Loading...
HomeMy WebLinkAboutminofzba05032011 TOWN OF MANSFIELD ZONING BOARD OF APPEALS MINUTES MAY 3, 2011 ~ . RECEIVED r~WN CLERKS OFFICE , ~OJl AUG 25 A ~ 28 t1ANSFIElO M ~~ s~ 1I CI-U 1<: r:-1i.:r Kevi~ 'MatKi~, I Peter u&rrolio; Present: Jack Vultaggio, Chairman; Elisabeth Garber-Miller, Clerk; Philip Shannon; Associate Member, David Luca. The meeting was called to order at 7:44 pm. for the discussion of 190 Mill *reet. , The application was presented at the April 12, 2011 meeting. The applicption was submitted for a limited appeal of the building inspector's February 14, 2011 decision regarCling 190 Mill Street in the Residential 1 (R1) zone. The appeal is only of the building inspectorl's determination that the electrical service at 190 Mill Street does not constitute a violation of the building permit or By-Law and that the building should not be removed. The appellant's position is t~at the building should be removed because it is more than 35% of the ground floor area of the main building on the property. The applicants are not appealing the building inspector's determination that the building and property are being used for commercial purposes in violation of the building penmit and the By-law. The hearing was continued to give the Board time to review case law before making a decision on the application. Jeffrey and Donna Watterson, the property owners, Attorney Edward :Valanzola, the applicants attorney, and Jawdat and Leotta Mansour, the applicants, were also present. Mr. Mackie made the motion to grant the limited appeal of the decision of t~e Building Inspector. Mr. Shannon seconded the motion. Discussion: Mr. Mackie said the hearing should be well documented because of the $eriousness of the matter. The following are notes Mr. Mackie has written regarding the property: "From the initial creation of this accessory building, or private garage, as It has been referred to by both terms in electrical permits and by the property owner through his att~rney, the structure is not incidental or subordinate to the primary property use, being a residential property where one would reasonably expect its use to be the storage of personal vehicles and equipment and possessions commonly used as part of a private residence. . And although it falls outside of the 35% area bounds of the primary reside~ce and even though many two-car garages fall outside of those bounds, the primary consideration s~ould be "is it incidental to the primary allowed use"? A two-car garage outside of the allowed footprint meets that definition; this structure does not. . It's been claimed that the structure was built to store old machine s~op tools such as milling machines and lathes. I find it hard to believe that simple storage of those items would necessitate the expense of such a large structure and it seems the only reason for such a structure was to , ... f ~ ~ operate a machine shop, a commercial enterprise comprising of light manufacturing, a disallowed use of the structure. It's also been claimed that the use of the structure by the present owner ~tarted out as a hobby shop or the like and morphed into what he has acknowledged is a commercial operation. From all that I've seen and heard, there was never any intent to use this \structure as anything but a commercial operation from the sheer size to the installation of 400 amp el~ctrical service. i Insomuch as the structure may in fact have a legal use under the By-I~w by an owner willing to conform to the allowed uses in the By-law and from what has transpired ~.etween the property owner and the complainant, and the owner's blatant disregard for a cease and d~sist order from the zoning enforcement officer, I don't believe for a moment that the commercial operation will cease with the structure and electrical service still in place. Based on the facts as presented in this hearing, I feel it is in the interest of the sanctity of the By-law and the benefit of the neighborhood that the requested relief as written in! the application be granted to the applicant, specifically, the removal of the electrical service and the s~ructure itself. I believe that getting a court decision would go a long way to preservingithe integrity of the Zoning By-laws and for protecting the rights of Mansfield citizens in a residential heighborhood. Mr. Mackie signed the notes and they were added to the file". Mr. Mackie signed and dated the document and it was added to the file for 1190 Mill Street. Mr. Vultaggio said he looked at the case law presented by Attorney Vala~zola. If the board denies the request to remove the building and allows the building to stay and the decision is appealed, the court's decision will be based on if the owner can or can not make a law~1 use of the building. He said he is concerned about the argument the applicants have made regarding the 3 phase electrical service. He said the board needs to be very careful about telling people what they can and can not do with their property when it is unclear if it is for personal use. He said a lot of people have 3 phase electrical services in their garage or basement; if that is what they want, !they should be able to do so. Having a 3 phase electrical service on your property does not mean ~ou are using the property for commercial purposes. He said he is concerned with the discussion ab~ut requiring the owner to remove the service. He said there is a Cease and Desist Order and there is an opportunity for the owner to comply. Ms. Garber-Miller said the homeowners were granted a permit for the ~uilding so the building is legally there but the permit was for residential use only, the building to be used strictly for storage. The question is what happened after the building was built. From the time the building was permitted, there has been a pattern of increasing commercial use. She be~ieves it is not appropriate for the Board to order the removal of the building but the Board is entirely ppropriate in ordering the change in the commercial electrical service and the removal of the electric .1 pole that is incidental to that service. Mr. Luca said the building was legally built with all the required permits, and is more or less in compliance. He said the building is not the problem; it is the use of the ~uilding. If the building is not removed, the building can be used for purposes other than storag~; the lifts, tools and air 2 i compressors can be used for personal use. By removing the electrical serivices, the board would be taking away the use and value of the building. , I Mr. Mackie said Mr. Riccio, Inspector of Buildings/Zoning Enforcement Offi4er, had reservations about the size of the building when the permit was applied for. He said the b4ilding was clearly built for commercial purposes. Mr. Vultaggio said the question is can the building be used within the boun~s of the By-Law. I Ms. Garber-Miller said regular residential electrical service is consistent wi~h the accessory use of the building and is consistent with what the owner presented the building was for. I I Mr. DeTrolio said if the Board does not allow the continued use of the 3 p~ase electrical service in the building, the owner will no longer be able to do commercial work. He saild he would have a difficult time asking that the building be removed but said he is concerned by t~e homeowners continually ignoring Mr. Riccio's requests to stop the illegal use of the building. Mr. Luca said the building was built with all the required permits; only th~ use of the building is not correct. He said there is a history of the building not being used properly put now the Board is trying to retroactively go back and change it all. . Mr. Mackie said the building was allowed to be built under false pretenses. He feels it was going to be commercially used from day one. ! Mr. Shannon asked about the storage of fuel on the property and said t~ere are other violations on the property. Mr. Vultaggio said the Board is being asked to require the removal of the ~Iectrical service and/or the building. He said if the Board feels the owners have had ample opportynity to use this building for lawful purposes and they have not done so, then he would hav~ no problem making the determination there is no lawful use of this building because of this applicant. Mr. Mackie said if there was someone else occupying this building, there would be plenty ofjlawful uses for the building. He said he does not foresee any lawful use being performed with this ow~er. Mr. DeTro Ii 0 asked that Mr. Mackie's motion be re-read. I Mr. Mackie's motion was to grant the limited relief requested in the applicbtion by the applicant of the I Building Inspector's determination. Mr. Vultaggio read the request relief document: I A. nullify the determination of the Inspector of Buildings with resptct to his decision that the electrical service to the building does not constitute a violation of tre building permit or By-law and find from the evidence that there is a violation. ; B. nullify the determination of the Inspector of Buildings that the buildirg should not be removed. C. rule that the building is a garage and not an accessory building" as indicated clearly by the evidence and documentation submitted by the owners/occupants Fit 190 Mill Street (including ! 3 their agents and contractors) and therefore, the building is limited tq 35% of the ground floor area of the single family home on the property. . D. rule that the building shall be removed since there are violation~ of the building permit, G.L.cAOA and the Mansfield Zoning By-laws and that the request for removal is permitted and authorized by G.L.cAOA97. ) E. rule that in the present circumstances, the applicant (Mansour) did mot have an opportunity to appeal from the issuance of the building permit, since the applicant ~as not on notice sufficient to permit a timely appeal within 30 days from the issuance of the builring permit. The applicant did not become an aggrieved person until the owner of 190 Mill Street violated the zoning by- law by exceeding the permit's scope, at which time the aggrieved p~rty's sole available remedy is to seek an enforcement action. The building permit was issued 0/1 August 31, 2005 and the application for a permit to perform electrical work is dated Augusti 5, 2006, well beyond the thirty day appeal period. I F. rule that G.L.cAOA recognizes two possible methods of appeal to th~ permit granting authority. The first is an appeal within thirty days from the issuance of the buil~ing permit and the second is a subsequent enforcement action pursuant to G.L.cAOA sectionslS & 15. The applicant is entitled to the later remedy, the enforcement action, since the viol~tions of the zoning by-law and building permit's scope occurred after the expiration of the initiall' 30 day appeal period. See Kathleen Gallivan v. Zoning Board of Appeals of Wellesley & others 1(1 Mass.App.Ct 850 (2008) and 81 Spooner Roact LLC v. Zoning Board of Appeals of Brooklinb & others 78 Mass.App.Ct. 233 (2010). i G. rule that the applicant, Mansour, did not have actual or constructi~e notice of the issuance of the building permit until more than 30 days following its issuance and therefore did not have an opportunity to appeal within said thirty day period and the applica t's only remedy is now an enforcement action. I H. rule that the applicant, Mansour, didn't have actual or constructive nptice of the violations of the building permit regarding the commercial use and electrical service I1>rohibitions contained in the building permit until more than 30 days following its issuance ~nd therefore, since these violations did not occur until August 2006, the applicant could not ~ppeal within said thirty day period following issuance of the building permit and the applicant's only remedy is now an enforcement action. i I Mr. Mackie amended the motion to grant the requested relief from all iitems, B-G. The reasoning behind this motion is the electrical service is legal (Item A) and the electri~al service was put in legally (Item H). . Mr. Shannon seconded the motion. The board voted two in favor of the motion and two opposed. Ms. Garber-Miller asked, assuming the all inclusive motion by Mr. Macki~ does not pass, is it possible to amend to a more limited motion? Mr. Vultaggio said it would be more appropriate to amend the motion before the final vote. Ms. Garber-Miller, for the purposes of discussion, amended Mr. Mackie's /motion, asking that Items E, F & G be removed from the motion. Mr. Shannon seconded the motion. Discussion: 4 -~"-"""._--- Ms. Garber-Miller said Items E, F & G were not discussed by the Board. The amended motion for the requested relief of Items B, C & D passed 4-1 ~O. I I Mr. Vultaggio told the Wattersons they have 20 days after the decision is \filed to appeal the board's decision. ' Mr. Mackie made the motion to adjourn at 8:20 pm. Mr. Shannon seconded the motion. Motion passed 5-0. NEXT MEETING WILL BE MAY 17, 2011 AT 7:30 PM. ~:oul Clerk g.. Iv.j f Date 5 _c ----\.-