Zoning Board of Appeals

FITCHBURG CITY CLERK Jan 08 2024 10:48 am ZONING Board of APPEALS 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING AGENDA – THURSDAY NOVEMBER 16, 2023 Zoning Board Meeting will hold a public hearing in the Legislative Building at 700 Main Street. Note: This was a Hybrid meeting, broadcasting and recording by FATV! 1. Call to Order Christine Tree PLEDGE OF ALLEGIANCE ALL 2. Communications Christine Tree 3. MEMBERS ATTENDANCE: Christine Tree (Chair), Michael McLaughlin (Vice-Chair), Joseph Byrne (Clerk), Brian Gallagher & James Reynolds 4. ALSO ATTENDED: Atty. Vince Pusateri (City Solicitor) & Felix Zemel (Acting Building Commissioner 5. Hearings: Started at 6:10PM CASE No. APPLICANT PROPERTY TIME ZBA-23-31 Lauren Nario 285 RIVER ST 6:00PM Special Permit under §181.313D11&12 of the Fitchburg Zoning Ordinance to continue the use of an auto sale and to add auto body services pursuant to §181.94 located in the Neighborhood Business District Map 39 Block 51 Lot 0 Brian Gallagher excused himself on the hearing, due to a conflict of family relationship. Present were Lauren and Jorge Nario (Petitioners) and both resident in Fitchburg stating, we are looking for permission to start an auto body, auto dealership and auto repair facility at 285 River St. Previously, it was approved for auto repair and used dealership, but we would like to amend that to include the body Shop as well. CT - The last special permit was issued to Zachary Palladian, and that was for motor vehicle sales. Which had a provision for expiration upon transfer of the business, and he was the lessor of Mr. Pappas, who's the owner. Mr. Pappas can you confirm that he is no longer operating a business at this location – Mr. Pappas - He is not, five or six months the lease is terminated and he has no more leasehold rights in that property. CT - Have you begun operations yet at this property? – LN – No CT - You're going to take a lease on the property – LN – Yes CT - Has the lease commenced yet – LN – No, we wanted to make sure that we're allowed to do business there before we commit to any lease. CT - Is this going to be a term tenancy – Mr. Pappas - Hope to the long term lease, there’s also a possibly rent to own situation. CT - But you have signed on the application as the owner of the property – Mr. Pappas – Correct CT – So, any conditions we impose on this applicant, you have accepted by doing that as well. – Mr. Pappas – Yes CT - Are there any modifications to the structure on the exterior? Are you going to enlarge the building at all? – LN – No CT - Is there going to be a spray booth inside? –LN - Eventually we will, but we wouldn't do that right away. CT - Would it be within the current confines of the building? – LN – Yes, there's enough space for us to be able to do that. CT - You're aware that's going require some special inspections from fire department – LN - Yes CT - The last special permit was issued had some conditions, I'll go through them right now. There were some junk vehicles, junk parts that were being kept at certain point in the front, and especially in the rear of the property. On a site visit last week, some of them are still there, it’s some scrap in the back. So, remove that scrap or any inoperative vehicles, in other words we don't want junk vehicles just stored there. – LN - Understand CT - No exterior storage of parts or supplies. Maximum of eight vehicles to be displayed for sale, and that's because the lot is small – LN - Yes. CT - Any vehicle that is inoperable, unregistered with expired inspection, unless they're held for sale for no more than 60 days. – LN – Understood CT - Hours of operation were Monday to Saturday 9:00 to 5:00 and Sundays 12 to 5. Are those within the hours that you were going to operate? – LN – Yes CT - And professional signage, no temporary vinyl banners. We had a plot plan that was submitted at the January 2020 hearing, that showed the location of snow removal and the area lined car parking spaces. I think we want to adhere to this plan, especially, if you're going to adhere to the same number of vehicles for sale. – LN - Absolutely. CT - And then there's an expiration clause. So in other words we like to know who we're dealing with, who the permit applies to. So, if the business were to transfer to somebody else, then the special permit would expire and somebody new would need to come to apply. The application was in the name of Lauren Nario; are you going to operate under an LLC or other corporation? – LN - It would be Sasha Automotive LLC. CT - We would need you to submit within 30-days, the name and proof of the existence of the corporation that it's been created or the LLC. So, that we have a special permit in the name of something that actually exists. CT - Have you seen the plot plan dated January 2020? – LN - Yes. CT - And you don't have any problem with operating under the terms of that plan? – LN - Absolutely not. CT - How many employees are you going to have at this point? – LN - Starting out, it will be my husband and myself, in the future we do hope to employ four people CT - Would there be up to four on the property at the same time? – LN - Depending on the day, I suppose, but I'll be able to work from home primarily doing the bookkeeping CT - Are you going to perform any other type of repairs or just the body work? – LN - Body work and regular maintenance for customers, vehicles, but nothing overhauling or anything. CT - Do you have a dealer license? – LN - Not yet, that's another the next step CT - Do you know what you need to do? – LN - I worked at a dealership previously, so I do have an idea of how that works. CT - Have you ever held a dealer's license before? – LN - No. CT - Is there any person in the virtual audience who would like to make a comment on, for or against this petition? If so, raise your hand. None CT - Is there any person present in the audience who would like to make a comment on, for against this petition? James Pappas, owner of the property. They've been in business for a long time for themselves and I think they're going to make it really work and that's what this property needs. It's not a very big property. In addition, some of the criteria of the ZBA talks about is it harmonious with the neighborhood and whatnot. Real quickly, to the right of it, we've got residential units, but before we hit the residential units, there's a driveway and then probably a 3000 square foot pizza place that is now, not running but probably will be in the future. Across the street, there's auto sales and a muffler shop, directly to the left of the property is the Nashua River. Then on the left of the 2 Nashua River is the dry cleaning store spot, which is now empty and for sale. So all the way around 285 River Street, there really isn't anything residential other than the buildings to the right, which is a big buffer, so Needless to say. I'm in favor of it. MM - We're trying to do auto repair, auto body and retail sales. I'm a little hesitant about, there's only two bays, and auto body required to work on multiple vehicles. You're waiting for parts, same with auto repair, and you are going to need a lift. Do we see how all three are going to fit on those two bays and very little parking? – LN - We're hoping within the first year to be able to get the spray booth in. My husband already has an established customer base, and I've worked in a dealership before doing the service, scheduling, so I have a background to schedule certain appointments to make sure that does not get cluttered. Our focus is that people can come to one place and have what they need done, and we know there is going to be a vehicle for the auto body work done, and therefore, we also have another storage garage to store vehicles if we need. So, where we would display the cars is going to be separate from where the vehicle will be getting the body work done, that vehicle will be parked in the back so it doesn't cause an eyesore in the front. We think that our business plan and structure on doing the appointments would definitely be suitable for that space. CT - In order to install the spray booth you're going to have plans created and have those approved by the building department, and the Fire Department. So, it is a substantial process before that's going to be approved. Would you mind sharing the address for off-site storage? – JN - 215 Hamilton St. in Leominster CT - How many vehicles can you store at that site – JN - Four CT – According to the special permit criteria, why you do or do not meet each of these criteria. – LN - We would meet that criteria because there aren't many places that you can go and buy a car, or trade in, have your work done, body work done. A lot of people don't realize that when they are in an accident with their vehicle, sometimes it is more repairable than they would think. We would offer a little bit of the both worlds, and we would help with the insurance adjuster. Which it would be great for the city to have, another location that would be able to offer everything at one place. CT - Do you think the parking is adequate to meet what you're proposing to do? – LN – Yes CT - Are the utilities and other public services adequate to meet your needs? – LN – Yes CT - Any impacts on the natural environment including drainage, are you going to have any waste off put from the activity – LN - No CT - Any potential fiscal impact, including any impact on city services tax base and employment – LN - Hope to be able to employ at least two other people CT – Any suggested conditions from board members on granting the Special Permit. I would say that to start out with adoption of all the prior conditions with modification of the transfer provision, to refer to the applicant as well as the LLC. The spray booth issue That’s outside of our purview, most of it has to do with building and fire inspections. However, I would like a review before that comes into operation to make sure there's no issues that are going to affect the exterior of the building. I want to make a very simple condition that the applicant is to schedule a review with the ZBA prior to beginning a spray booth operations. We are adopting the January 14th, 2020 parking plan JB – Motion in the affirmative on ZBA-23-31under §181.313D11&12 & §181.94 to Approve the Special Permit with the following conditions: 1. Special Permit is issued for auto repairs, auto body repairs and auto sales, but Petitioner must obtain a motor vehicle dealers’ license and any other required permits prior to beginning auto sales on the Premises. 3  2. Petitioner to complete removal of any junk scrap or un-operated vehicles or parts within 30 days and provide proof in the form of pictures sent to the Building Department. 3. No exterior storage of motor vehicle parts or supplies and a maximum of 8 vehicles displayed for sale. 4. No junk or un-operated vehicle storage outside, with the term “junk or inoperable” meaning vehicles that are unregistered with expired inspections, unless they are held for sale for no more than 60 days. 5. Hours of Operations: Monday to Saturday 9:00 AM to 5:00 PM and Sundays 12:00 PM to 5:00 PM. 6. Petitioner shall operate in compliance with the January 14, 2020 plot plan submitted by the prior permit holder showing snow removal storage and lined parking spaces for vehicles. 7. Applicant shall schedule a review of any proposed spray booth with the Board prior to starting any spray booth operations. 8. Sunset Clause: Special Permit will expire/terminate upon the sale/transfer of the business from Lauren & Jorge Nario/Sasha Automotive LLC, and special permit is limited to operations at 285 River Street. 9. Review Date – March 12, 2024. MM – Motion Seconded Voted 4–0 to Approve the Special Permit with conditions. (BG – excused) ZBA-2023-08 JoAnne Hamberg 1341 RINDGE RD 6:00PM Review of the Special Permit under §181.94 of the Fitchburg Zoning Ordinance issued after remand from the Worcester Superior Court Zoning appeal, CA No. 2385CV00600 – A, by consent of all parties, and by Order of the Court, to the Board of Appeals, dated September 27, 2023, pursuant to §181.332 located in the Rural Residential District Map MBL 69R Block 8 Lot 0 Present were Lewis Levine (Attorney for the permit holder) stating, I think the attention of the support is only directed to one issue tonight. We did submit a packet to the Board which includes an update on, informational purposes not discussion purposes of the progress that's occurred since the meeting. A great deal of the construction work has been accomplished; a great deal of the hammering has been completed. We're on target to get it done as you asked by December 31st, on your decision requested a storm water management plan. We've submitted that during the hearing, there was a concern about some ledge outcroppings. Would they fall, would they not fall? We've submitted a report for and a resume from the geologist that he's inspected those ledge cropping, and they're all stable. Facts for the board to be aware of, the reason I asked for this meeting tonight is pursuant to Condition-19 an easement agreement. Which was supposed to be granted to restrict an agreed upon parcel in the rear that it would not be built upon, and it says this is to be granted to a nonprofit entity or an abutter with no financial interest in the property. Initially, the abutter that raised the concern is Christensen in the rear, we agreed as to the area. The attorney for Christensen had gone back and forth to a point with myself relative to the provisions of this easement agreement. On reflection my client felt that it was a more appropriate to grant it to the homeowners association, which is a nonprofit corporation. We've submitted the corporate documents confirming that it's a nonprofit corporation that is composed of the people who own the homes in the development, and many of those people are here tonight. Mrs. McGann is not a member, it's up to the homeowners to govern and if they have any issues. 4 For some reason at that point, we went into a vortex with the city solicitor. He had issues with it, and rather than continue to argue with the city solicitor, I suggested at that point, and requested that it was a Board decision as to whether we comport with it. We have no financial interest, and in fact, we had submitted the easement agreement signed not only granting it by my client, but accepting it by the homeowners association. We came here tonight to ask the board to acknowledge that it's correct; it's what the decision says. No more, no less. I initially had reached out to the city through the city solicitor and asked the Conservation Commission if they would accept that, he said no, and not because of any issue with this project, but this generally it wasn't going to go anywhere. So this is the only nonprofit entity that seemed to fit that the bill. I think it's appropriate, consistent and it meets what the decision says. I can't imagine anybody more appropriate to govern and make sure this area remains open, pristine and landscape. They have the most interest going forward, and I can't imagine a reason why they don't qualify. CT - There was a city comment from conservation that this applicant needs to come in front of Conservation Commission for an update, on the required work that has not been performed. CT – Also, from Maryellen Christiansen a request that was submitted, about the drain pipe; please see exhibit “A” Atty. Levine - There was discussion at the last meeting when you approved this drain pipe, we're committed to do what we said; we're not finished with the work. We're going to take care of it, and obviously when we get it done the town is going to inspect it and assumingly. CT - Mr. Commissioner, are you able to give any comment on this while you're with us. – Acting Commissioner - I will tell you that I unfortunately from the visual of this picture. CT - I think this matter probably is best addressed by having you look at the pictures, or on site at a later point in time, and making sure, if there's any issue to communicate that to the permit holder. – Acting Commissioner - I agree; I would also suggest having the town engineering department come out with me, because they're the experts on the roadway design. – Atty. Levine - Whoever comes out for the city make an arrangement with us, we'll have an engineer from Dillis and Roy there. So, whatever happens at that meeting with Dillis and Roy will substantiated by a memo to the town as to what exactly is going to happen with the pipe and when it's going to happen. JR - Be helpful, at least to me, but perhaps others. If we reaffirmed what we're here for tonight, and if we would comment on that point to try to focus our attention to. CT -This was scheduled generally as a review of the special permit, it was not the date originally scheduled; that date in January still stands, but it was advertised as a review. I don't think there is anything that limits our discussion, but the intention of the permit holder in asking for the review was to obtain a finding from the board that the easement that was submitted satisfied the conditions under Paragraph 19 of the Special Permit. Which it is paragraphs 19 and 20, and so everyone is reminded, I'm going to read them. Condition #19; permit holder and property owner shall convey and record a conservation easement over the unbuilt land at the northeast perimeter of the premises encircling the turnabout at the end of Nijal Court, to a nonprofit entity or an abutter with no financial interest in the premises. Which shall at a minimum prohibit development of that area or improvement except as depicted on said plan, this easement shall contain, or be appended to an engineered or surveyed plan depicting the exact area of the easement. Condition #20; this easement in executed form shall be submitted to the Building Department and to the Board within 30-days of the date of this decision, and shall be recorded at the Registry of Deeds within 10 days thereafter. Violation of this condition shall constitute sufficient grounds for revocation of the special permit by the board. CT - Anyone in attendance who intends to speak please raise your hand. 5 Peter Berger of 114 Nijal Court, as far as the drainage system, and how it works. I looked at it and that's beyond my pay capability, but he didn't notice that the land between the two properties; If you look at the stonewall it would naturally grade off. It looks like on the Christiansen property it’s maybe 10 to 20 feet beyond those stonewall, it might dip down, so there might always be a puddle and that has nothing to do with what the inner states. James Bennett of 130 Nijal Court, and president of the homeowners association. Basically, my purpose is to say that I cannot imagine anybody, or any organization that would be better suited for supervising this conservation area than those of us that live there. It is our neighborhood, we want it to be good and we want it taken care of. There's forty of us right now and, growing a little bit more, so that in the long run. I enforce the lawyer’s opinion that we would be the best people to be in charge of that Conservancy. Douglas Caves of 1345 Rindge Rd., my concern is with the proposal for the homeowners run this Conservancy of this easement. Seems to me there must be some financial. Connection there somewhere, which violates the intent of the decision; that's my question. George McGee of 157 Nijal Court, also the treasurer of the association and we have no financial gain whatsoever from this matter. It's a shame, I don't know what you people wanted to do, but we would take care of it. We would make sure nothing ever happened, nobody ever went on it as far as what to build anything. I don't see what the problem is, but we have no financial gain in any way, shape or form. As a matter of fact, association, we're pretty broke. We are doing it because we lived there; we want to see this project completed. We want the abutters happy, Joanne happy. We want to be happy. CT - We have some persons online as well, Miss Kathleen Deschamps. In addition, I want to disclose a matter, and Miss Deschamps, my apologies on this, but it's something that needs to be disclosed. There was a contact from Miss Deschamps to my office, seeking services. Ms. Deschamps has been redirected to a different office and services have not been rendered to her, but I wanted to make everybody aware of that. Kathy Deschamps of 1307 Rindge Rd. I'm an abutter and I want a clarification on the Woodland Estate Group. Do they have the powers to revert the decision and not have the land be an easement and protected from no development, because my concern is there is a financial gain for the Woodland Estates, if they're allowed to build four more sites on that, because their individual costs would be lowered. So if I could get that clarification, I'd feel a lot better. Atty. Levine –No, and JoAnne can correct me, if I'm wrong. She told me additional units don't affect what the individual pays. CT - I think the question was whether the homeowners association, the nonprofit corporation could convey that easement. – Atty. Levine - No, and if you want add a provision to the easement that it can't be transferred to convey to any third party I'm, more than happy to do it. The circular reasoning on this is that, if we had granted it to the Christensen’s, they could have conveyed it to somebody. So. You know, but I'm more than happy to put a provision in the grantee has no power to convey it to anybody else. Mark Christiansen of 71 Bennett Rd., it was the lawyer that I had hired that was in negotiation. There was an answer given by Attorney Pusateri, he listed mass general laws that it was in violation of, and because they don't agree. Why are we discussing this, this should be the Atty. Pusateri’s show. CT - The reason that we're discussing this is, so that we can have a public input on the actions of the government body, which I think is correct. MaryEllen Christiansen of 71 Bennett Rd., I think we're here because of the easement complication. Attorney Levine and his client was working with our attorney Radigan back and 6 forth, we had easement drafts and at the last hour, they removed us entirely and replaced us with Woodland Estates Homeowners Association. Which clearly has a financial interest, and we find that there's an absurd result in entirely useless easement. If the easement is held by the homeowners association, it would be self-policing, if the group wanted to install bunch of sheds or carports, who would stop them; or if the owner wanted to add more trailers. Why would the homeowners association report a violation risking consequences of going against their property, and paying monthly fees. On October 26th I received an e-mail from Attorney Radigan, stating that the city Solicitor positively objected this easement. I also want to quickly say, if it did come back to us or another abutter; we're not interested in signing what they've submitted to the city. There should be a conservation easement, not a landscape easement, which should be held in perpetuity. The end result is that it all remaining lands are permanently protected from future development, preserving the land to never be built upon to ensure the land be allowed to remain a natural state. As an abutter, a buffer to abutting open space on page two number four it is a modification. It states that this agreement or any provision thereof may be terminated, modified or amended, so including that in this proposed easement, I feel is certainly not permanent. Acting Building Commissioner - I did have the opportunity to read the condition that is being specifically discussed. From my experience, in another jurisdiction where I was working previously. Where the association was had oversight over maintenance of lands, and especially concerning is when the association president stated that they are pretty much broke. So, that kind of acts, as an incentive or disincentive to maintain the land, and a big part of the concern is maintaining it free from constructive nuisances. In addition, to the fact, it's maintaining and preventing it from further development. Due to that fact, I have some concerns with having the homeowners association managing it, because whether they'll be able to maintain the property, or there's going to be a cause for future enforcement by the city and future issues down the road. I also found that there are land trusts that do service Fitchburg, and land trusts often are commonly used across the country. Used as stewards to maintain land the one in particular, working in Fitchburg works with waffle paths, but it may be worth looking for something similar to their Conservation Trust that Land Trust; some group that isn't nonprofit that has a mission of maintaining and preserving open space, as was the intent of this condition on the special permit. City Solicitor - Last meeting here and while the hearing was going on, and this decision was being formulated by this board. There was a negotiation going on between the applicant through her attorney, and the abutters through their attorney. While we were late in the evening and trying to wrap up a final condition, which were here discussing the general concept and the specific terms of what the abutters were going to hold as a Conservation Commission. We're still yet to be somewhat tied down, and the decision was memorialized to the best of our ability, by our volunteer Board, who captured the essence of what that was, but not necessarily maybe 100%, and that was then seen as an opportunity perhaps to use the term wiggle out of. Making a conveyance to the abutting group, and so when the abutters learned of what the proposal was, to have the homeowners own the easement, the abutters obviously felt that there was something less than straightforward unfolding, particularly, in connection with their perspective that there was an agreement reached, at least in principle. On who was going to hold the Conservation Commission, I weighed in with an attempt to assist, and I wrote to my good friend Attorney Levine and explained to him that the homeowners association would certainly be in an analogous situation and not a state that really controls what we're talking about today. Would identify that the homeowners association would probably violate the ethics rule, meaning that they would have a financial interest in a matter and therefore wouldn't be able to participate if they were to be public officials. My friend then pointed out to me correctly. Well, so wouldn't the abutters they would also buy implicate that? So there's somewhat of an issue, and needs to be something further fleshed out. However, I always come back to this simple fact, which I think there was an agreement reached in principle. Where the 7 abutters relented their objections to a certain degree and a compromise was reached, and the Board captured that in its decision. So, the dispute arose and Attorney Levine, and myself identified that we need to get it resolved, and the best way to get it resolved is to come back before you. MM - I'm not an attorney for the record, but I look at six words, no financial interest in the premise. Everybody that owns one of the manufactured homes on the property, has a financial interest. They have a building that sits on that property. Therefore, I agree with Attorney Pusateri; original finding and recommendation that this probably wasn't the best decision. We have the North County Land Trust. We have other Land Trust nonprofits in the area. Maybe we should look at those. On our decision, maybe we need a bigger nail that outlines that there will be absolutely, no more additional units’ construction and no further development on this property. Let's try to achieve that tonight. CT - I appreciate Mr. McLaughlin's desire for finality, because I certainly share it. However, I'm not certain that this board could not be overruled by, or modified by, a future board, because all boards contain the same authority. So, I can no more bind a future board that I can bind myself. I want to say that Attorney Levine, I very much appreciate that you sent the draft. I think that was appropriate and was sent in good faith, and that was very ethical of you. As the city solicitor said, we tried to craft a decision that incorporated an agreement for settlement that was happening literally in front of us. That was imperfect at the time, and the comments that were made were about the abutter holding the conservation easement. A question arose about, whether it would be more appropriate for North County Land Trusts, or some other nonprofit corporation that was regularly in the business to hold the easements. Instead, a question about whether some nonprofit willing to hold the easement could be located, with no identity because we are trying to work this out at the meeting. A question was presented at sidebar to me about the homeowners association, to which my response was I'm not sure. I think a separate nonprofit entity needs to be created. A response was received from the city solicitor that said the interpretation that you took was not correct. It was not in accordance with the spirit or the intent of the agreement. However, the subsequent action of Miss Hamberg was to have the easement executed and delivered as I have looked, and I don't think it's been recorded at the registry of deeds, but it has been signed by both parties, which means it's been executed it, delivery of the easement has taken place. And I don't think that was an action that was taken in good faith. I do not. I appreciate you coming back here; I do not agree that this easement was in accordance with the letter, or the spirit of that decision or the compromise. I don't think any person present in the homeowners association is ill willed or has ill intent, but when the corporate documents are examined for the homeowners association, their objectives include providing affordable manufactured home sites, and to control rental costs and to preserve the affordability of the community. I can very easily imagine future members of the homeowners association, who would be willing to convey the easement back to the property owner. Where there are numerous other options for some entity or an abutter to hold this easement, I think this was done again for a particular reason that related to the interests of the property owner. I do not think that this easement meets the terms of this special permit, I would not vote in favor of finding that it did. Atty. Levine - You say, it isn't perfect. I don't want to argue one way or another. If I could be given a month or two, to seek out. As this board had mentioned North County, but I wasn't given any choices. It was A or B, but I'd be more than happy to at least see if any of those entities would accept it. Failing in which the board can, and do what they think is appropriate. – CT - Homeowners association will have to join in the conveyance at this point. Atty. Levine - We were required under the decision to deliver within 30-days, and executed easement. The assumption when you read the decision was the board or the building inspector would say A&A, if there was a problem with it. So, obviously we were obligated whoever we granted it to, to give it to the building inspector so he could approve it. So, this delivery was always subject to the city approval, it wasn't a deed between one party and the other. If in fact, is another 8 nonprofit out there that is more in line, I would be more than happy to see if they'd be willing to accept it and submit it. – CT – Atty. Radigan replied in this e-mail chain, my client remains willing to be the holder of the easement that we mutually prepared. Atty Levine - We are here tonight for this board to decide what they want to do, or choice B to give me a month or two to see if I can find a nonprofit that's acceptable to the city. MM - That we continue this to the January 9th review date, to give them time to resolve it. – CT - I would like to discuss two other things. Before we do that. CT - We have been very clear about this with the property owner, given the history, if there is an issue of non-compliance the Board is going to move forward to execute its authority, such that it has, for imposition of a fine, or revocation of the special permit; I don't want to leave that issue hanging. The building commissioner sets and imposes the fines, the boards can only make a finding as to violation and make a recommendation as to the fine. So whether a fine is levied, or not is up to the Building Commissioner. This board, of course, can vote to revoke the special permit or modify the conditions. As I came here tonight, my thought was that the $300 a day fine needed to be imposed because clearly that condition has been violated. In addition to that, the condition should be modified, so that if the appropriate easement meeting that condition was not recorded within 14-days that there would be an automatic revocation of special permit. I am open to discussion on that. Mr. Commissioner - I was going to comment that looking at the conditions, the applicant had until December 31st. The qualifier for it is the applicant shall be subject for daily fine of $300, if all the above items are not completed by December 31st. – CT – So, if you look at condition #20, there's a different deadline. And that deadline was, in essence of 40-days after the recording of the special permit decision on September 27th. Atty. Levine - In all fairness, there was a disagreement Mr. Pusateri said, but it was suggested we put the matter in front of the Board and that we wouldn't record the easement until we had a yay or nay. So, I'd ask for that to happen as soon as possible and asked to run it by the chair to do whatever, we weren't hiding or not doing what we were asked to do. The idea was to come here tonight and to find out, whether or not the board affirmed or didn't affirm the proposed easement agreement. So, $300 a day fine that we didn't compliance, if we did do everything we could to comply. We were supposed to submit it to the building department, this inappropriately both in my end, and Christensen attorney got involved rather than the board. As I said from the beginning, it's a Board decision, it's not a bunch of lawyers decisions as to what they intended. I don't think discussions of fines are appropriate; it was no intention to violate anything. I understand exactly what you're saying tonight, and that's why you get to make the decision. Not the town, not the city solicitor and not me. I wanted to do a true conservation easement that would be in perpetuity, but you need to do that with a true conservation agency, or the state won't accept them otherwise. So, I wanted to do it with the Conservation Commission, which I was told that Fitchburg couldn't do that, and that was the end of my search. Also, we had a very limited period of time to go out and do it, if I can be given more time I will make my best efforts and we'll go forthwith. There in fact it was a total intention of compliance, from the very beginning. – CT - I very much appreciate your advocacy on behalf of your client, I appreciate the offer to find a suitable person or entity to hold the conservation easement and I do hope that the intention to do that follows through. I am not imputing any allegation of bad faith to your representation, if this discussion had stopped before the execution of that easement. I would be in agreement with you. There was the disagreement which is resolved, and now we can move forward. However, the execution of that agreement and the refusal to take an option that was clearly before you, if the only concern was compliance with the conditions, was one of the abutters. Which it was offered, and was not acceptable to Miss 9 Hamberg, clearly. That is not what was presented to this board on the night that we made a compromise in a decision that we had worked very hard to reach, because the parties before us evidenced that they had reached a compromise and we wanted to settle the matter and move it on for everyone involved. We still want to do that, but. I don't think it's appropriate to deal with a party before the Board who acts in bad faith, and to let that go, and I think there needs to be fines, again which are in the purview of the Commissioner, we can only recommend. I think the execution of that agreement was a clear act of bad faith; again, not imputing any intent to act inappropriately to the homeowners association, but the homeowners association is an entity whose members will change, and that is not what was agreed upon, which is a permanent guarantee that that property is not going to be built on. MM - Your recommendation is. – CT - My recommendation assess a $300 fine a day until the violation is amended and automatic revocation of the special permit if the condition was not complied upon within 14 days. Which would bring us to December the first. I don't want to have a meeting on this again before January. I think we've given a lot of time to this permit holder. JR - I'm persuaded by the idea and I believe the message is received, about the intent to find a suitable party. It would take some time, so I think that our condition #20 states a certain period of time. I would suggest that we would modify condition #20 to extend that time to coincide with the January 9th meeting. Mr. Gallagher – Don’t have a comment. MM – I would like the applicant, not the applicant representation understand that we all work together to craft this up, and there was some blatant disregard for this. We all worked hard and put a lot of effort into this, and here we are tonight trying to resolve an issue that shouldn't be before us. CT - In response to Mr. Reynolds, who I think is a person of good faith who is generally hopeful in the goodness of others, I am not persuaded, without consequence. We have a lot of conditions in here that are related to time and completion, and I was encouraged to see a lot of progress on those that was reported to us, but I think the further transgressions we let go, we are just going to encourage more of them. – JR - I do not want to enable poor behavior, my thought was an acknowledgement in action. Where some steps towards an action of recording, or whatever the right legal language is. That might suggest that there was compliance, may put us in another spin and I'm not interested in going into another spin. If the solution is allowing a modicum of some element of time, that's the reason why I'm suggesting it, not the blind faith. CT - I know this Board is certainly tired of dealing with this particular issue, I don't necessarily think that sense of compromise is going to eliminate all possibility of future appeals, litigation, or future actions filed by the permit holder. Although, one is always hopeful that compromise can be struck and settlement can be reached, given the progress made on the project and the representation of Attorney Levine today. I would be willing to modify it to a $300 a week fine; recommendation to the building commissioner; and to have the extension of that condition to December 31st, but I'm not in favor of modifying the condition. – JR - I think the suggestion is very reasonable. MM - Before I put the motion on the table, I'd like to discuss. Is it best to do a January 9th, 2024? We want to see it recorded and everything before the meeting, so we'll keep it at the December 31st 2023. CT - We could modify that condition to say by December 31st, 2023, which is a Sunday. Let's modify to January 4th, it’s a Thursday 10  MM - Motion in the affirmative on ZBA-23-08 under 181.94 & 181.332 to Grant a Continuance on the Review to January 9, 2024, amending condition #20, and inclusive of that would be a $300 a week fine be imposed upon the permit holder by the building commissioner. Until compliance is achieved as the finding that the permit holder is in violation of conditions #19 and #20, all other conditions to continue as originally issued. 1. No blasting or rock crushing may be conducted on site. No rock hammering, and no screening or other processing of earth materials may be conducted on site, after December 31st, 2023 2. No earth removal, as defined in the zoning ordinance, may be conducted on site. 3. Applicant may construct no more than seven additional residential units, according to the August 13, 2023 Dillis & Roy plan as modified on September 13, 2023 – Sheet C2, with Unit 22 on the plan (closest to the turnabout) to be turned to provide the shortest connection distance to utilities. 4. Hours of construction are limited to Monday through Friday 8:00AM to 5:00PM; no construction work on Saturdays, Sundays or Holidays. 5. The applicant shall employ dust mitigation measures during construction and regrading. 6. Not to be operated as a public nuisance. 7. Site to be kept clean of construction debris and dumpsters to be emptied regularly, and all stored construction equipment be moved to the end of Nijal Ct., during construction. 8. On site toilets to be provided for all construction workers 9. Applicant shall notify drivers of any construction vehicles servicing the property not to exceed the weight limit of the Rindge Rd. bridge or any other bridge in the area, and shall provide a copy of said notices to the Building Department within 30 days of the date of the decision, or at such times that the construction vehicles are hired thereafter 10. Drainage to be diverted from abutter’s property per Dillis & Roy plan dated August 13, 2023 and screening provided, both to be constructed and maintained pursuant to the requirements of the Conservation Commission, DPW and DEP. 11. The following work shall be completed by December 31st, 2023: i. Remove existing stockpiled excess material so long as the same does not constitute earth removal as defined in the City Ordinance, but no loam may be removed from the property. j. All rock hammering on site shall be completed. k. All processing of excess material, which is limited to screening, to be completed. l. Rough grading of the road and installation of utilities and drainage in the road according to said Dillis & Roy plan dated August 13, 2023. m. Paving of the driveways on existing homes. n. Regrading of all home sites, including rough grading on new sites, on the premises o. Any erosion controls required to prevent further erosion of the existing slopes to be placed as necessary, and any degrading ledge shall be evaluated by a design professional and stabilized in accordance with their recommendations. p. Outside perimeter of the project area to be re-graded, loamed, restored and seeded, preferably in the style of the natural rural character of the area prior to construction. q. Operation maintenance plan of the storm water drain system to be filed with the DPW and to be updated at least every three years. r. Applicant shall be subject to a daily fine of $300 if all of the above items are not completed by December 31st, 2023. 12. No building permits for any additional manufactured units to be installed on cement pads shall issue until Condition 11 has been satisfied. 11  13. All remaining home pads and final connections for laterals and electrical utilities to be installed and the road paved by July 1st , 2024. 14. The Recreation Unit servicing the development residents shall be completed and open for use by the residents by July 1st, 2024. Recreation building to be at least 28 feet by 48 feet and consistent in design with the remaining neighborhood structures. 15. All manufactured home units shall have been installed and the project completed by November 20th, 2024. 16. Special permit to be recorded within 60 days. 17. Permit holder shall maintain all of the ways depicted on all plans that are subject to this special permitting as private roads and not as public ways. Permit holder shall not petition for acceptance of the private roads as public ways by the City. 18. Failure to maintain the integrity of the pavement in the road and infrastructure, water, sewer, storm water and electric systems, as well as plowing shall subject permit holder to a $300 fine per day for violation of conditions 19. Permit holder and property owner shall convey and record a conservation easement over the unbuilt land at the northeast perimeter of the premises encircling the turnabout at the end of Nijal Court to a nonprofit entity or an abutter with no financial interest in the premises, which shall at a minimum prohibit development of that area, or improvement except as depicted on said plan. This easement shall contain or be appended to an engineered or surveyed plan depicting the exact area of the easement. 20. The easement in executed form shall be submitted to the Building Department and the Board no later than January 4th, 2024 and shall be recorded at the Registry of Deeds by January 9th. Violation of this condition shall constitute sufficient grounds for revocation of the Special Permit by the Board. (Amended November 16, 2023) 21. Review date - January 9th, 2024 22. The Board made a finding that the permit holder is in violation of Conditions 19 and 20 at the November 16, 2023 meeting. Therefore, the Board recommended a $300 a week fine be imposed upon the permit holder by the Building Commissioner until compliance is achieved. (Added November 16, 2023) JB - Motion Seconded Voted 5–0 to Grant a Continuance on the Review to January 9, 2024 6. MISCELLANEOUS ADJOURNMENT - MM - Motion to adjourn. 12