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News/Events - Meeting Minutes

Scituate Zoning Board of Appeals
Meeting Minutes
November 19, 2009

PRESENT: Peter Morin, Brian Sullivan, Sara Trezise, Edward Tibbetts and John Hallin.

OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer

First Application: request for a modification of the Special Permit issued on July 8, 2004 to Richard Massey for the property located at 134 Humarock Beach Road.

Attorney Donald Nagle represented the applicant.

Richard Massey was present.

Attorney Nagle- Mr. Massey would like to extend his special permit, which has expired. Since the permit was issued the applicant has been involved in an appeal of his wetlands permit, which was recently resolved. They were seeking to modify the original special permit.

Peter Morin- asked if the litigation was within the two-year statute and also asked how long would he like to extend it to.

Donald Nagle- would like to eliminate the language in the permit.

Neil Duggan- He felt there was a provision in the law that would allow the removal of the language that the construction must be completed within two years.

Sullivan moved to grant the relief as requested to amend the previous decision by striking the language, which states the construction must be completed within two years, seconded by Trezise, all in favor, unanimous.

Second Application: Continued from October 15, 2009: Christopher J. Young of 30 Williamsburg Lane, Scituate, MA 02066 requests M.G.L c40A Sec6 special permit/finding to raze and reconstruct pre-existing non-conforming single family dwelling at 14 Collier Road.

Seth Dobie- represented the applicant.

Christopher Young was present.

Seth Dobie- they were seeking to raze and reconstruct the property at 14 Collier Road. They would be pulling back from the current setback except for the garage. He tried to accommodate the Board’s request from the last hearing, but they were only able to pull it back on the north side.

Peter Morin- asked if they had spoken with the neighbors.

Richard Murray from 16 Collier Road- spoke in favor of the applicant. He was impressed with the applicant’s attempt at keeping the Hanlon’s view intact. He voiced his support for the project and would like them to be mindful of the drainage situation in the neighborhood.

Hallin moved to accept the plan from Cavanaro Consulting dated November 19, 2006, seconded by Trezise, all in favor, unanimous.

Third Application: Barbara and Gerard Scalley of 62 Arlington Road, Woburn, MA 01801 requests M.G.L c40a, Sec 6 special permit/finding to raze and reconstruct pre-existing non-conforming single-family dwelling at 11 Garfield Street.

Gerard and Barbara Scalley were both present.

Gerard’s brother in-law/contractor was also present.

Gerard Scalley- they would like to raze and reconstruct the dwelling. The cottage was currently 600 square feet.

Sara Trezise- mentioned that the field card stated the dwelling was built in 1956.

Brian Sullivan- asked if the house had been in the family for along time.

Barbara Scalley- she bought the home in 1981.

Brian Sullivan- family was sometimes more reliable than the assessor’s records.

Neil Duggan- believed that the setback bylaw came to be in 1956. He would like the side closest to the lot line to be fire rated.

Peter Morin- asked why they didn’t move the house away from the three-foot setback.

Gerard Scalley- the driveway was on the other side.

Sullivan moved to grant the finding pursuant to the plan of Ross Engineering dated May 5, 2009, seconded by Trezise, all in favor, unanimous.

Fourth Application: William Hartford and Mary Kate Hartford-Kennedy of 119 Kent Street requests special permit under section 420.2 D and section 1030 of the Scituate Zoning Bylaw to conduct a livery (taxi) business from 119 Kent Street.

Mary Kate Hartford-Kennedy and her father William Hartford were present.

Mary Kate Kennedy- they currently run an Inn on the property, but they would like run a taxi service as well, mostly for the guests. They will hire independent contractors who will house their vehicles at their own homes at night. The service would be Town wide. They will not have checkered cabs they want the service to be low-key. Currently they have two driveways, which can accommodate 6-7 cars and they also have a back driveway as well.

Pete Morin- is the existing Inn permitted.

Neil Duggan- yes, they received a special permit for a Bed and Breakfast, not an Inn. Duggan recused himself because he lives close by and left room.

Mary Kate Kennedy- they have never had any complaints from the Town or neighbors. She has had one complaint about her sheep in the past though. They have one Chevy Blazer and one mini-van. She had met with John Danehey who had recommended she file with the ZBA. .

Brian Sullivan- asked if they would be performing maintenance at the property.

William Hartford- no, he uses Sully as his mechanic.

Peter Morin- asked if they Board should make the special permit custom to them.

Mary Kate Kennedy- would like to package both businesses if she ever decided to sell someday.

Kathy O’Keefe of 110 Kent Street- she had concerns with commercial activity in a residential zone. She also had concerns with a lot of taxis on the property and her views. She did have concerns with the sheep, but she was more concerned with the cars.

Kevin O’Keefe of 110 Kent Street- he had concerns with an increase in traffic.

Peter Morin- asked if they would be leaving the property for every call.

Mary Kate Kennedy- they would need to apply for a hearing in front of the Board of Selectman regarding the details of the business.

Sara Trezise- the ZBA decides use and BOS decide the details of the use.

Peter Morin- asked Brian Sullivan to explain the standards in which to grant the relief.

Brian Sullivan- had concerns with the there being two businesses at the same location in the residential zone. He felt there definitely was a need for this type of business within the Town. He felt what the applicant was proposing was very reasonable. He was inclined to the grant them the relief.

Sara Trezise- asked about a sign.

Mary Kate Kennedy- they would not have a sign on the property. She would use magnetic signs that would only be on the cars when they were in use as a taxi.

Sara Trezise- would like to permit it with the condition that only two vehicles are in use as taxis at the property.

John Hallin- felt the need in Town was there, but he also would like to limit it to two vehicles and limit it to the use of one driveway.

Trezise moved to grant the special permit to allow for a livery/taxi service with the condition that no more than two vehicles be used for the livery service at the property, seconded Sullivan, all in favor, unanimous.

Fifth Application: Zervas Realty Trust of Scituate requests a finding under M.G.L c. 40a, sec. 6 or in the alternative a modification of the variance issued on March 8, 1948 for the property located at 78 Border Street.

Peter Morin disclosed that he lived at 41 Border Street, but was not an abutter that lived with in 300 feet. About three or four years ago when the applicant was a co-applicant for a former application in front of the ZBA. Mr. Morin represented three of the neighbors and appeared in their behalf at the ZBA hearing. He did not have any financial gain from this application.

Brian Sullivan- his father was the original trustee, but he has never had any involvement with the property.

Attorney Michael Hayes represented the applicant.

Michael Hayes- Mr. Hayes and the applicant was confidant that Mr. Morin could hear the application impartially.

Attorney Hayes- Harry and Peter Boris were the current trustees for the property. The business was a restaurant called the River Club. For the purposes of this hearing they did not want to get bogged down with whether this was a non-conforming use. The variance states that the dancing and floorshows would not be allowed. The site was used for weddings. There have been numerous parties and shows on the site for decades. The owners have had no complaints by way of the site. They would like to make the ballroom a venue for shows and also book musical events in hopes that it would make people more aware of the site. After discussions with Neil Duggan and learning about the variance, they agreed to cancel all shows until they came in front of the Board. There were 172 available parking spaces; septic capacity for over 600 people and the building is sprinkled. They were requesting the Board amend the variance with regard to the floorshows. The law was clear that you could modify a variance. He mentioned Huntington v. ZBA of Hadley and Mendes v. Barnstable. The case law suggests that modifying variances are permitted, but the Board cannot change the variance without the proper notification of the public hearing. They were taking this direction, the section 6 criteria was less restrictive.

Brian Sullivan- felt it would have been helpful to have more information prior to the hearing. He felt it might be unconstitutional to prohibit dancing.

Michael Hayes- it is a form of free speech.

Brian Sullivan- dancing was not the jurisdiction of this Board.

Michael Hayes- the variance was unrecorded and no one knew about it until recently.

John Hallin- clarified that they were seeking relief under MGL c.40A, section 6 to increase occupancy.

Michael Hayes- they would like to expand to increase capacity.

John Hallin- had concerns with doubling the occupancy.

Michael Hayes- they were hoping to turn over tables quickly. There would be employees getting the guests to and from the parking lot and he suggests a condition that there be a detail on duty.

Sara Trezise- she would like to read the cases to better understand their reasons for modifying a variance. She felt they may be asking for relief the Board couldn’t grant; asked have there been modifications granted.

Michael Hayes- there was a special permit granted in the 80’s to add on

Peter Morin- asked why the variance was the only document he submitted.

Michael Hayes- because that was the operative document.

Peter Morin- would like to include the entire file from 2007 to be included in this file.

Michael Hayes- he felt that the 1948 variance was the operative document.

Sara Trezise- would like to see the other file.

Neil Duggan- the variance was unearthed in 2007; before that no one knew about it. To him it’s simply the use that was granted for a restaurant. The uses that have gone on were customary uses with this use. He had concerns with building code issues.

Peter Morin- Border Street was a very busy winding road and a popular road for bicyclists. He had concerns with traffic and would like to see a traffic analysis.

Michael Hayes- that was the Boards’ right.

Peter Morin- asked why shouldn’t the Board ask for traffic ingress and egress plans for 500 people.

Mike Hayes- the Board could refer them to Traffic Rules and Regulations or the Board could request a traffic study.

Glen Anderson of 63 Border Street- had no problems with the restaurant and weddings. The residents did have concerns with the public safety and traffic volume. He felt the traffic would be disruptive and detrimental to the neighborhood.

Sandy Duffy from Scituate- spoke in favor of the application.

Joe Lazaris from 77 Borders Street- his family owned the property. They had a license for 25 years for a 350-seat restaurant.

Linda Fergerson of Scituate- complemented the owners for trying to work with the Town. She supported the business and felt it would be a good thing for the town.

Williams Smith of 87 Border Street- when there were bands playing he could hear the music. He had concerns with the increase in the volume and frequency of music.

Leslie Dunday of Scituate- was in support of the business.

George of 55 South Main Street- spoke in favor of the application. He felt this would help the other businesses in the area.

Vinny O’Brien- there is a balance with residential and commercial uses. He was in support of the application, but would like the Board to condition the application to control the size and volume of the shows.

Peter Morin- was curious about Neil Duggan’s point regarding use.

Neil Duggan- it’s principle use is a restaurant with allowed accessory and customary uses. If the use were to change to a nightclub there are State Building Code implications that would be problematic for the owners as well as zoning issues. At what point does a restaurant use become a nightclub use is a matter of interpretation for the Building Inspector.

Brian Sullivan- the applicant stated that the primary use would be a restaurant.

Harry Boris- the main use will be a food beverage operation, but would continue to have functions and weddings. They would like to fill in between the weddings functions with the some shows. They have no interest in having a 500 capacity; they would like to just put a few more people in. They have no interest in turning it into a nightclub.

Michael Hayes- he wanted to remind the Board that the Music Circus had over three thousand seats so this was not a good comparison. They were willing to have the Board tell them the proper number of people for these kinds of venues and willing to produce a traffic study and sound study. The BOS was the licensing Board and could shut this business down within 24-hours. They were not trying to change the primary use of the property. .

Edward Tibbetts- the people were concerned with what could happen at the property not so much with what the applicant will do. He had concerns with modifying a variance with all sorts of regulations. This may need to be done by the licensing Board.

Michael Hayes- The Board could put conditions that it felt were relevant to the public good.

Neil Duggan- the Certificate of Inspection, which is issued annually after inspection of exits and fire safety systems regulates and limits the number of occupants allowed in the building. It is up to the Board to decide whether they wish to allow floorshows by amending the 1948 variance to remove the restriction.

Brian Sullivan- would like the applicant to provide a floor plan and traffic plan.

Edward Tibbetts- did not feel the variance was the right place for the conditions.

Peter Morin- would like a traffic study and suggested an acoustical report. He wanted to know if the variance in 1948 was tied to any occupancy.

Brian Sullivan- found the whole first amendment issue very interesting. He wondered if the Board could even limit and permit dancing and shows.

Michael Bleakie- his mother recalled that the club was across the street.

Mike Hayes- would provide seating patterns, traffic study, acoustical report and research on whether the variance was tied to any sort of capacity and he would also like some discussion on changing the use and first amendments rights regarding uses.

Sara Trezise- would like a description of the seating and venues.

Edward Tibbetts- the traffic study should show and define when the cars come and go.

Peter Morin- asked what they would do for floorshows.

Michael Bleakie- warned about using the Warner traffic study.

Sullivan moved to continue the hearing to December 17, 2009, seconded by Hallin, all in favor, unanimous.

Sullivan moved to adjourn, seconded by Trezise, all in favor, unanimous.

Meeting adjourned at 9:45 P.M .

Respectfully Submitted,

Nicole Harris