SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 14, 2010

A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, April 14, 2010 at 8:00 p.m. in the Lower Level of the Town Office Building.  The following members were present:  John Lee, Chairman; Kevin McCarville, Secretary; Lee Wernick, Seth Ruskin, Larry Okstein.

Mr. Lee opened the meeting at 8:00 p.m.

8:05 p.m.         Martha Ben-David, 7 Marie Avenue, Case No. 1649:  Mr. Lee read the public hearing notice.  Mr. Lee read a letter from the Health Agent, Jim Andrews, dated April 14, 2010.  The Conservation Agent, Greg Meister, was present at the meeting.  The applicant was represented by Atty. Paul Schneider, Canton, MA. 

Mr. Meister stated he is concerned with how this residence got to this point as the application is after the fact.  He was not comfortable with just writing a memo to the board and felt he should be present at the hearing tonight.  Mr. Lee asked if there are wetlands within 100’ and Mr. Meister stated yes.

Atty. Schneider stated he is not sure if they would have to take everything out if a special permit is granted.  One of the applicant’s three children will take the role of caregiver due to one of their siblings being handicapped and will need privacy when that time comes.

Mr. Lee stated that an apartment with a bedroom will make this residence non-compliant.  Mr. Schneider doesn’t agree.  He feels that to be non-compliant they would have to add a fifth bedroom as there are already four.  Mr. Lee read the State’s Sanitary Code to the board.  Mr. Schneider stated presently this is a three bedroom home and they want a fourth bedroom in the basement.  Mr. Lee stated there were four bedrooms at one point.  What did that turn into?  Mrs. Ben-David stated there were two downstairs and two more down cellar.  Mr. Schneider stated there will not be more than four bedrooms.  The Building Inspector has the right to inspect the premises to make sure of this.  He stated this is a four bedroom house and it was approved for that.  His client says there are only three, not four.  Ms. Ben-David thinks the broker counted two bedrooms that are in the attic.   There is electric heat there.  Mr. Schneider stated that just because the septic system allows a four-bedroom doesn’t mean there was one.  They are not asking for five, just three upstairs and one in the basement.

Mr. Wernick stated he doesn’t like moveable labels as to where the bedrooms are.  Mr. Schneider stated that Canton and Stoughton use the number of bathrooms to determine how many bedrooms are allowed.  Every town is different as some do it by catch basins.  Any place can be a bedroom in this house.  They will abide by the ruling of this board.  They would like three bedrooms up stairs and one down cellar.  Mr. McCarville asked if the walls have been torn down.  Mr. Schneider stated no, they have put a couple of walls up.  Some could be down as a matter of right.  One caught the attention of the Building Inspector.  Mr. Ruskin stated he did the calculations of the rooms on level one.  He asked if they have a living room that is 12x19.  Ms. Ben-David stated yes.  She stated that the second floor is the attic.  Mr. Ruskin asked if the next floor up is considered the attic and Mr. Schneider stated yes.  To have more than four bedrooms would be a zoning violation.  Back in November or December of 2008, they ran an ad to have someone live there because they were in serious financial trouble.  It has now come down to what they can afford and that is that the kids need to help take care of their 14 year old sister.  Mr. Lee asked if there is a common entrance and Ms. Ben-David stated there is only one.  Mr. Lee stated there is an entrance in the basement, so nothing more needs to be said.  He asked if the topography is a hardship.  Mr. Schneider stated the board only needs to grant one thing.  Ms. Ben-David stated that Joe Kent helped her fill out the application.  Mr. Schneider stated this is a case that cries out for compassion.  He feels they only need a special permit which runs with the person and ends when she moves out.  This is a unique situation.

Mr. Wernick stated he has a problem identifying the separate living units.  He doesn’t want to create a second unit.  Mr. Ruskin stated he is still unclear with the upstairs.  The realtor says there are two bedrooms upstairs and just because you don’t use them doesn’t mean they are not a bedroom.  Mr. Okstein stated you can’t go by a listing agreement.  Brokers will say almost anything.  Mr. Schneider stated it doesn’t matter what it is called.  Mr. Lee stated they are asking for another residence within a single residence home and the neighbors have submitted a packet with a list of people not liking it.  Mr. McCarville stated the people have actually signed two petitions – one for this and one against this.  He asked the people present why they would do that. 

Stanley Rosen, 9 Marie Avenue:  he has been on the Board of Health for 10-15 years, but he is not speaking in that capacity.  He has lived on Marie Avenue for 37 years.  He has been in the house in question; they know it and have even been on the second floor.  There are lights on every night on the second floor.  A bedroom is a bedroom. They already know there was a rental advertisement for this property.  There are various cars that are parked in the back of the house and a separate entrance is being used.  One of the cars that were there is not registered.   These cars park all over the street in front of everyone else’s house, but not Ben-David’s house.  When they park in the back they are doing so possibly on the existing septic system. There is an issue with snow removal also.  Further, cars come and go as late as 2:00 a.m. and wake everyone up.  That is just one of the reasons they are opposed to this.  The daughter has been receiving adequate care without this permit being granted.  He asked if the building inspector has been in the house.  Mr. Schneider stated yes he has been in the house.  Mr. Rosen asked how recently and Mr. Schneider stated he doesn’t know.  Mr. Lee stated he did perform an inspection at the house.  Mr. Rosen stated the neighbors that signed in opposition are direct abutters.

Harris Cohen, 12 Marie Road:  has been there since August of 1959.  Ray Romano was the original owner and he had no plans to finish the basement.  He had four bedrooms – two up and two down.  A new septic system would be required for that fifth bedroom, no matter what you call it.  He agrees with Mr. Rosen that the cars are a problem.  They have become a nuisance.  He was invited in by the workers and found there was a basement being built.  He has known Ms. Ben-David for a long time and he is not here to hurt her.  The second petition was signed because of the second apartment.

David Hack, 5 Marie Road:  agrees with Mr. Rosen.  He was told this petition was an advertisement of this meeting.  He has two small children and is concerned this was done without permits.

John McAvoy, 13 Marie Road:  agrees with the previous speaker about signing of the petition to acknowledge tonight’s hearing before the board.  There is a pattern of not being as forthright as possible.   The Rosens and the Hacks have suffered the most with the traffic and cars.  He is strongly opposed to this request for a 5^th bedroom.  Mr. Wernick stated he can now see how the abutters were misled with this petition.  Mr. McCarville thanked everyone present for their honesty.  Mr. Lee stated that snow removal is an enforcement issue and asked if the police were notified.  Mr. Rosen stated yes.  Mr. Lee asked if they did something about it and Mr. Rosen said sometimes.

Christine Hack, 5 Marie Road:  they were shown architectural drawings of what already existed.  Mr. Meister stated he had questions about the number of bedrooms from the very start.  This is in a groundwater protection district located above the Beaver wells.  He doesn’t support this petition.  It disturbs him the way this whole thing happened.  If the board, for whatever reason, grants this, there would have to be some recourse for non-compliance.  There have been no fines charged.  Other people have to comply with the law.  He doesn’t think that people should break the law, be allowed to do what they want, and then come in and ask for permission.  Mr. Schneider stated if they are granting a special permit the parking problems can be controlled with conditions.  There is no law prohibiting parking in the back yard.  By opposing this, the board would not be allowing conditions to be put on this.  Ms. Ben-David asked if the board is saying she can’t drive her car in the back yard.  Mr. Lee stated yes she can. 

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

Mr. Lee asked if they want to close the hearing.  Mr. Schneider stated yes.  Mr. Lee closed the hearing.

Mr. Lee stated the voting members would be Mr. McCarville, Mr. Wernick and Mr. Lee.

Mr. Wernick moved to find that the proposal is not more detrimental to the neighborhood as per MGL 40A, S 6.  Motion seconded by Mr. McCarville and voted 0-3-0.  Motion denied.

Mr. Wernick moved to find that proposal does not increase the non-conforming nature of the property per Sharon Zoning Bylaw Section 6412A.  Motion seconded by Mr. McCarville and voted 0-3-0.  Motion denied.

Mr. Wernick moved to grant a Special Permit to allow a habitable space expansion to a structure on a non-conforming lot per Sharon Zoning Bylaw Section 6412B.  Motion seconded by Mr. McCarville and voted 0-3-0.  Motion denied.

Mr. Wernick moved to grant a Special Permit to allow an in-law apartment per Sharon Zoning Bylaw Section 4211.  Motion seconded by Mr. McCarville and voted 0-3-0.  Motion denied.

Mr. Wernick moved to grant any such other special permits, variances, findings or other relief that the Zoning Board determines are required as specified as per a legal public hearing notice advertised for two consecutive weeks in the Sharon Advocate; namely, March 5, 2010 and March 12, 2010.  Motion seconded by Mr. McCarville and voted

0-3-0.  Motion denied.

Mr. Wernick left the meeting at 9:18 p.m.

9:20 p.m. Sharon Middle School, 75 Mountain Street, Case No. 1650:  Mr. Conroy read the public hearing notice.  The applicant was represented by David McKinley, Michael MacEwen.  Mr. Ruskin recused himself.  Mr. Lee stated the voting members will be Mr. Okstein, Mr. McCarville, Mr. Lee.

Mr. McKinley discussed what is presently on site and what is being proposed.  The first story will be a media center, pre-kindergarten and administration; the second story will be a sixth-grade wing that is now in portables and district administration.  There will be five tennis courts and they will improve the on-site traffic, which now backs up onto Mountain Street.  They will be going from 127 parking spaces to 238 spaces.  They need 286 spaces, but that is not possible.   They will create a second curb cut for the buses and there will be better sight lines.   They are proposing to widen Mountain Street on the west side by 8’ which is town-owned land.  He explained the traffic flow to the board and the public.  He stated that right now there is a problem with buses and parents dropping off children.  The Pre-k parking spaces will be 11’ as they have to actually get out of the car.  The middle school kids will arrive earlier and will get out earlier so there will be no conflict.

Mr. McKinley stated that parking will be on porous pavement.  Mr. McCarville asked why that is required and Mr. McKinley stated it is due to run-off.  They will put a paved road around the building at the request of the fire department.

They are seeking variances:  1) for impervious cover.  He stated this is a non-conforming use in a residential zone.  20.73% of the site presently has natural vegetation and when this project is finished 17.5% will have natural vegetation.  The maximum lot coverage is 15%.  Existing is at 10.94% and that will become 15.19%; 2) parking:  286 spaces are needed and 238 are provided.  The new spaces should help alleviate parking problems on Mountain Street.

Mr. McEwen stated they will need a variance because of the elevator tower. The need the entrance lobby all the same height.  The entire site is low.  They also will need a variance for the acid waste underground storage plant.  The Board of Health is asking them to put this in because of the science classrooms.  They are working with Weston & Sampson to see if they need to have an underground acid waste tank or if they could use something else.  Mr. Lee asked the diameter of the main and Mr. McKinley stated 4” and DEP is in charge of the sewer extension permits.  Mr. Lee stated this sounds reasonable.  He asked if the football field will have grass or something new.  Mr. McKinley stated they are not touching it.   Mr. McEwen stated the last thing they will do is the porous pavement.  Mr. McKinley stated they are trying to clean up the water as much as possible.  There will be rain gardens and infiltration trenches all around the site.  There will be a large galley and two smaller ones on site that will take roof run-off.  Mr. McEwen stated they can’t look at “green” roofs on the existing structure, but will do so on the new.  They have taken a very green approach in this addition to the school. 

Mr. Lee stated people should know we are trying to make this as “green” as possible.  Mr. McEwen agreed with him.  There will also be outside classrooms for biology, etc.

Sheila Advanti, 18 Franklin Road:  stated she directly abuts the school behind the baseball field.  She is in favor of this project and could walk through the woods to the school.   It is now like a swamp since the Arboro homes were built.  There are three catch basins and she was told by the Conservation Commission the water should be released into the land.  Her main concern is that she doesn’t want a bigger swamp that what is already there.  Mr. McKinley stated this was designed to release the water at a much slower rate as they want to correct what is presently going into the wetlands by retaining the water and releasing it slowly.  They are proposing to reduce the water from arriving all at one time.  When they are done, they are lowering the amount of water and slowing it as it goes into the wetlands.  Mr. McEwen stated that by law they can’t increase what is going into the wetlands.  Ms. Advanti stated she is okay with this.  She presently has a basement without a pump, but there are more mosquitoes.  They can’t go out in the yard after 6:00 at night.  Mr. Lee stated that based on the engineered drawings, it will be better when it is done.  Ms. Advanti would like more information on the impervious material and asked if that has an environmental impact.  Mr. McKinley stated impervious will be affected by the extra parking and the buildings, but they are trying to keep the numbers down.  Mr. McEwen stated they will be improving the water that is going into the wetlands.

Seth Ruskin, 9 Spring Lane:  stated the building height should shield the roof top equipment.  He asked how long it will take to complete and Mr. McEwen stated the building should be open in September 2011.  Mr. Ruskin asked if they will be putting in a road and sidewalk and Mr. McEwen they were asked to do so by the fire department but it will be gated and patrolled at night.  Mr. Ruskin asked about screening.  He stated his neighbor at 5 Spring Lane requested a fence at the top of the hill rather than the bottom.  He is now making that request to the ZBA.  Mr. Lee stated it could be a condition of approval.

Mr. McKinley stated that all the doors along the back have been removed.  Mr. McEwen stated they left the doors that are required for safe exiting in case of fire.  Mr. Ruskin stated this is much improved from what is originally presented to them.  Mr. Lee stated asked if there is a specific type of fence you would be interested in.  Mr. Ruskin stated a white stockade.  Mr. Lee asked Mr. Ruskin to talk to his neighbors.  If they need that, they need to speak up now.  Mr. Lee asked the applicant if they see a problem with the fence.  Mr. McKinley stated they can go back to the building community and tell them what is required and go from there.

There were no more comments or questions.  Mr. Lee stated we are waiting for the drainage peer review and details on the pipe from the Conservation Commission.  He stated that the ZBA does not need a peer review done.

Mr. Lee continued this to April 28^th.  He stated we need an order of conditions and the drainage peer review from the Conservation Commission.  He feels what was presented tonight is reasonable.

It was moved, seconded and voted to adjourn.  The meeting adjourned at 10:15 p.m.

                                                Respectfully submitted,

Approved:  9/22/10