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HomeMy WebLinkAboutmin of zba 03/14/00 , . . .. f" ZONING BOARD OF APPEALS ' " , I MINUTES l\'IARCH 14. 2000 The Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA, at 7:30 P.M. Present at the hearing were the following members: Richard Devine, Chainnan; Leonard Flynn, Clerk; Eric Butler; Olivier Kozlowski; Jack Vultaggio; Elisabeth Garber-Miller, Associate Member; and Dave Hammond, Associate Member. Ms. Garber-Miller was appointed voting member for the first hearing in place of Mr. Flynn, who arrived a few minutes later, after the hearing had started. Mr. Butler was appointed clerk for the first hearing in place of Mr. Flynn. r The hearing on the application of the, Appeal by Louis Certuse of a Decision of the Building Inspector to not enforce Note 3 of the Schedule 4.2.2 of the Zoning By-Law [75-foot setback when businesses abut residential], with the proposed businesses located at 249 and 263 Oakland Street, and the property owned by the appellant and others at 259 Oakland Street in the 1-2 Zone began at 7:30 P.M. The Notice of Appeal from Decision of the Building Inspector was labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"; Grounds for Appeal was labeled as Exhibit "C"; Schedule 4.2.2 was labeled as Exhibit "0"; a letter dated November 15, 1999 to Bertram Cook from Louis Certuse was labeled as Exhibit "E"; a dictionary page with the word "business" highlighted was labeled as Exhibit "E"; a letter dated December 30, 1999 to Louis Certuse from the Building Inspector was labeled as Exhibit "F"; and a letter dated March 14, 2000 to the Zoning Board of Appeals from Attorney Jeffi'ey Lovely, Foxborough, MA, was labeled as Exhibit "G". Mr. Devine asked the applicant to present his case. r Attorney Mark Antine, 63 Winthrop Street, Taunton, MA, introduced himself as representing the children ofPhyliss Certuse, owners of the single family house. Mr. Amine explained that the four children of Phyliss Certuse are the owners of the residential real estate and a dwelling house at Minutes of March 14,2000 (' Page 2 of? r 259 Oakland Street, Mansfield, MA. Louis Certuse has been authorized by his brother and sisters to execute the Notice of Appeal on their behalf. The appellants are appealing the December 30, 1999 decision of the Mansfield Building Inspector refusing to enforce the 75 foot side yard setback requirement in Schedule 4.2.2.(3) of the Mansfield Zoning By-Law regarding the proposed construction of commercial buildings at 249 Oakland Street (Assessors' Map 30, Lot 136) and at 263 Oakland Street (Assessors' Map 30, Lot 137) which abut the Appellants' residential property at 259 Oakland Street (Assessors' Map 30, Lot 36), all of the properties being located in an Industrial 2 Zoning District. The Appellants request that the Zoning Board of Appeals reverse the decision of the Building Inspector. Carpet Concepts, 2 Summer Street, Foxboro, MA is listed as the site plan applicant for Lot 137; and Robert Arnold, 253 Oakland Street, Mansfield, MA is listed as these site plan applicant for Lot 136. The site plans indicate that the owners of both Lots 136 and 137 are Robert Arnold and Ellen Troy, 253 Oakland Street, Mansfield, MA. The site plans depict the sideyard setback from the locus and proposed commer- cial building on Lot 137 to be 29.37 feet. The locus is a residential property which a single family residential dwelling thereon. The aite plan also depicts a a sideyard setback betWeen the proposed commercial building on Lot 136 and other residential property to be 20.66 feet. Lot 136 also abuts the locus, and it appears that the sideline setback on Lot 136 from the opposed commercial building to the property line of the locus is approximately 27 feet. Both residential lot and Lots 136 and 137 are located in an Industrial 2 Zone, side and rear yard setbacks shall be 75 feet when the businesses abut residential. The proposed sideyard set backs for both Lots 136 and 137 violates the Mansfield Zoning By-Law in that the sideyard setbacks are well below the required 75 feet from the property line of the locus. The proposed construction on both Lots 136 and 137 are in violation of the Mansfield Zoning By-Law in that the sideyard setbacks for both buildings are less than 75 feet as described above and as depicted in the site plans. r Mr. Antine stated that he believes that Mr. Cook based his opinion on not enforcing the 75 foot sideyard setbacks on the opinion of Town Counsel. Mr. Antine further stated that a November 15, 1999 to Mr. Cook from Mr. Certuse letter sets forth why Town Counsel's opinion is incorrect. "Section 6.1.2.2 states that no permit shall be granted fro the construction of any building in violation of any provisions of the Mansfield Zoning By-Law. Section 6.1.2.5 of the Mansfield Zoning By-Law states that the Building Inspector shall issue a building permit only after he has viewed the premises and detennined that the contemplated construction would not be in violation of the Mansfield Zoning Byi-Law. The proposed construction on both Lots 69 and 70 are in violation of the Mansfield Zoning By-Law in that the sideyard setbacks for both Minutes of March 14,2000 (' Page 3 of7 buildings are less than 7S feet as described above and as depicted on the site plans. We are aware that you have received an opinion from the Mansfield Town Counsel and that the 75 foot sideyard setback does not apply to Lots 69 and 70 for two reasons: First, that the proposed buildings are not "businesses as defined in the Zoning By-Law; and second, because the term "residential" is interpreted by Town Counsel, to mean "residential district". The view of "businesses" has been confinned by discussions with Mr. Douglas Annino, a fonner Planning Board Member. He has indicated to Mr. Certuse, that the note 3 creating the 75 foot sideyard setback was to protect residential properties from all types of businesses. The argument "residential" means "residential district" also does not ring true. Again, footnote 3 does not speak in tenns of "residential district". If the footnote was meant to refer to a residential zoning district, it would have said so. Footnote 3 speaks in terms of "businesses" and "residential", not business uses and residential districts. The ordinary meaning of "residential" is a dwelling house, not a residential zoning district. r Mr. Douglas Annino was present at the meaning stated that he lives at ISl Tremont Street and was on the Planning Board at the time, of rezoning certain areas. The creation of the 75 foot buffer was to protect the homeowner and appease the property owners with a big enough buffer to make people feel comfortable. Also, when the soccer bubble was being constructed they had the same problem and in the end the 7S foot buffer was enforced. Attorney Jeffrey Lovely, Foxborough, Ma introduced himself as representing Robert Arnold and Ellen Troy. He passed out a package to the ZBA members with a letter dated March 14,2000 to the ZBk letter dated December 30, 1999 to Mr. Certuse from Bert Cook; letter dated July 28, 1999 to Bert Cook from Robert Mangiaratti, Town Counsel~ a Certification from Town Clerk dated October 13, 1999 re: Planning Board Decisions on Carpet Concepts and Robert Arnold (CEM). These documents were entered into the record and labeled as Exhibit "H". r Mr. Lovely stated that he is in opposing of this appeal. There is ambiguity here and none of these are business uses. Mr. Lovely further stated that accordingly, the term "business" in Note 3, in order to be consistent and to make sense must- connote either" district", "use" or both. (The tenn cannot logically connote "district" because the Note clearly applies only to the II and 12 district and not to any business district.) Lots 69 and 70 are not located in a "business" district nor are their proposed uses considered "business uses" under the By-Law. Special Permits granted for Lots 69 and 70 are for warehouse and bulk sales, clearly within the definition of Industrial Uses per Section 3.6 ofthe By-Law. The special permits specifically prohibit rdBi1 sales to the public, further removing the proposed uses from any defined "business use". The issue of the soccer Minutes of March 14,2000 (' Page 4 of? bubble falls into the business argument and is not considered a business use because it is not for retail sales. Lou Amorouso of 6 Brookside Ave with a residence at 51 Francis Avenue stated when the Depot was built they need that 75 foot buffer to see that things were being done fairly. Andy Gazzolla of 285 South Street (owner of the Soccer Bubble) stated that when you have a business you should have the 75 foot buffer and it should not be challenged. The hearing closed at 8 :20 P.M. The hearing on the application of Charles Coffey for a Variance from Section 4.2.2 of the Zoning By-Law to allow the creation of two lots, one of which will have less than the required lot area, said lots to be created from property located at 15 King Str~ in the R-3 Zone began at 7:45 P.M. r The application as labeled as Exhibit "A"~ a newspaper advertisement was labeled as Exhibit "B"; and Zoning Board of Appeal Plan of Land dated January 10, 2000 prepared by David E. Grant, RLS, Mansfield, MA, was labeled as Exhibit "C". Flynn read a letter from the Planning Board into the record. "With six (6) members present, they voted five (5) in favor one (1) opposed to send a positive recommendation on the application. " Mr. Devine asked the applicant to present his case. Mr. Coffey presented to the Board a medical fonn from Shields Health Care regarding his wife and explained that he would like to divide his land into two separate lots. The lot at 15 King Street with his existing home would be non-conforming and he would like to build a small ranch style house for him and his wife who has a medical problem and cannot do stairs anymore. He loves the neighborhood and would like to stay since he has lived there for 33 years and his daughter will buy his house and live next door. Mr. Coffey further stated that he has tried to purchase property from his side and rear abutters with no luck. (' An abutter, Tom Melborne, 45 King Street, stated that he is opposed to this application and this property has been denied three times already, The road is not wide enough and there is alol of kids on the street. They do not need anymore traffic. The Board spoke with Mr. Coffey and it was stated that the Coffey's have only applied for one variance and it was granted. Minutes of March 14, 2000 (' Page 5 of? Richard Brodeur of 42 King Street was also opposed to this variance because of this concerns over the traffic issue. He has lived there for 3 1/2 years and the traffic has increased in this time. Mr. Coffey further stated that they had considered modifying the house but it is very large and 130 years old. The hearing closed at 8:40 P.M. The hearing on the application of Richard DeSilva for a Variance from Section 4.2.1 of the Zoning By-Law to allow for an addition to with less than the required sideyard setback, the existing house is located at 3 Gale,Lane in the R-l Zone began at 8:40 P.M. r The application as labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"~ and Proposed Addition at Hse No.3 Gale Lane in Mansfield, MA, dated February 8, 2000 prepared by RIM Engineering Co., Inc., Mansfield, MA, was labeled as Exhibit "C". Flynn read a letter from the Planning Board into !he record. "With six (6) members present, they voted four (4) in favor two (2) opposed to send a negative recommendation on the application." Mr. Devine asked the applicant to present his case. Mr. DeSilva presented a petition to the Board dated February 27,2000 and signed by nine of his abutters, all in favor of this addition. Mr. DeSilva further stated they would like to add a two-car garage to his home. They have a corner, very odd shaped lot. The house lies in the middle of their lot, so by adding a garage it will not make the properties appear to be that much closer. The hearing closed at 8:50 P.M. The hearing on the application of Scott Freerksen for a Variance from Sections 3.8.1A and 4.2.1 of the Zoning By-Law to allow for the construction of a detached garage to be located in the front/side yard area, and with less than the required setbacks, with the primary structure located at 63 Lakeview Ave. in the R-l Zone began at 8:50 P.M. r The application as labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"; and Zoning Board of Appeal Plan of Land dated January 1 0, 2000 prepared by David E. Grant, RLS, Mansfield, MA, was labeled as Exhibit "C". Flynn read a letter from the Planning Board into the record. "With six (6) members present, they voted five (5) in favor one (1) opposed to send a positive recommendation on the application." . ....... a. .:.. _ ....-. -.. - . ,,~. -., -. . , Minutes of March 14, 2000 r Page 6 of7 Mr. Flynn read a letter dated March 14,2000 from Joanne Denzler, 55 Lakeview Avenue, into the record. "This letter is to infonn the ZBA that, as indirect abutters (we live at 55 Lakeview Ave.) my husband and I have no personal objection to his wanting to construct a two-car detached garage on his property. It could basically be located any place on the double lot he owns. My concern is that back in 1988 the ZBA denied my husband and I a request for a detached two-car garage. At the time the request was denied because of concern for fire truck access....I hope you will take this matter into consideration when reviewing the application. I would be more than happy to re-apply if this matter is granted. " Abutters, Michael Trahan, 99 Lakevie~ Avenue and Jeffrey Wood, 59 Lakeview Avenue were in favor of this application. Mr. Wood stated that this will not detract from the area, doesn't- obstruct any views of the water. Mr. Devine asked the applicant to present his case. r Mr. Freerksen explained that he has spoken with Bert Coo~ Nick Riccio, Dick Lewis and Michael Trowbridge and there are not exactly sure what is the front yard or the side yard. He would like to construct a two-car garage, 24' x 28' with a full basement, two story with a donner and a 12 pitch roof. His existing garage is really a shed and too small to put a car in it. By placing the garage as opposed he win not obstruct any neighbors views of the lake and it allows the best access from the street. The topography of the property allows the best garage design approach. Mr. Vultaggio stated that he needs to see the actual dimensions with height and width elevations. The hearing closed at 9:10 P.M. r The continuation of the hearing on the application of the Red Roof Inn was discussed at 9: 15 P.M. (Devine, Butler, Flynn, Vultaggio, Garber-Miller). Peter Hauser, who represented Red Roof at the last meeting, introduced Tab Sims a representative of Red Rooffrom Texas to the Board. Mr. Hauser presented the Board with the requested new plans which reduced the height of the sign by 2/3rds. The size of the sign is similar to the size of the Courtyard and the Pickadilly Pub (which understandably are in Foxboro, not Mansfield.) The new height of the pole will be 30' high with a 16'6" x 10'0" sign which will fall just below the canopy of the trees. The hearing closed at 9:30 P.M. r r (' . . Minutes of March 14,2000 Page 7 of7 A motion was made by Mr. Vultaggio and seconded by Mr. Butler to grant a variance to Red Roof with the height not to exceed 30 feet. Unanimously granted (Butler, Vultaggio, Flynn, Devine, Garber-Miller. A motion was made by Mr. Flynn and seconded by Mr. Vultaggio to grant a variance to Mr. Freerksen with the condition that the garage does not exceed the 20' elevation from the street level and the applicant presents the Board with elevation drawings. Unanimously approved. (Flynn, Vultaggio, Butler, Devine, Kozlowski). A motion was made by Mr. Kozlowski and seconded by Mr. Vultaggio to grant a variance to Mr. DeSilva. Granted 4-1 (Y es, Devin~, Butler, Kozlowski, Vultaggio - No, Flynn) Reasons: pork chop lot, shape septic in rear. A motion was made by Mr. Butler and seconded by Mr. Vultaggio to grant a variance to Mr. Coffey. Motion fails 3-2 (Yes, Flynn, Butler, Vultaggio; No. Kozlowski, Devine) , (Certuse Appeal) A motion was made by Mr. Kozlowski and seconded by Mr. Vultaggio to grant the relief requested by the Appellant, and to direct the Building Inspector to enforce the 75 foot setback requirement from the residence's property lot line. Unanimously upheld (Kozlowski, Vultaggio, Devine, Butler, Garber-Miller). The meeting adjourned at 10:50 P.M. ed, ~ Clerk