SHARON ZONING BOARD OF APPEALS MINUTES OF MAY 12, 2010

A regular meeting of the Sharon Zoning Board of Appeals was held on Wednesday, May 12, 2010 at 8:00 p.m. in the Sharon Town Office Building, Lower Level.  The following members were present:  John Lee, Chairman; Lee Wernick, Seth Ruskin, Walter Newman, Larry Okstein (9:20 P.M.).

8:00 P.M.  Continued Hearing:  David Nelson, Case No. 1652, 10 Massapoag Avenue:  Mr. Lee stated we had continued this hearing to allow for receipt of a revised plot plan which was received tonight.  This plan shows the setbacks and the proposed porch on the front of the applicant’s house.  He stated the members voting will be Mr. Wernick, Mr. Ruskin and himself.

Mr. Wernick moved to approve Case No. 1652 as per a plot plan dated May 5, 2010 with the board’s standard conditions.  Motion seconded by Mr. Ruskin and voted 3-0-0.  It was voted that this plan would be considered the plan of record.

8:05 P.M.  New Hearing:  James Wang, Case No. 1654, 11 Col Gridley Road:  Mr. Lee read the public hearing notice.  He read a letter from the Health Agent, Jim Andrews and a letter from Greg Meister, Conservation Agent.

Mr. Wernick stated there is no plot plan, just a proposed structure shown on the septic plan which is dated 1985.  Mr. Lee asked the applicant if he had an updated plan as we need one prepared by a land surveyor showing what is being constructed and what is there.  He has no issues at this time as there is nothing there right now.  It appears that there are no setback issues.

There were no neighbors present.

Mr. Wang stated there is presently a master bedroom on the second floor with no bathroom.

Mr. Lee continued this hearing to May 26, 2010.

8:15 P.M.  New Hearing:  Eduardo Nillni, Case No. 1658, 40 Pine Grove Avenue:  Mr. Lee read the public hearing notice.  He also read a letter from Jim Andrews, Health Agent and Greg Meister, Conservation Agent.  He also referenced a letter dated May 10, 2010 from Michael Zaytoonia, Counsel for an abutter, the Berman family. The applicant was represented by Atty. Joel Fishman and John Rhodes, Norwood Engineering.

Mr. Lee asked if they made any progress through talks between the applicant and the Berman’s.  Mr. Fishman stated there has been some progress.

Mr. Fishman stated the applicant would like to construct a two-car garage; presently the current garage is within 3-4’ of the property line. The new garage will tie into the existing house and both will match in color.

John Rhodes, Norwood Engineering stated the lot has 140’ of frontage and is 136’ deep.  The lot has a total of 19,000 s.f. and the house is situated slightly off center on the lot.  The proposed 24’x25’ garage would result in being 12.6’ off the property line. As part of the project they are proposing to tidy up the driveway as it is part gravel and part bituminous concrete.  There was discussion of planting six 6” hemlocks next to the garage and there is ongoing discussion about landscaping.  Mr. Rhodes stated the driveway will become pervious pavement or pervious blocks.  There will be 2560 s.f. of impervious cover, which is under what is required.  The run off is clean roof water.  They are proposing to pitch the driveway from west to east and can easily grade the surface next to the garage to deflect drainage onto the Berman property.

Mr. Wernick asked if there is any engineering reason why the garage couldn’t be put on the other side of the house and Mr. Rhodes stated no.

Mr. Fishman stated that Mr. and Mrs. Nillni are requesting a special permit for a two-car garage to accommodate Mrs. Nillni’s needs due to a progressive disability, multiple sclerosis and to improve the quality of her life.  They have consulted with many experts.  The new structure has no detriment to anyone on the street because the street doesn’t comply with the 20’ requirement.  The garage is just to keep the cars inside and maybe to accommodate a wheelchair van.

Marie Nillni stated it is not easy to talk about this.  She has been living with this since she was thirty years old.  She tries to keep herself as healthy as possible, but it now takes her about a half hour to recover from taking a shower and she can’t do any physical activity, such as shopping.  She needs to stay in air conditioning when it is hot. She now wears a brace and uses a cane as her balance is not good.  Snow and ice in the driveway is hard on her also.  Ms. Nillni stated there is no cure for MS and now has to work on making her house handicap accessible.  She will be 52 this week and still wants to join in with her family and friends.  The new garage will help and hopefully make a huge difference in her life by keeping her safe.

Judy Cotton, _________:  it is a progressive disease.  This project will ensure greater safety for Ms. Nillni and will help her meet the challenges that MS will bring to her life.

Mr. Fishman submitted a letter from Dr. Stankowitz, B&W Hospital for the record.  Mr. Fishman stated the garage will not be living space; further, 2/3 of the lots in the neighborhood are nonconforming and this proposed addition is not out of character to the neighborhood.

Barry Berman’s attorney:  the Berman’s do understand the need for this and it is not their purpose to deny the garage, but they are trying to satisfy the needs of Ms. Nillni and their own.  If this was on the other side of the property, they would need to do this.  Some of their concerns are 1) lighting and whether or not it will shine onto the Berman’s property.  Mr. Fishman has assured him the lights will go toward the street, not the Berman’s.  He would like that to be a condition of approval; 2) some type of shielding for the lights; 3) no additional car, pavement or gravel on the area that is closest to the Berman’s. 

Mr. Fishman stated the only thing on the Berman’s side of the property is grass and trees.  At this point, they cannot agree on what trees would be sufficient to be used as a shield.  They also disagree on the depth and scope of what that line of trees would be and obviously what that cost would be to the Nillni’s.  Mr. Berman’s attorney stated that Mr. Fishman had spoken of 6’ hemlocks, but they would like 10’ tall trees between the Berman’s and the garage.  They would like to come to an agreement.

Mr. Lee asked if they are looking for western arborvitaes and Mr. Berman stated yes.  His attorney stated that curb appeal is also a concern.  They are concerned the garage will make their place look cramped and thus diminish the Berman’s property value and it could affect the whole neighborhood.  They are not adverse to a one or two garage being built on the other side of the property.

Mr. Berman, 42 Pine Grove Avenue:  stated he has lived in his house for 34 years and has spent a lot of time, energy and money to make it nice as he can, both inside and outside.  He is aware of the feelings and emotions with regard to the things that have been said here tonight, but he wants to protect his property and not lose its value. He had a severe water problem and built a drywell in accordance with the town; therefore, he wants to make sure the water from the Nillni property is directed in the right direction.  He asked who determines that this is being done in the exact way it should be.  Mr. Lee stated the Zoning Board would if this is granted by putting in conditions such as types of trees and grading.  It would be required to go away from the adjacent properties.  These conditions would be all enforceable.

Mr. Lee stated that everyone has been very civil tonight.  We want to make sure if we grant this that we outline exactly what will be done.  He asked for public comments.

Dr. Raymond Furso, Neurologist at BU School of Medicine:  he runs an MS clinic and the statements and letters read tonight are correct.  The possibility of having to go to a wheelchair is real.  There are good days and bad days and that can relate to temperature.  The other issue is that there are practical implications.  If Ms. Nillni falls and breaks an ankle or hip that would bring out signs of MS which will not go away.  He fully supports this as a neighbor and physician.

Karen Wise, 44 Pine Grove Avenue:  when you talk about the neighborhood and how a garage might affect their curb appeal, she doesn’t feel a two-car garage will have the slightest effect on downgrading the neighborhood.

Mark Wise, 44 Pine Grove Avenue:  the Berman’s garage is about 1-½’ from their property and he is fine with that.  The have no problem with it and doesn’t feel it impacts their property.  He is in absolute support of the request by the Nillni’s.

Mr. Bianco:  stated he is new in town and doesn’t feel this is such a bad request. 

David Gero, 36 Pine Grove Avenue:  has no objection to this plan.

John Rhodes, Norwood Engineering:  in terms of there being no severe engineering problems, that is correct.  To put a paved driveway on the other side would require a whole new driveway.  He is not sure how they would enter their house from that side, but it might have to be through a bedroom.

Mr. Nillni stated that would be an expensive problem to change the location of the garage.  They have tried to address all the concerns and he strongly disagrees that the neighborhood would be affected.  When homes are improved, it raises the value of all the properties.  He doesn’t understand that point that Mr. Berman’s property values would diminish.  Mr. Fishman stated the current situation doesn’t have great curb appeal now.  A new two-car garage with grass and proper screening would look much better.

Mr. Wernick feels that screening could deal with a lot of issues.  He feels we have to protect the neighborhood and neighbors.  He is concerned with the screening issue.  Mr. Lee stated it is a two-car garage and asked why they are not proposing a one-car garage.  Mr. Fishman stated it would have to be an oversized one to accommodate the wheelchair and van. They would be juggling.  Mr. Fishman stated their daughter comes to visit on the weekends and her car would have to be parked beside the garage.  Mr. Lee stated the setback is 20’.  A large one-car garage would be better, but a two-car garage would be better for the Berman’s or they will have cars parked right beside their property.  Mr. Ruskin stated he thinks the project is reasonable regardless of the handicap issue, but does agree with Mr. Lee on the screening. Mr. Newman stated it appears they are approaching an agreement between the neighbors and we should give them time to negotiate.

Mr. Lee asked the Nillni’s if they want further discussion with Mr. Berman or his attorney in order to decide what would be best for both parties or we can layout tonight what we as board think would be best.  Mr. Fishman stated he feels they should further negotiate.  Mr. Berman’s attorney agreed.  Mr. Lee again stated he is not sure why it has to be a two-car garage.  Mr. Fishman stated it doesn’t, but there will be cars parked outside.  Mr. Nillni stated that a van takes up a lot of space.  They need to work out a “green” fence.  Mr. Rhodes asked if the board is looking for more proof for the drainage or are they comfortable.  Mr. Wernick stated we are more concerned with screening.  Mr. Lee stated that looking at the plan, the rough topo lines are exactly as Mr. Rhodes has presented.  Specific drainage will be away from the adjacent property lines.  He feels this should be a condition of approval.  Mr. Rhodes stated the board can request certification of the drainage if they choose.

Mr. Lee continued the hearing to May 26, 2010 to allow negotiations to continue between the Nillni’s and Berman’s.

9:30 P.M.  New Hearing: T-mobile, Case No. 1655, off Canton Street:  (Mr. Lee, Mr. Newman, Mr. Lee, Mr. Ruskin, Mr. Okstein).Mr. Lee read the public hearing notice.  He read letters from Jim Andrews, Health Agent and Greg Meister, Conservation Agent.

There were no neighbors present.

The applicant was represented by Joshua Delman and Scott Heffernan.  Mr. Delman stated they have identified a gap in the existing service and could provide relief with this application.  The proposed location is along the existing Amtrak line.  Mr. Lee questioned the coverage from 2 N. Main Street.  He thinks the zoning bylaw asks for this type of application; i.e., co-location on an existing structure.  The property is owned by the MBTA and the tower by Nstar.

Mr. Delman stated the tower is 84’7”; they are proposing to locate at 80’9”.  There will be two equipment cabinets at the base of the structure.  There will be no new access road and they don’t need screening because of where they are.  Mr. Lee stated that could be a condition of approval.  Mr. Delman stated the closest abutter is in 380’ away in Canton.  They were noticed of tonight’s hearing.  There is just a gravel access road.

There were no board questions.

Mr. Delman asked to close the public hearing.

Mr. Wernick moved to approve the cell tower as shown on a plan dated March 25, 2010 with one condition that there will be no additional access road.  Motion seconded by Mr. Ruskin and voted 3-0-0 (Wernick, Ruskin, Lee).

9:40 p.m. Sharon Middle School Continued Hearing:  Mr. Ruskin recused himself.  The applicant was represented by Dave McKinley from Castle Boos.  He stated that the Conservation Commission issue needed clarification and that they are working out issues between the two engineers, Tom Houston and Chris Garcia and are meeting with them next week.

Conservation Agent, Greg Meister, was present.  He stated there will be a meeting early next week, but there are some areas of agreement already.  For example, everyone agrees that what the Conservation Commission is looking for will be taken care of next Thursday.  Mr. Lee stated there are only minor issues left.  He asked about the sewer line?  Mr. Meister stated they reviewed that.  Mr. Lee questioned the wetland crossings.  Mr. Meister stated they were looking for drainage reviews for Tom Houston to look at.  He stated that things seem to be going well and doesn’t see any problems. He talked to Tom Houston tonight and things should be fine as far as working out any issues.  Tom Houston will present his conclusions to the Commission next Thursday night.

Mr. McKinley stated the second issue is the fence.  He has photos of some of the houses.  He also submitted a plan that shows an existing 6’ stockade fence and an existing 6’ chain link fence, which actually encloses a pool.  There is also another wood fence enclosing another pool.  There are a couple of pine trees that provide a lot of screening.  Mr. Lee asked what they are proposing.  Richard Marks stated they can add additional trees, but it is not in the budget and would need to be approved by the town. 

Gordon Gladstone, Chairman of the Building Committee:  this would be an unanticipated cost and it is not reimbursable. He did walk this site a couple of weeks ago and it vegetated right now and is absolutely impassable to many properties.  There is no evidence that kids have been walking through this area.  If the abutters and Zoning Board are satisfied with the proposed trees, the cost will have to be absorbed some how.  Mr. Ruskin asked where the trees will be placed.  Mr. McKinley stated they will be putting up 12 staggered trees on school property to provide visual blocking.  This is instead of fencing.

Mr. Gladstone stated they don’t believe they are doing anything to increase visual issues or issues involving kids on the property.  There is no reason for kids to be in the back of the building either now or when they are finished.  Nothing is really changing.  Mr. Okstein stated there is a paved path.  Mr. McKinley stated that is a requirement of the fire department.  Mr. Okstein asked if that makes it more accessible.  Mr. Ruskin stated that originally there was a road proposed for back there.  Most of the trees are behind his house and the other neighbors are requesting a fence. He likes the fact that they made changes as a result of the last meeting.  Speaking as an individual, this is better for him and he is satisfied.  He is sorry the other abutters aren’t here tonight.

Mr. Lee asked the width of the buffer between Mountain Street and the parking lot.  Mr. McKinley stated 20-25’.  He tried to keep as much of a berm as possible.  Mr. Okstein stated that because the neighbors that wanted a fence are not here tonight, he doesn’t have a problem with them not getting it.

Mr. Lee stated we can vote on this contingent upon approval from the Conservation Commission.  They can make minor drainage modifications without a problem.  Also, the plan of record is dated March 17, 2010.  Mr. Okstein requested that a copy of the plan be on file in the library.

Mr. Wernick moved to grant the Applicant a variance from lot area coverage limits, a variance from the impervious materials limits, a variance from the minimum natural vegetation requirements, a variance from building height limits, a variance from the required landscaping requirements, a variance from the wetland setback requirements, and a special permit for an underground acid waste tank subject to the board’s (9) standard conditions and (2) Special Conditions:

1) Approval is contingent upon receipt of approval given by the Conservation Commission.

2) In lieu of fencing, twelve trees will be planted at staggered intervals along the back property line.

Motion seconded by Mr. Okstein and voted 3-0-0 (Lee, Wernick, Okstein).

Mr. McKinley stated that his email address is:  DMcKinley@kba-architects.com if there were any questions.

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

                                                Respectfully submitted,

Approved 9/22/10