Zoning Board of Appeals

Board of APPEALS 166 Boulder ZONING Drive Fitchburg, Massachusetts MINUTES December 9, 2014 ________________________________________________________________________________ ATTENDANCE: Lauren McNamara Chair, James Concannon Clerk, Joseph Byrne, Joseph Maramma, Michael McLaughlin ________________________________________________________________________________ 1. Call to Order LM Pledge of Allegiance: All 2. Communications: Attendance: LM, JC, JM, 3. Hearings MM, JB 7:00PM ZBA-2012-31 Kyle & Wendy Higgins Lake George Auto Service & Sales 525 John Fitch Highway Review of the Special Permit under §181.313C11&12 granted January 8, 2013 to occupy a unit within the building for Automobile Repair Service & Sales located in the Central Business District at 47/20/0 - 525 JOHN FITCH HIGHWAY LM Chair – Is there anyone here representing Lake George Auto? JM – I stopped in and spoke to someone working there. I told him there was a meeting tonight and they made a call to someone. MM - I believe it’s obvious he is no longer in business. JC – Do you think he’s out of business? The cars are off the lot. One of the primary reasons he wanted to do that, was to service his own vehicles. JM – Someone was working there, I believe on his own vehicle. MM – My recommendation would be to have a letter sent to him and maybe convey to him that if he doesn’t show up his permit could be revoked. MM – Motion to continue ZBA-2012-31 to February 10, 2015 @ 7:00 P.M. JB – Second VOTE – 5-0 to Continue to February 10, 2015 @ 7:00 P.M. 7:15PM ZBA-2014-25 Marcus Moran JMAC Distribution LLC 134A Crawford Street Special Permit under §181.313.D.6 to store vehicles on a temporary basis for a towing company in the Industrial District at 114R/1/0 - 134 CRAWFORD STREET LM Chair – Please state your name and address for the record. Marcus Moran, I live in Westminster, MA. I started a repossession business about three years ago. I was originally in Gardner; I was working for IC Credit Union and a couple of other Credit Unions. I grew out of that space; I saw a sign on Crawford St. that had 16,000 sq. ft. and was fenced in that was available for lease. I called and spoke to the owner and leased the property. I didn’t realize that a permit was required. Since then I have been made aware that I needed to apply for a Special Permit, and that’s what brought me here tonight. The scope of the business is that the repossession business is a billion dollar industry that nobody wants to talk about. I work in the backdoor for Honda, Toyota, Mercedes-Benz, IC Credit Union, Leominster Credit Union, the list is long. We basically take peoples cars, motor homes, boats and motorcycles that they aren’t paying their bills for. The come on the property, the vehicles is inspected and inventoried. The Bank usually takes anywhere from one to fifteen days to decide what they are going to do with that vehicle. The vehicle never stays on the property for long. These vehicles are newer vehicles with loans on them. They are not leaking any fluids or anything that would be a hazard. They are vehicles that are in good condition, no flat tires, smashed windows and such. We don’t sell cars or entertain any business with the public other than someone coming to redeem their car. During the day my father-in-law Paul Renda is there working for me. I have hired about eight people from the city since I have moved here, I buy all of my fuel in the city, I have patronized the city quite a bit. That’s pretty much the scope of what we do and how it’s done. We keep a low profile due to the nature of the business. I am here looking for the Special Permit to be able to store vehicles on a temporary basis. LM Chair – What was the total number of cars? Mr. Moran – It varies, there could be weeks when there are only twelve cars in there, there could be weeks when there are thirty. LM Chair – What would be the maximum number of vehicles that you could put there? Mr. Moran - In a two week period probably about fifty cars. LM Chair – Would that be inside or outside? Mr. Moran – There is no indoor anything. We do have what was an 8 x 20 shipping container that has been refurbished and makes an adequate office space that we rent from Mod Space. We are now going to open the meeting up to the audience. Those Seeking Information: None Those Opposed: None Those in Favor: None Opened to the Board: LM Chair – The Board will ask you questions and once we’ve filtered everything out we will close and deliberate and give you an answer this evening. JC – If I am correct with the property there is a building on it to the right there is a series of shed type buildings that were garages. Mr. Moran – That is Tango Construction. So you are the triangular piece off to the left? Mr. Moran – That is correct. JC- What is the street address for Tango? Mr. Moran – I believe it is 134 Crawford Street. JC – You are 134A Crawford? Mr. Moran – That’s correct. JC – What are the security issues with your business? Mr. Moran – We have been broken into, there are some people who decided to crawl under the fence and steal catalytic converters out of the vehicles. That has since been rectified; we did some work on the fence. JC – No issues with the owners of the vehicles that you have taken? Mr. Moran – No, we do the very best we can to make a very difficult and uneasy situation go as smooth as possible. Just treat people with respect. Nine out of ten times the people are relieved. The phone calls and letters are going to stop from the creditors. JC – I’m not familiar with how that lot is illuminated. Do you have any security lighting? Mr. Moran – There is, I currently pay for two lights with UNITIL. They do a very nice job of lighting the property at night. MM – I visited the property, it looks like you’re doing what you are supposed to, keeping it low key. Can get fifty cars in there? Once the snow starts, how do you deal with that? Mr. Moran – Yes, we can get fifty cars in there. When it snows we push it to the end. Then Alonso comes with the front-end loader and pushes it into the woods. MM – Everything inside the fence? Mr. Moran – Yes, there is nothing left outside of fence. MM – Joe and I were there and the only thing that really came to mind was, how do we dress-up the street front a little bit? Maybe a little landscaping? I understand the challenge, and hat has always been my frustration with Crawford Street. It’s like a litter zone. We usually schedule a review, at that time we can take a look at trying to do a little something. I understand that you do not have a business that you advertise. The more low key the better. Mr. Moran – The fence itself had a sign on it that read Eagle Trucking. All I did was put 134A on it. I have nothing to advertise. JB – Do you have any dogs in there? Mr. Moran – No, I do not. I know it’s tough to keep it clean out there. When we were there we saw pillows and everything else out there. I thought that maybe once a week you could have one of your employees go out there and clean it up. Mr. Moran – We have, it’s a constant battle. I would love the guys from Charles George Trucking to come and pick up all the trash the leave as they are driving past. JB – As another business owner you should take a ride by and introduce yourself and tell them about your problems. Mr. Moran – I’m more than willing to clean up my area. I have no problem doing that. If you take a look out there you’ll see that I laid bark mulch from the corner and all the way up. Weeds grew up and the plows dropped calcium chloride and makes a mess. JB – What happens to the cars that you have on the property? Mr. Moran – They either go back to the debtor if the bank will work with them, or they go to auction. JM – I was there today and the property was nice and clean. The cars were parked neatly. I was able to drive in and back out with no problem. Nice Job. LM Chair – I don’t really have any questions other than for the board. Are they any conditions that we might like to discuss? Do you want to restrict the number of cars or just let him run his business and we can re- evaluate things at review? JC – What are your hours of operation? Mr. Moran – We are open on a daily basis from 8:00 A.M. - 4:00 P.M. This is for people to come and pick-up their belongings or their vehicles. We also go to work at 8:00 P.M. to collect cars and bring them back. When we come back we open the gates drop the vehicle and go out again. JC – How late into the evening or early morning hours do you work? Mr. Moran – Two, three, four o’clock in the morning. That’s when people are home. JC – How do you take the cars to auction? Mr. Moran – They are transported there on car carriers or flatbed trucks. They back onto the property; we allow two trucks at a time. We don’t allow anyone to park on the street. If we have a back-up they need to go down the road to the airport. MM – I’d like to make some recommendations. Sunset clause and a one year review. LM Chair – Do we want to request a parking plan? JC – I think it will be changing depending on the type of vehicles on-site. Whether it be car, trucks, boats or campers. It’s kind of a unique situation. JB – It’s all behind the fence. I’d like to have all the broken slats fixed on the fence. Mr. Moran – The part of the fence with the broken slats belongs to Tango Construction. MM – I’d like you to take some time before your review to see how to make the front of the property more presentable. Mr. Moran – I’m with you on that. The issue is what these kids are doing. The guy across the street spent tens of thousands of dollars on that fence and it wasn’t up a week and it was destroyed. It’s out of control. MM – There has been a number of people from that area before us and they all have talked about the vandalism and theft. JC – We’ve made this comment to other applicants on that street, and suggested video surveillance. That makes since until they put a hood over their head, then you still can’t tell who they are. LM Chair – How about no parking of vehicles on the roadside? MM – If you want to put that in as a condition that’s fine. Mr. Moran – What’s a sunset clause? MM – It just means that when the time comes and you either decide to move or discontinue your business the permit expires for that location. JM – Are you planning on staying at that location this year? Mr. Moran – I’ll be honest with you, we are growing. I don’t know if this location is going to be adequate for a long term situation. I may be back here. JC – How long is your lease? Mr. Moran – It’s a month to month lease. Hearing Closed: Deliberations: JC – I am in favor. Also, I would like to add a finding that the street address is 134A Crawford Street. MM – In favor as it meets criteria under 181.93 with conditions as discussed. JB – Favorable with conditions. JM - Favorable with conditions. LM Chair - Favorable with conditions. LM Chair – Did we decide no more than fifty vehicles? JC – I like your comment, if he’s going to be in business and come back for the review, we can discuss it at that time. I don’t want to stipulate a number right now. Conditions: A. No storage or parking of vehicle on the roadside. B. Review date will be September 8, 2015 C. Sunset Clause D. Not to be operated as a nuisance MM – Motion under ZBA 2014-25 to GRANT a Special Permit as requested to JMAC Distribution LLC on 134A Crawford Street with said conditions. JC – Second Vote 5-0 7:30PM ZBA-2014-26 Paul Amanatidis 1109-1151 Main Street Special Permit under §181.313C.12 to operate an automobile repair service. In the Central Business District at 17/64/0 – 1109-1151 MAIN STREET LM Chair – Please state your name for the record. I am Brian Marchetti with McCarty Engineering; we are here on behalf of the applicant Mr. Amanatidis. This is for the redevelopment of an existing structure. The overall project is located on 1109-1151 Main Street. There are several projects at this address; the only one that is non-conforming with the current zoning is the auto repair shop. Currently the site is inhabited by abandoned structures. Building one is proposed to be a restaurant. Building two is going to be divided between the convenience store and the auto repair shop. Buildings three and four are abandoned structures with no work proposed at this time. Currently the site is mostly paved; it’s just going to be redevelopment it’s going to be put back in place. The existing structure as it is does not have to be demolished and rebuilt. The interior of the space as it is set up now can be used for the proposed use of the building with one exception. There is no oil/water separator currently; the floor drain is tied directly into the sewer. As part of this project we are going to install an oil/water separator. There won’t be any major changes required; it’s a continuation of historical use. We’re here to ask approval for the project. Petitioner originally requested a Special Permit under Section 181.3561 which was incorrect. Petitioner, Building Commissioner and the ZBA are in agreement the request for the Special Permit is correct under section 181.313.C.12 as the petitioner referred to in his response to #8 of his request. JC – Are we only concerning ourselves with the automotive repair? LM Chair-Yes, that is what the request is for. Building Commissioner – The market is an allowed use by right in the Central Business District as would be the parts store. The auto repair is a Special Permit from the ZBA by the table of contents. BM – We have already gone before the Planning Board and the Conservation Commission, they have no problem with moving us forward with the project. The Planning Board issued us conditional approval at the meeting last month. I believe they said that they were going to forward you a draft copy of it. LM Chair – We have not received anything from the Planning Board. We are now going to open the meeting up to the audience. Those Seeking Information: None Those Opposed: None Those in Favor: Tom Donnelly Mr. Donnelly – I do not have a beneficial interest directly, but indirectly I do. My mother-in-law is an abutter; she has been there for over sixty years. My wife and mother-in-law couldn’t make it, that’s why I’m here. She and the neighborhood welcome any kind of an endeavor. This will be a welcome addition to the neighborhood. JB – Where’s your mother-in-laws property? TD – Everything to the left. JB – Does the driveway between the two properties belong to her? TD – It’s a right-of-way for both sides. LM Chair – Anyone else in favor of the petition? - None Patrick McCarty from McCarty Engineering. I just wanted to elaborate on the evolution of the plan since we started the design. PM references the colored rendering of the plan and explains the changes made at the request of the Planning Board and the Conservation Commission. Originally there were 31 parking spaces now there are 29 parking spaces which have allowed us to create a green corner and pull our driveway farther away from the intersection. That was one of the things that the Planning Board asked us to do. These dark lines bring out a very wide open curb cut and represent the re- working of the curb line of Main Street to clearly define entrance locations. And as part of that, you see the area shaded in grey is where we will have to repair the sidewalk. Essentially from Chestnut to the front of the convenience store. MM – Could you define repair the sidewalk? PM – Repave it with asphalt, that is what’s there now. MM – Not with concrete? PM – No, it’s asphalt all the way along. We are putting in granite curbing to match what’s there. To define our entrances and then paving behind that to create the sidewalk. We’ve created a couple of small landscape islands. We’ve proposed a six foot white vinyl stockade fence that starts 50 ft. back from the intersection, comes up to the other entrance and then across the back. The upper and lower parking lots are being paved. Storm water controls are being installed where there are really none. We are not doing anything with building three because the roof is partially collapsed because of a failing of a City culvert. LM Chair – What is the project cost before they even open their doors? PM – It’s very substantial. The existing market with the mural on the side, they are putting an addition on the building. It’s all family business. Georgia, Paul and their son. They are not renting anything out. The last two things that we discussed with the Planning Board that are under conditional approval are adequate lighting on the building and security cameras. LM Chair – If the project were approved what would be the timeline? I’ll call Jay tomorrow morning to see if he has the stamped architectural drawings ready so we can file a building permit on the restaurant. In reality, it is winter and we can’t do too much of the site work. If the mild weather continues maybe we can get the foundation in for the addition and get going on the restaurant build-out. As soon as Mr. O’Hara has the final version of that draft approval we can take that and Jay’s stamped plans and file with Mr. Lanciani for a building permit. Opened to the Board: LM Chair – Does anyone have any questions? MM – Why are there 11 unregistered vehicles on the property at this time? PA – I have the A+ Auto Sales, it’s a small property, I moved them over there so I could clean out the snow and move them back again. We didn’t give you a permit for that many vehicles. If your lot at A+ is full why are there 11overflow vehicles on this property? PA – Two of the vehicles are mine. There are only 6 vehicles not 11. MM – When I was there Sunday there were 11 vehicles there with no plates. I’m trying to understand what you envision the automotive portion of the business on that property. Is your intent to sell cars on that property as well? PA – I’m hoping to keep the auto sales at 1033 Main Street and do the repairs at the new location. MM – If you were granted a permit, are you going to have 5 + vehicles sitting in the back lot? PA – The vehicles that are for repairs will only be in the back. Nothing in the front. The front parking will be for the restaurant and the convenience store. The inside of the building holds about 10 to 15 cars. MM- I mentioned this at the Planning meeting; it looks like a good project. What I am concerned about is the rear half of the property. There were trees up there and it at least masked everything from the residential portion of the neighborhood. Now, that little building in the back had an automotive bumper leaning against the building, some automotive parts, it was pretty unsightly. PA – I clean it up every day, people keep dumping their things there. I’m waiting to get my permit so I can fence it in. MM – Can you take me from left to right up in the back and layout for me what’s going to go there? Is the shared driveway going to be paved? PM – It is paved; we are not going to repave it. When? PM – There are some drainage issues to be addressed. One is the City’s issue, repairing what I think in general is broken clay pipes, or as the water is coming down from Goddard and is taking a right turn out of the pipe it’s washing out through the building. This is undermining the foundation and is probably the source of the icing problem. We have new catch basin, actually a water quality unit we have to put into the pipe that ties it into the manhole. We have the new walkways and curbing to do with the building. The entire lower parking lot is getting repaved. We have some site work to do. In reality it would probably be mid to end of summer. MM – Take me across the back. The plan shows all this nice greenery. Right now it’s not. Is the granite work done? PA – No, it’s not done. It will be cleaned up with a retaining wall. MM – From the granite up to the building, what are your plans? PM - It’s all being ripped up and being replaced with pavement. There will be no storage. You’ll be able to drive through. MM – The building with the roof caving in, when will that be addressed? PA – Once the dust settles we would like to develop that also. GA - I was thinking of maybe at some point fixing it up and using it for a function hall. We can’t proceed on any work there until the City takes care of their problem. JM – In your opinion, can that building be salvaged? PM – Yes it can be salvaged. JM – If we approve this tonight what are we going to do with that building? That is my biggest concern right now. MM – Do you have any structural opinions? LM Chair – That is not on our agenda. PM – I was just going to politely suggest that. MM – You are here for the Special Permit, but I have to understand what’s going on in its entirety. PM – The absolute honest opinion is that I don’t know. Because we don’t know how long the City is going take to fix that, we don’t know what the condition of the building will be when it is fixed. I honestly can’t give you an answer to that. MM – That’s an ok answer. On the right you have angled parking. What’s that for? PM – Staff for the restaurant. So they are not taking parking away from the front. MM – So you won’t be sub-leasing any parking to abutters? PM – There is a gate here and at the other end that will be locked when the restaurant close. There will be no access afterhours. MM – We have two small sub buildings up in the rear corner. The place is in pretty rough shape. What are the short term plans for that area? PA - We plan in the springtime to clean it up and replace the doors, the roof is leaking and needs be repaired. MM – You’ve answered a lot of questions for me, I appreciate it. JB – I don’t think Mike’s question about the 11 unregistered cars was ever answered. PA – The only reason I moved those cars there was because of the snow. PM – I think I can shed some light on this for you. There is an existing overhead door here, if you go inside there is a large room here. You can drive through and come out the other side. There is another overhead door on this end that we won’t use because it conflicts with everything else. You can get cars in here and cars in here and turn right and put more cars there. There are 3 large rooms and once it is renovated those cars would be inside not outside. LM Chair – Those would be the unregistered because he would be repairing them to bring them to his lot to sell them. PM – As we all know, parking is key to the success of a business. If you can’t pull up in front of a business and park it’s a problem. We don’t want any cars that are not related to the restaurant or the convenience store taking parking spaces. MM – A condition not allowing unregistered vehicles to be parked outside, is that acceptable? PA – Absolutely. MM – It would help me look favorable if we could keep unregistered vehicles inside the building. And at some point if you could move the camper to a more permanent place. Short term, what are we going to do with all the vehicles that are outside? PA – It you go there tomorrow you won’t see the vehicles there. MM – So the pick-up truck will be gone? PA – I had the pick-up truck there because I was cleaning out the building. LM Chair – In reference to the back along Goddard Street and down the side. Was there going to be fencing there? PM – The City has a chain link fence there now, that will not be changed. LM Chair – When you come down Chestnut, that area is going to be open and cars could come in from the street. PA – No, they would be towed. MM – How many door bays will there be? PA – Just one in the front. Two bays next to the convenience store. MM – Will vehicles come in to the right of the convenience store and go in for service? PA – I have no plans of using that for moving cars, I only have plans to go in a come out the same way. MM – We see a lot of tagging and vandalism, are we better off with the black chain link fence vs. the white vinyl stockade? The black chain link, you can’t graffiti it. PM – That’s a great point, all I can say is that you would have to take that up with the Planning Board. The Planning Board are the ones that are adamant about the white stockade. The only other choice we had was decorative aluminum which is very expensive. PM – The Planning Board looks at the chain link fencing as a security fence not a screening fence. They wanted more of a screening fence for this property. What are the gates going to be made of? PM – The gates will be a reinforced frame with the vinyl applied to it. MM- Could you elaborate a little, what’s a reinforced frame? PM – On the inside would be a steel frame. It will be commercial grade. MM- Do you have to go back before the Planning Board? PM – No, we’re done. JC – What will be the hours of operation for the auto repair business? PA – They will be 8:00 A.M. to 6:00 P.M. Mon – Fri and 8:00 A.M. – 12:00 P.M. Saturday. JC – Will this be consistent with the hours for your other businesses? GA – No, we are unsure at this point what the restaurant hours will be. The convenience store probably open until 11:00 P.M. JC – Your auto repair business is going to service your car sales. Are you also going to advertise to have private people bring their vehicles in for repairs? PA – Yes, absolutely. MM – How out of the question is it to put concrete sidewalk vs. blacktop? PM – On the City right-of-way? MM – You said you were going to be replacing the surface of the sidewalk. PM – That’s what’s there and it continues down. We are just matching what’s there. It ties right in with the paving in our parking lot. MM – But, you are putting new granite all the way along from the building to the corner. PM – Not all the way, there are existing sections that remain. We are closing things down and reconfiguring to make the entrances. We are putting new asphalt from the building to the corner. MM – Are you replacing granite or not? PM – Everything along the street that is marked in the bold black. Are you recreating it or just scabbing pieces in? PM – There are wide curb cuts approx. 30 ft. wide. The curbing that exists will remain, if it turns in we are going to take the turn off and extend it to where the new driveway is. MM – Are you resetting the existing granite? PM – Where it needs it. I know that where the catch basin is and that is a disaster. That is going to get reset; the curb is going to get reset. It’s not going to look scabbed in; it’s going to look correct. The new pavement starts at the back of the curb and goes right into the site as one continuous piece of new asphalt. It will be the same height as the parking lot. Hearing Closed: Deliberations: MM – I think we can get there with some of the conditions we talked about. JB – Why are we giving this Special Permit before anything else is done? LM Chair – Because he can’t get going on the project without it. MM – If you want to open up and get a timeline on the project we can do that. JC – I believe that question has been addressed to the point where nothing can be done until the City addresses the culvert water issue. They could give us a timeline of whatever you want to hear, but if the City doesn’t move nothing is going to happen. LM Chair – I think that’s why I think we should wait until September for a review. MM – It would be nice to know the timeline phase. What is going to be done first? The auto repair, restaurant or the convenience store first? We can open up and ask that question. Open to the audience: PM – In terms of the amount of physical work needed to be done, the convenience store needs the least. That is likely the first thing to get going. JB – What’s the timeline for that? PM – We are hoping that the architect has the drawings to obtain the building permit as early as next week. In a very close time frame we will be submitting the permits for the restaurant. Then the repair shop. I wouldn’t want them to spend any money on pavement until the drainage issue is resolved. I guess that gives you the sequence. LM Chair – What would you think the earliest time would be? PM – Realistically the end of summer. MM – For all of it? PM – Probably, as soon as the architect has the plans ready we will submit the applications for the building permits. We could have filed for the building permits for the convenience store and the restaurant already; we’re just trying to get everything I order. JB – You’re here for the auto repair business. Why hasn’t that already been started? Does he need a Special Permit to put the oil separator in? PM - We don’t want to spend $10,000 to put in an oil water separator and then the ZBA may deny the Special Permit. MM – I would like to talk about a couple of conditions while we are open. 1. No vinyl banners 2. No for sale vehicles 3. Concrete Sidewalks 4. Granite in the rear is to be used for a retaining wall, as per the plan 5. No outside storage of unregistered vehicles or hazardous materials 6. Hours of Operation - 8:00 A.M. to 6:00 P.M. Mon – Fri and 8:00 A.M. – 12:00 P.M. Saturday 7. Sunset Clause 8. Review date of May 12, 2015 You spoke to the granite curbing; I would still like to see the concrete sidewalks. PM – To be honest, we have given an awful lot. MM – I’d still like you to think about that. PM – Fine, we’ll agree to concrete sidewalks. Hearing Closed: LM Chair – Are we all in agreement with all that was discussed? JC – I would like to say that I am fine with matching the existing asphalt sidewalks. I understand Mikes reasoning for the concrete. But, I just don’t see that it should be a sticking point. MM – They’ve already agreed to it. MM – The review is in 5 months, you won’t be doing the sidewalk at that point. JC – I would suggest that we look at that again in 5 months. I’m assuming there is a huge cost difference between the two. LM Chair – I agree with Jim, we can put it in and re-evaluate at the time of the review. MM – Motion under ZBA 2014-26 to GRANT a Special Permit as requested to Paul Amanatidis with conditions as stated. JB – Second Vote – 5-0 7:45PM ZBA-2014-27 James Rheault & Brian Milisci 260 Lincoln Street Overrule the decision of the Building Commissioner Overrule the decision of the Building Commissioner’s Zoning Decision for 260 Lincoln Street - 13/59/0 – 260 LINCOLN STREET LM Chair – Please state your name for the record and tell us about your petition. For the record my name is James Rheault and I am representing myself and my partner Brian Milisci, we are the owners of 260 Lincoln Street. We are respectfully appealing the decision of the Building Commissioner. We asked the Inspector for a ruling because in years past it was a two-family home and it burned down. The owner at the time it burned was Kenny Thibeault of KRT Construction. I believe Mr. Thibeault applied for and was granted a building permit by the City of Fitchburg to demolish the building. The building came down. Several years passed and nobody at that time Kenny or the owner after Mr. Thibeault applied to rebuild the two-family home. Then James Rheault and Brian Milisci come along knowing what is commonly referred to as the Permit Extension Act, with that knowledge and a few opinions purchased the property. We approached the Building Commissioner to give us a zoning opinion to rebuild the two-family home. He respectfully denied. LM Chair – Before you purchased the property, did you approach the Building Commissioner about the potential of building a two- family there? JR – I believe we approached the Commissioner before we took ownership. LM Chair – And he told you no? JR – Yes, we received the zoning determination about a year ago, knowing his decision we asked him for a more recent opinion as part of the package. We are appealing it based upon the Permit Extension Act. I took a lot of time and put a lot of information in the packet for the Board, I trust you read it. I don’t want to go through everything because it is a lot of information. I do want to touch on a few key points. Is the Board familiar with the Permit Extension Act in Massachusetts? MM – We are now. JR – In my profession we use the Permit Extension Act a lot. We’ve used it in many communities without hesitation from the communities they will issue the permit. In the Permit Extension Act basically if you have a permit that is in existence from 8/15/2008 to 8/15/2012 it carries with it an automatic extension for four years from the date that it expires. In this particular case a building permit was issued to KRT Construction to demolish the structure that existed on the property. That was issued I believe on 3/15/2011. The Building Commissioner in his determination dated 11/21/2012 gave in writing to Mr. Thibeault which basically states (Exhibit D6) the zoning determination for 260 Lincoln Street map 13 block 59 lot 0. The third section states per section 181.357 the non-conforming structure may be reconstructed, provided that the owner shall apply for a building permit and start operations within two years of said demolition. The permit for demolitions was issued March 15, 2011. At that the Building Commissioner says ‘I’m going to give you a building permit to demolish the building, and you have 2 years to rebuild the two-family home.” Because the building permit was issued during what they call the tolling period of the Permit Extension Act it carries with it an automatic four year extension. The right and determination that was made at that time extends four years. The actual date that a permit can be applied for according to the Permit Extension Act is actually 2017. JB – You said that the Building Department issued a permit to KRT to demolish and that permit can be extended for 2 years, 2 years after the initial 2 years. Is that correct? JR – That’s correct. JB – That permit was issued to KRT, a permit is issued to the Company not the land, and KRT can’t pass it on to anybody else it just dies with the property. JR – But it doesn’t. With the Permit Extension Act it does not die. JB – Well, you’ll have to prove it to me. JR – We certainly will. That right, that extension, based upon the permit that was issued is passed to each owner in succession going forward, that’s part of the Permit Extension Act. Again, I can get you a written determination; I can get you that documentation. MM – Is that in this package? JR – I’m not sure, but I can get that for you, that’s not a problem. We’ve researched it to death. I’ve used it in other communities for future owners. LM Chair – I’m surprised that we haven’t seen it before the Board before. JR – I’m not surprised, all cities and towns don’t know too much about the Permit Extension Act until somebody brings it forward. If you could, just go to the back section of the documents that I have given you, there is a list of frequently asked questions. Exhibit D 10 Page 1. If you read the section “What types of approvals are included in this Act? A permit for an approval is actually a determination. A zoning determination. That fits the definition of “Permit” under the Permit Extension Act. So does the building permit that was issued on 3/15/2011. LM Chair – The purpose of the Act is to promote job growth and long term economic recovery. Could you speak to that? JR - When we had an economic downturn several years ago, permits were pulled for projects. The projects were started and stalled due to the economy. That is when the Permit Extension Act was instituted. It began with the tolling period of 8/15/08 – 8/15/2010. That was the first section of the Permit Extension Act. It was going so well that they extended it to 8/15/2012. Then because of the second section of the Permit Extension Act they extended all the permits another four years. Think of a sub-division that was approved in 2008. LM Chair – I would like you to apply it directly to this situation. JR – It applies directly to this. This is exactly one of the things it covers. A permit, no matter what approval, no matter what determination of rights, or determination that’s made on a piece of real property, that determination of right or permit gets extended four years. So, if in the building or demo permit, that carries with it a 2 year window to re-apply for a building permit. That’s a right; in fact the Building Commissioner put that in writing. If you have a right to build a two-family within two years of that building permit being issued to demolish the building. You have four years from the date it expires. So, according to the Building Commissioner it expires two years after the date of the issuance of the demolition permit. That would be March 15, 2013. That actually gets extended, that right, that determination of right gets extended to March 15, 2017. That’s how it directly applies to it. Now that said, what I did for the Board and myself is I have attached three letters from three Attorneys (Exhibit B). The letters state a review of the situation and how the Permit Extension Act. All three feel that it is by right that I have the ability to apply for a building permit to rebuild that two-family home on 260 Lincoln Street. LM Chair – Do you feel that there are any Attorney’s that would say that it doesn’t meet the criteria? JR – I know the Building Commissioner asked Mark Goldstein to review it and write a letter. His letter is also in the package I have submitted to you. He does not agree, he does not feel a permit was issued that can be extended. I don’t think that he has read the entire packet that was submitted. I don’t think he read the definition of approval of a permit. If he did, the determination of right or determination is an approval that is extended by the Permit Extension Act. Myself and my attorney Mr. Campobasso is here to answer any question that you have regarding the information for the situation that we are in. Those Seeking Information: None Those Opposed: Those in Favor: Jenny Fanos – 270 Lincoln St. Christine Fanos – 270 Lincoln St. JF – I have been living in my home on Lincoln St. since 1946. It’s been a beautiful area from Rice St. all the way down to Lincoln St. where it meets John Fitch Highway. It’s been very quiet; there’s been no trouble, except for that two-family that was there. There were people there that caused a lot of problems. In fact their dog attacked me. It just doesn’t seem right to put a two-family home there. I feel it would spoil the ambience of that whole section. From Rice St. all the way down it’s been one family homes. To put a two-family or a duplex it would just spoil the whole look. It’s really a nice area, just for one family homes. LM Chair – Are you looking to have a single family home there or nothing? JF – A single family house, I would approve of that, but not a duplex or two-family. I’m not in favor of that at all. LM Chair – Thank you for your input. CF - The one family home that was there all those years, it was a two-family home. One family was living upstairs and downstairs. When those people sold the house we had new people come in. The new people came in and destroyed and obliterated the house and the property. It was not just two families. There were relatives that came, there were parties and the Police were called many times to 260 Lincoln Street. After living through seven years of that situation I’m worried and concerned that we will have a repeat performance. He is not looking to build and move in, he is looking to build to rent. We do have a nice quiet area and I am opposed to what goes on the other side of my fence. LM Chair – At this point I would like the Building Commissioner to advise us of his position. Robert Lanciani Building Commissioner – I spent a lot of time on this property with Mr. Thibeault. He was looking a putting up to a four family house on this property and didn’t do anything with the demolition until he had come up with some things. I’ve been through the Permit Extension Act with Mark Goldstein as our Counsel on it. Kenny was offered the opportunity and it was discussed with him that he could apply for a demolition and a reconstruction permit. The Permit Extension Act would certainly have bought him time and the building permit to build a duplex would buy him time. He wasn’t sure what he was going to do with it. A demolition permit was issued. In the packet given to you of the frequently asked questions if you look on page three of that there is a question. “What if I receive a partial building permit during the qualifying period but not a permit for the rest of the project? This one is the only permit that is issued or already in effect is eligible for the four year extension. That is the basis that Mark Goldstein said to me that reconstruction would not be part of the Permit Extension Act. For instance, if they had been given a permit for the foundation permit and they hadn’t asked for the whole building and the time ran out they wouldn’t be granted to build on the foundation. He was given a permit to demolish and the Permit Extension Act in Mark and my opinion is good for an additional four years. But the building is gone, the demolition is completed. They never applied for the building permit during that two year window. Mark’s opinion was the two year that our zoning ordinance allows someone to build after a catastrophe wasn’t covered by the Permit Extension Act. I relied solely on our Legal Counsel to the City to base my opinion. That it wasn’t covered and that is why I denied it. I had no problems with the idea of a two-family there. A two-family home was there for years. The time frame for the city zoning ordinance gave came and went without any action taken by issuance of a permit. Mark said this didn’t apply. That’s where I stopped. I’m not opposed to it. If you feel I’m wrong overturn my decision. I based my decision on what out counsel thought we should be doing. JR – Just one point the Building Commissioner brought up, he is absolutely correct the time expired before anybody applied for a building permit to rebuild. If the time expires during the tolling period it gets extended four years. Take a look at Exhibit D 4 in the packet, that is a building permit issued on 3/15/11 for the specific purpose of demolishing the building. Then if you fast forward to the section for the zoning determination by the Building Commissioner per section 181.357. That right, determination that I have today expired 3/15/13 and automatically extends four years under the definition of approval for the Permit Extension Act. MM – But here it says only the permit that was issued. JR – That’s a great example because I deal with it all the time. A lot of my clients decide to build and are not ready to give design plans, for whatever reason, they will apply for a foundation permit and the Building Inspectors that I deal with will issue a foundation permit. You still have to apply for a building permit to build a house. In this particular case it’s a little bit different in that I have the right and the determination has been made that I have the ability to apply for a building permit within the two years of that building permit to demolish. That two year window came and went, under normal circumstances I wouldn’t be here asking. Because of the Permit Extension Act it automatically gets extended four years. LM Chair – Are you saying that’s because you got a partial building permit? JR – No, that’s because a permit was issued, that has built into that permit the right to apply within two years. The Building Commissioner made that determination based upon his letter in the exhibit. If the Permit Extension Act never came to be, I wouldn’t be here asking for this because I would then need a Variance. Opened to the Board: LM Chair – Does anyone have any questions? JB – Not at this point. JC – Would this potentially allow you to build what was pre-existing? JR – In my opinion, I would be allowed to make an application to the Building Department to rebuild a two-family structure. I still would have to conform to the set-backs. JR – I’m not sure where she lives, is she a direct abutter? CF – We are a direct abutter. JR – Since I’ve owned the property I have received a few calls from them. The grass is too long, or whatever the case is. I have always responded. I’m very responsible; I’m not trying to ruin the neighborhood. A two-family was there, I’m just trying to rebuild it. That is a single family home that directly abuts us on the right; to the rear and to the left there are multi-family homes. JC – Where is the multi-family home on the left? JR – To the left? Along that is a side Street, I believe Rice St. I believe there is a multi-family home. MM- A lot of reading before this case, I really stick to the law, it makes the job real easy. You’ve brought up great point, but I keep going back to what is in front of me. Which is a clear permit for demolition, then I am looking at what I highlighted before I got here. Which is what Mark Goldstein had based his opinion on. It states only the permit issued. I am seeing a demo permit, and I keep reading it again. I know two things in zoning, a Variance is for the land and a Special Permit is for the applicant. LM Chair – You said there was information that you could get for the Board showing how it qualified and how it transfers. VC – I am one of the attorneys that wrote a letter trying to explain the position that Mr. Rheault has taken regarding the Permit Extension Act. I believe one gentleman asked the question “Is the permit assignable?” Mr. Goldstein in his letter I am sure would have indicated that Mr. Rheault’s rights would have been foreclosed when he purchased the property. He did not make that argument, because the argument is not valid, the permit is assignable it runs with the land. Mr. Goldstein wanted to end this argument once and for all even if simply stated in his letter. The building permit is not assignable; therefore your rights are foreclosed. But, he did not do that. JR - I can get information, I have several documents that says it’s assignable as long as the current owner is agreeable to the conditions of the permits that have been issued. I can get you that documentation. MM – Are you the current owner? JR – Yes I am. MM – If you’re here tonight I would like Mr. Goldstein to be able to rebut. JR – Mr. Goldstein points out in his letter that the Permit Extension Act is valid and it is binding. He relies upon a City Ordinance to cut short the time to two years. The whole purpose of the Permit Extension Act was to override local zoning by- laws. While he makes a valid point, I don’t think the point is valid because he relies on a local ordinance that was overridden by the state statute. The Building Commissioner indicates by reading some of the questions in the Commonwealth of Massachusetts frequently asked questions document after the Permit Extension Act was allowed. What types of approvals are included? What if I received a partial permit during the qualifying period but not a permit for the rest of the project? There was one permit issued here, it was a building permit for the demolition of the building. Only if the permit that was issued or was already in effect is eligible for the four year extension for instance if the foundation permit was issued during the qualifying period but other permits for the remainder of the project were issued outside of the qualifying period, no other permit were issued in this instance. Only one permit was issued. I believe the argument that the Building Commissioner is making is relying on something that did not take place, because no second permit was issued. If you look at the questionnaire on page five of exhibit 10, I believe this is the one that really hits home. Please look at the third paragraph from the bottom. If work under a permit or approval requires other permits, are they also automatically extended? If permits or approvals are covered by the Act and were issued or already in the effect during the qualifying period, they would also be extended. I don’t know that it’s any clearer than that. We can talk about building permits or demo permits, we have to make sure that we understand that any permit is subject to this Act and if that permit carries with it some other right that all of that is extended under the Act. The Act is so broad that they excepted only four things from the intent of this Act. I believe I mentioned them in my letter. It’s not like the Act said it covers this or that, it covers everything except these four things. None of these four things are applicable in this situation. LM Chair – At this point for me what I need to understand is whether it be assignable. JR – In this case the approval or the permit is transferrable to future owners as long as it is within the qualifying period and right now it is our position that everything is extended to 2017. LM Chair – At this point I would like a continuance, and ask that you get the information and see if we can have Attorney Goldstein to join us in February along with the Building Commissioner. MM – Motion to continue ZBA 2014-27 until February 10, 2015 @ 7:15 JB – Second Vote – 5-0 8:00PM ZBA-2012-04 Tom Crounse 161 Benson Street Review of Special Permit to operate a limousine business under §181.313.C.2 located in the Industrial District at 113R/4/0 – 161 BENSON STREET LM Chair – Please state your name and address and tell us how things are going. My name is Tom Crounse; I live at 159 Elm Street in Fitchburg. My business address is 161 Benson Street. It has been three years since I was granted the Special Permit for my business and the business has been growing every month, we have done over 700 trips. We focus on airports, the business is growing and we want to add more vehicles. I would like to add three more vehicles, we already have two. They are located within the Benson Street lot; they are not on the street. MM – Do you have a little office there? TC – No, no need to have an office there. We just park the vehicles there. There’s a gate with a combination, we’re in and out 24 hours a day. It’s a good, safe location. LM Chair – I didn’t see your hours of operation. TC – 24 hours a day. Those Seeking Information: None Those Opposed: None Those in Favor: Vallerie Koutrakos 159 Ellis Street MM – Basically everything remains unchanged, you just want to increase two vehicles to five. TC – That’s correct. Opened to the Board: MM – I have no problems with what he has done over time, it seems pretty seamless. It’s not a residential neighborhood. It’s a nicely, well thought out approach to the business and I would be ok with bumping that number up to five. LM Chair - Employees? TC – I have part-time employees. LM Chair – They just go there, grab a vehicle and leave their vehicle there. TC – That’s right. JB & JM – I have no questions, it’s beautiful, looks great. JC – I have no concerns. LM Chair – Would you like to close and deliberate? MM – Yes, I’m in favor of increasing the number of vehicles to five. I don’t know if you would like another review for a year or two, that’s up to the Board. LM Chair – I’d say not to be operated as a nuisance, and leave it at that. If everyone is ok with that. MM – Just add the sunset clause. LM Chair – What we need to do is go back to our findings of D and that would be five vehicles and then change #1 to Parking for up to 5 vehicles in this location. Not to be operated as a nuisance will be #3 and a sunset clause will be #4. Is everyone agreeable? All – Yes MM – Motion to continue ZBA 2012-04 to grant the review with changes as mentioned by the Chair JB - Second Vote 5-0 8:15PM ZBA-2014-08 Timothy Pomerleau 150 Benson Street Review of a Variance under §181.313.C.11 to conduct a vehicle recycling and salvage business in the Industrial District at 183/15/0 LM Chair – Mr. Pomerleau, we are here to continue last month’s discussion. I believe you also have some information which we asked for. I see Ms. Stroparro is here also. TP – We have a two year plan here. I am in the process of buying the land from Karen. We have a layout here of what the property will consist of for the next two years. Also the expansion of parking for more vehicles than we have had in the past. I just purchased the land next to us, Aaron’s Pallet. We’re running out of room to expand right now. In order for us to use this property we either need to expand or we need another location. That is one of the reasons we are looking for these changes. MM – All of these changes, do you have to go in front of the Planning Board? TP – We went through the Building Department and Fire Department. MM – My question is, “does a project of this size require a site plan review”? Does Mike O’Hara need to look at it? LM Chair – Mike has already looked at it, for Planning. Could you get a print out of the minutes from our last meeting for Michael to bring him up to speed as he was not in attendance? LO – Yes MM – Parking last time was for how many? TP – The first time we were permitted for 30 vehicles. We now have it mapped out for 140 vehicles. There is a lot coming out of this area here to accommodate the space for the parking. LM – Let’s open up the plans that we marked up last month so the Board members that were not there can take a look at them. MM – You are going to be primarily doing vehicle recycling and parts sales. Are you going to be selling vehicles? TP – We can’t do it on this property for now. This yard means more to me as a parts yard for vehicle salvage than a sales facility. We have the class 2 and class 3 licenses. For now, until we find a location for the truck sales we will keep the truck sales going on a small scale. MM – The scrap business that you had is going away? KS – Tim is outgrowing the property, and with me there he is stifling his growth. He was looking elsewhere, outside of Fitchburg. He was able to get some permitting and was just about moving. We came up with the idea that I would move to 158 Airport Road. If I could get permitting there, he could purchase the 150 Benson St. property and expand so he doesn’t have to leave Fitchburg. If he were to Fitchburg I would be in a position where my business is too small to utilize that whole property. I would be forced to sell my property and move out of Fitchburg. Rather than have two businesses leave town I am hoping that it will work for him here and I can move to 158 Airport. I have had Alton Stone send a Letter of Intent to the Building Commissioner which was denied on the scrap part of the business. The Industrial Zoning is ok for my dumpsters. But, I would like to move my business is. The dumpsters and the scrap metal. In the winter time when the roll-offs slow down the scrap metal keeps me afloat. This is all depending on my permitting. If I can’t get permitted to 158 Airport this would not be possible. We have a plot plan and a site plan to show what we want to do with that property. Hopefully Alton can get everything submitted. If it all works out it will be a win for both of us. LM Chair – Tim could you please bring the Board up to date and refresh us on the changes that were made to the plans at last months’ meeting? Mr. Pomerleau goes over the changes with the Board and explains all the changes made. LM Chair – This plan is contingent on your Variance. KS – That is correct. LM Chair – Mr. Pomerleau, my question is, how are we going to be able give you yours without Ms. Stroparro having hers? TP – That’s a good question. KS – He can’t get his if I can’t get mine? LM Chair – I’m just saying why would you want to do that? KS – If Tim were to get the ok to do what he wants to do and I am not, I would be forced to leave if he were to buy the property. If I can’t get it, I can’t sell the property. JM – Then you are going to have to continue on as is for now. KS – Until he finds another location with permitting. JM – Say Karen had to stay, how would that help you? TP – The biggest part I need right now would be the vehicle parking. If for some reason this doesn’t go though and I need to move part of the business out of town, I can do a sales and distribution out of Fitchburg and keep the main part of the business there. It wouldn’t be convenient, and then I would lose a lot of employees from the Fitchburg area. The whole dismantling takes about 15 people and a lot of them aren’t going to travel where I would probably be going. LM Chair – Las month we asked that they put everything in a plan so we could see it more clearly. TP – Realistically the only thing that has changed is the amount of vehicles we are storing there. The space does accommodate for it. Regardless of what happened we want to increase the number of vehicles. MM – What’s one of those spaces? TP – I believe it’s 15 x 30. MM – What are you looking for approval for tonight? TP – The parking spots. LM Chair – Say you get approval for this tonight and then you have your appeal period, how quickly would you be moving to do this? TP – Right away, as soon as the appeal process is over. If you approve this tonight, and she doesn’t get her approval it will accommodates us until we figure this out. LM Chair – What was the number of cars again? Both initially and requested increase. TP – Initially it was 30, the new request is for approximately another 100. KS – When we came before you for changes the last time we never really thought it would come to this. But, his business is growing and there’s just not enough room for both. MM- I’m still questioning whether a project of this size needs a site plan approval from the Planning Board. KS – We already had a site plan. LM Chair – You came to the Zoning Board after you had gone to Planning. KS – You had asked us if we needed to have a site plan review, Alton contacted Mike O’Hara and he said that we did not. I asked Alton to get it in writing in time for this meeting. LM Chair – Mr. O’Hara left it for the Board today and sited that since the use is not changing a new site plan review would not be necessary. Those Seeking Information: None Those Opposed: Those in Favor: Todd Vaillancourt 35 Rousseau Heights Greenville, NH 03048 Opened to the Board: LM Chair – Does anyone have any questions? MM – No, Site plan review, expansion of parking. LM Chair – I would like to do a review of the comparable’s between these and just make sure we are all on the same page. LM Chair – If the sale of the property to Tim does not happen, what are we reverting back to? TP – For now we would have to continue on with the plan just the way you see it. KS – I don’t think anything is going to change if I don’t go. It would be better if I do leave and it won’t be so cluttered. TP – Even if I have to stay here and continue to rent, the place is going to stay as you see it on this plan. LM Chair – Does anyone have any question about the plan? Does anyone have any questions for Mr. Pomerleau or Ms. Stroparro? MM – What input was there from Vinny? LM Chair – He’s all on board for this. MM – So, you might move, you’re probably going to be here, you could move to. We talk a lot of times about doing a lesser, instead of granting a Variance which goes with the land to grant a Special Permit. A Special Permit is for the petitioner, a Variance goes with the land which means that it can be this forever. It takes control away from the city. I’m in favor, it looks great. As I had mentioned before I would really like to see some streetscape improvement at some point. TP – I will continue to do more of that as I get up and running. I have a lot of goals to clean the place up; if I’m restricted I can only do so much because financially it takes away from what you’re going to do to clean it up. Presentation is a big thing for our company and our name and we want to clean it up. MM - What’s the negative impact to do this the full Board, with Vinny here? TP – It’s been going on for so long, we’re holding back more and more all of the time, I can only hold this back for so long because it’s hard. MM – What are you holding back? TP – I can’t store enough vehicles there, I’m juggling things all over the place. There are opportunities out there; I have to keep pushing them away because I can’t park the vehicles there. LM Chair – We said we would get this done this month as long as he provided Karen and the drawings. I have 31 employees and they are local, it’s hard keeping it going. JC – Mike, your concern is whether it is a Variance or a Special Permit? Can we approve what we have and let him do what he needs to do and have a review? MM – Well, if you grant a Variance you can’t retract it. JB – But, if you give him a Special Permit we can do a Variance later. Why don’t we just give him a Special Permit and let him move along? KS – But if you take it later, he has another property that’s all permitted he can move immediately. TP – We have a Special Permit now anyway, I’m not worried about that. KS – What I am saying is, are you going to grant something for him to move along and then maybe take it back? Board – No MM – A Special Permit goes to the person and a Variance goes to the land. TP – A Special Permit is fine with me, if you want to talk about the variance later let’s address it at another meeting. LM Chair – We were talking about a Special Permit, as far as I know. I think it would be an extension of what they are already doing. TP – I thought it was a Special Permit also. MM – The Board has the right to grant a lesser condition, which would be the Special Permit. LM Chair reads aloud the Boards’ findings and conditions. Findings: A. 1. Plan Exhibit 1 dated 11/25/14 2. Plan Exhibit 1 dated 12/9/14 B. Believes Mr. Pomerleau’s Business Plan would be beneficial to the district and a good use of the land. C. With the above findings, the Zoning Board of Appeals voted 5-0 to GRANT a Special Permit under§181.313.C.11 with the following conditions. D. Michael O’Hara has determined that a new site plan review would not be necessary since the use is not changing, they do not intend to construct any new structures or make alterations to the property for the continued operations, and they do intend to conduct operations using the existing structures. Conditions: 1. Hours of operation – 7:00AM – 5:00PM - Monday thru Saturday Closed Sunday 2. 7 Month Review – July 14,2015 3. Maximum 10 vehicles for sale on display for sale at one time 4. Maximum of 126 vehicles allowed in staging area awaiting to be dismantled 5. Not to be operated as a nuisance. 6. Sunset Clause LM Chair – Motion to amend from a Variance to a Special Permit Second – Joseph Byrne Vote – 5-0 to amend from a Variance to a Special Permit MM - Motion to grant a Special Permit on ZBA 2014-08 with the conditions listed and the plan as submitted. Second – Joseph Byrne Vote 5-0 to grant a Special Permit with conditions listed and the plan as submitted. 4. MISCELLANEOUS 5. ADJOURMENT Michael McLaughlin – Motion to Adjourn James Concannon – Motion Seconded VOTE: 5-0 Adjourned