Zoning Board of Appeals

FITCHBURG CITY CLERK ZONING Board of APPEALS May 28 2024 12:36 pm 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING MINUTES – MARCH 12, 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), Brian Gallagher, Robert Talbot & James Reynolds 4. ABSENTEES: Joseph Byrne (Clerk) 5. Hearings: Start at 6:10 PM CASE No. APPLICANT PROPERTY TIME ZBA-24-2 Spectrum Health Systems, Inc. 72-80 FRANKLIN RD 6:00PM Appeal to Overrule the Building Commissioner’s decision under §181.9222 of the Fitchburg Zoning Ordinance that they are required to seek a Special Permit and Site Plan Approval for the medication assisted therapy clinic use of the subject property due to the fact that Spectrum’s proposed use qualifies as an Educational Use, Exempt under Section 181.3 (Use Regulations) pursuant to §181.313 (see Table at B.2.), located in the Commercial District Map 116 Block 63 Lot 0 CT - Our first matter on the agenda, ZBA-24-2, Spectrum Health Systems, Inc., will not going to be opened for public hearing tonight. I am aware that there has been substantial public interest in this matter, and this matter has been scheduled on the agenda for March 12th and March 14th for a few weeks. The agenda was amended and posted on Friday, March 8, to reflect the fact that we have received an extension agreement from the applicant. To help the public understand, this Board has a certain deadline to start a hearing, and if we do not comply with that deadline, there's a possibility that we may be subject to a constructive allowance. This means that the petition gets approved without our participation. That deadline for the applicant fell tomorrow March 13, 2024. What was needed to extend it was a written agreement, signed by the applicant and the City and filed with the City Clerk. That agreement was requested some time ago, but it did not come until the end of last week. Once it came, the agenda was amended. Due to the public's interest in participation and the 13 other items on our agenda tonight, there is not adequate time to discuss this matter tonight. That is why the hearing will be opened on Thursday, and therefore we are not taking public comment on this matter because we don't want to have the hearing opened without the applicant being present. ZBA-2022-14 Daniel Estevez 76 SUMMER ST 6:05PM Review of a Special Permit under §181.94 of the Fitchburg Zoning Ordinance to operate an adult daycare service pursuant to §181.313C1 located in the Neighborhood Business District Map 70 Block 13 Lot 0 No one was present or remotely to speak on this petition. CT - Special Permit was granted in February 2022, the review is not completed because last we knew, they had not opened up the facility. They were waiting for state licensing approval for the adult daycare. We haven't had any contact from the permit holder in this matter; do we have any  indication from the Board Members what you would like to do with this review? We are now at the two year mark for this special permit to have been employed. We have the lapse issue to address because the lapse is set at two years in our ordinance. We can grant an extension, but it hasn't been asked for, and we have a permit holder that hasn't gotten back to us. MM – Had we had any recent communication from the applicant? CT - No MM - Any responses to the continuances? – Secretary - From last time, he said that he was still waiting for the DPH approval CT - Was that communication before the last review in September? Secretary – Yes and it’s my understanding that somebody else is now occupying that space. MM – Motion in the affirmative on ZBA-2022-14 under §181.94 & §181.313C1 to Revoke the special permit, due to the violation of conditions one (1) and four (4) JR – Motion Seconded Discussion on the Motion: CT - Miss Mata, can you confirm whether or not there was any contact with the applicant or the permit holder, giving him notice of this hearing, for instance, forwarding a copy of the last decision? – Zoning Secretary – Last decisions were mailed, as well as a notice for tonight’s meeting two weeks prior, and no return mail has been received. BG - No correspondence from the permit holder, at all – Secretary – No RT - When's the last time we heard from the permit holder? – Secretary – Prior to the last review in September 2023 Voted 5–0 to Revoke the Special Permit. ZBA-23-34 Luis Hernandez 21 MARKET ST 6:05PM Continuance: 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 - At the December 2023 meeting, we had spoken about a condition on the deed, and that is from a prior sale where the city retained the right to take back the property if the development wasn't completed in a certain timeline. This condition was from the prior owner’s purchase but runs with the land. I had asked that you attempt to resolve this through seeking out the help of your city councilor, and I’m going to recognize that Councilor Cruz is present at the other table. Can you tell me what the status is on that? – AH - Soon after our meeting, we contacted Councilor Cruz, trying to figure out the issues that we have and if we needed more time, he will help us with that end. CT - Councilor, if you could give us some update. Councilor Cruz - Mr. Hernandez has done everything in his power to sort of rectify the situation, and to correct the challenge that they're facing. He's been acting in good faith, and we've met with Commissioner Zemel, and Chantel, who shared with them some options. They've been working with their architect to see if those options are economically viable. I believe they may need a continuance, if the board is prepared to offer them 2 some more time. They need to determine how they're going to get the four parking spots in the back, and the turning radius, which is a concern with the Planning Board as well. CT - Can you tell me briefly, has a petition to amend the condition on the deed been submitted to City Council yet? Or is that contemplated at some point in the near future? - Councilor Cruz - I have a request from their legal representation, asking for more time on that. CT - To consider whether or not to move forward on that. – Councilor Cruz - Correct. CT - Speaking for yourself, which you can only do. Are you personally inclined to try to reach an accommodation with this, do you find that they have a project that would be beneficial to the neighborhood? – Councilor Cruz - Of course, they have every intention of improving the two-family dwelling and to satisfying the terms. MM - A comment, this issue isn't going to be something that happens in a month or two or three is my guess, based on the complexity. Is it in the best interest of everybody to give leave to withdraw until they're ready to move forward with the project? Instead to have a continuance after continuance? – CT - Is there any willingness to waive the reapplication fee, if there's a reapplication. – MM, JR and BG – Yes CT – So, what we are asking you is to withdraw the application before we make a decision on it, and I've polled the board and they’re indicating that if you did that and resubmitted a new application in the future, we'd be willing to waive the fee, so it removes the cost issue for you. What's your response to that proposal? CT - There's a petition to resolve this that would have to go to City Council, then go to the City Property Committee and the Legislative Affairs Committee I believe, and then back to the City Council for approval. To me that is a two to three month process. Even if it goes right through. The reason we can't resolve this without that condition being resolved is because we don't have all of the property owners consenting to the application, and all the owners in control of the property, because the City has an ownership interest. So, at this time, we have two other reviews, and what I can do is suspend this hearing and call you back after the two other reviews, if you'd like some time to discuss. If you withdraw the application, we don't have to keep scheduling this matter. You would have to reapply when you're ready. CT – 7:15 Recall ZBA-23-34, so you've had an opportunity to discuss. And I'm going to ask what your decision is, on whether to withdraw the application. – AH - We will be moving forward with withdrawing and reapplying. CT – Public comments – Council Cruz, would like to recognize this Board for your willingness to work with Mr. Hernandez and give them the opportunity to see it through. Council Beauchemin, I believe that we are making a big mistake rehabilitating this property; I think the city would be better served if the building was demolished and spread it up between the neighbors. It's congested, and I think he's going to have a heck of a time with the parking situation in the back of the building. David Poles, 25 Market Street owner, with some concerns on the lack of parking; and how it will affect the nearby areas and the residents there. Hope things are decided in a wise way. Chris Amenta, 19 Market Street owner, this is the density issue. It's very tight in the area. Unfortunately, Councilor Cruz did not reach out to the abutters on the property, I wish he was as concerned as he was for this owner. In my opinion, there's an issue with the set-back, the conditions of the covenants of this deed were not met. Parking is a big issue for that area, so at the end of the 3 day it's the town, the board, the abutter’s responsibility to look at this project as a whole, and see what's best for the neighborhood, not just the two-families that could possibly live in this property. JR – Motion in the affirmative on ZBA-23-34 under §181.333, §181.336 and §181.94 to Approve Petitioner’s Request to give the application to Leave to Withdraw without prejudice and to waive the $300.00 fee if a new application is submitted within 12-months from the same applicant on the same property. MM – Motion Seconded Discussion on the Motion: MM – I want to make a comment to the applicant, this is a real dense neighborhood, and there's not a lot of real estate. Sometimes we have to look at single-family housing as the better option, in reducing the density, and the sidewalks in that neighborhood are not in good shape. The roads are narrow, they don't meet today's standards and we have to start looking at what's the long term benefit to the neighborhood as a whole. Voted 5–0 to Grant Leave to Withdraw without prejudice as requested ZBA-23-32 Henry Genao 118-120 INTERVALE RD 6:05PM Continuance: Special Permit under §181.336 to reinstate and change the use on a vacant/abandoned non-conforming 3-family structure to a less detrimental non-conforming use as a two-family dwelling after a fire pursuant to §181.94 located in the Neighborhood Business District Map 124 Block 1 Lot 0 Present was Henry Genao (Owner and Petitioner) resident of Leominster stating, CT - We did receive a communication from the applicant, requesting some additional time on the application. See exhibit “A” CT - There's been a couple of issues with how are we going to finish the construction on this project, and the stretch energy code issue; particularly. So, instead of keeping you coming back, we propose that you withdraw the application and we let you reapply, waiving the fee. – HG – Yes, that’s fine because I need somebody else to complete the design. CT – No one was present or remote to speak on, for or against the petition. MM - The building is in unsafe condition, and we had asked for the building to be secured some months ago. – HG - The fence is fixed. MM - No access into the building and the foundation. I'm really concerned, it's a burned out structure. Also, I don't want the applicant to go away and come back with a plan based on what they presented, because we had made some recommendations on condominium style side by side, so we didn't have all the outdoor stairs. The fact is that the majority of the board wasn't in favor of putting a deck on top of the old burned out foundation. Can you give us some feedback on why nothing's been done to secure it? - HG – I was waiting for the permit to be approve, but I can put some plywood over it if you want. MM - It's not what we want, you might need to go to the Building Department and have an inspector advise on what needs to be done to secure the building and make it safe. JR – Motion in the affirmative on ZBA-23-32 under §181.336 & §181.94 to Grant Leave to Withdraw without prejudice at the request of the Petitioner, waiving the $300 fee if Mr. Genao reapplies on the same property within 12-months of the date of this vote. MM – Motion seconded 4  Voted 5–0 to Grant Leave to Withdraw without prejudice and waive the $300 reapplication fee if the Petitioner submits a new application for the same property within twelve months after the date of this vote. ZBA-23-35 Luis Rodriguez 513 WILLIAMS RD 6:05PM Continuance: 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 No one was present or remotely to speak on this petition. CT – At this time, we had received a communication from the applicant, requesting an extension to May 2024, and a signed agreement offered in support of that request. It is my understanding from Ms. Mata that the Building Commissioner (Felix Zemel) that the applicant is looking into a different resolution, but is not ready to withdraw the application at this time. Mr. Reynolds, Mr. Talbot, Mr. Gallagher and Mr. McLaughlin – All in favor of the request. CT – Public comment? – None. MM – Motion in the affirmative on ZBA-23-35 under §181.335 & §181.416 to Grant a Continuance to May 14, 2024, under a signed mutual Agreement for Extension of Time. BG – Motion seconded. Voted 5–0 to Grant a Continuance to May 14, 2024. 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 Present was Mr. Mateo (Property Owner and Petitioner) stating, CT - This property had a special permit for this exact or similar use before that tenant permit holder vacated property. – HM - Yes, they were evicted. CT - It's been vacant since January, and you are now going to apply for the special permit to be reissued – HM – Correct, we would like to reestablish Rayco Motors under the prior ZBA special permit that, we held there, we're looking to reestablish the auto repair and small car dealership. CT - Rayco Motors is a corporation and you the one in control of the corporation. – HM - That's correct, we own the building and we also own Rayco Motors. CT - How many employees you expect to have in the business? HM - Not more than two CT - What do you expect the hours of operation to be? HM - Same as before CT - Let's review prior conditions. #1 Condition to be operated according to the submitted plan dating June 9th, 2018, and that's the plan that you've resubmitted – HM – Correct MM - Which plan? As a Clarification, because I have two – CT - Plan dated June 9th, 2018 prepared for Clearwater Real Estate Investment Group, by Gaffney. – HM - That's correct. MM – Is that plan A or B? They both have the same date. – HM - We made a slight modification based on the request for the snow removal component, and a handicapped parking space. 5 MM - When you apply this time, which one did you submit. – HM - The one that shows the eight parking spots for cars for sale. CT – So, the B version was approved previously, and then the A version was not approved? – HM - Either plan is okay CT – Condition #2 - No plastic or vinyl banners, professional signage only. I think that had been an issue with the tenant for a little bit. – HM - We'll be taking care of any of that problem. CT – Condition #3 - No exterior storage of junk and no inoperable or dismantled vehicles outside of the property. – HM - Not an issue. CT – Condition #4 - No parking on the sidewalk or street. CT – Condition #5 - Hours of operation were Monday through Friday 8:30 to 7:30 and Saturday 9 to 3. Sunday closed. – HM - That sounds right. CT – Condition #6 - We had the sunset clause, which we'd consider again. Therefore, I want to make sure who's the operator. – HM - I'd like to discuss that, if we could. This is an automotive repair shop; I don't have any intentions of knocking it down and building a two or 3-family. When I transferred the permit to the tenant, it really never changed because I continued to be the owner of the property. They only leased it from me, and I'm hoping we can find a way to evolve around this sunset clause because it is detrimental to the business. In fact, I've kept it closed for the last three months in respect of this board, if I someday decide to rent it; they're going to probably do automotive and the car dealership. CT - It's a fair comment. I'm going to have the board discuss that, after we move forward through the rest of the conditions. Condition #7 - Not to operate as a public nuisance. Condition #8 - We had a condition to remove some signposts, concrete and wires that were present on the property. It was a broken signpost, is that still there? – HM – On the left side, I cut that down is no longer there. BG - I visited the property and it is still there. CT - Are we talking about a different location? BG - On the right side, it's an old metal bracket in the ground with wires coming up. – HM – I would take care of that. CT - Is there any person present who would like to make comment on, for or against this application? None CT - Is there any person present virtually who would like to make comment on, for or against this application, please raise your hand. - None. RT - Is the parking orientation the same as it was? – HM - Yes. MM - Is the parking lot striped according to the plan. – HM - I repaved the parking lot after we had our first approval, but we haven't striped it. There's only X number of vehicles it can actually fit, we can't put more even if I wanted to. MM - It's the history of that property that when you go by it, there are vehicles everywhere. – HM - That's why I'm taking it back and operating it myself. MM - I think with the combined use, it's going to be very difficult to keep to this plan. – HM - It wasn't difficult for us, for three years MM - Can you stripe it according to plan, and indeed have a handicap spot that is marked properly. – HM - Yes. MM - Future plans to improve this place? – HM - I'm happy to pull up some pictures, from before and after we spent about $150,000 fixing the place. New roof, new mechanicals, new electrical, new paving. It was a dump when I bought it. CT – Now, about the sunset clause issue, which instead of being attached to the ownership of the real estate, it was attached to the ownership of the business. If we detach it from the business, and have the owner be the attached and responsible party for the sunset clause, that would work, but as the owner, 6 you would then be responsible for any tenant’s violations of the special permit conditions. Is that something that you'd be willing to tolerate? – HM - I would be willing to tolerate that because if they violate the special permit conditions, then they are in effect depreciating an asset that I own on Water St. CT - Currently the owner is Clearwater Real Estate Investment Group LLC. – HM - Yes, since 2017. CT - I assume you're the member manager of that LLC– HM - Yes. CT - We're still holding whether or not it's the owner or the tenant business operator, if they violate the conditions they would be subject to revocation. To me, there is a greater responsibility when we have the property owner liable for the actions of the tenant, because the owner would be responsible for the special permit should there be a serious violation and there be a need to issue fines. So, we still get the compliance factor that we need with the special permit provision. Still, if there is a transfer from the LLC to anyone, but you individually - if there is any substantial change in the ownership of the LLC, of more than 20%, the sunset clause would terminate the special permit. Mr. Reynolds, Mr. Talbot, Mr. Gallagher and Mr. McLaughlin – In support CT - I do want to designate that we're using Version B of this plan, because that's the one was approved prior with the snow storage marked on there and that provides for 9 spaces. It designates spaces one and two are for employee parking, which would fit in with the number of employees that you have. MM - Motion in the affirmative on the ZBA-23-39 under §181.313D11&12 & §181.94 to Approve the Special Permit to operate a Motor Vehicle Sales and Motor Vehicle Repairs business with the conditions: 1. Business to be operated according to the submitted plan #7406-B dated June 9th, 2018. 2. No plastic or vinyl banners, Professional signage only. 3. No exterior storage of junk or motor vehicle parts, and no inoperable or dismantled vehicles to be stored outside of the building. 4. No parking on the sidewalk or street. 5. Hours of operation Monday through Friday 8:30 to 7:30, Saturday 9:00 to 3:00, closed on Sunday. 6. Not to be operated as a public nuisance. 7. Property owner to remove protruding signpost, concrete and wires on the right hand side of the building within 60 days from the filing of this decision with the City Clerk. 8. Parking to be striped according to the submitted plan #7406-B. 9. This Special Permit is issued to Clearwater Real Estate Investments, LLC and Harold Mateo. 10. Sunset Clause – This Special Permit shall terminate and expire upon the sale or transfer of real property at 447 Water Street from Clearwater Real Estate Investments, LLC. or Harold Mateo to any other person or entity, or upon the transfer of more than 20% of the ownership interests in Clearwater Real Estate Investments, LLC to as Mr. Matteo is the sole owner of the LLC 11. Review Hearing - September 10th, 2024. RT – Motion Seconded Voted 5–0 to Approve the Special Permit with conditions ZBA-23-40 Travis Beauvais 180 MAIN ST 6:45PM 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 Present was Travis Beauvais, Lunenburg resident (Petitioner) stating, 7 CT -Application is for motor vehicle repair, not sales. – TB - At my last location which was on 564 John Fitch, I was allowed to sell a personal car occasionally, and it wasn't a problem, but I do not plan on having a dealership. Sometimes I do buy a car, drive it for a while and then sell it, but in my name, not the name of the business. CT - Basically a sale that wouldn't implicate the requirement of a dealer license. – TB - Not looking to do that. CT - Any auto body work? – TB - I don't plan on doing anything other than rust repair such, changing a rotted fender, a light front collision, but I will not be painting. CT – So you won't have any need for the exhaust system associated with paint work? – TB - If there was a car that was in a collision, I would do the work there, but I would sub out the paint work to a local Body Shop. I did do insurance claims and my previous location, but here I would like to conduct more of a general repair service. CT - How many employees do you plan to have on site? - TB – Based on the number of bays and lifts, I’m planning to have between 5 to 10 employees. CT - What are your planned hours of operation? – TB - Monday through Sunday if we could do 7 AM to 8 PM. I wanted to have that availability. CT - Are you doing any exterior modifications to the building? – TB - I am going to hire a contractor to pull the proper permits with the town, so we can do that. I want to put a fence up by the train tracks, so we'll block people from going through. I do want to put a gate on that fence as well, to enable the side door access. CT - A chain link with privacy slats? – TB – Yes, and depending on the regulations I'd like the fence to go off the back wall of the property, and to the side of the parking garage so they can't walk through. And from the other corner of the building across I would put a 10 foot gate. CT - You don't need any kind of dimensional relief, the setbacks are all fine. How many parking spaces are you going to have? – TB – I submitted the parking plan that was previous to Mount Wachusett, but I would have somebody do a parking plan to keep the original parking plan that Montuori had, which was original to the structure CT – The plan was submitted has 22 spaces shown, with two being accessible – TB – Yes CT - This was before the modifications to Main Street occurred, if it was drafted in 2017. So, the entrance coming from Boulder Drive takes a right in. If somebody is coming from the train station on Main Street, is there an entrance there on Main Street? – TB - On Boulder Drive technically where the gas station is, and the other one is on Main Street right at the corner of the parking garage. CT - Are you going to paint the building at all? – TB - No, the building was recently painted. CT - Do you have any other licenses you need to obtain in order to operate there? - TB - No CT - Where's the location of the dumpster for you? – TB - Right now, my plan is to have a dumpster on wheels, to roll it in and out. Once the fence is completed, I may put it in that 10 foot section where the gate would be, and unlock it when they come to do it, but wouldn't have any dumpster where it's visible outside. CT - What's your projected time to open after you get the permit? – TB - I'd like to be open for April 1st. CT - Are you leasing it right now? TB – I am in the process of trying to buy it, but I signed a lease until we get everything done, but I'm paying $10,000 a month. CT – Is any one present to speak on, for or against this petition? Harold R Smith Junior, but I go by (Hal) a Fitchburg resident and also representing the Viola Fitchburg Tire service at the Boulder Drive, also representing the Rollstone Congregational Church across the street from this location. We are all in favor. CT - Is there any person present online to speak on, for or against this position raise your hand? None Mr. Talbot - In favor of this BG - In favor also 8 MM - In favor of this application, it's a key component to that corner along with the other businesses. Maybe a review in six months to talk more in depth about parking, but let's get this business up and running with our standard lists seven days a week. We haven't had that request, but if you look, Firestone open seven days a week, and subject to review. This location it's in a true business environment where it doesn't abut any residential property. CT - What is your signage plan? – TB - I'd like to build some sign box closer to the sidewalk, if it takes up one or two parking spots. It doesn't necessarily have to be wired, like a solar light that at least for a couple hours will shed some light. I was thinking some planter box signpost coming out of it, but a decent size by the road. I would like to have some banners over the Bay doors, if that's doable. If they start to get worn or dilapidated, I'll change them out, obviously I want the business to represent me as an individual and the community, so I'll do whatever it takes to keep it in good standing and clean condition. CT - Our standard provision is professional signage only, and banners are generally disfavored as temporary signage, obviously, you're going have to comply with the sign ordinance. Without a plan of what you going to do, we wouldn't grant any relief from that here, and you're not ready with a plan to give us at this point. – TB - As far as bay banners, would that be permitted? Seeing Firestone, Minor Key, Speedy and Jiffy Lube all have them above their doors. It would be a professional signage, not a banner that I made. Is that something that could be allowed? MM - They don't last very long, they get torn, and there are ways that you can do a board type sign that's a little more rigid. – TB - I want to put an actual lighted sign on the building, but the banners are good because it creates new opportunity for specials and different things, and they they're visible. If we revisited in six months, and there was a problem and you wanted to take that away, I'd be fine with that. CT – We can have the condition remain having a professional signage only, and then we'd have the opportunity to view what you're doing and make the judgment as to whether it's professional or not. – TB – Okay. As far as the parking, plan itself, I intend to hire someone to do a measurement of the property and see, if I can have more accessibility to bring in business. CT - We have to issue a judgment based on what's before us, and if we were going to look at that, we need a modified parking plan. It's possible to request to modify its decision, after the decision is issued, but we need a plan. – TB - I'll definitely get one. MM – Motion in the affirmative on ZBA-23-40 under §181.313D12 & §181.94 to Approve the Special Permit with the following conditions: 1. No exterior storage of junk, motor vehicle parts, inoperable or unregistered vehicles. 2. Not to be operated as a public nuisance. 3. Property to be kept clean of trash and debris, and overgrowth to be cut back and maintained. 4. Hours of operation 7:00 AM to 8:00 PM, seven days per week. 5. Professional signage only. 6. Parking spaces to be striped according to the September 1st, 2017 proposed parking layout by June 30th, 2024. Applicant may request modification of this provision from the Zoning Board at review. 7. Dumpster to be stored inside the structure or inside gated at the rear left corner of the property. 8. Sunset Clause – Special Permit shall expire/terminate upon the transfer of ownership of the business from Travis Beauvais or John Fitch Exhaust and Repair, LLC or a transfer of more than 20% of the ownership of the LLC. Where the records of the Massachusetts Secretary of the Commonwealth do not reflect any evidence the existence of John Fitch Exhaust and Repair, LLC, Travis Beauvais must provide proof of the creation and ownership of this LLC within sixty (60) days of the filing of this decision with the City Clerk. This provision may be modified 9  at the review hearing to confirm, change or remove the name of the LLC as an allowed permit holder. 9. Review - May. 14, 2024. BG – Motion Seconded Vote 5–0 to Approve the Special Permit with conditions. ZBA-24-1 Nicole & Derek Shell 493 PEARL HILL RD 7:00PM 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 Present were Nicole & Derek Shell (Property owner and petitioners) stating, being on Pearl Hill Rd. There are abutting neighbors who reside on a higher slope, so it slopes down to where we've recently put a pool in. So, it's basically for privacy and security. There is what’s called a paper road, and access to property that used to be Lanni’s Orchards. Periodically there's construction that goes on and it's a popular unofficial hiking trail where people may decide to go for a walk, and we’ve found empty beer bottles and debris from people walking through, so that would be the security aspect of it. It's a very narrow access road, and we would just want a higher fence to protect not only the property in general, but the pool equipment that we have on the backside of a shed. CT - It's going to be a vinyl fence along the side through the end of the shed, and then you're going to do some additional fencing that is chain-link in the rear, but that is not going to be visible from the road unless somebody looks really hard. – DS - Correct. CT - The reason that need to seek this special permit is because the fence is 8-feet high instead of 6-feet, whereas on a six foot high fence you would not need any special relief. CT – Is anybody here to comment on, for or against this petition? None CT - Is anybody online to speak on, for or against this petition, please raise your hand. – None CT - We do have some city comments that I'm going to read; Health department says that the property appears to be tied to municipal sewer and water, no other health department concerns with the project. Police Department states no concerns with the project. Planning states No comments. CT - We did have a letter in support, which is from Mr. Desilets. Please see exhibit “A” BG – At my site visit, I noticed that the abutter is quite high. Usually, in situations like this, I consider impeding air flow, but I think because the neighbor’s home is so high, it wouldn't be an issue with the additional 2-feet being requested. I'm in favor. MM - Also in favor. CT - There is a lane, and you will need to take care to mind the boundary in the placement of the fence. I would mark it once, twice, three times, because you don't want to have that installed and then have somebody who has the right of way be unable come through. I agree that lane seems to be mostly unused, and there's not any great detriment to visibility from the placement of the fence. I do agree due to the colocation with the paper street, and the topography of the land with the neighbors, further privacy is warranted. I was also pleased to understand that you are encircling the entire pool, as a safety issue. We had another abutter here at the February 22nd meeting, and his question was whether the fence would extend to block the visual of the pool pump equipment and you had answered that yes, it would. I think that was something the abutter found favorable MM - Motion in the affirmative on ZBA-24-1 under §181.4215 & §181.94 to Approve the Special Permit on the request for the installation of an 8-foot high vinyl fence. 10 Motion Seconded Voted 4–0 to Approve the Special Permit ZBA-23-38 River Street Enterprises, LLC 78 RIVER ST 7:15PM David Macchia Special Permit under §181.313D24 of the Fitchburg Zoning Ordinance to establish a Dog Training Elite facility (general service establishment) pursuant to §181.94 located in the Industrial District Map 28 Block 4 Lot 0 Present was David Macchia Westminster resident (Petitioner & property owner) stating, in addition to the facility being open to dog training facility. One of the things that we would also require would be a kennel license, to occasionally house dogs in the building. So, that would be part of the application, if that wasn't clear in the application, then we would take whatever steps to clarify that. CT - It wasn't clear in the application, and there's a difference in our ordinance, a dog kennel license is required with the overnight boarding and the application described training, and it was not advertised under that section. So, without advertising we don't put anyone on proper notice. However, you can modify the application to include both types of relief, we would need to re-advertise it and schedule you at the next meeting. Alternatively, you can file a separate special permit application and move forward on the one we have tonight. – DM - We should move forward on the one for tonight, and then I can file a second application for the kennel license. Describing our business, the primary function is an administrative office, answering phones and admin work. The employees show up to work on a daily basis, get their assignments, take their vehicles and all of their training happens in-home in private sessions with their clients CT – So, the clients are being serviced offsite. – DM – Yes CT - Are there any services that are going to be provided for the dogs on site? – DM - We would, if the kennel license is not required for such services. Occasionally, clients will come to our facility, and have private lessons one-on-one at our facility in the back, inside the building. CT - How many employees do you anticipate having for the business? – DM - 6. CT - You're going to be co-located with another business on that site, and how many parking spaces are there? Is there sufficient parking for both uses? – DMA - I believe we have 140 on site, and those were all existing in the parking lot plan from the previous business. The needs for the business do fluctuate, and with the seasonality of the other tenant. They typically have a lower parking requirement in the summer, because those vehicles sit there during the day in the winter. There's plenty of parking, there are dedicated spaces in the back, and 10 parking spaces is more than sufficient for the needs. CT – So, you'll have ten dedicated to this use, and does 140-total include those 10? – DM- Yes CT - What's the square footage that is leased to the other tenant? – DM - 15,000 square feet. CT - How many service vehicles do they have stored on site? – DM - Approximately 60. CT - Do you know how many employees? – DM - Probably 40 employees. CT - Are the employees parking and then using the business vehicles? – DM - Most are, some take the business vehicle home also. CT - What's the square footage that's going to be occupied by this business – DM – 3,000 CT - Is there any contemplation of doing any of the training outside at all? – DM -No, only inside CT - You're not planning to do on any exterior modifications - DM - No CT - You already have a sign up. Any other signage other than that? I will say when I went and visited the site, it was difficult for me to determine how to approach that particular area due to the other use that was going on, have you thought to place some directional signage? – DM - I would certainly be open to putting directional signage up, and the reason why we haven't is because it isn’t a really public location. CT - Is there anybody present or online who would like to speak on, for or against this petition? Please raise your hand. – None 11 CT - We have a couple of city comments, from our Chief Martineau and Mr. Pickett our City Animal Control. Please see Exhibit “A” BG - I think the area is appropriate for what the applicant is looking to use it for, and the 3000 square feet is adequate in my opinion. I am in favor. MM - It's a general service establishment request, low impact, and low visibility. How long have you been in operation? – DM - One year, and we were unaware of the need for the special permit. CT - I'm in favor of the use. MM – Motion in the affirmative on ZBA-23-38 under §181.313D24 & §181.94 to Approve the Special Permit with the following conditions: 1. Not to be operated as a public nuisance. 2. All animal training to be conducted inside the structure. 3. Ten parking spaces shall be dedicated for this dog training facility, and shall be striped and marked as parking reserved for this business. 4. Directional signage to be installed on site reasonably sufficient to direct traffic to the business on the interior of the site. 5. Professional signage only, no vinyl banners or pennants. 6. Site to be kept cleared of overgrowth and trash. 7. Permit holder is subject to recall hearing upon reasonable notice at the election of the Board for review of the special permit conditions. BG – Motion Seconded Voted 4–0 to Approve the Special Permit with conditions. ZBA-24-4 Stephen Seney 1030 ASHBY STATE RD 7:30PM Dimensional Variance under §181.93 of the Fitchburg Zoning Ordinance to construct an addition (garage) along the left side encroaching the minimum setback required from 25’ leaving 12’ on the existing single-family structure pursuant to §181.416 located in the Rural Residential District Map S3 Block 38 Lot A Present was Stephen Seney (Property owner & Petitioner) stating, seeking to put a 16 by 24 foot garage with one room above it on the left hand side of our house. CT - As you know, if we have a dimensional variance to grant, in order to consider the request for the variance, we must meet the criteria. There must be an issue with the soil, topography, shape of the lot or with an existing structure that causes a substantial hardship, financial or otherwise. In addition, we must find that the relief can be granted without derogating from the intent of the zoning ordinance; can you address those criteria? – SS - I don't think there's any issues with any of them. CT - The variance is a creature of state statute, not of local zoning ordinance. Therefore, it requires that the petitioner show us an issue with soil, shape topography or existing structure in order for us to move forward, and this is sometimes difficult criteria to meet. – SS - If you don't allow it. CT - Is there any person present in the audience who would like to make a comment on, for or against this petition? None CT - Is there any person online who would like to make a comment on, for or against this petition? Please raise your hand. – None MM - It's about 70,000 square foot lot size – SS - correct. 12 MM – Currently here's no garage? – SS - We have a two stall garage under, on the front of the house. MM - Do you have construction vehicles on the site? – SS - My work truck, which I go back and forth to work, and my small equipment that I use on my property. I also own 60 acres behind this property, but I don't keep for any business use at all. CT – Before moving into discussion, would you like to continue this to try to answer those questions? – SS – I have an issue with topography, I can't put a garage anywhere else on the site. If I wanted to put it somewhere else where there was no dimensional problem, I can't because of the topography and soil conditions. Even if it was a detached garage, the driveway’s right where our garage is right now. CT - So describe the issue with the topography to me. – SS - If we don't put it there, its impossible to put it somewhere else. CT - Why? – SS - Because we have ledge all on the front of the property, driveway on both sides has ledge. On the backyard is the septic system. CT - You have a lovely setback of 161-feet from the road, and the front back required 40-feet, so you have 120-feet to play with, and the issue is ledge. – SS – Yes, the driveway goes up on the left hand side of the lot, almost at the property line. On the right hand side, it’s a whole large area in the front, which is all ledge. CT - You have 69-feet plus or minus to the right boundary – SS – Same exact situation. CT - How did you build the house? – SS - A lot of difficulty. We hammered out the foundation and the driveway. CT - Is there a ledge where it is? – SS - Yes. CT - Is there ledge where you're proposing to put the garage? – SS - No. CT - If we looked at taking that garage and attaching to the back of the house instead of the side of the house on that corner, what's the issue with putting it there? – SS - There's a septic system in the backyard, and we have a porch in the back, so it doesn't fit back there. MM - I would recommend a site visit, based on the size of this lot if the applicant is stating that there are hardships. CT – Agreed, a site visit will be helpful prior to our decision. Therefore, best is to continue this to our April meeting. And have you schedule a site visit through the building secretary. MM – Motion in the affirmative on ZBA-24-4 under §181.93 & §181.416 to Grant a Continuance to April 9, 2024, under a mutual agreement date 3/12/2024 BG - Motion Seconded Voted 4–0 to Grant a Continuance to April 9, 2024 ZBA-24-5 Jonathan Calcerrada 672-678 WATER ST 7:45PM Special Permit under §181.313D12 of the Fitchburg Zoning Ordinance to open an Auto Repair (Motor Vehicle Repair Shop) pursuant to §181.94 located in the Neighborhood Business District Map 108 Block 35 Lot A No one was present to speak for, on or against the petition. CT - Nobody here to represent this petition, we have no attendees online, and we have not received any communications. BG - Visited the site this afternoon and spoke to the property owner, who showed me a text message saying that the applicant was not willing to move further with the application. MM - the fact that the applicant’s not here, especially on a first time application with no courtesy. I am willing to either vote or give leave withdraw. 13 CT - Likewise, I would be inclined to vote to give leave to withdraw without prejudice. I did visit the property which is located up the slope, but right next to our brand new lovely rail trail and the rear of the property is being used for trash storage. While there are other issues in that area that affect the visual presentation of our rail trail, if we were in the future to consider an application on this site, I would definitively want some clean up of what's going on there. I would like to see a little more caretaking with the maintenance of the property. MM – Motion in the affirmative on ZBA-24-5 under §181.313D12 & §181.94 to Approve to give to Leave to Withdraw without prejudice, due to no participation and/or communication from the applicant. BG – Motion Seconded Voted 4–0 to give to Leave to Withdraw without prejudice ZBA-24-6 Phil Colameta 133 SOUTHWICK ST 8:00PM Special Permit under §181.335 of the Fitchburg Zoning Ordinance seeking relief from the zoning setbacks on the left side-yard encroaching from 8.6’ to 6.9’ (30’ Min. Requirement) on the existing single-family structure pursuant to §181.416 located in the Residential A District Map 313 Block 14 Lot 0 Present was Phil Colameta of Lunenburg (Property Owner and Petitioner) stating, that I am seeking relief of a foot and a half on the left hand side and rear setback on the new constructed house. Purchased the property and upon an inspection we realized that the original house was a teardown, we put a new concrete foundation in position and I made a mistake by setting it too far left and too far back. I took into consideration that it didn't have off street parking, and we pushed it back to create two spaces dedicated to off street parking. On the right hand side is my only neighbor, which is a little over 5 feet away from his lot line, and the rear an undevelopable vacant parcel. I submitted the existing prior footprint and the newly constructed footprint so you can see that the house was kind of tilted sideways to the street, it was and still is a nonconforming structure, but it was not intentional when we did it. CT – So, as the house stood it was a pre-existing non-conforming structure because it didn't meet setbacks. How long ago did you tear it down? – PC – October last year. CT - Is that Section Street marked at the top end of Southwick St. – PC – Correct CT – There are no other houses or road beyond it, and it’s a paper street according to the city, or private right of way owned by another person. – PC - I believe it's a paper street. CT - Do you know who owns the surrounding properties? – PC - On the left is the Oak Hill Country Club. CT – So, there's no further development or residential structures contemplated, at least for a while. – PC - Correct. CT - Does this Section Street lead to any other owned property in the back, that's not Oak Hill? – PC - I believe it connects with Michael Street, which runs parallel with Southwick, which I don't believe there's any development going on. CT – I visited the site, and the house it's currently up for sale – PC - We're under a Purchase and Sales Agreement. CT- What's the currently agreed to closing date? – PC - It was about a month ago, and we've extended it to the 21 day appeal after this. CT - Is the driveway dimensionally conforming for two cars? – PC - It's 19.8 feet from the street, and 20 feet wide. CT - Is there anybody present who would like to make a statement on, for or against this petition? None CT - Is there any person online who would like to make a statement on, for or against this petition? Please raise your hand. – None 14 CT - City comments, from our building inspector, John Morreale. Please see exhibit “A” BG - I have no problem with it. MM - In favor of it. CT - In favor of this as well, I just have some concerns about future building owners not being aware of the boundary issue. Are there pins set at the corners? – PC - There is a pin set on the front left corner near the hydrant and the asphalt. CT - Would you be opposed to setting two more pins along that boundary line? – PC - Not opposed to that, and there might be even something on the right hand side. We have always had a gray stick in the back left corner that's always been maintained, but it's not an actual pin. CT - When you're talking about a homeowner, not a builder or surveyor. The granite marker is always like a visible reminder where the boundary is, I think the additional pin set so that there are 4-pins equidistant along that 87-foot left hand boundary line, and making the line known or findable in the future. I’m trying to avoid somebody building a fence out in the roadway, and if for some reason that becomes an active street we have a problem with their removal. – PC – 4-Pins are fine. MM – Motion in the affirmative on ZBA-24-6 under §181.335 & §181.416 to Approve the Special Permit reducing the side yard setback to 6.9 feet along the left boundary line with the following conditions: 1. The applicant shall ensure that there are four surveyors’ pins set equidistant from each other along on the left hand side boundary line, including the pins set at the corners, to mark the left boundary line along the currently unused paper street/private way. RT – Motion Seconded Voted 4–0 to Approve the Special Permit with conditions. ZBA-24-7 Garrett Patterson 481 MECHANIC ST 8:15PM Variance under §181.93 of the Fitchburg Zoning Ordinance to construct a two-family dwelling pursuant to §181.313 located in the Residential A District Map 169 Block 27 Lot 1 Present were Garrett and Susan Patterson (Property Owners & Petitioners), Robert Therrian (architect) and Matthew Ducey (Architect) stating, the Pattersons are fully aware of the current zoning bylaws, the hardship scenario and the things about this neighborhood and there's nothing detrimental to the right of use for an accessory unit. So we appealed this way, because as an accessory unit in this neighborhood we are entitled to it by right, and none of this would have been necessary. However, this is a virgin lot that was purchased many years ago, with the intent of building a home. So what we have today is a scenario where we have a new building, and it doesn't fit into the intent of the accessory unit. The topography on the back of the lot makes an ideal location for Garrett to be able to put a unit for his mother, and the differences is the square footage related to the accessory unit, versus what he has available that he can provide a bigger space for his mother and be harmonic with the neighborhood. CT - You said this is a virgin lot that's never been built on. – RT – Yes, in fact it's one of the larger lots in the whole neighborhood, the Patterson live in a 758 square foot home, which is abutting this property. MM - Will it be demolished? – RT - We're not sure, but the lot is a large buildable lot with 52,000 square feet. The minimum lot size for that neighborhood would be 12,500 square feet. CT - Do I see correctly that the frontage is 28.66 feet? – RT - right 15 MM - How many feet of frontage does this proposed lot have? – RT – 28.66, so it's a legal, buildable lot. We could have gone and got a permit, and built a house. Other houses surrounding all held smaller lots, and how can you have two units in a small lot. Now, you have a larger lot building a new house and be restricted to 800 square feet unit size. – CT - Because that's the terms of the ordinance, and because the change from the accessory dwelling unit to the two family, we don't have the ability to allow it. We don't have the ability to allow the different use because our ordinance prohibits the granting of use variances in residential districts. If you are looking for a dimensional variance, that is something we can consider, but we are prohibited from allowing a use variance under any conditions of any kind in a residential district. RT - If we can change that petition to allow an increase in square footage for this particular house, may everything work? –CT - Lets review the conditions that are in the ordinance with the Accessory Dwelling Unit, and understand what it is that you might need relief for. We can consider whether it's something, we can take into account. So, condition number one, a plot plan of the existing dwelling unit and proposed Accessory Apartment shall be submitted to the Building Commissioner or the Board of Appeals, showing the location of the building on the lot the proposed accessory apartment. So, the issue is that this isn’t existing. Condition two, certification that one of the two dwelling units will be occupied by the owner of the property. – RT – Yes Not more than one accessory apartment on the lot, which shall not exceed 800 square feet inhabitable floor area. – RT – That’s the problem What is the proposed floor area? – RT - 1400 square feet How many square feet would that be for the main area? RT – Roughly 2000 square feet So you would want relief of an additional 600 square feet – RT – Correct The external appearance of the structure shall not be significantly altered from the appearance of a single family structure, so it would it look like a single family structure – RT – Yes We have a requirement that any new area would not be more than 15% of the gross floor area. I'm not sure that would apply here because it's all new construction. Stairways shall be enclosed or screened so that they're not visible. – RT – Correct How many parking spaces- RT – Four So from what we just reviewed, we would be looking at a request to vary from the requirement that an accessory dwelling unit be to an existing property, an existing structure. To increase the amount of square footage in the accessory dwelling unit to 1400 square feet. Then the requirement relating to no increase of 15% over the existing structure. CT - Is there any person present other who would like to speak on, for or against this petition? Timothy McNamara of Fitchburg, I do own a lot nearby and out of curiosity. Are they looking to do a single family or a two family? – CT - The application was for a use variance to construct a two family dwelling. It's not something that can be allowed. We're not allowed to allow it MM - According to what I read in the bylaw, a rear lot requires 40 feet of frontage; and the driveway from the street to the lot has to be 40 feet wide at all points. – CT - I don't see that within the zoning determination did you? – MM - No. CT - Was this treated as an infill lot? We don’t know. That Commissioner is no longer with us. So, before entertaining anything tonight this needs to be revisited by the present building commissioner for determination. CT - I'm also going to point out that I don't think we're headed for a decision on this tonight. What we talked about was not what was advertised, and I don't feel that we've given the public adequate notice of what you're requesting. I would like to engage in a little bit more discussion to give some guidance of how to resolve it, because this is probably headed for continuance. – RT - If we withdraw 16 this application without prejudice and apply again. On the relief on the amount of square footage for the accessory unit, and apply again. CT - No, it's still a variance, but it's not a use variance, it's a dimensional variance. Which is something that can be considered, but we don't have the ability to consider a use variance in the Residential District CT – So, would you like to withdraw this, or would you like to continue? – RT - I think it would be smart for us to withdraw without prejudice and come back again with a new petition for relief on the dimensional requirement. MT - A brief question, you mentioned your concern about whether or not this lot will be buildable. What exactly would make it not buildable from your law? - CT - It's the frontage issue that brings the concern to my attention, if we go to §181.75, and specifically §181.7525. RT – We could ask for the relief on the driveway as well, if that's the case. - CT – So, what you should do is make sure you put all of the relief you're requesting in the petition. MM - Motion in the affirmative on ZBA-24-7 under §181.93 & §181.313 to Grant Leave to Withdraw without prejudice as petitioner requested. BG – Motion Seconded Voted 4–0 to Grant Leave to Withdraw without prejudice ZBA-24-8 Yvonne Larson 38 JEANNETTE ST 8:30PM Dimensional Variance under §181.93 of the Fitchburg Zoning Ordinance to erect a 6’X4.12’ porch on the front of the existing single-family structure encroaching the minimum setback require from 25’ leaving 21’ pursuant to §181.416 located in the Residential B District Map 101 Block 5 Lot 0 Present was Tim McNamara, resident of Fitchburg, and the general contractor on this job. We're looking for a dimensional variance, what was originally an uncovered porch. We applied for a building permit for a covered porch on it, which we were not encroaching or in need of a variance. About a month and a half later, after constructing it, upon our rough inspection, along with other things that we're doing at the residence, we were issued a denial letter. It was our understanding that because we were not moving any closer to the street, and building in the exact same spot that we were going to be, okay. To address hardship for my customer who I'm representing tonight, who could not be here. They had originally were looking for a covered porch, because the water had been splashing on their front porch and causing damage to their sill and rim joists on the front of the home. Additionally, it's in keeping with the neighborhood, I'd say about 50% of the homes on that block also have front porches that look exactly the same as this and encroach on the setbacks as well. CT - Is there any person here who would like to make a comment on this petition. None CT – And we have no attendees online. RT - I guess I would ask the rest of the board. Why would the stairs not be exempt under §181.4212? CT - It's exactly the section that I was going to look at, for uncovered steps, walkways, ramps or terraces, bulkheads, chimneys, etc. shall be exempt from the setback requirements. As I understand it, the landing is covered – TM - correct CT - The steps from the landing are uncovered – TM – Correct CT - The landing does not encroach any more than the previous – TM – No, from the previous structure, but there was no roof over it. The landing and the steps are the exact same depth that all lands in the same part, but over that landing is a roof that wasn't there before. CT – So, the steps were exempt under §181.4212, but now it's a new violation or of the setback. – TM - Correct. CT - It's exactly 25 feet to the house. – TM - Correct. 17  CT - If the prior steps had been covered and all we had was a new landing and a new cover with steps that stuck further out, then they would be exempt, but the prior structure being exempt didn't violate the setbacks, so we don't have a preexisting nonconforming structure to work off of. BG - It's in keeping with the neighborhood and not more detrimental, in favor. MM - This is a minimal request. Isn't there a provision for a front yard exceptions that would be a permit versus a variance? – CT - In §181.4216, we do have a special permit available where at least 50% of the existing buildings fronting on the same street or on the same block, and within a distance of 150 feet of the lot, have less than the required front yard depth, then we may authorize the average front yard depth, but in no case less than 10 feet. The applicant would need to show us that issue. So, we have the other provision, of course we're not going to be able to vote on that tonight because that's not what was advertised. CT - Would you say that there is a hardship due to an existing structure on the property? TM - Yes, the existing steps were allowing water to splash on to their home and create a detriment to the home, which we had to repair. In addition, you can't make those steps meet the setbacks covered, because you can't move the house back, and the house is exactly 25 feet. CT - Where the request is so minimal in nature, it’s for four feet that is the size of the covered landing and it is substantially financially difficult to move the existing structure. I could be inclined to find that we had grounds to consider the variance. MM - Motion in the affirmative on ZBA-24-8 under 181.93 & 181.4161 to Grant the Variance as petitioner requested, reducing the required front yard setback from 25 feet to 21 feet. BG – Motion Seconded Voted 4–0 to Grant the Variance as requested. 6. MISCELLANEOUS ADJOURNMENT MM - Motion to adjourn. RT – Motion Seconded All in favor, unanimously Approved 18