BOARD OF APPEALS MINUTES
Monday, April 26, 2010
7:00 p.m.
Present: Chairman Lisa Beauvais, Secretary Christine Kumiega-Provost, and Chester Zymroz.
Absent: Alternate Jim Bodurtha
The Chairman called the meeting to order at 7:00 p.m.
1. Acceptance of Minutes
Ms. Kumiega moved to table the minutes of March 22, 2010, to the next meeting of the Board; Mr. Zymroz second. UAV.
2. Public Hearings
7:00 p.m. (7:03 p.m.) – Pocket Communications (Special Permit) –Special Permit to amend existing special permit under Section 4.21 of the Zoning Ordinance for a change of one non-conforming use to another non-conforming use at the property located at 1362 Westfield Street in the Neighborhood Business (NB) zoning district. Continued from March 22, 2010.
Mr. Werbiskis said the applicant has requested a 60 day continuation to this hearing.
Ms. Beauvais moved to continue the hearing to June 28, 2010, at 7:00 p.m.; Ms. Kumiega second. UAV.
7:05 p.m. (7:05 p.m.) – Kathleen Lucas (Variance) – Variance from 9.323 of the Zoning Ordinance that states any non-conforming sign replacement shall conform with the provision of this section and the non conforming sign shall no longer be displayed for the property known as 340 Memorial Avenue in the Business A (BA) zoning district.
Ms. Kathleen Lucas of 210 Hampden Road, East Longmeadow, owner of Footit Healthcare said she is before the Board about a non-conforming sign that has to be located over the main entrance to the establishment. In 2001, she purchased the building and moved the entrance of the store to the side of the building to accommodate patrons with mobility issues. She said many customers have trouble finding her building and she would like to move the sign to the front of the building. There is also a large tree in front of the building blocking visibility.
Ms. Beauvais said there is a free-standing sign on the property now in the parking lot area. Ms. Lucas said yes, with all the tenants listed and there is a sign over the doorway on the parking lot side that can be seen from the west, but not the east. Ms. Lucas said she would remove the sign over the main door and move the sign with channel letters on the front of the building and have it internally illuminated or with gooseneck lighting.
Ms. Beauvais asked why she was denied and Ms. Lucas said it was a non-conforming sign and has to be located over the main entrance to the business.
Ms. Beauvais asked for comments from the Board. Mr. Zymroz asked if the entrance of the building would be changing and Ms. Lucas said no, it will remain on the parking lot side of the building.
Ms. Beauvais asked Mr. Werbiskis if the dimensions of the proposed wall sign would be appropriate for the size of this building. Mr. Werbiskis said he did not know the measurements.
Ms. Beauvais asked the applicant what was unusual about the soil, shape, or topography of the land or the building thereon. Ms. Lucas said her customers cannot locate their building and by moving the door for the public good and moving the sign, it would be beneficial to the elderly customers. The hardship would be for the customers to make it easier for them. Ms. Beauvais said there is a tree blocking the sign even if it were on the side of the building.
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 she was unsure if moving the sign would create much more visibility because of the tree that blocks the building. The requirements for variance have not been satisfied as something unusual about this building. Ms. Kumiega said it is unfortunate that common sense is not permitted over the bylaw.
Ms. Beauvais moved to deny the variance because the applicant failed to meet the test of a substantial hardship due to something unusual with the soil, shape, or topography of the land; Mr. Zymroz second. UAV.
7:10 p.m. (7:20 p.m.) – Sanjay Patel (Variance) – Variance from Section 1X, Table 9-4A for the installation of a new free-standing sign at the property located at 173 Elm Street in the Central Business District (CBD). Continued from March 22, 2010.
Ms. Beauvais noted this matter was continued to allow the Board time to view the site and the freestanding sign from different angles.
Attorney Paul Maleck of Doherty, Pillsbury, and Wallace, came before the Board representing the applicant and principle owner of the property, Sanjay Patel. Mr. Jeff Pechulis, traffic engineer, was also present. Attorney Maleck presented new information to the Board, including photographs. Information included a report from Sergeant Spaulding related to traffic accidents in the vicinity of the intersection. There have been two pedestrian accidents with crossing at Elm Street in 2008 and in 2010. The proposed sign is suited, smaller, simple, and well-designed. The sign will create a safe condition and the applicant is willing to condition the height, size, and have pricing only on the sign, as set forth in the packets presented to the Board.
Attorney Malek cited a case in New Hampshire relative to the uniqueness of a locus in reference to a cell tower as a similar case. Attorney Malek also cited the Bertera property on Riverdale Street for its uniqueness to locus.
Ms. Beauvais said there are issues with the grandfathering and the sign had been changed at the site and the smaller ‘Sam’s Auto Repair” sign was put up without a permit and is illegal. The original sign had been removed many years ago so it does not enjoy grandfathering status. Attorney Malek said it is still a sign for the business use and Ms. Beauvais said the structure is not lawfully in existence. Attorney Malek said the posts have been there for over 40 years, they are just adding some pricing. Ms. Beauvais said the applicant is still going to do business at the site without the sign. Ms. Beauvais said Section 9.2 applies to signs and specifically addresses the issue that the sign must be brought into conformity.
Ms. Beauvais asked what the substantial hardship is to allow this sign. Attorney Malek said the applicant is not going to make a return on his investment unless he has a pricing sign, he will not be able to compete with other gas stations.
Ms. Beauvais said the Board has viewed the site and the sign position and height will determine the visibility. With the trees in full bloom the sign is hard to see coming down Elm Street, when the trees are bare the buildings do not hide the sign. The Board discussed the pictures submitted.
Ms. Kumiega said she feels it is beneficial to have the sign on the corner. The proposed sign is 15 feet to the top of the Sam’s Auto sign. Mr. Patel said that was correct with 20” numbers only on the sign.
Ms. Beauvais asked for questions from the Board. Mr. Zymroz asked the applicant if the hardship is only monetary. Mr. Patel said yes, and the inability to advertise. He noted Sergeant Spaulding agreed that there is a traffic problem and the sign located there would help.
Ms. Beauvais asked for comments from the audience. Mr. Patrick Moore, Building Commissioner, said the regular sign has been down for years and he talked with Sergeant Spaulding and none of the accidents had anything to do with that area or with customers looking for gasoline. Grandfathering the sign is not an issue in this matter, but setback requirements would be an issue as to where the posts are located now. The Central Business District allows two wall signs to be located on the canopy, and the ability to use 33% of the window space. There is plenty of signage allowed at this site.
Mr. Werbiskis said the Planning Department does not support the variance. Attorney Malek’s arguments are genuine, but a similar argument could be raised for any property in the Central Business District. Attorney Malek said the difference is the travelling public at a gas station; people depend on seeing the pricing for the purchase of goods. It is in the same pod, but not on the same level. It is unique for Mr. Patel with the abutting apartments and restaurant. In regard to putting the pricing on the canopy, it is a sign, but you cannot see the price of the gas from the street on a canopy. Mr. Patel added he could not face the pricing sign towards the apartments; the sign needs to face towards the street.
Mr. Zymroz questioned if the applicant is stating the shape of the building as a hardship now, it was not mentioned at the last meeting, at that meeting the curb cut was the issue.
Attorney Malek said the primary focus is the locus of the building, tucked in the corner and the size of the building has decreased and is obstructed by the apartment building and the restaurant behind. The Board needs to look at its uniqueness in comparison with the entire neighborhood.
Ms. Beauvais moved to close the public hearing; Ms. Kumiega second. UAV.
Ms. Kumiega said there are hurdles to get over and there is not a glaring uniqueness to the soil, shape, and topography test, but the Board can look at the property as a whole for the economic hardship because of the location. This Board voted for the gas station at the site and signage was not considered then. Now the Board should allow proper signage and prevent safety issues. This intersection does not need another distraction.
Mr. Werbiskis clarified the Board issued a Special Permit on the site for a structural issue, gas and auto repair is a permitted use. Gas to convenience store was a modification of a non-conforming structure.
Ms. Beauvais said she was still struggling with meeting the requirements of a variance. Nothing is unusual about a corner lot, the location of the building is set back, as so are many of the buildings in this area. The reason it is tucked back is because of the gas pumps and getting cars in and out of the lot. This does not make it unusual. Ms. Beauvais said she did not agree that there is something unusual about the building lot itself and does not see a substantial hardship. The hardship they presented is that the customers will not see the pricing until they get close to the site. This location has been a gas station for years. The financial hardship is not enough and the applicant would still be able to conduct business and place his signs elsewhere.
If it is a detriment to the public good, that is hard to tell because this is a heavily congested area anyway. Not easy to determine if a sign would help or be more distracting. There is nothing unusual about this property and there is no substantial hardship.
Mr. Zymroz said there are some safety concerns, but available signage could be put up if this was not granted. People are coming to a light and should be slowing down, it is a terrible intersection and Mr. Zymroz did not think a sign would change that. A financial hardship is not enough to grant a variance.
Ms. Beauvais moved to deny the application for variance for failure to find anything unusual about the soil, shape, or topography and failure to find a substantial hardship with the evidence presented by the applicant; Mr. Zymroz second. Two in favor; Ms. Kumiega opposed.
7:15 p.m. (7:52 p.m.) - Eunice Bisenari (Variance) – Variance from Section 4.3 of the Zoning Ordinance for the re-establishment of a non-conforming use at the property known as 65 Hanover Street in the Residence B (RB) zoning district.
Attorney Mark Beglane came forward representing Eunice Bisenari. Attorney Beglane said Ms. Bisenari has lived in West Springfield for 76 years and in this home since September 12, 1957, when they built the three-family home. She lived on the first floor and rented out the other floors from 1957 to 1987. In 1987 her son moved in to the third floor, another son occupied the second floor. In 1989 the third floor became vacant and Ms. Bisenari decided not to rent it at that time to allow an apartment to be available for her granddaughter. Unbeknownst to her, the electricity on the third floor was shut off and as a result the non-conforming use as a three family unit ceased to be valid. Ms. Bisenari borrowed money from the Town in 1989 to rehabilitate the house and is
still paying on the property as a three-family unit. This is a financial hardship for her to make these payments on a thirty year note, when she is unable to rent the third floor. She would like to continue to use the three floors for family and does not want to rent to the public for safety reasons. She did not realize she would be giving up the three-family status.
Attorney Beglane explained that currently the neighborhood has a mix of 20 percent single family homes, 50 percent two-family homes, and 30 percent three-family homes. Attorney Beglane submitted letters of support from abutters. Attorney Beglane said the owner would be willing to put a stipulation that only family would live in the home. If she cannot use the house as a three family it will create a financial problem for her.
Ms. Beauvais asked if the third floor was vacant since 1998. Attorney Beglane said she paid utility bills for three or four months and offered the apartment to family members because she did not want strangers living there.
Ms. Beauvais said the Board has seen cases like this before with homes destroyed by fire and they could not restore the three family status. Ms. Beauvais asked if there was any argument to meet the test of soil, shape, or topography.
Attorney Beglane said the structure is unique that it is a three-family structure and that is how it was built and she still has to pay the note and render the home unusable as a three family as well, and she would have to pay to alter the building and render the third floor unusable. She was not aware that she was abandoning the use. The structure itself is a unique situation.
Ms. Beauvais asked if the applicant would continue to live there even if she could not use the third floor. Attorney Beglane said this is her home and she is still paying the loan on the three-family. Mr. Werbiskis explained that Community Development makes low interest loans available to economically challenged households in the Merrick and Memorial areas.
Ms. Beauvais asked Mr. Moore if the owner would be expected to alter the building to make it a two-family, not three-family use. Mr. Moore said as long as it was unused and no electricity was available, that would be adequate.
Ms. Beauvais asked for questions from the Board.
Mr. Zymroz asked if the applicant had applied for an abatement on the property. Attorney Beglane said she was unaware that her home was no longer a three-family home.
Ms. Beauvais asked for comments from the audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Mr. Zymroz second. UAV.
Ms. Beauvais said it is a very hard decision to make and each hearing similar to this it is hard to find the criteria that must be met to grant a variance. Based on the fact that it is a three-family house is not unusual or rare. There are many three-family homes in that neighborhood. The Board still needs to find a hardship that is not financial.
Ms. Kumiega agreed it is a troublesome matter and it is hard to get over the first hurdle. The Board cannot grant an application because of a good argument from a sympathetic applicant. If that were the case, then the decision would not be based on fact and the Board does not have the authority to do that.
Ms. Beauvais said the Board’s hands are tied on this decision because it just doesn’t meet the criteria to grant a variance.
Ms. Beauvais moved to deny the variance based on the Board’s findings that there is nothing unusual relating to the soil, shape, or topography of the land or the building thereon and no substantial hardship could be shown besides financial; Mr. Zymroz second. UAV.
7:20 p.m. (8:15 p.m.) – Imageone Industries, Inc. (Appeal of Building Commissioner) – Appeal for the denial of an application for the issuance of a permit for a sign that extends above the existing roofline at the property located at 1081 Riverdale Street in the Planned Unit Development (PUD).
Attorney Ellen Freyman, representing Dick’s Sporting Goods, said Dick’s has been in business here for over 17 years and this was one of the first stores they opened. The logo has since been upgraded and the West Springfield store still has the original design. A building permit has been pulled to modernize the store. The front door will be changed to an ingress and egress and will look like the other stores in the area. A standard wall sign has been proposed and denied by the Building Commissioner. The provision is vague and inconsistent with other provisions of the sign ordinance. Roof signs are permitted in Business B and Industrial zones by special permit. A roof sign is defined in the ordinance. A parapet wall is defined in building code
as any wall above the roof line. The ZBA has determined that these signs are wall signs. In 2007, the Board granted a sign to Table and Vine on a parapet wall and they referred to it as a “wall sign”. If they put a mansard roof, they could put the sign there, but they were told the roof had to extend the length of the store. That would not be acceptable or practical to Dick’s, and there is nothing in the Zoning Ordinance that states this requirement. The store is located in the PUD and has limited visibility and the ordinance does not permit a pylon sign. The sign is critical to the business now more than ever. Signs are used to promote business in Town.
Attorney Freyman submitted photos to the Board of other stores with similar signs.
Attorney Freyman said this sign will modernize the building and the letter size would be reduced significantly from what is there now.
Ms. Beauvais asked Mr. Moore about the parapet wall and mansard roof. Mr. Moore said the sign was a roof sign projecting above the roofline on a parapet wall. Discussion was based on a wall along the whole roofline, to put a parapet wall up to house a sign is not within the regulations. Mr. Moore said that 90 percent of the Table and Vine building is a parapet wall. Ms. Beauvais said in this case the mansard roof does not extend the length of the building and looks super-imposed on the building to hold the signage.
Attorney Freyman said there is nothing in the ordinance that states the parapet has to run the length of the building.
Mr. Zymroz said the plans are misleading, if the photo is what you want to do. Mr. Werbiskis said the proposed sign is similar to the Hadley store sign. The entrance feature for West Springfield is smaller than Hadley or Enfield.
Mr. Moore said there is danger in setting a precedent with the parapet wall. It should be calculated into the size. Some bigger corporations come into town and demand bigger signs. Attorney Freyman said visibility is a concern.
Ms. Beauvais said the issue is not the size but whether or not to overturn the decision of the building commissioner that this is not allowed. Whether this sign can be on a mansard roof when the Building Commissioner states no, unless it extends the length of the building. Attorney Freyman said this was not consistent with other signs in town. Mr. Moore said most of the examples presented extend the length of the building. This would be setting a precedent for smaller buildings to put up a parapet wall to house the signage. The sign goes over the average height of the building. Ms. Beauvais asked if there was a definition for a mansard roof in the bylaw. Attorney Freyman said this is consistent with other businesses in town.
Mr. Werbiskis said Table and Vine was granted a variance for the height and location of their clock-tower sign. Ms. Beauvais asked if they were appealing the mansard roof or parapet wall. Attorney Freyman said they were appealing both. Ms. Beauvais said this is a way to get around the ordinance to have a roof sign. Mr. Werbiskis said the sign regulations, with respect to wall signs, would be the same. Mr. Werbiskis suggested a continuation of the hearing in order to allow the Building Commissioner time to review and comment on the photos submitted this evening. There is a variance hearing that is subsequent to this hearing, which also could be continued without hearing any information on the matter.
Ms. Beauvais said she would like to give Mr. Moore the opportunity to review the photographs and for the Board to understand why certain signs were allowed. It would help the Board make a decision.
Ms. Beauvais moved to continue the hearing to May 24, 2010, at 7:00 p.m. to afford Mr. Moore and the Board the opportunity to review the information presented; Ms. Kumeiga second. UAV.
7:25 p.m. (8:45 p.m.)– Imageone Industries, Inc. (Variance) – Variance from Section 9.242 which requires that signs be located below the peak of a roofline for the property located at 1081 Riverdale Street in the Planned Unit Development (PUD).
Ms. Beauvais explained the hearing would be opened and the Board would hear no information on this matter and continue the hearing to the next meeting of the Board.
Ms. Beauvais moved to continue the hearing to May 24, 2010, at 7:05 p.m.; Mr. Zymroz second. UAV.
7:30 pm. (8:47 p.m.) – Oksana Vlasyuk (Special Permit) –Special Permit to allow for a non-conforming structure to be used for business and storage purposes for property located at 476 Main Street in the Business A (BA) zoning ordinance.
Ms. Beauvais said the Board would be unable to open the hearing or hear any information on this matter because the Planning Board voted that there were no material or specific changes to the application for the Zoning Board to re-hear the matter. Ms. Beauvais noted, for the record, that the applicant was not in attendance for this hearing and was not in attendance at the Planning Board’s hearing on this matter.
3. New/Old Business
Richard informed the Board that the Planning budget has been cut for the next fiscal year; however, clerical services were not affected.
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday, May 24, 2010, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 8:51 p.m.; Mr. Zymroz second. The vote was unanimous.
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Christine Kumiega Provost
Secretary, Board of Appeals
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