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i RECEIVED
TOWN OF MANSFIELD fOWN CLERKS OFFICE
ZONING BOARD OF APPEALS
AP~~N~E2S011 ,2011 AUG 25 A 10: 28
:. I'fl\NSFIELO
The Zoning Board of Appeals held its regular meeting in the Town Hall, Mansfiel~r~cfiA'Q~U1>8'f~ent at
the hearing were the following members: Jack Vultaggio, Chairman; Elisabe~h Garber-Miller, Clerk;' Kevin
Mackie; Philip Shannon; Peter DeTrolio; Associate Member, David Luca. I
11. Meeting called to order at 7:30 pm.
I 2. NCHWU LLC,dba Yale Appliance & Lighting, Inc., 240 Forbes Boulevard, Map 14, Lot 215.
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The application is for a Variance from Sections 3.5.1 and 4.4.1, of the Zoning By-t;.aws to conduct a retail use of
over 2,500 sq. ft. and with less than the required number of parking spaces at! 240 Forbes Boulevard in the
Planned Business District (PBD) Zone.
The application was labeled as Exhibit "A"; a newspaper advertisement was labele~ as Exhibit "B"; and Site Plan
240 Forbes Boulevard, Mansfield, MA dated March 3, 2011 and prepared by OHOC Engineering, Inc., 44 Wood
Avenue, Mansfield, MA was labeled as Exhibit "C". I
There was no letter from the Planning Board.
Attorney Edward Valanzola and Steve Sheinkopf of NCHWU LLC, dba Yale Ap~liance & Lighting, Inc. were
present. :
Attorney Valanzola told the Board the Variance request is to construct a 20,000 s~. ft. retail space and to keep
the number of parking spaces at 98 instead of the required 140. The total building area is 76,000 sq. ft. with
approximately 35,000 sq. ft. currently vacant. The lot consists of 5.82 acres M land and is located in the
Planned Business District.
Attorney Valanzola said there will be no changes to the building except for a small foyer added at the front. He
told the Board the proposed 20,000 sq. ft. would be more like a showroom than a'! retail store. There would be
one cash register. Attorney Valanzola said Yale currently has 65 employees an~ plans to hire 15 additional
employees for the Mansfield location.
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Mr. Vultaggio said the industrial park was designed for non-retail purposes and q~estioned whether the Zoning
Board should be making a determination to allow retail uses in the park, or if it sMould be up to Town Meeting
to make that determination.
Ms. Garber-Miller said there may be other businesses in the industrial park that Iwant to do the same thing.
Attorney Valanzola said the Board would look at the circumstances on a case by ~ase basis and would not be
setting a precedent by granting this variance.
Attorney Valanzola told the Board that Yale has been trying to sell the building but does not want to move the
business out of the building. He said the vacancy rate in the industrial park is at 25p1o.
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Mr. DeTrolio said if it is granted, the Variance would stay with the land, not with th~ business. If Yale decides to
close the building in 6 months, any retailer can buy or rent the building. Attorney Valanzola said the Board
could put a condition on the Variance to restrict the retail use.
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James Lazzara of 132 Willow Street told the Board that the Master Plan was a~opted by the town so the tax
base would not be eroded in the industrial park by allowing retail space in th~ area. Retail businesses are
located in designated areas. He said to change the Zoning By-Law because of th~ economy is not really looking
at the big picture in terms of what will happen to the town, mainly to the busines~es in the downtown area.
Mr. Vultaggio asked Mr. Sheinkopf if the retail space could be reduced and still fit into Yale's business plan. Mr.
Sheinkopf said he would need 15,000 to 20,000 square feet.
Ms. Garber-Miller asked about the parking. Attorney Valanzola said Yale does no~ use all of the existing parking
spaces. Ms. Garber-Miller said Mr. Sheinkopf has been trying to sell the building for a year and three quarters
of the building is vacant; she asked what would happen if someone else buys or ~eases a portion of the building
and needs additional parking spaces. She said she would not want parking on Fqrbes Boulevard.
The hearing ended at 8:03 pm.
Mr. Mackie made the motion to approve the Variance for Yale Appliance & Lightin~, Inc.
Philip Shannon seconded the motion.
Discussion:
Mr. Vultaggio said their business is fairly unique. He suggested a number of \jvays this proposal could work.
He said the Board could allow the expansion of the 2,500 sq. ft. of retail space. ~e proposed 10%-15% for the
retail use; 10,000-15,000 square feet of space with one cash register. Mr. Vu1laggio said this is not going to
make a retail environment in the industrial park. However, he ultimately said He was of the opinion this issue
should appropriately go to Town Meeting.
Ms. Garber-Miller said because of the economy, there may be a number of bu~inesses in the park that might
want to add retail space beyond what was allowed in the By-Laws. The problem with allowing a percentage of
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the building for retail use for Yale is that three quarters of the building is not ibeing used at this point. The
owner could sell or sub-divide the building, with no control over the property afteir the Variance was granted.
Mr. Vultaggio asked the Board if they really wanted to allow this in the industrial park.
Mr. Mackie asked if the Board should make a decision that will change the nature! and the intent of the industrial
park. He said this should go to the Planning Board to be put before Town Meetinlg.
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Ms. Garber-Miller said she did not feel the parking issue was addressed and w~s concerned that if there were
more than one tenant in the building, parking could become an issue. Mr. V~ltaggio said the parking issue
could be avoided if the Board only allowed 10%, or 7,800 square feet of retail sp~ce and only one cash register.
This would limit the retail customers.
Mr. DeTrolio said it was a great idea, but said he was concerned about what wbuld go into the building if the
board grants the Variance and the building is sold.
The Variance was denied: 0-5-0.
Hearing ended at 9:40 pm.
3. Jawdat S. Mansour & Leota P. Mansour, 190 Mill Street, Map 43, Parcel 83
The application is for a limited appeal of the building inspector's February 14, 2~11 decision regarding 190 Mill
Street in the Residential 1 (R1) zone. The appeal is only of the building ins~ector's determination that the
electrical service at 190 Mill Street does not constitute a violation of the buildingi permit or By-Law and that the
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building should not be removed. It is the appellant's position the building should b~ removed because it is more
than 35% of the ground floor area of the main building on the property. The ap~licants are not appealing the
building inspector's determination that the building and property are being useq for commercial purposes in
violation of the building permit and the By-law. !
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On January 31, 2011, Attorney Valanzola served written notice on Nicholas Riccio, iInspector of Buildings/Zoning
Enforcement Officer, that a commercial business was being operated at 190 Mill Street. Several years ago, the
Building Department issued a building permit to construct a 2,100 square foot (3P'x70') building in the rear of
the property. The house at 190 Mill Street is only 1,097 sq. ft. .
In a letter dated February 14, 2011, Mr. Riccio responded to the Zoning Enforce~ent Request, agreeing there
was a violation of the building permit and the By-Laws, but disagreed that the e~ctrical service to the building
was a violation of the building permit or the By-law or that the building should b removed because it is more
than the thirty-five percent of the ground floor of the single family home. The -Law has a provision that as
regards an accessory building, in no case shall such accessory use dominate i~ area, extent or purpose the
principle lawful use of building. .
Mr. Riccio was concerned about this property being used commercially. The buil~ing permit states throughout
that no commercial activity was permitted, and that use of the building was for re$idential use only. The project
was presented to Mr. Riccio that the building was for storage only. Attorney Valalnzola said Mr. Riccio wrote no
electrical to the building permit. I
Mr. Vultaggio asked if the project was conditioned so there could be no ele~. rical service to the garage.
Attorney Valanzola said the building permit and all documents filed by the ap Iicant and all representations
made to Mr. Riccio state there would be no electrical service to the building and he building would be used for
residential only. Mr. Vultaggio said Mr. Riccio might have said there is no elef:trical service currently in the
building but asked Attorney Valanzola if he was telling the board the apPlicanttlcould not put electrical in the
building. Attorney Valanzola said the building permit states the building is n t to be used for commercial
purposes, residential accessory uses only and further states no electrical to . uilding is allowed. Attorney
Valanzola said he is not arguing that electrical service could be added at a later d~te.
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Attorney Valanzola said eventually the property owner applied to the Mansfield EI~ctric Department for electrical
service. The Electric Department and the wiring inspector allowed the connectio;to the building and a 3 phase
400 amp service was installed along with an electrical pole at the rear of the pr perty. Attorney Valanzola told
the Board this is not a typical service for residential use; this service is used for widing and repair businesses.
Mr. Mansour showed pictures and video of the property. The pictures show the tpe of equipment on site, work
being done on trucks in the building, the gravel sifting machine on site, oil ch nging equipment and the fuel
storage tank. Mr. Mansour said there is tarp-like structure on the property that is used for sand storage. Mr.
Mansour has pictures of snow plows pulling up to the structure to fill the trycks with sand and salt. Mr.
Mansour told the board the tarp and sand were removed before one of Mr. RiCCOp inspections.
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Mr. Mansour told the Board he has been complaining about the site for 3V2 Yea~. From December 2010 to the
end of January 2011, Mr. Mansour said the noise has escalated. He said Mr. atterson works in the building
every night from 5 pm to 12 am and on week-ends. He said the lighting is exces ive.
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Attorney Valanzola said the building is being used for a landscaping business an~ a welding and repair business.
Other accessory storage facilities have been built on the property and are bein used for the storage of heavy
machinery and construction equipment for the businesses that are being operat d on the property. A large bus
and a recreational vehicle are also being stored on the property.
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Mr. Vultaggio asked if Mr. Valenzola had any employee records. Attorney V, alanzola said he believes Mr.
Watterson has one employee. r
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John Michelmore, the attorney for Mr. and Mrs. Watterson, said his clients did no~ appeal the Cease and Desist
Order but did respond to Mr. Riccio's letter of February 22, 2011. It is not an ordtr to remove the building, but
an enforcement issue because the Building Inspector has the authority under the state law and the Zoning By-
law to issue fines. Concerning the electrical service to the building, he said th re are no documents stating
electricity is not allowed to the building. .
Attorney Michelmore said the private garage definition of thirty-five percent of ~!the ground floor of the main
building does not apply in this case because it is not a garage; it is an accessory b ilding and can be as much as
twenty-five percent of the rear yard area required for the principal building. He aid the appeal was based on
the fact it was a violation of 1.5.11 of the By-Law which is a private garage. !
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Attorney Michelmore said now that Mr. and Mrs. Watterson have been informed by the building inspector that
they can not use the building for commercial purposes, they are willing to comply. I
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Ms. Garber-Miller said Mr. and Mrs. Watterson are willing to comply but have n~t done so; whether they are
willing to comply or not is irrelevant; they were cited for violating the law. !
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Attorney Michelmore said, without admitting they have been using the bUilding fo~ commercial purposes, going
forward they will no longer use the building commercially. He said there is a valid prder which says they cannot
use the building for commercial purposes. '
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Mr. Vultaggio asked if the building permit actually said the building was not to b1used commercially. Attorney
Michelmore said the building permit clearly states not for commercial purposes. Mr. Vultaggio questioned when
Mr. and Mrs. Watterson used the building commercially, which they clearly did ased on the pictures shown
tonight, did they not know they were in violation? i
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Attorney Valanzola said Mr. Riccio sent the enforcement letter February 22, 20111 The Wattersons responded
on March 7, 2011 stating they have taken action to remedy the situation. !
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An inspection was conducted by Mr. Riccio on March 28, 2011 with Elizabeth LeidIld, Mansfield's Conservation
Agent. The property has been graded and there is a large stock pile of loam or fill, partially covered by a tarp,
with a screening machine. He found a temporary membrane structure coverin a dump truck. Inside the
building Mr. Riccio found welding equipment, hydraulic lifts, tool chests and oth r equipment that would be
typical for a repair garage. Mr. Riccio asked Mr. Watterson about his welding bu iness and he denied he was
operating a business from this property. Mr. Watterson said he was cleaning ~p the property and that he
intended to comply with the Cease and Desist Order. Mr. Riccio said the Conserv~tion Department has sent a
letter to Mr. Watterson because he is in violation of the Order of Conditions and the Certificate of Compliance
issued for the property.
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Attorney Valanzola told the Board that Mr. Riccio said, in his opinion, the typel of tools and machinery he
observed at the time of his visit are not typical for residential use. The ptoperty does not share the
characteristics of similar properties located in the Residential 1 zoning district. Th~ tools and equipment do not
appear to be typical for a hobby shop type of use or of a use that is customaril~ incidental to the residential
primary use as Jeffrey Watterson has claimed.
Mr. Riccio said he has been working very closely with Richard Hucksam, Jr., TO!' n Counsel for the Town of
Mansfield. He said there is a use issue with the property and sympathizes with t e abutters. He said he will
consult with Town Counsel tomorrow, after the Board has made a decision. Mr. icco said he was concerned
about the nature and character of the building when the building permit was origi ally applied for and said he
put conditions on the project in case there were enforcement issues.
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Mr. Vultaggio asked if there was a condition regarding electrical service to the ~uilding. Mr. Riccio said there
was a statement on the actual building permit that on the final inspection there ~as no electrical service to the
building at that time. He said it was not his intention to prohibit electrical servic~ to the building. He said Mr.
Watterson later applied for all necessary electrical permits.
Attorney Hucksam told the Board they were waiting to see what the Board wan~ed to do. He said they could
seek injunctive relief from Superior Court, seeking an injection that the comm~rcial use of the property be
stopped, seek criminal penalties in District Court for violations of the Zoning ~Y-Iaw, or go for non-criminal
disposition. He said Mr. Riccio has made a reasonable interpretation of the] Zoning By-Law. The illegal
commercial uses that have occurred on the property are not the issue here; the~ are illegal and Mr. Riccio has
ordered them stopped. .
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Mr. Vultaggio said, from a practical standpoint, almost every garage in the Tow~ of Mansfield would not pass
the thirty-five percent rule of the required floor space. He asked if the building p~ssed the twenty-five percent
rear area rule. Mr. Riccio said the percentage is approximately fifteen to sixteen Pfrcent.
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William Ross, Town Manager, in a memorandum dated February 1, 2011, said h~ was concerned permits were
issued from the Building and Electric Departments to install a 400 3-phase amp ~ervice to the building at 190
Mill Street. The 3-phase service would raise a real question as to whether or not the building was being used
for purposes that go beyond residential. i
Attorney Valanzola asked the Board to order the commercial electrical service be r~moved from the building.
Mr. Shannon expressed concern that fuel is being stored and not properly contained on the property. He asked
if the soil had been tested and if the Board of Health is aware of the fuel storage.1 He said the Board of Health
and the Fire Department should be involved. Mr. Riccio said the Fire Departm~nt was involved a couple of
years ago. He said Conservation is now involved because of wetland issues. .,
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Amos Robinson of 178 Mill Street spoke in favor of Mr. and Mrs. Watterson. [He told the Board he has a
hydraulic lift and tools because he works on cars as a hobby. He told the Boar9 he was given permission to
park his motor home on Mr. Watterson's property. !
Ms. Garber-Miller asked Mr. Mansour if he had ever approached Mr. and Mrs. wbtterson about his concerns.
Mr. Mansour said he asked them to turn out the lights and the Wattersons respo~ded by calling the police. A
Notice of No Trespassing was issued March 31, 2011. The Notice was issued to I Mr. and Mrs. Mansour, their
children and grandchildren. Mr. Mansour told the board he has been living in a conlstruction site since 2006.
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Leah Wahrhaftig-Jeri of 194 Mill Street said while the building was under con$truction there was a lot of
disruption but the Wattersons have been cleaning up and improving the property.
Attorney Michelmore said Mr. Watterson does run a welding and repair service but i~ is a mobile service.
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Attorney Valanzola passed out documents to the Board: one from 411.com Whle the business, Watterson's
Welding & Repair Service, is advertised, a piece of mail addressed to Jeffrey Watt rson, Watterson's Welding &
Repair Service, 190 Mill Street and a 2007 tax bill, originally billed to Watterson Welding and Repair Service
from the Town of Marshfield. Mansfield rebilled Mr. Watterson for the tax bill for fi cal year 2007. He also gave
the Board a letter dated January 31, 2011, referencing the background of the c mpliant, exhibits, requested
findings and case law. !
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Attorney Valanzola asked if it was possible to meet again in two weeks. He said Ithe Town is waiting for the
Board's decision before deciding on the enforcement action for 190 Mill Stre~t. The board will discuss
postponing the hearing after the Board's discussion. !
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Mr. Vultaggio closed the hearing at 9:30 pm.
Discussion:
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Mr. Vultaggio said if the Board would like the building taken down, they should \ review the case law first. He
said he got the impression Town Counsel is supporting the Building Inspector(s position from the case law
perspective. He said it is very rare a judge would allow the building to be taken dpwn.
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Mr. DeTrolio suggested a postponement to May 3,2011 so the Board can review t~e case law.
The hearing was continued to May 3, 2011.
Hearing ended at 9:45 pm.
I 4.0ld/New Business.:
The Board signed the decision for 5 Black Pond Road, Map 3, Parcel 130.
Mr. Mackie made the motion to approve the minutes of March 15, 2011
Mr. Shannon seconded the motion.
Motion passed 5-0-0.
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Mr. Mackie made the motion to approve the minutes of April 6, 2010, April 27, 20~0 and May 18, 2010.
Philip Shannon seconded the motion. :
Motion passed 5-0-0. '
I 5. · Adjournment:
Mr. Luca made the motion to adjourn at 10:00 pm.
Ms. Garber-Miller seconded the motion.
Motion passed 5-0.
Next meeting: May 3, 2011 at 7:30 pm.
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Signature of Clerk
&-/c, '/Ii
Date of Approval I
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