Zoning Board of Appeals

ZONING Board of APPEALS 166 Boulder Drive Fitchburg, MA 01420 MEETING MINUTES – NOVEMBER 12, 2019 SENIOR CENTER, 14 WALLACE AVE 1. Call to Order LM PLEDGE OF ALLEGIANCE ALL 2. Communications LM ATTENDANCE: LM, MM, AZ, JB & JS 3. Hearings ABSENT: NONE CASE No. APPLICANT PROPERTY TIME ZBA-2019-12 Jackson Avenue Realty Trust 15 JACKSON AVE 7:00PM Review of the Variance under §181.313D5 for outside storage appears to be a construction yard located in the Neighborhood Business District at 58/81/0 The presentation was given by James Pappas property owner and John Laveck business owner stating that they are very happy with the new location. At this time they are halfway with the move, but John believes that he had picked the right place to relocate his business. However, with the busy season and between relocating he hasn’t fully completed the fence installation, seeking to have it done within a week. Pave is done and Mr. Pappas is happy to have this location occupied. Those Seeking Information: None Those In Support: None Those Opposed: None JB – Visited the property and it looks great, except with the back fence, but he just mentioned that he is going to take care by next week he is glad MM – He is good as long conditions had been met MM – Motion on ZBA-2019-12 under §181.313D5 to Continue with the Review with the following conditions: 1. Sunset Clause: Use Variance shall terminate/expire upon the sale/transfer of the business/property from James Papas and/or Business Operation ownership from John Levech or Built well Fence 2. Company Hours of Operations 7 AM to 5 PM Monday through Saturday 3. Dumpster to maintain within the fencing 4. Fencing to be erected as a plan submitted with white vinyl across of the indicating section on the front and black coated chain-link with black slaps around the remained 5. Up to two one-time trucks store in the property within the fencing 6. Parking for 6 employees and up to 3 customers per plan 7. Any conditions from the Planning Board to be adopted as the Zoning Board condition 8. Six months Review May 12, 2020 JB – Motion Seconded Vote 5 – 0 to Continue the Review with conditions ZBA-2019-23 Zachary Poladian 285 RIVER ST 7:10PM Review of a Use Variance under §181.962 Special Permit under §181.352 to operate a motor vehicle sales located in an Industrial District Map 39 Block 51 Lot 0 The presentation was given by Zachary Poladian business owner and James Pappas property owner stating that is coming along awesome. He did realize that he didn’t need a plot plan because and he just would like to keep the eight cars if the Board allow him at the front side of the property and leave the left side building space for snow storage. Currently, the petitioner has five on-site and it can be fit eight, but if the Board allows ten that would be great. At this time he is happy with what he has, so he doesn’t want to minimize those numbers, but wanted to ask the Board if he can increase those numbers. We have obtained the Building Permit to change the glass window in the front and planning to work to repair the roof, very glad to have a tenant to occupy the building which has been vacant for a long time. Those Seeking Information: None Those In Support: None Those Opposed: None JM – Just if he can give some additional cleaning on the property so it doesn’t look vacant/abandoned MM – Good start! We did ask for a plot plan to show parking spots, do you think that you can work on that? – ZP – The original plot plan it shows 4 parking spots and you can see that there is a large additional space available, so he didn’t think that another one was necessary – MM – Yeah, understood, but we would like to see it just for records to see that there was an adequate parking and not going to be stack and jam in there – JP – Okay, we can obtain one – MM – Yeah, we are not trying to impose any cost, but whenever we have a business that is going displayed vehicles we need to see a plan it shows how are they going to be display LM – Also, if the petitioner is no longer there and you get a new tenant in, they will know what you were allowed in that location – JP – So, it’s this means: if he submitted the plot plan he is going to okay to operate? MM – Oh, he is good right now to operate, but we want a plot plan for records and verify what we did approve LM – Do you think that you can have it done within a month? - JP – Yeah – LM – So, do you want to come back in December and provide it to us – ZP – Sure, but can he just submit without having another open meeting? – LM – Well, what if we don’t agree on the way you set it up. That’s the problem – ZP- Okay MM – Motion on ZBA-2019-23 under §181.962 to Continue the Review with the following conditions: 1. No motor vehicle repairs, and No exterior storage of motor vehicle parts or supplies maximum of 8 vehicles displayed for sale 2. No junk or un-operated cars storage outside 3. Hours of Operations: Monday to Saturday 9:00 AM to 5:00 PM and Sundays 12:00 PM to 5:00 PM 4. Review in one month – December 10, 2019 5. Plot plan to be submitted in two months showing snow removal storage and lined parking cars 6. Sunset Clause: Special Permit will expire/terminate upon the sale/transfer of lease or if such as lease is unable to be negotiated with Zachary Poladian JB – Motion Seconded Vote 5 – 0 to Continue the Review with conditions ZBA-2018-38 Positive Properties, LLC 35 JEANNETTE ST 7:20PM Revie of a Variance under §181.355 to erect a 26’ x 24’ attached garage with a room above leaving +/-7’ to the property line located in the Residential A-2 District at 101/11/A At this time the Chair Person received a note from Christ and Kelly Cordio that they were unable to attend because they are going to be out of the country. Mr. James Pappas was present on their behalf. Well, there is not much information that he could share, but he knows that they decide to dig the pool prior completion of other things. So, at this time they are looking to complete the project by spring, therefore they had asked for an extension to May. He believes that’s the landscaping is what is holding them, but in spring they will able to complete what they need to finish because the work it needs to be done it can’t be done now. Those Seeking Information: None Those In Support: None Those Opposed: None 2 LM – So, that’s why they would like a continuance to May rather than? – JP – Right – LM – Okay, and because of the nature of that work is the reason for that equipment on the back and he doesn’t want to finish the landscaping in the front? – JP – That’s about it, but because if there is no addition on the left and on right there is room to get around the building. They did a beautiful walkway and they have invested a lot of money trying to do things right – LM – So, they had pulled the permit to do pool? – JP – He hopes they did, but can’t confirm AZ – So, when they get back. He understand that there is a lot of work that it needs to be done on the back, one thing he would like to see before the winter is to clean-up the property and remove all the debris – JP – Okay, he will make sure and let them know MM – He has the same request, we know that is been a long project, but we need to be sensitive to the neighbors. Currently, it looks like a construction site. JB – Agreed, he remembers all the neighbors came to support him, but he visited the property and looked the back yard which it’s looks bad – JP – Yeah, he will tell them, but he also did pave and driving and the fencing AZ – What’s finished it looks good, we are no questioning on that AZ – Motion on ZBA-2018-38 §181.355 to Continue the Review with the following conditions: 1. Review on June 9, 2020 2. Whole project to be fully completed by review date JB – Motion Seconded Vote 5–0 to Continue the Review with conditions ZBA-2019-13 Ruth Jeanete Guzman 324 LUNENBURG ST 7:30PM Review of Special Permit under §181.3561to reinstate a vacant/abandoned building as a 3-family dwelling located in a Central Business District at 36/15/0 Chair Person reeds a letter from the Building Inspector notifying the property owner about the building permit denial. See exhibit “A” AZ – Just for the records, the letter says Planning Board which a “Typo Error” it refers to Zoning Board Presentation was given by Emmanuel Frias Real State representing the petitioner stating that they submitted the permit application, but it was denied because we couldn’t do the project without the sprinkler system and they are requesting a Code Review. So, we are working on that and he believes to be ready by tomorrow to be resubmitted. LM – Okay, so you really what you need this evening is another continuance? – EF – Exactly – LM – And how long do you think? He thinks for at least another month or to give us enough time in case that they need some additional information on those plans – LM – So, maybe January – EF – Yes, that will be great AZ – So, he understands that they need to obtain a permit to do the renovation, but why isn’t any of the clean-up been done. You don’t need a permit to cut weeds and clean-up the yard, and we did talk about that on the last time you were here and we said that we are going to have a very high expectation because we are extending some latitude on this. And one the biggest concern is because it doesn’t look like to the neighborhood – EF – We hire a contractor and he said that he didn’t want to go in there without obtained the permit first, he doesn’t understand the reason why, but he explained them about the Board main concern was – AZ – Sure, but tell them that for yard and landscaping you don’t need a permit to do your lawn – EF – Okay, he will take care of that by himself Those Seeking Information: None Those In Support: None Those Opposed: None JB – No questions, just get it clean up because it looks badly MM – Just the eco on everybody, get the awnings down, cut those weeds around the property if you could, at least that way doesn’t look abandoned – EF – Sure, I could get it done by himself LM – Okay, you are aware of all the conditions that we set – EF - Yes – LM – So, we just need to make a new date on this case tonight AZ – Motion on ZBA-2019-13 under §181.3561 to Continue the Review with the following conditions: 1. Repair and paint all decking 3  2. Upgraded exterior uniform gutters, facial boards vinyl siding 3. Full rehab kitchen and bathroom front first floor 4. Paint kitchen and bathroom from the second floor with granite kitchen counter and new vanity in the 3- units 5. Alter paving and landscaping as per plan is shown and filed with the Zoning Board 6. Repair slate roof or re-shingle with good-quality asphalt 7. All items outlined in Exhibit D, "Scope of Work", to be completed 8. Special Permit shall terminate/expire if the property is sold or transferred prior all conditions from Zoning Board have been met 9. Property not to be occupied or put into use before Zoning Board findings that all conditions have been met 10. Review on January 14, 2020, at which time Petitioner acknowledges that the Board may introduce additional conditions based on any new information obtained 11. Awnings to be removed and yard to be clean up to an acceptable condition JB – Motion Seconded Vote 5–0 to Continue the Review to January 10, 2020 ZBA-2019-26 Bak Realty, LLC 29 NUTTING ST 7:40PM Continuance “The applicant is petitioning the Fitchburg Zoning Board of appeals under Fitchburg Zoning Code Section §181.9223, M.G.L. c. 40A, Section 8, and M.G.L. c 40A, Section 3 to overturn the Building Commissioners decision that the use of the building is not allowed under §181.313 Table of Principle Use Regulations of the Fitchburg Zoning Code as amended and is therefore prohibited.” In the Residential B District Map 10 Block 54 Lot 0 The presentation was given by Donald Flag (President of Crossing Over Inc.), Attorney Andrew Tine and Kirill Barshevsky (Property Owner). Mr. Flagg stated the following: The building at 29 Nutting St. is a 3-family dwelling with 3-legal units and it is being used as a sober house and operated as three separate dwelling units with three separate kitchens and utilities. The tenants live as family and share kitchen, duties, cleaning just like on any other family except that they are not related, but they do have common friends and a common intent which is recovery. The tenants go to meetings together, which is very important for this purpose. Living alone when you are on recovery isn’t a good idea, so, having peer support and peer guidance is very helpful Attorney Andrew Tyne said that the property was cited by the City as an illegal lodging house. The city zoning code prohibits boarding houses in that part of the city so we are looking for a reasonable accommodation under the Fair Housing Act which is federal law. The reasonable accommodation will be to operate the property in the manner it is currently being used - five or fewer unrelated people in each single-family unit, living in a sober environment. We ask that it be granted. We are also asking the City to waive the boarding house requirement for this location for that particular use. Massachusetts General Law chapter 40A section 3 paragraph 4, requires that citys and towns treat unrelated individuals disabilities the same way they treat single-families or group similar size. So if a family of five or fewer people could occupy each of these units then a group of disabled persons of five or fewer should be allowed to use the property. Otherwise, they couldn’t afford to live in the neighborhood, so they need this type of structural to support in their life for their recovery. So, we are asking this Board to respect the law, otherwise, the law says it is discrimination. Mark Barbadoro (Building Commissioner) said he wants everybody in the audience to understand that no one is telling Crossing Over that they can’t run a sober home in the building, the issue is that the City of Fitchburg zoning defines a single family as a group of not more than four unrelated persons. So, if you have a 3-family building and you want to put not more than four unrelated persons who are in recovery in it you are allowed by the city code. You just can’t put 15, 16, 18, and 20 or more in a dwelling and call it a single-family dwelling. We are limited by the City Code. As far as a reasonable accommodation under the Fair Housing Act is concerned, no one has cited a disability-related need for the accommodations requested. 4 Atty. Tine stated that there was an affidavit provided to the Board from the residents in their own handwriting in which they describe why they need to live together, mutual support, recovery meetings, socializing with people in the same situation. he went on to say as you may know in sober houses there is no credit check, no background check, and no reference required which typical housing requires. And many of these individuals are struggling and need affordable housing. Mr. Barbadoro asked the Board to ask attorney tine if any of the affidavits said that they must live on a group of fifteen and not on a group of twelve. Also please ask Mr. tyne if the reasonable accommodation requested was for purely financial reasons. Those Seeking Information: None Are there any opposed? Robert Powers and Sharon Cerulli of 26 Nutting Street said that they are not opposed to having it as a sober house, but they disputed how many people are allowed in the house. Those In Support: More than fifty persons in the audience raised their hands LM – We took a lot of testimony two months ago at last time you all were here, we are not going go through testimony on the sober home because we think we already said that a sober home can be there, but is just the number of people Atty. Tine – Well this is the first time that he heard that a sober house can be there and that it's just the number of people – LM – Well we just said that – Atty. Tine – Well it is the very first time, and he wants to make note of that because it's very important. obviously, if it's only the number of people the City will allow, then it may be something that could be resolved – LM – The Building Commissioner made that comment, but you haven’t gone through the Board yet – Atty. Tine - Understood, but under federal law, the City is supposed to work with individuals to come to a resolution under the statute. I am trying to determinate if the City is making such an offer – LM – We don’t yet, we have to go through the process – Atty. Tine – Okay, splitting here between 12, 13, 14, 15 on any sever number the house can operate and any other number it can’t operate financial – LM – Is only unrelated parties that they can live in a property and that’s what we are trying to discern this evening – Atty. Tine – Right, the part is the reasonable accommodation concept and he is trying to learn if the City is willing to allowed the property to operate with the sever number of people – LM – It looks at this point that you are operating a boarding home, but we are going to the process and find out what the resolution could be Atty. Pusateri (City Solicitor) stated that his understanding was that the definition is for not more than four unrelated individuals in each apartment. Also, the definition "family" in our zoning ordinance requires that those units be operated as single housekeeping units, a reasonable accommodation could be granted to allow a group of four unrelated individuals to live as a single housekeeping unit except that individuals could move in and individuals out separately as they recover. Also, I want to mention that although there are other issues on the property, such as building code violations, the board must stay clear of them as they are not here for those issues this evening Atty. Tine said Again this is the first time hearing all this from the city. If the city wants to put together a written proposal as to a reasonable accommodation his client will consider it Atty. Pusateri – Okay, and another thought is that we recently received a federal decision from the superior court in a similar case, which indicates that reasonable accommodations have to be reasonable in the context of the rules of the city. So, it cannot turn the entire Zoning Code outside down Mark Barabdaoro – Just to clarify that the violation letter has a variety of violations in it, but the only reason that they are here is the zoning issue. It would be nice to handle all the violations at once, but there are a variety of issues that would have to addressed by other bodies. 5 AZ – So, first he would like to make a brief objection to one example petitioner used, which was a convent because convents are allowed and we don’t see that this is similar in any way to a convent. However, your point is well taken. So, how many people currently you have in the building DF- Currently we have 5, 5 and 3 so thirteen in total AZ - I just want to point out that the zoning ordinance for "family unit" is not defined as five or more. And returning to one of the questions brought up before, we did receive all those testimonies as of why this type of living arrangement is very valuable for people who need this service but the accommodation that you are requesting is not to have a congregate living arrangement, but to have more people per unit that the zoning law provides for, and I don’t see that someone living in a unit living with three other people versus someone living in a unit with four other people, is a disability-related accommodation. Is there any situation in which a person struggling with recovery is going to be materially disadvantaged by having three other people living with them, rather them four other people? Atty. Tine – Well, there is obviously a financial implication at some point, I don’t know what the number is, but at some point, the house can’t operate and that’s the bottom line. This is a non-profit institution. KB – If we have a limit of five and drop it down to four everybody house costs will be increased up to 20% or 25% AZ – But, that could be argued for any housing KB – But, these people need that, often they don’t have a job when they first come in. A lot of times we don’t charge rent at first until they get on their feet. So, that’s why those numbers are important Atty. Tine – we would like to continue and go back to that If you are suggesting five is too many and you are suggesting that because you have a limit in your code for four unrelated people, but a traditional family of five a traditional family could move in there tomorrow, the landlord could have three family in there with five or seven people in each unit JB – The word in there is related that’s a totally separated issue JS – She though that definition was described to everyone earlier, a "family unit" is related individuals or four unrelated people living together as a family (single housekeeping unit) and will be living there, but they all will move out at the same time and part of the issue is that you can’t have one resident coming in and going. As that’s part of the definition Atty. Pusateri – I want to make this really clear, is that the City willing to make a reasonable accommodation because the single housekeeping unit applicability on this situation is not going to change the entire completion of our zoning ordinance in connection of the lodging house residential uses in R-1 and R-2. AZ – In response of the suggestion of what could happened with a related family, the reason that we can’t possibly apply a standard that would apply to a related family to your facility with respect of as is intended on 40A section 3, is because in theory a family of related people could have 15 people in a single-family house. We can’t possibly say that we have no ability to what so ever to regulated the number of persons living in a sober facility Atty. Tine – I truly believe that the law says exactly what is written, that a congregated living arrangement of disable individuals should be treating the same as a family 6 AZ – Or a similar size Atty. Tine – So, it has the benefits of being treated like a family or a group of similar size. So, if a dormitory doesn’t have to sprinkler, then neither will this group have to have sprinklered AZ – So, a family or any other group of similar size is not in your reading, and the reason being is that you are unaware of any municipality in the entire State that regulates families more than other groups of similar size so, that being said we have all the intention of treating this facility like any other group of similar size. I also want to emphasize that the Board is exercising is discretionary function, we have a lot of latitude to consider what is best for the community, the petitioner, and what is best for all involved. So, when we are hearing an appeal of the Building Commissioner's decision, we are strictly appealing to the law. So, nothing that is discussed here has any bearing on our opinions of what should be or the value of the sober housing. It's solely about did the Commissioner interpreted the law correctly or did he not. If he interpreted the law correctly, we would not oppose it. The solution will be at the City Council not here because we simply don’t have the authority to derogate from the law as written unless higher law requires us to do so Atty. Tine – Well, I'm not asking you to interpret this I am is asking you to follow the interpretation that is if fourteen family members can move in there into this property so can fourteen to disabled people. AZ – I'm sorry, there is absolutely no way to rule that we have no ability as a city to override this. MM – When was the last time that you sat with the city to present a plan of what would like to do? Atty. Tine – Well we requested a reasonable accommodation and the City never made a formal offer back until today MM – So, lets back up a little bit, it’s not the City job to make an offer it is for you to present a plan and to understand what the City will allowed to approve Atty. Tine – Well, that’s your interpretation of the law, my understanding of the Fair Housing Act is if my client asks for a reasonable accommodation the City is supposed to decide what they think is reasonable and work back and forth MM – Okay, has that been done? Atty. Tine – I don't believe that City has made any offer until today. I am willing to work with the City if the City wants to bring something on the table MM – How long has the business been in operation DF – Five years MM – On this location? DF – No, on this location two and half years MM – With you as a business owner and you as a property owner DF- Yes, he is just the landlord MM – Were, permits pulled initially? 7 DF – To rent the property? MM – No, to start the business DF – No, we are non-profit and there were no permits needed to be applied for I want to remind the board that on the first floor I have a guy who permanently lives there, he maintains the property and makes sure that everybody does what they are supposed to do. You may have some experienced that some sober houses may not have been maintained and that’s why we did it this way. So, economically there is a big challenge there too, there are a lot of costs going into the house. So, if you ask what the benefit is to have the one extra guy on the house, the one extra guy is to pay the bills. This gives us the fluctuation to provide the opportunity that we want to provide because if we have ten people at the house, we still charge them minimum rent without penalizing anyone and we pay the rest of the bills. We cover a lot, we make sure the heat is on, Wi-Fi, cable and do the laundry for free. We also help guys come in for free. So, you asked what the significant number is of the five is, is a massive impact for us to operate because it gives us a latitude of help somebody else LM – There are times that people feel that rooms are so crowded and less are better for them. DF – I agree, that’s why MASH sets the standards of regulations for how many people can you put in a bedroom and we are under that standard. They also have limits on how many can be on a floor, base per bathroom, for living space, so I don’t think this sober house is overcrowded LM – The petitioner submitted a copy certification to us for this evening see exhibit “ JB – Maybe I'm wrong, but this board is here tonight to verify that the building commissioner did not misinterpret the laws that we have on the books in the City of Fitchburg, that’s what we're charged to do. All these answers are good stuff, we all know that’s a good thing to have sober homes in the city, we all know that people need it, so everything on that side is absolutely wonderful. Our job is only to verify that the building inspector interpreted the law correctly Atty. Tine – Did you included the Federal Law, you can’t pick the kind laws that you want to apply. You are not just dealing with local law you are dealing with state law AZ – So, thank you for explaining all that and I think that we have a better understanding where are going with this now. Even though you have 5, 5 and 3, you are only one person above what would you have if you have 4, 4 and 4. So, understanding that we can only address reasonable accommodation with respect to the use of the occupancy, not with respect to any other issues that you may receive violations for. On this subject will you considered a reasonable accommodation for us to simply state that you can have one additional total individual in the house and then you put them on the floors as you have chosen to do so, rather them have them 4, 4 and 4 DF – Does this mean that we can have the way it is? AZ – Pretty much, just one specific term Atty. Tine – Are you saying that he can have 13 in total? LM – One of our concerns is that you are looking for accommodations for 5, 5 and 3, but when she visited the property she saw 19 names on the mailbox DF – Yes, some of those names need to take off, but he can verify who is there. Some times when those guys leave we don’t take those names off 8 LM – So, there never been more 19 as a whole? DF – Never, sometimes guys asked to leave their names on because they don’t have mail set up and the mailman won’t leave the mail if their names are not on LM – Well, that’s was a major concern for her AZ – I would like to get a response to my previous question, in case if the Board will willing to go for it, will that be acceptable accommodation? DF – Yeah, that will be fine. LM – Shows a letter received from it is a letter and some article and we will file into the record, do you want a moment to look at it? DF – Yes, sure AZ – Make a motion to wait to review the letter to file on file JB – Motion Seconded the vote was unanimous to wait to review the letter LM – my question is to the property owner, so when you purchase the property your main intention from the beginning was to have a Sober Home? KB – Correct LM – But you didn’t seek the proper methods and do your due diligence. KB – I believe I did, I did try to do it on my own and I couldn’t do it. So, I contacted Donald LM – Did you check with the City on what the process will be? KB – No, did have too LM – But you are a real estate agent, did you do your due diligence KB – I'm not a real estate agent LM – You are not KB – No LM – Oh I thought you were MM – What’s recognized by State and the City three or four per unit? Atty. Pusateri – Atty. Tine and I are in a disagreement on what the Statute says, Atty. Zarrella reads it the same as I do. Atty. Tine believes the word “family” allows unlimited numbers of individuals. The other alternative is to utilize the additional words that are in the statue. They are the occupant size for "other unrelated persons". 9 These are the rules that apply to them generally speaking, so simply stated is, we must treat folks with disabilities the same as everybody else. So, what is the number? I think our Zoning by law says four or less. So, you could offer a reasonable accommodation, on what the house could hold. Perhaps twelve people and one additional person, even though the people in the house are not defined as a single housekeeping unit under the Zoning by-law. It’s that what you have to decide. AZ – Yes, he would be in support of the accommodation with the housekeeping unit accommodation and the additional occupant. On the justification that the single additional person is not going to create a substantially greater detriment to the neighborhood than other people would. The single housekeeping unit requirement is mostly just to prevent lodging houses. it is clear that there isn’t a lodging house profit and they are not trying to just rent out to a many tenant as possible to get pay. That is the purpose of why the housekeeping unit exists. JB – I agree with Anthony but with those 12 people, not 13 just 12 people MM – It sounds like that it’s allowed, and it can function, we just need to have a conversation between the applicant and the city to agree about what needs to be done and how to do it properly and safely. As far as the number of occupants, I think is kind of simple to keep it at the number to what’s writing in the by-law. But I am concerned about the number of people in one dwelling units and that they are unrelated AZ – this is 8% variation from the permitted number of the total occupant and specifically as accommodation for the housing of disable person under Fair Housing Act LM – I think that Building Commissioner made the right call, twelve verses thirteen I think that at the point is one extra person. I think that they need to stick with twelve in the property AZ – Motion on ZBA-2019-26 to UPHOLD the decision of the Building Commissioner as to his ruling on the law and his determination as to the necessity of ZBA involvement in crafting reasonable accommodations per disability law. JB – Motion Seconded Vote 5–0 to UPHOLD the decision of the Building Commissioner Furthermore, the Board also votes for a reasonable accommodation to allow the use as of sober home, and that we don’t enforce the requirement of a single housekeeping unit under the definition of a family. We allowed the occupants with the three units to be distributed among the units as the program coordinated decided A. Petitioner has explained that the irregular distribution of living units is necessary to accommodate housing on the first floor for a live-in manager, who cannot reasonably be expected to double-bunk with a resident. B. Petitioner has made a persuasive case that the presence of the live-in manager is essential, or at least highly beneficial to the functioning of the recovery program being operated. C. Petitioner has made a persuasive case that residents benefit from living in a large group setting, rather than in divided, smaller groups. D. The existing occupancy, disregarding distribution across floors, is only 1 higher than the aggregate maximum occupancy of a three-family building under the Zoning Ordinance. E. It would be unjust and counterproductive for the Board to insist that the thirteenth resident be immediately evicted. F. Allowing irregular distribution across floors/units, and allowing a single additional resident to remain over a short-term period will not substantially nullify or derogate from the purpose of the Zoning Ordinance. G. In order to monitor compliance, the City needs to receive information regarding occupancy and turnover. AZ – Motion on ZBA-2019-26 to Provide a Reasonable Accommodation as follows: 1. Up to twelve total residents may be distributed across the three floors/units as Petitioner sees fit, and need not strictly conform to the requirement of not more than four per single floor/unit. 10  2. The residents of each unit need not function as a “single housekeeping unit”, in that they may begin and terminate residency independent of one another, and may circulate freely across floors as the Petitioner’s program may permit. 3. Thirteen residents may be maintained as-present until such time as one of the current residents exits the program, from which point he will not be replaced by another resident, leaving a total of twelve. 4. The City shall be provided with a list of residents, updated whenever occupancy changes. The City shall maintain confidentiality with respect to the list, and shall not use the information contained therein for any other purpose than verifying and enforcing compliance with the occupancy requirements herein. 5. Provided all above conditions are met, the use shall be deemed a compliant three-family dwelling for zoning purposes. The Board neither intends nor has the authority to define the use for purposes of non-zoning codes such as building, health, and fire, nor to exempt Petitioner from any requirements of such codes. 6. Such relief as provided herein is expressly a reasonable accommodation made in view of the specific, fact- bound needs and nature of this precise facility, and shall not be construed as a determination of right, nor as precedent for any future determination, whether similar or dissimilar, on this property or any other. All such accommodations shall terminate upon cessation or substantial alteration of the present use. JB – Motion Seconded Vote 5–0 to Approve the Reasonable Accommodation ZBA-2019-33 Ian Brennan 276 LUNENBURG ST 7:55PM Special Permit under §181.3521 to build a 35’ X 16’ attached carport to the trailer primary residence in the Residential B District Map 35 Block 10 Lot 0 Presentation was given by Ian Brennan (Contractor) Bill and Susan Gomes (Trailer Owners) stating that they want to build a 35x16 carport, at these locations, there are multiple trailers with carport already. Owners sold their primary house after forty years and obtained this trailer where they now resided and been happy with it. We are trying to make this place to look better and keeping it neat, also we want it done right and therefore we are here. Those Seeking Information: None Those In Support: None Those Opposed: None JM – He thinks it will look nice JB – No objections on for so ever, couple members and him visited the property and the place looks great LM – It’s a good little communion – SG – Yes, it is MM – A lot of residents on the project have carport there MM – Very simple it meets the criteria for the request under 181.352 AZ – Totally agree it meets the criteria, and just would like to add that this is one the best property at there well maintained. So, we know that this will fit and make the property looks much better MM – Motion on ZBA-2019-33 under §181.3521 to Approved the Special Permit as has requested JB – Motion Seconded Vote 5–0 to Approved the Special Permit as has requested ZBA-2019-34 Dennis Bradley 12 FOSTER ST 8:10PM Special Permit under §181.3562 to reinstate a vacant/abandoned building as a three-family dwelling located in the Residential C District Map 41 Block 37 Lot 0 Present were Dennis Bradley and Attorney Mark Bradley stating that this was a City own property and he purchased no too long ago Those Seeking Information: None Those In Support: Harold Mateo and Ana Mateo, just to support petitioner Those Opposed: None LM – Well, before we got started there is some information that we need to discuss and Anthony will help us with that 11 AZ – Yes, he was looking over the deed, Page 2 paragraph 1. States that there was supposed to be a Building Permit obtain within 9 months of the deed, the deed is dated January 11. So, we are two moths pass that, now he consulted with the City Solicitor on this situation and he didn’t have an opinion on whether it is going to be an issue or anything, but as legal matter, under the terms of the deed the City has a legal interest on this property again; they could demand to that could be reconverted to the City. So, he doesn’t feel that as Board can act on this until the City has a meeting of formal determination on whether they would like to force that – Atty. Bradley – Well isn’t that we are toning to obtain the Permit? AZ – No, isn’t a permit issue is that the City has to disclaim it legal interest in this, and we can’t do that for them will be right order before the City Council – DB – But the paragraph states for us to apply for a permit – AZ – It’s said to obtain a Building Permit for the rehabilitation of premise within 9 months. If it was writing down to just him as a board member deciding whether it could be an issue or not, we probably willing and say: Apply obtain, yeah you have some delays and we cannot overpass that, and as a board, we don’t have that authority to waive the City legal interest on this only the City Council could do that – DB – So, at this point are we on the City Council agenda? – AZ – No yet, it will have to your petition submitted and it a least a month and a half process – DB – Could you make a determination tonight? LM – No, because the City has to waive their right because they really could get the property back and we cannot speak for them MM – Can we listen to the application and then continue it? – LM – Why we would want to do that? – AZ – We could, but we probably would have a refreshed when they come back again in front of us anyway – LM – That would be a lot of work to do toning, in the event that the City decides to take it back – DB – Well, it will be helpful if we know the next time we come over if we missing anything we should know that now – LM – Well, do you have a parking plan? – DB – Yes, we do MM – Certified parking plan? – DB – Yes LM – It does fit at least two cars per unit? – DB – Yes – LM – Okay good, we are not going to go through right now anyway AZ – Motion on ZBA-2019-34 §181.3562 to Continue to January 14, 2020 under a mutual extension of time sing JB – Motion Seconded Vote 5–0 to Continue to January 14, 2020 ZBA-2019-35 Luiz Santos 768 WATER ST 8:25PM Special Permit under §181.313C11 to operate a motor vehicle sales located in Commercial Business District Map 122 Block 9 Lot 0 Presentation was given by Luiz Santos stating that he’s planning to purchase the property and establish a dealer lot in this property. LM – Okay, how many cars and/or what’s your plan for the property overwhelm? – LS – Plan is putting a shed, gravel and display about 10 cars – LM – Okay, what else is going to be on the property? LS – That’s it – LM – Any structure or any other alterations involve – LS – No LM – Reads note from BOH see exhibit “A” Those Seeking Information: Harold Mateo who owns several properties on Water Street and kind of curious if could obtain this permit. He was not opposed either against the petition Those In Support: None Those Opposed: Diego Neira of 772 Water Street stating that he owns a multi-family unit next to its property, this is a very narrow lot and there is also a common driveway to access his property parking lot. He wants to know how he is planning to park so many cars on this property and if that wouldn’t be affecting the property right away. Also, there is a Mart Bus stop right in front of said property MM – So, to Mr. Neira do you have the right to pass? – DN – Yes, it’s a shared driveway – MM – Okay, so on drawings presented you are showing 40feets, it’s that include that? - LS – No, does not include JB – He looked that particular plan that was submitted and the parking plan, he just said that the 4feets that he has is not his land, but it is on this plan. It is considered on those 40.68feet 12 LM – Are you saying that these showing parking spots are 6feet wide? – LS – No, he believes that they are 8x10 – LM – Well it doesn’t see that you have a good parking plan and she wouldn’t want him to spend money on it if you already encroaching on the right of passing. JB – Also, doesn’t he needs a 7 or 10 feet buffer, if it’s that it will break it down to about 17 feet? So, it’s not going to have room to park and turned around. MM – The person who owns this property, was he around earlier right? – LS – Yes, he was here – MM – So, the property was purchased for ten thousand dollars from the City. However, he thinks that this is way too much for way small parcel LM – She agreed with the Board on that, we will love to have your business here, but you really need a bigger spot – LS – Currently he has another spot in Leominster and it’s pretty much the same size of this AZ- Well, they do what is better for them – LS – That’s why I hear that try to business for Fitchburg is very difficult MM – Is only difficult because we are trying of raise the bar and we are getting a lot of people that want to come to the City, but don’t want to be invested to the City – LS – Well, he doesn’t know, but he would know what it need to get done if he could change the parking LM – It doesn’t see that is enough land itself at all AZ – No matter what angle you put it on it doesn’t see it will work. It was mentioned before that buffer requires, well this is a business district don’t need 7 or 10feets, but you still would have to have 3feets required and you have a 4feet on the other side which you can use because of the right-away. So, even if you did the minimum requirement of 3feet, and the parking install is 18feet. So, then you are looking at very narrow space to turn around back in forth MM – This is not you personally, is this lot isn’t suitable for the request LM – You running a nice business in Leominster we will love to have you here in Fitchburg, but this is not the right spot for it JB – He thinks the lot is too small for the kind of business he intends to put in there, and the width on it is too small to even take a good turn around it MM – He continues to be totally perplexed on how the people who did planning in the City can’t connect the dots. This piece of land should be with 772 Water Street property, so he could have better property, better land and make his lot more valuable, and has absolutely nothing to do with the petitioner because we appreciate you came in tonight. And there are some suitable lot for a car dealer and we hope that you find one AZ – He agrees, even sometimes he tries to find a way that things can work, but he can see both on the plan is difficult had it look the lot it’s even worth so because is not even a flat lot MM – Motion on ZBA-2019-35 under §181.313C11to Approve the Special Permit as petitioner requested AZ – Motion Seconded Vote 0-5 to Approve the Special Permit with unanimously vote ZBA-2019-36 Glorie Lopez 16 GLEN AVE 8:40PM Variance under §181.961 to erect a 24’ X 24’ attached garage with a bedroom above leaving approximately 18’ from the property front yard set-back located in the Residential A-2 District Map 208 Block 15 Lot 3 Presentation was given by Edward Plowden stating that he wants to build a 2-car garage with a master bedroom above attached to the house. Other than that no much to tell at least if you any specific questions Those Seeking Information: None Those In Support: None Those Opposed: None JM – On this particular case is a little tricky because the house is close to Route – 2, but he doesn’t even think that it visible from route-2 – EP – And we have trees on the back, fence and then is a forest that crosses the bridge, so it will have to be a specific circumstance. And then we have two huge trees that they would have to cut those trees JS – It’s a mother-in-law apartment? –EP – Oh, no is for him and his wife to have this master bedroom above, and then their two girls will be occupying the 2-bedrooms on the main house. AZ – He used to live on the neighborhood his parents were few streets over so he is very familiar with that. And sees that route-2 was counted as a street, so you have two frontages, but practically speaking if you go on Glen Ave you don’t know that you are next to route-2. So, he thinks that this is a nice house everything is looking well maintained, so he has a really good reason to believe that the garage will be too JB – Visited the property today and it looks great, putting the garage with the bedroom will make the property look neater MM – He didn’t have any questions, visited the property 13 AZ- He is on the favor of the petition and he does feel that it meets the mandatory findings, specifically: A- the way shape of the lot really it’s no other practical place to put the garage and B- As the notice of the frontage correspondence to route-2, it’s not a real frontage at all for the purpose of the Zoning Ordinance contemplates which this is probably one of the half dozen on the whole City that had this situation, it is really not applicable MM – If we want to talk about a unique, we have to look at soil conditions, shape or topography and you have all, this is a very unique lot. Could you talk about the timeline, when are you going to start and maybe to be complete? – EP – So, we were planning to start in the next two or three weeks, depending on the contractor availably because we had somebody, but he thinks that he took another job. Now considering snow time then it may be spring time if we can get the previous architect because he was the most affordable AZ – Motion on ZBA-2019-36 under §181.961 to Grant the Variance with the following conditions: 1. Not be operate as a rental unit 2. Review in May 12, 2020 JB – Motion Seconded Vote 5–0 to Grant the Variance with conditions ZBA-2019-32 Rayco Motors 1118 WATER ST 8:55PM Continuance Harold Mateo Special Permit under §181.313C11 to operate a motor vehicle sales located in a Commercial Business District Map 148 Block 12 Lot 0 Presentation was given by Harold Mateo stating that he transferred the building from his company to his sister, but he still has his office and he operates the business out of there still where he works out off. So, on the prior permit clause that he was approved states that permit will expire/terminate once the property change of ownership and he didn’t realize that until he went to pull a permit for a sign that he had installed on his building. Until he was informed that he did no longer own the building and that he must check because your dealer license says on the Sunset Clause states that if you sell the property your permit expires. So, that’s why he is here Those In Support: Anazaria Mateo of 75 Milk Street Annys Trabon, reside in the neighborhood and all she can say is that they are very good people and therefore she is on support Those Seeking Information: None Those Opposed: None MM – Just to understand that Rayco Motors, your office, and the house were all conveyed – HM – Correct JB – Didn’t you cut down some of the back of the building? – HM – The last time he was in the front of the Board, he was devastated because he had to cut the sign down because when he did the plot plan – JB – Not the sign, he thought that you were require to cut a little bit of the building itself – HM – That was on the back in order to get his dealer licenses JB – Looking at the plan submitted for 5-Cars? – HM – Yes, it used to be 13-cars back in 1997, but he is okay with the 5- cars. He was able to fit 6-cars and he also obtained parking across of Street for customers. Nothing that it was changed from the previous original petition, besides that he has made good progress. He has obtained his dealer license which is very important if we are trying to sell a car, they have a State Police Inspection and everything went well and both locations are registered. The proposed sign that he will like to have there, and in order for him to have sign he needed to come in front of the Board in order to have the sign-up. This is according to the letter he received from the City of Fitchburg AZ – From us what you need is what you were here before to operate the business. The sign you will need an actual denied from the Building Department and apply to see us – HM – Yes, he has already received his denial from the Building Department AZ – Since you ask for an electronic sign, he must ask what was about that unpermitted sign on the lot over the summer. There were a trailer and an electronic sing – HM – The trailer is a registered vehicle that he uses that he drives to his job sites everywhere – AZ – But you parked stationary with the sign facing out intent matters with the Zoning – HM – Well, are you telling that his trailer is an issue because its gap wrapping around then we have an issued with everybody else that they have their trailer in the City – AZ – But are you leaving it at there no attached to anything – HM – Well that’s his 14 office that’s his location – AZ – Okay let’s move to the electronic sign them – HM – But he wants this to be clear because his a business man and he wants to be successful and he doesn’t want fail, so for the sign itself we paid for franchise for America Home Buyer – AZ – He is familiar with the company – HM – So essentially we have a professional process that we go through just to get the sign wrap, actually he had remove it because he doesn’t want to cause any problems with the City. Now for the electronic sing that is how he found it out that he needed to get a permit for the electronic sign because he got a letter from the City and he didn’t know MM – When do you anticipate to be open? – HM – Business is already open, but the only reason why he doesn’t have cars there is because he wanted to do it as of respect to this Board and until he has that clarify AZ – Motion on ZBA-2019-32 §181.313C11 Approve the Special Permit for the operation of the business on the Property with the conditions as stated in the decision of ZBA-2016-32 Dated December 19, 2017 with the following amend conditions: 1. Maximum of 5 cars for sale on the property 2. No parking of any vehicles on or along the sidewalk 3. No parking of any vehicles for sale in spaces that are not on property operate by Rayco Motors may cause the special permit to be revoked 4. Business not to be operated as a nuisance 5. 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 Rayco Motors/Harold Mateo/applicant. JB – Motion Seconded Vote 4–1 to Approved the Special Permit with conditions 4. MISCELLANEOUS 5. ADJOURNMENT 15