Zoning Board of Appeals

ZONING Board of APPEALS 166 Boulder Drive – Suite 108 Fitchburg, Massachusetts MEETING MINUTES MEETING DATE: November 15, 2022 MEETING TIME: 6:00PM MEETING PLAE: 718 Main Street, N. Fitchburg Meeting Room #300 1. Call to Order: CT PLEDGE OF ALLEGIANCE: ALL 2. Communications: None 3. Attendance: Christine Tree-Chair, Michael McLaughlin-Vice-Chair, Joseph Byrne-Clerk, Eric Chartrand and James Reynolds 4. HEARINGS: ZBA-2022-07 Craig Saladini 594 FISHER RD 6:00PM Review of a Special Permit under §181.3264 of the Fitchburg Zoning Ordinance to park a dump truck trailer of 28,000 pounds pursuant to §181.78 located in the Rural Residential District Map S11 Block 22 Lot 0 CT – The petitioner is not present for this hearing, nor was he in attendance during the July hearing. The Board reviewed the special permit conditions at this time: 1. No screening has ever been installed, but there was no vehicle to be screened. 2. The Board members have not observed any dump truck there, but there seems to be an old painted school bus on the property. 3. There seems to be outside storage of materials being stored on the property. (Violation) 9. The screening was to be installed by May 2022. MM - It seems as though the Special Permit is not being used and since the applicant does not seem to have any interest in attending any review I would suggest that we revoke the Special Permit. EC – I agree, it appears that he does not need the Special Permit. MM – Motion on ZBA-2022-07 located at 594 Fisher Rd. to Approve the special permit review. JB – Motion Seconded VOTE: 0–4 Special Permit is REVOKED (JR) ZBA-2021-27 James Pappas / 808 Main St LLC 808 MAIN ST 6:15PM Review of a Special Permit under §181.332 to modify a preexisting nonconforming use and open and operate a cold storage warehouse that is not allowed pursuant to §181.313E3 of the Fitchburg Zoning Ordinance located in the Downtown Business District Map 29 Block 31 Lot 0 Presentation given by James Pappas stating that he is working on upgrading the electrical, gas meter separation, and that the roofing company has been hired. The internal infrastructure has been started. It is a major renovation. The renovations have not been started on the first floor as of yet. He has been concentrating on another project further down Main Street at the same time as this project. CT – In looking at the conditions: James Pappas – None of the external conditions have been started at this time. The old bushes may be replaced and they will be keeping the tree in the rear of the property. The first floor tenants are using the dumpster at present, but it will be moved at a later time to allow adequate access and parking. There has been no transfer of ownership. CT – Special Permits lapse after 2 years unless construction and use are substantially begun within that time frame. James Pappas – We have made substantial progress, already putting in $150,000 in the storage area. There is not a lot left to do on the second floor. Storage is our back up plan if we cannot rent out the first floor after all renovations are complete. CT – Would like to schedule another review on this Special Permit in June just before completion of the project. MM – Motion on ZBA-2021-27 to approve this Review with all conditions to remain changing the Review date to June 13, 2023. JB – Motion Seconded VOTE: 4 – 0 Approve the Review with Conditions: (JR) Conditions: 1. Signage shall be designed to match the character of the building and be unobtrusive. 2. No additional chain link fencing shall be added to the property. 3. Hours of operation to be from 7:00 a.m. to 8:00 p.m. 4. Construction and a certificate of occupancy shall be completed on the second floor and a Review Hearing shall be conducted by the Board prior to a building permit issuing for the first floor; the Board reserves the right to institute additional conditions at that time. 5. Interior and exterior surveillance systems shall be installed to alleviate any burden on Police or Fire. 6. Any exterior modifications to the building or landscaping must be approved on Review 7. Dumpster shall be moved to provide adequate access in the passageway for vehicles and Parking. 8. Business shall not be operated as a nuisance 9. Sunset clause: Transfer of ownership from 808 Main Street, LLC 10. Review June 13, 2023. ZBA-2021-14 Kenneth Godfrey 220-222 ALBEE ST 6:30PM Review of the Special Permit under §181.856 of the Fitchburg Zoning Ordinance to reinstate a abandoned/vacant building as a two-family dwelling located in the residential A District Map 121 Block 11 Lot 0 CT – This property has been transferred to another owner. The occupancy permit was issued and after speaking with the Building Commissioner and the Building Inspector, even though the workmanship was not very high, they found that it does meet code and the special permit conditions had been met at the time of the occupancy permit being issued. The post on the deck on the second floor did not look centered to me, but the architect said it was structurally sound. Condition (1) The door not the siding has not been replaced. Condition (11) One of the chimneys have been repointed. MM – Met with the Building Commissioner and the property met structural and building codes even though the work was pretty horrific. Just is not what we would like to see. CT – It is an improvement over the prior existing condition due to the removal of the existing structure 2  in the rear and the stairwell addition to the second floor. JB – I know they did not properly take care of the asbestos removal. MM – I would like Board members to review the property for satisfaction of the conditions. MM – Motion on ZBA-2021-14for 220-222 Albee St. to Continue the hearing to December 13, 2022 with all prior conditions to remain. JB – Motion Seconded VOTE: 4-0 Continued to December 13, 2022 at 8:15PM (JR) ZBA-2022-05 AG Dream Flip LLC 83-85 MARSHALL ST 6:45PM Continuance of the Special Permit under §181.3366 of the Fitchburg Zoning Ordinance to reinstate a vacant/Abandoned building as a 3-family dwelling located in the Residential C District Map 10 Block 64 Lot 0 Presentation given by Nadel Antonio of 20 Water St. and half owner of AG Dream Flip LLC. The Board has a copy of the Site Plan Approval from the Planning Board and the plot plan showing all the items requested by the Board (Exhibit A). Mr. Antonio pointed out the items on the plan and the Board reviewed it at this time. He showed them a copy of his proof of funds to operate the project. He estimated spending $50,000 on the project and has already put $30,000-35,000 into it thus far. He is a contractor and has the equipment to do a good deal of the work himself. Mr. Antonio provided proof of funding sufficient to complete the project. MM – Would like a condition that the wall be a pre cast face block. Also, the parking area to be paved and striped. The dumpster screening to be vinyl not chain link fence, and a solid vinyl guard rail to be installed. JB – Happy the plan shows the garbage will not be stored on the street. (James Reynolds joined the meeting at this time) Nadel Antonio – The architect and engineer will be overseeing the project. EC – This plan has everything we asked for. MM – The Site Plan Approval has language in there in regard to landscaping. Would like to see some grass when it’s completed. Mr. Antonio – We will be doing some landscaping and there will be grass. CT – The parking is adequate and will be more beneficial to the neighborhood than the building lying vacant. Conditions: 1. Retaining wall on the house facing side of the street to be face blocked. 2. Parking spots to be paved with asphalt and striped. 3. Snow removal area to be paved with porous material. 4. Guard rail and dumpster screening to be constructed of solid vinyl fencing and not chain link material. 5. Granite steps to be maintained and repaired with a metal handrail added. 6. Grass to be installed in the front yard by May 2023. 7. Site Plan Approval, including the final approved plan and all conditions to be incorporated and made part of this Special Permit; the project shall be constructed according to plan. 3  8. Property to be kept clean during construction and construction debris to be removed regularly. 9. Dumpsters to be emptied regularly, no vegetative overgrowth and area to be kept in a clean and neat manner. 10. Special Permit will terminate/expire upon the sale/transfer of the property from A.G. Dream Flip LLC prior to Occupancy Permit being issued. After issuance of Occupancy Permit this condition will be released. 11. Review March 14, 2023 MM – Motion on ZBA-2022-05 for AG Dream Flip LLC at 83-85 Marshall St. to Grant the Special Permit with Conditions discussed. JB – Motion Seconded VOTE: 4 – 0 GRANT the Special Permit with Conditions (JR) ZBA-2022-13 Adam Pishdadian 76 PRICHARD ST 7:00PM Review of a Special Permit to reinstate a vacant/abandoned building from one nonconforming use as a four family to another less detrimental nonconforming use as a two-family dwelling pursuant to §181.332 of the Fitchburg Zoning Ordinance located in the Residential C District at Map 31 Block 80 Lot 0 Presentation given by Adam Pishdadian stating that he has moved the granite steps, beveled and filed them. He had waited for his permit and has only recently been able to start his project. Now that the steps are being done he can do the cement work. He has moved the top pieces of the stone wall as much as he could. He has taken out the wood on the third floor and will be working on the floors next. He is leaving the country for 3 months and would like an extension on the completion date of the project. Mr. Pishdadian was an engineer overseas and is doing the work on the building himself. He wants to live on the first floor and have 3 bedrooms rather than 2. MM – I recommend that you bring a floor plan of the changes to the next review and request to amend your petition at that time. JB – Motion to Continue the Review to April 2023 of the Special Permit and modify Condition 2 extending it to 16 months. Also, add a condition: The existing walkway from Pleasant St. to the 3rd floor of the structure be removed and replaced and meet with all safety requirements suggested by the Fire Department all other conditions to remain in effect. Amended Conditions: 1. First floor to be two-bedroom, Second floor to be no more than four bedrooms. 2. Project completion within 16 months.* 3. The front porch is to be repaired or replaced as needed. 4. Granite steps to be repaired or replaced as needed and replacement to have a similar facing style 5. The dormer and right-hand stairwell are to be removed within three months after the occupancy issue. 6. The existing walkway from Pleasant St. to the 3rd floor of the structure be replaced and meet with all safety requirements suggested by the Fire Department.* 7. Applicant to comply with all fire safety requests from the Fire Department. 8. To the extent that the fire safety requirements conflict with a condition, the fire safety requirements shall prevail. 9. The third floor is not to be occupied as a living space. 10. Review on April 2023.* * As added or amended November 15, 2022. 4 MM – So Moved VOTE: 5-0 Review Continued to April 2023 ZBA-2022-06 Ulson Lucien 133 CEDAR ST 7:15PM Special Permit under §181.3322 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned building from one nonconforming use to another less detrimental nonconforming use as a two-family dwelling pursuant to §181.416 located in the Residential B District Map 22 Block 36 Lot 0 CT – The factual finding from the last meeting: A. Factual Finding that 133 Cedar St. was NOT being used as a 3-family dwelling in 1945. B. Factual Finding for 133 Cedar St. that there is not sufficient evidence to show that the structure was legally converted to a 3-family dwelling after 1945. There has been no decision on record for a modification of use. Under M.G.L. 40A §7, if the use is permitted for 7 years, it is then protected from legal action, but does not become a legal use. If the land or structure has been improved and have been in existence for a period of at least 10 years and no notice of action, suit or proceeding as to an alleged violation has been recorded then the structure shall be deemed to be legally non-conforming and subject to section 6 and an local ordinance or by-law relating to non-conforming structures. If it is deemed abandoned after November of 2016, it loses its protected stature and is subject to Section 6. Attorney Flick – His argument contended that the 2016 legislation disposes of all issues relating to the nonconformity and that it should be treated as a legally non-conforming structure under 40A §6 (and by extension under the Zoning Ordinance) even if the structure had not been occupied, because it had been marketed off and on (Exhibit B MLS Listings) and therefore was not abandoned or not used. He stated that there was no intent to abandon and no voluntary abandonment. There has been no change in the footprint of the property or the structure. He believes the property should be treated as a preexisting conforming structure and preexisting use allowed as a matter of right. Attorney Flick cited case law (Exhibit C). JR – This property has been marketed as a 2-family structure but has been used as a 3-family. (Therefore the use is not conforming, but preexisting non-conforming). CT – You have submitted 4 listings of the property. It has had multiple owners and foreclosure issues. EC – The property was taken by the City for taxes at Registry of Deeds Book 8454 Page 117. Attorney Flick – It was later redeemed. His client purchased the property in September of 2021. EC – I consider a property abandoned when it has been foreclosed upon. The owners wash their hands of it and discontinue payment for whatever reason and the Bank takes it back. MM – This issue has been denied twice. CT – Mr. Chrost (abutter at 137-139 Cedar St.) do you have any observations you would like to share with the Board at this time? Mr. Chrost – There hasn’t been anyone living there for years, at least since 2009. The only time I’ve see it advertised is through a vacancy sign on a Spring weekend that was torn down. There has been some activity with people going in and out of the building, but not occupants. Never saw the prior sale notices until this one. 5 CT – The Board should look at the intent of the owner(s) in totality. Was the structure abandoned after 2016 and if so it requires a special permit for the use as a 3 family structure because it would have to be altered to make it a 2 family dwelling. The building was issued to make a third unit in the building MM – Motion on 133 Cedar Street that the building has been a 3-family structure. JB – Seconded VOTE: 5–0 Factual Finding: In 1997 a Building Permit was issued to make a third unit in the building and 40A §7 made it legally non-conforming. MM – Motion on 133 Cedar St was not used for 2 years or more after November 2016 JB – Motion Seconded Factual Finding: Property was not used for 2 or more years after November 2016 and is therefore considered by the Board to be abandoned. MM – Motion to find that 133 Cedar St. was abandoned after 2016 EC – Motion Seconded Discussion on the Motion: MM – I’ve been on the Board for quite some time. Heard this case around 2016 and visited the property often. There has been open access to the building at times, mail piling up in front, trash and debris in the yard. On looking in the windows it was and is evident that the structure has not been used or maintained for quite some time. There has been no electric in the building and no care or maintenance has been done to the property in a very long time. The applicant have applied for permits and we have had many no shows for this property which demonstrates a lack of interest and intent on their part to use and maintain this property. It has been marketed by several owners, but no care has been evident since even before 2016. CT – I agree with Attorney Flick, that the last legal use was for a 2-family. The structure, however was physically changed to a 3-family at one point. Abandonment is the question and not mere vacancy. There is no evidence to show intent to rent or occupy this structure as a dwelling. VOTE: 3–2 The finding carries (CT, JR) Factual Finding – The structure was abandoned after November 2016 and is subject to §181.336 of our Zoning Ordinance and requires a Special Permit pursuant to §181.3322. CT – Does the Board feel ready to make a decision on a special permit of a legal non- conforming structure and meeting special permit criteria? Or is this an exempt structure as a 2- family under §181.3366A. MM – Motion on 133 Cedar St. is an exempt 2-family structure. JR – Motion Seconded VOTE: 2–3 Motion failed (CT, MM, JB) 6 Factual Finding: 133 Cedar Street is not an exempt 2-family use or structure as it had been previously physically changed to a 3 family structure. Attorney Flick requested a continuance to the December 13, 2022 meeting. A Mutual Agreement for Extension of Time was signed at this time. MM – Motion on ZBA-2022-06 for 133 Cedar Street to Continue to December 13, 2022. JR – Motion Seconded VOTE: 5–0 Hearing Continued to December 13, 2022 at 8:00PM (JR left the meeting at this time) ZBA-2022-32 PCM Auto Repairs and Sales Inc. 33 PRICHARD ST 7:30PM Special Permit under §181.313 of the Fitchburg Zoning Ordinance to open a motor vehicle repair shop located in the Downtown Business District at Map 43 Block 14 Lot 0 Presentation given by Richardo Araijo, owner and operator, stating that he had been in business for years at 56 Culley St. The entrance to the property is on the right side of Prichard Street. There is room for 10 cars on the lot. There is also a lift within the building for cars. He will be doing repairs by appointment only, probably 2 – 5 cars per week and would be open Monday – Friday 9:00AM – 5:00PM and ½ day on Saturday just to finish up any work that could not be completed by Friday. CT – Will you be having any deliveries of parts, etc.? Mr. Araijo – Yes, but he tries to pick up smaller parts himself to limit deliveries. He has one employee and does not plan on hiring any more people. There is parking inside for 20 – 25 cars for storage. There is a separate showroom with one sport car in it and it does not hold more than 6 cars. The showroom is in front and the repairs are done in the back. He has had a dealer’s license since 2011. Previously it had been a Studabaker Auto Sales Shop and then Al Membrino turned it into a chopper garage. Vehicles were on the second floor and the car wash was on the third floor. MM – You’ve been in business for a long time. I have spoken with you many times over the years about the condition of that property. If granted, the Board may be placing conditions on this special permit to ensure that this property is maintained in a more professional manner. Mr. Arijo – I plan on making this property better. CT – In order to get a grant of the special permit, you would need all 4 Board Member to agree or you need a 5 member board to have a 4 – 1 vote. Since James Reynolds needed to leave the meeting we are giving you the opportunity to continue your case to December to have a 5 member board. Mr. Arijo – I would like to continue to December. CT – At the next hearing, we will be interested in seeing the type of signage you will be using, your dumpster location and how it will be screened, written permission for the use of city property for the dumpster if it is to remain on city property. MM – Also, how will you be improving the front of the building for your business? Mr. Arijo – Plan on replacing all the windows, but cannot do it before winter as the window companies are all too busy at this time. 7  MM – Motion on ZBA-2022-32 for PCM Auto Repairs and Sales Inc. at 33 Prichard St. to Continue the hearing to December 13, 2022. JB – Motion Seconded VOTE: 4–0 Continued to December 13, 2022 at 7:30PM ZBA-2022-33 Christopher Cordio 109 OAK HILL RD 7:45PM Special Permit to open a restaurant under §181.313 of the Fitchburg Zoning Ordinance located in the Residential C District at Map 63 Block 32 Lot 0 Presentation given by Christopher Cordio submitting a Site Development Plan for the Board’s review. There will be a function hall on the second floor. CT – The submitted plan is missing certain needed dimensions and measurements to calculate the floor area. Depending on the function, will depend what your occupancy load may be. You will need a completed plan to submit to the Board with all dimensions, overall square footage of the various areas, of each floor. And would like to see seating plans on each level. Also would like a parking plan before we can make a final decision on your proposal, as you have asked to forego site plan review. MM – Motion on ZBA-2022-33 on 109 Oak Hill Rd., to Continue the hearing to December 13, 2022 requesting the following: 1. Floor plans for each floor showing dimensions of various areas 2. Seating plans for each floor. 3. Parking plan showing spaces, entrances, exits, landscaping and overall dimension of the entire building with the proposed addition(s). 4. And all other plan requests stated in the prior continuance decision. JB – Motion Seconded VOTE: 4–0 Continued to December 13, 2022 at 7:45PM 5 MISCELLANEOUS: Next month’s meeting will be held in the Legislative Building 6 ADJOURNMENT: JB – Motion to Adjourn MM – Motion Seconded VOTE: 4–0 Adjourned 8