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HomeMy WebLinkAboutZBA_02211995ZOI�INGBOW OF APPEALS "5t° °0 1 J- MINUTES FEBRUARY 21, 1995 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: Eric Butler; Chairman; Leonard Flynn, Clerk; Donald Daniels; Duane Frederick, Associate Member; and Jack Vultaggio, Associate Member. Duane Frederick was appointed voting member in place of Richard Secher. Jack Vultaggio was appointed voting member in place of Peter DeTrolio. The hearing on the application of Lester Epstein for a Variance from Section 4.2.1, Density and Dimensional Requirements for a proposed residential dwelling with less than the required lot fi•ontage and area and sideyard setback, to be located at 49 Fruit Street in the R -2 Zone began at 7:30 P.M. The application was labeled Exhibit "A'; newspaper advertisement as Exhibit "B'; and a Plan of Land dated August 23, 1993 prepared by Hutchins Trowbridge Associates, Mansfield, MA was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With six (6) members present voted unanimously to send a positive recommendation." Mr. Butler asked Mr. Epstein to present his case. Mr. Epstein explained that a variance for this property was granted in 1993. His son was planning to build a house on the property but he passed away before a building permit was issued and the time expired for the variance. Mr. Epstein will use the same plans that were approved in 1993 with the same footprint, will not exceed the sideyard setback and will remove the foundation. The only issue in question is whether there will be a garage under or not. The hearing closed at 7:45 P.M. The hearing on the Appeal filed by Robert Brown of a Decision of the Building Inspector /Zoning Enforcement Officer which ordered the applicant to cease using the property as a parking facility, citing violations of Sections 3.5.20 and 5.3 of the Zoning By -Law. Said property is located at the comer of Pratt and Crocker Streets in the 13 -2 Zone began at 7:45 P.M. February 21, 1995 Page 2 of 3 t The application was labeled Exhibit "A'; and the newspaper advertisement as Exhibit "B ". Mr. Flynn read a letter fi•om the Planning Board into the record. "With six (6) members present voted unanimously to uphold the decision of the Building Inspector." Mr. Flynn read the grounds for the appeal into the record. "On December 2, 1994, Bert Cook, Building Inspector ( "BI ") and Zoning Enforcement Officer ( "ZEO "), directed the applicant to cease and desist the ongoing use of the property as a parking facility within seven (7) days from the date of the letter. The ZEO stated that a failure to comply would result in an application for a criminal complaint. The ZEO indicated that the applicant was in violation of Section 3.5.20 of the Schedule of Principal Use Regulations and Section 5.3 Site Plan Approval and pertinent subsections. The ZEO's conclusion of a violation is the subject of this appeal. The property in question, Lots 79, 80 and 81 as shown on Assessor's Map 22, lie within the zoning classification known as Business District 2, in which a parking facility is allowed as a matter of right. [Section 3.5.20]. The present use of the property, parking facility, is a continuation of a valid pre - existing conforming use which has occurred throughout the present owner's tenure on the property and existed during the tenure of prior ownership as a parking lot. The applicant also challenges the ZEO's conclusion that there is a violation of Section 5.3 Site Plan Approval. Section 5.3 of the Mansfield Zoning By -Laws states, in pertinent part, "...no area for parking, loading, or vehicular service [including driveways giving access thereto] shall be established or substantially changed, except in conformity with the site plan bearing an enforcement of approval by the BI... ". There has been no new establishment or substantial change of use or area on this parcel of property during the tenure that Ms. Zicolella has owned the parcel. In fact, this use of the property, parking of vehicles, has been continuously established during the tenure of this and the new previous owner. Thus, Section 5.3.1 requiring site plan approval is not applicable in this instance. Only in the event that a new use is being to be established, or a substantial change in the use or scope of operation, is site plan approval required under the By- Law." Mr. Flynn read a memo from Dick Lewis into the record." "For the reasons outlined below, and based on a conversation with Town Counsel, I do not believe that the appeal is valid and I therefore recommend a denial of the application. Section 15 requires that the appeal be made within 30 days of the decision or action, and that the notice of appeal specify the grounds for the appeal. The Enforcement Action taken by the BI occurred on Dec. 2, 1994. On Dec. 9, 1994, a letter from Attorney William Vernon was filed stating that he was appealing the action. No grounds for the appeal were stated, no filing fee was paid, and the formal form that has been used by the town for many years was not used. It would also be noted that the letter from Attorney Vernon was not addressed to the Town Clerk. Subsequently, the formal appeal, using the form and with the fee paid, was filed on January 19, 1995, Town Counsel informs me that he does not believe the letter from Attorney Vernon constitutes a formal appeal per Section 15 and the rules and procedures of the Zoning Board. The only conclusion that can be reached is that the appeal February 21, 1995 Page 3 of 3 filed on January 19, 1994 does not satisfy the time requirements of Section 15, and therefore the appeal should be denied. I concur wholeheartedly. I recommend the public hearing be opened and that it be explained that the threshold question as to the validity of the appeal needs to be addressed prior to any discussion of any factual issues. If the Board agrees that the appeal is not valid, then a motion and vote should be taken to that effect." Attorney Steven Dean explained that he feels that the appeal was adequate and that the letter represented an actual and accurate record. Mr. Dean also stated that the letter was delivered, by hand, by his secretary and date stamped by the Town Clerk's office. Mr. Flynn and Mr. Vultaggio discussed the issue that the appeal was not filed in a timely manner and therefore does not conform. Also, the date stamp does not match the date stamp that is used by the Town Clerk's office. A motion was made by Mr. Vultaggio and seconded by Mr. Flynn to continue the appeal until March 7, 1995 with proof that the secretary delivered the appeal to the Town Clerk. The hearing closed at 8:30 P.M. Mr. Flynn read the Minutes of February 7, 1995 into the record. A motion was made by Mr. Flynn and seconded by Mr. Daniels to approve the Minutes of January 17, 1995 with revisions. Unanimously approved. A motion was made by Mr. Frederick and seconded by Mr. Vultaggio to approve a variance to Lester Epstein. Unanimously granted. Butler, Flynn, Daniels, Frederick and Vultaggio. With conditions: meets sideyard requirements; remove foundation; single family home. A motion was made by Mr. Frederick and seconded by Mr. Daniels to adjourn the meeting. The meeting adjourned at 9:00 P.M. Resp 11 tted, L I ar Fly - /Clerk