Zoning Board of Appeals

Board of APPEALS 166 Boulder ZONING Drive Fitchburg, Massachusetts MINUTES September 23, 2014 ________________________________________________________________________________ ATTENDANCE: Lauren McNamara Chair, Vincent Pusateri II Co-Chair, Michael McLaughlin, James Concannon Clerk _________________________________________________________________________________ 1. Call to Order LM Pledge of Allegiance: All 2. Communications: Attendance: LM, VP, MM, JC 3. Hearings 7:00PM ZBA-2014-19 William F. Walsh 1-3 Prospect Street Overrule the decision of the Building Commissioner Lauren McNamara - Chair- We are a six member board when all members are in attendance. Tonight we have four members in attendance which constitutes a quorum. You will need what is known as a Super Majority for your case to pass which would be a unanimous vote tonight. I would like to offer you the opportunity to come back when a full board is in attendance or choose to continue tonight. Mr. Walsh chose to continue. Chair LM – Mr. Walsh you were here two months ago and we talked about you getting a list, which you did. It wasn’t quite what we were looking for, so we have put together a sub-committee. We were hoping to get more than just the names of the owner’s and occupants of the property. Unfortunately, the sub-committee could not get together and schedule meetings due to vacations and times that everyone would be available. Although, I was able to contact the owners of both units and they are here this evening. The only other information we would like to take this evening would be something additional that you have not already presented, we would like to just ask them a few questions and see where we go from here. If you should have any questions for them, if you could direct them through me that would be great. WW- I would just like to add that my opposition is with the Building Inspector and his interpretation of the way the building should be or can be divided up. Or is a Special Permit required to put additional units in that building? Which I believe it is. Since our last meeting a Building Permit has recently been issued and the Building Permit reads that the Contractor was going to remove two doors and replace with two new and more efficient doors. What I believe has happened is the Contractor removed two windows and replaced them with two doors which actually gives them two more means of access to the units on the left, so now there are two additional doors. LM – That was brought to my attention in the course of this past month and I have spoken directly to the Building Commissioner. During our discussion he stated that the permit was issued for the left side and was for roof work, ceiling work, and to change out two doors for two new doors. He has seen the doors on the property and said that they were windowed doors. MM-Like a French door? LM- Just inefficient windowed doors, which still had the hinges on them. The Commissioner does not feel that they were expanding or changing anything. Mr. Walsh – I disagree. They may have been hinged, I believe that they were windows that opened out and that is why there were hinges, now they have been replaced with doors. Looking at the floor plan that would allow people to come in and go in different directions on the left side. Chair - Let’s get that qualified this evening. Was there anything else? Mr. Walsh –No JC- When you reference left side are we talking 1 or 3 Prospect? Mr. Walsh 3. Chair – That is on the Prospect Street. Side and 1 is on the Mechanic Street side. One is owned by Mr. Pinnette three is owned by Saalbach. Mr. Walsh. – I guess my only closing comment is that why in 2003 did it require a Special Permit in order to add the unity to the building. Chair – It was a request for a Special Permit which the Board denied. Mr. Walsh – But it was required in order for that work to be done. Chair – You mean to expand it to a three or four family? Mr. Walsh – Yes, but the current Building Commissioner has a completely different take on it. Chair – We are under the impression at this point that there are two single units which are individually owned condo units. Obviously there is some controversy over that and we are trying to get to the bottom of it. Mr. Walsh – That’s why I am here. It’s not a problem with the owners or anything, it’s just a problem with the interpretation of the Building Commissioner which I think is just one of many cases going on in this City because of this Building Commissioner. Chair – We can appreciate where you are going with this. At this point I would like to open it up to the audience, one person at a time. I would like to start with the owners and ask them their impression of how the units are being utilized. A. Saalbach – I am the owner of Unit 3. I would like to start by giving some information about questions that came up during the June meeting. I was at my home in Wales which is my permanent residence, and was unable to attend. However I did read the minutes online, and I am able to answer some of the questions that were asked at that time. The first piece of information that I have is that I have made no changes to the internal layout, no internal walls have moved, no internal doors have moved. The only changes that have been made you can see from the outside. We took away one external door and replaced it with a window last year. It’s on the Prospect Street side in a little extension that faces front. There was a side door and a door that faces into the back part, we didn’t need that door, it was an old drafty, leaky door and while we were having siding put on we took the opportunity to replace it with a window. Also, when we had the roof-deck put on we changed a window that overlooked the roof into a door so we could get onto the roof-deck on the third floor. We changed the use of one room from a 2nd floor bedroom to a large kitchenette because I had more bedrooms than I needed. It makes the house more flexible when we eat on the deck we have our dining room up there, or if we have to collapse the house down in the winter when we’re not there and our housemate was there and she was living on the ground floor it makes the house more flexible. So no internal layout changes, we haven’t divided it off with walls or anything like that. Chair – The kitchenette that was put in, how is that set-up, is it an actual full kitchen and is it permitted? A. Saalbach - I’m happy to answer these question because I want to be cooperative, but I do feel that they are intrusive. I’m here telling you what I’ve done inside my own home and it’s nothing I should have to be telling you about. It’s a rectangular room approximately 12 x 15. Across one of the shorter ends we put in a sink, a dishwasher, an electric stove, a single small base unit and an undersized refrigerator. No other cabinets, nothing else. I had a contractor do it, I asked that he get a building permit and he did not. Now I am in the process of dealing with someone to get a retrospective building permit for us. Before I had the kitchen put in I took legal advice to make sure I was allowed to put a second kitchen in and that I wouldn’t be straying over the line and dividing the unit. It was never my intention to divide the unit. It’s my home, and my Lawyer spoke to the City Government and they said that I could have a second kitchen. The doors onto the porch were doors built in 1840. Well before I purchased the house they has Plexiglas on each side and were unable to be opened. They were not weatherproof, they were drafty and it’s very expensive to heat this building so we wanted newer, non-drafty doors. At present the only people living in my 4-5 bedroom unit is myself and my husband, Peter Bryant. There was some concern that there was a strange man named Peter Bryant living with me, he is my husband, I just kept my maiden name. We did have a third person living with us, partly because I did not want the building empty, as we are away half the time. I’m less concerned about that now because we have good neighbors, previously the other half of the building was empty. Our roommate moved out last May and have no roommate at present and have no plans at this time to have another one. But, it is our legal right to have one. Far from over crowding the building, we had one full time person, two half time people and now we have two half time people. We have one car. In terms of the parking, before we moved the granite slabs farther forward in our yard I took legal advice because I had heard through the grapevine that we weren’t allowed to move them, I could not find anything in our deeds, I spoke to a Lawyer in 2010. He could find nothing anywhere, he said to get a parking layout done by an engineering firm. At this time I thought that we would have to follow zoning requirements. I understand if we are a two family unit we do not have to follow zoning requirements. But, even if we did have to follow zoning requirements I went to Hannigan Engineering in Leominster and they drew me two different parking layouts, both showing six legal parking spaces following zoning requirements for turning circles. Distance from the edge. We haven’t adopted them as a Condo Board, I offered this to you as information to show that in the expert opinion of Hannigan Engineering there is no problem with us parking six cars there in terms of the intersection, roadway and the legal distances. Chair LM– And they actually went to the property and did a study? AS – Yes absolutely. I went to them because they drew the original deeds. Chair LM- Do you have that drawing with you? AS- I do. I can email it to you. I don’t have it with me tonight as I believed that you already had it. It was part of what I emailed from Wales. The matter before you is whether or not we are a two unit building, not whether we have six legal parking spaces. Since it came up, the cause and effect between whether we are a two unit building and how many spaces we have goes the other way. If we are not a two unit building we have to following zoning requirements, if we are a two unit building we don’t. But, I’m just showing that we are trying to obey the law. Chair LM- Good faith AS – Yes the final thing I wanted to say is thanks for your patience. One of the things that was expressed at the previous meeting which I had some sympathy with is the people’s concern that the building could go downhill rapidly. This is an unusual building and it is a hard sell, these units are very big, they are on three floors. Families don’t want to live there because there’s no yard, there’s traffic, pollution, danger for young children. Fortunately for me it was the perfect building, I wanted a building just like that in the middle of town. Buyers like me are unusual, I saw the other half of the building, first it was difficult to sell, then it was bought by someone who could not afford it, she couldn’t carry her share of the common cost I had to carry them all. Finally she walked away from the building, it was empty and fell into disrepair, you can imagine how frightening that was, and fortunately for me Mr. Pennetti stepped up and bought it. The point I‘m trying to make here is, if we artificially limited the parking on that building we would make it completely unviable. The thing that makes it viable is that you can park the right number of cars for that size building. If you had a family living in a four bedroom house they would easily have three cars and at some point they would probably have four. So we have two of those glued together and if we had only four parking spaces you would limit the market for that building even more. There was one other piece of information that I had sent you that I had forgotten about. Another concern that was mentioned was that we were suddenly expanding the number of spaces because the Condo documents had said that we had only two spaces each. That’s no quite true, what is true is that the original documents as written stated that each unit had a minimum of two spaces not a maximum. But, before I bought my unit those documents were changed to each unit having a minimum of three parking spaces. All we are trying to do now, is make sure that we could legally fit those three. That is why I paid good money to have these parking plans done. It’s not that we are suddenly trying to change things, it’s that we are trying to make the building work. Chair LM – With respect to the parking space of the other property which is on the other side where they have added a driveway, are either of you allowing them to drive through your property to allow them to get to Prospect Street. As- No, I saw them do it once and today I went over and asked them not to do that. They certainly never did it with my permission, I was never approached and if I had been I would have said no. Chair LM- Is it your belief that the driveway was erected solely on their property? AS – Yes, I believe so. Chair LM- And no one ever approached you regarding it? AS- No, Tony and I have the deeds of our building and have a verbal description of our boundaries and it is a little murky in my head but I believe they have done it on their own property. The trouble is that there is nothing between their driveway and ours at present. I wasn’t in the country when it happened and no one contacted me. When I returned no one contacted me. Chair LM – You were unaware of the driveway going in? AS – Not until it was already in and Tony sent me the email and asked if I knew anything about it. Chair LM-Thank you for your time. Mr. Pennetti – I own 1 Prospect Street, I bought it in November 2012. I went in and did some cosmetic work. It has been rented to four people since November 2012, I have three of the original four with the exception of one that moved out and went back home. Another College friend of theirs moved in, it’s always been four people. I’ve never had any problem with anybody in the area. Chair LM – Are they related? Mr. Pennetti- A boyfriend-girlfriend, two brothers Austin & Ethan Cook one of the brothers moved out. There were four College roommates that went to Fitchburg State they liked the City. They didn’t want to live on Myrtle and Highland Ave. anymore, that building came up, they loved the layout, it is one big unit of 2200 Sq. Ft. I have done nothing structurally inside the building. I have moved no walls nor have I added new walls. I have pictures of when I bought the building and what the building looks like now. When I bought it there were two kitchens in it. I think that’s what the confusion is. There is a full kitchen downstairs, and a full kitchen upstairs. It is all open. When you first walk in the door you take a right and it takes you into the dining room, the kitchen is off the dining room and there is a bedroom in the back. You walk up the stairs and it is the exact same layout. Ethan Cook and Jonathan have been friends since their freshman year, I rent them the entire building from the cellar to the attic. It’s always been the four of them, I have on lease for all four. I have it with me, if you like I can give you a copy. The driveway to the right seems to be an issue. When that was going in I called the Building Department and I was told that it was an issue for the Department of Public Works. I spoke to them and I was told that they were issued all of the correct permits. Chair LM – They issued or were applied for? TP - They were all set and had all the right permits. MM- Who did you speak to? TP – I believe it was Gary Bevilaqua. Chair LM – So you were not on board with this. TP- I was working and got a call that they were putting a driveway in, that’s how I found out. MM – Did this gentleman mention whether he issued the permits? Or was it just a general statement? TP – Just a general statement. Chair LM – Who was the company that did the actual job? TP – Cityline Chair LM – They probably pulled the permits then. You have a lease and it is one group, and when you did cosmetics no new kitchen or bath? TP- I got a permit to inspect the wiring, Harry P. came out. Gas inspection and that was it. I painted and they moved in. Chair – So nothing you did in the unit itself or the exterior was anything that needed any permit other than the two items that you mentioned gas and electrical. TP – Yes Chair LM – And as far as the driveway is concerned, allowing the people to drive through. TP – I never gave permission for them to drive through. Chair LM – Obviously it’s a safety issue. AS – Just to say that this is as you mentioned has gone on for two months now and has caused us a lot of anxiety and concern. Our reason for choosing to move to Fitchburg where I lived 30 years before (happily) when we were looking for a place to have a U.S vacation home was because we wanted to contribute to the downtown resurgence, and then this feels very painful. Chair LM – I want you to understand that this is not directed at you. AS – I understand Chair LM – This is directed at people taking advantage of the city. AS – But the implication is that we are misusing our building. Whether we should feel this way or not we do. Chair LM – It’s right in the center, so it becomes something that is very visible. AS - Thank you for that thought. But, what I want to urge the Board to do is to remember that we have a very specific issue before us which is are we or are we not a two unit building? If we are not a two unit building I don’t know what we would be, because if you rule that we are a tree unit building you are in essence giving us permission to do something which we have not sought. I’m just urging you to do a timely, transparent decision. Chair LM – Everything we do is transparent, I appreciate what you are saying. Timely, we will do our best to uncover as much of the facts as possible so that all parties are equally upset or happy with us. Also, according to what I read in the minutes the City Attorney does not think this is in the Boards jurisdiction. Chair LM – Well, we haven’t received that information yet. AS – We I read it in the minutes. Chair LM- That may have been a statement someone made. AS – Are you seeking that verification? Chair LM - We will be after our sub-committee meets. And after taking in as much information as possible. I understand where you’re coming from because it’s frustrating, upsetting and unsettling to be feeling what you are feeling. But, maybe it’s unsettling for the other parties as well. We also had two letters that were sent to the Board this week. Our Board Members were sent copies of letters from the Disability Commission that were sent to both of you (A. Saalbach and T. Pennetti), and that’s the concerning part for us as well. AS- My letter may have been sent to Wales. I never received it. Chair LM- The letter to Mr. Pennetti was sent to 752 Mt. Elam Road and the letter to Ms. Saalbach was sent on Sept. 16th to 1 Prospect. Chair gave letter to Ms. Saalbach to read. We are taking this under advisement, we are not acting on this. This is where the sub-committee well have to take a look at some of these things and see how we move. MM - That pertains to this property but it is a separate issue that we do not have jurisdiction of. Chair LM – I wanted to make them aware that we do have copies of these letters. Is there anyone else in the audience seeking information or has anything to add that is new information. If you have new information that you would like us to take into consideration I would ask that you do so briefly now because we are already running twenty minutes behind schedule. Maryann 245 River Street Apt. 410 Riverside Commons. I travel on my scooter down to the Post Office and or Worker’s Credit Union quite frequently. Twice I’ve almost been killed at that particular corner because when I get to the part where I need to cross the street the flowers were really high in front facing Mechanic Street and when you get into the handicap access spot no one can see me. We did a little survey, you can’t see me from Mechanic Street, and you can’t see me from Prospect Street, no matter what side of the street I’m on. Chair LM – Does this have any bearing on something that was changed on the property? Maryann – Yes, they moved the flowers forward, they moved the parking, and basically they increased the parking. I remember this house when I was a child, it was a rolling, grassy plane. My question to you is, when it was surveyed for the parking what consideration was given to the possible size of the vehicles? I’ve been by on a weekend and there have been up to 4 or 5 SUV’s parked there and I surely can’t been seen with those big vehicles parked there. I am going to get killed there. Chair LM – We haven’t seen the plan, we are going to ask for that plan. Maryann – My question is did they cay cars or SUV’s? There is a big difference in size and the obstruction of the view as SUV’s are larger than the average car. Chair LM – We won’t be able to answer the question tonight. We have to wait until we get a copy of the plan. We will try to get an answer for you. Maryann – It is very dangerous for anybody that is handicapped or in a wheelchair. Chair LM – I’ve seen it in action to be honest with you. Maryann – It’s just a horrible situation, I know you have a beautiful house, and I knew someone that lived there at one time. Gloria Spadaro 18 Chestnut St. – I walk this area on a daily basis, there seems to be a contradiction here. I believe that if indeed this is a two unit building the code is that there are two parking places per unit. As they just voted on Myrtle Avenue when the Commissioner was sitting close by, and he ascertained that and confirmed that. They wanted six and he said no that the mandate piggyback style was two and two. I sat here before the board, I believe it was in 2003 and here we are again for the very same reason. The condition that the curb cut was given to 1-3 Prospect Street was with the stipulation that there were four parking places. To preserve exactly the Engineers and the previous Building Commissioners wording “To preserve the complete visibility without a distraction of the four way intersection." With that four car in mind the curb cut was given. The city moved the Granite slab on the 4th of July according to the Engineers specification. The Granite originally started and the lone hosta has seemed to voice strength for us, because that has remained at the site of the curb cut where the Granite went perpendicular across the property to the tree. That preserved a complete view, no one has heard a comment in that period of time about a near accident, about anything at all. Suddenly, approximately a year ago two men were using crowbars to roll the stone down further to accommodate more parking and the planting was moved down in front esthetically. It is a detriment, we haven’t even addressed daylight saving time and the flashing of lights. I won’t go into the curb cut that was given next door. Lenny Laakso, Gary, and Chris worked on it for a week. I wanted the original curb cut, and in Gary’s own words when this started about five months ago when I got aboard for safety, my issues are for safety. He said Gloria I have looked and looked and looked, the original curb cut was lifted from the files. Chair LM – I appreciate what you are saying, maybe it’s for their benefit. But, we all have heard this and have already taken in this information previously. GS – Madame Chair I believe that it is important that it is reiterated. How long are we going to tolerate the unsafe conditions for the disabled and young children with darkness coming? Yes, you are hearing it for maybe the second or third time, when are you going to address these safety issues? Chair LM – We are going to address the whole project, but it will not happen overnight. GS – I understand that, thank you. Mr. Walsh – Ann, you mentioned that your Lawyer had cleared what you were doing on your half of the building through the city, who in the city said that it was ok to do what you were doing? A Saalbach – Could he address his question to do and you address it to me? Chair LM – Yes, would you be able to qualify that statement? AS – No, because I don’t have that information. I sought a legal opinion and I was given a legal opinion which I trusted. Chair LM – So you don’t have the legal opinion in writing? ASaalbach – I have no idea, I didn’t ransack my files to bring it. I expected that you would believe me. I have no reason to tell you I sought a legal opinion if I had not. I can tell you the name of my Lawyer, but I’m in two minds as to whether to do it because at this point I am becoming more and more convinced that we are straying from the question before you. You even said yourself that the safety issue is not under your pervue as a Board. Chair LM – With respect to the neighbors’ curb cut, that is not in our jurisdiction. A. Saalbach – We’ve just heard a lot of discussion about this investigation about disability. That is not the question before you, the question before you is not have we done something that contravenes the disability action, the question that’s before you is have we done something that has made our building two units. That’s all we should be considering and if we are going to be considering a lot of other things I think I am going to have to get some legal advice for myself. I’m not saying that this is your intention, but it is starting to resemble a fishing expedition and harassment. Chair LM - Our Committee was asked to overturn the Building Commissioners decision and we are doing our job as volunteers, please understand that. A. Saalbach – I’m not trying to be disrespectful Chair LM – Well, in some ways you are. A. Saalbach – I apologize, but I also am telling you what I thought it was showing respect to tell you that I am leaving here considering whether or not I need to get legal advice. I didn’t want to not tell you. Chair LM – I think our Board needs to take the information in, and you need to sit tight for a little bit so that we can get together and talk about it. We have not been able to do that and I’ve stated that right from the beginning. A. Saalbach – Yes, you did. And obviously you have to carry out your job the way you see fit. Chair LM – We are doing our due diligence. A. Saalbach - But it also has to be relevant to the matter that’s before you. I don’t understand why the disability issue is relevant. Chair LM – When we have two letters that were presented to our Board we need to take everything under advisement. MM – We need to share that with you, and that’s just we’ve done. We gave you copies of the letters we received. A. Saalbach – It’s an important issue, but it has nothing to do with we have divided our building. Chair LM – And we may agree with you on that, but we won’t be making that decision this evening. WW – I don’t want to prolong you. I know you’re running late, just a couple of comments. I still think that the building has been changed into a non-conforming building for that zoning. I still disagree with the Building Commissioner. He said at our last meeting, if you recall, that the work that was done in the kitchen on the Prospect St. side had a Building Permit and that they inspected it. And there is no permit, there was no permit. I don’t know who is at fault for that, whether it be the Building Commissioner or the Contractor. I don’t believe it’s the owner. Chair LM – I believe Ms. Saalbach stated that the contractor did not get a permit even though she specifically asked him to do so. WW – I believe if you check your records you will find that the Commissioner said there was a permit. The description that we have been given about the housing on the right side of the building, our conversations with the tenants is that they lived in separate domiciles on that side of the building. Separated from each other, which would be a violation. If it is as they described I believe that would come under tenants of a rooming house. It’s not zoned that way. Chair LM – We will take that under advisement. Mr. Pennetti – There are four people, a boyfriend & girlfriend, it just happens to lay out that there are living quarters upstairs and living quarters downstairs. I’m pretty sure that the two gentlemen downstairs don’t want to sit on the couch when the boyfriend and girlfriend want to sit, hold hands, and watch a movie. It’s convenient for them to live in separate living quarters. If Mr. Walsh wants to come down and knock on my door I would be more than gracious to give him a tour of my building and he can see the way it is inside. Chair LM – That brings up a good question. Would you be willing to let one of our Board Members go into the building? A. Saalbach – I would be willing to let you come into the building. A. Pennetti – I have no problem with that. Chair LM – Is that something that the Board would like me to do? Mr. Walsh – One final comment, there was a parking plan designed in 2003, by moving the stone wall forward they have infringed upon the setback from the middle of Mechanic Street which is 57 ½ ft. What has happened is this whole plot has changed by moving that forward. It was moved forward because there is more people in the building. It is my contention that there are more people in the building because of a decision from the Building Commissioner, which I think is the wrong decision. MM – Ann you had mentioned that you had a contractor put the kitchen in and put it in their hands and tried to do the right thing. When was that? A. Saalbach – It was in 2010. I believe I bought the house I believe in 2005 with the view to using it when I retired, so when I retired in the fall of 2009 I was only able to spend a week twice a year there. So I had a roommate during that time to help pay the bills. I think I had the kitchen put in during my first long visit I 2010. MM – So, when the kitchen was put in you thought everything was done on the up and up? Was there any inspection by the City at that time? A Saalbach – As far as I know there wasn’t, but I was naïve and didn’t know there should have been. I don’t recall any. MM – So, that wasn’t done at the same time the second floor deck was put in? A Saalbach – No, the deck was done during the Spring of 2013. Chair LM – How many services are coming into the property? A. Pennetti – One on her side, one on my side. A Saalbach – I remember this from the minutes, we just weren’t good at taking away the old ones when we switched suppliers. We were only there part of the time. Our roommate would pay. At present on our side we just have Verizon. We have some satellite dishes which are not in use that our contractor is going to take down for us. We have an active Verizon account and that is all. I don’t know what he has on his side. A. Pennetti - I believe there is one Comcast account, in one tenant’s name. If I had known this would have come up I would have had her come down. Chair LM – No, that’s ok. At this point could I ask, if you’re willing to give any information, it doesn’t have to be tonight, let me know if you have the tenant at will agreement, copy of the parking plan and the pictures you mentioned earlier. Anything that you have that would give us the information that you have spoken about. A Saalbach – When you come I can show you the original floor plans of the unit on the deed, you can see that it is still the same. Chair LM – I would like to privately exchange contact information so we can arrange for me to come to the building. I would like to do that fairly soon so that the sub-committee can get together. I’m not really sure where we go from here. MM- I would like to thank you both for coming down and offering more information than you needed to. I believe you did shed some light on what exists. I don’t believe there is any intent, certainly not from the Board, to mediate. We have to take it seriously and look at all aspects. I think that the question before us is a question that more myself has had with other cases. Is that the determination as to allowing single units that do have multiple kitchens, my concern isn’t necessarily explained very well on how we got here and what you are presently doing, what we have to look at is the protection for the future. You both have good intentions, but what we worry about for example is we see this with requests for accessory apartments. Our concern is, what happens when you sell? There is one unit with two kitchens, the appeal there is that you can put a wall up and then there would be four units now. You have a great property, it’s historic. I love where it sits, how it sits, the beauty if the building, the architecture, the surrounding buildings, it’s a great spot. I think everybody wants to preserve that little piece of history and make sure everything is done according to law and code. Thank you for your time. Chair LM – I would like to entertain a motion to continue this case for another month. Or should we table this indefinitely so that our committee can meet and I can view the property? MM – We can put it on and push it out if we have to. A Saalbach – Can you tell us the date of your next meeting? Chair – The next meeting date is October 14th. If I could get a motion for a continuance we will schedule ZBA-2014-09 for October 14th @ 8:15. MM – I make a motion to continue to October 14th @ 8:15 PM VP- I second the motion. LM- All those in favor - All – All those opposed- None VOTE 4-0 7:15PM ZBA-2013-05 Mark Cordio 672 Water Street Review of a Special Permit under §181.313C11&13 to occupy a portion of the portion of the property for Automobile Sales and Washing located in the Central Business District at 109/35/A Chair – Mr. Cordio has asked for a continuance for his review until next month. I would like to entertain a motion but he is not here to do an extension of time. MM – It’s just a review. VP- My motion would be to go to review. Chair – I have reviewed the property and for what it’s worth, it looks fine. But, I have to go through a review some of the things. LO – I did have Mark sign an extension of time. Mr. Pusateri said because it was a review that we really didn’t need it. Chair – That’s fine. MM- Motion to put on the October 14th agenda @ 8:45. VP- Second the motion. Chair – All those in favor – All Vote 4-0 7:30PM ZBA-2010-06 Zachary R. Schultz 34 Bemis Road Review of the Use Variance amended July 13, 2010 to operate a fast food restaurant from a permanent structure located in the Industrial District at 141/4/0 Chair – Mr. Schultz can you tell us how things are going at the property, and how the business is doing? Mr. Schultz – The thing is that I am looking to move my location and will not be there by January 2015. I’ll be moving to John Fitch Highway, where Comfort Home is hopefully by New Years. MM – Into a building? ZS- Yes, to an indoor facility. I won’t do a drive-thru anymore. MM – The Use Variance expires when you leave the property. Chair – Do you still own the property? ZS- My parents own the property. I don’t think they are going to do anything similar to what I have there now. I think they may have a landscaping company go into there. That is what was there originally. MM- I move to approve the review. VP-I would like to put it on a two year review. Then if you have moved just let us know and you won’t even have to show up. ZS- Ok You were saying something about my parents would need to do something. Chair – If it’s someone else and it’s not your parents and they wanted to put in a landscaping business there they would most likely need to come before us. The Building Department would be the place to start. Chair – Move to approve the review and the next review will be in September 2016 (2 years). JC - Second the motion. All those in favor – All Vote 4-0 7:45PM ZBA-2011-09 Scott Morrisey 89 Whalon Street Review of a Use Variance to store automobiles on the parking lot for HERTZ Rental Car Co. located in the neighborhood Business District 202/89/0 Chair – Mr. Morrisey is not in attendance. Was he notified? LO – Yes VP – Motion to continue to the October 14th agenda @ 8:30 and provide notice. MM – Second the motions. All those in favor – All Vote 4-0 8:00PM ZBA-2014-20 Ralph and Donna Sacino 267 Wanoosnoc Road Variance under Section 181.961 to continue the present use of the property located at 267 Wanoosnoc Road located in the Residential A-2 District 182/14/0 Lauren McNamara - Chair- We are a six member board when all members are in attendance. Tonight we have four members in attendance which constitutes a quorum. You will need what is known as a Super Majority for your case to pass which would be a unanimous vote tonight. I would like to offer you the opportunity to come back when a full board is in attendance or choose to continue tonight. Petitioner has decided to continue. Thomas Mullaney for the petitioners. We are here for a variance, not to do anything different, but to do exactly what has been there all along. We did have the plans attached to the packets, I have a larger set if anyone would like to take a look at it (Exhibit A). What occurred here and created the issue is that twenty four years ago in 1990 the neighbor to the rear of this property approached Ralph Sacinos mother who was predecessor in title and asked if she would convey a small piece of land to him. He wanted to build a two family at the time on the property to the rear. He said he would take care of everything, and he did take care of everything as far as his property was concerned. What he didn’t do is tell here that there was a note on the plan that he brought before the Board that shows it’s creating a zoning violation on the Sacino property. Mrs. Sacino conveyed the land to him thinking she was helping out a neighbor and did it for no consideration whatsoever, it’s a one dollar deed. The neighbor was able to go ahead and do what he needed to do on his property without ever disclosing to her that he had created a problem on hers, she certainly wouldn’t have signed the deed. She is in an assisted living facility and it still angers her now. Chair – Could it have been an easement? Mr. Mullaney – I don’t believe it could have been an easement because the neighbor needed the area to do what he wanted to do on his property. Among all of her papers, she has copies of deeds, copies of everything that was ever done. But, she does not have a copy of the plan for this, I think these people just didn’t want her to know that this was helping them and harming her. The only way this was discovered was that Ralph and his wife Donna are trying to sell the property to help pay for his mothers’ care. During the title search the buyer discovered that there was a note on the plan showing that there was a zoning violation on the Sacino lot. This is one of those strange variance requests that actually relates to the one word in the statute “the structures on the property”. We have a single family structure, we certainly have a hardship as the property is effectively unsaleable if it’s not allowed. There’s no other use that could be made of this, it’s a single family home, there’s nothing different that is going to be done. Nobody even new that this was a problem for twenty four years up until now. Any damage that was done, was done a long time ago, this request is just something that would rectify a problem for the one property owner at this point. There’s really nothing that can be done to reverse what was done in the past. I would suggest to the Board that this is the only way to fix something that is a major problem, and certainly would meet the hardship requirements under the zoning by-law. MM – This is kind of interesting, the property to the rear was before the Board a couple of years ago. For a variance for a roof deck. Mr. Mullaney – The buyer for the Sacino property had the legal work done and discovered this problem. They had nothing to do with the deck or the roof by the same owner who actually got the land from Mrs. Sacino in 1990. MM – My question is, is that the same owner that committed this fraud that still owns the property today? Nr. Mullaney – Yes, it is the same owner that still owns it. Chair – Thank you for the presentation. Those Seeking Information: None Those Opposed: None Those in Favor: Ralph and Donna Sacino Larry – Agent for the buyer. Opened to the Board: VP – Is there any thought of this right of way? Is it part of the area description or not, and is it that statute that says that they own 50%, could you explain that to me? Mr. Mullaney – With my calculation it would add approximately 1800 and change to the square footage, it would still be under what is required, it’s not very clear from the way the descriptions are in the old deeds. The right of way was not very well described, it’s not clear if it was something we had rights over. It was very vague and I believe it was intended only for the rear lot which may have limited our right to claim that rear half. MM – You are asking only for a reduction in area, you have the set-backs? Mr. Mullaney – Yes, area only. Hearing Closed: Deliberations: VP – It stinks, that’s all I have to say. JC – I didn’t catch that Chair – He said it stinks. Do you have any thoughts on whether you would be I favor of the petition? JC – Right now I would be in favor of the petition. What is the reduction that we are looking for? Chair – It’s just dimension. MM- 12,500 to 10,135. JC – Does the 10,135 include the 1800? Mr. Mullaney – It does not. Reopened to the Board: VP - Does this right of way actually service this rear property? Mr. Mullaney – Yes it does. Chair – Any question while we are reopened? All – No Hearing Closed: Deliberations: MM – Variance under section 181.9614 specifically as the applicant had mentioned we’re looking at our typical soil, shape of topography or land and structures. It’s a pretty unique situation, they meet the set-back requirement, and due to the prior situation it will create a financial hardship financially. I think that it meets the criteria and would be in favor of the petition. VP – I’m in favor of it. JC – I am also in favor. Chair – I am in favor as well. MM- Make a motion on ZBA 2014-20 to grant the variance as requested. VP- Second the motion. All those in favor – All Vote 4-0 8:15PM ZBA-2014-21 Oak Hill Country Club 840 Oak Hill Road Chair: Is there anyone here from Oak Hill? Scott Logana, Ground Superintendent for Oak Hill. Jamie Rowe from Whitman and Bingham Associates. Lauren McNamara - Chair- We are a six member board when all members are in attendance. Tonight we have four members in attendance which constitutes a quorum. You will need what is known as a Super Majority for your case to pass which would be a unanimous vote tonight. One of our Board Members has recused himself because he is a member of the Oak Hill Country Club. That brings us to three members, which means we will not be able to hear the case this evening. We will have to move this to next month which will be October 14th @ 7:00PM. We will have you sign an Extension of Time and we will be all set. Thank you. 8:30PM ZBA-2014-22 Linda Dube 625 Townsend Street Special Permit under 181.34 to erect a 24’.4” x 26’ single story apartment on the left side of existing house located at 625 Townsend Street in the RA-1 District 165/3/0 Lauren McNamara - Chair- We are a six member board when all members are in attendance. Tonight we have four members in attendance which constitutes a quorum. You will need what is known as a Super Majority for your case to pass which would be a unanimous vote tonight. I would like to offer you the opportunity to come back when a full board is in attendance or choose to continue tonight. The Petitioner has decided to continue. Chair – For the record, please state your name and address. Linda Dube, 625 Townsend Street. Ms. Dube – I brought along 3 sets of the elevation & floor plan (Exhibit D). Ms. Dube – This is the front of the house, and this is the addition. Chair – This is the front of the existing home? Ms. Dube – Yes, this is the front of the existing house, and this is the addition. Ty Veilleux (Contractor for Ms. Dube) – This is the other side, just showing a side view. Chair – Are you the builder and would be constructing the property? TV – Yes Ms. Dube – In case you would like to see them, I have pictures to show you what the property looks like now (Exhibits B & C). Along this wall is where the addition will be put. Chair – For Board Members that haven’t seen the property you might want to explain that you have a two car detached garage and that you have quite a bit of land in between. Ms. Dube – Yes, I have here 3 copies of a parking plan (Exhibit A) that shows the garage and the house. Chair – Ok, do you have anything else to add? TV – We do have a plot plan if you would like to see it. Chair – We have that, it was included in the package. TV – Everything will be done to match the existing house, siding, shutters, roof everything like that. Chair – All the façade will be the same? TV – Yes Chair – As for services such as the heating and electric, will there just one heating and one electric for the whole house? Ms. Dube – Yes Chair – Do you have gas at the property? Ms. Dube – Yes Chair- You will have one gas meter and one electrical panel for the property? Ms. Dube – Yes Chair – So for all intent and purposes it will still look like a single family home with two front doors. Ms. Dube.–Well, with an extra door that happens to be in the front. Chair - What is the intention for the use of the accessory apartment? Ms. Dube - As you can see my sister is in a wheelchair. I’m finding it harder and harder to take care of her by myself. So my niece and her daughter would be living there. Her daughter is Autistic, so there would be two disabled people living in the house. The plan is that I would also help with her daughter. My niece and I would like to combine our efforts for their care. Chair – Do we have a signed Affidavit? JC – Yes we do. Those Seeking Information: None Those Opposed: None Those in Favor: Nancy Dube 625 Townsend Street Opened to the Board: JC – How bid is the proposed addition? Ms. Dube- The floor plan shows it as 690 Sq. Ft. JC – What is the square footage of the current house? Ms. Dube – I’m not sure, maybe 1600 sq. ft. Chair – We have to do something about that percentage, it keeps coming up. VP – Yes, and I’m going to ignore it again. Put it on the record. JC – No set-back issues? Ms Dube – No, the set-backs will remain the same. Chair – What’s are your interior plans? Is there going to be a kitchen for the addition? TV – Yes, they will have their own kitchen. Chair – If you were going into the main structure from there, how would you take down a wall? Ms. Dube - There is a doorway right here between the dining room and the kitchen of the existing house. Chair – What’s up here in the front of the home? Ms. Dube – That is the living room. MM – When I walk into the front door di I immediately walk into the kitchen? TV – No, you walk into the living room. Is this a single floor addition? TV – Yes, no second floor. VP – When we make a decision on this it will say that this shall not be sold as a two-family house. Our primary issue is that when they come to sell the house. We want to see that there is a wall that can be taken down. TV – Either one of these walls can be taken down. Chair – The petition is actually for an accessory apartment. Ms. Dube – Yes, that’s correct. Chair - Not an apartment added to your single family to make it a two-family, just so you understand that. JC – Also, you need to come back in 5 years for a review. Ms. Dube – I understand that. JC – What would the schedule be for beginning and completion of the project? TV – The beginning would be as soon as we receive approval from the Board. I believe this project would take approximately a month and a half. Chair – There is a 20 day appeal period. TV – We are aware of that. JC – You figure a month and a half to put the addition on? TV – Yes, approximately, depending on the weather conditions. Mm- How many additional cars will there be? Ms. Dube – Just one additional vehicle. Chair – Will the garage take care of that? How many cars are there now? Ms. Dube – Yes, the garage will take care of the additional vehicle. Right now there is only one vehicle. MM – Is there an expedited approval period? JC - If you move before the approval period, it is at your own risk. VP – I believe in 2008 or 2009 there was a new statute that had expedited permitting and hope that it is applicable to these people here. The appeal period starts when the decisions are filed in the City Clerks’ office. Depending on how quickly we are able to move. TV – Will they issue the permit before the appeal period is over? Chair – You will have to speak with the Building Commissioner. Just let the Commissioner know that there is nobody in opposition and hopefully we can expedite this to get the foundation in. VP – That’s why I’m saying I think there is a statute that provides for expedited permitting. Hearing Closed: Deliberations: MM - I believe that this petition meets the criteria and as Mr. Pusateri mentioned I also think that the City needs to take a look at the by-law with regards to increasing the 15% of the existing structure it seems to be a hard fit for the petitions that come before us. Other than that I would be in favor of the petition. VP – I am in favor. JC – I also am in favor and think that this is exactly the reason that the accessory apartments are available to citizens. I am also in favor with the conditions as stated. Conditions for the Special Permit for the requested accessory apartment are as follows: 1. Property not to be sold or conveyed as a 2-family 2. Special Permit expires in 5 years and must be renewed prior to expiration 3. Special Permit will terminate upon the transfer of the property 4. Dwelling is to be owner occupied 5. Accessory Apartment is to be occupied by a relative of the owner 6. Addition will have matching facade to the original property 7. Construction pursuant to the elevation plans provided and the plans attached to the petition 8. Construction to be completed within 60 days, with all debris removed MM – Motion to approve with conditions as stated. JC – Second the motion. All in favor – All Vote 4-0 8:45PM ZBA-2014-23 Elhouari Haddar 16 Maryland Avenue Special Permit under 181.33 to operate a livery business at 16 Maryland Avenue located in the RA-2 Residential district 101/50/0 Lauren McNamara - Chair- We are a six member board when all members are in attendance. Tonight we have four members in attendance which constitutes a quorum. You will need what is known as a Super Majority for your case to pass which would be a unanimous vote tonight. I would like to offer you the opportunity to come back when a full board is in attendance or choose to continue tonight. The petitioner has decided to continue. Mr. Haddar – This is my wife Linda Eori, she will be helping to explain what we are seeking. Linda – We had a petition that was denied and we were told that we could appeal it. We were just looking to house the car on our property. It would be for my husband to have a livery service with no other employees. Almost like Limousine service, to the airport, parties, and special events. There won’t be any additional people coming onto the property. The vehicle would just have a Livery Plate, no signage on the vehicle or the property. Those Seeking Information: None Those Opposed: None Those in Favor: For the record I need to note that we had a letter delivered to the Building Department today in opposition to this petition (Exhibit A). Opened to the Board: VP– What kind of car? LE – Right now he has a Toyota Corolla. If things go well we are looking at maybe a Lincoln or a Toyota Camry. Depending on whether or not we get the petition, we’re just looking around right now. It would not be an additional vehicle on the property, there are three on the property right now. Chair – You are not really sure what the Livery vehicle will be. LE – No, we are leaning toward a Camry. Chair – so, you don’t really know what the vehicle would be? Mr. Haddar – Any car I can have. The people when they call are going to request something, ask what kind of car. I cannot get Camry or Lincoln, after I get the permit I will be able to make a decision. Chair – We would like to know. MM – I believe the type of vehicle they are looking at would be a 4-door sedan. Mr. Haddar - That’s correct. Chair – Would you do paperwork from the house? LE – Yes, I would help him with that. MM- Why is this not a matter of right? Chair – I don’t know, that’s what I’m wondering. MM- Do you know why this is before us? LO – It should all be in the denial letter. Chair – Reads Home Occupation As of Right 181.3315. JC – What will be your hours of operation? LE - He usually does 12 hours. He’s working in Boston right now. Mr. Haddar – I do Logan Airport, Worcester Airport, I take people into work going in early. Between 6:30 and 9:30 is busy time. I could be on 495 or Rt 2. I could start anywhere when I get the first call comes in. JC- Now my question would be neighborhood traffic. You could be leaving the house as early as 4:30 AM? Or if someone comes in on a late flight you could be coming back maybe 1 or 2 AM? JC – Are we talking about a diesel, gas or even an electric vehicle? LE – We’re not sure, we possibly looking at hybrids. JC – My concern is noise in the neighborhood. LE – When he leaves he will most likely be gone for 10-12 hours, it’s not like he’ll be in and out all day long. JC- So the bulk of your trips would be out of Boston or Worcester? LE – Yes Hearing Closed: Deliberations: MM – I’m going to go in favor, I’m going to go on the Building Commissioners’ expertise that this does require a Special Permit. Although I don’t believe that it does however, we’ve gone through the process and it meets the criteria under 181.33. I would approve with the following conditions. VP- I would agree. JC – I also agree. Conditions for the Special Permit as requested are as follows: 1. One year review September, 2015 2. One vehicle 3. Four door sedan 4. No customer visits 5. Hours of Operation - unrestricted 6. Not to be operated as a nuisance JC-Motion to approve the application MM – Second the motion All in favor – ALL Vote 4-0 9:00PM ZBA-2011-04 William & Heather Gleason 0 Airport Road Review of the Special Permit granted in 2011 to operate a landscaping business located at 0 Airport Road in the Industrial District at 142/1/A Please state your name – Petitioner – William Gleason Chair – I see you are here because we called you in for review. The petitioner has planted flower bushes for landscaping, petitioner has cleaned up the lot and are parking their landscaping equipment at the site. Erection of a building will not be taking place this year. Basically the property had been quite messy and obviously you have done a lot to clean it up. What are the future plans? It’s not a stellar looking property for a landscaping company. WG – Hopefully a building. Are you talking about that garage, I mean that junk? Sometimes I leave my gate open during the day so my guys can come in and out and we came back one day and there was a six-wheel dump truck load of old drywall. That happened in the Fall, and it just sat there in the spring. Actually there was a guy living in one of my trucks. Living in the dump body of a truck that I had taken off the road for the winter. I never went back to that part of the lot during the winter. I had that lot nice. That lawn was like a golf course. Those bus company people drive all over it to turn around, people just through junk out the windows all over the place. Eventually I just gave up on that lawn. People just don’t respect other peoples’ property. As far as the garbage goes, a lot of it is my fault. But a lot of those yellow bags, I don’t know who drove by and saw it, I would say about eight of those bags were trash from Penske, my lot and that wooded lot next door. It’s all picked up and we started paving the lot. It’s all picked up. But, the goal is to put up a building. Chair – When do you think that will happen? WG – It probably won’t be this year, our car burnt to the ground the other day and we had to go out and buy a new one. Within the next couple of years hopefully. Chair – My particular thoughts on the property are that when I envisioned the property as being a landscaping company I believed it would be a nice, stellar looking property. Now it has gone far from that. WG – It was in the beginning, I did a lot of work on the property. Chair – It has to be maintained, and I personally haven’t personally been happy with the property. WG – I haven’t either. I understand what you are saying. Chair – I think other members were hoping that we would be making some progress by now. MM – The original conditions stated that the 18 wheel trailer would be for temporary storage. If you could just take a look at the original conditions and try to do a lit bit better to adhere to them. Chair – I think that whatever he does is going to come back to him ten-fold. People are going to see it as a nice property. MM- That is a condition, if you could get us back there. We understand your challenges, we just want everyone to hold up their end of the bargain. WG – Alright, I’ll take care of it. Chair – It’s already come a long way since you were initially contacted. We would just like you to do a little bit better. VP – The grass area you had in the front is being driven over by the bus company. Is that what you were saying? WG – I’ll be parked in the driveway inside my yard and you can see them come in. It’s not the buses, it’s the people that work there they come up and make a U-turn and drive over the lawn, and then they park in front along the street. MM – Can you put anything down to deter them such as rocks, boulders, anything that would define the property? I would have to talk to Penske, it’s actually their property. My property is where my sign is. All that work with the trees and the sod, I did that for Penske. It made my lot look better. I don’t own any of that. I don’t think I have forty feet. VP – There’s that one fenced area, you’ve got the right landscaping there. You’re inside that chain-link fence right? WG – Yes, it goes deeper, but it’s that width. MM – It was pretty tough looking when I drove by earlier this summer. MM – How’s business? WG – Good, better that expected. MM – We have a guy down the street from you, he put up all the slats in his chain-link fence and someone painted graffiti all over it. WG – I felt bad for the guy. They must have been there for hours to do that. MM – When would you to put this for review again. Chair – June 2015. MM- Motion to approve the review and move to continue until June 2015. JC – Second the motion All those in favor. – All Vote 4-0 4. MISCELLANEOUS I would like to make a request to the Building Commissioner through Lois. I would like to request that the denial letters be specific as to why the petitioner has been denied. VP – I think what he is doing is he is listing the complete section and bolding that part that he believes addresses the petition. MM – Does that make sense to you? VP – I think that was wrong. MM – For example if the petitioner does not meet the set-back requirement, what is the dimension of relief the petitioner needs to meet? MM – I would like you speak with the Commissioner and use some of the examples that if somebody needs a variance for set-back. What is it? How many feet do they need? What relief do they need? Chair – Isn’t this being conveyed in the minutes? MM – Yes, but I think it is also best served by visiting him too. For example, this Home Occupation. There were some things highlighted, I want to know what criteria he didn’t meet. I look at it and believe he meet the criteria. But, it’s not for me to guess what the criteria is he did not meet. 5. ADJOURMENT Michael McLaughlin – Motion to Adjourn James Concannon – Motion Seconded VOTE: 4-0 Adjourned