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HomeMy WebLinkAboutZBA_08041992lt . gin ZONING BOARD OF APPEALS' 92 SEP 10 r 11 9: 51 MINUTES August 4, 1992 1 •4 `:.±, L' ii ' I i S The Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA, at 7:35 P.M. Present at the hearing were the following members: George Wojtkiewicz, Chairman; Mary -Lou Cotton, Clerk; Leonard Flynn; Karl Clemmey; Eric Butler and Peter DeTrolio, Associate Member. The hearing on the application of Charles and Karen Michener for a special permit from Section 4, Schedule 4.2.1 of the Zoning By -Laws to construct an addition to a non - conforming structure at 35 Highland Avenue with less than the required front, side and rear yard setbacks in the R -3 Zone began at 7:35 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plan of Land dated December 17, 1991, prepared by Yarworth Engineering and Land Surveying of Norton, MA as Exhibit "C "; and an Architectural Plan of the proposed addition as Exhibit "D ". Mrs. Cotton read a letter from the Planning Board into the record. With five (5) members present they voted four (4) in favor with one (1) opposed to send no recommendation on the application. The Planning Board is of the t opinion that a special permit, rather than a variance, is required. Mrs. Cotton read a letter from the Building Inspector into the record. Mr. Wojtkiewicz returned Mr. Cook's call and they discussed the situation involving the building permit request for 35 Highland Avenue. After much discussion with Mr. Wojtkiewicz, it was determined that the first application to the Zoning Board of Appeals was not for an addition to the structure. It was advised that the request for a building permit be denied and they should seek a variance from Section 4.2.1, Density and Dimensional Regulations for Residential Districts. Mrs. Cotton explained that the first application dated January 25, 1992 was to allow a single family dwelling at 35 Highland Avenue with less than the required minimum front yard, rear yard and side yard setbacks, area and frontage requirements in the R -3 Zone. The hearing was held, the information was presented and the variance was granted. Subsequent to that the Michener's tried to get a building permit. The Building Inspector determined that what they were applying for was not what they had been granted. Mr. Wojtkiewicz asked Mr. Michener to explain the hardship. Minutes of August 4, 1992 Page 2 of 10 Mr. Michener explained that they are applying for a special permit. They were unaware that when they obtained the variance for a legal lot they needed another variance to put an addition on their home. At first they were going to put on an addition, but it was too expensive. They then spoke with the Building Inspector and asked if they could obtain a building permit and he said yes. The Micheners then decided to just rearrange their floor plan. They spoke with a contractor who could give them a better living arrangement within their budget. The contractor suggested putting a shed dormer over their kitchen without going out over the original footprint of the foundation. The Micheners went to obtain the building permit and were denied. The Building Inspector advised them to obtain another variance. Mrs. Michener believed that once she obtained the variance for the legal lot she could decide later about putting an addition on her house. Mrs. Michener spoke with her uncle who is a building inspector in the City of Quincy. He advised her to speak with Mr. Piccalanini, the Inspector of the Building Inspectors in Boston. Mr. Piccalanini advised them to talk with Mr. Don Schmidt, Director of Technical Information in Cambridge. He advised them that they needed a Special Permit. Mr. Flynn explained that when they originally requested a variance in January of 1992 it was because they were refinancing their house. All they requested was a variance for dimensional requirements. There was no question about building. When you build on a non - conforming lot you have to obtain a special permit. The proposed addition will not change the foundation. There are two bedrooms and a bathroom and they are just finishing them. The addition will be a second floor shed with an overhang The hearing closed at 7:50 P.M. The hearing on the application of Peter Fontanini, Trustee, for a variance from Section 4.1.5 of the Zoning By -Law for less than minimum square foot area requirements for individual dwelling units, Section 4, Schedule 4.4.1 of the Zoning By -Law for less than the required number of off - street parking spaces and Section 4, Schedule 4.2.2 of the Zoning By -Law for use of a first floor for apartment uses at 20 -22 Thomas Street in the B -1 Zone. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Site Plan of Land dated November 1, 1991 prepared by Hutchins - Trowbridge Associates, Inc., Mansfield, MA, as Exhibit "C "; and a Proposed Parking Sketch prepared by Hutchins - Trowbridge Associates, Inc., dated May 1, 1992 as Exhibit "D ". Minutes of August 4, 1992 Page 3 of 10 Mrs. Cotton read a letter from the Planning Board into the record. With five (5) members present, in keeping with the Board policy, voted unanimously not to make a recommendation on the above referenced application because the applicant currently has a special permit application pending before the Planning Board. Mrs. Cotton also read a letter from Mr. John F. Dacy of Mansfield, MA. He is 85 years old. His entire family was born and raised in Mansfield and graduated from Mansfield High School. He is asking for help in obtaining the variance for the use of five rooms on the ground floor of 22 Thomas Street. He is a disabled WW II veteran with arthritis and cancer of the bladder These rooms are furnished and ready to be moved into. He suggested that before a decision is made, the rooms should be seen and see that the use of these rooms will hurt no one and will certainly help five senior citizens. Attorney Charles Mulcahy stated that the portion for the parking variance has been withdrawn. Mr. Fontanini has purchased additional lots from Sannies. Mr. Wojtkiewicz asked Mr. Mulcahy to explain the hardship. Mr. Mulcahy explained that they are also trying to obtain a Special Permit from the Planning Board so he has a dual responsibility. Mr. Fontanini completed the building in 1988 and it was intended at that time to be used as a boarding house on the second and third floors; utilizing the first floor for commercial space. Zoning then changed _ and permitted residential dwellings on the first floor. Mr. Fontanini went to the Building Inspector in July of 1989 indicating what he wanted to do in compliance with the zoning. The Planning Board reviewed his application and stated that Mr. Fontanini needed a special permit application for parking. The Planning Board sent Mr. Cook a letter explaining the situation on September 14, 1989. Mr. Fontanini then went to the Building Inspector and obtained a building permit. Then in October of 1989 at a special town meeting, zoning was changed back prohibiting the use of first floor apartment or boarding house use in this particular zone. However, the Planning Board had submitted an application by notice through the Sun Chronicle for an amendment to the Zoning. Chapter 40A says that the first notice of advertisement governs and controls when a new zoning by -law takes affect; even if the town meeting is 60 to 90 days after the first notice of hearing. Mr. Fontanini was bound by the amended zoning by -law that went into effect on October 16, 1989. That prohibited the use of first floor commercial buildings for residential dwellings. Mr. Fontanini has also problems with the lending bank. The Mansfield Cooperative Bank has problems with designating the use as a boarding house. The Bank would feel better holding a mortgage that designates the use as efficiency apartments or an apartment dwelling instead of a boarding house. The Bank has been unable to sell this Minutes of August 4, 1992 Page 4 of 10 mortgage on a secondary market. The Bank is requesting that the name be changed from boarding house to efficiency apartments. Mr. Mulcahy explained that the Building will have beneficial use. It will supply housing for those who cannot afford more expensive apartments. His rents are less as efficiency apartments than other comparable apartments in the area. The parking lot has two entry ways; one on Thomas Road and one on Old Colony Way. Mr. Clemmey inquired as to why the Planning Board is requesting a special permit application. Mr. Fontanini explained that the Planning Board is interested in parking, lighting and landscaping. Mr. Fontanini further explained that he did the complete addition on the fast floor and completely finished it without knowledge that the building permit was not valid. It way only when Mr. Fontanini went for the occupancy permit; all the rooms were furnished, all the people were moved downstairs, their telephones were installed; he discovered that the building permit was not valid. Mr. Flynn asked how many units, the square footage and when the fast floor was completed. There are 19 units with 35 parking spaces. One apartment on the first floor is larger but they are all about 420 square feet. The first floor was completed March 30, 1992. Mr. Mulcahy explained that the square foot requirement for an apartment is 600 square feet. A boarding house does not have square foot requirements, that is why these are only about 420 square feet. The tenants requested this size because it is less maintenance. Each apartment has its own bathroom with either a shower or bathtub, unlike a boarding house. Mr. Clemmey stated his concern over changing the name from boarding house to efficiency apartment. He felt that it is a zoning change. The hearing closed at 8:20 P.M. The hearing on the application of Scott and Margaret Tucker for a special permit from Sections 3.3.1, 3.10.3 and Section 4, Schedule 4.2.1 of the Zoning By -Laws for the purpose of making improvements to, and re- establishing the use of, a vacant residential unit at 40 Draper Avenue, which is located on a common lot with the dwelling at 42 Draper Avenue. The structure at 40 Draper Avenue has less than the required side and rear yard setbacks in the R -3 Zone began at 8:25 P.M. Minutes of August 4, 1992 Page 5 of 10 The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plot Plan dated March 2, 1992 prepared by Yarworth Engineering and Land Surveying, Norton, MA, as Exhibit "C "; and a Floor Plan for 40 Draper Avenue as Exhibit "D ". Mrs. Cotton read a letter from the Planning Board into the record. With five (5) members present they voted unanimously to send a negative recommendation on the application because it is the Planning Board's opinion that the application strongly derogates from the intent of the Zoning By -Law. Lot No. 40 has not be used as residential use for many years; therefore, its grandfather protection under the Zoning Act has been lost. Mr. Wcjtkiewicz asked Mr. Tucker to explain the hardship. Attorney Luke Travis explained that the Tuckers acquired the property in 1986. The property is comprised of a seventy five hundred square (7500 sq. ft.) lot with three buildings situated on it. The first building is 42 Draper Avenue, which is the primary residence of the applicants. The second building is a detached garage, with a driveway leading from Draper Avenue. This garage services the primary residence only. The third structure is 40 Draper Avenue, which is the subject of the special permit application. It is a two story residential structure. It currently consists of eight (8) rooms, including a kitchen on the first floor. The building was last occupied as a residential use approximately twenty years ago. It has been vacant since that time, with occasional storage and miscellaneous use. The Tuckers seek to obtain a special permit in order to obtain a building permit which would allow them to make improvements to 40 Draper Avenue. The improvements would include the addition of an interior staircase to the second floor, the addition of a bathroom, and the reconfiguration of interior partitions in order to provide two bedrooms and living space. Other improvements would include new flooring, new wall and ceiling treatments, and electrical, heating and plumbing updating and improvements. The intention is to use 40 Draper Avenue as a one family rental structure. The Tuckers are trying to restore the building to use how it was originally intended. They plan to have on street parking, or if necessary there is room to the left of the primary residence to put a parking space. There is less than the required setbacks and they are in excess of the density regulations. Mr. Tucker explained that when they purchased the property six years ago, they intended to fix up both buildings with the intention of renting out 40 Draper Avenue. The 40 Draper Avenue building is deteriorating, and has been broken into a few times. The Tuckers belief that if it remains a vacant building it is open to vandalism. Minutes of August 4, 1992 Page 6 of 10 Mr. Flynn raised the issue that they are requesting a special permit to allow two single family residences on one 7500 square foot lot; and under what provision of the by -law can you have two houses on one lot under a special permit. Mr. Travis explained that he originally intended to request a variance but was advised by Mr. Cook to request a special permit. Mrs. Cotton asked if any renovations have been done to the property. The pictures show none, but when you see the house there are new windows. Mr. Tucker explained that when the roof was replaced they put two windows in the dormers. Mr. Cook is fully aware of whatever has been done this house. Mrs. Cotton also brought up the question of parking. Mr. Tucker explained that there is a large area in front of the property where they park their cars and they also have a driveway and garage. If necessary, they will take up part of the lawn and pave it for a driveway. Mr. Tucker also explained that there is a full basement with a furnace and the water is connected. Mr. Clemmey stated that when Mr. Tucker went to the Town Hall to the Assessors Office it would have been wise to document that the water and sewer bills were paid. Mr. Tucker is being taxed as two separate dwellings; they receive one bill with two separate line items on the bill. Mr. Clemmey ask Mr. Tucker what he plans to do if the special permit is denied; because either way he has to come before the Board for whatever he plans to do. Mr. Tucker has no idea; they will have to think about it. Mr. Wojtkiewicz asked the Board if anyone wanted to make a motion that this application is out of order and recommend that it be withdrawn and reapplied for on the basis of requesting a variance. The Board had to make the determination as to whether the application is in order according to the By -Laws. Mr. Flynn stated that the applicant has the responsibility for applying; he is applying for what he wants and has been advised by his attorney. It was decided by the Board to proceed with the hearing. Several abutters were present. Ruth Robinson at 48 Draper gave a positive recommendation. The Tuckers are great people and she does not want to lose them as neighbors. They have been an asset to the neighborhood and have done a beautiful job fixing up the house at 42 Draper Avenue. Helen Uva at 43 Highland Avenue also gave a positive recommendation. Minutes of August 4, 1992 Page 7 of 10 Marilyn Prescott at 36 Draper Avenue had some concerns and a negative recommendation. The 40 Draper Avenue building is three feet from her property line. She is very concerned about the noise, the amount of children in the neighborhood with more traffic and the parking problem. The hearing closed at 8:25 P.M. The hearing on the application of Mario and Monika Marcaccio for a variance from Section 4, Schedule 4.2.1 for a non - conforming addition with less than the required side and rear yard setbacks to a non - conforming structure with less than the required front yard setback at 999 East Street in the R -2 Zone began at 9:05 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plan of Land dated July 8, 1992 prepared by David F. Young, Professional Engineer as Exhibit "C "; and a proposed architectural plan of a two car garage with a mud room prepared by Mario Marcaccio, as Exhibit "D ". Mrs. Cotton read a letter from the Planning Board into the record. With five (5) members present three (3) voted in favor with two (2) opposed to send a positive recommendation on the application. Mr. Wojtkiewicz asked Mr. and Mrs. Marcaccio to explain the hardship. Mr. Marcaccio explained that the ad mentioned front, side and rear yard setbacks, but they have 42 feet frontage, so it only applies to side and rear yard setbacks. Mr. Marcaccio explained that they have a very irregular lot with 8 comers. They have a very wet basement, so they need to move the washer and dryer and other property to a dryer spot. He is concerned that when more construction is done in the area it will raise the ground water. When they decided to put on the addition they wanted to put it in an area that could causes the least interference with the front and side yard requirements. There is also a jog in the addition to allow adequate space to get in and out of the yard without going on their neighbors property to do yardwork and painting the house. The septic system is in the back of the house. Mr. Marcaccio requested that if the variance is granted he would like the description in the decision to state a front, side and rear yard requirement. He just wants the wording to be correct so there will be no problem with the Building Inspector. Mr. Flynn asked if they had given any thought to putting the garage in a different location. Mr. Marcaccio explained that they did except in the rear of the house there is a septic tank and the house on their other side, which is Cherry Street, is very close to the property line. Also the kitchen is on the side with the proposed addition. The hearing closed at 9:20 P.M. Minutes of August 4, 1992 Page 8 of 10 Mr. Stephen McColgan spoke with the Board regarding his present situation. He received a variance from the Board on June 2, 1992. When he went for his building permit he was denied by Mr. Cook on the grounds that the decision failed to mention the proposed garage as outlined in Exhibit "C" Plan of Land prepared by RIM Engineering April 24, 1992. Mrs. Cotton read the July 29, 1992 letter from Mr. Cook into the record. This office has been requested to grant a building permit to Stephen M. and Dianne McColgan, 147 Dean Street. The Zoning Board granted them a variance on June 2, 1992. In the decision please see the area I have highlighted. While you mention the expansion and updating of the kitchen, and building a walk -in closet, you failed to mention the proposed garage as outlined in Exhibit "C" Plan of Land prepared by RIM Engineering April 24, 1992. Please notify me as to the Board's intent. If it was to grant a variance for the garage also please state that in your letter and this should clear up the problem. Mr. Clemmey made a motion to send the letter to the Building Inspecting. Mr. Wojtkiewicz explained that the letter should state that the variance was for the additions and structures to be placed on the subject lot and constructed as shown on the signed plans. It is for a 12' x 28' addition, the 12' x 8' addition to the existing front porch, and the 24' x 28' foundation for the garage. Mr. Peloquin explained that he is representing his father, Leo Peloquin, who could not attend the meeting. The Peloquin's case was tabled until a letter from Island Sales could be presented claiming he attempted to purchase land so that a variance was not needed. Mrs. Cotton read a letter from the President of Island Sales into the record. Please be advised that I am a trustee for the property identified as Island Sales, c/o Foxboro Village. This property abuts the property of Leo E. and Helen E. Peloquin, identified as Lot 3, which fronts on Copeland Drive as shown on the lot plan submitted by Leo E. and Helen E. Peloquin, and identified as Zoning Board of Appeals Plan dated 6/4/92. Mr. Peloquin contacted me on or about February 3, 1992, at my business location and asked me if I would consider the sale of some of this parcel so that he could meet the zoning requirements as to required frontage on Copeland Drive. I subsequently contacted Mr. Peloquin by telephone and told him at that time that the land was not for sale nor would it be due to the nature of the Trust and other considerations. Signed by Mr. Smith, President Island Sales, Inc. Minutes of August 4, 1992 Page 9 of 10 A discussion followed concerning the writing of.the decisions. Mr. Flynn stated that we have run into some problems with our recent decisions. He has checked some other ZBA's and decisions should not be made the same night. This is a deliberative board; the Board should listen to the testimony, think about it and look the situation over. The object of the Board is to make good judgments and write good decisions. The decisions have not be specific enough and quite often you cannot tell what the person requested. He authorized a consideration that we not make a decision on the same night as the hearing. Mr. Wcjtkiewicz stated that they have had the problem of writing decisions for years. No one wants to take the time to really write a very detailed decisions. Richard Lewis, who is a paid person, should be writing these decisions. As far as delaying making the decisions, that is a problem because we don't meet frequently enough. Attendance also has to do with the problem. Mr. Flynn suggested that the individual who makes the motion should provide an written outline to Dick Lewis or whoever. Have procedural discussion placed on the agenda for the next meeting. A motion was made by Mr. Butler and seconded by Mrs. Cotton to grant a special permit to Charles and Karen Michener, 335 Highland Ave. Unanimously granted. Reasons: you have a non - conforming structure that exists under the prior variance; the proposed addition encroaches in no way from the setbacks; does not increase the non- conformity of the structure in any way, shape or form; does not derogate from the extent of the by -laws; and no hardship involved. A motion was made by Mr. Flynn and seconded by Mr. Butler to table Mr. Fontanini, 20 -22 Thomas St., until the September 1, 1992 meeting. Unanimously tabled. Mr. Clemmey would like a letter from the Planning Board explaining to the ZBA exactly what they mean. The 600 square feet of the interior; to change it from a rooming house to an efficiency apartment dwelling. He would also like an opinion from Mr. Burke on Mr. Mulcahy's Proposed Findings; and the Planning Board's definition, in detail, for the requested special permit. A motion was made by Mr. Clemmey and seconded by Mr. Butler to table Mr. Tucker until the September 1, 1992 meeting. Unanimously tabled. Reasons: Totally derogates from the Zoning By -Laws; two houses on one 7,500 square foot lot; it is an undersized lot for one house; dimensional problems, for front, side and rear; the congestion and parking problem; the house has not been used for 20 years; if the owners move, it could end up being two rental properties. Minutes of August 4, 1992 Page 10 of 10 A motion was made by Mr. Clemmey and seconded by Mr. Flynn to grant a variance to Mr. and Mrs. Marcaccio. Unanimously granted. Reasons: Does not derogate from the public good; the neighbors are in favor; and it is not detrimental to the public good. Make sure the decision states front, side and rear yard setbacks; garage and mud room. The hardship is that the water table is high and they have to move their property from the basement; the garage can not be placed in the backyard because of the septic system; in the vicinity of where he is building it would be detrimental to his property because his neighbors have two car garages; it would not be detrimental to the public good; and it is not a public safety factor. A motion was made by Mr. Flynn and seconded by Mr. DeTrolio to grant a variance to Leo and Helen Peloquin. Reasons: Mr. Flynn stated that the lot meets all the requirements of a single family residence other than frontage; much larger lot than required in the zone; it is an application for a single family house; the applicant made an attempt to purchase land to correct variance problem; does not derogate from the public good; the house would have 60 feet of frontage. Mr. Clemmey stated that the application derogates substantially from the intent of the Zoning By -Law; that 100 feet of frontage is needed and he only has 60 feet; it is going on to a major highway (and in his opinion) they need a special permit from the state; no hardship at all was proved; and no financial hardship under Chapter 40A. Motion to grant. Mr. Flynn and Mr. DeTrolio Motion to deny. Mr. Clemmey and Mr. Wojtkiewicz. 2 -2. Mr. Wojtkiewicz stated that the ZBA has won a case. Colbert v. Mansfield Zoning Board of Appeals. Decision was upheld. Mr. Wojtkiewicz received notice from CTI- Cyrogenics. They have appealed the decision and they would like to meet with the Board before they go into court. A letter will be sent to follow up on this matter. Minutes of July 7, 1992 were unanimously approved. The meeting adjourned at 10:30 P.M. Respectfully submitted, Mary-Lou Cotton Clerk