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HomeMy WebLinkAboutZBA_06151993ZONING BOARD OF APPEALS MINUTES June 15, 1993 The Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA, at 7:40 P.M. Present at the hearing were the following members: Mary-Lou Cotton, Clerk; Karl Clemmey; Leonard Flynn; Eric Butler; and Peter DeTrolio, Associate Member. Bertram Cook, Building Inspector /Zoning Enforcement Officer was also present. Mary-Lou Cotton was appointed Acting Chairman. Leonard Flynn was appointed Acting Clerk. Peter DeTrolio was appointed voting member in place of George Wojtkiewicz. T13 The hearing on the application of David M. Bielan for a variance from Section 4, Schedule 4.2.1 of the Zoning By -Laws to construct a non - conforming accessory building (a garage) with less than the required side yard setback on a lot with less than the required minimum lot area which contains a house with less than the required front and side yard setbacks at 46 Benefit Street in the R -3 Zone began at 7:50 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plan of Land dated May 10, 1993 prepared by David E. Grant, Land Surveyor, Mansfield, MA, as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. With five (5) members present they voted three (3) in favor with two (2) opposed to send a positive recommendation on the application. Mrs. Cotton asked Mr. Bielan to explain his hardship. Mr. Bielan explained that he would like to build a 13 112 x 24' garage 2 feet in from the property line so as to line up with the existing driveway. The existing garage is 3 1/2 feet in from his property line and if he places the garage over more he will not be able to pull his car straight in from the existing driveway. The house was built in 1945 so it is a pre - existing non - conforming lot. Mr. Clemmey stated that this is a very congested area and this addition will not derogate from the Zoning By -Laws. An abutter, Mr. Robert Paulson of 50 Benefit Street, who owns the lot directly behind Mr, Bielan and also lots 51, 52 and 57, gave a positive recommendation. Afinutes of June 15, 1993 Page 2 of 7 An abutter, Mr. Robert Linari of 55 James Street, who owns the lot directly next door to Mr. Bielan and also lots 53, 59 and 60, also gave a positive recommendation. The hearing closed at 7:50 P.M. The hearing on the application of Herbert M. Wuth and Joyce Fisher for a variance from Section 4, Schedule 4.2.1 of the Zoning By -Laws to allow for two single - family house lots at Barbara Road /Judy's Lane with less than the required lot frontage and lot width in the R -2 Zone began at 7:55 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plan of Land dated November 2, 1992 prepared by Hutchins- Trowbridge Associates, Inc., Mansfield, MA, as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. With five (5) members present they voted three (3) in favor with two (2) abstentions to send a negative recommendation on the application. The Planning Board is of the opinion that the applicant is creating a self - imposed hardship. Mrs. Cotton asked Mr. Wuth to explain his hardship. Mr. Wuth explained that he would like to create two house lots. Each lot would have approximately 3 acres of land, but the only access to these lots are from Barbara Road and Judy's Lane. The houses are placed in these locations because of the wetlands. The frontage requested for one lot would be 27.63 feet and the other lot would be 47.74 feet, where 100 feet is required. Abutters, Ann Marie and Lou Diamond of 15 Judy's Lane, Tara Moore of 18 Barbara Road, and Wayne Smith of 6 Judy's Lane, had various questions regarding how far you are required to build from a river or wetlands; will they have more water around their property when the fill is in place; what kind of home will be built; approximately how large each lot is, what size lot is required to build a home; and if they could view the plans. The abutters reviewed the plans and were informed that each lot is approximately 3 acres; approximately 30,000 square feet on each lot is buildable and 15,000 square feet is the size required to build a house. The houses will each be single family and the water problem should not be increased. The hearing closed at 8:30 P.M. The hearing on the appeal of John and Francis Jardin of 498 Williams Street began at 8:30 P.M. The Jardin's are appealing a decision by the Zoning Enforcement Officer dated April 22, 1993. The Zoning Enforcement Officer finds that a retail business (a Minutes of June 15, 1993 Page 3 of 7 bakery) is being operated out of a residential dwelling in the R -1 Zone in violation of the Zoning By -Law, specifically Section 3.5.1. The Jardin's contend the use meets the definition of Home Occupation, Section 3.5.21. Mr. DeTrolio stepped down from this hearing due to a conflict of interest. Mrs. Cotton explained to Mr. and Mrs. Jardin, 498 Williams Street, that they do not have a quorum. Mr. and Mrs. Jardin had the choice to either wait until the next meeting scheduled for July 20, 1993 or proceed with their appeal, minus one member of the Board. All four members of the Board would have to give a positive vote in order to overturn the decision of the Zoning Enforcement Officer. Mr. Jardin decided to proceed. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; a Plan of land dated June, 1963 prepared by James Freeman, C.E., Attleboro, MA, as Exhibit "C "; a packet of documents containing letters and /or newspaper clippings as Exhibit "D "; a Permit to Operate a Residential Kitchen Establishment due to expire June 1, 1993 as Exhibit "E "; and a Permit to Operate a Bakery Establishment due to expire June 1, 1994 as Exhibit "F ". Mr. Flynn read a letter from the Planning Board into the record. With five (5) members present they voted unanimously to support the decision of the Zoning Enforcement Officer. Mr. Flynn read a letter from Bert Cook dated April 22, 1993 into the record. This letter is to notify you that you are in violation of the Mansfield Zoning By -Law Schedule of Principal Use Regulations Section 3.5.1. You are using a part of your dwelling as retail use, specifically a bakery. Please see Classification of Business Uses 3.5.1 definition of Retail Store. You will see "bakery " included in this definition. However, the RI zone does not allow retail stores. During our two conversations you consistently maintained that your use is agriculture. I disagree with you. I would bring your attention to Section 3.2 Classification of Extensive Uses, specifically 3.2.1 Agricultural which states: "Land for primary use of agriculture, horticulture, viticulture and, if upon more than two acres, a commercial farm for the raising of cattle, horses, sheep, goats, poultry or a farmstand for the sale of farm products." Your land does not supply any product to satisfy the intent of this definition. You are hereby directed to Cease and Desist all operations upon receipt of this letter. You have the right to appeal this decision to the Mansfield Zoning Board of Appeals. However you must file this appeal within 30 days. Your failure to do so will result in my initiating legal action in a court of competent jurisdiction. Minutes of June 15, 1993 Page 4 of 7 Mr. Flynn read a letter from Margaret and William Weber, 1478 West Street, into the record. They have been good neighbors for 29 years and they asked that the Jardin family be allowed to run a small cottage industry out of their home. They should be commended for their industry not punished for their hard work. Mr. Flynn read newspaper articles or clippings; one dated December 17, 1992 which ran in the Sun Chronicle; and one dated April 2, 1993 which ran in the Mansfield News which profiled Fran's Pies. Mr. Flynn read a letter into the record dated May 20, 1993 from Paula A. McBrine, M.D. I have been asked to write on behalf of Mrs. Frances Jardin who has been under my care since October of 1992. She is a 55 year old woman with terminal Stage IV advanced endometrial cancer with lung and abdominal metastases. With the administration of chemotherapy, she has been given some extension on her life span but at the price of requiring treatment every 3 weeks in the hospital and being unable to work at least 1 week out of the 3. She has certainly been weakened by these treatments and would not be expected to be able to carry out her normal daily activities. She will inevitably require more aggressive and more frequent treatment which I would expect would cause additional changes in her general condition. With her permission, if you have further questions you can call at any time. Mr. Flynn read a portion of a memo from Dick Lewis dated June 15, 1993 into the record. In my opinion, the only issue on the table for discussion is the question of whether the business of the Jardin's meets the definition of a Home Occupation. It is this question that formed the basis of the appeal filed by the Jardins. Based on my reading of the material put forward by the Building Inspector, and my basic understanding of the nature of the business being conducted by the Jardins, it does not appear to me that the meet the definition of a Home occupation as found in Section 3.5.21 of the Mansfield Zoning By -Law. Mr. Flynn read the definition of Home Occupation from the Zoning By -Laws into the record. Home occupation shall be any use which is conducted solely by the inhabitants of the building and carried on strictly within the principal building. The occupation shall be situated in the same dwelling used by the person as his private residence. Any such home occupation shall not be detrimental or objectionable to the residential character of the neighborhood, including but not limited to the altering of the exterior appearance of said building, increasing vehicular traffic, cause the emission of odor, gas or smoke, cause glaring or unshaded lights, excessive dust, noise, or cause electrical disturbances, including interference with the reception of television transmissions. An accepted off - street parking plan shall be provide where additional vehicles will be attributed to the home occupation. Minutes of June 15, 1993 Page 5 of 7 ( Bert Cook presented an Application for Home Occupation and stated that Mr. and Mrs. Jardin have never applied for this application. Mr. Cook then asked Mr. Jardin if he is a home occupation and are there people employed at the applicant's home who do not live there. Mr. Jardin employs two part-time works who do not live there. Mr. Jardin stated to Mr. Cook that he is not a retail baker. One year ago when he was unemployed he had an idea and began to experiment with baking pies at night. Everyone always loved Fran's apple pies. Mr. Jardin then paid $10.00 for a copy of the ZBA By -Laws and read Section 3.5.21, Home Occupation, Mr. Jardin then started baking samples for restaurants. He applied in March for a Permit to Operate a Residential Kitchen Establishment and was issued the Permit in April of 1992. He then applied for and was issued a Permit to Operate a Bakery Establishment. All these permits were approved by the Health Inspector. The Jardins baked throughout the spring. In September, 1992 the Providence Journal did an article on Fran's Pies. From the beginning, Mr. Jardin stated, they went by the law. The Jardins again looked at the By -Laws and found under Section 3.2.1 Agriculture. Land for primary use of agriculture, horticulture, viticulture and, if upon more than two acres, a commercial farm for the raising of cattle, horses, sheep, goats, poultry or a farmstand for the sale of farm products. Mr. Jardin felt they qualified under this section since they have 2 1/2 acres of land. They started on the second part of their plan. They would utilize the land by planting trees and move the kitchen into the garage. They again spoke with the Board of Health regarding moving the residential kitchen into the garage and they were informed they could move into the garage as long as they meet all the regulations issued by the Board of Health. On July 13, 1992 they purchased a Business Certificate from the Town Clerk for $20.00 (which was deposited into the ZBA account). In August, 1992 they placed an order for apple trees to plant in the spring and for a 4'x6' walk -in cooler. These apple trees will not be ready for 2 -3 years. At this time the garage was brought up to the Board of Health standards. In late August, 1992, Mrs. Jardin found out she had a serious health condition. Mr. Jardin stated that the basis for his appeal is that he has a home occupation. His pies can be bought at Sarros Market and West Mansfield Variety. There are sometimes months that go by without selling any pies. At this time this is his family's only livelihood. They do deliver pies to some Boston restaurants and hotels. The purpose of hiring the two part-time employees is because his wife is very ill and she cannot do it by herself. Mrs. Jardin was able to do the work before she became ill. Mr. Jardin further explained that he raised his family in the Town of Mansfield, his children attended schools here, and that this issue is taking a toll on Mrs. Jardin's health. Minutes of June 15, 1993 Page 6 of 7 Mr. Cook explained that he does not drive around town looking for these situations but he has to enforce the law since he is the Zoning Enforcement Officer. This problem was brought to his attention by 2 phone calls and 1 visitor who had complaints about the Jardins. Mr. Cook further explained that he had two meetings with Mr. Jardin. The first time he went by the Jardins he dropped his card off. Their first meeting Bert explained the problems and said he would speak to the Jardins again after the holidays (which is their busy season). Their second meeting they discussed the agriculture sections of the By -Laws and the article in the Mansfield News that discussed the employing of 2 part -time employees. Bert further stated that anyone who is employed at the premises must reside at the premises to be a Home Occupation, Mr. Jardin explained that his children are at school and his wife needs helpers. He loads the pies and makes deliveries during the day. Mr. Jardin explained that he has 2 convection ovens which each hold 12 pies and he uses 10 -15 bushels of apples per week. He estimates that in three years he will have approximately 120 trees per acre and each acre will supply 500 bushels of apples per year. Mr. Jardin also stated that he has worked with the Commonwealth of Massachusetts regarding information about the apple trees, and he is also a member of the Mass. Farm Bureau. An abutter, Sandra Santos of 520 Williams Street, lives directly next door. There is absolutely no trash and it is a shame they are being punished because of technicalities. An abutter, Richard Kerry of 460 Williams Street, said he has no problem with the Jardins at all and he was not even aware of the pie business until late this winter. Mr. Flynn stated that Mr. Cook only reacts to complaints and does not drive around look for violations. Mrs. Cotton stated that everyone has sympathy for what the Jardins are trying to do, but all the ZBA has to do is make a decision on whether the Building Inspector is right or wrong in his decision. An abutter, Mr. Carl Nelson stated that the Jardins have worked hard all their lives. If he lets his employees go and his children work will that be okay. Mr. Flynn stated only if his children live in the house can they be employed there. An abutter, Nancy Pierce of 497 Williams Street stated that they are very good friends with the Jardins and if you shut the door on their business it will be terrible. She further stated that if someone files a complaint they should have to give their name. t Minutes of June 15, 1993 Page 7 of 7 The hearing closed at 9:50 P.M. There was a 10 minute recess. The meeting continued at 10:00 P.M. Mr. Flynn read a portion of the memo from Dick Lewis regarding the Masino variance application dated June 15, 1993 into the record. "I spoke to the Building Inspector and he indicated that he could not certify that the existing foundation was acceptable today. He said that an engineer would need to test it and make that certification. Both the Building Inspector and I have spoken to the Masino's and they have agreed to remove the existing foundation and put up a new foundation that meets the side -yard setback requirements. I would recommend that a variance be granted for the frontage and lot size issues, but require that any structure meet the side yard requirements. " There were not enough Board members to vote on this matter. The Masino matter was continued until June 22 when a Special Meeting would be held. A motion was made by Mr. Flynn and seconded by Mr. Clemmey to grant a variance to David Bielan. Unanimously granted. Reasons: Pre - existing non - conforming structure on a pre - existing non - conforming lot; most logical place to put it; not derogate from the Zoning By -Laws; and not detrimental to the public good. A motion was made by Mr. DeTrolio and seconded by Mr. Butler to grant a variance to Herbert Wuth and Joyce Fisher. Motion Denied (4 -1). Opposed: Mrs. Cotton, Mr. Clemmey, Mr. DeTrolio and Mr. Butler. In favor: Mr. Flynn. Reason: Created own hardship; derogates from intent of the Zoning By -Law for frontage; did not demonstrate hardship to property; and inadequate frontage on both lots. A motion was made by Mr. Butler and seconded by Mr. Flynn to uphold the decision of the Building Inspector on the Jardin matter. Unanimously granted. Reasons: 2 part -time employees and the cooler that was being placed outside. Mrs. Cotton is going to draft the decision. The meetina.adiourned at 11:15 P.M. Acting