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Zoning Board of Appeals Minutes 01/26/2012

Zoning Board of Appeals
Middleton, MA
MINUTES OF THE MEETING
January 26, 2012

The Middleton Zoning Board of Appeals met at a regularly scheduled meeting
on January 26, 2012 at the Fuller Meadow School,
143 South Main Street, Middleton, Massachusetts at 7:00 PM.

The following board members were in attendance:
Chairperson Lynn Murphy, Clerk Anne Cote, and members, James Fox, Jeff Garber,
and Barbara Piselli (arrived late)

Others present:
Richard Bienvenue, Building Commissioner, and Karen Matsubara, Recording Secretary

Chairperson Lynn Murphy called the meeting to order at 7:00 PM.

149 South Main Street, Unit J, Map 29, Lot 68–Sita Van-Special Permit-Application #929
Chairperson Murphy announced that the applicant was contacted to inform him that there were not going to be enough Board members present at the meeting to hear his petition; two of the members are abutters and one other member is the owner of the property.

MOTION: Made by Lynn Murphy to continue the hearing for 149 South Main Street to the February 23, 2012 meeting.  Motion seconded by James Fox.  Vote 4-0 in favor, motion carried.

Chairperson Murphy called a five minute recess to await the arrival of Board member Piselli; back on record at 7:03 PM.

37 Maple Street, Map 25, Lot 113-Dana & Pauline Caldwell-Appeal-Application #928
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

Attorney John Keilty, 40 Lowell Street, Peabody appeared on behalf of the applicants who were also present at the meeting.  He explained that the Caldwells had recently experienced a fire at the property.  Upon meeting with the Building Commissioner it was suggested that the home could not be rebuilt as a three family because the home is in a single family home zoning district and the property records do not show that any permits had been granted to allow the use as more than a single family, indicating that it may be an illegally existing three family home.  Despite the fact that the assessor’s records show the assessment of the home as a multi-family for a considerable length of time, the building records do not show that there was ever a permit granted either for construction or for any type of conversion.  Attorney Keilty reviewed the letters that were submitted with the filing package.  The letters were from the former tenants that lived in the home in 1964 and 1965 and from the former Building Inspector William Cashman all stating that the home was a three-family.

In response to a question from Mr. Fox about the home being marketed as a four-family dwelling, Attorney Keilty explained that the applicant was only seeking to have the home established as a legal three-family.

Building Commissioner Bienvenue confirmed that the building records do not show that the home was anything other than a single-family home.  He noted that in Quincy there was a fire in an illegal apartment which killed the tenants.  Because of that situation, the State has sent a memo to the Building Departments directing them to bring any illegal apartments to light.

Attorney Keilty stated that his clients have owned the property since 1982 which they purchased as a three-family.

Chuck Clinch stated that Earl Jones had previously owned the home during which time Mr. Jones’ father was a part-time inspector in Town.

Chairperson Murphy asked the Zoning Secretary to obtain certified copies of the older Bylaws from the Town Clerk for the next meeting.

MOTION: Made by Anne Cote to conduct a site walk and continue the hearing to February 23, 2012.  Motion seconded by James Fox.  Vote 5-0 in favor, motion carried.  Site walk scheduled for January 29, 2012 at 1:00 PM.

70 Maple Street, Map 25, Lot 202-Oreste, Marie & Joel Magliozzi-Use Variance-Application #927
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.  She also read correspondence from the Planning Board dated January 26, 2012 (letter on file.)

Attorney Jill Mann appeared on behalf of the applicants.  She explained that Marie and Oreste Magliozzi are the property owners and their son Joel operates two other funeral homes in Medford and Andover.  The petitioners are seeking a use variance because the property is located in a residential zoning district.  The applicants propose to maintain the residential appearance of the home.  Some of the proposed changes to the building include a 420 sq ft room addition at the rear of the home and the addition of a portico at the side entrance.  The driveway has been redesigned at the suggestion of the Design Review Group and the homeowner across the street.  The property will now be served by two driveways; one ingress and one egress.  The parking lot will be located at the rear is to be contained with a stockade fence.  Attorney Mann reviewed a revised plan showing a planting buffer for additional screening that was added as a result of a meeting with one of the abutters at the rear of the property.  Attorney Mann did confirm that the petition was filed for both the Use Variance and Site Plan Approval.  They did appear before the ICDRC and Planning Board.

Paul Richardson confirmed the ICDRC had reviewed the petition, but asked that the applicant first get a determination on the Use Variance then come back to ICDRC for the Site Plan.

Chairperson Murphy stated that the Use Variance is an extraordinary remedy.  There is a high standard that has to be met in terms of the criteria.  She stated that personally she would vote negatively on any Use Variance that did not have Site Plan Approval.  She added that although the bylaws are not specific about requiring Site Plan Approval concurrent with the Use Variance, the Special Permit clearly requires Site Plan Approval and Special Permits are a lesser standard.

James Fox confirmed that the abutting lots to the right of the subject property were also owned by the applicant and questioned the hardship presented.

Chairperson Murphy asked if the Planning Board had reviewed the Site Plan.

Attorney Mann explained that because of the ICRDC’s position, the Planning Board only gave a recommendation on the Use Variance.

Chairperson Murphy stated that the Board would conduct a site walk before the next meeting and would review both the Use Variance and Site Plan approval at the February ZBA meeting.  A site walk was set for Sunday January 29, 2012 at 1:30 PM.

Joan Watkins spoke in strong opposition of the proposal.  She felt that granting a variance for the funeral home in a quiet residential neighborhood would set a precedent for future requests for other commercial development in residential areas.  Some of her other concerns included added traffic to an already heavily traveled road, commercial development continuing from the Howe Station intersection to the intersection of 114 and the decrease in value to the residential properties in the area.

John Knott of 25 Webb Street also spoke in opposition of the proposal.  One of his biggest issues was the increase of traffic.  He felt that the area should remain residential.  He questioned the need for the petition to continue through the other Boards when there is clearly so much opposition to the proposal.

Chairperson Murphy explained that the petitioners do have the right to continue their petition.

Ms. Piselli added that it was important to emphasize that there is a process and everyone is entitled to go through the process.

Mr. Fox asked if the audience members that wanted to be heard tonight could limit their comments to a minute or two so that he could hear all their concerns and be well informed for the site walk.

In response to a question from Ms. Cote regarding a traffic study, Attorney Mann stated that she did not have a traffic study but did have a traffic report indicating the traffic flow generated by funeral homes.  Ms. Cote stated that she wanted to have a traffic study of Rte 62 showing the existing traffic count at different times during the day.

Chuck Clinch of 4 Walnut Lane stated that it was his understanding that the parking lots of the church and the funeral home were going to be joined which would help take some of the church parking off Webb Street.  In regards to the concern of traffic, he commented that whenever he has gone to a funeral or wake there is always a detail officer to alleviate any traffic issues.  He was in favor of the proposal.

James Marshall of 1 Randall Road felt that a funeral home was needed in Town and that the location was good because of its close proximity to the church and cemetery.

Jerry Rossman of 9 Sheldon Circle was in favor of the location because the house is set back from the roadway and has plenty of room in the rear for parking.  He added that the funeral home would also produce revenue for the Town.

Mark Magnifico of 31 Forest Street spoke in favor of the petition.  He stated that he did work at the other two funeral homes that are run by Mr. Magliozzi; the homes are both in residential areas.

Neal Pizza of 14 Pinedale Road commented on the number of accidents that occur on Rte 62 in the Howe Station area and expressed concern about the traffic and parking.  He also did not feel that a case had been made for the hardship.

Ms. Watkins added that she was also representing two of her neighbors who were also in opposition of the project but unable to attend the meeting.

Pastor Larry of the Congregational Church stated that he did not know of any plan to connect the parking lots of the church and funeral home.

Stephen Headly of 61 Maple Street expressed concern over an alternate use of the property in the event that the funeral home was approved and failed.

Chairperson Murphy replied that a Use Variance permits a specific use only; it does not open the door that a different commercial use is acceptable at the location.

Dana Picillo of 71 Maple Street, directly across from the subject property, stated that he was adamantly opposed to the proposal.  He commented on the heavy amount of traffic on Rte 62 between the hours of 4-8 PM.  Traffic jams are caused when the school buses are running, when the emergency vehicles go through the intersections and even when he tries to take a left into his driveway.  He added that the Magliozzis had tried to put a funeral home in a residential zone on Rte 114 7-8 years ago which was denied.

Mr. Knott asked which Board was reviewing the septic plan for the funeral home.

Chairperson Murphy replied that the Board of Health would review the septic plans.

Attorney Mann stated that they had met with the Board of Health and that a holding tank would be installed for the waste disposal.

Dennis O’Brien of 9 Gregory Street spoke in opposition of the proposal.  He commented that a quick search showed that there are five funeral homes within five miles of the center of Middleton, fifty-four within ten miles and one hundred sixty-six within fifteen miles.

Ron Wronski of 109 Forest Street questioned the number of funerals or wakes anticipated per year at the location.

Attorney Mann replied that they anticipated 30 per year as a worst case scenario.

Chairperson Murphy announced that the hearing was being continued to the February 23, 2012 meeting and a site walk was going to be conducted on Sunday January 29, 2012 at 1:30 PM.

A member of the audience that did not identify herself asked if the traffic study would be done by the next hearing as she also had concerns about the addition of traffic on Rte 62.

Anne Cote made a formal request to the petitioner for a traffic study.

MOTION: Made by Barbara Piselli to continue the hearing to February 23, 2012.  Motion seconded by James Fox.  Vote 5-0 in favor, motion carried.  Site walk scheduled for January 29, 2012 at 1:30 PM.



Approval of Minutes-November 17, 2011
MOTION: Made by Anne Cote to accept the minutes of the November 17, 2011 meeting as written.  Motion seconded by James Fox.  Vote 5-0 in favor, motion carried.

MOTION: Made by James Fox to adjourn.  Meeting adjourned at 8:30 PM.