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Meeting Minutes

June 21, 2007

PRESENT: Albert Bangert, Chairman, Brian Sullivan, Sara Trezise, Peter Morin and Edward Tibbetts.

MEETING CALLED TO ORDER:

Meeting was called to order at 6:35 PM

First Application: Robert Paine of 439 Tilden Road requests M.G.L. c 40A, Sec 6 special permit/finding to raze and reconstruct a pre-existing non-conforming single-family dwelling.

Richard Paine, Robert Paine’s brother represented the applicant.

Mr. Paine stated his brother had two houses on the property. They were proposing to raze one home and build a new home in the same footprint.

Albert Bangert- the current building was 23-feet back from the street and the lot currently had two dwellings located on it. Both houses were built sometime around 1941.

Peter Morin- asked about the date of the zoning bylaw. He referred to the zoning in 1936, which talked about single-family dwellings.

Albert Bangert- the 1953 zoning was what established lot size and setbacks.

Peter Morin- asked about the existence of the two dwellings. He had concerns with two dwellings remaining on the property.

Richard Paine- the second dwelling was used as a rental property.

Brian Sullivan- the house would be grandfathered as of 1953, when the bylaw changed. He felt the front setback might not be non-conforming.

Sullivan moved to grant the requested relief, seconded by Trezise.

Edward Tibbetts asked Neil Duggan how many homes in Scituate had two dwellings on one lot.

Neil Duggan- felt it was well over a hundred.

Peter Morin- suggested the Board consider a condition on the permit that the second dwelling not be rebuilt.

B. Sullivan- felt this would unduly punish the property owner.

N. Duggan- asked what the intent of the Board was. He would like to see plans to determine if the proposed would be a substantial improvement. He also had concerns with height.

Richard Paine- it would be a two-story cape with dormers in front and in the rear. The roof height would not be over 22-feet.

Neil Duggan- did not want the building to exceed two stories.

Edward Tibbetts- the Board was not an architectural review board but felt because of the relief sought they should be inclined to set conditions.

Sara Trezise- asked Richard Paine if he was comfortable making these agreements in his brother’s absence.

Richard Paine- said he was comfortable with it.

The Board withdrew the earlier motion.

Sullivan moved to grant the special permit and that the dwelling could not be larger than 26’ x 40’ and not to exceed two stories per the submitted plans by Flaherty & Stefani, seconded by Trezise, all in favor, unanimous.

Second Application: Stephen R. Pritchard and Karen L. Pritchard of 9 Trysting Place, Scituate request a finding pursuant to M.G.L. c. 40A, sec. 6 and special permit to allow the reconstruction of the pre-existing nonconforming single family dwelling located at 98 Crescent Avenue.

Attorney Michael Hayes represented the applicant.

Brian Sullivan recused himself due to a professional conflict.

Peter Morin would vote in Mr. Sullivan’s absence.

Rick Grady from Grady Consultant was present. The applicant was also present.

Attorney Hayes- the Pritchard’s were currently the contracted purchasers. The dwelling was built in 1950 and the lot contained 13,620 square feet but the lot only had 80 feet of frontage. The proposed would meet rear and side setbacks. The front porch would maintain the 19.2’ setback. The staircase coming down would be closer to the property line but it would not have a roof over it. Town sewer will service the new dwelling.

Rick Grady- the existing house setback was 19.2’ that was shown on the plan (see file). The existing drive loops down the side to the rear of the dwelling, which leads to a garage. The proposed house would have an attached garage and they will eliminate the driveway to the rear of the dwelling. The existing pool and patio will be removed and they were proposing a roofed structure where the pool is currently located.

Peter Morin- asked if he was proposing to maintain the front setback. He wanted to know why they were not making it conform.

R. Grady- they could move it back but it would require more fill and may affect the wetlands in the back.

P. Morin- asked about the conservation buffer zone. Mr. Morin had concerns with the house to the north. The houses were close together and he felt if they moved it back they may interferer with that neighbors view.

Edward Tibbetts- because of the street layout and 30’ setback there would not be an issue for cars. The greater issue he felt was with conservation because the building was close to the water.

R. Grady- explained that the buffer zone clips the back of the property. They have filed with the Conservation Commission for a hearing.

N. Duggan- asked who mapped out their plan with regard to the Federal Flood Zone.

R. Grady- clarified that they were not in the flood zone. He was confident with his mapping.

Sara Trezise liked the design of the proposed.

Albert Bangert- asked about the height.

R. Grady- stated it would be 26’ in height.

Attorney Hayes went through the Powers Test. He stated he would write the draft decision.

Trezise moved to grant the relief requested and that it would not be more substantially detrimental to the neighborhood, seconded by Morin, all in favor, unanimous.

Third Application: Eliot C. Beal of 255 Thomas Clapp Road, Scituate appeals the decisions of the Building Commissioner to deny his request to issue a cease and desist order to the Conservation Commission and others as they are engaged in an exempt agricultural use at he Appleton Fields off Clapp Road.

Eliot C. Beal submitted a letter requesting a continuance (see file).

Mr. Beal- explained he was working with the Conservation Commission to resolve the issue.

N. Duggan- in his 14-years working for the Town, he has never asked The Board to deny someone a continuance but he felt in this circumstance the applicant’s reason was not justified.

Albert Bangert- they had all the information they would need and wanted to proceed.

Peter Morin- the Board could not give him the relief he was requesting.

Morin moved to deny the request for the continuance, seconded by Sullivan, all in favor, unanimous.

Eliot Beal- explained he was the owner of the property located at 253 Clapp Road, which consisted of 14.5 acres. Mr. Beal also stated that his family owned an additional 50 acres in the West End. He was in front of the Board on behalf of his family but did not have documentation with him. Mr. Beal stated he would be able to obtain power of attorney if he had too. He said the property had been farmed in the past but not used to raise animals.

Brian Sullivan- asked if the field abuts his property.

E. Beal- on the north and the entire east side. The whole driveway to the Appleton Fields was partly on his property.

Albert Bangert- under Section 440.1 (I) of the zoning bylaw, the use of a piggery is not an allowed use, however under MGL, c.40A, which overrides the local bylaws, piggeries are a protected agricultural use. He felt the Board had no jurisdiction over the protected agricultural use at this property. In addition, the Supreme Judicial Court has ruled that piggeries are exempt from local zoning regulation. Any decision rendered by the Board upholding Mr. Beal’s position would be illegal

Peter Morin- expressed sympathy for the applicant but the Board could not grant the relief requested. He suggested the applicant pursue different avenues.

E. Beal- stated he was appalled that the Town would allow a piggery in one of its neighborhoods. Mr. Beal said he understood even though his Counsel did not agree with the Board. The bylaw mentioned kennels; he asked if the Board would interpret this as a similar use.

Neil Duggan- stated he has denied commercial kennel’s in the past and was upheld by the Board.

Edward Tibbetts- felt the applicant was following the proper course of action.

Trezise moved to uphold the decision of the Building Commissioner/ZEO to deny the request to issue a cease and desist order to the Conservation Commission, seconded by Sullivan, all in favor, unanimous.

Fourth Application: Continued from April 19, 2007: John E. and Patricia A. Conway, Trustees of JPC/Scituate Realty Trust of 137 Washington Street, Norwell requests M.G.L. c. 40A, sec. finding/special permit and Zoning Bylaw section 810 finding/special permit that the reliance upon and use of Cole Parkway for tenant, staff and customer parking predates the Zoning Bylaw requirement for on-site parking and also section 820 finding that the razing and reconstruction and use of 80 Front Street and that the continuation of the use of Cole Parkway for tenant, staff and customer parking will not be substantially more detrimental to the neighborhood than the existing structure and use at 80 Front Street (Lot 50-7-18-0 building two of four).

Attorney Walter Sullivan from Sullivan & Sullivan represented the applicant.

Jack Conway was present.

Paul Mirabito from Ross Engineering and Todd Carson from Donald L Company were also present.

Walter Sullivan- addressed the architectural aspects recently reviewed by the Planning Board. Mr. Conway has owned the building since 1968. Mr. Sullivan addressed an anonymous letter that was posted around Town. He felt it was an effort by someone to keep Scituate Harbor the way it is with no changes. The building was old and tired and in need of repair. Also, the building is four feet below the FIRM elevation in the Federal Flood Plain. The proposed structure would conform to the bylaws with respect to mass, height and setbacks. Thirteen to fifteen hours had been spent with the Design Review Committee and the current drawings reflect their comments.

Albert Bangert- clarified that the request for a finding was that the building predates the onsite parking and a finding of section 820 that razing and reconstruction and use of the parkway would not be detrimental to the neighborhood.

Brian Sullivan- asked when the parking requirements were put into place.

Walter Sullivan- the parking requirements went into effect in 1989 but included an exemption for buildings in existence prior to January 1, 1988. In 1947 the regulations dealing with the use of Cole Parkway were put into effect by the Selectman. Prior to this, the bylaw was silent with regard to parking. In 1950 a Mr. Bailey proposed a roadway along Cole Parkway, but there is no evidence of what happened with that proposal. In the book “Irish Mosser”, which had pictures of the building showing it was a three-story structure, the land that contains the building was owned by Scituate Amusement Center. There was a picture theater on the second story. Mr. Sullivan felt the building did not interfere with the rights of any neighbors. The uses of the two floors will be for office use and would not interfere with the use of parking. He said there was a mixed use of parking on Cole Parkway dating all the way back to 1926.

Todd Carson- gave his presentation. They were proposing some decorative mounts, lights and banners to the front elevation of the building. There would be brick paving, planters and new landscaping. The building will be raised 4-feet to meet the FEMA Flood requirements. They would be installing steps and handicapped ramps into the retail space and the building would also have a wood framed storefront. The South elevation would have an 8-foot setback and the alley way would have a10-foot setback with a brick based foundation and refinished siding, trim, windows and shutters. The third floor would a have 7-foot dormer and a 12-foot dormer. There would be a net reduction of the retail space.

Albert Bangert- clarified that there would be a deed restriction limiting only office space on the third and fourth floors.

Walter Sullivan- stated yes.

A. Bangert- asked about the previous restaurant, which was originally attached to the front building.

Walter Sullivan- explained the location of buildings.

Jack Conway- stated he has owned the buildings since the 60’s.

Edward Tibbetts- addressed the parking bylaw, which states the building would have to have existed in 1988. He felt this was the benchmark and the parking needs have not really changed. The only change is that they are adding two floors at the property. The brick building was built after the fire prior to1988.

Sara Trezise- asked if they were talking about the restaurant how would this piggyback off of Front Street.

Walter Sullivan- stated that the original assessors card stated they were all on a single lot. He talked about parking requirement for the lot he felt there was a 50 space net reduction from 1988 to present.

Edward Tibbetts- it is a pre-existing non-conforming.

Sara Trezise- the restaurant was abandoned.

Edward Tibbetts- you cannot abandon a use that is granted by right.

Walter Sullivan- the bylaw talks about lots not buildings. He had an office at Cole Parkway for 25 years. He had never seen a shortage of parking space for these buildings. The uses for the parking were for daytime business only. He felt the walkway they were proposing would give an opportunity for the businesses on Front Street to have direct access to Cole Parkway.

Albert Bangert- felt the zoning relates to the use of a lot.

E. Tibbetts- you zone the land not the building. Gave the movie theater as an example.

Brian Sullivan- there would be a reduction in parking. The structure would now be handicapped compliant, and the project would improve public safety.

Sara Trezise- parking was a big issue in the harbor.

Walter Sullivan- the parking lot was originally built for the mall uses of the 1980’s.

Neil Duggan- the bylaw has created a dilemma. The new bylaw requires site plan special permit.

Peter Morin- agreed with Duggan, if the language was not in there, a section 6 finding could still change it. He asked about the dumpster and trucks.

Walter Sullivan- the dumpster was located at the corner of the building and the dumpster would be wheeled out to the truck with an emergency exit bar on the inside.

Peter Morin- had personally never seen the parking spaces full on Cole parkway. With the net increase of the workers, he felt there should be enough parking. He asked about a condition that may require his tenants to park in a designated area.

Jack Conway- would not agree to this.

P. Morin- asked about a variance submitted by the Town Clerks office (see file).

Walter Sullivan- They had received a variance because they did not have the 30-feet required.

Doreen Close of 132 Summer Street- submitted MGL, Chapter 40A, Section 6. (see file). This was the first she had heard of the net loss issue, which she did not understand. She felt it was an important precedent. Ms. Close read chapter 40 a, section 6 into the record. She felt the intent to build up the Harbor was a good thing but she did not agree that the Town should be giving away public parking to private interests. According to her calculations they would need 46 spaces per the law.

Edward Tibbetts- would like Ms. Close to clarify her testimony.

Doreen Close- if he was renovating the building he would be grandfathered, but he was tearing down the building and she felt he would need to start from scratch.

A. Bangert- what would you propose he do.

Doreen Close- suggested leaving the building the way it was. She would like them to abide by law. She said the Board wouldn’t give her a few feet for an application she had in the past, but felt they would give a developer 46 public parking spaces. She also addressed the “canyon effect” on Front Street.

A. Bangert- said the Planning Board would address this issue.

D. Close- addressed her letter that she sent the Board in April (see file). She mentioned the Rockwood v. Snow case, stating that it was not be substantial to the neighborhood. She thought the brick building might have had parking at one point.

A. Bangert- asked Ms. Close if she posted the flyer in the harbor and around town.

Doreen Close- admitted to posting the flyer.

Dr. Gordon Price the business owner at 83 Front Street- his patients have not had one complaint from his patients regarding parking. He spoke in favor of the applicant.

Joe Hayes the CEO of Scituate Federal Savings Bank- spoke in favor of the application.

Mike Hayes of 253 First Parish Road- spoke in favor of the application.

Daniel Pollata the landowner of 85 Front Street- spoke in favor of the application and the Zoning Enforcement Officer.

Bill Verge of 19 Gardner Road- he is the business owner of Verge Jewerly on Front Street. Mr. Verge spoke in favor of the application.

Sara Trezise- requested some traffic calculations.

Brian Sullivan- said they were in the traffic study that was submitted to the file.

Sara Trezise- wanted time to review Walter Sullivan’s brief.

Brian Sullivan- felt they had enough information to make a decision.

Peter Morin- suggested closing the hearing and voting at a later date.

Edward Tibbetts- suggested the applicant give more testimony regarding the parking.

Sara Trezise- clarifies that they are coming under section 820.

Sullivan moved to approve the finding for the raze and reconstruction as proposed on the plan dated June, 8, 2007 by DRL Associates, Inc. and the project would not be substantially detrimental to the neighborhood and approved the finding that the reliance upon and use of Cole Parkway for tenant, staff and customer parking predates the Zoning Bylaw requirement for on-site parking, use of 80 Front Street and the continuation of the use of Cole Parkway for tenant, staff and customer parking would not be substantially more detrimental to the neighborhood, seconded by Tibbetts, Trezise voted in opposition of the motion, the motion carried two to one.

Edward Tibbetts suggested the applicant request a poll of the Board’s vote.

Walter Sullivan- suggested Sara Trezise step aside and let someone else be a voting member.

Trezise moved accept the minutes from May 17, 2007 and May 24, 2007, seconded by Sullivan, all in favor, unanimous.

Tibbetts moved to adjourn the public hearing, seconded by Bangert, all in favor, unanimous.

Respectfully Submitted,

Nicole Harris
Administrative Assistant to the
Zoning Board of Appeals