HomeMy WebLinkAboutZBA_01151991ZONING BOARD OF APPEALS {r'
MINUTES
January 15, 1991 i i
The Board of Appeals held its regular meeting in the Town
Hall, Mansfield, MA at 7:45 PM. Present at the hearing were
the following members: George Wojtkiewicz; Mary -Lou Cotton;
Dr. Stanley Sohn; Eric Butler; Karl Clemmey, new member; and
Peter DeTrolio, Associate Member.
The Board held elections for the positions of Chairman and
Clerk. The Board unanimously voted to reappoint George
Wojtkiewicz as Chairman and to appoint Mary -Lou Cotton as
Clerk. The minutes of December 4 and December 18 were read
and approved with Mr. Clemmey abstaining because he was not
a member at the time of the hearings.
Mr. Wojtkiewicz read a portion of a decision rendered by
Bristol County Superior Court Justice Carey regarding the
law suit brought against the Zoning Board by Donald Baker.
The hearing on the application of Don Desvergnes of
Attleboro for a variance from Section 4 Schedule 4.2.1 and
Section 1.5.17a of the Zoning By -Law to construct two
single - family dwellings, one on each of two lots located on
Elm Street (Assessor's Map 7, Lot 15), having less than the
required minimum frontage and lot width in the R -1 Zone was
postponed from December 18 and began at 8:00 PM.
The application was labeled Exhibit "A ", newspaper
advertisement as Exhibit "B ", and plan of land dated
November 21, 1990, prepared by Hutchins- Trowbridge Assoc.
Inc, of Mansfield, as Exhibit "C." Mr. Wojtkiewicz gave a
review of the history of this application. The applicant
had already been granted a variance on January 30, 1989 for
this project. He did not know, however, that he had to
begin executing the project within one year of the granting
of the variance. His year expired and he came back before
the Board with the same proposal in December of 1990.
Because of zoning changes since the time of the original
granting of his variance and an incorrect advertising of
these changes, the applicant was asked by the Board to
return with a revised plan. The application was also
readvertised in accordance with the new zoning by -laws.
Mrs. Cotton reread the correspondence that was entered into
the record at the December 4, 1990 hearing.
Michael Trowbridge was present, representing Mr. Desvergnes.
He explained that the revised plan contained the changes the
Board had asked for, dividing the two lots in question so
that the lot areas in each are closer to conforming to the
present by -laws. Mr. and Mrs. Hingson, abutters at 566 Elm
Minutes of January 15, 1991
Page 2 of 8
Street, were present. They asked several questions relating
to the future use of the property. Mr. Hingson voiced his
disapproval of issuing a variance to a builder who did not
intend to live on the property. He feels that the project
will change the nature of the neighborhood, leaving less
open space. Mr. Trowbridge responded that the Planning
Board had been supportive of this proposal and had worked
with the builder to make the plan less dependent on town
maintenance operations. Mr. Clemmey asked Mr. Trowbridge
some logistical questions about the plan. The hearing
closed at 8:15 PM.
The hearing on the application of the Federal Deposit
Insurance Corporation for a variance from Section 4 Schedule
4.2.1 of the Zoning By -Law to allow an existing single -
family structure at 15 Jason Lane with less than the
required rear yard setback in the R -1 Zone began at 8:15.
The application was labeled Exhibit "A ", newspaper
advertisement as Exhibit "B ", and plan of land dated
November 21, 1990, prepared by Hayward- Boynton & Williams,
Inc. of Attleboro, as Exhibit "C." The Planning Board, with
six members present, voted unanimously to send a positive
recommendation on this application with the caveat that the
variance not be granted until the FDIC signs an agreement
with the Planning Board -- drafted by Bob Mangiaratti, Town
Counsel -- to complete the work on Jason Lane.
Steve Quinn, a Planning Board member, came to give the
Planning Board's view of the situation. They are supportive
of the application and have been working out the details for
the completion of Jason Lane with the FDIC. The issuance of
a variance would allow the FDIC to sell the property,
thereby freeing up funds to complete the street. They
support the application provided the FDIC signs the
aforementioned agreement.
Rich Pasciuto, representing the FDIC, gave a history of the
property. The FDIC came into possession of two properties
on Jason Lane when they took over a failed bank that had
foreclosed on the developer of the project. The FDIC wants
to work with the Town to complete this and other
subdivisions. The only way they will be able to do this is
if the Town allows some liquidation to free up money for
completion projects. The FDIC is willing to sign the
agreement to finish the project if the variance is issued.
The variance is for only a few inches in the rear yard. Mr.
Wojtkiewicz pointed out that there is a deck on back of the
house which means the variance would actually be for
approximately five feet. Mr. Pasciuto agreed to remove the
deck. Mr. Flint, a direct abutter at 832 East Street, gave
Minutes of January 15, 1991
Page 3 of 8
his own history of the property. He had entered into an
agreement with the builder to swap a parcel measuring 10
inches by 2 feet in exchange for the installation of a
fence. When another abutter installed a fence along part
of his property, he agreed to sell the piece of land. When
the builder went bankrupt, he entered into negotiations with
the FDIC to sell them a parcel, and so was surprised to get
a notice for this hearing. Mr. Pasciuto responded that he
could not abide by any previous agreements made between Mr.
Flint and the builder, nor could he afford to purchase the
parcel at the price Mr. Flint had offered it. Mr. Clemmey
asked Mr. Flint if it would be satisfactory to him if the
Board were to issue a variance and require the FDIC to erect
a fence along his property. Mr. Flint responded that he did
not now want the fence but was willing to negotiate the
price of the parcel needed to bring the property into
conformance.
Mr. Butler asked Mr. Pasciuto about the origins of FDIC
money. Mr. Clemmey pointed out that the FDIC does not have
an occupancy release for the property. Mr. Pasciuto
responded that this was only one of many steps he would need
to take,in order to make the proposal work, and that if
costs kept escalating the FDIC may decide to put this
particular project on hold. The FDIC's agreement with the
Town is predicated on having an asset to sell. And the
house is presently under agreement. Mr. Wojtkiewicz asked
if the FDIC were willing to negotiate with Mr. Flint. Mr.
Pasciuto responded that the project was already overbudget
and the problem inherited, so it was not the avenue he
wished to pursue. Mr. Butler pointed out that the FDIC was
before the Board asking for a variance and that that should
be addressed, regardless of what agreement Mr. Pasciuto and
Mr. Flint may come to privately. Dr. Sohn agreed and the
hearing ended at 8:45.
The hearing on the application of Kenneth Smith of
Plainville, d /b /a East Coast Development, Ltd of No.
Attleboro, for a variance from Section 3.5.3 of the Zoning
By -Law to change a building located at 360 Chauncy Street
from use as a residence to use as a real estate and
construction office in the R -2 Zone began at 8:45 PM. The
application was labeled as "Exhibit A," newspaper
advertisement as "Exhibit B," and a plan of land, dated
December 5, 1990, prepared by Hutchins - Trowbridge Assoc. of
Mansfield, was labeled as "Exhibit C". The Planning Board,
with seven members present, voted four in favor, two
opposed, and one abstention to send a negative
recommendation on this application. The Planning Board's
letter, which was read into the record, outlined four
reasons for this negative recommendation. A letter from
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Page 4 of 8
Robert Currivan, an abutter in support of the variance, was
also read into the record. Mr. Trowbridge established the
locus of the building for the Board. The property is
situated amidst other properties that are being used for
commercial and industrial purposes. Edward and Mildred
Epstein, owners of the property, were present and offered
support for the variance.
Mr. Clemmey recommended that consideration on this
application be continued because he believes that the
property's deed is restricted. Mr. Wojtkiewicz advised the
applicant to investigate the situation and, if the deed is
restricted, to obtain the advice of counsel as to what
avenuses may be open to him at that point. If the.deed is
restricted, the application should be withdrawn. If it is
not, his attorney is to provide the Board with a letter so
stating. Mr. Trowbridge advised the Board that he will do
the initial check on the deed. The hearing closed at 9:00.
The hearing on the application of Stephen Brill of Westwood
for a variance from Section 3.5.19 of the Zoning By -Law to
operate a vehicular dealership in a pre- existing building at
888 So. Main Street in the Reservoir District began at 9:00.
Mr. Clemmey stepped down from this hearing because he holds
several vehicular class licenses and does not want to appear
to be in conflict of interest; Mr. DeTrolio was appointed a
voting member in his place.
The application was labeled "Exhibit A," newspaper
advertisement "Exhibit B," and plan of land, dated June,
1990, prepared by Dale MacKinnon, Civil Engineer, was
labeled as "Exhibit C ". The Planning Board, with seven
members present, voted unanimously to send a negative
recommendation on this application. The Planning Board's
letter, which was read into the record, outlined four
reasons for this negative recommendation. Mr. Brill, the
applicant, outlined his plans to sell and maintain high -
quality used vehicles on the property. Mrs. Cotton asked
where the business was presently located and why he wished
to move. Mr. Brill's business is presently in Attleboro and
he feels that this location, on Route 140 and across the
street from Great Woods Performing Arts Center, would be
good exposure for his business. Mr. Wojtkiewicz pointed out
that this type of activity is not allowed in the Reservoir
District and so the Board would need to see a case of
hardship made. Mrs. Nancy Gray McNeely also spoke in
support of the application. Her mother is the owner of the
property and needs to rent the space in order to maintain
the building. She feels that the proposed use constitutes a
continuous use of the property. The property has always
been attractive to businesses like this one because of its
Minutes of January 15, 1991
Page 5 of 8
extensive garage space. There were no abutters present.
The hearing closed at 9:15 PM.
The hearing on the application of Norman Vickery for a
Determination /Finding of the Zoning Board of Appeals for an
extension of a pre- existing, non - conforming use at 515 So.
Main Street, in accordance with Chapter 40A Section 6 of the
Zoning Act, to operate a first- and second -class motor
vehicle dealership and repair shop in the R -2 Zone began at
9:20 PM. Mrs. Cotton stepped down from this hearing because
she is an abutter to the property; Mr. DeTrolio was
appointed a voting member in her place. Dr. Sohn was
appointed as Clerk. The application was labeled "Exhibit
A," newspaper advertisement "Exhibit B," and a plan of land
dated January 19, 1988 and revised January 22, 1988,
prepared by Rim Engineering of Mansfield, was labeled
"Exhibit C". The Planning Board, with seven members
present, voted unanimously to send a recommendation on the
proposed use of the property. It approves of the property
being used for "light duty" equipment; it does not endorse
the use of heavy equipment, such as bulldozers and tractor
trailers. Dr. Sohn read Massachusetts General Laws Chapter
40A, Section 6 into the record. He also read a series of
correspondence from the Building Inspector to the Town
Manager, Mr. Vickery, and Mr. Carney regarding the uses of
this property.
Mr. Wojtkiewicz explained to the assembled group, consisting
of Mr. Vickery, his lawyer, the applicant, many abutters and
others, that Mr. Clemmey holds many vehicular class licenses
and asked if anyone wished him to step down because of this.
There was no objection to Mr. Clemmey's presence. Mr.
Wojtkiewicz then gave a history of the property's non-
conforming use and its current bid to extend the use. Town
Counsel had requested that the Zoning Board make a
determination /finding as to whether the prospective tenant's
use is comparable to the original permitted uses.
Mr. Vickery gave his history of the property. A variance
was never issued for this property, even though it exists in
a residential zone, because his ownership predates zoning
laws. He feels the proposed business would cause less
traffic and less congestion on the property than his
automobile dealership did. He recited a list of other
businesses that are currently operating in the neighborhood
and so feels that the proposed business would not be
detracting from the nature of the neighborhood. He promised
the neighbors that he would monitor all activities on the
/ property to ensure that nothing distasteful is allowed to
occur there.
Minutes of January 15, 1991
f Page 6 of 8
The Board asked many questions regarding the length of time
the applicant has been in business (he has never been a
dealer before), the potential hours of operation (7:30-
5:00), whether the machines use gas or diesel (diesel), and
what types of vehicles would be on the premises. To this
last question, the applicant presented the Board with
brochures illustrating the types of machinery he wishes to
sell and maintain; he also stated that service vehicles
would regularly be on the property. Mr. Butler asked the
applicant if he had plans to expand the business someday, to
which the applicant responded that, yes, he hoped that would
happen.
Mr. Frank D'Ambra, an abutter at 510 So. Main Street, spoke
for many of the abutters present. He presented the Board
with brochures of equipment that the applicant had supplied
to the Selectmen, which depicted machinery much larger than
the ones in the brochures they had just received from the
applicant. He informed the Board that Mr. Carney has been
conducting business on the property despite receiving a
Cease and Desist order from the Building Inspector. He also
pointed out that the storage area in the back of the
building consists largely of wetland and as such would be
useless for storing large pieces of equipment.
in response to inquiry from Mr. Wojtkiewicz, the applicant
stated that he was utilizing the office space and had
received deliveries on the property. Mr. Clemmey asked Mr.
Carney if he had a current license. Mr. Carney responded
that it had been approved but not issued. Mr. D'Ambra
pointed out that it had not been issued by the Selectmen
because of abutters' complaints and would not be issued
until the Building Inspector investigated the operation.
There was some discussion between all parties about whether
there had ever been two separate businesses operating from
the property when occupied by Mr. Vickery. Mr. Finlayson of
514 So. Main Street, Deborah Dalzell of 512 So. Main, James
Catherwood of 511 So. Main, Craig Cotton of 518 So. Main,
and Alma Coyne of 526 So. Main, all abutters to the
property, were present to voice their disapproval for the
proposed use. They, along with Mr. D'Ambra, feel that their
property would be devalued should this type of business be
allowed in their neighborhood. The hearing closed at 10:40
PM.
A motion was made by Dr. Sohn and seconded by Mr. Butler to
grant a variance to the FDIC to allow a rear yard setback of
39 feet ( + / -) at 15 Jason Lane with the condition that the
deck be either removed or relocated to be in conformance
with zoning guidelines. Unanimously granted with condition.
Minutes of January 15, 1991
Page 7 of 8
A motion was made by Mrs. Cotton and seconded by Dr. Sohn to
grant a variance to Don Desvergnes to construct two single -
family structures, one on each of two lots located on Elm
Street (Assessor's Map 7, Lot 15), lot 1 having frontage of
120 feet ( + / -) and less than the required lot width; lot 2
having frontage of 91 feet ( + / -) and less than the required
lot width. Discussion revolved around the fact that a
variance had already been granted for the property, the
square footage was not a problem, and that the Town has an
obligation to follow through with the agreement it
originally made with Mr. Desvergnes through the Planning
Board. Unanimously granted.
A motion was made by Dr. Sohn and seconded by Mrs. Cotton to
deny the request for variance by Stephen Brill. Dr. Sohn
pointed out that, in the Reservoir District, vehicular
dealerships are not allowed even by special permit. Mrs.
Cotton stated that the applicant already has a place of
business and therefore she saw no hardship. Mr. Butler
added that the Town does not need another pre- existing, non-
conforming use. Unanimously denied.
Mr. Wojtkiewicz recommended to the Board that it postpone
making a decision on the Vickery case, taking time to
deliberate the nature of Mr. Vickery's proposal and make an
inspection of the site. He outlined for Board members
several issues they should consider in their decision - making
process:
1. The true nature of past operations on this property
2. The nature of the new proposal. Is it analagous to an
auto dealership?
3. Clarify the nature of operations, i.e. lighting, hours
of operation, noise factors, traffic patterns.
4. Can two businesses operate there and be within the
context of the original uses?
Unanimously agreed to postpone decision until next meeting.
Members agreed to meet with the Planning Board at 7:30 on
Wednesday, January 23, 1991. Debra will send postcard
reminders.
Mr. Clemmey suggested that the Board members each have
engraved name plates. Debra will investigate. He also
suggested that copies of assessor's maps be included in each
application folder. Debra will do same. Lastly, he asked
Minutes of January 15, 1991
(' Page 8 of 8
Debra the status of the Cassidy application, re: they have
paid two application fees. Debra will investigate and
report back.
The meeting adjourned at 11:15 PM.
Next meeting is February 5, 1991.
Respectfully submitted,
Mary -Lou Cotton
Clerk