Published in the March 13, 2020 edition.

By MARK SARDELLA 

WAKEFIELD — The Zoning Board of Appeals voted Wednesday night to uphold a Nov. 25, 2019 decision of Building Inspector Jack Roberto that will allow an auto repair shop at 343 Albion St. to continue operating as a nonconforming use in the Single Residence District.

However, ZBA members strongly urged the operators of the auto repair shop to clean up the property and be a better neighbor.

Roberto’s decision was issued in response to a request for enforcement submitted by David A. Kelly of 48 Jordan Ave., who maintained that since the sale of gas had been discontinued at the location for more than two years, its protected nonconforming use as a gasoline/service station in the Single Residence District has been abandoned. Therefore, Kelly argued, the premises should be required to conform to the provisions of the Zoning Bylaw, under which an auto repair shop would not be allowed in the Single Residence District.

Roberto declined to act on Kelly’s request for a zoning enforcement order which would have shut down the auto repair shop. Roberto cited the definition of “gasoline station” in the Zoning Bylaw, which includes the selling of gas or the provision of repair services. Roberto concluded that since some level of auto repair had been practiced continuously despite the absence of gas sales, he could not determine that the nonconforming use of the premises had been abandoned.

Kelly appealed the Building Inspector’s decision to the Zoning Board of Appeals, which heard the case at its Feb. 26 meeting. Kelly, represented by attorney Kimberly Bielan, argued that since the property had become exclusively an auto repair shop, the use had changed to the detriment of the neighborhood, with, among other things, more vehicles being stored on the property.

Representing property owner Ken Parlee, attorney Brian McGrail urged the board to uphold the Building Inspector’s decision and allow the current auto repair use to continue since it had never been abandoned.

Wanting more time to weigh the arguments before issuing a decision, ZBA members continued the hearing until Wednesday, March 11.

At Wednesday’s meeting, board member Tom Lucey said that he understood where Kelly was coming from, but felt that the board should uphold the Building Inspector’s decision. Lucey said that, judging by how the property was maintained he didn’t think that the the property owner was showing much respect for the neighborhood. He said that Kelly’s complaint last November should have triggered alarms for the owners to keep the property in good order. However, Lucey said that after hearing all the arguments, he was not persuaded that there was enough evidence to overturn the Building Inspector’s decision.

Board member Jim McBain added that the property has not been very attractive for a long time. But he was also not convinced that the Building Inspector’s decision should be reversed.

ZBA member Chip Tarbell said that he agreed with the Building Inspector’s decision that one use can be discontinued without it constituting a change of use under the bylaw. He said that auto repair has never stopped on the property and was a continuation of the nonconforming use. However, he agreed with Lucey that if the site had been better maintained the case might never have gotten this far.

Board member Ami Wall said that she agreed that the board should uphold Roberto’s decision. However, she also concurred with her colleagues in hoping that the owners would become good neighbors and improve the appearance of the property.

Chairman David Hatfield agreed with the comments of the other board members. He said that what really convinced him was the case law cited by McGrail, in particular one very similar case involving a gas station in Brockton, in which the sale of gasoline was discontinued but the repair of automobiles remained. A court decision in that case determined that no abandonment had occurred since the use as a vehicle repair shop was ongoing.

The ZBA’s vote to uphold the Building Inspector’s decision was unanimous.