Zoning Board of Appeals Meeting Minutes
Date: November 7, 2011
Members in Attendance: M Hickey, R Havener, P Mulkerron, S Landgren
and K Coughlin
Members Absent: L Godin, C Odunukwe and K Polansky
Location of Meeting: 3rd Floor Training Meeting Room
Time Called to Order: 7:30pm
Time Adjourned: 10:45pm
Time: 7:30pm
Mr. Havener motioned to approve the minutes from the October 17, 2011 public meeting, as reviewed and revised.
Mr. Mulkerron seconded the motion.
Vote 4-0 to approve
R Havener, P Mulkerron, S Landgren and K Coughlin
Time: 7:32pm
Mr. Havener motioned to approve the minutes from the October 24, 2011 public meeting, as reviewed and revised.
Mr. Mulkerron seconded the motion.
Vote 4-0 to approve
R Havener, P Mulkerron, S Landgren and K Coughlin
Time: 7:35pm
Mr. Havener informed the audience that Case # 2011-007, scheduled at 7:30pm, Zdorvie Adult Day Care, requested a continuance to the December 5, 2011 meeting
Mr. Havener motioned to approve the continuance request until the December 5, 2011. Vote 4-0 to accept
R Havener, P Mulkerron, S Landgren and K Coughlin
Time: 7:40pm
Petitioner: (John Burke on behalf of) Primrose School Franchising Company, with Proposed Franchise Operators, Kurt Van Emon, and Andy Truman of Samiotes Consultants, Inc.
Petitioner’s Address: 3660 Cedarcrest Road, Acworth, GA
Location of Subject Property: 296 North Main Street
Map and Lot: 12:131 & 131A
Case #: 2011-015
Documents: Submittals from Board of Health, Department of Public Works and Lt. Brian Lauzon, Attorney Caren Shindel (representing certain abutters and other parties) and Revised/Corrected Plans (Site/Landscaping/Signage),
Relief Requested:
1. Chapter 40A, Section 6 Finding to allow for construction on a pre-existing non-conforming (frontage) lot.
2. Special Permit pursuant to Use #49 of the Natick Intensity Regulations for a licensed nursery school or other use for the day care of children use in a residential zone.
3. Special Permit in the APD (Planning Board is the possible SPGA).
4. Special Permit for signage (possibly a variance).
Voting Members: M Hickey, R Havener, P Mulkerron, S Landgren and K Coughlin
Summary of Discussion:
Mr. Mulkerron read into the record follow up memos from Lt. Lauzon, the Board of Health and the Department of Public Works and letter from Attorney Caren Shindel (representing certain abutters and other parties).
Mr. Burke informed the Board that the Petitioner has hired a stenographer and she is present this evening. As requested, to address Mr. Landgren concerns, Mr. Burke submitted a revised/corrected landscaping plan. Andy Truman, Samiotes Consultants discussed the revisions/corrections. Mr. Landgren asked Mr. Truman if all revisions/corrections were completed. Mr. Truman indicated that to be correct.
Mr. Burke stated that the Photometric Plan was amended to include changes to the exterior light fixtures. Mr. Burke indicated that he met with safety officer, Lt. Lauzon who requested (for safety reasons) afterhours lighting in the parking lot. Mr. Mulkerron asked if those lights would allow for light spillage onto the neighboring residential properties. Mr. Truman indicated that any light spillage would be negligible. Mr. Landgren, reviewing the plan, stated that the proposed light fixtures would leave a lot of light on all night. Mr. Hickey asked Mr. Landgren in what respect is there a lot of light. Mr. Landgren indicated that nothing on the plan guaranteed no light spillage onto the abutting properties. Mr. Landgren also stated that a condition can be added requiring a post construction
review of the lighting plan. Mr. Havener indicated the Board has required similar six (6) months time frame conditions in past decisions. Mr. Burke indicated his client would accept that condition. Mr. Landgren additionally added that a condition should be added requiring the Petitioner to hire a third party to analyze the lighting plan, stating that the plans do not indicate if there will be light spillage onto the abutting properties. Mr. Truman stated that the plans do not illustrate there will be no light spillage but it is his belief that the change in lighting fixtures addressed that concerns.
Mr. Burke submitted a revised monument sign plan (the first submittal was incorrect). Mr. Burke reviewed that, based on request from Lt. Lauzon, the monument sign will now be relocated 25 feet back from the edge of North Main Street. Mr. Burke added that the address of the site has been added to sign. Mr. Burke stated that the Board’s preference was that the sign be internally lit, not “up lit”. Mr. Havener added that the Town Bylaws require all signage cannot be illuminated earlier than 30 minutes prior to the opening of business and must be extinguished no later than 30 minutes after the end of business. Mr. Burke indicated that the sign will only be lit for a short amount of time daily. Mr. Burke stated the monument signed was designed to be internally lit at the
direction of the Board. Mr. Burke stated they could redesign the sign and submit to the Board a revised design indicating the use of “goose neck” lights to illuminate the monument sign. Mr. Hickey asked what signage variance was being sought. Mr. Burke indicated a variance was needed for the square footage of monument sign.
The Board, Mr. Burke, and the Petitioner extensively discussed the dimensions of the proposed monument sign due to confusion of the signage calculations. Mr. Burke asked the Board to give him a few moments to get the correct signage calculations. Mr. Burke indicated that he would submit a revised monument sign plan indicating all dimensions.
Mr. Burke stated that at a prior meeting it was suggested that an island be installed at the entrance of the site. After review they believe this to be an excellent suggestion and have redesigned the entrance to include a landscaped island. Mr. Burke also stated that, at Lt. Lauzon's request the Petitioner shall add a double yellow roadway strip, relocate the monument sign 25 feet back from the edge of North Main Street, install six (6) “No Parking” signs (along the driveway), install ADA compliant walkways, and install a five (5) foot landscaped island at the entrance. Mr. Burke indicated that he reviewed the plans with Natick Fire Department Captain Franciose, and he indicated his support but to date Captain Franciose has not submitted a written document affirming that.
Mr. Truman stated that the Conservation Commission has closed their hearing with a positive APD recommendation. Mr. Mulkerron stated the Board would require a written document (to date no written documentation from ConCom has been submitted). Mr. Burke submitted for the record a copy of the Land Disturbance Plan issued by the ConCom.
At this point, Mr. Burke stated he now had the correct dimensional calculations for the signage, including the brick work: it is approximately 58 square feet, which requires a variance. Mr. Havener stated that the Board would require a final revised monument sign plan with the exact dimensional calculations.
The Board, Mr. Burke and the Petitioner again discussed the method of calculating the size of the signage. Mr. Hickey noted that the Towns sign Bylaws are difficult to interpret.
Mr. Burke indicated that he was finished and concluded:
· The Petitioner is very concerned about timing; they need to move towards closing the hearing.
· The submittal from the neighbors’ Attorney is a “fine letter” but it has been the Petitioner’s goal to try to work with the Board as, “much as we can.”
· They have tried to work with the neighbors but there is, “never a perfect project”.
Mr. Havener indicated that before the Board could render a decision they would require submittal of the following for the record:
1. Conservation Commission final report.
2. Fire Department submittal.
3. Final rendering with calculations and lighting for the proposed monument sign.
Mr. Burke stated that the Board can close the hearing with conditions requesting all the above referenced information.
Attorney Shindel, representing North Natick Neighbors (NNN), addressed the Board and reviewed:
· A large group has retained her to make the Board aware of their concerns.
· The Board needs to make a Chapter 40A, Section 6 Finding that the daycare use is substantially more detrimental.
· This is a small narrow lot with two (2) residential houses, in which the houses are difficult to see from North Main Street.
· The neighborhood has a “New Englandy” feel with small houses and a classic feel.
· Primrose proposes to construct a large 12,000 square foot building that will entirely change the character of this neighborhood.
· 189 more cars on North Main Street will create much more traffic.
· There are safety concerns regarding ingress and egress to the site.
· This lot is next to the access road to the Mass Pike, which is not supposed to be utilized; it is impossible to take a left hand turn out of the site with the traffic and the existing telephone pole.
· The Supreme Court has addressed the Dover Amendment and it doesn’t mean that Primrose is automatically entitled to use this residential neighborhood without addressing traffic, lighting and noise concerns.
· Daycare use is substantially more detrimental than the existing residential use.
· Primrose proposes to construct a much, much larger structure.
· The lot is non conforming as to width and frontage.
· The neighbors don’t object to the daycare use, as such.
Mr. Hickey state that he agreed with Ms. Shindel stating that the case law is “thin and leaves a lot to be desired.” Mr. Hickey additionally added that a number of lawyers have indicated that a Section 6 Finding cannot prohibit the use. The Board can reasonably impose conditions for the use.
Ms. Shindel stated that if you look at the Dover Amendment it is clear to her that it doesn’t trump a Finding on a non conforming lot.
Mr. Hickey asked for clarification of an item in Ms. Shindel’s letter stating that the daycare use was allowed by right in this residential zone. Ms. Shindel clarified that the daycare use was an allowed use by special permit. Ms. Shindel added that the special permit is a good thing versus having no process at all; but this proposed use is substantially more detrimental than the existing use.
Mr. Burke stated he appreciated Ms. Shindel’s letter and he stated that he would refer her to Town Counsel’s opinion, in particular the Petrucci case - the leading case in this area which indicated that no Section 6 Finding is necessary.
Jean Lackenby – 30 Dwight Avenue stated that 300 people have stated opposition; the Board should have the courage to act for the neighborhood.
Mr. Havener responded that he represents to Town’s best interest all the time.
Ms. Coughlin, addressing Ms. Shindel asked why her attached exhibit lists “N3” instead of the names of her clients and the addresses. Ms. Shindel stated that she has had contact with approximate ten (10) people on the list and that was the list supplied to her; her client’s represented to her that they all were in opposition to this proposal.
Jean Ackerley – 13 Birch Road clarified that Ms. Shindel’s list was the mailing list used by the NNN.
Gayle Leary – 16 Rutledge Road; stated that as a resident of Natick she doesn’t understand a need for Primrose; there is not a need for another daycare.
Barbara Coughlin – 26 Stratford Road stated that there is a lot of commercial activity in the area and the residential area is dwindling and it needs to be preserved; we should keep the residential neighborhoods residential to maintain precious residential area.
Angela Spivack – 6 Evergreen Road stated for the record that she has a degree in early childhood development and she can attest to the amount of traffic and the length of time it takes to get through the intersection(s). Based on the enormity of this proposal, this is not an appropriate area for the project.
Julian Munnich – 310 North Main Street asked which section of the Bylaws was used in determining the relief for the signage. Mr. Hickey indicated that a sign over 50 square feet required relief. Mr. Munnich responded that is in a commercial zone; in a residential zone only a two (2) square foot sign is allowed and the sign and be installed no closer than 30 feet from the front property line, this proposal would require three (3) variances for signage.
1. Number of signs.
2. Square footage of sign(s).
3. Installation of monument sign closer than 30 feet.
Mr. Munnich additional stated that it is his belief that the Petitioner has not requested those variances.
David Fisher – 17 Cypress Road stated he doesn’t care if this proposed project is a school; this is going to change the neighborhood.
Richard Ruo – 1 Cypress Road asked if any of the Board members has been to the Dunkin Donuts on North Main Street, and to check with the local Police to find out the number of accidents that have occurred in front of Dunkin Donuts. Mr. Ruo additionally added that he would love to see the ConCom visit the site because there are a lot of wetlands in the rear of the property.
Mr. Havener indicated that the Petitioner had already received approvals from ConCom.
Mr. Mulkerron read a footnote from the Petrucci case.
Ms. Shindel added that the Petrucci case was not a razing but the utilization of an existing structure (barn) for a daycare. In this case, the proposed changes were not significant so the Applicants didn’t raise the Finding issue; there was no reason to require a Finding in that particular case. Mr. Burke read from Town Counsel’s letter and stated that Town Counsel specifically stated that the Finding does not apply. Ms. Shindel indicated that she did not agree with that statement.
Shelia Kincaid – 2 Wentworth Road asked what defines “substantially more detrimental”.
Mr. Burke requested to close the hearing.
Greg Kincaid – 2 Wentworth Road, indicated that this was the first hearing he has attended and asked several questions regarding past discussed issues including traffic, lighting and signage.
Mr. Mulkerron asked if any lighting will be installed on the property at the street. The Petitioner indicated he would “love” to install lighting there. Ms. Coughlin pointed out that the lighting plan does not indicate any lighting to be installed at the street.
Mr. Havener stated that due to the results of the submitted Traffic Study, there is an opportunity for the town to request a donation to mitigate the potential traffic problems.
The Petitioner indicated that he has never heard that. Mr. Havener responded that if the proposal does move forward, the Board may at a future date review the installed lighting and consider mitigation for future traffic improvements; this is the time for the opportunity for the Board to ask for compensation for mitigation improvements. The Petitioner indicated that he would be “open to discussions”.
David Shaughnessy – 7 Bayberry Road asked each Board member to state his or her name and address and to indicate how they will vote on the proposal.
Mr. Hickey, Havener and Mr. Mulkerron indicated that the request is premature as the case is not closed and the Board members haven’t yet decided or deliberated on the proposal.
Karen Rufo – 12 Cypress Road, asked the Board to limit the amount of students allowed and stated that at the last meeting that Town Counsel was clear in stating that the Board can put limits on the proposal. Mr. Havener indicated that the Board is aware that they can impose limits and conditions to the proposal. Mr. Hickey added that the Board can regulate based on health, safety, dimensional and bulk and that is the reason the Board has reviewed the details of the proposal.
Barbara Coughlin (again) stated that if the building conforms, the Board can make restrictions based on safety and because of the increase in traffic.
Mr. Mulkerron, referring to the submitted Traffic Study, indicated his belief that traffic in the area is horrendous. Barbara Coughlin responded that it’s very hard to accept the conclusions of the Traffic Study. Mr. Hickey noted that no meaningful concerns regarding the Traffic Study were raised by reviewing Town Departments.
Jean Ackerley (again) stated that Lt. Lauzon stated to her that traffic was a big concern and he stated that the Board did not ask his input. Mr. Hickey indicated that the Board received two (2) submittals from Lt. Lauzon, neither of which indicated traffic concerns.
Lillian Fisher – 17 Cypress Road stated that one (1) of her children was hit by a car last year and to add 189 cars a huge danger. This is not the right location; we are all frustrated; this is real to our lives, people will be sneaking in all those back roads, this is very real, please, consider the neighbors.
Ms. Coughlin (Board Member) indicated that she is aware that this decision doesn’t end here and speaking for herself she has spent a significant amount of time looking into this petition and she knows the traffic is heavy. Mr. Hickey stated he drives North Main Street everyday and is aware of the traffic.
Mr. Burke stated that this is more redundant information and again requested to close the hearing.
Ms. Shindel reiterated that:
· This is a clear change to the neighborhood.
· The Supreme Court hasn’t clearly stated that the Dover Amendment trumps a Finding; in her mind it is clear.
Mr. Hickey stated that the Board appreciates the dialogue, and that it is nice to receive another informed opinion.
Action: Mr. Havener motioned to close the hearing. Mr. Havener noted for the record that based on availability, deliberations would occur on either December 5 or
December 12, 2011.
Poll: All members agreed to close the hearing.
Meeting Adjourned: 10:45pm
Meeting Minutes Approved: December 12, 2011
| 
