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HomeMy WebLinkAboutZBA 11/19/2024nt o gA'lFNSA0\5� Town of Mansfield Zoning Board ofAppeals OFFICE M24 DEC 18 A 8: G8 Meeting Minutes N ,ygipber 1.9f 2112It [J,),TTS Meeting Held in Person in Meeting Room 3A/B and Virtually Using Go ToWebinar Platform Present: Darlene Pruitt, Chair; Matthew Cummings, Clerk; Eric Correira (Remotely); Matthew List, Ryan Maxwell Sarah Raposa, Director of Planning and Development Priscilla McGill, Administrative Secretary Paula Perry, Administrative Assistant (Remotely) Darlene Pruitt, Chair, read the introductory recording information notice into the record. Darlene Pruitt, Chair, read the public notice into the record. Public hearing regarding the application of Attorney Kevin S. Freytag on behalf of James N. White, Kirsten Murawski, Nicole Mullen, Nirav Desai, and David S. Haring, of the Building Inspector's grant of a building permit in connection with the construction of a 16,800 square foot facility with thirty-two (32) parking spaces at 19 Knight Way, Assessor's Map 003-051 in the Residential 1 (Rl) Zone. Ms. Pruitt notified the public that one Board member (Edward Valanzola) had to recuse himself, four Board members were in the room and one member was attending virtually. Mr. Kevin Freytag was in attendance representing the applicants and Mi. Mark Lanza was in attendance representing Emily Miller, FOD, LLC and Hands On Montessori. Emily Miller was in attendance remotely. Mr. Freytag said he represented several families from Balcom Ridge Estates, who were all in attendance. He said the purpose of the hearing was to appeal the building permit issued for the construction of the 17,000-foot facility at the end of Knight Way. They are asking the Board to consider the building permit issued in September of 2024 and the site plan approval which was approved by the Planning Board and affirmed by the ZBA. He asks that the site plan approval be returned to the Planning Board for further review. He stated three reasons the Board should reconsider the site plan approval, and therefore the issuance of the building permit. 1. They believe the "Dover Amendment" was improperly applied to the project. ZBA Meeting Minutes 11/19/24 Page 1 of 9 2. They believe that the conditions put on the project (even if the Dover Amendment were to apply) were insufficient, and the Planning Board and ZBA failed to impose reasonable conditions on the project (parking, size of project, pick up/drop off, vehicular management plan). 3. The decision improperly deferred or delegated matters of substance to either other individuals who are not on this Board or to other future actions. Both of these are not permitted for decisions by boards of municipalities. Mr. Freytag acknowledged that this Board is the same one that affirmed the original site plan of the Planning Board, but he offered to shed some light on the background and procedural history of the project. In January 2023, FOD LLC applied for site plan approval for the school facility at 19 Knight Way. At this time, it was not clear who would operate the school. As the process continued, it was revealed that a corporation called Hands On Montessori Elementary School Inc. (The School) was associated with running a non-profit school at the site. Also, Hands -On Montessori School Inc. (Childcare Facility) would be running a for -profit childcare facility at the school. Emily Miller was listed as the Manager of the Developer and holds all corporate officer positions for both the school facility and childcare facility. In May of 2024, the Planning Board approved the site plan with conditions. Neighbors appealed that decision to the ZBA. In October 2024, the ZBA affirmed the decision of the Planning Board with additional conditions. That approval was appealed to the Superior Court in November of 2023. After that appeal to the Superior Court, the Building Dept issued a Building Permit in September 2024. That is why he and the neighbors he represents are in attendance. They are appealing that permit. The Dover Amendment reduces but does not eliminate the types of regulations and restrictions by municipalities. His clients take issue with the application of the Dover Amendment due to the connections and overlap between the developer, which is for -profit, the school, which is non- profit, and the childcare facility, which is for -profit. They believe that Emily Miller's role as manager of the LLC that owns the property and as a corporate officer in every capacity in both the childcare and school was taken into consideration by the Board. They believe these relationships are used to create an end -run around Dover and the local bylaws. Mr. Freytag referenced the Sullivan vs. Heritage Plantation, Sandwich Inc. case where arrangements between nonprofit and for -profit entities were said by the court to possibly defeat the purpose of the Dover amendment and provide an easy end rum around the non-profit requirement. Mr. Freytag said this case gives the Board the authority to check under the hood and be sure that the nonprofit and for -profit status of the entities involved don't require more investigation. Noemi Kawarnoto later stated that the majority owner was for -profit and minority non-profit and believes these are two very different cases. Mr. Freytag also cited a decision which was a subdivision denial by the Planning Board for the parcels involved in this project. The applicant applied for a definitive and preliminary subdivision approval. The Planning Board initially denied the definitive subdivision because it was setting a bad precedent. The developer appealed that decision to the land court, and the land court issued a decision. It found that FOD LLC "operates" the Hands -On Montessori School, which is an incorrect representation. It brings up the question of who is running the school. ZBA Meeting Minutes 11/19/2024 Page 2 of 9 Mr. Freytag said the initial appeal of the site plan was under 40A § 17, which appeals go directly to the Superior Court. The developer argued that the abutters did not have a right to bring the decision to the Superior Court, and they had to wait until the building permit was issued. On those grounds, the developer tried to dismiss the superior court complaint. The Superior Court said that the claim had been brought correctly to the superior court. The Court pointed out that it was reasonable to infer the illegitimacy of Hands on Elementary School's non-profit status based on Miller's other roles in the for -profit entities. Mr. Freytag spoke of the bulk of the project. The building will be three times larger than the homes in the neighborhood. He said that the property is currently 13 acres, but by subdivision has recently been divided into 3 pieces and the school would be on only 10 acres. Mr. Freytag stated that the decision needs to be completed. Boards are not in a position to delegate responsibilities about bylaws to another individual. It can't be said that it will be decided at a later time. Mr. Freytag asked that the Board send the decision back to the Planning Board for reconsideration, and asked the Chair if he could respond to FOD counsel (Mark Lanza) after he speaks. The Chair granted this. Attorney Mark Lanza, representing FOD LLC, pointed out that Emily Miller was attending the meeting remotely. Mr. Lanza responded to Mr. Freytag's issue with the three separate entities involved, FOD LLC which owns the land, Hands On Elementary School, a non-profit educational corporation and Hands on Montessori which will operate the daycare. He stated that it should not be an issue that she is the principal of all three. This should not matter. There is no legal barrier that she cannot do all, or that this would preclude the application of the Dover Amendment. Dover Amendment focuses on the use. The building will be used primarily for daycare, so the Dover Amendment applies. It does not need to be the only use of the building; just the primary use. This is an appeal of a foundation permit. It is premature to rule on what will go on inside the building when it is complete. Both non-profit educational and for -profit daycare are both are protected by Chapter 40A §3. Mr. Lanza referenced the Heritage Case. A museum building wanted to do a ropes course, and the educational content of that course was in question. Mr. Lanza mentioned the subdivision reference by Mr. Freytag. The original subdivision application was denied, his client made changes and it was approved. Mr. Freytag stated that whatever happens, there will be farther appeals by the appellants. Mr. Freytag addressed jurisdiction. The judge declined to dismiss it as premature. The appellants are asking the Board to revisit it, but the case is now in the jurisdiction of the Court and the Board has no jurisdiction. Mr. Lanza addressed concerns about traffic. He states that it has been addressed multiple times. It was addressed by the Land Court, and the judge accepted FOD's plans. He stated that off -site ZBA Meeting Minutes 11/19/2024 Page 3 of 9 traffic cannot be addressed by the ZBA and it cannot regulate Dover Amendment uses with regard to traffic. Mr. Lanza said that the Board does not have jurisdiction, and they should therefore deny the appeal. Ms. Raposa stated that Town Counsel was present remotely if there were any questions. Mr. Maxwell asked Town Counsel, Noemi Kawamoto, if it was true that there was a jurisdictional issue. Ms. Kawamoto said there is not a jurisdictional issue, it is just a situation that is not normal. Normally the appeal would take place prior to issuance of the Building Permit. The Board can decide this case. Mr. Freytag approached the microphone. He stated that the significant part of this case is the entanglement of the entities involved, and how they impact the Dover Amendment. Mr. Freytag believes that the Board does have jurisdiction, and deals with complex issues regularly. Mr. Freytag said that whichever way the Board goes, his clients will appeal. He asks that the Board send the plans back to the Planning Board. There is more work to be done. Mr. Lanza stated that a daycare facility in Massachusetts can be owned and operated by a for - profit entity and have the protection of the Dover Amendment. Mr. List asked about the Maker Space and the new building. Emily Miller said that the primary use of the new building will be 60-75% daycare. Mr. Cummings asked about the breakdown of age groups in the new building. Ms. Miller said they are licensed by the EEC, and therefore called a daycare. Public Comments: Marl, LaRochelle,19 Justin Drive Mr. LaRochelle asked if the current not -for -profit filed a form 990 before November 1 of this year. He stated that it needs to be done, or it won't be considered a nonprofit. Mr. Lanza said that the not -for -profit corporation in the maker space is a Delaware Corporation, so doesn't need to file. Mr. Correira said that they do need to file with the Attorney General's office. Emily Miller said they are not a 501 C, They are a "Nonstock, nonprofit corporation" Any forms that needed to be filed have been filed. Mr. Lanza said the FOD LLC has a corporate lawyer who ensures that all proper paperwork is competed in a timely manner. Jill Keyes, 11 North White Pine Lane Ms. Keyes said that the school is only registered as a foreign entity in Massachusetts, not as a non-profit. She requests that because the business is in Massachusetts, they should file as a non- profit in the state. Ms. Keyes said there has only been one foreign corporation that claimed Dover Amendment status. The Bible Speaks vs. the Town of Lenox. The Bible Speaks proved their foreign nonprofit status. Ms. Keyes contacted the Secretary of the Cormnonwealth. They said that only the Attorney General determines who is charitable or non -charitable. Ms. Keyes ZBA Meeting Minutes 11/19/2024 Page 4 of 9 read some of DESE numbers for 2023. The numbers allegedly show that there are more children in K-6 than in preschool at Hands On. Nicole Mullen, 3 Knight Way Ms. Mullen said the Maker space is currently operating as an elementary school with children over the age of 6. Ms. Mullen stated that she was approved by the Board to operate as a childcare facility. Ms. Mullen stated that without approval or licensing, she changed the age group of the students. Ms. Mullen has concerns about traffic and buses. Cats do not stop at the stop signs, as documented by the Police. There is only one sidewalk for the children to walk on, so it is dangerous. She states that Ms. Miller was supposed to alternate pick up and drop off schedules with the public schools. She has not done so. Ms. Mullen said that they are the backbone of the community. They volunteer at the schools and their kids play sports. She asked that the Board protect the children. Rick Rosemark, 9 North White Pine Lane Mr. Rosemark said that he is a resident, taxpayer, townie. Mr. Rosemark said that Balcom Ridge Estates is zoned scenic residential and fall under subdivision regulations. He stated that the FOD has zero fiontage and goes through his neighbors' yards. Mr. Rosemark said that the Millers own Miller Recycling in Mansfield and cited two fires on that site. He also stated two driving incidents by Miller Recycling drivers. Mr. Rosemark asked what would happen to the school if it ends up not being used for its intended purpose. Cynthia Cavanaugh (remotely), 113 Balcom Street Ms. Cavanaugh asked if there would be two separate facilities for daycare and elementary. Ms. Cavanaugh questioned the division of age groups, and who will monitor the percentage of daycare students vs elementary school students. If it changes, will they lose their Dover status? Ms. Miller restated that the school will be 51 % at least daycare students. Jill Keyes, 11 North White Pine Lane Ms. Keyes said she contacted the EEC and they only monitor through kindergarten. DESE oversees elementary school programs. She said the DESI numbers from 2023 are: PreK — 38; K-6 — 43; There were more children in the elementary program. Ms. Miller said 7 and under fall under EEC. Mr. List asked about the queuing plan, and if it needs to change when you factor in the subdivision plan. Mr. Lanza said that it will not be changed. What was approved in the site plan has to be constructed. Ms. Raposa said it was amending to be a cul de sac and not a hammerhead turnaround. Mr. Lanza said that Knight way would never become a public way, it will always be a private way. Ms. Raposa asked for a discussion regarding the Dover Amendment and whether or not the project would be protected. ZBA Meeting Minutes 11/19/2024 Page 5 of 9 Mr. Cummings asked Noemi Kawamoto if it matters if the non-profit is registered in Delaware and not in Massachusetts. Mr. List asked how we know it is a nonprofit as he couldn't find the language on the form. Ms. Kawamoto said she has reviewed the documents, and it is registered as a Delaware non-profit corporation. Mr. List asked if there was any new information re: the Dover decision. He stated that the only thing that has changed is the motion to dismiss whether the FOD LLC operates the school; otherwise, the information hasn't changed. Ms. Kawamoto stated that two separate programs are operating under the name of Hands On Montessori. One operates under a DESE license as a school -age program operated by a non- profit entity. That is currently in the Maker Space. The second program qualifies as a childcare facility and is currently operating on Creeden Street and will move to the new building. That is operating under a license from EEC. A childcare facility under Dover is broader than the usual definition. It can include programs for children over the age of 6 as long as more than 50% of the children are 6, 7, or under. Ms. Miller and Mr. Lanza agreed with this synopsis. Ms. Pruitt stated that she saw no new information other than the motion to dismiss. Ms. Raposa stated that if the Board finds it is protected under the Dover Amendment, the next step would be to determine whether it complies with the old site plan review bylaw and whether any issues within that need to be revisited. Mr. Maxwell asked about some outstanding issues mentioned in one of the letters, such as the firetruck turning. Ms. Raposa said conversations with all of the town departments were ongoing during the hearing process. The Town Engineer recommended a traffic study, but the Planning Board could not require it due to zoning bylaws. Ms. Raposa said that ultimately the Fire Department submitted a revised memo and she could not recall the process with the Police Department off the top of her head but all departments were looped in along the way. Ms. Raposa referenced Mr. Freytag's continent regarding the responsibilities that the Planning Board and ZBA weren't precise or exact enough. Ms. Raposa said that during the appeal, the ZBA tried to tighten up the concerns that were originally raised in the appeal of the site plan. She said that because of that, it might not be prudent for the ZBA to tighten up those conditions as it is an appeal of the building permit. Mr. Maxwell asked if a vehicle management plan had been submitted. Ms. Raposa said that this was to be reviewed by the traffic safety officer and that the plan would be submitted to parents through the parent handbook. What was approved in the site plan was a queuing capacity for approximately 80 cars, the drop-off and pickup mechanism was going to take a certain amount of time and they felt that there would not be cars on Knight Way. It was agreed that if this did not work out in real-time, there would be modifications approved by the Traffic Safety Officer. Mr. Maxwell said that he thought there should be a vehicle management plan in place. Ms. Raposa said it would be produced before the building became operational; it would need to be in place before an occupancy permit would be issued. ZBA Meeting Minutes 11/19/2024 Page 6 of 9 It was agreed that because only the building permit was in front of the Board, they could not modify the site plan. Ms. Pruitt asked if the project was still protected by the Dover Amendment for educational use. It was agreed that it was. Michael Saffelle, 7 Knight Way Mr. Saffelle said there were only 6 houses on Knight Way, and that 80 cars would cause congestion on the street all day. Jay Brolin, 7 Claire Ave Mr. Brolin asked if the private way status would warrant different conditions. Jill Keyes, 11 North White Pine Lane Ms. Keyes noted an email from the Fire Department about whether there was an adequate amount of parking. She asked if this could be addressed. Ms. Raposa said that that is not what is being appealed at this hearing. Ms. Raposa said that parking is primarily for employees, not for all 200 students. There is a drop-off/pick-up plan for students. Motion: To close the public continent portion of the meeting. By MC Seconded by ML Roll Call Vote: Eric Cor eira — Aye Ryan Maxwell — Aye Matt List — Aye Matthew Cummings — Aye Darlene Pruitt - Aye (Aye) 5 (Nay) 0 (Abstain) 0 PASSED Ms. Pruitt said that she does not see much difference from when the original decision was made. Mr. List agreed. Mr. Correira said that procedurally, he thinks that this will be appealed to the Superior Court, and the two cases will be consolidated and it will be dealt with in the Superior Court. He thinks the Board should stay consistent. Mr. List said that there was no reason for him to change his vote. Mr. Maxwell asked if the Board thinks there is sufficient information for the building permit. Mr. List thought that there were no conditions to submit a vehicular plan prior to the building permit. Mr. Maxwell thinks there should perhaps be a pickup/drop-off plan in place. Ms. Raposa asked the Board if the building permit is for the foundation, will there be another appeal for subsequent building permits. Could the applicant submit the pickup drop-off plan prior to one of those building permits? Mr. List said that you can't block the building permit for the vehicular plan, but that it should be submitted prior to occupancy. ZBA Meeting Minutes 11/19/2024 Page 7 of 9 Motion: That the ZBA upholds the decision of the Building Inspector in granting a building permit in connection with the construction of a 16,800 square foot facility with thirty-two (32) parking spaces at 19 Knight Way; Assessor's Map 003-051 in the Residential 1 (RI) zone. By MC Seconded by ML Roll Call Vote: Eric Correira — Aye Ryan Maxwell — Nay Matt List — Aye Matthew Cummings — Aye Darlene Pruitt - Aye (Aye) 4 (Nay) 1 (Abstain) 0 PASSED Ms. Raposa withdrew her agenda item to review the ZBA Rules and Regulations. This item will be moved to the January meeting. Mr. List noted that for the regulation discussion, if people cite court cases they should have to attach them. Ms. Raposa said she would add that to the list. Motion: To approve the minutes of October 15, 2024 By MC Seconded by ML Roll Call Vote: Eric Correira — Aye Ryan Maxwell — Nay Matt List — Aye Matthew Cummings — Aye Darlene Pruitt - Aye (Aye) 5 (Nay) 0 (Abstain) 0 PASSED Motion: To adjourn at 9:24p.m. by MC Seconded by ML Roll Call Vote: Eric Correira — Aye Ryan Maxwell — Aye Matt List — Aye ZBA Meeting Minutes 11/19/2024 Page 8 of 9 Matthew Cummings — Aye Darlene Pruitt - Aye (Aye) 5 (Nay) 0 (Abstain) 0 PASSED The next Zoning Board of Appeals Meeting will be on December 17, 2024, at 7:30 p.m. bl Matthew Cummings, Clerk Date of Approval Documents Submitted for the Meetine Meeting Notice/Agenda/Legal Ad 19 Knight Way Meeting Minutes DRAFT of October 15, 2024 Sarah Raposa, Director of Planning and Development memo dated /2024 Noemi Kawamoto email with EEC Cover Letter and Report attached, dated 10/23/24 ZBA App Update with Rules and Regulations Document 8/20/24 ZBA Meeting Minutes 11/19/2024 Page 9 of 9