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HomeMy WebLinkAbout1988-06-23 Zoning Board of Appeals MinutesZONING BOARD OF APPEALS READING, MA MINUTES - JUNE 23, 1988 Members Present: Catherine A. Quimby John A. Jarema C. Nancy Scott* Stephen Tucker *Indicates non-voting member present. Continuation: Trancoa Property, 312-326 Ash Street CPDC versus Building Inspector decision. The public hearing was reconvened by Chairman Quimby at 7:40 PM, June 23, 1988 in the Selectmen's Meeting Room, 6 Lowell Street, Reading, MA. The initial hearing had been continued to allow the Building Inspector, Mr. Stuart LeClaire, to give testimony. Catherine Quimby added to the folder at this time the following: 1) history of by-law text for the Town of Reading; 2) Building Permits issued in the month of September; 3) copies of public notices and newspaper articles from the 1957 Chronicle; 4) copy of documents presented by Attorney Charles Arthur in defense of the decision made by the Building Inspector. George Hines, CPDC Chairman, then informed the Board that Peter Hechenbleikner was planning to give testimony sometime during the evening. At this time, Chairman Quimby summarized the items still unclear to the Board for Mr. LeClaire, i.e., 1) Why multiple applications for Building Permit? Why conflicting information; 2) Why occupancy issued with no reference to light manufacturing? Issued for office/warehouse/enclosed storage. 3) Under what premise did he grant Occupancy Permit? Did Building Inspector make a site inspection to validate his perception of what was in the permit? Mr. LeClaire stated he had taken the three Building Permit applications and combined them as a "repair and make safe" permit #18643 in the amount of $20,000. Only one fee was collected. He also stated that in his opinion, a Building Permit was not actually necessary at this time. Carol Scott then asked what would trigger a site plan review. Mr. LeClaire stated that Mr. Fuller had spoken with Bill Redford and was told to seek a site plan review as the scope of work was to exceed $30,000. He added he was not aware of Mr. Fuller's applying for site plan review or that he had even purchased the property at this time. Normally, the dollar amount of $30,000 or over will trigger a recommendation for site plan review to a property owner. The issue of three Building Permit applications was again discussed, with Mr. LeClaire stating he only knew of two and felt the third was probably never submitted (missing application made reference to no hazardous waste storage.) When questioned why the Occupancy Permit was issued only for office/warehouse/enclosed storage, Mr. LeClaire stated that all the information from the application would not fit on the permit itself and Zoning Board of Appeals June 23, 1988 Page 2 was listed on the application for reference. John Milano of Ash Street later stated that he had obtained all three copies of the applications at the Building Inspector's office and, therefore, could not understand why he only had two presently in his possession. Mr. LeClaire then stated he did make a site inspection to answer question #3. The building had been vandalized and also was allowed to be used for a training building for SWAT police making it exposed to the elements and unsafe to the public. He added that the previous owner, Mr. Davis, had advised him of his intent to demolish the building, and therefore, had provided the police with the opportunity of utilizing it for training purposes. Upon inspection, he found all new windows, doors, fire extinguishers, etc. to the satisfaction of his requirements. The Board then asked if the site plan review amount of $100,000 included plumbing and electrical work. George Hines stated it did (it was later stated by Mr. LeClaire that it was his feeling that these items were covered by the plumbing and electrical inspectors when filing permits). Mr. Hines stated Mr. Fuller went through site plan review until it reached the point where he did not like the decisions being made. He added that there was a meeting between Mr. Hechenbleikner, Mr. LeClaire, and Mr. Fuller to attempt to come to some type of agreement whereby Mr. Fuller could secure an Occupancy Permit. This would be discussed when the Town Manager was present. Attorney Arthur then discussed the fact that the original plan for the building was to house office space for lease, but after the applicant decided to utilize the space for his own use, he no longer needed to spend as much money to refurbish, therefore, a site plan review was no longer necessary. Thomas Stohlman of CPDC stated at this time that office space was never discussed at site plan review. He also stated that the purpose of make-safe is to give the Building Inspector the power to demand certain items be corrected and is not intended to be a provision for the owner to apply. It was noted at this time that there was no list of items, either supplied by the owner or Building Inspector, to identify what exactly was to be done. Mr. Fuller added that a representative from both the fire and police departments came through and gave specific recommendations to him, none of which were in writing. When asked by the Board whether the recommendations were given prior to the issuing of the Occupancy Permit, Mr. LeClaire stated that his understanding was that a Building Permit was issued to make it legal for a person to go in and begin the work required, and an Occupancy Permit would follow. It was normal procedure for the Building Inspector to request an inspection by the fire department. He was uncertain how the police became involved. Gail Faller, Administrative Assistant to the Community Development Department for the Town of Reading, then stated that following their inspection, Doris of the fire department staff would simply call her and inform her "sprinkler system ok, boiler ok," etc. to be passed on to the Building Inspector. Never was it received in writing at their office. Zoning Board of Appeals June 23, 1988 Page 3 The issue of a letter to Mr. Fuller from Mr. LeClaire dated September 17, 1987 informing him in effect that he would have to seek a Special Permit before the ZBA in order to do the intended work was then discussed. Mr. LeClaire stated that he always sends those types of letters via certified mail and had found no receipt in his files on this particular letter giving him the opinion that the letter had never been sent. He had been given the file on the 1957 Special Permit granted thereby asserting no need for the letter or another Special Permit. Mr. Richard Zielinski, also representing Mr. Fuller, stated he had never seen the letter in question. Mr. Hines questioned the issue of abandonment at this time citing the allowance of the SWAT team to destroy portions of the property. It was also noted that the site plan decision was issued on August 17, 1987 and was filed on August 31. The appeal was filed on September 18, 1987. Mark Favaloro of the CPDC then asked the building inspector how he concluded that the 1957 permit applied to the present use of manufacturing when it clearly addressed chemical usage. He responded that the footprint as used at,.t~hat time was still as it existed when the permit was issued.'' 1ieri"presented a copy of a 1981 floor plan for the building showing 40% manufacturing, 60% storage/office. The type of manufacturing now being done was clarified as "small plastic_ dashboard instruments currently being used by Ford Motors" produced by mainly small machines, although there was one area in the building housing heavy machinery. The Board then began discussing the by-law and how it should be interpreted in relation to manufacturing. At some period, manufacturing had been removed from the by-laws and listed on a table of uses allowed by Special Permit only. In 1957 manufacturing was a legal right in the industrial district. It was the chemical aspects of the manufacturing upon which the '57 Special Permit was issued (13.2.B. stated ...any use approved by the Board of Appeals after a public hearing.) It was also discussed whether the '57 permit was acutally a Special Permit or simply a Use Permit. Mark Favaloro stated that the permit as intended was to allow an inert chemical to be manufactured for electronics, therefore, it should not be grandfathered for present use. John Jarema noted he had looked over the history of the by-laws and found nothing which stated "no manufacturing." Dan Ensminger of CPDC then spoke regarding a redraft of the by-laws dated 12/12/77 and his belief that it was intended to eliminate manufacturing at that time. He stated that under 40A, if a use was omitted, it was no longer allowed unless by accessory. This discussion continued as the Board attempted to determine whether Zoning Board of Appeals June 23, 1988 Page 4 this issue was ever taken up as a separate article in Town Meeting. Dan Ensminger noted it was discussed in this manner at Town Meeting on 2/27/78 at which time it became an accessory use. Attorney Arthur then addressed the Board stating that the issue of the Building Permit was now clarified, the enforcing officer (Building Inspector) was satisfied with the work done in that it was within proper permits, and usage had not changed or exceeded what was felt to be allowed in the decision of the Building Inspector. Therefore, the decision should be ratified. John Milano again spoke to the Board regarding the current usage as compared to what had previously been granted. Jonathan Edwards suggested the Board look at the principal use of the building, i.e., is the office dependent upon the manufacturing or vice versa to keep the company operating. The discussion again moved to the abandonment of the premises. It was noted that title did not pass between Trancoa and Fuller (Fraen Corp.). Davis owned the property for a brief period of time before its purchase by Mr. Fuller. The Board discussed whether the intent of discontinuance was there as Davis was simply a real estate broker and not operating as proprietor of a business on the premises-. Peter Hechenbleikner then entered the meeting and was sworn in by the Chairman. He.then recalled for the Board a meeting of himself, Mr. Fuller, and Mr. LeClair. of 9/87 at which Mr. Fuller was seeking to secure an Occupancy Permit. He had already placed some of his property inside and was very eager to begin using the building. He felt he was being held up by the Building Inspector and CPDC. This lead to a second meeting at which the Town Manager and Building Inspector noted four points by which the required occupancy could be issued. They were as follows: 1) no more than $30,000 worth of work included in the make-safe permit 2) office and enclosed storage only 3) no manufacturing 4) he would apply to ZBA for necessary permit required for use as a manufacturing facility. If Mr. Fuller stayed within these guidelines, he would no longer need site plan approval. This gave some clarity as to why the Occupancy Permit was issued. Mr. Fuller then stated there had been no dollar limit discussed and that he did not agree to come before the ZBA. He felt at the time that he had the adequate by-law authority to conduct light manufacturing in the building. The Building Inspector Zoning Board of Appeals June 23, 1988 Page E had no recollection of what was decided at the meeting. The Town Manager again stated he firmly remembered giving a dollar threshold to Mr. Fuller and approving only office and enclosed storage--no manufacturing--as not to undermine the CPDC decision yet allow the property owner to utilize the building to some extent while awaiting a hearing with the ZBA. The Board then discussed the conflicting testimony and what to consider credible information. They were instructed by Town Counsel to consider testimony as a jury would in a court trial. Charles Arthur then noted that his client would have been more prepared tonight to address this meeting of September '87 had he known the Town Manager was planning to attend and do so. Mark Favaloro again requested the Board uphold the occupancy permit and issue a cease and desist to be enforced after 60 days during which time Mr. Fuller could come before the Board for a Special Permit for manufacturing. George Hines added that it was not the intention of the CPDC to impede on the rights of the owner, but to adhere to the proper channels, i.e., it came down to a question of process. Chairman Quimby attempted at this point to summarize her beliefs of what had taken place. John Jarema stated he felt it hard to understand why manufacturing would not be allowed in an industrial zone and that he felt the system itself was totally inadequate. Following further discussion, Stephen Tucker moved that the building inspector's decision to allow manufacturing use at property identified at 312-326 Ash Street be hereby overturned and that office/warehouse/enclosed storage as stated on Occupancy Permit # 2136 dated 9/25/87 be in effect. In addition, it is herewith determined that a site plan is not required at this time. The Board further instructs the building inspector not to enforce a cease and desist for light manufacturing to the owner of the property for a period of 150 days, the intent of which is to allow the owner sufficient time to seek resolution of the manufacturing issue. John Jarema seconded the motion, and it was approved unanimously by the Board. John Jarema added he felt it a very difficult situation }ate did not want to throw a businessman out of his shop. He noted serious concerns on this decision, but was attempting to avoid going into litigation on this case. Following brief discussion on this topic. The meeting was unanimously adjourned at 11:45 PM. fr_ Respectfully submitted by Pamela A. Spang, Recording Secretary: Signature: Date: