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HomeMy WebLinkAboutZBA 01/15/2019Town of Mansfield Zoning Board of Appeals Minutes J 15 2019 CUE-RFKS OFFICE anuary , Zglq MAR 3 P 2• The Zoning Board of Appeals held its regular meeting in the Town Hall, Mansfield, MA at 7:30 pm. Present at theI Ri,t hearing were the following members: Elisabeth Garber -Miller, Chair; Darlene Pruitt, Clerk; Matthe�y,C�u4nrii f , j LQ Philip Shannon; Aaron Gallagher; Associate Member Eric Correira; Associate Member Ryan Maxwell. r i"r 0" , (.,;iJ jETTS 1. Meeting opened at 7:30 pm. 2. Mohamed Habibullah and Seheli Sultana, 17 Evans Circle. The Chair read the public hearing notice for the application of Mohamed Habibullah and Seheli Sultana for a Variance from Zoning By -Law Section 230-4.2.A, Side Yard Setback, for the construction of a garage addition with a 7.8 -foot sideyard setback where 15 feet is required at 17 Evans Circle (Assessor's Map 30, Parcel 90) in the Residential 2 (R2) zone. The following documents were introduced at the public hearing: • Copy of public hearing notice, which ran in the Mansfield News December 28, 2018 and January 4, 2019; • Application for Variance, filed with the Town Clerk's Office on December 14, 2018; • "Proposed House Addition at No. 17 Evans Circle Mansfield, MA dated October 2, 2018, prepared by RIM Engineering Co., Inc.; Mohamed Habibullah and Seheli Sultana were not present. Ms. Pruitt made the motion to continue the hearing for Mohamed Habibullah and Seheli Sultana until February 5, 2019. Mr. Cummings seconded the motion. Motion passed 5-0-0. 3. Nelson Alvarez, 310 West Street. The Chair read the public hearing notice for the application of Nelson Alvarez for a Variance from Zoning By -Law Section 230-4.2.A, Front Yard Setback, for the construction of a porch with a 22.5 -foot front yard setback where 30 feet is required at 310 West Street (Assessor's Map 11, Parcel 21) in the Residential 2 (112) zone. The following documents were introduced at the public hearing: • Copy of public hearing notice, which ran in the Mansfield News on November 9, • 2018 and November 16, 2018; • Application for Variance, filed with the Town Clerk's Office on October 1, 2018; • "Plot Plan in Mansfield, MA" Owner Rod Rivera" dated August 17, 2018, prepared by Gloral Associates; • Plot Plan in Mansfield, MA dated 8-17-18; • Request to continue to December 18, 2018; • Request to continue to January 15, 2019 Nelson Alvarez and Rod Rivera, Construction Supervisor, were present. Mr. Rivera explained that Mr. Alvarez wants to remove the existing front deck and replace it with a farmer's porch, which will have a 22.5 -foot front yard setback where 30 feet is required. Mr. Cummings asked if the front yard setback would be the same. Mr. Rivera said they are going to make the porch wider but the front yard setback will stay the same as the existing deck. Ms. Garber -Miller asked how old the house is. Mr. Rivera said the house was built in 1950. Mr. Gallagher said the front yard setback will stay the same but they will be extending the length of the porch. Ms. Garber -Miller said because it is already non-compliant, this should be a Finding. There were no public comments. Mr. Cummings made the motion that the request for a finding at 310 West Street is an increase in the pre-existing, non -conforming condition. Ms. Pruitt seconded the motion. Motion passed 5-0-0. Discussion: Mr. Cummings said this is straightforward. Mr. Cummings made the motion that the increase in the pre-existing, non -conforming condition, per the plan "Plot Plan in Mansfield, MA Owner Rod Rivera" dated August 17, 2018, prepared by Gloral Associates, is no more detrimental to the neighborhood than the current condition. Ms. Pruitt seconded the motion. Discussion: Ms. Garber -Miller said the proposed porch is basically the same, just a little longer and the house is in an isolated location so it would not be a detriment. Motion passed 5-0-0. Hearing ended at 7:37 pm 4. Evan Sohn and Stanley Sohn, 601 & 619 East Street, Map 33, Parcels 18 and 119. The Chair read the public hearing notice for the application of Evan Sohn and Stanely Sohn for a Finding/Special Permit from Section 230-3.10B(2)(a) and 230-7.2(B)(2) and (13)(4) to allow for the change, extension, alteration or reconstruction of a pre-existing, non -conforming use at 601 and 619 East Street ( Map 33, Parcels 18 and 119) in the Business 3 (133) Zone to allow the expansion of a single family dwelling/kennel and doggy day care. The following documents were also introduced at the public hearing: • Application for Finding/Special Permit, filed with the Town Clerk's Office on August 3, 2018; • Copy of public hearing notices dated August 31, 2018, September 7, 2018, November 9, 2018 and November 16, 2018; • "Site Plan 601, 619 & 621 East Street" dated January 8, 2017, prepared by Hutchins -Trowbridge Associates, Inc.; • "Landscaping Plan 601, 619 & 621 East Street" dated January 8, 2017, prepared by Hutchins -Trowbridge Associates, Inc.; • October 24, 2018 memorandum from Officer David W. Kinahan, Traffic Division; • October 30, 2018 request to continue the public hearing, signed by the applicant; • November 16, 2018 letter from Gary P. Lilienthal with "Supporting Documentation for an Extension of a Special Permit of Dr. Stanley Sohn and Evan Sohn at 601, 619 and 621 East Street, Mansfield, MA; • November 28, 2018 request to continue the public hearing, signed by the applicant; • December 18, 2018 request to continue the public hearing, signed by the applicant; • December 13, 2018 email from Attorney Adela Wojtasinski, Bernkopf Goodman LLP to Attorney Edward Valanzola; • December 18, 2018 "Updated Opposition dated December 17, 2018 of Heron Crest Condominium Trust and 77 Residents of the Heron Crest Senior Living Facility to Application for Special Permit and Finding", submitted by Attorney Edward Valanzola; • Undated petition from the residents of Heron Crest; • Undated Petition to the Zoning Board of Appeals re: 'Application for an Extension of a Doggie Day Kennel at 601 and 619 East Street, Mansfield, MA; • October 2, 1986 Special Permit for the expansion of existing animal hospital to add premises for boarding kennel and associated services and sale of product; • December 7, 2018 email from Attorney Adela Wojtasinski, Bernkopf Goodman LLP with Kozy Kennels Inc. and Doggy Daycare Option Schedules; • December 10, 2018 letter from Attorney Gary Lilienthal to Attorney Edward Valanzola with copy of "Landscaping Plan 601, 619 & 621 East Street" dated January 8, 2017, prepared by Hutchins -Trowbridge Associates, Inc.; • Final Signed Cover Letter with Attachments Re: AcoustiFence" (notes and specifications). Attorney Gary Lilienthal and Attorney Adela Wojtasinski, Bernkopf Goodman LLP; Attorney Edward Valanzola and Applicants Stanley and Evan Sohn were present. Ms. Garber -Miller asked Mr. Shannon and Mr. Gallagher if they reviewed the video for the meetings they did not attend. Both replied yes. Attorney Valanzola said he looked at the 1986 special permit, which allowed the Sohns to operate the animal hospital and the kennel. He said before the Board is an application dated August 3, 2018, where the Applicants indicated the current use of the property is the single-family dwelling and the kennel, and they now want to put a doggy day care in. He said they are not looking to expand the animal hospital or the kennel use. He said the Board's authority under the by-law is to weigh the benefits and the detriments in order to expand the non- conforming use. He said the first threshold question is essentially whether a new use can be added, which is doggy day care. Attorney Valanzola said it is a distinct and different use, but they may try to say that because the kennel is already allowed, the doggy day care is really only expanding an incidental use of the kennel. He said the Board is limited to acting on what the documents provide, which is that the kennel and hospital were allowed under the special permit. He said they are now seeking to add a new use that would expand a non -conforming use in that zone. Attorney Valanzola said there is still no information about the building. He said it was discussed at a previous meeting that it would be up to the building inspector to determine the building specifications and sound proofing based on the building code, which he said is correct. Attorney Valanzola said this case is different because part of it is about the noise the abutters will hear, and said they have asked repeatedly for information that would indicate what the people at Heron Crest would hear. He said this information has not been provided and they do not know what would be heard outside the building. He said the Applicants have had ample opportunity to provide the Board with information so it could be determine that the building would be constructed in a way the dogs will not be heard. Attorney Valanzola said they are creating a couple of new non -conformities and they have not provided a landscaping buffer on their own property; he said they abut a residential use and cannot rely on landscaping buffers that might exist on Heron Crest property. He said in granting this, the Board would be condoning a new non -conformity. He said the Sohns have been good neighbors and run a good facility, and are right when they say there have been hardly any complaints. He said that is because the people at Heron Crest understand they moved next door to an animal hospital and a kennel, but now that it is going to be expanded, the Board should look at it very closely. Attorney Valanzola said he does not think the Board has enough information to make a determination that the benefits outweigh the detriments. He said this is an unusual case because there are not just two or three homes or families that would be impacted, there is a facility with 70-80 residents. A resident of East Street said the Sohns are good neighbors and the noise is in the morning, but if they do expand, he agreed there should be some kind of acoustics, which would help everyone. Attorney Gary Lilienthal said the doggy day care is a kennel and as far as the building specifications and noise, they have given the Board a list, both in writing and verbally, of the materials that will be used for the structure. He said they do not have a design yet because without the Board's approval, it would be a waste of time and money to design the structure; he said they have provide the sound buffering information. He said they are creating no new non -conformities and said it was important to acknowledge there are benefits being created from this. Attorney Lilienthal said the doggy day care was mentioned in the special permit and they gave an estimate at that time of how many dogs would be in doggy day care. Attorney Valanzola said the special permit decision included a boarding kennel and animal hospital, and now the Applicants are saying doggy day care is the same use. He said doggy day care by definition is an open recreational area for dogs and the definition of a kennel is an enclosed area where the animals are kept. He asked the Board to look at the 1986 special permit decision, which was to add premises for a boarding kennel and associated services to the animal hospital; he said doggy day care was not what they were granted in the 1986 special permit. Attorney Valanzola said this application says the existing use is a kennel and an animal hospital and they now want to add a doggy day care. He said the animal hospital and kennel uses could be expanded, but the Applicants cannot expand a use that was not permitted originally. Mr. Correira asked if the attorneys were aware this issue has come up in other Massachusetts towns; he said doggy day care is an emerging area and the question is whether "doggy day care' falls under the umbrella term "kennel". Attorney Lilienthal said Dover had an application for the modification of an existing kennel permit to doggy day care; he said the applicant operated under a kennel license and the modification was granted. Mr. Correira said in another town, they went to Town Meeting to amend the zoning by-law to include "doggy day care". Attorney Valanzola said doggy day care was considered in 1986 and it was mentioned there might be five dogs, but what was granted was a kennel and an animal hospital. Ms. Garber -Miller said there has been an animal hospital in existence since the early 1980s, before the kennel was permitted. She said a memo included at the time of the special permit hearing talks about the boarding of small animals, runs and a proposed kennel that would provide a service to the residents in the Town of Mansfield who wish to have their pets cared for in their absence. She said The Applicants also intended to offer a so-called day care service, which would allow a person to leave their animals at the kennel each day. She said when the special permit was granted, the Board did not make any distinction between doggy day care and a kennel. She said that was new territory for them in terms of offering the service, but she does not believe there is any functional difference in the actual service. She noted this use was there at the time that Heron Crest was built. Ms. Garber -Miller said the number of additional vehicle trips would be de minimis on a road that carries thousands of cars a day. She said if the Board is inclined to grant the permit, there should be an acoustical fence; she noted a fence is not proposed on the other side of the property because there is vegetation already there. She said she is not sure if that vegetated buffer could be expanded because the septic field is located there. She asked if the acoustic fence could also go along the other side of the property. Ms. Garber -Miller said the Board had discussed buffer strips and opaque screening around the proposed building. She said with the installation of the acoustic fence on the Heron Crest side of the property and because the ground floor of the proposed building is six to eight feet below grade, she does not believe anything would be gained by adding the opaque screening. Ms. Pruitt said the acoustic fence would be beneficial and would help mitigate some of the sound. Mr. Shannon said there is also an existing swale that affects most of the sides of the building and the acoustic fence would definitely help. Ms. Garber -Miller said if there is an acoustic fence, additional plantings will not provide any additional benefit Mr. Cummings agreed the acoustic fence should be installed on the Heron Crest side and with the trees and vegetation, it should be sufficient. He asked if the fencing should be put around the entire perimeter of the property. Ms. Garber -Miller said they can do the acoustic fence on the other side of the property, from where the landscaping ends to the back of the property. Mr. Shannon agreed the abutters on the opposite side should get some protection as well. Mr. Cummings made the motion to approve the application of Evan Sohn and Stanley Sohn for a Finding/Special Permit from Section 230-3.10B(2)(a) and 230-7.2(B)(2) and (B)(4) to allow for the change, extension, alteration or reconstruction of a pre-existing, non -conforming use at 601 and 619 East Street (Map 33, Parcels 18 and 119) in the Business 3 (B3) Zone to allow the expansion of a single-family dwelling/kennel and doggy day care, in accordance with the "Site Plan 601, 619 & 621 East Street' dated January 8, 2017, prepared by Hutchins -Trowbridge Associates, Inc., with modifications to be discussed. Ms. Pruitt seconded the motion. Discussion Ms. Garber -Miller said the building itself is compliant Mr. Gallagher said this is an existing, non -conforming use and there is no distinction made for the kennel because it was thought of as the same thing. He said he struggles with the question of whether the benefits outweigh the detriment because he has not heard what the benefits are. Mr. Correira agreed, but said the argument would be whether a doggy day care is a service to the town. Mr. Cummings said having this building would prevent the dogs from being outside. Ms. Garber -Miller said the dogs are going to be exercised inside the building and will actually be inside more than outside. She said the Applicants are asking for 50 dogs, but they already provide a service for 20 dogs. She said the difference would be there will be a building, so the dogs can be indoors. She asked the board members if they would want to limit the number of dogs; she said even without the proposed new building, the Applicants could technically take in 50 more dogs. She said the 1986 special permit does not restrict the size of the kennel, so they could increase the number of dog runs outside and still be within the parameters of the special permit. She said the only difference is they want to put the dogs inside this building. Mr. Correira said this would double the occupancy. Ms. Garber -Miller said it would increase the number of dogs they will have for the day care portion of the program, but said she did not think it would increase the overall capacity of the facility beyond the number of dogs who are going to be there just for the day. Mr. Gallagher said they are clearly looking to increase the capacity of their business and there is the potential to have significantly more dogs on site, and there would be more noise. He said he still struggles with what the benefits are and the detriment to the Heron Crest residents and the residents on the west side of the property. He said there is a reason why kennels are not allowed in residential areas. Ms. Garber -Miller said there are two issues: the animal hospital and the kennel were there first and there is an agreement between the Sohns and Heron Crest. She said in the last four years, there has been only one animal complaint. Mr. Gallagher said this would double the number of dogs there and in realty, the acoustic fence would only do so much, especially on the west side of the property. He said the height of the fence versus the new building on the Heron Crest side will likely help a little, but it is only six feet tall. Ms. Garber -Miller noted they could still have more dogs on the property without the new building. She asked if the building could actually be a benefit to Heron Crest because, while there would be more dogs, the Board could restrict the number of dogs, and the dogs will be indoors at least part of the day, where currently they are outside. Mr. Gallagher said the site can be left as it is now, or the new building could be built and the number of dogs on the property doubled. Mr. Shannon said the Board can control how many dogs are on site and the time the dogs spend outside. Mr. Correira said there could be twice as many dogs outside. Ms. Garber -Miller asked if it would be better to have a building with the dogs inside and said the Board could require an acoustic fence on both sides of the property and specify a maximum number of dogs, which would allow the Applicants the ability to expand their business while providing some protection for the residents at Heron Crest. She said the Board can also specify a right -turn only out of the site. Ms. Pruitt said they are trying to mitigate some of the issues by adding the building. Ms. Garber -Miller said they already have 20 dogs that are getting day care within the kennel, so the Board could allow them to have a maximum of 40 dogs. Mr. Shannon said the Board can deny the building and the Applicants can increase the number of dogs with no control over the noise level, or the Board can approve the building and meet the needs of the Sohns as well as the residents. Mr. Cummings said the reason they are here is to increase their business and to provide a better facility. Ms. Garber -Miller said they can increase the number of dogs they take in because there is no distinction in the special permit or the by-law. She said if the Board grants the building, the Board would have the ability to add conditions, but if it is denied, the Applicants could still increase the number of dogs outside. Mr. Correira said he feels those are things the parties could have worked out among themselves. He said personally he does not think it is the Board's job to come to a resolution between the parties, and the Board should consider the application in front of them. Mr. Shannon said the Applicants would have to follow the guidelines for the fence and the buffer on the west side of property, and the sound proofing would have to meet certain criteria. Ms. Garber -Miller said the Board has the opportunity to not only mitigate the effects of the additional dogs but, by requiring the acoustic fence for both sides of the property, would also be reducing the sound of the dogs already there. Mr. Cummings amended his motion to approve the application of Evan Sohn and Stanley Sohn for a Finding/Special Permit from Section 230-3.1013(2)(a) and 230-7.2(B)(2) and (B)(4) to allow for the change, extension, alteration or reconstruction of a pre-existing, non -conforming use at 601 and 619 East Street (Map 33, Parcels 18 and 119) in the Business 3 (133) Zone to allow the expansion of a single-family dwelling/kennel and doggy day care, in accordance with the "Site Plan 601, 619 & 621 East Street" dated January 8, 2017, prepared by Hutchins -Trowbridge Associates, Inc., with the modification that the Applicant will install approximately 350 feet of six-foot high acoustic fence along their property line between the subject property and the Heron Crest property, as discussed. Ms. Pruitt seconded the motion. Motion passed 4-1-0. Discussion: Ms. Garber -Miller asked if the Board would require the Applicants to put the acoustic fence along the opposite side of the property, to be extended from the edge of the landscaped area along the driveway to the back of the property, and if the Board would want to limit the number of dogs. Mr. Shannon said the Board can only enforce what is in the application. Mr. Correira said these are all good questions from the Board, but the Applicants have the burden to provide information to assure the Board the benefits outweigh the detriments. Ms. Garber -Miller said the landscaped buffer would be useful and the Board would require the Applicants to put the acoustic fence on the west side of the property from the area parallel to the proposed dumpster pad all the way to the back of the property. Mr. Cummings asked if the trees on the west side of the property are on the neighbor's or the Sohns property. Mr. Shannon said there are a lot of trees on the opposite side, so he does not know if he agrees with the secondary fence. The Board agreed the secondary fence would not be necessary. Hearing ended at 9:10 pm. Old Business: Ms. Pruitt made the motion to approve the minutes of November 27, 2019 and December 18, 2019, subject to minor corrections. Mr. Gallagher seconded the motion. Motion passed 5-0-0. Adjournment: Motion to adjourn at 9:15 pm. (Gallagher/Cummings) Motion passed 5-0. Next,tylpeting will be February 5, 2019 Darlene Pruitt, Clerkj ate