BOARD OF APPEALS MINUTES
Monday, December 28, 2009
7:00 p.m.
Present: Chairman Lisa Beauvais, Vice-Chairman Gregory Neffinger, and Alternate Chester Zymroz.
Absent: Secretary Christine Kumiega
The Chairman called the meeting to order at 7:00p.m.
1. Acceptance of Minutes
Ms. Beauvais moved to table the minutes of November 23, 2009, to the next meeting of the Board; Mr. Neffinger second. UAV.
2. Public Hearings
7:00 p.m. (7:05 p.m.) – Cumberland Farms (Variance) – Variance from Table 9-4A of the Zoning Ordinance that allows for one 16 square foot free standing sign in the Business A-1 (BA-1) zoning district for the property located at 143 Park Avenue.
Ms. Caroline Parker of 3 Lorian Avenue in Worcester, MA, came forward representing Cumberland Farms. Ms. Parker said over the past three years, Gulf is looking to reimage their facilities and trying to make all their facilities alike by re-facing the canopies and signage. The existing building has a hip-roof canopy that has no logo on it. They would like to put up one single-faced gulf pylon sign, reducing the size from 6 feet to 5 feet. The old signage now has 4 price sign faces on it, as well as the Gulf logo. This is a 50 percent reduction from existing signage by putting in a new twin pole pylon sign.
Ms. Beauvais said the Town allows 16 square feet. This sign would be 25 square feet for the Gulf and 20 square feet for the money signs. Ms. Parker said because of the zoning, the price sign has to be that large to still be in proportion with the rest of the sign. Ms. Beauvais stated the statutory requirements necessary to get a variance approval.
Ms. Parker said the pricing sign is a large factor in getting people into the site. They are decreasing the size of the sign and increasing the setbacks to have the sign further away from the property line.
Ms. Beauvais asked what was unusual about the soil, shape, or topography that creates a hardship? Ms. Parker said it is a corner lot and an undersized lot for the size of the building that is on it. The traffic comes into the intersection from many directions and they need a sign that can be seen from down the road.
Ms. Beauvais asked for a definition of ‘snack shop”, and Ms. Parker said that is very minimal; selling soda, chips, and cigarettes. Ms. Beauvais asked what the hardship was? Ms. Parker said the hardship is that you could not see the sign and you would go by the station. Ms. Parker there was a previous variance issued from 1968, for the existing canopy sign.
Ms. Beauvais said the applicant has stated the lot itself is what is unusual, and the hardship is that cars would not be able to see the sign. Ms. Parker said there are no other signs on the property except this one. Ms. Beauvais asked the total square footage of the existing sign? Ms. Parker said it is a 92 square foot, two-sided sign.
Mr. Neffinger asked the reason why this sign has to come down? Ms. Parker said it is not the image they are using right now and they want to bring the sign into conformity with their new image. Mr. Neffinger said this would reduce the sign by 50 percent and improve the appearance of site significantly.
Mr. Zymroz asked if the sign were to conform to the 16 square feet regulation, what would be the detriment to the business? Ms. Parker said they need a two foot wide sign to fit the three numbers and the word Gulf.
Ms. Beauvais asked if they could stripe the canopy? Mr. Werbiskis said the canopy could be striped. Mr. Zymroz asked if any other type of wall signs were planned for the future? Ms. Parker said no wall signs are planned.
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 said the corporation itself would like to incorporate the new signage to have all of their stores be in conformity. This sign is definitely old and could be upgraded and the town would certainly appreciate the site being cleaned up and streamlined. The issue is fitting in with the requirements of the variance. Being a corner lot does not make the parcel unusual and the sign could be seen at 16 square feet. Ms. Beauvais said she did not feel the petitioner met the requirements of proving there is something unusual about the property.
Mr. Neffinger said the applicant would be updating the look of the property which is beneficial to the town, but the bylaw is written narrowly with no wiggle room, the sign must be brought into conformity. Any variation from the ordinance is difficult to approve, as written now. The ordinance should be updated to look at the gray areas. Mr. Werbiskis said the reasoning for the variance is written with in the Zoning Ordinance that states any alteration to pre-existing sign must be brought into conformity with the existing bylaw.
Mr. Zymroz said he agreed that the hardship being visibility does not meet the requirements of granting a variance.
Ms. Beauvais said it is a good project, but the Board does not have any leeway unless the requirements of a variance are met.
Ms. Beauvais moved to deny the variance because the Board could not find something unusual about the soil, shape, or topography of the parcel which is necessary in order to grant the variance; Mr. Neffinger second. UAV.
7:05 p.m. (7:18 p.m.) – Oksana Vlasynk (Special Permit) – Special permit to allow for a non-conforming structure to be used for retail and storage purposes at the property located at 476 Main Street in the Business A (BA) zoning district.
Attorney Komack briefly summarized the previous special permit application submitted by the applicant before obtaining counsel. The situation is a legal, valid non-conforming structure in the Business A (BA) zoning district, which has lost the use of the business. This is a 6,250 square foot lot with 50 feet of frontage and a width of 52 feet. The building does not meet the current zoning requirements of 7,500 square feet. The use would be compatible in type and scale, as stated in exhibit B with the Assessor’s Cards, showing other similar storefronts in that area. Retail services would be allowed in this zoning district and the applicant would like to reuse the building for a grinder or coffee shop. After the last meeting, they would like to suggest using the
first floor of the building for a commercial office use. The use of the structure has been commercial and business since 1920. Attorney Komack cited the documents submitted at the Variance hearing as evidence for this special permit; the financing letter, the estimates and pictures previously submitted showing that the property has been cleaned up and the applicant’s commitment to the project.
Ms. Beauvais asked if his client had a specific use planned for the location? What is the use other than a possible grinder shop or pizza shop? The bylaws impose different restrictions depending on the use at the site. Without concrete plans, the Board would be granting a special permit without knowing the exact use. Attorney Komack said, due to the late circumstances of the submission, they were unable to finalize a use. There have been some inquiries of a pizza or grinder shop. The applicant would like office space on the first floor. Ms. Beauvais said normally, if a contract is entered into between the owner and the lessee, the people renting the facility would then come before the Board and give plans as to their business use at the site. The Board
cannot grant a special permit when the use is unknown. Mr. Neffinger said this is a special case because the Town is complaining about the condition of the structure and the applicant has a contract in place for renovation to get things moving along.
Attorney Komack noted he did ask for an extension of the meeting between Thanksgiving and now because it has been difficult to get all the things accomplished to address all these issues. If the Board is going to vote in the negative, they would request a withdrawal in order to come back before the Board.
Ms. Beauvais said the request for continuation was based on the fact that the applicant was in Florida. The Board suggested she be available by conference call if necessary. The Board needs to know what the space is being used for.
Mr. Neffinger asked if there was a lease in place right now? Attorney Komack said no lease is currently in place and they did ask for an extension and were denied.
Mr. Neffinger asked if there was a use that could be used at the property without a special permit. Mr. Werbiskis said there is limited off-street parking, and there are a maximum of two to four spaces on site.
Attorney Komack said he would like to continue the hearing in order to obtain concrete information within the next two months. The nuisance issue has been addressed by the clean-up of the outside of the site. Ms. Beauvais thought perhaps they should withdraw and begin the process again. The Board has not received any new information since August and the Board has being trying to find out the plans for the building since that time.
Mr. Zymroz asked if the Health Department has ceased the demolition plans for the site? Mr. Werbiskis said no, they have pending contracts with several parties. Mr. Zymroz asked if continuing the matter put the building in peril with the Health Department? Mr. Werbiskis said the Health Director is on vacation at this time and he was not able to ask the time frame to take action and to provide the Board and the applicant time to enable the reuse of the property. He added this Board has no authority over the Board of Health.
Ms. Beauvais said the Board had asked the property be cleaned up instead of letting it sit in a deteriorated state. Mr. Neffinger said last month the applicant submitted photos of the before and after. Mr. Neffinger felt they are making a great effort to move forward with this project.
Ms. Beauvais asked for comments from the audience.
Mr. Tom Mitchell of Manchester, CT came forward and said he ran into the same problem in Springfield where the house is connected to a business and it is all one structure. They could have a home business that would not require additional parking.
Mr. William Devlin, architect for the applicant, said he has been in business 35 years and has an interest in old structures. He has seen many good buildings being lost for no good reason. This building has been cleaned and secured and it is a good structure, but it is not ‘showable’ to a potential buyer or renter. The town would be making a mistake by tearing this structure down.
Ms. Beauvais said this matter could continue for another year with no perspective tenants. Mr. Zymroz said if the Board continues to the next meeting and requires a lease or plan; it would give the Board the opportunity to make a decision at the next meeting. Attorney Komack said he would like to keep the hearing open until at least February.
Mr. Werbiskis said the Town has been working with the applicant for a number of years and nothing has prevented the owner from cleaning up the property and making it presentable. Mr. Werbiskis recommended a continuation to the next meeting and the applicant to come in with a business plan for rehabilitation and detailed information related to the financing agent. Additional documentation for financing and a business plan could placate the Board of Health to stay off the demo orders. The Town’s best interest is that the property be reoccupied, but without this information the Board of Health would be troubled by the lack of commitment from the applicant.
Mr. Neffinger asked if the applicant could ask the Board for a variance from the 2 year grandfathering limit? Mr. Werbiskis said statute states the Town may limit two years and beyond. The Board would have a difficult time granting a variance for the two year time limit. Mr. Neffinger said he was looking for other ways this could be done.
Attorney Komack said he would like to continue to February. Ms. Beauvais said the reason for continuing to January is so that the Board could get the information that Mr. Werbiskis is looking for and could well-appease the Health Department and show a good-faith effort by the applicant. The Town has been working with her for a number of years, with no result. Attorney Komack said he could get the requested items for the January meeting, but if those are acceptable to the Board, then he would like to request additional time. Ms. Beauvais said if that information is presented to the Board, the Board can state at that time how they will move forward.
Mr. Werbiskis strongly suggested Attorney Komack contact the Board of Health the first week of January 2010, regardless of the action of this Board, because the Board of Health could act on their own. Attorney Komack said he would be calling them on Monday morning.
Ms. Beauvais moved to continue the hearing to January 25, 2010, at 7:10 p.m.; Mr. Neffinger second. UAV.
Ms. Beauvais requested the 2010 meeting schedule be emailed to the members.
7:10 p.m. (8:04 p.m.)– James Ayotte (Special Permit) – Special permit from Section 4.21 of the Zoning Ordinance for the expansion of a non-conforming single-family use at the property located at 258 Ashley Avenue in the Industrial Park (IP) zoning district.
Mr. James Ayotte of 44 Thalia Drive in Feeding Hills came forward representing the applicant. Mr. Ayotte said his client would like to add on to their older home in what looks like a residential area, but is Industrial Park zoned. They would like to add a small mud room, kitchen, garage and bedroom up above the first floor bathroom to update their home.
Ms. Beauvais said this a single-family residential and they would like to add a kitchen, garage, and mud room between the garage and kitchen that is 8 feet by 12 feet and these additions will not be creating any new non-conformities. Mr. Ayotte said no new non-conformities will be created and all around are residential homes. Ms. Beauvais asked for the dimensions of the additions.
Mr. Ayotte said the kitchen is 12 feet by 16 feet, the mudroom is 8 feet by 12 feet, and the two-car garage is standard and will be attached to the home, with the addition being off of the rear of the home. Ms. Beauvais asked if the home was on septic? Mr. Ayotte said the house is on city sewer.
Mr. Zymroz asked Mr. Ayotte, to the best of his knowledge; this addition would have no negative impact to the levy or flood system? Mr. Ayotte said no, it would not.
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 said there is no issue because there are no new non-conformities created. This is a pre-existing, non-conforming structure, as the Board has seen many times in the past.
Ms. Beauvais moved to approve the special permit and the Board finds no new non-conformities will be created and it is in conformity with the bylaws; Mr. Neffinger second. UAV.
3. New/Old Business
Attorney Donahue came before the Board and said the court has ruled on the appeal of the Board’s decision regarding the Austin property on Westfield Street. The court ruled in early November and Attorney Powers has requested the Board issue an order regarding the building permit. Attorney Donahue said he has prepared a draft order for the board, subject to the condition in the Judge’s decision. The Court found Mr. Austin is entitled to a building permit, but the Building Commissioner could require a storm water management plan and it was found that the plan submitted was effective. The frontage requirement is that they have to provide physical access from a public way, which would require a curb-cut off Westfield Street. Mr. Austin is to re-establish his
permit from Mass Highway to allow access to his property, and then he could apply for a building permit, with frontage access and a storm water management system. All conditions have to be met for Mr. Austin to get his building permit.
The Board reviewed the order prepared by Attorney Donahue.
Ms. Beauvais moved to have the Board order the Building Commissioner to issue a building permit for lots 259, 260, and 261 Westfield Street, as in the order proposed by Attorney Donahue, based on the Court’s decision in this matter; Mr. Zymroz second. UAV.
Mr. Neffinger asked Attorney Donahue, in the matter of the Main Street structure, seeing as it is a difficult case, should the Town sit down and try to make it work? Attorney Donahue said he has dealt with the owners and the Board of Health is not asking for demolition, but seeking corrections with the state sanitary code. The Board of Health has been working on things that are separate from this Board. The problem that the applicant has is that she has no idea or plan of what they want to do with this property. They met six weeks ago with the understanding that the applicant was trying to sell and move on. Attorney Donahue said he was surprised to hear that there was financing in place for that project with no plan in place.
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday, January 25, 2010, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 8:35 p.m.; Mr. Zymroz second. The vote was unanimous.
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Christine Kumiega Provost
Secretary, Board of Appeals
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