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Zoning Board of Appeals Minutes 04/25/2013
Zoning Board of Appeals
Middleton, MA
MINUTES OF THE MEETING
April 25, 2013

The Middleton Zoning Board of Appeals met at a regularly scheduled meeting
on April 25, 2013 at the Fuller Meadow School,
143 South Main Street, Middleton, Massachusetts at 7:00 PM.

The following board members were in attendance:
Acting Chairperson, Craig Hartwell, Clerk, Anne Cote (arrived late), and members, Jeff Garber and Robert Aldenberg

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

Acting Chairperson, Craig Hartwell called the meeting to order at 7:15 p.m.

230 So. Main Street, Map 29, Lot 188C-Kearsage Middleton LLC-Special Permit & Site Plan Approval
(continued from 2/28/13 & 3/28/13)
Acting Chair Hartwell stated that a request for continuance had been submitted and read the continuance request dated 4/23/2013 into record. (Letter on file.)

MOTION: Made by Robert Aldenberg to continue the hearing to the May 23, 2013 meeting.  Motion seconded by Jeff Garber.  Vote 3-0 in favor, motion carried.


30 Lake Street, Map 24, Lot 37-Site Plan Modification-Town of Danvers
(Continued from 3/28/13)
Acting Chair Hartwell stated that a request for continuance had been submitted and read the continuance request dated 4/18/2013 into record. (Letter on file.)

MOTION: Made by Robert Aldenberg to continue the hearing to the May 23, 2013 meeting.  Motion seconded by Jeff Garber.  Vote 3-0 in favor, motion carried.

51 Village Road, Map 21, Lot 4-Back Bay Signs for Chandler Signs-Special Permit
Acting Clerk Jeff Garber read the legal notice and confirmed that the abutters had been notified.

Acting Chair Hartwell informed the petitioner that the Board would not be able to vote on the petition with only three members present.  He gave the petitioner the option of waiting for another member to arrive or to continue the hearing to the next meeting.

Jason Parillo representative for the petitioner agreed to continue the hearing to the next ZBA meeting.

Mr. Hartwell proposed that the members do a drive-by site visit before the next meeting to view the location of the proposed sign.

An unidentified abutter to the property suggested that the Board view the property in the evening to see the effect the new sign might have with all the illuminations that are currently on site.

Mr. Hartwell also suggested that the petitioner meet with the abutters in the hall to answer any questions they may have.  If there are further concerns the abutters can voice them at the next hearing.

MOTION: Made by Jeff Garber that the Board do an informal site visit in the evening to observe the lighting conditions on the property.  Motion seconded by Robert Aldenberg.  Vote 3-0 in favor, motion carried.

MOTION: Made by Robert Aldenberg to continue the hearing to the May 23, 2013 meeting.  Motion seconded by Jeff Garber.  Vote 3-0 in favor, motion carried.

7 River Street, Map 33, Lot 31C-7 River Street LLC-Special Permit
Acting Clerk Jeff Garber read the legal notice and confirmed that the abutters had been notified.

Acting Chair Hartwell informed the petitioner that the Board would not be able to vote on the petition with only three members present.  He gave the petitioner the option of waiting for another member to arrive or to continue the hearing to the next meeting.

The petitioner Warren Kelly agreed to table the petition until another member of the Board arrived.

244 Maple Street, Map 19, Lot 147-Torre Street Realty LLC-Site Plan Approval
Acting Clerk Jeff Garber read the legal notice and confirmed that the abutters had been notified.  The following correspondence was read into record: Planning Board letter dated 4/25/2013 and ICDRC letter dated 4/25/2013.

Mr. Aldenberg announced that he was running for Planning Board and if elected would be resigning from ZBA.  If any petitions are continued from tonight’s meeting he would not be at the next hearings.

Attorney Mann suggested the Board have a special meeting prior to May 20, 2013.  The other members not present will have to review the meeting recording and minutes and sign an affidavit.

Attorney Mann appeared on behalf of the petitioner.  Also present were site engineer Chris Sparages, traffic engineer Jason Sobel, developer Bob Zeraschi, and owner/operator Sarah Blumenstock-Girrell.  Daycares are allowed in any district in Town; the property is located in the residential district.  .  There is currently a two-story building and an accessory garage that are in poor condition.  The property does share a common lot line with the business district and there are other businesses across the street.  The existing structures will be razed and a new single-story brick and masonry structure will be constructed.  The building will be centrally located on the lot with parking for 47 vehicles at the front for high visibility.  One driveway for access and egress is located to the far right of the lot.  The facility will operate Monday through Friday from 7:00 am – 6:00 pm.  There will be eight classrooms, each has a door to the outside play areas which will be fenced and gated.  The original plan called for seven outside lights but because the area is already so heavily lighted, only three decorative lights are needed.  In addition, there will be a carved up-lit sign.  The lot meets all setback and dimensional requirements.  There is the ability to have a total of 128 students at the facility.

Mr. Aldenberg argued that the plan is specifically marked “school”; “for-profit schools” are not allowed in the residential zoning district.  Because of the way the plans are marked he felt that if the current developer is not successful, a subsequent owner could try to open a for-profit school.

Attorney Mann explained that childcare is allowed in the district and agreed that it was a little misleading and agreed to revise the plans to delineate that it is a childcare facility.

Mr. Hartwell stated that the Board could just incorporate the designation as a childcare facility in the decision.

Attorney Mann stated that in addition to the ground sign there will also be a wall sign.  The abutters had expressed concern over the rear buffer at a previous meeting; that buffer will be maintained.  Green screening along the side lot line is also proposed.

Direct abutter to the property Betsey Hardwick explained that she had happened upon a Conservation Commission meeting for the project that she thought had not been decided yet.  She stated her opposition to the daycare center being located in the area.  There is already a daycare located directly across from Farmer Browns.  She felt that an additional daycare in the area could be a detriment to the existing business.  Ms. Hardwick expressed concern that if the proposed use was not successful, the building could not be turned back into a residential home based on the commercial nature of the structure.  She felt that there would be a negative impact on her property value.  The biggest concern is the traffic; Dunkin Donuts which is directly across the street creates a major traffic headache every morning.  It sometimes takes 10-15 minutes to get out of her driveway.  The area is already heavily congested and with the completion of the vocational school down the street the volume of the traffic will double.  She suggested that Rte 114 is a better area for the daycare center.  Ms. Hardwick also stated that she might not be so opposed to the project if it were a colonial style structure.

Jason Sobel of Design Consultants Inc. reviewed the traffic study presented as part of the application.  Traffic counts were done and determined that peak hours were between 7:30 am – 8:30 am and between 4:00 pm – 4:45 pm.  Crash data was also reviewed for the area and it was found that accidents were below both state and district averages.  Traffic was projected five years into the future and was estimated to increase approximately one percent.  The proposed facility trip generations is estimated to be 100 trips, 50 in and 50 out during peak hours.  Traffic does back up past the proposed driveway but clears after each light cycle.

Ms. Hardwick questioned the timing of the traffic study and whether the new vocational school was taken into account for the future calculations.

Mr. Sobel replied that the traffic study was done on March 27, 2013 and the school was considered as part of the 1% growth.

Mr. Hartwell asked the petitioner to stake the driveway so that the Board members could see the location of the driveway.

Attorney Mann agreed to stake the driveway and the front and back of the building by Wednesday.  In response to the comment about the property being used for a commercial use, Attorney Mann explained that there is no right to conversion.

Ms. Hardwick commented that a rezoning of this area has been attempted in the past.

Abutter Steve Hardwick reiterated the problems with the large volume of traffic now and also expressed concern that the sign would block his sight distance.  He felt that the proposed facility would be a detriment to the neighborhood.

Attorney Mann pointed out the location of the sign on the plan and stated that the concern of competition is not one that is subject to site plan approval.

Linda Hassabis owner of the local daycare, Magical Beginnings, stated that the only concern she had was the need for more daycare.  She explained that she had taken over the former Care for Tots and has found that there is not a great need for daycare in the Town of Middleton.  She owns two other locations in Peabody and Wakefield and each has a 1.5 year waiting list.  There are already two other franchises on each end of Rte 114 that can’t fill their capacity.

Mr. Aldenberg commented that in his experience, daycare facilities have a drop off of children that spans 3-4 hours.

Mr. Garber questioned the intent of the bylaw with regard to allowing daycares in residential zones.  He also asked if a commercial building can be built in a residential zone.

Building Commissioner could not answer to the intent of the bylaw.  The building is a commercial building but could be built and used as a residence.

Mr. Aldenberg added that Chapter 40A, Section 3 specifically addresses one issue, daycare centers are allowed in residential districts; it is not the building, it is the use of the building.  The construction of the building has no bearing on this.

Anne Cote arrived.  Acting Chair Hartwell informed her that a special meeting was set for May 9, 2013 at the request of the petitioner.  She confirmed that she would review the minutes and the video recording for the special meeting.

Acting Chair Hartwell directed the Board to drive by the site after the stakes are placed, sometime prior to the next meeting

MOTION: Made by Robert Aldenberg to continue the hearing to a specially scheduled meeting to be held on May 9, 2013 at 7:00 pm.  Motion seconded by Jeff Garber.  Vote 4-0 in favor, motion carried.


Acting Chairperson Hartwell called a recess; back on record at 8:22 pm.

7 River Street, Map 33, Lot 31C-7 River Street LLC-Special Permit
In response to a question from Mr. Kelly regarding the Board’s vote, Mr. Hartwell explained that the matter could be continued to the next meeting for a full Board or he would entertain doing a straw polling of the Board prior to a vote.  Mr. Kelly agreed to go forward with the four-member Board.

Warren Kelly presented his petition for a special permit to allow placement of a second wall sign on the side of the building at 7 River Street.  The proposed sign is an upscale 24” raised channel letter design, navy blue in color.  The sign will serve as a directional sign for Rte 114 traffic.  Special permits have been granted to other businesses in town for additional wall signs such as CVS, McDonalds and Dunkin Donuts.  There are three different businesses at the subject property.  Mr. Kelly reviewed the criteria for the requested special permit.

Tom Hood of the ICDRC felt the sign improved the look of the building.

Mr. Hartwell, Mr. Aldenberg and Mr. Garber all felt the sign looked good.  Mr. Hartwell reviewed the criteria for the special permit in accordance 5.2.11.2.f.  After some additional discussion the following action was taken.

MOTION: Made by Craig Hartwell that the Board makes a finding that the proposal 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-Increasing advertising for a local business.  Traffic and pedestrian flow and safety, including parking and loading-There will be no effect on the traffic and pedestrian flow.  Adequacy of utilities and other public services-There will be no effect on utilities or other public services.  Neighborhood character-The sign will improve the neighborhood character as it will enhance the appearance of the building.  Impacts on the natural environment-There will be no impact on the natural environment.

Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

MOTION: Made by Craig Hartwell that based on the findings the Board grants the requested special permit to allow installation of a second wall sign on the Rte 114 side of the Baert Marine facility as shown on the photographic representation submitted as part of the application package with the condition that the sign not be lighted past 10:00 pm.

Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

Acting Chair Hartwell called a recess, back on record 8:50 pm.

Acting Chair Hartwell called for a motion to amend the 7 River Street approval.

MOTION: Made by Craig Hartwell that the Board adopt the Site Plan dated August 11, 2006 as amended on April 25, 2013 illustrating the sign location; amended Site Plan signed by Mr. Kelly.
Motion seconded by Robert Aldenberg.  Vote 4-0 in favor of adopting the amended Site Plan, motion carried.

122-130 South Main Street, Map 29, Lot 188B-Richardson’s Farms Inc.-Site Plan Approval
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

The following letters were read into the record:  Planning Board letter dated 4/25/2013 and ICDRC undated letter.  (Letters on file.)

Attorney Jill Mann appeared on behalf of the petitioner.  Dave Daniels and Ned Bolth of Richardson Farms Inc., Dan Markey, who would be operator of the business and Attorney Philip Riley, were also present.

The parcel is currently vacant land and is part of a larger typically taxed parcel along Rte 114.  The proposed funeral home meets all set back and dimensional requirements in the M-1 zoning district.  The intent behind the architectural design of the 3,780 sq ft building is to maintain a farmhouse aesthetic.  The building will house two 1,200 sq ft chapels.  The parking will be located at the rear of the building.  A large oak tree will be maintained through the creation of a well in the center of the parking.  The site is entered through a single driveway with parking at the rear.  Access to the building is gained through the rear of the building.  In addition to the 54 parking spaces provided there is also the ability to use the adjacent parcel for parking as well as parking at the other Richardson’s property retail establishment through valet parking.  In the event that there are large services a detail will be hired.  Attorney Mann agreed to continue with a four member board.

Tom Hood commented that the proposed design was one of the better designs presented to the ICDRC.  He reviewed some small changes requested by the ICDRC which were incorporated in the revised plans.

Anne Cote stated that she had heard some people voicing concerns over traffic exiting left from the property.

Attorney Mann explained that large funeral processions would not turn left from the property.

Mr. Aldenberg commented that all the other businesses along Rte 114 are allowed to turn left and right.  He did not feel that there should be a restriction preventing the traffic from turning left from this business.

Mr. Hartwell agreed with Mr. Aldenberg and suggested a detail officer would be warranted in the event of a large procession but did not want to make a police detail a formal condition as he felt there would not be an issue based on the use of the property.

Mr. Mackey stated that a procession with more than 10 private vehicles is considered large.  Usually when there is a large funeral the police step up and a formal detail is not necessary because there is police presence.

MOTION: Made by Craig Hartwell that the Board make a finding that the development of the Property as a Funeral Home pursuant to the Plans is the most advantageous use of the Property and incorporates design, landscaping, and traffic management techniques and parking alternatives to protect the legitimate interests of adjoining property owners.  Motion seconded by Robert Aldenberg.  Voted 4-0 in favor, motion carried.

MOTION: Made by Craig Hartwell that based on the foregoing, the Board grants the petitioner’s request for Site Plan Approval under Section 9.5 of the Bylaw.  Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

206 South Main Street-Elite Sports & Fitness/206 South Main Street LLC-Special Permit & Site Plan Modifications
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

The following letters were read into the record:  Planning Board letter dated 4/25/2013 and ICDRC undated letter.  (Letters on file.)

Attorney Jill Man appeared on behalf of the petitioners, Matt Foley principal of Elite Fitness and Mick Lafata property owner.  She reviewed the proposal to locate an indoor recreational facility in a portion of the existing building.  The only change will be the installation of two pedestrian doors.  The space is over 70’ feet long and requires an emergency exit.

Mr. Aldenberg commented that another corridor for an emergency exit should have been provided.

Mr. Bienvenue stated that the doors are 150’ from each other.

Mr. Foley explained that the business is not a gym; the use is for private training classes.

Attorney Mann stated that 17 parking spaces are provided.

Mr. Aldenberg questioned when the site work would be complete.

Attorney Mann explained the circumstances of the site conditions and stated that the site work would be done prior to June and that she would be back with a plan for the portico.

In response to a question about business experience from Ms. Cote, Mr. Foley explained that he has been in the business for 25 years and had a recent separation of partnership.

MOTION Made by Craig Hartwell to issue the following findings: It is 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.  By permitting the Site Changes, the Owner is able to allow Elite Sports & Fitness to open a new business in the Town.  The Site Changes are a continuation of the Owner’s plan to revitalize the area and 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 to the Town. In addition to the direct economic benefit to the Town, this new business will create more jobs within the community.  The Property is located approximately ¼ mile to the west of Extra Innings and Fitness Together and approximately 500 feet to the east of the Richardson’s batting cages and miniature golf course.  Therefore, the use of the Unit by Elite Sports & Fitness as indoor recreational facility will blend in with the character of the area and will be consonant with the surrounding neighborhood properties.  The traffic circulation throughout the parking lot has been designed to ensure safe pedestrian and vehicular travel within the property and for traffic entering and exiting the property.  There is sufficient parking available at the property that satisfies the parking requirements under Section 5.1.2 of the Bylaw and to accommodate the needs of the Facility as well as the other three (3) tenants.  Motion seconded by Robert Aldenberg.  Voted 4-0 in favor, motion carried.

MOTION: Made by Craig Hartwell that based on the findings, the Board issue the Special Permit under Section 9.4 pursuant to Section 3.1.2 and the Table of Use Regulations to allow the use of the Unit as an indoor recreational facility based upon the information presented in the application, the testimony presented during the hearing, the aforementioned findings and the recommendations from the Planning Board and IDRC.  Motion seconded by Robert Aldenberg provided that no occupancy permit for the Unit shall be issued by the Building Department until the Owner substantially completes the landscaping as shown on the previously landscape plans, approved in February 2013, as updated by the Modified Site Plan.  Vote 4-0 in favor, motion carried.

MOTION: Made by Craig Hartwell to grant petitioner’s request to modify the existing Site Plan as presented to approve the changes to the building.  Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

MOTION: Made by Robert Aldenberg to adjourn.  Meeting adjourned at 9:35 pm.