BOARD OF APPEALS MINUTES
Monday, October 26, 2009
7:00 p.m.
Present: Chairman Lisa Beauvais, Vice-Chairman Gregory Neffinger, and Alternate James Bodurtha
Absent: Secretary Christine Kumiega-Provost
The Chairman called the meeting to order at 7:04 p.m.
1. Acceptance of Minutes
Ms. Beauvais moved to table the minutes of June 22, 2009, and September 28, 2009 until the next meeting of the Board; Mr. Neffinger second. UAV.
2. Public Hearings
7:00 p.m. (7:05 p.m.) – Debra & Glenn MacDonald (Variance) – Variance from Section 9.034 of the Zoning Ordinance that requires a 30 foot separation between driveways for the property located at 304 Hillcrest Avenue in the Residence A-2 (RA-2) zoning district.
Ms. MacDonald of 304 Hillcrest Avenue came forward and said she had a contractor drawing with the dimensions to show the Board, which she had just received that day.
Ms. MacDonald said this is the part of their property where they have been parking their cars since they moved in to the home in 1982. Now they would like to pave that area where they have been parking. Due to the way the property is, there is an electrical pole and the driveway must be placed in this area, there is no other alternative.
Ms. Beauvais said the zoning ordinance requires a 30 foot separation between driveways and you have 14 feet from your neighbor’s driveway. Also the driveway plan shows a dimension of 18 feet x 19 feet. Ms. MacDonald said yes, she was told it had to be 18 feet long, and that is the maximum that can be put there because their property is on a hill. The cars will fit on it.
Mr. Bodurtha said in the summertime where do you park both vehicles? Ms. MacDonald said one to the right of the house where the plan shows 13 feet x 22 feet, this is the only space they have right now that is off the road. Mr. Bodurtha said you cannot go any further back on that side? Ms. MacDonald said there is a deck and the difference is 17 feet to the back. Mr. Neffinger asked if that area was paved? Ms. MacDonald said yes, it was paved.
Ms. Beauvais said the proposed parking area is right on the street, can that be pushed back? Ms. MacDonald said no, that is all that was required, to go back 18 feet. Mr. Bodurtha asked if that measurement was from the right of way or from the pavement? Ms. MacDonald said it was from the road, 8 feet of town and 10 feet of driveway. Mr. Bodurtha asked for clarification and Mr. Werbiskis said the 18 feet would need to be from the edge of the right of way, not the edge of pavement. So if there is a 10 foot tree belt then the 18 feet must start back 10 feet from the asphalt, so 28 feet from edge of pavement. Mr. Bodurtha said the plan shows from the edge of the pavement. Ms. Beauvais asked if that could be pushed back to 28 feet? Ms. MacDonald said
no, the property goes downhill.
Mr. Neffinger said that whole neighborhood is a very steep hill. A typical parking space is 9 feet x 18 feet. Mr. Neffinger asked how many cars could fit in the space that was 13 feet x 22 feet? Ms. MacDonald said only one car fits there. Ms. MacDonald said they have been parking in this location since 1982 and one of the engineers that was on site said he was going to pull the aerial photo from 1989 to show that a car was parked there, but she had not heard from him. Mr. Neffinger said they are able to park a car there now as it stands without any retaining walls. Ms. MacDonald said yes, they can park one vehicle there. To park two they would have to take out landscaping to make the area wider. Mr. Neffinger said there is enough flat area there
and Ms. MacDonald they have just enough flat land to make the 18 feet. Mr. Werbiskis said the plans he provided to the Board show the driveway 10 feet in width x 20 feet in length, solely on the applicant’s property. Mr. Neffinger asked how far from the property line to the curb and Mr. Werbiskis said approximately another 10 feet. Mr. Neffinger said the end of the driveway would be about 30 feet from the road. Mr. Werbiskis said that would be required by the Town’s Ordinance. Mr. Neffinger said then that is why they are requesting a variance and Mr. Werbiskis said not necessarily because this Board has no authority to grant a variance from Town Ordinances of the community. Section 8.207 prohibits parking within the tree belt area. Mr. Neffinger said there are two issues in this matter, one the applicant would like to have a driveway closer than what is allowed and two, the town ordinance says you cannot have this driveway
because you cannot park in the tree belt area. The Board has the authority to grant a variance on distance from the neighbor’s driveway, but not a variance from the Town’s general ordinances.
Ms. Beauvais said the Board cannot override the Town Ordinances and the applicant said there is no possible way to extend the driveway back any further. Ms. MacDonald said she had an email from the Planning Department stating it needed to be 18 feet long. Ms. Beauvais said yes, 18 feet from the tree belt line. Ms. MacDonald said she was told it needed to be 18 feet from the road. First they said 8 feet and then an additional 10 feet from the road. There are dozens of driveways on the street that are not even 18 feet long. Ms. MacDonald said she would not have done all of this if she did not have the footage that the town told her she needed.
Mr. Bodurtha said if you want 18 feet of space for parking, to fit two cars in, then there is an issue that the driveway from the pavement from the curb has to go 28 feet back. (Richard presented email correspondence to the Board). Mr. Neffinger said Mr. Werbiskis said you have to be at the property line, 10 feet from the curb, where you begin your driveway and they are requiring 10 feet x 20 feet, then 28 feet into the property. Ms. MacDonald said they told her the town owned the first 8 feet. Mr. Neffinger said from that point on you have to go a certain depth. What the town is suggesting is way beyond what the applicant wants to do. Ms. MacDonald said the whole street is on a hill, there are no driveways that long on the whole street. Mr. Neffinger said he
lives on Bonair Avenue, if you drive down Hillcrest there are a lot of parking spaces that are right on the curb and on Bonair people have driveways they don’t even use in the winter because they are so steep they don’t even try. This is pretty steep too.
Ms. MacDonald said they told her it could be a maximum of 24 feet, but she does not have 24 feet because of the utility pole and a large tree. Ms. Beauvais said if you were to put the driveway in the suggested area, this would slope down. Ms. Beauvais asked Mr. Werbiskis for clarification. If they are to park one car, it would be 20 feet in length and 10 feet wide. Mr. Werbiskis said generally speaking, for one car. A vehicle is typically 7 to 8 feet in width give or take and 16 feet in length. Parking stalls within a normal parking layout are striped at 9 x 18 feet in length. The plan shows 18 feet from the edge of the pavement, which includes 10 feet of the tree belt and the 18 feet needs to be from the property line, and if they are to park their vehicle
extending into the tree belt, she is in violation of the Town’s Ordinance and could be cited by the Building Commissioner. Ms. MacDonald asked why other people are not being cited with violations. Mr. Neffinger said then she could come in and appeal the decision of the Building Inspector? Mr. Werbiskis said no, because this rule is in the Town’s Ordinance not an interpretation of the zoning ordinance. Mr. Neffinger said awhile back the Building Inspector used to be in charge of driveways and then about four years ago the enforcement switched to the DPW and people used to come to the Board for driveways variances and then it went to DPW and it was called an ordinance. Mr. Werbiskis said parking in the tree belt area is in the Town’s Ordinances.
Mr. Werbiskis said the Zoning Ordinance was recently revamped with respect to access driveways. This is strictly regulated by zoning and the Board will now see many variances coming in regarding access drives. The authority was removed from the DPW and vested solely in the Zoning Ordinance with the Building Commissioner. The Town Ordinances or Municipal Ordinances cannot be appealed to this Board.
Mr. Neffinger said this area is very steep and she will probably end up building a 10 or 12 foot retaining wall in order to get the 20 feet beyond the property line. The whole neighborhood is parking in the tree belt due to the contours of that whole area.
Ms. MacDonald said Bob Donahue and Jim Czach came to the property and stated she needed the variance for the closeness to the neighbor’s driveway only and there was no other issue. They showed her what she needed to do for this meeting.
Ms. Beauvais said Richard was going to get the email sent from the DPW regarding that site visit. Regardless, the issue before the Board is of a variance and if the driveway can be allowed to exist as it is because it encroaches into the tree belt. The Board does not have the authority to override a municipal ordinance; therefore, the issue of a variance would be moot at this point. Mr. Neffinger said he would not have a problem granting the variance for 15 feet, but that will not help with the driveway being in the tree belt. Mr. Bodurtha said she just cannot park in the part in the tree belt. If this were flat land, she could go back 50 feet if she wanted to, the question becomes how much of a drop off is it and can she build it up? Ms. MacDonald said this is the
absolute end to where she can put the driveway and to build it up would look ridiculous. The house is right on the road.
Mr. Neffinger said it is hard to say from the topography map, it looks like she may need a 6 foot retaining wall to get flat area that far back. Ms. MacDonald said it would have to be an additional 10 feet and they are literally at the end point. The neighbor next door has a circular driveway and they are not 8 feet off the road. Ms. Beauvais said they are not saying that the driveway cannot be started at the road, you just cannot park your car within that tree belt and if the driveway is circular then they can pull in and probably park two cars without parking on the tree belt. Ms. MacDonald said it is a very tiny driveway and she has been parking in this location since 1982, why isn’t she grandfathered now since they have been there longer than the neighbor.
Mr. Neffinger asked if Hillcrest was recently paved this summer and was there a curb put in front of the house? Ms. MacDonald said yes, but the town removed the curb in front of the house. Mr. Werbiskis said that is a matter of some dispute, but not an issue for this evening. Ms. Beauvais said the berm was removed so they could park their vehicles on the lawn in the winter. Before the berm was removed how did you get the cars up on the lawn? Did you drive over the berm? Ms. MacDonald said there was no berm. Ms. Beauvais asked how long was there no berm? Ms. MacDonald said since they have lived there. Ms. Beauvais said there was a new berm put in recently.
Ms. Beauvais read the email of when the applicant met with Bob Donahue she was told she would need a 18 foot x 20 foot wide double driveway and would need a variance from this Board because there is not a 30 foot separation and was also told the tree belt in the area of the driveway is 7.5 feet to 8 feet and this area would have to be constructed. There was also a letter from Tom Lagodich, dated July 8, 2009, stating that the applicant was in violation of Town Ordinance by removing newly installed curbing on town property (letter in file). The picture shows it all chopped up on the side of the road and you are saying the town sent you a letter accusing you of doing this? Ms. MacDonald said she called to speak to the person and told them it was a misunderstanding and a Town truck came
and removed the curbing on July 6th.
Mr. Neffinger said if the Board grants a variance and she works out something with the DPW then that would be fine with him because the Board will not grant a variance saying what the size of the parking lot has to be, we are granting a variance from the 30 foot separation. After she gets the variance of the 30 feet separation, she can go before the DPW to try to come up with any other configuration that might satisfy them. Mr. Werbiskis said there is no configuration except for a parking stall that is completely located on her property. Mr. Neffinger said yes, but that could take on many configurations, for example instead of parking straight in, why can’t she park sideways, parallel to the curb? Then she is only going in the width of the car and not the length of the
car. Ms. MacDonald said Bob Donahue was at the house and he told her that she needed 18 feet back. Mr. Bodurtha said when he said 18 feet back, he means not from the curbing, I think there may have been a misunderstanding. Ms. MacDonald said he measured and knew how much land they had. Ms. Beauvais said this cannot be worked out without an appropriate plan, we cannot just leave the plan in limbo and grant the variance and say work it out with DPW. Mr. Bodurtha said you cannot say that she can put something in anywhere within that 30 feet. Ms. Beauvais said either build up the back or put in a retaining wall and get off the town line. Mr. Neffinger said perhaps we should continue and she could bring a plan that shows the dimensions that the DPW is happy with. Ms. MacDonald said wouldn’t the DPW be at the meeting if they were in disagreement with what was submitted? Ms. Beauvais said the DPW is not required to be at the meeting. Mr. Bodurtha said there needs to be some
certainty when they release that 18 feet he meant from the curb and not from the property line. Ms. MacDonald said they were at her property. Mr. Neffinger said the Board cannot address the conversation she had with the DPW, the suggestion is to continue the hearing so a plan can be commented on by the DPW and they can tell the Board that this plan is ok. Ms. MacDonald asked if she could do that without having to continue the hearing? Ms. Beauvais said no, because the Board needs to grant the variance and that cannot be done without plans. The Board can render a decision now, and based on the Municipal Ordinance we would deny the variance, or you can redraft the plans and see if there is a way to build a retaining wall and extend the driveway out. Ms. MacDonald said she cannot do that and why isn’t she grandfathered along with other residents on the street. Ms. Beauvais said she was not grandfathered because the driveway is not
currently in existence. You have no driveway there at this point. Ms. MacDonald said she has been parking there for years and why is she being singled out. Mr. Neffinger said she was not being singled out, the fact is that there is a dispute about the curb and parking on the lawn and being in violation of the 30 feet. Ms. MacDonald said the parking ban will be going into effect before the next hearing, this driveway needs to get in. Mr. Bodurtha said unfortunately many people cannot have the amount of cars at their property that they would like. The Board is bound by what they can and cannot do. Ms. MacDonald said she understood, but was unsure why this was not explained to her before, she made numerous phone calls and meetings with all the offices and now she has to wait longer.
Mr. Bodurtha said he would like to know that the DPW is ok with only 18 feet from the pavement. From the emails and letters, it does not appear that they are ok with that. Mr. Werbiskis said an access drive is that portion of the driveway that extends between the general paved surface of the roadway and the edge of the right of way, the DPW grants a permit for this, not for the entire driveway where you park your vehicle. DPW Policy requires that access drive be of a hard surface, once beyond the edge of the right of way onto the property, and then it can be constructed as you wish. Mr. Neffinger said you need to pave to get up to your property, what you do after your property line you can do what you wish. Mr. Werbiskis said even if she were able to put the access
drive in, this Board has to find that there is enough room to put the vehicle on her property without extending into the right of way. Mr. Werbiskis said he would be hesitant to issue a variance without a plan that shows this, because then you would be misleading her that she could get a variance to put the access drive in and leave the remainder unimproved, but doesn’t provide adequate parking space fully on her property and that creates a violation issue and an expense for the community and for the applicant. Mr. Neffinger said that is a policing issue, but understood the point. He suggested if she wanted to go 10 feet into the property beyond the property line and feels she can do it and is not in violation of the law, even if the car is parallel to the street, she would be able to do that, correct? Mr. Werbiskis said yes.
Ms. Beauvais asked for comments from the Board and the audience. Mr. Bodurtha said was there a different driveway next door besides the circular one? Ms. MacDonald said they have two driveways. Mr. Werbiskis said the 30 feet is measured at the intersection of the access drive with the property line, so where that access drive intersects the property line that is where the 30 foot separation is measured with an allowed 2 foot radii at the edge of each access drive where it intersects the travel surface of the roadway.
Mr. Neffinger asked about all the properties in that neighborhood where people are actually parking in the tree belt, could they all expect to receive cease and desist orders? Mr. Werbiskis said he didn’t think that would happen. The DPW and the Building Commissioner are enforcing the newly adopted ordinance through the current permitting process.
Mr. Bodurtha said the Board is here to see if the applicant could get a variance for an access drive within 30 feet of the neighbor’s driveway. Ms. Beauvais said if the Board was to grant a variance, one of the things the Board has generally required is a plan, and if we require a variance to say that they are allowed to have this project allowed, we look at plans to see if it will work. It makes no sense for the Board to grant a variance for a plan that may or may not work. If it is not possible to park a car there legally, why go through the whole variance process. Mr. Neffinger said this plan she is showing you can fit one car there, the final configuration has to be worked out with the DPW.
Ms. Beauvais moved to close the public hearing; Discussion: Mr. Neffinger said he would rather continue the hearing than vote this evening. Ms. Beauvais said the applicant has stated she did not want to come back with new plans. Ms. Beauvais asked the applicant again if she would be willing to come back with new plans? Ms. MacDonald said she would after she talked to the DPW. Ms. Beauvais clarified by saying would she come back with new plans that would show the driveway extending 18 feet from the property line, not from the street? Ms. MacDonald said no. Mr. Neffinger said that is not fair, the fact is that she just has to show a workable driveway for the Board. Mr. Neffinger told Ms. MacDonald that the Board is asking for more information; they
want to see a workable driveway. You have many people you can consult with. Ms. MacDonald said when the Board says a workable driveway that means going out 28 feet into the right of way. Mr. Neffinger said that is not necessarily it; he was not going to design it for her right now, but he was saying a plan showing a workable driveway, then the Board can continue the hearing to next month. If the Board voted right now, it may be negative and then the applicant would have to wait for 2 years before coming back before the Board. Ms. MacDonald said then she has no alternative. Ms. Beauvais asked if she would come back with new plans? Ms. MacDonald said yes. Mr. Neffinger asked Mr. Werbiskis if he or any of the Board members could review those plans before they are brought before the Board at the hearing? Mr. Werbiskis said generally speaking, as soon as we are in receipt of the plans we forward them to the Board for pre-review.
Mr. Neffinger asked if he wanted to do a site visit could he and then the applicant could explain the area and the situation. Mr. Werbiskis said yes, as long as there are not more than two members of the Board available at the site. Mr. Neffinger told Ms. MacDonald that he would be happy to look at her property and give his opinion of what she might look to do.
Mr. Neffinger moved to continue the public hearing to November 23, 2009, at 7:05 p.m.; Ms. Beauvais second. UAV.
7:10 p.m. (7:56 p.m.) – Nicholas Katsoulis (Variance Amendment) – Variance amendment to allow for the operation of a Massachusetts Inspection Station (auto repair facility) located in the storage area of the building at the property located at 865 Memorial Avenue in the Business A (BA) and Industrial (I) zoning district.
Attorney Sypek presented plans to the Board and said Mr. Katsoulis was previously granted a variance to flip the bays and the storage area on this property. Now they would like to put in an inspection station in the storage area space, which is 1,170 square feet. He already has a tenant for the space. They do not need storage space at this time for the business and this area is just dead space. Mr. Katsoulis spent over $50,000 bring the building back into compliance after the fire and the building is fully operational now.
Attorney Sypek said the structure is pre-existing, non-conforming and the parking shows 33 parking spaces to the side of the Spartan Muffler.
Mr. Bodurtha asked if the shaded area was the two bays that were not used? Ms. Beauvais said in the past since there is not enough parking for the businesses on the property, they shifted around and removed bays and equipment and were allowed to use that space for storage only. Since this was storage space, some of the parking issues were relieved. Attorney Sypek said parking is the problem, but it is adequate for the businesses that are there. Mr. Katsoulis said the RMV had inspected the space and it was approved for Mr. Matta to use. They would do approximately ten to fifteen inspections per day and would not require any parking; you cannot access the space in question from the front of the building. There is some parking behind the building and four or five along
the building. One to two cars per hour would have no impact on the parking. There is no parking necessary for an inspection bay and there is a shared easement behind the building. Mr. Bodurtha asked if there was a prepared easement? Attorney Sypek said he believes that there was, but if not he can get one. He also noted there were no objections from abutters.
Ms. Beauvais asked what if three or four years from now they want to use that area for something else besides an inspection bay? The Board has specifically said it cannot be used for anything but storage and now they want to utilize that area a year later. Inspection stations do have cars in queue waiting for inspection. Mr. Neffinger said there are 15 spaces out there now. Attorney Sypek said this is employee parking, but it is a dead area back there. Mr. Neffinger asked if they park any Spartan cars back there or just employee vehicles? Mr. Katsoulis said five employees park there.
Ms. Beauvais said there is still the matter of finding criteria for the variance to show something unusual about the soil, shape, or topography. Attorney Sypek said the shape of the lot is unusual; same reasons as the last variance. Mr. Katsoulis says it has been this way since 1980, with the same uses, and since the fire, there is a problem with parking with the town as well as all these outstanding zoning problems. Connecticut Valley Block and the Big E are the neighbors. This storage area has been utilized in the past.
Mr. Neffinger said there was an issue with the number of bays in the building before the fire took place. Mr. Katsoulis said he converted part of the storage area and put the bays in, in 2004. He did not know he was violating any town bylaws. Mr. Neffinger said sometimes when the town approves a building and there is storage space, that area does not figure into the parking requirements for the building. Attorney Sypek said this area has been used for multiple things over the years.
Mr. Bodurtha asked if the property line off Bramble Avenue hugs the building. Mr. Werbiskis showed the Board an aerial photo of the site. Mr. Bodurtha asked how do they access the storage area, are there doors off of Bramble? Attorney Sypek said they could go through the retail space or access via Bramble only. The Board discussed access rights to Bramble. Mr. Bodurtha asked if the Board would feel differently if there was an easement agreeing to allow parking in that back area? Mr. Werbiskis said he was unsure an easement would be possible because Sherman Williams utilizes some of those parking spaces.
Ms. Beauvais asked for comments from the audience. Mr. Angus Rushlow, District #1 Councilor said he has never seen traffic or parking problems at the site. He had a tour of the premises and the storage area, which is separate from the front of the building and there was ample parking space there. Mr. Rushlow said, in his opinion, he would like to see this application granted and help them to build up their business, while also being convenient for the people in the community.
Mr. George Kelly, business owner in the Merrick area said he does business with Mr. Katsoulis and his family. They are good citizens and give to charities and they recently went through a terrible tragedy and given the severe economic situation, there is a physical hardship. This situation is just what the ZBA was created for.
Mr. Werbiskis noted, for the record, that the Planning Department and the Building Commissioner are opposed to the issuance of this variance. This is an over utilization of the property ad there is not enough parking on the site. The Board granted a variance for the expansion of the Richard’s Grinder’s space. That same storage space could have been utilized to accommodate that expansion.
Ms. Beauvais moved to close the public hearing; Mr. Neffinger second. UAV.
Ms. Beauvais said the Board has granted a variance with specific findings for the Richard’s expansion and requiring the bay lifts and associated equipment be removed and that space used for storage only. This finding was used to get around the parking issues on the site. This Board is here to uphold the variance and the Board cannot grant variances based on good citizenship. The storage area was designated as such for specific reasons. There is an over utilization of the lot and now they want to use that space while providing no additional parking spaces.
Mr. Neffinger said this is a very complex building and uses at the site. The Spartan business has changed and now they no longer need the storage space for parts. The back part of the business is almost used as a separate entity and not used except for employee parking. Ms. Beauvais said nothing has changed in the back and with the auto body and Sherman Williams located back there, it would be very congested. It is very deceiving as it is depicted on the plan. Mr. Neffinger said he would allow a withdrawal from the applicant in order to come up with a better argument.
Attorney Sypek said they would request a withdrawal without prejudice.
Ms. Beauvais moved to allow the request for withdrawal; Mr. Neffinger second. UAV.
7:10 p.m. (8:31 p.m.) - Paul Goldman, Esq. (Special Permit) – Special Permit from Section 4.21 of the Zoning Ordinance to allow for the alteration of a non-conforming use from a dental office to a residential use at the property located at 39 Van Deene Avenue in the Business A (BA) zoning district.
Mr. Ron Huot of Anderson and Associates said the existing building is a 111 unit apartment building, which is a non-conforming use in the Business A zoning district. The unit in question was a two bedroom that was renovated into a dental office and now the owner would like to convert it back to a two bedroom unit. There would be no exterior alterations with only minor interior renovations.
Mr. Bodurtha commented that this is one of the most thorough applications that he has seen for a special permit for a change of a non-conforming use. He did not feel this use would be more detrimental to the neighborhood. Ms. Beauvais said it also creates no new non-conformity.
Ms. Beauvais asked for comments from the audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Mr. Neffinger second. UAV.
Ms. Beauvais moved to allow the special permit as presented with the findings found in Exhibit A and that there would be no new non-conformity and it would not be more detrimental to the area than the current project; Mr. Neffinger second. UAV.
3. New/Old Business
Mr. Werbiskis noted he would be meeting with Ms. Vlasyuk and her Attorney regarding 476 Main Street and he would provide an update to the Board after that meeting.
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday, November 23, 2009, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 8:35 p.m.; Mr. Neffinger second. The vote was unanimous.
__________________________________
Christine Kumiega Provost
Secretary, Board of Appeals
| 
