BOARD OF APPEALS MINUTES
SPECIAL MEETING ON
Tuesday, June 17, 2008
7:00 p.m.
Present: Chairman, Lisa Beauvais, Vice-Chairman Greg Neffinger, and Alternate Chet Zymroz
Absent: Secretary Christine Kumiega-Provost and Alternate Jim Bodurtha
The Chairman called the meeting to order at 7:05 p.m.
2. Public Hearings
7:00 p.m. (7:06 p.m) - Richard Austin (Appeal of Building Commissioner’s Decision) – hearing for the reconsideration of a decision dated October 23, 2006, regarding the denial of a building permit for the property located at lot 259, 260, 261 on Westfield Street.
Attorney Donahue explained the reason for the hearing was a remand from Housing Court and he gave a brief history so that everyone clearly understood what was before the Board at this hearing. The Housing Court, after a number of motions and actions by the petitioner, has determined that this matter needs further examination by the Board. Housing Court has not made any determination on the original decision, which has not been before the Judge and is still unresolved. Over the course of Discovery, regardless of the position of this Boards’ action, there are other issues that prevent the petitioner from being entitled to a building permit. The newspaper article was incorrect in saying the Court has not considered the underlying facts on this matter.
Four questions are posed to this Board from the Housing Court: 1. Whether the Zoning By-Law permits the Building Commission to require the Plaintiff to provide a Storm Water Management Plan; 2. If the Plaintiff is required to submit a Storm Water Management Plan pursuant to the Zoning By-Law, and whether the plan submitted by the Plaintiff is adequate; 3. Whether the Plaintiff is required under the Zoning By-Law to access his property through the lot’s frontage on Westfield Street, West Springfield, MA; and 4. Assuming that the Plaintiff has a legal right to access his lot over the right-of-way, does that access satisfy the access to the lot required by the Zoning By-Law? The right-of-way at the rear of the property is what the petitioner is
proposing to use as his main access to the lot. Because the position is that the initial application did not address the need for frontage, and the fact that Mr. Austin had approval from Mass Highway to take down the guardrail to have access to his lot. The permit from the Mass Highway Department has expired and is no longer in effect.
Ms. Beauvais restated that the Board was only to answer the four specific questions from the Housing Court. Attorney Donahue said yes, and reaffirm the original decision of the Board, so if it goes back before the Court they have a record that deals with all the issues.
Mr. Neffinger asked if they would be hearing all the evidence again as brand new and beyond that, the Board has to make a decision on the four points in the remand. Attorney Donahue said all the documents for the storm water management system are the same as at the original hearing. Attorney Powers concurred that this was true.
Attorney Powers said he was representing Mr. Austin on the preliminary issues and depending on how the Board answers the questions remanded to it, would determine its outcome. If the Board determines that the storm water management plan submitted is adequate, then the issue would be moot and the Court would have no other determination to make except to reverse the decision of the Building Commissioner.
Mr. Richard Austin came forward and read a statement on his case and provided exhibits to the Board. He explained, in detail, his purchase of the property and events with dealing with the Building Commissioner on this lot being buildable. In the past, Attorney Tully determined there is no problem preventing the use of the right-of-way or the issuance of a building permit. Mr. Austin explained abutters have been dumping on his property and the dumping has increased in the form of yard and commercial waste. Mr. Austin said he had removed all the debris, but is continually harassed by abutters and was assaulted at one time. He said he has received requests from the Building Commissioner for topographic surveys, which are not required, but he engaged in these services and
submitted the requested documentation.
Mr. Austin explained the denial of the appeal by the ZBA with the reasoning that the storm water drainage plan that was submitted was inadequate. The Building Commissioner quoted the injurious uses section of the bylaw. A certified engineer responded to these claims and he was denied 2-1. Mr. Austin said he has a significant problem with the amount of water that is flowing onto his property, and the town knows this is a problem and it is still unresolved. He brought the problem to the attention of the town and they placed a berm along Hawthorne, which worked effectively until it was destroyed this winter. It needs to be replaced with a more permanent structure. This allows thousands of gallons of water to flow on to lot 259 and to the abutter’s properties.
Mr. Austin said he felt most of the water problem in this area is caused by the town. Mr. Austin showed pictures of a recent sewer break and three days of sewage leaking onto his property.
Mr. Neffinger asked where the minutes where taken from in the examples presented by the applicant. Attorney Powers said the information was taken from depositions and tapes that were obtained and transcribed.
Mr. Neffinger said they do not have experience to say if this plan for storm water is adequate or inadequate. If an engineer submits it, it is assumed adequate.
Attorney Powers said the Building Commissioner cited Section 5.54, Injurious Uses. Mr. Moore testified that he had never invoked Section 5.54 prior to this occasion and he never required a storm water management plan in a residential setting.
Leroy Clink, registered engineer for the applicant, said the site is small and several things can be used. He figured a system for the house and driveway and assumed all the water would run-off. He designed a retention basin three times as big as that. You have to do something with the water being held back. They determined the soil types and found four feet of semi-impervious soil above the merrimack soil. They propose to put a leaching structure in the middle of the basin to do a groundwater recharge. This is common practice that works very well and is the most conservative method.
Mr. Neffinger asked how far they dug on the site? Mr. Clink said about 7½ feet below the water table to a layer of clay. The water table is at 5½ feet below the surface.
Attorney Powers said the third issue is whether Mr. Austin has to access his property from Westfield Street. The underlying issue is that he needs a permit from Mass Highway to access from Westfield Street to his property. Attorney Tully told him that he has the legal right of access from the right-of-way and he turned the permit back in to Mass Highway. The Building Inspector assumes the access to the property is the frontage based on the definition of frontage from the Zoning Ordinance. Attorney Powers read the definition from the Zoning Ordinance. The question remains, is that definition of frontage requiring Mr. Austin to access from Westfield Street when he has a legal right of access from the right-of-way? (See file letter from Attorney Tully regarding legal right
of access).
Mr. Zymroz asked if there was documentation from the Town that the surface water run-off was recognized as improper? Attorney Powers said the act of installing the berm is the only documentation of this; there is no other document from DPW.
Mr. Neffinger said while there is no definition for access, when frontage cannot be used, in the past they have allowed access via an abandoned road. Mr. Werbiskis said there is no requirement in the Zoning Ordinance that access is through frontage. It is defined that frontage is required to provide access to your lot. You must have viable access from the frontage for a normal 2 wheel-drive vehicle. Under past case law, a guardrail is an impediment to that frontage. Nothing in the Zoning Ordinance prohibits a second access apart from frontage; but frontage must allow viable access. These lots were created in 1913, so they predate the subdivision laws and local zoning laws.
Attorney Powers said the definition of frontage includes language that says that a lot has access to provide access for a 2 wheel-drive from the frontage. It can also have accessory access. The question is whether the Zoning Ordinance allows the Building Inspector to issue a permit to a lot that has no access to it from a public way.
Mr. Neffinger said when reviewing the definition on the frontage, he is looking for the words that state you have to access a lot from the frontage. Attorney Powers said there is no such language, and Mr. Austin had a permit to access his property from Westfield Street, but it would have been a considerable expense to his client. The question is if the Building Inspector is permitted to require the applicant to access from Westfield Street when there is another means of access.
Ms. Beauvais said it is not about the access to frontage. If a 2 wheel-drive vehicle cannot access by frontage then he does not have frontage and does not have a buildable lot. You need to be able to access the property from the frontage. Attorney Powers read the definition of frontage. Ms. Beauvais said then a car or emergency vehicle cannot access the lot through the frontage. If you do not use the frontage, then that does not meet the definition of frontage.
Attorney Powers said emergency vehicles can access the lot through the second access on the right-of-way.
Mr. Neffinger said the frontage is not the back of the lot, can the address be changed? Attorney Powers said Mr. Austin does not abut any other street but has a right-of-way over other properties to get to his parcel. Mr. Neffinger said the frontage is still there, and there is no definition for access.
Mr. Zymroz asked why the storm water plan was determined inadequate? Attorney Powers said the Building Inspector said he did not think the plan would be acceptable for this particular lot. Section 7.078 addresses the storm water run-off. Mr. Neffinger said that does not apply to residential. Regarding the injurious uses finding, he did not see anything that addresses the water run-off on the other properties. Currently DPW is more restrictive to impervious areas running off the lot.
Mr. Werbiskis said there are various parts within the site plan review standards in which the Building Commissioner reviews. Mr. Neffinger said residential projects are not usually scrutinized, but he understood the Building Commissioner’s concerns with the existing hazard to adjacent properties.
Ms. Beauvais called Mr. Patrick Moore, Building Commissioner, forward to respond to any comments.
Mr. Moore said the definition of frontage applies here and they do not have access. They could have properly removed the guardrails to allow for access. The storm water management plan does not include driveways, curb cuts, and bringing in fill to accommodate this. Ms. Beauvais asked Mr. Moore, in his opinion, was the submitted plan adequate for its intended use? Mr. Moore did not feel the plan was adequate.
Mr. Moore said they can access through the right-of-way, but it cannot be the primary entrance.
Mr. Zymroz asked Mr. Moore to expand on the denial under the injurious uses section. Mr. Moore said he has had many complaints from neighbors with pictures of the water problems, so he had to look at the property. If more impervious surfaces were to be created, it would only make this situation worse. He has to make sure the flooding does not get any worse for the abutters.
Mr. Neffinger asked if the Zoning Ordinance requires a storm water management plan? Mr. Moore said he felt he had the authority to ask for one. The levels were taken off of the street and we do not know if the water will leach out any faster. Mr. Neffinger noted that water is collecting on the petitioner’s property. Mr. Moore said all the water goes there now and that is pretty close to where the leaching basin is proposed; he has to address all the water that accumulates in that area. There are streams of water coming off of that property and Mr. Austin stated himself that thousands of gallons of water goes down there.
Ms. Beauvais asked why the berms were installed there? Mr. Moore said he was unsure of why they were put there, but most likely to alleviate some of the water problem there. Mr. Neffinger said it appears that some of the water problem is coming from the road.
Ms. Beauvais asked for comments from the audience.
Ms. Sharon McCarthy of 38 Buckingham Avenue said there are no problems with Mr. Austin’s lots; there has always been a water problem there. Recently, there was a raw sewage problem there and it was resolved only after the efforts of Mr. Austin.
Ms. Simone Jeriline of 56 Buckingham Avenue said there has been a decrease in the water since he has done some work on his property. It has been only two years, but they also have a sump pump because of the high water table in that area. The berm has helped reduced the water in that area also.
Mr. Ray Sweeney, owner of three lots to the east of Mr. Austin’s property, said he has no objection to building, but the water problems need to be addressed. There is a trailer in the middle of the right-of-way and Mr. Austin has done a good job of leveling the land and there are a number of tree stumps on the property. There is a water problem because it is at the bottom of a hill from Hillcrest, Westfield Streets, and rear lots on Buckingham. Mr. Sweeney felt people should stay off the right-of-way, there are sheds and swings on his property now. Most of the water comes to Mr. Austin’s lot and his lot. Mr. Sweeney did not think Mr. Austin needed to provide water storage for the water problem.
Mr. Neffinger asked if he bought his property to be developed? Mr. Sweeney said these are legally recorded lots and in fact, three other lots farther to the east were taken by the town for taxes; it is a hopeless situation.
Mr. Richard Austin, father to the applicant, suggested the Zoning Board consider everything that his son has done and proposed be done to make improvements in this area, to benefit everyone in that area. Mr. Austin said there is a ‘Common Enemy’ rule in Mass for surface water run-off. This rule is used to deal with water flow from adjacent properties and from neighbor to neighbor. Many cases in this state that say surface water collection on streets cannot be directed from a public way onto someone else’s property, which is exactly what is causing the flooding on every lot on Buckingham Avenue.
Mr. Werbiskis said there are photos from abutters, the applicant, as well as the Building Department showing standing surface water on the property. The plan shows a depressed basin to hold surface water. What will happen with the surface water that is on that property? Mr. Clink said they addressed the difference created by the new house and driveway and by trying to retain water up to the elevation of 98 and 96, holding water that percolates into the ground water. There is four feet of impervious material on top of the soil. This system would improve that.
Mr. Werbiskis said the current elevation is at 98 and the bottom of the basin is at 97. That area is already inundated with water and we are unable to capture the water. Mr. Clink said it is a quick method on a small scale and the new grass will be able to retain some of the water.
Mr. Neffinger asked Mr. Clink if he has observed water at the site? Mr. Clink said there was no water and no rain when he was there. Mr. Neffinger asked if he calculated the water coming off the road and Mr. Clink said he did and he looked at runoff from everywhere. This is a small residential site.
Mr. Werbiskis said the definition of frontage in the Zoning Ordinance is fairly clear stating that you must provide viable access to the lot. A secondary means can be used, but there still has to be access from the street. Plans have been before the Board for the removal of the guardrail. Once the grading is put into effect, the guardrail can be removed and the development of the lot could be done. If the applicant moves forward with Mass Highway and the removal of the guardrail is complete, then there is viable access for frontage.
Mr. Neffinger said the Zoning Ordinance does not say outright that access has to be from frontage. Mr. Werbiskis disagreed and said if you cannot provide access through your frontage, then you do not have frontage. Ms. Beauvais said people are required to have access, but it does not say it has to the only access to the property.
Ms. Beauvais consulted with Attorney Donahue on how the Board is to respond to the four questions from the Court and if the Board should vote on each issue. Attorney Donahue said it would be easiest for the Board to consider and answer each question. Attorney Powers said the Board can vote on all four questions individually, but he would disagree that all have to be affirmative in order for the applicant to be issued a building permit on the property.
Ms. Beauvais moved to close the public hearing; Mr. Zymroz second. UAV.
Ms. Beauvais read the questions for determination from the Zoning Board:
1. Whether the Zoning By-Law permits the Building Commissioner to require the Plaintiff to provide a Storm Water Management Plan.
Mr. Neffinger said alluding to the positive and negative wording with commercial and residential properties, and with the Ordinance being silent with residential properties. It is interpreted that plans are not required with residential properties.
Ms. Beauvais asked if the Building Commissioner is permitted to request plans when he feels there is an issue? It is not prohibited and his duties would permit him to get a plan.
Ms. Beauvais voted yes; Mr. Zymroz voted yes; and Mr. Neffinger voted yes.
2. If the Plaintiff is required to submit a Storm Water Management Plan pursuant to the Zoning By-Law, whether the plan submitted by the Plaintiff is adequate.
Ms. Beauvais said that Mr. Moore states the plan is inadequate as it fails to address access from Westfield Street, as well as the adjacent properties with the location of the house and driveway.
Mr. Zymroz said if the issue of frontage was deemed not necessary then the storm water plan submitted would be adequate. From reviewing the plan with limited knowledge, it would be adequate for what it is based upon.
Mr. Neffinger said it looks adequate for what is proposed and adequate even with access from Westfield Street.
Ms. Beauvais felt unable to determine if it is adequate. Maybe if nothing else changed, but Mr. Moore stated it was inadequate. She felt they did not have enough facts and the building inspector said it was incomplete.
Ms. Beauvais voted no, Mr. Zymroz voted yes and Mr. Neffinger voted yes. Mr. Zymroz noted, however that the management plan would not be adequate if access needed to be provided via the lot’s frontage.
3. Whether the Plaintiff is required under the Zoning By-Law to access his property through the lot’s frontage on Westfield Street, West Springfield, MA.
Ms. Beauvais said it is her opinion that in order to have frontage, it must be accessible by two wheel drive vehicles to be considered frontage. If it is frontage, then it has to have access.
Mr. Neffinger said you could have frontage from another lot line.
Ms. Beauvais said you must have frontage but doesn’t have to be the main access.
Mr. Neffinger felt it has to say it in the Ordinance; it is alluding to a lot line with a two-wheel drive vehicle.
Ms. Beauvais voted yes, Mr. Zymroz voted yes, but noted it does not have to be used as his main access to the property and Mr. Neffinger voted no.
4. Assuming that the Plaintiff has a legal right to access his lot over the right-of-way, does that access satisfy the access to the lot required by the Zoning By-Law?
Mr. Zymroz said it does, having frontage does not mean frontage has to be the main access so this would allow access.
Mr. Neffinger agreed yes.
Ms. Beauvais said access could be from the right-of-way, but he would still need to have access from the frontage.
Mr. Zymroz voted yes, Ms. Beauvais voted yes, and Mr. Neffinger voted yes.
7:05 p.m. (8:43 p.m.) – R.M.E. Enterprises, Inc. (Variance) – variance from Table 9-1 of the Zoning Ordinance that requires one parking space for every two employees on the largest shift at the property located at 1422 Elm Street in the Business A (BA) zoning district. Continued from May 27, 2008.
Attorney Powers presented revised plans to the Board and a letter from the property owner of Geraldine’s Lounge stating the applicant could use parking at his site for employees to park to enable the applicant to meet his requirement for parking.
Attorney Powers explained the prior use of the site was a restaurant and the applicant proposes to demolish 1/3 of the existing building, renovate and operate a restaurant with 127 seats. The plan shows a small building with 51 parking spaces. The Zoning Ordinance requires 51 spaces and 5 additional for employees. The applicant is seeking relief from the required 56 spaces. Most employees arrive via bus or are dropped off. The franchise requires a certain number of seats. The shape of the parcel and the location of the existing building would involve a hardship. It would be a hardship to the applicant to decrease the number of seats.
Mr. Jim Hannifin, engineer for the project, explained they have met with Planning to discuss the proposal and they made a number of changes and hope it meets with the town’s satisfaction.
Ms. Beauvais said it was a much better plan, but she was still concerned with the variance issue. The shape of the parcel is not unusual and the number of parking spaces does not create a hardship.
Attorney Powers said the way the building is situated and the angle of the building. Economically, in order to operate this facility IHOP is required to have a certain number of seats. Mr. Evans has decreased the size of the building to enable an increase in parking on the site.
Ms. Beauvais asked the hours of operation for Geraldine’s and IHOP. Attorney Powers said Geraldine’s is open from 4 p.m. to 2 a.m. and IHOP is open 7 a.m. to 10 p.m.
Mr. Neffinger said the requirements for a variance are a hardship with the soil, shape, or topography of the land. There is nothing unusual about the soil, shape, or topography of this parcel. It is a hard sell the way it is now. Mr. Neffinger asked Mr. Werbiskis if this lot is non-conforming now? Mr. Werbiskis said he has not reviewed the issuance of the building permits so he could not comment on the non-conforming status at this time. He also reported the Council and DPW have been working to improve the safety of Elm Street. Raymour and Flanagan is working on eliminating the parking area on Elm Street and this site would be redeveloped in the near future with the closure of the wide open curb-cut. Mr. Neffinger said they would be losing parking that they
had in the past. Mr. Werbiskis said he did not know the history on this parcel, but it would have to comply with the Zoning regulations to make the non-conformity comply with current standards.
Mr. Neffinger said there is no indication of the removal of the building on the plan and the dumpster would take some of the parking area. Attorney Powers said they are reducing the size of the building 33 percent with a buffer zone and green around the building. The laws have changed and the building is non-conforming, but the owner should not have to pay the price now.
Mr. Neffinger asked what the building was originally built for? Mr. Abdow said it has always been a restaurant. Mr. Neffinger asked if there was a lease for the extra parking required and Mr. Abdow said no, it was not required, it was a convenience for the owner. This project would make the property better.
Mr. Werbiskis asked what was the existing seating at the Ivanhoe and the proposed seating for the IHOP? Attorney Powers said the certificate of occupancy is for 248 and the IHOP would need 127.
Mr. Zymroz asked if Geraldine’s has an abundance of parking since there would be an overlap of hours for both businesses. Mr. Evans said his employees arrive between 7 a.m. and 2 p.m. Geraldine’s opens at 4 p.m. The staff is less at night with business being 1/3 less in the evening. Mr. Zymroz asked the number of employees working each shift. Mr. Evans said on weekends there are 35 employees on the busiest shift. They are mostly high school and college students; seven cars total for all employees.
Ms. Beauvais asked for comments from the audience.
Mr. Schmidt of Lower Grandview Avenue said this site has been a restaurant for years and this would be better than having it sit vacant.
Mr. David Katz asked Mr. Werbiskis if they would need site plan review? Mr. Werbiskis said yes, administrative review through the town with storm water management issues being addressed, as well as the handicap ramps.
Mr. Neffinger said if this is denied the applicant cannot come forward again for two years; could this be a case for a special permit?
Mr. Werbiskis said the structure is non-conforming and the special permit is related to the use of the property with the current parking being insufficient. If building permits were received, then they would be able to go for a special permit.
Ms. Beauvais said she was not convinced on an argument for a hardship in this matter.
Attorney Powers asked if it was the consensus of the Board to file for a special permit in this case and Ms. Beauvais said the special permit has a much lower standard to meet to be granted.
Attorney Powers asked the Board to allow the applicant to withdraw without prejudice.
Ms. Beauvais moved to allow the applicant to withdraw the variance application without prejudice and resubmit a special permit application on the matter; Mr. Neffinger second. UAV.
3. New/Old Business
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday June 23, 2008, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 9:20 p.m.; Mr. Neffinger second. The vote was unanimous.
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Christine Kumiega Provost
Secretary, Board of Appeals
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