Zoning Board of Appeals

FITCHBURG CITY CLERK ZONING Board of APPEALS Feb 20 2024 12:43 pm 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING MINUTES – DECEMBER 12, 2023 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. ATTENDANCE: Christine Tree (Chair), Michael McLaughlin (Vice-Chair), Joseph Byrne (Clerk) & Brian Gallagher 4. ALSO ATTENDED: Felix Zemel (Acting Building Commissioner) 5. Hearings: Started at 6:15PM CASE No. APPLICANT PROPERTY TIME ZBA-2022-30 KM R2 Realty LLC 80 SOUTH ST 6:00PM Review of a Special Permit under §181.333 of the Fitchburg Zoning Ordinance to alter an existing nonconforming structure providing a substantially different purpose (multifamily housing) located in the Residential C District at Map 68 Block 65 Lot 0 Present were Tony Molina and Barry Kottler (Owners and Bolton residents) stating, at this point we are close to the finish line. Hoping to wrap-up all the site work, within the next two weeks. All the parking lots have been paved; striped, and marked, most of the units are finished and we are installing appliances and countertops. So, I would say we are almost two months away from full completion. CT – Conditions, you were to comply with the entire Planning Board site plan as approved. Are you scheduled for any review with the Planning Board on their decision? – TM - No. CT - Would you say there's been any deviation from the original plan or from the conditions in the planning board's decision? – TM - I don't think so. CT - As for our conditions, the units were to be made-up of one studio apartment over the garage, three 1-bedroom and five two-bedroom units. Is that as built? – TM - Yes CT - The exterior architectural elements were to be preserved, restored or accurately replaced, including but not limited to design work around the windows and elements above the roof line, copper on the top of the roof and the woodwork and the front peak. Was that complied with? - TM – Yes. CT - The interior architectural elements were to be preserved. That included restoring the entryway, the coffered ceiling in the living room, the oak stairway and all oak floors that could be restored. – TM – Yes CT – The special permit expires or terminates upon the sale or transfer away from KM R2 Realty LLC, unless the occupancy certificate has been issued, which I understand has not yet been issued – TM - Correct. CT – KM R2 Realty LLC is still the record owner – BK – Yes, however the sidewalk from Payson St., up by the school, DPW stated that we can't do any sidewalk work until April 15th. Which we may need a temporary certificate of occupancy prior to that, we'll get bids in to hire somebody on who's going to do the work and we'll have that the Board. CT - I'm just going to make a note of that issue, because we want to wait until you're finished. I do want to make sure that we have a good resolution that allows you to proceed, but make sure that the sidewalk gets finished in April. BG - I do have some questions about the color of the building, I see that a portion of the building a small strip is painted the curbside color that we agreed upon. Is the whole building going to be that color? – TM - No, we wanted to keep it in the same color tone of the original building, but we thought it looked better in a lighter version of that tone and kept that section homage to the original. BG - It's white, and with the close proximity of trees and with a porous surface, and there's a lot of road dirt that comes down because they salt and sand the hill quite heavily in the winter time for safety. A lot of dust from the traffic against the house, it’s my concerns about the color. JB - I'm happy to be bringing that building back to life again. CT - Is there anyone here who would like to ask a question, state a concern or seek information on this review? None CT - Virtually, if there is anyone who would like to ask a question, state a concern or seek information on a review, please raise your hand. – None CT – Comments from Community Development, the are looking very much forward to seeing the project completed. Mr. Commissioner – A note for the records, from my office Inspector Morreale’s last inspection on September 13th for the insulation. It passed, so through our office it's progressing as well. CT - From the reaction, I guess that’s the final color on the exterior. – BK -Yes CT - Is there any room for leeway on a color modification that's a little more historic in nature, at least the front facing the street – BK - We can talk. CT – So, you believe it's going to be about two months, so we would need to schedule another review. Would you prefer March, April or February? – BK - February. MM – Motion in the affirmative on ZBA-2022-30 under §181.333 to Grant on the Continuance of the Review to February 13, 2024, modifying condition #7 and adding #8 as follows: 1. Petitioner shall comply with any and all conditions listed in its site plan as approved by the Planning Board as a condition of this special permit 2. There is to be 1 studio apartment over the garage, 3 one bedroom units and 5 two bedroom units. 3. Exterior architectural elements to be preserved, restored or accurately replaced (design work around windows and elements above the roof line, copper on top of the roof and wood work in front peak) A more detailed list and photos will be on file with the Building Department for reference 4. Interior architectural elements to be preserved - Restore entryway, coffered ceiling in living room, oak stairway, and all oak floors that can be restored. 5. Property, including landscaping, to be maintained during construction, debris to be picked up and dumpster to be emptied regularly. 6. This Special Permit will automatically expire/terminate upon the sale/transfer of the property from KM R2 LLC prior to issuance of the occupancy permit, except as a reorganization of the corporate entity which retains the existing owners. 7. Review February 13, 2024 8. Permit holders shall meet with a member of the Board to review compliance with the architectural and historic provisions. 2 JB – Motion Seconded Voted 4–0 to Grant the Continuance to February 13, 2024 ZBA-2023-15 Nadel Antonio 348 ELM ST 6:00PM Continuance: Special Permit under §181.332 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned nonconforming mix-used structure changing the use to another nonconforming less detrimental use as a duplex pursuant to §181.94 located in the Residential C District Map 10 Block 115 Lot 0 CT - A reminder to the members of the board. We saw this for an initial hearing, the applicant needed more time before he would have a decent plan on the project, and there was an agreement to extend any deadline on either side until July 31st, 2024. One year from the date of that initial meeting, but we did want to see the structure demolished before December 1st. We have received a communication from Mr. Antonio requesting some additional time to ZBA members. See Exhibit “A” CT - Is anyone present to speak on this matter? None CT - Is anyone virtual to speak on this matter, please raise your hand. - None CT – Comments from other departments: Board of Health, “It would be good to fix this building” Community Development, “A concern about whether or not the demo permit had been pulled” Mr. Commissioner - On the last concern, there was a demo permit pulled #B-23-307. As of December 1st at 12:55 PM, I spoke with Mr. Antonio on which he stated that he's still in the process of demolition. We have not scheduled a demo inspection to verify that demo has occurred, because as of last week, it's not been completed, or at least the inspection has not been completed. – CT - I would think that completion of the demo inspection should occur, and that's something that should occur by the next meeting. CT – Note, condition #1 has been satisfied and modified for inspection to be completed satisfactorily. JB – Motion on ZBA-2023-15 under §181.332 & §181.94 to Continue the Hearing to July 9th, 2024, modifying conditions #1 & #5 as follow: 1. The applicant is to have a demolition inspection completed on or before January 9th, 2024. 2. The overgrowth on both lots to be maintained while this application is pending. 3. After the current structure is demolished, the foundation may remain but must be capped. 4. All deadlines related to Petitioner’s rights to reconstruct the building after demolition and to constructive allowance of this petition for Special Permit are extended by tolling until July 31, 2024 by mutual agreement. Petitioner shall sign an extension agreement to this effect and submit to the Building Department within 7 days after receipt. 5. Public Hearing continued to July 9, 2024. MM – Motion Seconded Voted 4–0 to Continue the Hearing till July 9th, 2024 ZBA-2022-05 AG Dream Flip LLC 83-85 MARSHALL ST 6:00PM 3 Review of the Special Permit under §181.3366 of the City of Fitchburg Code to reinstate a vacant/Abandoned building as a 3-family dwelling located in the Residential C District Map 10 Block 64 Lot 0 Present was Elias Gonzalez of Sterling (Owner) stating, right now is going nowhere yet. I'm waiting for estimates. CT - This was first allowed some time ago, I believe that it's been over a year. At the last review meeting on September 12th, we had a condition to put a construction safety fence in front of the stairwell and the hole, and have the hole filled in within 30-days. It has not been done. – AG - The reason is we started and hit some pipes and gas line CT - The reason that condition was placed is because the Board felt there was a safety issue, in the gaping hole and the retaining wall that appears to be crumbling next to it. So, there was a hole dug there and never completed, and now it's caving in, there's a shopping cart filled with trash. So, understanding that you can't get the work done that needs to be done, but doing something to alleviate the safety issue while that is going on and those were the two options given. Did you attempt to do either of those things? – AG – Yes, I was going to figure out a way to put something in there to be safety. CT - I understand you dug the hole because you need to put parking in, but we can't leave the hole for a year. That's a problem and we don't want anyone to be hurt. BG – At my site visit today I noticed that the gutter was leaking from above, pouring directly down on the sidewalk coming off of the stairway and it was icy, so anyone coming down that stairway is liable to slip and go right down into the hole. It's an urgent matter, it's an accident waiting to happen and someone can really get hurt. That's a big hole to fall down into. – CT - I think putting up a barrier fence; you have something that would stop someone if they did lose their footing coming off the stairs and hit the icy sidewalk. CT - Is the property still owned by AG Dream Flip LLC? – AG - Yes. MM - The front retaining wall to the right of the stairs appears to be visually failing and there was some discussion about it. Requesting an amendment to the condition to include repairing or replacing that wall. I'm really concerned by the fact that the project isn't funded and nothing's been done, have any permits been pulled? – Mr. Commissioner - There was a permit applied for in 2022, to add and to build a retaining wall and add two parking spaces. That was stopped by Inspector Zuppa on June 20th, 2022. Due to the issue that the Planning Board will need to approve the new parking plan prior to being permitted to continue work on site. Property owner decided to change the parking plan from two spaces on site to four, and two across the street, so there's no open building permit. CT - There's an expiration date on this special permit, if you don't use it, or if you don't follow through with it. Which means you would have to reapply if you wanted to continue with the project at some point in time. You've had a number of different issues you’ve been facing in this project, so it’s a reminder if you do intend to follow through with the project the two year date is going to be coming up next November. – AG – Okay CT – No one was present or virtually to speak on, for, or against the petition. CT - Reading other board comments; the Board of Health “This is a good building it would be nice to have people living there again.” Community Development “Would like to see the project completed” 4 MM - I'd like to add in condition #11 the clarification on completeness of the retaining wall. CT - The Board has the ability to revoke the special permit if you don't comply with the conditions. We have set this as a condition more than once and it has never been complied with. I would prefer to see this for review in January, and if it's not complied with by then, I'm going move to revoke the special permit BG - I received a phone call from the abutter today with some concerns about a tree that's on your property, t's actually rotted and it's falling and leaning right into her house and the branches are up on the roof. I think it's something that needs to be addressed immediately. – AG - I can send somebody to cut the tree down. BG - Proposed adding that as a condition to be completed by January 9th. 2024. MM - I'd like to see that removed in 14 days, or immediately. – AG - I could get somebody next week to cut the tree. MM – Motion in the affirmative on ZBA-2022-05 under §181.3366 to Grant a Continuance on the Review to January 9, 2024, amending condition #11 & 12, and adding #14 as follows: 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. 8. Property to be kept clean during construction and construction debris to be removed regularly. 9. Dumpster to be emptied regularly, no vegetative overgrowth and area to be kept in a clean and neat manner. 10. Special Permit will terminate/expired 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. Permit holder to remove and replace the retaining wall to the right side of the proposed existing or new stairs. 12. Permit holder to place a construction safety fence in front of the exterior stone stairwell and the hole at the front of the property, unless the hole is filled in, by January 9th, 2024. 13. Review – January 9th, 2024 14. Permit holder to remove a tree leaning over onto the right side neighbor’s property due to safety concerns by January 9th, 2024. MM - Motion Seconded Voted 4–0 to Grant a Continuance to January 9, 2024 ZBA-2022-21 Tara Pena 447 WATER ST 6:00PM Review of a Special Permit under §181.94 of the Fitchburg Zoning Ordinance to continue 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 5 Present was Harold Mateo, of Wakefield and virtually Mrs. Tara Peña of Northborough (Permit Holder) stating, We are officially withdrawing our request for a special permit for this location. Our business is being terminated at the location; the lease has been terminated by the landlord. We're in the process of transferring this license to another location. I also want to mention before we go any further, and want to make sure that everything we discuss here now only pertains to ZBA business and not anything outside of the purview. There are legal issues that have happened, and may still currently be going on. I don't think it’s fair to be discussed in a public forum, especially considering these meetings are televised in public and anything that might be considered defamatory or slanderous to the business. CT - This permit has a sunset clause, which means yourself and Peña Motors LLC are the only operators under the special permit. If you are bought out by another entity, the special permit terminates, and that's the only thing the Board needs to find. Is the business still operating at this location, and if so, when does it anticipate ceasing to operate at this location? – TP - We are operating at the location until January 1st of 2024 CT - Mr. Matteo, would you confirm that they would cease operating on, or before January 1st of 2024? – HM - The execution is for December 31st, 2023. CT - For this board to consider making a finding that as of January 1st, 2024, the special permit would terminate as the permit holder has ceased operating at this location. – HM – I wanted to mention, I closed my business up, so they can go ahead and go through their process. I'm hoping the Board has the consideration for the same thing when I go to reopen at my location. CT - As you know, we have to reconsider every special permit on its merits at the time, but the Board understands that this location has been operating as this type of business with different ownership. CT – There was no person present or virtually to speak on, for or against this review. JB – Motion in the affirmative on ZBA-2022-21 under §181.94 & §181.313D11&12 that the Ownership of the Business at this location will no longer Exist and therefore the Special Permit will Expire as of January 1st, 2024. BG – Motion Seconded Voted 4–0 for a finding that the Special Permit holder will no longer operate the business at this location as of January 1, 2024, and that therefore the Special Permit terminates as of January 1, 2024. Mr. Commissioner - Unless the board wants to modify that condition at tonight's hearing, the condition on change of ownership could be modified adding new language. MM - Why are we trying to overcomplicate a simple thing, when the applicant can just make a new application for a special permit in January? – CT – Agree, but the building commissioner does not agree. Mr. Commissioner - It's not that I don't agree. I'm trying to expedite the process a little bit by treating it as a modification of an existing special permit versus a whole new application that’s requires a full hearing and everything else that goes along with it. – CT - It will still require a public hearing and a new notice. 6 MM - I'd provide some feedback, this this property has been before us multiple times. We struggle with the conditions being met, I would want to revisit this and look at it in a new light because it's been review after review chasing the conditions on it ever since it's been open. CT - From my point of view by making the modification to the last finding, that the expiration would happen 14 days after cessation of the business. We can accommodate both points of view and allow for further discussion on how to address this the next time it comes forward. JB – Motion for reconsideration on the last vote to make modification that the expiration would happen 14-days after cessation to the business. BG – Motion Seconded Voted 3 – 1 to reconsider the last vote taken, and therefore the reconsideration Fails. (MM) ZBA-2023-10 Lewis Colten 21 UNION ST 6:00PM Review of the Special Permit under §181.94 of the Fitchburg Zoning Ordinance to reinstate and change the use of a vacant/abandoned building from a church to a single-family dwelling pursuant to §181.333 located in the Residential C District Map 44 Block 141 Lot 0 Mr. Commissioner – Permit holder does have a permit that was issued in August 4, to replace roofing, siding, new electrical wiring, plumbing, kitchen, bathrooms and separate current HVAC. Inspector Mark Sullivan did do a rough inspection on September 28th, and passed, I don't have any insulation inspections or anything beyond that rough inspection, but it appears he has been trying to progress. Present was Edwin Velez Fitchburg resident (One of the property owners) stating, that we are about to have it done. We're waiting for painting and flooring inside the house, and for the exterior, we're just waiting for the curb cut for the driveway. So, we are about three weeks to get the house complete done. We did the new windows where was needed, new siding, and roof. Mr. Commissioner - Did you say about completion of the product, what have you done on the inside so far? – EV - All the bathrooms and we're just waiting on painting and flooring. Mr. Commissioner – Sheetrock’s up. – EV -We did sheetrock over the existing Mr. Commissioner – So, you took it down to the studs, correct. – EV - No, we did go over the existing walls with a new sheetrock. We didn’t demo the property from the inside. On the addition on the left side of the house, we have torn down the addition to make the additional parking. Mr. Commissioner – So, you didn't do any interior demolition, any intermediation – EV – No, we didn’t do any. CT – At the last meeting in July, we had asked for a certified parking plan, depicting dimensionally compliant spaces, and all approvals from DPW, did you submit a certified parking plan yet? – EV -I don't. CT – No person was present or virtually to speak on this matter. CT - If you believe that you'll be completed in two weeks, we can schedule for January MM - Is the building insulated? – EV - I'm not sure we didn't open the walls. Mr. Commissioner - I'm hearing this was a church before and now it's being converted to residential, and you are renovating the entire building, correct. – EV - Yes. 7 Mr. Commissioner - Given that fact and Fitchburg is a stretch code community and this was a change of use from a church to a single family residential. It needs to be HERS rated to the current stretch code. – EV - I understand that’s when you do a complete demo inside, but in this case, we didn't do any demo so we are just fixing the walls and the floors. Mr. Commissioner - It's a change of occupancy, so doesn't matter if it's complete demo or not. You're changing occupancy from a church use, which is an assembly use for business use, to a residential use as a single family home. MM - Motion in the affirmative on ZBA-2023-10 under §181.94 & §181.333 to Grant a Continuance on the Review to January 9th, 2024, with conditions: 1. Not to be used as student housing or a lodging house. 2. Either a) the roof shall be removed altogether and asphalt shingles installed, or b) slate roof to be repaired or replaced and snow stops to be installed along the perimeter to limit the snow from coming down. 3. New vinyl siding to be installed over existing siding. 4. Any windows which are not new shall be replaced as well as new exterior doors. (Modified 7/11/2023) 5. The dwelling shall contain no more than two and a half baths. 6. Exterior renovations to be completed within six months after the date of the decision. 7. Off-street parking to be provided by leasing two parking spaces at the train station garage or other private off-street parking area, if the same can be located within 800 feet of the lot boundary line. 8. No occupancy permits to be issued until all conditions have been met and an inspection conducted by the Board with review approved. 9. This special permit to be recorded at the registry of deeds within 45 days of the date of filing with the City Clerk or the special permit shall expire. 10. Review Date – January 9th, 2024. 11. Applicant to submit a certified parking plan to the building department depicting dimensionally complaint spaces to the left of the building and all required approvals from DPW (Modified 7/11/2023) 12. Project to be completed in substantial conformance with the plan by T Design, LLC dated June 25, 2023 with the demolition on the left of the building as depicted on said plan. (Modified 7/11/2023) JB – Motion Seconded Voted 4–0 to Grant a Continuance on the Review to January 9, 2024 ZBA-23-28 Jessica Bisol 30 HARUGARI ST 7:00PM Continuance - Special Permit under §181.78 of the Fitchburg Zoning Ordinance to conduct a Home Occupation Business for a Studio Salon pursuant to §181.94 located in the Residential B District Map 78 Block 25 Lot 0 CT - At the last meeting was a request for a site visit to be conducted by the board members, which I believe has happened. And before I go into any further I'm going to remind you that we are a five person board, but tonight there are four people here. That means that in order for the special permit to pass, we all have to vote in favor. If you would like the opportunity to have a full five member, we will happily carry you over to January. – JB - I'm comfortable going forward today. Present was Jessica Bisol Fitchburg resident (Property owner and Petitioner) stating that, originally I was going to pursue using the garage space and after further review of parking concerns, I have decided that I would like to pursue using the three season porch I have. That current space has a partially poured concrete foundation; plumbing is accessible from the house, so this would require 8 no additional outside assistance from the city like the garage would. It would also allow for more parking spots, as my two parking spots for my single family home would be in my two car garage. This leaves three spots in my driveway available for clients. The project would be 204 square feet total. I don't foresee it causing any problem with the community or the neighborhood. CT - Are you looking to expand the footprint of the existing building, or are you going to be acting within the existing footprint? – JB - Acting within. CT - Any changes to the exterior of the building. – JB – Yes and I believe there's an additional 100 square feet. CT - Is it built out closer to the street or closer to the rear boundary? – JB - It is built out closer to the side boundary. No person was present or virtually to speak on, for or against this matter! Mr. Commissioner - My comments are more for information and things that will need to be considered. One, you will need to make the building handicapped accessible, and looking at the elevations, that might be a challenge, so a ramp might be to be built. Which will encroach on into setbacks. Also, the state plumbing code just updated, so would require to have a mop sink. On the drawing it shows a small 4X5 bathroom, that’s going to have to be larger for an accessible bathroom because you need a 5-foot zone of accessibility for that. JB – In favor and comfortable now that she's not using the garage space. BG – In favor it's a wonderful accommodation MM - The concept plan submitted looks nice, so as long as it meets the criteria for the special permit, I am on favor CT – Home business criteria qualifications, which have to be met first. You reside there as your primary residence, and plan to continue doing so after the business? – JB -Yes CT – The business would not produce offensive noise, vibration, smoke, dust, odors, heat lighting, electrical interference, radioactive emissions or environmental pollution. Would you say that the business does any of those things? – JB - Nope. CT - I'm asking you this question in public, as I had asked you on a site visit. You do plan to offer nail services at the salon, but you are using materials which will not require the ventilation that is required for acrylics. – JB - Yes, that is correct. CT – There is not going to be any exterior storage of materials or equipment – JB - No. CT - You will need to register as a business, as a DBA or otherwise with the City Clerk. CT - I would like to see the plans as they develop, petitioner had some concern about the cost of the plans prior to allowance of the special permit, but I would like to see them afterwards. On the availability of sufficient parking, there are three spaces. The Board needs to confirm that as part of the plans that we see afterwards, and then construction staying within the footprint or at most extending into the side yard, which does not have a setback issue. MM - Motion in the affirmative on the ZBA-23-28 under §181.78 & §181.94 to Approve the Special Permit for the home occupation with the following conditions: 1. Petitioner may operate a Studio Salon as a Home Occupation. 2. No more than one customer chair in service at any one time. 3. Petitioner must register with the City Clerk as a business. 4. Petitioner must continue to reside in the property as their primary residence. 9  5. There shall be no more than one employee in addition to the permit holder. 6. There shall be no signage except in accordance with §181.7823. 7. Hours of operation shall be Tuesday through Friday 10:00 AM – 7:00 PM and Saturday 8:00 AM to 4:00 PM, closed on Sundays. 8. Three off-street parking spaces shall be provided and documented through a certified parking plan submitted to the Building Department. 9. Applicant shall submit a drawing of the exterior modifications of the building. 10. The design shall be consistent with the existing structure and style of the residence and concepts drawings submitted. 11. Special permit to expire upon the earlier of five years or the transfer of the property from the Petitioner. 12. The Board shall have the right to schedule a Review Hearing upon 14-days’ notice by first-class mail to the Special Permit holder of the Review date, for review of compliance with the Special Permit conditions. Motion Seconded Voted 4–0 to Approve the Special Permit with conditions ZBA-23-33 R.P.N. Real Estate Investment 133 CEDAR ST 7:15PM Jonathan Silverstein Request for favorable action within two years of unfavorable action due to specific and material changes in condition under M.G.L. c. 40A §16. Request to submit a new application for Special Permit under §181.333 & §181.336 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned nonconforming structure as a two-family dwelling pursuant to §181.94 located in the Residential B District Map 22 Block 36 Lot 0, after unfavorable action by decision dated February 21, 2023. CT - Having reviewed the application materials, I'm going to note that the petitioner has also sought an appeal of the Building Commissioner’s decision. Mr. Commissioner - Reading Attorney Silverstein’s memo and looking the case history it appears that this third basement unit was added sometime after 1997 without any appeals or any enforcement. Then the third unit was abandoned sometime prior to 2009, as was noted in previous appeals and was used exclusively as a two family. So the applicant at that point abandoned the three-family use and started utilizing it as a two family use. Given that fact, as the current building Commissioner acted in the same position as my predecessor with this determination that it was not an exempt use to be revived administratively. Under the §181.333 and reviewing all of the facts would feel at least myself as the building Commissioner I would view this in the light of 181.335, specifically from 181.3355 alteration to a non-conforming structure, which does not increase the footprint of the existing structure, provided that the existing height restriction shall not be exceeded for a two family house. CT - Let me take a moment and correct one of the things, this has been before us three times in the history as long as I have served on this Board. The finding was that it was abandoned and not only that the use was not being used, but that the full structure had been abandoned. Virtually was Attorney Mark Bobrowski, representing the Petitioner stating, it's my understanding that the 3rd dwelling unit was not lawfully created, but it survived the statute of limitations for enforcement, which was 6-years. Attorney Silverstein, who prepared a memo for the board to point out that the controlling case, was Bruno vs. Board of Appeals of Wrentham. Jonathan, in fact argued that case to the appeals court. We declined to construe the expiration of the six year limitation period, as converting an initially unlawful use to a lawful use. So that means the use of the structure in question has always been as a two family, not a three family. There's also no doubt 10 a nonconforming structure aspect to this, and that there are some setback violations on the lots; we’ve got an area problem. So, I look at the building commissioner’s September 29th, Form of intent for this property. I think he's on the wrong page when he says this is governed by §181.3332. This is an altered to provide for substantially different purpose or the same purpose in a substantially different manner. The order was substantially greater extent - that's a provision from the statute that applies to nonconforming structures under Section 6. When you apply it here, it was the structure proposed to be altered for a substantially different purpose, while it's residential to residential or for the same purpose in a substantially different manner. There's no proposal to move the footprint or alter the building by expansion or anything of that sort or to a substantially greater extent. Again, not applicable here, it'll be lesser if anything. So, I don't believe that that provision of your ordinance applies. I would suggest is that the applicable provision here is instead 181.3362-A. Exempt structure use. Any legal non-conforming structure or use that 1) has been abandoned, or 2) has not been used for two years; it says is one of the following: A) Easy to meet, it's a single or a two family dwelling, this is a two family dwelling. Property is located in the zoning district, which permits any residential use as of right. That is in fact, the case in this situation. The proposed residential use or structure may reduce but will not increase any nonconformity, including but not limited to use, dimension and parking. There's no proposal here to do any work to the structure that would increase any existing nonconformities. In fact, the applicants prepared to provide four parking spaces that turned on the plan that submitted. Lastly, the Building commissioner must determine in accordance with all applicable building, health, and fire codes that the structure is safe or can be made safe. The applicant seeks an opportunity to convince the building commissioner that is indeed the case. This is the perfect fit for what is being proposed, and not what the building inspector on the building. Commissioner suggested in his September 29th letter. CT When you submitted the appeal, it was suggesting application of §181.3362 sub (A) or in the alternative sub. (B). We can vote on that separately, or you may present both arguments at this point in time. – Atty. Bobrowski - I can cover B as well, but I don't need to if you agree with me under Bruno, that this was always a two family structure, even though there was an illegal third unit that cleared the statute of limitations CT - Is there any person in the audience present who would like to make comments? Thomas Chrost of 139 Cedar St. directly abutter to this property, I've stated several times at least eight years that this has been going on. I've yet to see a proper plan drawn up for off street parking, there's only one small parking space in front of this house, which isn't even legal. The other thing is there's absolutely no room on that lot for parking, and have no snow removal drainage. Third, the left hand side of the building that directly abuts my property, some of that driveway is on my property. There's no clearance space to even open doors for cars against their house or against my fence. CT - There was not any other person present or virtually who wishes to make a comment. CT - We had a communication from the current property owner to the Building Department dated March 16th, 2023, requesting information on the existence of a decision which was forwarded by Miss Mata on March 17th, 2023. From DPW, see Exhibit “A”. From Community Development, see Exhibit “B. From Planning, there's a note that this matter is on the Planning Board agenda for December the 19th. From the Board of Health. Prime location for college housing. Would like to see rehab to prevent decay, blight, is a trash dump. CT - This property is stymying both to this Board and the City, to the abutter as well to many petitioners who have come before us and this is within the findings that were made on December 11 13th, 2022, and this is the decision that was recorded at the registry of deeds. The last legally nonconforming use, as that term is defined under the Zoning Ordinance in §181.3362, was as a two family. After the building permit issued in 1997 at least, the structure was modified for a three unit structure, and the use commenced as a three family dwelling and because that began under permit it was exempt from enforcement, given that enforcement action did not proceed against the use within the appropriate period of time. The structure was abandoned after 2016, at the least. We had the 2016 amendment to Chapter 40A, Section 7, which said, if you had a use or structure that began under permit and there was no enforcement action taken, within six years it was exempt from enforcement action. Also, any structure, whether or not legally begun, that was in existence for 10 years, became a legally non-conforming structure entitled to Protection under Chapter 40A, Section 6. When the Board looked at this property the two family use was the last legal use, because that is a use allowed in this district by right. That has never been a nonconforming use and there is no action that is needed to approve the use at the Board level. What has happened is that the structure was converted from a two to a three unit residential structure. Given that, it has been in existence for more than 10-years, given that was the case in 2016, and given after its abandonment, the structure continued to be a three unit residential structure. Therefore, it is the structure that requires resumption from the abandonment provisions. The structure is what must be revived because the Board cannot revive anything that was not the last legally non-conforming structure that was abandoned. It’s a long explanation of why this is treated under the abandonment ordinance as a three unit structure, and that does not fall under §181.3362 sub “A” which only looks at single and two family dwellings structures or uses. For that reason, I would uphold that portion of the building commissioner's decision. Atty. Bobrowski - It's my understanding that the amendment that you're referring to protects only non-conforming structures; it doesn't have anything to do with uses. There's always been a confusion between, use and structure. What term should apply, when we're talking about dwelling units? Ones, Two’s, three’s or multifamily? Is that a non-conforming structure, or is it a non- conforming use? I don't think the provision in chapter 40A, section 7 you are citing addresses the use aspect of this. No action, suit, or proceeding shall be maintained by a court, nor other action taken. To compel the removal, alteration, or relocation of a structure or part of a structure because of a violation. If real property has been used and improved as you mentioned for a period of 10- years, so its structure that it's targeting not use and I don't think it goes as far as protecting uses. CT - I agree with you, is it does not convert a use improperly started under permit, from a use that is exempt from enforcement to a pre-existing nonconforming protected use. It is the fact that the structure is a three unit that needs to be addressed; a three unit structure that was abandoned. Therefore, because I don't see anything that says residential structures are different that the use and the structure are treated as one. Therefore, we continue to look them separately – Atty. Bobrowski - That's where I would differ with you, the structure it's got the same footprint, height, and the same setback violations. Regardless of whether it's a two or three unit building and the use is the two or the three. I don't think that's an aspect of the structural matter formality, I think the structure is measured by the box that you provided in your zoning for height and setbacks. The use can change within the structure and the structure will remain non-conforming, so here is when Bruno agrees that. What I'm trying to say is if it was a lawful two family, and it is because that's allowed in the district, then the fact that it survived the statute of limitations doesn't convert it into a lawful 3 family, it's still a lawful 2-family with a unit that cannot be enforced against. I would also point out in the alternative under (B), a single, two or three family dwelling can also be considered for relief here. I would in pursuing that in discussing it with Attorney Silverstein; we do have the benefit of that as well. The structure and use do meet the requirements of one and three above, so it's in a zoning use district which provides for residential use. Which the building inspector has to determine that it'll comply with all applicable regulations, the owner has to submit 12 a plan for rehabilitation of the building which is at least 50% of the square footage of the area and the structure or use meets the zoning requirements for the number of off street spaces. CT -I'm going to ask if any board member has a question on the issue of whether this should be treated as a two family structure, and be able to be resumed under the Building Commissioners Determination under 3362 Sub “A”. MM - Motion in the affirmative on ZBA-23-33 under 181.3362, S-A to Grant the Appeal to Overrule the Building Commissioners Determination on the findings that the property at 133 Cedar St. was not eligible to be treated as an exempt structure, due to the fact that it was not a two family structure. JB - Motion Seconded Voted 0–4 to Grant the Appeal to Overrule of the Building Commissioner’s Determination. Therefore, the Building Commissioners Determination is UPHELD. CT - In the continuation of Section 181.3362(B), par.2 which requires 50% of the square footage to be rehabilitated, as well as the façade and you stated that you submitted a plan that meets the proposal. – Atty. Bobrowski – I believe it’s a 100% rehabilitation. CT – In the proposed modification does it either reduce or does not increase any existing nonconformity? – Atty Bobrowski - I take that it means dimensional nonconformity, and that is indeed not the plan. CT - The structure or use meets the zoning requirements for the number of off street parking spaces in section 181.51 – Atty. Bobrowski - That means for a two unit building and that would be 4- parking spaces, which I believe is shown on the plan. CT - I had looked back at section 181.51 in the table of parking uses and it is specified by use, not by structure. So, I agree that the number of parking spaces for a two family use would be 4, but I would like you to address it, because this is something that the abutters had some concern with, and every board member has gone to the property has some concern with. The proposed parking is to construct 2-tandem spaces, on either side of the property. A certified parking plan stamped by an engineer has been submitted with this appeal, so there’s a three foot setback required for driveways, and it does not appear that the parking on the left hand side of the plan, would meet that setback. – Atty. Bobrowski - Is that a current situation or is that a new non-conformity? CT – So, in this property the addition of the second parking space on the left, it is a new parking space. I will also say that the existing pavement on the one space in the front, it doesn’t extend to the length that it is displayed in this plan. Because I think this plan shows proposed parking, not current asphalt, and also from my observations on the property, the property slopes down severely in the back of the yard. The second tandem parking space would require the construction, not only of an additional little bit of asphalt, but also a very substantial retaining wall to support it. It was an 8 to 12 foot drop from the street level. – Atty. Bobrowski - If you conclude that section (B), the last requirement is the number of parking spaces, I don't know if there's any doubt that it shows four, but if you go back to #1 under B. It has to meet the requirements of A-1 and A-3. Which (1), is it properly zoned, and (3) states the building commissioner determines that it complies with all applicable codes. I assume that’s zoning ordinance as well, so if there were a determination made, that subject to the building commissioners determination with the parking complies with the provisions you're stating CT - I think that would be on whether the wall would be structurally sound, and I would agree that's something that should definitely occur if that is constructed. JB - If that were the case there would be absolutely no space for snow removal or snow storage. CT - This also affects that additional parking space in the back, it is increases a new non- conformity because of the setback. We don't have the three foot setback for the parking space. 13 Mr. Chrost (Abutter) Agreed, if you do expand that small driveway, there is no place to remove snow, or drainage. If they were to go forward and build these parking spaces on that side, they'd be utilizing 6 to 8 inches of my property. Jaymie Roberts of North Dighton, MA (Property Owner), and my question is in that area every home at the end of that street are multifamily usage. If we changed the actual use of this property from a multifamily to single family home, it definitely would affect that area. I'm confused as to why we can't have it as a two family and make decisions from there. Atty. Bobrowski - The Building Commissioners who must determine that this complies with all Building, health, fire and applicable codes that the structure is safe. I would suspect the concrete retaining wall can be made safe, pursuant to a plan which should have alleviate any fears that you would have. I don't expect that the building inspector is going to let something unsafe, or trespassing go forward. What this gentleman has in question is a two family building that he bought, unknowingly, after there was a decision against him earlier this year. It's basically unusable unless you help him out, so he's willing to comply with B, all of the provisions, including those from A that spill over, it seems like an opportunity for a win win. CT - I want to acknowledge that our abandoned structure revival statute is a unicorn; it is a unique feature of the Fitchburg Zoning Ordinance. MM – One relates to the structure #3, speaks to the number of off street parking spaces. We've heard this case three times, and we've been presented with three different parking plans. Several of them are registered and it would be pretty safe to say that the surveyors are not actually even visiting the property. And for a clarification, I had brought different tape measures out the parking and they're not accurate. I also want to say, the burden isn't on the board for realtors, attorneys and buyers that don't do their due diligence or provide full disclosure for these properties when they're being bought or sold. So, speaking purely on 181.3362, S. B, I don't see how this even fits the requirement for the parking. BG - The question remains on the telephone pole that blocks the access to the driveway on the left side, is there a plan to move that pole. – MM - Even if the pole is moved, still there isn't width for parking. – CT - There isn’t width for parking plus a three foot setback. CT – The issue isn't a setback, would either create a new non-conformity dimensionally, especially with the addition of the new parking space, or at the very least increase in existing nonconformity. The variance depends on where the existing asphalt ends in the boundary line. Motion in the affirmative on ZBA-23-33 under §181.3362.B to Grant the Appeal to Overrule the Building Commissioners determination on the findings that the property is not eligible as an exempt structure JB – Motion Seconded Voted 0–4 to Grant the Appeal to Overrule the Building Commissioner. Therefore, the Building Commissioner’s determination is UPHELD. CT - Given those two findings, we move on to the issue of the repetitive application, under MGL c. 40A §16. The Planning Board must give its consent to the rehearing, but we are also the special permit granting authority here for a request for a special permit to revive the abandoned structure under §181.3366 which was denied less than two years ago. We must find that the specific and material changes in the conditions upon which the previous unfavorable action was based, then describe the changes in the records of our proceeding. The request is for a Special Permit under 181.336 and 3322. 14 Atty. Bobrowski - In the alternative what I'd like to do, is use the special permit application to more succinctly identify the provisions that are set forth in §16 of the statute. So, if we have to give you a plan that has a believability to it, and you don't think that the plan we have tonight is believable, then I'd like a continuance to come back with a gold plated plan that will show you under 3366. That there's adequate parking to serve the structure, and conformity with the provisions for parking. CT - We before we can address the substantive criteria of that section of the ordinance, we need to address the issue of whether there have been specific and material changes in the conditions. Can you tell me how such a plan would be a specific and material change? Atty. Bobrowski - I'm not an engineer and I didn't draw the plan that you're looking at this evening, and I'm not familiar necessarily with what they saw back in 2022. However, I can assure you that we will find an engineer that will not only give you a better plan, but will also be able to identify the specific and material changes. JB – It doesn't have to go that far this is to see, if this is substantially different than the other plan. Not bringing anything new, or old. Is this application was put before us it’s substantially different then what it was denied. And as far as I can see, this is the exact same plan. There's nothing changed whatsoever. CT - I went back in my materials from 2022, and the architectural design is the same plan that was submitted. It's not by a different design firm, it's not updated, and it is in fact the same plan with the same date. I'm not inclined to allow the extension; I appreciate the offer from counsel, as I do in whole, the very professional presentation that he has made to the Board tonight. It's the property that stymies the application, so I would allow a vote on whether any board members are inclined to allow a continuance for submission of a different plan. CT - Any board member would be inclined for a continuance. - I see none. MM - Motion in the affirmative on ZBA-23-33 under §181.333 & §181.336 to Approve the finding that there's been a specific and material change in the conditions upon which the previous unfavorable action was based. JB – Motion Seconded Voted 0–4 to Approve the finding that there has been a specific and material change in the conditions upon which the previous unfavorable action was based. Therefore, the finding FAILS. ZBA-23-34 Luis Hernandez 21 MARKET ST 7:30PM Special Permit under §181.333 & §181.336 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned nonconforming mix-used building changing the use to another nonconforming less detrimental use as a two-family dwelling pursuant to §181.94 located in the Residential C District Map 141 Block 77 Lot 0 Present were Anthony Hernandez from Allentown, PA, Luis Hernandez from New York (Petitioner and Property Owner) and John from Worcester (Design Architect) stating, CT - Before we start on this special permit request, this is a property that was bought from somebody who bought it from the City after they foreclosed on tax title. So, the prior owner, who owned it pursuant to tax title, and they had bought it under a deed issued by the City on December 2nd, 2020. Within that deed, there is a restriction which says that the owner has to pull a building permit within nine months and complete reconstruction within 18 months, or the owner has to convey it back to the city for nominal consideration. Neither of those things happened within the 15 time frame, and then the prior owner sold it to you on April 28th, 2022. I did an initial check with our Planning & Community Development department, which indicated at least from their perspective there's a willingness to discuss modifying that provision. But it has to be approved by the City Council, and I want you to know because there wasn't a mortgage, so there probably wasn't a title company looking at this. That is something that you need to get resolved. Due to that issue we're going to need to continue before any decision is made, to at least get initially resolved. You are also welcome to continue this a couple months and have the hearing then, we can proceed to a vote until this is resolved. – JL - I wasn't aware of all those items, my goal was to help Mr. Hernandez to revitalize the building within the existing footprints, and bring the building up to code. As of right now the stone veneer is slowly peeling off the façade, and we could get approved tonight so we can get going. It's a mixed-use, and our intent is to do a total rehab, and change it to be a 2-units residential use only. Which it is favorable to the neighborhood. Mr. Commissioner – As a change of use it will need to meet the stretch code, it's going to be HERS rated. – JL – Yes, it’s going have new installation, new windows, URL, etc. Mr. Commissioner - You're changing the nature of this, you have two parking spots when four are required. You're asking for relief, and it's a 4000 square foot lot, with 45 feet of frontage. It's going to be tight for designing the parking, especially where the parking is behind the building. Assuming you're going to do a driveway which is 9 foot 6 inches wide from the property line, so there's no setback from the driveway to the property line. – JL – We remove the stairs from the outside to be inside, so we could fit the two cars parking spaces. Mr. Commissioner – Not sure if with that 9x6 foot will be enough to do the turn and get to the second parking spot. We'd need civil plans to show that a car can make that turn, and from the engineering department it will requires a change of water service and sewer service potentially, because you're converting from a commercial use to a residential use. CT - So if you remove the exterior stairway on the left hand side, where is the second means of egress? – JL - I have two means egress for upstairs coming from the side of the building, and then another sets of stairs coming down from the rear on the ground floor out to a common door CT - Will there be any modifications on the second floor other than the stairs – JL – No CT - What was the commercial use on the first floor? – JL - It looks like a bar, but the inside is ruined. CT - The Building Commissioners letter determined that there had been two dwelling units, were they both on the second floor? – JL - No, smaller unit upstairs and then larger unit downstairs. CT - At some point, it got converted into a bar on the first. – JL - No, it is as single family upstairs, and then commercial downstairs. – LR - We are trying to convert this space into a family oriented, and take away the bar to convert into something more friendly to the environment, and to the community. BG - Were you able to purchase title insurance on it? - LR - Yes. CT - That should be helpful to you in resolving the issue with the city, because if you bought a property, it is supposed to have clear title, and if it doesn't, the title insurance is supposed to help you fix that. - LR – I have a clean title at home. CT – It’s always possible that there is something that I did not see at the registry of deeds, but I did not see anything clearing the City’s claim on the property. According to the Building Commissioner’s determination states that at one time there were two dwelling units there, which is good, because we can't revive something that didn't exist in the first place. As I understand it, this is for a two family use. Certainly, there are existing nonconformities to the building, but you're not going to change the footprint or make any of them worse. You have two proposed parking 16 spaces, which is two less than required. However, depending on which section of the zoning ordinance you are under, it may be permitted. – JL - We're aware the lack of two parking spaces, and we're not doing anything detrimental to the neighbor rather than try to make the building better. CT - How many bedrooms per unit? – JL – 3-bedroom per units CT - How many bathrooms – JL - 2 per unit CT - Is anybody from the public wish to speak on this matter? Chris Amenta of 19 Market St. to the side of this property. I'm a local resident and owned this property for about 15 years. I'm very involved with my property, and the original owner did not meet the conditions that the town set forth. When this was sold, I was at that auction protecting the interests of my property and the tenants I have there, so I'm solidified in the community I live. I do my due diligence when I buy properties, that is not an excuse and it's not the resident's responsibility to have to bear that irresponsibility because certain things weren't done correctly. The applicant says it would be favorable to the neighborhood, I don't know how that's going work when they're from New York. That doesn't really work for me. Some of the issues are the parking, setback issues, and snow storage issues. It's a small area to be converted to a 3-bedroom, 2 bath per unit, this is only going to add to the burden on that street. CT - There was anybody else present or virtual to make a public comment. Mr. Rodriguez – It shouldn’t be an issue for us living in New York, we also have businesses in Worcester and Central Mass for 15 years at least. We know and understand the community and the peoples’ needs, so being from New York it shouldn't be a reason for us not to proceed with this project. CT - Is your intention to sell the property after you're finished, or to hold into it and rent it? - LR - Hold it and rent it CT - The only thing concerns me is that people who own properties maintain and take care of them. – LR - That's why we're here today to make sure that we are compliance to that, and having an architect to making sure, our code by code is compliance. CT – It doesn’t seems that by January 9th meeting will be enough time to resolve the issue, I am going to offer you February 13th. – LR - Our architect is not available in February, so we will go to March MM - The footprint of the building is what - JL - 31 by 50. MM – Would like to give you some feedback and thought about reduction in number of bedrooms, due to the size of the property. It helps with the impact on the parking and the neighborhood as well. – JL - Okay MM – Motion in the affirmative on ZBA-23-34 under §181.333, §181.336 & §181.94 to Grant a Continuance on the Hearing to March 12th, 2024. JB – Motion Seconded Voted 4–0 to Grant a Continuance on the Hearing to March 12, 2024. ZBA-23-35 Luis Rodriguez 513 WILLIAMS RD 7:45PM Special Permit under §181.335 of the Fitchburg Zoning Ordinance to build a 16’ X 20’ shed on the right-side of the house encroaching the side set-back leaving approximately 10’ from the property line pursuant to §181.416 located in the Rural Residential District Map 78R Block 14 Lot 0 17 CT – On this petition, which was scheduled for 7:45PM. There was an issue with adequate notice being served on all of the abutters, and because of that, the hearing was not properly noticed. Which means we cannot open the public hearing without properly notifying all of the abutters, it would be not fair, and everybody has a chance to comment. Due to that reason this hearing will be moved to January 9th, which is the next meeting date. CT – We appreciate that people came tonight to make public comment and the participation in the public process, if it is difficult for anyone to return for the January 9th hearing. Please know that you are welcome to submit public comment by e-mail to the Building Department prior to the hearing, and we will read it and take it into consideration. You are also welcome to appear remotely, if you can’t appear in person. JB - Motion in the affirmative on ZBA-23-35 under §181.335 & §181.416 to Approve the Extension Agreement signed by the petitioner to move the Public Hearing to January 9th, 2024 MM – Motion Seconded Voted 4–0 to Approve the Extension Agreement for the Hearing to January 9th, 2024. 6. MISCELLANEOUS 7. ADJOURNMENT 18