HomeMy WebLinkAboutZBA_011919931
ZONING BOARD OF APPEALS
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MINUTES r
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January 19, 1993
The Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA, at
7:30 P.M. Present at the hearing were the following members: George Wojtkiewicz,
Chairman, Mary-Lou Cotton, Clerk; Leonard Flynn; Karl Clemmey; Eric Butler;
Richard Secher, Associate Member; and Richard Lewis, Zoning Board of Appeals
Advisor.
Mary-Lou Cotton read a letter from Max Volterra, Town Counsel, dated January 13,
1993 into the record. "The ZBA had asked several questions related to a recent
application for a variance, specifically, the Mansfield Jeep Eagle case. Recent court
cases have substantially affected the manner of dealing with alterations to legally non-
conforming structures. These new interpretations of Chapter 40A, Section 6, differ
with respect to whether the alterations deal with residential or commercial structures.
The recent case of Rockwood v. Snow Inn Corp., 409 Mass. 361, makes clear that
with commercial non - conforming buildings, any person desiring to make structural
changes must meet these standards: (a) the structural changes must either comply with
the applicable zoning by -law; or (b) the applicant be granted a variance as to each
instance wherein it fails to comply with the by -law; and (c) the ZBA must make a
finding that the change will not be substantially more detrimental to the neighborhood
than the existing non - conforming structure. These are interpreted by the Supreme
Judicial Court. In summary, the answers to the questions set forth in the ZBA letter
are as follows: (a) The Rockwood case does apply to the Jeep Eagle project; (b) Non-
conforming, non - residential structures cannot be structurally changed or reconstructed
without a variance so long as the proposed change does not satisfy present day zoning;
and (c) Regardless of the "footprint" questions, the ZBA must consider a variance
application if the structure would not conform to by -law standards, and also the ZBA
must find that such a change shall not be substantially more detrimental than the
existing use to the neighborhood. The side yard, back yard, floor -to -area ratio, and
open space requirements are in conflict with the proposed change. These were dealt
with in the variance. The buffer zone requirement is also in conflict with the proposed
change since the precise location of the building affects the ability to provide a buffer
zone. The offstreet parking schedule, the offstreet loading requirements, the screening
and setback, the landscape areas, and the employee parking are all not affected or in
conflict with the proposed changes. Regardless of whether the building is located on
Minutes of January 19, 1993
Page 2 of 12
the lot, these requirements could not be met. Therefore, there would be no need to
consider a variance for those requirements since they do not conflict with the proposed
change. He has also considered the argument set forth in the letter from Donald
Schmidt. The Rockwood case does not discuss differences between intensity and use.
In his opinion, if a structural change cannot comply with a buffer zone requirement in
the by -law, it needs a variance. In addition, since the ZBA made no finding required
by Chapter 40A, Section 6, as to the issue of "substantially more detrimental," that
must also be considered prior to the issuance of a building permit. One of the
requirements of a variance is that "desirable relief may be granted without substantial
detriment to the public good," However, the ZBA made no such finding in granting
the variance. Even if it did, the requirement in Section 6 of "more detrimental" is not
the same as the variance requirement."
Mr. Wojtkiewicz explained that the meeting with the Planning Board will begin and is
scheduled to take one hour. Planning Board members present were Bill Madan,
Michael McClanahan, John Sullivan and MaryDee Flynn. The meeting is to facilitate
communications with the Planning Board and the ZBA. Bill Madan spoke for the
Planning Board. He passed out a Memorandum dated January 19, 1993 from Shaun
Burke to the Planning Board and ZBA regarding Proposed Zoning By -Law
Amendments.
(1) Resource Recovery Facility. (Amend Section 5.9) The Planning Board realized
there is a loophole in the By -Law. There are small incinerators which are not
regulated. The proposal would change Paragraphs 1.5.36 through 1.5.42, definitions;
Paragraph 3.6.5 and add 3.6.6, Classification of Industrial Use; 3.6.5 and add 3.6.6
Schedule of Principle Use Regulations; Section 5.9 Regulated Refuse Incinerator and
Land Fill Special Permit requirements. The purpose is to more adequately address
changes in the State law by amending zoning by -laws.
(2) Signs. (Amend Section 4.7) The purpose is to allow signage within the Reservoir
District. All signage has been prohibited since October of 1989. It appears prohibition
may have been inadvertent.
(3) Residential Compound. (Amend 5.7) The purpose is to clarify the open space
requirement.
(4) Board of Appeals. (Amend Section 6.2, Paragraph 6.2.3) Adding Paragraph d.
Findings. The purpose is to allow the Zoning Board of Appeals to make a finding to
allow the change, extension, or alteration of a non - conforming residential structure
provided that the change, extension, or alteration does not create a new non - compliance
with any other requirement of the Zoning By -Law. This would allow a homeowner to
Minutes of January 19, 1993
Page 3 of 12
modify a non - conforming structure without the more rigorous test required of a
variance if the change, extension, or alteration conforms to the zoning by -law.
Mr. Madam explained that this is for older homes where they are having improvements
done without expanding the footprints.
Mr. Wojtkiewicz explained that at the last ZBA meeting most of time was spent going
through the problems that arise. They have tried to condense these recommendations
into three areas that could be workable to change in the forthcoming town meeting.
Richard Lewis explained the ZBA problems: (1) The non - conforming structure
language - Chapter 40A wording; (2) Signage in the industrial park: size and actual
location of the sign (front of building as opposed to side of the building); and (3)
Signage in the Reservoir District.
The subject of special permits was brought up. Mr. Wojtkiewicz stated that in
situations where it is almost a nonissue that a person put an extension, change or
addition on a house that is already non - conforming, that the change or addition (which
complies to the current by -laws) does not make it any more non - conforming. Why
can't that be a simple permit and not a variance or a finding. He also stated that we
should look at how we word permit, finding and variance in the by -laws. What really
needs to be done, is to be able to give the applicant the by -laws and have them
understand what they are applying for.
Richard Lewis suggested adding a finding definition to the definition section of the by-
law.
Mr. Wojtkiewicz explained to the Planning Board that in the Jeep Eagle case, the new
building will actually be smaller that the existing footprint of the building and
everything being done to the building was internal. It was obvious in this case that the
use was to remain the same. The Board needs to find a means to not address all of the
issues in a commercial or industrial situation, which does not affect residential
property. This is something that the Planning Board should consider in amending the
by -laws.
Mr. Madam responded by stating the need to separate the issues as to non- conforming
structure and non - conforming use and also by defining exactly what they mean. He
also stated that the Attorney General does not consider the content when changes are
made to the by -laws, he is just concerned with the legality of it.
Minutes of January 19, 1993
Page 4 of 12
The subject of walls signs was brought up. Mr. Flynn explained that at the last ZBA
meeting it was voted on that the sign should be placed where the sign is most useful to /
the applicant not just on the front of the building (where it is stated that it should be
placed in the by- laws).
Mr. Clemmey stated that the applicants should know exactly how the process works.
He suggested that a paragraph be placed in the guidelines stating that the Planning
Board makes a recommendation to the ZBA; for example, "This application is acted
upon by the Mansfield Zoning By -Law. The Mansfield Planning Board will make a
recommendation to the Mansfield Zoning Board of Appeals."
The meeting with the Planning Board closed at 8:25 P.M.
The hearing on the application of Michelle and John Barton for a variance from Section
4, Schedule 4.2.1 of the Zoning By -Laws to alter, by adding a second story, a non-
conforming structure, located in the R -2 Zone, with less than the required front yard
setback; and from Section 3.8.1 for an existing detached garage with less than the
required side yard setback at 3 Mary Alice Way began at 8:30 P.M.
The applicant was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and a
Plan of Land dated December 15, 1992 prepared by Hutchins- Trowbridge Associates,
Inc., Man sfield, MA, as Exhibit "C ". Mrs. Cotton read a letter from the Planning
Board into the record. With six (6) members present they voted unanimously to send a
positive recommendation.
Mr. Wojtkiewicz asked Mr. and Mrs. Barton to explain their hardship.
Mr. Barton explained that he would like to expand his home that was built 50 years ago
by his grandfather. The house has one floor, has 900 square feet of living space and is
much too small for his family. He would like to put on a second floor with a 2 foot
overhang and remove the front porch which will change the front yard setback from
15'6" to 21'2 ". Mr. Barton plans to add bedrooms and closets to the house. The
resulting structure will be less non - conforming than the existing structure.
The hearing closed at 8:35 P.M.
The hearing on the application of the Mansfield Little League for a variance from
Sections, 4.4.4.5, 4.4.4.6, and 4.4.4.13 (Parking materials, spaces, and screening and
setbacks, respectively) to construct a parking area at the Mansfield Little League
facility located on town owned property at 275 Otis Street in the R -I Zone began at
8:35 P.M.
Minutes of January 19, 1993
Page 5 of 12
The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and
a Site Plan of Land dated December 14, 1992 prepared by Shea Engineering and
Surveying Co., Inc., Mendon, MA, as Exhibit "C ". Mrs. Cotton read a letter from the
Planning Board into the record. With six (6) members present they voted four (4) in
favor with one (1) opposed and one (1) abstention to send a positive recommendation.
Mr. Wojtkiewicz asked the Little League to explain the hardship.
Mr. Ken Larson, 25 Basin Street, Mansfield, MA, introduced himself, Mr. Brent
Bonnyman, President of the League, and Edward Jameson, Secretary of the League.
Mr. Larson explained that now there are 550 children, ages 7 -15, involved in the
Mansfield Little League and a program of 150 girls in softball; 700 children in all.
They currently have four existing fields at the Otis Street complex. Due to the success
of the program and more people becoming involved in the program they need another
field. Where the proposed new field is located it is now currently being used as a
gravel parking lot. The land is owned by the Mansfield Conservation Commission.
The Commission rents the land to the Mansfield Little League from April to August for
$1.00. The League has an agreement with the Commission that they will not use
asphalt or concrete in the complex, except for the area around the concession stand.
The League wishes to obtain a variance from the ZBA to establish a permanent gravel
parking area and delineate parking spaces with discarded light poles placed horizontally
2 feet above the ground. The League wishes to construct its parking area out of gravel
rather than asphalt for several reasons. Use of the area is seasonal, April through
August. A gravel surface would reduce run off compared with asphalt and it would
allow water to infiltrate into the ground more easily. The League is trying to satisfy
the requests of both the Conservation Commission and the Planning Board. The
League would like to move the parking lot closer to Sweets Pond. The purpose of
placing the parking lot in this location is to keep the cars away from children, so they
can run from field to field without worrying about the cars. Also the cars can enter
and exit the area in a straight line. The League plans to use a combination of stone
dust and gravel for the parking area. They also plan to pave a very small area of the T
section which abuts Otis Street. They will pave that area back to the entry way so that
the people that do come out onto Otis Street, will not create any erosion of gravel onto
the street itself. This paved area was suggested by the Police Department and
Conservation Commission.
Mr. Larson also stated that if the variance is not granted the fifth new field will not be
created. That will mean not all of the children will be able to participate in the Little
League program. There will be too many children for the amount of fields.
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Page 6 of 12
Dick Lewis stated that the Conservation Commission has an agreement with the Little
League which is renewed every three years. This helps monitor the land and keep it ("
well maintained.
An abutter, Dick Sheehan of 355 Otis Street, was very concerned with the use of the
land. He stated that since this is town owned land, the Little League should not be the
only ones to have access to it. The land is open to the town when the Little League is
using it, otherwise the gates are locked.
Mr. Larson explained that the gates have to be locked because of vandalism, and
because people use the land as a dumping ground. He also explained that right now the
gate is on Otis Street. If the parking lot is created they can move the gate closer to the
fields and the public can have access to enter the area and walk along the water.
Mr. Flynn stated that as a result of the fear of vandalism there is a restriction of use of
public land. The public is denied access to walk along the water or put a boat in the
water, since there is a boat ramp. So the only people who have access are people who
have keys.
Mr. Clemmey stated that after attending a Conservation Commission meeting within
the past 6 months, Mr. Sheehan, an abutter to this property, was given a key by the
Conservation Commission to go in and out as he pleases.
Mr. Sheehan stated that he is not concerned about getting in and out of the gate, now
that it is public knowledge that he has a key; his concern is how this land is being used,
and if there is actually a need for a new field.
Karen Ellis, who is representing her uncle's interest, stated her concern over the
location of the parking lot and the new field. She was also concerned that the cars will
be parked too close to the water and might create a hazard with oil leaking from cars.
Mr. Larson stated that the lots are designed to protect the children from cars entering
the lot. The children run from field to field, and if you place the parking lot in the
middle of the field, there will be accidents.
Bill Madan, Planning Board, stated that he is in favor of the gravel parking lot and
Great Woods was just granted a variance for a gravel lot for over 1,000 spaces.
The hearing closed at 9:20 P.M.
Minutes of January 19, 1993
Page 7 of 12
The hearing on the application of Mark Blanchette for use variances from Section 3.3.2
to allow for a two - family dwelling and from Section 3.5.13 to allow for a Craft Shop
and Building Trade with both proposed uses to be located in the R -1 Zone; Mr.
Blanchette also seeks a variance from Section 4, Schedule 4.2.1 of the Zoning By -Laws
for the existing structure which has less than the required front and side yard setbacks,
located at 400 Old School Street in the R -1 Zone began at 9:20.
The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and
Plan of Land dated.April 1, 1992 and revised on December 8, 1992 prepared by Rim
Engineering Co., Inc., of Mansfield, MA as Exhibit "C ". Mrs. Cotton read a letter
from the Planning Board into the record. With six (6) members present they voted
unanimously to send a negative recommendation on this matter because the applicant is
requesting two separate use variances for the same parcel of land, which strongly
derogates from the intent of the Zoning By -Law.
Mr. Wojtkiewicz asked Mr. Blanchette to explain his hardship.
Attorney Stephen Fallon, Mansfield, MA, will represent his client, Mark Blanchette.
Mr. Fallon stated he is representing Mr. Blanchette, who resides on Sean Drive, which
is essentially directly across from the property in question, 400 Old School Street.
Mr. Blanchette is in the carpeting business and for some time he conducted some
limited operations out of his residential property on Sean Drive.
Mr. Flynn asked if he was "allowed" to conduct business there; if Mr. Fallon was
implying he was "allowed" or he just did it.
Mr. Fallon stated he was not implying anything, Mr. Blanchette did conduct business
there. Mr. Blanchette purchased the Findlater property, 400 Old School Street, and at
the time he purchased the property he was hoping he would be able to conduct his
business there. Since that time he had some family problems and has allowed his
brother to reside in the property, which explains the request for the use of the dwelling
as a multi- family use in addition to the request for the use of the property for business
purposes. It was his hope initially that he would have the opportunity to address the
town so that he could rezone the property. The property sits next to the MBTA
railroad tracks, Rt. 495 and abuts very close to the industrial park. He had hoped to
get the property rezoned for industrial. They contacted the town planner in that regard.
They have filed that petition with the Planning Board and he is scheduled to present an
article at Town Meeting on February 9. Since that time the Building Inspector has
issued orders for Mr. Blanchette to stop using the property to conduct his business
operations. He has also been advised in addition to requesting the rezoning to request a
Minutes of January 19, 1993
Page 8 of 12
use variance. Mr. Blanchette wants to store his carpets there and have a very limited
business use. Mr. Blanchette is willing to give up any residential use of the property
because he is very serious about storing his rugs there. He his trying to rectify a bad
situation that exists now because of his prior use of the property. The Town Planner
suggested they have a traffic expert.
Michael Abend, a Traffic Expert, of Abend Associates, Burlington, MA, presented his
Traffic Study. He explained that he was asked to evaluate the traffic situation and
assess the situation directly around the sites, particularly the intersections. School
Street is thirty -two foot wide at the intersection of Old School Street. West of the
intersection the roadway narrows to thirty feet as it crosses the railroad line, with
twelve -foot travel lanes and three -foot shoulders on either side. East of the
intersection, extending through the underpass of Rt. 495, School Street is a total of
forty-four feet wide, with thirteen -foot travel lanes and nine -foot shoulders in either
direction. An automatic Traffic Recorder was done along School Street at the site for a
two -day period. This count revealed that the average daily traffic on the roadway was
approximately 9,300 vehicles per day (both directions). The highest total volume was
between 7:15 and 8:15 with a total of 823 vehicles. During the afternoon the peak one
hour period was 3:30 and 4:30 with a total of 786 vehicles passing the site. The
availability of gaps in the traffic stream to allow left and right turns in and out of Old
School Street are more than sufficient to accommodate any development that would
occur along School Street without affecting travel along this roadway. The sight
distances in both directions fall within the recommended distances of between 319 and
383 feet. Therefore, the intersection layout has sufficient visibility to accommodate
safe operations for traffic existing on this roadway. Since the site is used as a base of
operations, instead of a store or office, the number of trips in and out over the course
of a day are very low.
Mr. Wojtkiewicz asked if at the time Mr. Blanchette purchased the property he knew it
was in a R -1 zone and R -1 requires single family occupancy; further, how does this
transfer into a hardship that relates to this piece of property.
Mr. Blanchette stated he knew the house was in the R -1 zone and that business uses
were not allowed. He explained he was not working and he opened a carpet business
out of his house on Sean Drive. The company grew fast and he used his garage to
store carpet. The company grew a little more. He purchased the property at 400 Old
School Street just for the barns to be used to store his carpets. He does not have a
showroom. He installs just one color beige carpets. In his eyes, he did not think he•
was doing anything wrong because he was just storing the carpets in the barns, and
when he was running the business out of Sean Drive, the Building Inspector was aware
of what he was doing. /
Minutes of January 19, 1993
Page 9 of 12
The Building Inspector has inspected 400 Old School Street and shut the business
down.
Mr. Wojtkiewicz stated he understands Mr. Blanchette wants the business in his home
and that the business is growing, but how does that relate to this particular location and
why not go into a business zone; and how is this a hardship.
Mr. Blanchette explained that property is surrounded by three sides industrial. He has
no choice but to work, the hardship is he has to live. He was told to shut down which
he did for three days, but had to go in for the past couple of days to operate. There is
no heat, no bathroom, he is there for only 1 hour every day, and there is no traffic.
Mr. Wcjtkiewicz was concerned about the two- family home.
Mr. Blanchette explained that Mrs. Findlater had someone living on the first floor for
$100 a month who is still there. His brother was living there because of family
problems. At this point, this is not an issue.
Mr. Flynn brought up the point of how many vans and cars are parked there. Mr.
Blanchette explained he owns 3 vans, so there is never more than 4 vans there at any
time. There is also a dumpster which is also filled to the top. He needs a larger
dumpster to hold all the cut up rugs which are scraps from jobs.
Mr. Butler stated no hardship, as defined in Chapter 40A, has yet to be discussed, and
asked whether it is detrimental to the public good and whether it is detrimental to the
Zoning By -Law.
Mr. Fallon stated it could not be rezoned anything but industrial because it would be
spot zoning. The only way to get any change of use from an R -1 is either from a
variance or a rezoning. He believes that the current thinking on the part of the town
and the townspeople is that there is too much I -1 already. However, he believes there
was a consensus when he talked to the Planning Board that it might be appropriate to
have some limited business use there.
Mr. Flynn mentioned the unanimous vote against this application.
Mr. Fallon stated his understanding of what the Planning Board said was that because
two uses were being requested (multi- family and business use) they were opposed to the
application. He would be very interested to know what there comments would be if the
residential use was withdrawn completely and there was no request for that. His
Minutes of January 19, 1993
Page 10 of 12
impressions of having listened to the Planning Board discussion was that they were
generally in favor of a limited business use. Recollections may differ.
Mr. Madan, Planning Board, stated that he was upset that an attorney would come into
a public meeting and totally misrepresent what went on at a Planning Board meeting.
He also pointed out that the zone lines were drawn, a master plan was done in 1989,
great pains were taken to place those lines where they were to take into consideration
natural buffers that are in that area. The Planning Board gave no indication to anyone
that they would support that type of use.
Mr. Fallon angrily stated he did not misrepresent anyone; when he talks about his
impressions that is exactly what it was, his impressions. He still stands behind what
he says and there is no need to impugn someone's integrity.
Mr. Wojtkiewicz asked Mr. Madan to further explain what was the intent of the Board
when it wrote the letter to the ZBA.
Mr. Madan stated that the recommendation was solely on his request for a double use
variance. That has nothing to do with his article that is coming before a town meeting
to also rezone that property.
Mr. Fallon stated that does not answer the question, and what would be the Planning
Board's position if the request for the residence variance was withdrawn.
Mr. Madan explained it would have to go back before the Planning Board again.
Mr. Wojtkiewicz explained to Mr. Fallon that he represented to the Zoning Board that
the Planning Board would be in favor of this variance if the apartments were taken out.
Mr. Fallon said he did not make that statement.
Mr. Blanchette stated the hardship is that he has to make a living and he is on a $100 a
day fine from the building inspector, which hardship he created himself.
Mrs. Cotton asked how the carpets are delivered.
Mr. Blanchette explained maybe once a week a 10 or 18 wheeler truck from
Philadelphia Carpet delivers to 400 Old School Street at 6:00 a.m.
Mr. Clemmey asked Mr. Fallon about his reference to the Town Planner.
Minutes of January 19, 1993
Page 11 of 12
Mr. Fallon said the Planner had outlined how he could proceed to change the use of
that property. He went over all the potential changes that could be made with different
board approval.
Mr. Flynn asked if Mr. Fallon asked procedural questions to the Town Planner as to
how to proceed to get zoning changes and he was advised how to do that.
Mr. Fallon said he and the Town Planner had philosophical discussions as to
appropriate uses for different parcels and the general feeling of the town as to industrial
land in general.
Mr. Flynn asked if Mr. Fallon is saying that the Town Planner's general attitude and
his philosophy was that this piece of land should be rezoned.
Mr. Fallon stated absolutely not and he never said that.
Mr. Flynn stated that the Board is confused on what Mr. Fallon is trying to say.
Mr. Fallon stated he is just giving us the history between a request for a zoning change
and the request for a variance.
Mr. Clemmey asked if Mr. Blanchette's dumpster is on his property or town property
and if he would like to amend his application at all.
Mr. Blanchette stated that the dumpster is on his property and town property.
Mr. Fallon stated he would be happy if his request to use the property as a business is
granted and it would be perfectly fine if he is denied the request to use the property as
a residential property.
Mr. Fallon stated if the Board feels he misrepresented something please do not hold
that against his client because he only represents him.
The hearing closed at 10:15 P.M.
The Minutes of January 5, 1993 were unanimously granted.
A motion was made by Mrs. Cotton and seconded by Mr. Flynn to grant a variance to
Michelle and John Barton. Unanimously granted. Reasons: Need room; not
expanding footprint; decrease in non - conforming; not detrimental; does not derogate;
and it is a pre - existing non - conforming structure.
Minutes of January 19, 1993
Page 12 of 12
A motion was made by Mr. Butler and seconded by Mr. Clemmey to grant a variance
to the Mansfield Little League. Unanimously granted. Reasons: Not detrimental to
the public good; does not derogate from the Zoning By -Law; hardship to require
pavement for seasonal use.
A motion to deny was made by Mr. Butler and seconded by Mr. Flynn to deny a
variance to Mr. Blanchette. Unanimously denied. Reasons: No hardship - self
imposed from land; derogates from by -law; R -1 Zone - business and multi- dwelling;
not in the public interest; no reason to expand the zone; no way a 10 or 18 wheeler
should be in a R -1 Zone; the traffic study discussed traffic from a single family house
not a business; demonstrated no hardship; derogates from the by -law; single family
zone; applicant was aware of zoning when he purchased the property.
The next meeting is scheduled for February 2, 1993.
The meeting closed at 10:30 P.M.
Respectfully submitted,
Mary -Lou Cotton,
Clerk
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