MONSON ZONING BOARD OF APPEALS
MINUTES APRIL 28, 2011
MEMBERS PRESENT: David Jarvis, Frank Carey, Scott O’Neill, Tere Hrynkiw, Ron Fussell and David Beaudoin
ABSENT: John Martin
7:30 The Chairman convened the meeting and the Board signed the bills schedule.
Tere Hrynkiw moved to accept minutes of March 24, 2011 as presented.
Frank Carey seconded the motion.
It was so voted unanimous.
The Board received a written request from Diversified Metals to renew the special permit for a wood cutting/processing operation on Bethany Road for three years.
Frank Carey stated he would like to make sure the operator stays in compliance with the conditions of the special permit by issuing a renewal for one year, if there is no violation of the conditions he would consider renewing the permit for two or three years.
David Jarvis questioned if there was any financial burden to the applicant for the renewal?
The Board stated there was not.
Davis Jarvis stated he would agree with Frank Carey issue the renewal for one year and then consider a longer renewal time the next year.
Frank Carey made a motion to renew the Special Permit issued to Diversified Metals for a wood processing wood storage operation on Bethany Road, Monson, Case number C – 2009. The conditions of the special permit issued on June 5, 2009 to remain in effect and apply to the renewal issued for one year.
David Jarvis seconded the motion.
It was so voted unanimous.
7:45 Public Hearing for a Special Permit for an In-Law apartment as provided for by Section 6.7 of the Monson Zoning Bylaws for property located in a Rural Residential zone at 269 Hovey Road. The applicant seeks to construct an addition of an in-law apartment to the existing home. The property is owned by Joan & Richard Sabadosa.
Following comments from Chairman David Beaudoin regarding the powers and purpose of the Zoning Board of Appeals, the time constraints the Board must meet to set a public hearing and render a decision after the hearing is closed, the manner in which the hearing would be conducted, the rights of all concerned and introduction of the Board Frank Carey read the legal notice as it appeared in the republican newspaper the weeks of April 11, & 18, 2011
Cheryl Pereira stated Joan & Richard Sabadosa were her parents and had recently moved to Monson from California because her father had medical problems. Her parents own the property and the addition of an In-law apartment would give them a measure of quiet and privacy and allow her to help with the care her father needs. Ms. Pereira stated she is also raising three young grandchildren and the toys and noise that comes with young children is too much for her father.
Present and speaking in favor of the petition was Joaquim Pereira.
Present and speaking in opposition was James Babcock 584 Aldrich Street, Ludlow. He stated he shares a right of way with the Sabadosa property and has had surveys done and intends to put in a road.
The Board told Mr. Babcock the Zoning Board of Appeals has no authority when it comes to constructing a road. Any new road is the authority of the Monson Planning Board and would require a filing with that Board.
Pauline Wright 265 Hovey Road questioned what checks and balances were in place to prevent this turning into a multi family home when the applicant sells the property? Ms. Wright stated the addition of an in-law apartment would increase the traffic up and down the driveway and onto Hovey Road.
David Beaudoin stated the Special Permit is issued to the property owner and cannot be transferred or assigned to another owner without the approval of the Zoning Board of Appeals. He stated the Board does not have authority over the driveway, only the request for an in-law apartment.
Cheryl Pereira stated there would not be an increase in traffic because her parents are already living in the house. Other traffic goes up and down the driveway but it is not necessarily going to the Sabadosa property. She stated the in-law apartment will provide a private area for her parents and remove them from the noise and clutter associated with her young grandchildren.
Scott O’Neill questioned if the Board had copies of the deeds for 269 Hovey Road and the Babcock property?
David Jarvis stated the porch of the existing house is right on the driveway.
Frank Carey stated at the site visit the members noted that the driveway/right of way is physically in a different location than on the plan submitted with the application. The plan identifies a proposed 50 foot right of way but the Board has no way to verify if it is indeed a legal right of way.
Cheryl Pereira stated she could provide the documentation within 4 to 6 weeks but it will take longer than that to physically move the driveway.
David Jarvis stated that was the only question he had and would be satisfied if the location of the driveway corresponded with the plan submitted with the application.
Cathy Larocca 264 Hovey Road stated she agreed with Pauline Wright the traffic coming and going from this property far exceeds what is normal for residential property.
On behalf of her parents Cheryl Pereira requested a continuation of the Public Hearing to Thursday June 23, 2011.
The Board voted unanimously to continue the hearing to Thursday June 23, 2011.
8:10 David Beaudoin excused himself and left the room to avoid the appearance of a conflict.
8:15 Vice Chairman David Jarvis convened a Public Hearing to hear and review an appeal of a decision of the Zoning Enforcement Officer that the 2007 conversion of the former Curves space as a restaurant was illegal and the proposed use of the form Curves space as a restaurant was a change of use, Section 3.3.1 & 3.3.2 of the Monson Zoning Bylaws. The property is zoned Industrial and is owned by the Palmer Road Nominee Trust.
Following comments from Vice Chairman David Jarvis regarding the powers and purpose of the Zoning Board of Appeals, the time constraints the Board must meet to set a public hearing and render a decision, the rights of all concerned, the manner in which the hearing would be conducted, introduction of the members of the Board and reading of the legal notice as it appeared in the Republican Newspaper the weeks of April 11, & 18, 2001 Attorney Raymond Blanchette made a presentation to the Board.
Atty. Blanchette stated MGL Ch. 40A § 8 allows any person aggrieved by a decision of any town board or town officer to the Zoning Board of Appeals. MGL CH. 40A § 14 details the powers of the Board of Appeals stating “a board of appeals may, in conformity with the provision of this chapter, make orders or decision, reverse or affirm in whole or in part, or modify any order or decision.” Atty. Blanchette stated in essence this allows the Zoning Board of Appeals to look at the situation with a fresh set of eyes and make any decision it wants. A restaurant has operated in some fashion at this location since 1977, in 1981 the Zoning Board of Appeals granted a Special Permit to Edward & Ellamae Shoum d/b/a The Iron Kettle to operate a restaurant business in an Industrial
Zone. In 2003 the Zoning Board of Appeals granted a Special Permit to Palmer Road Nominee Trust to change 1,120 square feet of the building into a health facility for women known as Curves with the remainder to remain as a restaurant. On February 9, 2007 then Building Commission Chip Lapointe issued a building permit to William F. Lemon, Sr. to install a three (3) foot wide door between the front and back rooms.
An electronic communication from Chip Lapointe dated February 21, 2011 was submitted by the applicant clarifying his position regarding the use and work performed at 130 Palmer Road, specifically the restaurant portion of the building a copy of which is attached to these minutes and incorporated herein. Mr. Lapointe wrote that during his 12 years as the Monson Building Commissioner the restaurant at 130 Palmer Road had different names, tenants and configurations. At one point, approximately half of the space was converted to an exercise facility that closed after a short period of operation. The restaurant tenant at that time, 10th Planet Pizza requested to use the former Curve space for parties and other special events. Mr. Lapointe states that because of the historic use of the space
and the previous Special Permit issued to Palmer Road Nominee Trust he did not feel that another Special Permit was necessary to expand the use of the restaurant.
Atty. Blanchette stated the applicant has entered into an agreement with Ms. Melinda Sullivan to lease the restaurant portion of the property to operate a restaurant. The Town has performed a yearly inspection of the premises and issued a liquor license to the different restaurants that have operated over the years.
Atty. Blanchette stated the applicant is asking the Board to make a finding that the 2007 conversion of the former Curve space was legal and the use has not changed from 2007 to 2010.
Scott O’Neill questioned if the Building Commissioner had issued a Cease & Desist order?
Atty. Blanchette stated no. The last tenant in the restaurant portion of the building was Big Jimmy’s Pizza and the Monson Gas Inspector did notify the property owners that he would not allow another restaurant to open until a grease trap and new gas line were installed. That work has been completed and inspected.
David Jarvis questioned if any Town Department or Board had contacted the Board?
The Board has not received comments from any Town Board or Department.
Zoning Enforcement Officer Harold Leaming stated he wanted to go on record that in his capacity as Monson Zoning Enforcement Officer he has not issued a decision with regard to zoning for the property at 130 Palmer Road verbally or written. The decision of the former Zoning Enforcement Officer with regard to zoning is not an issue. Mr. Leaming stated his issues with the property are Building Code issues and he has been working with the design professional hired by the applicant to address those issues.
Atty. Blanchette stated the former Zoning Enforcement Officer did not require the property owners to seek a new special permit or to go for site plan approval.
Mr. Leaming reiterated his statement that his issues are building codes issues relating to capacity, the enlargement of what was a permitted three (3) foot doorway to a six (6) foot opening and the necessity of a sprinkler system. These are building code issues over which the Monson Zoning Board of Appeals has no authority. Mr. Leaming stated if he receives a written request for a decision he issues a written decision. In this particular instance he has received no written request for a decision with regard to zoning issues at 130 Palmer Road.
Atty. Blanchette stated they have received nothing in writing from the Zoning Enforcement Officer.
Mr. Leaming stated he has been working closely with the design professional hired by the applicant to resolve the building code issues.
Atty. Blanchette stated Mr. Leaming told Ms. Sullivan that the decision of the former Zoning Enforcement officer to allow the former Curves portion of the building to be used for parties and special occasions was illegal.
Mr. Leaming stated that he has never discussed any zoning issues relating to 130 Palmer Road with Ms. Sullivan.
William Lemon, Jr. Thayer Road stated the former Building Inspector issued the permit for a three (3) foot door and before anything was done the Building Department was contacted to make sure everything was correct. Mr. Lemon, Jr. stated up to this point we have always felt we were doing the right thing only to find out now that nothing we have done is correct according to the current Building Inspector.
Mr. Leaming stated the last Certificate of Inspection issued by the Building Department was a Temporary Certificate of Inspection dated 12/08/2008 with a condition that all deficiencies noted on the inspection report must be corrected by February 1, 2009. There is nothing in the Building Department that indicates the corrections were made and a Certificate was issued.
Melinda Sullivan stated she was the prospective tenant and signed a lease with Palmer Road Nominee Trust on December 28, 2010. She met with Mr. Leaming and Lorri McCool, Health Inspector and had a casual conversation with Mr. Leaming about the space and taking cursory measurements, as it had to be under a certain square footage. Ms. Sullivan stated she is the victim in this because her chef has already left his previous job and she has expended a great deal of money making cosmetic changes working under the premise that all was well. She stated she was sure the Town of Monson would like to see a nice family dining restaurant open and questioned if seating for forty five (45) persons was the magic number would the Building Inspector be agreeable to moving forward in phases? For instance open
the small room and kitchen and then look at phasing in sprinklers and a larger capacity for the restaurant.
Harold Leaming stated this is strictly a building code issue and if the owners want to keep the occupancy to 45 they should talk to their design professional. He stated he does not have the option to just let it go forward, so far he has only received half an application and before he can deny or approve anything he must have all of the paperwork.
Ronald Fussell questioned if the applicant had anything in writing from the Zoning Enforcement Officer with regard to a zoning violation or denial of a building permit?
Atty. Blanchette stated they did not.
Mr. Fussell stated he did not understand why this was before the Board. There must be a decision by the Zoning Enforcement Officer on which this appeal is based. The Zoning Enforcement Officer has stated several times that he has issued no decision with regard to zoning for the property verbally or written. He has made no written decision with regard to a building permit for the property and has been working with an architect hired by the applicants.
David Jarvis stated the Zoning Board of Appeals has no authority with regard to any decision that is made by the Building Inspector based on the building code. He stated that it was his understanding that there is an appeals process through the state for that.
Scott O’Neil made a motion to close the hearing at 9:10 P.M.
Tere Hrynkiw seconded the motion.
It was so voted unanimous.
Scott O’Neill stated the only conclusion the Board could make is that there has been a continuous use as a restaurant in some form or other since 2007.
Frank Carey stated he did not see how the Board could make a decision with regard to an appeal of a decision of the Zoning Enforcement Officer because there was no decision to appeal. The Zoning Enforcement Officer has stated that he has not issued a decision with regard to zoning for property owned by Palmer Road Nominee Trust either verbally or written. The applicant has stated there is no written decision and has no other documentation that indicates the Zoning Enforcement Officer has issued a decision with regard to the property at 130 Palmer Road.
Ronald Fussell stated he would agree with Mr. Carey without some sort of documentation he could not make a decision with regard to an appeal of a decision by the Zoning Enforcement Officer. The applicant has stated Mr. Leaming made a zoning decision with regard to the property he owns at 130 Palmer Road and Mr. Leaming has stated he has made no decision with regard to zoning verbally or written.
Atty. Blanchette stated the applicant is asking the Board to make a finding that the use as a restaurant is a continued use since 1981 when the Board issued a special permit to Edward & Ellamae Shoum.
David Jarvis stated he could not make that finding the Special Permit was issued to a different entity and the permit is issued to the applicant and does not go with the land. He stated he would be comfortable making a finding that Palmer Road Nominee Trust was issued a special permit in 2003 to operate a health facility and restaurant at this location.
Harold Leaming stated the Town has documentation that in 2007 the occupant load for the property was 45 what is proposed now is greater than 45 and moves the property from a B (Business) use to an A (Assembly) use but this is a building code issue and not a zoning issue. Mr. Leaming stated Lawrence Tuttle, Architectural Insights was present at this hearing and was the design professional hired by the applicant.
Lawrence Tuttle stated the Massachusetts State Building Code differentiates a business use and an assembly use by occupant load and the requirements of an assembly use are far more stringent than a business use.
Atty. Blanchette stated the applicant is asking the Board to rule that the conversion of the Curve space to restaurant use was not an illegal conversion it was returned to historic use.
David Jarvis stated he did not understand why the applicant was asking that, because the Zoning Enforcement Officer has stated time and time again that he has not issued any zoning decision regarding the property. How can the Board make a decision on something that the Zoning Enforcement Officer did not do?
Ronald Fussell stated the applicant was issued a Special Permit in 2003 to operate a health facility and it also recognized the existing restaurant. He stated he would have no problem saying that the applicant has had a restaurant at this property since 2003, but that is as far as he would go.
Scott O’Neill made a motion to vote on the appeal of a decision of the Zoning Enforcement Officer.
There was no second.
The motion died.
David Jarvis moved to take no action on the appeal of a decision of the Zoning Enforcement Officer that the 2007 conversion of the former Curves space was illegal and the proposed use of the former Curves space as a restaurant was a “change of use” requiring building permit and installation of sprinklers because the applicant was unable to provide any documentation that the Zoning Enforcement Officer made such a decision and the requirement of a building permit and installation of sprinklers is outside of the authority of the Zoning Board of Appeals. The Board does recognize that a restaurant has operated at 130 Palmer Road under different names, tenants and configurations since 2003.
Ronald Fussell seconded the motion.
It was so voted unanimous.
Voting on the motion were: David Jarvis, Frank Carey, Ronald Fussell, Tere Hrynkiw and Scott O’Neill.
David Beaudoin returned to the meeting.
9:45 The Board received a letter from Nathan Olson, Four Seasons Realty requesting a written explanation as to why the Board would not accept a bond from L & D Services for work associated with a special permit to remove earth material from Main Street/Reynolds Avenue.
The Board members felt that they had given Mr. Olson a reasonable explanation and other options when he attended a meeting of the Zoning Board of Appeals. The Board voted to respond to the letter and include a copy of the applicants for the Special Permit, as anyone the applicants can provide the bond.
At 10:00 P.M. David Jarvis moved to adjourn.
Tara Hengeveld seconded the motion.
It was so voted, unanimous.
Respectfully submitted,
Linda A. Hull
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