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Zoning Board of Appeals Minutes 02/28/2013
Zoning Board of Appeals
Middleton, MA
February 28, 2013

The Middleton Zoning Board of Appeals met at a regularly scheduled meeting
on February 28, 2013 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 and James Fox

Others present:
Town Counsel, Thomas Fallon, Building Commissioner, Richard Bienvenue,
and Recording Secretary, Karen Matsubara

Chairperson, Barbara Piselli called the meeting to order at 7:05 pm and announced the agenda order.

206 South Main Street, Map 26, Lot 3-Regal Fabrics Inc. & 206 South Main Street LLC-
Two (2) Special Permits and Site Plan Modification
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.  A letter of recommendation from the Planning Board dated February 28, 2013 was read into the record (letter on file.)

Attorney Jill Mann appeared on behalf of the applicant.  She explained that the petitioner had received approval from the Board back in October for a Site Plan and Special Permits for the two tenants at the subject property with the condition that the petitioner returns to the board when necessary for new tenants.  Regal Fabrics is proposing to use a 4,500 sq ft portion of the building as a storage and distribution center.  Sav-a-tree had determined that some trees that were on the original plan were diseased and removed them from the property, a letter to that effect dated February 25, 2013 was submitted to the Board (letter on file.)  A new landscape plan was reviewed by the ICDRC and changes were made based on their comments Attorney Mann submitted the new plan to the Board.

Regal Fabrics has been a business in Town for approximately 30 years.  They continue to grow and needed additional space for storage and distribution.  Additional parking is not needed for the use because employees do not work at the facility, they are only on-site as needed to load or unload stock.  Only box trucks will be used at the facility as there is not sufficient room for use of tractor trailers.

Tom Hood of the ICDRC reviewed the landscape proposal.  A couple of the members were upset that a couple of the trees from the original plan were taken down.  The ICDRC felt that revised plan was a better plan.

Attorney Mann reviewed the changes in green space from the original plan.

Mr. Fox expressed his concern that a letter from the arborist was submitted after the fact.

Mick LaFata principal of the property explained when the lines were going in for the sprinkler system it was discovered that the trees were diseased and they were taken down along with the trees that were already scheduled to be removed.  In response to a question from Ms. Piselli, Mr. LaFata explained that the opening for the overhead door was cut in but it was boarded up.  He explained that he didn’t realize that the door was tied into the site plan and thought just a building permit was required.

Mr. Hartwell questioned why there were three overhead doors on the plan when the request is for one overhead door and one pedestrian door.

Attorney Mann explained that the doors were shown on the plan for a couple of interested parties to show that the ability to put in the doors existed.

Mr. Hartwell commented that the petitioner would need to come back to the board when the other spaces are leased and that would be an appropriate time to add in the additional doors.

Chairperson Piselli asked for additional comments or questions, hearing none she called for a motion.

MOTION: Made by Craig Hartwell that the Board make the following findings:

  • The site changes and the proposed use shall satisfy a community need.  The current building has been substantially vacant for years and it will be beneficial to the Town to have the owner alter and redesign the property and to continue to improve the appearance and functionality of the building as shown on the plans.  Additionally it is important to allow the business Regal Fabrics, an existing Middleton business, to expand within the Town in order to accommodate its growing business needs.
  • The proposed use is consonant with the neighborhood character.  The property is zoned for light industrial and manufacturing and directly abuts other properties that house storage and distribution centers.  Accordingly, the type of vehicles accessing the facility and the level of operation of the unit will be consonant with the surrounding neighborhood properties and the existing uses of the building at this time.
  • The site changes will result in a beneficial impact on the natural environment and the neighborhood.  The property owner’s proposed modification to the existing site plan and the accompanying alteration and redesign of the building and property is a continuation of his plan to revitalize the area and building and will result in the replacement of the façade and new state of the art systems within the building.  The updated building systems will use energy-saving equipment in compliance with the current building code.
  • The site changes proposed will have a positive economic and fiscal impact.  The changes will improve the appearance and utility of the building.  By creating more desirable space, the assessed value of the property will increase and, therefore, there will be a corresponding rise in tax revenue for the Town.
Motion seconded by Anne Cote.  Vote unanimously in favor, motion carried.

MOTION: Made by Craig Hartwell that based on the findings, the Board approves a special permit pursuant to Section 3.1.2 and the Table of Use Regulations D. 6-Wholesale, Warehouse, Distribution or Storage Facility.  Motion seconded by Anne Cote.  Vote unanimously in favor, motion carried.

MOTION: Made by Craig Hartwell that based on the findings the Board approves a special permit pursuant to Section 3.3.3 to allow changes to the legally-existing, nonconforming building.  Motion seconded by Anne Cote.  Vote unanimously in favor, motion carried.

MOTION: Made by Craig Hartwell to amend the special permit pursuant to Section 3.3.3 whereby the number of proposed doors approved is one (1) 14’ overhead door and one (1) entry door at the northeast end of the proposed Regal Fabrics space.  Motion seconded by Anne Cote.  Vote unanimously in favor, motion carried.

MOTION: Made by Craig Hartwell to approve the proposed site plan modifications for 206 South Main Street, Middleton, MA; plan dated February 26, 2013 with amendments based on the conditions of the approved special permits.  The petitioner’s representative will provide revised plans showing the changes approved by the Board.  Motion seconded by Anne Cote.  Vote unanimously in favor, motion carried.

295 North Main Street, Map 9, Lot 64-Attorney Alan L. Grenier-Appeal of Building Commissioner’s Decision-Denial of Occupancy Permit
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.  Ms. Cote also read into record the letter dated January 31, 2013 from the Building Commissioner (letter on file.)

Attorney Grenier appeared on behalf of the property owner.  He provided a handout to the Board in support of the appeal.

Chairperson Piselli commented that it would have been helpful for the Board members to have received the information in advance of the meeting.

Attorney Grenier replied that the handout had just been prepared earlier in the day.  He stated that the property is a legally valid four-unit garage.  He reviewed the various exhibits supplied in the handout.  The property has been in the same family since 1932.  The use of the property as an auto repair business started in 1947 by John Muzichuk and continued until his death in 1979.  Muzichuk’s Garage Inc. who is the current owner of the property filed corporate documents 1959.  When John Muzichuk Sr. died, John Muzichuk Jr. took over the operation of the garage.  In addition to repairs, a towing business and state inspection station has been operated at the property.  The use of the property has continued as a repair facility over time.  Attorney Grenier reviewed other repair businesses that have leased space in the building over the years, specific dates are provided in the materials presented.  A Class III Junkyard License has been in good standing for the property for as long as anyone can remember.  A Class II Auto Sales License was also held at one time for the property.  He concluded that the basic use of the subject property has been general automotive repair from the time of WWII and operated by three generations of the Muzichuk family.  Attorney Grenier reviewed the documents that are located in the property file at the Building Department.

Town Counsel, Attorney Fallon stated that Attorney Grenier had sent him a letter in which it was stated that copies of the records from the Building Inspector’s files and records from the Muzichuk garage dating back to the 1940s to substantiate the claim that the use has been in existence since the 1940s.  Attorney Fallon stated that the earliest record provided in the package provided to him only dates back to 1969.

Attorney Grenier asked to be allowed to finish his presentation.  The earlier records are contained within the package presented this evening.

James Fox commented that he had looked at all the documents provided and did not see anything that referred to automotive repair.

Attorney Fallon argued that new evidence should not be presented at the hearing of the appeal that the Building Commissioner was not able to consider first.

Attorney Grenier retorted that some of the evidence being presented was just recently found.

Chairperson Piselli stated that it would be helpful to the Board if Attorney Grenier could focus his argument and present the evidence that first establishes the use of the property for auto repair prior to zoning.

Attorney Grenier continued his presentation.  Attorney Fallon asked that Attorney Grenier find the evidence that the use was in existence from the spring of 1954 to the present in order to establish the pre-existing nonconforming use

After some additional discussion as to what evidence the Board is looking for specifically, Attorney Fallon recommended that the Board continue the hearing to the next ZBA meeting to allow time to find the requested evidence.  Attorney Fallon also asked that Attorney Grenier present whatever evidence he finds to the Building Commissioner and that no new evidence be presented at the hearing.

Chairperson Piselli asked that the documents be filed at least one week prior to the meeting to give the Board an opportunity to review them prior to the hearing.

Mr. Hartwell asked that the documents focus on the 1954 time frame.

The hearing was continued, with the consent of the applicant, to the March 28, 2013 meeting.

Chairperson Piselli called a recess at 8:24 pm, back on record at 8:35 pm.

230R South Main Street, Map 29, Lot 188C-Kearsage Middleton LLC-Special Permit & Site Plan Approval
Chairperson Piselli announced that the hearing was being opened and that the only members available to hear the petition this evening were Craig Hartwell, Anne Cote and herself.  Mr. Fox was identified as an abutter to the property.

Anne Cote read the legal notice and confirmed that the abutters had been notified.  Correspondence received for the petition will not be read into the record this evening.
Attorney Mann appeared on behalf of the petition, she confirmed that she had received copies of the correspondence.  She recognized that due to the attendance of the Board members a quorum requirement is not satisfied.  She asked that a site walk be set and that the members that have a possible conflict due to the fact that they are abutters seek approval from the Board of Selectmen to allow them to hear this matter.

A site walk was set for March 23, 2013 at 10:30 am.

The hearing was continued, with the consent of the applicant, to the March 28, 2013 meeting.

Sharpner’s Pond Road, Map 9, Lots 24 & 36-Hawkeye, LLC-Request for extension of Special Permit-Temporary Contractor’s Yard
Chairperson Piselli explained that the applicant submitted a request to extend the Special Permit for an additional 30 days to allow time to remove all equipment from the site.  The project has been completed but because of the storms they are behind schedule.

MOTION: Made by Mr. Hartwell to grant a 60-day extension to Hawkeye LLC for the Temporary Contractor’s Yard.  Motion seconded by Anne Cote.  Vote 4-0 in favor, motion carried.

Minutes-November 15, 2012 & December 13, 2012

MOTION Made by James Fox to approve the minutes of November 15, 2012 as written.  Motion seconded by Anne Cote.  Vote all in favor, motion carried.

MOTION: Made by Craig Hartwell to approve the minutes of December 13, 2012 as written.  Motion seconded by Anne Cote.  Vote all in favor, motion carried.

Craig Hartwell motioned to adjourn, meeting adjourned at 8:47 pm.