City Council

HEARING BEFORE THE CITY COUNCIL, JULY 24, 2006 Hearing opened at 6:45 P.M. with Councillor Marchand, Chair of the Legal Affairs Committee, presiding. This is a continuation of the July 10, 2006 public hearing. All members were present except Councillor Lanciani. Councillor Dombrowski stated that he will abstain from voting on this as the Matarese’s are clients of his. The following PETITION was the subject of the hearing. 87-06 Joseph Altman: Grant a Special Permit to use an existing building at 195 Hamilton Street, located in an industrial zone and shown on Assessor’s Map 229 as Lot 3, for a consignment shop. Councillor Marchand said that Mr. Lanciani is not here tonight but wrote a letter dated July 13, 2006, stating his support of this petition. Joseph Altman, the petitioner and John Matarese, the owner of the property were present. Mr. Altman explained that his business is now located in Fitchburg, but would love to move his business to Leominster. He said he is down sizing his business and that the building on Hamilton Street is half the size of his current building. Mr. Altman said that they are open seven days a week. He said at the current location in Fitchburg they only had six parking spaces for six separate businesses. He said at this location they have ten parking spaces. He said he feels this will be sufficient for the number of customers that they have. Mr. Altman said they are a small business, hard working and go home to their families at night. He said the bulk of the business is that he is an estate liquidator, he goes to the estate and sells most of the items there and what is left over comes into the store. Councillor Marchand asked if he would be holding any auctions at the site. Mr. Altman said absolutely not. Councillor Marchand asked how many customers per day he will be getting. Mr. Altman said approximately fifteen customers per day. Councillor Marchand asked how they can separate the parking at this building from the industrial area right next to it. Mr. Altman said that it was a retail store before and that designated parking spot signs are posted and he said that it is his job as a responsible owner to educated their customers as to which spots they can use. Mr. Matarese said that he has been the owner of this property for twenty years. He said when the property was High Country Work Wear, they generated quite a bit of traffic. Mr. Matarese said they had to put up signs up designating Liberty parking only and that it worked out well. Mr. Matarese said there has been a retail building there the entire time he has owned the property. Councillor Marchand asked if there is any other industrial use for this property or if Mr. Matarese sees the industrial building expanding its offices or the work station into this property? Mr. Matarese said at some point this could happen and he would then have to ask Mr. Altman to find another location. He said they did advertise this property in the paper for ninety days and did not receive any calls. No one in the audience spoke in favor or opposition. Councillor Salvatelli said he was in support of this petition. Councillor Tocci said that Mr. Altman had called her and was very straight forward and honest with his intentions and that she is in support of this petition Councillor Nickel asked in comparison, how much business High Country Work Wear was bringing in. Mr. Matarese said probably three times as much business. Councillor Nickel said he intends to support this petition. Councillor Freda said she is also in support of this use. Councillor Marchand said they appreciate that they came down before the City Council tonight. HEARING ADJOURNED: 7:00 P.M. Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, JULY 24, 2006 Hearing opened at 7:01 P.M. with Councillor Freda, Chair of the Ways & Means Committee, presiding. All members were present except Councillor Lanciani. The following PETITION was the subject of the hearing. 3-07 William Plant: Amend the license for J.C. Fenwicks Pub, Inc. d/b/a Tinkums, from one pool table to nine pool tables. Councillor Freda said that this public hearing was advertised July 17, 2006 in the Sentinel and Enterprise. She said the City Council received positive recommendations from the License Commission, the Police Department and the Treasurer & Collector’s office. Councillor Freda said she went to the property and there were extensive renovations being done. Mr. Plant, the owner, said he may not be able to be at the hearing tonight. He said he would try to send somebody else to represent him. No one representing the applicant was present. No one from the audience spoke in favor or opposition. Councillor Nickel said that because this has been before the License Commission and they approved it, he will support the petition. Councillor Marchand expressed his concern with the parking at this site. Councillor Freda said there is a municipal parking lot right next to the property. HEARING ADJOURNED: 7:07 P.M. Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, JULY 24, 2006 Hearing opened at 7:15 P.M. with Councillor Marchand, Chair of the Legal Affairs Committee, presiding. All members were present except Councillor Lanciani. The following PETITION was the subject of the hearing. 98-06 Joel H. Baker, Baker Cadillac: Grant a Special Permit to expand the current Baker Cadillac dealership with a second Suzuki dealership on an adjacent lot, located at 34 Mead Street as shown on Assessors Map 266, lot 6, located in a Commercial zone within the flood plain. Introduced and made part of the record were the following: A. Petition 98-06 submitted by Baker Cadillac, 495 Main Street, Leominster, MA with accompanying plan entitled “Baker Suzuki Site Development Plan” prepared by William D. Hannigan, Registered Civil Engineer, Hannigan Engineering, Inc., 8 Monument Square, Leominster, MA dated March 28, 2006 and revised through June 16, 2006. B. Notice of public hearing published in the Sentinel & Enterprise on July 10, 2006 and July 17, 2006. C. Positive recommendations were received from the Health Department, the Conservation Commission, the Fire Department and the Planning Department. D. The Building Inspector recommended denial because property is currently zoned Industrial and that this is not an allowed use within that zone. E. The Department of Public Works said they cannot recommend acceptance because in the letter from Hannigan Engineering to the City Council it states that the flood plain was established in 1982, the flood plain was revised in 1989 after the building was taken down in 1987. Mr. LaPointe said the 1989 map should be used to establish the flood plain and the applicant should also submit flood zone calculations. Councillor Marchand said for the record, the recommendation from the Planning Department was sought after because it had not been received. He said we received this recommendation today at 9:51 A.M. and although the Planning Board had met prior to the Legal Affairs Subcommittee meeting, they did not have the recommendation it time for the meeting. Councillor Marchand asked that a letter be sent to the Planning Director asking her to submit the Planning Boards recommendations before the Legal Affairs subcommittee meeting when possible. Councillor Marchand said a question regarding an error on the application was sent to Kopelman and Paige for an opinion and the following letter was received in response from Brian Riley. HEARING BEFORE THE CITY COUNCIL, JULY 24, 2006, continued Dear Ms. Bouchard, The applicant wants to build an addition to a dealership, and it is located in the Flood Plain overlay district, requiring a special permit. In the application, the property was described as being in a Commercial District; you have determined, however, that it is actually located in an Industrial District. This is apparently not an issue as to eligibility for the special permit. While this does make the legal advertisement and notices incorrect, in my opinion, the Council may proceed with the hearing as long as the applicant understands the mistake and doesn’t want to readvertise. This is a relatively minor error, in my opinion, and would not seem to prejudice the applicant or anyone else that received notice. For example, if the address was listed incorrectly, I would say it should be readvertised, because those who read it would be informed of where the parcel is – defeating the whole purpose of the notice. Here, however, as long as the abutters and others required to receive notice did receive it, it seems that would be hard to claim ignorance or prejudice based on the misidentification of the District, as long as the location of the parcel was correct. I would notify the applicant, however, that if he chooses to go forward, he runs the risk of giving a potential claim against the permit (if granted) to someone who opposes it. For example, an abutter typically claims that the permit granting authority failed to comply with the ordinance, or make unreasonable findings, illegal conditions, etc. Here, an abutter could also cite an incorrect legal notice. As I said, however, I don’t see this as a compelling argument, since there is no prejudice to anyone that received notice; they still knew where the parcel is, what is being sought, and when the hearing was. As long as the applicant is willing to go forward on Monday, in my opinion, the Council can go forward with the hearing despite this error. If you have further questions, please feel free to contact me. Very truly yours, Brian W. Riley, Esq. Kopelman and Paige, P.C. Councillor Marchand said that they received a letter from the applicant’s engineer, Hannigan Engineering, and he read into the record. William D. Hannigan, PE President Councillor Marchand also read the following letter from Hannigan Engineering into the record. Dear Councilors, On behalf of the applicant, JH & EK Baker Realty Trust, Hannigan Engineering, Inc. would like to request that the Public Hearing scheduled for July 24, 2006 be re-scheduled for August 14, 2006, at a time to be determined by the Council. This project is before the Council for a Special Permit for the construction of a new automotive dealership on Mead Street in Leominster, with a portion of the site work falling within the Flood Plain. The requirement for a Special Permit falls under Article V of the Leominster Zoning Ordinance. HEARING BEFORE THE CITY COUNCIL, JULY 24, 2006, continued It has come to our attention that the original application was submitted with the Zoning District labeled as “C” for commercially zoned land. In fact, the subject parcels of land are within the Industrial Zone. The reason for this request is to allow the project application to be modified and, thus to be re-advertised, prior to taking testimony at the Public Hearing. This correction has been made on a modified first page of the application and submitted to the City Clerk’s office under separate cover. Should you have any question, please do not hesitate to contact me at this office. Sincerley, HANNIGAN ENGINEERING, INC. William D. Hannigan, PE President The petitioner, Joel Baker, 21 Written House Road, Worcester, MA, was present. He said that he was comfortable with what these letters stated. Mr. Baker said that he went before the License Commission and that it is all set as long as he got all the approvals from the City Council and the Zoning Board of Appeals. Councillor Marchand asked when they were going before the Zoning Board of Appeals. Mr. Baker said that they will be in front of the Zoning Board of Appeals on Wednesday, July 26, 2006. Councillor Rowlands said he disagrees with Brian Riley’s decision. He said Industrial makes a difference in terms of special permitting, if it is in a Commercial or Business B then the Zoning Board of Appeals is the special permitting body; if it is in Industrial, than the City Council is the special permitting body. Councillor Rowlands said he doesn’t believe the Zoning Board of Appeals has authority in the Industrial zone. He said the City Council should be the special permitting authority for both the zoning issue as well as the floodplain issue. Councillor Salvatelli said the City Council has the authority to allow two Special Permits; one being the Floodplain issue and the other for the use in the Industrial zone. He said there will have to be a hearing for both of these issues, and that they can be both in the same evening. Councillor Salvatelli said he thinks the petitioner was sent to the wrong boards and both of these Special Permits should be through the City Council, not the Zoning Board of Appeals. Mr. Baker said he was told that they are applying to the Zoning Board of Appeals for an extension of an existing non- conforming use as opposed to a Special Permit. Councillor Marchand said the point being raised is regarding the latest legislation that says if you are looking to utilize an Industrial site for Commercial, it is required that you come before the City Council for a Special Permit with that specific use in mind. Councillor Rowlands said that up until a very short while ago, an automobile dealership was not allowed in an Industrial zone and there was no way of allowing it unless the parcel was rezoned. He said within the last six months we have added to the laws that allow this to be done by a Special Permit from the City Council. Councillor Dombrowski said that the application said it is in a Commercial zone, but the plan submitted said it is in an Industrial zone, so we don’t know for sure which zone it is. Councillor Marchand said we will not open up this hearing to the public tonight because we will be continuing the Public Hearing. He said we just had some dialogue regarding the process of this petition because the petitioner was present, it had nothing to do with the merit of the project. Councillor Marchand said we will move forward with an amendment to the petition and resolve the issue regarding which board they need to go before. Hearing adjourned at 7:40 P.M. and will be continued to a date to be announced. REGULAR MEETING OF THE CITY COUNCIL, JULY 24, 2006 Meeting called to order at 8:00 P.M. Attendance was taken by a roll call vote; all members present except Councillor Lanciani. The Committee on Records reported that the records were examined through July 10, 2006 and found to be in order. The records were accepted. The following COMMUNICATIONS were received, referred to the FINANCE COMMITTEE and given REGULAR COURSE. C-2 Relative to the appropriation of $850.00 to the Health Department Expense Account; same to be transferred from the Emergency Reserve Account. C-3 Relative to the appropriation of $2,500.00 to the Planning Board Expense Account; same to be transferred from the Emergency Reserve Account. REGULAR MEETING OF THE CITY COUNCIL, JULY 24, 2006, continued The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, and given REGULAR COURSE. A hearing was scheduled for August 14, 2006 at 7:15 P.M. Vt. 8/0. 6-07 National Grid: Leominster Connector: Install one solely owned pole and remove two solely owned poles on Leominster Connector beginning at a point approximately 200 feet east of the centerline of the intersection of Mechanic Street and Commercial Road and continuing approximately 144 feet in an easterly direction. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, and given REGULAR COURSE. A hearing was scheduled for August 14, 2006 at 7:20 P.M. Vt. 8/0. 7-07 National Grid: Mechanic Street: Install one solely owned pole and remove one solely owned pole on Mechanic Street beginning at a point approximately 109 feet north west of the centerline of the intersection of First Avenue and continuing approximately 17 feet in a northwesterly direction. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, and given REGULAR COURSE. A hearing was scheduled for August 14, 2006 at 7:25 P.M. Vt. 8/0. 8-07 National Grid and Verizon New England, Inc.: Mechanic Street: Install one jointly owned pole on Mechanic Street beginning at a point approximately 62 feet northwest of the centerline of the intersection of First Avenue. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, given REGULAR COURSE and referred to the Department of Public Works, the Police Department, and the Fire Department. 9-07 David E. Rowlands: Remove the designation of “One-Way” for Craven Drive and remove the associated signage. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE and given REGULAR COURSE. 10-07 Sergeant Dale M. Ducharme, Leominster Police Department: Amend Leominster City Ordinance, Section 13- 33 “Schedule of Parking Fines” to reflect increases in parking violations in Groups A through E and remove “Blocking Wheelchair Ramp” from Group D and add to Group E. The following PETITION was received, referred to the WAYS & MEANS COMMITTEE, and given REGULAR COURSE. 11-07 Robert Salvatelli: Request that the appointment of Deanna McNamara as Assistant City Clerk on August 8, 2005 be made retroactive to July 1, 2005. The following APPOINTMENT was received, referred to the WAYS & MEANS COMMITTEE and given REGULAR COURSE. Leominster Cultural Council – Jane Maguire – term to expire April 15, 2009. Upon recommendation of the WAYS & MEANS COMMITTEE, the following RE-APPOINTMENT was CONFIRMED. Vt. 8 “yeas.” Cemetery Commission – Theresa Basque – term to expire April 15, 2007. Upon recommendation of the FINANCE COMMITTEE, the following COMMUNICATION was GRANTED and ORDERED. Vt. 8 “yeas.” C-1 Relative to the appropriation of $10,400.00 to the Cemetery Salary and Wages Account; same to be transferred from the Cemetery Perpetual Care Income Account. ORDERED: that the sum of Ten Thousand Four Hundred Dollars ($10,400.00) be appropriated to the Cemetery Salary and Wages Account; same to be transferred from the Cemetery Perpetual Care Income Account. Upon request of the PUBLIC SERVICE COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 8/0. 1-07 John P. Bulger: Explore the possibility of creating an Ordinance in residential districts to restrict any water run off from another property which is detrimental or changes the character or soil conditions of affected property. REGULAR MEETING OF THE CITY COUNCIL, JULY 24, 2006, continued Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following COMMUNICATION was GRANTED. Vt. 8/0. C-145 Dean J. Mazzarella, Mayor: Amend Section 22-114 of the Leominster Zoning Ordinances entitled “Existing Accessory Dwelling Units” to allow any accessory dwelling unit existing in a single-family residence on the effective date of this article, continue in use, although not originally authorized under the Zoning Ordinance, provided that the record owner of the residence provides a notarized letter as prescribed in Section 22-112 of this article. A pre-existing accessory dwelling unit shall be considered grand-fathered provided that the In-Law unit was constructed with a building permit or is recognized by the Assessor’s Office as being an approved In- Law unit. Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following COMMUNICATION was GRANTED as AMENDED. Vt. 8/0. Amended to add the phrase “provided that the Board finds that such change, extension or alteration is not substantially more detrimental than the existing nonconforming use to the “neighborhood” to section 12.3.1.6. C-146 Dean J. Mazzarella, Mayor: Amend Section 22-12 of the Leominster Zoning Ordinance entitled “Nonconforming Uses and Structures” by deleting section 12.3.1 through 12.3.2.3 in its entirety and inserting sections 12.3.1 through 12.3.1.7 regarding changing, extending or altering a Pre-existing Nonconforming Structure or Use; or a Conforming Use on a Pre-existing Nonconforming Lot or in a Pre-existing Nonconforming Structure. Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was GRANTED. Vt. 7 “yeas”. Councillor Dombrowski abstained due to a possible conflict of interest. 87-06 Joseph Altman: Grant a Special Permit to use an existing building at 195 Hamilton Street, located in an industrial zone and shown on Assessor’s Map 229 as Lot 3, for a consignment shop. Upon request of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 8/0. 98-06 Joel H. Baker, Baker Cadillac: Grant a Special Permit to expand the current Baker Cadillac dealership with a second Suzuki dealership on an adjacent lot, located at 34 Mead Street as shown on Assessors Map 266, lot 6, located in a Commercial zone within the flood plain. Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was GRANTED. Vt. 8/0. 2-07 David Rowlands: Place a stop sign on Ridgewood Drive at the intersection of White Street and Ridgewood Drive. Upon recommendation of the WAYS & MEANS COMMITTEE, the following PETITIONS were GRANTED. Vt. 8/0. 3-07 William Plant: Amend the license for J.C. Fenwicks Pub, Inc. d/b/a Tinkums, from one pool table to nine pool tables. 4-07 Carol and David Shields: Renew the license for three pool tables at South Leominster Lounge, d/b/a Forte’s Lounge, 1030 Central Street. Upon request of the WAYS & MEANS COMMITTEE, the following PETITION was TABLED. Vt. 8/0. 5-07 David Rowlands: Request that all new appointments to Boards and Commissions shall be residence of the City of Leominster. The following ORDINANCE was read once and adopted as presented. A hearing was scheduled for August 14, 2006 at 7:30 P.M. Vt. 8 “yeas” 1st Reading Ordinance – Amend Chapter 13, Section 13-34, of the Revised Ordinances entitled “No Parking on Certain Streets” by inserting “Blossom Street (east side), from West Street northeasterly for a distance of twenty-five feet.” The following ORDINANCE was read once and adopted as presented. A hearing was scheduled for August 14, 2006 at 7:35 P.M. Vt. 8 “yeas.” 1st Reading Ordinance – Amend Chapter 13, Section 13-52 of the Revised Ordinances entitled “Fifteen –minute Parking” by inserting “no person shall park a vehicle for longer than fifteen minutes at any time during the drop-off and pick-up times opposite the business at 420 Lancaster Street, on the south side of Lancaster Street between the intersections with Litchfield Street and Elm Hill Avenue.” REGULAR MEETING OF THE CITY COUNCIL, JULY 24, 2006, continued The following ORDINANCE was read once and adopted as presented. A hearing was scheduled for August 14, 2006 at 7:40 P.M. Vt. 8 “yeas.” 1st Reading Ordinance – Amend Chapter 13, Section 13-77 of the Revised Ordinances entitled “Stop Signs” by deleting “Fourth Street, against north and southbound drivers at Spring Street,” and further by inserting “Spring Street, against east and westbound drivers at the intersection with Fourth Street.” Under New Business Councillor Marchand said that MGL allows the Planning Board to meet twice a month; and what he believes is that in the months of July and August the Planning Board only meets once a month. Councillor Marchand said that what is happening is things are getting backed up. The Planning Board said the reason for this is because of vacations and members would be absent. Councillor Marchand said he believes MGL allows a Planning Board member to view a meeting that they missed and then would still be able to vote on that particular matter. Councillor Marchand said he feels that the process is being stalled for the City Council. Councillor Freda said that the MGL, which allows board members to view a meeting, has to be accepted by the City Council in order for them to be able to do that. She said it is a relatively new law and it covers the Conservation Commission as well. Councillor Salvatelli said that on Thursday night at 7:00 P.M. there is a special event being put on by the Veterans Office. There are two veterans being honored and also Donald Christian will be recognized for his medal of honor. MEETING ADJOURNED: 9:10 P.M. ________________________________________________ Lynn A Bouchard, City Clerk and Clerk of the City Council