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HomeMy WebLinkAboutmin of zba 050107 MINUTES REC. ('.'/',I[:D' t~ 'L '! ('\1 ;~ n f. -, I.. ' .', O/-FleE 07 JUL 18 AM 11: 06 NSr jELD MASSACHUSETTS ZONING BOARD OF APPEALS MAY 1.2007 The Zoning 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: Jack Vultaggio, Chairman; Elisabeth Garber-Miller, Clerk; Eric Butler; Peter DeTrolio; Dave Rapoza, Associate Member; and JeffGarr, Associate Member. Mr. Rapoza was appointed voting member for this hearing in place of Mr. Mackie. In the application of David and Jill Albanese for a Variance from Section 4.2.1 of the Zoning By-Law for the construction of an addition with less than the required side yard setback at 35 Pilgrim Road in the R-l Zone, the hearing began at 7:30 P.M. The application was labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"; and a Plan of Proposed Addition to #35 Pilgrim Road in Mansfield, MA dated March 12, 2007 and revised on April 17, 2007 and prepared by RIM Engineering Co., Inc., Mansfield, MA, was labeled as Exhibit "C". Ms. Garber-Miller read a letter from the Planning Board into the record: "With seven (7) members present, the Board voted unanimously to send a negative recommendation on the application because it does not conform to the statutory requirements for the grant of a Variance." Mr. and Mrs. Albanese explained that they would like to build a 24'xI8' addition to their home that will house a family room and master bedroom. They need to offset five (5) feet from the edge of the house to accommodate an existing walkout bay and there will still be 20' from the edge of the addition to the property line. Mr. Richard Kelsey drew drawings of the proposed addition and renovations for the applicants dated February 15,2007 and presented these to the Board for their review. Rob Burns, a direct abutter, at 31 Pilgrim Road was present and had no problem with this application. The hearing closed at 7:50 P.M. A motion was made by Mr. Butler and seconded by Mr. Rapoza to grant this proposed addition to Mr. and Mrs. Albanese. Approved unanimously 5-0. (Vultaggio, Garber- Miller, Butler, DeTrolio, Rapoza T" MINUTES OF MAY 1,2007 Page 2 of7 Mr. Rapoza was appointed voting member for this hearing in place of Mr. Mackie. In the application of David. A. Mason for a Variance from Section 4.2.1 of the Zoning By-Law, for the construction of a proposed garage with less than the required front yard setback at 2 Prince Street in the R-l Zone, the hearing began at 7:45 P.M. The application was labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"; and a Proposed Garage Addition at Hse. No. 2 Prince Street in Mansfield, MA, dated March 29, 07 and prepared by RIM Engineering Co., Inc., was labeled as Exhibit "C". Ms. Garber-Miller read a letter from the Planning Board into the record. "With seven (7) members present voted unanimously to send a negative recommendation on the application because it does not conform to the statutory requirements for the grant of a Variance. In addition, it was suggested that moving the garage four feet forward would eliminate the need for a variance." Mr. Mason explained that he has lived in his house for 15 years and would like to build a 24' x 30' garage on his home. He lives on a comer lot and he needs frontage on two streets, which is why he needs the variance. The Board was concerned with whether this was a Zone 1 or 2, because that will affect the amount of the setback required. Mr. Butler noted that the streetscape and sight distance issues were not a consideration here because first, only a 2-foot request was involved, and second, because the house was on a cul-de-sac with extensive mounded landscaping. The hearing closed at 7:55 P.M. A Motion was made by Mr. Rapoza and seconded by Ms. Garber-Miller to grant the variance to Mr. Mason. Unanimously granted (5-0). (Vultaggio, Garber-Miller, Butler, DeTrolio, Rapoza). The issue of the next hearing, the Appeal of Michael Ferrari was discussed before it was opened. Mr. Vultaggio stated that after discussion with the Town Manager, Mr. D' Agostino, he learned that the applicant has not paid a filing fee on either of his appeal applications. Mr. Vultaggio further stated that he did not believe that anyone should appear before the board without paying the appropriate filing fee, and he doesn't care if the guideline and application does not have a line specifically stating "Appeal of Decision of the Building Inspector". Mr. Vultaggio believed that if the applicant was appealing a permit, he should be paying the normal filing fee. Mr. Vultaggio expressed MINUTES OF MAY 1,2007 Page 3 of7 that he feels it is outrageous that he can bring an appeal and not pay anything, and that it was an abuse of process. Mr. Vultaggio asked for a motion to require him to make a payment before we hear his appeal. Mr. Butler noted that the Selectmen had waived a filing of a fee in this matter because it was not specifically stated on the application that one was required, and further stated that the selectmen have the authority to waive any fee they would like. A Motion was made by Mr. DeTrolio to not open this hearing until the applicant pays a filing fee. There was no second on the motion, so the hearing is to proceed with no filing fee to be paid. In the Appeal of Michael Ferrari of a Decision of the Building Inspector of the Issuance of a Building Permit to Mark D. Tyrol to erect a 22' x 72', detached accessory building at the rear of his property located a 9 Harding Lane in the R-l Zone, the hearing began at 7:50 P.M. Mr. Ferrari read a letter that he wrote dated April 4, 2007 into the record. "I am appealing a decision of the building permit no. 10503 by the Building Inspector. Permit no. 10503 was issued to Mark Tyrol of9 Harding Lane, Mansfield to erect a 72' wide by 22' long garage. The total square footage of this garage is stated at 1,584 feet. I have two issues with this garage. First, and most important, Zoning By-Law 1.5.11 states: "Garage, Private: A detached accessory building of not more than thirty-five (35%) percent of the ground floor of the main building, used for the purposes of parking or temporary storage of automobiles of occupants of the premises, except that one (1) space may be used by the private automobiles of persons not resident on the premises." The Massachusetts State Building Code 780 CRM 407.2 states: "Garage, private: A garage of four or less passenger motor vehicles..." The plans submitted by Mr. Tyrol in support of his application call for a 1,584 square foot three car garage. The ground floor area of Mr. Tyrol's main building is 1,680 square feet. Thirty-five percent of the ground floor of the main building is 588 square feet. Mr. Tyrol's proposed garage exceeds the provision of Zoning By-Law1.5.11 by 996 square feet. Furthermore, Mr. Tyrol's current detached garage sits at 1,040 square feet. This garage is non-conforming as it is over in square footage by 452 square feet. Second, and less applicable as this is a garage, Zoning By-Law 3.8.1 states: "A detached accessory building may cover as much as twenty-five (25%) of the rear yard area required for the principal building." In the recent appeal of the last permit, the Board determined an accessory building could be no greater than 25% of the required rear yard area. The number suggested was 1600 square feet for Harding Lane. Is this number the total square footage for all accessory buildings combined, or can a homeowner have numerous accessory buildings in the rear yard area with a total square footage well over the maximum of 25%? Mr. Tyrol currently has two existing accessory buildings in the MINUTES OF MAY 1,2007 Page 4 of7 rear of 8'xI2' (96') and 26'x40' (1040') totaling 1136 square feet. If built, this garage and the two current accessory buildings would total 2,720 square feet. An average of 1,720 square feet. This may exceed the provision of Zoning By-Law 3.8.1. The three-car garage that Mr. Tyrol intends to build violates Zoning By-Law 1.5.11. He proposes a 1,584 square foot garage and the Zoning By-Law limits the size to 588 square feet. This building meets the standard of a private garage and should be treated as such. A member of the Board that Mansfield in the past has allowed larger detached garages stated it in my last appeal. Mansfield has also allowed homes in Rl Zones to be built on smaller lots. Fortunately, the by-laws have been amended and enforced to increase minimum lot size. The town should also enforce Zoning By-Law 1.5.11 as vigorously as any other By-Law regarding past practice. I would ask the Zoning Board of Appeals to over the Building Inspector's decision regarding permit no. 10503. Sincerely, Michael Ferrari, 519 Fruit Street, Mansfield, MA 02048." Mr. Ferrari then suggested that this hearing be continued until after the Town Meeting, regarding Article 41, which would affect the appeal. Mr. Vultaggio asked the Applicant ifhe was asking for a continuance, and Mr. Butler informed the Board and applicant that Article 41 was no longer scheduled for the Town Meeting. Mr. Ferrari withdrew his suggestion for a continuance. Scott Anderson of 10 Harding Lane expressed his support of Mr. Ferrari's Appeal of the issuance of the building permit. Throughout the meeting, Mr. Anderson taunted Mr. Tyrol, who was sitting directly in front of him and at one point in the meeting, leaned forward and said "We are watching you." George Danis of 527 Fruit Street stated that he was at the meeting for the first appeal and questioned enforcement issues regarding the number of vehicles and use questions. He further stated that at the last meeting the discussion want back and forth and this seems excessive. Mr. Tyrol's attorney had stated that the By-Law states up to 3 cars, but there are more cars. Mr. Butler stated that the abutters are taking it past the point in the Board's purview, and he believed that the By-Law has never been interpreted or applied in this way. There are allowed uses of accessory buildings that could have been there for many reasons. Arthur Bowdish of 2 Harding Lane also stated that he supports this appeal. Attorney Michelrnore introduced himself as attorney for Mr. Tyrol and passed out a letter to the Board and to Mr. Ferrari from Nicholas Riccio, Building Inspector dated March 7, 2007. The letter was addressed to Mark D. Tyrol, 9 Harding Lane, Mansfield, MA 02048, Re: Building Permit #10317. "As a result of the Decision of the Mansfield Zoning Board of Appeals, filed with the Town Clerk on February 7, 2007, rendered in MINUTES OF MAY 1,2007 Page 5 of7 connection with the issuance of the above mentioned Building Permit, I have found it necessary to revoke said building permit that was issued on October 24, 2006, for the purpose of constructing a 72'x 42' accessory building. In accordance with the Board's Decision, you may amend your building permit application to reflect a smaller building not to exceed 1609 square feet. Until such time that a new building permit is issued, please refrain from any construction of the accessory building. Please feel free to call me should you have any questions relating to this matter. Thank you for your anticipated cooperation. Very truly yours, Nicholas J. Riccio, Inspector of Buildings/Zoning Enforcement Officer." Mr. Vultaggio stated that the applicant has a right to put up a big fat ugly building and to run a business from his home. People have individual rights to their own property. More and more people are doing business out of their home and the laws have to change. An abutter stated that last year Mr. Tyrol received 148 UPS deliveries on one year. Mr. Vultaggio stated that he receives about two deliveries a day at his home and that is not a lot. The problem is the use question, which the Board cannot address. Mr. DeTrolio told the abutters that they have the control to stop the applicant from running a business on his property. They can watch him, keep surveillance on his property and make repeated calls to the Building Inspector, who is also the Zoning Enforcement Officer. The hearing closed at 8:40 P.M. Mr. Garr was appointed voting member in place of Mr. Mackie for this hearing. In the application of OCBER, LLC, for a Variance from Section 4.2.1 of the Zoning By- Law, for the construction of a two-family house to be 2 condominium units, with less than the required lot area and rear yard setback at 26 County Street in the R-3 Zone, the hearing began at 8:45 P.M. The application was labeled as Exhibit "A"; a newspaper advertisement was labeled as Exhibit "B"; and a Zoning Board of Appeals Plan of Land of County & King Streets Mansfield, MA dated 3/20/07 and prepared by Bay Colony Group, Inc., Professional Civil Engineers & Land Surveyors, Four School Street, P.O. Box 9136, Foxborough, MA 02035 and labeled as Exhibit "C". There was no letter from the Planning Board. MINUTES OF MAY 1, 2007 Page 6 of7 Attorney John Pignone introduced himself and Mr. Baker of Ocber LLC, and explained that they were before the Board a few months ago. They had withdrawn the application at that time and are now presenting a new application on the same property. He explained that Mary Silva, the prior owner of 26 County Street, died on July 31, 1999. Prior to her death, Ms. Silva had been a resident of Pleasant Manor Nursing Home and a Medicaid recipient. Upon her death, there was a medical lien in the amount of $201,609.20 On the property. Her estate was not probated until 2005. On December 6, 2004 the property caught fire and was uninhabitable. At the time of the fire, the property served as a two-family residence. After the fIre, the foundation remained intact and debris filled the lot. The applicant Ocber LLC purchased the property on June 29,2006. Due to the concern that someone could become injured due to the condition of the property, Ocber LLC removed the debris and broke up the foundation leaving only remnants. The neighborhood consists of both two family and single-family housing. The rebuilding of a two-family house as per the submitted plan, to be two single unit condominiums, would not be more detrimental to the neighborhood than the existing pre- existing two family structure had been. Also, all the houses in this area are single and multi-family homes. Everything about the property is conforming except the rear yard and lot area. This will be an upgrade for the neighborhood. Chris D' Arpino of 24 County Street, explained that 6 months after he moved into his house, the federal government cleaned up the property at 26 County Street and he was forced to move out of his home for 3 months. This house eventually burned down with a 5-alarrn fire and it was infested with rodents and animals and bugs. The Bakers are the most sincere, nice people and he wishes more people were like them. And if they needed 10 feet of his land he would give it to them to make this property look better. He is in 100% support of this application and they will make it a beautiful place. The hearing closed at 8:50 p.m. Thomas Connor was granted a variance that will expire in August of 2007 and he is requesting a 6-month extension. A motion was made by Ms. Garber-Miller and seconded to Mr. Butler to grant the requested 6-month extension of the Aspen Street property to Mr. Connor. Unanimously granted. (Vultaggio, Garber-Miller, Butler, DeTrolio, Rapoza). OCBER LLC. A motion was made by Mr. Garr and seconded by Mr. Butler to grant a variance to OCBER LLC. This will be a great improvement to what is there; there is a doublewide driveway; this is a big diamond shaped lot; and they want to do the right thing. Motion granted. 4-1 (Vultaggio, Garber-Miller, Butler, Garr) (DeTrolio). MINUTES OF MAY 1,2007 Page 7 of7 FERRARI: Motion to deny the appeal was made by Ms. Garber-Miller and seconded by Mr. DeTrolio. Reasons: Mr. Tyrol has made the building smaller and he is complying with the Board's request. Ms. Garber-Miller stated that she feels Mr. Tyrol is not very sympathetic to the neighbors, but that the Zoning Board does not have the capacity to issue a use variance. She further elaborated that the Board has to take what the applicants say at face value; they have no control of the use; and the problems usually fall in the lap of the neighborhood. At a recent Planning Board meeting they discussed and know of this issue, but that Board had to withdraw some proposed articles on this subject because they were not comprehensive enough, and needed to have more detail to tailor restrictions more closely to lot size. Mr. Vultaggio believed that eventually, the state courts will decide this issue and the Board does not want to approach a slippery slope. In the appeal of Ferrari (appealing the building permit issued for 9 Harding Lane) the Board voted 4-1 to uphold the issuance of the building permit. (Vultaggio, Garber- Miller, Butler, DeTrolio) - (denied Rapoza). A motion was made by Mr. Butler and seconded by Mr. DeTrolio to accept the New Guidelines for appeals before the Zoning Board. (Unanimously approved). The meeting was adjourned at 10:00 P.M. Respectfully submitted, EI~~-~~ Clerk