the end of the agenda. Nadeau said he heard from him around 3:45 p.m. that his wife’s surgery lasted longer than anticipated and Roaf would try to make it but was unsure. Chair McDermot moves that the hearing be continued to the next meeting without cause. Donna Collins seconded the motion. All in favor. Chair McDermot asks, “Do I have a motion to adjourn the meeting?” Donna Collins makes a motion to adjourn the meeting. Mike McCarthy seconds the motion. The meeting is adjourned at 8:11 p.m. He would need to provide a letter requesting the continuation.