Minutes of the Lowell Zoning Board of Appeals for the Meeting held on

January 25, 2010

Meeting of the Zoning Board of Appeals was held in the City Council Chambers, Second Floor, City Hall, Lowell, MA, and was called to order at 6:30 P.M. The purpose of the meeting was to hear requests regarding Variances and Special Permits from various petitioners.

Chairman Geary called the meeting to order and stated that petitions would be heard in the order they are presented on the agenda.

Continuances

ZB-2009-000043 (091014-039)

Petition Type: Special Permit and Variance - Signs

Applicant: Barlo Signs

Re Property Located at: 732 ROGERS ST

Applicable Zoning Bylaws: RR - Regional Retail

Petition: Special Permit for the internal illumination and electronic changeability for the alteration of an existing sign; and a Variance to exceed the maximum sign size allowed according to Section 6.3.2 and 6.3.4 of the Zoning Ordinance.

Chairman Geary stated that this petition has been continued twice in anticipation of the City completing updates to the sign ordinance.

Tim Sullivan, representing Barlo Signs, Hudson, NH, stated that he has been working with DPD and feedback indicates that sign ordinance is not progressing at all and wants to move forward with this request. Mr. Sullivan continued that the petitioner does not have a problem complying with the Design Planner's proposed recommendations, other than to not provide color displays. Mono-chrome units (single color with black background) have become a dying technology.

Planning is also concerned with the size, rate of change and the brightness. The request for size variance is to have a 24-foot sign, whereas 20 feet is the maximum allowed currently. The additional square footage is required for the panel size. If they have to decrease the size of the sign, it will jeopardize the panel display with an actual decrease of 9” from the size of the sign and will not accommodate the technology. The rate of change is 20 seconds per message. And, the sign is designed to dim at night to 20%. Rogers Street is a well-lit street and the brightness will be adjusted for the sign to be effective in its surroundings.

Chairman Geary asked what the hardship is with regard to the request for Variance. Mr. Sullivan replied that signage of the requested size is required because of the number of signs in the immediate area, and visibility is blocked by the baseball field, trees, buildings and large fences. The topography of the land drops off and the sign needs to be comparable to other signs for effective visibility.

The hours that the sign would be illuminated was discussed, as well as the content of advertisements and public service alerts. Mr. Sullivan indicated that the messages will fade on/fade off - no blinking, flashing or movement. Message change rate is 20 seconds. The computer must be left on at all times in order to receive and transmit emergency or public service announcements.

Comparable signs in the area were discussed.

Mr. Belanger asked if the petitioner would be able to wait for sign code revisions to be completed by the City. Mr. Sullivan stated that the petitioner is anxious to move forward, they have already waited 3 months.

Mr. Nuon wants to continue the petition in order to view other similar signs in the area.

Rachel Kisker, Lowell Design Planner, discussed the forthcoming sign code revisions and stated that the revisions should be complete within the next few months. The revised code is a priority. Perhaps the board could impose a condition that the petitioner would have to comply with any new regulations. Mr. Bailey replied that this may not be in fairness to the petitioner. Ms. Kisker stated that buffers and conditions are being considered to soften and balance appearance as technology advances.

The commercial atmosphere of Rogers Street was discussed as the character if the neighborhood is busy and congested with other signs on all night. The petitioner is willing to shut the sign down and night; this is reasonable for residents in the area. Ms. Kisker stated that the sign is reasonable for the area; however, sign clutter needs to be reduced and controlled in the area. The City needs to look at the cumulative effect of all the signs in the area on the neighborhood.

Ms. Kisker continued that landscaping requirements will be included in the new sign code, lot maintenance will also be a factor. Chairman Geary stated that although it is risky for the petitioner to agree, he would like to incorporate a mechanism to review and recall the petitioner if they do not like the sign. Ms. Kisker concurred that there should be options available, yet not make it unreasonable for the applicant.

Mr. Sullivan offered to make the sign a prototype in the City to assist in the development of the new sign code incorporating aspects for new sign technology. Mr. Sullivan also stated that he would be willing to comply with the new sign code retroactively. Chairman Geary stated that he does not want to make a negative example of the applicant, should need be.

Mr. Knox does not want to place a hardship on the petitioner; he needs the sign to enhance his business. The applicant has taken over a defunct business and is trying to re-build that business in the City. He will support the petition.

No one was present to speak in favor.

No one was present to speak in opposition.

Motion was made by Mr. Belanger, seconded by Mr. Knox, to approve with the following conditions:

Approval was granted by unanimous consent of all voting members.

ZB-2009-000045 (091026-041)

Petition Type: Special Permit - Telecommunications

Applicant: Clear Wireless LLC

Re Property Located at: 403 ANDOVER ST

Applicable Zoning Bylaws:

Petition: for the installation of telecommunication panel antennas (3), dish antennas (2), and related equipment inside stealth steeple housing and related equipment on side of church for Clear Wireless according to Section 7.6 of the Zoning Ordinance.

The Chairman read the petition into the record.

Andrew Thompson, Centerline Communications, for the applicant, requested a continuance in order to continue working with the City to establish the peer review process.

No one was present to peak in favor.

The following persons spoke in opposition:

Karen Green, 91 Elliott Drive

Stephen Statite, 332 Andover St.

Alice Hassey, 105 Starr Ave

Atty. Weichert, Qua, Hall, Harvey & Walsh, representing the Mr. and Mrs. James Hall, 14 Pentucket Ave.

Jack O'Connor, 124 Mansur St.

Approx. 35 audience members in opposition, by show of hands.

Chairman Geary requested that the petition be forwarded to the Historic Commissioner for input and comment.

Mr. Belanger stated that Clear Wireless has already received approvals on 4-5 different locations within the City already and wants to see very clear evidence that there are no other alternative locations.

Rick Tessier, Lowell Sun asked what constitutes a peer review. Chairman Geary replied that it would be an independent review provided by a telecommunications engineer at the petitioner's expense.

Motion by Mr. Belanger to forward to the Historic Board for review and comment, seconded by Mr. Knox. Unanimously approved.

Motion by Mr. Belanger to continue to February 22, 2010 to allow for the process of peer review, seconded by Mr. Knox. Unanimously approved.

ZB-2009-000060 (100111-03)

Petition Type: Variance

Applicant: Rodney B. Fisher, Sr.

Re Property Located at: 1519-1527 MIDDLESEX ST

Applicable Zoning Bylaws: SMU - Suburban Mixed Use

Petition: to reduce the number of required parking spaces for a martial arts school in accordance with Section 6.2 of the Zoning Ordinance.

Chairman Geary read the petition into the record.

Rodney Fisher, property manager for the petitioner, appeared on behalf of the property owner. Mr. Fisher met with the Building Commissioner to review the parking provided at the site. Mr. Camacho stated that he would provide a letter, but had not. Mr. Fisher provided a report indicating parking usage during prime time at the school and worked with the engineer on parking calculations. The mall was recently built and there are still units remaining vacant. The school has been there since 1985.

Mr. Nuon stated that he had spoken with the owner and there are 173 students enrolled. Mr. Fisher stated that 4500 sf of space is currently used of the 10,000 sf building. The parking calculations were based on the usage of 4500 sf for the school and 8 units. One service business occupies two units. Presently, there are 62 parking spaces available, having lost one space with to the dumpster. Potential new tenant will be a Thai restaurant with no wait staff and minimal seating - will be primarily take out restaurant. Seating capacity at the restaurant is not expected to exceed 10 people.

Mr. Belanger indicated that the petitioner will have to be restrictive with future tenants in order to comply with parking regulations if this relief is granted - future business could pose a problem. Mr. Nuon would like to see future tenant business come before this board, or at best, must go to Inspectional Services for review.

Mr. Cavanaugh asked the number of spaces a variance is requested for. Mr. Fisher replied 29 spaces for the martial arts school. The balance of parking spaces are for the plaza as a whole (approx. 43 required).

Mr. Bienvenue wants to see a matrix of allowed uses and required parking spaces for each use. A variance for 29 spaces is too much and there are still vacant units that have yet to be rented.

No one was present to speak in favor.

No one was present to speak in opposition.

Mr. Nuon requested the owner of the property come before this board to answer questions.

Mr. Belanger stated that he would be in favor only if there were conditions that the 3 vacant units must come before this board, the restaurant must be limited to 10 seats.

Mr. Knox stated that he would like to help businesses in the City, yet public safety issues must be addressed; traffic issues must be addresses in allowing for business expansion. Mr. Bailey concurred that it is a large parking area and spaces are not delineated; it is confusing. Doing the math…62 spaces-30 per variance = 32 spaces divided by 8 units = 4 spaces per unit. The site plan is also confusing, and Mr. Bailey wants to see a more definitive plan.

Mr. Fisher stated that the plan is submitted under the advisement of the Building Dept. and Planning Dept. The best-case scenario has been presented given that the school absorbs most of the parking.

Mr. Bailey asked how they will handle the overflow. Mr. Fisher replied they have never used all of the spaces and cannot explain how parking will be regulated or assigned on the site.

Mr. Nuon does not want to play guessing games and wants further documentation, as well as having the property owner here to answer questions from the board.

Mr. Fisher stated that he has had meetings and conversations with the Building Commissioner since the onset of this building project seeking instruction as to how to be in compliance.

Mr. Cavanaugh strongly suggests taking a look at the entire site and build a table based on the current uses to determine exactly what parking relief is being requested. This will allow the board to make an informed decision. Mr. Fisher replied that this has already been done. Much money has been spent for an engineer and much time has been spent working with Planning and ISD. Mr. Cavanaugh responded that this board needs to be clear about the different requirements for each use. Mr. Belanger concurred with Mr. Cavanaugh that he also would like to see a formula.

Mr. Knox suggested that the petitioner go back to the Building Department and come back with something more specific.

Motion by Mr. Belanger to continue to February 22, 2010, seconded by Mr. Knox. Unanimously approved.

New Business

ZB-2009-000061 (100125-04)

Petition Type: Variance

Applicant: Highland Place Condo Assoc

Re Property Located at: 62 HIGHLAND ST

Applicable Zoning Bylaws: TMF - Traditional Multi Family

Petition: to maintain existing 5-unit building with decreased lot area per dwelling unit and without the required parking as result of proposed lot line relocation pursuant to Sections 4.5 (non-conforming uses and structures) and 6.1.1 (off street parking) of the Zoning Ordinance.

Kurt Olsen, attorney for the trustees, would like to maintain status quo after the alteration of moving the lot line. The association includes two buildings; 214 Thorndike St. and 62 Highland Ave. There was a catastrophic fire at 62 Highland Ave. After the fire they could either re-build or break up the association and sell the building at Highland Ave. while having the building on Thorndike remain. The unit owners of Highland have been paid and the building will be sold. The land in question belongs to the lot at 62 Highland Ave. They want the land to now go with 214 Thorndike St. The present configuration will remain, but the parking area will now be provided to the Thorndike St lot. It is a change in ownership only. The sale of the property is contingent upon this board's approval and granting of the requested relief.

Mr. Geary replied that this board does not have the authority to move a lot line. Mr. Olsen responded that this board can approve the continuation or grandfathering of the non-conforming use by prior requirements approved by this board.

Tom Ryan, 214 Thorndike St., stated that when the land is divided up, it falls 200 feet short.

Mr. Bailey replied that grandfathering has nothing to do with this board. Condo docs are not regulated by this board and the required parking is not provided currently. Is the petition for 62 Highland or 214 Thorndike?

Mr. Geary stated that this is a confusing parcel. It appears that the board cannot act on this current application. Mr. Geary suggested that the applicant go back to the Zoning Officer and Planning for clarification; a new application may need to be filed for the Thorndike St lot.

Mr. Olsen stated that parking relief had been received for the Highland St lot prior to the fire.

Mr. Knox stated that there are two distinct issues with the size of the lot and parking.

Mr. Bienvenue stated that the applicant should go to planning to sub-divide the lots and re-lease the parking.

There was no one present to speak in favor.

There was no one present to speak in opposition.

Motion by Mr. Belanger to continue to February 22, 2010, seconded by Mr. Knox. Continued by unanimous roll-call vote.

Other Business

Request for Extension

ZB-2008-000054 (100125)

Petition Type: Request for Extension of Relief Previously Granted January 12, 2009

Applicant: McDonald, Harry and Erin

Re Property Located at: 106 ACTON ST - LOT A

Applicable Zoning Bylaws:

Petition: to sub-divide lot and construct a single family home with insufficient lot square footage and insufficient lot area per dwelling unit according to Art. V, Sect. 5.1 of the Zoning Ordinance.

Erin and Harry McDonald, stated that the estate has been delayed in a family with 14 children. Carol Foley is the executrix of the estate. There has not been sufficient time to start the construction or exercise the relief. A one-year extension is requested; however, they hope to break ground in the spring.

No one was present to speak in favor.

No one was present to speak in opposition.

Motion was made by Mr. Belanger to extend the Variance for one year, seconded by Mr. Knox. Approved by unanimous roll-call vote.

NOTE: this board has authority to grant a 6-month extension pursuant to Chapter 40A. Decision was amended and approved by Chairman Geary.

Motion to adjourn was made at 8:55 p.m. by Mr. Belanger, seconded by Mr. Knox. All in favor.

City of Lowell - Zoning Board of Appeals

City Hall • 375 Merrimack Street, Rm 55 • Lowell, MA 01852

P: 978.970.4149 • F: 978.446.7103

Stephen Geary

Chairman