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HomeMy WebLinkAboutZBA_041012MANSFIELD ZONING BOARD OF APPEALS - MINUTES - r APRIL 10 2012 The Zoning Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA at 7:30 pm: ' Present at the hearing were the following members: Jack Vultaggio, Chairman; Elisabeth Garber - Miller, Clerk; Kevin Mackie; Philip Shannon; David Luca; Associate Member James Rathbun; Associate Member John McKenna. 2. Gary Eag6n, -536 North Main Street, Map 19,yParcel 60:' The application is for a Finding from Section 3.10.4, Non - Conforming Structures, of the Zoning By -Law for the construction of a new deck on the side of the house and a new roof over the existing front steps at a pre- existing, non - conforming structure at 536 North Main Street in the Residential 3 (R3) Zone. The application was labeled as Exhibit "A" and a newspaper advertisement was labeled as Exhibit "B and the plan "Zoning Plan 536 North Main Street", March 5, 2012 and stamped by Michael A. Trowbridge, Professional Land Surveyor, Hutchins - Trowbridge Associates, Inc., 200 Chauncy Street, Mansfield, MA was labeled at Exhibit "C ". Gary Eagan, the homeowner, was present. On March 28, 2012, the Planning Board, with six (6) members present, voted unanimously to send a positive recommendation on this application for a Finding because the alterations will decrease the encroachment into the setback. Mr. Eagan explained this is a two- family home and the hardship is the size and shape of the lot. Mr. Eagan told the board all the work will be done on the south side of the property because of limited space on the north side. He explained the stairs and platform to the existing deck will be removed but the deck will remain. A new second floor deck will be built with a new platform and stairs to provide a second means of egress for the second floor. The new stairs will also be used to access the first floor deck. Mr. Eagan is also proposing to build a roof over the existing front porch to help keep the steps free of snow and ice. Mr. Eagan said he considered doing the second floor deck on the north side to the property but the deck would be an encroachment on the neighbor's property. The south side of the property does not have any abutters. He told the board the proposed work will improve the appearance of the home. Mr. Luca asked the difference between the existing stairs and the proposed deck. Mr. Eagan said the proposed deck would be approximately nine feet higher than the existing deck. Daniel Horowitz of 539 North Main Street told the board he supports the application because it will be an improvement to the property. Mr. Mackie made the motion that the changes are an alteration to the pre- existing, non - conforming conditions. Mr. Luca seconded the motion. Mr. Luca made the motion that the increase in the non - conformity is not more detrimental to the neighborhood than the existing non - conformity. Mr. Mackie seconded the motion. Discussion: Mr. Mackie said the size and shape of the property is a hardship and the increase to the non - conformity is minimal. Ms. Garber - Miller said it is very important that the second floor, for safety purposes, have a second egress. Motion passed 5 -0 -0. Hearing ended at 7:40 pm. The application is for a Variance from Section 4.2.2, maximum floor area ratio, of the Zoning By -Law to construct eleven (11) residential units and 900 square feet of office /retail space at 2 -4 North Main Street in the Business 2 (B2) Zone. The application was labeled as Exhibit "A" and a newspaper advertisement was labeled as Exhibit "B and the plan "Conceptual Development Plan for the Residences at the South Common ", dated February 7, 2012 and drawn by Annino Incorporated, 125 North Washington Street, North Attleboro, MA was labeled at Exhibit .C11. On March 28, 2012, the Planning Board with six (6) members present, voted three (3) in favor with two (2) opposed and one (1) abstention to send a positive recommendation for the variance application Marco Crugnale was present. Mr. Crugnale told the board the property is comprised of two lots with approximately 19,715 square feet of contiguous upland at the intersection of North Main and West Streets. The property is in the B -2 zoning district which allows rowhouse /townhouses by right. Mr. Crugnale said the vacant lot was the site of George's Cleaners, a three -story wood framed building. The proposal is for an approximately 21,735 square foot mixed use project with three buildings; the first containing three (3) rowhouse /townhouse condominiums, the second containing six (6) rowhouse /townhouse condominiums and the third containing 900 square feet of retail /office space on the first floor with two (2) residential units above. Two parking spaces per unit will be provided in garages beneath the two residential buildings. Parking for the building containing the retail /office space and the two (2) residential units will be in an on -grade parking lot. Mr. Crugnale explained the variance is from Section 4.2.2, maximum floor area ratio, of the Zoning By -law. Based on the 19,715 square foot lot, 15,772 square feet of building would be allowed by right. Mr. Crugnale is requesting a variance to allow a total of 21,735 square feet of floor area, an increase of 5,963 square feet. Mr. Crugnale said the lot contains urban fill that is rare and not found throughout the zoning district and noted the soil would need to be cleaned up. Mr. Vultaggio asked if a 21E has been filed; Mr. Crugnale said it has been filed. He said cleaning up the site is necessary to gain financing for the project. Mr. Crugnale said the shape of the lot is unique, the result of land takings by the Town of Mansfield for the purpose of widening North Main Street. The takings reduced the lot area, resulting in the property line coming right to the curb along North Main Street. Mr. Crugnale said a variance was granted on a previously proposed development, therefore a hardship has already been recognized for this parcel. Ms. Garber - Miller noted the previous project was granted a variance to allow parking under the proposed building but the variance for the proposed building itself was denied. 2 Mr. Vultaggio asked if the retail space would be accessible from the back parking lot. Mr. Crugnale said there will be a break between the retail building and the townhouses for access to the retail space. Mr. Crugnale told the board the property has been vacant for a number of years and the owner has reduced his asking price, making the project more financially feasible. Judy Applebaum of 14 Fulton Street said it is a good project but asked if the dumpster could be moved to the other side of the parking area, away from her property. Mr. Crugnale said he could install an eight -foot masonry enclosure around the dumpster. He said there will be a fence in the back between the properties and additional shrubbery could also be added around this area. Mr. Vultaggio told Ms. Applebaum that relocating the dumpster to another part of the parking lot would make it very difficult for trucks to maneuver in the parking lot. Ms. Garber - Miller asked how this new project is different from Mr. Crugnale's last proposal. Mr. Crugnale said there are three buildings instead of five, the total building area has been reduced by 5,000 square feet and the units are smaller. These changes will allow more greenscape. Mr. Luca asked if the two units over the retail space will have their own parking spaces. Mr. Crugnale said they will have on -grade parking spaces in the parking lot. Mr. Crugnale said the proposed redevelopment of the property with rowhouse /townhouse residential units and a retail component is consistent with the current use of the surrounding properties. The design has been scaled back, incorporates a retail component and adds more greenscape to soften the visual architectural site lines. He said the project will be a plus for the community. Mr. Crugnale submitted letters from Jay Barrows of Barrows Insurance Agency, Inc. In the letter dated March 8, 2012, Mr. Barrows said the members of the downtown business association that he has consulted are in favor of the project. The design, which includes commercial space, will enhance the neighborhood. A letter from Pastor David Arruda of Faith Fellowship United Methodist Church states that the Church Council unanimously voted to support the development project. The proposal will bring new people and prosperity to the Main Street area and benefit the community of Mansfield as a whole. Hearing closed at 8:05 pm. Mr. Mackie made the motion to approve the Variance from Section 4.2.2, Floor Area Ratio, of the Zoning By- law for the construction of a three - building, 21,735 square foot mixed -use development containing eleven (11) rowhouse -style residential condominiums and 900 square feet of office /retail space at 2 -4 North Main Street as shown on the plan, "Conceptual Development Plan for the Residences at the South Common ", dated February 7, 2012 and added that because the footprint of the plan has one design but an optional design has been included, that the motion is for the approval per the footprint, Density Regulations and Floor Area Ratio of the building as shown on the application and the plan. Mr. Rathbun seconded the motion. Discussion: Mr. Luca said this is a good plan but he does not think the parking issue is a hardship because there is parking on the opposite corner of South Main Street, He said he was concerned about the busy intersection, the location of the dumpster and potential soil problems. Mr. Rathbun agreed the plan is an improvement with more greenscape and smaller buildings. He said he was concerned about the dumpster but said Mr. Crugnale has indicated his willingness to work with the abutter. He said he thinks the parking is a hardship because of the land takings. Mr. Mackie said the proposal is a good use of the property and is a good design. Ms. Garber - Miller said she does not dislike the project now that the size of the buildings has been reduced. Mr. Vultaggio said this is a big improvement over the previous plans that have come before the board. He said the board has struggled with projects like this and said these projects should be done within the zoning regulations. He said he agreed there are hardships with this property. Mr. Luca made a motion to amend the original motion to include a condition that the developer provide some mitigation or buffer between the dumpster and the abutter on the northwest corner of the property. Mr. Mackie seconded the amendment to the original motion. Motion passed 5 -0 -0. Mr. Shannon asked about the lighting for the parking lot. Mr. Luca said the lights in the parking lot have to be hooded and would be installed according to code. 4. James and Cester Epstein, 900 Maple Street, Map 39, Parcel 11. The public hearing is on the petition filed by James and Lester Epstein for an appeal of the Building Inspector's January 11, 2012 decision regarding 900 Maple Street in the Residential 1 (RI) zone. The appeal is of the building inspector's determination that the property is being used as a bulk material /sales yard in violation of Section 3.6.2 of the Mansfield Zoning By -law. The hearing was continued from the March 20, 2012 meeting at Mr. Epstein's request. On March 14, 2012, the Planning Board, with six (6) members present voted two (2) in favor with four (4) abstentions to support the decision of the Building Inspector. The members who voted in favor reviewed the Building Inspector's decision and the Zoning By -law, which specifically prohibits commercial uses in the Residential a zoning district. Based on that, they felt the decision of the Building Inspector should be upheld. The members who abstained from the vote did not feel they had enough information to make a fully informed decision. Mr. James Epstein and Mr. Lester Epstein were present. James Rathbun was appointed a voting member for this hearing. Mr. Epstein read into the record a letter dated December 18, 2007 from Mr. William Dowd of 7 Langley Drive. Mr. Epstein said his family has owned the property at 900 Maple Street and the property, Map 40, Parcel 92, across the street for 50 years. He said by combining the two parcels he has the five acres of land required to do the work on the property. Mr. Vultaggio said he was given a report by the Building Inspector that none of the lumber Mr. Epstein deals with comes from his land. Mr. Epstein said he has been cutting wood at 900 Maple Street and the property across the street since 1980. Mr. Epstein read the Zoning By -law Section 3.2.6 of the General Laws; The Definition of Forestry which describes the "cultivating and harvesting of forest products, including if upon more than five acres, the sale of fire wood ". He said it does not say the firewood has to be harvested or cultivated on the property. Mr. Vultaggio asked Mr. Epstein if he cultivates and deals with the wood on his land. Mr. Epstein said yes. Mr. Mackie said Mr. Epstein's application includes a copy of the Mass General Law which says 25% of the product being sold must be produced on the property. Mr. Epstein said his interpretation of the law applies to the sale of trees or farm products but does not say you have to cultivate the firewood on the property. He said he sell about 20 cords of wood per year. Mr. Mackie asked if 900 Maple Street and the property across the street, Map 40, Parcel 92, were purchased separately and if they were deeded as one or two lots. He said the land appears to be two lots, one on the north side and one lot on the south side of Maple Street, He told Mr. Epstein he does not have five acres of land because they are separate lots. Mr. Epstein said both parcels are family -owned and though there is a street between them, they are considered one parcel. Mr. Epstein said according to Mass General Law Section 3 it is considered one lot divided by a public or private way. He said the lots are separate and are deeded individually. H said he will go to the Registry of Deeds and make it one parcel if necessary. Martha Hinchey of 954 Maple Street told the board her land abuts Mr. Epstein's property and she has lived there since 1994. She said over the course of that time she has seen a nicely wood area become pretty barren and when she looks out her window she basically see a bulk storage area. She said she is concerned about the value of her property. Mr. Rathbun asked Ms. Hinchey if she felt she had the right to cut trees on her property. She said yes but this is not a matter of the trees being taken down; she said there is no longer a boundary between the properties. Mr. William Dowd of 7 Langley Drive said he was the writer of the letter Mr. Epstein read at the beginning of the hearing. He said Mr. Epstein has made substantial improvements in the appearance of his yard and has installed a wall, removed the wood chips on the property and has properly stored any machinery on site. Unfortunately this is a residential area. Mr. Dowd said Mr. Epstein has demonstrated an attempt to reduce the noise on week -ends and at night but said with the growth of Mr. Epstein's business comes a responsibility to conduct business in an appropriate place, not in a neighborhood. He said the business has gotten out of hand; the amount of wood on site has grown from being a firewood- creating place to a manufacturing area and he is concerned the value of the neighborhood homes will be affected by a commercial business. Edward Valanzola of 3 Langley Drive said there have been a lot of improvements on the property and Mr. Epstein has been mindful of his neighbors, only working until 5 o'clock on week days and not working on week -ends. He said to Mr. Epstein's credit the business has grown; the business started out supplying firewood but now it appears a tree service business is being run from the property. Mr. Epstein said he has always tried to appease his neighbors. Mr. Valanzola said a cease and desist order has been issued by the Building Inspector and a March 16, 2012 letter from Town Counsel states "it has been held that the business of selling trees and bushes, planted and nurtured elsewhere and delivered to the premises, does not constitute agriculture or horticulture. Mr. Valanzola said most of the wood is coming from off -site, not from the property and said he thinks the Building Inspector's decision should be upheld. Cindy Peck of 954 Maple Street said a barrier between the properties, whether it be a fence or a line of trees, would be helpful because it is very unsightly and is reducing the value of her property. Mr. Vultaggio said he disagrees with Town Counsel and the Building Inspector's opinions and said this is a five -acre parcel of land, where state law allows agricultural uses. Mr. Vultaggio told the neighbors this is not a town by -law, it is a state by -law. If you have five acres of land, you have the privilege to use the land for agricultural purposes. You can't stop him from doing this by right. Mr. Valanzola said the town's Zoning By -law defines forestry as cultivating and harvesting forest products on site. He said most of the wood, if not all the wood, is cut off -site as part of a tree service and there is no on -site cultivating or harvesting. He said having five acres of land does not give a land owner the right to sell firewood. Mr. Vultaggio said there is evidence Mr. Epstein does cut wood on his property. He said no one has asked Mr. Epstein whether or not he uses his five acres of land as part of his business. Mr. Epstein asked for a continuance because his lawyer was unable to attend tonight's meeting. Ms. Garber - Miller told Mr. Epstein if he wants to have an opportunity to consult with his attorney, the hearing can be continued. Mr. Epstein asked if the board would close the hearing and make a decision tonight. He said if he does not like the decision, he will appeal it. Mr. Luca asked Mr. Epstein if he has a storefront or a farm stand on his property and whether customers come to Mr. Epstein's property to purchase wood or he delivers the wood. Mr. Epstein said he sells 20 or 30 cords of wood per year, mostly to family and friends. Ms. Garber - Miller asked the definition of "forestry" versus "bulk storage and sales ". Mr. Mackie said if Mr. Epstein is actually running a forestry service and wood is being cultivated on the property, bulk storage would not be an issue because the agriculture business would be allowed. Lester Epstein told the board he has owned both properties for 50 years. He said at one time the properties were connected but when the town rerouted Maple Street, the property was cut in half. He said there was always a road there; at one time it was a dirt road. He said when he purchased the land the property was used for agricultural business. Mr. Shannon asked Mr. Epstein if new seedlings are planted or new buffers created when the trees are cut. Mr. Vultaggio said the forestry exemption or protection is not limited to cultivation, but includes the selling of firewood. Mr. Valanzola said there is no evidence indicating that 25% of the gross annual sales or annual volume have been produced by Mr. Epstein on this property. Mr. Dowd told the board that 25% of a five -acre property can be harvested but it must be replanted. If you declare yourself a forestry business, you must go by the Forestry Law. Mr. Vultaggio said this is about the protection provided in the state's zoning laws for agriculture uses in residential areas; we are not talking about how it is defined or how it is regulated. Mr. Mackie made the motion to uphold the Building Inspector's cease and desist order for 900 Maple Street. Ms. Garber - Miller seconded the motion. Discussion: Mr. Mackie said the property is in a residential area, a business is being run here and the question before the board is whether it is an agricultural use. Based on the Mass General Law, Mr. Mackie said, in his opinion, it is not an agriculture use because Mr. Epstein does not cultivate or harvest any products he sells which is required by the law. Mr. Rathbun said you are talking about Mr. Epstein's livelihood. He said Mr. Epstein has been there since 1979 and the properties have been used as a farm. He said all the neighbors here tonight have complained in the past but they have also said Mr. Epstein has tried to alleviate the problems. Mr. Mackie said the neighbors have had issues for five years and said he does not know if there has been any attempt on Mr. Epstein's part to alleviate these problems. He said the property is being used as a business and Mr. Epstein has not produced any evidence that he harvests 25% of his sales, volume or dollars from the property. Mr. Mackie said Mr. Epstein has not proven that he is running an agricultural business in accordance with the state statute, Section 3. Mr. Vultaggio said if he owned five acres of the land, it would be all right to clear cut it. Mr. Luca questioned Mr. Mackie's statement regarding Mr. Epstein's attempts to alleviate the problems. Mr. Luca said all the neighbors at tonight's meeting said he has tried to alleviate their concerns. Mr. Luca said he agreed with Mr. Vultaggio that the interpretation of the law is based on the fact that no one assumed that trees were being cut on the property, which Mr. Epstein has told the board he is doing; no one has refuted this and this changes the interpretation of the law. Mr. Valanzola told Mr. Vultaggio that the motion should be to overturn not uphold the Building Inspector's decision because Mr. Epstein appealed the decision and he is now trying to overturn the decision. He said the vote would have to be four votes out of five to overturn the decision. Mr. Mackie made the motion to revise the original motion. Ms. Garber - Miller seconded the motion. Mr. Mackie made the motion to overturn the Building Inspector's order to cease and desist for the 900 Maple Street property. Ms. Garber - Miller seconded the motion. Three in favor. Two opposed. No abstentions, Mr. Valanzola again said the vote would have to be four out of five votes. Mr. Vultaggio said he would check to see if a 4 -1 vote is necessary. The application is for a Variance from Section 4.2.1, front yard setback, of the Zoning By -law to construct a farmer's porch with less than the required front yard setback at 3 Mayflower Drive in the Residential 1 (111) Zone. The application was labeled as Exhibit "A ", a newspaper advertisement was labeled as Exhibit "B" and the plan "Proposed House Addition at HSE.No. 3 Mayflower Drive in Mansfield, MA, dated January 23, 2012, and stamped by Craig E. Cygawnoski, Professional Land Surveyor, RIM Engineering Co., Inc., 150 North Main Street, Mansfield, MA was labeled Exhibit "C ". The hearing was continued from the March 20, 2012 meeting. John and Sandra Fitzgerald, the homeowners, and David Scharff were present. James Rathbun was appointed a voting member for this hearing. A new plan was submitted showing the measurements of the proposed addition to the side of the house, including the soffits and gutters and the overhang at the garage. Mr. Vultaggio explained that because corner lots are subject to front yard setbacks from all streets, three sides of this property have to meet the 40 -foot front yard setback requirement. The remaining side would be considered the side yard and subject to the 25 -foot side yard setback requirement. The proposed addition to the side of the house is 33.4 and 38.1 from the lot line, which meets the 25 -foot side yard setback requirement and therefore does not need a variance. The farmer's porch with a shed roof on the front of the house is 39.5 and 35.0 from the front property line and requires a variance. Mr. Rathbun made the motion to approve the variance for 3 Mayflower Drive per the plan dated January 23, 2012 and revised March 21, 2012 for the front yard setback. Mr. Shannon seconded the motion. Discussion: Mr. Mackie said the house was placed at an angle on the corner lot, giving the property two front yards. Motion passed S -0 -0. Hearing ended at 9:20 pm. 7 6, Old Business Mr. Mackie made the motion to approve the March 20, 2012 minutes. Mr. Shannon seconded the motion. Motion passed 5 -0 -0. Motion to adjourn at 9:40 pm Next meeting is May 15, 2012. Elisabeth Garber - Miller, Clerk Date