April 5,2017 ZBA meeting

Moderator: Maria Lajoie

April 5,2017 ZBA meeting

Postby Mary Wright » Tue Jun 27, 2017 8:04 pm


A meeting of the Zoning Board of Appeals (ZBA) was held on Wednesday, April 5, 2017. Mr. Heney called the meeting to order at 7:01 PM in the Community Meeting Room.

PRESENT: Daniel Heney (Chairman), Pamela Holmes (Vice Chairman), John Bombara, Leonard Demers, Sean Holland, Michael Fitzpatrick, Louis Tusino (Alternate), Maria Lajoie (Administrative Secretary)

Mr. Heney recused himself and Ms. Holmes took over as Chairman. John Petraglia joined the meeting. He stated that he is looking for a variance to create two building lots. One lot is conforming, and the one, on the corner with the barn, is nonconforming. The zoning requirement is 90,000 sq. ft. per lot, but the second lot has just over 85,000 sq. ft. The property is completely surrounded by State forest. Mr. Petragila is planning to build a smaller house on the nonconforming lot in which to retire.
He stated that the property was previously approved for a variance in October of 2002, because it was decided that approving the variance would not be detrimental to the public good and would not negate the intents or purposes of the zoning bylaw. Ms. Lajoie stated that she was unable to find the minutes from 2002 that pertained to that approval.
Mr. Petraglia stated that there have been no significant changes to the neighborhood. He purchased the house on 73 Wallis from Randall Russ, who also owned the land across the street. Mr. Russ sold the land in 2002, and the intent of the new owner was to divide the land and build two homes. The variance was granted. Mr. Petraglia produced the plan that was endorsed by the Planning Board in November of 2002. However, a disagreement between the seller and buyer resulted in a lawsuit, which was not settled until April 30, 2007. Mr. Petraglia bought the property in 2007, and he received the variance and the approved Planning Board plan. It is Mr. Petgralia’s belief that he purchased two building lots, which the purchase price reflects. He feels that a literal interpretation of the bylaw would create a substantial financial hardship for him. He showed how the shape of the lot creates a hardship. He showed an area of land that has been lost due to the road now being wider than when the original deed was drawn up. Mr. Petraglia has been paying taxes on 4.25 acres.
Dan Heney, 44 Shady Lane rose to speak. Mr. Petraglia stated his objection to Mr. Heney being recognized by the Board as a violation of Ethics Commission rules. He gave the Board a copy of the rules and read that public employees must abstain from voting when there is a conflict interest and cannot participate in any official discussion of the matter. Mr. Petraglia has spoken to the Deputy Director on this matter. Ms. Holmes presented her interpretation of the rules, which is that people do not have to give up their right to free speech under the First Amendment.
Mr. Heney stated that the difference between the variance granted in 2002 and the one being asked for tonight is that original deed stated the property was 4.5 acres. A survey was done and it was found that Mr. Russ was 5,000 sq. ft. short, proving that the deed was wrong and Mr. Russ therefore had a hardship. Mr. Heney feels that Mr. Petraglia bought the property knowing what he was purchasing and has no hardship. Mr. Heney stated that the mylar from 2002 presented to the ZBA today was one that he paid for.
Renee Hood of 115 Cedar Street stated that she and her husband Andy have no objection to the plan. They are the only direct abutters.
Robert Minarik of 107 Cedar Street stated that he and his wife Debra have no objection to the plan.
Mr. Fitzpatrick stated that Mr. Petraglia has room on the lot, as it is, to build a home where he would like to build it. Dividing the land for future use is not a hardship.
Mr. Demers does not feel there is a hardship to build on the lot. There would be a hardship if a house were built and then the lot subdivided. There was a discussion as to whether or not there is currently one lot or two. Larry Lench, Building Commissioner stated that he was asked for a denial letter. Mr. Petraglia defined “hardship”. He feels he meets the standards that exist for a hardship.
Mr. Demers asked if this decision would be setting a precedence for individuals to ask the ZBA for a variance because they want to subdivide their property into lots that do not have enough square footage. Ms. Holmes stated that the Town’s land attorney does not feel there is such a thing as precedence as every case is different, laws change, and opinions change.
Mr. Holland feels that the law should stand that two acres is required to build a home in Douglas. It was decided to get input from the land use attorney.
Mr. Minarik stated that the corner has been the scene of accidents over the years due to speeding. He would like to see the corner squared off. Ms. Holmes suggested he ask the Board of Selectmen have the Safety Committee look into it.
Mr. Holland made a motion to continue the public hearing, ZBA Case #2017-01 John Petraglia, 74 Wallis Street to May 3, 2017 at 7:00 PM. Mr. Demers seconded the motion. Vote: All-Aye.
Mr. Heney rejoined the meeting and took over as Chairman.

No one was present to represent the applicant.
Mr. Demers made a motion to continue the public hearing, ZBA Case #2017-02 Main Street Auto & Towing, Inc., 120 Gilboa Street to later in the evening. Mr. Holland seconded the motion. Vote: All-Aye.

Atty. Mark T. Lee joined the meeting. Also present were Russell Cyr, Design Engineer with Alfred Benesch & Co. and Jennifer Conley, Traffic Engineer. Atty. Michael Kennefick joined the meeting on behalf of the Town. Ms. Conley presented traffic counts between 8:00 – 10:00 AM on Saturday and found the peak hour to be between 9:00 – 10:00 AM with 725 vehicles entering the intersection of Main Street and Riedell. The traffic study done in 2015 found that between 11:00 – 2:00 PM, the peak time was 11:00 -12:00 PM when 960 vehicles entered the intersection. Ms. Conley summarized that the original traffic reports presented at the last meeting still stand as the Saturday morning counts are 25% lower than midday counts.
Ms. Conley reviewed sight lines on Main Street considering a 40 mph speed limit and minimum stopping distance of 305 feet. Sight lines on Main Street at the location are 400 feet. On Riedell, the actual speed travelled was closer to 35 mph, requiring a stopping distance of 190 feet. From the north, the sight line is over 310 feet.
Crash data was spread to include more than the two intersections. The new study for the entire segment indicated that the crash rate was about half the State average based on one million vehicles travelled. Mr. Bombara stated that Wallum Lake is busiest from the end of June until the beginning of September, which involves hundreds more cars. The studies were done off peak and do not address the peak times. Ms. Conley replied that at the last meeting, she presented seasonal adjustments using data from Cape Cod, and the impact was still the same, although the baseline was higher. Ms. Holmes suggested using a 53G application and getting a peer review.
Atty. Kennefick stated that the issue for the ZBA is limited to the special permit for the drive-through window under section 9.3.2, specifically what effect the drive-through would have on the character of the area, would it serve a community need and how is traffic dealt with on the property. The traffic is an issue for Planning Board site plan review. Mr. Holland argued that looking at the community impact would mean looking at traffic on Main Street. Mr. Demers read the 9.3.2 criteria. Atty. Kennefick cautioned the ZBA to not exceed their authority.
Atty. Kennefick stated that if the ZBA approves the special permit, the approval can be conditioned pending site plan review. Mr. Heney suggested the applicant go through site plan review before the ZBA votes on the special permit. Atty. Lee said if they don’t get approval on the window, they can’t present plans to the Planning Board that include a window. Ms. Conley stated that they would welcome the ZBA’s recommendations as a part of their decision. A discussion was held regarding the ZBA’s jurisdiction over traffic.
Ray Whitehead of 68 Old Farm Road and owner of Family Convenience Center stated that the special permit is a higher standard than site plan review. He presented a printout from the Dunkin Donuts’ website for site requirements that say a drive-through window should be on the morning-drive side of the road. This proposed window is not. Adding a drive through window will produce more left turns, more traffic crossing opposing traffic, and a decrease in traffic safety. Mr. Heney clarified the site plan review process.
Mr. Whitehead said that his gas sales in February, 2016 were just over 100,000 gallons. In July, 2016 gas sales were 148,000 gallons, a 43% increase in sales.
John Maguire of 31 Royal Crest Drive asked to know the weather conditions on the day the Saturday traffic study was done. Ms. Conley replied that they do not do traffic studies during snowstorms or immediately after snowstorms. They do count in the rain. She will look up the weather conditions on that day.
Mr. Holland made a motion to continue the public hearing, ZBA Case #2015-02 Alfred Benesch & Co., 74 Main Street to May 3, 2017 at 7:15 PM. Ms. Holmes seconded the motion. Vote: All-Aye.
A five-minute recess was called.

Mr. Heney opened the public hearing. Voting on the case will be Mr. Heney, Ms. Holmes, Mr. Holland, Mr. Demers, Mr. Fitzpatrick and Mr. Bombara. Mr. and Mrs. Guilmain joined the meeting. They have erected their retirement home on the lot. They purchased the adjoining buildable lot at a public auction. In order to keep their grandfathered rights, they are not planning to combine the two lots. Mr. Guilmain would like to erect a 28’ x 38’ one-story, three-car garage on that lot. Mr. Bombara visited the site yesterday. All the lots are small.
Ms. Holmes asked why the garage cannot be placed closer to the house. Mr. Guilmain replied that there would not be enough turning room. The garage doors will face the house. The Planning Board had no objection to the request for a variance.
Mr. Demers asked if the applicant could erect a two-car garage or one that is not as deep. The applicant is short on the front and side setbacks. Mr. Guilmain has several old cars that need to be stored.
Mr. Fitzpatrick stated that the plot plan shows the two lots as combined. If the lots are not going to be combined, then the proposed garage is now only two feet from the lot line. A variance is not being requested for that issue. An accurate plan and application need to be submitted. A discussion was held. The ZBA suggested the applicant consult their attorney and engineer and submit a correct plan and application.
Mr. Bombara made a motion to waive the application fee for resubmittal of ZBA Case #2017-03, Eugene L. Guilmain, 5 Reid Road. The applicant will pay the advertising and mailing fees. Mr. Demers seconded the motion. All-Aye.

Robert Cherrier, owner and President of Main Street Auto & Towing joined the meeting. Mr. Cherrier is asking for a special permit to operate the auto and repair shop in this location. The hours of operation are 8:30 AM – 5:00 PM Monday through Friday and Saturday 8:30 – 1:00 PM. Mr. Cherrier has asked the Planning Board for 8:00 AM – 7:00 PM Monday through Friday and 8:00 AM - 5:00 PM on Saturday and Sunday. The business does do towing. The cars are put inside each evening. At maximum, they have 20 spots outside and 20 inside. A discussion was held.
Mr. Holland made a motion to close the public hearing, ZBA Case #2017-02 Main Street Auto & Towing, Inc., 120 Gilboa Street. Mr. Demers seconded the motion. Vote: All-Aye.
Mr. Holland made a motion to approve the special permit for ZBA Case #2017-02 Main Street Auto & Towing, Inc., 120 Gilboa Street pending proper inspections by the Fire and Building Dept., with the following conditions: hours of operation being 8:30 AM – 7:00 PM on weekdays and 8:30 AM – 5:00 PM on weekends, all cars to be stored inside during off hours, and maintain all necessary licenses and permits and respond to whatever obligations that are presently put on, or in the future put on, by the Public Safety Board. This special permit shall apply to only this particular owner. Mr. Demers seconded the motion. Vote: Aye-Mr. Heney, Mr. Holland, Mr. Demers, Ms. Holmes and Mr. Fitzpatrick.

1. ZBA Fees: This item was deferred to the next meeting.
2. Sign Voucher:
3. Planning Board Zoning Bylaw Public Hearing Notices (3)-FYI: There was no discussion.
4. MINUTES: December 7, 2016 Executive Session, February 1, 2017 Executive Session, March 1, 2017.
Approval of the above listed ZBA meeting minutes was deferred to the next meeting.


Mr. Holland made a motion to adjourn the ZBA meeting at 9:42 PM. Ms. Holmes seconded the motion. Vote: All-Aye.

Respectfully submitted,

Mary Wright
Recording Secretary
Mary Wright
Posts: 506
Joined: Thu Jan 12, 2012 8:56 pm

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