Minutes
of March 6, 2007
Present were: Acting Chair Marilyn Richards; Donald
Anderson, Clerk; and Thomas Morrissette. Louis Calabrese and Michael Przybylowicz were not present.
Jessica Allen discussion on Mixed use by-law proposal
Ms. Allen said that the town was
awarded a Smart Growth Technical Assistance Grant through the state. She said that it is a funding source that has
been around about 3 years and they are not sure what is going to happen to it
next year with the new governor because it was something that was awarded through
the Romney administration. She said most
of their projects did not get funded and they only had a handful funded this year so
Mr. Anderson asked it was like an
overlay district type thing? Ms.
Macdonald said that it was more geared to address the proposed Jay LeFebvre project. Mr. Anderson asked if it would be on one parcel? Ms. Macdonald said anything with a mixed use,
retail, restaurants, apartments that type of use - it first came about when Jay
purchased the property and was looking to do a type of mixed use at the center. She said as you know, if there is no by-law
in place then there is no enforcement for it.
Mr. Anderson said the thing with Jay’s project is that he does not think
the Board had an issue with the mixed use, rather with the coverage chart
because he wanted 60% lot coverage. He
said the thing to be careful with is not the concept of mixed use, but to make
sure that somebody does increase the lot coverage allowance.
Ms. Allen said that it was the Board’s
ability to draft what they want. She
said that if Jay LeFebvre’s project turns out to be a 40B project there is not
much the town can do about it. Ms. Macdonald
said that he has attempted to get approval for a 40B application but has not
been successful so far. Ms. Allen said
in the 40 B process he would by-pass all zoning anyway. Mr. Anderson said that 40B is for apartments but can you have 40B if you
want to construct a restaurant? Ms.
Allen said that she was not sure, but if
he is going to be building both and he’s going to provide 25% of his units
affordable, she is guessing he might be able to do it under Chapter 40B.
Mr. Anderson said that he wants to
make sure that the Town does not look at
this by-law creation simply to benefit one person. Ms. Allen said no that they could define
exactly what they want, if they want it to be an overlay district, create a new
zone, or simply amend some of the existing.
She said that it is up to the Board on how they want to deal with this
and she is there to hear their thoughts. Ms. Allen said that she could come
back to the Board in about a month and provide them with a working draft that
we can start discussing and modifying.
Ms. Richards said Jay LeFebvre’s
proposed project is the only one the Board has to refer to and when he was
putting it together the Board felt that he was taking from what would benefit
his success and not really looking at a total mixed use district or smart
growth district. She thinks one of the
things the Board should do in their deliberation is look at the entire Town and
hone in on what might be a good area to promote this kind of development. She thinks anything 9/10ths of a mile from
the Center is going to be a hard sell no matter what because it is already a
highly congested area. However, she
continued, there are other areas within the Town that might lend themselves to
this type of project. Ms. Richards said
that she doesn’t know if that would be a beneficial component - maybe they
could have a smart growth residential district, you could have normal house
built but maybe have that area zoned as a mixed use if there was creative
developer who wanted come in and promote that kind of use, that might work.
Mr. Morrissette asked if she was
talking straight residential nothing with businesses? Ms. Richards said no, it would be like an
overlay district, the golf residential district if its not golf it has to be
residential. She said if they designated
an area in Town for Smart Growth, just like the elderly residential, the bottom
component is residential but it’s been rezoned to elderly. Mr. Morrissette asked if she was saying if we
had something like this we could say for instance, Franconia Golf Course is
going to be sold and they can now use it as a 55 & older project without
going through the zone change? Ms.
Richards said no. Mr. Morrissette said
then he doesn’t understand the benefit.
Ms. Richards said that they were just throwing it out there and as she
was talking about it she was thinking what parcel in Town would they designate
for Smart Growth, is that property owner going to be in a better position then
somebody else?
Ms. Allen said be careful about
spot zoning because you don’t want it to be just one parcel, you want to think
about this as many parcels in a certain area that you’d want to have a certain
look to - that you might have a bit higher residential that you might in other
components, that you give the ability to have commercial on the base floor, residential
above, pedestrian walking, think about parking, landscaping, traffic
issues. She said if there is a part of town
that it makes sense to have a little bit of a higher density, it would almost
be like a village center within your community because you already have a
pretty dense downtown area.
Ms. Richards said that was one of
things they talked about with Jay LeFebvre’s project. In spite of the fact he
was located on the railroad there’s no commuter rail traffic coming in and
out. She said the big issue for his
development would be parking, over-utilization of a small parcel. She said
Mr. Morrissette said if you took a
place like she described and wanted to do a mixed use with some commercial
business use underneath and apartments above, that area does not lend itself to
that.
Mr. Anderson said that he wasn’t
thinking of that one. He said we’re talking
over 55 place where everything is focused in one area and walking is easy but
maybe you allow up to 2,000 square feet of a mini-mart or a haircutting place
or something like that as a part of the mixed use and in consideration of
having walking trails and parks and leaving trees and doing stuff. Ms. Macdonald asked if he was talking about a
gated community? Mr. Anderson said not
necessarily a gated community but make the houses smaller, more affordable and maybe
have a small convenience store in consideration of not having to clear cut the
rest and put in roads all the way - they have to have walking trails, parks, picnic
area, things of that nature. He asked if
that was on track?
Ms. Macdonald asked Ms. Allen if
she was talking single family units? Ms.
Allen said not necessarily, maybe it can be.
She asked if they were familiar with
Ms. Allen added it would be a
combination of commercial and residential and rather than have it be so auto
focused, which is what it is now, provide the opportunity to people who might
not have the access to a car, elderly people who might normally take the bus or
walk to get groceries would have that ability to do that and live in area where
the service is already available. She
said maybe that is what we need to think about in an infill way rather than
creating a new development on an empty parcel.
Ms. Richards said the parcel that
pops into mind is behind the Stop & Shop in terms of infill, in terms of an
area in the midst of a business-retail type of establishment.
Mr. Morrissette said there is one
thing that he caution’s the Board that the down town of East Longmeadow has no
parking available and any more growth could prove to be more than difficult –
there is absolutely no parking available.
Ms. Macdonald said unfortunately
all of the grocery stores are at the other of end of town so elderly people are
not going to be able to walk down to North Main Street to go to the grocery
store and the convenience stores in this area are far to expensive for them. She think it’s a great idea but she doesn’t
know what they could do with it.
Mr. Morrissette said that he
doesn’t think that the center could handle it, which it where it work the best
for her ideas. He said from
Ms. Richards said the one thing
that they have learned is that we think that
Ms. Allen said that it depends on
the developer, for some of them it can be very lucrative because now you are
getting not only rental apartments that make a profit on month after month you also
have rentals for the commercial spaces as well.
Ms. Richards asked if it has to be
subsidized housing? Ms. Allen said
absolutely not, it can be market based.
Ms. Richards said there is a need for market apartments in town because
all of the elderly housing is based on low to moderate incomes. Ms. Allen said that there was nothing in the
by-law that would say that unless you want it to. Ms.
Richards asked Ms. Allen if she was familiar with the mixed use development in
Westborough? Ms. Allen said no. Ms. Richards said that she saw the plans and
it’s incredible with single family homes, however there are acres of land and
she thinks it was an industrial site at one point. She said that it’s within the business
district but it’s not something that would probably fit in
Ms. Allen said that she thinks
that the best fit for
Ms. Richards asked if the
prerequisite could be limited to business/commercial zone/ industrial rather
than touch residential. Ms. Allen said
that she thinks that makes more sense.
Ms. Richards asked if it would be subject to a Special Permit? Ms. Allen said that it was up to the Board.
Mr. Morrissette said that he
thinks the Board should make it a requirement so they could have some type of
control over the area and what would be constructed.
Ms. Allen suggested that they keep
it to the business and commercial district.
Mr. Morrissette said that the business district is the one that is
completely congested the commercial one has maybe some room for such a project. Ms. Allen said the fact that there is a
grocery store not so far outside the center of town is good - she knows many of
communities where their downtown grocery store is gone. She said you have elderly that are shopping
literally at CVS to get their groceries because there is nowhere else to go and
they can’t get any farther than that and it is just a very sad thing.
Ms. Richards said in their deliberations
she thinks they would need to also talk about density of any proposal they
might consider. She said as Mr. Anderson
said the Board wasn’t against what was being proposed at the Community Feed
property it was just that it was too much for the area. She said she doesn’t know what she is
experiencing in other communities that have successful developments like this
with respect to density.
Ms. Allen said that they can draft
it the way they want to, you can make the density what you are comfortable with
because it’s up to you to define what makes sense for your community.
Ms. Richards said for instance if
the Board goes with the 35% lot coverage which is the planned business development, if we did
something like that would a developer even be interested because we are looking
at cost effectiveness for someone to want to develop something like that?
Ms. Allen said when most of
commercial developers come she thinks most of the time they are just looking at
a one floor building - now you are giving them the ability to build a two-story
building so your not necessarily dealing with density in terms of lot coverage.
She said you would be dealing with
height restrictions so you will want to make sure that the height restrictions
match what you are comfortable with because you don’t want somebody coming in
building a four-story building - you just want a two-story.
Ms. Richards asked why doesn’t she
do 25% to 35% lot coverage? Mr. Anderson
responded, because you have to account for parking and walking because some of
the retail or commercial elements really should be more on the traditional
banking hours. He said where the
resident traffic would be after hours or some type of ratio’s.
Ms. Allen asked if they were
interested in moving forward on it?
Ms. Richards said she thinks
so. Mr. Morrissette said that he is a
little cold on it. Mr. Anderson said as
long as we take it systematically and take a look at the map and see where it
can be placed and just discuss what if’s and then move on.
Ms. Allan said she wanted to make
sure that everyone is comfortable with this because the last time we tried this
with the inclusionary zoning it didn’t go very far and the state
was not happy with us. She said she wants to make sure that they are
really committed to going forward on this because it is a grant and the state
is looking for results and if half way through it the Board is going to say
maybe we shouldn’t do this at all, she would prefer not to begin the process.
Mr. Anderson said if the Board
does due diligence and then we come to the conclusion that there is no way of
making this work. Ms. Allan said as long
as they have something to show the state that the Board did work on this, made
some progress then determined it would not work – the state would not be able
to fault the town for not wanting this by-law.
Ms. Richards said that it’s premature for her to even weigh in until she
know what’s out there they we can apply to our town.
Mr. Morrissette said that it seems
to him that they are trying to make the town something it’s not. He said that they’ve heard people say before we
are not like Longmeadow well we aren’t
Longmeadow, we aren’t the type of area where people walk and do things
like they do in Northampton. Ms.
Macdonald said that too much damage has been down to the center already. Mr. Morrissette said it’s not damage it’s
just the way every thing worked out, it’s just the way everything was laid out,
the town was laid out this way from years and years ago and it’s not going to
be walking community where you walk from one area to another. He said that he doesn’t see it going forward
but he thinks they need to do some due diligence to figure out what whether it
is something we might do.
Ms. Richards said the only reason
she is interested in getting more information because she sees it in
Westborough and if it is set up similar in
Ms. Allen asked if they would like
her to come back and provide the Board with some examples and different ideas to talk
about at the next meeting?
Mr. Anderson said that he thinks we
should take a look at the Town of
Ms. Macdonald asked Ms. Allen if
she was available on April 3rd at 7:00 p.m. Ms. Allen said that she thinks that would be
fine and find some examples of communities that have it with infill rather than
theses huge projects.
Ms. Richards asked her if there
was any way she could get it to Ms. Macdonald about a week in advance? Ms. Allen said sure.
Public Hearing – Zoning By-law
Amendment – Unregistered Motor Vehicles
Acting Chair, Marilyn Richards
opened the hearing and introduced the Board members. Clerk, Mr. Anderson read the legal notice and
the article into the record.
Petitioner, Caroline Kozec explained
that she started working on the proposal 1 year ago. She lives on 9 Smith Avenue and her neighbor
across the street from her has a 40 foot tractor trailer bed on his property
(submitted a picture to the Board). She
said that the tractor trailer has been there before 1998 and there is debris
and rubbish all around the property. Ms.
Macdonald asked if it was no longer covered?
Ms. Kozec said no longer covered and that’s the reason she put in the
article about being out of sight because the owner, Robert Fiore was told by Dan
Hellyer the Building Inspector that if he put a tarp over it that there was
nothing she could do about it. She said
she went home and her neighbor put a tarp over it and claimed it was out of
sight and when she went to the Building Inspector and was told by Mr. Hellyer that
he called him and told him if he to put a tarp over it and then he (Mr.
Hellyer) wiped his hands and said there would be nothing else done about it. She then asked Mr. Hellyer what the by-law
said and the he read it and took it literally out of context saying if the
vehicle was out of sight meaning a tarp that there was nothing we could about
it. Ms. Kozec said if she threw a tarp
over my house does that mean she doesn’t have to pay taxes on it, that’s how
ridiculous she thought it was.
Ms. Kozec said that she started on
April 24, 2006 and went to Mr. Hellyer and said her neighbor had a 40 foot
tractor trailer bed on his property and he had an RV that had broken windows
and flat tires that had been there for several years. Ms. Kozec said he also had 4 or 5
unregistered cars so Mr. Hellyer came up immediately on April 24th
took pictures of the whole property and called her and said that he was going
to send him a letter. She then called
Mr. Hellyer on May 4th to see what was happening with Mr. Fiore and
he said he was busy and had not yet been able to send out a letter. She called Mr. Hellyer again on May 16th and told her that a certified letter was
mailed out on June 27th still had nothing been done, on July 3rd
she want to Mr. Hellyer’s office because that was when she saw the tarp over it
and he said he would call Mr. Fiore. Ms.
Kozec said that Mr. Hellyer had told her after he sent the letter within 30
days if it wasn’t cleaned up the first offense is $100.00 fine and the second
offense would be a $200.00 fine and third would be a $300.00 fine. She said that Mr. Fiore was never fined and
when she called Mr. Hellyer on July 19th she asked him why Mr. Fiore wasn’t fined and
he didn’t give her an answer. She feels
that nothing has ever been done and that was when she took the initiative and
asked for Ms. Macdonald help with the wording for the petition. She went out
and got 118 signatures from residents and didn’t get it filed in time for the
Special Town Meeting but the town Attorney wrote a letter stating that she had
the authority to act on behalf of the petitioners to ask that this article be
placed on the next Annual Town Meeting in May.
Ms. Kozec showed the Board some
pictures of Mr. Fiore’s driveway that has trash and debris all over the
yard. She said on January 11th
Mr. Hellyer and Mr. Kowal, Health Inspector went to Mr. Fiore’s house and in a letter
she had received from Mr. Kowal he said that on a joint inspection of 26 Smith
Avenue there were no public health violations, there is an old secured trailer
that is a concern of the neighbor next door (meaning her) and currently there
are no by-laws regulating this unit. Further,
Mr. Kowal wrote that they spoke with the neighbor and reviewed their visit and
she is moving to try and have a town by-law that will address her concerns and
situations. She said that was in January
2007 and how can East Longmeadow say that her neighbor can have a 40 foot
tractor trailer in his yard and the town can’t do a thing about it? She feels that the by-laws are so out dated
and she has been looking in the papers and in Springfield they have telephone
numbers, quality of life issues in the Springfield papers and they have an
outstanding code violation for liter and debris. Ms. Kozec said that there is nothing like
that in East Longmeadow because if we had something like that he could be made
to clean up his driveway. She
highlighted some things that said “it’s a constant frustration for neighbors”
nobody wants to live near next to someone that has property that be and not
maintained. She said and not to mention that
it’s in violation of city ordinance’s and state sanitary codes. Ms. Kozec said that Mr. Fiore throws food out
in the middle of his driveway, cats and raccoons go into his yard and feed off
this garbage.
Ms. Macdonald reminded Ms. Kozec that
she needs to address the unregistered motor vehicle with the Planning Board and
the Board of Health is under the Board of Selectmen and we need to separate the
issues so that the Planning Board can help you with the unregistered motor
vehicles.
Ms. Richards said that the Board
hears her concern and that they do not disagree with it and that’s why they
need have the public hearing and find out if there are any other comments being
made by the community with respect to this and we also have some suggestions
from other communities about tightening up the by-law. She asked when the warrant goes to
print? Ms. Macdonald said that it has
already gone in for approval. Ms.
Richards said if they were going to change the language we would have to amend
it at Town Meeting. Ms. Macdonald said
because it was a petitioned article and Ms. Kozec had to file the petition in
December or early January.
Ms. Richards said just so that she
understands it correctly, regardless of the Planning Board’s position on maybe
fine tuning the language so that it’s more technically correct, the Board can’t alter it because it’s a
petitioned article, it has to go in as submitted and then the Board would, on
the floor at town meeting, propose the changes if were going to recommend it.
Ms. Kozec asked if there would be
anyway the Board could leave it stating that a 40 foot tractor trailer bed
would not be allowed on residential property?
Ms. Richards said that there is a
variety of things that the Board could possibly do. She said
the whole opportunity that evening is to get information and she has
thought about individuals and they wouldn’t want to prevent something like this
on farm for instance.
Mr. Morrissette said that the
procedure for this night is basically to hear what the public has to say. He said that her article is going to Town
Meeting the way she wrote it and between now and the time of Town Meeting the
Board wants to have the opportunity to meet with her again to go over some
technical changes and wording changes that the Board might want to put on the
floor so she isn’t blind sided at town meeting.
He said if she agrees with the changes at Town Meeting and if they agree
with the changes then the Board can support it if not, then we cannot support
it as it reads now. Mr. Morrissette said
that this evening was to hear from the general public as to what their concerns
are with this particular by-law and then the Board will close the hearing and
discuss it within the next month or so.
Ms. Kozec said she really wants the
support and recommendations from the Planning Board at Town Meeting because
the public is going to look at the Town
Planners to recommend it as it will be a
zoning by-law that will be there forever. Ms. Macdonald explained to Ms. Kozec that the
Board agrees something needs to be done but also that people that are legitimately restoring some
prize possessions need to be able to continue to have them. She said that it is a tricky situation and
she has given the members information from the other towns that have the same
situation and they also want to protect people that are really doing something
legitimately.
Ms. Kozec said that it’s directly
across from her house and it’s a real eyesore that they have been looking at
for 9 years and she thought by going to the building inspector she wouldn’t
have any problem and when she found out there was nothing she could do about it
her only recourse was to get a petition.
Mr. Morrissette said she did good
and the Planning Board just needs to tweak it, get the input from the public and
move forward from there. Ms. Kozec said that would be fine.
Ms. Richards addressed the Board
for any other questions.
Mr. Morrissette said that the
Board has to deal with the people who legitimately have vehicles they are
restoring, we now allow one unregistered vehicle to be in the driveway, there
is nothing about the trailer, although under Section 3.309 Recreational
Vehicles, are dealt with, however, it says recreation vehicles or trailers for
the purpose of carrying recreational equipment may be kept or stored on any
lot. He said if you read in a particular
way to get around the by-law, the Board is going to have to draft the by-law strong
enough to work. He thinks they need to
be able to allow people to have at least one vehicle. Mr. Morrissette continued by stating that we
have always allowed people to have at least one unregistered vehicle in their
yard and he is in favor of that.
Ms. Kozec said that it says that you
can have one unregistered vehicle. Mr.
Morrissette said but her proposal states that it has to be able to pass
inspection and many cars do not pass inspection especially if they’ve been
sitting for a number of years. Ms. Kozec
said that her problem was that her neighbor had a number of vehicles with
broken windows and an RV with broken windows and no wheels.
Ms. Richards addressed the
audience for any questions.
Mr. Kozec, 9 Smith Avenue said as
far as a legitimate use, he has no problem with that and he thinks an
unregistered vehicle - he doesn’t even care if it’s a vintage vehicle -there
should be a limit on time that they can keep it. He said once you don’t give them a limit it’s
there forever, especially with his neighbor and he doesn’t think he should be
able to bring a trailer in, dump it and leave it.
Ms. Richards said that she was
looking up the definition of what’s a vehicle, vehicle for the purposes of this
by-law shall include cars, trucks, recreation vehicles, vans and mobile
construction equipment, now the trailer doesn’t fit any of those.
Ms. Kozec said that he got the
tractor trailer bed because he took down his garage and moved all the contents
into the trailer and then built a huge 2 car garage with a bedroom over it but
has never emptied out the trailer and it has been there 9 or 10 years now.
Ms. Richards stated, just for the
record, the Board has some sample by-laws that Ms. Macdonald put together that
have worked in other communities that we will look into in terms of maybe fine
tuning the language if the Board is inclined to support for Town Meeting. She said the other issue was that only 3
Board members were present that evening so the most she is going to get is a
vote of 3 for this particular proposal and that is not her fault. She said that the Board recognizes that it is
an issue of concern and what makes it a little bit of a challenge is the
enforcement component to the whole issue.
Enforcement is under the jurisdiction of the Board of Selectmen and so
that’s the hard part. She said the that
the Planning Board oversees the zoning by-laws and are responsible for
interpreting those by-laws but the Board doesn’t have any authority over the
individual who is the enforcement arm of the community so they have to work together.
Lucy Markowski, 45 Redin Drive
said that she sympathizes with Ms. Kozec because she has to look out of the
front to her house and for over 7 years there has been a hunk of a junk of a
jeep which has broken windows, 2 flats and dents and within those 7 years other
junk cars came along and finally the jeep was gone and the car was gone for a
day an half and other car was back. She
said that she doesn’t know cars so she didn’t know if it was the same car or it
if is another car. Ms. Markowski said
that the vehicle doesn’t have a plate on it and it’s really an eyesore and she
thinks that it lowers property values.
Ms. Richards said that she was
pointing out that beauty is in the eye’s of the beholder and the Board must to come
up with a recommendation for language for a by-law that would meet the needs for
the entire community. She said that the
by-laws don’t always dictate good taste and so we do the best that we can with
the resources we have.
Ms. Richards addressed the Board
for any further questions. There being
none and upon motion duly made and seconded, the Board voted unanimously (3-0)
to close the hearing. Ms. Richards said
that the Board will take it under advisement and see whether they can come up
with something that is more reflective of what the overall needs are within the
community and that way the Board will make a determination whether they will we
support the article or not.
Continuation Public Hearing –
Mapleshade Driveway
Present for this hearing were
members of the school committee, John Stanberg, architect and Edward Costa,
Superintendent of Schools. Ms. Richards
said that the legal notice was read at the February 20th hearing which
continued the hearing to this evening.
She said historically there were some issues with a driveway that came
up during the site plan review that took place a while back. Ms. Richards said there were some concerns
about inappropriate use of that driveway and some conditions were placed on
that driveway and subsequent to that the petitioner has asked the Board to
relieve those conditions. She said that
the Board did so at a previous meeting and the Board voted at that time to
remove the restrictions of the driveway gate based on the fact there was no
problem and the Board also voted to revisit it in the future in the event that
there were any concerns that came up.
Ms. Richards said that the Board voted to remove the restrictions and
then realized that we probably should have had that process as part of a public
hearing because a very kind gentleman (Ed Matulewicz) objected who is present
this evening, so that is why we are here again this evening. At that time Ms. Richards introduced the
Board.
Ms. Richards informed Mr.
Matulewicz that the Board voted to lift the restriction and that’s basically
where we are right now. She said that it
was done at public session but the Board felt that it was important to revisit
it and see if there is anything that we over looked prior to making that
decision. She asked the people present
from the school what the status of the gate was currently?
Dr. Costa said the whole reason
why they want the chain to remain unlocked, first of all for safety reasons and
primarily is wasted resources. He said whether
they be man hours, phone hours, DPW is having to unlock it every time there is
inclement weather because they are on the road well before our custodians
report to work. He said there are wasted
resources because we are the ones financially responsible every time a car and
truck backs into the chain and pulls the metal piping that the chains go
between and they have been repaired at least 3 times in the history of the 5
years. He said when it is locked there are
issues where vehicles who are just bent to get there anyway drive across and
onto the fields to get around. He said
it’s not a good solution for the people and he is not just talking about kids
because some of them are adults who play softball on the weekends. Dr. Costa said that he believes that the
chains are more of a hazard and a safety issue.
He said when the chains are up in the summer when softball is well under
way the cars will park all the way and the last few cars have their rear ends
onto the Mapleshade Avenue Street area.
He said it brings back the original problem why they put that driveway in
- to get traffic off of Mapleshade Avenue and then of course during the summer
we get the calls that say we forgot to undo the chain for the ball players we
say that it’s secretarial time in our office as well. He said it’s a source of resources that is
being wasted because that driveway is under the first ruling was to remain
vacant other than beginning and ending of school and we are getting the calls
and people are having to do things and we are spending money on repairs. Dr. Costa said if you put it all under safety
number 1 and wasted resources number 2 that’s what these 10 bullets amplify and
that’s the reason that we asked originally for relief which was granted in
October 2006. He said that their opinion
has changed but he just wanted to renew those reasons why they asked for the
relief.
Ms. Richards asked if the gate has
been down since of October 2006 and asked if there have been any issues with
respect to the fact that the roadway is no longer blocked?
Dr. Costa said none that he is
aware of and most likely if there were problems there would be police logs and
personally he is not aware of any issues since the October lifting of the
changes.
Ms. Richards addressed the Board
for any questions, there being none addressed the audience for any questions.
Ed Matulewicz, 170 Mapleshade
Avenue said in looking at the 10 bullets and pretty much every one of them is
correct - there is no question in his mind that the driveway for picking up and
dropping off kids is wonderful, it’s much better than having them dropped off
and picked up on the street. He said
that he had a couple of concerns with it being unlocked, one concern he has is
with the sidewalk that goes from Birchland to Mapleshade. He said in the summer time and after school
at night a lot of families take walks and bike rides and the sidewalk runs
along Mapleshade School kinds a continues along the side of the school and goes
onward towards the corner of Mapleshade and Elm Street. He said the gate there is not locked
currently and his concern is because he lives there and sees what goes on after
school hours many times kids park their cars and play basketball and they
scream out of there and the kids that go that way almost have been hit from
people playing or parking on the hard top at night.
Mr. Morrissette said that they
aren’t talking about people playing on the hard top. He said that was an internal thing with the
school and that the chain is not considered part of the chains we are talking about
and asked if it was something they did internally? Dr. Costa said that it was still used
temporarily with kids and for pedestrian flow so that people don’t jump from
the parking lot which is not being discussed over into what we call the access
driveway - that is not what is being discussed they are talking about the chain
over on the edge and the exit. Mr.
Morrissette said that he understood it was not being discussed but is that
chain planned on being used, the one we are not discussing? Mr. Matulewicz said that it might be only
when it snows for plowing and in the winter - there are different issues in the
summer. He said he doesn’t disagree with
anything that is here except when you live across the street the litter and the
language is annoying and they drive through and race through late at night. He said even during the school day there’s a
lot of cars that use that driveway along with big trucks and that is one of
reasons he wanted it locked. He
continued by stating that everything mentioned in the 10 items is pretty much
correct, but as a person who lives across the street it is a concern for
him. Mr. Matulewicz said that he liked
it better when it was chained.
Dr. Costa said that he would
recommend to the Board that there are resources and existing by-laws on the
books for East Longmeadow that if we see a container truck that’s parked
there’s already by-laws that prevent that.
He said that they don’t want to cause their abutters any pain they are
just trying to focus on the safety issues and see it as a benefit without the
chain.
Mr. Morrissette said that he
understands that the ballplayers get out of control but even if they park in
the back parking lot, where they do also you’re going to get the litter, you’re
not going to hear the language over there but the people over on that little
road that Redin Street, that dirt road back there are going to get it. He said that the ball field is there for
everyone to use and personally as for the chain itself - he could never
understand why the chain was put up in the beginning. He said none of the parking lots for the
schools are chained or blocked off and are all for public use and he
understands it could be a cut through at certain times and hopefully people
won’t use it much. He does not see it as
a terrible negative himself and sees it as a good service for the town.
Mr. Anderson said that he was on
the Board back in October 2000 and the argument that he recalls for the chain
was thinking that children might have an expectation that it’s part of the
school and they might be playing in the area where as people driving down the
street would think that it’s a turn around spot or something. He said that they have had the benefit of 7
years of experience and vigilance so maybe now it’s appropriate to revisit it. He added that if the Board starts seeing kids
playing on it thinking it’s an extension of the school playground when it’s
really an area for driving, then we would like to hear directly and we will
reconsider it again.
Mr. Morrissette said that was why
the Board put in their decision the 12 month revisit option - to look at it if
something did come up. He said that it
doesn’t need to go 12 months if something were to happen at 6 months we could
deal with it at that point and time.
Mr. Matulewicz said that he could
live with either decision but he did like it when it was chained because it
just gave it a little bit more privacy but he can live with the chain down and
he liked the fact that the kids get picked up safely. He wonders if it’s safe to have that driveway
opened during the school day when kids are playing out there?
Mr. Anderson asked a member of the
school board if he was aware of any trucks or is it something very few and far
between? Mr. Anderson asked if it was in
anyway tied into the deliveries to the school?
The member said on occasion he understands that a driver had made the
wrong turn thinking that was the drive through to the school.
Mr. Morrissette asked if there was
any type of sign saying it is not a thru way?
Dr. Costa said that it says drop
off and pick up.
Member of the school board said
that there was a gentleman with an elderly mother who had suffered a shock and
he drove in there just trying to get her some stimulation by having her watch
the kids.
Ms. Richards said she thinks the
decision to unlock the chain was based on valid reasons and that’s why the
Board made the decision back in October to revisit it and lift the
restriction. She said that a public
hearing isn’t needed to facilitate change if there is a problem with the
driveway and in her opinion she is not inclined to reverse the decision but she
also appreciates the concerns whenever anyone lives close to a public building
- there is going to be more use and people use it differently, some people use
it with manners and some people don’t and that’s unfortunate. Mr. Anderson said the 10 points seemed to be
good reasons he would leave it the way it is at the moment, however, let’s not
wait for a tragedy to reconsider it.
Dr. Costa said rest assured if
something develops and it’s not the case now let’s just look forward and all of
a sudden it becomes a party hang out at midnight every night and police are
having to clear that up they will come back and readily except the fact that
things have changed. He said that they
are not trying to cause the abutters any pain but until such time they ask that
the chains be lifted.
Upon motion duly made and
seconded, the Board voted unanimously (3-0) to close the hearing. Upon motion duly made and seconded, the Board
voted unanimously (3-0) to affirm the vote from October, lifting the
restrictions of the chain at this area, with the option to revisit same in the
event there were any complaints.
Discussion regarding Graziano
Special Permit
Mr. Morrissette explained to the
Board that he, Robyn, Steve Manning and Town Counsel had met to discuss the
language and they had agreed upon a few changes. He specified that the square footage was
rounded off to 3,800 on the plan, and it was corrected to read the actual 3,875
square feet. Mr. Morrissette also stated
that the language was added stating the Zoning Board of Appeals and the
language which specified the usage. The
plan reads the formula of 1,200 square feet maximum for the personal services
and a maximum of 2 additional units, to be used as office space only. He said that he asked Ms. Macdonald to put in
the conditions an added line to condition number 2 to read “the square footage of the building,
access and egress to the site and specifying the use is limited to 1,200 square
feet for personal services with the remainder of 2,675 to be used as
professional offices only regardless of the current or future zoning uses of
this property”. He said if the zoning
changes were allowed to put something in place he wants to make sure if any
other Board that looks at it realizes that this is the zone and that it can’t
be used for business ever again.
Attorney Manning said that he
doesn’t have much of a problem with it so far, the only problem he does have is
what they discussed on Friday was the professional office, does that exclude
for example sales offices? Mr. Anderson
said that his business - the Travel Agency, is considered business so he cannot
operate in a commercial zone.
Ms. Richards said Ms. Macdonald
brought her up to speed on the meeting that took place on Friday she doesn’t
disagree with what was discussed. She
said that she questioned, can they lawfully in a Special Permit, restrict a use
within a zone? She said that the Board
needed to try and define specifically what low volume uses would be. Attorney Manning said that they are going to
accept it but with one exception. Ms.
Richards said the 1,200 square foot maximum for personal services and then the
remaining whatever square feet would be professional, with a maximum of 2
offices.
Attorney Manning said he thinks
the by-law has a definition of professional office but not a general office use. Mr. Morrissette said the reason they didn’t
want more than 1 business is because every business has a owner, secretary and
receptionist so it made no sense with the restrictions of parking.
Ms. Richards said that all
businesses are still subject to waiver of site plan review and still subject to
bringing whatever proposed use before whatever Board is sitting here to
determine the impact. Mr. Morrissette
said in no way could they put a retail business in and we are telling them in
the Special Permit that it doesn’t matter even though it’s zoned business it
can’t be business retail.
Attorney Donahue said that he is
not going to fight the issue but even if you didn’t he still thinks they can
ask for special relief. He said the
Board can put conditions on it as long as they responsibly relate to the
purpose of the zoning by-law and in this case it is to lessen congestion and
parking with respect to the use of the property. He said he thinks they can restrict the use.
Ms. Richards said she thinks that
is what drove or guided the original Special Permit back in 1984. Attorney Donahue said that he thinks it’s a
permissible restriction at least on this particular Special Permit.
Ms. Macdonald said the last and
perhaps biggest issue is whether or not it is going to go with the owner or
with the land.
Mr. Morrissette said that he
called Ms. Macdonald that day and we have got number 1 under conditions and he
doesn’t believe they need the permit to be in the owner’s name. He said also number 7 which says “the previsions
of this decision shall apply and be binding on the applicant owner, successors
and/ or assigns in control.” He said and
in number 8 “the terms and conditions with Special Permit shall be enforced by
the owner of the property to the extent necessary by law or in equity against
any person or persons attempting to violate such conditions. If the owners fails to enforce this condition
the Town of East Longmeadow may bring a preceding at law or an equity”. Mr. Morrissette feels the town is protected
and he thinks the permit can run with the property.
Ms. Richards said she doesn’t know
what the real concern is because the original Special Permit was granted to
Steve Graziano at 152 Prospect Street.
She said that’s the owner of the property and 152 Prospect Street is his
home address and we weren’t dealing with a section 6 we were dealing with an
expansion of a structure to expand the use.
She said that it was all driven by use, the structure was expanded in
order for him to expand his business, that was the whole premise of doing
it. Ms. Richards said if he couldn’t
expand his business the Planning Board would have not approved it at that time
because it was very conditional on Veritech and they needed studio space and
needed equipment space. She said also
the support of the fact he had a viable business in the center of town and there
was recognition that parking was a challenge and so they at that time went to
the Zoning Board of Appeals for a variance for parking which they were issued. Ms. Richards said there was recognition on
the parking issues, there was recognition on a successful business in the
center of town, there was the ability to try and to make it work based on the
fact it was a low volume use. She said
that is why the condition was placed in the Special Permit to begin with.
Attorney Donahue said the question
was if the permit was issued to Graziano?
Ms. Richards said that she believed so.
Attorney Donahue said for the property.
Ms. Richards said because it was geared to his business. Attorney Donahue said that was what it sounds
like and he thinks you could build a strong historical argument that it was
granted to Steve Graziano individually to operate at that site with those
restrictions, that being the case - the decision is with this Board as to
whether you want to continue this restriction as a personal Special Permit to
the owner of the property or whether you want to amend it to apply only to the
land. Mr. Morrissette said personally he
doesn’t think it needs to run personally.
Attorney Donahue said he understands but that is not his issue – the
Board can decide what you want to do with it.
He said that they couldn’t do the reverse (from a Special Permit issued
to go with the land – and then amend it to go to the owner) and he found a case
wherein the courts have said if a Special Permit is issued and it’s issue to
the land and it doesn’t indicate that it’s to any particular individual an
amendment that’s sought to that Special Permit cannot now then be made
personal. He doesn’t think the converse
is true, that if it starts out as personal it can’t be made to apply to the land
because Steve’s argument is - it really is dealing with the land whether it’s
personal or whether it’s not is correct, it impacts the land no matter how you
issue it. He said whether you want to
continue this condition on the Special Permit as being related to the person
who is the owner of the property is a determination this Board has to make.
Attorney Manning asked Attorney
Donahue that there was nothing in that original decision that indicates that
it’s personal. He realizes there is the
restriction as to use but if again third party wanted make an offer to purchase
that property subject to the personal use as it stands now by Veritech
Corporation he doesn’t believe that there is anything that would require that
individual prospective purchaser to go to the Board to get an amendment. Attorney Donahue thinks that the initial way
that the permit was set up, it was to Graziano at his address, it wasn’t to the
property at that address and in reading that it was personal and there is no
specific language in there to say it’s personal but any decision that is
written in applying to 60 Center Square it’s going to talk about 60 Center
Square not about the Board of Selectmen.
Attorney Manning asked isn’t it
the use that is personal by Veritech Corporation? Isn’t there anything that would preclude
anther buyer from purchasing that property but it’s still being used by
Veritech Corporation? Attorney Donahue
said no but they would need to come in to amend the permit because the right to
operate Veritech Corporation. He said
throughout the decision it talks about Veritech being Graziano’s corporation,
they were treating the two alter ego’s of the other. Attorney Manning said the only other argument
he had is that if you look at 7.2 of the by-law there’s like a reverse
implication that says something to the effect that when it relates to a
construction of a building that if the owner sold it before he could finish it
that the new owner had to come back and amend the Special Permit.
Ms. Richards said that she thinks
that the request was to amend the Special Permit to remove the restriction for
Veritech Corporation and we certainly do that with our vote. She thinks that the Special Permits have
evolved into a much more substantial, reliable document that from time to time
as Boards come and go, we can go back and look at a Special Permit and get a
pretty good understanding on what the Board was trying to accomplish and we
certainly have Ms. Macdonald to thank for that.
Ms. Richards stated that she did not see what the real issue is. Attorney Manning thinks that it effects the marketability
of the title and he doesn’t know why it make a difference. He said the Board is concerned about the use
and prospective tenants and the use of the premises, why do you care who owns
it?
Ms. Richards asked why would a Special
Permit that runs with the land make it more marketable, the conditions are
still the same, the requirements are still the same? Attorney Manning said because in order to
pass title it’s implied that you have to go before the Board for approval and to
Amend the Permit. He said for the most
part the Board is reasonable and would approve it but what if down the road
somebody says no. Ms. Richards said that
she feels like the way it written originally to Steve Graziano at 152 Prospect
and the whole premise of the permit and even this is based on the unique
situation that the use of the building, it’s not a section 6 finding which goes
with land. She said most of their other Special
Permits are issued to the owner.
Attorney Manning said that he
thinks it’s a hybrid because you can say all that you want it’s personal but he
spent several thousands of dollars to build the building - he thinks it is
impacted there and the marketability is effected. He thinks that their decision as written accomplishes
what they want.
Mr. Anderson said historically as
Ms. Macdonald pointed out as every Special Permit for lack of a better term it
just says goes to owner. He said so if
the owner changes for instance Boston Chicken which become Boston Market which
got bought out by McDonald’s Corporation so what he is trying to make the
argument when it says goes to so and so does it imply that it’s the current
owner - any successor owners - or it is as long as this particular person is
the owner of this particular property? He
said the restriction says the Special Permit shall be restricted to Veritech
Corporation it doesn’t tie back into Steve Graziano, it shows the Veritech
Corporation which just happened to be owned by some other people and Steve
Graziano. He said it says the Special Permit is granted to Steve Graziano of
152 Prospect Street or is it a draftsman’s stuff granted to owner, can that be
used synonymous or is it only Steve Graziano?
Mr. Anderson continued by stating
that it seems like every Special Permit that the Board has done goes to the
owner except for a Section 6 Finding. He said then the restriction is that the Special
Permit shall be restricted to personal services by Veritech Corporation so can
we argue that Steve Graziano is only inserted as owner because he was the owner
at that time, and any legitimate successor/owner and title, trustee or if Steve
decides to add his wife’s name on to it, if Steve’s decides to do anything or
not just Steve - anybody comes in to change a name do they have to come in?
Attorney Donahue said that owner would be the corporation.
Mr. Morrissette said that he thinks it creates undo burden
on the Board never mind the owner. Mr.
Anderson said it seems to him that whoever the current owner is - then the
restriction is Veritech and he thinks the Board has agreed to remove that
restriction.
Attorney Donahue said he didn’t think that was the intent
when you read the document he doesn’t think that was the intent of the Board
when they granted that Special Permit.
He said that he thinks they treated Graziano and Veritech as alter ego’s
so when they talked about one they talked about the other. He said they issued the permit through the Special
Permit to Graziano individually and he’s the holder. Mr. Anderson asked if that was more of
convenience for the word owner? Attorney
Donahue said that he doesn’t know what they were thinking. He said that’s not the issue, the issue is
not what they were doing, the issue is what does this Board want to do?
Mr. Anderson said he thinks the current owner who happens to
be here at this particular time - if there is a legitimate successor in title
owner who has to comply with the Special Permit but if it is just a matter a
change of form or change of individual - whatever they have to follow the
rules. Mr. Morrissette said but the
Board doesn’t have to see them every time they change owners. Mr. Anderson said that he didn’t think so.
Attorney Manning said only if that owner is coming to take
possession of the site and operate out of the building.
Attorney Donahue asked what if he was a tenant in the
building or wanted to become a tenant do I come before the Board to Amend the Special
Permit or to receive approval of compliance?
Ms. Richards said waiver of site plan review. He asked what he would do if he was Spoleto’s
Restaurant, would he come in only for site plan? Ms. Richards said no because Spoleto’s is
under Special Permit, the whole Center Village is under Special Permit within
that entity there is a restaurant who has their own use Special Permit for a
restaurant. Attorney Donahue said so
they are tenants - they come in and
modify their own separate Special Permit, so there is a separate Special Permit
within the Special Permit.
Ms. Macdonald said as she was thinking about it, was this actually
a Section 6 Special Permit? Attorney
Donahue said that it can’t be because they got a variance for the parking.
Ms. Richards said that she believes it stays with the
owner. Mr. Anderson asked so if Steve
Graziano sells to Steve Manning, then Steve Manning would be the owner. Attorney Donahue said no they aren’t saying
the same thing. Attorney Donahue said
that Ms. Richards says it stays with the
owner and the owner has to come back in order to purchase it the new owner has
to seek the Amendment.
Attorney Donahue asked what they need for a vote on it? Ms. Macdonald said that they already voted
but it’s the language and Lou specially said at the last meeting that everybody
had to agree to the language. He said if it’s going to be changed as Attorney
Manning is looking to do this isn’t a discussion that the other 2 members
had. Attorney Manning said they did have
the start of a discussion. Mr. Morrissette
said that they have to be able to sign off on the language. Ms. Macdonald said that they did not have a
discussion on this particular one.
Attorney Donahue said that he just wanted to clarify it because if you
go with the position that Mr. Graziano’s counsel wants to take that substantive
change in the condition on the permit and you
really need to make sure that everyone is on same page. He said at some point if they have already
agreed to the language and all you did was agree to Amend the Permit and than
the language is going to be approved, then everyone is going to sign it - by
signing it they are buying into the language so he thinks they are ok.
Ms. Macdonald asked if an e-mail
approval of the language because the actual vote was 5-0 to remove the
restriction for Veritech only and to agree upon specific language was
acceptable? She said that she will
e-mail Mr. Przybylowicz & Mr. Calabrese along with Attorney Manning’s
memorandum. She said that she needs to be clear because she knows Ms. Richards
wants to put it with the owner but in order to be fair to Mr. Przybylowicz & Mr. Calabrese she just wants to let them know.
Ms. Richards feels that the Board
has adopted a certain standard, a certain consistency with the issuing of Special
Permits and for accountability purposes, for tracking purposes and it all
stemmed from the seminar that Ms. Macdonald went to with respect to Special Permits,
it’s not personal it’s the way they have done it She said that it’s either Section 6 finding
which goes with the land or anything else goes with the individual. Mr. Morrissette said he was just looking for
what the benefit would be to have the owner names, where are we additionally
protected, what is the benefit to the community?
Ms. Richards said that she thinks
that there is a definite benefit to having the owner involved because if you
have a document that has an individual name on it and that document has a very
specific list of conditions, guidelines whatever you want to call them for that
particular parcel structure use and that structure changes hands - there is
nothing compelling the new owner to come in to the Board to understand the conditions
that are placed on that very unique situation.
Attorney Manning said that it’s a
great decision, it’s very clear in what it says, it’s going to be noted on the
record. He said to Ms. Richards that he
feels that it’s overly done and feels that the Board is expanding its’ goals.
Ms. Richards asked as a Board or her?
Attorney Manning said he doesn’t know as a Board but he doesn’t hear the
argument from the other members he hearing
it from her. He said that she wants all
the owners that come in and are being granted Special Permits to get a approval
of passage of title and it’s purely a passage of title, it’s nothing else but. He doesn’t know how he can make his point any
clearer and he thinks the Board understands it but he just doesn’t see the
benefit to the town other than more hearings, you are going to have all kinds
of hearings if you place this kind of requirement on the permits.
Mr. Morrissette said that it’s not
going to transfer 5 or 6 times a year. Attorney
Manning said no but any other properties they deal with and if they put that on
any other property you are going to have a lot of hearings. Mr. Anderson said let’s do it reversed, lets
say that Graziano & Smith owned it and Smith passes away now where Graziano
is a 50% owner. Ms. Richards asked if
that was covered by agreements that owners have with rights to property? Mr. Anderson said that was what he was arguing. Attorney Manning said a bank could foreclose
on it. Mr. Anderson said that he
understood but his point is because of what they just said is the reason he is
making the argument, it’s more of a change in title not a change in direction
of a company.
Attorney Donahue said that he
thinks that they need to define what is the purpose, what’s the reason to bring
a new owner in or not to bring them in? He said all of their arguments about
impact on title are all valid but the issue is why are they making it owner
specific? He said Ms. Richards’ point,
he thought he heard her say was that she favors the requirement that the owner
come in for a change so that the Board can sit with the owners or new owners
and say, by the way, we like what you are going to do with the property,
there’s no change and you are aware that these are the restrictions and these conditions
are on the property so that the person doesn’t come back in a year and say well
I bought the property and didn’t know it, unenforcement action. Attorney Manning said let’s write it in
because that sounds like a great idea but why do they have to require an Amendment
to the Special Permit?
Ms. Richards said that the Board
has been in situations over the years and this is a perfect example that information
gets lost in the shuffle and even the Special Permit on this particular parcel
didn’t come back to the Board when Raveis Realty went in and so the Board is
trying to be consistent in the issuing of Special Permits and the information
within.
Attorney Manning said from what he
understands Raveis Realty came before the Board under Waiver of Site Plan Review,
so that wasn’t anybody’s fault but the Board.
Ms. Macdonald said with all do
respect to the Board, did we know that there was a Special Permit, no and
she’ll take that responsibility because it was long before her time but the
file wasn’t there but Mr. Graziano knew and failed to say anything although she
doesn’t think that it was deliberate, rather simply inadvertent.
Attorney Donahue said that it’s
not much different, except maybe the timing then if I’m going to buy a condo
unit and the condo project has a right of first refusal. He said that he would still have to go as the
new buyer to see the Board of Trustee’s and say here I am. Attorney Manning said but the Planning Board
isn’t going to buy, there is a big difference, a right of first refusal, the
value is there and they are going to meet the price, the Planning Board is not
going to meet the price if they deny the Amended Special Permit.
Mr. Morrissette asked him if he
agreed that it is a well written document and it will get recorded and people
will get this when they buy a piece of property?
Attorney Donahue said of course it
would be found because it would be recorded under the owners’ name. He said you know how good your title examiner
is or how good your closing Attorney is, is to how much they explain what the
conditions of the Special Permit are.
Mr. Morrissette said that the idea
is that the property is going to be the property no matter what and when the
property transfers it’s going to have to abide by the same rules and
regulations. He said that it will be on
record and if they don’t find it it’s a lawsuit waiting to happen but the bigger
issue is what can happen if they don’t find it.
He said they go to open a business in there and then they come in for
their Waiver of Site Plan and they find
out that they can’t. He said there are
so many redundant things here already in place that he doesn’t think they need
the owner on there also.
Attorney Manning said that they
have the right to revoke, modify, you have all the rights built in under the
statue that in are in decision, it’s all there.
Mr. Morrissette said if you want
to write in there as soon as the ownership transfers that the owner has to come
to see the Board. Attorney Manning said
that would be fine. Mr. Morrissette to
actually have him have to come before he even owns the property is burdensome
and not necessary, in his opinion.
Ms. Richards said that she is
struggling with the fact that we had this rather intense discussion with give and
take and we have 2 members that are not here.
She asked how the information was going to get to them so that they have
a fair assessment about what we’ve talked about? Ms. Macdonald said that was why she needed to
know where the Board stands. Ms.
Richards asked town counsel that a Special Permit requires a super majority, we
voted 5 in favor to grant the Special Permit so the vote has been taken -now we
have other issues that we are trying to
iron out. She asked if that
required a simple majority of the Board, how do we deal with that?
Attorney Donahue said if they were
going to vote simply to address language that memorialized the vote that was
taken to approve the Special Permit he would say the three Board members here
could do it. He said if they were going
to be voting to change terms in the Special Permit that were not voted on at
the last meeting, that would be an issue.
He’s not saying up or down, Ms. Richards has one belief that it should
be granted to the owner and the other Board members may feel that it should be
granted to the property and not to the owner, the other two Board members may
have their own belief but they did not vote and they did not discuss that issue
and that’s not something that he thinks he can say that they have given their
authority to make that amendment. He
said bring them back and have that discussion because they gave the Board
limited approval by requiring that everyone agree on the language.
Mr. Anderson said that the
original application back in the day was Steven Graziano 152 Prospect Street
and nothing about his corporation or LLC.
Mr. Morrissette said no matter
what, this discussion is probably premature without having everyone present,
because they are not going to be able to solve the until we have the same
discussion again with the other two members. He said your question is how you
are going to get this information to them, you are right, there is no way to do
it, unless you send them a copy of the tape.
Attorney Donahue said if they do
that now they are making a decision by a super majority not at a meeting where
those members are. Mr. Anderson said
like he said it looks like it’s already changed anyway. Mr. Morrissette said that it has been
changed. Mr. Anderson said again the
same proprietor, just a different entity.
Mr. Morrissette said even if Marilyn
did agree and the three of us agreed - he does not know if that will work with
the other two members.
Ms. Macdonald said if you are
dealing strictly with the ownership issue, Mr. Przybylowicz said he agrees that the permit should run with
the owner and Mr. Calabrese agreed as long as the future owner was not hurt
financially or any other way - as long it was not detrimental to a future
owner.
Attorney
Manning said that flies in the face of the way it’s written because it requires
an amendment every time – a Board could say no you can not amend it - that
would be detrimental. He said if that is
the case can’t they just redraft the language in some fashion that make it’s
more of a informal visit by the future owner, unless the future owner is going
to change occupancy then he’s subject to the same terms?
Mr.
Morrissette said if a new owner is going to take occupancy all the bets are off
and the owner would have to come to the Board for an amendment.
Attorney
Donahue asked doesn’t the owner and the tenant have to come in for site plan
waiver? Ms. Macdonald said that the tenant
has to apply but when the restaurants’ (Special Permits) since they run with the
owner, and using the latest, Fusion for instance, they did not change the use
but they changed the owner and Amended the Special Permit.
Attorney
Manning said you can still have an owner of a building that has a restaurant in
it, they could sell the building and leave the restaurant in it’s form, the
owner wouldn’t have to come before you.
Ms. Macdonald said according to the Special Permit they do and the restaurant
Special Permits run with the owner of the business and specify that any change
in ownership requires a new Special Permit.
Mr.
Morrissette said that Dan Burack, who owns the building that Fusion is in,
could sell the building and new the owner doesn’t have to come to the Planning
Board. Attorney Manning said right so
why shouldn’t we follow the same requirements?
Ms. Macdonald said maybe because it’s the same person, she wasn’t
sure. Mr. Morrissette said that should
be no penalty because he’s the same person.
Ms. Richards said the whole Special Permit is driven around
the use at that location.
Attorney Donahue said the point that they are trying to make
is that the use is not directly affected by the owner, the use is whoever the
tenant is going to be, whomever is going to rent the property are the ones that
are going to drive the number of parking spaces that are needed or the foot
traffic that is going to be there. He
said Steve’s point is that is that it does not matter whether or not Steve
Graziano owns it or Jim Donahue owns it as long as the tenant mix isn’t
changing when he’s selling the property. He said if Graziano sells the property to him
and he says that he wants all of the tenants out, now it’s a whole new
situation, but if he is taking it strictly as a investment for cash flow from
the tenants that are there, the applicant’s argument is why does the Board care? It does not change the mix at all and there
is no impact on the community so why do I have to come back in to amend the
Special Permit?
Mr. Anderson said that it’s more
impacted if she sold her hairdressing place to another hairdresser who did
something else at the space. He said
that has more of impact than if Mr. Graziano sold it to East Meadows Realty,
LLC.
Ms. Macdonald asked if they
thought the confusion is because the Special Permit was granted specifically
for Veritech use at the time and they owned it?
Mr. Anderson said exactly – the owner (and tenant) who also happens to
be Steve Graziano.
Ms. Richards asked if the Special
Permit were to run with the land, who do we call if there is a concern with
what’s happening in that building?
Attorney Donahue said the owner, the holder of the permit and that’s the
person you bring in and say your property is in violation of the conditions of
the Special Permit. She said, so if Mr.
Graziano sold his building to Mr. Morrissette and the Special Permit were running
with the land and not with the owner how would Mr. Morrissette understand what
the contents of the Special Permit are?
She asked if the Board could bring in Mr. Morrissette and how does that
information get communicated? Attorney
Donahue said that it gets communicated in the first instance and in most
transactions at the time the purchaser is buying the property his title
examiner is going to say to him or the Attorney representing him is going to
say that the title report shows that you have the deeds from Graziano coming to
you but Graziano was subject to a Special Permit and here is a copy of the Special
Permit and usually you would go over the conditions with purchaser to say here
are the conditions you have to abide by and it’s on record and they will find
it. He said that’s not necessarily the
town’s issue because all of the stuff we do is recorded and we rely on noticing
people and then when they have a violation, when they put 4 businesses in the
2,675 square foot business the Building Inspector tells them that they can’t do
that - here is your notice of violation. He said they must come to the Board to amend
the Special Permit or for Waiver of Site Plan Approval and you say that you are
not going to let them in because of the conditions of the Special Permit. Attorney Manning said that they should have done
that in the first place.
Mr. Morrissette said they all have
to come in for Waiver of Site Plan because everyone in town has to come to us
so it would be caught at that point. He said when one person comes in and says
they want 500 square feet and then we asked what’s going in the rest of it and
they say nothing else is there yet and we look at it say did the owner sign the
Request for Waiver of Site Plan? He said
the owner of the building would not be involved in the Waiver of Site Plan it’s
just the applicant’s request – however, the owner should sign the request form.
Attorney Manning said in that case
his guess is just what Ms. Richards is saying, that’s like a red flag, based on
your decision , you’re going to say Mr. owner you better come in here with us.
Attorney Donahue said that they
might want to amend the site plan requirements in a multi-tenant building
that’s not owned to have the owner and tenants sign the application and be
involved in it. He said it’s really the
owner not the tenant that you have your enforcement mechanisms over.
Ms. Macdonald said in other words
make the tenant have the owner sign the request so that would involve the
tenant notifying the owner. She asked
Attorney Donahue if signature of the owner would be ok? Attorney Donahue said with the owner coming
in with the Waiver request, he is indicating he knows what the tenants will be
using the property for.
Mr. Anderson said one of things
they could also do is put on the future Special Permits require a deed
reference and have it actually marked on the deed as opposed as trying to find
it in the title. Attorney Manning said
that he wouldn’t disagree with that and said on the event to conveyance we put
that restriction in the deed.
Attorney Manning said if they could agree to issue the permit to run with the land - add the fact that we are requiring in future deeds, deed restrictions that relate to