MONSON ZONING BOARD OF APPEALS
APRIL 24, 2008
MEMBERS PRESENT: William Donovan, Frank Carey, Tere Hrynkiw, Kevin Biermann and Roger Pelletier.
MEMBERS ABSENT: David Beaudoin, David Jarvis and Nicola Gioscia.
7:30 Chairman William Donovan convened the meeting.
Kevin Biermann moved to accept the minutes of March 27, 2008 as presented.
Roger Pelletier seconded the motion.
It was so voted unanimous.
The Board has received a petition from Bernard Croteau, 79 Silver Street, appealing a cease and desist order issued by the Zoning Enforcement Officer relating to the operation of a private helicopter landing pad at his residence on Silver Street.
Chip Lapointe stated he was notified yesterday that the Wilbraham Town Counsel contacted the Monson Town Counsel to inform Monson that the Town of Wilbraham was considering action against the Town of Monson for allowing Mr. Croteau to land his helicopter.
7:45 CONTINUATION OF A PUBLIC HEARING FOR A SPECIAL PERMIT FOR A MIXED USE AT 96 MAIN STREET, THE APPLICANT IS DANIEL LEVESQUE.
Mr. Levesque stated the Board requested architectural drawings showing the interior layout of the buildings. Mr. Levesque submitted plans labeled A-1, A-2 and A-3 prepared by Stephen Fleshman Architect dated 4/23/2008 showing the layout of each building, the square footage and labeling the usage of each floor. He stated he met with his architect and both felt the plans adequately address the Board’s request.
William Donovan asked the applicant to go through each plan.
Mr. Levesque stated he would start with the plan labeled A- 3 showing the proposed basement floor plan of the Harper and Holmes buildings. The plan shows the square footage of the Harper Building, 7,300 +/- square feet and identifies the use of the entire basement area as an Assembly Use (Fitness Center). The plan shows the square footage of the Holmes Building 3585 +/- square feet and identifies the use of the entire basement area as an Assembly Use (Fitness Center). The basements where the Fitness Center is to be located are at the same grade. The equipment has not been drawn in on the plan but the partitions that are the lockers rooms are shown on the plan of the basement of the Holmes Building. Mr. Levesque stated the plans show what structurally exists and he has no plans to modify this
plan at the present time.
The plan labeled A-1 shows the proposed first floor plan of the Harper and Holmes buildings. The plan shows the square footage of the Harper Building, 7300 +/- square feet and identifies the use of the entire first floor area as Business Use but does not identify the specific kinds of business use. The plan shows the square footage of the Holmes Building, 3585 +/- square feet and identifies the use of the entire first floor as Residential Use.
William Donovan questioned if the Holmes Building was proposed as one residence?
Mr. Levesque stated the proposed use of the residence other than the use proposed for the basement was one residence. Any offices on the 1st or 2nd floors would be his personal office.
Mr. Donovan stated the plans do not give the Board any specific information other than the square footage and general layout of the buildings.
Mr. Levesque stated both he and his architect agreed that the plans submitted met the requirement of the bylaw and believed the individual partitions within the building did not necessarily influence the decision of the Zoning Board with regard to the request for a Special Permit for a Mixed Use. He stated his architect was a member of the Planning Board and was also a Selectman in the Town of Brimfield and his experience on that Planning Board led him to the conclusion the plans met the zoning bylaw requirements.
Mr. Donovan stated bylaws differ from Town to Town as do specific requirements and the plans submitted did not show sufficient detail.
Mr. Levesque stated they show a residence.
Mr. Donovan stated he wanted to see exactly what was proposed in both buildings.
Mr. Levesque stated he failed to see how the contents of the residence had any affect on a mixed use. The separation of the residential and commercial areas is shown on the plan.
Mr. Donovan stated the plans are not what the Board asked for. The Board wanted specifics of each floor of the buildings and the use of each floor of the buildings. What square footage is retail space, office space etc.
Mr. Levesque stated the plan labeled A– 2 shows the proposed second floor plan of the Harper and the Holmes Building. The plan shows the square footage of the Harper Building, 7300+/- square feet and identifies the use of the entire 2nd floor as Business Use but does not identify the specific kinds of business use. The Holmes Building, 3585+/- square feet and identifies the use of the entire 2nd floor as Residential Use.
Kevin Biermann questioned if the Planning Board was aware that the basement of the Holmes Building 3500+/- square feet was proposed as a commercial use and took that into consideration when looking at the parking situation?
Mr. Levesque stated the minutes of the meeting did not accurately reflect the discussion and he believed the Planning Board accepted the basement level of the Holmes Building as a commercial use. The question is if it was approved for an assembly use?
Mr. Biermann questioned if the Monson Planning Board approved an assembly use?
Mr. Levesque stated he believed it did because commercial use is a general term and an assembly use falls within commercial space.
Mr. Biermann questioned if an assembly use would have a different affect on the parking requirements?
Mr. Levesque stated yes. He stated the Planning Board considered parking with the indication from him that the Holmes Building would be a residence. He stated he was confused as to how the internal contents of the buildings affected the Boards’ decision.
Mr. Biermann questioned if the second floor was a complete infill?
Mr. Levesque stated it was.
Frank Carey questioned the types of business that would occupy the space designated as business use on plans A-1 and A-2?
Mr. Levesque stated retail stores, business offices the space would be sub-divided for lease tenants.
Mr. Carey questioned how many?
Mr. Levesque stated he did not have an exact number but in general the parking requirements are based on square footage.
Mr. Donovan stated the applicant has written to the Planning Board and requested clarification of its decision, how does that affect the Zoning Board of Appeals?
Mr. Levesque stated the only plan that would be affected would be A-3 and where the notes on the plan identify the areas as Assembly Use (Fitness Center) the notes would have to change to identify the areas as business use.
Mr. Carey stated he read the decision of the Planning Board and did not believe an Assembly Use was authorized by the Planning Board.
Mr. Levesque stated he disagreed.
Mr. Donovan and Mr. Biermann both expressed the opinion that before the Zoning Board of Appeals makes its decision based on the plans submitted, if the applicant did not intend to submit more detailed plans there should be some clarification from the Planning Board.
Mr. Levesque stated he did not think it was necessary for the Zoning Board to defer its decision for clarification from the Planning Board he was not asking for approval from the Zoning Board for a commercial use but for a mixed use.
Mr. Biermann questioned if Mr. Levesque wanted to proceed with the plans as they are?
Mr. Levesque stated yes.
Mr. Biermann stated he did not see anything in the decision issued by the Planning Board that authorized an assembly use neither did he see anything in the decision that authorized an assembly use in the basement of the Holmes Building. He stated the Planning Board approved the Holmes Building as a home with a home occupation such as an office. The parking requirements are 2 parking spaces for a single family home and 1 parking space for a home occupation.
Mr. Levesque stated that has no bearing on what he is asking the Zoning Board to authorize. He stated he was asking the Zoning Board for the ability to have a mixed use on the property. The commercial use aspect has already been approved by the Planning Board. He stated he sent a letter to the Planning Board asking for clarification of its decision but unfortunately the Board did not meet its quorum requirements for the meeting in April and he now must wait until May for an answer.
Mr. Biermann stated and that is exactly what the Board will vote on. The Board could vote to allow the commercial use of the Harper Building and a residential use of the Holmes Building with no commercial use in the Holmes Building. He stated that is his understanding of the Planning Board decision.
Mr. Levesque stated that is not what he is asking for. Mr. Levesque read Section 6.13 Mixed Uses of the Monson Zoning Bylaw a copy of which is attached to these minutes and incorporated herein and stated the Planning Board has approved the site plan. The purpose of filing with the Zoning Board is to have the ability to put a residential use and commercial use on the same piece of property.
Mr. Donovan stated he has read the decision of the Planning Board several times and Condition #2 approves the use of the Holmes Building for residential use and a home office contingent upon the Zoning Board of Appeals granting a permit for a mixed use.
Mr. Carey stated if the Board votes on the plans submitted and approves the request for a special permit it would be contrary to what the Planning Board approved.
Mr. Levesque questioned how it would be contrary to what the Planning Board approved?
Mr. Carey stated the Planning Board did not specifically approve an assembly use and did not approve an assembly use for the Holmes Building. If the Zoning Board were to approve a plan showing an assembly use in the basement area of two buildings it may be misconstrued as approval of the Fitness Center and the Board does not have the authority to grant such an approval.
Mr. Levesque stated the Planning Board does not have the authority to grant residential use.
Mr. Donovan stated the question of assembly use must be settled with the Planning Board.
Mr. Levesque stated the disagreement with the Planning Board centers around the term business use and what business use means. He stated he believes it includes assembly use.
Mr. Donovan stated he wanted to see specific drawings the plans submitted by the applicant did not contain sufficient detail.
Mr. Levesque stated the drawings submitted show the location of the residential use and commercial uses the Board is then free to make a decision as to whether they are in accordance with the bylaw.
Tere Hrynkiw stated she believed it was crucial to know exactly what the Planning Board approved or did not approve. Reading the decision that was filed by the Planning Board her interpretation of what the Board approved is different from that of Mr. Levesque.
Mr. Levesque stated regardless of the decision of the Planning Board the Zoning Board of Appeals has enough information to vote on a Mixed Use.
Mr. Biermann stated a mixed use was business use and residential use on one piece of property and he would not be averse to making a condition of any approval by the Board that the use of the Holmes Building was limited to residential use and the use of the Harper Building was limited to business use.
Mr. Levesque stated he was not asking for a mixed use on the property but a mixed use in the Holmes Building the plans drawn up by the architect show the mixed use that the Board is being asked to consider.
Ms. Hrynkiw questioned how many parking spaces were allotted for the Holmes Building?
Mr. Levesque stated three.
Mr. Donovan questioned if the Board members wanted to continue the hearing for another month to determine exactly what the Planning Board approved?
Mr. Biermann stated he believed the Planning Board approved the use of the Holmes Building for a residence and home office and the use of the Harper Building as a business use. The Planning Board cannot approve a mixed use on a property and therefore made the approval of the residence in the Holmes Building contingent upon approval of the Zoning Board for a mixed use. The mixed use on the property is business in one building and residential in the other.
Mr. Biermann moved to close the hearing and take the matter under advisement at 8:50 P.M.
Ms. Hrynkiw seconded the motion.
Mr. Donovan stated the Board has ninety (90) days from the date the hearing is closed in which to make a decision and then fourteen days in which to file notice of the decision with the Town Clerk.
It was so voted unanimous.
Mr. Donovan questioned if the Board was ready to make its decision or would like to wait for some clarification from the Planning Board? He stated if a vote was taken this evening based on his reading of the decision issued by the Planning Board he would vote to deny the mixed use as it is shown on the plans submitted this evening because he did not believe the Planning Board approved a commercial use in the basement of the Holmes Building. Additionally the Planning Board explicitly authorized Business Use and unlike the petitioner he did not believe a business use and an assembly use were the same because of the different parking requirements.
Kevin Biermann stated the parking spaces required for a membership club which a fitness center would fall under are more than what is required for a business use. A business use requires 1 parking space for each 200 square feet on the ground floor and 1 parking space for each 400 square feet on all other floors. A fitness center would require 1 parking space for each 80 square feet of public floor area. He stated he believed the language in the decision from the Planning Board is clear that it did not take into consideration any business use in the Holmes Building and the use of the Harper Building was limited to Business Uses – Offices, stores and similar business establishments, including personal service shops, banks and financial offices – 1 space for each 200 square feet of gross floor area,
exclusive of storage space, on the ground floor plus one additional space for each 400 square feet of gross floor area, exclusive of storage space on all other floors.
Ms. Hrynkiw stated she interprets the decision of the Planning Board differently than Mr. Levesque and thought it made sense to hear from the Planning Board.
Frank Carey stated he would like to take time to look at the plans that were submitted at the hearing this evening and to have some clarification from the Planning Board relative to its decision, as he also interpreted the decision differently than Mr. Levesque.
Mr. Donovan questioned Mr. Lapointe if Mr. Levesque was required to take out a building permit because when the Board made a site visit it looked as though work was being done on the interior of the building but it was not cohesive and it did not look professional?
Mr. Levesque stated he understood the Building Inspector enforces the building codes and he had discussed Chapter 34 of the code with Mr. Lapointe. Mr. Levesque reiterated that he had sent a letter to the Planning Board requesting clarification of its decision. The minutes of the meeting did not reflect the entire dialogue and the purpose of the meeting with the Planning Board was for an assembly use in the basement of both buildings.
Frank Carey moved to adjourn at 9:15 P.M.
Kevin Biermann seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
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