Zoning Board of Appeals
Minutes
April 4, 2012
Landuse Meeting Room
Members present: Chair Ethan Berg, (EB); Robert Fuster Jr., (RFjr); Shawn Leary Considine, (SLC); Ned Douglas, (ND), Cliff Snyder, (CS)
Absent with notification: Robert Fuster Sr. (RF)
Staff present: Mary Albertson, Town Planner, MA; Land Use Clerk Peggy Ammendola, (PA)
The Board entered into Executive Session at 7:10 pm.
At 7:25 pm, the Board reconvened for the following agenda items.
The Frederick, LLC, 2 Kemble Street (Map 7, Parcel 22-3). Review of Decision granted March 14, 2011 re: Amplified music and parking. The minutes of that decision meeting reflect that this review be on November 2, 2011 and a second review in November 2012 and future years to be determined. The Decision was appealed by a direct abutter, Amy Zuckerman. On November 1, Attorneys Jeff Lynch and Kevin Kinne requested this review be continued to December 21, 2011 at 7 pm. That meeting was cancelled as there was not a quorum. Subsequent to that, this matter has been scheduled on the following dates, each time with the anticipation that an agreement would be reached: January 18, 2012, Feb. 1, 2012, March 7, 2012, April 4, 2012 and April 18, 2012.
Shanlen Realty Corporation, Hoff’s, 90 Main Street (Map 43, Parcel 192) Special Permit under Zoning Bylaw Sections 3.3.1 and 3.3.2 to allow for the operation of a gasoline station and retail convenience store. On March 7, 2012, as only four members of the five member Board were able to sit for this hearing, Attorney Lynch requested continuation to March 21, 2012. On March 14, 2012, it was determined that only two members would be available for March 21, therefore this hearing was rescheduled to April 4, 2012.
On April 3, 2012, “Opposition to Special Permit Application” letter to the ZBA dated April 2, 2012 from Alexandra Glover received. Copies were provided to all members.
SLC disclosed that she is a customer of Hoff’s and O’Brien’s Market and that her firm has represented a number of parties who are involved on both sides. She added that there is no representation by her firm at this time and that she feels that she can be fair is making a decision. RFjr, ND and EB each said that they too are customers of Hoff’s and O’Brien’s and also state that this would not influence their decisions. No one objected to any member sitting.
Present were Glenn Hoff and his attorney Jeff Lynch and Dan O’Brien and his attorney Alex Glover. Dan O’Brien own’s O’Brien’s Market, which is a direct abutter to Hoff’s. There were four members of the public also in attendance.
Attorney Lynch made the presentation. He said that Hoff’s has provided the retail sale of gasoline and service bays for auto repair at this location since 1977 and the property has been used for the sale of gasoline and repair of autos since at least 1929. Hoff’s wants to cease the auto repair facility and open a convenience store in the existing building.
Mr. Lynch stated that Hoff’s is a lawfully existing nonconforming use with respect to both the sale of gasoline and the repair of automobiles. Hoff’s wants to replace the nonconforming use of auto repair with the conforming use of a retail convenience store. The latter would be allowed by right, said Mr. Lynch. There will be no change in the nonconforming use of gasoline retail.
Alex Glover, attorney for Dan O’Brien argued that the proposed change would constitute an illegal expansion of the pre-existing, nonconforming current uses and would constitute a change of use. Further, she said, the proposed use is substantially more detrimental than the current use, both because of the implausible traffic and parking proposal and because of the greater impact of the combined uses on the current residential and businesses uses at the intersection of Main and Franklin streets.
Ms. Glover said the site is too small for the nonconforming use and the permitted use. Though the zoning bylaw determination that six parking spaces per 300 square feet of building area are all that are necessary, this did not contemplate an additional use of a gas station she said. She asked that the Board deny the Applicant’s Special Permit request.
Ms. Glover stated that the combination of gas and retail is the concern of her client. According to her, if the gas retail portion of the business were gone, and Hoff’s became only a retail store, then this would be acceptable to Mr. O’Brien. She said that the goal of all of zoning is to eliminate all nonconforming uses.
Public Comment:
George Jordan said that he does not like the design and thinks that this is a chance to improve the appearance of the building.
CS said that he has difficulty visualizing the space and asked it the applicant could stage the area for a site visit with the placement of large trucks and vehicles. He would like a traffic study or scale models on a plan that would show the maneuverability in the parking lot.
SLC expressed concern about oil spills given the property use, and asked about if there had been a 21 E study. Mr. Hoff said that this was done in 1994, with all of the property tested, including across the street, behind O’Brien’s, behind the station and underneath the slab.
It was the consensus of the Board that there should be a site visit and that the hearing be continued. The date was set for April 18, 2012 with the site visit at 7:00 pm and the hearing continued to 7:30 pm in the Land Use Meeting Room.
Approve minutes:
1) February 1, 2012-SLC made a motion to approve the minutes and ND seconded the motion. The Commission voted to approve 4-0. CS abstained as he was not present at that meeting.
2) March 21, 2012-There were no ZBA members in attendance. The Land Use Clerk was present to advise any members of the public that the meeting was rescheduled to April 4, 2012. Accounting of this session submitted to the ZBA for approval.
SLC made a motion to approve the minutes and RFjr seconded the motion. The Commission voted to approve 5-0.
Other Business:
LD Associates, 55 Pittsfield Rd., Map 17 Parcel 40. David Ward requested that the ZBA review a minor modification to add a storage closet (total of extra 145 square feet) in the addition which was approved in a Modification of an existing Special Permit December 13, 2011. The Commission reviewed the information and plans submitted by Mr. Ward and the consensus was that the additional square footage requested was not de minim us, however agreed that a public hearing notice be prepared and advertised. SLC made a motion to reopen the public hearing request for modification on May 2, 2012 and RFjr seconded the motion. The Board voted to agree 5-0.
George Jordan letter dated Feb. 2, 2012, Revised March 25, 2012 and received by Zoning Board on April 4, 2012- The letter called for an Administrative Hearing for “ZBA’s decision regarding music” and “issue of parking at Ventfort Hall”. This letter has been referred to Town Counsel and made available this evening to the sitting Zoning Board members.
Respectfully submitted,
Peggy Ammendola
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