MONSON ZONING BOARD OF APPEALS
MINUTES MAY 20, 2010
MEMBERS PRESENT: David Beaudoin, David Jarvis, Frank Carey, Tere Hrynkiw, Scott O’Neill and Kevin Biermann.
7:30 The Chairman convened the meeting and the Board signed the bill schedule.
Frank Carey moved to accept the minutes of April 22, 2010 as presented.
Kevin Biermann seconded the motion.
It was so voted by majority vote.
Tere Hrynkiw abstained.
7:45 Continuation of a Public Hearing for Thomas Pratt, Trustee of the Buckwell Property Trust for a special permit as provided by Section 3.1 Table 1 Schedule of Use Regulations. The applicant is requesting a special permit to convert the first and second floor of an existing workshop/storage building.
Attorney Raymond Blanchette, representing the applicant Thomas Pratt was present. Also present was Gary Pfisterer.
The applicant submitted a plan of the property prepared by Roger Woods & Co dated March 10, 2010 signed by Roger E. Wood Professional Land Surveyor 3/23/2010 depicting the accessory workshop/storage structure and the setback distances from the front, side and rear property lines in addition to the distance of the accessory structure from the principal structure.
Chairman David Beaudoin read correspondence from abutters Ingrid Statz and Four Seasons Realty LLC, supporting the issuance of a special permit.
Atty. Blanchette stated this is an allowed use under the bylaw and the only disapproval he could imagine would be based on allegations that it was detrimental to the neighborhood. Judging by the letters from abutters there is no evidence of that.
Scott O Neill questioned if there was a record or copies of correspondence that led up to Mr. Pfisterer’s letter dated January 12, 2007 to then Building Commissioner Chip Lapointe relating to building permit # 4309 300 Main Street?
Gary Pfisterer stated the letter dated January 12, 2007 was a confirmation of a discussion that he had with Chip Lapointe regarding the construction of the storage/workshop structure.
Gary Pfisterer applied for a building permit for a three story accessory building, 1st floor to be used for storage of tractors, log splitter and other yard maintenance equipment; 2nd floor to be used for his personal woodshop; 3rd floor to be used for storage. Mr. Pfisterer signed that he was the property owner and also signed off on the Homeowner Exemption stating he would perform all of the work himself. Alan Papesh Excavation was also listed on the permit as the excavator. The building permit was issued to Mr. Pfisterer on November 7, 2006.
The Building Commissioner signed off that the storage/workshop was completed on February 14, 2008.
Harold Leaming stated the building code requirements are different for habitable space as opposed to storage space.
Frank Carey stated the building was not constructed for occupancy but for storage. Mr. Pfisterer has stated during the hearings that he is the person responsible for converting a portion of the building into living space and connecting to the Town Water & Sewer system without permits. Atty. Blanchette is representing Thomas Pratt, Trustee of the Buckwell Property Trust asking the Board to allow a second home for a caretaker for the property. Mr. Pfisterer has stated that he is going to occupy the second dwelling to make it easier to take care of the property. Atty. Blanchette has stated Mr. Pfisterer is not the owner of the property, he is the sole beneficiary of the Trust, but Mr. Pfisterer has signed a document that is on record with the Town stating that he is the owner of the property and
would be constructing a storage building/workshop on his property. If Mr. Pfisterer is the owner he does not meet the standards of the bylaw for a house keeping unit for an employee, non-paying guest of owner or lessee in accessory building. The Employment Agreement submitted by the applicant does not mean much because when it is convenient Mr. Pfisterer signs documents and undertakes work on the property as the property owner. Mr. Pfisterer also states in his letter of January 12, 2007 that because this a non-occupied structure where only one floor at a time will normally be used the Building Commissioner agreed to the placement of a single flue chimney in the building with a thimble on each floor allowing one floor at a time to be heated as necessary. This arrangement does not meet the code for a residence.
Atty. Blanchette stated electric heat could be installed in the building.
Gary Pfisterer stated it would be simple to brick up two of the thimbles. Mr. Pfisterer stated he agreed that the building was not constructed for occupancy but it would not be another house it would be a house keeping unit. He stated he was asking for something allowed by the bylaws.
Tere Hrynkiw questioned if everything would have to be pulled out and redone?
Gary Pfisterer stated he did not know what would be required.
Harold Leaming stated he spoke with the State Building Inspector regarding what would be necessary should the Board approve the special permit.
David Jarvis stated he was troubled that Mr. Pfisterer did not take out building, plumbing or electric permits for the work. The letter Mr. Pfisterer wrote to Chip Lapointe on January 12, 2007 clearly shows he knows the building code and there can be no misunderstanding that this was an attempt to circumvent the building code requirements, the zoning bylaw requirements and by illegally connecting to the Town sewer system and Town water system jeopardized the safety of the residents who are connected to the systems.
Raymond Blanchette stated an electrical permit was obtained.
David Beaudoin stated the electrical permit was issued for a garage and service, residential requirements are very different.
Scott O’Neill questioned the setback requirements in the residential village district?
Harold Leaming stated a residence must be 40 feet from the front property line, 40 feet from the rear and 15 feet from the side property lines.
David Jarvis stated the building does not comply with the proper setback for a residential building. The Buckwell Property Trust reconfigured its property creating the lot with the main building that has six apartments and the accessory storage/workshop building. The lot complies with area requirements and has 125 feet of frontage on Reynolds Avenue. The reconfiguration also created eight building lots with frontage on Whitney Avenue, Main Street and Reynolds Avenue. According to Town records Mr. Pfisterer owns the lots on Whitney Avenue two or three of the lots on Main Street and another lot on Reynolds Avenue. At the time the Building Department issued a building permit to Gary Pfisterer for a storage building/workshop the proposed construction was in conformance with the required setbacks. Mr. Pfisterer has changed what was a conforming structure into a non-conforming structure by changing the use to a residential use.
Frank Carey moved to close the hearing at 8:25 P.M. and take the matter under advisement.
Tere Hrynkiw seconded the motion.
It was so voted unanimous.
8:30 Continuation of a Public Hearing for Green Valley Oil for a Special Permit as provided by Section 5.3.6 & 7.3 and Variances from the requirements of Section 3.1 Table 2 Dimensional & Density Regulations and Section 5.3.4.2. The property is located at 27 Palmer Road and is owned by Leemilt's Petroleum, Inc. The applicant is requesting a variance from the setback dimensions for a free standing canopy of the existing fuel dispensing area; a variance from the height requirement around the canopy; a variance from the total area of signage and a special permit for a sign that exceeds 20 square feet. Notice of the hearing was published in the Republican Newspaper the weeks of April 5, & 12, 2010, case number C – 2010.
Chairman David Beaudoin stated the hearing was scheduled for Thursday April 22, 2010 but Bohler Engineering on behalf of its client Green Valley Oil made a written request that the Board continue the hearing to Thursday May 27, 2010.
Frank Carey read the legal notice as it appeared in the Republican Newspaper the weeks of April 5, & 12, 2010.
Following the Chairman’s comments regarding the power and purpose of the Board, the manner in which the Board would conduct the hearing, the time constraints the Board must comply with relating to holding a hearing and filing a decision, the rights of all concerned and introduction of the Board Luc DiStefano, Bohler Engineering made a presentation the Board.
Luc DiStefano stated Bohler Engineering represents Green Valley Oil who has taken ownership of approximately 300 Getty facilities. Leemilt (Getty) owns the land but everything on the land is owned by Green Valley Oil. Green Valley Oil is in the process of re-branding the facilities as BP stations. In 2002 Getty applied to the Zoning Board of Appeals for similar variance and special permits for this location but did not go forward with the work. Green Valley Oil is proposing a canopy that will sit five feet two inches (5’ 2”) from the front property line. Consistent with BP signage it is proposed to have three illuminated Helios (sunburst pattern) three feet in diameter on the canopy. It has been determined that they are signs as they are BP’s logo. It is
also proposed to install a bull nose molding element around the canopy. This is a pencil thin solid lit line that projects from the canopy approximately two inches there are no letters on this line or logo’s. Mr. DiStefano stated it is Green Valley’s position that this is not signage but in the event that the Board determines this to be a sign the application includes a variance from the total allowed square footage on the property and a sign over twenty square feet (20sf). Green Valley Oil is committed to install a dry well to handle the run off from the decking of the canopy. This was a requirement of Site Plan Approval from the Monson Planning Board.
Harold Leaming stated it was determined that the Helios are signs but he would defer to the Board’s interpretation of the bull nose molding.
Luc DiStefano stated Green Valley does have the option of a vinyl wrap instead of the bull nose.
David Jarvis questioned if the bull nose molding was a sign because of the LED element?
Kevin Biermann stated speaking personally he would not consider it as signage because there are no letters, words or numbers on it. He stated he thought it was lighting. Mr. Biermann questioned the height of the existing sign on the side of the lot? The Zoning Board denied a variance to Getty to exceed the maximum height requirement of fifteen feet (15’) for a free standing sign and the sign looks as though it is higher than it should be.
Luc DiStefano stated the canopy height is over fifteen feet (15’) because it must accommodate certain truck heights but his client would have no problem if the Board made it a condition of the decision that the existing free standing sign be brought into compliance in terms of height.
Kevin Biermann questioned if the illumination of a State highway presented any problems?
Luc DiStefano stated they would contact the State but the canopy would reduce the illumination and result in a better situation. There are no changes proposed to the curb cut and they are not changing the use.
Harold Leaming stated the three Helios on the canopy are signs over fifteen feet (15’) in height and would require a variance.
Kevin Biermann moved to close the hearing 9:05 P.M. and take the matter under advisement.
David Jarvis seconded the motion.
Voting Aye: David Beaudoin, Frank Carey, David Jarvis, Tere Hrynkiw and Kevin Biermann.
Scott O’Neill abstained to avoid the appearance of a conflict.
Kevin Biermann stated if it is the determination of the Board that the bull nose molding is not signage Green Bay Oil would not require a variance from the total square footage on the property. He stated he was generally in favor of the project with the condition that the existing sign is brought into compliance with the fifteen foot (15’) height requirement for a free standing sign and something in writing from the State.
Tere Hrynkiw stated she agreed with Mr. Biermann.
Frank Carey stated he agreed with Mr. Biermann but would add that the lights are turned off when the gas station closes and that the dry well be installed as required by the Monson Planning Board.
Luc DiStefano stated he was aware that the Board was not taking anymore testimony but would like to comment on the lighting situation. Green Valley Oil does not want to pay for lighting when the station is not open but would ask that the Board put in a grace period of 30 minutes. This is a safety issue it allows the staff to close up and leave the premises safely.
David Jarvis stated he would agree that the bull nose molding is not signage and that it is preferable to a vinyl wrap which can fade. The Helios are signs that will be higher than fifteen feet (15’) in height.
The Chairman stated the Board would vote on each special permit and variance request separately.
Members voting: David Beaudoin, David Jarvis, Kevin Biermann, Frank Carey and Tere Hrynkiw.
Section 3.1 Table 2 Dimensional & Density Regulations - Canopy setback.
David Jarvis moved to grant a variance for the installation of a canopy over the existing fuel dispensing area that is five feet two inches (5’ 2”) from the front property line where a forty feet (40’) front setback is required by the Monson Zoning Bylaws.
Kevin Biermann seconded the motion.
The Board voted UNANIMOUSLY (5-0) TO GRANT THE VARIANCE.
REASON FOR GRANTING THE VARIANCE
The variance can be granted without substantial detriment to the public good and without derogating from the intent of the bylaw. The installation of a canopy over the existing fuel dispensing area is in harmony with the General Commercial zone the property is located in.
Section 5.3.4(2) – Height of signs on canopy.
David Jarvis moved to grant a variance for three (3) illuminated helios signs located on the proposed canopy that are eighteen feet (18’) in height to the top of the Helios signs where a fifteen foot (15’) height is required.
Kevin Biermann seconded the motion.
The Board voted UNANIMOUSLY (5-0) TO GRANT THE VARIANCE.
REASONS FOR GRANTING THE VARIANCE
The variance can be granted without substantial detriment to the public good and without derogating from the intent of the bylaw. The Helios signs are located on the canopy that must comply with height requirements to accommodate certain vehicles.
Section 5.3.6 – Sign in excess of twenty square feet (20sf)
The Board took NO ACTION on this request, as it was determined during the hearing that the bullnose architectural molding with LED laser line was not signage, as it lacks words, symbols, letters or numbers. The signage does not exceed the standards set in the bylaw and no special permit is required.
Section 5.3.4(2) – Total maximum signage
The Board took NO ACTION on this variance as it was determined during the hearing that the bullnose architectural molding with LED laser line was not signage, as it lacks words, symbols, letters or numbers. The signage does not exceed the standards set in the bylaw and no variance is required.
CONDITIONS:
The Board attached the following conditions.
- The existing free standing sign shall be brought into compliance with the fifteen foot (15’) height requirement prior to the issuance of a Building Permit for construction of the canopy.
- The applicant shall contact Mass Highway and submit to the Board written confirmation that Mass Highway approves of the project as proposed.
- The gas station lights shall be timed to turn off 30 minutes after the station closes for the day. The Board grants the 30 minute grace period for safety reasons.
- The applicant shall comply with a condition of the Monson Planning Board’s Site Plan Approval with regard to the installation of a dry well.
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9:15 The Board considered the Special Permit request for a house keeping unit from Thomas Pratt, Trustee of the Buckwell Property Trust.
Frank Carey stated when the Town issued a building permit for a storage building to Gary Pfisterer it did so with the understanding that Mr. Pfisterer was the owner and that the proposed building met the required setbacks. Mr. Pfisterer changed the use of the building into a dwelling unit making it a non-conforming structure because it does not meet the residential setbacks, by making physical interior changes to the building, electric and plumbing without permits. The bylaw specifies the house keeping unit is for an employee, non paying guest of the owner or lessee Mr. Pfisterer does not qualify because he is alternately the owner or sole beneficiary whichever suits the situation. Mr. Carey stated for these reasons he would vote to deny the special permit.
David Jarvis reiterated the concerns he expressed throughout the hearing that while the original storage building/workshop conformed to the bylaws, the calculated changes were an attempt to circumvent the building codes, the rules and regulations of the Town Water & Sewer Department and the Zoning Bylaws. It was by accident that the Town was notified of the illegal apartment that had the potential to jeopardize the safety of the residents of Monson and inhabitants of the property. Mr. Pfisterer illegally connected to the Town water and sewer lines thereby avoiding the safety checks by the Water & Sewer Department and Town Plumbing Inspector. The Town believed this building to be an uninhabited storage building/workshop, this could have affected the manner in which the Monson Fire Department
responded to an incident on the property compromising the safety of fire personnel and inhabitants of the property. Mr. Jarvis stated for those reasons he would vote to deny the special permit.
Chairman David Beaudoin questioned if the Board members were ready to take a vote?
Frank Carey moved to DENY the request from the BUCKWELL PROPERTY TRUST for a SPECIAL PERMIT FOR A CARETAKER UNIT for the following reasons:
- The physical changes to the 1st and 2nd floors of the existing accessory building into living space made an existing conforming structure non-conforming because it does not meet the dimensional setbacks for a residential building.
A building permit for construction of an accessory three story building comprising 1st floor for storage of yard maintenance equipment, 2nd floor for personal woodshop and 3rd floor for storage was issued to property owner Gary Pfisterer on November 7, 2006. The proposed structure met the dimensional setback requirements for an accessory building. The Building Commissioner signed off that construction of the accessory building to be used for storage and a personal workshop was complete on February 14, 2008. At some point between February 14, 2008 and January 13, 2010 the date the Monson Town Clerk received the application for a special permit the use of the building was changed from storage to a residential unit. The property is approximately 2.6 acres in area
with an existing five family apartment and could accommodate a housekeeping facility that meets the required setbacks. The existing building does not meet the setbacks for a residential building.
- The applicant for the Special Permit is Thomas Pratt, Trustee of the Buckwell Property Trust. The sole beneficiary of the Trust is Gary Pfisterer. Gary Pfisterer applied for a building permit to construct an accessory building and signed the application as the owner and signed the Homeowners Exemption stating he was the homeowner performing all of the work. Mr. Pfisterer stated during the hearings that he constructed the apartment in the accessory building and illegally connected to the Town Water & Sewer systems thus changing the use of the building from storage to residential use. The Monson Bylaws allows a housekeeping facility for employees and non-paying guests of owner or lessee in an accessory building. Mr. Pfisterer does not meet the criteria of the bylaw.
During the course of the hearings Mr. Pfisterer stated he was the sole beneficiary of the trust and the owner of the property. The applicant Thomas Pratt, Trustee of the Buckwell Property Trust submitted an employment agreement between Buckwell Property Trust and Gary S. Pfisterer dated March 15, 2010. In his dealings with the Town Mr. Pfisterer has identified himself as both the property owner and the sole beneficiary of the property depending on which is most advantageous.
Tere Hrynkiw seconded the motion.
It was so voted unanimous.
David Jarvis moved to adjourn at 9:35 P.M.
Frank Carey seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
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