Zoning Board of Appeals

ZONING Board of APPEALS 166 Boulder Drive Fitchburg, MA 01420 SENIOR CENTER, 14 WALLACE AV MEETING MINUTES DECEMBER 12, 2017 1. Call to Order LM PLEDGE OF ALLEGIANCE All 2. Communications LM ATTENDANCE: LM, MM, AZ, JB, & (JS) 3. Hearings CASE No. APPLICANT PROPERTY TIME ZBA-2017-27 Juan Rodriguez 91 MILK ST 6:00PM Review of a Special Permit under §181.3561 to reinstate a vacant/abandoned building as a 2-family dwelling located in the Residential B District at 67/89/A Presentation given by Juan Rodriguez and Aliesia Perez stating that they have paved the driveway and just had their final from the Wiring Inspector, Fire Department and final Building inspection today of the conversion to the 2-family. The other bath and kitchen have been removed (Condition #1). Condition #2 is this review. Plot plan was marked and initialed showing the parking and green space on the property (Condition #3). No one is in attendance in the audience for this hearing. MM – You’ve done a nice job with the property and the 3rd floor removal has been completed as we requested. JB – Could not see the paving because of the snow, but the wall repair looks good. AZ – You have done all that was asked of you and we are very pleased. LM – Great job Hearing Closed: Deliberations: MM – Approve with no further review as conditions have been met. AZ – Would like condition #1 to be kept. AZ – Motion on ZBA-2017-27 to Approve the Review retaining condition #1 JB – Motion Seconded VOTE: 4-0 APPROVE the Review with condition ZBA-2017-26 Brothers Parking Lots & Roads 126 JACKSON AV 6:05PM Review of a Use Variance under §181.313A1 demolishing the existing house and to construct a new single- family home with a Special Permit under §181.332 for a home office and a Special Permit under §181.313D5 for a construction yard located in the Industrial District at 59/9/0 Presentation given by Karen Stanley stating that there has been a delay in beginning the project because of family emergencies and the inability to put up a modular home at this time of the year. No one is in attendance in the audience for this hearing. MM – Construction vehicles cannot be stored on the property. I would like to see a six month review to see the progress on the project. The property cannot be residential and commercial/industrial at the same time; one or the other. AZ – Motion on ZBA-2017-26 to Approve the Review retaining the original conditions with the review in April 2018 and all unauthorized vehicles to be removed from the property. JB - Motion Seconded VOTE: 4-0 APPROVE the Review with Conditions ZBA-2017-32 Clearwater Real Estate Investment Group, LLC 1118 WATER ST 6:10PM Review of the Special Permit under §181.3561 to reinstate a vacant/abandoned building located in the Central Business District at 148/12/0 Presentation given by Harold Mateo presenting the Board with a revised Plot Plan showing all structures and parking on his property as requested (Exhibit B). No one is in attendance in the audience for this hearing. JB – Went by the property today and everything that we requested has been completed. AZ – You’ve done all we asked. Hearing Closed: Deliberations: JB – In favor with the plan submitted. Sale of 5 cars on the lot. AZ – In favor also, one parking space for customers on the lot and other parking on his property across the street for customers also. LM – Would like a condition of no parking on the sidewalk. AZ – Motion on ZBA-2017-32 to Approve the Review striking completed conditions #1, #2, #3, with the following amended conditions: 1. Maximum of 5 cars for sale on property 2. No parking of any vehicles on or along the sidewalk and any parking spaces not on the applicant’s property may cause the special permit to be revoked 3. Business not to be operated as a nuisance 4. Sunset Clause – The Special Permit will terminate/expire upon the sale or transfer of the property or the change in ownership /operation of the business from Harold Mateo/applicant. JB – Motion Seconded VOTE: 4-1 APPROVE the Review with amended conditions Negative: MM ZBA-2017-16 South Middlesex Non-Profit 94 HIGHLAND AV 6:15PM Continuance: Appeal to Overrule the Building Commissioner’s Decision for a Special Permit under §181.3561 to reinstate an abandoned/vacant building as a Single Room Occupancy located in the Residential C District at 45/5/0 Presentation given by Katherine Garrahan and Ms. Gentilli. Assistant City Solicitor, Christine Tree, gave a summary of the points in the Building Commissioner’s Letter of Determination and which points SMOC appeals (Exhibit C). 1. Property is located in the RC District – SMOC does not appeal. 2. Non-conforming structure and Non-use or abandonment – SMOC appeals. There are non-conforming side and front yard setbacks. The proposed use of the building would have adequate parking 3. The use as an 18 bedroom single occupancy – SMOC appeals under the Dover Amendment 2  4. Requirement of a Building Permit – No Appeal Our Ordinance states that a non-conforming structure that is abandoned or not used for more than 2 years has lost its Grandfathering protection and needs a Special Permit from the Board of Appeals. AZ – From the information we have received from the petitioner, there has been no use in the building for more than 3 years. Katherine Garrahan – This is a structure built in 1873. SMOC bought it in November of 2015 and the prior owner had been working on it for approximately 6 months before that (around March of 2014) Petitioner stated there was Marketing, and repair work, but the Board does not consider that occupancy and/or use. A parking plan drawn on computer and an areal view of the property was submitted at this time (Exhibit D). There are 7 parking spaces off Highland Ave. and 4 spaces off Congress St. Ms. Gentilli -The general parking requirement of 1 space per bedroom is not applicable for this use. For similar there are usually no more than 4 spaces used at one time. Katherine Garrahan – At the last meeting the Board suggested a reduction in clients, but SMOC would need to look into funding requirements before any changes could be made. LM – In summary, there are nine regular spaces, 2 handicap spaces and a parking turn-around space for a van. No one was in attendance from the audience for this hearing. Attorney Tree addressed cases similar to the request before the Board. JB – Through all the presentations at the various meetings, petitioner has not proven that the primary use is educational. The program seems to be more related to social services and housing with the educational component off site. Katherine Garrahan – The clients of this program have individual learning plans. LM – Hearing will be tabled at this time to allow other short cases to be heard and then we will resume this hearing. Petitioner agreed. JB - Motion to table until case ZBA-2017-60 has been heard MM – Motion Seconded VOTE: 4-0 GRANT Case to Continue Out of Order Hearing Resumed after ZBA-2017-60: AZ – What training do Case Managers have for educational tasks? Ms. Gentilli -They are trained to conduct assessments, access resources in the community for educational logistics. AZ – How are case managers educating clients? Ms. Gentilli – Giving them information as relates to their Service Plan. AZ – What educational functions are provided by the case manager? Ms. Gentilli – nutritional skill training, managing skills, budgeting workshops, transportation and interaction with doctors of clients, and bringing in external people for workshops and lectures. AZ – It seems the case manager does referrals. How much are case managers actually trained? You stated previously that they do not have any type of degree in education. Ms. Gentilli – There are many forms and worksheets that case managers use as tools in training the clients in living skills and to provide services to the clients. AZ – Do the residents eat on site, communal meals? Ms. Gentilli – The clients can cook their own food and we do have group meals. AZ – Is there a formal nutritionist on site that help clients prepare food? Ms. Gentilli – We have people come in and work with the clients. MM – Is there a start and end date to the program; 6 – 18 months, 2yrs., 3yrs., 5 yrs.? Ms. Gentilli – Can go up to 3 years, but by the end of 5 years anyone should have the skills needed to live independently. The time is set during the assessment meetings which are done on a periodic basis. MM – What is the square footage 3 of the common meeting rooms? Ms. Gentilli – the main room is 10’ x 10’. MM – So clients will remain in their rooms most of the time if they are not going to educational training elsewhere. AZ – Not even half of the house can gather together at one time for eating or house meetings. Ms. Gentilli- Clients are on different schedules. Coordinating skill is part of the skill set taught. Roughly, there is only 500 sq. ft. of common area for 18 people. Hearing Closed: Deliberations: AZ – Highly skeptical that this program could meet the Dover Amendment requirements for primarily being educational. Cases cited and read into the hearing:  Commr. of Code Enforcement of Worcester v. Worcester Dynamy, Inc., 11 Mass. App. Ct. 97 (1980)  Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980)  Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 (1989)  Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown, 424 Mass. 404 (1997)  Lasell Village, Inc. v. Board of Assessors of Newton, 67 Mass. App. Ct. 414 (2006)  Regis College v. Town of Weston, 462 Mass. 280 (2012) MM – This has been a long case. In focusing on the traditional educational component, I do not see that this is the primary component. Housing seems to be the primary component. A homeless person is living independently even if not considered living well. There is no beginning or end date for this program, no graduation, no certificate and they are not taught on site by licensed educators. Seems housing is provided and transportation to social services, doctor visits, job interviews and off site education. This more a social service program with housing than an educational program, unless we consider day planning, group house meetings, kitchen activities for meals, meeting with case managers and time in one’s room as educational. JB – It is my understanding that the petitioner contention is that the program is primarily educational. There are to be 17 residents and 1 case manager on duty at the facility. Each resident has a Service Plan which will turn the client into a functioning independent individual. These are thing a parent teaches a child, and is not primarily education. The education is out sourced and does not take place at the facility. LM – Do not find the primary use as educational. AZ – Motion on ZBA-2017-16 to Affirm the Building Commissioner’s finding that the primary use is single room occupancy JB – Motion Seconded VOTE: 4-0 AFFIRM the Building Commissioner’s Decision AZ – Regardless of the prior use, the structure was vacant or non- used for 2 years or more. Hearing Open to allow attorney to rebut: Katherine Garrahan – SMOC bought the property in November of 2015, from a prior owner who purchased it in October of 2014 and stated it had last been open for business 6 months prior. However, the property was continuously renovated and/or marketed during this time. Hearing Closed: Deliberations Continued: AZ – that would make the date approximately May or June of 2014 which is over 3 years that it was not used for any type of occupancy. MM – It is clear from our definition of non-use that this structure fall under the criteria for more than w years of non-use. 4 AZ – Motion to Affirm the Building Commissioner’s finding that the structure has not been used for 2 years or more. JB – Motion Seconded VOTE: 4-0 AFFIRM the Building Commissioner’s Decision AZ – Motion to Affirm the Building Commissioner’s finding that the former use of the building was out of use for 2 years or more. JB – Motion Seconded VOTE: 4-0 AFFIRM the Building Commissioner’s Decision Appeal to Overrule the Building Commissioner’s Decision DENIED ZBA-2017-10 JMC Apartments, LLC 234 DANIELS ST 6:20 PM Continuance: Review of the Special Permit under §181.3561 to reinstate a vacant/abandoned building as a 2-family dwelling located in the Residential B District at 77/15/0 Presentation given by Jose Mendez stating that the project is almost complete. He has all his rough sign-offs on his Building Permit. LM – How was the conversion accomplished? Mr. Mendez - The second floor has a kitchen, bath and 3 bedrooms with the 3rd floor having the living room, bath and 3 bedrooms making it a 6 bedroom apartment which converted the 3-family to a 2-family dwelling. The siding is also done. There are some boards in the rear which will be used for the deck in the Spring. The paving will also be done in the Spring, he is doing his residence at the same time. All the electric had to be redone, because it was so old. Now the entire building is rewired. He has people ready to move in. MM – What about the plywood? Mr. Mendez – The structure over the entry to the basement will be stained the same as the deck in the front this Spring. The protection over stair make more sense than the existing bulkhead. MM – We should review this in June. Hearing Closed: Deliberations: AZ – See no problems or concerns. Should have the condition of finishing the stairway to the basement to be completed at time of review and grounds to be kept in good condition AZ – Motion on ZBA-2017-10 to Approve the review with the following conditions: 1. Review June 12, 2018 2. Stain and stairway to be completed at time of Review 3. Grounds to be maintained in good condition JB – Motion Seconded VOTE: 4-0 APPROVE the Review with conditions ZBA-2017-57 John Harrison 32 TOWNSEND ST 6:30PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Residential B District at 34/41/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-57 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice 5 ZBA-2017-55 Mark Lane 34 PLAIN ST 6:45PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Residential B District at 244/7/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-55 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-56 Anthony Beaulieu 34 GARNET ST 7:00PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a 2-family dwelling located in the Residential B District at 31/69/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-56 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-58 Eli Torres 43 PAYSON ST 7:15PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Residential C District at 68/19/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-58 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-59 William & Helen West 80 BEL AIR DR 7:30PM Special Permit under §181.355 to put the shed 3’ from the property line located in the Residential A-1 District at 145/33/0 Presentation given by Helen & Sean West stating that they put up a new shed in the same place that the old shed had been. It was discovered that the cement platform was on the neighbor’s property. They have since moved the shed forward and rotated the corner that was on the abutters property. The shed is 14’ x 12’ and is over the dimensional requirements and they are requesting relief from this Board. LM – The abutter whose property the corner was on is not at this hearing. Sean West – We will be cutting the corner of the cement in the Spring, so that it is not on the neighbor’s property. Pictures were presented to the Board (Exhibit E) showing the old slab where the original shed had been. The West’s bought the property 3 years ago and did not know that the shed was over the property line when they rebuilt it. Since the pictures were taken, they have also put a fence between the properties 1’ within their property line. Those Seeking Information: None Those Opposed: None Those in Support: Matthew Grizich of 58 Bel Air Dr. Hearing Closed: Deliberations: 6 MM – Petition meets the criteria under §181.355. This is a minimal request for relief for the shed. It is over 120 sq. ft., but it now sits 3’ from the property line. JB – Would like a condition for corner of cement to be cut and removed. AZ – In favor with the stated condition. MM – Motion on ZBA-2017-59 to Grant the Special Permit with the condition: Corner of Cement slab to be cut and removed AZ – Motion Seconded VOTE: 5-0 GRANT the Special Permit with condition ZBA-2017-60 Yureilys Collazo 123 ALBEE ST 7:45PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single family dwelling located in the Residential A-2 District at 109/22/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-60 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-61 Yendi Rodriguez 40 BERRY ST EXT 8:00PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Neighborhood Business District at 58/78/0 Presentation given by Yendi Rodriguez stating that she is before the Board due to the building being empty for over 2 years and in the Neighborhood Business District. She will be living there with her children and the house itself doesn’t need any work other than cosmetics. No one was in attendance in the audience for this hearing. Petitioner requested a continuance to next meeting. The zoning law that pertains to this case was changed and signed into law last week. MM – Motion on ZBA-2017-61 to Grant a Continuance to the next meeting. AZ – Motion Seconded VOTE: 5-0 GRANT of a Continuance ZBA-2017-62 Josue Cabral De Araujo 154 ASHBURNHAM ST 8:15PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Residential B District at 174/19/0 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-62 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-63 Julian Perez 133 CEDAR ST 8:30PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a two-family dwelling located in the Residential B District at 22/36/0 7 Petitioner requested Leave to Withdraw Without Prejudice AZ – Motion on ZBA-2017-63 to Grant Leave to Withdraw Without Prejudice JB – Motion Seconded VOTE: 5-0 GRANT Leave to Withdraw Without Prejudice ZBA-2017-64 Raymond Lamy 26 CASWELL ST 8:45PM Special Permit under §181.3561 to reinstate a vacant/abandoned building as a single-family dwelling located in the Residential A-1 District at 12/33/0 Presentation given by Raymond Lamy stating that he is going to rehab the building to live there. A Special Permit to reinstate the property was granted to Mr. LaCrosse a few months ago, but the work had not been completed. Those in Favor: None Those Opposed: None Those Seeking Information: Jeff Jollymore of 130 Longwood Ave concerned about the time frame for the rehab. Mr. LaCrosse gutted the building and found structural rot and had gutted the structure. Now it is only a shell. Brian Major of 48 Casewell St. – just needed information. Petitioner requested a continuance to the next meeting because of the change in the Zoning By-Law. MM – Motion on ZBA-2017-64 to Grant a Continuance to the next meeting. AZ – Motion Seconded VOTE: 5-0 GRANT a Continuance 4. MISCELLANEOUS 5. ADJOURNMENT 8