ZONING BOARD OF APPEALS MINUTES OF SEPTEMBER 26, 2007

A regular meeting of the Town of Sharon Zoning Board of Appeals was held at 8:00 P.M. in the Sharon Town Hall. The following members were present: John Lee, Chairman; Kevin McCarville, Lee Wernick, and Alternate Members Walter Newman and Larry Okstein (8:10 P.M.).

Mr. Lee opened the meeting at 8:00 P.M.

8:00 P.M. New Hearing - Case No. 1595

Brian Greenfield, 161 Upland Road

Mr. Lee read the public hearing notice which stated the applicant is seeking to appeal the Building Inspector’s determination pursuant to Section 6223 of the Town of Sharon Zoning By-Law and a Special Permit relative to a private garage for more than three vehicles pursuant to Section 2315 of the Sharon Zoning By-Law. Property is situated in the Single Residence A Zone within the Groundwater Protection District.

Mr. Wernick recused himself from this hearing. There were many neighbors present.

The applicant was represented by Atty. Daniel Seigenberg, 2 Commercial Street, Sharon. Mr. Lee read letter from Jim Andrews and the Building Inspector, Joe Kent.

Mr. Seigenberg stated that originally there was a request for a special permit to allow a garage to be built on the premises. They are asking at this time to withdraw that request as it was incorrectly filed by another attorney. He feels that is why there are so many neighbors present tonight. Regarding the determination requested, the landscape business is not being conducted out of 161 Upland Road. Mr. Greenfield does own a landscape business, but it isn’t run from his home address. He was, at one time, bringing in timber and cutting it to sell to customers, but it was not profitable; therefore, he did remove the timber from the property. Mr. Seigenberg stated that his client’s property is buffered and separate from the rest of the neighborhood and consists of 2+ acres. This is his client’s home. He also has statements from three of Mr. Greenfield’s employees stating the business is not conducted from this address, which he submitted to Mr. Lee. Mr. Seigenberg stated he has also spoken with the Building Inspector.

Mr. Wernick asked where the Greenfield Landscape Company is located and Mr. Seigenberg stated that question is not germane to this hearing. Mr. Lee stated he doesn’t agree. Mr. Seigenberg stated it is at another location in Sharon. Mr. Wernick asked where the employees report to work and Mr. Seigenberg stated not at 161 Upland Road. Mr. Lee stated that if the applicant wants to respond to Mr. Wernick’s question, he can. This is a friendly meeting. Mr. Seigenberg stated that doesn’t pertain to this hearing. He would like to address Mr. Kent’s comments as stated in a letter (copy attached) dated September 25, 2007: 1) there is no landscape business at 161 Upland Road; 2) the passenger car is there temporarily. It belongs to his client’s nephew.

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On a regular basis there are three pick-up trucks, which are permitted and are used by Mr. Greenfield himself. Employees do not come to this property.

Mr. Wernick stated the legal notice has nothing to do with what Mr. Seigenberg is talking about.

Mr. Lee stated informed the applicant they are trying to appeal the Building Inspector’s determination and are requesting to withdraw the special permit portion. Mr. Wernick asked if the building inspector’s determination is a cited violation and Mr. Seigenberg stated yes.

Mr. Seingenberg stated that the third issue in Mr. Kent’s letter refers to multiple piles of stone and gravel-like material. These piles are small and are for Mr. Greenfield’s personal use as he is constructing a garden on his property. Regarding the PVC pipe, there is a shed on the property and the pipe has been there for over ten years. There are six snowplows that are used for a seasonal activity and Mr. Greenfield does store them on his property, which is well screened. He doesn’t feel this constitutes a landscaping business. There is a wood chipper and a vacuum that are not regularly taken off the property. His client does not create any traffic.

Mr. Okstein questioned the piles of materials. Mr. Seingenberg stated they are mulch, crushed stone and concrete blocks and they are not huge piles. Mr. Lee asked if the pick up trucks have commercial plates and Mr. Greenfield stated yes - there are two pick ups and one dump truck. Mr. Lee asked if they are labeled with his company’s name and Mr. Greenfield stated two are and one is not. Mr. Lee stated that the vacuum and chipper stored on site would be signs of a commercial operation. Mr. Greenfield stated if those pieces leave the property, he is the one who takes them out. Employees do no come and take them. There is no work done at this property.

Mr. Lee stated the board dealt with something similar on East Foxboro Street. It was determined that even though there was no business there, the equipment was stored there which meant it was the site of a commercial business. Mr. Seigenberg asked how many vehicles were on site and Mr. Lee stated one.

Mr. Lee asked for comments from the public.

Atty. Stephen Wild, 5 Park Lane: he stated he is representing the neighborhood. They are ready to speak to both the appeal and the special permit that was requested to be withdrawn. There is a difference of opinion as to the level of activity. It is not just the logging of a few limbs, but clear cutting of property. The real issue is the level of activity and he suggested the board hear from some of the neighbors.

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Brian Greenfield stated that there was a lot of activity when he was cutting wood. There were trucks in and out and it was quite noisy, but it was stopped when Mr. Kent stated there was a complaint. Further, the equipment only leaves with him.

Mr. Lee told Mr. Greenfield that he has the right to come and go from his own property; however, the question is whether the property is being used for storage of commercial equipment. Mr. Newman asked why do we have to make a determination. The Building Inspector made allegations to cease and desist. Why do we have to get involved? Mr. Lee stated we need to vote to uphold the Building Inspector’s decision as it is, or take further testimony from the neighbors. Mr. Newman stated the Building Inspector says to cease and desist.

Atty. Wild stated that the Building Inspector’s letter of yesterday said that this commercial use is still going on. Mr. Lee stated the Zoning Board reviews this and then makes a determination after the public hearing is held. Do you want to go forward to vote to support the Building Inspector or overturn it? Mr. Okstein stated we need some evidence as part of the record from the other side. Mr. McCarville stated the applicant’s attorney had a chance to discuss the property and issues and he now agrees with Mr. Okstein that the board should hear a limited amount of testimony from the neighbors.

Simcha Weller, 172 Upland Road: We are not here about the firewood, but are here because there is clearly a commercial landscaping business going on at this property which involves the use of heavy machinery on the property and road with a fair amount of noise and pollution. The street is quite narrow with a lot of traffic and high speed. Secondly, the property is not isolated because this property has been clear cut of trees and now anyone can see the house and the unsightly piles that exist. Mr. Weller presented a Google Map to show the clear cutting of the property and also the dump truck.

Josh Simons, 145 Moose Hill Parkway: submitted an aerial photo with GIS showing Upland Road and the Assessor’s plot lines. He showed a picture from 2001 and again in 2005.

Mr. Weller stated that the presence of six plows, a commercial leaf vacuum, commercial chipper, and two dump trucks shows there is a commercial business being run from there. It is also Mr. Greenfield’s obvious source of income. Regarding the piles of materials, large commercial piles have been present for many years. It is obvious he is not landscaping his own property. Why wouldn’t a landscaper want to beautify his own property? Mr. Weller questioned the purpose of the zoning ordinance. He feels it should be to preserve and protect the neighbors, protect the residents from traffic and noise and the maintenance of a safe area.

Atty. Wild asked the board to allow Christine Turnbull to speak.

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Christine Turnbull, 293 Moose Hill Parkway: stated she is Director of Moose Hill. Also, her attorney could not be here tonight, but will be if the hearing is continued. She stated this is nothing personal against Mr. Greenfield, but feels the location is inappropriate as it borders her property on three sides. She feels the activities are also infringing on the sanctuary. There is a buffer on the lot and then it is clear cut to the Audubon property.

There is a 40’ storage trailer on the property line and also some dumping. Other neighbors are respectful of the boundaries which are quite clear. She showed two photos to the board showing the 40’ trailer placed right on the lot line.

Jack Parker, 126 Upland Road: has lived there for over 35 years and Brian Greenfield does his personal landscaping. When the crews come to his property, the truck arrives from somewhere other than Mr. Greenfield’s property and does not return to Mr. Greenfield’s property. He doesn’t know what constitutes commercial use, but he never saw customers coming to Mr. Greenfield’s property. The truck traffic is negligible compared to Fedex, UPS, DHL making deliveries, whether commercial or personal. Traffic on Upland Road has increased significantly, not because of Brian Greenfield, but because of delivery services to the other homes. There is nothing different going on there in the past 35 years. No one else in this room has lived there that long and nothing is different today.

There were no further comments.

Mr. Lee asked the applicant’s attorney if he wants to close the hearing. Atty. Seigenberg stated yes. Mr. Lee closed the public hearing. Mr. Lee stated the members voting will be Mr. Okstein, Mr. McCarville and Mr. Newman.

Mr. McCarville moved to allow the applicant to withdraw his request for a Special Permit relative to a private garage for more than three vehicles pursuant to Section 2315 of the Sharon Zoning By-Laws as per request of the applicant’s attorney, Daniel Seigenberg.

Motion seconded by Mr. Newman and voted 3-0-0

Mr. McCarville moved to uphold the Building Inspector’s determination pursuant to Section 6223 of the Town of Sharon Zoning By-Laws. Motion seconded by Mr. Newman and voted 3-0-0

8:45 P.M. Mr. Wernick returned.

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8:50 P.M. New Hearing - Case No. 1596

Stephen Fratello, 1 Blair Circle

Mr. Lee read the public hearing notice which stated the applicant is seeking two findings and two special permits relative to proposed expansion to a non-conforming structure on a conforming lot 1) finding that proposal is not more detrimental to the neighborhood, M.G.L. 40A, Section 6; 2) finding that proposal does not increase the non-conforming nature of the property per Sharon Zoning B y-Laws, Section 6412A; 3) Special Permit to allow a habitable space expansion to a non-conforming structure on a conforming lot per Sharon Zoning By-Laws, Section 6412B. Property situated in Rural 1 Zone within the Groundwater Protection District.

Mr. Lee read letters from Jim Andrews and Greg Meister.

Mr. Fratello represented himself. He stated he has lived at this address since 1993, which is located on the corner of South Walpole Street and Blair Circle. He would like to put three small additions onto his colonial-style house and a third garage. Mr. Lee stated that the plan that was presented is a 1999 as-buit plan and he stated we will need an updated plot plan showing the current setbacks and proposed setbacks as we need to know the existing also. Mr. Fratello stated he will have the drawings stamped as requested. Mr. Lee stated that is required so the building inspector can determine that things are being done as per the certified plan.

Mr. Fratello stated the three pieces being added are: a 16’x24’ addition on the left side which is the new garage; above that is the master suite. The existing master suite will become an office and there will be no new bedrooms added. Also, they would like a family room off the back and off the kitchen there will be an addition. The existing square footage is 1920 and 864 s.f. is being proposed, which is a 45% increase for a total of 2,784 s.f.

Mr. Lee questioned the office. Mr. Fratello stated there will be a new hallway into the master bath and the office is an existing room.

Mr. Wernick stated he would like a delineation in different colors showing existing and new. Mr. Fratello stated the plan shows the three new pieces shaded. Mr. Wernick would like that on the small plans.

Mr. McCarville asked if there will be a full basement under the new and Mr. Fratello stated the garage will be under the master bedroom and a basement under the kitchen. Mr. Lee stated he is concerned about the doors to the office as two are shown. Mr. Fratello stated they just close off the hallway. He asked if the board wants them eliminated and Mr. Wernick stated it should be opened up so it cannot become a bedroom. Mr. Lee asked if he would take out the doors and Mr. Fratello stated yes.

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Mr. Wernick questioned the family room. Mr. Fratello stated it is 12’x24’ - he is adding 10’ and a fireplace.

There were no neighbors present.

Mr. Fratello stated that Joe Kent’s concern is that he will be the first person on Blair Circle with a 3-car garage. There are some on South Walpole Street. The garage is for the cars and his motorcycle. He stated that all the houses on Blair Circle are the same multi-level style. He also stated it is 125’ to his nearest abutter.

Mr. Lee asked if the addition will have the same eaves line and Mr. Fratello stated it steps back 2’ both in the front and back. Mr. Wernick stated he feels the plans are difficult to follow. We need something for our records. Mr. Lee asked if he wants the applicant to add something and Mr. Wernick stated just shading to make it easier to understand. Otherwise, he doesn’t have a problem.

Anne Bingham, Sharon: The Board of Health requires no doors or archway when adding on.

Mr. Lee stated we can close and vote with our standard conditions and the following special conditions: 1) stamped plot plan - we won’t sign the decision until we get one; 2) dimensions of the existing markings on the plan; 3) no doors to the study or office area; doors to remain open; and 4) roof drains to go into a French drain for roof run-off.

Mr. Lee stated the boards findings are based on a plan dated April 9, 2007.

Mr. Fratello asked to close the public hearing. Mr. Lee closed the public hearing and stated that Mr. Okstein, Mr. Wernick and Mr. Newman would be voting.

Mr. Wernick moved to approve the application subject to the board’s standard conditions and the above cited special conditions. Motion seconded by Mr. Okstein and voted 3-0-0.

Mr. Lee asked Mr. Fratello to put the updated plan in our mailbox at the town hall and we will sign the decision at our next meeting.

9:00 P.M. Continued Hearing -Case No. 1582

Charles Heinberg, 470 N. Main Street

Mr. Lee stated that Atty. Joel Fishman, Stoughton, submitted a letter from town counsel dated September 26, 2007 (copy attached) whereby Atty. Lisa Whelan agrees with Atty. Fishman.

There were no comments from the public.

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Mr. Okstein moved to support the Building Inspector’s decision for no action. Motion seconded by Mr. Wernick and voted 5-0-0.

9:10 P.M. Continued Hearing - Case No. 1588

Sharon Commons

Fire Chief Dennis Mann was present. He stated he has met with the applicant twice and has been assured there will be traffic lights which will be maintained to the satisfaction of both the Fire and Police Departments. They will also make arrangements with the clients in the buildings for communications to be enhanced. He has no further objections or comments.

Mr. Lee asked Chief Mann if he reviewed the water looping of this system and he stated it is under the jurisdiction of the Water Department. Mr. McCarville asked if he was satisfied with emergency access and Chief Mann stated yes. There were adjustments made to the original plan and the property will be maintained 24/7.

Also, according to Chief Mann, both he and the Police Chief feel the applicant has met their safety requirements. Mr. Newman asked if he reviews hazardous waste. Chief Mann asked in what respect and Mr. Newman stated hazardous materials. Chief Mann responded yes, they are required by law to let them know what is going on, but right now there aren’t any hazardous waste issues.

The applicant was represented by Robert Shelmerdine, Esq., Washington Street, Foxboro, Richard Rudman and Katie Bergner. Also present was Kenneth Caputo.

Mr. Shelmerdine stated the last hearing was held on July 25^th and since then they have met with a number of boards and are meeting again with ConCom at the beginning of October. They have filed the required MEPA documents and should be receiving certification soon as the deadline was last Friday. They would like to talk about five or six agenda items tonight.

Mr. Lee asked if they have filed for a special permit yet. Mr. Shelmerdine stated they did actually file for two special permits. and would like to discuss that at the next hearing. Mr. Lee stated that the residents in Sharon voted the by-law change for no structure greater than 80,000 s.f., but the applicant has put together a building with 80,000 s.f., plus 20,000 s.f. plus 20,000 s.f. Now you are asking for a 135,000 s.f. building. That is a change from what a lot of people in town thought they were getting and approved. Mr. Shelmerdine stated that the by-law was written with that in mind.

Michael Intoccia, developer, stated the town didn’t want a Home Depot or Walmart. As yet, they haven’t signed the business they are pursuing, but when they do, they will let us know what it is; however, this tenant will not sign until they have permits in hand. They don’t want the board to close the hearing and then have to reopen it in November.

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Mr. Lee asked why they can’t say who it is and Mr. Intoccia stated they have signed an agreement not to disclose who they are. Mr. McCarville asked if the board can limit the uses and Mr. Lee stated yes. Once the building is up, the Zoning Board would need to ensure it is not a salvage yard or the like.

Mr. Shelmerdine stated they have filed for a wetlands setback under Section 33-40. Ken Caputo stated the wetland setback is associated with the bog on the south side of the property. The parking lot and Anchor #1 are within that 100’ setback.

Regarding the Design Review Committee, Ed Hershfield and Anne Bingham are on that committee. Mr. Shelmerdine asked if they have a charge and will report back to the Zoning Board. Mr. Lee stated yes on aesthetic landscaping and they are to advise the board on specific aspects of the project. Mr. Shelmerdine asked if they could meet with them directly. Mr. Hershfield stated they need five people and cannot go forward until they have five. Mr. Lee stated he has put this in the paper and has received nothing yet. Mr. Shelmerdine stated the ZBA can waive some of it. Mr. Lee stated it was agreed it would be a five member committee. Tom Houston stated the only waivers the board can make is in the design standards; however, the committee is mandatory.

Mr. Hershfield stated he would not be happy to serve in a charade capacity. The by-law states “shall”. He asked if the five members need to be sworn in by the town clerk. He also stated they would be happy to meet with the applicant. Anne Bingham stated she agrees with Ed Hershfield. Mr. Shelmerdine stated his only concern is time. He will meet with anyone at any time. They would like to close this hearing in October. Anne Bingham asked how he can do that if the signage won’t be voted until November. Mr. Intoccia stated he needs financing and tenants and needs to move forward quickly.

Beth Green, 11 Huckleberry Lane: There are people present tonight who could serve on this committee. Ed Hershfield stated he could take names of those people present tonight and check with those who had shown an interest, but who aren’t here, to see if they still want to be on the committee. He also asked if the meetings have to be posted. He thinks they need guidance from Gelerman & Buschmann. Tom Houston stated the ZBA needs to vote to appoint the people and that could be done now.

Mr. Wernick moved to appoint Christine Turnbull, Paul Olivera, Ed Hershfield, Beth Green and Anne Bingham. Motion seconded by Mr. McCarville and voted 5-0-0. Ms. Turnbull stated she is an abutter and doesn‘t know if that would create a problem. Mr. Intoccia stated he doesn’t have a problem with that.

Mr. Shelmerdine discussed signage. John Lee asked what is the largest sign at the moment in Sharon? The one being proposed is 700 s.f. Ms. Bingham stated we have a sign committee who should address this. Richard Rudman stated the size of the sign is due to the input from the tenants. That is what they want. The small stores have 150 s.f. for signage, but that is not big enough for the larger stores.

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Ms. Bingham asked how these signs relate to the Zoning By-Law. Mr. Rudman stated that under the current sign ordinance, they could have three 60 s.f. pylon signs per site. They are proposing one of the 60 s.f. signs at an off-site location and then requesting one pylon sign on site. Mr. Hershfield questioned the height of the Shaw’s sign.

Beth Green, 11 Huckleberry Lane: the signage was an issue for her when voting at town meeting. The sign was suppose to be only as high as the highest building. What is that height? Mr. Rudman stated he is not sure. Mr. Hershfield asked about the rest of the town. Mr. Rudman stated they would be limited to one free-standing sign and one on the building. Ms. Turnbull asked if there is data that a sign will impact the flow of people or is that perception? She feels the size is daunting. Mr. Rudman stated there are studies that show it both ways, but in negotiating with retailers, that is one of the “hot” buttons. Mr. Hershfield asked about the signage in Foxboro, Hingham, etc. Mr. Intoccia stated that this life style center is about one mile off the road and the ones you mentioned are right on the road.

Dave Martin, South Main Street: stated when they sold this project to the town, they cited these other places. Mr. Lee stated when they sat at town meeting, they had an image from what was being told to them. Mr. Lee read from the zoning by-law, Page 111 Signage. Mr. Shelmerdine asked if that is with the March 12^th amendment and Mr. Lee stated no.

Beth Green asked if they will want a lit sign and if so, we need to know what it will look like. Mr. Rudman stated he is not sure they have provided for illumination. Mr. Lee stated he feels they will need to strike a balance between what is allowed and what they are proposing. Mr. Shelmerdine agreed.

Mr. Rudman stated there will be a crash gate in keeping with the design of the proposed center. Mr. Caputo stated they have talked with both the fire and police departments and they are talking about an Opticom system to open the gate.

Janet Dunlap, 65 S. Walpole Street: asked if there is any thought to “no parking signs” on Old Post Road. Mr. Rudman stated that is a good idea. Mr. Lee stated that no parking signs come under the jurisdiction of the Police Department as that is an enforcement issue.

Mr. Intoccia stated that it was agreed at town meeting that they would petition the ZBA for a special permit if any building is over 80,000 s.f. They need one or two larger tenants in order to put the smaller places in. Mr. Rudman stated they are obligated to design this place in the style of a New England village. Just because they build a store of 135,000 s.f., doesn’t mean it will look like 135 s.f. Ms. Bingham stated that a 135,000 s.f. store is bigger than what they were led to believe. Mr. Intoccia stated he is not trying to hide anything.

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He was told that there were three types of stores the town didn’t want - a lumber yard, Walmart and a Home Improvement store. Mr. Shelmerdine stated the larger tenant will drive this mall. What they add to this anchor they will deduct from another store. They will also not change the parking.

Mr. Hershfield stated the town had a certain perception and what is being proposed tonight will have a tremendous impact on traffic. You are asking the town to accept something different from what they thought they were going to get.

Mr. Newman stated that when they come in for the 135,000 s.f. building, it would be helpful to get out to the board and the town some architectural preliminary plans showing what this will look like. What if the anchor doesn’t want the building to look like a New England village, then what? He would like to see some pictures when they come back in. Mr. Caputo agreed to do that.

Paul Olivera, Norwood Street: he has had a lot of experience with retailers and has built a lot of retail stores. He asked if there is room for give and take and Mr. Shelmerdine stated yes.

Christine Turnbull stated they do need room to negotiate. What concerns her is that it is very exaggerated as to what is out there now. Mr. Shelmerdine doesn’t think that can be controlled.

Mr. Shelmerdine discussed the amendments made at town meeting.

Mr. Lee asked if it is a public way going into the property. Mr. Shelmerdine stated it is now and will be built to the standards of the town.

Mr. Lee stated we need to hear about traffic, storm water and Board of Health. In the beginning, it was stated there would be minor encroachments. Why don’t you just eliminate them, so we don’t have to deal with them. Mr. Caputo responded because of the wetlands. Mr. Lee stated if it is minor, why not just meet the by-law? Mr. Caputo asked ConCom or Zoning by-law? Mr. Lee replied zoning by-law. Mr. Caputo stated then they couldn’t have Anchor #1. They would also lose entire rows of parking and they need that. Mr. Lee stated maybe they are trying to put too much on the property if they are seeking relief from so many things. Mr. Caputo stated they have a storm water design that is second to none. Mr. Hershfield stated there are a number of people in the town for whom wetlands are a priority. He would hate this board to be in the position to give them what they want only to end up in the middle of litigation over a wetland permit. It goes back to what the town thought they were getting. He thinks they are opening themselves up for something more than what they expected. Mr. Shelmerdine stated they are confident they have a site that will withstand an appeal. Mr. Intoccia asked if the board would feel more comfortable if the Conservation Commission was finished?

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He stated you need to look at the entire project. They gave a lot to the town so they could have some help in other areas when needed. He is just trying to build what they talked about at town meeting, but they just need flexibility. He thinks what they are requesting is minor for what they are doing for the town. Mr. Caputo stated they have 130 acres and they avoided any direct wetland impact on the site.

There were no further questions from the board or the public.

Mr. Lee continued this hearing to October 10. 2007.

It was moved, seconded and voted to adjourn. The meeting adjourned at 11:20 P.M.

Respectfully submitted,