ZBA overturns Building Inspector 4 Pluff Ave. decision

Published in the May 12, 2016 edition

By BOB TUROSZ

NORTH READING – The Zoning Board of Appeals voted unanimously Thursday night to overturn a decision by the Building Inspector requiring the owner of a Main Street contracting business to apply for Site Plan Review at 4 Pluff Ave.

Last December, Building Inspector Jim DeCola issued a decision that a new structure and the parking of construction equipment at 4 Pluff Ave. requires site plan review from the Community Planning Commission, in accordance with the town’s zoning bylaw.

The owner of the business, Tim Zanelli of TZE Contracting Supply, appealed the decision to the Zoning Board of Appeals and an initial hearing was held before the ZBA on March 10. At that hearing, which was held before a sizable audience, the ZBA took the matter under advisement. But when the final decision was rendered last Thursday, the room was empty.

DeCola conducted the original inspection last Dec. 9 to determine whether the structure and the parking of equipment and trucks on 4 Pluff Ave. required site plan approval. ZBA Chairman Paul O’Leary specifically noted the appeal hearing pertains only to the 4 Pluff Ave. property, not 299 Main St., the address of the TZE Supply business.

Zanelli purchased 299 Main St. in 2014. The property was formerly the location of a refrigeration and ice vending company. The operation of the business was a bone of contention at the October 2015 Town Meeting, when residents attempted to have Pluff Avenue rezoned from Highway Business to residential. The effort was successful with the exception of 4 Pluff Ave., which abuts 299 Main St. and remains zoned commercial. Zanelli has since then purchased 4 Pluff Ave., which he holds under separate ownership.

At the March hearing, Zanelli’s attorney, Don Bornstein, said 4 Pluff Ave. was purchased by a trust which gave a written license to TZE to use the strip of land on the property which Zanelli graded and now uses for business purposes.

The house on the property at 4 Pluff Ave. remains as a pre-existing non-conforming use in the Highway Business District, according to O’Leary, and this played a pivotal role in the ZBA’s final decision. Citing section 200-95 of the zoning bylaw, which sets out the requirements for site plan review, they cited a section that states single family dwelling(s) and two family dwelling(s) are exempt from site plan review.

O’Leary admitted the section references “the development of” single and two family dwellings. “But the reality is you cannot develop a single family residence in the Highway Business District, it’s prohibited. The ones there are pre-existing and they’re OK.”

Regarding the issue of parking commercial vehicles on the lot, the ZBA said they could not find anything in the zoning bylaw that prohibits parking commercial vehicles in a commercial district. There are regulations allowing up to a single one-ton vehicle in a residential district, but nothing of that sort in the commercial district, O’Leary said.

“This particular case is very unique,” O’Leary said, “in that it’s an existing single family dwelling and, going by our bylaws, it says they’re exempt.”

ZBA member Joe Keyes read aloud the varieties of buildings or construction that requires site plan review in the zoning bylaw and agreed a single family dwelling is not among them.

There is a provision which Keyes read that says site plan review is required for “any construction, site modifications, new uses in existing structures or developments which contain new processes not normally associated with the existing use or which result in changes in the potential nuisance to adjacent property; traffic circulation; stormwater drainage onto or of the site. …” This was the provision cited by neighborhood residents at the March hearing and by DeCola when he issued his opinion requiring site plan review.

However, upon reading further into the section of the zoning law, that doesn’t hold up, the ZBA members said. “That probably would be true if there wasn’t a single family dwelling” on 4 Pluff Ave., O’Leary explained. Even if it was an empty lot, the town could possibly require site plan review, he said but not with a house on the property.

“In this case I don’t believe we have any choice,” O’Leary said. Regarding the parking, he said: “There is nothing in our bylaws that dictate (against) the parking of commercial vehicles in a commercial district.”

“If this house was zoned residential, it would be a different ball game,” agreed Keyes.

If the house or its use as a single family dwelling changes, said O’Leary, that would be a different ball game, also. “But if it continues to be a single family dwelling, it is what it is.”

Back in the day when the property was owned by the O’Rourke family, it was not unusual for commercial vehicles to be parked there, O’Leary stated.

ZBA member Jim Demetri said he went by to inspect the property that day and things looked neat and was fenced off.

If the 4 Pluff Ave. property is ever developed into something else, – for instance, if the house is ever knocked down or the use of the building changes – that would be the time for site plan review to come back before the board, the members agreed.