Zoning Board of Appeals
Minutes
February 6, 2013
Landuse Meeting Room
Members present: Chair Ethan Berg, (EB); Robert Fuster Jr., (RFjr); Shawn Leary Considine, (SLC); Ned Douglas, (ND), Robert Fuster Sr. (RF)
Absent with notification: Cliff Snyder, (CS)
Staff present: Mary Albertson, Town Planner, MA; Land Use Clerk Peggy Ammendola, (PA)
Also present were Clarence Fanto of the Berkshire Eagle and George Jordan and Kameron Spaulding of the Beacon.
CR Resorts, LLC, 165 Kemble Street, Map 7 Parcel 43, Notice of Extension Eligibility, due to economic downturn “2013 ACT”, for Special Permit dated January 21, 2009 and Modification of Special Permits and Site Plan Approval granted August 5, 2007.
Attorney Philip Heller of Heller and Robbins, representing CR Resorts, submitted the document in January and Attorney Robbins had anticipated being present at January 16, 2013 meeting. That meeting was canceled and neither Attorney Heller nor Attorney Robbins was able to attend tonight’s meeting.
EB gave a brief explanation of the Permit Extension Act and said that this was a pro forma item. The consensus of the Board was to sign the document Notice of Extension Eligibility-2013. A motion was made, but George Jordan of 138 Walker Street objected saying that this request should have public comment and CR Resorts should have legal representation at this meeting for the sake of “clarity”.
RF responded that CR Resorts has a special permit to build condos, and they wish to keep the permit alive. He explained that they are eligible under the Acts of 2012 to have those permits extended automatically and that they should not have to have an attorney for pro forma.
RF made a motion to sign the document as requested by Attorney Heller. ND seconded the motion and the Board voted to approve 5-0.
Shanlen Realty Corporation, aka "Hoff's Mobil", 90 Main Street (Map 43, Parcel 192) Special Permits Sections 3.3.1 and 3.3.2 and 5.1.7, and Variances from Sections 5.1.18 and 5.2.19 to allow establishment of a convenience store as a new use to accompany the existing use of the sale of gasoline. Continued from December 5, 2012.On December 17, 2012, Petitioner requested to continue the December 19th hearing to January 16, 2013 @ 7:00 pm. Due to the possibility that one ZBA member might have a conflict for the Jan. 16th, the Petitioner chose to continue to Feb. 6, 2013 anticipating that the five sitting members will be available. (EB, RF, ND, SLC and RFjr.)
Present were the following: Attorney Jeff Lynch and his client Glenn Hoff; Matt Puntin, a civil engineer of SK Design Group; and Attorney Alex Glover and her client Dan O’Brien, owner of O’Brien’s Market.
Attorney Lynch stated that at the previous hearing of December 5th the Board raised questions regarding safety for vehicular and pedestrian traffic so he asked Mr. Puntin to review the site plan.
At tonight’s hearing, Mr. Puntin provided a new site plan which he felt would alleviate any concerns. The plan depicted the traffic flow through the site and the parking. His proposal calls for entrance only from Main Street and exit only from Franklin Street, both of which provide better site lines. Pavement markings will indicate direction as there isn’t a place for a post mounted sign.
Attorney Lynch stated that the table in Section 5.1.8 of the Zoning Bylaw reference to aisle width is not applicable to the Commercial Zone, but is for Commercial 1 and Commercial 3A zones, yet in this proposal consideration has been given to aisle width. If a car is at the eastern pump, there is enough width for a car to get by, but there is not sufficient width for a car to get by if a car is at the western side. He added that this proposal mitigates any of the existing negative features of the site with a better flow.
At the previous hearing the Board questioned whether there were state regulations regarding including spaces at the gas pumps being counted as parking spaces. Attorney Lynch said that his research found that there are no such regulations. Mr. Puntin agreed. The Lenox Zoning Bylaw does not have a restriction either and Attorney Lynch asked that the four spaces at the pumps be included.
Attorney Lynch compared the space available for one car at the pump and passage for another car to be 18 feet, which is only two feet shy of what the Town considers acceptable for a subdivision road servicing more than one home for two way traffic. He maintains that this is enough space for a car at the pump and another car to get by. Another comparison was drawn to the existing conditions with 30 foot long vehicles and frequent trips in and out where the traffic does get by without a back flow of traffic onto Main or Franklin. The proposed use will eliminate the 30 foot long vehicles and the site will be far less encumbered. Attorney Lynch shared that on a recent day he observed eight vehicles in the same location on this site as where it is proposed to put the loading zone, handicap parking and one other parking
for one car. This proposal, he said, decreases congestion, is a benefit to the town, and not a detriment.
Attorney Lynch said that if the Board gives full credit for the four parking spaces at the gas pumps, then there are eight parking spaces, but that if the Board chooses to not count those spots, then the petition is asking for a Special Permit under Section 5.1.7 to reduce the number of required parking spaces from 6 to four spaces, and those four spaces are numbered on the site plan. The loading zone is not counted among the four spaces, and he asks the Board to permit it to also be used as another parking space when deliveries are not being made. Employees do not park on site.
At the December 5th meeting RF suggested for clarity that Attorney Lynch prepare a chart for the Board which lists the various parts of the petition, indicate whether a section applies or doesn’t apply and why. Attorney Lynch provided this information in a memorandum and made available handouts. Attorney Lynch reviewed the various sections.
With regard to Section 3.3.2, Attorney Lynch said that the proposed change is not substantially more detrimental to the neighborhood than the existing nonconforming use. He compared the negative impacts of the existing use with the positive impacts of the proposed use. The existing nonconforming use is a vehicle repair facility which utilizes four tow trucks. With this use there is the associated noise, storage of waste oil, congestion created by unregulated dual entrances to the property, and undesignated parking. The proposed new retail use is allowed by right and encouraged. This proposal would eliminate the repair facility; designate 5 parking spaces and a loading zone, increase safety of the public by removing the exit on Main Street, and increase visibility for entering the property thus alleviating many
of the negative impacts of the non-conforming use.
Attorney Lynch stated that the Zoning Bylaw says that if one is adding to a building or constructing new, one must add parking. He argues that this proposal is doing neither. Parking is not triggered by “use”. He does agree that this new use does require a designated loading zone.
Attorney Lynch suggested that parking requirements “for a development” should be modified to mean “parking area” or “parking facility”. He said that phrase “for a development” and “development” are undefined terms and are not used elsewhere in the Zoning Bylaw and that it is in the Board’s discretion and authority to reduce parking requirements from 6 spaces to 4 spaces. He added that the Board should also use its authority to decide whether Sections 5.1.8 and 5.1.10 are applicable. Attorney Lynch concluded that the parking lot on this site has been in use since the 1920s and therefore is entitled to protection as a nonconforming use and that the requirement of 80 percent to side or rear of property should not apply here.
For clarity, Attorney Lynch summarized what Hoff’s is requesting. The permits and variances are:
• Special Permit to allow for the change to replace the nonconforming garage and service station with a convenience store.
• Special Permit to modify parking requirements to reduce parking from 6 spaces to 4.
• Special Permit to modify or limit other parking requirement including those related to Sections 5.1.8, 5.1.10, and broad discretion in 5.1.7.
• Variance to eliminate the loading zone requirement in the loading standards and use that as a parking space.
EB asked Attorney Glover about her insistence that 80 percent of parking should be to the side and rear of the building even though there is no new construction or extension of the existing structure and how this proposal is more detrimental than the abutting businesses that are using street parking. Attorney Glover responded that this proposal is an entirely new business and that it is inconceivable that there would not be parking requirements.
Attorney Glover agreed with RF that the only variance requested is regarding the requirement for the loading zone and she feels that the Board should deny as it does not meet the threshold for a variance. She feels that the Board should focus on traffic flow and safety, including parking and loading under Section 9.4.2. RF agreed that the Board has to consider those factors but not exclusively. He said that the Board would have to determine that the adverse effects of the proposed use will not outweigh its beneficial impacts. Attorney Glover asked how this use could be conforming if it doesn’t meet the minimal parking requirements. She feels that the proposed plan is not practical as vehicles are being funneled into patterns that do not fit and suggested a traffic safety study. She also advised the
Board that the 100 days limit from the petition being filed will be up on Friday.
Attorney Lynch said that he would write a letter to the ZBA asking for the time to be extended.
Attorney Lynch pointed out that in Lenox there is no prohibition for trucks to make deliveries to businesses by parking on the street and 18 wheelers have been accessing this property and making their delivery of gas for decades. Also he maintains that the new design is safe and usable.
Attorney Glover argued that the proposed use would bring in a new category of delivery trucks.
Discussion ensued on the matter of safety and there was a difference of opinion on whether or not there was a need for a traffic safety study. SLC felt that such a study was not necessary as everyone is aware of the traffic conditions within the downtown area and on this site. RF agreed that the new design is much better than the one previously submitted, but cited that with potential litigation there should be an abundance of caution therefore he wants to have a traffic safety study. Mr. Puntin feels that that the design presented is safe and usable, but agreed that he is not a professional safety expert.
The majority of the Board agreed to have a traffic engineer do a traffic safety study and the applicant said that they would comply with the request. It was felt that it was possible that the proponents as well as the opponents would each want their own traffic engineer, but it was suggested that if possible each side agree to one. The object of the study would be to determine if the proposal would be more detrimental than the existing conditions and specifically in regards to safety. RF added to have the question answered: “Is this proposal safe, or is it not safe?”
MA asked that the study be submitted to the Board a week before the continued meeting to allow time to review.
Attorney Lynch told the Board that he would be submitting a letter requesting an extension to April 18, 2013. Attorney Glover was in agreement to the extension.
RF made a motion to continue the hearing to April 3, 2013 at 7:00 pm and that the date of the extension would be April 18, 2013. RFjr seconded the motion and the Board voted to agree 5-0.
Approve minutes:
The following minutes were reviewed and approved-
April 4, 2012 Executive Session
April 18, 2012
August 1, 2012
November 7, 2012
December 5, 2012
Respectfully submitted,
Peggy Ammendola
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