HomeMy WebLinkAboutmin of planning brd 04/10/02
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Planning Board Min utes ,i.... ,.',,( (' (1,1=' fie E
April 10, 2002 02 Mf. Y I 4 ~ .
Tom French, Chair; Bernie Dolan, Clerk; Kenneth Torman, Mark Cook, Tom McShane AI1 9. 08
Shaun P. Burke, Director of Planning and Development l !, '. L 0
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1. March 20, 2002 Minutes
Motion: To approve as submitted (Dolan-Cook) Three in favor. French abstained.
PASSES
2. ZBA application for Variance - 620 Ware Street - 4.2.1, Side Yard Setback
The application is for a garage addition; the sideyard setback would be approximately
21 feet, although it is difficult to tell from the plan as presented.
Motion: To send the ZBA a negative recommendation because there is no hardship
shown; the applicant could take four feet off the garage or shift it so it does not
encroach. (Torman-Cook) All in favor. PASSES
3. ZBA application for Finding - 58 East Street - 4.2.1 Side Yard Setback
The application is for an addition to accommodate an elderly parent. Mr. Burke said
the proposed plan shows a preexisting, non-conforming sideyard; the addition would
not create any additional nonconformance. Mr. Burke recommended a positive
recommendation.
Motion: To send the ZBA a positive recommendation
(Cook- Torman) All in favor. PASSES
4. ZBA application for Finding - 9 Linden Street - 4.2.1, Sideyard Setback
The application is for an addition that will be less non-conforming than what exists.
Mr. Burke suggested a positive recommendation.
Motion: To send the ZBA a positive recommendation
(Dolan-Torman) All in favor. PASSES
5. ZBA decision - 21 Coral Street - Granted (positive Recommendation)
6. March 2002 Building Permit Summary
7. Meeting Notices: Attleboro, Easton, North Attleboro, North Attleboro, Plainville,
Sharon, Canoe River Aquifer Committee, JTPG
8. SRPEDD Regional Review
9. New England Planning newsletter
10. New England Access newsletter
11. The Beacon
12. Planning magazine
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Wayside Drive/Old Farm Road. The plan shows two lots being combined to form one lot
with adequate frontage and area, with the remaining land shown as non-conforming. The
land shown is in a subdivision that was approved and then rescinded in the mid-1980s.
Mr. Burke recommended endorsing the plan.
Motion: To sign the Form A (Cook-Dolan) All in favor. PASSES
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r 888 South Main Streetl250 Mansfield Ave, Norton (Tweeter Center for the Performing
Arts). Alan Abboud, Harry R. Feldman Inc., the land surveyor, explained Parcel A and C
are owned by Norton Estates; Parcel Band D are owned by DLC. Instead of having
Norton Estate lot in between the DLC lots, equal amounts ofland will be swapped to
create Lots 1 and 2. B will be transferred to DLC; D will be transferred to Norton
Estates. The Norton Planning Board has already signed the Form A. Mr. Burke
recommended endorsing the Form A plan.
Motion: To sign the Form A (Dolan-Cook) All in favor. PASSES
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The clerk read the public hearing notice. Mr. French explained the purpose of the public
hearing; the board will be asked to make a recommendation to Town Meeting on this
zoning article.
The proposed Zoning By-Law amendment would allow the MMAS to hold a holiday
light festival at the Tweeter Center for the Performing Arts between Thanksgiving and
the New Year. Mr. Armstrong explained the amendment has changed from the proposal
that failed at the Fall 2001 Town Meeting; because it failed, the same amendment cannot
be brought back for two years.
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Attorney Fred Armstrong explained how the article has changed since the one that failed
at Town Meeting in 2001. He said it has been narrowed as follows: it is now limited to
the I1 zone, to Mansfield non-profit organizations, can be granted only in conjunction
with an entertainment or festival license from the Board of Selectmen, it is a temporary
use and non-transferrable, issued to and staying with the applicant, rather than running
with the land. A Mansfield non-profit organization has been defmed similarly to the
defmition of a non-profit recreational organization in the Zoning By-Law.
The proposed amendment reads as follows:
To see if the Town will vote to amend the Mansfield Zoning By-Law by adding a second
paragraph to Section 1.5.48 as follows:
The Board of Selectmen, acting as Special Permit Granting Authority, may authorize by special
permit in accordance with the Section 5.5, Special Pennit provisions of the Zoning By-Law, a
temporary use in the I-I zoning district to be conducted by a Mansfield Non-Profit Organization
for up to an additional forty five (45) consecutive days beyond the five (5) consecutive days
allowed in the preceding paragraph, provided that the such special permit for additional days may
only be granted in conjnnction with the grant of an entertainment or festival license by the
Selectmen under M,G.L. c, 140. Such a Special Permit shall be issued only to the Mansfield
Non-Profit Organization conducting the temporary use, is non-transferable, and does not revert to
or run with the title of the land upon which such a temporary use is conducted. For the purposes
of this paragraph, a Mansfield Non-Profit Organization is defined as a not-for-profit, fraternal or
charitable organization based in Mansfield and whose primary purpose is to provide cultural,
social or recreational opporhmities for Mansfield residents.
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And to amend line 3.4,10 The Schedule of Principal Uses as follows:
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Residential
Districts
1 2 3 R
Business
Districts
123
P
B
D
Industrial
Districts
1 2 3 A SPA
3.4.1 0 Temporary Use
y yyy
yyy
y
y** y Y Y N
* * T ernporary Use for more than five (5) days in the 1-1 zone only, may be permitted by special permit as
provided in Section 1.5.48.
The amendment as proposed, which failed, at the Fall 2001 Town Meeting, read as
follows.
To see if the Town will vote to amend the Mansfield Zoning By-Law, paragraph 1.5.48, Temporary Use,
by adding a second paragraph to read as follows (changes in bold):
1.5.48 Temporary Use: A use permitted by right in all districts in this by -law lasting a limited
amount oftirne. For the purposes of this by-law, a limited amount oftirne shall mean no
more than five (5) consecutive days and a total of not more than ten (10) days within any
given calendar year. Temporary use shall be limited to the following: temporary non-
corrnnercial fair, festival, auction, or flea market All temporary uses shall be strictly
limited to usual and customary not-for-profit, fraternal, or charitable organizations.
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[Amendment] For the purposes of this by-law, the Board of Selectmen, acting as Special Permit Granting
Authority, may authorize a special permit to allow a temporary use, as defined in the preceding paragraph,
conducted by an organization as identified in the preceding paragraph, to be conducted an additional forty
five (45) consecutive days beyond the five (5) consecutive days allowed in the preceding paragraph. The
Board of Selectmen, acting as the Special Permit Granting Authority, may grant this special permit
annually only in conjunction with the granting of a permit for an entertaimnent or festiva1license in
accordance with MGL Chapter 140.
Public Comment
George Dentino, Gladiola Terrace, said he was confused about whether this is a special
permit or a zoning change, and asked what jurisdiction the board would have. Mr.
French said the it would be both, but the board would have no jurisdiction, since it would
be granted by the Board of Selectmen. Mr. Dentino said he did not believe it legal to
limit the applicants to Mansfield organizations. Mr. Armstrong explained the way the
article has been drafted was intended to keep the by-law as it stands to allow any
organization to conduct 5-day festivals; the additional 45 days is limited to Mansfield
organizations.
Mr. Dentino said he did not believe the change was substantial enough to bring the article
back. Mr. Burke explained the Attorney General's office would have the fmal say about
whether the change was substantial or not; if it is not, the article will be disallowed. He
said both the article that failed and the new one will be submitted so the Attorney
General's office can compare the two. Mr. Burke has spoken with Kelli Lawrence from
the Attorney General's office, who told him that the Planning Board voting not to support
the article would not prevent Town Meeting from voting on it.
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Mr. Dentino said he was uncomfortable with "entertainment" in the by-law rather than
"festival" as it originally read.
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Mr. Armstrong said they wanted to have a second level of review, which is why the
proposal is for a license granted by the Board of Selectmen; by using the term
"entertainment" the Board of Selectmen have the ability to issue a license.
Mr. McShane said when this idea came up, it made sense to link the grant of the special
permit to a Board of Selectmen license because the special permit was issued by a
different board at that time. However, he said he is confused about the rationale of
linking the special permit by the Board of Selectmen to the entertainment license; that
takes away the checks and balances and makes it one group voting on both items. Mr.
Armstrong said Town Counsel drafted it that way. Mr. Burke explained a special permit
requires a super majority of the Board of Selectmen; the entertainment license requires a
simple majority.
Steve McCaffrey, 236 Mill Street, asked who the sponsor of the article is. Mr. French
said the Selectmen would be sponsoring the article and Mr. Armstrong is presenting the
article to the Planning Board. Mr. McCaffrey was concerned that groups to which
Mansfield residents belong would not be able to conduct this use; he said he thought the
article would be challenged as discriminatory. He said he did not believe the article had
changed significantly.
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Karl Clemmey, South Main Street, said he believed the warrant article is illegal. He said
Section 5.5.1 states the Planning Board or the Zoning Board of Appeals grants special
permits, not the Board of Selectmen. However, Chapter 40A says the Board of
Selectmen have the ability to grant special permits, but that the application must be made
by the owner; he said the town has not adopted that section. Mr. Clemmey said the
Schedule of Principle Uses should show an "S" rather than a "Y" for this use and under
SPA, it should be "S". Mr. Burke explained a 5-day temporary use is a use by right; the
footnote for this use is indicated by the astericks. He further said that Town Meeting can
in fact designate that board as a special permit granting authority.
Board Comment
Mr. Cook asked whether this special permit would run with the land; Mr. Burke said it
would not. Mr. Dentino asked if that conflicted with the Zoning By-Law, which requires
the permit to run with the land; Mr. Burke said it did not, because permits can be granted
based on ownership. If an applicant is not an owner, a permit can be granted with the
owner's permission.
Mr. McShane asked Mr. Armstrong what he thought about the potential for legal
challenges by limiting the article to Mansfield organizations. Mr. Armstrong said the
concept already exists in the by-law with recreational non-profits; he said he has not
spoken with the Attorney General's office, but would be happy to do that, and to present
a memorandum on the issue. Mr. McShane said he thought it might be unwise for the
town to make the Selectmen the granting authority, but didn't think it was necessarily
illegal.
Mr. McShane asked if an organization can come in without a location and get a special
t'", permit. Mr. Armstrong said the location would have to be identified prior to the grant of
r a special permit; Mr. Burke explained Section 5.5.3.2, submission requirements, specifies
the location must be shown in the application. The Board of Selectmen would evaluate
the submission based on the requirements in Section 5.5, the same way the Planning
Board does when considering special permits.
1\rfr. Armstrong explained the by-law requires the owner of the property must consent to
the use, so a location would obviously have to be found first.
Mr. McShane said one of the issues of concern had been the amount of money the non-
profit group would receive versus how much the landowner would receive. He asked
how a non-commercial group would be judged under this by-law. Mr. Butler said there
are standard percentages paid to the non-profit organizations by the companies that run
festivals or fairs; however, if the non-profit runs its own festival or fair, they get all the
profits.
Mr. McShane said he was pleased to see the limitation to the I1 and the non-transferrable
clause.
Mr. Burke said if this goes to Town Meeting and passes, any remaining legal issues will
be reviewed by the Attorney General's office. However, it would be a good idea for
those involved with the article to clear up as many of those issues prior to Town Meeting.
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Peter DeTrolio, Elm Street, said he is opposed to the language giving the ability to issue
special permits to the Board of Selectmen. He was also concerned with the fact that
Town Counsel drafted the article, said the special permit should be with the Planning
Board or the ZBA, and was concerned about a company such as the Tweeter Center
organizing its own non-profit. Mr. Dolan said the Board of Selectmen would not be
obligated to grant the special permit.
Mr. Clemmey said the Planning Board has the ability to amend the article to make itself
the special permit granting authority. Mr. Dentino said he would be more comfortable
with the authority resting with the Planning Board.
Mr. Armstrong said they had tried to address the concerns raised at the last Town
Meeting, and will consider the concerns raised here. As far as corporations creating
"front" non-profit organizations, he said there are considerable hoops to go through to
create legitimate non-profits.
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Mr. French asked whether the Board of Selectmen could be the special permit granting
authority; Mr. Burke said if Town Meeting recognizes that board as such, it can be done.
Mr. McShane said he agreed, although this may be the first time the Board of Selectmen
have been identified as the special permit granting authority. 1\rfr. French suggested
asking Town Counsel to opine on that question for consideration at the next meeting;
Mr. McShane agreed, and added counsel should also be asked about the basic legality of
the article, whether it can be limited to Mansfield non-profits, and is there a sufficient
standard presented here to determine whether the festival or fair is a non-commercial use.
r Mr. McShane said he thought a non-commercial event was one where no admission fee is
paid. Mr. Armstrong said non-profit applies to the organization, no the event itself; non-
profit organizations charge for admission to most of their events.
Mr. French asked the board whether it would like to request an opinion from Town
Counsel on any or all of these issues. Dr. Torman asked whether the Planning Board is
equipped to make the determination about the special permit; Mr. Burke said one of the
reasons the Board of Selectmen was identified is because it grants entertainment licenses,
so it is familiar with that statute; however, the Planning Board or ZBA could do it.
Consensus was not to request a legal opinion, but to send the questions back to the Board
of Selectmen and request they be researched before the Planning Board's next meeting.
Motion: To close the public hearing (Dolan-Cook) AU in favor. PASSES
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The clerk read the public hearing notice and a request for continuance from the applicant.
Motion: To continue the public hearing to May 22,2002 at 8:30 p.m.
(Dolan- Torman) All in favor. PASSES
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Fred Keylor, HW Moore Associates, Inc., explained the plan for additional parking.
There were 125 spaces previously approved, and this plan expands that lot to
approximately 600. The drainage system has been designed to meet the stormwater
management policy, and Mr. Sullivan's comments have been incorporated into the plan.
Soil testing is ongoing. A landscaping plan shows plantings, including trees. There are
three access points; two previously approved and one new one.
The clerk read Mr. Burke's comments. Mr. Keylor said no changes have been made to
the Mass Highway curb cut permit or to the traffic management pian; the parking spaces
shown bring the plan up to current zoning; the slopes at the western entrance will be
stabilized with 4-1 side slopes and lawn.
The clerk read Mr. Sullivan's comments. Mr. Keylor said material had been moved to
become part of the seating alterations project; grades have been adjusted to provide cover
for drainage structures; revised calculations have been submitted; runoff paths have been
shown; 100-year elevations have been added to the plan; test pits were done throughout
the site, showing glacial till, and permeability tests have been done and are ongoing.
Mr. Burke said the plans have been revised since Mr. Sullivan's frrst memo, and Mr.
Keylor has said those comments have been incorporated into the plans.
Board Comment
:Mr. McShane asked about the previously approved 125 spaces;:Mr. Keylor said that was
done through another site plan process. Mr. Burke explained the Building Inspector had
r ruled that area was not part of the locus, but the ZBA overturned that decision.
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r- Mr. Keylor said there will be 611 parking spaces total at the end of this project. Mr.
Montgomery said there are approximately 5,300 parking spaces throughout the site, plus
1,600 they have access to on the land where the water park had been proposed. The 611
to be picked up with this lot will make up for some of the spaces that will be lost on the
abutting property.
Mr. McShane asked whether a queing analysis had been done for getting out of this lot,
then getting out of the main entrance. Mr. Montgomery explained all the lots are
controlled by the traffic management staff, and that patern changes with each show. He
said he anticipated using the new lot for employees, since they arrive before the crowds
and leave either well before or well after the crowds.
Mr. McShane asked about lighting. Mr. Keylor showed the board a lighting plan, which
is a continuation of the 125-space lot, with the illumination pattern and values. The lights
have visors to direct the lights downward rather than outward.
Mr. McShane asked about the outlet of the drainage basin; Mr. Keylor said there is a
headwall to an 8" pipe, which discharges easterly to an existing wetland more than 100
feet away.
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Mr. Burke said he had spoken with Mr. Keylor about the fencing around the drainage
area. Right now, it is to the west and north; Mr. Burke said he would like it to go all the
way around the basin. Mr. Keylor said the basin is about five feet deep, and there is a
gate on the northern side. Mr. Montgomery said he was willing to fence in the entire
basin.
Public Comment
Mr. Clemmey asked about a memorandum from the Police Department. The clerk read a
memo from the Police Department saying no traffic signs are required.
Mr. Burke said the changes have been made as asked; however, there are some remaining
Engineering issues. Mr. Dolan said he felt comfortable voting tonight.
Motion: To send the Building Inspector a positive recommendation with all department
head comments completely addressed, specifically the Town Engineer's concerns, and
that the drainage area be completely fenced. A copy of this recommendation will be send
to the ZBA. (Dolan-Cook) All in favor. PASSES
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Following the vote, Mr. Dentino returned to the room and said when this phase of the
parking lot frrst came up, the Building Inspector, Planning Board and Town Counsel
made a determination it needed a special permit; the ZBA overturned those
determinations. Then it was pulled from the ZBA; Mr. Dentino asked what happened.
Mr. Montgomery said there has been drainage installed in the area of the frrst 125-spaces,
for which they have a building permit, and there has been material removed from the
parking area to the new seating area. He said they had always believed the lot was a legal
use regardless of the number of spaces.
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Mr. French said the application before the board is for a site plan review, which is what
was done. The determination as to whether this is allowed under zoning will be up to the
Building Inspector when he reviews the building permit application. Mr. Dentino asked
how, if the :ftrst time around, the board decided this was a special permit use, it wouldn't
be the same this time around. Mr. Dolan said the board's opinion on that issue was
overturned. Mr. Dentino said this is a much larger lot than the originally proposed 125
spaces. Mr. McShane said the Planning Board doing a site plan review on this does not
make it legal if it isn't; based on the ZBA's decision on the frrst site, this entire property
becomes a pre-existing, non-conforming use.
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Mr. French asked if the board would like to send recommendations to Town Meeting on
the charter change articles. Another article the board will likely be asked about is the
community preservation act.
Mr. Dolan asked if would be possible to charge fees for facilities like tennis courts; Mr.
Cook said when private organizations use fields or courts, they pay a fee which goes to a
gift account. Mr. McShane said he didn't think Town Meeting would vote for something
like that.
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( Motion: To adjourn at 10:30p.m. (Torman-Dolan) All in favor. PASSES
Date of next meeting: April 24, 2002 at 7:30 p.m.
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C <s:,/ e of Clerk 't:7
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Date of Approval
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