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					Zoning Board of Appeals Minutes September 25, 2008 Chairman Atwood, Dr. Braun, Dorothy Pulsifer, Norman Diegoli, Eric Priestly and Darrin DeGrazia were in attendance. Chairman Atwood read into the record the legal advertisement for Timothy Cusson/Cranberry Knoll and declared the hearing open at 7:30 P.M. Chairman Atwood informed the board that Attorney Witten was unable to attend tonight’s hearing. Attorney Burke said since the last meeting he has submitted materials to Attorney Witten for his review, and has submitted a written memorandum to the board for consideration. One member of the board asked if they could give a response specifically on why it would not be relevant to have a condition, as such, that a developer builds every unit in the project. The problem with that concept is it becomes a difficult process to finance because it puts restrictions and restraints on what a single developer can do in terms of how he develops. Secondly, it creates a build out rate that extends the project by multiples. Attorney Burke believes, with this stipulation, the board is trying to make sure there is uniformity in the subdivision. What they have done, and he has submitted the information to Attorney Witten, is draft language for design standards that will have to be complied with. They have also drafted a form of a Declaration of Covenants. This would be how the board could enforce those design standards. Attorney Burke said they were also asked to meet with the Conservation Commission. He established a meeting with Patricia Cassidy, Conservation Agent, and a memo was sent to the board indicating that this project will require a filing with the Commission, as well as a MEPA filing. Attorney Burke said he has also received a copy of Attorney Murray’s response on the issue of Chapter 61A. He believes his response puts to the rest the issue that has been raised. It is also consistent with the position the applicant is taken that clearly this met the bona fide provisions of Mass General Laws Chapter 61A, Section 14. Attorney Burke had submitted a draft comprehensive permit for the board and Attorney Witten to review. He has not received any feedback on that yet. Attorney Burke said he believes they have reached the stage where it is almost wrap up time, but because this has taken so long he would suggest another working session meeting before they close the hearing. He would propose to meet with the board’s secretary and he will review the exhibits that were filed. Hopefully, they can agree on and prepare a comprehensive index. Eric Priestly said he would like to go back to the issue of the lots. Attorney Burke said that by having them as individual lots, in these economic times, financing is an issue and more importantly than that it would elongate the build out of the project. Eric Priestly asked Attorney Burke to explain why that is.

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Zoning Board of Appeals Minutes September 25, 2008 Attorney Burke said if you have a situation where you have the ability to have the developer take a request, from a citizen of Middleboro, who wants to sell their home, buy a piece of property and put their home up, they can go ahead, like any unattached subdivision, pick their lot, make a decision, and build their own home. What this does is the developer has cash flow, and the developer has money for infrastructure to move forward with the subdivision. Then you end up with a lot that is in the hands of where they want it to be, a private party. Attorney Burke said the problem you have in these troubled times is that no one will spec these homes. You are going to have to have an order to build. In the market conditions you could wind up taking the time in which you have your build out, and into your phases, into a much longer period than being able to close out a subdivision with the sales of lots. Eric Priestly said they have several approved projects, 40B’s that are just that, approved. What they do is hear the plea from the developers, from the State, from the Attorney’s representing their clients, of the need for affordable housing. There is a disconnect in his head as to how it is that you can have so many 40b’s approved, not under construction, or approved, and put up for sale. Eric Priestly said he was hoping that Attorney Burke was going to give him a legal aspect as to whether or not, in the history of 40B, the lots being approved as lots under the development, as opposed to approving the project as a development. Attorney Burke said the answer to that is that Mass Housing has approved the sale of individual lots as a proper mythology of moving forward. It is an approved condition that a builder has the right to sell a single family lot. Norman Diegoli asked if the homes that are going to be sold as individual lots could be bonded so they are not stuck if they abandon the project. Attorney Burke said normally there is no bonding. The protection is with the financing agency. Darrin DeGrazia said 40B is designed to be an internal subsidy, and basically they are giving away waivers that would not normally be allowed. If the developer can sell that 40B lot to someone else and basically cash out, how do you get the affordable subsidy for the house that hasn’t been built yet? Timothy Cusson said it works the same as if the developer were building the house. For every three properties transferred an affordable unit has to be built. The developer is still responsible for building the affordable units. The only lots that can be sold are the market rate lots, not the affordable lots. Discussion ensued as to the affordable units. Timothy Cusson said they have agreed to thirty percent affordability. Chairman Atwood asked if anyone would like to be heard on this matter. Frances Costa, 145 Spruce Street, read into the record a letter dated September 25, 2008. (see attached)

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Zoning Board of Appeals Minutes September 25, 2008 Chairman Atwood said with regards to her letter she should contact the Board of Selectmen and request to be put on their agenda to discuss this matter. The Board of Selectmen has final say over this issue, and the Zoning Board needs to rest with what Town Counsel has told them. Attorney Burke said he respects the wonderful work Mrs. Costa has done. However, Mr. Murray’s decision is the only decision he could have reached. He feels they are looking to try to create something in the statute that doesn’t exist to fit a particular purpose. Also, the Town pursuant to the statute, took a vote, issued a declination, and that was recorded in the Registry of Deeds. That ends the story. It is not that the Town didn’t have an opportunity, it did, and it chose not to act. Even if there were, which there is not, a procedural defect it’s too late. The Town has acted on it. Eric Priestly read into the record a letter dated August 29, 2008, from Paul Fraccalossi, 70 Spruce Street. (see attached) Eric Priestly said this project has been going on for so long, and there have been so many hearings, and so many details talked about, discussed and captured. This is a good opportunity to go through each item, and making sure using the prior minutes of the meetings, that the board has addressed every concern. Attorney Burke said with regards to Mr. Fraccalossi’s letter, the second phone call he made was to talk to Mr. Fraccalossi’s lawyer and talk about a possible combination of the parcels, which they were not interested in. Fast forward a year and half and Mr. Fraccalossi appears and the board sees some concerns. One, he believes the boards engineer will confirm that there is a zero percent net increase in runoff. As a result that issue is gone. Secondly, they are doing nothing to Haskins Road. Whatever the rights are to the people are being left alone. They are creating an open space buffer of their own and each one of the lots, as a result, will not have deeded rights to Haskins Way. Therefore, his letter is in error because none of these lots have a right to use Haskins Way. The developer, who has rights, still has rights. What he is looking for is for the board to give him an avenue to develop some additional property to the rear, which is exactly what the board didn’t want to go. Chairman Atwood asked where they stand with the Conservation Commission. Attorney Burke said they are going to file with the Conservation Commission once the comprehensive permit is approved and the plans are in final form. Discussion ensued as to a continuance date. Upon a motion made by Dorothy Pulsifer and seconded by Eric Priestly, the board VOTED: to continue the hearing until November 13, 2008. Chairman Atwood, Dr. Braun, Eric Priestly and Dorothy Pulsifer were in favor. (4-0) Chairman Atwood read into the record the legal advertisement for Stacy Morris and declared the hearing open at 8:12 P.M.

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Zoning Board of Appeals Minutes September 25, 2008 Chairman Atwood informed the board that Stacy Morris has requested another continuance. She is in the process of having her sister made part owner of the home. Discussion ensued as to a continuance date. Dr. Braun will not be available on October 9, 2008. Upon a motion made by Dr. Braun and seconded by Norman Diegoli, the board VOTED: to continue the hearing until October 23, 2008. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0) Chairman Atwood read into the record the legal advertisement for Hansa Middleboro Hotel and declared the hearing open at 8:14 P.M. Robert Paige, Beaumont Sign Company, submitted an application to add a new sign to the end of the building, and replace the existing signs on site. They are proposing to put up a new free standing sign out by the road. Robert Paige reviewed, in detail, the sign package submitted to the board. Dr. Braun asked if the signs are painted on the building. Mr. Paige said no. The signs will be mounted to the building; it is an aluminum cabinet, with tube lighting on the inside. Dr. Braun asked if the sign will be lit internally. Mr. Paige said yes. Eric Priestly asked what the difference is in size is to the existing signs, and the new proposed signs. Mr. Paige said the existing sign over the front of the building will be a little larger, because every time you change a font it changes the size. The sign on the road is larger than what is currently there. Currently, the sign is 4’ x 6’; the new one is a 5’8 x 9’ sign. Dr. Braun asked if it would be fair to say the sign is almost double in size. Mr. Paige said at least 40% bigger. Dr. Braun asked if this particular sign is internally lit also. Mr. Paige said yes. Chairman Atwood read into the record a letter dated September 25, 2008, from the Building Commissioner. Chairman Atwood asked if anyone would like to be heard on this matter. Hearing no comments Chairman Atwood called for a motion. Upon a motion made by Dr. Braun and seconded by Norman Diegoli, the board VOTED: to approve the petition of Hansa Middleborough Hotel, LLC relative to their request to replace and install new signs located at the Fairfield Inn. The subject property is located at 4 Chalet Road, Middleborough Assessor’s Map 038, lot 6347. This is approved subject to the following stipulations:

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Zoning Board of Appeals Minutes September 25, 2008 1. Subject to the sign plan dated August 4, 2008, drawn by Cornerstone Engineering, Inc. consisting of two sheets. 2. Subject to the three sheets attached to said plan, dated December 10, 2007, by Persona Sign Makers/Image Builders. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0) Upon a motion made by Norman Diegoli and seconded by Dr. Braun the board VOTED: to adopt the following findings: 1. The proposed site is appropriate for the use and structure. 2. Public water and sewerage facilities are available which will adequately service the site. 3. The use involved will not be detrimental to the established or future character of the neighborhood and town and is subject to appropriate conditions and safeguards. 4. There will be no nuisance or serious hazard to vehicles or pedestrians. 5. Adequate and appropriate facilities have been provided to insure the proper operation of the use and structure. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0)

Chairman Atwood read into the record the legal advertisement for Mark Reposa and declared the hearing open at 8:23 P.M. Tony Esposito informed the board that at the previous hearing there was a request that the applicant revisit the Conservation Commission regarding their concerns. They have done that and provided a minor change to the plans to address those concerns. Tony Esposito reviewed, in details, the changes to the plan. Eric Priestly said he believes that was the only remaining issue for this project. Chairman Atwood read into the record a letter dated September 25, 2008, from Patricia Cassady, Conservation Agent. Chairman Atwood asked if anyone would like to be heard on this matter. Hearing no comments Chairman Atwood called for a motion. Upon a motion made by Eric Priestly and seconded by Norman Diegoli, the board VOTED: to approve the petition of Mark Reposa relative to his request to be granted a special permit for the construction of a 50’ x 60’ accessory building for automobile dismantling. The subject property is located at 124 Bedford Street, Middleborough Assessor’s Map 29, lot 4945. This is approved subject to the following stipulations:

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Zoning Board of Appeals Minutes September 25, 2008 1. Subject to the plan entitled “Site Plan, 124 Bedford Street in Middleboro, MA”, dated April 11, 2008, revised through September 23, 2008, consisting of two sheets, drawn by Outback Engineering. 2. This shall stay in harmony with the letter from the Conservation Commission dated September 25, 2008. The applicant has agreed to leave all underground conduits out of the 100’ buffer zone. Upon a motion made by Norman Diegoli and seconded by Dr. Braun the board VOTED: to adopt the following findings: 1. The proposed site is appropriate for the use and structure. 2. The use involved will not be detrimental to the established or future character of the neighborhood and town and is subject to appropriate conditions and safeguards. 3. There will be no nuisance or serious hazard to vehicles or pedestrians. 4. Adequate and appropriate facilities have been provided to insure the proper operation of the use and structure. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0)

Chairman Atwood read into the record the legal advertisement for Shawn Paul Masterson and declared the hearing open at 8:30 P.M. Shawn Paul Masterson informed the board that he would like to have a kennel license at 5 Rocky Gutter Street, formally known as 399 Wareham Street. He currently has a dog training facility and would like to expand that into day daycare and obedience training on the property. Chairman Atwood asked if he has discussed this with the Animal Control Officer or the Building Commissioner. Shawn Masterson said he has discussed this with Jayson Tracy and was informed that this would be the first step in the process. He did not have any immediate issues with the request. Chairman Atwood read into the record a letter dated September 12, 2008, from Jayson Tracy, Middleboro Animal Control Officer. Eric Priestly read into the record a letter dated September 17, 2008, from Donald Boucher, Highway Superintendent and a letter dated September 24, 2008, from Robert Whalen, Building Commissioner. Shawn Masterson reviewed the plot plan for the board. The only addition he is doing is a six foot galvanized chain link fence. Norman Diegoli asked if he intends to have dogs overnight. Shawn Masterson said he is applying for a hobby kennel permit so the dogs can stay overnight. Norman Diegoli asked how many of the dogs will be there during the day. Shawn Masterson said he is hoping to establish a customer rate of 12-15 dogs during the day. At night he would not have the facilities to keep more than six to eight dogs on the property.

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Zoning Board of Appeals Minutes September 25, 2008 Norman Diegoli asked him to consider installing privacy slats in the chain linked fence to cut down the visibility to the cage areas. Shawn Masterson said he would certainly consider that. Dr. Braun said the plan that was submitted with the application is inadequate. He would like to see all of the dimensions, to scale, and a much bigger size so the board can get a clear understanding of how this is going to affect his parcel as well as the neighbors. Eric Priestly asked if the overnight dogs would be in the basement of the home. Shawn Masterson said yes, they will be kept indoors. The dogs will only be outside during the day. Eric Priestly asked what type of dogs he will be training and what type of training he would offer. Shawn Masterson said he does positive reinforcement training. Chairman Atwood asked if anyone would like to speak in favor of this petition. No one spoke. Chairman Atwood asked if anyone would like to speak in opposition, or just has a question. Jim Surette, 2 Eldon Street, said he is approximately 130’ away from the driveway of this location. His main concerns are his kids and the bus stop. He has previously worked at a kennel and under the best scenario there is no way to control the dogs and keep them on the property. He is scared that the barking dogs will chase the kids out in the street. The noise is another big concern. He works nights and days and with seven or eight dogs barking all day he will not get much sleep. He is also concerned with his well. He has a shallow well and the other property tends to flood whenever it rains. Carl Reed, 9 Rocky Gutter Street, submitted a petition signed by 17 abutters, which states: the neighbors of 5 Rocky Gutter Street, Middleboro request the Zoning Board of Appeals deny the special permit to Shawn Masterson’s request for a dog training and dog day care facility. There are numerous reasons that will be verbalized at the meeting, as we believe this is a business that belongs in an industrial zoned area and not in a General Use District, which abuts residential property. Carl Reed said he has done some research on dog training facilities. There are three in our area and they are large space metal type facilities. This gentleman has a lot that is 1.40 acres. He does not see how this is possible. He believes the nuisance complaint alone should be a reason to deny this permit. As the previous gentleman mentioned there is a school bus stop directly across from Eldon Street and the corner of Rocky Gutter Street and Miller Street. The front portion of this property is under water in the winter time, which brings the 1.4 acres down less. This appears to him, with the amount of dogs he is requesting, that this is going to be a large operation. This just does not fit in this neighborhood. Robert Andrew, 402 Wareham Street said they are approximately 30 feet away from this property. He submitted another seven signatures from abutters in opposition. That property is a unique piece of property. It is a triangle and has seven or eight neighbors surrounding him. This is not the place to have a kennel.

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Zoning Board of Appeals Minutes September 25, 2008 Mr. Strawn, 405 Wareham Street, asked if the town has codes on kennels. Chairman Atwood said at the present time they are pushing for the Board of Health to come up with regulations for kennels, and this board would go along with them. They are the ones who need to inspect the kennels. He does not know whether or not they have finished with that. Mr. Strawn said if you don’t have codes you have a difficult time enforcing these. Richard Kent, 400 Wareham Street said his concern is that he has lived there for six years, and since then there have been fatalities on this road, and numerous dogs have been hit and killed. He has small children and this property is not the location for a kennel. This is a residential neighborhood and there are a lot of little kids. Shawn Masterson said the purpose of this business is not to be a commercial kennel. The main business is training and dog day camp. He plans on living at this residence and does not plan on having big steel buildings on the property for commercial. The safety of the community and the safety of the animals would be his primary concern. The last thing you want in this business is for an animal to get hurt. In the package he submitted are different types of bark control that he plans on using. Eric Priestly asked where on the plan the waste treatment is and what the waste treatment maintenance plan is. Shawn Masterson said it would be placed in a container, double bagged, and picked up by-weekly. Dr. Braun asked if he is proposing to have a sign. Shawn Masterson said yes. Dr. Braun said the board would need a sign plan. Dr. Braun asked if he intends to sell any products like food, leases, collars, etc. Shawn Masterson said eventually he may have some training aids but does not plan on having a retail selection. Chairman Atwood said he has a concern when he looks at the plan. He sees three play areas which leaves him confused about where the dogs will be kept. It looks as though they will be outside all the time. Shawn Masterson said they will not be kept outside all the time. Chairman Atwood asked if he is going to be home all day. Shawn Masterson said yes. Chairman Atwood said basically this will be his primary business; he will live there, and be home at all times then. Shawn Masterson said that is correct. Chairman Atwood asked if he would have any problems installing the privacy slats in the fence. Shawn Masterson said no. Chairman Atwood asked if he has spoken to the Animal Control Officer in regards to what he would have in the basement and what would be in the play areas. Shawn Masterson said he has reviewed the property and felt it was suitable for what he would like to do there. He gave him some suggestions on a few people to talk to who have these types of businesses. Chairman Atwood said as you can see there is a problem with the neighbors. He would highly suggest continuing this hearing and having Shawn Masterson sit down with the neighbors and discuss this plan, in detail, with them and see if they have any suggestions.

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Zoning Board of Appeals Minutes September 25, 2008 That is one of the problems, the other is unfortunately for the neighbors this is located in the General Use District. There could be many businesses that could go there without any zoning approval. Most businesses, in the General Use District, do not come before the Zoning Board of Appeals. Chairman Atwood asked if there is a reason the play areas could not be moved closer to Rt. 28. Shawn Masterson said the reason he did it like that is because there are natural retaining walls, which he thought would help facilitate in containing the animals. Also, that area has a lot of trees and green area. Chairman Atwood asked if there is any reason he needs so many dogs. Chairman Atwood asked what would happen if he had fewer dogs for the day and night as a start, and if everything worked out well, then he could request more. Shawn Masterson said he is not sure he would be able to financially afford the property and run the business. Eric Priestly said because the property is General Use, and because if this was anything other than a dog kennel, he could have already erected a 20,000 square foot building on this property without any hearing or opinion from this board. He would encourage everyone to work with one another because the alternatives are not nice in the General Use District. Dr. Braun said he mentioned earlier that the plan is inadequate. The thing that gives him the greatest pause is the large numbers of abutters that are in opposition. The parcel is also relatively small and is shaped so that you view it in a lot of different directions. He does agree with Eric Priestly that there are a lot of dangers in the General Use District, however, he feels it would be more likely for someone to convert this home to a business and not construct a huge building. Discussion ensued as to the traffic this will generate. Shawn Masterson said the existing driveway holds five cars right now. He would like to add additional parking. Mrs. Masterson said she would like Shawn to review his resume with the board, because he has a lot of training in this field. Shawn Masterson reviewed his resume for the board. Carl Reed said these types of kennels do not belong in this residential district. Mrs. Masterson said the reason they looked on Rt. 28 was because when they went to the Board of Health they were told to look for something in the General Use zone. They were told that a business is allowed in this district. Chairman Atwood said indirectly she is correct and the General Use District is for businesses, unfortunately it does not say a dog kennel. Chairman Atwood suggested that they sit down with the neighbors and try to work this issue out. Shawn Masterson asked the board if they could do that now, because the sale is pending on the house. Chairman Atwood said he doesn’t believe they will get

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Zoning Board of Appeals Minutes September 25, 2008 anywhere with it tonight. There is also a board member who would like the plan to be revised. Chairman Atwood said if he has not bought the property yet he may want to think about it and the concerns he has heard tonight. Chairman Atwood said when you are dealing with neighbors, and if you don’t sit down with them, and try to work it out you are going to have a difficult time in the future. Discussion ensued as to a continuance. Hearing no further comments Chairman Atwood called for a motion. Upon a motion made by Dorothy Pulsifer and seconded by Dr. Braun, the board VOTED: to continue the hearing until October 23, 2008. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0) Upon a motion made by Eric Priestly and seconded by Dr. Braun, the board VOTED: to approve the minutes of August 14, 2008 and August 28, 2008, as amended. Chairman Atwood, Dr. Braun, Norman Diegoli, Dorothy Pulsifer and Eric Priestly were in favor. (5-0)

Respectfully Submitted:

Bruce G. Atwood, Chairman Zoning Board of Appeals

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