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HomeMy WebLinkAboutZBA_04161991n 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