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ZONING BOARD OF APPEALS - -'
MINUTES 41 Hi, I !';ii 19Q
APRIL 16, 1991
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, Chairman; Mary -
Lou Cotton, Clerk; Dr. Stanley Sohn; Karl Clemmey; and
Richard Secher and Peter DeTrolio, Associate Members.
The hearing on the application of CJ's Import Auto Repair
for a variance from Section 4.7 Sign Regulations, Sections
4.7.3 and 4.7.4.1 of the Zoning By -law to affix a sign
larger than three square feet in area to a building located
at 515 So. Main Street in the R -2 Zone began at 7:45 PM.
Mrs. Cotton chose not to be present for this hearing as she
is an abutter. Dr. Sohn was appointed clerk in her absence,
Mr. DeTrolio and Mr. Secher were appointed as voting members
in place of Mrs. Cotton and Mr. Butler, respectively.
The application was labeled Exhibit "A"; newspaper
advertisement as Exhibit "B"; a plan of land dated January
19, 1988, prepared by Rim Engineering of Mansfield, as
Exhibit "C"; and a rendering of the proposed sign as Exhibit
"D." Mr. Wojtkiewicz read the grounds from the application.
The applicants wish to affix a 4x8 -foot sign to the building
that houses their auto repair shop. Dr. Sohn read the
Planning Board's letter into the record. With four members
present, they voted three in favor and one opposed to send a
positive recommendation on this application. Mr.
Wojtkiewicz wished it noted for the record that several
Board members are patrons of this shop. There were no
objections concerning their association.
The applicants explained that they had already purchased and
affixed the sign to the building before they realized that
permission had to be granted to do so. A 3- foot - square
sign, which is what is allowed in this zone, they feel would
be far too small to be noticed by customers. Dr. Sohn asked
if they were to receive permission for this sign, would they
then return at a later date for a free - standing sign. They
.said they would not. The hearing closed at 7:50 PM.
The minutes of April 2, 1991 were read and approved.
The hearing on the application of Richard M. Palanza for a
variance from Section 4 Schedule 4.2.1 and Section 1.5.17a
of the Zoning By -law to subdivide two lots located at 333
and 339 Pratt Street, creating one buildable lot with less
than the required width and frontage in the R -2 Zone began
;" at 8.00 PM.
Minutes of April 16, 1991
Page 2 of 5
The application was labeled Exhibit "A"; newspaper
advertisement as Exhibit "B "; and a plan of land dated
February 8, 1991 prepared by Rim Engineering of Mansfield,
as Exhibit "C." Mr. Secher was appointed as a voting member
in place of Mr. Butler. Mrs. Cotton read the Planning
Board's letter into the record. With four members present,
they voted unanimously to send a negative recommendation on
this application. Mr. Wojtkiewicz presented a copy of the
plan to the audience and read the grounds from the
application. The applicant is a lifelong resident of the
neighborhood and feels that without a variance the land will
be unusable. He has obtained consent to the variance from
all interested neighbors and abutters.
The applicant stated that he wishes to build a single - family
home on this parcel which would allow him to stay close to
his mother since his father has died. He plans.to extend
and use the existing driveway, granting a permanent easement
to his mother's property for a second existing driveway. He
also feels that a precedent has been set in the neighborhood
for the development of this type of lot. Board members
asked questions relating to the type of house he intends to
build (single- family), whether it has town sewer or septic
(septic) and if he has plans for further development of the
property (he does not). There were many abutters in
attendance, several of whom offered support for the
proposal. The hearing closed at 8:15 PM.
The hearing on the application of John P. and Patricia A.
Colbert for an appeal from the decision of the Inspector of
Buildings regarding the issuance of a building permit, dated
March 6, 1991, to Baker Construction of Foxboro to construct
a duplex house at 33 -35 Kingman Avenue in the R -2 Zone began
at 8:25 PM.
The application was labeled Exhibit "A"; newspaper
advertisement as Exhibit "B "; and a plan of land dated July
2, 1990 prepared by Hutchins - Trowbridge Assoc. of Mansfield,
as Exhibit "C." Mr. DeTrolio was appointed as a voting
member in place of Mr. Butler. Mrs. Cotton read the
Planning Board's letter into the record. With four members
present, they voted unanimously that the Inspector of
Buildings' decision be upheld. Also read was a letter from
Town Counsel Bob Mangiaratti to Bert Cook, the Inspector of
Buildings, outlining a history of the laws that apply to
this case, and concluding that the land use has been
protected. Also read was a letter from Donald MacManus,
attorney for the Colberts, to the Bulding Inspector arguing
that Kingman Avenue is not recognized as a public way and
that a second plan of land submitted by the developers had
cancelled out the original three -year freeze on land use.
Minutes of April 16, 1991
Page 3 of 5
Mr. Cook gave his view of this case, saying that Mansfield
town planners agreed with his interpretation of the
situation and the issuance of a building permit. He stated
that the property is connected to town sewer and water and
that there is 100 feet of paved frontage.
Attorney Mark Antine, an associate of Mr. MacManus,
presented the Colberts' arguments that there are two issues
at hand: whether a second Form A plan filed after zoning
changes would supersede the first filing, and that Kingman
Avenue has never been accepted as a street in Mansfield.
Mr. MacManus cited the ways in which a piece of property can
become a street (taking by the town, deeding by a private
individual) and things that do not necessarily make for a
public way (plowing, street lights). Town records show that
a taking of the street was initiated but never completed.
One abutter testified that she paid privately to have
portions of the street paved. Another abutter was told by
the town that because the street was not accepted, she was
entitled to a rebate on her taxes but has instead chosen to
have the town plow in front of her home for 47 years.
Mr. Edward Valanzola, attorney for Baker Construction,
claimed that the burden of proof is on the applicant to
prove that Kingman Avenue is not a public way, since they
are the ones objecting to the issuance of a building permit.
He showed Board members a Form A approval plan, submitted by
some of the abutters now claiming that Kingman Avenue is not
a public way, designating it as a public way. He also
suggested that since Kingman Avenue has existed for over 40
years, it has satisfied a third requirement for being
designated as a public way (squatter's rights). He also
does not believe that the Building Inspector or the Planning
Board would endorse a plan if there were any doubts about
the street's status. Addressing fellow counsel's question
about the right of use being frozen, he referred them to
Chapter 40A which specifically states that although
dimensional requirements may change and would need to be
adhered to, the use for the property is frozen with an
accepted Form A plan. He believes that his clients would
suffer a hardship should a negative decision be made, since
they have proceeded in good faith and have already begun
construction. Finally, he advised Board members to review
town counsel's opinion, the Planning.Board's decision, and
the Inspector of Buildings' reasoning on the matter.
Mr. Antine responsed to several of the issues raised by Mr.
Valanzola: town counsel's letter gave no opinion about
there being frontage on a public way, it is not mere
specualation that Kingman Avenue is not an officially
designated street, and that the burden of proof is on the
Minutes of April 16, 1991
Page 4 of 4
applicant who is applying for a permit to prove that the
street is a public way.
Board members asked questions relating to who paid for
utilities to be brought onto the street (undetermined), and
when the houses on the street were built (some more than 60
years ago).
A motion was made by Mr. DeTrolio and seconded by Mr. Secher
to grant a variance to CJ's Auto Import Repair. Mr.
DeTrolio, Mr. Secher, Mr. Wojtkiewicz, and Dr. Sohn voted to
grant. Mr. Clemmey chose to abstain. Unanimously granted
with one abstention.
A motion was made by Mr. Clemmey and seconded by Mr. Secher
to grant a variance to Richard Palanza. Mr. Clemmey stated
that the neighborhood already has several properties like
this one, the neighbors are supportive, and the lot is
large. Mr. Secher would like to issue the variance with the
restriction that only one single - family home may be built.
Mr. DeTrolio sees no reason not to grant the variance. Dr.
Sohn pointed out that 333 Pratt Street is for sale, and
since Mr. Palanza does not intend to build for two years or
more, it may create a problem for potential buyers. Mr.
Clemmey felt that since the Master Plan has provided for
cluster development of this type of parcel, this proposal
was in fact a lesser use of the property. Mr. Secher voiced
concern about setting a precedent. Mr. Wojtkiewicz felt
that a conflict exists between the merits of the proposal
and the wish to grant permission based on the personalities
involved. The motion is tabled until May 7 so that Board
members can view the property.
In the Colbert case, Mr. Wojtkiewicz felt that the developer
clearly established the intent to use the property so that
the revised Form A plan is not really an issue. The main
issue is whether to follow through with the argument about
Kingman Avenue being a properly accepted street. It is
true that many streets in Mansfield fall into this same
category. Mr. Secher felt that if some abutters claimed
the street was a public way to suit their own purposes, then
the developers should be granted the same privilege. Mrs.
Cotton felt that the town had clearly, at one time, intended
to accept the street and that since other houses have been
built there, the developers should be allowed to do the
same. Mr. Wojtkiewicz stated his desire to view the
property and to determine who paid for the connection to
utilities.
( A motion was made by Mr. Clemmey and seconded by Dr. Sohn to
uphold the Building Inspector's decision. Mrs. Cotton feels
Minutes of April 16, 1991
Page 5 of 5
that the issue is whether the Building Inspector was right
to issue the permit. Board members discussed the precedent
of allowing fellow members, for whatever reason, to take
time in making a decision. It was decided to postpone the
decision to May 7 so that Mr. Wojtkiewicz can obtain answers
to his questions.
The meeting adjourned at 10:00.
Respectfully submitted,
Mary -Lou Cotton
Clerk
Next meeting May 7, 1991