CITY OF TAUNTON
ZONING BOARD OF APPEALS
March 10, 2011 at 5:30 PM
Members Present were: Dennis Ackerman, Chairman, Peter Wasylow, Wayne Berube, Joseph Amaral, and Michael Staples. Troy Medeiros present at 6:50 PM
Meeting opens at 5:31 PM
Peter made motion to accept minutes of January 20, 2011 meeting, seconded by Michael. All in favor.
Chairman Ackerman explained the process of which the ZBA conducts its meetings. They listen to the petitioner/Attorney, then opposition or in favor and then back to the petitioner. They do not go back and forth.
Cont’d. Case # 3017 Frenette 815 Middleboro Avenue.
A Variance from Section 6.3 to allow the division of one lot into 6 lots having 0 frontage on a public street (instead of 150 feet) but having access via Westcoat Drive, a private Way.
Letter from Atty. Strojny requesting a continuance.
Motion made and seconded to continue until April.
Vote: Amaral, Staples, Wasylow, Berube, Ackerman…………..Yes
Petition continued until April.
Case # 3053 Keesey Shores Avenue
REQUESTING A 3-MONTH CONTINUANCE TO May 2011
A Variance from Section 6.2 & 6.3 of the Zoning Ordinance to allow the re-division of lots that have merged for zoning purposes. Lot 65-26 having 60’ of frontage and lot width (instead of 100’) with 8,828 sq. ft. of lot area and dry area (instead of 15,000 sq. ft. of lot area and 11,250 sq. ft. of dry area) and Lot 65-27 having 8,308 sq. ft. of lot area and dry area (nstead of 15,000 sq. ft. of lot area and 11,250 sq. ft of dry area on premises situated on the westerly side of Shores Avenue, Taunton Ma and is known as property I.D. 65-26.
Motion made and seconded to grant 3-month extension.
Vote: Ackerman, Amaral, Berube, Wasylow, Staples…..Yes
Petition continued until May.
Case #3065 Rose 50 Washington St
CANNOT BE HEARD NOT PUBLICALLY ADVERTISED & OUTSTANDING TAXES OWED.
A Special Permit from Section 5.3.4 of the Zoning Ordinance to allow a pre-existing non-conforming lot to be used as a gymnasium (Taunton Boxing Association) located in an Office District.
Request from Green Pine Town Homes – Re-consideration of previous vote to post bond instead of cash for lot/unit releases.
Mr. Telsi is asking the board to re-consider their vote and allow him to post a bond instead of cash. Chairman Ackerman informed him that it’s the City’s past practice to require cash and not bonds. He stated the board is treating you like everyone else. Chairman Ackerman stated there is no other developer approved under Chapter 40B that was allowed to post bond instead of money. Mr. Telsi stated he has special circumstances and made an agreement with Board. Chairman Ackerman state that would be unfair to the other developers. Chairman Ackerman noted the decision of which it said bond or surety. Mr. Telsi referenced Section 81 Section 30 – referring to bond. Mr. Telsi was under the understanding that because he worked out the reduction of units through the court that he would
not have post money. Joe stated he spoke to the City Planner about this and all other developers in the City are required to post surety. Chairman Ackerman agreed and stated the Board is treating Mr. Telsi like everyone else. Chairman Ackerman suggested to Mr. Telsi to looks at changing the City ‘s policy. Peter stated we should leave it the way it is, he is required to post the money and not bond.
Peter made motion to confirm vote and require surety, seconded by Joe.
Vote: Wasylow, Berube, Ackerman, Amaral, Staple……Yes
Vote reaffirmed – Surety is required.
Request from Bruce LLC relative to The Settlement – changing 2 duplex lots to single family and eliminating 1 affordable lot.
Joe & Carl Malloch pass out layout of The Settlement to the Board. They were approved for 99 units with 25 affordable. They are requesting to change 2 duplex lot to 2 single family lots and eliminate 1 affordable unit.
They ask the Board to consider this a minor change and approve without public hearing. Joe stated its been about 2 years since they found an affordable buyer. Due to the economics. So they would be dropping number of units from 99 to 97 and based on 97 units they are required to have 24.75 and they are rounding down to 24 units?
Chairman Ackerman wanted to get an opinion from the City Solicitor and City Planner to make sure these changes are within the 40B law.
Peter made motion to grant changes subject to a legal opinion from the City Solicitor and City Planner saying it’s within the rules of 40B. Seconded by Michael.
Vote: Staples, Amaral, Ackerman, Berube, Wasyow……Yes.
Case #3063 Malloch Construction Co. 140 Dana St.
Hearing held on March 10, 2011 held at Maxham School, 141 Oak St.,
For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma.
Joseph Malloch, 113 Padelford St. Berkley, Ma.
Carl Malloch, Jr., 113 Padelford St., Berkley, Ma.
In favor: None
Opposed: None
Atty. Gay stated that they are proposing a mixed use under Section 5.2 of the Highway Business with a small portion in the Urban Residential District. The building will consist of retail on the first floor and 8 residential units on the 2nd & 3rd floors. Atty. Gay pointed out the requirement under the Zoning Ordinance relative to Special Permits and they exceed or meet them. They have designed a storm water management plan to address any runoff. They do not have any specific tenant for the retail. Atty. Gay stated this is the first proposal of this kind in a long time. This property is ideal for mixed use and they may have some commercial use to the south of this property. They would need Site Plan Review after this approval. Joe asked if they this property was
before us a while ago? Atty. Gay answered yes but that due to the economics that plan didn’t go through. Atty. Gay stated there could be a potential plan for future development in the residential zone. Letters from the City Planner, B.O.H., Cons. Comm., Fire Dept. and Water Dept. were read into the record. Chairman Ackerman asked if they planned on running water & sewer? Carl answers yes and they will replace main.
Motion made and seconded to grant as presented with following condition:
- The site must be serviced by Municipal water & sewer. The existing 8” water main must be replaced due to the size and condition of the main.
Vote: Staples, Amaral, Ackerman, Berube, Wasylow……..….Yes
Petition Granted:
Case #3062 Wade 27 Granite St.
Hearing held on March 10, 2011 at Maxham School, 141 Oak St.
For the Petitioner: Atty. David Gay, P. O. Box 988, Taunton, Ma.
In favor: Letter from Pride Inc, 3 Maple St., Taunton, Ma.
Opposed: None
Atty. Gay stated the location of this property is key to issuance of a variance. The property s located in the Urban Residential District and across the street is a large business and its on a dead end street. So there will be no traffic issues. There are 3 houses on this side of the road. They have spoken to neighbor and are willing to put fencing and landscaping on that side which was fine by the neighbor. Atty. Gay stated his client purchased property in 2009 and has made some improvements. She wishes to put small 1 bedroom on third floor. Currently the third floor is being used in conjunction with second floor. Atty. Gay stated the lot is small but is on dead end road. The petitioner wishes to maximize her investment and plans on putting some landscaping and fence up. Letter from Pride, Inc., 3
Maple St., stating no opposition. Letters from the B.O.H., City Planner, Conservation Commission and Water Dept were read into the record.
Motion made and seconded to grant as presented and the following conditions:
- Petition to install fencing along the abutting property of land owned by Willow Land Dev. Inc., property I.D. 65-70.
Vote: Staples, Ackerman, Amaral, Berube, Wasylow……..….Yes
Petition Granted:
Case #3064 Chaves 402 Bay St.
Hearing held on March 10, 2011
For the Petitioner: Atty. Alan Medeiros, One Church Green, Taunton, Ma.
Joseph Chaves, 422 Bay St., Taunton, Ma.
In favor: None
Opposed: None
Atty. Medeiros stated they are trying to convert the existing 2-car garage into 2 apartments. They are proposing two 1-bedroom apartments. The structure is dilapidated and they wish to combine this lot to the adjacent lot. Atty. Medeiros stated the applicant has recently renovated the house at 2 Matteson Lane he plans to do the same to this property. Chairman Ackerman refers to the letters from the Water Dept., B.O.H., Water Dept. and Fire Dept., Cons. Comm. And City Planner which were read into the record. Mr. Chaves stated they plan on tying into sewer. Peter asked how do they get into property. There was some confusion with the plans and existing easement. Mr. Chaves explained to the Board of how he enters and has easement. He stated the garage is just storage.
No opposition to this request.
Motion made and seconded to grant as presented with the following condition:
- The two-family dwelling must be serviced by Municipal Sewer & Water.
Vote: Staples, Amaral, Ackerman, Berube, Wasylow……..….Yes
Petition Granted:
Case #2823- Remand Lamb Rosewood Drive, Lot 25
Hearing held on March 10, 2011
A Special Permit from Section 2.1 & Variance from Section 6.3 of the Taunton Zoning Ordinance to allow the construction of a single family dwelling on a parcel of land without having the required dry area (having 23,800 sq. ft. of contiguous upland instead of 43,560 sq. ft.) also being accessed by a common driveway resulting in a common driveway servicing 3 lots on premises situated on the north side of Rosewood Drive, Taunton, Ma. and is known on Assessor’s Reference Map 36, Lots 24 & 25.
For the Petitioner: David T. Gay, P.O. Box 988, Taunton, Ma.
In favor: None
Opposed: Jane Andrews, 95 Rosewood Drive, Taunton, Ma.
Marty & Lynne Desjardins, 100 Rosewood Drive, Taunton, Ma.
Atty. Gay stated this case if a Remand from Superior Court. The Case was denied in 2006 by the ZA and was appealed in Superior Court in 2008 and had 2 day trial and the judge entered a judgment on December 26, 2008 affirming the ZBA decision and dismissing the appeal filed by the applicant. The trial Judge Cosgrove was a de novo trial as required under MGL 40A, Sect. 17. In his written decision Judge Cosgrove made 67 findings of fact, and reached his decision based on 2 conclusions of law applicable to the variance. Judge Cosgrove’s original decision found specifically that there would be no adverse affects from the granting of the Special Permit. Having received the Superior Court’s decision the applicant appealed that decision to the M.R.C.P. to the Appeals Court for the Comm. Of
Mass. They issued its decision ruling to reverse the Superior Court’s decision, the Appeals Court adopted Judge Cosgrove’s Findings & Fact, however, the Court concluded that the Judge improperly applied the rulings of law on both instances and remanded the case to the Superior Court for further faction. In issuing its remand the court concluded “that Judge erred when he affirmed the denial of the variance….on the ground that…(Mr. Lamb) had created his own hardship by acquiring the property with knowledge of it’s non-conformity. The court concluded that the majority and prevailing view is that actual knowledge o a non-conformity does not by itself preclude zoning relief as a purchaser does not acquire less rights to the land that the seller. The Court then turned to the second ruling of law and that was entered by Judge Cosgrove which he concluded that the aspect of the contiguous dry area was a matter of dimensional
deficiency and did not relate to soil conditions, shape or topography within the meaning of GL Chapter 40A, Sec. 10. The Appeals court concluded that the present of wetlands and location of wetlands is directly relating to a particular natural condition as part of the soil conditions of the property and is not a dimensional requirements. Finally the court’s decision concludes with the following statement “for the reason set forth in the judge’s decision was incorrect, the judgment is reversed and the matter is remanded to the Superior Court for further proceedings not inconsistent with this Court’s opinion. Having been remanded back to the Superior court Judge Cosgrove allowed both the City and the plaintiffs to file Amended Requests for Rulings of Law based on the original Findings of Act. Both parties submitted their requests and the Judge, after consideration, issued his Amended Judgement stating the ZBA shall grant the
variance requested and shall grant the Special Permit requested, subject to reasonable condition. There was no appeal from the Superior Court’s Amended Judgment. Chairman Ackerman stated he has been in contact with the City Solicitor and this isn’t any blame to the current City Solicitor. He was told to follow the order of the Court. Wayne spoke to Jody Fiore, Asst. City Solicitor and he is appalled that the City didn’t appeal and appear but he asked if they could have open discussion and make findings and he said yes. Atty. Gay stated spoke with Jane Estey, City Solicitor and her opinion was to follow the court order which is approve. Atty. Gay stated the opposition does have the right to appeal. Chairman Ackerman was astonished and very upset to learn that the City paid for the legal advertisement. He stated if they have to approve he would require the petitioner to re-imburse the city for legal advertisement. Chairman
Ackerman read the 3 original conditions and he pointed out he was the only one who voted in favor. Wayne suggests asking the City Solicitor to send her recommendation to the Board. Opposition: Marty Desjardins, 100 Rosewood Dr., stated t has been 4 ½ years of legal battles with the case. Nothing has changed, the lot still is too small and there is wetlands on the property and he has been pumping for 2 weeks now. He comments on the bridge and each household has 4 cars and she is concerned with the safety. There is near collisions and for practical reasons he’s opposed. Opposed: Lynne Desjardins, also has issues with a single driveway accessing 2 houses and the bridge is very narrow. She wants to know who maintains the 18 foot wide driveway which would be almost a road. Joe asked if she was present during the court hearings? She answers she wasn’t at the court hearing but was before this Board in 2006
for safety issues. Opposed: Jane Andrews, 90 Rosewood Dr., read her letter into the record. She references facts and findings by the Judge relative to extensive wetlands. She stated the superior court ignored fact #14 relative to wetlands and if there were any special conditions affecting this parcel. She pointed out that the wetlands aren’t unique in that there are all around. Ms. Andrews stated now they are forced to pay for the maintenance of a 18 foot wide driveway. She stated they didn’t have a valid driveway easement. Chairman Ackerman read letters from the Conservation Commission, B.O.H., Fire Dept., Water Dept. into the record. Atty. Gay responds to the opposition. He stated the judges’ findings are very clear in what the Board needs to do. He also states that we (meaning his client) doesn’t need an easement to go over their own property. However; we discovered
that the easement in place was not legal and his client agreed to grant easement. Atty. Gay addressed the concerned with the paving of the 18foot wide driveway he stated it was this Board who made the condition that it be paved. He stated they do need to go to Conservation now that the snow is gone.
Wayne made motion to continue until April 14, 2011 and send letter to the City Solicitor requesting a legal opinion on what is the Board’s responsibility and do they have any discretion? Also why didn’t the City appeal. Seconded by Peter. All in favor.
Ackerman, Staples, Wasylow, Berube, Amaral ………………Yes
Petition continued:
Troy Medeiros present at 6:50 PM.
Case #3066 CVS 671 County St.
Hearing held on March 10, 2011
For the Petitioner: Gary McCoy, Poyant Signs, 125 Samuel Barnett Blvd., New Bedford, Ma.
In favor: Bruce Thomas, 48 Church Green, Taunton, Ma.
Opposed: Dorothy Latour, 120 Hart St., Taunton, Ma.
Mr. McCoy stated he is requesting variance for square footage for signage on the new CVS on Hart’s 4 Corners. They are proposing 130’ on Hart Street and 46’ on County Street, totaling 176 sq. ft. The main frontage is County Street and the secondary frontage is Hart Street and because they are on a corner lot they are allocated more square footage compared to building with only one frontage. They wish to have both façade sign compatible in size instead of bigger sign on one side. Chairman Ackerman asked if they are having free-standing sign? Mr. McCoy answers yes. Chairman Ackerman stated they want to exceed the allowed signage on one side for this very visible intersection. This store will be seen for a distance and it’s condescending for CVS to say they need bigger signage. Chairman Ackerman stated there is a sign ordinance for a reason and he’s not going to vary against it. We gave zoning approval for the site and at that time no sign variance was ever mentioned.
Chairman Ackerman stated that CVS store around, for example, down the Cape, Newport,RI. Do comply with the sign ordinance. He stated the argument was good but he doesn’t feel the variance should be granted. Wayne stated they make the number work to their advantage. Mr. McCoy stated he not doing anything with the numbers. They are allowed more square footage and we are just trying to have both façade sign match. He asks the Board to look at the whole picture. He stated we cut the signage way back and this is what they came up with. Chairman Ackerman suggests reducing sign on other street so both façade signs will be same size. He did compliment the nice job they are doing constructing the building. McCoy stated the typical CVS signage is bigger. He thinks it’s a reasonable request. Chairman Ackerman agrees with the City Planner’s letter in that they can reduce the façade sign on
County Street to match Hart St. Dept. letters from City Planner, Cons. Comm., Water & Fire Dept. were read into the record. In favor; Bruce Thomas, 48 Church Green, Taunton, Ma. He’s the landlord and he thinks the request is reasonable. Opposed: Dorothy Latour, 120 Hart St., stated this is a very busy intersection. They have made no concession with the neighbors. They were told the building would be clapboard and now it’s brick. Mr. McCoy stated the objective as a whole is to each sign same in size. It was asked if the sign would be illuminated and he answered yes. Wayne stated he is voting on the recommendation of the City Planner and being consistent. Chairman Ackerman stated they can reduce the signs and still comply with the sign ordinance.
Motion made and seconded to grant as presented:
Vote: Ackerman, Staples, Berube…....…..….No
Wasylow, Medeiros…………………………Yes.
Petition Denied:
Meeting adjourned at 8:10 PM
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