Loading...
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 Minutes of January 15, 1991 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