ZBA Hearing Minutes
11 Seven Arts Rd
Date: 12/20/11
Hearing began at: 2:00pm
Members Present: Fred Chapman, Chair, Dean Amidon, Vice-Chair, Cynthia Weber, Clerk, Robert Lazzarini and Stanley Ross
Also present: Scott Jenssen, Bottomline Builders, Jeff & Karen Kirson and John Gobel, Attorney for the Kirsons
The last meting was continued so that the applicant or their representative could let the Board know how they wanted to proceed. John Gobel, Attorney for the Kirson’s requested to present some considerations that support their special permit application request. The applicant and their attorney were not present at the last meeting because they had not felt it was going to go in the direction it has since a prior application had been approved.
The Board asked M. Noe to consult with Town Counsel to determine if the Board could reopen the public portion of the hearing which was closed at the last meeting. We were unable to reach him but Stan and Bob felt that if new information was available we should reopen the public portion to hear what they have to present. Dean also agreed. Fred was split on whether or not to let them as it didn’t follow our procedure and the applicant and attorney weren’t present at the first 2 hearings to present this new information. He agreed to listen but if the information didn’t seem to be germane then the Board has the right to stop the discussions.
Attorney Gobel presented a letter to the Board which asks the Board to reconsider the application under IV.a.2.b and that the proposed use will be harmonious with the existing neighborhood as the use of the lot isn’t changing and the house isn’t becoming anymore non-conforming. Attorney Gobel stated that the only non-conformity here is that there are multiple dwellings on the lot and that isn’t being changed.
Bob explained the difficulties the Board is facing right now based on a decision by Judge Grainey (the Norwell case) and the current use of the word non-conforming nature in our current bylaws. Attorney Gobel provided arguments in his letter that support that this project does not fall under this decision as there is not any detriment to the neighborhood. Section 2.c of our bylaws clearly state that if the non-conforming nature of the property is increased by the proposed alteration, then the living space of the existing structure can be increased by 25%
Mr. Kirson requested permission to address the Board. He’s owned this home for over 30 years and he and his wife hope to become full time members soon. He apologized for not being at the first hearing, he had been under the impression that his presence wasn’t necessary as this was a formality since the first special permit was granted (but had expired due to a family emergency) and this project was smaller and should’ve also been approved.
The Board explained that they did not write the bylaws they only interpret them.
Attorney Gobel asked that if the Board is going to deny the permit request that they state it is because the Norwell decision ties their hands and requires them to consider the permit under section “c”.
Bob stated again that the town is working on revising our current bylaws to remove ambiguities and conflicts and that if they are approved at the annual town meeting in May and then by the AG, they may be able to reapply with this plan late next summer if they withdraw without prejudice.
The applicant was now faced with deciding if they wanted to withdraw without prejudice and reapply and the Board would waive the filing fees, have the Board vote and have it be denied or submit a new plan with only an increase of 25%.
The applicant believes that the Board has the discretion to grant this permit and asks that the Board approve the application as filed with the supporting information provided today.
The Board re-closed the public portion of the hearing. The Board took a vote on whether or not the permit should be granted without specifying which section of the bylaws was determinant. Dean voted to grant, Cynthia voted to deny as did Fred. Stanley and Bob voted to grant. The permit was denied as 4 affirmative votes are required to grant the permit.
The hearing concluded at 3pm
Submitted by
Melissa Noe, Inter-Departmental Secretary
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