Zoning Board of Appeals

FITCHBURG CITY CLERK Jul 16 2024 10:10 am ZONING Board of APPEALS 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING MINUTES – TUESDAY MAY 14, 2024 Legislative Building at 700 Main Street. Note: This was a Hybrid meeting, broadcasting and recording by FATV 1. Call to Order Michael McLaughlin PLEDGE OF ALLEGIANCE ALL 2. Communications Michael McLaughlin 3. ATTENDANCE: Michael McLaughlin (Vice-Chair), Joseph Byrne (Clerk), Robert Talbot & James Reynolds 4. ATTENDANCE VIRTUALLY: Christine Tree (Chair) & Brian Gallagher 5. Hearings: Started at 6:03PM CASE No. APPLICANT PROPERTY TIME ZBA-2023-18 William Gleason 0 AIRPORT RD 6:00PM Review of the Variance under §181.416 of the Fitchburg Zoning Ordinance to construct a 24X50 steel building on a 7,959 SF lot not conforming to the side yard setback pursuant to §181.93 located in the Industrial District Map 142 Block 1 Lot A No one was present or virtual to speak on this matter. MM – We’ve received a communication from the permit holder, requesting an extension on the review and installation of landscaping due to not being able to landscape the property or have the fence finished. Unitil still has to dig on the property to install a gas line and they are 6-8 weeks out as of today, asking for a 3-month extension to get this project finished. All Board Members agreed to grant the extension requested. JB – Motion in the affirmative on ZBA-2023-18 under §181.416 & §181.93 to Grant the Continuance request to September 10, 2024 with all existing conditions continued as follows: 1. The side yard setback shall be no less than seven and a half feet on either side of the constructed building; no other dimensional variances are granted. 2. The building shall be constructed substantially according to the plan submitted by Haley Ward dated April 3rd, 2023. 3. All conditions of the April 19th, 2011, Planning Board meeting shall be incorporated as a condition of this decision. 4. Petitioner shall install the landscaping as therein required on the perimeter on or before the review date of May 14th, 2024. 5. The chain link fence to be of solid color and not bare metal. 6. Property to be kept in a clean and orderly condition as viewed from the road, with no vehicle or equipment parts, or vehicle or construction debris. 7. Site to be kept clean during construction. 8. Review Date – September 10, 2024 RB – Motion Seconded Vote 5–0 to Grant the Continuance requested to September 10, 2024 (CT & BG – by Rollcall) ZBA-2022-31 Yael Dario Recio 56 CULLEY ST 6:00PM Review of the Special Permit under §181.313 of the Fitchburg Zoning Ordinance to open a motor vehicle body and paint shop located in the Neighborhood Business District at Map 33 Block 58 Lot A Present were Yael Dario Recio (Petitioner) and Lizardo Paulino (Interpreter) stating, MM – This is a final review, but we have some response from the Building Department (John Morreale) which says: The Building permit is still open due to that we never received a final test report from the installer, and no one ever applied for a sheet metal permit for the ductwork in the exhaust system. – LP – The permit holder thought that was included in the primary permit that they took out for the spray booth. MM - Might be some miscommunication, so my recommendation is to talk to Mr. Morreale the inspector to get that cleared. – LP - We also brought some pictures of the back of the building that got cleaned up. He cleaned everything and two days later, there were chairs and a whole bunch of stuff that the neighbors threw from the street in the back. MM - Looks like it's going to be an ongoing issue. LP - I don't know what the address is, but it’s the multifamily on the back up top, so maybe somebody could send them a letter MM – Unfortunately, that's not this Board's jurisdiction, but you could contact the Board of Health provide them with some photos and see if they could assist you MM - Is there anybody in the audience to speak on, for or against this petition? None MM – Is there anyone virtual would like to speak on, for or against this petition? None JR - Appreciate you doing what you've been doing, property looks neat JB - Property looks very good CT - The improvements to the building, starting with the painting and the fence, have been very much appreciated. As far as the debris in the back being thrown by the neighbors, unfortunately, as the applicant knows the condition remains. We appreciate the efforts that have been undertaken to remove it, at the last time the permit holder made the same comments on, and the same suggestion was given to report it to the Board of Health. I would encourage you to follow through with that; otherwise, it’s going to be a continuing issue disrespecting your property boundary, and it’s not going to improve unless you can take some action. Beyond that, we have a condition outstanding (#9) that says inspections from the Building and Fire Departments to be completed for the spray booth prior to occupancy. Clearly there are additional permits needed in the Building Department, and I would like to this business to open and start operating, because the current permitholder has been waiting for a while. BG - Very nice job on the cleanup and the improvements to the building RT - Agree with Mr. Gallagher MM - I did notice that you're probably going to encounter some wash out and run off, on the parking lot, it’s already filled with dirt from the last rain storm. Hopefully, plan “B” is some type of wall on the back, but that isn’t this Board’s jurisdiction. – LP - Aldrich paving, who did the job, they threw some rocks in the back and some tubes at the bottom to see that helps. MM – Due to the pending items, we are going to put you back in September – LP – Agreed JB - Motion in the affirmative on ZBA-2022-31 under §181.313 to Grant a Continuance to September 10, 2024; with conditions and amending the review Date condition (#14). 1. Property is to be used for motor vehicle body repair and painting only with two bays, including on the spray booth; no non-body auto repairs, sales, or other services. 2. Professional signage only – no temporary vinyl banners. 3. Not to be operated as a public or private nuisance. 2  4. No offensive fumes or odors, and no outside storage of vehicle parts. 5. The dumpster is to be located within the fenced area. 6. Any unregistered cars to remain on property no longer than two months. 7. Parking according to plan dated January 10, 2022, and submitted with this application. 8. Hours of operation 8:00 AM to 6:00 PM Monday through Friday and Saturday 8:00 AM TO 4:00 PM. 9. Inspections from the Building and Fire departments to be completed for the spray booth prior to Certificate of Occupancy. 10. The Building’s exterior is to be painted in a good and workmanlike fashion by October 31, 2023 – Complete. 11. The existing fence is to be replaced and painted in uniformity with the color scheme of the building – Complete. 12. Petitioner shall pave the parking area with asphalt by November 14, 2023 – Complete. 13. Sunset Clause – Special Permit to expire/terminate upon the change or transfer of ownership of the business from Yael Dario Recio. 14. Review – September 10, 2024. (Amended 5/14/2024) 15. Any conditions of site plan approval issued by the Planning Board shall be incorporated as a condition of this Special Permit. 16. The pavement shall be maintained in good condition and repaired or replaced as needed. JR – Motion Seconded Voted 5–0 to Grant a Continuance to September 10, 2024 (By Roll Call Vote - CT & BG) ZBA-23-21 Jose Francisco-Bueno 1033 MAIN ST 6:00PM Review of the Special Permit under §181.313D12 of the Fitchburg Zoning Ordinance to continue the use of the property as an Auto Repair Shop pursuant to §181.94 located in Downtown Business District Map 18 Block 90 Lot 0 Present were Jose Francisco-Bueno (Business and property owner) and Katherine Mejia (Sister and Office Administrator) stating, MM – This is a review of the conditions, we will go through them and you tell me where you're at. #1, no handmade signs and banners, professional signage only – JFB - Yes MM - Have you put a sign up yet? – JFB - Yes MM - #2, no vehicles for sale, no unregistered vehicles on the premises, and no storage of vehicles other than active customers and employees. #3, auto repairs to be performed within the building only. #4, no outside storage or display of tires vehicle parts, and property shall be kept clear of trash and debris #5, dumpster shall be positioned on the right rear of the property. – JFB - It always has been #6, in and out directional markers shall be painted on the pavement to indicate traffic movement in a one-way direction. – JFB – It’s one thing we haven't done #7, Petitioner shall replace the vinyl fence on the left side of the property. – JFB - still pending and the fence on the other side will go at the same time #9, Petitioner shall repair or replace the existing sign pole and base servicing the premises. – JFB - Currently, they're working on that right now, we did the painting and the base needs to be finished #10, all work to be completed by May 2024, but it sounds that you still have a few more items to complete. #11 & 12, not to be operated as a public or private nuisance, and hours of operation Monday through Friday 8:00 to 5:00 and Saturday 8 to 1. Finally, sunset clause, where the special permit shall terminate or expire upon the sale transfer of the property. So, approximate time when you 3 feel you'll be able to complete these, and start the business. – JFB - We're working with a company that's going to do the fence, it's been difficult finding somebody to do it, because of the way that I want to do it on the right hand side. I want to be able to lift them up and off, that way when the snow comes it's a lot easier to clean out than having a fence in the way. The parking lot lines, we're getting all the cracks fixed first before we do any painting on it, but they had to wait for the right weather, but it should be getting done pretty soon. I think within the next month or two, we should be able to get that cleared up. MM - Is there any person present that would like to speak on, for or against this petition? None MM – Is there any person virtual that would like to speak on, for or against this petition? None Mr. Reynolds, Mr. Byrne, Mr. Talbot and Mr. Gallagher – Had no questions CT - What obstacles are preventing you from opening the business, other than completion of the items on the list? – JFB - We had a couple of family emergencies and a baby on the way, but we're taking care of it CT - This particular review does not contain a condition holding the occupancy from satisfaction of the conditions, and because of that without a scheduled a review we don't currently have a way ensuring compliance. Therefore, I'd like to schedule this for September. – JFB – Yes, we should be able to get it done by then JB - Motion in the affirmative on ZBA-23-21 under §181.313D12 & §181.94 to Grant a Continuance on the Review to September 10, 2024, with conditions continuing and amending the review date (#15) 1. No Handmade Sign/banners – Professional Signage only 2. No Vehicles for sale, no unregistered vehicles on the premises, and no storage of vehicles other than active customers and employees 3. Auto repairs to be performed within the building only 4. No outside storage or display of tires or vehicle parts, and property shall be kept clear of trash and debris 5. Dumpster shall be positioned on the right rear of the property 6. In and out directional markers shall be painted on the pavement to indicate traffic movement in a one-way direction 7. Petitioner shall replace the vinyl fence on the left of the property 8. Petitioner shall remove the pole with rims and chains on it, and install a fence on the right-hand side of the property up to the end of the parking spaces to prevent parking on the sidewalk 9. Petitioner shall repair or replace the existing sign pole and base servicing the premises 10. Building to be painted in neutral color coordinated with the fencing 11. All work to be completed by September 10, 2024 review meeting 12. Not to be operated as public or private nuisance 13. Hours of operation: Monday – Friday 8:00AM to 5:00PM – Saturday 8:00AM to 1:00PM 14. Sunset Clause – Special Permit shall terminate/expire upon the sale/transfer of property of change operation from Jose Francisco-Bueno/Midnight Auto Repair, Inc 15. Review – September 10, 2024 JR – Motion Seconded Vote 5–0 to Grant a Continuance on the Review to September 10, 2024 (Vote by Rollcall – CT & BG) ZBA-2023-08 JoAnne Hamberg 1341 RINDGE RD 6:00PM 4 Review of the Special Permit under §181.94 of the Fitchburg Zoning Ordinance issued after remand from the Worcester Superior Court Zoning appeal, CA No. 2385CV00600 – A, by consent of all parties, and by Order of the Court, to the Board of Appeals, dated September 27, 2023, pursuant to §181.332 located in the Rural Residential District Map MBL 69R Block 8 Lot 0 Present were JoAnne Hamberg (Owner and Petitioner) and Arthur Magurn (husband) stating, CT - What is relevant at this hearing is for the permit holder to update the board, on the status of the conservation easement, to place the screening and then discuss the completion of conditions #13 and #14, the remaining paths and then the completion of the recreation unit. As well, where we're headed for on the paving and a review should be scheduled in July. Where July 1st is a major completion date. Mrs. Hamberg - Conservation easements, it’s all done and recorded. The trees we had marked out and the Board Members came out for a site visit, which I agree and will be planning later in the year. Recreational building, we are waiting on the Building Department approval. We had plans designed submitted, met with the building commissioner to try to get things moving along as quick as we could, but he had some questions and now it's back at our architects to get back to us. We did dig out the foundation, ordered our rebar, and lined up concrete company to do the forming, but once we get the permit we figure, it be 4 to 6 months to put the building up. Definitely, with the paving we are looking at their schedule some time in June, we've installed. I have three lots left, one slab is already in, and the other two slabs will go in shortly. As soon as there is nice weather, we would up to loom out the other lots, and then hydro seed. CT - Connections for electrical utilities are already installed for all units. – JH - Utilities are on all sites including the recreational building CT - You're waiting on the general building permit from the building department, so other than the digging out you can't start anything – JH - We dug the foundation CT - I wanted to say because I did discuss that while we were on the site visit, I appreciate your looking at and finding the alternative of cutting out the portion of ledge, so that we didn't have to resort to rock grinding crushing or anything else that had been used in the past. BG - On my site visit, I was happy with the lot of nice progress on the items and the overall appearance of the park itself. JR - Same page seems the finish line is in sight for all of us. JB - Did you say four to six months to complete the recreational building? – AM - As soon as I get the permit in hand, we can catch it up pretty quick. I've got everybody lined up, I've got all my ducks in a row the windows ordered everything's poised to go. Obviously, the building department has given us a list of questions, we have our consultants reviewing some of which are structural engineer, there's one HVAC question, as well the solar and energy codes that our consultants are answering them by the end of the week MM – We have some pictures that were sent via e-mail, by the commissioner regarding the drain, and I know that you spoke to us during the site visit. What are the communications with Nick Erickson regarding? JH - There has been modifications to it, since that communication. Our site work team brought the crushed stone to a higher level, and gave it an access way up to the abutting property. So, we've now had two rain events which is led to no standing water on either side of the property MM - Is anyone in the audience in person that would like to speak on, for or against this application? 5 Hal Melanson of 13 Bennett Rd., I believe that my neighbor has concerns on the drainage. MM – Is anyone on virtually to speak on, for or against this petition? Kathy Deschamps, 1307 Rindge Rd., I'm a direct abutter. I'm happy to hear that the trees were discussed and planned, but as an abutter, I haven't been contacted. Our expectation if that there are additional trees added, so that the water level on our property would be in a better state – JH - The trees are being installed in front of Doug’s, there's no trees being installed on your property line. Mrs. Deshamps - I should have taken pictures of the water runoff, because it's terrible and I my expectation is that we would have some trees added as well. Is the recreational center now a managerial building, and I didn't realize it was going to be a house. Do they do the zoning, or they will go to the planning board and to any other commissions that they have to go through? I was surprised when I saw the plans. – MM - What I believe is the original plans from back in this projects inception that included a recreational building. Mrs. Deshamps – Yes, and I thought it was going to be a mobile home. - MM – What has changed, due to the fact that it's a public building; there are different requirements to its design structure. I don't think the placement, location and footprint has changed; its design has changed for code reasons. – Mr. Magurn – Unfortunately, for us because it costs twice as much it has to be a commercial on this building. Particularly because it has an assembly over a certain amount of occupants, once it gets into that they call it commercial. Zoned as business because it can assemble people, have parties etcetera. So, the building has to go through more stricter codes, and it also has to adhere to all of ADA applications. Secondly, all the insides and the interior spaces also have to comply with ADA, so that's why the building is laid out the way it is. It got two recreational independent rooms, called game or crafts rooms, assembly room which has its own kitchenette and it's not a full function kitchen. It has a game storage area in the back, it has storage for all of our equipment and then the last space is the mechanical space with two half baths. CT - Before it becomes a misunderstanding, I believe the issues that we are discussing are a matter of the building code; it's not a zoning issue. – Mr. Magurn – Correct CT - I didn't want anybody to think that we are zoning this area commercial, or additional zoning relief was needed for this building. – Mr. Magurn - For those who don't know, there is a residential application and commercial application. The reason this is commercial is, because it does have to meet up to ADA handicap accessibility, so it's not built different, but stricter code environment. Mrs. Deshamps - At the beginning of the project, 19 years ago. They took pictures of our basements to ensure there was any damage; will you be going through that process of taking pictures and assessing the abutters as part of when we first started? – JH - That was with the blasting, the blaster hired a professional when they were blasting in that area, and they did inspections. Mrs. Deshamps - Are they going to do a post inspection? – JH - If you have an issue, you need to reach out to them. MM - We're pretty far along in this project, if you have any questions or have any issues with regards to that specifically. Reach out to the applicant and they could provide you with a contact for somebody to follow up with the inspection, this is the first time this Board is hearing on this particular item. – Mrs. Deshamps - I'll send it to the planning board, that's where that was raised originally and I'll look for the documentation. A lot of the abutters are not with us anymore, they've left, been a lot of change since this started, that’s why people aren't aware of this. Maryellen Christian of 71 Bennet Rd., I know that Attorney Tree mentioned the different decisions were going to talk about tonight, but I know that number ten on your decision was the drainage on our property. The decision does state that the drainage has to be constructed and maintained pursuant to the requirements of the DPW, Conservation Commission and DEP. I also have been in the e-mail string was early mentioned, so I'm not sure about the addition that was put in recently. Does Commissioner Erikson or the Building Commissioner has to review this modification? Clearly Nick Erickson is not okay with the design and the drainage, is not working. Water never 6 stood on our property, it flew probably underground down downstream down through the Woodland Estates property, and since this has all been going on in the new construction, it's caused this flooding on our land. All the vegetation had been there is dead, and it continues on bad storms, so hoping the modification is going to fix this. – Mr. Magurn - The engineer is the one who designed this modification, and the engineer did reach out to DPW Commissioner with a letter with everything that we did. – MM – Can you work with the commissioner, and see if we can resolve this issue by the next review meeting in July. Mr. Reynolds, Mr. Byrne, Mr. Talbot and Mr. Gallagher – Had no questions CT - I want to be clear that, because this Board is not a good judge of whether a plan is engineered properly. I'd be looking at the next meeting to consider this condition satisfied, a letter from Mr. Erickson agreeing that the drainage is operating and installed according to plan. I realized that the permit holders don't have a building permit yet, and it's going to take four to six months to complete construction of the recreation building, once the permit is granted. So, that's clearly not July, but I would not like to modify the deadline at this point. I would like to look at that issue at the July meeting, when we have more information and hopefully the permit is issued and construction has started, so we can have a better estimate of completion. JB – Motion in the affirmative on ZBA-2023-08 under 181.94 & §181.332 to Grant a Continuance to July 9th, 2024, with condition and amending condition #21 1. The Board continued or made modifications to the following conditions on the Special Permit/Variance: 1. No blasting or rock crushing may be conducted on site. No rock hammering, and no screening or other processing of earth materials may be conducted on site, after December 31st, 2023 2. No earth removal, as defined in the zoning ordinance, may be conducted on site. 3. Applicant may construct no more than seven additional residential units, according to the August 13, 2023 Dillis & Roy plan as modified on September 13, 2023 – Sheet C2, with Unit 22 on the plan (closest to the turnabout) to be turned to provide the shortest connection distance to utilities. 4. Hours of construction are limited to Monday through Friday 8:00AM to 5:00PM; no construction work on Saturdays, Sundays or Holidays. 5. The applicant shall employ dust mitigation measures during construction and regrading. 6. Not to be operated as a public nuisance. 7. Site to be kept clean of construction debris and dumpsters to be emptied regularly, and all stored construction equipment be moved to the end of Nijal Ct., during construction. 8. On site toilets to be provided for all construction workers 9. Applicant shall notify drivers of any construction vehicles servicing the property not to exceed the weight limit of the Rindge Rd. bridge or any other bridge in the area, and shall provide a copy of said notices to the Building Department within 30 days of the date of the original decision, or at such times that the construction vehicles are hired thereafter 10. Drainage to be diverted from abutter’s property per Dillis & Roy plan dated August 13, 2023 and screening provided, both to be constructed and maintained pursuant to the requirements of the Conservation Commission, DPW and DEP. 11. The following work shall be completed by December 31st, 2023: (Satisfied) i. Remove existing stockpiled excess material so long as the same does not constitute earth removal as defined in the City Ordinance, but no loam may be removed from the property. (Satisfied) 7 j. All rock hammering on site shall be completed. (Satisfied) k. All processing of excess material, which is limited to screening, to be completed. (Satisfied) l. Rough grading of the road and installation of utilities and drainage in the road according to said Dillis & Roy plan dated August 13, 2023. (Satisfied) m. Paving of the driveways on existing homes. (Satisfied) n. Regrading of all home sites, including rough grading on new sites, on the premises (Satisfied) o. Any erosion controls required to prevent further erosion of the existing slopes to be placed as necessary, and any degrading ledge shall be evaluated by a design professional and stabilized in accordance with their recommendations. (Satisfied) p. Outside perimeter of the project area to be re-graded, loamed, restored and seeded, preferably in the style of the natural rural character of the area prior to construction. (Satisfied) q. Operation maintenance plan of the storm water drain system to be filed with the DPW and to be updated at least every three years. (Satisfied) r. Applicant shall be subject to a daily fine of $300 if all of the above items are not completed by December 31st, 2023. (Resolved) 12. No building permits for any additional manufactured units to be installed on cement pads shall issue until Condition 11 has been satisfied. (Released 1/9/2024) 13. All remaining home pads and final connections for laterals and electrical utilities to be installed and the road paved by July 1st , 2024. (Satisfied) 14. The Recreation Unit servicing the development residents shall be completed and open for use by the residents by July 1st, 2024. Recreation building to be at least 28 feet by 48 feet and consistent in design with the remaining neighborhood structures. (In Progress) 15. All manufactured home units shall have been installed and the project completed by November 20th, 2024. (In Progress) 16. Special permit to be recorded within 60 days of the original decision. 17. Permit holder shall maintain all of the ways depicted on all plans that are subject to this special permitting as private roads and not as public ways. Permit holder shall not petition for acceptance of the private roads as public ways by the City. 18. Failure to maintain the integrity of the pavement in the road and infrastructure, water, sewer, storm water and electric systems, as well as plowing shall subject permit holder to a $300 fine per day for violation of conditions 19. Permit holder and property owner shall convey and record a conservation easement over the unbuilt land at the northeast perimeter of the premises encircling the turnabout at the end of Nijal Court to a nonprofit entity or an abutter with no financial interest in the premises, which shall at a minimum prohibit development of that area, or improvement except as depicted on said plan. This easement shall contain or be appended to an engineered or surveyed plan depicting the exact area of the easement. (Satisfied) 20. This easement in executed form shall be submitted to the Building Department and the Board no later than January 4th, 2024 and shall be recorded at the Registry of Deeds by January 9th. Violation of this condition shall constitute sufficient grounds for revocation of the Special Permit by the Board (Deadline extended – see Condition #24) (Satisfied) 21. Review date – July 9th, 2024 22. No further fines beyond the initial $300.00 assessment should be assessed to the permit holder for violation of the conditions so long as she continues expeditiously to 8  seek approval, execution and recording of the conservation easement, and satisfaction of all other conditions of the special permit. 23. A site visit during the month of April shall be scheduled by the permit holder through the Building Department for the Board Members to review the issue of screening for the abutters. (Satisfied) 24. Permit holder shall seek approval of the proposed conservation easement in form substantially the same as submitted to the City Council at its January 4, 2024 meeting, expeditiously, and shall submit and record the easement once approved and executed by the City, but in all cases on or before April 1st, 2024. If the City or the Permit holder fails to approve and execute the proposed easement in substantially the same form, or the Permit holder fails to record the executed easement, both on or before April 1st , 2024, the Permit holder must submit a proposed alternative conservation easement for review to the Building Department and the Board meeting the requirements of condition 19, and execute and record the same. (Satisfied) 25. No certificate of occupancy for the two final units on the right of Nijal Court shall be issued until Conditions 19, 20, and 24 have been satisfied. 26. Condition #22 amended and condition #23, 24 & 25 added by the Board on January 9th, 2024 JR – Motion Seconded Voted 5–0 to Grant a Continuance to July 9, 2024 with conditions (By Rollcall – CT & BG) ZBA-23-40 Travis Beauvais 180 MAIN ST 6:00PM Review of the 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 (Permit Holder) stating that, currently still not open. I'm hoping in the next week or two, it took probably 3-months to get building permits so that's been a huge delay. We've been doing construction inside, and still waiting on the signs permits. Since the last meeting haven't been able to do much and we also discussed the parking lot plan. I reached out to a few people haven't heard anything back as far as an exact date, when they can work doing all the measurements and coming up with something. So, I'd like to get an extension on that item, I don't know if September or October would make sense. Also, in the first meeting I was asked in regards to car sales, so I think I'd like to add that on my petition. So, I'm able to maybe sell 5-cars and apply for a dealer license, I don’t want to get too heavy into it, but it would be nice to have that availability as well. MM – Is anybody in the audience that would like to speak on, for or against to this petition? None MM - Is there anyone virtually to please raise your hand to speak? None JR - Sounds like you're working at it, and I appreciate that JB - I would like to see him get open BG - I do appreciate the effort that's been put into making this project a success CT - A question for the permit holder, on the parking plan. There was a discussion of you wanting to modify the parking plan, and then a condition that the parking be striped by June 30th. Do you still want to modify the parking plan from the 2017? – TB - I do, I'd honestly would like to keep what Montouri had. It's had a good flow in and out, versus the Mount Wachusett one; they were looking at it for students. So, it doesn't make sense for tow trucks, accessibility and plowing, it makes it more of a pain. You had mentioned to me about using the current parking plan, I can't have 10 employees because there’s not enough parking. It's a 13,000 square foot building, and at my old property on John Fitch Highway, I had 27-parking spots and a 1/4 of the size from this. For the location and the movement there, certainly not going to be anything where you can't move in and out, or create any traffic issues. 9 CT - We wanted the spaces to be striped and you to open, and obviously, you don't want to stripe them more than once, but we have a parking plan that was approved that you can use right away. We would need to see the parking plan that you would propose, if it was different, and Montouri's hadn't provided a plan for you that you could reuse. – TB – Correct, unless I start digging back further into the archives, but personally, I don’t have anything. I would be up painting over the lines that are already existing, until we have a modified plan, but to do what Mount Wachusett used and I can only have X amount of employees. It puts a huge hurt on the business. CT - I would suggest to you, to go with what you already have approved and when you do have a modified parking plan ready, because I expect your business is going to grow, but not all in the first day. – TB – My business here should double from my old location, and I serviced a lot of cars every day. If you can allow me to repaint what's there and I'll do my best to get a modified plan way before the next meeting, I would pay to have everything painted and cleaned, at least that's visible with handicap spots. But to put it down to what it was at 22-spots, two handicapped, so employees are going to use most of the space. CT - I'm not saying that you can't have the additional parking space, what I'm saying is that we need a plan to approve, and if you don't have the plan to approve. I'm going to suggest that you're best off at least going with the plan you have, so that you can open the business with some parking and come back to us to modify it when you're ready. – TB – So, you want me to paint what Mount Wachusett had. CT - Unless you have another plan for us, unfortunately, we can't approve something that we don't have a plan for or doesn't exist. From the beginning, we were looking for an engineered parking plan, so that we have the dimensions laid out on ground. We know that's an expense, but it is required in order for us to approve it. – TB – Honestly, with the investment at this point, I don't mind spending the money CT - I've been a business owner for a very long time, and I have a lot of sympathy for business owners and the difficulties of they need to only incur for expenses. I know that in the particular rental of this building it was a very expensive proposition for you, to secure it before you had the permissions to operate the business. I think the first time you submitted the application this is something that was mentioned to you, an engineered plan was needed. It's up to you whether you want to paint the lines now, or wait until you have a plan and only paint them once. I'm trying to look for a way for you to get your business going sooner. – TB - Expense part was never a concern, the biggest thing is getting somebody to start mapping everything MM - What's there presently? Because one of the conditions is that, it'll operate under the plan approved for the school. – TB - As of right now, so I can only have five employees or less. MM - I don't think the parking plan has anything to do with employees, what we're referencing is the parking plan. We're not restricting how many people can come to your site, but in the near future have a concrete plan if you want to change it and present it to us. Another component is that you will not be conducting motor vehicle sales, which doesn't mean you can't request it. If you want to present us with a revised or a final plan, you probably want to think about that piece of it as well. It sounds you're going to request some automotive sales use, and maybe have a secondary plan that shows how you're going to display vehicles. How you're going to conduct business and an all-encompassing plan, so probably an A&B parking plan. In the meantime, you can operate with the approved current plan. JB – Currently, are there any stripes on the existing parking? – TB – Yes, there's stripes, handicap spots, I'd have to do an exact count it's between 43 and 45 spots. JB - You can't use that until you get the new plan. – TB - That's what I wanted to do CT - The condition we're talking about is the striping of the spaces, and he was to stripe the spaces according to the Mount Wachusett plan by June 30th. So, we approve something that he's not going to be operating under, and I’m not sure when this is going to be accomplished. If the Board wants to grant a delay that's fine, but we're kind of out in left field here, because what we're doing is basically approving a plan without seeing it. – MM - He has until the June 30th date, why don't we do another review in June or July and see if we can nail this down. CT - Why don't we do the review in July, because he's having difficulty getting on hold of somebody to draft a plan for him? I doubt that it's going to be ready and available for the June meeting. – MM - Agreed TB - I will be gone for two weeks on vacation from June 28th to the 18th of July. – MM - Would you be available virtually on July 9th? – TB – Yes, I could do that 10 CT - I believe that the applicant would need to present an application for modification for a different use, if we add on the auto sales and I suggest that he check in with the building commissioner. JR – Motion in the affirmative on ZBA-23-40 under §181.313D12 & § 181.94 to Grant a Continuance on the Review to July 9th, 2024, with all stated condition and amending the review condition #9 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, debris and overgrowth 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 by June 30th, 2024 according to the September 1st, 2017 proposed parking layout. Applicant may request modification of this provision from the Zoning Board at review. 7. Dumpster to be stored inside the structure or inside a screened and gated enclosure 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 of 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 at the review hearing to confirm, change or remove the name of the LLC as an allowed permit holder. 9. Review – July 9th, 2024. (Amended 5/14/2024) RT – Motion Seconded Vote 5–0 to Grant the Continuance on the Review to July 9, 2024 (By Rollcall Vote – CT & BG) ZBA-23-35 Luis Rodriguez 513 WILLIAMS RD 6:30PM 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 MM – There was no one present to speak on, for or against the petition. MM – There was no communication by the applicant in regards to this petition. CT – First hearing was in January 9th, and 2nd hearing on March 12th, on which there was an extension requested by the applicant on that meeting. I think we should consider granting leave to withdraw. BG - Agree with Christine JB – The applicant comes to our city from out of town, builds not a shed, but a barn on his property without getting a request close to the property line. After it's done, we find out about it, we send him a letter and he ignores us twice already. Now he's not here, why don't the Building Department fine him? Maybe that'll get his attention MM - I agree with Mr. Byrne, and I want to move ahead and vote versus leave to withdraw. CT - Let me say that procedurally, I'm going to ask that we have a vote on the motion to withdraw first and then if that fails that we would then go to a vote on the matter. I think most of the members have the same feeling that they haven't been provided sufficient evidence by the applicant that would support a variance. The difference between the two actions is really if he's granted leave to withdraw there's still no permission for that structure to be there, and he's subject to enforcement. He just has the ability within the next two years to resubmit a new application; he doesn’t have the 11 two year ban. At the first meeting while he did construct without permission, he did submit the application, came to the meeting and was interested in compliance. I don't think he met the qualifications. So, where he's not appeared at this last meeting, if he's granted leave to withdraw he has another opportunity to come back and present his case, but if he doesn't and until he does he's subject to enforcement; that would be my point of view CT - Motion in the affirmative on ZBA-23-35 under §181.335 & §181.416 to Grant leave to Withdraw without prejudice JB – Motion Seconded Vote 2–2 to Grant leave to Withdraw without prejudice, Motion Fails (By Rollcall – CT & BG) & (Negative vote – MM & JB) A second motion was made to approve the application as requested. CT - Motion in the affirmative on ZBA-23-35 under §181.335 & §181.416 to Grant the Application relief as requested JB – Motion Seconded Vote 0–4 to Approve the Application as requested. Therefore, request was unanimously DENIED (By Rollcall – CT & BG) ZBA-2023-15 Nadel Antonio 348 ELM ST 6:45PM Continuance: Special Permit under §181.332 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned nonconforming mixed-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 Present was Nadel Antonio (Property Owner and Petitioner) stating that, MM – So, you submitted a plan, and when did you submit? – NA - Maybe a year and a half ago, and then resubmitted a new one with small changes recently, a week ago or two MM - This has been a long case outstanding, so before we even kick this one off. I want to ask the Board, we just received this. Do we want to move ahead tonight? Or do we need time to digest this? JB - Of course, we need time to look at the site MM - I don't want to move ahead tonight with something I just received. CT - I believe that the modifications we recently made to our rules, state that unless we receive a plan by the Thursday before the applicant would automatically be continued to the next meeting. I'm also going to note that the plan I'm looking at, is dated November 30th 2021, it does not state any modification dates to it. So, either I am not looking at the current plan, or the plan has not been recently modified. – JR - That's the old one Madam Chair, the new one is dated February 2nd, 2024 CT - I would state that another reason why I would not be inclined to move forward, I would be inclined to continue this to the next meeting. – NA – Question, when these older plans got submitted, did they go by the Board at all or no? MM - Let's go back in time, in the beginning when we started this project and you submitted a plan to the Board. This was a complex project, and at the time, everybody's concern was the building caving in more than anything. We had a discussion that we were more or less in favor of a 2-family project, but we're not there yet, we didn't approve the plan and we didn't accept it. You submitted it, and at that time, we were really concerned about the first step of demoing the structure for safety. The second step was the foundation, and you're trying to reuse the foundation. Delays getting things done brings us to this, where we are now. So, we haven't accepted anything at this point and everybody needs a chance to digest the newly provided information. So, we're looking at putting you out to July 9th. – NA - That's fine. I had one question, I have a lot 100 feet away, 12 which I intend to use for parking. What do I need to do? A 100-years lease, that way I can combine them together, so I can make that work for the parking. MM - I would say let's discuss it all next month. CT - The Building Commissioner can talk to you about it, but the arrangement that you're going to want to use is an easement that is granted from one property to another. MM - Is anybody in the audience present that would like to speak for, on or against this petition? None MM - Is there anybody virtually that would like to speak for, on or against this petition? None All Board Members agreed on the additional time needed to review the plan. JB – Motion in the affirmative on ZBA-2023-15 under §181.332 & §181.94 to Grant a Continuance on the Application to July 9th, 2024 JR – Motion Seconded Vote 5–0 to Grant a Continuance to July 9th, 2024 (By Rollcall – CT & BG) ZBA-24-3 Dallas Zabala 376 CLARENDON ST 7:00PM Continuance: Special Permit under §181.33 of the Fitchburg Zoning Ordinance to reinstate a vacant/abandoned nonconforming three-family dwelling pursuant to §181.94 located in the Residential A District Map 103 Block 20 Lot 0 Dallas Zabala appeared virtually representing herself for this petition, JB - I do want to apologize for the way I spoke to you on our last month meeting, and I want to thank you for cleaning up that property that quickly. On the next day after the meeting I witnessed that they took away 2-pickup trucks full of trash, and miscellaneous junk from around the property, and they cut all the grass making the property look very good. That's the quickest response I have ever had to anything that I've requested while I sat in this chair, on the Board. If the rest of the building is going to be taken care of in that manner, we're going to welcome you with open arms. MM – Have you met the Building Commissioner after the last meeting? DZ – Yes, I hired a lawyer to do a declaration of restrictive covenants for the parking, which is completed, but they wouldn't provide it until I go sign in front of an authority and pay. I'm planning to do that this Friday MM – So, it’s wise to think you probably need some more time to provide the document. – DZ – Yes, I can provide it for the next meeting, I already have plans for the property. We're going to paint the whole building, and on the plans initially submitted, we have it seeing the kitchen will move and I decided to keep it as it is. At the moment, we are not going to move all those plumbing and electric connections. MM – Would July 9th give you enough time to be able to pull everything together? – DZ - I believe by next month, I will have everything already; I just need to get the declaration of the restrictive covenant. JR - Happy with the progress interested to learn more on June 11th JB - I'm still concerned with the parking being far away, but we'll discuss this given that you're in favor of June RT - I drove by the property last Saturday, it does look pretty great compared to what it was BG - I look forward to reviewing this again in June 13 CT - Were you able to use the procedure of going through the building commissioner instead of coming in front of the board? – DZ - I'm not sure if I've been able to qualify, I met with Felix and we were talking about all the things that have to be done on the building. In order to qualify, more than 50% of the property will be updated, so I believe I qualified. CT - I would direct you to go back to him, leave this pending with us, but if you are able to use that procedure it can happen quicker, and you won't have to come before the Board. – DZ - I will do that MM - I did have conversation with the commissioner this evening, and he did say that that is an avenue they're discussing. JB – Motion in the affirmative on ZBA-24-3 under §181.33 & §181.94 to Grant a Continuance on the Application to June 11th, 2024 RT – Motion Seconded Vote 5–0 to Grant a Continuance on the Application to June 11th, 2024 (By Rollcall Vote – CT & BG) ZBA-24-15 Garrett Patterson 481 MECHANIC ST 7:15PM Dimensional Variance from certain of the terms and requirements of §181.3212 of the Fitchburg Zoning Ordinance seeking a relief for an accessory dwelling unit from the maximum habitable floor area requirement of 800 SF to 1,400 SF from the 15% limit on increased gross area on an existing structure, and to permit the creation of an accessory dwelling unit with in a new proposed single-family construction pursuant to §181.94 located in the Residential A District Map 169 Block 27 Lot 1 Present were Garrett and Susan Patterson (Property owner and Petitioner), Robert Therian (Architect) representing the Pattersons stating that, the current lot is located in the residential district, which allows an accessory use apartment by right. Susan’s parents had bought this lot years ago, to secure any encroachment from the commercial, protect their own property and to build a home for their son Garrett. Garrett's father passed away, which put a catapult wreck into that plan. Now, Garrett wants his mother be able to live with them rather than move somewhere else, and so he's building a brand new large home. It's totally compatible and complementary to the neighborhood; drawings were submitted to the Board with the application. It has the right square footage on the main floor, a full walkout basement, which the design works well for him to have a garage high enough, so he can work on his vehicle. So, the obstacle we encounter is the 800 square feet allowed, the fact that it's not an addition, and it has nothing to do with 15% of an addition of an existing home because it's not an existing home. The City bylaw doesn't address that circumstance, so we at the suggestion of this Board, which is the only option we have on the square footage limitation. We're asking not for the full basement, but for six-hundred (600) additional square feet of what would normally be allowed, as an addition on an existing home. The Pattersons would like to take advantage of the opportunity and be able to use the entire basement area, and there's no obvious reason why this would be detrimental to anybody. We had to meet Conservation to make sure everything is addressed, and structure isn’t visible from the road. The neighborhood is surrounding by different zoning uses, commercial shops, hospital and a church across the street. On the right of the proposed driveway, the Patterson’s currently own and live in that house, which is a vintage home, built in the early 1900s, which needs a bit of repair. MM - Is any member of the audience present that would like speak on, for or against this petition? None MM - Is anyone virtually that would like to speak on, for or against please raise your hand? None 14 RT - My only concern is the third bedroom/office, not so much the square footage. In my opinion, an accessory apartment should have two-bedrooms Max. - Architect - Nothing in the bylaw or the building code, restricts them from having three bedrooms. However, the reason is that they have 3-bedrooms of furniture to bring with them from where they currently live. BG - Why the need for over 800 square feet, to go to 1,400 SF? – Architect - One they can use this space, there is no other intent, but other than planned. CT - Have you addressed the criteria for variance? As you know the initial criteria for consideration of a variance are, shape of the lot, soil, topography or structure, can you address how you meet that criteria? – Architect – Again, the topography with the sloping lot the parameters are there, with side yard requirements and the conservation the issues about a panhandle lot, all dictated what could be done and the physical need. JB - You have access from the 2nd floor to the basement, is there an inside staircase? – Architect - Common front entry, on the third page of the plans. JB - You don't even need the Special Permit, if you make that spare room, a storage room for the upstairs and have an 800 square foot apartment. – Architect - We can easily do, I discussed that with my clients, but we wanted to present you everything we wanted to do. If we can't do 3- bedrooms then that's not an issue MM - I'm assuming this isn't your first visit to a zoning board, so if you need some more time to look at the bylaws and come back with some answers to the variance criteria. I'd like to give that to you but we have other applicants that are waiting, so do you think you need some more time to address what you're presenting with regards to the criteria, or do you want to move ahead tonight? – Architect - We would like to continue MM - What is the square footage of the main dwelling home? – Architect - Around 2000 square feet MM - How many bedrooms – Architect – 3-bedrooms MM - The second unit is going to be a basement unit. – Architect – Yes MM - And it's going to be 1400-square feet. – Architect - That's correct MM – It's going to have three bedrooms. – Architect – Right, also this was the only location we could put that building, based on the setbacks, conservation and the topography. In fact, the foundation is going to be very expensive and extensive, in order to properly accommodate the building. CT - Can you connect the soil shape topography or structure criteria to the hardship you're claiming? – Architect - Susan Patterson is a retired single mom, and having a basement with walkout capabilities is ideal for her. If you look at the topography of the lot, we could have had an option to go up which not make a practical sense when we already have a sloping lot. JR - I support this, I think that based of the topography of the lot that created the design. Based off the design that created the square footage, and I would support this RT - I'm not in disagreement with any of it, but the third bedroom concerns me, and not because of the applicant, but what happens 15 – 20-years down the road. You sell the house and now, it is a two family JB – Agree with Mr. Talbot, and I haven’t seen any circumstances described in warrant of a variance, that can be justified by the construction of the property. When they're building a new building there's no hardships here. CT - I think the applicants are well-intentioned, I think they're trying to accomplish a good goal, which is to build a multigenerational family dwelling. My problem like Mr. Byrne, is connecting the topography issue to the hardship. The real hardships here are 2: One, you're trying to build an 15 accessory dwelling unit, and our ordinance seems to require it start off an existing building. I think it's possible, although it's a stretch to support the argument that there's a hardship, created by the structure in that you would have to first build and then modify it. I do not see any connection between the topography and the lack of the structure or the soil or the shape of the lot that would require an increase in the 800 square feet that is allowed to an accessory dwelling unit. I think that is related to the personal circumstances of the applicant, and I think the argument that has been presented on the hardship is that we want to build a two family and we can't, because that's pretty much what this is. That's not the hardship that a variance can be created on, so my consideration of this is that there are enough grounds to grant a variance from the requirement that they're being existing building. The argument that was made at the end is correct and persuasive and completely in line with the purpose of the ordinance, but the increase in the size of the accessory dwelling unit I don't think is supportable. MM - The inception of the accessory apartment, it has been a wonderful modification to the bylaws, it's been a great relief for a lot of us throughout the city. As a Board member, I've never voted against one, when the accessory apartment Bylaw was written there are some specifics within it. Particularly under 181.3212, Section A #3, enabling owners of single family dwellings larger than required for their present needs, particularly elderly homeowners to share space and the burden of home ownership. So, the intent was large homes, take care of mom and dad or family member. There were some specifics to keep it small, because what's happened over the years, a lot of these big larger single-family homes become two or three-family dwellings. It's created some long-term problems within the city, parking, congestion, burden on the school systems, etc. I also agree with the Chair, there's no correlation of the hardship for soil shape and topography towards this request. There's no hardship at all, because the building doesn't exist. JB - Motion in the affirmative on ZBA-24- under §181.3212 to Grant the Variance from the requirement that an accessory dwelling unit be built within an existing structure. RT – Motion Seconded Vote 2–3 to Grant the Variance for an accessory apartment, Variance requested is DENIED (By Rollcall Vote – CT & BG) JB - Motion in the affirmative on ZBA-24- under §181.32 & §181.93 to Grant the Variance to allow an accessory apartment from 800SF to 1400SF as requested RT – Motion Seconded Vote 0–5 to Grant the Variance as requested. Therefore, the Variance is unanimously DENIED (Voted by Rollcall – CT & BG) ZBA-24-16 Brian Ruberti 776 ASHBY STATE RD 7:30PM Special Permit under §181.333 & §181.313 of the Fitchburg Zoning Ordinance to reconstruct and extend a pre-existing nonconforming commercial greenhouse from 25’X50’ to 24’X84’ pursuant to §181.94 located in the Rural Residential District Map 324 Block 7 Lot 0 Present was Brian Ruberti (Petitioner) stating, I'm representing The Carriage Shed a farm stand nursery in Fitchburg. I deal with mulch, wood chips, plants for 27-years, so been here all my life for 47-years. I’ve been doing this for 47-years, and I have a building that is dilapidated, which is my livelihood. I'm trying to replace and extend a 25’ by 50’ pre-existing nonconforming commercial greenhouse, with a 24’ by 84’ prefab commercial greenhouse, I own the house next to this lot, and there is nobody to the left or around me. On the left next to me is a farmland, so there is anyone around me. 16 MM – Is any member of the audience who wishes to speak on, for or against this petition? Marissa Fleming Ward Five City Council, I'm asking you approve the special permit. I've been living up there for 27 years, which is about how long this Carriage Shed has been in business. They conform to the area; Brian keeps the property well, as his dad did before him. It’s right in line with what we want, in rural residential. Mary Jo Bohart, City economic development director, and I worked closely with Mr. Roberti as he was preparing to submit this petition. It's wonderful what makes Fitchburg unique, our farm and farm stand type of businesses. The locals that have patronized his business, for years, have enjoyed what he does, and the fact is that the existing greenhouse that has served him well is now dilapidated. Due to modern methods, he can access a modular version of that, and that's what's led him to make this proposal. I hope the Board will look favorably on what he seeks to do; it will continue to strengthen what he has been able to do over the years. MM – Note for the records there was no one else remote to speak on, for or against on this application. BG - The business is always well kept, and it is an asset to the city to improve that greenhouse. I noticed on my site visit, that the existing greenhouse seems to be sagging; the new building will allow the petitioner more space for plants and stuff. I'm strongly in favor of it Mr. Talbot, Mr. Reynolds & Mr. Byrne – Had no questions CT - I am curious as to why there is not an issue with the rear dimension, the rear setback is 50- feet in RR and the proposed rear setback is 22-feet. Looking at the plan that was submitted, and it shows Ashby state road in the front, and in the rear boundary in the back of 146.34 feet. It has two buildings, the old and new, depicted on it, and there's a “to be removed” pointed to the old building. Then the new building seems to be set far back, much closer to the rear boundary; is that correct? – BR – Yes, its 30 feet longer, you would be correct CT – So, now there's going to be a setback of 22-feet in the rear, which is not in compliance with the 50-foot setback that is required. – BR - What you said is correct, but I bought the land next to me. My neighbor is Fitchburg High School, which is a mile away from me and that land will never ever be used because is in a trust. I could have asked for an easement, but I didn't want to bother anybody. I grew up on that farm, I milk the cows, baled the hay and I did everything on that farm. So, for acres there’s nobody around me, and there will nobody ever be behind or side of me. CT - Is Arnold Sumner still the owner of the property? – BR – Arnold Jr. and Mark Summer and six other siblings. Mark said that I can have the 25-feet, but there would have been six of them, and I could have asked for the easement but for 25-feet. When there's over 300-acres of land around me, and nothing will ever be built around me. I don't see where the problem is CT - The problem is that it's in violation of the ordinance. I'm trying to determine what the relief is that you're required to build the building. Is there a reason related to the land, why it couldn't be moved forward? – BR - I started this in November, and the first commissioner left. So, I wasted seven months, money everything that is tied up on this project. For 30-feet, I don't think it's an issue being a staple dealing with your City of Fitchburg. I think I paid my dues. MM - The letter from the commissioner addressed the non-conforming use, but it didn't address the setback. So, the applicant made a special permit application relief for a non-conforming, increasing nonconformity, but did not address the variance piece. – CT - That's a very reasonable analysis of the letter that was issued MM – So, where do we go from here? CT - A suggestion would be, whether or not there is a dimensional issue that requires a variance relief. The applicant would still require relief in order to modify a pre-existing use or structure, or expanding use that is non-conforming. We could certainly take a vote on the relief that he is requesting, and be specific about the relief that is being 17 granted, and the relief that is not being granted. It would state it, as a condition of the motion. The allowance of the special permit does not include any granting of dimensional relief, which would otherwise require a variance MM – The plan that was submitted, it's not signed or dated a stamp. – BR - I wasn't going do that, in case I got denied, and I already paid $3000 plus dollars. So, for the extra $5000, I wasn't going have it stamped. If this got approved, I could have the stamp in two days. MM - If the Board votes favorably, you have no problem submitting it to the Building Department. – BR – No, 1000% and that plan isn’t going to change at all. BG - It would be a big improvement to the area, I’m in favor JR - I'm not voting on it, but I’m in favor. I think the extending non-conformity makes sense to me, I think that it would be wrong of the Board and the applicant to ignore the dimensional point. So, we shouldn't be silent about that, or be afraid to talk about it, because that is what it is, and there's some reasons to go along with that. JB & RT – In favor JB – Motion in the affirmative on ZBA-24-16 under §181.313 & §181.94 to Approve the Special Permit with the following conditions: 1. Certified plot plan to be provided to the Building Department prior to building permit being issued. 2. The allowance of the special permit to expand a preexisting nonconforming use of a commercial greenhouse does not include any dimensional relief which would otherwise require a variance. RT – Motion Seconded Voted 5–0 to Approve the Special Permit with conditions (By Rollcall – CT & BG) ZBA-2023-02 Maitland Ishmael 479 Water ST 7:45PM Review of the Special Permit under §181.3332 of the City of Fitchburg Code to reinstate a vacant/abandoned building from one nonconforming use to another less detrimental nonconforming use as a duplex units pursuant to §181.313, located in the Neighborhood Business District at Map 96 Block 5 Lot 0 Present was Maitland Ishmael (Property owner and Petitioner) stating that, the project has been completed and inspections has been satisfied. All conditions have been met, from the roof to the basement and all code compliance under 2024 Massachusetts code. MM – For the record, there was no one present or online to speak on, for or against the petition. MM – We are going to go over the list of conditions: #1-Property to be operated as a two-family with no more than two bedrooms per unit. – MI - Correct #2- Property shall be upgraded to current applicable Building Code as required under said Code. #3- All work shall be completed in a good and workmanlike fashion and properly permitted, inspected and certified to be complete. – MI – Yes MM - Safety inspection to be conducted by the Building Department, had that been performed? MI – Yes #5, c. - Petitioner shall ensure all floors are level, installing jacks, support beams or any other building element necessary to bring the floors to level. Did you have to do any of these? MI – Yes, I had to put sixteen new lally columns in the basement, and the whole floor is level MM – How about the water issues in the basement? – MI – We put concrete in the basement and there’s no more water issues. 18 MM - #6, phase two, roof, doors and windows, siding, engineer plan indicating a location for snow storage in the rear. Did you submit the plan? – MI – Yes, from the same engineer who gave me the codes for insulation, doors, window, and for ERV, which is newly adopted for Mass and I had to put an electric charger. MM - #7, phase three, to repair the granite wall in the rear of the property. – MI – At our last hearing we agreed that according to the engineer, that wall doesn’t belong to my property. MM – Landscaping in the front of the building, including plants, shrubs or trees usually installed in the residential uses, between the structure and the parking spaces, and the corner as well. I visited the property and took some pictures, so we know it hasn’t been done – MI – I don’t think I can do any landscaping on the property, there is not space. MM – Do you have a copy of the decision? – MI – Yes MM – Did you go over to know which conditions were meet, and this is not done – MI – I wouldn’t say not done, there’s no space for it. MM – #7 (c), petitioner shall install green space for residential use in the in the rear yard. So, what we were talking about that we didn't want the rear yard to be parking, we had requested that become a lawn or grass. Presently today, that is still black top. - MI – Right; how do you want me to rip off all the blacktop, and put grass on it. Some conditions doesn’t make any sense MM - I'm not going to disagree with what you're saying, but what I'm going to disagree with is that when you were before the board, we discussed all these conditions, everything was yes, and now it's, I didn't do it. #8, the number of required parking spaces shall be reduced to three spaces as designated on the plan, which will be striped. – MI – Correct #9, snow removed from the parking area shall be stored at the rear of the property as designated on the modified engineered plan or removed from the lot. #10 & 11, property to be kept clean, we're past that point right, review date, past that point #12, applicant shall submit a $5000 deposit to be held in a special account and maybe dispersed or applied under the direction of the ZBA as compensation for any qualified consultation employed by the ZBA regarding the project – MI – Yes that was done #13, if the project is not satisfactorily completed within the 18 months of the date the special permit forfeited funds shall be allocated to the building department’s demolition fund. – CT - I believe the 18 months have not yet run #14, petitioner to install a chain-link fence at least 4 feet in height with posts sunk in the concrete into the ground, along the side rear yard between the rear yard and the driveway/right of way. So, what you put in, is not a chain-link fence, it’s four posts with two pieces of wood and a crossbar. – MI – I don’t know what a chain-link fence is. #15, this special permit shall expire if ownership is transferred from the permit holder prior to the issuance of certificate of occupancy. BG - Wondering if the hand railings to the front door are actually down into the granite or will be secured in some way, because it looks like they're free floating. - MI - The reason it’s loose is, because if we screw holes it would bigger than the screw, so we removed the old screw BG – My question is, if there is a plan to be fixed. – MI – Yes, it is BG - I'm going by the photograph, and it looks like there's a footing for a stairway that hasn't been removed, is there a plan to remove that. – MI – It’s all completed MM - All work shall be completed in good and workmanlike fashion and properly permitted. We extended in good faith the special permit, all these things were going to get done. I'll be honest, I went to look at the property I was pretty disappointed at the exterior, no landscaping's been done, the fence has been put in very haphazardly and nothing's been done to the backyard. It looks like the day you bought it, and our expectation was different from what we all agreed upon. Mr. Reynolds, Mr. Byrne & Mr. Talbot - Had no questions CT – Is the property up for sale? – MI - Yes 19 CT - Do you have a purchase and sales, and the closing date? – MI - Yes CT - What's your currently scheduled closing date? – MI - Would be tomorrow CT - Do you have any plan to remediate any of the issues were brought up, with the conditions? – MI – Yes, those are minor things, and talked to the buyer and he knows I could come back and do those things. CT - What would be your timeline to address these issues? – MI - To fix the hand railing’s shaking? CT - All of the incomplete conditions that were discussed. – MI - When it comes with the back yard, I'm going to be honest; I could not do that yard work. I cannot spend almost $400,000 on the project, and be held for a yard work; I could put my lawyer in front of my line. When it comes with the order of the yard or little things, I don't see any point for that. MM - You can’t or you don't want to? – MI - I don't have the money to be wasting, I cannot be putting money on things that doesn’t add value in the house. MM – Before moving to a motion to approve the Special Permit, I would like the Board to make any recommendation on how to address all these issues. My personal recommendation and I don't think it's the Board's purview, or the applicant’s word. Therefore, we should ask for an inspection done by the building department, and they can provide feedback that says this has been completed. CT - I think would be an appropriate way to get a report on the conditions/ satisfaction, we have a number of conditions that aren't satisfied. We can discuss whether some of them should be waived, or whether they should be continued, but there's a number of important things in that decision that have not been satisfied. I'm certainly not ready to approve the review today. I have a lot of sympathy for the fact that this applicant was caught in the middle of the implementation of the new insulation code, by the state. That increased his cost substantially, at the same time, every person on this Board looked at the project at the beginning and thought the costs would far exceed the budget that was allocated and there was a lot of concern about exactly what has happened. Which is that the project is not complete, and I don't know that this applicant is going to complete it, because he says that his costs have exceeded the value that he's going to get out of this project. I don't think the current state of the project is acceptable for approval. MM - My only recommendation as a condition would be that either to put this out for a month, or that it can be approved based on satisfactory letter from the Building Commissioner that all conditions have been met. Or if the Board have some other thoughts otherwise. JB – Agree with Mr. McLaughlin – MI – The wall cannot be done, its not my wall, so I can’t touch something that belongs to me. So, that one condition I think you have to waive it. BG - I can appreciate all the hard work you've done, but whenever a project like this happens, the devil is always in the detail. I think it's prudent for us to have the Building Commissioner inspect the things, and have him certify the conditions, which are now requirements be completed JR – Does the Board consider waiving any conditions? I think we should review that prior to taking that next step. – MM - If you're asking me, as a Board member, the rear granite wall JR - What number is that? – MM – 7a JR – Is any other consideration for 7B or C? I am okay waiving the whole #7 condition. – MI – I am asking to have my $5000 back MM - Madam Tree, the condition with regards to the deposit, that's if we needed to hire a consultant, right. – CT - The deposit has two conditions #1, if we needed to hire a consultant and that was particularly thinking about the very dilapidated structural condition of the interior of the property. So, if we needed a second opinion on the structural integrity of the property that the funds would be there to do that. Second condition, it's against satisfaction of the conditions, so again at 20 the beginning there were many concerns about whether this project would be completed, due to funding and this was one of the methods of ensuring that the project is completed. MM – So, the $5000 is tied to the conditions. – CT - It is, but could not be used by the city for anything but that consultant if needed. MM - As we sit now, is he entitled to receive those funds back? – CT - We would need to find that this project has been satisfactorily completed in accordance with the Special Permit, and if we didn't find that within the 18 months then those funds were forfeited to the City JB – Motion in the affirmative on ZBA-2023-02 under §181.3332 & §181.313 to Grant a Continuance on the Review to June 11, 2024. Strike condition #7-a, all other conditions to remain, and requesting the building commissioner respond with a letter stating that all conditions have been satisfactorily completed. JR – Motion Seconded Vote 5–0 to Grant a Continuance on the Review to June 11, 2024 (By Rollcall – CT & BG) 1. Property to be operated as a two-family with no more than two bedrooms per unit. 2. Property shall be upgraded to current applicable Building Code as required under said Code. 3. All work shall be completed in a good and workmanlike fashion and properly permitted, inspected and certified to be complete. 4. Construction shall proceed in three Phases as follows, with Petitioner being required to complete each phase to the satisfaction of the Building Department before proceeding to the next phase. 5. Phase One: a. A safety inspection to be conducted by the Building Department. b. Petitioner to comply with the requirements of the Building Department after inspection for safety. c. Petitioner shall ensure all floors are level, installing jacks, support beams or any other building element necessary to bring the floors to level. d. Petitioner to install water mitigation measures in the basement mitigating any air quality issues arising from the moisture in the basement, with sufficient and legal connection to the stormwater system or other legal redirection of water entering or arising from the basement. 6. Phase Two a. Petitioner shall replace the roof, doors and windows, siding, and exterior trim. b. A modified engineered plan indicating a location for snow storage in the rear of the property shall be submitted to the Building Department with a copy to the Board. c. Petitioner may proceed on any interior construction or modifications, but completion of interior work is not required for completion of Phase Two. 7. Phase Three a. (Section removed 5/14/2024) b. Petitioner shall install landscaping in the front of the building, including plants, shrubs or trees usually installed in residential uses, between the structure and the parking spaces. c. Petitioner shall install green space for residential use in the rear yard. 8. The number of required parking spaces shall be reduced to three spaces as designated on the plan dated October 5th, 2018, which shall be striped. 9. Snow removed from the parking area shall be stored at the rear of the property as designated on the modified engineered plan or removed from the lot. 21 10. Property to be keep clean of debris and overgrowth during construction and dumpsters regularly emptied. 11. No certificate of occupancy shall be issued until the Zoning Board of Appeals has found that all conditions of the special permit have been satisfied. 12. Applicant shall submit a $5,000.00 deposit to be held in a special account by the Treasurer and may be disbursed and applied, under the direction of the Zoning Board of Appeals, as compensation for any qualified consultant employed by the Zoning Board of Appeals regarding this project pursuant to M.G.L. c. 44 §53G. Any funds remaining shall be returned to the Petitioner or his written assignee upon satisfactory completion of the project in accordance with this Special Permit and to the City's general fund forfeit. 13. If this Project is not satisfactorily completed within the 18 months of the date this decision is filed with the City Clerk, the forfeited funds shall be allocated to the Building Department’s demolition fund. 14. Permit Holder must request a review hearing before the Zoning Board of Appeals for approval of the conditions as completed as well as submission of the certified parking plan with snow storage designated. 15. Unless this review has been approved and or the conditions president to the certificate of occupancy have been deemed completed by the ZBA within 24-months after the date of the vote granting the special permit. This special permit shall expire and a new application for Special Permit shall be required for this use. 16. Review Date – June 11, 2024. Condition 7 amended by the Board on May 14, 2024 6. MISCELLANEOUS 7. ADJOURNMENT 22