BOARD OF APPEALS MINUTES
Monday, July 27, 2009
7:00 p.m.
Present: Chairman Lisa Beauvais, Vice-Chairman Gregory Neffinger, and Secretary Christine Kumiega-Provost
The Chairman called the meeting to order at 7:01 p.m.
1. Acceptance of Minutes
Ms. Kumiega moved to approve the minutes of March 23, 2009, as presented; Mr. Neffinger second. UAV.
Ms. Beauvais moved to table the minutes of June 22, 2009, until the next meeting of the Board.
2. Public Hearings
7:00 p.m. – Brian Battista (Variance) – Variance from Section 6-1A of the Zoning Ordinance that requires 40 feet of front yard setback for the property located at 849 Amostown Road in a Residence A-1 (RA-1) zoning district.
Mr. Battista came forward to seek a variance to put a front porch on a house. The porch will encroach into the 40 foot front setback. The house curves slightly to the left so the left corner is 40 feet from the road and the right part of the house the porch comes off 6 feet and the left addition is 8 feet. They are looking at a 5-foot variance in order to put the porch in. The land slopes down and the porch would make the appearance of the property more appealing to the neighborhood. The slope is an eyesore and they are doing what they can to make it look better and the porch would improve the look.
Ms. Beauvais asked where the land slopes? Mr. Battista said the left side slopes and the house sits on a plateau. His neighbor’s house is 3 feet lower than his own. Ms. Beauvais said the plans do not show the exact footage or how many feet the variance is for. Mr. Battista said if you measure from the right side of the house they are only off a foot, but the house turns so it would be off a few more feet. He is requesting a 5-foot variance to be safe.
Ms. Beauvais explained the requirements that the Board must find to grant a variance is something unusual with the soil, shape, or topography of the land or the building thereon, which a literal enforcement of the bylaws would create a hardship and the hardship cannot be financial. The Board needs to know what is unusual about the parcel. Mr. Battista said if you were to drive by the house you would see the slope. The home to the left is on a large hill and sits lower than his house and there is nothing he can do to correct this. That is a hardship to him and he cannot make his home look better. Ms. Beauvais asked if the addition of the front porch was for aesthetic purposes? Mr. Battista said he would like to improve the appearance of his property.
Ms. Beauvais asked for questions from the Board. Mr. Neffinger said the plan is a rectangular porch being put on the home. Mr. Neffinger said he is looking for a variance from the front yard set back and the Board is unsure how far the house is set back right now. Mr. Battista said the left corner of the house is 40 feet from the road. Mr. Neffinger reviewed the plan with Mr. Battista.
Dominic Battista of Galaska Street said the hardship he did not mention was that they have already taken the front down to be more level with the left neighbor in anticipation of the front porch reconstruction. Without that it will have to be built up in front.
Mr. Neffinger said the Board needed to focus on the soil, shape or topography to grant a variance. Ms. Kumiega asked if there was additional information on where the other corner sits; how back far from the street.
Mr. Dominic Battista said new sidewalks were just installed and above that area the soil was very weak and the dirt would just slide away. The slope between the yard and sidewalk was too great. Mr. Neffinger asked if it was graded correctly now, but perhaps the footings are too high and not 4 feet below grade? Mr. Dominic Battista said it would be because they would have to build the lot back up. Mr. Neffinger said in order to modernize the topography of the lot, it has caused a big part of the foundation to be exposed, which could be a reason to grant a variance. Ms. Kumiega asked with the new addition, is the left corner in conformity and the angle of the roadway versus the angle of the house. Mr. Werbiskis said you would have conformity with both corners of the
house with the addition. It is the porch that brings it beyond the 40-foot setback. The right hand corner is 42 feet. Mr. Neffinger asked if this were a deck would it need a variance. Mr. Werbiskis said if it were an unroofed open porch it could extend 4 feet into the front yard setback.
Ms. Kumiega asked if it was a single story porch and Mr. Battista said yes, it is.
Ms. Beauvais asked for comments from the audience. Attorney Brighenti, resident of 107 Galaska Drive came forward to speak in favor of the application and noted there were issues regarding the soil coming down onto the new sidewalk and they have done a good job with the addition, but the uniqueness of this parcel and the setback of this property effect it differently than any of the other properties along this road even though there are other parcels that are as close as what the Battista’s are trying to do. There would be no effect on the neighborhood and there is a hardship in the way the house is set on the lot and has been there for a number of years and the house is skewed on the lot itself. The relief they are looking for is minimal and the slope could be supported as a
hardship and it should be granted.
Ms. Beauvais asked for comments from the Board. Mr. Neffinger said it appears the owners tried to improve the topography and the porch would be an attempt to try to fix up the appearance of the front of the house as caused by improving the topography on the lot. If they had left the topography as it was, it was not really fitting in the neighborhood. There is somewhat of a topography issue here and it does not seem detrimental to the neighborhood by approving the variance.
Ms. Beauvais moved to close the public hearing; Ms. Kumiega second. UAV.
Ms. Kumiega said the topography issue is that it is on the rise and if that grade was recreated then they would have the soil problem running onto the sidewalk all over again. Ms. Beauvais said there was a lot of construction and heavy equipment in this area that contributed to the soil runoff and she did not believe the house, in the condition that it was in, had any runoff problems and the dirt was not running into the sidewalks until the sidewalk construction started. Ms. Kumiega said she did not know if the Board had to find that the only reason to just get over the topography hurdle to allow the variance, there is enough unique in those two circumstances. Ms. Beauvais said she is not finding a hardship issue, the porch would look nice and make the property look better, but if
that is the main reason for the porch, it has nothing to do with a hardship and if the dirt was put back in, the house would look just fine. The only hardship would be a financial issue. Mr. Neffinger said again, by trying to improve the topography, they ended up exposing the foundation, which could be a hazard with frost heaving of the footings. He said by improving the topography they have exposed the issue. A porch is a good alternative to the improvements that they have made. Ms. Beauvais said that is not a hardship, granted it would look nice, but it does not make it a hardship because the property was conforming before construction started, before any dirt was taken away. Ms. Kumiega said maybe if they had more evidence on the issue of whether the additional foot of soil versus bushes or a porch would be the solution to the foundation grading, it is somewhat self created, but it does not fall into the regular category of a self-created
hardship, because of the issue of the sidewalk and the topography. If the Board took additional evidence, there may be a way to find a hardship. Ms. Beauvais felt the soil had been moved in anticipation of the porch, so it was not removed because it needed to be removed for a specific reason. The property was fine as it was, and the addition was put on to the side of the property. Mr. Neffinger said most self- inflicted hardships that come before the Board is due to the fact that people have built something without a permit. That is not the case here, but the grading that was done seems like it was the best grading for the site.
Ms. Kumiega suggested withdrawing the application in case they could come up with additional evidence, they could come back before the Board. Ms. Beauvais said she was not sure there could be additional evidence in this matter.
Ms. Beauvais moved to reopen the public hearing; Ms. Kumiega second. UAV.
Ms. Beauvais told the applicant that the Board was struggling with finding a hardship issue to meet the requirements of the variance, and if the Board were to vote they would have to deny and it would be two years before the Board could hear this matter again. Ms. Beauvais offered Mr. Battista the option to withdraw his petition and enable him to come back before the Board with additional evidence or if the project was revised in any way.
Mr. Battista would like to withdraw his application without prejudice.
Ms. Beauvais moved to allow the applicant to withdraw without prejudice the application for Variance; Mr. Neffinger second. UAV.
7:05 p.m. – Geoff Elia (Variance) – Variance from Table 9-4A that allows for one 16 square foot free standing sign in the Business A-1 zoning district for the property located at 271 Park Street located in the Business A-1 zoning district.
Mr. Geoff Elia came forward from New England Spine and Sports and said presently their business resides at 1275 Elm Street and they are in the process of relocating to 271 Park Street. The new building is 15,000 square feet and they are adding additional parking. When they decided to expand they wanted to find a location to stay in West Springfield as they have a good relationship with the town. The new building aesthetically conforms to the other buildings on the street and they are requesting a variance to increase the sign from 16 square foot. The reason being currently, on Elm Street they have considerable signage on the building that lets the patients find the site easily. Many days 40 to 50 percent of the clients coming are new patients and coming to the building
for the first time; not repeat customers that are familiar with the location. The building design does not allow for significant signage because of two large trees in the front of the building. The biggest issue is coming down Park from the north; the first sign of the building is at the light at the intersection in front of the building. If the light is green and you miss the turn on Western Avenue, the next turn is Sylvan Street and there is no turn off there. It can be a dangerous spot with the traffic congestion if you do not know where you are going. This was a vacant lot before the building was constructed so this is a new problem. They would like a slight increase in the signage so people can locate the building easily and safely.
Ms. Beauvais asked what size sign were they looking for? Mr. Elia said they would like a 24 square foot ground sign. Ms. Kumiega noted the application requests a 4-foot by 8-foot sign. Mr. Elia apologized and said they reconsidered after the application was submitted and it was decided that 4 feet by 6 feet would be sufficient.
Ms. Beauvais said this would be the biggest sign on the street. There are no large signs on Park Street. Mr. Elia said there is mostly signage on the buildings in that area, but the trees do not allow that for this building.
Ms. Beauvais asked how high off the ground would the sign be? Mr. Elia said two to three feet off the ground at sidewalk level. There is a retention basin around the building so there is not a lot of ground room for a big sign. Ms. Beauvais asked if the sign would be illuminated in any way. Mr. Elia said not at this time, the only lighting would be up-lighting or down lighting, not an actual illuminated sign.
Ms. Beauvais discussed the issues the Board faces with granting a variance and the need to find something unusual about the soil, shape or topography of the lot and by not allowing a 24-foot sign, would this cause the business a hardship? Mr. Elia said the only unusual thing about the lot is that there was not a building there before and the biggest concern is for the safety of the patients and people coming down the street. Ms. Beauvais asked if there was anything unusual with the shape of the lot. Mr. Elia said due to the design of the building, the topography is as such that they need drainage around the entire building. This affects the placement of a sign and the hardship would be for the safety of the patients. They improved a vacant empty lot and do not want to
see the patients miss the building and have to go around and possible cause an accident. The hardship is visibility and awareness; if a big sign could be put on the front of the building they would do that. The large trees totally obstruct the view of the building. They were considering solar panels on the building and were told not to bother because there will be no sun due to the location of those trees.
Mr. Neffinger asked if the parking was behind the building and accessed from Sylvan and Western Avenue? Mr. Elia said yes, but this is a tough area congested with traffic. Sylvan Street is narrower than Western, so there is not much room to maneuver.
Ms. Kumiega asked where the sign would be placed? Mr. Elia said between the sidewalk to the building and the sidewalk to the street there is a small area where a sign could be placed. The retention basins create a hardship in locating the sign. Mr. Werbiskis said the sign would be center on the frontage on Park Street. Ms. Beauvais noted the two trees would be to either side with the sign in the middle. Ms. Kumiega thought there was some hardship in being somewhat of an angled lot. Ms. Beauvais said catch basins are on each side with a flat area where the sign would be and the two trees are in the front of the two basins, so the location where the sign would go is the most open part of the building and goes right to the front entrance to the building. The
signs on Park are set much lower and most are right in front of the buildings. Mr. Neffinger said if the retention basins were not there, would the sign be located in the same area? Mr. Elia said yes, the sign would be in the same area for visibility. Mr. Neffinger felt the retention basins were not creating a hardship to the location of the sign. Mr. Elia said if the one retention basin to the north was not there, they might have been able to move it a little more towards the northeast. But this is not an option.
Ms. Kumiega asked if there was an average sign measurement taken? Mr. Elia said he took a look at the neighborhood to make sure their request was in line with what was already there. There are a few other buildings with more signage on their buildings, but they do not have the obstructions that we do. Ms. Kumiega said street signs that are not on the building are very low key and on the small side. Mr. Elia said their lot is slightly lower than the other lots with a higher visibility factor.
Ms. Beauvais asked for comments from the audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Ms. Kumiega second. UAV.
Ms. Beauvais said the Board cannot find anything unusual with the soil, shape or topography. Mr. Neffinger said he has problem with the way the bylaw was written due to the fact that this is such a large property, they are only allowed 16 square feet, and it should be written in to the bylaw that adjustments could be made. Adjacent properties are quite a bit smaller and they are allowed the same size sign. Ms. Beauvais said you cannot miss the building, it is huge and takes up the whole lot. Mr. Neffinger said he felt a bigger building should be allowed to have a bigger sign. Ms. Kumiega said the Board has to follow the criteria of the law for requirements for a variance. There is no discretion to go with what is pleasing and reasonable.
Ms. Beauvais moved to deny the variance for 271 Park Street and said the Board cannot find evidence to support that a physical hardship exists or that there is anything unusual about the soil, shape, or topography of the land. Mr. Werbiskis offered a suggestion that the Board could allow the applicant to withdraw the application. Mr. Neffinger and Ms. Kumiega were in agreement to allow a withdrawal.
Ms. Beauvais moved to reopen the public hearing; Ms. Kumiega second. UAV.
Mr. Elia said he would like to withdraw the application without prejudice. Ms. Beauvais moved to allow the applicant’s request; Ms. Kumiega second. UAV.
7:10 p.m. – Jeremy Waycott (Variance) – Variance from Table 9-4B that allows for one free standing sign for the primary entrance, which indicates the name of the general development; the names of individual businesses or groups are prohibited at the property located at 895 Riverdale Street In the Planned Unit Development (PUD).
Mr. Jeremy Waycott, of Anco Signs of Wallingford, was before the Board on behalf of the Olive Garden seeking permission to take a place on an existing Raymour and Flanagan pylon sign. Ms. Beauvais asked if he represented the sign company? Mr. Waycott said yes, Anco Signs for the Olive Garden restaurant.
Mr. Waycott said this is an existing sign in front of Raymour and Flanagan and they are allowing Olive Garden to take over half of the sign. The Olive Garden is set back in between other businesses and trees that make it difficult to see the building from the road. They currently do have two wall signs on the north and west side of the building. They need signage by the road. There was a previous variance that granted the existing sign. When permits were pulled, the sign showed a couple of tenants going below the sign.
Mr. Werbiskis said this particular sign was never brought before the Zoning Board for variances. The Raymour and Flanagan freestanding sign is there as a matter of an oversight by the Building Commissioner. The Zoning Ordinance prohibits the advertisement of the individual businesses or goods for sale within the Planned Unit Development, but the Building Commissioner overlooked that provision in the ordinance. If the Building Commissioner were aware of this provision, then that sign permit would not have been granted. Ms. Beauvais asked if the Building Commissioner has requested a cease and desist and ordered it removed. Mr. Werbiskis said no complaints have been received, so the Building Commissioner has not taken action to have it removed.
When PUD zoning was approved back in the 80’s, they wanted to avoid sign-clutter along Riverdale Street and advertise the general nature of the development, such as Riverdale Shops. Mr. Neffinger said right now the existing sign says Raymour and Flanagan. Ms. Beauvais noted that sign is in existence due to an error. Ms. Beauvais reviewed the different PUD’s in that area and the signage. Ms. Beauvais said there are no individual signs advertising the various businesses in that area, such as Home Depot, Chili’s, Costco, Staples. There are no signs on Riverdale Street. Mr. Werbiskis said that was correct with the exception of Table and Vine sign, which was a pre-existing sign.
Ms. Kumiega asked what the consequence would be of removing Raymour and Flanagan from that sign, then nothing could be put back up there because the sign is in violation? Mr. Neffinger said they would have to make up a name for the development. Ms. Kumiega said the only thing that could go up would be a development name unless a variance is granted.
Ms. Beauvais said the only hardship is that Olive Garden is set back, but it is closer compared to many of the businesses in there, and it is easy to see. Mr. Waycott said many of the mentioned businesses have wall signage that is visible from the road and the highway. Ms. Beauvais said with the exception of Stop and Shop, none are really visible inside the Riverdale Shops because their signs are smaller. Costco and Home Depot are set way back.
Ms. Beauvais reviewed the criteria for granting a variance and said it is difficult to approve a hardship for a sign that should not even exist. Mr. Waycott said he was not aware the sign was illegal and was under the impression that it was there due to a variance. Ms. Beauvais said the Board issued a variance for their wall signage and it was due to a safety issue when you are coming down Riverdale Street you could not see the front of the building. Mr. Waycott said the same argument could be made about Olive Garden because when you are coming down Riverdale Street you cannot see any of the buildings because Raymour and Flanagan is completely blocking it on one side and the enormous freestanding Riverdale Shops sign, as well as trees that are blocking the building going all the way
into the entrance.
Mr. Neffinger said as Mr. Werbiskis mentioned, the intent of the bylaw was to prevent clutter on Riverdale Street and if the Board were to grant this variance, the Board would probably have twenty other businesses seeking the same variance to put signage on Riverdale Street for the same reason; that their business cannot be seen.
Mr. Waycott said the opposite side of Riverdale has many numerous pylon signs identifying each business. Mr. Neffinger said most are pre-existing signs and there still is no argument for the hardship in this matter relating to the soil, shape, or topography of the parcel.
Ms. Beauvais asked the applicant if he would like to withdraw his petition. Mr. Waycott said he would like to do that.
Ms. Beauvais moved to allow the applicant to withdraw the petition for variance without prejudice; Mr. Neffinger. UAV.
7:15 p.m. – Father’s and Son’s (Appeal of Building Commissioner Action) – appeal related to the allowance of a freestanding sign at the property located at 931 Memorial Avenue.
Attorney Antonio DeSantos of Robinson & Donovan in Springfield said the application is an appeal of the Building Commissioner’s decision stating the denial of a sign in violation of Section 9, Table 9-4A, the provides for a maximum of two free standing signs for parcels having over 300 feet of continuous frontage. Attorney DeSantos said he believed the Building Commissioner was erroneous because in Table 9-4A and the statement of 300 continuous feet, and that provision is actually in Table 9-4B, in footnote number 5, which is applicable to BA, allowing for one free standing sign per lot. The location in question is the old Paul’s Lounge, and the license commission extended licenses to that property, but it is actually two separate parcels owned by different entities.
Father’s and Son have leased the premises and would like to put an Audi sign at this location.
Ms. Beauvais asked Mr. Werbiskis for some history on the parcels. Mr. Werbiskis said the property known as 985 Memorial Avenue, is a Father’s and Son’s facility that operates Audi, Porsche, Saab, and Volvo. The operator’s of Father’s and Son’s acquired the property formerly known as Paul’s Lounge and applied for a extension of their Class I license to include the Paul’s Lounge property. Ms. Beauvais questioned if the properties were operating under one license? Mr. Werbiskis said that is correct, the former Paul’s Lounge is owned separately from Father’s and Son’s main building. They applied for extension of premises and presented it as one large parcel. The required landscape buffers were eliminated
between the two properties and the parking area extended across into the former Paul’s Lounge area. As noted in a note from the License Commission Chairman, they treat the property as one large parcel for the purposes of licensing. For purposes of Planning and Zoning, the applicant’s have received a special permit for the operation of an auto detailing facility at Paul’s Lounge, normally that would have been applied for and received approval as an accessory structure associated with the main Father’s and Son’s premises, but for the fact that it was under separate ownership they had to treat it as principle building with it’s own special permit. From a Planning and Zoning standpoint, the Town has treated the Father’s and Son’s property as one large parcel as it is under operation of one common class I license.
Ms. Beauvais said there are two parcels owned by two separate entities, but treated and operating as one. Attorney DeSantos said they are treated as one for licensing only, which is under the jurisdiction of the Licensing Commission, but they are two separate parcels, owned by separate entities, and Father’s and Son’s leases both premises. They are not one parcel, but treated as one for licensing purposes, which was approved based on certain criteria, one condition was not that they could not put another sign up. Mr. Werbiskis said if that is the case, speaking for the Building Commissioner, then the dealership would have to operate from that property (former Paul’s Lounge) to be considered an on-premise sign. The dealership itself does not operate from that
property, it operates from the property known as 985 Memorial and would have to be considered an off-premise sign. To take the argument that this is a separate parcel and operated independent, it would have to comply with the town’s off-premise sign requirements, which it would not meet. Attorney DeSantos said there is a stitch in there for licensing purposes; it is one parcel. They are operating Father’s and Son’s on that parcel as well as the next parcel. Ms. Beauvais asked if Father’s and Son’s are operating both? Attorney DeSantos said yes, they are selling vehicles on both. One continuous property for licensing and operation functionality, but legally it’s a separate lot. Ms. Beauvais asked then why do they need two signs? Attorney DeSantos said because they are selling used vehicles at that property and there is a Paul’s Lounge sign existing there and it is not hurting the area.
Ms. Beauvais said the Board would need to determine if the Building Commissioner is incorrect in his interpretation or not. Attorney DeSantos asked the Board to look at the actual denial and references the language of having over 300 feet of continuous frontage is footnote #5 language only used in Table 9-4B, which is not even applicable to this matter.
Mr. Werbiskis noted for the use interpretation of the Zoning Ordinance, the footnotes as noted are applicable to 9-4A and 9-4B. Attorney De Santos argued that there are obvious designated footnotes in 9-4B. Mr. Neffinger said the footnotes only apply to where they are designated.
Mr. Werbiskis referenced Table 9-4A, under freestanding signs it allows one (with footnote 1). Attorney DeSantos said the footnote has nothing to do with the stated reasons of the Building Commissioner’s rejection. The Building Commissioner is relying on a footnote that is not applicable to this property.
Mr. Neffinger asked how many freestanding signs are on the property now? Attorney DeSantos said they have two currently. The proposed sign would be at the far corner of the property, there is quite a distance between the other freestanding signs.
Ms. Beauvais said Father’s and Son’s now has two signs, which are allowed, then why can’t one of those signs be moved to the Paul’s Lounge area? Attorney DeSantos said they would not want to do that since both signs are currently allowed on that parcel. Ms. Beauvais said the issue becomes that there are two parcels that are owned by different owners, but are being used as one parcel and run as one operation. And how should the town treat them, as one business or as two separate businesses? Currently, the town is treating it as one business.
Ms. Kumiega said the license was granted with conditions, was one that there is no additional signage? Attorney DeSantos said no, that was not a condition and if it were the intent of the license commission to limit the signage, then they would have put that as a condition. The Building Commissioner is trying to prevent a sign that they have a right to put up.
Mr. Neffinger said there is a separate building on that property, which will be used for detailing, so they could put up a sign that says Father’s and Son’s Detailing.
The Board discussed the matter of one lot versus two or more being used for one business. Ms. Beauvais said there are many properties in town like that. Mr. Werbiskis said if he were to take the Attorney’s position that the one additional sign for 300 feet of continuous frontage, does not apply to this property, then Father’s and Son’s is in violation of zoning because they utilized that provision in order to obtain their second freestanding sign for Father’s and Son’s. If that provision does not apply here or to any previously issued permits, then they would have to remove one of their freestanding signs because they did apply for, and receive, a second freestanding sign for the Father’s and Son’s location based upon that provision in the
Ordinance.
The Board discussed the two freestanding signs. Ms. Beauvais asked if 985 Memorial Avenue has over 300 feet of frontage? Mr. Werbiskis said yes, there is over 300 feet. Ms. Beauvais said based on the Ordinance, they are allowed two separate signs? Mr. Werbiskis said based on the Building Commissioner’s interpretation of the Ordinance, they were given two freestanding signs.
Mr. Neffinger cited the scenario if the Paul’s Lounge building was rented out to a restaurant, they would want a sign to represent that building on the separate lot even though it is being rented out to the auto dealership, it is a separate lot. Ms. Beauvais said what if it is the same business, an extension of the Father’s and Son’s and they continued their license to the car wash, then how many signs can they be allowed? Attorney DeSantos said this was brought up but to extend the license to many parcels, they would have to go before the Licensing Commission and they would have the authority to limit the signage. Ms. Beauvais asked if this sign was brought up with the License Commission? Attorney DeSantos did not know if signage was discussed, but they did
make an approval to extend the license with specific requirements. Mr. Werbiskis said he forwarded an email from the Chair of the License Commission and he is in support of the Building Commissioner’s decision in regard to the signage and this property should not receive an additional sign. Ms. Beauvais read the email to Richard Werbiskis from Paul Malek dated July 6, 2009. (See file).
Attorney DeSantos said he respectfully disagrees with Attorney Malek’s opinion and it was prejudicial that they were not afforded the opportunity to see this opinion before the meeting this evening and the fact that Attorney Malek is not present to hear all the testimony. Mr. Neffinger agreed that the applicant should be able to see documents before the hearing so that they are able to respond to it.
Mr. Neffinger asked if the existing Paul’s Lounge sign is illegal now? Mr. Werbiskis said the sign is in complete disrepair and there is no face to the sign. Attorney DeSantos said the sign is bent over and mangled and was damaged by a tree a couple of months ago. Mr. Neffinger asked how long they have had the two freestanding signs? Attorney DeSantos said the two signs were there for years. Then why weren’t they told the existing Paul’s Lounge sign was illegal when they pulled permits for the second sign? Mr. Werbiskis said the second freestanding sign was put in prior to the acquisition of the Paul’s Lounge property.
Ms. Kumiega referred to page 9-13, letter ‘n’ of the Zoning Ordinance, the definition of lot for purposes of this section (the sign section), a lot shall refer to a site, which includes a single lot or multiple lots, which are utilized as a single unit. The lot may contain more than one unit or business. In this instance the testimony was that this is operating as a single business, even though it is on two separate parcels. This exact circumstance is contemplated by the bylaws in this section.
Attorney DeSantos said they were before the License Commission with the intent to use the lot for auto detailing, is the Board arguing that they cannot have a sign there? Ms. Beauvais said there are a lot of businesses that have different operations within the same business. Car dealerships with new cars, used cars, detailing; this is not unusual. Ms. Kumiega said the ordinance does say even though it has more than one building or business that it is still treated as a single lot. Ms. Beauvais said it is one license for the whole business. Attorney DeSantos said the License Commission had the authority over the license and what the extended use was and they agreed with conditions and they did not say they could not put up another sign. Ms. Beauvais said just
because they omitted saying that you could not put up another sign, that it is not an inference that they would allow it either.
Ms. Kumiega said this is coming right from the Zoning Ordinance and the Licensing Board does not need to say that you cannot put up another sign, it is clear in the bylaw that you cannot put up another sign.
Mr. Werbiskis said it is the Building Commissioner’s opinion that footnote 5 would apply in this matter and it is something we have used on a regular basis since this Zoning Ordinance has been adopted. Attorney DeSantos respectfully disagreed that the reason the Building Commissioner used to reject the application was erroneous.
Ms. Beauvais stated it says on the bottom of the application for the sign that the proposed sign would be in violation of Section 9, Table 9-4A that provides for a maximum of two freestanding signs for parcels having over 300 feet of continuous frontage.
Ms. Kumiega said she did not think they needed to address that because the second point is the land subject to the submitted sign permit is licensed and operates as one parcel with 989 Memorial Avenue. Mr. Neffinger agreed. Ms. Beauvais said if the Board were to disregard the 300 square feet of continuous frontage, the parcel issue still has to be dealt with operating and licensed as one parcel. Attorney DeSantos said if they were to come back with a separate license and operated an additional business they would be entitled to a sign. Ms. Beauvais said the Board would not get into the licensing issue this evening.
Mr. Werbiskis said they would not be able to obtain any license for the sale of used motor vehicles, a Class II license cannot be issued in a Business A zoning district. The sale of used motor vehicles is only associated with a Class I license. This parcel could not be operated separate and independent as a used car dealership.
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 uphold the decision of the Building Commissioner for the denial of the sign at 931 Memorial Avenue; Mr. Neffinger second. UAV.
3. New/Old Business
706 Prospect Avenue – Attorney Brighenti came forward and reviewed the Variance decision of the Board. The Building Commissioner raised a question about the rear fence being allowed when the side is not allowed. Attorney Brighenti said he was looking for a clarification from the Board since there was language that there was no issue with the rear fence. Ms. Beauvais said the application for variance as it came in was a Variance from 9.41, which required that no fence between the house and street line shall be more than 4 feet in height and 50 percent solid. The Board was not really concerned with the rear property line since the issue before the Board was the street side fence. Mr. Werbiskis said the portion of the fence that is between the street line and the
plane of the house was included.
Ms. Kumiega said they might have neglected to put wording in the decision regard the 48-foot section of fence between the street line and the plane of the house and the rear fence.
Ms. Beauvais said the Board would allow that 48-foot piece to stay in its present state.
Mr. Werbiskis said the Board may need an amended decision, but if this is what the Board wants to do, he will research and see if an amended decision is necessary.
Ms. Beauvais moved to amend the previous decision dated January 2, 2009, regarding 706 Prospect Avenue to clarify that the Board’s denied the variance with respect of the side fence only. This is the portion of the fence that abuts the street and the house. However, the Board would allow the rear portion of the fence to remain on the condition that it remains as it is. Discussion: The Board discussed considering the rear fence as separate from the side fence. Mr. Werbiskis said the way the Ordinance reads it not related to rear, front or side yard; it is just a fence on the property. Ms. Beauvais said they could deny the variance for that portion of the section of the fence that is parallel to Quarry Road, but allowed the variance in part for the rear
portion of the fence. Mr. Werbiskis said the applicant is looking for an opinion that the portion of the fence that runs along the rear property line, but does not run along the street line is technically not governed by this provision and it is not located between the street line and the principal structure.
Mr. Werbiskis said he would administratively handle this, but the possibility of reopening the hearing exists.
Ms. Kumiega moved to amend and/or clarify the variance to allow in part and deny in part the variance as to the side yard or the fence that runs parallel to Quarry Road and allow the fence along the rear property line to its intersection on the grounds of the topography of the property with the rise in the rear and the shape of Quarry Road and the lights that shine on the property creating a hardship; Mr. Neffinger second. UAV.
4. Date of Next Meeting
There are currently no items on the agenda for the August 24, 2009, meeting and Mr. Werbiskis said he would not be in attendance. Ms. Beauvais said she would prefer to not hold the meeting unless something came up that needed to be addressed.
The next regular meeting of the Board will be held on Monday, September 28, 2009, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 8:45 p.m.; Mr. Neffinger second. The vote was unanimous.
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Christine Kumiega Provost
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