Zoning Board of Appeals

City Of Attleboro, Massachusetts ZONING BOARD OF APPEALS GOVERNMENT CENTER, 77 PARK STREET ATTLEBORO, MASSACHUSETTS 02703 TEL 508.223.2222 FAX 508.222.3046 MINUTES DECEMBER 15, 2022 In accordance with the provisions of the General Laws of Massachusetts, Chapter 40A, as amended, public hearings were held on Thursday, December 15, 2022 at 6:30 p.m. in the Municipal Council Chambers located at Government Center, 77 Park Street, Attleboro, MA 02703, relative to the following: Zoning Board Members Present: Chairwoman Cathy Merkle, Kathy Rautenstrauch, and Kent Richards Members Absent: Johnny Bender and Sandra Varrieur The Board heard the continued public hearing relative to Case #5639, the application of Abram Agayby for a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–16.9 TABLE OF PERMITTED SIGNS & DIMENSIONAL REGULATIONS to accommodate an electronic message center on an existing sign, the subject premises being located at 289 County Street, more specifically Assessor ’s plat #44, lot #594, located in the General Business zoning district and Single Residence –A zoning district. Speaking in favor was Abram Agayby who stated that the sign installer who was to attend this evening’s meeting with him injured himself this afternoon and was unable to attend. He stated that since the last meeting, he worked with the sign manufacturer and that after thoroughly examining all the sign’s features, it was determined that there are no issues with the product. He stated in another effort, that the manufacturer is going to send him a series of test films that could help resolve the matter. Director of Planning and Development Gary Ayrassian sought confirmation that that the sign has been turned off in the interim. Mr. Agayby replied yes. Senior Land Use Planner Stephanie Davies suggested that a coordinated site visit could be held with the Board after the test films are installed. Mr. Agayby agreed. There being no one else to speak, the public hearing was continued. The Board heard the continued public hearing relative to Case #5646, the application of Laurel Knoll Land Trust for a special permit pursuant to §17–9.0 SPECIAL PERMITS and §17–10.2 EARTH REMOVAL for an earth removal operation associated with a proposed two–lot definitive subdivision plan entitled “LAUREL KNOLL ”, the subject premises being located at 0 MacDonald Lane, more specifically Assessor ’s plat #101, lot #9, located in the Single Residence –D zoning district. Speaking in favor of the application was attorney Edward Casey of Coogan Smith, LLP who asked the Board to continue the public hearing to January 12, 2023 is client is requesting a continuance until the Board’s meeting ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 1 in January. He stated that the project’s engineer is investigating the sufficiency of the water supply to MacDonald Lane for the proposed development. There being no one else to speak, the public hearing was continued. The Board heard the continued public hearing relative to Case #5647, the application of W.B. Construction & Development, Inc. for a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–10.2 EARTH REMOVAL for an earth removal operation to accommodate site grading relative to the construction of three (3) buildings to contain four (4) commercial units each for a total of twelve spaces for business and a variance pursuant to §17–8.9 VARIANCES from the provisions of §17–5.9(D) GENERAL PARKING AND LOADING SPACE STANDARDS to exceed the maximum permissible entrance/exit driveway width of twenty –five (25') feet, the subject premises being located at 0 County Street, more specifically Assessor ’s plat #104, lot #27, located in the Industrial zoning district. Speaking in favor of the application was attorney Edward Casey of Coogan Smith, LLP who stated that they are looking into the staff’s recommendation to relocate the driveway entrance to the site. He stated that also as recommended by the staff, they staked out the proposed driveway entrance to the site for the Board’s review. He stated that they are following–up on a number items requested by the Planning Board and Zoning Board of Appeals such as the installation of a vegetation screen along County Street re–examining the site lighting plan to avoid light pollution to reduce any lighting nuisances that could impact the neighbors across the street. He stated that an additional application will be submitted requesting permission to install a sign within the front yard setback. He requested that the hearing be continued to January 12, 2023. There being no one else to speak, the public hearing was continued. The Board heard the continued public hearing relative to Case #5598, the application of City of Attleboro for a special permit pursuant §17–9.0 SPECIAL PERMITS and §17–12.0 FLOOD PLAIN DISTRICT for work/excavation within the 100–year floodplain associated with the replacement of the Pitas Avenue bridge over the Seven Mile River, the subject premises being located within the Pitas Avenue right–of–way, located in the Single Residence –B zoning district and Single Residence –C zoning district. Eric Silva of Pare Corp. spoke in favor and explained that as requested by the Board, he submitted a memo containing the cut and fill details and differentiated the information between the excavated earth material and the bridge’s demolition debris. Mr. Ayrassian asked if excavated materials are to be hauled off site. Mr. Silva replied that some of the material excavated from the channel may be reused as part of the construction project, but the materials would have to be stockpiled elsewhere as there is no place to do so at the site. He speculated that those details would be worked out with Public Works. Mr. Ayrassian asked how many truckloads of earth are slated for removal. Mr. Silva estimated approximately 20 trucks. He noted that the construction will be phased, so all of the excavation will not occur at one time. Mr. Ayrassian requested that the data for the duration of the project be submitted. Cathy Merkle also requested a timeline for when the trucks are anticipated to be on and off the site. Mr. Silva agreed. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 2 Ms. Davies informed the Board that the Conservation Commission issued the stormwater management permit and Order of Conditions. There being no one else to speak, the public hearing was closed. The Board heard the new public hearing relative to Case #5649, the application of Mike Johnston for a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–3.1 USE DESIGNATIONS to operate a tattoo studio, the subject premises being located at 200 North Main Street, more specifically Assessor ’s plat #49, lot #147, located in the General Business zoning district. Speaking in favor of the application was Mike Johnston who stated that he has worked as a tattoo artist in Seekonk for the last 1.5 years and is seeking permission to operate a tattoo studio at 200 North Main Street. He stated that he plans to serve only one customer a day, four to six days per week. He stated that the proposed hours of operation are 11:00 a.m. to 10:00 p.m. He stated that his wife would be working with him as an apprentice, but that there would be no other employees. Speaking in favor was Gary Demers who stated that he felt it would be a great use of the former industrial space. Mr. Ayrassian inquired how medical waste would be handled. Mr. Johnston replied that anything that comes in contact with a customer’s blood is treated as biohazard and that he places it in sharps containers that are stored in a locked cabinet. He stated that he contracts with a medical waste removal company that performs pick–ups as–needed, usually twice a year. Mr. Ayrassian asked if signage is proposed for the business. Mr. Demers replied that he will be having a sign made for the whole site which will have space for subtenant signs below. He stated that it will meet the standards of the Zoning Ordinance and be in line with the historic look of the building. Mr. Ayrassian said that he felt there is sufficient parking on the premises for the proposed tattoo business and the other activities. Mr. Demers agreed and noted that the tattoo business has very minimal parking needs considering they will not serve more than one client a day. He stated that the existing salon only has one seat. He stated that he is planning to create a 60–vehicle parking lot in the back and along the side of his property and that he is working with the DPW and the Conservation Agent at this time. Mr. Ayrassian asked whether applications have been filed with the Conservation Commission. Mr. Demers replied no. There being no one else to speak, the public hearing was closed. The Board heard the new public hearing relative to Case #5650, the application of Canna–Farm LLC for a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–10.15 MARIJUANA BUSINESS USES to establish a Marijuana Business (cultivation and manufacturing), the subject premises being located at 1 Turner Street, more specifically Assessor ’s plat #1, lot #12, located in the Industrial zoning district. Speaking in favor of the application was attorney Daniel Glissman of Prince Lobel Tye, LLP who handed out revised materials and response comments to the staff report. He stated that the subject property is a 12.6–acre parcel that contains an existing 338,000 square foot building. He stated that his client is seeking a special ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 3 permit for a marijuana cultivation and marijuana manufacturing operation. He stated that they would be leasing the second floor of the building containing approximately 84,000 square feet. He stated that the area is heavily industrial and meets all the necessary buffer requirements as dictated in the Zoning Ordinance. He explained that they are proposing significant improvements to the building to serve the facility, including security, infrastructure, and access controls. He presented a detailed description of the proposed improvements to the building and of the business operations. He stated that to start, the business proposes to have 24 employees at most, per shift. He stated that gradual expansion of the business would follow with increases in the number of employees as the rooms in use subsequently increase. Mr. Ayrassian asked whether they submitted the security to the Police Chief for review and analysis. Attorney Glissman answered no, that they are in the process of coordinating schedules. He stated that an overlay will be provided that identifies all of the security features. Mr. Ayrassian noted that the plan will have to show how employees will gain access to the second floor from the outside and how the applicant has control of that access without interference from any first floor tenant. He stated that the security plan will have to show how it will protect the second floor as the applicant does not have control of the building. Attorney Glissman noted that the facility will not be open to the general public. He stated that anyone visiting the facility must sign in and be escorted by an employee with access capabilities. He explained that the grading of the site allows for the second floor of the building to be at grade in the rear, which will serve as the access point for employees and visitors, as the rear entrance and loading bays lead directly into the tenant space. He stated that by security cameras will cover every path and location where that cannabis will travel within the building. He stated that a vehicle gate is proposed in front of the loading bay, per staff recommendations. He noted that deliveries will come to and leave the site in sprinter–style vans. Mr. Ayrassian asked whether any methods of water reclamation are proposed as part of the cultivation and manufacturing processes. Attorney Glissman stated that the facility will be serviced by the City of Pawtucket and that they have confirmed they have sufficient supply to meet the needs of the facility. Mr. Ayrassian asked whether wastewater will be handled by the City of Attleboro. Attorney Glissman answered yes, and that they intend to utilize it under the pre–existing conditions. Mr. Ayrassian asked whether the client foresaw seeking a retailer license in the future. Attorney Glissman answered no, that strictly cultivation and manufacturing uses are proposed. Kent Richards asked whether it will be a single–ship operation. Attorney Glissman replied that he anticipated that it would likely entail sales to multiple outfits, but would need to double–check the business plan. He explained that they are required to have randomized routes and timing of delivery and shipments per state law. He stated that they anticipate three to five deliveries per week. He stated that they are requesting 24–hours of operations, consistent with their state license application. He stated that the typical hours are from 9:00 a.m. to 5:00 p.m., but they need flexibility for larger harvests that can take longer. Mr. Ayrassian inquired about the number employees and the length of employee shifts. Attorney Glissman answered that he was unsure, but would obtain the information. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 4 Mr. Ayrassian asked that they address traffic and traffic flow. Attorney Glissman replied that all access to the site is off Turner Street and showed the traffic circulation by use of the site plan. He stated that in their original application, a total of 37 parking spaces were proposed. He stated that as a result of the staff report and recalculating the square footage of the uses, they have increased the number of parking stalls to 48. He pointed out the two loading bays and the secured sally port for loading and delivery of product. Cathy Merkle asked whether the HVAC shown on the plan is for the applicant’s use only or that of the whole building. Attorney Glissman stated that he was unsure. Mr. Ayrassian questioned how much parking is available for future uses within the rest of the building. Attorney Glissman pointed out the available spaces for other uses on the site plan. Mr. Ayrassian asked what steps were being taken in terms of ventilation, to prevent impacting other tenants. Speaking in favor of the application was Kurt Smith of Fuss & O’Neill who stated that a 600–volt transformer services the building and that the existing pad will be slightly augmented to contain a separate transformer for the proposed use. He described odor control measures, which involve the use of positive and negative pressures to funnel odors to points where they are treated with carbon filtration. He stated that air is recirculated and filtered within the packaging rooms. He pointed out the proposed exhaust systems along the side of the building, which are sandwiched between the floor above and below. Mr. Ayrassian asked if any redundancy is designed into the system. Mr. Smith replied that extra filters and replacement mechanical parts will be kept on site, as the applicant has requested the ability to change those out, if needed. Mr. Ayrassian inquired the proposed water use for the facility. Mr. Smith replied that they estimate the use of approximately 35,000–40,000 gallons of water consumption on a daily basis. He noted, however, that much less water than what they propose to use is typically utilized. He stated that there are opportunities for potential water recapture, but that the necessary costs for the systems required to facilitate it may not be sufficient to justify the water savings. He stated that he would be happy to design such a system, however, if requested and that up to 50% of the water could be reused. Mr. Ayrassian noted that the City experienced a significant drought this past summer and extensive discussions regarding climate resiliency are being held by the City. He stated that he would advocate for as green a design as possible to be proposed. He stated that even though water will be supplied by Pawtucket that that does not mean water usage is meaningless. Mr. Smith stated that he would be happy to revise the plans with a water recycling system. Mr. Ayrassian asked the Board whether they wanted the staff to hire an industrial hygiene consultant to evaluate odor and noise suppressant systems proposed in the plan. Cathy Merkle stated that she would like to think about it first. Mr. Ayrassian asked whether the applicant has reached out to any other tenants in the building and whether they had any concerns about the proposed use. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 5 Attorney Glissman stated that to his knowledge, feedback had not been solicited from existing tenants. He stated that he will check into it but knows that his client has a signed lease and working relationship with the landlord. Mr. Ayrassian stated his intent that other tenants know about and understand the proposed security system. He asked for Mr. Glissman to walk the Board through the proposed delivery routes. Attorney Glissman showed the proposed delivery routes by use of the site plan. Mr. Ayrassian sought confirmation that delivery vehicles would not drive into the building. Attorney Glissman confirmed no, that they are secured in the outdoor vehicle trap where stock is either loaded or unloaded. Mr. Ayrassian pointed out that relief will likely be needed for the number of loading docks, as to his understanding the Cannabis Control Commission only allows for one whereas Zoning Ordinance requires more than one given the floor area the proposed business would occupy. Attorney Glissman suggested that maybe only one is provided for cannabis deliveries and one can be utilized for other products, but that he will look into the matter. There being no one else to speak, the public hearing was continued. The Board heard the continued public hearing relative to Case #5621, application of Thomas O. Castro for a special permit pursuant §17–12.0 FLOOD PLAIN DISTRICT to work/excavate within the 100–year floodplain to construct of a one–family dwelling, the subject premises being located at Thacher Street and Cypress Road, more specifically Assessor ’s plat #36, lot #462, #466, and #475, located in the Single Residence –B zoning district . Speaking in favor of the application was attorney Edward Casey of Coogan Smith, LLP who stated that they are requesting relief to construct a single–family home within the floodplain with frontage on Cypress Road. Speaking in favor was Brian Werner of Dunn • McKenzie Engineering who stated that they had eliminated grading on the north side of the lot and shifted the driveway to the highest possible elevation on the lot. He stated that in the worst case scenario, there could be up to 6–inches of floodwater where the driveway meets the road. Attorney Casey explained that the house is proposed with flood–resilient features, including a crawl space with gravel to allow flood waters to surge and recede. He noted that none of the house’s mechanicals, including the hot water heater and furnace, would be located in the basement. He stated that this may diminish the value that someone may pay for the house, but does make it a feasible construction. Cathy Merkle sought confirmation that the submitted narrative describes these flood resiliency features. Mr. Werner replied no and that they are labelled on the plans. Cathy Merkle sought confirmation that the proposal is not the same as break–away walls. Mr. Werner answered no, and stated that the walls are typically closed, but open with the pressure created by water rising. He stated that the feature is defined as FEMA flood vents versus break–away walls. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 6 Ms. Davies asked if the proposed house has a foundation. Mr. Werner answered yes. Attorney Casey stated that the foundation has a footing and that just a crawl space with gravel is provided versus a full basement. Ms. Davies pointed out that staff had requested that a “cuts and fills” matrix be submitted in addition to or in place of the incremental storage figures. She pointed out that if the actual foundation is proposed at elevation 111–feet and the compensatory storage/cut volume is proposed around contour 110–feet, she asked where that is represented in the provided chart. Mr. Werner stated that they model the foundation as part of the floodplain as water passes through it. He stated that they started the compensatory storage/cut volume at contour 110–feet. Mr. Ayrassian inquired about the volume capacity of floodplain that would be supplanted by the footprint of the foundation. He pointed out that the provided chart does not seem to contain the data requested by the staff. Ms. Davies asserted that the chart does not appear to make sense, as grading is proposed to create the 100–foot elevation, which should show as a new cut, but instead shows a 0. Mr. Werner countered that they have not created any change in the volume capacity at 110–feet. Ms. Davies disagreed stating that a volume is created at 110–feet. She stated that the volume that was cut and created at 110–feet needs to be shown. She stated that both the cut and the fill should be provided, not just the net zero result. Mr. Ayrassian requested again that a chart be submitted showing the proposed cuts and fills at each elevation. Attorney Casey pointed out that compensatory storage was not created below elevation 111.1–feet. He noted it was created for about 6,000 gallons. He stated that the design of the house has also been refined to accommodate the potential flood waters. Mr. Werner stated that he could likely submit the information next week. Cathy Merkle insisted that the materials needed to be submitted for staff review a minimum of two weeks prior to the January 12th meeting. Mr. Ayrassian questioned whether the foundation walls proposed within the floodplain will have any special anchoring system. Mr. Werner stated that such features are not required and have not yet been determined. Mr. Ayrassian expressed concern that upward pressure from storm water may compromise the foundation otherwise. Attorney Casey stated that details will be provided when the new chart is submitted, as the feature may be a function of Building Code. He reminded the Board that the flooding in question here is 6–inches of water on Cypress Road and that the site has been designed to allow someone to walk out, so will not represent a safety hazard. There being no one else to speak, the public hearing was continued. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 7 The Board heard Case #5651, the application of 42 County Street LLC for special permit pursuant to §17–9.0 SPECIAL PERMITS from the provisions of §17–5.9(F) GENERAL PARKING AND LOADING SPACE STANDARDS to reduce the required minimum number of off–street parking stalls , §17–9.0 SPECIAL PERMITS under §17–5.1 OFF –STREET PARKING REQUIREMENTS to reduce the required dimensions of off–street parking stalls, §17–9.0 SPECIAL PERMITS under §17–5.6(A) LOCATION OF PARKING AND LOADING SPACES to allow the use of off–site private parking stalls located within three hundred (300') feet of the principal lot, §17–9.0 SPECIAL PERMITS under §17–5.7 MUNICIPAL PARKING LOTS to allow the use of off–site municipal parking facilities located within one thousand (1,000') feet of the principal lot, §17–9.0 SPECIAL PERMITS under §17–12.0 FLOOD PLAIN DISTRICT to accommodate work/excavation within the 100–year floodplain and floodway, as well as for variances pursuant to §17–8.9 VARIANCES from the minimum lot area, from the maximum building height, and from the minimum side yard setback requirements pursuant to §17–4.9 TABLE OF DIMENSIONAL AND DENSITY REGULATIONS in association with the construction of a nine story, 80–unit mixed residential/business use; the subject premises being located at 42 County Street, more specifically Assessor ’s plat #31, lot #243, located in the Central Business zoning district. Speaking in favor of the application was attorney Jack Jacobi of Coogan Smith, LLP, who handed out additional written materials to the Board. He stated that his client is before the Planning Board with a Major Site Plan Review application and that they will be filing their stormwater application and wetlands application tomorrow. He stated that the project involves the proposed construction of a 9–story by–right mixed–use building in the “central business” zoning district containing 80 residential units above the ground floor and 800 square feet of retail space and parking for 30 vehicles on the first floor. He stated that the subject site is the former Attleboro Dodge which has been utilized as a used car lot. He stated that the project is proposed in line with the city’s policy of encouraging residential development in the urban core in and around the commuter rail station and the TOD zoning district. He pointed out that the proposed mixed–use building would be the tallest building in Attleboro. He noted that the Fire Chief has made it clear that the department’s trucks can only reach five stories, but that like other larger cities, there are options for addressing this issue and firefighting through architectural and engineering design. He stated that the development site is an oddly–shaped, triangular, shape encumbered with an AUL resulting to the presence of a previous gasoline station leaking of petroleum into the ground. He stated that they are looking to avoid digging into the ground near the river and disturbing the encapsulated toxins. He stated that because of the AUL and other site constraints, they are proposing all parking to be on the ground level along with the commercial space. All residences would be on second through the ninth floors. He stated that they are seeking a number of forms of relief from the dimensional and density regulation. He stated that the lot contains a land area of approximately 29,000 square feet while the minimum lot area needed to accommodate the proposed density is 85,000 square feet. He noted that the lot area was recalculated since the time the application was filed with the city to reflect the property line at the midline of the river due to questions raised by Planning Staff submission. He noted that of that area, only about 25,000 square feet is buildable, as work cannot occur in the river. He argued that the Zoning Ordinance seems to contemplate horizontal development, versus vertical development, in forming its minimum values. Mr. Ayrassian disagreed and stated that the Zoning Ordinance contemplates vertical development as opposed to horizontal development in forming its minimum values. This issue he stated is that the minimal values for vertical development that were adopted likely did not contemplate the magnitude of development the “central business” zoning district is experiencing. Attorney Jacobi continued that it is difficult to find a two acre site in the downtown and that relief is being sought based on numerous considerations including the odd–shape of the lot. Cathy Merkle expressed concern over the height and questioned the rationale for the design. Attorney Jacobi stated that it revolves around the number of natural constraints and manmade constraints such as the AUL and their effects on the economics of improving the site and on the development. He pointed out that the proposed 80 units at 42 County Street is the same number of residential units that exist at Renaissance Station and less than the number of residential units at 1 Wall Street, which has 130 units. He ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 8 stated that unlike those sites, there is not sufficient land area at 42 County Street to spread out horizontally. He stated typically for the downtown, the City has required one parking space per apartment, so a minimum of 80 would be required. He stated that 30 spaces are proposed on site, double–stacked, so only really 15 that can be counted to meet the Zoning Ordinance’s standard. He stated that the commercial use will require 11 spaces and only 5 are being provided on site. He stated that the remainder of the required off–street parking spaces would be provided off–site which the Zoning Ordinance allows. He stated that the Zoning Board has always required developers to satisfy the parking requirements and in these instances, the Board has allowed developers to acquire the spaces prior to the issuance of a Building Permit and proof of a lease before issuance of an Occupancy Permit. He stated that they are very sensitive to the neighbor across the street, the Jewelry Outlet, and the owner’s concerns with the potential residents parking in her parking lot on Riverbank Road. He stated that discussions have begun with the city to find out how many spaces are available for lease in a municipal parking facility located within 1,000 feet of the site. He noted his understanding that there is a growing consensus in the City for the preparation of a feasibility study that would lead to the creation of more parking within the downtown but that those plans are likely several years down the line. Mr. Ayrassian emphasized that the Board is not bound by precedent and that regardless of past practices, he strongly urged the applicant to make an effort to obtain off–street parking stalls while the special permit and variance application is under review by the Zoning Board of Appeals. Attorney Jacobi agreed and stated that he doubted his client would get the necessary financing for the project without the parking needed to obtain an occupancy permit. He stated that they are requesting a variance to reduce the parking stall dimensions to 10–feet by 18–feet. He noted that they expect virtually resident living at the property to walk to the commuter rail station and that there is not likely to be much vehicular traffic arising from the site. He stated that they do not have a traffic report, but that one will be provided. Speaking in favor of the application was Joey Fonseca of Bohler Engineering who stated that the site currently contains two large one–story buildings, with a combined approximate floor area of 6,500 square feet within the floodway. He stated that the lot coverage is presently about 81% coverage with two existing curb cuts. He stated that the floodplain elevation is 116–feet and since the contours on site are 111–feet and 112–feet, the floodplain elevation therefore of 116–feet cannot be shown on the plan because the entire site is within it. He stated that for existing stormwater management, 2/3 of the site sheet flows uncontrolled and untreated into the river. He stated that the remaining sheet flows towards County Street and eventually also drains to the river. Mr. Ayrassian asked Mr. Fonseca to discuss the on–site outflow pipe located in the retaining wall. Mr. Fonseca stated that they discovered that the drain line that leads to the outflow pipe was capped off, so they are no longer proposing to relocate it. He stated that they are proposing to maintain the existing northerly curb cut and slightly shifting the southerly one. Speaking in favor was Scott Goddard of Goddard Consulting who stated that he is preparing the Conservation Commission applications and stated that the Ten Mile River is an important resource area with a well–established edge that is largely filled with invasive Japanese knotweed. He stated that they anticipate rebuilding portions of the existing deteriorating retaining wall to better protect the river. He stated that they propose to improve biodiversity and aesthetics with a management plan for the invasive species and the planting of native vegetation. He stated that they are proposing to demolish the two existing buildings that take–up current flood storage space and that by doing so, additional flood capacity would result. Mr. Ayrassian noted that there exists both floodplain and floodway on the site and that the engineering needs to address stagnant vertical characteristics of the floodplain waters and the horizontal movement of the floodway waters. Mr. Goddard stated that the proposed building is positioned towards the frontage to get it out of the floodway, leaving it only in the floodplain. He noted that what would remain on the ground level in the floodway would be ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 9 the proposed building’s pilings, a very small portion of the proposed building at the rear of the site, and the of–street parking. He stated that during flooding events, residents will have to move their cars elsewhere to protect them. Mr. Fonseca stated that an 18–foot drive aisle is proposed around the site. He stated that 30 parking spaces are proposed beneath the proposed building with two ADA–accessible spaces. He noted that the loading area had been revised per staff comments, so the trash enclosure was slid north up against the building to allow access to the loading area from the drive aisle. He stated that the building is proposed to be set back 6–feet from the street pavement. He noted that there is not much change in elevation going across the site and that any grading is strictly for purposed of directing stormwater runoff into the proposed catchbasins. He stated that they have written confirmation from the Water Department and Wastewater Department that there is sufficient municipal water and sewer capacity in County Street for the project. He stated that they also met with the Fire Department and are proposing to providing FDC connections along the front of the building and other accommodations to meet their needs. He confirmed that the design of the driveway that encircles the site accommodates the turning radius of emergency vehicles. He stated that their Geotech consultant is be preparing a report regarding the structural integrity and structural upgrades relative to the portion of the Ten Mile River’s channel wall that abuts their property. Ms. Davies requested that a copy of said report also be submitted to the Zoning Board. Mr. Fonseca stated that they are gaining about 1,300 cubic yards of flood storage volume with this plan, primarily through the removal of the two existing buildings. He stated that as all of the apartments are on second floor and above and that there is no conflict with the AUL. He stated that the site’s lighting is shown on the plans and consists of five pole light along the drive aisle and lighting underneath the building as well as on the facades. He stated that the pole lights will dark sky compliant and directed downwards. He stated that their landscaping plan is limited because the site is essentially all paved but noted that the Planning Director advised that they introduce green elements by way of drought resistant landscaping elements, perhaps green roof, and also green elements on the building’s staggered facades. Mr. Ayrassian sought confirmation that drought tolerant plants are being proposed for the site as well as the other green considerations he advised them to pursue. Mr. Fonseca replied yes. Cathy Merkle inquired about snow storage. Attorney Jacobi stated that the plan is to haul all snow entirely off site, as there is no space to store it there. Ms. Davies asked which of the proposed parking spaces on site are designated for the business use. Attorney Jacobi stated that they will be designated on the site plan. Ms. Davies stated her concern with how that plays into the double–stacked parking design. Attorney Jacobi noted that the double stacked spaces will be strictly for the residents. Speaking in favor was architect Chris Brown of JtA who stated that he designed the proposed building to hug County Street as much as possible yet maintain an urban edge. He stated that the building will be about 2–feet from the property line, leaving some space for pedestrians, noting that the higher–level overhang allows for extra sidewalk space. He stated that they are providing as much parking as possible beneath the building. He stated that the tallest floor is the ground floor with a height of about 14–feet and that each floor above the ground floor is at the residential scale of about 10–feet per floor. He stated that they do not have an absolute height of the building yet, but are trying to keep it within reason, given the nine floors. He noted that any ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 10 building like this one that exceeds 75–feet in height is designated as a ‘high rise’, which triggers higher building code parameters, which will all be met. He stated that the building will have sprinklers, additional stand pipes, a fire pump, and emergency generator immediately off County Street that will be available for emergency services. He stated that they understand the limiting factors of the city’s fire fighting apparatus and are making efforts to address that by incorporating a number of fire suppressant features into the architectural design of the building. Mr. Ayrassian asked whether the details associated with all of those design features have been submitted in written and/or graphic form to the Fire Department to determine regulatory compliance. Attorney Jacobi replied not yet, but that they will be. Mr. Brown stated that the lobby is central to the building with two egress stairs, elevators and bicycle storage. Cathy Merkle questioned the safety in a design where both egress stairs are located in the same central area of the building’s core. Mr. Brown replied that the access doors for each are spread apart and meet Building Code. He stated that the loading zone and dumpster were relocated to free up two lanes, allowing them to dedicate one to trash and recycling removal and one for residents to (un)load by backing up to the elevators. He stated that the commercial use and the tenant use to (un)load will likely be performed on a scheduled basis, with for example commercial occurring in the morning and evening and residential in the middle of the day. Mr. Ayrassian noted that the height of the first floor would not allow clearance for a garbage truck and asked how the dumpsters will be emptied. Mr. Brown stated good point and noted that the dumpsters would need to be wheeled out from under the building rather than the truck driving to the dumpster to empty it. He stated that he felt a rear pick–up dumpster truck could fit. He stated that they will iron out that detail. Ms. Davies asked whether a separate dumpster will be provided for the commercial tenant. Mr. Brown replied no, that the dumpster would be shared by both the commercial and residential tenants. He stated that a room will be designated so that everyone could separate recyclables. He stated that trash shoots are being proposed for all floors. Mr. Ayrassian asked if trash shoots will be vented so as to prevent odors permeating the residential floors. Mr. Brown confirmed yes, to the roof. Cathy Merkle asked whether the trash shoots are located in a hallway, a room, or in a closed door or in the hall. Mr. Brown replied that they are presently proposed to be located in the hallways. He stated that each floor will have five one–bedroom units that are up to 750 square feet and five two–bedroom units up to 1,100 square feet. He stated that all of the units have exterior space and balconies. Mr. Ayrassian asked whether the building’s design includes a roof deck. Mr. Brown answered yes, and explained that it is oriented towards the east facade, facing the river. He stated that there will be outdoor furniture on the rooftop along with the HVAC equipment. He stated that they have oriented the HVAC equipment on the roof in such a manner that, and as far away as possible from County Street, so it is not discernable from both the roof deck and the street. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 11 Mr. Ayrassian requested that the high–end rent and the low–end for both the one–bedroom units and two–bedroom units be provided. He asked whether the units will be rentals or condominiums. Attorney Jacobi replied rentals. Mr. Ayrassian stated that several and significant variances are being requested of the city and asked whether any thought has been given to giving back to the city. He stated that the vacancy rate in the city is very low and as a result, there is a great need for all types of housing. He urged the applicant to consider including units for workforce housing or some other moderate–income affordable units in the overall proposed 80 units. Attorney Jacobi stated that there was no city requirement for such, and that is not part of the plan. Mr. Ayrassian stated that he is very well aware that there is no city requirement but he reminded attorney Jacobi and the applicant they are proposing 80 residential units, not five or ten or 15. He repeated the number 80. He said that he is confident that if they recheck their pro forma numbers, they will be able to find a way to go from 100% market rate units to a mix of market rate units and for example workforce housing as defined by the MHP. Attorney Jacobi agreed that they would consider this request. Mr. Ayrassian inquired about the number of elevator shafts. Mr. Brown answered two. Mr. Ayrassian inquired about the anticipated water consumption and sewerage generation associated with the 80 proposed residential units. Attorney Jacobi stated that he will submit that information when they submit their revised materials package. Mr. Ayrassian asked Mr. Brown to discuss the design of the building’s facades as well as the curb appeal at the ground level. He stated that the city is particularly interested in the design of the facades including staggered walls, windows, balconies, banners, and illumination, as well as materials, colors, textures of the facades. He stated that the city is also particularly interested in building’s curb appeal at a human scale and that he wanted to learn and understand what people would see looking at the facades as one walked by or drove by. He asked why the main doorway into the building will look and said that he wanted to make sure it would be posh and welcoming given that it will be the largest modern building in the downtown, but not garish. He inquired about street scape and proper scale. He stated that the developer of the recently approved 46–unit multi–family development at 27 South Main Street worked with the Boards and planning staff on several iterations of that building’s ground level facade and ultimately came up with a wonderful design. Mr. Brown noted that they are in the early phases of façade design and will work with the Boards and staff. He noted that even though the building is proposed as a 9–story building, he compared its height to surrounding buildings in the downtown and explained that given its location at 42 County, it would not stand taller than say the Bronson building or the buildings on South Main Street because its elevation on County Street is significantly lower. Cathy Merkle countered that regardless of topography, this building will have an additional three stories more than any other building in the City. She stated that she did not think there is a building along that stretch of County Street that is above two stories in height, so she did not find the comparisons presented compelling. Attorney Jacobi acknowledged her view and stated that they are just trying to impress that in relative scale, it is more reasonable than it appears and would not overshadow other tall buildings in the downtown. He ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 12 emphasized that the site is attractive due to its proximity to the train station and that they recognize that nothing around it is nearly as tall as what they propose. Cathy Merkle questioned why a 6–story building cannot be built. She stated that economics is not a consideration the Board can cite under the Zoning Ordinance to grant relief. She suggested that costs be trimmed in other areas such as by choosing less costly materials. She stated that she felt nine stories on County Street to be excessive for the area. Mr. Ayrassian advised that the applicant submit a shadow analysis that will reveal the shadows that the 9–story building will cast on the downtown and other buildings as the sun circles around from east to west. He also requested a number of views/perspectives of the proposed building from a human scale as viewed from the intersection of Wall Street and County Street, from Balfour Riverwalk, from Morin’s Restaurant on South Main Street, and from County Street standing between the Bronson Building and Fiske Square for a comparative analysis of the proposed building to the surrounding buildings. He agreed that the applicant needs to demonstrate and justify how the design of the proposed building fits the Downtown Attleboro. Mr. Brown explained the proposed construction materials, which he said are slated to be more wood–based in the rear, to play off the proximate river, while juxtaposing with the more urban elements found along the frontage. Speaking in opposition was attorney Melinda Kwart of Percy Law Group, P.C. who stated that she is representing Riverbank Associates, Inc. who owns 33–35 County Street. She stated that the project is impressive in nature, but that the relief requested is quite considerable. She summarized that a nearly 50% increase is being sought in the maximum number of floors, a 70% reduction in the required lot size, and an 80–90% reduction in the number of off–street parking stalls. She stated that when such relief is granted, it puts pressure on all of the neighboring properties. She stated that her client is most concerned with the issue of parking. She asserted that her client pays a business to patrol and maintain their off–street parking for their customers only, and that residents of this building are likely to try to park in her client’s lot. She also stated that she did not understand how such a height could be contemplated given that the fire equipment cannot tend to such a large building and she was not sure how to surmount that fact. Mr. Ayrassian noted that the Fire Chief wrote an extensive email to the Zoning Board and Planning Board and pointed out that while the proposed 9–story building presents some operational challenges for the Fire Department, coordinated deployment of mutual aid resources for such atypical events in a municipality are available to provide additional resources that would be needed in the event of a fire. He offered to send the Fire Department’s letter to attorney Kwart. Attorney Kwart maintained that the over–sized nature of the building will create significant problems for the neighbors. Mr. Ayrassian stated that he understands the concerns regarding parking pressure, but that the developer will be obligated to identify alternative parking locations during the permitting process. He pointed out that the Board’s responsibility is to make sure that sufficient off–street parking is provided but cannot control when people ultimately choose to park. Attorney Kwart stated that it was unfortunate that at least two floors worth of parking could not be provided on site. Speaking neither for nor against was Richard Conti of 100 Berwick Road who stated that his concern is regarding the new trend in urban development requiring tax payer participation. He detailed a number of tax breaks and building permit cost relief granted to various developers by the Municipal Council. He stated that if the developer is requesting 80 units, that the Board make the project economically feasible because otherwise reducing the density is likely to drive them to the City to request taxation relief. He stated that exorbitant amounts of taxpayer money should not be committed to facilitating developers’ redevelopment of the ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 13 downtown. He stated that if the Board is not inclined to approve the project with the requested 80 units, it should be denied entirely. Mr. Ayrassian pointed out that the granting tax abatements and permit fee relief to developers is not a function of the Zoning Board. Mr. Conti replied that his comments are from the perspective of sitting on the Municipal Council and that he is concerned about a much bigger picture than the Board’s limited focus that he felt they should be made aware of. There being no one else to speak, the hearing was continued. The Board held a business meeting. With an appointment to speak was attorney Edward Casey regarding the special permit issued to Scott Glennon to convert office space into two (2) residential units at 145 Pleasant Street, Case #5587. Attorney Casey stated that the Zoning Board granted a special permit regarding the conversion of commercial to create a total of four residential units. He explained that with COVID, the owner has not been able to find a contractor who can install the required sprinkler system. He requested the Board to grant a one year extension for the special permit. Cathy Merkle made a motion to grant a one (1) year extension of time for the special permit relative to the special permit issued to Scott Glennon to convert office space into two (2) residential units at 145 Pleasant Street, Case #5587. Kent Richards seconded the motion. All voted in favor to grant a one (1) year extension of time. With an appointment to speak was attorney Edward Casey regarding the special permit and variance issued to 220 ONEILL, LLC to establish a marijuana retail sales business at 220 O’Neil Boulevard, Case #5556. Attorney Casey reminded the Board that this issue revolves around a direct abutter to 220 O’Neil Boulevard, Bonnie Moore, who claimed that she did not receive notice of the public hearing and then only heard about the Board’s decision to grant the relief when she attended a community outreach meeting to express her concerns about the business. He explained that Ms. Moore has concerns about accessing the back and side of her commercial building. He stated that the Police Chief had suggested the installation of a sliding gate. He explained that this approach does not work for Ms. Moore, so his client, 220 ONEILL, LLC, is amenable to proposing an alternate parking plan to the Zoning Board to accommodate her needs. He stated that they are proposing to create a jog in the fence line, which will result in the loss of five parking spaces. He noted that the property has excess parking, so can accommodate the loss when moving the fencing 9–feet into the site. He asserted that the change will not impact the security of the building. He stated that he hopes this revision would not require a public hearing. Cathy Merkle referred the matter to the Police Chief and Director of Planning and Development for review and recommendation. The Board tabled the matter. With an appointment to speak was attorney Edward Casey regarding the special permit s issued to 220 Aspen Blue Cultures, Inc. (aka Twerks) to establish a marijuana retail business and a Medical Marijuana ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 14 Treatment Center marijuana including marijuana cultivation and marijuana manufacturing activities for retail and medical uses at 40 Forest Street, Case #5455, Case #5456, and Case #5484 . Attorney Casey stated that the matter at hand is one previously contemplated by the Board and relates back to a request made in February of 2022. He stated that at that time, they requested the Board to extend the days and hours of operation. He stated that the Board advised the business owners to solicit feedback about the proposed changes from the abutters and neighbors either in writing or a community meeting and report back to the Board. He stated that ultimately, the Board rejected the requested changes. He stated that the Board’s concern stemmed from traffic impacts on surrounding residents. He stated that the business has been in operation for eight months and they now have data on the average vehicle trips to and from the site. He stated that Monday through Thursday, the peak is 80 vehicles. He stated that on Fridays and Saturdays, that peak goes up to 100. He stated that in comparison, Nova Farms gets upwards of 1,600 vehicle trips on a Saturday. He stated that there clearly is a difference in the volume. Mr. Ayrassian sought confirmation that the business is requesting permission to open on Sundays. Attorney Casey stated yes and on most holidays. He estimated the vehicle trips on Sundays will be similar to those on Saturdays. Cathy Merkle made a motion to amend Condition #11 contained in Decision #5455, as follows: “That the days and hours of operations for the marijuana retail business may only occur Mondays through Saturdays between 9:00 a.m. to 8:00 p.m. That hours of operations on Sundays from 10:00 a.m. to 7:00 p.m. are permitted for a trial period starting January 1, 2023 and ending June 30, 2023. That the owner must return to the Board after June 30, 2023 to request operating hours on Sundays beyond the trial period. That operating hours are prohibited on holidays.” Kent Richards seconded the motion. A discussion followed. All voted in favor. Cathy Merkle made a motion to amend Condition #11 contained in Decision #5456, as follows: “That the days and hours of operations for the marijuana retail business may only occur Mondays through Saturdays between 9:00 a.m. to 8:00 p.m. That hours of operations on Sundays from 10:00 a.m. to 7:00 p.m. are permitted for a trial period starting January 1, 2023 and ending June 30, 2023. That the owner must return to the Board after June 30, 2023 to request operating hours on Sundays beyond the trial period. That operating hours are prohibited on holidays.” Kent Richards seconded the motion. A discussion followed. All voted in favor. Cathy Merkle made a motion to amend Condition #13 contained in Decision #5484, as follows: “That the days and hours of operations for the marijuana retail business may only occur Mondays through Saturdays between 9:00 a.m. to 8:00 p.m. That hours of operations on Sundays from 10:00 a.m. to 7:00 p.m. are permitted for a trial period starting January 1, 2023 and ending June 30, 2023. That the owner must return to the Board after June 30, 2023 to request operating hours on Sundays beyond the trial period. That operating hours are prohibited on holidays.” Kent Richards seconded the motion. A discussion followed. All voted in favor. The Board discussed Case #5649, the application of Mike Johnston for a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–3.1 USE DESIGNATIONS to operate a tattoo studio, the subject premises being located at 200 North Main Street, more specifically a portion of Assessor ’s plat #49, lot #147, located in the General Business zoning district. Cathy Merkle made a motion to grant a special permit pursuant to §17–9.0 SPECIAL PERMITS under §17–3.1 USE DESIGNATIONS to allow the petitioner to operate a tattoo studio business as described herein at 200 North Main Street, as shown on the site plan. Kathy Rautenstrauch seconded the motion. A discussion followed. All voted in favor. The Board attached conditions. The Board discussed Case #5598, the application of City of Attleboro for a special permit pursuant §17–9.0 SPECIAL PERMITS and §17–12.0 FLOOD PLAIN DISTRICT to accommodate work/excavation within the 100–year floodplain in association with the replacement of the Pitas Avenue bridge over the Seven Mile River, the ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 15 subject premises being located on Pitas Avenue, located in the Single Residence –B zoning district and Single Residence –C zoning district. Cathy Merkle made a motion to grant a special permit pursuant to §17–9.0 SPECIAL PERMITS to accommodate work/excavation within the 100–year floodplain in association with the replacement of the Pitas Avenue bridge over the Seven Mile River, as shown on the plan entitled “CITY OF ATTLEBORO DEPARTMENT OF PUBLIC WORKS PLAN AND PROFILE OF PITAS AVENUE BRIDGE”, drawn and engineered by David J. Elwell, R.P.E. of PARE Corp., 8 Blackstone Valley Place, Lincoln, RI 02865, dated July 2022, and revised through November 2022. Kathy Rautenstrauch seconded the motion. A discussion followed. All voted in favor. Cathy Merkle made a motion to grant a special permit pursuant to §17–12.0 FLOOD PLAIN DISTRICT to accommodate work/excavation within the 100–year floodplain in association with the replacement of the Pitas Avenue bridge over the Seven Mile River, as shown on the plan entitled “CITY OF ATTLEBORO DEPARTMENT OF PUBLIC WORKS PLAN AND PROFILE OF PITAS AVENUE BRIDGE”, drawn and engineered by David J. Elwell, R.P.E. of PARE Corp., 8 Blackstone Valley Place, Lincoln, RI 02865, dated July 2022, and revised through November 2022. Kathy Rautenstrauch seconded the motion. The Board attached conditions. Cathy Merkle made a motion to approve the pending minutes of October 27, 2022, November 10, 2022, and December 1, 2022. Kent Richards seconded the motion. All voted in favor to approve the pending minutes. The Board reviewed all remaining correspondence. The meeting adjourned at 10:45 p.m. ZONING BOARD OF APPEALS MINUTES – DECEMBER 15, 2022 PAGE 16