Zoning Board of Appeals

FITCHBURG CITY CLERK Mar 05 2024 4:16 pm ZONING Board of APPEALS 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING MINUTES – FEBRUARY 22, 2024 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) Robert Talbot & James Reynolds 4. ABSENTEES: Brian Gallagher 5. ALSO ATTENDEND: Felix Zemel (Acting Building Commissioner) & via zoom Donna Pawlak (Assistant City Solicitor) 6. Hearings: Starting at 6:08 PM CT - We are anticipated to have a short meeting tonight. There were a number of matters that were rescheduled from our meeting last week, due to the expected snowstorm. Most of these are not able to be heard tonight, because of our requirement of publishing notice. Therefore, our matters are going to be limited to five. 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 to provide for a substantially different purpose (multifamily housing) located in the Residential C District at Map 68 Block 65 Lot 0 CT – On this review we did have receive a communication from the permit holder, requesting a continuance from February to March. I will note that is not possible, because we have a very full agenda for March, so if moved, it will need to be moved to the April meeting. Does anyone have any comment on this? JB - How many times has this been continued? – CT - I believe this is the second time, and the last time the permit holders were before us, was in December. There was a concern that the paint color was not historically accurate, I did speak with our member Mr. Gallagher, and he felt he reached a good resolution with the property owner on painting the skirt board in an accurate color to maintain the historical character of the property. As a Board, we've not fully reviewed the conditions, so we are holding the certificate of occupancy. I would prefer we have a full review with the permit holder present to release the certificate of occupancy, and deem the conditions satisfied. MM – Mr. Byrne and I did have an opportunity to visit the site with Mr. Gallagher, and they gave us a very extensive tour of what they had done. Great job. MM - Motion in the affirmative on the ZBA-2022-30 under §181.333 to Grant a Continuance on the Review to April 9th, 2024. JB – Motion Seconded Voted 5 – 0 to Grant a Continuance to April 9, 2024, passes unanimously. ZBA-2022-17 Jeffrey Summers 69 HIGH ST 6:15PM Review of the Special Permit under §181.94 & §181.77 of the Fitchburg Zoning Code to operate a sober house pursuant to §181.313A5 within a reasonable accommodation in accordance under the Fair Housing Act 42 U.S.C. 3602 located in the Residential C District Map 19 Block 22 Lot 0 CT - This is a special permit that was granted with the conditions and we are here to review the conditions. CT - I will note that the conditions were required to be fulfilled within 12-months of the date of the decision. The decision was filed with the City Clerk on February 7th, 2023, the permit holder was offered the opportunity for inspection and by inspection, I mean a walk through by Board members to review compliance with the conditions. However, he imposed conditions on the walkthrough and then refused the walk through by the Board members, and the Building Commissioner. Mr. Commissioner, if you have any comment on that? Do you agree that's an accurate summary? Commissioner Zemel - Yes, it is. The condition that he made, the most recent one. First, he said, he wanted all of the members to be present for the walkthrough. At which time, I told him that would be a public meeting, that would have to be posted once there's a quorum. The intent was for a couple of the members to come, and then report back to the Board, so that it wasn't require a posted of a public meeting; otherwise have to invite the public as well. He then said that we had asked for the meeting at 2:30 on Tuesday too soon, because I had sent the message at 3:30 on Sunday. He said that he needs at least 48 hours of notice. I did inform him about tonight's hearing as well in that e-mail, and he asked me if he should attend or not. I told him that the chair was going to be passing along his request, but there are no promises or guarantees that the Board will approve that. Moreover, the choice is his, whether he comes, but my suggestion is for him to come. CT - We had a communication from Mr. Summers requesting a continuance, and I'll read it into the minutes. On February 4th, Mr. Summers sent a request that states, “I'm writing to you to request that my hearing in front of the Fitchburg ZBA regarding 69 High St. Fitchburg, Mass, scheduled for Tuesday, February 13th, 2024 at 6:00 PM. be postponed until the following month, so that my lawyers and I can further research my case.” The first thing I'd like to take up tonight is, I offered to put it before the Board as to whether or not they would like to continue the review from today. So, if any member would like to offer a motion on the review? MM - Motion in the affirmative on ZBA-2022-17 under §181.94 & §181.77 & §181.313A5 to Grant a Continuance on the Review as Permit Holder has requested. JB – Motion Seconded CT - Any discussion on the motion? MM - Would like to move ahead. CT - All those in favor of granting a continuance to the March meeting or thereafter? Vote 1–4 to Grant a Continuance on the Review as requested. Therefore, the continuance FAILS. CT – So, we're going move forward tonight on the review of the Special Permit conditions. I may, Mr. Commissioner, ask you to confirm my understanding of the facts. The first condition is that the occupancy shall be limited to 12 persons, to create a living environment of one person per bedroom, defined as one room with a closet which is not accessible only through another bedroom. Petitioner may seek to increase the number of persons by modification of this Special Permit if petitioner creates more bedrooms on the premises, with such property modifications to be properly permitted and constructed in accordance with all municipal, state and federal law. Mr. Commissioner, do you have any verification that condition has been met? Commissioner Zemel - No, and I also have no verification that the decision has been recorded yet. 2 CT - Which was another issue at the prior meeting. Condition #2 - The kitchen to be upgraded to commercial standards, which is generally defined as the installation of kitchen appliances in good working order which are sufficient in size and number to service the residents on the premises, and of durable quality such as those intended for use in a commercial application. Mr. Commissioner, am I correct in understanding that there have been no building permits issued, and no photographs submitted, or inspection conducted which verifies the existence of the upgrade? Commissioner Zemel - Correct. CT - Condition #3 - Renovations to be completed within 12-months from the date of the decision. Which 12-months expired on February 7, 2024. Condition #4 - Applicant’s outstanding fines are to be paid within twelve months from the date of this decision. At the time of the decision, there was $5800 in fines to the Building Department. And that was under an agreement for, or not an agreement, but in a statement from the permitholder that they would be paid in a monthly amount. Mr. Commissioner, have those been paid? Commissioner Zemel - To the best of my knowledge, we haven't received any further payments. CT - In addition to that, there is a pending a contempt judgment in the Housing Court. That there was a daily fine of $50 accruing on the contempt judgment. I believe it's been a year and a half on that, in addition to the original fines. Moreover, my review of the court docket prior to this meeting indicated that contempt had not been resolved. Condition #5 - Applicant shall reduce the number of occupants to no more than twelve persons, unless a modification is granted, within twelve months from the date of this decision. That goes back to the first condition, which was reviewed as unsatisfied. Condition #6 – A review date. Condition #7 - The Building, Health and Fire Department inspections to be completed annually as a condition of the continuation of the special permit. The applicant stated that at least some of those inspections had been completed in November. I'm also going note that there is an outstanding violation notice dated November 9th, 2023 due to a collapsing exterior stairway. Moreover, that indicated that at the time of inspection there were 19-beds in use, a third of which were on the third floor, which is serviced by that stairway. Then, last condition, the sunset clause, would have the Special Permit expire upon the transfer or sale of the property from Jeffrey Summers or Jeffrey's House Inc. I have no indication that there's been a transfer. I'm also going note that, as with all of our Special Permit decisions we have the condition that this Special Permit may be revoked or modified, if the Zoning Board of Appeals finds after the hearing that the grantee has violated any of the conditions imposed by the Special Permit. That is also something inherent in the statutory scheme. CT -I’m going to call for public comment, but I am going to note that we have no one before us tonight and looking at our virtual attendees and I see no one who has attended virtually. JB - I feel that we should revoke this permit. The applicant has done nothing but aggravate the board. He hasn't shown the decision any respect whatsoever, as to showing up for meetings or constantly dragging his feet and not getting things done. As mentioned, none of the conditions that were supposed to be done had been done. JR – In my experience, I would agree with Mr. Byrne. The applicant hasn't been willing to work with the Board or the City. It's been very controversial at every step, which I don't understand the reasons I just understand the outcome. MM - At the last meeting regarding this specific case, the applicant pretty clearly stated, as we went through the conditions, that he didn't feel they needed to be done, nor did he give the implication that he was going to do them. He did make some comments that some things had been done, but I don't believe, if I recall collect correctly, that he really elaborated on any specifics or provided any concrete proof. 3 This case has been going on for a long time and it doesn't seem it's progressing. We haven’t been able to get the applicant to a point where they've done any of what the Board has asked. Also, I agree with Mr. Byrne. CT - Before we move forward, I wanted to state that I had hoped that the permit holder would seek compliance with the conditions given when the Special Permit was granted. Moreover, the conditions are rooted in the safety and well-being of the residents of that house. MM - We have the conditions that the Board has imposed, reasonable conditions with regards to the special permit, but there are other outstanding non-board related penalties and fines, an ongoing case with the Court, there are actually multiple ongoing cases. Therefore, I think it's probably best to move forward tonight. CT - Recognizing that there is one person here; do you wish to make a comment on 69 High Street at all? No CT – Looking for a motion in the affirmative finding that the permit holder has satisfied the conditions, and review is no longer necessary. MM – Motion in the affirmative on ZBA- ZBA-2022-17 under §181.94 & §181.77 & §181.313A5 on the Findings that the Permit Holder has satisfied the Conditions and review is no longer necessary JB – Motion Seconded Vote 0–5 in the findings that the Permit Holder has satisfied the Conditions. Therefore, motion unanimously FAILS. CT – Before moving forward with our final motion on this review, the Building Commissioner would like to make a comment – Commissioner Zemel - The Assistant City Solicitor might be logging into zoom, if the board could grant a two minutes recess in case she has anything on this. CT - We will be in recess for two minutes, so Assistant City Solicitor Pawlak will be able to join us via zoom. CT - We have our Assistant City Solicitor, Attorney Donna Pawlak with us today, you're welcome to make a comment as you wish on 69 High Street. – Atty. Pawlak - With regards to Mr. Summers’ request for a continuance, I would say that this has been an ongoing issue. We've had an order that he come into compliance with reducing the number of people for over a year, he was already found in contempt. I came to the last meeting where he indicated that he needed more time to come into compliance, and you gave him time to come into compliance through now, and again he's requesting a continuance saying that he and his attorney need more time. There are people living in this building, which the Building Department has deemed unsafe. The contempt fines he owes haven't been paid. He has not corrected the second egress to the structure, which has been an ongoing issue for over a year. In addition, this seems to be a pattern that we see from his response to the Building Department, and the Legal Department where he continually comes in and says; I need a little bit more time. He has had more than enough time to make this home safe for the people who are living within it. He has too many people there, the building does not have all of the structures repaired, secured or rebuilt that needed to be. He hasn't reduced the number of occupants, which the courts told him to do over a year ago. I don't understand why we would want to give him more time, if our concern is the safety of the occupants within the building. MM – Motion in the affirmative on ZBA-2022-17 under §181.94 & §181.77 & § 181.313A5 to Revoke the Special Permit, for conditions violated JB – Motion Seconded CT -Any discussion on the motion? 4 JR - I know that's our right. I'm just looking at Page two of two on ZBA-2022-17. The paragraph that states a special permit may be revoked after the hearing with notice to parties and interest, and so forth. Do we feel that there's any part of those guidelines that we haven't complied with. – CT - I feel at this point in time, given the notice that he received at the hearing, given the confirmation through the communication with the Building Commissioner. That he confirmed that knowledge that there was a hearing tonight. I feel that he has received adequate notice; we have complied with the Open Meeting Law in posting the agenda as required on a review hearing, subsequent to the initial hearing, on a Special Permit to any and all parties in notice of the hearing. Attorney Pawlak, since you're with us, would you contradict that at all? Would you agree as far as the notice? Atty. Pawlak - Yes, I would agree. I believe that in this week’s emails to the interim Building Commissioner, that he acknowledged that he had notice of this hearing. Commissioner Zemel - If the board would like for me to read into the record the e-mail I sent him? CT - Why don't we take a moment to do that? Commissioner Zemel - February 18, 2024 at 5:16 PM, he wrote. I was not aware of the ZBA meeting scheduled for Thursday. Am I required to attend? I responded to him. Mr. Summers, the meeting is scheduled for Thursday evening at the Legislative Building; I cannot tell you if you should come to the meeting. That is a choice by you, but I cannot give any inclination because I simply do not know if the Board will grant your request for continuance. Please let me know if you'll be giving consent and access to all affected areas of the building on February 20th, 2024 at 2:30 PM. Thank you Felix. Then I followed up again at 7:34 PM stating; Good evening, Mr. Summers. Just to follow up and be more clear, if the continuance is not granted, the review hearing will be held as scheduled Thursday, February 22nd, 2024. It is your decision. Whether or not to attend. Thank you, Felix. Voted 5–0 to Revoke the Special Permit for Conditions violated. Therefore, the Special permit is unanimously REVOKED. 7. Informal Discussions The remaining three matters on our agenda tonight are here for informal discussion. These three matters were all scheduled for 6:30 to be heard at any point in time, 6:30 or thereafter. After the rescheduling from last week’s snowstorm, we had to republish notice of the first hearing at least 14 days in advance, and there was not sufficient time between then and today, and there was not any other date during the month of February where the Legislative building was available for this Board. So, we have offered these three matters the opportunity to make an informal presentation or ask questions to the Board and attempt to try to offer something to them because we, regret that any delay that may occur in the resolution of their petitions, but the board cannot take a vote. This is not a public hearing, and we cannot express our intent to vote for, or against any of the petitions. We only have one kind person who has joined us this evening, and that is on ZBA-24-1. This is Nicole and Eric Shell, 493 Pearl Hill Rd. If you wish to ask a question or make a comment. I'm going have you do that, and otherwise the Board would not engage in any discussion of the matter. Carl Wennerberg of 505 Pearl Hill Rd. which is the closest neighbor on the north side to the Shell’s. I had a question on specifics of the 8 foot fence, from where to where or from? A concern I had, in the back near their shed, exactly where the fence is going, my guess is that it's going to run parallel to the north side of the shed. There is a pump system there, and I was wondering if the fence is going to have an opening at the pump system? Or would that be passing straight across? So, that when the fence is built then I will no longer see the pump system, that was my biggest point. – CT - Do I take it you would prefer not to see the pump system, Sir – CW – right, I'm not here to complain because I think the fence is going to improve the situation. If it's going where I think it’s going, and it also could lessen the noise. Which I would be okay with the 8 foot fence 5 CT – You could ask for a copy of the application, which would include the plan with the depiction. You can make an electronic comment by e-mail and it would be read into the next meeting, or you may appear at the next meeting and that is scheduled for March 12th, which is a Tuesday CT - Is anyone here to make any comment on 180 Main St. ZBA-23-40? Is anyone here to make any comment on 447 Water St. ZBA-23-39? I see no one present, and if you are online and you wish to ask a question regarding either of those two cases, please raise your hand. We see none. CT – So, given that, we have no more requests for informal discussion. ZBA-23-39 Rayco Motors / Harold Mateo 447 WATER ST 6:30PM Special Permit under §181.313D11&12 of the Fitchburg Zoning Ordinance to re-establish a business as a small Motor Vehicle Sale and repair shop pursuant to §181.94 located in the Neighborhood Business District Map 95 Block 59 Lot 0 ZBA-23-40 Travis Beauvais 180 MAIN ST 6:30PM Special Permit under §181.313D12 of the Fitchburg Zoning Ordinance to occupy and operate an Exhaust & Auto Repair (Motor Vehicle Repair Shop) pursuant to §181.94 located in the Downtown Business District Map 56 Block 26 Lot 0 ZBA-24-1 Nicole & Derek Shell 493 PEARL HILL RD 6:30PM Special Permit under §181.4215 of the Fitchburg Zoning Ordinance to install of eight-foot-high vinyl fence along a portion of the northern edge of the property, exceeding the six-foot height limit, pursuant to §181.94 located in the Rural Residential District Map S19 Block 44 Lot 0 8. MISCELLANEOUS 9. ADJOURNMENT **Due to the weather postponement of the Zoning Board of Appeals meeting scheduled for February 13, 2024, public hearings on the cases listed below were postponed and are expected to be rescheduled for March 2024 meeting dates. The March ZBA schedule is being finalized and an Agenda will be issued and posted in accordance with applicable law listing the date and time for these public hearings. Please check the City’s Agenda Center or contact the City Zoning Secretary for an updated schedule.** ZBA-23-38 River Street Enterprises, LLC 78 RIVER ST ZBA-23-39 Rayco Motors / Harold Mateo 447 WATER ST ZBA-23-40 Travis Beauvais 180 MAIN ST ZBA-24-1 Nicole & Derek Shell 493 PEARL HILL RD ZBA-24-2 Spectrum Health Systems, Inc. 72-80 FRANKLIN RD ZBA-24-2 - Zoning Determination & Addendum 6