Zoning Board of Appeals

Board of APPEALS 166 Boulder ZONING Drive – Suite 108 Fitchburg, Massachusetts MINUTES December 8, 2015 ATTENDANCE: Joseph Marrama, Joseph Byrne, Michael McLaughlin, Nicholas Squailia 1. Call to Order LM Pledge of Allegiance: All 2. Communications: Attendance: LM, VP, JM, MM, NS, JB, JC 3. Hearings 6:45PM ZBA-2015-16 CVS Pharmacy – Poyant Signs 161-181 Main Street Request for a Variance under §181.5363 to construct a freestanding sign with an electronic reader board in the Central Business District 56/02/Lot 0 which are prohibited in all zoning districts per §181.5363 LM – Please state your name for the record. RW – My name is Richard Westergren with Poyant Signs. MM – Last month we had only four Board Members in attendance and continued this case to this evening. LM – Lois could you please distribute the minutes for this case from the previous meeting to all members of the Board? (ZBA secretary distributes minutes concerning this case to all Board Members) LM – The case was opened up last month and a decision was made to continue until this evening? MM – Yes LM – Please start at the beginning and tell us about your petition. RW – What we are here for is for the Board to approve an electronic message center. It is a 3ft. 5 in. x 10 ft. 3 in. doubled faced monochromatic (red) one color message center. What the Board asked me to do is to go back to CVS and see if they would participate in some kind of a financial gift to help with the funding of a rehabilitation program for that area. CVS informed me that they have already participated in the funding for extras that they have put into this site on behalf of the Planning Board and the Building Department. The building upgrades are calculated at roughly $145,000 extra spent on brick, metal panels and additional windows. They spent over $500,000 on site remediation and removal of contaminated soils. There was a decorated fence that was asked for at the cost of $40,000. Also, over $20,000 was spent on preparation and landscaping to install the sign for Fitchburg State University at the corner of the lot. Over $ 700, 000 over budget has gone into the store. With all due respect they feel that they have spent a lot of money on this site and respectfully ask the Board to approve our electronic message center. LM – With respect to the actual sign itself could you show me where it will be located? RW – Indicates on the plan where the EMC will be located. The advertisements will probably stay up for several minutes at a time. I know that you have a three second rule, so that will be no problem. LM – Did we receive any communication from Public Safety regarding this case? I want to make sure that we are not skipping something? LO – No, nothing from Public Safety. The Fire Department and Planning Board responses are included in the packages that were distributed to the Board. RW – The Pylon the sign will be placed on was part of the original building permit. At that time we were advised that we would need a Variance for the electronic message center. LM – You obviously had a 21E site assessment done on the site correct? RW – Yes, a lot of money was spent in soil remediation. I don’t know if there was a 21E completed, that would not involve me. Is there anyone here In favor – None Opposed – None Seeking Information – None Open to Board LM – Any questions? JM – No, I’m pleased. NS – I’m in favor of it so far, my opinion hasn’t changed from last time. Everything was approved, if the Fire Department had a problem they would have let us know. The sign is actually going inside of an existing structure already in place. JC – I have no concerns. VP – I have no concerns and I am sufficiently persuaded by the articulation by the petitioner of the investment they have already made. JB – No questions. MM – As I had mentioned at the last meeting that there seems to be an abundance if signage all around the building. As we have discussed the letters are four feet high and a pretty excessive sign out front. My comment was that it is a bit excessive. We certainly appreciate the investment that CVS has made in the City. I thought that we would just like to see a give and take with regards to some investment in lower Main Street. I’m looking at this and all I see is red, and we are going to add another 3 x 10 ft. sign that is going to move. And again, our backdrop is an historic 1867 church. RW – It will not move. MM – When you come down Main Street all you see is CVS aglow and I think that the whole thing could have been toned down a bit. It’s just signage everywhere. I think we were looking for some small gesture towards some improvement in that general area. LM – Do you have any questions for the petitioner? MM – No I just think that the City is becoming enveloped with signs. LM – I think it’s more appropriate on John Fitch Highway than on Main Street. MM – Most certainly. LM – Last month, did you go over the criteria? MM – Yes, the standard conditions. RW – We agreed to all of those. LM – Nick, Joe M, Joe B and Mike were in attendance last month. I would like to have the four of them vote and one of us. The four members in attendance last month and the Chair (LM) will vote on this case. VP – Did you participate with the Planning Board? RW – No, I did not. VP – Was it a letter from the Building Department that caused him to come here? If so, could I take a look at that letter? LM – Yes VP – We are not approving the current CVS sign, is that correct? RW – No, that has already been approved. We just are looking for approval of the electronic message center this evening. LM – Does anyone else have any questions? JM – No, at this point the pylon was already approved by the Planning Board. LM – Did they talk to you about public service announcements? RW – Yes, and we agreed to that. We do that at many of the CVS stores. LM – Did you already purchase the sign? RW – Yes, we have them in stock as we do many of the CVS stores. LM – Do you have any other questions? VP – When the Commissioner writes this letter that says that he has reviewed the request for a sign permit to construct a free standing sign with an electronic message center, it is only the message center that he is objecting to even though it read the whole thing? And we are sure of that? MM – We will make sure that the vote is specific to the message center. VP – That’s a good way to resolve the problem. JC – If approved, when will the message center be placed into the sign? RW – Within thirty days. VP – I’m assuming it’s on both sides. RW – Yes, it’s a double faced sign. Close and deliberate LM – JM, are you in favor of the petition? JM – Yes I am. NS – I have no problems, I am in favor of the sign. JC – I have no comments. I would be in agreement with Mike’s thoughts on the amount of signs and the location. It’s a little concerning. I would be in favor. VP – It is a mixed construction of a brand new building and some historical buildings there. I am cautiously concerned about what an electronic sign would look like and I am interested to hear the rest of the comments from the Board. MM – I’m looking at this as a Variance and looking at the hardship, and the criteria for a Variance. Again, CVS has done a fabulous job, I do think that the property is a little bit over populated with very large signage. I think it looks great but that if you are a mile away you could probably see CVS. I think that we kind of have to draw a line in the sand with regards to adding yet another 3 x 10 ft. sign to the front. It looks good, it looks very clean. But again, I am trying to look at this from a sensitivity standpoint in the area, it’s not John Fitch Highway. It’s extremely bright and loud when it comes to the signage that they have put in and I don’t think that by adding another 3 x 10 ft. sign fits the area and I don’t see and hardship or detriment to CVS by not having it. LM – My comments are this, I am concerned about it in the North and Main Street area as well. But, I do see that area as more populated by more students from the college. I do see what you are saying about the John Fitch area, I brought that point up myself. But, I think that this location is just the buffer between the lower part of Main Street and I believe I would be in favor of the petition. I would like to entertain a motion to vote with the amended language regarding it being a free standing sign. JB – Let’s go back to why we are granting a Variance. Rules for granting a Variance are a little stringent. We are not talking about just the sign we are talking about a Variance. We have a section in here that deals strictly just with signs. What we are talking about is a Variance not signage. LM – That structure is already there. JB – The structure is there, but the electronic sign is not. LM – Can we amend that to be a Special Permit in that regard? JB – That’s not what they came in here for. VP – It’s a lesser included if you will. (Board reviews the codes for a Variance vs. Special Permit). RW – This is the same procedure that we did with ICU and DC Credit Unions. LM – We are going to open the meeting back up. Just so you know, every case is different. RW – We are just following the same procedure that we were told to follow before. LM – This is a different location. MM – Was it you on the IC Credit Union sign case? RW – Yes, we did that one and Digital Credit Union as well. VP – Were they Special Permit or Variance? RW – They were both for Variance just like this. LM – They were for Bemis Road and John Fitch Highway and this is for Main Street. RW – Those are both full color electronic message boards and this one is a single color electronic message board which is a dramatically lower scale. LM – Could we change it to a request for a Special Permit? Would you be comfortable with that? MM – The end result will still be the same. LM – We could add conditions specific to this request. Perhaps a sunset clause and a time frame. MM – They have made a substantial investment and I expect that they will be here to ten, twenty years as least. It’s not a Variance where they are changing the land or the structure on the land. LM – I think we should have a Special Permit and not a Variance so if someone else came in they just couldn’t set-up shop. I’d like to entertain a motion to close. VP – I will make a motion to amend the application to a Special Permit. Also, a second motion to approve it as a Special Permit with the standard conditions that we apply to electronic signs and pursuant to the petitions remarks that this sign will be fixed for five minutes possibly up to an hour as opposed to the three second intervals. The Special Permit will be made to the applicant (CVS) and add a condition that this Special Permit would expire when the applicant is no longer conducting business at this address. LM – We will vote on the first motion to amend the petition to a Special Permit. JB – Seconded - Vote – 4-1 MM dissenting vote. MM – Before we go to a vote on the second motion I would just like to make a comment that we are trying to change Fitchburg for the better. I think that everybody should really look at the fact that whenever we look at a development of this size we have to say to ourselves that we have an opportunity to do it right and we are going to live with it for a long time. Let’s look at the by-laws and look at the fact that this is a mixed use area that does have some historic structures and that we are going to look at this for a long time. Although we are appreciative of the development and the money spent I don’t always feel that because a developer came in and made the investment that we always need to roll over and grant their wishes. Again, there is no shortage of signage with the new structure at CVS. On the large sign out front the letters are actually four feet tall. •VP – I would amend my motion in view of those comments and recommend a one year review to include the lumens and other aspects of the sign. LM – I would also like to add that it is not to be operated as a nuisance in the event that we would receive complaints. NS – Who would complain? It’s not like it is in a residential area. That area is already well lit and this City already has a reputation of not working well with businesses wanting to come in the City. I can understand if we were further down the other end of Main Street towards the upper common; that might be a little different. I think in this general area it is already well lit. The Fire Department is there with the lights and sirens all of the time. I don’t see this sign as being a huge problem. LM – I don’t think that it hurts to put it in then if there are complaints we can address them. Again, it will be Joe B., Nick, Mike, Joe M. and myself voting. We will now vote on the second motion. Seconded – Joe Byrne. Vote – 4-1 MM dissenting. LM – Motion carries Conditions: 1. No flashing/blinking, animation or video of sign 2. Size and location of signs per plan submitted 3. Alpha/Numeric/Symbolic Picture display only 4. Public Service announcements to be included in the text, such as, time, temp, and amber alerts 5. Signs to be maintained and in good condition and repair 6. Sign to meet D.O.T. standards – not less than 5 minute display change 7. Review in one year to include lumens and other aspects of the sign  8. Placement as submitted by plan 9. This Special Permit will be made to the applicant (CVS) and will expire when the applicant is no longer conducting business at this address. 10. Not to be operated as a nuisance VP - Motion to amend the petition to a Special Permit. JB – Seconded Vote – 4-1 MM dissenting vote. VP - Motion to approve it as a Special Permit with the standard conditions that we apply to electronic signs and pursuant to the petitions remarks that this sign will be fixed for five minutes possibly up to an hour as opposed to the three second intervals. The Special Permit will be made to the applicant (CVS) and add a condition that this Special Permit would expire when the applicant is no longer conducting business at this address. Also, a one year review to include the lumens and other aspects of the sign. JB – Seconded Vote – 4-1 MM dissenting vote. 7:00PM ZBA-2014-12 Ruzbin Martinez and Shelby Sicard 90 Highview Street Review of a Variance under §181.414 to construct an addition that is closer to the front lot line than allowed. The proposed addition will leave less than the required 30 ft. to the front property line in the Residential A-2 District at 188/6/0 LM – If you could please tell us where you stand on the addition and how things are going. RM – The outside is completed and on the inside all we need is the hardwood floors. That’s about it. LM – Is all the debris is taken away? RM – We have a pile of siding that MAKI has to pick up. They will be picking it up soon. The driveway is in, everything is in. The wood pile that is outside is for the woodstove. LM – Anything else to add at this point? RM - No Open to the audience Is there anyone here In favor – None Opposed – None Seeking Information – None LM – Does anyone have any questions for the petitioner? NS – No, VP – No, JC – No, JM – No, MM – You moved the debris and the vinyl will be picked up. That’s awesome. JB – No, JB – No LM – Nick are you in favor of moving along on this? NS – Yes, JC – Yes, VP – Yes, MM – Yes, JB – Yes, JM - Yes MM- Motion to approve the review on ZBA – 2014-12 and strike any further review dates. JB – Seconded Vote – 7-0 – To approve the review on ZBA – 2014-12 and strike any further review dates. 7:15PM ZBA-2015-17 Michael Carbone 363 Rollstone Road Request for a Special Permit under §181.34 for family to occupy an existing accessory apartment located at 363 Rollstone Road in the RA1 District at 152/25/B LM – If you could please tell us about your permit extension. MC – We’ve had the apartment for ten years and we are here to renew our permit. LM – Has anything changed? MC – Nothing has changed. I am in the main house and my mother is over the garage. LM – Do we have the affidavit on file? LO – Yes we do. LM – Do you have anything else to add? MC - No Open to the audience Is there anyone here In favor – None Opposed – None Seeking Information – None LM – Does anyone on the Board have any question? All – No questions. LM – Michael, does it meet the criteria? MM – Yes under §181.34. I believe this is your third time here. LM – The standard conditions have changes and we will get those out to you. Conditions 1. Property not to be sold or conveyed as a 2-family 2. Special Permit expires in 5 years and must be renewed prior to expiration 3. Special Permit will terminate upon the transfer of the property 4. Dwelling is to be owner occupied 5. Accessory Apartment is to be occupied by a relative of the owner 6. Upon the expiration of the Special Permit the petitioner will restore the property to single family use pursuant to the plan attached to the affidavit. Including any amendments by Zoning Board of Appeals. 7. In all other respects, use of the accessory apartment shall comply with §181.34 of the City of Fitchburg Zoning Ordinance 8. A copy of this Special Permit shall be filed with the Registry of Deeds. Close and deliberate Anyone in favor of the petition? All – Yes VP – Motion to approve the application with the standard conditions including that a plan will be submitted as to the return of the property to a single family dwelling. NS – Seconded Vote – 7-0 - To approve the application with the standard conditions including that a plan will be submitted as to the return of the property to a single family dwelling. 7:30PM ZBA-2015-10 Brenda L. Sullivan 58 Valley Street Request for a Variance under 181.922 and 961, and a Special Permit under 181.34 to occupy an existing accessory apartment located at 58 Valley Street located in the Residential RA-2 District at 139/26/0 LM – Chair – Has recused herself. DP – Did you receive my latest letter? VP – Yes we did. DP – That’s pretty much all we have to say. I think we covered everything the last time and you had raised two more questions and I think they have been answered. VP – I had a standing question for you and you provided some citation as to a third party raising those issues. DP – There is actually quite a bit of authority on that. VP – Ok DP – You asked about a plan. There is one error in my letter. It said that our plan shows two ways and we actually only submitted one. VP – The current and the rehab. DP – There are other possibilities. VP – Was that your client’s preferred? DP – No, well we don’t know. I figured the point was that you wanted something that was doable, that was possible. If you actually look at the plan you can see that there are a couple of possibilities. The two pages that are attached to my letter of December 1st, there is what is labeled a conversion draft and the present configuration. If you look at the conversion draft you can see taking out a closet and breaking through and creating a hallway from the main house into one of the bedrooms that is over the garage. You could actually go through the other bedroom into the living room, which may or may not be preferable depending on where that gas line is. This one is the one I asked the Building Commissioner to look at. I did not ask him to look at the other one. Somebody would actually have to look at all of the utilities to make a determination of which might be the safest, easiest, best thing to do. Duffy did look at this. VP – Did he comment? DP – Yes he did. I told him that I was going to submit it, but we all understand that if this were to be done in the future we couldn’t necessarily hold him to this but it does show a possibility. The criteria at the time and the inspections at the time would have to be made. His opinion is that you would have to pull a permit to do this. There shouldn’t be an issue on none compliance. VP – Thank you for doing that for us. VP – Is this currently a hallway? DP – Yes, if you look at the smaller one it shows what it looks like now. There is a hallway that goes up to a closet which is in this bedroom. You could take that out, make it a closet and break through. We don’t know for sure but It may have been like that originally. That may have been where they closed up. VP – Anything further? Did you bring someone with you that you would like to present? DP – No Open to the Board JC – I don’t have any questions at this time. NS – I’m all set for the moment. JM – I would like to look at the plan. VP – The concept here is that this is the plan to return the property to a single family use after the necessity is over. DP – Either when the permit that you may issue expires or the owner gives it up because she no longer needs it. My understanding is that this is what this Board has started imposing on other applicants. I didn’t understand that they were new standard conditions because I only found one that was recorded. VP – Do you have any questions about the drawing? JM – No MM – Not at this time. JB – This house already had an accessory apartment that was granted, legal and authorized to the former owner. DP – That is correct. JB – The petitioner that is before us now bought the house and operated it and continued it going as a two-family house until it was brought to the attention of the Building Department that she was in conflict. DP – Until it was brought to my client’s attention. At that point she immediately came in. JB – Our understanding of an in-law apartment is that the owner of the building lives in the building and a family member is in the apartment. DP – Well that‘s not what the ordinance states. It does say owner occupied but it does not state the other person needs to be a family member. That’s not an issue in our case. Owner occupied is the issue. JB – I understand it’s not an owner occupied building and you want a Variance. DP – We want an exception to be allowed to not have it owner occupied. VP – It’s not a Variance it is just an exception. DP – Because that’s the word that we use in Massachusetts and that’s the word in our laws. And that’s used in the case law nationwide. It’s a term that’s common to Zoning Boards. I assumed that people would understand that what it means is that you are asking for an exception to something that is mandated by a local by-law or ordinance. You can think of it as an exception, you can think of it as a waiver, whatever. There are two Federal Laws that enable my client to ask for this and enable this Board to grant it. I have explained them and written about them in three letters. I’ve sent enormous amounts of material to Mark Goldstein about this, I don’t know what else we can offer you to make it clear that this is a legitimate request and I understand that this Board has not seen this before. Perhaps there hasn’t been a family in these circumstances before that had to make such a request. JB – This whole thing would be settled if she turned the house over to the daughter. DP – She can’t, she is fully disabled under Social Security and that would be considered an asset. She can’t support the house by herself, she can’t own this property. That was the very first thing we looked at when Mrs. Sullivan came to my office. Is there anyone here In favor – None Opposed – None Seeking Information – None Patricia Legendre, 65Valley Street PL – Does that mean that she can leave it as an apartment as is and she is not going to make a door between the two of them to make it a one family home at this time. VP – At this time it would be a two-family as you would understand it. As we would understand it, it would be a single family home with an accessory apartment. If the Board approves this, it would be able to have a clear understanding of what the building would look like on the interior after it’s over. Have you had an opportunity to look at what they are proposing PL – No, I know the house. When the house was originally built it did not have the two car garage or the apartment on the top. So, then she would leave it as a two- family and be able to rent it out to whoever she wanted to? VP – An accessory apartment would be permitted and there would be an exception to the requirement that it would be an owner occupied structure. But, that exception would be conditioned that it would be occupied by somebody that would be providing respite services and occupied by the owner’s daughter. Yes, to answer your question in short and no because it would be conditioned to a certain degree. It’s going to be difficult to enforce those conditions. The concept would be if it is going to be approved that might be your best opportunity to have the property returned to single family use when the necessity of this particular event is over. Close and deliberate VP – I think that the first question that we have is whether or not we feel that there is a necessity to make an exception from our zoning laws in order to accommodate the occupant of the premises. I would like to discuss that first please. JB – I’m torn here for two different reasons. #1There is a handicapped child, which is something that you don’t even want to think of. #2 Moving into a situation that this is the only way that child can be taken care of. I can see that there are so many things for this particular case to go forward. Then you can take the other side and you can say, are we looking just to make an adjustment so that she can beat Social Security. We go back to the mother and father and they are sitting there troubled. I don’t where to go with this, I have children also. God forbid something should happen to them I would want this Board to have compassion and give me the opportunity to take care of my child. Then again you have all of the neighbors saying that this woman isn’t really taking care of her child the way it’s supposed to be taking care of according to the books. As the questions are asked and answered maybe I can come to a peaceful decision. VP – Mike do you want to comment on the necessity or do you want to comment on something else? MM – This is unique as Attorney Phillips has mentioned. I have to go back to the beginning. This is an application from an applicant that is before the Board not an applicant from a tenant. I know this is all intertwined. I go back to the original purpose, purchase of the property, purchaser beware. Was due diligence made to understand that when you buy a single family home that has an accessory apartment what is that criteria? I can’t answer whether due diligence was done or whether the person that purchased the property actually ever lived in the home where they have a primary residence in Lunenburg and that the accessory apartment was used for what the original intent was. I don’t know what happened during this time line. I’m just looking at the case before us thinking that here there is an applicant that purchased the property and doesn’t meet the criteria for what the intent of the accessory apartment is for. Not in any way, shape or form. I understand what the need is for her daughter, I’m just trying to look at what happens in the future. There really doesn’t seem that there is really any protection other than this will end up being a two-family home. I also look at the fact, are there other provisions for care? And ways to resolve the present situation. JM – I’m ok with the daughter living there and the mother living in Lunenburg. It’s an exceptional case but I am having a hard time, as long as all the truth is being told I don’t really see it being a problem. If we are trying to do something that is illegal and is going to cause hardship to the neighborhood, I don’t know how much hardship it’s really going to cause. If these people are being upright and truthful then I’m all for it. She has already had a hardship, she has two little children and if this is going to benefit her then I’m for it. NS – I think that the necessity has already been demonstrated. I’ve been by the property on numerous times, it doesn’t appear to be a two-family from the road. When I drive by there isn’t an overabundance of cars making it look like an apartment building. I agree with everyone else as in that it’s a different situation. I think it should be looked at often. Other than that I think they have demonstrated the need for it. JB – Let’s go back to what you just said. We have to look at it often. You and I know that there is no such thing as enforcement in this city. As soon as we approve it, anything can and will happen. It’s out of our hands and nobody is going to enforce it. Any conditions we make or anything like that will not be enforced. Be careful what you vote for. NS – It’s true, I really believe everything that you just said. JC – Tough case, it’s interesting that I believe with everything that has been said on both sides. I would like to point out that we have a five year renewal on accessory apartments, we will have some control. I would like to find a way to insure that the construction to remove is actually done when the accessory apartment is no longer needed. That is my thought. VP – I think everybody here is satisfied that the need is here. There were a couple a members that made some comments about credibility and I am attributing those remarks to how much of a need there really is. I understand that there is a qualification for disability benefits. That certainly establishes something. I don’t think that it should be disregarded, as you have indicated it is not binding on our determination as to whether or not there is a disability in fact that requires respite care. I think the second component of need is whether or not this type of close living quarters is necessary for that continued respite care. In fact many of the people that occupy the property aren’t even at the property for most of the hours during the course of the day. Also, on thinking to deny the case, we have neighbors who are interested in the quality of their neighborhood. They are concerned for the single family character of their neighborhood. That’s a very important consideration that we wanted to make sure that we are aware of if we were to make a decision now. On the other side of the case, the need side, and that was all I was asking everybody, was about the need side. I think if we clear that hurdle and say hey there is a need here I think the rest of the case falls in line. Having an opportunity to control the property so that we can have a condition that is filed as a public record that at some time in the future this offending condition to the neighbors will be rectified. Certainly on the side of allowing the case providing for an exception and getting control on the property. As I think of this case, the impact on the neighborhood if you drive by the house, this is not a tenement looking type of structure and looks like a single family home. When Nick was talking parking was mentioned and I wrote it down as a possible condition. Maybe we want to take some small steps over and above our usual conditions to insure the single family quality of the home. When the case comes back up, if it does come back up in five years we are going to have all of the same factual issues again. It is a difficult case. Certainly there is an overwhelming desire on the Board to preserve at all costs our single family neighborhoods. To any extent that we do something like that would be to rebut that initial knee jerk reaction that we would have. DP – This gentleman just said, and I understand because you are not talking just about this case, you’ve imposed this condition on several other cases. This is a fairly new thing in the last six months or so. How is the Board insuring that this will be done I any of the other cases that will come before it? VP – I’ll be happy to talk to you about the larger issue of that and I would like to get more input from you but what I have constantly said is that we are not worried about the people that reapply, it’s all of the house that don’t reapply. Those are where the problems are most likely to be. Perhaps by keeping a list of positive and negative responses to our five year letter is important. And having a Building Department that has the staffing. DP – In this case they apparently did act on it. DP – I think Lois did explain what happened mechanically and they did act on it. They sent a letter to the current owner and she immediately came in. So it works. VP – With all that being said and balancing the harms here I would be in favor of going with the petitioner. That’s where I’m at. Further comment Mike – Joe – JB – I feel that way also. JC – I feel the same way. I’m just a bit leary about it. JM – All Set NS – All set VP – Any further deliberations from anyone? MM – I would like to reiterate my past comments. When the Board looks at a particular case, you look at the by-law and every case is looked at individually and on it’s own merit. Again, I am trying to say, “How did we get here?” And what was the original intent and purpose. Trying to revert back to what the intent of the accessory apartment is, and reads aloud §181.34. I’m looking at what was the original intent with the purchase. Did the current owner do her due diligence when she purchased the property? We have struggled with accessory apartments since this by-law was introduced and it seems like we are constantly chasing it. In the future we should maybe be looking as some changes to the by-law to make it more clearly defined what the intent is. DP – May I make a comment on that, that is a legal comment not on fact or substance that may help some of the Board Members that are struggling with that aspect that Mr. McLaughlin has brought up. I think that we need to remember that we are under the Federal Housing Act and the American with Disability Act. I would also point out that our Zoning Enabling Act specifically says that you can’t impose anything that discriminates against a handicapped person and then they don’t elaborate on it. Probably because we have these Federal Laws. The standard under both of those, and this is something to keep in mind. A request for a reasonable accommodation, not a preferred accommodation, not any accommodation. A reasonable accommodation may only be denied if the Zoning Board can demonstrate that allowing the modification to the City Zoning fundamentally alters the nature of the City’s zoning scheme. It’s not just this one point we are coming under we can go back and look at the purpose of our Zoning Ordinance. VP – So it would be incorrect for us to understand that despite the fact that this particular ordinance focuses on the elderly. DP – But not exclusively, if you read it slowly you will see that it says particularly. VP – Conditions on a motion? NS – Standard conditions along with the parking. VP – Any objection to a shorter review period? DP – Yes VP – Leaving it at a five year renewal but having an earlier review to see where we are in a couple of years. DP – Yes, I would object to that. VP – You would object to that? DP – Yes, because you are treating my client differently. VP – We are treating her differently by granting it. DP – Which she has a right to under the Federal Law. We didn’t have to wait this long not to appeal. VP – I would like to have a shorter review perhaps. Any objection? JC – Are we talking about the five year renewal? VP – No, I am just talking about we things are I a couple of years. JC – We often call people in for a review, I see nothing wrong with that. VP – Any other conditions? JB – The occupied apartment is only given to a caregiver for the owner’s daughter and not rented to the public. VP – And that the daughter is an occupant of the property. DP – Absolutely. JC – I think we should identify who will be the five members voting on this case this evening. VP – That would be JB, MM, JC, JM and myself VP. VP – Comment on the members voting. DP – JB wasn’t in attendance the last meeting, as long as he feels that he is up to date I have no problems. DP – When you say “recent conditions” do you mean the conditions that include the plan? VP – Yes Motion with the following conditions 1. Property not to be sold or conveyed as a 2-family 2. Special Permit expires in 5 years and must be renewed prior to expiration 3. Special Permit will terminate upon the transfer of the property 4. Owners daughter will occupy the main property 5. Respite caregiver would be permitted to occupy the accessory apartment 6. Upon the expiration of the Special Permit the petitioner will restore the property to single family use pursuant to the plan attached to the affidavit. Including any amendments by Zoning Board of Appeals. 7. In all other respects, use of the accessory apartment shall comply with §181.34 of the City of Fitchburg Zoning Ordinance 8. A copy of this Special Permit shall be filed with the Registry of Deeds. 9. Review in two years six months – June, 2018 10. Parking will conform with what would typically be expected for single family use DP – I object to the two year six month review. Because it is different treatment disparate treatment under the Federal Law and actionable. I will be discussing that with my client. VP – I do think that we are treating your client different from everybody else. DP – You are JB – We most certainly are by granting something we have never granted before and should not be granting in the first place. VP – I think we have a motion and those are the conditions on your motion JB. VP – Do I have a second? MM – Before we second on it I think we would maybe like to talk about the criteria and meeting it, not meeting it. We are here to alter or vary §181.34. When we look a variance we look at soil, shape or topography. We can’t look at that because this is a unique case. I’m going to look at substantial hardship, financial or otherwise. Again, I’m trying to look at this as applicant purchased property for a particular use and now there is a different situation that lends itself to family members. I am going to look at where is or has a financial hardship been demonstrated. I don’t see that. I understand the situation and I am just looking at why we are here, what’s I front of us and based on the information that’s provided and how I understand the by-laws and I am not looking favorably upon this application. VP – When we use the word variance it’s not to implicate the technical term variance that is in Chapter 40A. It’s to implicate changing the by-laws because the American with Disability Act and the Federal Housing Act says that if you have people that require some type of a reasonable accommodation outside of the realm of something that is not undo on the person that has requested the accommodation. Whether it’s a City, property owner, another landlord whoever it might be that there should be an alteration of what is normally done. That is what they are asking us for. So, when we use the word variance we are not trying to establish the criteria of a variance, we still stay under the special permit criteria we are just varying two of those criteria so that we can accommodate her. We can meet her request for a reasonable accommodation. If we are all leaning to the fact that there is a need for the accommodation that should then form the balance of our vote. Do you want to look at the criteria for the special permit on the accessory apartment? MM – Sure VP – Is that what you wanted to do? MM- No VP – We have a motion, do we have a second? NS – Motion to approve the application with the conditions as listed including that a plan will be submitted as to the return of the property to a single family dwelling. JC – Seconded Vote 5-1 (MM - dissenting vote) Motion carries. I see the objection and I respect his objection. VP – We are going to have a review in 2 ½ years depending on whether or not you file an appeal of our decision. We are really looking at keeping this property a single family property to the best of our ability. DP – Did I understand Lois to say that she does have a form of Affidavit that the Board is working on? VP – Yes, I’m going to take a look at it. It is implicit that you sign this affidavit which is going to be consistent with our condition here. DP – Is it still consistent that you added these conditions? VP - Yes 7:45PM ZBA-2015-18 South Coast Development LLC 0 Princeton Road Request for a Variance under §181.313.C.10 for retail sales and a Special Permit under §181.313.C13A for motor vehicle fuel dispensing at 0 Princeton Road located in the Industrial District at 274/4/0. LM – Chair – JR – For the record my name is Jamie Rheault from Whitman and Bingham Associates also from Whitman and Bingham Associates is Anthony Cleaves the project engineer who designed the site. We also have South Coast Development LLC here represented by Mickey Higgins and Dominic Brown. We are here to present a project that entails a retail motor vehicle fuel outlet and every retail motor fuel outlet has a few components to it. They sell gas, there is a convenience store retail sales component and a coffee and donut component to it as well. We are here for all three of those and that is what’s going to make up the facility that we are proposing this evening. With respect to the retail sales component we are going to need a variance, with respect to the motor vehicle fuel dispensing we are going to need a special permit. I will let you know that we have already been before the Conservation Commission and we received a negative determination of applicability. VP – Which is a positive. JR – Yes, it is a positive to us. This means that there are no regulatory wetlands on the property. So there are no buffer zones and there is no reason to file with the Commission under the wetlands protection act. As part of that determination we agreed that we would file anyway under the erosion control by-law and let them be the permit granting authority for that by- law in town. Which the Planning Board could have been, but we are already filing with the Planning Board as well for site plan approval and that meeting I believe is next Tuesday. We also have been before the Fitchburg Redevelopment Authority, we are working together with them because part of the land that is being included in this proposal is owned by the Fitchburg Redevelopment Authority. As you stated, this is in the Industrial Zone and I wanted to let you know since we are looking for a variance and a special permit specifically the variance for retail sales. Retail sales are basically an allowed use, an accessory use in the Industrial Zone already for approved Industrial Use. Sales rooms, a sale room for selling at retail to the general public of any goods assembled, packaged, finished, processed or otherwise manufactured on the premises. We are not doing any of that, but I wanted to let you know that it’s not a foreign idea within the Industrial District. Retail sales are allowed as well as drive-up and walk-up facilities. It’s an allowed accessory use. The retail use that we are talking about is basically in a table of uses, and it falls under a catchall. MM – The reference is §181.313.C.10 JR – That was just a little background information. Let’s get to the site specifics. The location of this site is basically at the intersection of Princeton Road (Rt. 31) and Authority Drive. The property itself is made up of two lots. They are both very irregular shaped and both have title issues, topography issues, grading issues and I will go over each one of them with you so that you understand the site with detail. JR – At this time gives a brief description of both lots and a history of both. Mr. Cleaves will describe to you later on when he describes the project is that this depression we will be utilizing as a storm water basin, collect the water, treat it and then discharge where the water has been going all this time anyway at a controlled rate so it doesn’t flood everybody downstream. We all know that eventually this water is going to end up in the Nashua River. That is why we are filing with the Conservation Commission with respect to the erosion control by-law to make sure that we don’t silt the Nashua River. I doubt it very much, it could be, but I doubt it. VP – Because there is a body of water right across the street. JR – If you go past here around the corner you have mill #1 on the right side, I believe the Nashua River is behind that. That’s why I think it flows into the Nashua. I think the Commission made that statement. MM – Where is the storm water going to drain? JR – I will let Anthony Cleaves describe the site to you with respect to the storm water, grading and access on both roads, the building itself and the traffic pattern. Let me just go through the background information. VP – Madam Chairman could you ask how long the presentation is going to be? LM – Chair – I think what we will do is table this. VP – I move to continue this to the end of our meeting. JB – Second All those in favor – Unanimous to table until the end of the meeting. 8:00PM ZBA-2014-19 1-3 Prospect Street Review and updates on 1 Prospect Street and 3 Prospect Street upon the completion of the Building Commissioner’s site visit as requested by the Zoning Board of Appeals at previous meetings. LM – Chair – We asked the Building Commissioner to attend the meeting this evening, he was unable to attend but did send a letter (Exhibit A) giving his findings upon inspection of 1-3 Prospect Street. VP – Let’s read his letter and then take input from the audience and make a determination whether we are going to make an action or continue the matter. The owner of 3 Prospect Street has also written to us and she is not available at this time. VP – Reads aloud the findings of the Building Commissioner in his letter. Upon arrival Mr. James Pappas (representative for Mr. Pennetti) met with the Commissioner and did a walk through 1 Prospect Street. LM – Chair – Ann Saalbach has written to us and will not return to the U.S. until March of 2016. LM – Reads aloud the communication from Ms. Saalbach stating that she was not clear about the conditions relating to the decision and that she had not received the decision from the previous meeting. JP – What is the ongoing issue at this time? VP – Briefly, I think we made as much of a stretch as we were able to do to say that in fact these are two individual single family homes. There was evidence that we could have gone either way with this. We are really looking for these specific things. On the one hand we were looking to make sure that 1 Prospect really wasn’t separated by a locking mechanism and that it really is four roomates occupying one unit on that side. On the other side I think that what we were looking for was removal of the electrical services which looks like it could accommodate four separate units. There are also a number if cable lines going to the property that could accommodate four units in the building. We wanted to remove the appearance or the opportunity for someone to look at the building and think they can put four units I there. Despite the fact that we have owners who currently operate both units as single family properties on either side of the building the future use of the building will remain subject to those tendencies to get as many units in that building as possible. We had made a substantial decision and had laid out specific conditions that may or may not have been received. What I am going to suggest is that you get a copy of that. JP – I think that without reading the copy you are basically telling us what the Board is looking for. VP – I don’t remember everything off the top of my head. MM – It’s been a long history that has brought us here. Previous owners, how the property was being used and it really comes down to the simple fact that it’s two single family units. Realistically if you put a lock on the door between upstairs and downstairs it’s a two- family. JP – Just to clarify one thing, as soon as you open the front door you have access to go upstairs. There’s not two separate doors, there’s only one that was locked to the first floor but as soon as you enter that hallway in order to get into that first floor you are into the entire unit. You would have to add another door to do that. MM – We understand what’s going on now, but we always have to look down the road. You may not be the owner forever, we looked at next door when a second kitchen got put in. We look at the parking, the land and all that. It’s not what’s happening now, it’s what’s going to happen in five years when there may be a new owner. We have to look at making sure that we have that protection. JP – To address the two issues, is there any kind of code or law that regulates how many phone lines can come into a property. These are all younger people that don’t even use a landline. Is there a regulation stating how many cable lines can come in? VP – Here is our decision, you can appeal it. Our decision has been entered it is appealable for 21 days and nobody has filed an appeal. That’s the ruling on that particular piece of property. And that is subject to the Zoning by-laws. So, yes there is. JP – There is because the Board is saying that, is that right? VP – Yes, because we made a decision. JP – Then on the electric, you are worried about somebody coming in and in the future putting another electric meter in there. In order to get an electric meter put in from UNITIL you have to have it inspected by the wiring inspector and he has to say yes or no in order to get the meter. When Tony bought the property he had a wiring inspector, he approved it and they put it in. When he had the gas tested, the plumber came in had it approved and it was done. UNITIL was nice enough to take the gas meters off because there were extra ones there. They wouldn’t take off the electric meters. Tony said he would do it but is finding out that it will cost him hundreds and thousands of dollars to remove that and put a new bank of meters up there. Now the Board is making a decisions that is impacting Tony and he has done nothing wrong except clean up the property. It was vacant and in disrepair. Ann did the same on the other side. Why are they being prosecuted for asking to come out of pocket for these two items that the building department are saying that there are no regulations that state they have to remove those? LM – Chair – What I would say at this point is the decision was made quite some time ago at this point. Both Tony and Ann agreed to that. JP – Why they did do that is because they believed that there was some kind of violation. When I walked the Building Commissioner through the property he said that there was no violation. VP – Wait a second. We had a hearing, and one of the responsibilities of this Board is whether or not we were going to overturn the decision of the Building Commissioner which is effectively what we did. JP – What are you basing that on other than the fear of two individuals in the local community? VP – We disagree as to what his interpretation of what is and what is not a single family home. JP – I don’t want to argue that point because you have already agreed to what is. LM – Chair – We did agree upon that based on other information that was given to us. JP – That information was what? LM – Chair – With respect to both of the owners. JP – They agreed to that because they thought they were in some kind of violation and that they had to do that. There is no requirement other than your Board to do that. MM – You mentioned a couple of items that are financial impacts. What are they? JP – The cost to have an electrician come and move the meter brackets and have it be two separate meters, the phone company won’t come out and move the phone or cable lines without you paying them to do so. MM – One step at a time, believe me we are not here to impose financial impact. JM – It’s just a matter of taking the meter bank and just putting two meters in. What it would do is clean it up. There’s really no need for the four meter bank there. LM – Chair – Do you have an idea of the cost for that? JM – It’s not hundreds and thousands of dollars. Maybe $1,000.00. JP – So he is being forced to spend that and there is no code that says that he has to do it. VP – The decision from the Zoning Board overturned the building inspector’s interpretation of the law as to what is single family. Every time you say that you are incorrect. JB – My point is that I know that you have already made the decision and we weren’t provided with the decision and we want the chance to appeal it. VP – You were notified that there was a decision. LM – Chair – Tony was at the meeting and agreed to it. JP – He agreed to it because he thought he was under the obligation to do so. VP – Excuse me, there was sufficient evidence for us to make a finding that 1 Prospect Street was a two-family, there was sufficient evidence there and the Board could have made that finding. I heard the case and the evidence I heard was really leading me to a finding that Tony was operating a two-family home. He had a couple upstairs and a couple downstairs and there was a door that locked in between the two. I wanted to see my way clearly to that being a single family home because then it was represented that it would be and that there wouldn’t be any locking mechanism and that it was going to be one unit. We put a couple of conditions that everybody agreed to. We are not going to come here today after all of the time and effort this Board has put into this case. JP – How do you think the owner feels about it? VP – It’s the owners investment, and every once and awhile it costs money to maintain real estate. It’s a very simple thing, we had a hearing and there was some evidence going either way. We wanted to see it the gentleman’s way, we saw it his way, he offered up some conditions and we established what the conditions were. Just do what we said what we were going to do, case over. I move that we come to a review and continue this until the spring when Ms. Saalbach is available. I believe the owners should get some prices and if they are prohibitive we can take a look at it then. TP – What is cost prohibitive? Is a thousand dollars cost prohibitive? LM – Chair – Two units will be sharing the cost. JM – You can do some of that yourself. TP – I don’t understand to be honest with you. VP – It’s all because there was very likely evidence to support a finding that 1 Prospect Street was being operated as a two-family. TP – But it wasn’t and it was proved when the Building Commissioner came and saw it. LM – Chair – The only reason the Building Commissioner came back out was because the Board requested that he do so. We’ve had about six hearings on this case. JP – All about allegations. MM – I don’t look at it as allegations. As I try to portray it we are looking at the future. We’ve got a big house on a small parcel. Again, we are not worried what’s going on now, look at it as a potential future buyer. You have two kitchens, two meters, two couples living together that aren’t related. It has the perception that it is really a two-family. We have to look at protecting the future knowing that we have very limited or in some cases almost no enforcement. We’re not trying to persecute, we appreciate your investment. We are trying to put some provisions and some protections in and say it’s time to turn things around and make it a better City. We are here to make Fitchburg better. LM – Chair – I believe the best thing to do is to continue this until April when Ms. Saalbach will be able to attend. JP – The two requests the Board has is to remove the meters and the wires off the building, is that right? LM – Chair – Also, fix the siding. I suggest that you read through the decision and talk to Ann and see what you can come up with some prices and come back and talk to the Board. TP – I have a feeling that this is not the end of it. Today it’s the meters and cable lines. Next it will be the railings or the stained glass windows. It’s like I am being persecuted for something I haven’t even done yet. I made the comment that if I took the meters off the house would that be the end of it? LM – Chair – Tony, the decision has been made, it is in writing, it’s done. If you follow through or you come back and communicate with us in April we’ll see where we go from there. TP – If both meters are gone before April do I still need to come to the meeting? JB – You want to talk about your lines don’t you? So come back. I changed from one cable carrier to another and they won’t take the old line down. They disconnect at the pole and they leave it. VP – That’s interesting, because the City is about to renew their contract with Comcast. LM – Chair – We need to move on. Could I have a motion for a continuance until April? JC – Motion to continue ZBA 2014-19 to April, 2016. JM – Seconded Vote – 7-0 To continue ZBA 2014-19 to April, 2016. 8:15PM ZBA-2014-04 Twin Cities Community Development 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. LM – Chair – Please state your name for the record. SC – My name is Steve Cook and I am the Director of Real Estate Development for Twin Cities CDC. I can give you an update on this project. I believe we were before the Board I March at that time we were hoping to start construction and close our financing prior to this meeting and have not done so. We’ve made a lot of progress and the good news is that we went out to bid and we selected a contractor and expect to close on our financing. VP – Was this a Variance? LM – Chair – It’s a two part request. VP – So he is going to need an extension of time to get a substantial start. LM – Chair – It’s been a year and a half. MM – Keep an eye on the clock, because if you don’t start the project within two years from when we wrote the decision then you need to come before us and ask for an extension. SC – It was approved in December 2014. VP – Do you think the shovel is going to hit the ground by June? SC - Our plan right now is to have the contractor start in February. VP – He is going to move for an extension and we can give him six months to extend his time to exercise his rights under a Variance. LM – Chair – An extension of time in writing? VP – No, this is a different type of extension. There will be a motion and a vote on that. Then we can approve the review and put him on the agenda for June. LM – Chair – The Special Permit is to operate the rooming house. VP – I would just make a motion to continue the review on both. VP – I make a motion On ZBA 2014-04 to provide an extension for him to exercise his rights under the Variance for six months. MM- Seconded Vote – 7-0 VP – Motion on ZBA 2014-04 to continue the review for the Special Permit until June, 2016 as well. MM – Seconded Vote – 7-0 7:45PM ZBA-2015-18 South Coast Development LLC 0 Princeton Road Continued JR – We talked about the two parcels that made up this property, when we combine them we are still left with come encumbrances that we have to deal with. This entire Fitchburg Redevelopment parcel encumbered by a power easement, New England Power all the way over. We are going to have to go through a permitting process as well. Not only that, this is probably one of the only projects that I have worked on in thirty years that have two remnant lots on each side of the main parcel. We have a remnant lot here owned by the MA. DPW which became part of the layout of 31, but they retained ownership. We are going to have a conversation with MA Highway as well. Probably exempt from the curb cut process but we still have to talk with them. We will also be talking to National Grid to go through their real estate process to get this curb cut approved through the easement as well. We do have some hoops to jump through even after we combine them. Together it does work, but there is still hardship involved going through this process. VP – Just to give me a clear picture, could you please show me where the 5th Mass. Turnpike is on the map? JR – Shows where the 5th Mass. Turnpike is located on the map. VP – So it doesn’t directly border your property there? JR – That’s correct. MM – Geosearch is right there on the left. JR – That’s correct. One additional bit of information I would like to share with you is that the City of Fitchburg went through a master planning process and they discussed the Rt. 31 corridor from Rt. 2 all the way through the center of Fitchburg. Part of the rational for that was that you had a couple of key projects on this side of town, Great Wolf and the commuter rail station. Because of those two projects you have to get accessory uses popping up because of those projects that are being built are always going to be built, this is one of them. The City of Fitchburg went through a planning process in which they are going to have a public hearing with the Planning Board either this month or next month for the Rt. 31 corridor overlay which this project might be a permitted use. They have to go through that process that could take six months to a year. If everything turns out well we would like to start the construction of this facility in the springtime. I do have the regs with me and I also have the overlay if you would like to see them. VP – I’d like to see those. MM – We should go to that meeting because it’s zoning related and we fail to get informed about the meetings. LM – Chair – I spoke with Paul Fontaine regarding that. VP – When did you say that meeting was? JR – I spoke with Mike O’Hara today he told me there was a potential for this month or next month. He didn’t commit one way or the other. With that said my role tonight was to give you the background on how this pieced together and describe the process and give you an idea of the topographical issues, the irregular shape lot issues, and how we put this together to go with the Variance petition and Special Permit. Anthony Cleaves could describe the site as he designed it. AC – I’ll just give a broad overview and if you want specifics let me know. Sometimes I can get into some details that will put you to sleep. Let me know if you want me to elaborate on anything. Rt. 31, 5th Mass. Turnpike and Authority Drive, we are proposing to accesses to the site, one curb cut off of Princeton Road and one off of Authority Drive. AC – Further describes the layout proposed for the parcels including parking, traffic flow, exit and entrance points including utilities, lighting, sewer connections, drainage, and their locations. The storm water for the site, various collection points of catch basins connecting to piping systems and roof drains tie in to the pipes. Everything gets routed over in this area that Jamie discussed earlier and a natural depression where water is going now, we create a storm water basin out of that area, basically berming up the side so that we can hold that water, detain it, slow it down and release it at a controlled rate to an outlet structure here and that outlet structure would have a direct connection to the drop in. This area would all be redone, regraded and cleaned up where it’s all overgrown. MM – Where does the storm water go? Does it go into the City’s storm water system? AC – Yes MM - Ok AC – Explains in more detail about the storm water and where it goes using the plans that we submitted with the application. LM – Chair – Does anyone have any further questions on this drawing so he can move on? JR – The facility that we are proposing has already been built in the area. Are you familiar with Lunenburg, Pioneer Drive? In Leominster, Shirley Road? JM – What is the name of the facility? JR – Honey Farms. That’s exactly what we are proposing to build here. When we went through the process in Lunenburg they basically wanted that facility to look like a colonial house and that’s exactly the way it was built. AC – Presents a rendering of the proposed building and landscaping. Very rarely do we have projects where we can say “this is what it looks like. LM – Chair – So the actual yard and landscaping will be the same exact layout. AC – Yes, very similar. This is a picture of the site in Lunenburg and that is exactly what it will look like. MM – Is there going to be curbing street side? And will there be sidewalks? AC – There are no sidewalks currently on Princeton Road or Authority Drive. There is curbing on both frontages. What we are going to be doing is have granite curbing coming in our accesses and vertical granite curbing all the way around here. Right now this is bituminous berm in the frontage here and we are going to remove or replace that and put vertical granite back in there. So this would be a vertical granite island basically. MM – You are actually going to do it right. You are going to put granite. AC – We had a typical review Board meeting this week with various departments of the City. One of the things that was brought up was the MART project and as part of that MART has I believe committed to putting sidewalks down Authority Drive to their facility. Not knowing what the timing of that will ultimately be we hate to put in our brand new driveway and curbing, landscaping and new grass to have them maybe a year later come in and blow right thru that. What the applicant is planning on doing is putting in sidewalks along these areas here right opposite our curb cut and then they can tie into us. AC – At this point I would like to introduce Mickey Higgins, he is the owner, operator and builder. He can discuss hours of operation and provide any other information necessary. MH – I am the owner of South Coast Development and would be the owner of this location. I suggest that if possible that you go to the Lunenburg site as this site will be identical. We have been working with Mike O’Hara in the Planning Department, even before that it was the Ward Councilor Joel Kaddy who has aggressively trying to get a gas station or convenience store over in the Waite’s Corner West Fitchburg area. They actually contacted us, we went out and looked at the site and everything came together and here we are. We do feel that this would be a good location and are very excited about locating here. We do have a lot of steps to go through and we believe that the ZBA is the first step. The hours of operation was mentioned, typically these locations open at five in the morning to catch the early commuters and are open to at least midnight. If they wanted to go past midnight they would have to come back and ask for a change in hours. VP – Would 24/7 be a goal for you? MH – Honey Farms certainly operates a lot of 24 hour sites, personally I don’t think that the business is there at this location. Not now, maybe some time in the future. LM – Chair – Any other questions? How many do you own and operate right now? MH – As a landlord I own 11 locations. LM – Chair – All in this area? MH – They are scattered about a number of them are located in Southeastern MA. Our office is actually located in Harvard and I live in Groton. Is there anyone here In favor – None Opposed – Seeking Information – Robert Laramie - 235 Fifth MA Tpke. Phil Chura - 269 5th MA Turnpike RL – This is probably the worst place in the world to put a filling station. First of all the traffic, there’s already a traffic problem. Big trucks from Rt. 31 in both directions. Big trucks from Rt. 2 in both directions. LM – Chair – Could you please point out on the map where your home is located sir? Please bring the map over so he can show us. RL – I am the last house on the left right before you get to the supposed new train station. MM – Does you land abut this project? RL – I think it will, I abut Shepard’s land. LM – Chair – Were you notified by a postcard this evening? RL – No, I was not. VP – So traffic is the number one issue for you. RL – Yes, it’s a problem today. MM – In what way sir. RL – The number of accidents. You have big trucks moving in and out of the Industrial Park coming into Fitchburg. Another problem is the water problem, the drainage pit that they are going to put in is not going to handle it. I’ve been living there for thirty five years and that area has been nothing but a sponge. MM – Is there anything else sir? RL – That’s my biggest problem, water and the traffic. LM – Chair – So it would be fair to say that you are in opposition? RL – I’m definitely in opposition. LM – Chair – What I am going to do is ask the petitioner to address those two issues. AC – Typically these are establishments are not destination establishments. It’s going to be people that are already on the road, already coming down RT. 31 and they will stop there on their way by. It’s not going to generate more traffic. The other nice thing about this is utilizing Authority Drive as an access coming out onto an already established industrial sub-division where you have big trucks coming in and out. The other big difference I can think of as opposed to 5th MA Turnpike is we are on a stretch of road that is pretty straight. We probably have over 400 to 500 ft. in sight distance from this curb cut in both directions. When you do get down to 5th MA Turnpike RT. 31 starts to turn away. I can’t disagree with him the potential difficulty of anybody having difficulty of anybody coming out of 5th MA Turnpike is that it is difficult to look left and have good sight distance from that traffic. We are up a couple of hundred ft. from that on a nicer straight away. I don’t see people having an issue with line of sight making sure that the traffic patterns there are gaps that come in and out of that. PC – I am an abutter, my name is Phil Chura I abut both the proposed gas station and 5th MA Turnpike. I agree with Bob that traffic is a nightmare out there. You need to race across the road to get across 5th MA Turnpike. Occasionally my family will take a walk up to the industrial park, there is always the fear of being hit. There is no sidewalk on that side of the road, nothing. AC – Getting back to the traffic as opposed to the type of development where there was an industrial building and as a new business here they will be bringing in industrial traffic. Clients and trucks coming in and out, this type of establishment really feeds off of the existing traffic that comes by. That is why you see these in already established traffic areas, that’s how they survive. In regards to the storm water, we touched on it a little bit before. How this storm water basin is set up in that we have a sub-drain in the bottom of that basin. There are multiple basins that you can design. One of which is the dry type which is preferred and what we are doing here. In between storms water would come out of the outlet that’s above the bottom of the pond, the big storms would go out of the orifice that you see in the concrete structure and then after the storm subsides water will go out of a perforated sub drain and stone trench. It will stay there depending on the size of the storm. Sometimes it could be a day. VP – Could you just talk to us about what kind of study or thought goes into the amount of water that you are going to receive and the devices that you are installing? AC – This is designed for a hundred year storm event which is typical engineering practice for these. We look at, we did a drainage report which is typical for the Planning Board and the Conservation Committee approvals. You look at various storms, small storms to ten year larger storms twenty five and hundred year storms. This is designed to handle hundred year storms. This is designed to take this water in and contain it in that bathtub basically and let it go out this outlet at a controlled rate. Anything above the hundred year storm we have in here an overflow spillway. Let’s say we get back to back hundred year storms and this is full of water and plus more water comes in, it still wouldn’t be spilling over on the sides of it in it’s entirety. This is a ft. lower than the top of the berm and then water would spill out of the spillway and get into a swale here and get back into that drop inlet. We’re not changing the overall drainage patterns, this is where the water is going now and we are basically just building that area up to hold some of our water back to control it and let it go out. LM – Chair – Will that make it better for 5th MA Turnpike and that area? AC – No, we are lower than 5th MA Turnpike. If these back yards are lower than us we are not going to help them because it’s pooling right here. Also, sometimes the issues you see with storm basins is in the changing of seasons. PC – What about the traffic concerns? That little island on the far left side that dumps onto Authority Drive, we’re going to have a train station there whenever they fully develop that. All of that traffic coming in and going out is going to create a backup for that gas station. I see a big backup there because you’re going to have cars trying to come in on that side even though it’s designed to come out. LM – Chair – Is there anyone else in opposition to the petition? Anyone seeking information? Anyone in favor of the petition? PC – When you say opposition? How? LM – Chair – Are you opposed as to what this plan has to offer? PC – I’m opposed to a lot. The sound noise from Rt. 2, and the lighting. I understand that Jaime described some of that information. MM – Can you talk to a buffer between? JR – In the interim while we were waiting to continue we spoke to them and they explained all of their issues. They explained the visual issues, they explained the smell, the odor, the lighting, public access to this property versus what it is today. I basically told them that we are going to be talking to the Planning Board about the buffers next week. I gave him my card and I told him that I would meet him on the weekend and see from his point of view and his wife’s point of view what it looks like on their land looking at this site. I’m going to come up with some sort of buffer scheme that we can all agree on and make that part of the plan. LM – Chair – What is the square footage of their land right now from the site? JR – We measured it quickly and we are thinking about 240 ft. away building to building. One of the other issues she brought up is that we have a dumpster. That dumpster is going to be enclosed, it’s going to be enveloped. She is worried about the odor, she is worried about the thing spilling over. We have the answers to all of that because it’s all been done before. We are willing to help out, willing to meet, willing to listen and take care of the issues. LM - Chair – Is there another location where the dumpster could go? JR – We could take a look at that but what it comes down to is that the traffic pattern is more important. We’ll take a look at that, it’s no problem whatsoever. I would expect that any condition that the Planning Board would issue on their site plan approval would carry over to the ZBA as well. We will be talking about all of those site issues with the Planning Board next week and I’m sure in January as well. LM – Chair – We there any other concerns? PC – I think that the last one would be the call box, when the speaker is up loud I’m going to end up hearing that thing. Most call boxes are pretty loud and you can hear them 4 or 5 cars behind. That’s another issue I am concerned about. JR – The distance between the call box and your house is more like 25 cars. When we meet in your backyard I think you are going to see that it is quite a distance away. MM – Realistically today when I pull up to a call box I’m only 3 ft. away so the volume of our conversation or whatever should be at the level I’m speaking now. VP – This whole area, lots of change is going to happen up there. It’s going to be a different neighborhood in the blink of an eye. It’s going to happen. MM – We appreciate the sensitivity to the abutter, that’s very important. AC – In another community the intercom volume was a big issue and we had the manufacture of the intercom send a PDF pamphlet to the Planning Board that explained all of the decibel levels. There was a condition then that the decibel level would be no more than seventy. You cannot hear at that decibel level beyond five cars away. At the property line there would be zero sound. You could put a condition that seventy decibels would be the level. MM – Then you have the ambient noise such as the train station, Rt. 2 and the traffic flow. LM – Chair – Do they need us to vote this evening? Should we be sending them to Planning and have and then have them come back from site plan review? MM – We can vote on it tonight and one of our conditions can be that the conditions imposed by the Planning Board would be a condition of the granting of the Variance. VP – I think that we let them go to site plan review because we are inevitably going to put more conditions on there. MM – I’m ready to vote. JR – The situation is that we are going to the Planning Board for site plan approval and without the Variance or the Special Permit we are not going to be too productive. We need this to go to the Planning Board and talk about site specific issues. We always try to go to the ZBA first. VP – Jaime, is there any plan or any concept what the entire area is going to be as far as moving forward developing it with other commercial structures, the train station. Is there a large macro if you will plan from the City’s point of view? LM – Chair – Sounds like the overlay is happening next week. MM- There is an organization making a presentation to the Planning Board about that Rt. 31 corridor and I believe they are calling it the Wachusett Corridor. This is a concept that is happening and being presented to the Planning Board and it’s a good time to provide some input. There is no master plan right now. VP – So if we make a decision on this specific lot without having some general grand concept as to how that train station, Rt. 2, our main intersection, obviously a gas station on our main intersection is very likely a good idea. Let’s do this and then take a look at making a plan for the entire area. It seems to be that to hesitate to make the decision at least until we get an idea as to what the plan is. LM – Chair – Right now we don’t have a final plan. VP - There is no plan right now. MM – A plan for here or for the entire area? VP – The entire area. MM – That could be months or even a year. This is a catalyst. LM – Chair – And they would like to do this project before this comes. JR – We want to start construction this spring. We think it’s a good project for the City of Fitchburg. JP – In concept we don’t have the Variance and Special Permit we are held back. VP – I don’t know if you have my vote if we don’t have a big concept plan for that whole area. I know the Mayor-Elect is very interested in getting a planner to put a plan together for that whole area. I know that we are looking at the Notown Reservoir and that there ae one hundred year old contracts between Fitchburg and Leominster regarding the development through this area and the water rite issue and that Notown Reservoir issue. There’s a lot of issues that are going around with this. We’ve got all this swirling around and we’re going to through this gas station right here and let’s go see what else we want to figure out. Is that going to meet all of your criteria for the best interest? Not that I want to discourage this gentleman from participating in our community. MM – In my opinion, we have an industrial park, we have hundreds of people that work there. Where do they go for break? Where do they fuel up? It’s a great asset for them, if I worked there I would think it was great. This is our chance to catalyze and start the growth at the beginning of the corridor. With the train station that’s befitting, I come and go to the train I’m going to need gas, coffee, I’m going to want something as I get on and I get off. This is almost a natural start. LM – Chair – What is the status with the train station? Do you know? JR – I know they cleared the site and I heard next year or the year after. MM – They’re rolling through Fitchburg, doing all the infrastructure on the railroad all the way through the City. MH – I am the applicant and the developer, I do not currently own the property. I have a purchase and sales agreement that allows a certain amount of time to complete my due diligence, obtain my permits and start construction or the P & S will expire. I hear what you’re saying, we worked with the Ward Councilor who sought us out to put a gas station at this location. We worked with the Fitchburg Redevelopment Authority who has committed to granting us an easement if they don’t decide to sell the land. That’s up to their attorney, they are going to vote on December 15th. The Ward Councilor would like to see something happen here, the FRA would like to see something happen here. The Town Planner would like to see something happen here. I understand what you’re saying, it makes perfect sense. But, you can’t continue me for a month or two months. You would have to continue me for two years. I understand what you are asking for, it’s not out there, and nobody has it. It would be nice if we could continue this for thirty days and pull that information together, it’s just not out there. VP – I’m being told that there is going to be a presentation in a couple of weeks. MH – The presentation is simply to begin rezoning the corridor. That there is no more Industrial, Industrial is gone so everyone is flocking to Leominster to build retail, so let’s make neighborhood business or general business and we will attract some retail. That about what the presentation is. Industrial is dead, nobody is building Industrial. Everybody is going up the road to Leominster to spend their retail dollars and how does Fitchburg attract that? By possibly rezoning this corridor. You’re not going to get that master plan in thirty days, you’re not going to get it in six to twelve months. VP – I don’t disagree with you. MH – When I go to the Planning Board, if I go to the Planning Board next week and I don’t have the Variance. The Town Planner was very specific, go to the Board of Appeals first, without the Variance this thing is dead in the water. I can’t continue forever because my P & S will expire. MM – I would just like to make a comment, all of you know how involved I am in the City. Here is a developer that is coming to us and saying that he is coming in and putting up a house like structure that is demanded when you go to Harvard or Boxborough. Typically what we see is, I want to put up an inexpensive cinder block building, I want to put up blacktop bituminous berms, I don’t want to spend the money on sidewalks an just put in inexpensive black sidewalks. The Planning Board in desperation of the fact that we are desperate for development and will accommodate. Here is a guy with a plan. They are going to put in granite in right out of the gate. They are not asking for concessions. They are putting up a beautiful structure. This is what Fitchburg should be and carry. This is a great project. VP – This is a great project until we decide that the swath of land between Authority Drive and the 5th MA Turnpike would be a great strip mall, would be a great Whitney Park, and we now have this permanent fixture in the way of a larger scheme. MM – There is no larger scheme in that area, it’s an island. VP – I don’t disagree with what you’re saying. What’s the Chairperson going to do? Are you going to call for a vote? LM – Chair – I believe the petitioner would like us to come to a vote. I think we should move ahead and vote on the conceptual design that we have here tonight. I would like them to come back after they meet with the Planning Board and get the final of what’s going on. VP – You want to take a motion on a Use Variance. LM – Chair – I would like to talk about conditions of course. Is this a Use Variance? LM – Chair – This is a Variance. MM – It’s a Variance. VP – So the first motion is for a Use Variance and it requires a unanimous vote. MM – It’s not a Use Variance. LM – Chair – It’s not it’s a Variance. Where’s the letter? JR – Here’s what I told you in the beginning, the convenience store is not a permitted use. LM – Chair – That’s for a Variance. JR – Yes At this time the ZBA members and the applicant takes time to review and discuss the zoning ordinances (§181.313.C.10 and §181.313.C13A) referenced in the letter from the Building Commissioner to the applicant. PC – I have one more question. They talk about the Rt. 31 corridor, what is the corridor for rezoning? JR – I can tell you a little bit about that. I talked to Mike O’Hara the City Planner today. There are going to be public hearings with public participation with the Planning Board. The Planning Board is going to collect information and make a recommendation to the City Council. Then there will be more public hearings with the City Council to talk about the rezoning and the corridor and what goes into that and what comes out of it. There is going to be public participation with the Planning Board and the City Council. I could go three months, it could go six months, it could go a year. We don’t know. I do know zoning changes are very hard to do. A lot of decisions have to be made. Unfortunately we can’t wait for that. PC – I have a concern about there being no sidewalks, when my children get a little older they will probably want to go to Honey Farms or whatever will be there and there are no sidewalks and they will have to walk in the breakdown lane. MM – You make some good points, Fitchburg is inconsistently pedestrian friendly. I see a lot of routes or roads that we have a sidewalk and then it ends. Then all of a sudden you see a sidewalk on the other side. I think that as this master plan grows we have to look at if the foot traffic is going to start to take place there the City will have to look at sidewalks. PC – The state made provisions with sidewalks on the bridge and then it ends. MM – Hopefully as the City develops a plan, hopefully you will come to some of these meetings and give us your input. LM – Chair – I have a couple of things here one of which is a notice that they the petitioner will be before the Planning Board on Dec. 15, 2015 for site plan review. Also, the Fire Department has suggested a 21E site survey. JR – We did a full 21E site assessment and soil samples have come back clean and we are waiting for the water samples. LM – Chair – Does anyone have any other information before we close and deliberate? If not, we will not be taking any further information. We are hoping to come to a conclusion this evening. Close and deliberate VP – Other than the reasons I have already stated I am in favor of the application. It is the type of development we want there. The Special Permit for the fuel dispensing station is an easy vote, and however you want to do the retail store whether it be by Use Variance or by considering it an accessory use to the fueling station. I think that from the applicant’s perspective that they would be more suited to have a Use Variance for the retail store. JB – I’m fine the way it is. MM – I think both pieces of the puzzle meet the criteria for a Special Permit and also for a Variance. We can talk about conditions. VP – I think we should make just one condition which is “upon the conditions we may make later”. Let them go, they are getting the relief, and we are going to look at the site plan review. The applicant’s are going to the Planning Board and are going to present a very professional drawing, a great product and it is very unlikely other than pursuant to the plan submitted, that would most likely be the condition. We would like to take a look at it after is goes through site plan review. MM – I would like to add some basic conditions. #1 Would be obviously as plan submitted. #2 A review period. LM – Chair – I would like them to come back after they have been to the Planning Board so we would have the opportunity to amend our conditions it we feel we would like to. MM – Another condition would be that all conditions imposed by the Planning Board become conditions of the Variance and the Special Permit which is as recommended by our bylaws. JM – I’m pretty happy with the plan right now. I’m in agreement with Mike. JC – I was good five minutes into the presentation. I live in the area and I have to travel to get gas. This will be a good fit. LM – Chair – I also am in favor of the petition. But, I do have concerns for the neighbors and I want conditions in place. I’m sure that you are going to address their concerns. After you go to the Planning Board come back and we will go over the conditions and make any changes we feel necessary. The review will be January 12, @ 8:30 P.M. MM – Motion on ZBA 2015-18 to grant a Variance under §181.313.C.10 for retail sales with conditions as discussed. JB – Seconded Vote – 6-0 MM – Motion on ZBA 2015-18 to grant a Special Permit under §181.313.C13A for motor vehicle fuel dispensing with conditions as discussed. JB – Seconded Vote 6-0 Miscellaneous LM – Chair – This is the last meeting for two of our members Jim Concannon and Vincent Pusateri. Mr. Concannon will be moving to Virginia and we wish him well. Mr. Pusateri will be joining the new administration as City Solicitor and we also we him well. They have been members of this Board for many years and have contributed in many ways to the betterment of the City of Fitchburg and we wish them the well in their future endeavors. ADJOURNMENT MM – Motion to adjourn JB - Seconded