City Council

HEARING BEFORE THE CITY COUNCIL, OCTOBER 23, 2006 Hearing opened at 7:15 P.M. with Councillor Marchand, Chair of the Legal Affairs Committee, presiding. All members were present. The following PETITION was the subject of the hearing. 13-07 Susan Chalifoux-Zephir: Grant a Special Permit to use an existing building located at 307 Whitney Street , located in an Industrial zone and shown on Assessor’s Map 569 as Lot 19, for a restaurant. Introduced and made part of the record were the following: A. Petition 13-07 submitted by Susan Chalifoux-Zephir, 437 West Street, Leominster, MA dated October 10, 2006 which included an Architect’s rendering of renovated building, First Floor Plan and Architect’s preliminary site plan with parking. B. Notice of public hearing published in the Sentinel & Enterprise on September 18, 2006 and September 25, 2006. C. Positive recommendations were received from the Planning Department and the Department of Public Works. D. A recommendation from the Fire Department said they can support the granting of a Special Permit for this venture, however they would ask that the conversion of the existing dry-pipe fire sprinkler system to wet pipe type, the installation of complete fire alarm equipment as required by the Fire Act of 2004 and the connection of all this hardware to the municipal Fire Alarm Office via a radio master box be made a condition of the permit. E. A recommendation from the Building Inspector said that he was unable to comment at this time as he would need to see a better layout of the property that included parking, water and sewer, drainage, traffic flow, etc. F. A recommendation from the Board of Health said that all restaurants must comply with all aspects of the Board of Health Regulations, the Food Code and the Plumbing Code. This includes an exterior grease trap to separate soluble grease from the kitchen flow before it enters the city’s sewer line. Also they questioned how traffic and parking associated with the restaurant will affect the abutting residential properties (noise, exhaust, lights, etc)? How will the HVAC units, fans, blowers or other electrical components on the outside of the building (noise, odor, etc.) affect the abutting residential properties? How will traffic associated with the restaurant affect the existing traffic patterns at Whitney and Mill Streets? Susan Chalifoux-Zephir, the applicant, was present. Ms. Zephir submitted a hand out which consisted of architect’s renderings, first floor plans and preliminary site plans and answers to previously asked questions. Ms. Zephir said she did not have the restaurant manager with her tonight becuase she doesn’t have a tenant as she is developing this herself and she is here to represent the project. She said that she did go to the Planning Board meeting and they did unanimously support the project with the understanding that it would have to come before the Planning Board for Site Plan Approval. Ms. Zephir said she is completely aware of the concerns that people in the area would have with parking, lighting and exhaust and those are the things she would work with the Planning Board on. Ms. Zephir said that she talked with people in the neighborhood and dropped off a letter introducing herself and the project so that people would hear about it from her first. She said she hasn’t had any real questions asked to date. Ms. Zephir said she would definitely work with the neighbors. Ms. Zephir said the building is called the Saxon Trade Building and was formerly used to educate children in the city in industrial trades. She said the building is approximately 22,300 square feet and the portion she is talking about tonight is about 3,500 square feet brick building on the side of the building, which was the boiler room. She said this portion would be used for the restaurant, and a portion of the wooden building in the back for the kitchen. The proposed establishment would be a family style pub type, restaurant consisting of 80 – 100 seats with 25 – 30 employees. Ms. Zephir said that the hours of operation would by Tuesday through Sunday from 11 A.M. to midnight. She said she looked at the parking regulations and feels there will be ample parking. She said the preliminary plan includes 62 parking spaces. Ms. Zephir said that she would comply with all building and fire codes. She said the building is currently being used for old warehouse space. She said it really isn’t built for current industrial uses because the ceilings are too low, it has no elevator and there are big support beams throughout. Councillor Marchand asked if the architect was with her tonight and if she has an engineer. Ms. Zephir said her architect is not with her and that she does not presently have an engineer. She said her plans were done by David Zephir, her brother-in-law. Ms. Zephir said she is just starting with these drawings as preliminary plans and would go forward with more detailed architectural drawings once they know that the Special Permit was approved. David Letters, 821 Union Street, spoke in favor of this petition. Mr. Letters said he has worked with Ms. Zephir at various public events and he knows her to be a person of very high character and virtues and a person who could take that unsightly building and turn it into a very nice area. No one in the audience spoke in opposition. Councillor Dombrowski asked if there is going to be a bar and how the layout would be. Ms. Zephir said that they will be having a small bar. HEARING BEFORE THE CITY COUNCIL, OCTOBER 23, 2006, continued. Councillor Rowlands asked if this application falls under the Use Variance Special Permit. Councillor Marchand said yes, that is the type of Special Permit. Councillor Rowlands asked if Ms. Zephir has gotten any feedback from abutters. Ms. Zephir said she has gotten some feed back from abutters, but not a whole lot, and what she got was positive. Councillor Rowlands asked if there would be music or entertainment. Ms. Zephir said no. Councillor Rowlands said part of this Special Permit says that there can be no reasonable industrial use for this land. He asked how long she has owned this piece of land and has there been any industrial interest in it. Ms. Zephir said she has owned the building for approximately 15 years and it has been used for cold storage for the warehouse. She said there has been minimal interest for industrial use. Ms. Zephir spoke to a realtor who said there is a lot of industrial space within the city which ranges from old industrial to more modern industrial space which is still vacant. She said there is not a lot of interest in industrial space for a building of this size and given that it is old construction. Councillor Rowlands said that this restaurant proposal is only for a small portion of the building, is the plan to do this in phases. Ms. Zephir said yes, the plan is at this point to do it in phases, by first clean up the outside of the building, do some siding and put in some new windows and then begin with the brick portion of the building for the restaurant. She said several years ago there was a marketing study done for the building and the highest and best use is a combination of industrial/office space along with commercial/retail and a restaurant; a mixture of uses. Councillor Rowlands asked if sections #1, 2 and 3, shown on the plan as retail, are still being used for storage. Ms. Zephir said yes they are. Councillor Rowlands asked whether it would be better to do this as one Special Permit or to do it individually. Ms. Zephir said from an owners prospective, that would make the most sense because it is hard to go forward and get tenants without the Special Permit in hand. Councillor Rowlands said he thinks this is going to be difficult with some of the space still being used as industrial space. He said one of the major criteria for this Special Permit is that there is no other reasonable industrial use. He said if there was an overall plan for the whole building being commercial/retail, it would make it a lot easier. Councillor Lanciani said he would rather see it done as one Special Permit for the whole lot as well. Councillor Nickel said it looks like a good set up. He asked if there will there be access to the parking from both William Street and Bishop Street. Ms. Zephir said there would be. Councillor Tocci asked if the restaurant is facing Bishop Street and the retail on Whitney Street. Ms. Zephir said that was correct. Councillor Salvatelli asked if Ms. Zephir owns both buildings. Ms. Zephir said that she only owns the one building. She said there are several small businesses that lease space in the other building. Councillor Salvatelli said it looks like this is really a mixed use area. He said he agrees, he would like to see a comprehensive plan with everything in its completion stage and do one Special Permit. He said he feels this will improve the area. Ms. Zephir said she does have a preliminary plan for the whole area but she didn’t bring it with her because she thought this Special Permit was just for the one specific use. She asked if they would review a plan conceptual plan. Councillor Marchand said there is specific language of the legislation that calls for a special permit specifically for a use. He said that whether he agrees with his colleagues or not about combining the whole plan, we have to look at each unit individually according to the legislation on this type of special permit. He said we have been consistent with this in the past and said that we have to continue to be consistent. Councillor Marchand said they will need a specific engineering design on the building and they would also need to know the exact square footage in question. Councillor Marchand asked if they will be serving liquor and if so, do they have a license. Ms. Zephir said they have applied for a liquor license, but they will not be awarded the license without the special permit for the use. HEARING BEFORE THE CITY COUNCIL, OCTOBER 23, 2006, continued Councillor Marchand said the last thing that needs to be resolved is the mitigation that has been presented by the Board of Health and the Fire Department. He said that is where an engineer might help to come up with a plan and that they would be made conditions of the Special Permit. Ms. Zephir said she completely understands and fully supports both the Fire Department and the Health Department with the things they have to enforce. She said no construction would be done without full compliance with all local fire codes and all Boards involved. Councillor Marchand asked if there would be any industrial tenants once the restaurant opens and if there is, how would it work in harmony with the restaurant. Ms. Zephir said she would expect there would be some industrial use in the building and that the overall concept for the building includes a mix of commercial, industrial and retail. Councillor Rowlands said there are a couple of different ways she could go with this project. He said Use-Variance is the most difficult because it deals with a specific tenant, the land stays industrial and when that tenant leaves it converts back to industrial and applicant would have to go through that process for each change in tenant. Councillor Rowlands said another process would be rezoning; to rezone from industrial to commercial. Councillor Rowlands said the other option would be Mixed-Use which requires less than 20 acres, which this falls under, and requires a Special Permit, but it allows for the whole site, you don’t have to come back for each tenant. Councillor Rowlands feels options two and three are better options for this project, it gives more flexibility. He said Use-Variance has too many restrictions and it has to have no reasonable use for Industrial. Councillor Marchand asked if there will be handicap accessibility. Ms. Zephir said there will be. Councillor Marchand asked if she wanted to take some of the square footage from the retail space with 1,540 S.F. as a buffer just in case the square footage goes over what she has planned. He said if it ends up being less square footage, that is acceptable, but if it goes over, she would have to come back before the City Council. Ms. Zephir said that would be a good idea. Councillor Nickel asked if that building is in the floodplain. Ms. Zephir said her understanding is that it is not in the floodplain. Councillor Tocci asked if she will be putting in an elevator for the other floors. Ms. Zephir said currently there are no plans to put in an elevator. Councillor Tocci asked if anyone has talked to her about Mixed-Use and being able to have more flexibility. Ms. Zephir said the Building Inspector told her this was the process that she needed to follow. Councillor Salvatelli asked if this is approved, will there be conditions. Councillor Marchand said there would be the conditions from the Fire Department and the Board of Health. Councillor Dombrowski asked if this were approved tonight, what would be the time table for filing Site Plan Approval with the Planning Board. Ms. Zephir said probably two to three months. Councillor Dombrowski said he likes the concept of this project but feels uncomfortable without knowing who the tenant is. Ms. Zephir said she and her husband own the building and would be running the business. She said she would hire people with specific restaurant business knowledge, but she would be the owner and the one who would be holding the liquor license. Ms. Zephir said she has extensive business experience. Councillor Dombrowski said his concern is that once you have a Special Permit for the use of a restaurant, it can be used for any restaurant. He said restaurants are a broad term and can be used many different ways and liquor licenses can be transferred. Councillor Dombrowski said they need safeguards in place for the future. Councillor Salvatelli said his concern is that if another tenant came in and as long as they still used it as a restaurant; they would not have to come back before the City Council. Councillor Marchand said the Building Inspector and License Commission would govern the specifics but the City Council cannot micromanage beyond this project. The City Council can only give it a specific use and square footage that will be conditions on the Special Permit. Councillor Dombrowski said he thinks this application is lacking in specifics to grant this Special Permit. Councillor Rowlands said he would like to keep the hearing open. He said he feels this is a Mixed-Use project. Councillor Rowlands said the last sentence in the ordinance says “in granting this permit, the City Council must find that no reasonable industrial alternative is available to the applicant”. He thinks the applicant will have a hard time in legal terms if she has half HEARING BEFORE THE CITY COUNCIL, OCTOBER 23, 2006, continued of the building being used as industrial and half being used as a restaurant. Councillor Rowlands said he thinks this is a classic mixed use environment under twenty acres with an industrial element, and a commercial element. Councillor Marchand said we will leave the hearing open and said he would like Ms. Zephir to come to the next Legal Affairs Subcommittee meeting. Ms. Zephir asked if she could get copies of all of the referral letters. HEARING ADJOURNED: 8:30 P.M. Lynn A. Bouchard, City Clerk and Clerk of the City Council REGULAR MEETING OF THE CITY COUNCIL, OCTOBER 23, 2006 Meeting called to order at 8:00 P.M. Attendance was taken by a roll call vote; all members present. A recess was called at 8:02 to continue the public hearing and hold a public forum. Meeting reconvened at 8:49 P.M. A motion was made and seconded to go into Executive Session under the provisions of Chapter 39, Section 23B of the Massachusetts General Laws. Voted by roll call. Vt. 9 “yeas.” Councillor Salvatelli said the regular meeting would continue at the conclusion of the Executive Session. Meeting reconvened at 9:10 P.M. Councillor Salvatelli explained to the public that the City Council was willing to accept a remand in regards to the Special Permit decision for the Harding case on Industrial Road. Councillor Marchand said that as agreed upon in Executive Session that the City Council will accept the remand of the Special Permit decision for purposes of stating the findings on which the decision to deny the Harding Special Permit application was based and that the Council has discussed in Executive Session the legal implications of making certain of those findings prior to coming into open session to take a vote. A recommendation from the Legal Affairs Committee is to accept the remand. Vt. 9 “yeas.” The following COMMUNICATIONS were received, referred to the FINANCE COMMITTEE and given REGULAR COURSE. C-24 Relative to the appropriation of $2,000.00 to the Conservation Expense Account; same to be transferred from the Wetland Fees Reserved for Appropriation Account. C-25 Relative to the appropriation of $400.00 to the Health Department Expense Account; same to be transferred from the Emergency Reserve Account. The following COMMUNICATION was received, referred to the LEGAL AFFAIRS COMMITTEE and given REGULAR COURSE. C-26 Dean J. Mazzarella, Mayor: Request that a donation account be established for Traffic/Signal Improvements as authorized by Massachusetts General Laws, Chapter 44, Section 53A. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE and given REGULAR COURSE. A hearing was scheduled for November 13, 2006 at 7:00 P.M. Vt. 9/0. 30-07 National Grid and Verizon New England, Inc.: First Avenue: Install one jointly owned pole on First Avenue beginning at a point approximately 200 feet south of the centerline of the intersection of Mechanic Street. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, given REGULAR COURSE and referred to the Planning Department and the Department of Public Works. 31-07 Paul DiGeronimo, Lord Nelson Corporation and Johnny Appleseed Realty, LLC: Accept a deed and approve the layout of Richard Road, a portion of Montrose Street and a portion of Sawtelle Road as public ways. REGULAR MEETING OF THE CITY COUNCIL, OCTOBER 23, 2006, continued The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, given REGULAR COURSE and referred to the Planning Department, the Building Inspector, the Health Department, the Department of Public Works, the Conservation Commission and the City Solicitor. A hearing was scheduled for November 13, 2006 at 7:15 P.M. Vt. 9/0. 32-07 Segundo Gutierrez, Jr., on behalf of Ronald C. Largey: Grant a Special Permit to use an existing building located at 146 Hamilton Street, located in an Industrial zone and shown on Assessor’s Map 238 as Lot 6, for an auto repair garage and an additional Special Permit for automobile storage within the Flood Plain. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, given REGULAR COURSE and referred to the Mayor and City Solicitor. 33-07 William C. (Bud) Taylor II: Adopt an Ordinance requiring all appropriations over one million dollars ($1,000,000.00) that effect property taxes levied by the City of Leominster be affirmed by vote for a debt exclusion through a ballot put before the entire electorate in the City of Leominster prior to the appropriation legally being place on the City Council agenda for approval and this ordinance shall have no exception to it. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, given REGULAR COURSE and referred to the Treasurer, the Veterans Office and the Assessor. 34-07 Dennis A. Rosa: Research the feasibility and cost of implementing Local Tax Exemptions for Veterans, Chapter 260 of the Acts of 2006, as amended by Chapter 310, §8, 33 and 34 of the Acts of 2006, which includes a new local option; G.L. c.59, §5L . Upon recommendation of the FINANCE COMMITTEE, the following COMMUNICATIONS were GRANTED and ORDERED. Vt. 9 “yeas.” C-18 Relative to the appropriation of $46,165.00 to the Gallagher Building Salary & Wages Account; same to be transferred from the Gallagher Building Revolving Fund. ORDERED: that the sum of Forty Six Thousand One Hundred Sixty Five Dollars ($46,165.00) be appropriated to the Gallagher Building Salary & Wages Account; same to be transferred from the Gallagher Building Revolving Fund. C-19 Relative to the appropriation of $73,835.00 to the Gallagher Building Expense Account; same to be transferred from the Gallagher Building Revolving Fund. ORDERED: that the sum of Seventy Three Thousand Eight Hundred Thirty Five Dollars ($73,835.00) be appropriated to the Gallagher Building Expense Account; same to be transferred from the Gallagher Building Revolving Fund. C-20 Relative to the appropriation of $7,400.00 to the Sanitation and Drainage Expense Account; same to be transferred from the Emergency Reserve Account. ORDERED: that the sum of Seven Thousand Four Hundred Dollars ($7,400.00) be appropriated to the Sanitation and Drainage Expense Account; same to be transferred from the Emergency Reserve Account. Upon request of the FINANCE COMMITTEE, the following COMMUNICATION was given FURTHER TIME. Vt. 9/0. C-21 Relative to determining the factor to be used in setting the Fiscal Year 2007 tax rate. (Hearing scheduled for November 27, 2006 at 6:45 P.M.) Upon recommendation of the FINANCE COMMITTEE, the following COMMUNICATION was RATIFIED. Vt. 9 “yeas” C-23 Relative to the appropriation of $25,000.00 to the Highway Overtime Salary & Wages Account; same to be transferred from the Emergency Reserve Account. (Granted on October 10, 2006 as an Emergency Preamble, another vote is required.) Upon request of the PUBLIC SERVICE COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 9/0. 25-07 Roger Lucier: Accept and approve the layout of “Harbor Light Road” as a public way. Upon request of the LEGAL AFFAIRS COMMITTEE, the following COMMUNICATION was given FURTHER TIME. Vt. 9/0. C-17 Dean J. Mazzarella, Mayor: Amend Chapter 16, Section 16-34, of the Revised Ordinances to change the classification of Secretary (mayor’s secretary) from an S-3 to an S-4 and amend the job title to Mayoral Aide. REGULAR MEETING OF THE CITY COUNCIL, OCTOBER 23, 2006, continued Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was GRANTED. Vt. 6 “yeas” and 3 “nays”; Councillors Rosa, Tocci and Freda opposed. 26-07 Richard M. Marchand: Request that the City Council endorse an ordinance prohibiting the presence of pets or other animals during the agreed upon operational hours of the annual Johnny Appleseed Arts and Cultural Festival on the City streets and other designated areas identified as the festival grounds, for reasons of public health and safety and allow the City Council to extend this prohibition to other City events or specific public areas as public safety and convenience may require. Councillor Marchand read the following letter into the record: Dear Members of the City Council, I am writing this letter to express my opinion on the petition that Councillor Rick Marchand is submitting tonight. I cannot be with you in person to express my support but I ask that this be read as such. As co-chair of Starburst, I too, have encountered pets being brought to our event. A public event is not the place to have a pet attend. As an animal lover, I am concerned with how the pet must feel when he/she is in a crowd of several thousand people. Many times there are loud noises such as music, games, displays and in our case, fireworks which can easily frighten an animal and cause them undo stress. This undo stress can lead to an unfortunate accident whether it involves the pet alone or with a person. In addition, many people, particularly children, are scared of animals or they do not know to be careful around animals they are not familiar with. I have seen children run up and try and pet dogs only to have the dogs bark at them. Why traumatize a child or an animal? It is best to leave the animal at home. The other concern is what about the animal’s waste? Many pet owners are responsible and clean up after their pets and I commend them for doing so. However, there are those who don’t. With Starburst in mind, when people are sitting on the field, when children are barefoot and running about on the field, I would not want to think that this is where an animal has just been. Again, it is best to leave the animal at home. I support that dogs for the handicap be permitted at public events but as for pets, their place, for their safety as well as the safety of others, is at home. Please move forward this petition and thank you for the opportunity to express my thoughts. Sincerely, Nona Ojala Co-Chair, Starburst 320 Pleasant Street Leominster, MA 01453 Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was GRANTED. Vt. 9/0. 27-07 Patrick LaPointe: Amend Chapter 21 Section 21-13(b) of the Revised Ordinances entitled “Regulation for use of Water” to reflect the homeowners responsibility for the maintenance of the water and sewer service pipe from the main in the street into the dwelling. Upon recommendation of the PUBLIC SAFETY COMMITTEE, the following PETITION was GRANTED. Vt. 9/0. 28-07 Leominster Recreation Department: Request permission to block off West Street from City Hall to Main Street, down Main Street to Carter Park on Sunday, October 29, 2006 from 2:00 P.M. until 2:30 P.M. for the annual Halloween Costume Parade. Upon recommendation of the CITY PROPERTY COMMITTEE, the following PETITION was GRANTED. Vt. 9/0. 29-07 New England Farm Workers’ Council: Request permission to use the City Council chambers to take Fuel Assistance applications on October 16th, 18th, 25th, November 1st, 6th, 20th, 27th, December 4th, 18th, 21st, 2006 and January 4th, 8th, 18th, 22nd, and 29th, 2007. A recess was taken at 10:10 P.M. to speak with Larry Gianakis. Meeting reconvened at 10:23 P.M. Upon recommendation of the WAYS & MEANS COMMITTEE, the following COMMUNICATION was GRANTED. Vt. 8 “yeas” and 1 “nay”; Councillor Rowlands opposed. C-22 Dean J. Mazzarella, Mayor: Request that Larry Gianakis, employee of the Leominster School Department, be exempt from the provisions of M.G.L. Chapter 268(A) (20B) Conflict of Interest as he will be temporarily performing the duties of Conservation Agent. REGULAR MEETING OF THE CITY COUNCIL, OCTOBER 23, 2006, continued The following ORDINANCE was read once and adopted as presented and ordered published. A hearing was scheduled for November 13, 2006 at 7:05 P.M. Vt. 9 “yeas.” 1st Reading Ordinance – amend Chapter 16, Section 16-31 of the Revised Ordinances entitled “Method of Step Advances” by adding subsection (e) Officers and employees with positions classified in the “S” classification plan that are promoted or transferred to a different position with the “S” classification plan shall be entitled to advance to the next scheduled step for their new position on the subsequent July 1st, notwithstanding that they may have held their new position for less than twelve months. (Legal Affairs Petition # 16-07) MEETING ADJOURNED: 10:30 P.M. ________________________________________________ Lynn A Bouchard, City Clerk and Clerk of the City Council