Zoning Board of Appeals
Minutes
May 21, 2014
These minutes are not verbatim – they are the secretary’s interpretation of what took place at the meeting – Open Meeting Law – Section III.
Members present: Peter Conner, David Peck, Michael Main, William Keohan, Edward Conroy, James Simpson, and Mike Leary
Director of Inspectional Services: Paul McAuliffe
Recording Secretary: Tracey McCarthy
Mr. Conner called the meeting to order and explained the procedures for the evening.
Public Hearing: McDe Realty, LLC. – Case # 3744
2240 State Road
Special Permit per Section 205-19 and Table 205-19-1 to exceed
size in order to construct and install a permanent identification
pylon sign and a Special Permit to waive
Section 205-19 (D)(4) for location.
Sitting: Mr. Conner, Mr. Peck, Mr. Keohan, Mr. Main, and Mr. Conroy
Mr. Keohan, the Clerk, read the legal advertisement into the record.
The Board received the following documentation* for review of this case:
- Notice of Public Hearing
- ZBA Petition Application
- Denial from Dept. of Inspectional Services dated November 27, 2013 (Revised)
- Deed recorded with the Plymouth County Registry of Deeds in BK 35014, PG 116-117
- Planning Board comments dated May 6, 2014
- ENG comments dated March 26, 2014
- Cedarville Center Road Sign Proposal dated February 26, 2014
- Cedarville Pylon Signs
- Figure 1 – Existing Signs in Area
- Figure 2 – Existing Signs in Area
- Plan prepared by Flaherty & Stefani dated February 28, 2014
- May 21,2014 Handout received at hearing from Atty. Angley
Attorney Ed Angley, representing Applicant, reviewed the request for a Special Permit and provided a handout which he referred to. The original sign proposal was 100’ and this new request is for a 60’ sign. He further discussed current zoning and setback requirements. He concluded by discussing sign specs.
Mark Flaherty, Flaherty & Stefani, referred to Site Plan and explained existing conditions. He discussed location of sign and sight distances - noting that there is adequate space for queuing distance. He also noted that the sign would be 3’ from right-of-way line. He believes the proposed location is perfect given the existing and sight conditions. He reviewed other signs in the local area.
Public comment in favor: No one
Public comment in opposition: Glenn Justice, Gerre Hooker
Mark Flaherty stated that Fran Halloran, McDe’s contractor, is getting structures in place regarding drainage for Old County Road.
The Chairman closed public comment.
The Chairman closed the public hearing.
William Keohan was not comfortable with square footage. He believes placement and size is an issue. He would like to see the height and square footage more consistent with other signs in the area; and, would also like to see it reduced between 30 to 40 square feet. He did not support request for Special Permit.
David Peck stated he would not support the request as presented; however, he would support at 50 square feet but no more than that.
Michael Main stated he supports the bylaw. He stated the sign is way too big. He did not support request for Special Permit.
Edward Conroy stated he would also support the sign at 50 square feet.
Peter Conner believes location is ok; however, doesn’t believe the sign needs to be as big as proposed. He did not support Special Permit as presented.
Mr. Main motioned to Deny Without Prejudice the Special Permit for Case No. 3744. Mr. Peck seconded noting that the proposed sign area is substantially larger than the maximum allowed under the current zoning bylaw.
Denied unanimously (5-0)
Public Hearing: Andrea Melville – APPEAL – Case # 3745
16 Caswell Lane
Appeal of Building Inspector decision pursuant to M.G.L. c40A,
Section 8. The building erected on the subject site is inconsistent
with, and contrary to, the special permit granted by the ZBA
in 2010 – ZBA Case No. 3579.
Sitting: Mr. Conner, Mr. Peck, Mr. Keohan, Mr. Main, and Mr. Conroy
Mr. Keohan, the Clerk, read the legal advertisement into the record.
The Board received the following documentation* for review of this case:
- Notice of public hearing
- ZBA Petition Application
- March 20, 2014 letter from Kraus & Hummel
- Exhibit A - February 18, 2014 letter from Kraus & Hummel
- Exhibit B - February 24, 2014 letter from Paul McAuliffe to Robert Kraus
- Exhibit C – Copy of ZBA Case No. 3579 Decision
- Exhibit D – Pictures of Property at 16 Caswell Lane (5 pages)
- Exhibit E – Patriot Properties Card
- Unofficial Property Record Card
- May 13, 2014 Planning Board recommendation
- May 13, 2014 Memo from Lee Hartmann to Paul McAuliffe
- April 29, 2014 letter from Flaherty & Stefani
- February 24, 2014 letter from Flaherty & Stefani
- February 26, 2014 email from Paul McAuliffe to Flaherty & Stefani
- May 14, 2014 Letter from Michael Sciog & Laurie Devitt
- May 20, 2014 Letter from Roy & Betty Hamlin
- May 21, 2014 Handout from Andrea Melville received at hearing
- May 21, 2014 – 22 11x17 color photos
- Existing Conditions Plan dated May 21, 2014 prepared by Flaherty & Stefani
- Notice of Intent Plan dated April 5, 2007 prepared by Beals & Thomas, Inc.
Attorney Robert Kraus, representing Applicant, gave the history of case since its inception of 2007 and discussed the back and forth correspondence with the Building Inspector regarding permits, plans, and decisions. He stated the decision is to decide whether the building should continue to go up, be torn down, or be re-built to be consistent with the neighborhood. He noted that this matter has gone before the Planning Board several times and they indicated the decision of the Building Inspector was consistent with the plans. Atty. Kraus mentioned Condition No. 4 of the decision and also referred to plans submitted throughout the years. He mentioned the basement as opposed to the crawl space, the grading issue relative to the decks, and then continued with the present property conditions, more
particularly slurry. Atty. Kraus expanded upon the property having finished basements and that was not what was agreed to as part of original permit and this is not what the neighbors bought in to. He questioned as to whether the plans that were approved depict what is being built today? He further discussed drainage issues and swales, issues with grade, foot print, decks, foundations, and height - he believed this is what makes it inconsistent with the original plans that were approved. He noted that the property is four stories of buildings when the original permit was to be only two. He reiterated that he believes the changes are substantially different enough. He then referred to opposition letters from abutters.
Andrea Melville, Applicant, gave handout and referred to same. She discussed slurry installation and stated that a slurry plan was not part of any plans submitted by the builder and there was no engineer input; and, because no slurry plan exists she believes this should constitute an environmental impact study. She discussed groundwater and for the 80+ years the property has been in her family she has never had a flooding issue, yet now she does and this presents an adverse affect and nuisance. Regarding the continuous wall foundation she mentioned the 2000 Conservation plan and the 2013 engineer plan. She noted the crawl space and basement, four floor structure, height and scale of building, 100 year flood plain, and the original and current grade. According to the bylaw, she believes the
contractor is not allowed to change topography of landscaping; however, this is not currently the case. She handed out color photos of the construction site and discussed each one. She mentioned heights and believes the average height is 6’ and therefore overall height is 36’. She again referred to bylaws and believes this permit should be null and void and the building razed.
Atty. Kraus submitted color photos for the record. He discussed height of building and livable space. He noted that the builder once stated he couldn’t build according to the plan, at which point the Chairman interjected and stated this is a matter of hearsay and further articulated that all the input from the Town corroborated that the building is built according to the approved plans and changes are not substantially different. Atty. Kraus referred to #7 of Ms. Melville’s handout and closed by questioning whether the changes are fundamentally significant or not.
Mark Flaherty, Flaherty and Stefani, referred to present and proposed contours on approved plan and noted that in April 2014, Russell Stefani wrote a memo to Paul McAuliffe stating the height is 33.5 feet and the approved plan was to be no more than 35 feet. Mr. Flaherty presented existing conditions as well as overlay plans regarding the proposed and existing grades. He articulated that the property is presently a construction site and 6” of loam still needs to be added and the present amount of fill is consistent with original plans and permit. He noted that the topo is according to plan. He then explained the slurry wall and foundation which is being supported on extended footing that went down from 5 feet to 11 feet. This was installed to hold the building up. Regarding
drainage swale and swale maintenance (Condition No. 3 of the Special Permit) this condition was satisfied by the Board of Appeals. He referenced the site was at one point in time in a flood plain and wetland area because it was within 100 feet of a coastal bank; however, today it is not subject to 100’ flood plan. He discussed the crawl space as opposed to the full basement, the dormers, the decks, and presented the survey and overlay plan and showed that it is the exact plan that was approved. Mr. Flaherty closed by mentioning that a geotechnical engineer was hired and the report will be given to Mr. McAuliffe.
James Simpson, Board Alternate, asked a question about Peat levels and groundwater flow now that the foundation is there. He asked if the Peat was lower than Nelson Park? He noted that years ago this area might have been a wetland area.
Nicholas Filla, Architect, stated he normally puts decks 8” below first floor and this sets the height.
Ms. Melville discussed grade, egress, and referred to the slurry again, to which Mr. Flaherty admitted that the temporary swale and trench doesn’t quite follow the approved plans and noted there should be a smooth contour as opposed to deep contour of swale. He stated he would talk to the contractor about keeping the contour smooth.
Atty. Kraus discussed decks and stairs in accordance to the plan and noted that he believes 4 steps on a plan don’t equate to 8 feet of stairs. Atty. Kraus asked the Board to take a closer look to see if the builder is building in accordance to original plan. He then described how the topo changes every day. Atty. Kraus closed by asking the Board to keep the case open to see Briggs report, and the peer review regarding swale as well as having McKenzie Engineering Group come and testify to present their evidence.
There was discussion regarding dormers or basement egress doors - both of which will not be constructed.
Atty. Robert Betters, representing current property owners, stated that the true issue is, were the changes substantial or not. He explained the changes were vetted through Inspectional Services and Planning. He also discussed drainage issue and swales. He reiterated there was a peer review on drainage swale and it was approved.
Public comment in favor: No one
Public comment in opposition: Cheryl Brown; Kate O’Farrell; Roy Hamlin; Julie Danehey; Paul Melville; and Mary Byron.
Michael Main asked Andrea Melville for number of bylaw that she referenced in relation to basement. Andrea stated 205-17 (G) (4). Mr. Main stated that her interpretation of the bylaw in inaccurate and explained its true definition.
The Chairman closed public comment.
The Chairman closed the public hearing.
There were final discussions regarding crawl space as opposed to full basement. Mr. McAuliffe noted that the foundation wall would have been same height and if this property was in a flood zone it would have been required to have a crawl space; however not in flood zone so it’s ok to have full basement.
Edward Conroy stated he did not believe there was an issue with the topography of the site. Mr. Conroy remarked that the changes to the building elevations and foundation were not substantial and noted that the footprint of the building did not change. He acknowledged that there may be a drainage issue but the drainage was peer reviewed by the Town’s consultants and will comply with standards once the project is completed. He also stated that there were no substantial changes made to the decks and the basement. In response to a question regarding an environmental design, he replied that none was required for this project. Mr. Conroy supported the decisions made by the Director of Inspectional Services.
Michael Main did not see any substantial changes; therefore, he supported the decisions of the Director of Inspectional Services.
David Peck noted that although the plans were approved for a crawl space and a full basement was constructed, he did not believe there was a substantial change to the project because it did not affect the height of the building, the building elevation, or the footprint of the buildings. He supported the decisions made by the Director of Inspectional Services.
William Keohan believed that the changes were more substantial and should have been reviewed by the Zoning Board of Appeals – particularly the change from a crawl space to a full basement. He had concerns regarding the wet location and the lack of certification for the building height. Mr. Keohan felt there should have been an environmental study given the drainage issues on the site. He did not support the decisions made by the Director of Inspectional Services.
Peter Conner stated that he was aware of the change from a crawl space to a full basement and did not feel that it was a substantial change as it did not impact the height or elevations of the structure. He agreed with Mr. Conroy that the foundation change was not substantial. Mr. Conner noted that based on the certification from Flaherty and Stefani and the Planning Board comments, he finds no issue with the decisions of the Director of Inspectional Services.
Mr. Peck motioned to support the decisions of the Director of Inspectional Services finding there were no substantial changes; and therefore deny this petition to overturn the Director of Inspectional Services. Mr. Main seconded.
The vote was 4 in favor (Mr. Conner, Mr. Peck, Mr. Conroy, and Mr. Main) and 1 in opposition (Mr. Keohan).
Public Hearing: Doyle & Clement – Case #3746
57 Jordan Road
Special Permit per Section 205-40 and Table 5 to waive the side setback
requirements in order to construct an in-law suite addition.
Mr. Keohan, the Clerk, read the legal advertisement into the record.
Sitting: Mr. Conner, Mr. Keohan, Mr. Main, Mr. Conroy, and Mr. Simpson
The Board received the following documentation* for review of this case:
- Notice of public hearing
- ZBA Petition Application
- Dept. of Inspectional Services Denial dated March 10, 2014
- Deed recorded with Plymouth County Registry of Deeds in BK41812, PG 61
- Planning Board comments dated May 6, 2014
- Fire Dept. comments dated April 1, 2014
- ENG comments dated April 1, 2014
- April 10, 2014 Memo from Atty. Agley RE: Engineering comments
- Unofficial Property Record Card
- April 5, 2014 Support letter from Frank & Jeanette Alsheimer
- Plan dated March 25, 2014 & revised on April 8, 2014 & revised again on April 16, 2014 and prepared by Land Management Systems
- Aerial view of property
- Figure 1 Property Pictures
- May 21, 2014 Letter of support from Quentin Climer received at hearing
- May 21, 2014 Handout received at hearing from Atty. Angley
Attorney Ed Angley, representing Applicant, discussed request for special permit and discussed side setbacks and bylaw.
Randy Parker, Land Management, discussed existing and proposed conditions and location of proposed in-law suite addition. He discussed purpose of proposed location and purpose for special permit. He presented layout plan. He closed by noting the current septic system can support the addition.
Public comment in favor: Frank Alsheimer, Jeanette Alsheimer
Public comment in opposition: No one
The Chairman closed public comment.
The Chairman closed the public hearing.
Mr. Main motioned to approve Special Permit for Case No. 3746 with no conditions. Mr. Simpson seconded.
Granted unanimously (5-0)
Public Hearing: Stephen Young – Case # 3747
116 Long Pond Road, W-3
Special Permit per Section 205-51 C6, special permit uses in order to
operate a tattoo shop.
Sitting: Mr. Conner, Mr. Peck, Mr. Keohan, Mr. Main, and Mr. Conroy
Mr. Keohan, the Clerk, read the legal advertisement into the record.
The Board received the following documentation* for review of this case:
- Notice of Public Hearing
- Signage Requirement Photos
- ZBA Petition Application
- Dept. of Inspectional Services Denial dated March 21, 2014
- Deed recorded with Plymouth County Registry of Deeds in BK 35867, PG 350
- May 13, 2014 Planning Board recommendation
- April 11, 2014 ENG comments
- April 16, 2014 Fire Dept comments
- Unit W3 DRG. No. 1 of 1
- Floor Plan
- Internal layout plan
- Site Plan
- Unofficial Property Record Card
- ZBA Case No. 2286 Decision
- Figure 1 Site Photos
- Site Photo
- Aerial photo
- May 21, 2014 Handout from Stephen Young received at hearing
Stephen Young, Applicant, gave brief history of his background and his interest in tattooing. He explained Special Permit and reviewed bylaws and existing conditions.
Public comment in favor: No one
Public comment in opposition: No one
The Chairman closed public comment.
The Chairman closed the public hearing.
Mr. Main motioned to approve Special Permit for Case No. 3747 with no conditions. Mr. Peck seconded.
Granted unanimously (5-0)
Mr. Peck motioned to adjourn the meeting. Mr. Simpson seconded. Agreed unanimously (7-0)
*On file with the Zoning Board of Appeals in project case files.
Respectfully Submitted
Tracey McCarthy
Administrative Secretary
Approved: June 4, 2014
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