Zoning Board of Appeals

Board of APPEALS 166 Boulder ZONING Drive Fitchburg, Massachusetts MINUTES July 8, 2014 ________________________________________________________________________________ ATTENDANCE: Lauren McNamara Chair, Vincent Pusateri II Co-Chair, Michael McLaughlin, James Concannon-Clerk, Joseph Byrne and Joseph Marrama _________________________________________________________________________________ 1. Call to Order LM Pledge of Allegiance: All 2. Communications: Attendance: LM, VP, JC, 3. Hearings MM, JM & JB 7:00PM ZBA-2014-19 William Walsh 1-3 Prospect Street Overrule the decision of the Building Commissioner LM - Please tell us about your application. Walsh WW – I would like to thank the Board for the opportunity to question the Building Commissioner’s decision or non-decision in my point of view. It is my contention that the ruling of the Building Commissioner that the building (1-3 Prospect St.) is a 2-family located in a residential district is incorrect. I that sounds a little familiar to you, it is because you have had that building before you in the past for a Special Permit. It is a pie shaped building on a small lot bound by Prospect and Mechanic Streets, with no land on either side, no land behind and some grassy area moving up to the intersection of Main, Mechanic and Prospect Streets with a number of sets of lights. It is a very busy area. LM – My understanding after looking thru everything is that you are seeking relief because you believe it is possibly a three or more family residence. WW- That is correct. LM- Do you have evidence to show us that it is more than a 2-family? WW- I believe I do. VP - Everyone is going to agree there is a safety issue but we need to focus on whether it is 2- family or more. WW- Historically the only thing as proof that something has changed is that I have lived on that street for forty years and it has always been a 2-family dwelling. If you recall you had a request for a Special Permit a few years ago to make it a 3-family and the Special Permit was denied. LM- Just to let you know, in other meetings under miscellaneous business we have discussed this particular property because we knew that it was a concern of yours. So, the Board is up to speed on your concerns. WW- It is my contention, and I have addressed Mr. Lanciani, and have stated my concerns to him. I have filled-out three nuisance reports which are written reports, These reports have addressed my concerns about work being done in that building which I believe were not permitted. I have a copy of all the permits issued for the last year or two and none of them address what I believe has gone on in the building. It is a condo unit, it is called Upper Common Condo’s, and it has two condo units. When I spoke to the Commissioner he told me that he treats this as a 2-family dwelling. As a 2-family dwelling he has verbalized to me that there is no restriction of the number of people living in the building. I then asked What if they are not related? When does it become a boarding house? The Commissioner response was that there is no such thing as a boarding house, which I disagree with. One thing is quite evident, we started out with two condo units, the condo units were an answer to the refusal for a Special Permit. The person who bought the building couldn’t get the Special Permit so he did what I thought was a very wise thing. He protected his investment by selling each of the two units as condos. I have a copy of the deed included in my application which confirms that there are two condo’s separately owned and it is not a two family. I guess the issue comes down to the fact that the Building Commissioner has said to me “prove to me it is other than what I say”. We have point to the fact that the two condos would have originally allowed for four parking spaces. Which was adequate. There were not a lot of cars there, there was not alot activity, the neighbors were fine and it seemed like a very amicable situation. We started to see increased traffic on the left side other than the condo. People were coming and going parking their cars there. I do know who lives there, I can give you the names of everybody who lives there. The Commissioner has refused to look into the building or consider any of the evidence that would prove that somebody is circumventing what was accomplished in 2003. The person wanted to put in a third unit, he did the proper thing. He went to the Building Department and applied for a Building Permit. He was denied and referred to the ZBA for a Special Permit which was denied. It appears that we are circumventing this by not having a Special Permit to open up two other sections of the building. You can stonewall anything if you are in the position to, now we have 6-8 cars parked there daily. We know who owns the cars, we know who lives there. In order to accommodate the cars they have taken out a retaining wall that was shown in the original plot plan of 2003 and does not meet the minimum set-backs required. The view has been blocked substantially by doing this. If you are asking me how we prove that somebody’s in there, I guess that the best proof that we have is that people from the Building Department have been in the living are to the left, not the Condo, but the other living area that I consider is there. We have talked to the people that are coming and going that are renting. I don’t what else a citizen can do other than to say that the Building Commissioner knows that it is there, his assistant has been in the left side of the building and for some reason the refuse to acknowledge the fact that there are other people living in the building. If we could establish that one of these tenants are in there that would be a third tenant in the building, which puts the building under a State CMR 110 building code which would require the Building Commissioner to go in and issue an occupancy permit before that unit can be rented. Once it is established that there is a third tenant occupying the portion of the building I believe a Special Permit would be required to make it a legal unit. The owner of the second condo does not nor has he ever lived there, he bought the property for investment. Now we have, no owner, one owner, someone living in one section, two groups of people living in another section of the building. I don’t feel that the Building Commissioner has been cooperative in trying to establish that there is a violation. I think he has been doing the opposite. He has continued to say that this is a 2-family building and is going to continue to treat it as such. I previously mentioned I have on 3-4 different occasions written nuisance complaints. On the nuisance complaint form there is a section called Report of Investigation, I have never received a written response to any of them. Every time I speak to the Commissioner about my concerns I get the same answer. He is treating it as a 2-family. At one point I believe that there was a discussion at a previous ZBA meeting listed as miscellaneous concerning another unit, another kitchen. Does anyone remember? MM- Absolutely, I asked the question? LM- We brought it up under miscellaneous business. The Building Inspector didn’t really comment other than to say that you could have two kitchens in a unit. WW- I have that in my home, but I have not had three different people living in that section of the building in the last 1 ½ years, people that have moved in and moved out. The most recent was Mr. Peter Bryant who moved in on a Sunday. LM- Do you have any affidavits from people who say they live in or have lived in the unit in question? WW- We could try to get them, obviously they would not be there much longer as they may get evicted for doing so. They like where they are living. We do know how much mail is being delivered, how many cars are parked on the property, I don’t know how much more I can do as I private citizen other than to provide the information I have. Again, I would like to point out that if indeed there is a third unit there that the Commissioner is required by State statute to certify that unit and come up with an occupancy permit. I find it disconcerting that you are treated pretty unprofessionally and told to prove to him that something is going on in that building. I think there should be some effort on the part of the City, at the very least the two owners of the condos should be notified that if either of them has done anything or have any intentions to do anything to cut this building up, a Special Permit is required. I know there are some legalities as far as getting into the building, however if the determination is that there is three units they are obligated under the Code to go in and look. The Assessor’s Department have tried to get into the building, with no success. I guess that’s my case, legally it is two condos, the Commissioner has stated that he does not care about what the Registry of Deeds paperwork. I feel that what I have obtained from the Registry of Deeds are legal documents and should not be ignored. The Commissioner told me he has nothing to do with that. I think that he does, there is a portion which I pointed out Article 10 in the Deed has a restriction on the two original units. The restriction states that they are to be owner occupied and not to be sub-let. Mr. Walsh then reads a list of people that occupy the building which do not appear to be owners. LM- Have any of these people indicated that they live in the unit or have a roommate situation? WW- Refers to the list of occupants he has obtained and explains the roommate situation as he believes it to be. MM- Do you have the names of people receiving mail at that address? WW- Yes MM- Do you anything from the Post Office? WW- I can get it if you would like. Do you want it? MM- We would like to see it. LM- Does it specify Right Rear, Left Rear, Unit 1,2,3? WW- I’m not sure how it specifies. But I can find out. I feel that it is the Building Commissioner’s duty to try and prove or disprove a claim, not just to say to a citizen show me. I don’t have a personal vendetta against anybody, I just think that when somebody has a complaint that it should be addressed professionally. I think that if the complaint is in writing that the response should be in writing. I’ve gone through all the permits for this building and there are no plumbing permits. I do know there has been plumbing work and other work that I believe that was not permitted. LM- I am going to open it up to the audience and take new information anyone might have. We would like just new information, please do not repeat what has already been discussed. Those Seeking Information: None Those Opposed: None Those in Favor: Gloria Spadaro-Chestnut Street Beth Chandonait-42 Arlington St. GS- I live @ 18 Chestnut St. I lived there for 53 years and I’m very familiar with that building (1-3 Prospect) because I walk almost on a daily basis. I saw John Moran and questioned him on the building. He has been in the house on the left side of the property and when asked if there was a kitchen he replied was, yes there was a kitchen, I asked him the intent, John replied that he did not know. He said that we call it rooms, but it’s really an apartment. So I took the liberty of calling the restoration people, I happen to know them. I asked about the apartment on the left side. He told me it was a tremendous apt., it’s private. I happened to know the person who lived there 2 years ago, he was not related. I’ve had a conversation with the people who lived on the right hand side. We both walk our dogs. I asked him how it was going with the apartment. He replied that it was beautiful and told me we have two separate apartments. I asked about the cars and he replied that there were plenty of spaces. GS- Perhaps this isn’t very relevant, but it’s very relevant to me, I’m here for safety. I was at the previous meeting held in 2003 and I thought that the ZBA was very fair. I challenge that it is a 2 apartment, because I do not believe that there is another 2-family building in this city that has a tax bill for each apartment sent separately. The ZBA rightfully and fairly allotted 2 cars per unit, it worked out well. They also mandated a condition of the curb-cut, they mandated on the six points of an official curb one of which is the granite which the city technically owns on the street side must always be returned to the yard. So they made a concession, the concession being that because of the heavy volume of traffic and the curb cut barely meeting the specifications was that they would take the granite curb stones and place them horizontally across the way and used the term berm barrier. The berm barrier was designed so that cars could not nose toward the front. Last Spring I was walking and was in disbelief when I saw the owners of the property had 2 people with crowbars turning the granite over and over moving them forward, I believe this to be unlawful. During the 7/4/13 weekend the late Henry Burnham had daily photos of this situation because of the safety, he was devoted to this project as he traveled by there about 4 times a day. During this weekend the DPW moved the curb to its proper place. It was in direct line with 50 ft. where the no parking to the corner was. When all the dust started to fly approx. a year ago I called the DPW Engineering Dept. and spoke with Gary B. and asked that he pull the original work order for the curb cut. A week later Mr. Laakso called and told me that the requested work order had been lifted. No trace of it was to be found. LM – Anyone else with information? Beth Chandonait of 42 Arlington Street – I travel that intersection many times a day. I am also concerned about the situation concerning the curb cuts due to safety concerns. I don’t understand how this is allowed. LM to WW – Have you spoken to the Police Department about your safety concerns? WW- We have called multiple times and left multiple messages, the Police Department has been non responsive to all. I was told by a member of the Building Dept. early on that the owner of the condo on the right is a member of the Fitchburg Police Department. LM – At this point I would like to hear from the Building Commissioner with respect to this petition. BC- I have received several queries about the building at 1-3 Prospect Street. Unit #3 Prospect Street is owned by a couple, their primary residence is in England, they use this as a residence for part of the year. They did have a roommate that was living there year-round, he no longer lives there. That is a single unit even though they have a boarder, a tenant, a co-renter, whatever you want to call it. Last year the Massachusetts State Supreme Court in a ruling in Worcester said that non-traditional families, which is what 1-3 Prospect probably would be considered, it’s an apartment rented to a number of people, they live in it as a unit. LM- According to the Condominium rules and regulations, each unit will and shall be owned occupied. BC- That’s if either one of the Condo Owners has an issue with the way the other Owner is using it they can have a Condo meeting and resolve it. That is not a Building Commissioner issue, it is an issue between the two owners. The Condo Association can hold a meeting and discuss it until they get tired of it. We have been in it, there are two people living in it, you can call it anything you want. A single family house, as you know in Real Estate, you are allowed to have more than one kitchen. And it is still considered a single family house as long as there are certain facets to the house that comply with the building codes. That unit complies with the Building Code as a single unit. Call it a condo, call it whatever you like. LM – So, you are saying that there are two people living there and one on the other side. BC- No, there are two people living at #3 Prospect Street. The owner of #1 Prospect Street, which is the other condo unit, there are two condo units in this house. In Massachusetts two condo units is considered a two family house. Or it is considered a two single family house. This house was originally built as one structure, it has common walls. The building by building code is a two family house. Unit #1 Prospect Street is an apartment, it is shared by multiple people, MA State Supreme Court states that is allowed without interference, I have no right to go in there. We have discussed this with the City Solicitor and the Assistant City Solicitor. I have no just cause to go before a Judge and request a search warrant to go into that house and prove it otherwise. LM- How many parking spots can be allowed? BC- A one and two family house in Fitchburg can have as many as they would like. LM- What about the movement of the berm? BC- That’s a different property all together, that is a Mechanic Street address and it is not a Building Dept. issue. They were issued a curb cut by the DPW. The owner of #1 Prospect Street has said that he rents it out to a family. In MA you can have 7 college kids that drink together all day long living in an apartment, they share a kitchen, a bathroom, share housing arrangements and it is considered a non- traditional family. It can be 3,4,5,7, 10 unrelated people, the Supreme Court last summer decided that Building Departments have no jurisdiction over non-traditional families. They call themselves a unit, therefore by M.G.L. they are a family unit living in one apartment. I can’t touch it, it’s frustrating that we have them all over the City. I have to respect the Supreme Court decision and say that this is a two family house. LM- With respect to the comment by Ms. Spadaro that one of the city’s Building Inspector’s had said that he has been in the building, and that perhaps has noticed that it could be more than two units. BC- I’m not sure which Building Inspector has said that. John and Bentley have both been in there for inspections and neither one has even told me that it was multiple apartments. They have been in #3, the owner lives there for a part of the year and until recently has had a boarder, it has two kitchens but by building code it is one unit. Because of the constant issues they have chosen not to any longer have a roommate. Now there is only the husband and wife living there because of all the questioning of who is pulling in the driveway and everything else. LM- You mentioned the City Solicitor and the Assistant City Solicitor has given you guidance on this matter. What is their firm belief on this matter? BC- It is his (Attorney Mark Goldstein) firm belief is that we are correct in assuming that this is a two family house. Also, that I have no just cause to go before a Judge and ask for a search warrant to enter #1 Prospect Street at this time. LM- Did he say what would give you just cause? BC- No reply – LM- If we were to ask Mr. Walsh to get affidavits from them proving that they live there BC- It’s allowed, people can live in an apartment in this country. LM- So Mr. Goldstein is saying that there is no just cause? BC- That is correct. LM- Did he say on what grounds there would be? BC- No he did not. We have reviewed what has gone on there, the number of calls the City has received to the different Departments about this, observations we have made when we have been there, all the documentation that you have before you and said that he had no recourse except to say that this is a two family house. I have upheld the building code and by State Law anybody can appeal the decision of the Building Commissioner to the Zoning Board of Appeals. I believe that Mr. Goldstein has said that there are no grounds for overturning it unless someone can show very clearly how one of those units has been physically sub-divided into multiple units. WW- I have has a number of conversations and have been told repeatedly that you and your staff have not been in that house BC- Unit #1 ? WW – Yes. You have said repeatedly that you had no reason to enter that house and have not entered that house. You have just said that three separate people have entered that house. I still believe that it has been sub-divided, if you are going to call them three guests on that side of the house or guests living with them on that side of the house. They have had three separate individuals in the last year and a half. I call that an apartment. What you are saying is that we don’t have any zoning rules, we don’t have any Special Permit rules, we don’t have any rules. BC- M.G.L. and the Supreme Court has said unlimited number of people are allowed to live as a family unit. If all of us decided to rent an apartment and move in together and next Saturday someone moved out and we replaced that person with someone else to help pay the rent, this person would then be part of our non-traditional family. The Supreme Court has said that we have to leave those people alone. I don’t feel like I want to put the City of Fitchburg in a position where we are financially beholding to the people that own that house. These people are going to be allowed to live there by our decision. One you uphold my decision, because there is no preponderance of evidence to show otherwise the applicant has the right to go to Superior Court and ask a Superior Court Judge to issue a warrant for some reason or ask a Judge to overturn our decision. That is the legal process in Massachusetts. WW- So based on that there really is no zoning in Fitchburg. LM- I honestly did not see how this fit under our (ZBA) jurisdiction. Opened to the Board: VP – So if I’m listening to these people and they are telling me that they have heard (correct me if I’m mistaken) that we call these separate rooms, but there was some kind of separation inside one of these two units and that separation includes a kitchen are we starting to approach a line where we can establish a second apartment there? BC- Unit #3 owned by Ann and her husband had a building permit, they added a second kitchen, they also added a deck. VP- When they did that did they also add partitions inside the house that would give provide additionally privacy towards that area of the house that might at least get us a step closer to calling it a second apartment? BC- I do not know of any other partitions that were built. LM- But does that give you access to the property? BC- That is #3 Prospect Street. That is the building occupied by Ann and her husband. As soon as she comes back from England, she will give me permission to enter hers. That is a single family home with a husband and wife living there with two kitchens and I believe there are three bedrooms. There is a bedroom that their co-tenant lived in and there were two bedrooms that they used. There is also multiple living rooms and sitting rooms that they used. They have decided they are tired of all that is going on and to live there without any roommates. VP- When you are saying to us that there can be an unlimited number of people staying there. Is there some point where the State Sanitary Code says only so many sq. ft. per occupant? Yes, the State Sanitary Code requires 70 sq. ft. of living space, 120 sq. ft. for the first person, 70 sq. ft. thereafter. If they bring in several more people we are still well below the number allowed by the sanitary code. If they go over 16 people there is a possibility that the Fire Department could look at whether they are required to sprinkle the building. But if they call themselves a family, and it is one unit that’s a long uphill battle in court and I do not think that the City would win. Who is the contractor that did the renovation in the kitchen? BC- I would have to look that up, we have that information in our files. VP- Madame Chairwoman, I was just looking up the statute as to whether we have the ability to summons people to supply us testimony. We are hearing what people are saying around town, but that might not be sufficient evidence to establish a finding as to what is going on. So we do have the ability to summons witnesses and documents, you have the authority to do that. LM- Is that something that we want to do? Or do we want to send this to the court system? VP- It is something that we have the opportunity to do for citizens bringing complaints in front of the Board. It is something that we can do, the Building Commissioner cannot. We can summons in witnesses and have them testify in front of the Board. In that is something that we decide might be in line with disposing of this case appropriately, then perhaps there might be some information that we might be able to help people. LM- My question is whether it is our responsibility as a Board to prove, is it under our jurisdiction? VP- I think that it is somewhat our responsibility to conduct a fair hearing to permit us to gain as much information so we can make a factual finding. LM- Every other petitioner in any case that we hear, it is their obligation to provide us with as much information then they do their due diligence providing us the information and then we make a decision based on that. VP- M.G.L. does provide that the Chairman may administer oaths, summon witnesses or call for the production of papers. That would be your decision. I would think that if we have testimony saying that Mr.____ told me there was a contractor doing renovations and that these renovations are separate rooms but not a separate apartment in such a manner that there might be at least a probable cause to believe that there is a second apartment in there. I think you have to think of that. Is there some evidence to believe that there is a second apartment in there? LM- Well, there certainly is. VP- If we look at this enforcement action in our manual it states that the Building Commissioner is requested in writing to enforce this chapter against any person allegedly in violation, and if the Commissioner declines, the Commissioner shall notify refusal to act upon a majority vote of the City Council. The Building Commissioner shall institute appropriate legal proceedings to enforce the provisions. Are we at the right place? Should we go to City Council? BC- It can go wherever you like. I received several complaints about this address, the city paperwork, the city code requires the request to include a $30.00 fee which we did not charge, If a have to do a site visit it requires an additional charge of $50.00 which we did not charge. We had been there and we know what is going on. The owner of #3 Prospect Street are in England right now and are not coming back until September or October, when they get back the entire ZBA would like to visit her I am sure that she would be willing to let the Board members in to her apartment. WW- You are saying that she asked for a building permit to do some renovations in that apartment. In the case back in 2003, the request to do work in that apartment triggered a need to apply for a Special Permit due to the zoning of that building. The ZBA denied that application. I would like to ask the Building Commissioner why he didn’t require this woman to ask for a Special Permit to do more work, extensive work to create another living space in the building. I think it’s a bigger issue than just this building. If you are not going to require a Special Permit when someone is trying to convert portions of a building over that’s going to create a big problem for the whole City. If you are going to take and put as many people as you want into any building, which I think is happening now in the City of Fitchburg, I’m guaranteed that it’s happing now that I heard from the Building Commissioner that there is no such thing as apartment houses, they are all rooming houses. That’s my impression as a citizen. BC- No one applied for a building permit to sub-divide into multiple units, they asked for a permit to do work within their unit. That does not require a Special Permit from the ZBA, Planning Board, or the City Council. BC- In a one or two family the owner occupants can do their own work. LM- If we are all leaning towards having them come back, maybe working on some affidavits we can have the Building Commissioner provide anyone who was involved with any of the property renovations and such. VP- We can continue this for a month or two. We can look at the file for the property, and if you feel that someone would have relevant information, we could subpoena them to come in. LM- I am going to give the members a chance to ask questions if they would like. JC- Mr. Lanciani, in your discussion you referenced Unit #3 several times. In all the documentation before us I see unit #1 and Unit #2 I do not see a Unit #3. BC- The building is called 1-3 Prospect Street because it is on the odd numbered side of the street. City Engineers has called one of the units Unit #1 and the other Unit #3. The deed define them as Unit #1 and Unit #2. MM- I would like to start with the safety issues. I think it would be wise for us as a Board to request of the Police Department the appropriate contact in writing in regards of what is proper in regards to safety issues with the lights. I think that we should also see if there is any disability act information in regards to safe and proper travel for somebody in a wheelchair. I would like see if the Building Commissioner would do the leg work for us with regards to when it became two condo units, there was a specification as to where the granite was to be placed for safety reasons and recently the granite has been moved closer to the intersection. We need to know if that granite has a specific condition on its’ set-back and if it needs to be put back to its’ original location based on the plan approved for the condos’. Is that something you could answer for us Commissioner? BC- I could if you would like. There’s no requirement because it’s a two family house. You had considered a conversion to three family, you had put stipulations on where the granite could be as part of the discussions you had. You then denied the variance. You told them it could be there if you were to grant it, then you did not grant it. The granite can go all kinds of places. By Fitchburg zoning it has to be 20 feet back from the intersection of the two ways or if it is more than 3 feet in height and less than 8 feet in height from the road grade and not less than 20 feet from the corner. To the best of my knowledge it is not less than 20 feet from the corner. LM- But the Police Department could deem this a safety issue? BC- There are State roads that are part of that intersection and City roads that are also a part of that intersection. MM – Who would be the appropriate department to answer the questions that I have? BC- I think that you need to go to the Mass. Highway to ask them if they have any issues, you need to go to Engineering to see if the DPW has any issues, also the Police Department if there are any issues that they have. If it meets highway standards, which is Mass. Highway and City of Fitchburg DPW have those standards. LM- This is where I have a concern, he is before us whether or not this is a two or three family home. MM – That is correct. But I want to go back to where this Board has some history with this property. If there is something that is not being adhered to I would like to rectify any issues. MM- At the last meeting, we had some informal conversation and I had asked about the kitchen on the left side. You had mentioned to me or the board that the kitchen was already there on your visit. But now you are saying they pulled a permit to put the kitchen in. Was the kitchen there prior to your visit? BC – I would have to get the file to get exact dates. I have not been in the entire apartment. I have not been in either apartment. The Unit #1 Prospect Street has declined our request. Unit #3 I have not been in. MM- At the last meeting you indicated that you have been in there. BC- No, I indicated that I had spoken to the owner and had inspectors in there. MM- Alright, I can move past that. MM – You said that M.G.L. states that this is an ok thing. From what I know M.G.L. has not changed in years. BC- What I said was that the Supreme Court last summer ruled. MM- Do you know the case number? BC- We can get that in writing for you. Because it is the Judge that sits in Leominster and would hear this. MM- Back to 2003 the applicant at that time Mark Shoemaker indicated that on the right side there is two kitchens, making the total number of kitchens four. Just to comment. What really concerns me is what we are being told about this unconventional family thing. The Fitchburg by-laws speak to a boarding house, a dwelling or part thereof in which lodging is provided by the owner or operator to at least three but not more than six boarders. At this point, I cannot say for sure how many people live there but if it is three or more I would consider it a boarding house. Again, just a comment. I am also concerned that we have a by-law for people that own a single family home that want to share the burden of home ownership and it is called an accessory apartment. Now seeing multiple cases over the last ten years with regards to an accessory apartment I would think that the proper path that the city would take when somebody would say “I want to add a second kitchen and put a deck on because I’m going to have a renter on my property” That maybe it should have triggered an application for an accessory apartment. I’m concerned as a resident that you can add kitchens and rent to whoever you want I believe we are going to have problems. It’s already a problem, basically if that’s what we are telling everybody that comes into the City it will mushroom. The question is what’s the intent? I would look at it and say if someone owns a home on a lake and they have a bottom floor that’s finished and they want to add a kitchen so that they can entertain, we can see what that use is going to be. When somebody has a larger unit that is useful to them and they want to add a second kitchen, what’s the intent? What precedent are we setting in the City of Fitchburg? BC- We are not as a Building Department going out and telling people to do what they want. If someone comes in and asks for a permit to put a deck on their house I don’t then say immediately that “maybe they are doing something nefarious here”. I hold an open mind. MM- What’s the intent? BC- They are putting on a deck, adding a kitchen. MM- Does it matter what’s the use? BC- Let’s go back to one of your other questions. A boarding house is very different than a non- traditional family. The Supreme Court has set some very clear differences, most communities in Mass. Have not got their zoning ordinances to catch up to what the Supreme Court did last summer. It’s a tenuous process to change our zoning, but a boarding house example would be considered when each boarder would have a room which only they would have access to, other common areas such as the kitchens, bathrooms, living rooms, would be accessible to all. The Supreme Court has said that if Joe says to a group of people here is the apartment and they all move in, they all sign the lease, you sort out amongst yourself who lives in what room. That is a non-traditional family unit, allowed Joe let them in have a great day. MM- Is that the case on Unit #1? BC- Unit #1 the owner has rented the entire apartment to an unknown number of renters. I doesn’t matter based on the Supreme Court decision. The intent at the time the building permit was issued for Unit #3 for the kitchen, did we know what the intent was? BC- Yes, the intent was to allow the border, which was on the third floor to get up and have supper and not have to sit at the kitchen table with the owners she could make a meal for herself up there. MM- For example, my mother is getting older, she is going to move into my house, I’m going to put a kitchen, bathroom, bedroom and living area for her. BC- And you are going to access to every room other than her bedroom, and she will have access to all of your rooms except your bedroom? MM-Yes BC-That’s a single family house. MM- Not according to the accessory apartment guidelines. It meets the guidelines exactly. So, we have a problem. BC- I’m not saying our zoning is perfect. MM- What you are saying is it is incorrect. BC- No, ours says that it has an accessory apartment ours does not that it has unfettered access into the Landlords apartment. MM- There has to be access between both units? BC- Unfettered access throughout both units. I don’t believe I’ve ever read it to be that way. You can put in an accessory apartment where it does not look like a separate apartment from the outside, there are multiple accessory apartments where it is very discreet, one person lives in there, there are some people have their parent live in a separate apartment that is a separate apartment. JB- I looked at the proposal for the Shoemaker Special Permit I never saw a plot plan for parking. Every time someone comes in here for anything, we ask for a plot plan for parking, so now we have all kinds of people in this building with very little parking. If you look at the property it has very little room for parking, then we have the curb-cut where people have to drive through that property to get out onto the street. How was this allowed without any plot plans or anything? LM- No one says it is allowed, it is just happening. BC- On a one or two family house the zoning does not address the parking. JM- The question that sticks with me is, was it created into another unit? What decides that it is a two unit? If it has become that then we go back to 2003 and this is where the problem started. There should have been some type of a parking plan. I want to know if it is really one unit or two. We have a problem and I believe somebody did something wrong. WW- You do have a copy of the deed. On the deed it shows it as two condos and also tells how much parking each condo has. The Commissioners interpretation is the deed doesn’t mean anything, I guess we don’t need as many Lawyers, we don’t need Real Estate Broker’s, I always thought that the deed is stamped, certified and the Building Inspector does not have the authority to change two condos into a two family. Two condos pay separate taxes. A two family does not pay a separate tax bill for each apartment. On the question of parking that Joe brought up, I went to the Department of Transportation, there is an erroneous statement being made that the State has something to do with that intersection, t does not. The State road ends at the roundabout on John Fitch Highway and the City takes over the road up Mechanic Street and all the way out to the other intersection of Route 31 and the State takes over again. Their engineer told me that if that were a State road the set-back from the light would be 50 Ft. That would mean if you were parking in that parking lot you had to be 50 Ft. back. According to my research the City Code 157 Section 100-60-62 requires 57 Ft. from the center of Mechanic Street. If you go 57 Ft. from the center of Mechanic Street you come a lot further into that yard than where that wall is. And would shorten the parking area considerably. LM- Can I ask what your ultimate goal is at this juncture? WW- I think the two condo owners should be notified that they have to file for Special Permits and come to this Board to see if they are allowed to build or convert just like in 2003. Go back to the criteria that they used for the Special Permit that talks about density, congestion, all kinds of issues. The other part is the public safety and parking. MM- Just a comment to the Commissioner. What happens here is, what is the intent, and what precedent have we set down the road if this person decides to sell the property. The Real Estate Agent is going to list it as a dwelling with two kitchens, anyone interested to purchase and maximize their financial gain is going to make it two units. The parking will continue to be a problem, and there will be two units. I have seen this in the past, other cases in the City where the Building Department have discovered illegal apartments, they come before the ZBA, we have denied them and they are still being used. Nobody is ever going to go in there and take that kitchen out. What is the intent and what is the opportunity for the next owner? That is what concerns me both as a resident and a Board member. LM- Any more questions? We will close and deliberate. Hearing Closed: Deliberations: VP- We have an opportunity to look at it more closely than the Building Commissioner does because of that statutory citation I showed you. He is probably correct to say he can’t kick in the front door and say I want to look at your doors to see if they are locked and to see if one part is separate from the other. I think that the question you have to decide whether you want to at this point do some due diligence and determine whether or not we want to subpoena, maybe take a look at the public records in the Building Department and take a look at this curb-cut file to see if something is missing from it and see if it does have any bearing on whether it is a two or three family unit. We also had comments about statements made from one person to another and the person that made the original statement may be the person you may want to come to the hearing on the continued date. You could summons that person put him under oath pursuant to the statute and ask questions about the use of that property. It would be a fair hearing, it would be a public hearing not interfering with anybody’s rights. Then based on the evidence heard we would vote to make findings of fact. LM- How am I to know who to summon? VP- You would ask your petitioner to supply a list of names of potential witnesses and use your good discretion as to who you would summons. Mr. Walsh has indicated that he has a list of occupants living at the property, those persons would be relevant witnesses. We could make a decision for a continuance based on a suspension of the clock and based on the petitioner’s or any interested party supplying you with persons or documents that would be relevant to the inquiry whether or not there is a zoning violation. JC- I agree what Vinny is talking about. I recall that when Mr. Shoemaker was here in 2003 he tried to get us to believe that it was originally a 5 unit house. I think that it is a building that when it sells, as Mike had mentioned, there is a potential for it to go downhill real quick. I think we should continue this case and hopefully get some more information. VP- I think you could without having a quorum establish a sub-committee for the purpose of identifying what you would like to have done in connection with additional documents or witnesses. You would probably be wise to do that, then it wouldn’t be solely your responsibility to figure this out. JC-In 2003 we talked about how this property is in a prime location in the City. I go by the house and see all the cars and hear people talk about safety issues I am concerned. MM- Again what is the intent? I try to be observant, I walked the property today I lost count of how many cable lines are going into the building it’s not two. It wouldn’t be a concern about public safety if the berm didn’t get moved to allow for more parking. There is expansion taking place. It’s obvious that room is being made for a larger crowd of people. I would like to ask some questions of some of the appropriate department heads about the safety issues. LM- Would you like to be on that sub-committee? MM- I don’t think it’s a sub-committee I think it’s the Board. I would be happy to do some leg work if need be. I think it has been a long night and maybe we need to continue this for discussion at the next meeting. JM- I agree with Mike I think it’s been a long night and we have a lot of information to process. Everybody made valid points, there is a lot to process moving the property lines I definitely to be a problem. JB- There have been so many times we have said “how come there is no enforcement”. Why can’t we get this done? This is the time for us to set a precedent, to take a stand and we are going to do it the right way. We are going to enforce the decision the Board makes upon completion of this petition. The way people are talking, somebody is going to be seriously injured at which point we will turn around and say to ourselves that we had the opportunity and didn’t do anything. I believe we should continue and look at this, maybe start a sub-committee of people who have the time to work on this. LM- I am open and willing to move ahead to continue this for two months. VP- I make a motion to continue for two months and I would like the following conditions to be satisfied and want the petitioner to execute any document necessary to suspend the running of the clock so that we would not inadvertently violate any time standards, I would like the petitioner to meet with individuals and provide a list of names and addresses of persons and a short paragraph as to what type of information the person would be able to supply to the Chairperson if he were to be subpoenaed. I would like that to be completed in fourteen days. I would also like the Chair to appoint a sub-committee of three people who if any subpoenas were issued, to collect further information to support a finding of a violation or to dispose of the suspicion of a violation. LM – You did say two months to reconvene? We can put it under miscellaneous for the ZBA Meeting August 12, 2014. We will reconvene the discussion on ZBA 2014-19 on September 9, 2014 @ 7:00 P.M. and schedule it for two hours. That was in the form of a motion, is there a second? JC- Second LM- All those in favor - All – All those opposed- None Mr. Walsh and LM signed the extension of time. 7:15PM ZBA-2014-16 Matthew Billet & Patria Brown 0 Allen Place & 0 Cleghorn Street Variance under §181.96 to construct a Single family dwelling having 61.14’ of frontage, 5583 sf of area and leaving 23’ to the front property line and 6.2’ on the sides located in the Residential C District at 51/26/0 and 51/23/0 Ms. Brown- I am proposing a single family home in the same two lots that I previously discussed for a two family house. JC- I believe that we continued this petition predominately because of the 8 ft. wide pass-way and the elevation going up towards Allen Place. LM- Lois, could you get the decision specific to this case? LO- Yes, I’ll be back in a few minutes. MM- While we are waiting for Lois to come back I would like to make a motion to pause here and take the next two cases on the agenda, they are reviews and should be brief, and place ZBA 2014-16 Is that agreeable to you Ms. Brown? Ms. Brown – Yes LM-Is there a second? JB – All those in favor – ALL Continued: LM- Ms. Brown what is the status in respect to the easement and the cow path? That does not exist in essence, it is only on the map everything is continuous. It is only on the map that a barrier exists. In the land, nothing exists in there, so it stays the same. I tried to remove it, but everyone has to sign on it and the first person I approached did not want to sign it. It didn’t make sense to approach the rest. VP- That half other than being a unique structure on the property may be supporting the variance for dimensional purposes is irrelevant to me and if she want to at her own peril build in such a manner that wouldn’t interfere with that path then she can take it up with the persons that own the easement which in my opinion has been extinguished by non-use. LM- Are you actually planning to build or are you selling the land as a buildable lot? Ms. Brown – I might do this project, might.. LM- I thought before that you had said that you just wanted to make it a single family building lot and that you were maybe going to sell that off. Ms. Brown- Yes, probably, who knows? I want the permit for the land to be useful. Now it is not. It will be useful for me, for the land, and for the City. We need some little project like this to accommodate good working people. People that want to live in a nice house and make a living here, people are leaving the City. LM- My confidence is in you building this project. I don’t know who the project is going to. The Building Inspector was there they are the one that had the confidence, every single step will be taken properly. It took me 13 years to produce 9 Dumas St. I bought 28 Martel beside that there used to be full of debris, I cleaned it. Then I bought more and cleaned it. MM- The first question was our request for fill, did you talk to the Building Commissioner about the dimensional area? Ms. Brown- No VP-Reading from the June ZBA minutes reminds Ms. Brown that she was asked to do so. He also reads the information including the reasons that the Board believes she is in need of four variances. You are requesting one variances for the front yard set-backs. When Mr. McLaughlin ran the June ZBA meeting he identified four different dimensions for which you would need variances. I think that if these four areas are deficient because this is less than we need I think it will still be a good project. VP- So if we determine that you need relief on four different dimensions that is what you will be asking for? Ms. Brown- That would be fine. LM- So the Building Commissioner did not speak with you on this at all? MM- The Board asked her to go, I believe there was a breakdown in communication for whatever reason. LM- Should we ask again for that to happen, or should we just be moving ahead? VP- Mike is there a letter from the Commissioner saying that only one relief is needed? MM- I says that it is your intent to construct a single family house on an undersized lot with less than the minimum frontage and will not meet front, side or rear set-backs additionally it appears that you will be using only part of the property that you own. VP- Because it is split by this goat path. VP- Does the petition only ask for the front yard set-back? MM- The application is to grant a Variance under §181.96. They are asking for a variance. My thinking is that if we have an area dimension issue, frontage dimension issue, a front yard set-back dimension issue and a side set-back dimension issue that I am going to receive this application as an application on all four of those. This doesn’t even meet the criteria of an in-fill lot. Ms. Brown- refers to the plot plan and refers to neighboring lots, this lot in here was torn down, they owe about $50,000 to the City for back taxes and demolition, this one here is a little one that the owner continues paying taxes on and that will need a ton of legal paperwork to get that clean. He will sell it to me if I pay for the legal work. Yeah, sure. VP- So is there one lot next to it that currently has no building on it right now? Ms. Brown – No, nothing is going to happen. VP- When we go up and look at this lot what are we looking at? Ms. Brown- You are looking at four lots. VP- And you only have two of them. Ms. Brown- That is correct I have just two. LM- I think she needs more to the puzzle. Ms. Brown- Having these difficulties in here for having the neighborhood as it exists I know you have some paperwork and some numbers and so on. This would still be a good project. I would prefer to have the two-family because I think that it would be much better than this one. But I need to be 25 ft. back. My neighbor doesn’t have hardly any space any place, but I have to have a new model bringing it into an old neighborhood that in reality I don’t think it is the best use of that land. MM- Who owns the cobblestone wall next to Conlins building? Ms. Brown- Nobody MM- What do you mean nobody? Either he owns it or you own it. S. Brown- In here the building ends there, that is a path. MM- There is another path there. Ms. Brown- That is a path of 8 ft. that somebody extended the building into that 8 ft., it seems to be the bowling alley building, not Conlins. Conlins is skinny the bowling alley is big he has I think an entrance there in the back. MM- Here is my concern. #1 Four variances, I envision this lot if it was flat, now this is my issue. We don’t have a plan, it’s close to a cliff, so you sell it and a developer goes in there and it’s bare bones, stripped down on bag of grass seed, the cheapest house and he moves on. Then we have a rain storm like we had yesterday and half of the property ends up on the street. Where is the precaution? If I had some true insurances that a project was going to be done correctly and seen through and we had the ability to put conditions on it that would be adhered to. I need plans of what is actually going to be put there. LM- We don’t know who it is going to be. MM- Exactly. Ms. Brown – If you see the next house how they put it right into the back, into the mountain. MM- I don’t have a plan in front of me that says this is the driveway, here is the retaining wall, here is a plan for the drainage, I don’t have that. I don’t expect you to do it because you don’t have a buyer. Ms. Brown- I don’t have to go into the construction details, that will be the building department, we are discussing here, as far as I understand the appropriateness of this footprint in that lot. LM- Let me clear this up for you. We put conditions on properties when they are being built, as to speak to the drainage, the elevation, the lay of the land, we usually have a chance to look at all of those aspects and put conditions on that property. Right now we don’t have anything to reference so we can do that. Ms. Brown- The other building is developed, the first portion of the building is into the back, the second one then comes to the level of the building lot. LM- I understand, but we need to be able to set conditions on what we want to see. We can’t just say that we want it to be like something else. Ms. Brown- If you have difficulty looking at the way the project is going to be developed it is right there into the mountain. LM- I don’t have a problem understanding the concept of it. We need to be able to put it to paper so that it can be adhered to and the conditions we make would be followed. VP- The easiest way for us to do that, is by having a plan. If we have a well-drawn out plan about that building on this lot and we see the both of them together with the elevation and the rear part of the building being a retaining wall, drainage issues and we see a plan. I think maybe this case is like the Pacific St. case. I believe in that case we had a plan about retaining walls, drainage issues and plantings. JC- It was a massive retaining wall that was put in. VP- It was still a problem in retrospect. MS. Brown- I don’t see why you want a retaining wall, there used to be a house right there and there was no retaining wall, the next house has no retaining wall. VP- But there needs to be one in your lot. If we don’t build one and that two-family were to be built on that lot the two-family house would be the retaining wall because that back wall would hold the rest of that hill up. If we build a on family and have some side yard set-backs we would need a retaining wall. LM- I would like to speak up at this point. I don’t want Ms. Brown to be chasing all sorts of things, I am not in favor of it on this size lot, and have not been in favor of any of the others. VP- I make a motion to approve this application for a variance. MM- We need to follow procedure and close to deliberate. LM- Let’s close and deliberate. Hearing Closed: Deliberations: VP- I don’t think there is anything to say other that what we have already said. JC- I defer. MM- I have the utmost respect for you Ms. Brown, you are asking for four different variances for the lot, I understand what you are trying to do and if it was a flat lot I could take a look at it, but due to all the complications that the potential homeowner and City could end up with I can’t look at it favorably. MM- I’m still not too hot on that lot. On the whole process. I know that Ms. Brown is talking about the houses that are there. That was then and this is now. I appreciate what you are trying to do, it’s a beautiful thing. Sometimes we just take on things that we need to let go. That’s my thought on it. JB- If we don’t act on this and we let this go we are letting a chance for having something done in the City that’s nothing more than a scar, if we let this just sit it will sit there for years and years and nothing is going to be done with it. It’s just going to be an empty lot full of debris and garbage. I said before that we should check on the cow path so at least we can move the house back and get this stuff done. Pat just brought out a right point, she says that everything else around it is done in old construction, old ways, sits right on postage stamp lots and we are going to put a new joint right in the middle of it. A new place with all new constraints on it, it’s going to look totally out of place. I’m all for Ms. Brown doing something in that spot. MM- The future could be that those two severely undersized lots combined and then she makes a monopoly and can put all this together and actually have the area that she needs. Right now she needs four variances. JB- The only reason she need them is because of the cow path. LM- No, not just because of that. VP-I would like to add that I do a commute into Cambridge once or twice a month and once you hit the City out there you have house after house after house and in my mind if all of a sudden I drove by one tiny little house that met all the set-backs and everything I would say to myself, that looks a little weird. Why would all of a sudden have this row of buildings and here that’s because somebody decided we need to comply with set-backs that came in well after the fact of that whole area being developed. LM- I agree with you. VP- My second thought is perhaps, and we are receiving information that we have a lot on our tax rolls that we are owed $50,000 for, why hasn’t it gone into tax title? If this lot that is right next door that has no building on it owes $50, 000 how come we have not gone to land court on it and taken that lot and sold it to someone like Ms. Brown who is going to do a great job with it? LM- I think that what you are trying to do is a great thing but we have got to the point where there are so many variances needed, we are looking at four variance right now which is a lot. Many people have a hard time just getting one and you are asking for four. It’s a lot to ask for. MM- Don’t get discouraged. Vote was taken – VP- Approve, MM- Opposed, LM-Opposed, JC-Opposed, JB-Abstain, JM- Alternate No vote Motion did not carry, not approved. 7:30 PM ZBA-2013-08 Maria Mendoza 494 Rollstone Street LM- Ms. Mendoza, please tell us about your petition, if everything is working out and how things have been going. Please tell us what’s going on at the property. Ms. Mendoza- Everything is going good, I guess the Board knows that you need a Special Permit for more than six kids LM- You are licensed for ten. Ms. Mendoza- Yes, now we have eight. Everything is going good, no complaints that I know of. Parking situation is good, usually the parents are there less than five minutes when they either drop-off or pick-up. LM- The private driveway for the pick-up and drop-off is working fine? Ms. Mendoza – Yes LM- Are there any complaints from the Police Department regarding traffic flow or anything like that? Ms. Mendoza-No LM- No parking on the sidewalks? Ms. Mendoza- Just the bus for approx. two minutes. LM- You are complying with the State of MA. Does anyone have any questions in regards to this case? Those Seeking Information: None Those Opposed: None Those in Favor: Opened to the Board: VP- I drove by the property and I couldn’t tell whether or not there was a daycare being operated there. Also, on the right hand side there was debris. I would like the petitioner to speak about the exterior. We were there on Tuesday and had no indication of a daycare being operated there that day. Ms. Mendoza – I was not back from my vacation yet. Remember, I got an extension last month because I was on vacation. JB- Looking at the building on the right hand side towards the back of the building there were many green garbage bags, was that ever cleaned up? Ms. Mendoza- We haven’t seen any green garbage bags. We don’t use green garbage bags. LM- So, for all your refuse you use the containers provided. Ms. Mendoza- Yes LM- So your yard is completely clean and clear? Ms. Mendoza – Yes JB- Vinny and I both saw it. LM- Do you have a copy of your license? Ms. Mendoza- Yes, it’s in the car, I’ll go get it. JC- I don’t have any questions. Being fully licensed through the State I have to believe they are in full compliance. I had visitors yesterday, they came and checked everything. It was fine, inside and out. They make sure we have the information on the children’s physicals and everything because if they don’t have it on record we can’t take care of them. All the information has to be in the book to show compliance. MM- Is it a single family or two family house? Ms. Mendoza – It is a single family house. MM- The first floor is used for the daycare? Ms. Mendoza- Yes MM- On the right of the house there is a porch with a lot of stuff on it. Ms. Mendoza- We do not use the porch for the daycare. MM- There is a door there, it should be cleared in front of the door. The better access in or out the better. Ms. Mendoza then submitted a copy of license for the daycare and it was placed in the file. JM- No questions JB- No questions Hearing Closed: Deliberations: LM- Mr. Concannon, would you like to continue this with a 1 year review again? Would you like to drop the review? Do you want to add any other comments with respect to debris removal? I would like that debris taken care of. Board has discussion as to when to schedule the review. The decision was to keep with a 1 year review (July 14, 2015). Also, all debris on the porch and exterior must be free and clear. LM- I would like to entertain a motion that we keep the conditions 1 thru 4, change #4 to #5 and #4 to read as 4. All debris on the porch and exterior must be removed, and the access door must be free and clear. MM- Motion to approve the review with conditions as stated. JB-Second Those in favor – All Motion carries 7:45 PM ZBA-2013-11 Yisel Lizardo 22 Columbia Ave. Review of a Special Permit to operate a Large Day Care from the residence located in Residential A-2 District at 200/2/0 - 22 Columbia Ave. LM- Sorry to keep you waiting so long, you’ve been so patient. If you can, please tell us about your petition and how things have been going. YL- Everything is doing excellent. I have my ten kids, the parents al say that they are very happy. Everything keeps the same. LM-So you have 6 month old up to school age children. What are the ages right now that you have? YL- Right now the youngest is 1 year old and the oldest is 5 years old. LM- How many children do you have there right now? YL-I have ten. I always have ten, sometimes I have a waiting list. LM- Parking and traffic flow, how is that working out? YL-The Street is a dead end and does not have much traffic. Usually just the people who live there and the parents of the children. You can fit four cars in my driveway. Not all of the parent pick-up and drop-off at the same time. LM- Do you have your permit with you? YL- Not tonight, I brought last year. LM- Did the State come and visit you recently? YL- Yes they come every three years. LM- Did they come recently? YL- They came last year. LM- Could you provide the Permit to the Board? YL- Yes, I can bring the Permit. LM- That would be great. You could see Lois in the Building Department and leave a copy with her. YL- Sounds good. LM- Are the hours of operation still 6:00 AM to 5:30 PM? YL- Yes YL- And you don’t have a sign on the property, no one would recognize a daycare is there? YL- No, I just advertise via website, business cards or pamphlets. LM- I think that’s all for now. Obviously you’re in favor of the petition. YL- That is my husband and also my assistant. LM- Please state your name and address for the record. Mr. Velasquez, 22 Columbia Ave. LM- And you are in favor of this? Mr. Velasquez, of course. Opened to the Board: VP-No comments, no questions JC- There have been no issues brought to our attention, I believe being licensed by the State you meet all of their requirements. MM – I have lots of comments. Mrs. Lizard was kind enough to give me a tour. It is beautiful, if I had young children I would want to bring them to her place. Everything is lined up, even the tooth brushes have their own little place with the kids names on them. I was truly impressed. It shows that love the children and you truly care. Thank you for what you do. LM- Sounds good, I’m happy for you. I was looking at the last petition. The conditions do not emulate. In light of Mike’s comments I don’t think there is need for further review. LM- I don’t think so either. We will strike #4 from the previous conditions. Have A,B and C emulate the previous petition. Even with respect to the no complaints from the neighbors to Police Department and traffic flow? And does not change the character of the neighborhood, maybe we can combine the them? I don’t, especially on this petition want to have any Police contact. LM- Strike A, put A that we put on the previous petition, keep B and C the same and strike #4. MM- I approve the review with those changes. MM- That will be my motion. JC-Second Vote- All in favor 5--0 4. MISCELLANEOUS 5. ADJOURMENT Michael McLaughlin – Motion to Adjourn James Concannon – Motion Seconded VOTE: 5-0 Adjourned