Town of Rowley Massachusetts ZONING BOARD OF APPEALS 39 Central Street, PO Box 275 Rowley, MA Phone

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1 . Town of Rowley Massachusetts ZONING BOARD OF APPEALS 39 Central Street, PO Box 275 Rowley, MA Phone October 16 th, 2014 Minutes Those present: Chairman Donald Thurston, Clerk Thomas Heidgerd, Member Nathaniel Dummer, Alternate Member Robert Clewell, and administrative assistant Lisa Lozzi. Associate Member Peter Carpentier, Member Dave Levesque and Member Philip Cressey were not in attendance. Abutters: Sieglinde Aigner-Crooks & Philip L. Crooks of 10 Lessard Terrace - Carol Herlihy of 875 Haverhill Street - Tracy Cole of 887 Haverhill Street. I. Call to Order 7:05 pm II. Miscellaneous Business 7:08 pm: Approval of Minutes September 20 th, 2014 Chairman Thurston asks for a motion to accept the minutes as submitted. Heidgerd so moves. Dummer seconds. All in favor. Chairman Thurston reads the agenda for the record and explains how two board members and one alternate board member are absent due to illness. Chairman Thurston appoints Alternate Member Robert Clewell to serve as a Member on tonight s cases and tells the applicants they have the right to continue their hearing due to only four members of a five member board in attendance. The applicants remain. III. New Public Hearing(s) 7:10 pm: Case # Wethersfield Street Deborah Smith Chairman Thurston reads the public hearing script and there is no conflict of interest with board members. Chairman Thurston reads applicant s application, Board of Selectmen, Board of Health, and ConCom department comments (letters, memos) for the record. Attorney Arthur Ross representing Deborah Smith (not in attendance) stands and introduces himself of 20 Market Street, Ipswich, MA and states Deborah Smith is seeking a modification of a special permit. He explains the lot originally had two houses on it and one was torn down. One of the boundary lines weaved in and out and nobody could determine for certain, particularly the two owners, where the boundary lines were. They are seeking a special permit to recognize that the present square footage is sufficient to warrant a special permit.

2 Chairman Thurston states the ZBA is not here to approve the lot line, the ZBA is here to approve the area. The new area in square footage is presently 30,915 sq. ft. and all parties agree to the boundary line. Dummer asks if the 30,915 is the square footage of NEW lot and Attorney Ross answers yes. Chairman Thurston reads letter from the Planning Department at this time for the record. Clewell states that until it s recognized by the Planning Board as an ANR and recorded, it is not a legal lot. So the ZBA is acting on a proposed legal lot because it isn t yet a legal lot because it isn t recorded as an ANR. It s a new lot and until it s recorded as a new lot, a decision of ours would then be reflected as a lot we approved before it was recorded at the registry as an ANR. Clewell says If there s an issue about the actual square footage, and whether the original/prior decision is right or wrong, or this (present plan) is right or wrong, it s still only a boundary line plan, not a recorded ANR plan. So if we say do the ANR, get it approved, get it recorded, then the ZBA is approving a permit of a plan of record and it makes moot the discrepancy between the old permit and the new one. Clewell states the lot line is changing weather it s up or down. If the ZBA says de minimis but regardless of the prior decision, we think that this is substantially in compliance with the prior decision and we re approving it conditioned upon the recording of an ANR plan precisely in accordance with the depiction onto this present plan. Chairman Thurston asks Clewell to make a motion, Clewell so moves. Heidgerd seconds. Motion is made. All in favor. Heidgerd explains to Attorney Ross the decision time frame and that the decision will be signed at the next ZBA meeting. Attorney Ross is fine with time frame. 7:43 pm: Case # Newburyport Turnpike Artistic Landscapes Chairman Thurston reads the applicant s application and public hearing script for the record and with no conflict of interest. Chairman Thurston asks Mr. Hurley of Artistic Landscapes to explain the where and why the size for the sign on his building. Mr. Hurley explains the majority of the sign is the 30 square feet except the p extends beyond the range. The Planning Board is for the illumination and the ZBA is for the size. The sign is going on the front of the building facing route one between the first and second floor. He needs the general public to see him and come to him so he can go to their houses and build their walls, lighting system, etc. If the public doesn t see him, they won t call him, thus he will go out of business. Clewell mentions the applicant s application was advertised as a special permit and the applicant s application is requesting a variance. The topography of the land and the building it sits on affects the signage. Page 2 of 5

3 Page 3 of 5 Reference is made to town counsels letter conveying the topic of a variance. Clewell suggests requesting more guidance from town counsel. Discussion among the Board Members continues and the Board Members decide the case will be continued and re-advertised as a variance request. Applicant (Tony Hurley) has no problem continuing his case and signs the continuance form. Chairman Thurston reads the form for the record. Heidgerd makes a motion to accept request from the applicant to re-advertise said case and that in the interim directs the clerk to reach out to town counsel with specific reference to their letter of August 14, 2014, page 2, paragraph 2 in which the town counsel s letter states: the statute clearly allows for variances for structures, and my cursory review of case law finds some instances where variances of sign dimensions were granted. But I found none in which applicability of the soil conditions, shape, or topography test was discussed and that the ZBA ask for clarification on what those cases were and if they could provide them. Clewell seconds. All in favor. 8:33 pm: Recess is taken. Meeting is reconvened at 8:39 pm. 8:40 pm: Case # Haverhill Street Sean Blair Chairman Thurston reads the public hearing script, applicant s application, Planning Board, Board of Selectmen, Board of Health, ConCom and Building Inspection comments (letters, memos, s) for the record. Attorney Richard Nylen (on behalf of Sean Blair) displays a map and sits before the Board and proceeds to explain the Blair property known as Blairwood Farms as a 61A and assessed in the town of Rowley as farm property 13 acres single family property. The bobcat and sorter are for moving the compost around. Installation of septic systems none of that work takes place out at property. We are here asking the ZBA to overturn the building inspectors decision. Abutter Carol Hurlihy stands and speaks in favor of the Applicant. Building Inspector Ken Ward states when he talked to Mr. Blair on the phone he asked Mr. Blair if he had employees and Mr. Blair said yes. He asked if he had more than one truck and Mr. Blair said yes. Under the definition of home occupation, you cannot have employees. As he said in his letter to Mr. Blair, he can t put conditions on anything. Only the ZBA. Attorney Nylen says there are no employees in the unit. Chairman Thurston asks Nylen if Mr. Blair has employees that come to the house, park their car and go to the site. Nylen responds yes but not in the ordinary. Clewell asks Nylen who the employees are and how many and Mr. Blair responds there is one worker who works on site. Heidgerd states the dilemma is use. Your company is pretty well advertised out there septic installer name is everywhere. What I m questioning is, is your reach for your septic business larger than your reach for your farm business. The ZBA is inclined to think you re running a substantial business on paper. More so than the farm business.

4 Chairman Thurston asks Mr. Blair how many septic systems has he done in the past year. Mr. Blair says 5 or 6 in Rowley. Chairman Thurston asks Mr. Blair if he does all the excavator work doing septic systems with the vehicles - back hoe, dump truck, and bobcat and do you have a helper that works on the site and on the farm? Mr. Blair responds occasionally yes. Mr. Blair states he s a small guy trying to make a living and clean up his house. I m just trying to figure out what I did wrong and questions where all this started. Mr. Ken ward replies - it came from Selectmen s office. That s all I can tell you. I just want to set the record straight. I ve never had a complaint about Mr. Blair in all the years I ve been here until I got a something from the Selectmen. I did my job, sent you a letter and you called me. Thank you. And I never told you, you couldn t run your business. That s why I said, if you appeal within 30 days I d never shut you down. That s why we re here so we can get out in the open what you do there and if the ZBA sees fit to put conditions on it. I m not trying to shut anybody down. Clewell asks Attorney Nylen aside from the septic what other construction or landscaping business does the applicant do. Nylen answers nothing that I m aware of. Clewell shows Attorney Nylen the consent order document which shows Mr. Blair s signature to conducting a construction, excavation, landscaping, and septic installation business. Clewell asks Attorney Nylen if there is a business of landscaping other than septic. Nylen answers to his knowledge there is not. Heidgerd suggests to the Attorney Nylen to compose a list of conditions (including but not limited to; no signage, hours of operation, number of employees, seasonal business, growth potential of business and substances that might be stored on property and relevant to the business. These kinds of things the ZBA would want to look at. Attorney Nylen needs to make the ZBA feel that the property is in fact used as a home occupation and deliver the list a week in advance to the ZBA for review for the next meeting. Attorney Nylen (on behalf of Sean Blair) wishes to continue the hearing to November 20 th, 2014 and states he consents and signs the continuance form. Chairman Thurston reads the form for the record. Chairman Thurston asks for a motion to continue the hearing to November 20 th, Heidgerd makes a motion to continue the hearing per applicant s attorney s request. Clewell seconds. All in favor. IV. Cont d Public Hearing(s) 9:40 pm: Case #A Tompkins/Desjardins Trust - Marion Way Chairman Thurston tells Mr. Decoulos the ZBA can t do anything on this case tonight due to the sickness of Board Members. Decoulos hands a continuance letter to Chairman Thurston who reads for the record. Chairman Thurston asks for a motion to accept Decoulos letter of continuance. Dummer so moves. Heidgerd seconds. All in favor. Page 4 of 5

5 V. Adjournment Chairman Thurston asks for a motion to adjourn the meeting. Heidgerd so moves. Clewell seconds. All in favor. Meeting adjourns at 10:05 pm. Minutes accepted at the November 20 th, 2014 meeting. Documents provided at the meeting and available in the ZBA office: Minutes of September 20 th, 2014 ZBA Sign-In Sheet PB of for case # s 15.03, 15.04, BOS letter of for case # s 15.03, 15.04, BOH Memo of for case # ConCom letter of for case # Town Counsel letter of for case # ZBA hearing continuation form for case # BOH Memo of for case # ConCom letter of for case # ConCom letter of for case # Consent Order for case # MDAR certificate for case #15.05 ZBA hearing continuation form for case # BOH Memo of for case # BI letter of for case # BOS Waiver notice for case # A10.06 Consultant of for case A10.06 Decoulos letter of requesting continuance to Pursuant to the Open Meeting Law, G.L. 39, S.23B, the approval of these minutes by the Board constitutes a certification of the date, time and place of the meeting, the members present and absent, and the actions taken at the meeting. Any other description of statements made by any person, or the summary of the discussion of any matter, is included for the purpose of context only, and no certification, express or implied, is made by the Board as to the completeness or accuracy of such statements. Page 5 of 5