Zoning Board of Appeals

Board of APPEALS 166 Boulder ZONING Drive Fitchburg, Massachusetts MINUTES March 10, 2015 ________________________________________________________________________________ ATTENDANCE: Vincent Pusateri II Co-Chair, Joseph Byrne, Joseph Maramma, Michael McLaughlin, James Concannon - Clerk ________________________________________________________________________________ 1. Call to Order LM Pledge of Allegiance: All 2. Communications: Attendance: VP, JM, MM, JB, JC 3. Hearings 7:00PM 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 VP – Attorney Goldstein, what are you here for tonight? Attorney Goldstein – I was requested to be here for ZBA 2014-27 260 Lincoln Street. The Building Commissioner was also requested to be here tonight and will be late due to his presence being required at the Finance Committee meeting. VP – We will see what we can get done without the Commissioner and we can go from there. JR – For the record James Rheault, my partner Brian Milisci, Attorney Paul Haverty and Attorney Campobasso that can speak on the matter as well. First of all I appreciate the flexibility of the Zoning Board last month and allowing the extension of time for us. JR - Just a quick summary, I know you heard a lot of this the last time we were here. VP – I didn’t as I was not in attendance the last meeting. JR – I’ll give you a quick summary. We submitted quite a bit of information. A whole packet of information. We are here tonight because we are appealing the decision of the Building Inspector with respect to and we are citing the Permit Extension Act. Not a lot of people, not a lot of Boards, not a lot of Communities have had experience with the Permit Extension Act. Whitman and Bingham Associates uses it all the time and we are very successful using it. One of the things you have to realize is the when you say “permit” we all think of a permit such as a demolition permit, building permit. A permit issued by the Boards is basically what the Permit Extension Act is all about. The definition of permit under the Permit Extension Act is very broad, and is basically defined broadly to include any permit, certificate, license, certification, determination, exemption, variance, waiver, building permit or other approval for other determination of rights in any order except for enforcement orders. A permit under the Permit Extension Act is a determination of right. A right to do something under a certain amount of time, two years. That two years, becomes six years under the Permit Extension Act. There is no other approval necessary to get the Permit Extension Act to kick in, it’s automatic. With that said, in the information I gave you, I submitted on Exhibit 6 a zoning determination by the Building Inspector dated November 21, 2012. It basically states that there was a two-family in existence on 260 Lincoln Street that was demolished in a fire, and that it may be reconstructed provided that the owner shall apply for a building permit and start operations within two years of demolition. The determination states that you have two years from March 15, 2011. You have two years, the Permit Extension Act automatically extends that to six. That said, as long as this is all acting within the tolling period which is, August 2008 to August 2012. It meets the tolling period, it meets the fact that it is a determination, it also meets the fact that it is a determination of right. VP – Are you saying that the Permit Extension Act can be applied to a grandfathered use issue, and that any grandfathered use issue is automatically extended by the Permit Extension Act for six years? JR – If you have a permit or approval VP – That is a yes or no question. Yes or no? JR – Attorney Haverty – That is a very good question, the statute specifically states that it applies to any exemption and a right under 40A Section 6. I did some research on the case law and it is barren. I found a total of five case that mention the Permit Extension Act. However, I did find one that was close to on point that is from the Land Court, there are zero appellate cases. That case is Walker Realty, LLC vs. Town of Acton. This actually related to the “zoning freeze” under 40A Section 6 when there was a filing of a preliminary sub-division plan that should have been followed by an approval of a definitive sub-division plan. The Land Court held that the Permit Extension Act did apply in that circumstance even though the definitive sub-division had not been signed within the appropriate time frame. That the Permit Extension Act extended that time for that to be signed. Therefore, all of the Zoning freeze rights under 40A Section 6 were extended. That’s as close as I can find in any case law. VP – So the petitioner’s argument fairly stated is that the Permit Extension Act will extend to a period of six years any use by right grandfathered or otherwise, particularly where there is a zoning determination letter or a right to termination letter. Attorney Haverty - It will extend by four years, in this case there was already a two year exemption period so it will extend that by four years to six years. But, say it was a variance and you had one year to exercise the rights on the variance, then you would end up having five years. VP – That’s the issue in this case. Attorney Haverty – That is correct. JR – I just want to get through one of the questions I believe the Board had at the last meeting we attended. Could it be transferred to future owners? The answer is yes it can be transferred to the current owners. We had three opinions we took off the internet. I have printed all of these opinions and will distribute them to all of the Board members for review. VP – Attorney Haverty, have you had a chance to prepare and review these cases? Attorney Goldstein – No, I don’t review those cases. I did provide an opinion, which I have copies of and will give to the Board. I also have documents from the Housing and Economic Development Agency on the Permit Extension Act to distribute. I can tell you that what the Building Commissioner and myself concur. This is a T that I wrote to Attorney Campobasso when he asked me in 2013 when he asked me what our opinion was. It’s our opinion that the Act pertains specifically to a permit that was issued or an approval that was issued. It doesn’t necessarily in our opinion rely to the extension of a non- conforming land use. If they apply for a building permit from 2008 to 2012 and they did not act on it, they would have an additional four years to be able to act on it. I think the reference we use in that document talks about approval or a permit. It doesn’t talk about a non-conforming land use that would extend over a period of time for more than the two years. If they came in and applied for a permit and were granted a permit, or even in the application then that would be the extension. It’s the words approval or permit which is what we see. In this particular case it’s just the fact that the non- conforming use hasn’t been used for two years, it’s our opinion that it doesn’t get granted for another four years to be able to use that non-conforming use. I think there is a difference between use and an actual permit or approval of a permit. That’s where we see the actual distinction. There is not a lot of case law on this, ultimately this Board has to make a decision, and if you decide in favor of the opinion of the City Solicitor the petitioners will probably take it to court. Let the court decide. There is really no precedence that has been established I this area, I feel that based on the information we have that we are on solid ground. It’s not that I am against the project, I’m not against anything. I think the law is very clear and that is the position that we’re taking. VP – A rebuttal on that and then members of the Board. Attorney Haverty – In exhibit 10 in you package is the Permit Extension Act most frequently asked questions that was issued by the State. Actually if you take a look at the case that I gave you earlier, they site directly from these frequently answered questions. VP – What’s the question? Attorney Haverty – What types of approvals are included in this Act? The Act applies to regulatory approvals issued by local, regional or state entities that concern the use or development of real property. Approval is defined broadly to include any permit, certificate, license, certification, determination, exemption, variance, waiver, building permit, or other approval or determination of rights, and any order, except for enforcement orders. VP – What if I submitted an application for a permit during a qualified period, during the two year grandfathered period but it was not issued until after the period had passed? Answer – The permit does not qualify for the extension. The Act only extends permits that were issued or already in effect at any point during the qualifying period. Attorney Haverty – That makes perfect sense, because in that instance you did not have any rights that were choate at the time that the extension period was applicable. You actually had to have had a permit approval exemption and it had to have been in place from 2008 to 2012. At which point you the get to add the four year period. If your approval postdates that time frame, you filed your application for a building permit prior to August 2012 and you didn’t get it until September, you don’t fall within the applicable time period. VP – Is it your position then that all non-conforming uses if they expire are able to be resuscitated for a period of six years from the date they expire? Is that your position? Attorney Haverty – No, it depends on how a non-conforming use would expire. For instance, a non-conforming use can expire for non-use for two years. In that case the two year period would be extended. However, a non-conforming use can also expire via an intent to discontinue the use, in which case it wouldn’t apply. Once you have discontinued there is no time period that is applicable. But, the statute gives you a two year non- use period. In this instance you would be able to tack on the four years. Attorney Goldstein – I just want to say that what my brother read basically again would relate a variance, permit, certificate, any sort of permit or approval or any sort of permit. I just don’t think you can extend it out to actually say that we have a non-conforming use and we are extending it for another four years. I’m not grasping that, in the language they read it seems to me it’s for an approval, some sort of an approval. VP – Is the grandfathered rights to rebuild, is that statutory in nature? Do we know that? Attorney Goldstein – For the two years, yes, it’s in the statute. It’s probably in the zoning regulations as well. Based on a non-conforming use, you have two years to rebuild. MM – It’s in 40A Section 6 and in Section 181.357 in the zoning bylaws. JM – No questions at this point. JB – Not questions at this point. MM – A permit was issued by the Building Department to construct a two family home or to demolish the existing property? JR - To demolish only. But that permit came with a two year time period in which to reconstruct. That is one of our arguments, leaving aside the issue of whether or not the exemption gets the four year time period. MM – Was there a plan submitted at the time of demolition to construct a new proposed non-conforming use. JR – Not at that time. MM – At the time the permit was issued was that current property owner allowed as a matter of right to reconstruct a non-conforming use? Attorney Haverty – Yes MM – Do you have the documentation to outline that? JR – Yes, the letter from the building inspector in your package outlines it in paragraph three. Also, exhibit five, the letter dated November 12, 2012 that was submitted to the building inspector to get the response of the determination. MM – When was the fire? JR – It was August 10, 2010. In the package there is also a letter from the Fire Chief. It was Mr. Thibeault’s intention at that time to rebuild. Instead he chose to sell the property. I was unaware at that time Whitman & Bingham had prepared a building permit plan on March 14, 2011. MM – When was the letter from the Fire Chief? JR – Exhibit 2 is the fire report. What was the date on this report? JR – August 10, 2010. MM – What was the date the demolition permit was issued? JR – March 15, 2011. MM – I think you’ve done a great presentation on the Permit Extension Act. I’m just trying to collate how a demolition permit really relates to a building permit. When you follow this process you need several permits. If I saw a building permit I could understand this. But, I don’t see a building permit. How do we know what the intent was? Attorney Haverty – If you look at the actual permit itself, its’ heading is “Building Permit”. I understand, but that covers a broad spectrum. We all know that this was not a building permit. Attorney Haverty – The permit is specifically allowing the land owner to tear down the house. MM – Exactly Attorney Haverty – It also comes with that two year period in which they are allowed to reconstruct. That is an affirmative right and you have two years from the time you get that demolition permit to reconstruct that structure. And what we are stating is that the Permit Extension Act extends that four years. JR – And that right that Attorney Haverty just talked about is actually a permit by the Permit Extension Act, it’s an approval. Attorney Goldstein – I just don’t see it as a permit. If there was a building permit, I could clearly see that they would be entitled to it. The fact that it’s a non-conforming use that continued be a non-conforming use, I don’t think it gives them that right to go another four years without a building permit. VP – This interpretation suggests that the Legislature intended that all grandfathered use are now six year. Is that what the interpretation is? Attorney Goldstein – I don’t see it that way, I think it’s too broad of an interpretation. Attorney Haverty – I think the result of that interpretation is more broad that what we are suggesting. What we’re talking about is a grandfather right that comes up specifically during that four year period. But if you have a grandfather right that doesn’t for some reason terminate and then start the two year period if it’s not within 2008-2012 it doesn’t apply. The only time you’re going to run into this as an issue is when you have a grandfather clock if you will, that started ticking during that four year period. Again, that’s only when you’re talking about a grandfather that is going to expire because on non-use. If you have a grandfather right that is expiring because of a discontinuation then it expires immediately and there is no tolling period. There is nothing to extend. It’s only when there is a two year tolling period that this would be applicable. It’s much more narrow than simply stating that all non-conforming uses now get six years. JC – I look to what was the intent of this Act. I think it was during the economic downturn to keep projects alive. In this case I think it’s a perversion of this Act to allow a two-family home to go in where it literally is not needed. Also, I don’t think that any of these people promoting this intend to live there. I view it as nothing but a money grab. This is exactly what the Permit Extension Act was intended to address. There is a reason why that after this house burned down it wasn’t reconstructed immediately, it was during that economic downturn time, when getting financing was difficult. It’s not like they are trying to stick a two-family house in a location that it never existed. All they are trying to do is go back to what happened before an inadvertent catastrophe burned the original house down. The reason why it didn’t get done during the normal time frame was exactly why the passed the Permit Extension Act. Attorney Goldstein – I don’t think that the Act really had an interpretation of a project whether it was good or bad, I believe it just focused on approval or did you have a permit. It wouldn’t matter what the project was because I think it was just open ended, if you had a permit it was good for four years, whatever it was for. Since a building permit was not applied for or approved in that time I do not believe the Permit Extension Act does not apply. MM- How many subsequent owners have there been since Mr. Thibeault? JR – Mr. Thibeault purchased it on February 28, 2011 then Cheryl Depasquale purchased it on December 13, 2012. Then myself and Brian Milisci purchased it on October 7, 2013. JB – Did you say that you had a permit to demolish the building that was in the fire, and at the same time stapled to that demolition permit you had a building permit? JR – No, the building permit was to demolish. VP – Is it safe to assume that this property is located in the college district? JR – Yes VP – So it’s in the college neighborhood in what is primarily a single family area. JC – I’m familiar with the neighborhood and it is predominantly a single family area. Also, it is typically owner occupied. There are a few two-family homes within a couple of hundred yards I would say. It’s a quiet neighborhood, not affected by the college. Those Seeking Information: None Those Opposed: None Those in Favor: None Close for deliberations: VP – My initial instinct is to uphold the decision of the Building Commissioner because of opening up the possibility of having a number of non-conforming uses coming in under an exaggerated period to build as of right. I don’t think it’s the Legislatures’ intent to expand all non-conforming uses of structures to build over a period of six years. I’m going to follow the lead from the Assistant City Solicitor and find that there is no permit issued. MM – Great presentation by everybody, as you know it’s very difficult being on this side of the fence. I have to err on side of caution in this particular case as you all had mentioned that there is not a lot of case law on it. I look at that permit and only see it as a demolition permit. If there was a building permit issued with a permit I could see it differently. I am looking towards upholding the Building Commissioners’ decision because again I don’t know what precedent this would set. I don’t think that the decision would have a negative impact on the property or the owner’s because we’re not taking away the right to use the land. They could use the land to build a single family home. I look at the fact that there have been multiple owners, and I wish that there was an easy way based on the information for me to feel confident in overruling the Building Commissioner and the Assistant City Solicitors’ opinion. But, in this particular instance I do have to adhere to the recommendation of Council. JC – I agree with my colleagues. I think that I made my position clear and simply cannot support. JM- I’m reading the use and going over everything and we are not taking his right away to put another building up. To put a two-family back on that lot I believe that you would have to reapply. It’s a great neighborhood, and I believe you could benefit from putting a single family house there as well as you could a two family house. JB – I still am torn by my question about the demolition permit or the building permit. You say that it’s together and it’s an automatic right. I didn’t see a building permit issued nor did I see a plan. I also will have to go with the Building Commissioner. VP- Motion on ZBA 2014-27 – To uphold the decision of the Building Commissioner, a decision for yes is to uphold the decision and not to permit a two-family. A decision for no is to overturn the Commissioner and approve a two-family. MM – Seconded Vote – 5-0 In favor to uphold the decision of the Building Commissioner. Vote is unanimous. 7:15PM ZBA-2014-06 Travis Beauvais 564 John Fitch Highway Review of a Special permit under §181.313 to open an Auto Repair Shop in the Central Business District at 35/19/0 - 564 JOHN FITCH HIGHWAY VP – Travis tell us about your application. TB – I was granted a Special Permit approximately 6 months ago and this is a six month review. There were conditions when the permit was granted and I have complied with all of them. VP – Are you having a problem with any of the conditions? Are they preventing you from being more profitable? TB – No, everything has been good. The only I would like to ask for is a change of hours. Originally I asked for Monday through Saturday hours. I would like to request a change in conditions and add Sunday with the same hours 8:00 A.M. – 6:00 P.M. VP – Is that the only condition you would like to request that be changed? TB – Yes, that would be the only thing that I am looking for. JM – I’ve been down there a couple of times, they are doing a great job. They fixed it up nice inside and out. Travis and his Dad did a nice job and should be proud. JB – I’m happy with it, and would like to see him get the extended hours. MM – Excellent job, it looks tremendous. You have put a lot of effort into it, and let me tell you as a resident “thumbs up”. What hours would you like to see? TB – I would like Sunday 8:00 A.M. – 6:00 P.M, the same hours that I have Monday through Saturday. JC – I have no issues with the location and also no issues with the extended hours through Sunday. MM – Put it on for a 1 year review? VP – It does seem unnecessary for this petitioner, but I would like to. MM – It will give him a year to see if he needs anything else. Motion on ZBA 2014-06 -To approve the review at 564 John Fitch Highway with conditions as amended. #8 – change to a 1 year review which will be March of 2016. Hours of operation will now be Sunday through Saturday 8:00 A.M. – 6:00 P.M. and strike closed Sunday. JB – Seconded Vote – 5-0 To approve the review with the amended conditions. Vote is unanimous. 7:30PM ZBA-2015-01 Michael Karras – AKS Recycling & Charles George Co. 15 Cobbler Drive 41 Blueberry Lane Special permit §181.313.D.6 to conduct a vehicle recycling and salvage business in the Industrial District at 114R/8/0 41 BLUEBERRY LANE and 114R/10/2B 15 COBBLER DRIVE AS – Good evening, my name is Alton Stone. I am representing Mr. Michael Karras of AKS Recycling Inc. regarding a request to have a vehicle recycling and salvage business on the existing property that is being used now as a solid waste transfer station. I submitted plans with the petition, I believe there are enough for everybody. The plan is to use existing property which has been cleared and gravel process material surfaced for the placement and staging of junk vehicles. All of the work for salvage and disassembly for salvage of parts and metals would be conducted inside an existing building. We are not proposing any new improvements or building on the property. This plan, which was prepared by another group for Mr. Karras. What I did is overlay in red the proposed areas of use to make it simple and things would show up a little better in red. We have an area out in the back that is now, it’s surfaced. It has been used over the years for a variety of industrial uses. This is where the vehicles will be staged, they are out of sight. Then they would be transferred to this existing building here, where they would be brought inside for disassembly. I included in my package letters from the Building Inspector, the Architect and the Fire Department approving the use of this building for this purpose. It there is hot work to be done we would need additional permits. Basically, the building has been approved for the disassembly of motor vehicles. VP – What is the relief you need? AS – The relief is, according to the Building Commissioners’ letter we submitted a Form of Intent. His reply was that this use even though it is an Industrial Zone is not a use by right. And to have a vehicle recycling and salvage yard requires a Special Permit. That is why we are here in front of the Board of Zoning Appeals. It is part of an operating solid waste facility. This is the maintenance garage building, this is another operations building they use for disassembly and recycling. Right now this is where all of the roll off containers are staged for the Fitchburg and Leominster individual residential use. We would be using this area out in back here for the staging of the vehicles. The intent here is to stay out of the 200 foot riverfront. I estimated this from the air photo and I tried to make it conservative, then I offset 100 feet for the buffer zone and 200 feet for the riverfront. We are not trying to do anything within a resource area. We also have to go in front of the Planning Board for site plan review. They will probably address those question with a little more detail. VP – Should we get that more detailed decision from them before we spend a lot of time on this petition? We have spent a lot of time and have had numerous meetings on some petitions, then something happens when they go to the Planning Board and all of the time we have spent on these petitions is gone. I am going to make a motion to continue in one month. MM – Just a comment. Before we even consider this, I would like to see better information. For example, how many vehicles, where are they going to be stored? Also, a plot plan that lays it out. This plan doesn’t really work for me. VP – When are you going before the Planning Board? AS – Next week. VP – Let’s continue for one month. Get the Planning Boards’ decision and then come back. MM – I went to the property, and it’s really hard to get the lay of the land with all of the snow right now. It would be good to see where everything that is there currently is going to be. AS – We are proposing 1.2 acres. We can move things this way, we can move things that way, but there is another 10 acres that AKS leases from the City of Fitchburg where we can put all of the roll off containers and stuff that they operate in the solid waste transfer station. That’s why we are keeping this over here on the land that they own. For me, we are here to see if this use of the property going to be permitted, then the details of how it’s going to be used go over to the Planning Board. I understand how you would like to see more details perhaps before you take it another step. MM – Absolutely. Mr. Karras, what is Charles George Company? Is that your company? MK – Yes it is the parent company. AKS Recycling is a wholly owned subsidiary of Charles George. MM – Do you own Charles George Company or is it a company you work for. MK – My brother and I own it. MM – Where are they based out of? MK – Londonderry New Hampshire. VP – What we are going to look at when you come back is whether or not the adverse effects of the proposed use outweigh the benefit to the City. Social, economic and community needs of the City will be served. Traffic flow and safety, adequate utilities, neighborhood character social structure, potential fiscal impact including City services, which all appear to be non-issues. Impact on natural environment including drainage, maybe an issue, you say you are addressing that with a 200 foot setback. On those factors that I have just mentioned, that’s the Special Permit factors and that’s what I will be looking at the next time you come in. The only one that I have somewhat of a concern is the drainage issue. I would like an idea of the elevation down to that river and how it’s going to flow. What we are talking about is a lot of times when we have exterior storage of motor vehicles, even though they are just there for scraping, we like to see it laid out. This is where they are going to go, we’re going to put thirty cars here, almost like a parking lot. Planning is also probably going to ask for that. AS – Like little rectangles on the plan? VP – Yes, that’s what we like to see. Those Seeking Information: None Those Opposed: None Those in Favor: Karen Stroparro Petitioner at this time was asked to sign and Extension of Time. MM – Motion to continue ZBA 2015-01 to April 14, 2015 @ 8:30 PM. JB - Seconded Vote – 5-0 Vote to continue. Vote is unanimous. 7:45PM ZBA-2015-02 Karen Stroparro 158 Airport Road Use variance §181.313.E.2 to conduct a scrap yard business for salvage and recycling of scrap metal in the Industrial District at 142/1/0 158 AIRPORT ROAD VP – Is this petition also going to the Planning Board? AS – Yes, this also has a site plan review. VP – Is it on for next week? AS – Yes it is. VP – You are looking for a use variance. We want to determine that the proposed use is in the public interest, that the applicant has demonstrated the proposal would not created any hardship to the neighborhood, and the applicant has demonstrated that the proposed use would not disturb the existing character of neighborhood. Please give the Board a general run down, we will probably continue until next month. KS – Can I just say one thing? We were planning to come in front of this Board two months ago. Last month we missed it again, this makes it three months that I have been trying to get Mr. Stone and myself on the agenda for this Board. It has been very frustrating for me. Are you saying that we did this in the wrong order? VP – No, we are saying that we recently had an experience that we spent the better part of many months looking at a property and we made a decision. Then the Planning Board did something completely different. We don’t want that to happen in your case. We want them to lay out what the conditions are going to be. Then we are simply going to look at this, there is no way that we could anticipate whether this should come first. The Planning Board is going to do a site plan review and layout all their criteria, then we will take a look at what they have decided and go from there. Otherwise we’re going to spend an hour or two belaboring what we think the details of this should be, then it will go to the Planning Board and something different is going to happen. I can’t think of a better way of explaining it than that. Can we get a general sense of this with these factors in mind? AS – Yes, in about five minutes I hope. It’s an existing property of about 6 acres that is now vacant. It was formally used for commercial and industrial purposes and was part of the Falulah Paper Mill complex. I’ve completed wetland delineation and submitted a request for determination to the Conservation Commission and they approved the wetland resource areas, which are the top of the bank and then the buffer zone and riverfront offset from there. All of our proposed use and improvement is outside of the 200 foot riverfront. That gives us roughly 3.2 acres to work with. There is an existing building, an existing concrete slab which was an old existing building that burned down. The plan here is to use these existing buildings and not to build any new buildings. Currently Fiore Trucking Recycle and Disposal operates at 150 Benson Street. They do the roll-off container business and they and Fitchburg Foundry Inc. do a scrap metal business. No vehicle re- salvage, just scrap metals. Those are both held on that property. Rydemore also operates on that property. Rydemore wants to expand and use that entire property as they are really doing well and expanding. The thought is that we have this vacant industrial property, why don’t we move these two smaller businesses here and Rydemore expands up there and has a much bigger business. It’s a win, win situation for all. We like that idea from an economic standpoint. We submitted the form of intent to the Building Commissioner, by right the roll-off container business was permitted. The scrap metal business was not permitted by right and that is why we are here for the use variance. Bothe the container business and the scrap metal business would have a scale. Scrap metals would be stored in here in a series of bins where people would come in and dump them, they would then be picked up when trucks come in. Any kind of disassembly would be would be conducted inside. We would do other changes such as the employee and client parking would be in the front. Also, some landscaping and improving the driveway in. We also plan on putting in a new gravel driveway over here that would be used solely for the Fiore Trucking Recycle and Disposal vehicles. There would be no confusion with people bringing in scrap metal. I believe we are putting in more than seven formal parking spaces in the front, and we are going to be opening up, clearing over 20,000 square feet we were required to go to the Planning Board for site plan review. The second plan shows what we have to do to make this happen. The main issue here is storm water. I’ve submitted all of this along with the drainage calculation and such to the Planning Board. The plan would be to grade the property such that most of the water flows in this direction over to this swale area here and to a large detention area in this corner so the post run-off rates will not exceed the pre. That’s our plan, this actually has all the drainage calculations or the description of the information that is needed to comply with Chapter 154 of the Fitchburg Ordinances for storm water management. JM – What is the frontage to the road? AS – One building is 43 feet, there’s a little wing that’s 26 feet. If I’m not mistaken, I believe the current off-sets comply with dimensional requirement for the industrial zone. VP – Does this property abut the Legends Bar & Grille strip mall? KS – Yes it does. MM – Do you have a full size document that I can have and use to look at the site while I am there because all I have is an 8 ½ x 11. AS – I will be happy to get them for you, no problem. MM – Do you have one you could give me tonight? AS – You can have all of these. Those Seeking Information: None Those Opposed: Dave Gillette Those in Favor: Michael Karras 123 Airport Rd. Fitchburg, MA Modern Awning VP – Mr. Gillette, what is your opposition? DG – I own the property across the street. I’ve been there about thirty years, the neighborhood is making great changes and the Mall is across the street. Now they want to put a scrap yard, last year they were here trying to get a truck salvage yard. I fear for the direction that this is all heading in for the neighborhood. JC – Do you own a location across the street? DG – Yes I do. JC – What’s the address? DG – 123 Airport Road. MM – Home or business? DG – It’s a business, Modern Awning. AS – To the end of that, none of the scrap will be visible from the road. VP – My primary concern until the gentleman spoke was the consumer aspect of that Mall. There will have to be some type of screening there. KS – Right now there is a row of huge pine trees along there and we have beautiful granite that we would like to also install along that side to give a barrier. VP - That’s exactly what the site plan will discuss. That’s my primary concern with the petition and I share the same concern as Mr. Gillette. The location where anything would have been stored is behind this building, which is not visible from the street. Here there would be barriers and you would not be able to see anything inside the barriers. There may be dumpsters parked here, that would be for advertisement. Not even 100 ft. from there, another company already in existence has green dumpsters there for advertisement. VP – Noise, smoke, debris from the operation, what would that create? KS - We don’t have it now on 150 Benson Street. There would be none of that on Airport either. Nothing is changing. VP – Unfortunately, what they did is dump a ton of money in a nice residential strip mall in your industrial area, right next door to you. That will be a consideration. If the site plan review doesn’t deal with that barrier, we will certainly be interested it. AS – Was that originally an industrial area? VP – I don’t know, I’m assuming that is was. AS – So that means that they must have gone for a Special Permit or a Variance to do a non-industrial use in an industrial area. We want to do an industrial use in an industrial area and we are may have a problem. VP – The neighborhood has now changed, and the hardship to the neighborhood is going to be an issue on the Use Variance. We have to look at it. KS – Is that the same people that created the issue of illegal water run off? MM – Did you say earlier that the Building Commissioner either gave you written information or verbal information that having outside storage of drop offs was a permitted use? AS – Yes, the roll off container, dumpster business, storage, trucking, and related services according to the response to our Form of Intent was allowed by right. MM – Jus a point of reference. We had another company that either abuts or is right down the street, but they were told it required a permit. I would like to investigate why one was yes and one was no. It could be a different zone, I don’t believe so. My ex-partner is now a renter on my property on Benson Street. The reason this all came into existence is because his business is out growing the location we are at. He has since looked into other locations with permitting. I came up with the idea that I move to the empty property that I have here. I thought it would be a win, win situation for the City of Fitchburg because it now has two existing business that are doing very well. He has two choice, does he stay here and grow, or does he move on to another town. If he moves out the Benson Street property would big too big for my little business. Therefore I would also have to move out of the city to a smaller location. That’s how this all came about. Because we weren’t on the Agenda for two months that sets back both businesses on what our decision are. Depending what my renter decides, he may be out of time, I’m not sure. MM – Does he have a new building or has he occupied a building down the hill on Benson Street? KS – Yes, he is moving forward as I am moving backward. Time is of the essence. MM – Let me just comment that we granted him an exorbitant use on that property. I noticed that he is already in the building next door. We all just have to try to move this forward as quickly as we can. AS- The building next door is just for sales. He’s not changing anything at my location, he just needs the space. KS - It’s just unfortunate it took so long to get to this point. VP – We don’t have an earlier hearing date to offer you. Even if we were to approve this there will be a number of conditions. The Planning Board will do conditions and we will do conditions, I just want to get all the conditions laid out from them and then we will determine the factors that we have here. MM – It’s easier because we have the right to alter an approved plan, they don’t have the right to alter any of our conditions. If you are granted a Use Variance the conditions of the Planning Board become part of Variance or Use Variance that is granted. Anytime there is a duel visit the conditions of the Planning Board become part of the Special Permit, Variance, or the Use Variance. Petitioner is asked to sign an Extension of Time. Motion to continue ZBA 2015-02 until April 14, 2015 @ 8:45 P.M. when the site plan review has been completed. Joseph Byrne - Seconded Vote – 5-0 Vote to continue. Vote is unanimous. 8:00PM ZBA-2014-04 Twin Cities Community Development Corp. 4 Leighton Street Review of a Special Permit to operate a rooming house, and Variance to construct a gazebo that does not meet the front yard requirements in the Residential C District at 78/32/0. Steve Cook, here to represent Twin Cities Community Development Corp. VP – Did you have a chance to construct the Gazebo yet? SC – No, not yet. I can give you an update of where things are at. When we were here last year and made the original presentation we were working on the financing for this project. The financing was approved in December and now we are ready to do all of this work. We are closing on the financing most likely in the late Spring. I believe that would allow us to start construction during late July or early August. It is approximately a four month project and we should be done with the renovations and the exterior work by the end of this calendar year. We also had to get an extension from the Planning board at the end of last year. VP – Do you need an extension from us? SC – I don’t believe that we had a time limit from this Board, only a one year review. VP – We should probably entertain a motion to continue until November. MM – It’s a variance and it has to be substantially started within a year. One gets a year and one gets two years to be substantially started. The Variance is a year and if the Special Permit Extension Act is still in play. VP – Was it in play when we granted that, what was the time period? VP – I would like a motion to grant an extension. MM – I’m thinking just kick the review out. JC – I’m going to suggest that the simple fact that they have gone through and have secured funding is a substantial step in moving forward on this project. VP – So when a builder comes in and has and has all his financing in order but he hasn’t put a shovel in the ground are we going to say he has made a substantial step? No, because of the Permit Extension Act, if it is still in play, then he is all set. VP – For permits he has two years. If I remember correctly the Permit Extension Act was in effect from 2008 to 2012. It was only a four year period. So when did we grant this relief? I believe it was in 2014. We can have a motion to simply extend the time to exercise the Variance. What is the term that we can do that for? JB – Motion on 2014-04 to extend the Variance for nine months to November 2015. MM – Seconded Vote – 5-0 Vote to continue. Vote is unanimous. JB – Motion on 2014-04 to continue the review for nine months to November 10, 2015. MM – Seconded Vote – 5-0 Vote to continue. Vote is unanimous. 8:15PM ZBA-2012-35 James L. Xarras 1033 Main Street Review of a Special Permit granted January 8, 2013 under §181.313 to occupy a space within the building for Auto Repair Services located within the Central Business District at 18/90/0 VP – The hearing was scheduled for 8:15 P.M. and it is now 8:42 and no one is present. Do we have a motion to dispose of this review? JB – I would like to have this permit pulled. VP – We are going to deny the review and also revoke the permit. Closed for deliberations: MM – I am concerned that the applicant has been notified multiple times and has failed to take the time to visit the Board to review the activity on the property. I believe for the record the original petitioner was Paul Amanatidis who is a renter of the property. It appears that the business activity is still there. There also appears to be an excess or vehicles that are moving from this site to 1109-1151 Main Street. Are they trying to get out of there? Maybe that’s why they are moving the vehicles. JB – We told Mr. Amanatidis when he was in front of us 3 or 4 months ago he couldn’t do that. MM – I do believe that we had asked that the overspill of the business at 1033 Main St. not spillover to 1109- 1151 Main Street. MM - Motion in the affirmative on ZBA 2012-35 to approve the review and the Special Permit granted to James L. Xarras at 1033 Main Street. James Concannon – Seconded Vote All those in favor to allow the property in its current condition say aye. –no response All those opposed say aye. 5-0 Vote 5-0 to Deny Review and Revoke Special Permit 8:30PM ZBA-2013-22 Cynthia, Jeremy & Eric Therrien 3 Bruce Street Review of a Special Permit under §181.3216 to operate a Transportation Business located in the Residential C District at 53/24/2 MM – This is the third request for the petitioners to come before the Board and there is no one in attendance. Therefore I am in favor of revocation of the permit. VP – A motion to approve the review with a yes vote, all will remain status quo. A no vote would be revocation of the Special Permit. MM – Should we close and deliberate first. VP – I don’t believe it’s necessary. We will just close. MM –Make a motion on ZBA-2013-22 to approve the review and allow the Special Permit as originally requested at 3 Bruce Street. Joseph Byrne – Seconded All those in favor to leave it as is say aye. –no response All those opposed say aye. 5-0 Unanimous Vote 5-0 to Deny Review and Revoke Special Permit 8:45PM ZBA-2012-31 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 VP – Are they not doing business anymore? JC – I drive by there a couple of times a day, there is almost zero activity. Vehicles aren’t moving. JM – He did a great job cleaning the property up. I was there last month and one of his friends was working on something. I haven’t seen any activity since. MM – This is the third request before the Board and I would be I favor of revoking the Special Permit. JC – The primary reason for opening this business was to maintain his mechanical fleet. Secondary was to offer some sales of cars, and keep his mechanic busy. He may still need that facility for his mechanical fleet and that Higgins business. MM – He can reapply for a new permit. JB – We have done everything we can. This is the third meeting he was on the agenda, he was notified each time. The last notification that was sent did state that the Special Permit may be revoked. MM – It’s very obvious that there is no activity. The primary visit before us was for automobile sales. We gave him quite a few review periods to address the front with landscaping. Nothing ever got done. There are no more vehicles for sale, no more advertising on the marquee out front. Last Fall they brought an airplane onto the property and it looked like they took it all apart. That’s where I am at, I believe that we give people three chances to come before the Board and let us know where things are at, and when the petitioner still has not responded. Revoking the Special Permit is a possibility. MM –Make a motion on ZBA-2012-31 to approve the review and allow the Special Permit as originally requested for Lake George Auto Service and Sales at 525 John Fitch Highway Joseph Byrne – Seconded All those in favor to leave it as is say aye. –no response All those opposed say aye. 5-0 Unanimous Vote 5-0 to Deny Review and Revoke Special Permit 4. MISCELLANEOUS MM – If I could just ask for some clarification to be made on all three ZBA cases, 2012-35, 2013-22 and 2012-31. That it clear by the vote that all three Special Permits have been revoked. VP – We are going to give the Building Commissioner notification that the status has changed on these three properties and the Special Permits for them. MM – Could I ask that as a Board member and by a vote, that the Building Commissioner be given a copy of all future decisions? VP – The concept is to create a system that he becomes aware of what it is we are doing. To give him copies of all routine decisions may not be effective. I’m not going to assume or be sure that he would read all these decisions. My thinking is that when want him to know what is going on with a particular piece of property we should just send him an individual correspondence. I think he will become numb with the general flow of business on the third week of the month. He will get every decision and it will be up to him to decide which ones are important to him and which ones are not. I want to tell him what we think is important by giving him a specific correspondence as we identify certain projects. JB – I agree with that. MM – One thing I would like to point out that is not acted upon on in the City is that in the By-Laws it states that if a business has been discontinued, there is a specified amount of time before that business sign needs to be removed. The one thing that I have noticed during my twelve years of being on the Zoning Board is that whenever a business has closed the Building Department does not act upon seeking the business property owner to have the business signs removed. JB – I think we should address that. Another thing we should address is, why are people that are going to the Planning Board coming to us first? It should be established that from now on, they not be allowed to be put on our agenda prior to going  before the Planning Board. JC – Why would they go to the Planning Board if we denied something? VP – We had one case in particular we worked on for months and months and we made a decision and denied the petition. The petitioner then went to the Planning Board and it was approved. That leads me to believe that we should let them do what they need to do first and let them layout all the plans and conditions that they are looking for. Then we would make a determination as to whether or not we want to grant a variance. I can see them saying, why are we going to put all this work in to determine whether we are going to do a site plan review if we don’t even know if the Zoning Board is going to give a Variance? I guess that they could say it equally that way. I don’t want to sit here and issue a Variance to this lady and spend a lot of time laying out what the conditions are on this particular piece of property so that we can still have a retail mall over here. Then Planning might want something totally different. JC – I agree with that, and to that end I think that we should have communication sent to the Planning Board regarding these two cases and what we did and that we continued it to get their input prior to our decision. LO – Mike O’Hara is sent the minutes and decisions from all of the Zoning Board meetings. JC – He will specifically know it’s our intent for them to look at this first? LO- yes VP – Which comes first our grant of the Variance or their grant of the site plans? MM – There is no specific law or a city bylaw that with regards to it. Only a protection that any conditions that are imposed by a Board become conditions of these permits and variances. JB – So, if we grant a variance is it done for life? MM – That is correct. There have been many situations over the last ten years where we have granted variances or special permits with conditions and the property owners did not adhere to the conditions. A classic example was 125 Sanborn Street, up where Naggy Spring used to be. There was a two-family home that had a bunch of land on the right side. Brian Carlson purchased the two lots, it was a special permit for reduced frontage. The conditions we put in were that the care from the two- family were parked in front of the house on the sidewalk and there was no off street parking. They were to create a driveway on the right side and parking down below and then landscape the front of the property. He went and built the two houses, the people sold the land and then I believe the home went into foreclosure and the work was never done. I’ve put a request in several times to the Building Commissioner to have him look at things, nothing has been done. VP – What were the dates that you asked for those things? Was it 2014 or before? MM – Yes, over the last couple of years. I will say that the struggles we are having with proper enforcement the Board should at least look at the fact, that in some instances we feel that it is important to us and it is not unreasonable that we language that some of the conditions are met before the permit is issued. VP – Maybe, I think that we have the ability like the Planning Board does to have them issue some type of Performance Bond. Can we write a letter about that to him? Can we ask him to enforce our conditions under that decision? 125 Sanborn St, a copy of our decision is enclosed we find that the conditions have not been satisfied. 5. ADJOURMENT Vincent Pusateri II – Motion to Adjourn James Concannon – Motion Seconded VOTE: 5-0 Adjourned