Zoning Board of Appeals

ZONING Board of APPEALS 718 Main Street, Suite 201B Fitchburg, MA 01420 MEETING MINUTES – December 13, 2022 Legislative Building, 700 Main Street Note: This meeting was with remote option! MEETING MINUTES 1. Call to Order Christine Tree PLEDGE OF ALLEGIANCE ALL 2. Communications Christine Tree ATTENDANCE: Christine Tree (Chair), Michael McLaughlin (Vice-Chair), Joseph Byrne (Clerk), Brian Gallagher, Eric Chartrand & James Reynolds 3. ALSO IN ATTENDANCE: Mark Barbadoro (Building Commissioner) 4. Hearings CASE No. APPLICANT PROPERTY TIME ZBA-2022-14 Daniel Estevez 76 SUMMER ST 6:00PM Review of a Special Permit under §181.94 of the Fitchburg Zoning Ordinance to operate an adult daycare service pursuant to §181.313C1 located in the Neighborhood Business District Map 70 Block 13 Lot 0 CT - We received a communication from the permit holder on December 8. He is requesting a continuance as he is waiting for DPH and EOHHS state department approval of the facility. We are supposed to be reviewed by DPH later this month. (Exhibit "A") MM - During the visit, it appeared they were not up and running yet; either space was empty. So, the board members wanted to look at the operations once they were running. So, it's a better expenditure of our time to wait until February. MM – Motion on ZBA-2022-14 under §181.94 for the property at 76 Summer St to Continue the Review and to February 14, 2023 BG – Motion Seconded Vote: 5–0 to Continue the Review to February 14, 2023 ZBA-2022-21 Tara Pena 447 WATER ST 6:15PM Review of a Special Permit under §181.332 of the Fitchburg Zoning Ordinance to modify and continue as a preexisting nonconforming use the business operation of an Auto Dealership and Repair pursuant to §181.313D11&12 located in the Neighborhood Business District Map 95 Block 59 Lot 0 Tara Pena – Virtual participation stating, we're just getting it off the ground now. We got the dealership license; we're still waiting on dealer plates. We are trying to keep the repair portion going as much as we can. CT – So, do you have any cars there for sale, currently? – TP - No, waiting for dealer plates, which couldn't be applied for until we have the dealership license and the sign-up. We're waiting for our inspection from the state police and cannot obtain insurance until then. CT - I'm going to review the list of conditions: #1 to be operated according to the submitted plan dated June 9, 2018 - #2 No, plastic or vinyl banners, professional signage only – TP - Yes, we have installed a professional logo sign mounted on the face of the garage. #3 No exterior storage of junk or and no inoperable or dismantled vehicles outside of the property – No #4 No parking on the sidewalk or street - #5 Hours of Operation Monday - Friday 8:30 am to 7:30 pm Saturday 9:00 am to 3:00 pm Sundays closed – TP - Correct #6 Sunset Clause, you haven't transferred ownership of the business from Pena motors LLC – TP - No #7 Not to operate as a public nuisance – #8 Remove and replace the chain link fence on the top of the wall rear side of the property with vinyl fencing or superior product within 60 days of the special permit issue. Tell me what the prospectus is on that repair – TP - We are going to need more time to sort out the issue because of conflicts we've had with the landlord concerning this issue and a couple of other issues. CT - Mr. Mateo, I know that you are here to make a public comment, and I assume you remain the landlord of this property – HM - Yes, we have owned 447 Water Street for over five years. We did complete renovations to the building, including new electrical, heating system, installation inside rubber roof, and more. We ran that primarily as Rayco Motor's, where we had a garage. Our focus was to repair our own vehicles; we decided to rent it to Ms Pena and her husband, Amaury Pena, as Pena auto sales. When I leased this place for five years, it was leased as a car dealership. They obtained a car dealership and approval for car service repairs. I was handling materials when I was there, but it's different when you have tenants. I want to ask this Board to take into consideration that this site is a clean site with no hazardous waste and a clean 21 E. My request to the Board is to consider that they have the right mitigation in place if they're going to be doing auto service repair for the public CT – Seeing there is no one else to speak on this matter, I will open up to the Board for Questions and comments. EC - I'm assuming the sign is new, not the vinyl banner sign I saw a couple of days ago – TP - Yes, and we received a permit for the temporary banner initially to move forward with the dealer license plates. Then, a week later, we received the second permit for the permanent sign. CT – Ms Pena, we do want to see the fencing provisions fulfilled. I think the Board has some leniency to let you have a little time to let this play out; continue this matter to March 2023 MB – Motion on ZBA-2022-21 under §181.332 to Continue the Review to March 14, 2023, modifying conditions #8 & #9 and all other conditions to remain: 1. To be operated according to the submitted plan dated June 9, 2018 2. No plastic or vinyl banners, professional signage only. 3. No exterior storage of junk and no inoperable/dismantled vehicles outside the property 4. No parking on the sidewalk or street 5. Hours of operations: Monday – Friday 8:30 AM to 7:30 PM; Saturday 9:00 AM to 3:00 PM; Sunday closed 6. Sunset Clause – Special Permit shall terminate/expire upon the sale/transfer of the business from Pena Motors LLC 7. Not to operate as a public nuisance. 2  8. Property owner to remove and replace the chain-link fence on top of the wall rear side of the property for vinyl or superior product at the time of the review 9. Property owner to remove signposts, concrete and wires at the time of the review 10. Review – March 14, 2023 BG – Motion Seconded Vote: 5–0 to Continue the Review to March 14, 2023 ZBA-2022-31 Yael Dario Recio 56 CULLEY STREET 6:30PM Continuance: Special Permit under §181.313D12 of the Fitchburg Zoning Ordinance to open a motor vehicle body and paint shop located in the Neighborhood Business District at Map 33 Block 58 Lot A Petitioner and Ariel Araujo appeared to speak on the petition. CT – At our last hearing certain requests were made to the applicant, a certified plot plan showing the number of parking spaces for employees, clients, and vehicles awaiting repair. In addition, for the portion of the building that sits on the abutter's property, we want to make sure that the applicant either is the owner or has permission from the owner for the entire building. All abandoned vehicles, parts, and debris are to be removed from the property. A plan for the part of the building that is in disrepair to be removed on a completion date. – YDR - I bought the adjacent property on November 16th, 2022, deed recorded at Book 10464, Page 353. CT – Did you remove all vehicles parts and debris from the property – YDR - Yes MM – I visited the property and noticed that it is still full of debris at the back of the property; there are barrels, I don't know if they're oil barrels, but there's still quite a bit behind the building. CT – We also talked about a part of the building, the attached shed, to be removed, and a date of completion; can you give me your response on that? – YDR – It will be removed as soon as the weather gets better after wintertime. MM – We need a certified plot plan showing some dimensions for parking spaces and the building in relationship to the street right of way and the property lines, and the one that was presented tonight isn't. CT – Those in Favor: Harold Mateo of 1118 Water St., has known the petitioner for about 20 years; he does good- quality work. Those Opposed: None Those seeking Information: None CT - I want to give you an opportunity to get up and running as soon as possible, so I would be willing to schedule you for January, but you need to get the plan to the Board. MM – Motion on ZBA-2022-31 for the property at 56 Culley St. to Grant the Continuance until January 10th, 2023, requesting the certified plot plan. JB – Motion Seconded Vote: 5–0 to Grant the Continuance to January 10th, 2023 ZBA-2022-34 Clearwater Real Estate Inv. Group 485 CLARENDON ST 6:45PM Appeal to Overrule the Building Commissioner’s Decision under §181.91 for the need of a Use Variance under §181.313 of the Fitchburg Zoning Ordinance to change a conforming use to a non-conforming 3 use as a 2-family located in the Residential A District at Map 190 Block 6 Lot 0. The presentation was given by Harold Mateo, owner stating that we purchased this property almost a year ago and had done some extensive work to it. New roof, siding, cleaned up, painted the outside and inside. It sits on plenty of land, enough parking spaces. In 2003 the assessor’s office had it as a two-family, and we are looking to continue that use as a two family. CT – Currently, it is being used as a single family? HM - When I bought it, the gentleman was using it as a two family. CT - The use listed with the city is a single family, correct? HM - it's gone back and forth in the assessor’s office from way back, in the early 1900s. In the 70s it changed, in 2003 it went to a multifamily and now it's it shows up as a single. EC - On the assessor’s card from 2003 is a comment at the top that says, small in law apartment HM – So, what I'm looking is the formality of making it a legal two-family, on that side of Clarendon Street are six houses, all multi families. CT – Those in Favor: None Those Seeking Information: None Those Opposed: None Seeing none going to open to the Board Commissioner Barbadoro – The only information that I have is the information supplied by Mr. Mateo, so I didn't have enough information to make findings, if that it was a two family or that it wasn't. I believe once they use his lawfully converted, it becomes impossible to turn it back to a non-conforming use. CT – Mr. Mateo, would you like an opportunity to locate more evidence that this property was never converted to a single family? HM – I don’t think I could find any more evidence. When are you talking about? CT – Possibly back to 1945 when zoning was enacted. I don't have a particular problem with the project, but I do have an issue with the fact that it was ever a single family. Two families are not allowed in the district. Single families are allowed. Even if it started as a two-family, once a non-conforming use reverts to a conforming use, it can't go back to that nonconforming use without a use variance. And where this is a residential district, the Board is not allowed to grant a use variance by the Zoning Ordinance. EC - We need something to show that it was legally converted to a two family, and not just used as such, or that it was never converted to a single family. MM – Motion in the affirmative on ZBA-2022-34 under §181.91 to Approve the Appeal of the Building Commissioner’s decision BG – Motion Seconded Vote: 0 – 5 to Approve the Appeal of the Building Commissioner’s decision, and therefore the Appeal is DENIED, unanimously. A second vote was made to Grant a Special Permit MM – Motion in the affirmative on ZBA-2022-34 under §181.332 to Grant a Special Permit to change, alter or extend a pre-existing nonconforming use JB – Motion Seconded 4 Vote: 0–5 to Grant a Special Permit, and is therefore DENIED, unanimously. ZBA-2022-35 JoAnne Hamberg-Magum 1341 RINDGE RD 7:00PM Appeal to Overrule the Building Commissioner’s Cease and Desist Order under §181.91 regarding the unlawful expansion of a non-conforming mobile home park requiring a special permit under §181.333, located in the Rural Residential District at Map 69R Block 8 Lot 0. ZBA-2022-36 JoAnne Hamberg-Magum 1341 RINDGE RD 7:15PM Appeal to Overrule the Building Commissioner’s Cease and Desist Order under §181.91 relative to Earth Removal requiring a special permit at the mobile home park located in the Rural Residential District at Map 69R Block 8 Lot 0. [ZBA-2022-36 and ZBA-2022-35 taken and heard together] CT – I wanted to note for the public record that I did file a conflict-of-interest disclosure on this matter for the appearance of a conflict of interest. I represented as an attorney a purchaser of one of the mobile homes, and the sale was concluded in December 2021. AP – Petitioners have no objection. CT – On this matter for 1341 Ridge Rd, I'm going to note that this matter and the next matter both touch on the same piece of property. They're scheduled for 7:00 and 7:15, so I would like to consolidate the presentation on these two appeals of the Building Commissioner's decision under section §181.91 of the Fitchburg zoning ordinance. The presentation was given by Attorney Alex Parra (attorney) and JoAnne Hamberg-Magun (property owner), stating: We submitted as part of our appeal some documentation with various attachments; please see exhibit "A." On October 13, the Building Commissioner issued a cease and desist order. Please see Exhibit "B." The present development status is that 15 of the 17 units existed back in 2006 and had been repaired or rebuilt. Additional 24 units have been constructed, bringing the total to 41 units. The abutters, the building commissioner, or this Board never appealed the Special Permit. I suggest to the Board that 16 years later, you cannot come forward and challenge the finality of the planned unit development special permit. I would point to the provisions of the statute G.L. chapter 40A Section 7. We had 16 years of development with earth removal because that has a specific definition in the zoning ordinance. Earth materials have been excavated, earth materials have been moved, and materials have been pushed back. Where the building commissioner has yet to require an earth removal special permit, I have been told that the City does not usually or ever require an earth removal permit. So throughout the 16 years of this project, earth removal has not been regulated by the City. Mr. Commissioner - The notices I sent don't challenge the validity of the planned unit development special permit, although I do question whether the Planning Board could issue such a permit. Given that, at that time, the plan unit development was being applied for, there were definitions in the zoning ordinance; one was for a mobile home, and one was for a single-family dwelling. This development is in a rural residential district, which only allows single-family dwellings. Also, there was a determination from two building inspectors stating that the mobile Home Park was a pre-existing nonconforming use. Therefore, must get a special permit from the ZBA to expand a lawfully pre-existing nonconforming use. So, Miss Hamberg came before the zoning board of appeals to expand a lawfully preexisting nonconforming use and was denied. So, I was relying upon the fact that the permit was denied and whether the planned unit development special permit is valid or invalid. Insofar as to the earth removal, I have sent other projects to the Planning Board to obtain earth removal permits. 5 CT – We received a list for those in support (30), as well for those in opposition (28); please see Exhibit "C." Those Seeking Information: Those in Support: Lorelei McLane of 146 Nijal Ct., I was well aware that the construction and blasting were going to be happening from 7:30 am to 3:30 pm once a week or once a month. Trucks go in and out of our houses, but it's not extremely bad; it is doable. What's not doable is the fact that this cease and desist order, stopping me from having my paving and landscaping this year. Also, as a 55 and older person, it's causing the hassle of not letting our neighborhood get finished. Frank Lynch of 161 Nijal Ct. Neighbors are greatly exaggerating the noise and inability to make phone calls. I'm across the street from where they are working, and I don't have any trouble conversing on the telephone or listening to the radio or television. In addition, my house isn't excessively covered in dust and grime. Catherine Bennett of 130 Nijal Ct., Three years resident at this place, and I agree with Frank. Brenda Whittemore of 118 Nijal Ct. also agreed with my neighbors. Lorraine Devincentis of 127 Nijal Ct., A lot of the blasting took place during summer months, and I couldn't hear it from my home. We are a manufactured home; it is a big investment for us, and I want this project finished and my neighborhood to be better. Michelle Rajotte of 101 Nijal Ct., This cease and desist order; it's an abuse to the elderly of 55. We have brand new homes and can't have a driveway paved, and the road paved, we have people using walkers, wheelchairs, and canes, and what's going to happen in the winter? Also, when the frost starts going away and gets mud, what it's going to happen if an ambulance gets stuck? This order needs to stop to finish our community. Lisa Evans of 10 Weld St.., Roslindale, MA; I am an urban farmer in the City of Boston. My partners and I started a project, and our large problem is that our soil is a very poor quality. I was fortunate that a friend saw a sign that JoAnne had soil for sale, so I contacted JoAnne and asked that I want to test the soil. She allowed me to take soil samples; I sent them to a professional lab to test them. I also had tested for heavy metals at the University of Maine. In between waiting for the results, the cease and desist order arrived. The soil is super clean and high-quality, but JoAnne can only sell it once this order goes away. We want to purchase 400 cubic yards of soil from JoAnne, which would be approximately 13 truckloads of topsoil. This soil has already been mounted at the back section of this site. Those in Opposition: City Councilor Marissa Fleming (Remotely), as representing Award 5. The Woodlands Estates and Portland Estate. I have been getting calls from these for almost six years now, and what I have to know is for the past 16 years, the residents of this ward have had to deal with mining, blasting, crashing, banging, jackhammering, and large construction equipment disturbing. Residents over onto Billings Road also feel these, off Ashby State Road several miles away from where this is being. So, we should keep the cease- and-desist order and give these people peace in this neighborhood. Have her finish one unit of whatever she has left to finish and end this project. It is not healthy for these constituents of mine. Kathleen and Ron Deschamps (Remotely) of 1307 Rindge Rd. Allowed our road to be used when the new road was created. We've been here 16 years, and we did not expect this would be going on this long; I work from home, and sometimes I need to talk or have a conference call with clients. It is impaling six days a week, and the only reason they stop on Saturdays is when she's showing the houses. Douglas Caves of 1345 Rindge Rd., as a direct abutter, I don't think anybody opposes seeing this project completed. However, due to the massive blasting and dust, we must keep our windows closed. 6 Maryellen Christian of 71 Bennett Rd., I agree with Mr. Caves that the noise is terrible, disturbing our peace. It does wear on the mental health; I work outside at an active tree farm. Michael Donnelly of 883 Mt. Elam Rd., I'm glad that people have a place to live, and what everybody's looking at here is a bit of a sunset on the construction. The Conservation Commission was challenged on the project most recently; we were satisfied with the woodland Estate performance of an Environmental Protection and wetlands protection act. So, we're pleased at this point; I recognize here that there's a mining operation going on to build houses, nevertheless. Thousands of materials have left the site, and some are still waiting to be sold. We heard that the planning board approved the project and renewed it in April. The appeal was made on the initial planning board approval in April was an opportunity to appeal to the planning board, and it wasn't. My challenge to this Board is to put this to bed one way or the other, either close the shop or eliminate the mining operation. 16 years is long enough, please consider. CT - I went through the application materials substantially. I looked at the notice of constructive grant, and I had a lot of questions about it. I compiled a list of the issues and the questions; please see Exhibit "D." I'd like to allow the petitioner and anyone else who wants to take some time to respond; this is a serious issue for a lot of people affected by the order of the building commissioner. You have a lot of people affected by the ongoing construction. I was able to locate the recorded version of the constructive grant, which was difficult to locate because it needed to be indexed under your name, properly, and address; that is the tip of the iceberg with a number of technical issues with the notice of constructive grant. Then some substantive issues related to the PUD and the ability of the planning board to grant it that center around whether a variance was required. Then, finally, the real questions come, such as should the constructive grant be considered a nullity or at the point given that the appeal period has passed and Section 7 has come into play. And if any errors or issues with the constructive grant are now not reviewable, what was granted if there was a constructive grant? The recorded version of the constructive grant had only the first page of the application, and as you will see, the constructive grant Notice and City Clerk acknowledgment goes back and forth between naming the zoning board and the planning board. In various parts it contradicts itself by citing Section 352, which is an expansion of a pre-existing nonconforming use allowable only by the ZBA; Section 72, on PUD; Section 94, and site plan review, despite which no part of the constructive allowance contains the number of units allowed. Owners are looking for their roads and driveways to be constructed. I drove up to the locus, and a substantial portion of the road was not yet constructed, but many houses were on it. On the earth removal permit, the comparative figures that you're looking at are the volume of cubic yards to complete the project versus the total of all buildings ever constructed. That is not the correct comparison. So, we would be looking for the volume of remaining buildings, with the volume of remaining removal, or the volume of the total removal versus the total building volume. Whichever way you want to look at that. MM – Motion on ZBA-2022-35 and ZBA-2022-36 under §181.91 simultaneously for a Continuance until January 10th, 2023 – by mutual agreement dated on the hearing. Vote: 5–0 to Grant the Continuance to January 10th, 2023. ZBA-2022-32 PCM Auto Repairs and Sales Inc. 33 PRICHARD ST 7:30PM Continuance: 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 CT – Mr. Ariel Araujo, you were last here before us in November, and we had some additional requests for you on your special permit. We were looking for a plan showing the type of signage you'll be using and a proposed plan for improvement of the exterior of the building, the dumpster location, and how it will be screened. If on city property, written permission for the use of the city. 7 AA - In the beginning, you wanted a regular sign, but you wanted a professional one. It's going to be like some frame without illumination with specific letters at the bottom to read (by appointment only). A certified plot engineer is still working on it. The dumpster is to be at the side of the building, on its city property, by the Police Department. I only have verbal permission from Police Department. Outside improvement will be during summertime, repainting the frames, studying all the way around, and windows to make them look better. It's a 1907 building, so it needs a few improvements. CT – Is anyone in the audience or virtual seeking information, speaking in favor or against this petition? Seeing none, I'm going to look for board members' comments or questions. BG - How many vehicles are you going to be repairing at a time in the space? – AA - We are two guys working; we have three lifts, so we cannot work more than three cars simultaneously. BG – How about the parking spaces? AA - We had eight parking spaces for customers BG - I notice there are a lot of things unrelated to vehicle repair. AA - We are planning to make a waiting room with a coffee machine, a small fridge, and water, and add some couches and a TV. CT - I want to have some timelines in place; I have some concerns about the traffic and the impact on parking. One of the conditions I would want to see is that you keep it by appointment only. Also, I would like to have clearly marked what customers are supposed to do when they get there; I want to see your signage up within 60 days due to the weather. It is the board's preference for the dumpster to be located inside. MM – Motion on ZBA-2022-32 under §181.313 for PCM Auto Repairs and Sales Inc. at 33 Prichard Street to Approve the Special Permit with the following conditions: 1- Services to be rendered by appointment only. 2- Hours of operation 9:00 AM to 5:00 PM Monday through Friday & Saturday 8:00 AM – 3:00 PM. 3- Dumpster is to be relocated inside the building and to be done within 30 days of the issuance of the Special Permit. 4- Professional signage to be installed either on the building or in the window, including notice that services are by appointment only. 5- All exterior window and doorway trim on the first floor to be repainted as of April 30, 2023. 6- Review – May 9th, 2023. BG – Motion Seconded Vote: 5–0 to Approve the Special Permit with conditions ZBA-2022-33 Christopher Cordio 109 OAK HILL RD 7:45PM Continuance: 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 CT – On the requests from the last hearing were floor plans for each floor showing dimensions of various areas, including seating, parking showing the spaces and fences, exits, landscaping, and overall dimension of the entire building with the proposed addition – CC - Correct. CT - You reiterate this plan's total number of parking spaces; how many spaces, 30? – CC - Yes 8 CT- Does that include the three designated spaces for employees on Madison Street? – CC - Correct CT - Asphalt to be repaired and resurfaced, parking spaces to be striped, dumpsters in the corner with the vinyl fence around it? – CC- Correct CT - What's the total square footage of the building? - CC- 89 by 40 CT - On the upper level, you have tables and chairs seating, and I believe we have a difference in the parking requirement depending on whether it's seated or it's to be standing. On the upper of the second plan on sheet two, it doesn't show any tables, and as I recall, it's going to be flexible; it can go back and forth. – CC- Correct CT - The total seating is 150 on Page 3, correct? – CC- Yes CT - You have some improvements to the rear of the property – CC- Correct, we're going to do some green space, plant things, and new concrete for a patio area CT - Do you have a proposal on the type of concrete it is going to be? – CC- Stamped, and the front entrance is going to have a new handicapped accessible ramp and one in the rear as well for the second floor CT - One kitchen, and one or two bars? - CC- two bars, one upstairs, one downstairs CT - What's the security plan? - CC - On weekends we're going to have our private security people working, as we did at Mill City Pub. On the busier nights, we'll have someone working the door for the underage drinking CT - What's the proposed time to complete modifications to the building? We're shooting to be done by the end of August CT - No one in the audience or virtual is here to comment on this project or wants to ask any questions BG - You have 30 parking spots; is that adequate for 150 capacity? – Correct, it's five people for every vehicle CT – According to our zoning parking table, I see that it's one space for every four seats, so I come out to 37 required spaces Mr. Commissioner – CC- That's correct 37 spots are needed, and two handicap spots MM - The building looks like a club. How are you going to make it look like a restaurant? What's happening on the façade? - CC- We're going to side it with a deep blue siding, and we're looking to add a 12 by a 3-ft lighted sign on the rooftop. Keeping the old Saint Joseph sign to give it that nostalgia, adding a couple of plantings in the front not to make it look so much like a club. CT - Anything to add before we close the hearing? -CC- We are going to sprinkle the building as well MM - What are the hours of operation? - CC- Looking to 11:00 AM to 2:00 AM seven days a week. MM - How many employees are expected? -CC- 15 to cover all the shifts EC - He's close on the parking requirement, I don't think it's as critical, and he's not really increasing the footprint in a substantial way. 9 EC – Motion on ZBA-2022-33 under §181.94 and §181.313 to Approve the Special Permit with the following conditions: 1. Parking and structure to be constructed according to plan submitted dated December 12, 2022. 2. Hours of operation: 11:00 AM to 2:00 AM seven days a week, subject to reduction or modification by the License Commission. 3. Any conditions imposed by the License Commission are incorporated and become part of the Special Permit 4. Parking area to be paved and striped and adequate to meet the needs of employees and customers, with two handicapped parking spaces to be constructed. 5. Occupancy not to exceed 150. 6. A sign plan, including design, dimensions and location, to be submitted at review and prior to installation of any signage. 7. Exterior of structure to be completely resided with vinyl siding, roof replaced and any dumpster to be screened by vinyl fencing. 8. The site is to be kept clear of construction debris, dumpsters emptied regularly, and overgrowth maintained during construction. 9. Construction to be completed by August 31, 2023. 10. Sunset Clause - Special Permit expires upon transfer of ownership from Christopher Cordio or his wholly owned entity designated to the Building Department within 30 days of the date of the decision. 11. Not to be operated as a public nuisance. 12. Further site plan review under §181.513 is waived. 13. Review – April 11, 2023 JB – Motion Seconded Vote: 5 – 0 to Approve the Special Permit with conditions ZBA-2022-06 Ulson Lucien 133 CEDAR ST 8:00PM Continuance: Special Permit under §181.336 and§181.3322 of the City of Fitchburg Code to reinstate a vacant/abandoned building and alter the pre-existing nonconforming structure to provide for a substantially different purpose as a two-family dwelling pursuant to §181.416 located in the Residential B District Map 22 Block 36 Lot 0. At our last meeting, we made several factual findings, which led us to the need to address the original special permit application; the special permit is twofold, to resume the use of an abandoned three-family structure that is dimensionally nonconforming and alter it to a two- family structure, given that the two-family use is a permitted use in the district. Attorney Flick requested additional time to prepare to present on this special permit. Atty. Flick - I would like to say, first and foremost, that I do think that the issue of exempt structure or use is worthy of reconsideration by the zoning board of appeals. As there were no factual findings regarding item number two, the proposed residential use or structure may reduce but will not increase any existing nonconformity as it may move on with the special permit. CT - I'm going to note that the last plan we have showing a floor plan on the property is by Rosa design, dated 3/6/22. CT – Those in Favor: None Those Seeking Information: None Those Opposed: As an immediate abutter, Mr. Chrost of 137 Cedar Street, I am in opposition because there is no sidewalk, no parking, and no land to create it. 10 Atty. Flick – Parking doesn't alleviate the problem; whether you have this as a two-family or a single-family, that problem still exists. BG - A retaining wall was mentioned along the side of the building; the grade dropped probably about 20 feet from the first driveway on the left side of the building. How thick does the retaining wall need to be? To support the weight of soil and vehicle being on top of it. What would be the plan for snow removal? A fence is on the other side, owned by the abutter. A retaining wall would also be required on that side; it would create instability to hold all that soil along with the weight of a vehicle and potentially the weight of heavy equipment to flow it. Atty. Flick - According to the engineer, it doesn't have the dimensions of the retaining wall; it would meet all required specifications for weight and resistance. CT – This parking plan, which proposes five spaces; the construction of those spaces and the existence of those spaces would be very detrimental to the neighborhood, particularly the neighboring properties. However, this property has gone through the special permit process numerous times, and this board has held the line on looking for a better result for the property in the neighborhood, given that a three-family would be so detrimental. I would love to see this as a one family, but the prospects of doing so in this neighborhood are small. I would rather see this redeveloped as a two-family than deteriorate into a building that is going to drag the remainder of the neighborhood down with it, due to continued vacancy and continued deterioration. I don't want to see this building again become an illegal three-family. I'd look at allowance with a number of conditions, including not constructing the parking spaces described, limiting the number of bedrooms and making sure the garden level is not a living space. Which means that it doesn't contain a kitchen, or a bathroom. JB - The parking package presented to us is unfeasible because I've been to the properties and measured the property, and there needs to be more space for it. So, I am not in favor of granting this permit. EC - I'm open to approving the permit with conditions; renting to multiple unrelated people in the college area is a problem. MM - New driveways require a 3-foot setback according to our new bylaws, but this building is obsolete. As stated in §181.11 - I can read the purpose of the chapter in a couple of bullets. The chapter says, number one, lesson congestion in the streets; number four, prevent overcrowding of land; number five, avoid undue concentration of population; number eight, conserve the value of land and buildings, prevent blight and pollution of the environment. This request from what I see derogates from the intent of the chapter. It doesn't meet the criteria based on what was presented, how the building exists, and the parking plan presented. MM – Motion in the affirmative on ZBA-2022-06 under §181.336 and §181.3322 to Approve the Special Permit for the property of 133 Cedar St. EC – Motion Seconded Vote: 2–3 to Approve the Special Permit; therefore, Special Permit is DENIED (MM, JB & BG) ZBA-2021-14 Kenneth Godfrey (Graceland Enterprises LLC) 220-222 ALBEE ST 8:15PM 11 Review of the Special Permit under §181.336 to reinstate an abandoned/vacant building as a two- family dwelling located in the residential A District Map 121 Block 11 Lot 0 CT - At the last meeting, some board members wanted to take a final viewing of the property and see if they noted whether any of the special permit conditions had been broken or not met. Does any board member want to raise a condition of the special permit that still needs to be met? EC - Can you read the conditions to refresh my memory. CT - 1 - The overgrowth is to be taken care of immediately and on a monthly basis until the property is sold, all exterior blemishes to be ameliorated including the siding to be replaced 2- To be used as a two family only 3- Parking to meet dimensional requirements for the use of a two-family dwelling 4- Four electric meters are to be reduced to three if both units share common hallway if not meters shall be reduced to a quantity of two 5- Prior to any occupancy permit being issued all special permit conditions must be satisfied 6- Special Permit will expire if renovation work is not completed and an occupancy permit is issued within 18 months from the date of the decision 7- Any and all wasted or debris to be appropriately disposed of and removed from the property including any hazardous waste 8- All construction debris to be removed from the exterior of the property and disposed of in accordance with the law within seven days or by December 21 2021. 9- All broken windows to be replaced or repaired 10- The basement bulkhead to be replaced 11- The chimney to be repaired and repointed 12- All work to be completed by July 26 that was of 2022 13- A violation of conditions subjects petitioners to a fine. Would any board member like to cite a condition that has been broken or not met? MM – The conditions were met in the technical sense of the word. The work performed may have passed code but it was not a quality build. BG - Yes. I had an opportunity to visit the property. The current owners were there, and my knowledge the walk around the building, everything had been satisfied. CT - In that case, I'm going to look for a motion to approve the review. MM – Motion on ZBA-2021-14 under §181.336 to Approve the Review as all conditions were met BG – Motion Seconded Vote: 5 – 0 to Approve the Review 5. MISCELLANEOUS To Review & approve 2023-year agenda! CT - This is to discuss the second or the alternative date. So, an alternative date we have is the 4th Tuesday, and it cannot happen because of the conflict with the planning board in this space. So, Thursdays are more flexible, and that's only if you have something urgent that we need to do before the next month or if there are more than 10 cases. 12  BG - Could we do the second Thursday of the week? CT - That might mean that we meet twice in one week; if the board has a tolerance for that, that's fine. MM – I am okay with the same week. CT – let's keep the second Thursday of the month as the ZBA alternative day. MM – Motion for the second Thursday of the month to be the ZBA alternative day for the year 2023 JB – Motion Seconded Vote: Unanimously Approved the second Thursday as the ZBA alternative day. 6. ADJOURNMENT 13