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HomeMy WebLinkAboutmin of zba 08/01/00 r' RECEIVED . Zoning Board of Appeals MinUi64VN CLERKS OFF ICE August 1, 2000 Present: Richard Devine, Chair; Oli~r Kozlowski, Clerk; JaQU ~o~ttr1J:}jt&ler; Elpbeth Garber-Miller; Leonard Flynn The clerk read the public hearing notice. Mr. Flynn, a member ofNRT, excused himself from the meeting and left the room. The clerk read correspondence from the Conservation Commission dated June 20, 2000 and a number ofletters from residents regarding the Great Waves project. Gregor McOregor, counsel for NRT, explained they were challenging the building permit for Building # 1, the administrative office. At the time the appeal was filed, NR T owned property within 180 feet of the site; since then, it has acquired property directly abutting the site. NRT feels it is an aggrieved party because Great Waves will cause diminished usefulness of their land due to noise, light, vibration, and other disruptions, which will be worse than other allowed uses in the zone. r NRT believes Great Waves is an amusement facility, not a recreational use, and is therefore an illegal use in the Industriall zone. "Water park" does not appear in the zoning by-law as an allowed use, and Mr. McGregor said the intent of the zoning change in 1989 to allow "non-municipal" swimming pools was to bring a "swimming club" with an Olympic-sized pool to town. Lou Andrews, 255 Fruit Street and NRT Vice President, explained NRT's standing as an abutter. He said he did not think the intent of the 1989 zoning change was to allow a water amusement park, and submitted a letter from Marydee Flynn, former Planning Board member, saying that board had never approved the plan, but only conducted a site plan review and determined the number of parking spaces needed. Mr. McGregor distributed a package of materials including a Boston Globe article on water parks describing "rides", a map of Water Country in Portsmouth, NH describing "rides", a page from the Water Country web site describing that facility as "more than an amusement park", photographs of rides, and a copy of the Master Plan survey results indicating residents were in favor of the town providing swimming facilities. ( Robert Goldman, 7 Van Gernert Drive, described Water Country's New Hampshire permits, none of which describe a "swimming pool", Water Wizz in Wareham's public amusement license, and US Census Bureau definition of "amusement and theme parks", which includes "water rides". 1/. 1/ f' Mr. McGregor said Water Country categorizes itself as an amusement park by its membership in the New England Association of Amusement Parks and Attractions, and New Hampshire law classifies the use as an "amusement device", while Massachusetts law calls water slides "water amusements". The clerk read the public hearing notice. Jeffrey Angley, representing the appellant, explained~. Clemmey abuts the site on three sides, and therefore has standing as an aggrieved party. He said Great Waves is an amusement park and therefore not an allowed use; and because part of the land in question is still used by the Tweeter Center for parking, this is an expansion of a pre- existing, non-conforming use. r Mr. Kozlowski asked about the Land Court decision saying Mr. Clemmey did not have standi~ in a Tweeter Center (then Great Woods Center for the Perfonning Arts) issue. Mr. Angley said this is a different issue, saying 4,000-6,000 additional vehicle trips per day would adversely affect Mr. Clemmey's property. He added a noise study had found the ambient sound on site to be 45 decibels, and state law does not allow development to raise that by any more than 10 decibels at the property line. Mr. Angley said the study found the level would be raised to 72 decibels, or 500 times the allowed increase. Mr. Angley explained that while Mr. Clemmey was currently using his property for parking, he had previously done a site plan for an office park, which he did not feel he would be able to do with a water park next door. Mr. Angley presented the board with pages from the web sites of other water parks, describing themselves as "amusement parks" and said the board should not accept Great Waves' argument that because they do not have mechanical rides, they are not an amusement park. He cited.cases where the court found water parks to be amusement facilities and not recreational uses, and said this use would be much more intense than the other recreational uses listed in the zoning by-law. Great Waves Presentation [At this point, the hearings were run concurrently.] Dick Samuels, project proponent and founder of Water Country, said when he first spoke to the Building Inspector and Town Counsel about this project, he was told it would be a considered a recreational use. He said the assertion that everything in Great Waves would be a "ride" is not true, as there would be lounging areas, children's pools, volleyball courts, and a wave pool. r Mr. Samuels explained that membership in the New England Association of Amusement Parks and Attractions does not make them an amusement park; he said r- they come under the Attractions section, along With municipal Parks and Recreation departments. He said Great Waves would not have mechanical rides, would not be lit at night, and would have no games or midway. He said changes had been made to the original plan in an effort to respond to all issues raised, including a negotiated settlement with the Board of Selectmen ineluding a traffic management plan and resident discounts. He said this use would have less impact than other permitted uses in that zone. Mr. Butler asked Mr. Samuels to explain the plan for the park. Mr. Samuels described the wave pool and beach area, children's pool, tube rides, flume rides, a raft ride, food service buildings, restrooms, a gift shop, and an administrative building. He said the only mechanical devices would be those to bring rafts back to the top of rides and filters for cleaning the water. He said the site included a pond, and they worked around the wetland areas, using 25-27 acres of the site, and have been through DEP, MEPA, and the Conservation Commission Mr. Samuels explained Phase IT would add a parking lot, three attractions, and one building. Mr. Devine asked if any of the attractions would be visible above the tree line. Mr. Samuels said some may be, in areas where there are no trees or short trees. r Bob McDonald, representing Great Waves, said the cases cited earlier involved different town's by-laws with different definitions. He said the language in Mansfield's by-law is broad enough to consider this a recreational use. He said an amusement park offers a mixture of activities, like rides, games, and entertainment, none of which will be offered at Great Waves. He explained in an amusement park, people are passive, with the rides doing the work; in a water park, people are active. He said the NR T had claimed there would be "aquatic entertainment", which will not be the case, and the concerns about traffic, noise, and vibration issues had been addressed, and restrictions had been put in place. Mr. McDonald said they had never received a noise study, and wondered how one could have been done without the facility being there. He said Great Waves would adhere to the state noise regulations. Mr. Samuels explained the only night lighting would be for security purposes, and those lights would be directed away from the street as part of the agreement with the Board of Selectmen. Mr. Kozlowski asked if the appellants agree that because of the Form A plan filed in February 1998, Great Waves' zoning is frozen; Mr. Angley, attorney for Mr. Clemmey, agreed that the plan comes under the by-laws in place at that time. r Public Comment Sarah Forbes, I Clinton Street, said backyard pools do not require parking, police details, and admission fees, making this use very different from a swimming pool. I' Cindy Ostrowski, Fruit Street, said she was opposed to the project, and cited dictionary definitions of "amusement park" and "swimming." Jane Sheehan, 600 South Main Street, said she objected to the noise, traffic, visual pollution, trash, and property value issues. She said Section 3.1.1 Prohibited Uses should apply, as this project would be "injurious to the community." George Dentino, Gladiola Terrace, cited a guest column written by Tweeter Center General Manager Bruce Montgomery calling this a "theme park. " Representative Barbara Hyland said she would get in touch with the Secretary of Environmental Affairs to seek help at the state level. . Christine Flass, 115 Rumford A venue, said the board should consider the intent of the 1989 zoning change. George W, i Gladiola Terrace, said the board should overturn the Building Inspector's decision and should consider the intent of the by-law, not the language. r Mr. Butler asked what the plan looked like when the applicant first approached the Building Inspector; Mr. Samuels said it was very similar to the present plan, although they had not yet known about the wetland issues. Mr. Andrews asked who first approached the Building Inspector; Mr. Samuels said he and Bruce Montgomery went together. Mr. Dentino said he could find no 1997 plan in the Building Inspector's office showing this site. Angelina Carey, Williams Street, said the board should consider what the residents want. Mr. Goldman said Town Meeting had indicated what the residents wanted when it voted funds to fight the water park, but the Board of Selectmen had made a deal with the developers. Mr. McGregor said Mr. Samuels' own description of the rides, height, and speed corroborates the appellants' cases, making Great Waves sound like an amusement park. He said the use of this site does not meet the definition of swimming as it is commonly known. George Johnson, Day Avenue, said Spooky World in Foxboro has no rides, but calls itself an amusement park. Mr. Devine indicated that both hearings were closed. r