Zoning Board of Appeals

9-8-11 mins. CITY OF TAUNTON ZONING BOARD OF APPEALS September 8, 2011 at 5:30 PM (Meeting held at Maxham School, 141 Oak St., Taunton, Ma) Members Present: Chairman Ackerman, Berube, Staples, Amaral, Medeiros, Wasylow, and Joyce. Meeting called to order at 5:35 PM Peter made motion to accept July 28, 2011minutes, Seconded by Wayne. All in favor. Chairman Ackerman had a moment of silence for all those lives lost on September 11, 2001. Chairman Ackerman explained the process of which the ZBA conducts its meetings. They listen to the petitioner/Attorney, then opposition or in favor and then back to the petitioner to address the oppositions’ concerns. They do not go back and forth. Cont’d Case # 3017 Frenette 815 Middleboro Ave. A Variance from Section 6.3 to allow the division of one lot into 6 lots having 0 frontage on a public street (instead of 150 feet) but having access via Westcoat Drive, a private Way. Request to Continue until next month and waiver of the time frame. Motion made and seconded to grant continuance. Vote: Ackerman, Berube, Amaral, Medeiros, Wasylow…………Yes Petition continued: Cont’d. Case # 3053 Keesey Property I.D. 65-26) Shores Ave. A Variance from Section 6.2 & 6.3 o allow the re-division of lots that have merged for zoning purposes. Lot 65-26 having 60’ of frontage and lot width (instead of 100’) with 8,828 sq. ft. of lot area and dry area (instead of 15,000 sq. ft. of lot area and 11,250 sq. ft. of dry area) and Lot 65-27 having 8,308 sq. ft. of lot area and dry area (instead of 15,000 sq. ft. of lot area and 11,250 sq. ft of dry area Request to continue until November and waiver of the time frame. Motion made and seconded grant continuance. Vote: Ackerman, Berube, Amaral, Medeiros, Wasylow…………...Yes Petition continued to November. Case # 3083 Patten 287 Plain St. Hearing held on September 8, 2011 For: An appeal of the Zoning Enforcement Officer to deny enforcement of Section 5.2 for an Agricultural Use on a parcel of land less than five (5) acres (See Case # 2805) For the Petitioner: Atty. William Rounds, 115 Broadway, Taunton, Ma representing Steven & Mary Patten. Present at meeting and testified: Mary Jane Benker, Zoning Enforcement Officer, Taunton, Ma. In favor: None Opposed: None Chairman Ackerman and Wayne Berube excused. Atty. Round stated they asked the Zoning Enforcement Officer to enforce Section 5.2 an Agricultural Use on a residential property less than 5 acres. Atty. Rounds stated that in 2006 the Board held hearing and rendered decision everyone thought passed. The agricultural use has stopped several years and then it came to light again and now they are seeking enforcement. In 2006 everyone thought the decision passed but it didn’t and it was stated at hearing that the appeal was granted. He is asking tonight to overturn the Zoning Enforcement Officer decision. They need 4 out of 5 votes in favor. Joe asked Atty. Rounds that the property has changed hands within the last week and he states the chickens are gone but the coops are still there. They don’t want new owner to re- establish use so they are seeking enforcement. John suggests going to Probate Court and fight it there. Atty. Rounds states that the appeal period is over so we cannot go to Court because that’s one deadline they abide by. John also points out the new owner didn’t get notified of this hearing. Atty. Rounds explains the abutters list and the assessor’s certifies it and they get notification. He stated the assessor’s office only changes their records once a year? He stated the new owners were made aware of this situation and as a result the 2 Board members excused themselves. Atty. Rounds stated the applicant had problem with neighbor and sent written complaint to Z.EO. Mary Jane Benker, Zoning Enforcement Officer stated she discovered the 2006 decision didn’t pass so therefore she could not enforce. She stated there would have to be a new violation. Peter asked why didn’t’ she enforce the old violation? MaryJane answers she spoke with the law office and was advised not to enforce. She stated the court determined there was a grandfathered use and the 2006 decision didn’t pass so therefore they are grandfathered. She stated she did receive Atty. Rounds letter late this afternoon by the ZBA secretary. She stated if there was a new violation different than that in 2006 the she would enforce. She stated 5 years have passed and now they are her again. Peter asked her, in her opinion, does she think a violation exists? She answers no. Troy stated there are more than 50 chickens on the premises. MaryJane stated the letter needed to be more specific. John disagrees with the ZEO and thinks that letter was specific in stating chickens were there. John read the definition of Agricultural Use right from the Zoning Ordinance. MaryJane stated her precedessor didn’t think so. She wasn’t here in 2006 and she was going to the previous ZEO ‘s determination and files. She stated there is a lot of case law on this. John asked if she did an inspection? MaryJane answer she did not go out for an inspection because there was no violation to act on, in her opinion. She re-iterates she needed a “new specific complain”. Joe asked if they could put more animals on the property? Troy asked asked if the City Planer can enforce the ordinance. She answers no, he makes the determination and she enforces the ordinance. Troy asks do you always need a specific complain? She answers based on the ZBA decision she needed a more specific complaint, a new violation. Troy asked Atty. Rounds what they need to grant appeal. Atty. Rounds stated they need a yes vote (at least 4 members)Then this Board can direct the ZEO to enforce the ordinance. At this time, the Chairman brought up the request the applicant is asking to waive the filing fee? They have submitted check but its being held until Board votes on request. Troy made motion to waive filing fee. Motion didn’t receive a second. Motion defeated. John stated that he thought the written complaint was specific enough but they have evidence the chickens have been removed. Michael stated this decision will rectify the 2006 decision. Motion made to Grant as Presented than an Agricultural Use exists on a parcel of land less than five (5) acres at 287 Plain St. is violation of Section 5.2 of the Zoning Ordinance. Vote: Staples, Amaral, Medeiros, Wasylow….....................Yes. Joyce. ……………………………………………………………….No Appeal Granted: Zoning Enforcement Officer’s Decision NOT UPHELD. Case #3090 The Neighborhood Corp. 1,15-25 main St. & Merchants Ln. Hearing held on September 8, 2011 For: A Special Permit from Section 5.2 and 10.4.8 of the Zoning Ordinance for a mixed use development in a CBD consisting of 36 residential units with a waiver of the parking from 92 to 50. For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma. Dean Harrison, Exec. Dir., The Neighborhood Corp., 120 Ingell St., Taunton, Ma. Bob Rogers, Tibbetts Engineering Co., 716 County St., Taunton, Ma. In favor: Letter from Taunton Redevelopment Authority, P. O. Box 2987, Taunton, Ma. Opposed: None Atty. Gay stated they are proposing a mixed use and waiver of parking for 36 units located in the downtown. There will be commercial use on first floor and residential on 2nd & 3rd floors. There will be 27 two-bedroom and 9 one- bedroom apartments and an elevator and access to first floor. They will be removing a portion of the building to have windows and green space. They will need Departmental Site Plan Review if approved. The proposed parking is 50 but under the ordinance you need 92. They show the existing double stacked parking and will designate those to the 2 bedroom units. The Neighborhood Corp. talked to the abutter to see if they could secure more parking but was unsuccessful. There are meter spaces and parking lots in the area. Atty. Gay stated that there was a study done by the downtown Taunton in 2009 by the Office of Economic Development for 3 days. The results indicated at 8:00 AM there was 38% parking spaces used, 10:00 AM there are 60% used, 10:30 AM 61% used, 4:00 PM 30% used, 6:00 PM 17% used. The Taunton Redevelopment Authority reviewed plans and submitted letter in support and in compliance with the Downtown Urban Renewal Plan. Atty. Gay stated that the ordinance required 2 parking spaces per unit but doesn’t but doesn’t allow for downtown? Chairman Ackerman asked if the project will be taxable property? Dean Harrison, Exec Dir., The Neighborhood Corp. stated ultimately the project is for profit and will pay full taxes. Mr. Harrison stated this concept has been there since 1978 with the approval of the Urban Renewal Plan approved by the former Mayor Joseph Amaral. Chairman Ackerman strongly suggests securing an additional10 spaces off-site for parking. Atty. Gay stated they can see if the Parking Commission is willing to rent/lease 10 spaces because there are plenty available. John stated the parking deck is full during the day and now with the new court there probably won’t be any available. He stated there is no capacity. Joe stated this is a wonderful proposal but wants to make sure there is adequate parking. He doesn’t want to see the area restaurants lose their parking for patrons. Mr. Harrison stated they have a development in Worcester in which they hire a private company to monitor the parking lot and we are thinking the same here. He asked the Board to not restrict the project to getting 10 additional parking spaces. They will try their best but doesn’t want a denial because of condition. Chairman Ackerman was adamant about the 10 additional spaces. Atty. Gay suggests they will resolve reasonable efforts to secure 10 additional spaces downtown. Mr. Harrison stated if the area businesses know we need the 10 additional parking spaces the price just went up. Wayne asked if there is availability of parking on Main Street and they stated yes. Atty. Gay stated the occupants of the commercial units will not be allowed to use the parking for the residences. Mr. Harrison stated this project is costing approx. 8 million and some financial institutions will now accept certain conditions. Chairman Ackerman stated there is sufficient buildings downtown they can be demolished for parking area. Joe stated this site will be redone, paved and have its own security enforcing parking for residential only. He stated it will be a big challenge enforcing parking. He suggests having a contract with local towing company. Troy asked what would if a neighbor is in his spot who does he call? Mr. Harrison stated they call the supervisor. John stated he likes the idea of securing more parking for the residential units. No one in favor or opposed. Letters from the T.R.A., Bd. Of Health, Fire Dept., City Planner, Water, and Conservation Commission was read into the record. Chairman Ackerman asked if they were planning on applying for any federal or city grants? Mr. Harrison answered yes have private funding and a community block grant from Home Care. Wayne said he was impressed that they got private funding and some public assistance. John suggests changing the landscaped mulch area next to building to switch to stonedust. Michael asked where the tenants of 6 Weir St (12 units) park? Mr. Harrison stated no they wouln’t be parking in same spots. John stated the corner of Weir & Main property is for sale? Wayne asked if there would be cosmetic changes to the building? Mr. Harrison answers yes, they will comply to Mass. Historical. Motion made and seconded to grant with the following conditions:  The applicant is required to secure an additional 10 parking spaces off-site for the non-residential units.  Replace mulch with stone dust or crushed stone in the small landscaped area next to the Handicapped Parking space.  All work done must be in compliance with the Minimum Standards of Fitness for Human Habitation, State Sanitary Code, Chapter II.  Fire Suppression System shall be installed throughout the proposed residential and commercial units. Pursuant to Mass. Gen. Law Ch 148 Sec. 26I & 26G, and in accordance with NFPA-13 & related NFPA standards (Sprinklers)  Fire Alarm System installed throughout the proposed residential and commercial units with automatic notification to the Fire Department (Radio Master Box)   Fire Suppression & Fire Alarm drawings must be submitted for review (two sets) before this department signs a building permit application. Fire Suppression drawings must be stamped by a Mass. Fire Protection Engineer.  Fire extinguishers installed throughout according to 527CMR 10.02 & NFPA-10. Dumpster permit required for dumpsters six yards or greater 527CMR 34.03 Vote: Ackerman, Amaral, Berube, Medeiros, ......................Yes. Wasylow………………………………………….…………………No Petition Granted: Case #3091 The Neighborhood Corp. 32 Main St. & 8 Trescott St. Hearing held on September 8, 2011 For: A Special Permit from Section 5.2 and 10.4.8 of the Zoning Ordinance for a mixed use residential/office (6 residential units and first floor commercial) with 7 parking spaces instead of 16 spaces. For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma. Dean Harrison, Exec. Dir., The Neighborhood Corp., 120 Ingell St., Taunton, Ma. Terri Bernardt, Business Improvement District, 4 Court St, Ste. 210, Taunton, Ma. In favor: Letter from Taunton Redevelopment Authority, P. O. Box 2987, Taunton, Ma. Opposed: None Atty. Gay stated the Neighborhood Corp. is utilizing the old Baron Brothers warehouse and the old jewelry store site for a mixed use and parking. They are proposing 6 residential units with commercial use on first floor. Atty. Gay stated Terri Bernardt gave presentation to the TRA and received approval for the project. Terri stated they are proposing to put art gallery on first floor, along with the offices of the Business Improvement District and residential units on second floor which will consist of 5 one-bedroom apartments. There will be improvements done to the building which include tin roof, glass windows for art gallery. There will be one apartment fully handicapped accessible. She stated the Taunton Business Improvement District has been working very aggressively to secure site. Chairman Ackerman asked if the Neighborhood Corp. will be owners of this project. Mr. Harrison answers they will be overseeing project and maintaining management company and are projecting occupancy within the next 8-12 months. They will be paying taxes, full profit project. They are going to eliminate the use of the garage for parking because its triggers costly fire codes. The projected cost of the project is 1.1 million and they have teamed up with Malloch Construction. Chairman Ackerman asked if they are using any City funds? Terri stated the majority is coming from the Neighborhood funds and federal funds which are only available for a certain time Atty. Gay stated they initially thought they had 7 parking space but now they are taking down the garage so they have 6. The Board voted to allow modification from 7 to 6 spaces. John asked the handicapped space would probably be for the handicapped apartment? Letters from the TRA, B.O.H., City Planner, Water Dept., Fire Dept. and Conservation Commission were read into the record. Peter stated it’s a good idea but he doesn’t like waiving any parking. John explained to the ordinance dictates parking per unit, it doesn’t specify which project or its location? They took the additional steps and secured lot to provide parking. Motion made and seconded to grant as Modified. Vote: Ackerman, Amaral, Berube, Medeiros, ......................Yes. Wasylow………………………………………………………No Petition Granted: Case #3092 Cotti-Johnson HVAC Inc. 30 Waverly St. Hearing held on September 8, 2011 For: A Special Permit from Section 5.2 for a change of use from light manufacturing to service use (HVAC Business) For the Petitioner: Vincent Boccalini, Cotti-Johnson HVAC, Inc., 80 Cedar St., Canton, Ma. Angelo Boccalini, “ “ “ Adam Boccalini, “ “ “ In favor: Michelle Silveira, 27 Waverly St., Taunton, Ma. Opposed: None Mr. Vincent Boccalini stated he is purchasing this property and re-locating his HVAC business from Canton. The site is approved for light manufacturing and he wishes to use it as a service use which is his family business HVAC business. The property has been vacant for a year and he’s wishes to put his business here. The administrative office will employ 6-8 personnel and the rest of their business is services units at the site. Their employees leave from their homes and report right to job site. There may be an occasion they might report at the site. Chairman Ackerman asked about if about the trucks used for the business? Mr. Boccalino stated they have a couple rack body trucks for delivery and their trucks will be registered in Taunton. He stated there will be one rack truck parked at night at the site. They usually have 2 deliveries per day consisting of UPS or fedex and a box truck. Chairman Ackerman asked what time the box trucks comes? Mr. Boccalino answers between 8 am – 4 pm. They will be using Marcotte Street where the loading area is. Joe asked if this was the former Hodgman business and Mr. Boccalini answers yes. In favor: Michelle Silveira, 27 Waverly St., Taunton, Ma. spoke in favor. She stated the petitioners introduced themselves to the neighbors and explained what they were asking for and they were very nice people. Letters from the B.O.H., Cons. Comm., Water Dept., City Planner and letter from P.B. approving Repetitive Petition which were read into the record. It was asked where the rack body truck will be store and Mr. Boccalino stated in the garage. Michael asked if they were planning on fabrication and they answered not at this time. It’s not feasible at this time. The Board thought this was a good use for the building and a good fit for the neighborhood. Motion made and seconded with dept. comments.  A Hazardous Materials Control Permit must be obtained from the Board of Health.  A proper backflow protection at the water meter prior to the change in use. Vote: Ackerman, Wasylow, maral, Berube, Medeiros, ......................Yes. Petition Granted: Case #3093 Mello Realty LLC 232 Broadway Hearing held on September 8, 2011 For: A Special Permit from Section 5.2 for a drive-thru for a Dunkin Donuts Restaurant in a HBD. For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma. Mark Tisdelle, Project Engineer, 4 Court St. Taunton, Ma. Aaron Mello,Mello Realty LLC, 290 Broadway, Raynham, Ma. In favor: None Opposed: None At this time Joe Amaral disclosed he works for Dunkin Donuts in Connecticut & Rhode Island but feels there is no conflict so he can vote on case. Atty. Gay stated they are here tonight for a drive-thru for a Dunkin Donuts. They are proposing to re-locate the Dunkin Donuts on Broadway to this site, the former root beer stand. The parcel is unique in that it is surrounding by 3 streets, E. Britannia, Broadway & Washington Street. This site has been used for commercial purposes for many years. The Dunkin Donuts requires restaurants warrants a drive-thru and it will take the traffic off the street. There is room 12-13 car stacking. The deliveries will be done from E. Britannia Street. Wayne asked if the petitioner will be purchasing property? Mr. Mello answers yes they have P&S of which Atty. Gay presented to the board. Chairman Ackerman the plans presented are the best he’s seen in a while showing stacking, access and parking. However; he pointed out that the tractor trailer on the plans is partially off property. Mark Tisdelle, Project Engineer pointed out that was in error. John pointed out this is a bad intersection. 13 th worst in the region, and he suggests low landscaping along the perimeter of the property. Chairman Ackerman also agreed, no trees or shrubs along permiter to ensure safe site distance. Mark stated he showed the truck radius on the plans, a 65’ long HB truck. Chairman Ackerman asked about sliding gate and if it’s locked at all times? Mr. Mello answers yes. No one in favor or opposed. Letters from the B.O.H., Conservation Commission, Water Dept. and City Planner were read into the record. John suggests moving the escape lane around E. Britannia Street side to outer lane. Motion made and seconded to grant with the following conditions:  The landscaping along the perimeter shall not include trees or shrubs to ensure safe view.  Move the turning radius for tractor trailer into the by-pass lane leaving a clear lane abutting the drive-thru lane.  All Board of Health must be obtained. This includes Food permit, Milk Permit, and Hazardous Material Control Permit. The establishment must comply with the City of Taunton FOG (Fats, Oils and Grease) Program. This includes the installation of a secondary containment for FOG, by means of an external grease trap.  Proper backflow protection at the water meter prior to the conversion will be required. Vote: Ackerman, Staples, Amaral, Berube, Medeiros, ......................Yes. Petition Granted: Case #3094 Apex Ventures LLC 802 Bay St. Hearing held on September 8, 2011 For: A Special Permit from Section 5.3.4 to allow the extension/alteration of a pre-existing non-conforming use by allowing the addition of eat-in (5-10 seats) and take-out pizza to the existing retail use. For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma. Maninber Singh, Apex Ventures LLC, 802 Bay St. Taunton, M.a In favor: None Opposed: Noreen Skwarto, 818 Bay St., Taunton, Ma. Debra Mcauliffe, 15 Emma Ave. Taunton, Ma. David Moreau, 3 Middle St., Taunton, Ma. Petition signed by 28 abutters opposed. Atty. Gay stated the petition was filed by the petitioner and he was asked to represent later. They are asking for a modification to the submitted petition and remove the eat-in the seats will be just for those waiting to pick up. This property has been used for many years as Andy’s Market which included a deli years ago. Within the last 6 years the food was deleted and now it’s more of a convenience/liquor store. There will be no addition to the building, they would be utilizing existing space. They would like to offer pizza, soups, salads and subs. They were proposing the hours of operation for the food part: Monday – Thurs. no one – 9:00 PM , Friday & Sat 11:00 AM – 10:00 PM, Sunday – noon – 5:00 PM. Atty. Gay stated they are replacing the previous deli use with pizza ovens and take out. There are restaurants in the area so they don’t anticipate this as a destination place. It will service then neighborhood and whoever goes for liquor. Atty. Gay stated he thinks the neighbors’ concerns were with the sit- down. Chairman Ackerman stated you will prepare food, make subs, pizza and there will be no sit down. Atty. Gay answers yes, there may be stool for patrons waiting but no eating inside. Joe asked if this will have a separate access? It was stated they plan on using the L shaped portion of the building where there is a door now. Joe brought to their attention that the loading dock and tractor trailer will be obstructing the entrance to new business? Wayne has concerns with creating new business off Emma Avenue? There was some discussion on where the entrance would because it appears the loading dock and handicapped space is in the way? Atty. Gay asks for a continuance to change plans. Chairman Ackerman stated he would give the abutters the opportunity to speak since they are present tonight. Joe asked about parking and it’s that’s what there now? Atty. Gay stated they would need more parking if they used whole building for retail. They are required to have 21 parking spaces. Joe stated the delivery truck cannot block the Handicapped parking space as shown on plans. Chairman Ackerman asked how many deliveries per week? Owner answered about a dozen per week. Chairman Ackerman stated this is a residential area and the truck deliveries could create problems. Atty. Gay stated they have not created any problems in past. Joe pointed out now they will be using another door . Opposed: David Moreau, 3 Middle St., stated he‘s opposed. He has lived there since 1972 and has seen the transition and there is greater volume of traffic on weekends. He has seen it go from small convenience store to adding liquor and now it has different clientele. At this time Chairman Ackerman read letter from Noreen Skwarts , 808 Bay St., opposed. Debra Mcauliffe, 125 Emma Ave., stated she agrees with Noreen. She has lived there since 1988 and she clearly understood it was a family-run store. But it has changed, she has had her cable lines taken down by delivery truck, trash issues. They have to deal with dumpster overflowing, increase if noise, loud at night and now to add pizza will attract more people. She asked the Board if they choose to grant put restrictions so it cannot be a full fledge restaurant. Letters from the City Planner, Fire Dept., B.O.H. , Water Dept. and Conservation Commission was read into the record. Atty. Gay stated he’s sensitive to the neighbor’s concerns and they want to work with them. They reminded the Board they are only proposing take-out only now. They will re-design the interior and address hours, and trash dumpsters. Peter stated he lived in the neighborhood many years ago and it was a family run store who took take of the neighbors. He stated the owners should have spoken to neighbors about new proposal. Joe stated he needs to take care of the trash and keep the site clean. Wayne agrees he needs to have trash control. Atty. Gay stated he will work out the problems with neighbors and come back next month. Atty. Gay waives the time frame on which to act on this proposal. Motion made and seconded to continue until next month and time frame waived. Vote: Ackerman, Staples, Amaral, Berube, Medeiros, ......................Yes. Petition Continued to Oct. 13, 2011. OTHER BUSINESS: Powhattan Estates – Reduction of Surety – Reqeuesting a continuance until next month. Motion made and seconded to grant continuance. Meeting adjourned at 9:31 PM.