Loading...
HomeMy WebLinkAboutZBA_10031995`t ZONING BOARD OF APPEALS MINUTES OCTOBER 3, 1995 ! , i r13 JA., J•.,7 i S E 7- 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: Eric Butler, Chairman; Leonard Flynn, Clerk; Peter DeTrolio; Richard Secher; Donald Daniels; and Duane Frederick, Associate Member. The hearing on the application of Citizen's Scholarship Foundation of America for Variances from Section 4, Schedule 4.2.1 for insufficient lot frontage and area and Section 1.5.17a for insufficient lot width, for property on Old Maple Street [R -1 Zone] and shown as Map 38, Parcel 216 on the Assessor's Records. The application was labeled Exhibit "A'; newspaper advertisement as Exhibit "B "; and a Plan of Land dated May 26, 1995 prepared by Hutchins - Trowbridge Associates, Inc., Mansfield, MA, was labeled as Exhibit "C ". Mr. Flynn 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 application. It is the opinion of the Board that the application substantially derogates from the intent of the Zoning By -Law in that the lots would meet neither frontage, lot width or area requirements. Additionally, the Board is concerned about the potential negative impact on the neighborhood by creating additional density by creating a buildable lot where none presently exists." Mr. Flynn read a letter from Shaun Burke dated August 15, 1995 into the record. "Please be advised Special Counsel to the Planning Board, Attorney Mark Bobrowski was asked by me to render an opinion on a number of zoning issues effecting the subject property. On February 16, 1995, Attorney Bobrowski responded to my questions. Included in his response was discussion on the effect of relocating Maple Street had on the status of what is now called Old Maple Street. My understanding of Special Counsel opinion on this issue is that the relocation of a "New" Maple Street had the effect of discontinuing "Old" Maple Street as a public way. Please be advised that the subsequent to counsel rendering this opinion, I received a copy of the 1956 layout plan for "New Maple" Street, copy attached, that included a portion of "Old Maple Street ", including frontage for what would later become the CSFA lot as part of the new Maple Street layout." Minutes of October 3, 1995 Page 2 of 13 Mr. Butler also had three (3) letters in the file requesting copies of the Decision when completed from Mr. and Mrs. Brian Conefrey, 48 Joanna Drive; John Arnold, 46 Joanna Drive; and Mark Souza, 44 Joanna Drive. Two (2) letters were also in the file requesting continuances from Attorney Garrett Spillane. A letter was also in the file from James T. Grady, 20 Old Maple Street, requesting a copy of the Decision when it is filed with the Town Clerk, with a self - addressed, stamped envelope. Mr. Butler asked Mr. Spillane to present his case. Attorney Garrett Spillane explained that the shape of the lot is such that it contains a large amount of area in Foxboro and Mansfield and insufficient frontage and lot width. There was a Plan endorsed by the Planning Board on October 3, 1989 when 120' of frontage and 32,500' of area was required and all were met by this plan. On October 16, 1989, Zoning changed and the frontage became 150' and area became 45,000'. The use was frozen for five years and in 1994 the grandfathering rights ran out and it is now an unbuildable lot. Attorney Spillane also stated that all the lots in this area have approximately 120' of frontage. Attorney Spillane further explained that the original owner, Ralph Seifert, transferred the land to Citizen's Scholarship Foundation in 1993. Citizen's Scholarship has been active in the Town of Mansfield with donations of over $500,000.00, and feels that this would be in derogation of the By -Laws since it meets the criteria of these other lots, and they cannot change the configuration of the lot because of the pond and they feel that this is the hardship. Mr. Flynn asked if the Seifert's have any interest in this lot. Attorney Spillane explained that they are lifetime beneficiaries and have an income interest in the lot. James Grady, Esq., stated that he would like to show there is no merit to this case. Mr. Grady presented a letter dated September 16, 1994 from Bob Mangiaratti, Esq., explaining that "He represents Citizen's Scholarship Foundation which owns a parcel of land in Mansfield and Foxboro on Beaumont's Pond. The parcel contains 4.5 acres and has frontage on Old Maple Street in Mansfield. Old Maple Street is a public way, but it is deteriorating and requires rebuilding. We believe that the lot is subject to pre -1989 Mansfield zoning requirements under the lot protection provisions. However, you may not rely on this statement with regard to zoning status. You are expected to make your own independent determination of all zoning issues. For your review, I have enclosed a plan and deed for the land. If you are interested in purchasing this desirable parcel of land, please contact me." Minutes of October 3, 1995 Page 3 of 13 Mr. Grady presented two deeds, one dated October 13, 1993 and one dated December 29, 1993 from Ralph Seifert to Citizen's Scliolarslup Foundation as Trustees for Ralph and Sandra Seifert. A letter dated November 10, 1994 from Robert Mangiaratti, Esq. to Bert Cook stating, "I believe that Mr. Grady is correct in suggesting that it would be unethical for me to advise you as Town Counsel in connection with this matter because of my prior representation of the private land owner. Similarly, if the zoning dispute does arise, I shall decline to represent Citizen's Scholarship Foundation of America because of my position as Town Counsel." Professor Mark Bobrowski, Esq., was named as Special Counsel and paid for by the Town. A letter from Attorney Bobrowski to Shaun Burke dated February 16, 1995 was presented. Mr. Grady stated that the bottom line is that this is not a buildable lot because there is no frontage; they land was transferred in 1993 and did not expire until 1994 and did nothing; and there is no hardship. Mr. Grady presented various documents, maps, letters, articles and correspondence. He explained the history of this property. There was a hurricane in the 1950's and destroyed the steel and concrete bridge on Maple Street rendering Maple Street unexcessible. At the town meeting on March 12, 1956, the town relocated the street and took the land by eminent domain. The question is that no vote was ever taken to discontinue the road; but no vote is needed if the road ceases to exist and does not exist. Mr. Grady explained that this land was agriculturally zoned and he purchased the triangular piece of land between relocated Maple Street. He further explained that the definition of street is a public thoroughfare of 30 feet or more Mr. Grady presented a Plan dated October 3, 1989 prepared by Hutchins- Trowbridge for Mr. Seifert and was never signed by Foxboro, but was signed on October 11, 1989 by the Mansfield Planning Board but they covered themselves by inserting a paragraph regarding (...agriculturally zoned). A Plan showing the Canoe River, which starts in Sharon and flows through Foxborough and Mansfield. Mr. Grady further explained that the Building Inspector said that Old Maple Street is still in place and a town road, and it is still a town road if it is with adequate access. The question remains is it or isn't it a road. If it is not a road, there is zero frontage. An abutter from Foxboro, John Arnold, explained that his lot is accessible through Mansfield. He has lived there for 20 years and does not feel that this should be a buildable lot. Minutes of October 3, 1995 Page 4 of 13 Ralph Seifert explained that he is very distressed that his neighbors have been speaking negative. He spoke for Mr. Grady at the Town Meeting, so Mr. Grady could purchase his rectangular piece of property. An abutter, Mark Souza, feels this is in gross violation of the By -Laws and he is against any by -law change that will make this a buildable lot. An abutter, Linda Roselli- Souza, asked if the Board has seen this land. It should not be considered a road with weeds and very little asphalt. She further explained that she works for Folkman and Zola and they have many lots that have a time frame for building. She feels it would be a gross violation of the by -laws if they are allowed to build. Attorney Spillane presented to the Board a case from Wareham. Mr. Butler stated that the Board will accept any correspondence until the next meeting. The hearing closed at 8:50 P.M. The hearing on the application of Francis Royale for a Variance from Section 4.2.1 of the Zoning By -Law, to allow for an addition to an existing house, located at 46 Riverside Drive in the R -2 Zone, resulting in less than the required sideyard setback began at 8:50 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and a Plan of Land dated March 25, 1985 prepared by Ralph Maloon, Registered Land Surveyor, Mansfield, MA, was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With six (6) members present, they voted unanimously to send a positive recommendation on this application. It is the opinion of the Board that the application does not substantially derogate from the intent of the by -law. The presence of a very large mature tree and the desire not to remove same may be viewed as a hardship to the land." Mr. Butler asked Mr. Royale to present his case. Mr. Royale explained that he would like to put on a 14'x28' addition consisting of a bedroom, kitchenette and bathroom for her father who is 74 years old and is coming to live with them. He lives alone and cannot maintain his house. Mr. Royale showed some pictures and explained they considered moving everything to the other side of the house but all services, patio and 8 or 9 trees would have to be moved. Minutes of October 3, 1995 Page 5 of 13 Mr. Royale presented two letters from a direct abutter, Scott and Allison Eames, and an abutter, John and Susan Caughey, both in support of this addition. The hearing closed at 9:00 P.M. Karl Clemmey wanted to know why these zoning petitions were heard prior to the petitions that were listed under "Old Business ". Mr. Butler responded by saying that all continued hearings are placed under "Old Business ". Mr. Clemmey also wanted to know where these applications were advertised since they were not in the Mansfield News, and for what reason? Karen Lawlor explained that there were advertised in the Sun Chronicle because they missed the deadline at the Mansfield News and both applicants (Royale and Broderick) had given their permission to do so. Mr. Clemmey also questioned whether the plans were by a professional land surveyor. Mr. Clemmey stated that he wanted his statement to be noted for the record. The hearing on the application of Thomas Broderick for a Variance from Sections 4.1.6 and 4.2.1 of the Zoning By -Law, to allow for an addition to an existing two - family house, located at 18 -20 Heritage Lane in the R -1 Zone, resulting in less than the required front and sideyard setbacks began at 9:00 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit 'B "; and a Plan of Land dated August 30, 1995 prepared by Ralph Maloon, Registered Land Surveyor, Mansfield, MA, was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With six (6) members present, they voted five (5) in favor with one (1) abstention to send a positive recommendation on this application. It is the opinion of the Board that because this is a pre - existing two - family home in what is now the R -1 Zone which required 15 foot setback at the time of creation and encroachment into that required setback is slight, the application does not substantially derogate from the intent of the Zoning By- Law." Mr. Butler asked Mr. Broderick to present his case. Mr. Broderick explained that he has lived in this home for 12 1/2 years and he needs more room. He has four children and would like to add a family room with a half -bath over a two -car garage. The addition will not be higher than the existing house. He owns the property as joint tenants with his wife, sister and brother -in -law, as opposed to each of them owning their respective sides of the duplex. His brother -in -law has been battling cancer and fie would not force his sister to sell the property in order for him to buy a larger home with a garage. Minutes of October 3, 1995 Page 6 of 13 The hearing closed at 9:15 P.M. Lauren Rackette wanted to speak with the Board members and was placed on the agenda for this purpose regarding Old Colony Motors, West Street. She explained that she specifically came to the June 6, 1995 meet so it would be stated in the record that she had not received notice of the showroom being granted a variance. She further explained that Fred Sarro had made promises at the February meeting, in regard to the alterations to be done on Old Colony's existing building, that have not been kept. Mr. Sarro said that he would close the westerly side of the building and there would be a decrease in the noise. Mrs. Rachette explained that the noise has severely increased and the spray booths have been relocated and are now on the westerly side of the building, facing her house. Mrs. Rachette stated that she was told by Mr. Sarro that he had to change the position and location of the spray booths because they did not fit into the original plans and he does not want to have to obtain another variance. Mr. Butler stated that this conversation could go on all night and he does not remember any promises being made, but if Old Colony is not complying with the plans she should appeal this decision with the ZBA. Mr. DeTrolio stated that he remembers promises being made at that meeting regarding closing off the westerly side of the building. Mr. Daniels stated that this was an existing building when the Rachette's purchased their property and the ZBA cannot control the noise level. The hearing on the application of David Losiewicz for a Variance from Section 4.2.1 of the Zoning By -Law, for a proposed deck addition at 31 Perkins Avenue, with less than the required sideyard setback in the R -2 Zone began at 9:35 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B'; and a Plan of Land dated February 19, 1993 prepared by Ralph Maloon, Registered Land Surveyor, Mansfield, MA, was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With seven (7) members present, they voted unanimously to send a negative recommendation on this application. It is the opinion of the Board that the application does not include enough information for the Board to make a fully informed decision at this time." Mr. Butler asked N/Ir. Losiewicz to present his case. ivir. Losiewicz explained that lie is requesting the construction of an enclosed deck to his house. Minutes of October 3, 1995 Page 7 of 13 Mr. Butler stated that he has a problem with this Plan and the applicant cannot pencil in his proposed additions, they have to be done by a Professional Registered Land Surveyor, Engineer or Architect, with the proposed dimensions. Further, if the applicant does not change the plans, when he eventually sells his property and a title search is done he will have to come back at that time for a variance. If is for the applicant's own safety to have the plans done by an engineer. A motion was made by Mr. Flynn and seconded by Mr. Secher to continue this hearing until the applicant can have his plans revised and resubmitted. Unanimously approved. The hearing closed at 9:45 P.M. The hearing of Superior Realty Trust which was continued from August 15, 1995 was reopened at 9:50 P.M. Mr. Flynn read a letter from Attorney Edward Patten to Karen Lawlor into the record. "Kindly transmit the attached correspondence to the Board for its hearing on Tuesday, September 19, 1995." Mr. Flynn read the attached memo from Attorney Edward Patten to the ZBA into the record. "Please be advised that this firm represents Timothy M. Fitzgibbons, a direct abutter and party in interest to the site identified as Lot 33 located on Goose and Down Lanes for the following reasons: The subject land is shown on various plans of record as abutting Goose Lane for a linear distance of 175.35 feet and Down Lane for a linear distance of 27.57 feet. This lot configuration appears to have been unaltered since the time of approval of the land division establishing the lot. Since approval of the original division, the frontage requirement of the R -I zoning district has apparently been increased to 200 linear feet. Accordingly, the lot does not comply in any respect with the current By -Law requirement for frontage and lot width. Consequently, the apparent owner has applied for zoning relief by way of variance from this Board. In the present case, the necessary criteria cannot be established. While application of the 200 foot frontage requirement may result in hardship, that hardship will not arise from circumstances related to the shape, topography or soil conditions of the lot, the essential nexus required for the lawful grant of variance relief " The applicant, Dennis Baker, explained that he does have a conforming lot and he has a letter from Bert Cook, dated July 19, 1995, in which Bert stated: "that he must deny the permit for a request for a building permit to access from Douro Lane with frontage on Goose Lane. It would suggest that you first seek approval from the Conservation Commission. Should this hearing end with a negative recommendation, it would be my opinion that you would then have a definite 1. hardship and should apply for a variance with the ZBA." Minutes of October 3, 1995 Page 8 of 13 Mr. Baker explained that the Conservation Commission supports and endorses the driveway location off of Down Lane since this eliminates any wetland alteration. Mr. Flynn read a memo from Conservation Commission to ZBA dated August 15, 1995 into the record. "The Conservation Commission is presently holding public hearings on the application to allow work in or near wetlands located on Lot 33. The applicant initially presented a plan showing a driveway from Goose Lane crossing through the wetlands to reach the buildable portion of the lot. The Commission directed the applicant to explore other alternatives to access the lot. At a meeting on 8/14/95, the applicant presented a plan showing the lot being accessed off of Down Lane. While the public hearing is still open [to allow the Zoning Board to review the issues at their meeting], the Commission supports and endorses the driveway location off of Down Lane since this eliminates any wetland alteration. The Commission hopes that this proposal is acceptable to the Zoning Board." Mr. Flynn read a letter from the Planning Board into the record. "With six (6) members present, they voted three (3) in favor with two (2) opposed and one (1) abstention to send a positive recommendation. It is the opinion of the Board that to install a driveway off of Goose Lane, the applicant would have to fill substantial wetlands, which would be extremely detrimental to the neighborhood. The Board feels that constructing a driveway from Down Lane, as the application proposes, is a better use of the land with less of an impact on wetland areas." Mr. Flynn stated that he would like to see a copy of the deed. Attorney Patten stated that the driveway will abut the neighbor's property and he can see no justification in granting a variance. He also stated that this derogates from the intent of the Zoning By -Law, it will create overcrowding and decrease the property value. Also, this property was grandfathered and had an 8 year protection which expired in 1993. Perry DiMasio of Superior Realty Trust Building stated that the Conservation Commission is working with what the Building Inspector has requested that they do. The hearing closed at 10:20 P.M. The hearing on the application of William Bertarelli for a Variance from Section 1.5.17A of the Zoning By -Law to allow for 2 lots, l A and 2A located northerly of 41 Bird Road with less than the required lot width for the R -1 Zone began at 10:20 P.M. Minutes of October 3, 1995 Page 9 of 13 The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and a Plan of Land dated June 21, 1995 prepared by P.M.P. Associates, East Bridgewater, MA, was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With seven (7) members present, they voted unanimously to send a negative recommendation on this application. It is the opinion of the Board that the two proposed lots substantially derogate from the intent of the Zoning By -Law's lot width definition, which was implemented to discourage the creation of irregularly shaped lots." TvIr. Butler asked the applicant to present their case. Marie Greene explained that there is a nine acre piece of property. They would like to create two buildable lots; one with seven acres and the other with 2 acres. It is very expensive to put just one home on a nine acre parcel and they are carrying high tax bills on the land. The hearing closed at 10:30 P.M. The hearing on the application of Kris Bainton for a Variance from Sections 4.2.1 and 1.5.17a of ( the Zoning By -Law to allow for a lot, lot 34 located adjacent to 268 Williams Street, with less than the required frontage and lot width for the R -1 Zone began at 10:30 P.M. The application was labeled Exhibit "A "; newspaper advertisement as Exhibit "B "; and a Plan of Land dated August 1 and 14, 1995 prepared by Ralph Maloon, Registered Land Surveyor, Mansfield, MA, was labeled as Exhibit "C ". Mr. Flynn read a letter from the Planning Board into the record. "With seven (7) members present, they voted unanimously to send a negative recommendation on this application. It is the opinion of the Board that a lot with 20 feet of frontage which goes back for a depth of 150 feet substantially derogates from the intent of the By -Laws for lot width and frontage. Minimum frontage and lot width requirements were established by Town Meeting in anticipation for a specific development pattern." Mr. Flynn read two letters in opposition to this application into the record. One dated September 15, 1995 from Mohan & Veraine Prasad, 285 Williams Street and E. Lederman, 268 Williams Street. ivlr. Butler asked iVlr. Bainton to present his case. Mr. Bainton explained that Carl Nelson is offering him this 117,000 square foot lot for a great 1, price. Minutes of October 3, 1995 Page 10 of 13 Walter Meehan of 292 Williams Street explained that when the driveway was put in for an easement to the house in the rear, he saw on the plans that this lot was stamped as unbuildable. Mr. Daley of 3 Nelson Way asked if they can make this an access for all the land behind. The Board responded no, if this is granted the driveway can be for just one home. Karl Clemmey stated that the Board has set a precedent by granting variances in the past 2 years, and especially the one on Ware Street. The hearing closed at 10:50 P.M. Nancy Titus who received a variance to put on a porch with stairs, and is still in the appeal period, explained that there was a mistake on the plans. It should be changed from 7'x10' to 7'x 12'. A motion was made by Mr. Flynn and seconded by Mr. Frederick to modify the plan dated July 20 to change the proposed dimensions from 710 to 7'12'. New plans have to be submitted and a new decision. Citizen Scholarship: 1. Is there frontage; 2. Protection has expired; 3. Sideyard /front setbacks; 4. Did Mr. Seifert create this problem himself. This hearing to be continued until October 17, 1995 so that all documents can be reviewed. David Losiewicz, 31 Perkins Ave.; continued until Mr. Losiewicz presents new plans. Superior Realty Trust (Goose and Down Lanes); continued until Dennis Baker can present deeds. William Bertarelli (Bird Road); A motion was made by Mr. Secher and seconded by Mr. Flynn to deny a variance to Mr. Bertarelli. Reasons: Self - imposed hardship; derogates from the intent of the Zoning By -Law; Planning Board does not want pork chop lots. Vote: 5 -0 Yes: Butler, Flynn, Secher, DeTrolio and Daniels. (Variance Denied) Minutes of October 3, 1995 Page 11 of 13 Kris Bainton (Lot 34 - Wms. St.) A motion was made by Mr. Flynn and seconded by Mr. Secher to deny a variance to Mr. Bainton. Reasons: Both abutters object; self - inflicted hardship; no hardship; no frontage; and derogates from the intent of the Zoning By -Law. Vote 5 -0 Yes: Butler, Flynn, Secher, DeTrolio and Daniels. A motion was made by Mr. Secher and seconded by Mr. Daniels to grant a variance to Francis Royale. Unanimously granted. 5 -0. Plan is dated in 1985 but no revision date is noted. Is contingent upon clarification that revision is noted on plans with engineers stamp or signature. A motion was made by Mr. Daniels and seconded by Mr. Secher to grant a variance to Tom Broderick. With paragraph in decision that "The addition will be a two -car garage under a family room and half -bath and the addition should not exceed the height of the existing roofline." Unanimously granted. Hardship - ownership is joint, 4 children, does not derogate from the intent of the Zoning By -Law. The Master Plan Committee - Motion was made by Mr. Flynn and seconded by Mr. Daniels to appoint Mr. DeTrolio to the Committee - Alternate Mr. Frederick. Mr. Flynn read Lauren Rackette's letter dated September 17, 1995 and received by the Town Clerk's office September 18, 1995 at 1:13 P.M. This letter will also be attached to the June 6, 19195 Minutes: "On June 6, 1995, I went to the Zoning Board meeting. I stated "I had not received a letter stating a variance was granted to construct the show room for Old Colony Dodge." I stated this on the record for legal reasons. I have since looked at the June 6th minutes and was dismayed to discover no mention was made of my specific on the record statement. The importance of my statement was obvious since I did not receive the letter ok -ing the variance I was not allowed to take advantage of the appeals process (What was stated in the minutes was that I was concerned about my property value). While I understand the need for condensing the minutes I do feel there is no excuse to omit a statement made to go on record. I also sent a letter to the ZBA dated August 3rd to put my statement in writing. I would like the Board members to validate my June 6 statement by signing an attachment to be applied to the June 6, 1995 minutes. Sincerely, Lauren Rackette." Mr. Butler stated that if it isn't on paper it doesn't mean anything. A letter should be send Mrs. Rackette informing her that we are investigating this matter. Minutes of October 3, 1995 Page 12 of 13 The Minutes and tapes of the February 7, 1995 meeting should be reviewed to see if Mr. Sarro made any promises at the time. Did Mr. Sarro promise Mrs. Rackette that they would close the west side and have no access from the west side? If they made an agreement and the Board voted on it, they should„close it off and do what is agreed. Clerk c i Minutes of October 3, 1995 Page 13 of 13 Attachment to the Minutes of June 6, 1995 Mr. Flynn read Lauren Rackette's letter dated September 17, 1995 and received by the Town Clerk's office September 18, 1995 at 1:13 P.M. This letter will also be attached to the June 6, 19195 Minutes: "On June 6, 1995, I went to the Zoning Board meeting. I stated "I had not received a letter stating a variance was granted to construct the showroom for Old Colony Dodge." I stated this on the record for legal reasons. I have since looked at the June 6th minutes and was dismayed to discover no mention was made of my specific on the record statement. The importance of my statement was obvious since I did not receive the letter ok -ing the variance I was not allowed to take advantage of the appeals process (What was stated in the minutes was that I was concerned about my property value). While I understand the need for condensing the minutes I do feel there is no excuse to onut a statement made to go on record. I also sent a letter to the ZBA dated August 3rd to put my statement in writing. I would like the Board members to validate my June 6 statement by signing an attachment to be applied to the June 6, 1995 minutes. Sincerely, Lauren Rackette." Mr. Butler stated that if it isn't on paper it doesn't mean anything. A letter should be send Mrs. Rackette informing her that we are investigating this matter. To be attached to the Minutes of June 6, 1995 Approved: i