MASHPEE ZONING BOARD OF APPEALS
MINUTES
JULY 13, 2011
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, July 13, 2011 at 7:00 p.m. (Conference Room #1) at the Mashpee Town Hall, 16 Great Neck Road North. Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Board Members Ronald S. Bonvie and Judith M. Horton were present. Acting Building Commissioner Charles R. Maintanis also attended the meeting. Board Member John M. Dorsey was not present due to serious illness.
Chairman Robert G. Nelson opened the meeting at 7:00 p.m. and announced that the Public Hearings are being televised live.
ANNUAL REORGANIZATION
Mr. Nelson said that the Board Members and Associate Members can vote on the nominations, but only the Board Members are eligible for nomination.
Nomination for Chairman: Mr. Reiffarth made a motion to nominate Robert G. Nelson as Chairman for the ensuing year. Mr. Furbush seconded the motion. All voted in favor.
Nomination for Vice Chairman: Mr. Blaisdell made a motion to nominate Jonathan D. Furbush as Vice Chairman for the upcoming year. Mr. Nelson seconded the motion. All voted in favor.
Nomination for Clerk: Mr. Furbush made a motion to nominate William A. Blaisdell as Clerk for the upcoming year. All voted in favor.
CONTINUED HEARINGS
Barbara G. Milton, et al, Trustee: Requests a Special Permit under Section 174-45.4 of the Zoning By-laws for permission to construct an accessory apartment in an existing home on property located in an R-3 zoning district at 352 Mashpee Neck Road (Map 90 Parcel 97) Mashpee, MA. Opened, not heard, continued from June 8, 2011 Public Hearings. Requests Withdrawal Without Prejudice of the Petition for a Special Permit.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Associate Member Ronald S. Bonvie.
Reason for Withdrawal Without Prejudice of Request for Special Permit under Section 174-45.4: Per Acting Building Commissioner Charles R. Maintanis, the Petitioner does not meet the criteria for grant of the Special Permit under the By-law. At 85% of the gross floor area of the structure, the existing “accessory apartment” exceeds the maximum 40% allowed. However, Mr. Maintanis has requested the Petitioner to remove the privacy locks between the “apartment” and the main dwelling. He will re-inspect to confirm compliance with the By-laws.
Mr. Nelson made a motion to grant Withdrawal Without Prejudice of the Petition. Mr. Blaisdell seconded the motion. Mr. Bonvie voted yes. Mr. Reiffarth voted yes. Mr. Blaisdell voted yes. Mr. Nelson voted yes. Mr. Furbush voted yes. Motion passed unanimously.
NEW HEARINGS
First Citizens Federal Credit Union: Requests a Special Permit under Section 174-51.B of the Zoning By-laws for permission to install a sign exceeding twenty square feet onto a commercial building on property located in a C-1 zoning district at 71 Jobs Fishing Road (Map 74 Parcel 19B) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell, James Reiffarth and Associate Board Member Judith M. Horton.
Mr. Rick Beaumont of Beaumont Signs represented the Petition. Plans call for two gold stars to be painted onto both of the existing wall-mounted signs on the building. Addition of the gold stars to the signs will exceed the 20 square foot allowed in the By-laws by 8 square feet. Mr. Beaumont said that this particular detail of the design polishes the appearance of the sign.
Mr. Nelson said that Plan/Design Review permitted installation of the signs with the lettering conditioned upon the Petitioner requesting ZBA approval for addition of the gold stars. Mr. Nelson clarified that the Petition was submitted in error to the ZBA office. There are two signs, not just one sign.
Mr. Ernest Farren of 76L Shellback Way said that he hasn’t seen the plans, but expressed his opposition to the Petition because it will encourage others to install over-sized signs. He said that the Board should not grant the Special Permit because the By-laws are in place for a reason. After looking at the plans, Mr. Farren retracted his earlier statements and said that he was not opposed to the proposal.
Ms. Ann Lawson of 136U Shellback Way asked to see the plans. She said that she was concerned about more street signs being installed on the property. Mr. Nelson explained that the signs are on the building, not on the street. He explained that new signs will actually be slightly smaller than existing signs because the ZBA has corrected its calculation of sign measurements. Ms. Lawson said that she isn’t opposed to the proposal.
Ms. Eleanor Olson of 117R Shellback Way asked why the bank needs another sign. The Board explained to her that the Petitioner is not asking for permission to install another sign. She looked at the plans and said she had no problem with the sign. Mrs. Olson commented that the Town already has 7 banks between Shellback Way and Mashpee Commons and questioned why the Town needs another one. Mr. Bonvie said that commercial construction is driven by the economy and the general business atmosphere, not by the ZBA.
Mr. Blaisdell made a motion to grant the Special Permit allowing for the signs exceeding 20 square foot each. This is conditioned upon compliance with Beaumont Sign Company plan for First Citizen’s Federal Credit Union dated 3/11/11. Ms. Horton seconded the motion. Mr. Nelson voted yes. Mr. Reiffarth voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Ms. Horton voted yes. Motion passed unanimously.
Paul Tragiannopoulos: Requests a Finding of Fact under Section 174-24.J of the Zoning By-laws for a determination to allow for a use not specifically listed in Section 174-25 Table of Use Regulations in order to provide sandblasting, refinishing and other similar/related services on property located in an R-5 zoning district at 593 Main Street (Map 20 Parcel 2) Mashpee, MA.
Sitting: Board Members Robert G. Nelson, Jonathan D. Furbush, William A. Blaisdell and James Reiffarth and Associate Member Ronald S. Bonvie.
Attorney Daniel Creedon represented the Petitioner, who also attended the meeting. Attorney Creedon stated that Mr. Tragiannopoulos purchased the property in February 2005 for $316,000 and that the Petitioner spent an additional $250,000 in 2007 on improvements to the property.
In 2010, the Board granted the Petitioner a dimensional Variance which would allow for construction of a hobby shop/garage on the property. Attorney Creedon said that the Petitioner claims that the economy has turned the hobby into a business which is his only source of income. The Town has received numerous complaints from neighbors about the sandblasting noise, vibration and pollution over the past several months. The Building Department has issued a Cease and Desist order, the Board of Health has fined the Petitioner and the Town has started legal proceedings against the Petitioner. Attorney Creedon said that he advised his client not to proceed with construction of the garage because of pending litigation by the Town. Construction of the garage was halted, leaving a 7-inch slab on the ground.
The Petitioner wants ZBA approval before he continues with construction of the garage.
Attorney Creedon used the argument that the proposal is not out of keeping with the neighborhood because the property is located on Route 130 - a heavily-traveled street with businesses in Commercial and Industrial Districts right across the street. Attorney Creedon asked the Board for a Finding of Fact under Section 174-24.J to allow for the specific use of painting, which includes sandblasting. Section 174-24.J: “Where a use is not specifically listed in the §174-25 Table of Use Regulations, said use may be allowed if a finding is made by the Zoning Board of Appeals that said use may be allowed in a specific district on the basis that it is substantially similar in its construction, operation, traffic and environmental impact to a specific use allowed as of right or by special permit in said district and it is
substantially dissimilar in those respects from any uses prohibited in the district. Where the Zoning Board of Appeals cannot make a clear determination, such uses shall be considered prohibited. No use specifically listed in the Table of Use Regulations shall be allowed by the Zoning Board of Appeals in any district where it is prohibited. In reviewing an application for a finding under this subsection, the procedure applicable for a special permit shall be followed by the applicant and the Zoning Board of Appeals, although the finding itself shall not constitute a special permit as defined by the general laws and this by-law. Where the use to which the Board determines the proposed use is similar requires a special permit or approval under the Plan Review process, any development including said use shall then require approval from the board specified under the provisions of §174-24.C. or by the Plan Review Committee under the provisions of §174-24.B., as appropriate.”
Attorney Creedon said that the Petitioner does not meet all of the requirements but the use is similar to Section 174-25.I(6): “The use of a portion of a dwelling or accessory building hereto by a resident builder, carpenter, painter, plumber, mason or other artisan or by a resident tree surgeon or land-space gardener for incidental work and storage in connection with his off-premises occupation, provided that there is no external change which alters the residential appearance of the building.”
Attorney Creedon agreed that the compressor and sandblaster are very loud and noise levels have been measured at 85 decibels 200 feet away from the property. He insisted that the low-volume nature of the business does not generate a large volume of traffic on the property, therefore this aspect is similar and consistent with the requirements of Section 174-25.I(6) allowing an “artisan to do a limited, incidental home occupation”. Attorney Creedon said that the slab contains runoff from the refinishing process. He said that the Petitioner only uses water-based paints and he opined that the business poses no environmental impact on the groundwater. The Petitioner has one friend/employee who works on an as-needed basis.
Attorney Creedon read the following letter dated February 25, 2011 from Camp Farley Executive Director Mike Campbell:
“Dear Building Department Officials,
At the request of Camp Farley’s neighbor, Paul Tragiannopoulos of 593 Main Street, I am writing in support of his efforts to continue working outside his garage until such time as he can complete his plans to build an addition. It is my understanding that plans for this new addition have been approved by the town; its completion is scheduled for sometime this spring; and that the goal of this addition is to enable him to work inside and minimize the noise and dust from his sanding activities. In the meantime, his current work outside his garage does not pose any disruption or nuisance to our office or our related activities.
Please do not hesitate to contact me if you have any questions about this letter, or need additional input.”
The following letter from abutters, Mr. and Mrs. Mendes was also read into the record:
“MASHPEE ZONING BOARD OF APPEALS AS WELL AS MASHPEE BUILDING DEPARTMENT.
I, Mr. & Mrs. Mendes, as the property owners and who reside at 587 Main St. Mashpee, MA 02649. It has been brought to our attention that there has been a person that has made some complaints in regards of our immediate and direct neighbor Mr. Paul Tragiannopoulos, property owner and who resides at 593 Main St. Mashpee, MA 02649, about it being too loud from him sandblasting, or a compressor running, or maybe even a little dust. We would like to both state that we are both home most of the time and that none of Mr. Paul Tragiannpoulos’s activities or hobbies in or around his garage or house are NOT bothersome at all once so ever to us in any way shape or form…”
Attorney Creedon said that the Petitioner does only two or three jobs a month on the property. Each job takes from one to three weeks. Mr. Furbush said that the Petitioner insisted that he was engaging in a “hobby”, which has turned into a full-time business. Mr. Furbush questioned Attorney Creedon if he considered noise pollution as an environmental impact. Attorney Creedon conceded that he does. Mr. Tragiannopoulos said that he works on trucks, trailers, snowplows and automobiles. To Mr. Bonvie’s inquiry, Mr. Tragiannopoulos that there is no effluent runoff and that everything is contained. He said that he bulldozes the waste material into a dump truck and the waste is properly disposed of by a SEMASS truck.
Mr. Maintanis delivered the following letter dated July 5, 2011 from Glen E. Harrington, Health Agent, Mashpee Board of Health, to Attorney Creedon and the Petitioner prior to the meeting:
“Paul Tragiannopoulos
87 Colonial Drive
W. Falmouth, MA 02574
Dear Mr. Tragiannopoulos:
Due to a complaint, a follow-up inspection was conducted by the Mashpee Board of Health at the residential property located at 593 Main Street on June 10, 2011. Glen E. Harrington, R.S. performed the inspection to confirm or deny the presence of a nuisance from sandblasting activities on the property. Sandblasting activities were on-going during the inspection. The following violations were noted on the enclosed inspection form:
Massachusetts General Laws (M.G.L.) Chapter 111 Section 122, Nuisance – An employee was observed blowing sandblasting waste off of the slab foundation and onto the ground. The occurrence of the sandblasting waste with paint chips deposited on the ground is considered a public health hazard as there is potential for soil and groundwater contamination. Dust and sandblasting waste was observed blowing up into the air, over the fence off of the property onto the abutter’s properties.
During the inspection, noise levels encountered were high enough where the agent needed ear protection. Previously measured noise levels were considered a nuisance when the compressor was outside and running at idle (not during actual sandblasting activity). When the agent asked where the compressor was located, you asked the agent to leave the property. The noise level at the time of inspection is considered a nuisance according to M.G.L. Chapter 111 Section 122.
On June 28, 2011, Veronica Warden of the Mashpee Board of Health responded to another complaint due to the noise from the sandblasting operation. Ms. Warden utilized an Extech Instruments Digital Sound Level Motor Model 407736. The sound meter registered 85 decibels when the compressor was running during a sandblasting activity. The measurement was taken approximately 200 feet from where the sandblasting was occurring. This noise level is considered a nuisance according to M.G.L. Chapter 111 Section 122. The inspection form is enclosed for your review.
Therefore, as a nuisance was observed on the property, you are hereby fined $500.00 in accordance with M.G.L. Chapter 111 Sections 122 and 123. Each day’s non-compliance is considered a separate offense.
Also, the activity at 593 Main Street is considered a ‘noisome trade’ in accordance with M.G.L. Chapter 111 Section 143. You are hereby prohibited from exercising a noisome trade within 24 hours from receipt of this notice. Failure to comply shall result in fines of not less than $50.00 and not more than $500.00. Each day’s non-compliance is considered a separate offense.
You have the right to appeal to a court of competent jurisdiction.
If you have any questions or comments, please do not hesitate to contact our office at the above number.”
The Board Members questioned the Petitioner about his place of residence. Mr. Tragiannopoulos said that his tenants moved out and he has resided at 593 Main Street for the last 5 months. Mr. Nelson said that the Town Clerk does not have the Petitioner listed as residing at 593 Main Street. Mr. Tragiannopoulos said that he also owns property in Florida and Puerto Rico and doesn’t see why he needs to register with the Town Clerk. The Board was referencing the Attorney’s argument that this could be considered a home occupation by an artisan under Section 174-25.I(6).
Mr. Nelson referred to a memo dated April 27, 2011 from Richard Stevens to Town Counsel with a list of dates when Mr. Stevens observed the un-allowed activity (running a business in a residential zone) on the subject property. Mr. Nelson asked about the status of the court case of Town of Mashpee v. Paul Tragiannopoulos. Attorney Creedon said that the court case has been served and that it is in the process of discovery.
Mr. Nelson asked for comments from those in attendance. Mr. Thomas Wilson, a direct abutter at 581 Main Street said that he has been opposed to the operation of this business on the property since the beginning. He stated that the noise from all of the activity is unbearable from his porch. Mr. Wilson said that the Petitioner advertises his services under the business name ‘Industrial Finishes’ on the web.
Mr. Keith Mendes, a direct abutter at 587 Main Street, said that he only hears a little “hiss” and is not disturbed by the activities on the property.
Ms. Kathleen Pierce, a direct abutter at 575 Main Street, said that she is “fed up” and very unhappy with the noise during the week, on the weekends and all times of night and day. Mr. Robert Allain of 575 Main Street said that he didn’t want to take sides, but that the constant noise is aggravating and unrelenting. He said that the Board was deceived and that the Petitioner had plans to establish a business from the start. Mr. Allain said that he was very worried that the residential zone would slowly erode into a business district if the Board agrees to grant this Finding. He said that the Petitioner does not have a haz mat procedure for removal of the hazardous waste and is actually illegally dumping it. He said that the airborne lead dust spreads to the abutters’ properties where
children are exposed to the hazardous material.
Mrs. Lynn Wilson, a direct abutter at 581 Main Street, said that she has lived in Mashpee for over 25 years. She and her husband are looking forward to eventually enjoying their retirement in Mashpee. As tax payers and good citizens, they would like a little peace and quiet. She expressed concern with contamination of their well water and of the air quality with the business on the subject property. She is worried about the children staying at Camp Farley next door. Mrs. Wilson asked: “What about our families? What about our health? What about our quality of life?” She played a tape recording for the Board that she recorded of the sandblasting activity on the subject property from her porch. Mrs. Wilson’s voice could barely be heard over the noise of the
sandblasting.
Attorney Creedon reiterated that the building will eliminate the noise, dust and vibration issues and that the neighbors would be satisfied. Mr. Reiffarth expressed his doubt that the building would ever be built considering that the Petitioner has had five months and still has not completed the garage. Mr. Tragiannopoulos said he wants ZBA approval before proceeding with construction of the garage. Mr. Blaisdell said that the ZBA approved the building in December to mitigate problems that neighbors may have had with a hobby, not to mitigate problems that neighbors would have with a business on the property. Mr. Furbush said he feels that the Petitioner came in under false pretenses by calling his activity a “hobby”. Mr. Reiffarth said that the Board was hoodwinked. Mr. Nelson stated that
this business does not belong in that neighborhood. Mr. Bonvie said that this business is out of control.
Mr. Nelson made a motion to grant the Finding of Fact. Mr. Blaisdell seconded the motion. Mr. Furbush voted to Deny. Mr. Bonvie voted to Deny. Mr. Reiffarth voted to Deny. Mr. Nelson voted to Deny. Mr. Blaisdell voted to Deny. Vote was unanimous - motion was denied.
OTHER BUSINESS
Mashpee Housing Authority and Housing Assistance Corporation: Approve request for release of balance of funds deposited for ZBA legal consult fees concerning development of Breezy Acres Phase II on property located at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA.
Mr. Nelson made a motion to release the funds. Mr. Blaisdell seconded the motion. All voted in favor.
First Citizens Federal Credit Union: Approve voucher dated June 28, 2011 from Engineer Charles L. Rowley for site inspections of property located at 71 Jobs Fishing Road (Map 74 Parcel 19B) Mashpee, MA.
Mr. Nelson made a motion to approve the voucher. Mr. Furbush seconded the motion. Mr. Reiffarth voted yes. Mr. Blaisdell voted yes. Ms. Horton voted yes. Mr. Nelson voted yes. Mr. Furbush voted yes. Motion passed unanimously.
In accordance with Section 174-48 of the Zoning By-laws, Chairman Robert G. Nelson re-appointed himself as ZBA representative to serve as a Member of the Design Review Committee for the coming year. The Board of Selectmen, Building Department, Planning Board and Town Clerk’s office will be notified of the re-appointment.
Accept June 22, 2011 Minutes
Mr. Furbush made a motion to accept the Minutes. Mr. Blaisdell seconded the motion. Ms. Horton voted yes. Mr. Reiffarth voted yes. Mr. Bonvie voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Mr. Nelson voted yes.
Mr. Reiffarth made a motion to adjourn the meeting. Mr. Blaisdell seconded the motion. Ms. Horton voted yes. Mr. Nelson voted yes. Mr. Reiffarth voted yes. Mr. Furbush voted yes. Mr. Blaisdell voted yes. Mr. Bonvie voted yes.
Meeting was adjourned at 8:45 p.m.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals
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