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HomeMy WebLinkAbout2005-03-03 Zoning Board of Appeals Minutes'TOWN, CLERK ..:,.Town of Reading ZONING BOARD OF APPEALS Minutes of March 3, 2005 Members Present: Susan Miller Paul Dustin Robert Redfern Mark Gillis John Jarema N C rte. c_ 4J, Members Absent: Michael Conway A meeting of the Zoning Board of Appeals was held in the Selectmen's Meeting Room of the Town Hall, 16 Lowell Street, Reading, Massachusetts at 7:00 P.M. Also in attendance was Glen Redmond, Commissioner of Buildings. Case # 04-30 Continuation of a Public Hearing on the petition of Wendy Robinson who seeks a Variance under Sections 4.0/4.2.2 of the Zoning By-laws in order to allow open storage in front of a retail store during regular business hours on the property located at 6 Linden Street (The Corner Closet). The Applicant was not present at the meeting but her husband. spoke on her behalf. The Board read a memo submitted by one of its members that established the date of the Town's open storage by-laws as April 30, 2001. Mr. Robinson submitted notarized affidavits and a time line of events establishing that open storage or outside display of retail goods had been occurring at the address since September 8, 1973 and was continued to February 8, 2001 by the previous owner. The Applicant said she has continued the open storage from November 19, 2002 to the present and thereby meets the requirement that the practice had not been discontinued or abandoned for more than a period of twenty-four months. Based on the submitted information the Board concluded that open storage or outside display of retail goods had occurred continuously since 1973 and that there was an approximate eighteen month period between February 8, 2001 and November 19, 2002 during which there was no open storage on the property. The Board noted that the open storage was on the private property at 6 Linden Street, not on a public way, and thus did not impede pedestrian access. V On a motion by Robert Redfern, seconded by Mark Gillis, the Zoning Board of Appeals made a finding that the outside display of retail goods at 6 Linden Street existed prior to April 30, 2001, the effective date of the open storage by-law, and is therefore a non-conforming "grand-fathered" use. Said non-conforming "grand-fathered" use was discontinued for a period of approximately eighteen months. The By-law stipulates that a discontinuance of twenty-four months or more would then constitute an abandonment of the non-conforming use. The Petitioner has produced sufficient evidence to establish that the open storage or outside display of retail goods at 6 Linden Street is a legally pre-existing, non-conforming use and the outside display of retail goods was not discontinued for a period of twenty-four months and was not abandoned. The motion was approved by a vote of 3-0-0 (Miller, Redfern, Gillis). Case #05-02 A Public Hearing on the petition of Michael J. Garrity who seeks an appeal from a decision of the Building Inspector under Section 7.4.2.1 of the Zoning By-laws in order to occupy a new single family house dwelling that does not comply with all State Building Code requirements, and does not comply with the Town of Reading Zoning By-laws, specifically Section 6.0 parking regulations, on the property located at 51 Colburn Road. Attorney Mark Favaloro represented Michael Garrity. He said they have redesigned the parking so that it meets Section 7.4.2.1 of the Zoning By-laws and he thinks there are really just two issues: does the parking design meet the requirements and will the Board approve an Occupancy Permit subject to a final inspection by the Building Inspector. The Board wanted to know if there have there been any changes in what is paved since two weeks ago and the Applicant said nothing had changed. Part of what is paved is on another lot owned by the Applicant on Hillcrest Pass. The Building Inspector indicated the plot plan is not complete and does not show which part of this driveway goes onto a right of way. Attorney Favaloro said there was no attempt to limit anyone's rights and the Applicant wants to use that pass because of the topography of his lot. The Applicant argued that it met Town Counsel's requirements by proving he has control of the pass and the right to use it. One of the Board members said the Applicant has to satisfy the Town who has a right to improve Hillcrest Pass if it chooses and Town Counsel has not accepted what the Applicant has proposed. The Building Inspector said the Town Counsel and Town Engineer are not satisfied. A proposed driveway layout was submitted and the Town Engineer approved the permit based on that proposal. The driveway was instead built on a right of way and an adjacent property. This different action would have to be approved by the Town Engineer and he would have to issue a curb cut permit. The Board pointed out that the Applicant had not requested a variance and it had not been advertised as such. The building permit was issued based on the original proposal with access through the frontage and the Applicant was now asking for something completely different. Town Counsel stated in her memo that for a lot to be build-able it must have frontage on the street and Hillcrest Pass is not an approved way that can be used as a legal access for the driveway. Attorney Favaloro disagreed saying the frontage definition does not require access over the frontage but rather only that be access available and this does not prevent a secondary access if it is available. He said he did not think a variance was needed here as long as there was access. John Jarema said there were two options: one, the Board could hear the case as it had been advertised or, two, the Applicant can come back with a request for a variance that must be re- advertised. The Board asked why the driveway was not built off of Colburn Road as shown on the plans submitted to the Building Inspector when the permit was issued. The Applicant said it was too expensive and he knew what the law was and that he had the right to improve Hillcrest Pass. The Board reminded the Applicant that he knew what it was going to entail and cost from the beginning and the plan said he was excavating the ledge and putting a driveway in the front of the house. The Board asked if other property owners use Hillcrest Pass to access their property. Ronald O'Connell of 63 Colburn Road said he had lived there for over 30 years and used Hillcrest Pass to access the back of his property for all those years. It is the only access he has and that pass has - been in use until Mr. Garrity made it impassible by blocking it with wood. Mr. O'Connell wants to continue to have that access. Frank D'Amico, another neighbor, said there is a new tar driveway and he wanted to know if the Town had tarred it. Mr. Garrity said he had it tarred. The Board asked Mr. Garrity if he thought a driveway needed to meet standards. He said he considered it to be an access to the dwelling and not a driveway. He said until a street is accepted as a public way the abutters' own ten feet in and when the town accepts it as a public road then the town is responsible. Attorney Favaloro said maybe the Applicant should re-file a request for a variance and ask for input from the Town Counsel. He said he would keep the same language and just add the variance request as well as a variance from Town engineering standards as well. The Board said it would be best to have this application withdrawn and resubmit a new application because the present information is insufficient to move forward. Attorney Favaloro agreed and asked for the case to be withdrawn. On a motion by John Jarema, seconded by Robert Redfern, the Zoning Board of Appeals agreed to accept the withdrawal of the Applicant's petition. The motion was approved by a vote of 3-0-0 (Susan Miller, Robert Redfern, John Jarema.) Case 05-03 A Public Hearing on the petition of Paul J. & Michele T. Catalano who seek a Special Permit under Sections 6.3.17 & 6.3.11.1 of the Zoning By-laws in order to remove a portion of a single family dwelling which is non-conforming and to reconstruct that portion and to enlarge another portion within that setback on the property located at 4 Evergreen Road. Mark Gillis excused himself from the case based on a business relationship with the architect on the case. Nancy Twoomey is the architect on the case and spoke for the petitioner. Currently there is a single car garage with a breezeway that was made a part of the kitchen and there is also a shed that is attached to the garage. The Applicants would like to extend the existing kitchen, add a family room and extend the garage. It is not a dramatic change from what is presently there. They have access off of Charles Street and that is the side they are encroaching so they have more than the 20 feet required. The abutter directly adjacent does not have any problems with this project and has submitted a letter stating their approval of the project. Michele Catalano said the previous owners remodeled the kitchen so they did not know if that was when the breezeway was closed in and made part of the kitchen. There was a back door there so perhaps it might have always been enclosed. In the 80's when the kitchen was enlarged the back door was lost so the garage might have always been attached. On a motion by Robert Redfern, seconded by John Jarema, the Zoning Board of Appeals voted to grant a Special Permit to the Applicant under 6.3.17 and 6.3.11.1 of the Zoning By-laws in order to demolish a portion of a single family dwelling and construct a one story addition and deck, all as shown on the submitted Certified Plot Plan, with the usual three conditions. The motion was approved by a vote of 3-0-0 (Susan Miller, Robert Redfern, John Jarema) Minutes On a motion by Robert Redfern, seconded by John Jarema, the minutes of September 2, 2004 were approved without changes by a vote of 5-0-0 (Susan Miller, Mark Gillis, John Jarema, Robert Redfern, Paul Dustin). On a motion by Robert Redfern, seconded by Mark Gillis, the minutes of September 16, 2004 were approved with changes by a vote of 5-0-0 (Susan Miller, Mark Gillis, John Jarema, Robert Redfern, Paul Dustin). Other Business The Board discussed the proposed mixed-use zoning amendment and how it would affect the Zoning Board of Appeals. 4 On a motion by John Jarema, seconded by Paul Dustin, the Zoning Board of Appeals voted to adjourn the meeting. The motion was approved by a vote of 5-0-0 (Susan Miller, Mark Gillis, John Jarema, Robert Redfern, Paul Dustin). Respectfully submitted, r Maureen M. Knight Recording Secretary