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Zoning Board of Appeals Minutes 11/15/2012
Zoning Board of Appeals
Middleton, MA
November 15, 2012

The Middleton Zoning Board of Appeals met at a regularly scheduled meeting
on November 15, 2012 at the Fuller Meadow School,
143 South Main Street, Middleton, Massachusetts at 7:00 PM.

The following board members were in attendance:
Chairperson, Barbara Piselli, Clerk, Anne Cote, and members Craig Hartwell, James Fox, Robert Aldenberg, and Jeff Garber

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

Chairperson, Barbara Piselli called the meeting to order at 7:10 pm and announced the agenda order.

209 South Main Street, Map 26, Lot 1-Attorney Arthur Carakatsane-Appeal appeal of the Building Commissioner’s Decision that the home is a single-family dwelling only-Application #937
Chairperson Piselli announced that there was a continuance request from the petitioner.

MOTION: Made by Craig Hartwell to continue the hearing.  Motion seconded by Robert Aldenberg.  Vote all in favor, motion carried.  Hearing continued to the next regularly scheduled meeting December 13, 2012.

250R Maple Street, Map 19, Lot 148-Gino Leone-Variance from the side yard setback requirement to construct an addition in place of existing open stairway to accommodate an enclosed stairway for interior access to basement and home entry/exit -Application #943
Chairperson Piselli asked the petitioner to explain the characteristics of his property that would justify the request for a variance.

Mr. Leone explained that his septic tank is located on the right side of the home which precludes the addition from going on that side, there is also ledge on the right side of the property; the side yard line angles toward the home and creates the reduced side yard setback on the side that is feasible for the addition.

Mr. Garber commented that the existing deck on the home that will be razed is closer to the side set back than the addition will be.

The voting members for the petition are: Robert Aldenberg, Anne Cote, Craig Hartwell, Jeff Garber and Barbara Piselli.

MOTION: Made by Anne Cote that the Board make a finding that owing to the circumstances relating to the soil conditions, shape or topography of the subject lot specifically, and not other lots in the zoning district in general, a literal enforcement of the zoning bylaws would involve a substantial hardship to the petitioner and those aforementioned circumstances would include: the unique shape of the lot, specifically the ledge located on the property, the side line boundary on the north-west side of the home where the side yard setback is at its shortest point at the location where the addition is most feasible; coupled with the location of the septic system for disposal make building of the structure elsewhere on the property impractical.  Those conditions render the relief requested unique to the property and not congruous with other properties in the zoning district.  Ms. Piselli added that the requested relief may be granted without substantial detriment to the public good and without nullifying or derogating from the intent or purpose of the zoning bylaws.  Motion seconded by Robert Aldenberg.  Vote 5-0 in favor, motion carried.

MOTION: Based on those findings, Mr. Hartwell moved to grant the petitioner’s request for a variance from the side-yard setback requirement to construct an addition to the existing home at 250R Maple Street, Middleton, MA.  Motion seconded by Robert Aldenberg.  Vote 5-0 in favor, motion carried.

173 South Main Street, Map 29, Lot 61A-Revolution Industries Inc.-Special Permit and Site Plan Approval for the use and redevelopment of the property for retail sales of cigars and on-premises sale of beverages & light-food with entertainment -Application #944
Jeff Garber and James Fox are recused from the hearing.

Chairperson Piselli announced the voting members for the petition: Robert Aldenberg, Anne Cote, Craig Hartwell and Barbara Piselli.

Clerk Anne Cote read correspondence from the Middleton Health Agent, Derek Fullerton dated November 7, 2012. (Letter on file)

Chairperson Piselli reminded the Board that the only issue before them was a request for a Special Permit for entertainment.

Attorney Mann appeared on behalf of the applicant.  As a result of concerns brought up at the last meeting and the site walk regarding the interior set up, a small revision has been made blocking access between the retail space and the “bar” space.  The plans were reviewed showing the outdoor space and parking area.

Robert Aldenberg commented that the capacity shown on the plan is 49 and that the architect did not stamp the plan.

In regard to a larger fenced outdoor area than previously presented, Ms. Piselli asked what would prevent outdoor parties.  She also asked what the petitioner would be willing to do in terms of beautification of the premises.

Attorney Mann replied that there will be only two tables and eight seats with no outside entertainment.  Regarding the exterior improvements she explained that the options were limited as the applicant is a tenant of the property; he is not under a long-term lease.  He maintains the property and keeps it from falling into disrepair.  In response to a comment made by Mr. Aldenberg regarding the requirement that the petitioner is required to go before the ICDRC, Attorney Mann explained that the Board had determined that they were not required to go before the ICDRC at the last hearing because there are no changes proposed to the exterior of the building.  A new septic system is required for the new use at the property.  The business will be open for retail from 9:00 am to 11:00 pm and the “bar” with entertainment will be open from 12:00 pm to 12:00 am, seven days per week.  There will be no changes to the existing exterior lighting.

Jeff Garber abutter to the property requested the fence not go all the way back to the Fuller Pond property.

Attorney Mann pointed out the fenced area on the plan which is approximately 150’ from Fuller Pond.

Chairperson Piselli called for a motion.

MOTION: Made by Craig Hartwell that the Board issue the following findings: The Proposed Use is consonant with the neighborhood character and with other properties within the Business District; there are at least four (4) other establishments that offer entertainment along with the service of food and alcohol within 1,000 feet of the Property.  The proposed expansion will create more jobs which will stimulate the local economy and have a positive fiscal impact on the Town.  There is no evidence to suggest any adverse impact on the natural environment and in fact, there will be a benefit due to the replacement of the currently non-conforming cesspool with a Title 5 compliant septic system.  The Site Plan allows for safe circulation for vehicles and pedestrians accessing the site and shows 24 parking spaces for the exclusive use of Petitioner, which is adequate parking for the Proposed Use.  The Proposed Use will not be more detrimental to the neighborhood, which is located in the Business District, than the existing retail use or any of the neighboring uses and (2) that the Town of Middleton will receive a net benefit from allowing the Petitioner to expand its current business to include the Proposed Use.  Motion seconded by Anne Cote.  Vote: 4-0 in favor, motion carried.

In response to a question from Mr. Aldenberg on the previously approved project for the property, Ms. Piselli explained that Attorney Mann informed that Board at the last meeting that because of the permit extension act the previous project that was approved remains valid until 2014 and the property owners can go forward with the project at any time.  The construction of that project requires that the subject building be razed.  Mr. Aldenberg again expressed his displeasure that the petitioners are not going before ICDRC for site plan approvals.

After additional discussion between the Board, the petitioner and the petitioner’s attorney, a compromise was reached to add large planters at the front of the building.

MOTION: Made by Craig Hartwell to issue the Special Permit under Section 9.4 pursuant to 3.1.2 and the Table of Use Regulations – C.14 based on the findings and subject to the following conditions:
  • There will be no outdoor entertainment.  The playing of instruments, speakers and television sets will be located indoors.  The door leading to the deck will remain closed while there is indoor entertainment playing.
  • The backyard will be enclosed with a wooden stockade fence along the rear leased line, as shown on the Site Plan.
  • The Property and Building will be maintained in accordance with the standards required under the Bylaw.  Petitioner shall ensure that the Property is free from litter and debris.
  • Exterior lighting in the rear patio will be turned off when the patio is not in use.
  • No parking in the front of the Building along the South Main Street and the placement of at least five (5) large planters in the front of the Building.
  • Installation of a new Title 5 compliant septic system.
Motion seconded by Anne Cote.  Vote 4-0 in favor, motion carried.

Chairperson Piselli called a five-minute recess; back on record at 8:15 pm.

1 South Main Street, 11 South Main Street, 4 Lake Street & 9 Pleasant Street, Map 25, Lots 74, 122 & 123 and Map 24, Lots 63 & 72A-Town Center and Town Common Committee-Site Plan Approval for Landscape Improvements & Special Permit for Electronic Message Board.  Application #945
Chairperson Piselli announced the voting members: Robert Aldenberg, Craig Hartwell, Anne Cote, James Fox and Barbara Piselli with Jeff Garber as an alternate.

Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

Chairperson Piselli informed the petitioner that it was the Board’s usual practice to schedule site walks for site plan petitions.

Town Administrator Ira Singer appeared on behalf of the Town Center & Town Common Committee and reviewed the proposed project.  The plan erroneously includes referral to parking on a lot that is not owned by the Town, it is not part of the application.  There was a temporary parking area at the front of the library that has been removed and a temporary sign template has been erected on the property to determine the best placement.  The sign will be used as an event sign for the entire community.  The former Lois Lane property that was acquired by the Town will be landscaped and 8 new parking will be added along Pleasant Street.  A sidewalk connection will be added in front of the parking spaces from the existing sidewalk at the front of the library to a sidewalk that goes along the back of the library and two new period lights will be installed.  Mr. Singer reviewed the landscape plantings for the entire property in more detail.  The asphalt walkway at the front of the building will be converted to brick and the existing brick sidewalk will be rebuilt.  The sidewalk along Pleasant Street will be concrete and will tie into the concrete sidewalk at the rear of the building.  A stairway and sidewalk extension will be built for the back entrance of the second floor for safety purposes.  The Planning Board gave a positive recommendation for the project.

Kosta Prentakis added that the new spaces would provide parking for library employees and free up spaces in the main library parking lot.

Mr. Aldenberg asked if the electrical box near the new parking spaces was going to be relocated.

Mr. Singer stated that the relocation would be very expensive; instead protection will be placed around the box.  In response to a question over the sign location as it is shown on the plan, Mr. Singer explained that the sign will be within 15’ to 20’of what is shown.

Ms. Piselli stated that it was hard for her to approve anything in the abstract.  She asked Mr. Singer to speak to the conditions affecting the premises that are different from other similarly situated properties located in the district.

Mr. Singer explained that the sign is important to notify all residents, as well people visiting the Town, about Town events or emergencies.  There are limited options for placement of the sign because of trees and other existing road signs on the property.  The electronic sign can be easily changed to notify everyone of an emergency or other public notice such as water bans.  

Mr. Prentakis added that the sign can be used to advertise events at other locations in Town; commercial entities only use their signs to advertise their own products or events.

The Board did not schedule a site walk for the petition.  The sign will be relocated to the second position and a final determination of placement will be made prior to the next hearing.

MOTION: Made by Craig Hartwell to continue the hearing to the next ZBA meeting scheduled for 12/13/12.  Motions seconded by Robert Aldenberg.  Vote 5-0 in favor, motion carried.

48 South Main Street, King Street & 17 Maple Street, Map 25, Lots 80, 91 & 118-Town Center and Town Common Committee is seeking Site Plan Approval for expansion of existing parking and playground.  Application #946
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

Chairperson Piselli announced the voting members for the petition: Robert Aldenberg, Craig Hartwell, Anne Cote, James Fox, and Barbara Piselli with Jeff Garber as an alternate.

Mr. Singer appeared on behalf of the petitioner.  He reviewed the site plan for the proposed project.  The entire concept plan is shown; however, there are only two parts of the plan for which approval is being sought at this time.  Those improvements include expansion of the parking by 10 spaces at the rear of the existing parking lot and replacement of the playground equipment and code compliant surface of the existing playground.  The replacement equipment is being repurposed from the Howe Manning School which had been removed as part of the school expansion.  There will also be a fenced enclosure around the playground.  Mr. Singer explained that the rest of the plan is concept only at this time; there is no funding for it.

Mr. George DeMerritt of 17 Mt. Vernon Street stated that he and other abutters to the project have questions that relate to the concept plan.  Mr. DeMerritt was happy that the parking was being expanded.  He commented about the large amount of traffic including large trucks that go up King and Mt. Vernon Streets trying to access 114 because GPS devices indicate that the road is open to 114.

Mr. Singer informed the abutters that the Town Center & Town Common Committee will be having additional discussions about the other phases shown on the concept plan and they will be invited.

Betty Hamilton of 16 King Street inquired about the notice listing property on King Street.

Mr. Singer explained that all the property in the concept plan was included in the notification but only Phase I is being presented at this time.

Ms. Piselli expressed concern that the Board’s decision could be misconstrued as a denial of the parts of the project that were not part of Phase I.

Mr. Singer amended the application to reflect only the expansion of the parking and playground improvements.

MOTION: Made by Craig Hartwell to approve the Site Plan dated October 19, 2012, drawn by Marshall Gary LLC entitled “Master Plan Site Plan” for the “Henry Tragert Town Common” in so far as the plan reflects the changes proposed for Phase I to expand the existing parking by ten parking spaces; renovate the children’s play area with a new safety surface and replacement equipment; and to relocate the existing lights to the rear of the parking area as designated on the plan.  Motion seconded by Robert Aldenberg.  Vote 5-0 in favor, motion carried.

Anne Cote left the meeting.

232 South Main Street, Unit H, Map 33, Lot 40-Demoulas Supermarkets, Inc. - Special Permit-indoor recreational use to operate a taekwondo studio in an existing multi-tenant shopping center.  Application #947
The voting members are Barbara Piselli, Craig Hartwell, James Fox, Jeff Garber and Robert Aldenberg.

Acting Clerk Craig Hartwell read the legal notice and confirmed that the abutters had been notified.

Steve Cucinatti, representing the property owner, Demoulas Supermarkets Inc reviewed the petition for a special permit for indoor recreational use.  Approval is being sought for a special permit for a taekwondo studio.  The owner of the studio, Master Kim has over 30 years experience and was a US national team coach.  The space was formerly occupied by Dee’s Leather and has been vacant for quite a while.

The Board did not have any questions for the petitioner.

MOTION: Made by Robert Aldenberg that the Board make a finding that the proposed use will not have adverse effects that outweigh its beneficial impacts to the Town or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site.

In addition, the Board considered the following specific factors listed below in making their determination:

Community needs which are served by the proposal-The facility will satisfy a community need for indoor recreation and fitness, specifically martial arts training and will fill one of many vacant commercial properties in town.

Traffic and pedestrian flow and safety, including parking and loading-There is adequate parking on site for the proposed use and there will be no negative impact on the safety of vehicular and pedestrian traffic as there will be no changes to the traffic pattern or parking from the originally approved site plan of the subject property.

Adequacy of utilities and other public services-The existing utilities are adequate for the proposed use; there will be little, if any, impact on utilities or other public services.

Neighborhood character-The use of the facility will not adversely affect the neighboring properties or owners, nor will it be more substantially detrimental to the neighborhood than the current use.  The proposed use is consonant with the use of the multi-tenant commercial property.

Impacts on the natural environment-The proposed use will not negatively affect the natural environment as there will be no changes to the previously approved site plan of the subject property.  Motion seconded by Craig Hartwell.  Vote 5-0 in favor of the findings, motion carried.
MOTION: Made by Barbara Piselli that based on the findings, the Board grant the requested special permit to operate a Martial Arts Group Training Facility in an existing commercial building in the M-1 Zoning District.  Motion seconded by Robert Aldenberg.  Vote 5-0 in favor of granting the requested special permit, motion carried.

Other Business-

206 South Main Street-Mr. Aldenberg commented that all the landscaping in front of the building had been removed.

Mr. Bienvenue explained that more landscaping was removed than was approved but the petitioner will be coming back with a revised site plan.

Minutes-August 23, 2012, September 27, 2012.
Motion made by Jeff Garber to accept the minutes of August 23, 2012 and September 27, 2012 as written.  Motion seconded by James Fox.  Ms. Piselli and Mr. Hartwell had not read the minutes; the minutes were continued to the next hearing on December 13, 2012.

Craig Hartwell motioned to adjourn.  Motion seconded by Barbara Piselli, meeting adjourned at 9:37 pm.