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HomeMy WebLinkAboutMinutes - ZBoA - 10/06/2014 Minutes—Zoning Board of Appeals October 6, 2014 Members Present: S. Woodworth Chittick Peter Goedecke Charles Higginson Benjamin Lacy David McMorris Jennifer Schultz Others Present: Jennifer Brennan Oram Meeting Held in the Board of Selectmen's Office, Town Hall. Chairman S. Woodworth Chittick called the meeting to order at 7:30PM. Zoning Board Business Approve Minutes—Mr. Benjamin Lacy moved to approve the minutes of September 8, 2014 as amended. Mr. Charles Higginson seconded the motion and the vote was unanimous. The next meeting will be held on November 3rd CONTINUED HEARINGS/DELIBERATIONS SPECIAL PERMIT—Filed by Kevin Pennington. Seeks to amend the 2 family designation from the existing 1 bedroom apartment located in the main dwelling, and move the designation to cover the livable space that will be located in the area above the proposed new garage at 47 Highland Avenue. §8.8. File#14.07.22. The Board discussed what section of the bylaw they felt this filing could fall under. Mr. David McMorris stated that where the lot is undersized, they could make the finding if the application would be more detrimental to the neighborhood. After further discussion, Chairman Chittick moved to close the hearing. Mr. Lacy seconded the motion and the vote was unanimous. The Board then discussed the approval of the application. Chairman Chittick moved to approve the relief sought. Mr. Lacy seconded the motion and the vote was unanimous(Messrs Chittick, Higginson and Goedecke). Chairman Chittick asked for someone to draft a decision and file it within the 14 day window. Mr. Lacy will draft the opinion and have it filed. HEARINGS APPEAL—Filed by Attorney Philip B. Posner, on behalf of his clients,Jason and Carolyn Soules,of the Building Inspector's denial of enforcement action at 392 Jerusalem Road (landowner David F. Crowley- Buck),Trustee of 392 Jerusalem Road). File#14.07.22. Mr. Lacy moved to grant the continuance requested. Mr. Peter Goedecke seconded the motion and the vote was unanimous. ZBA—9.6.14-JBO 1 Minutes—Zoning Board of Appeals October 6, 2014 APPEAL—Filed by Attorney Jay Talerman, on behalf of his clients,Alexander Koines of 380 Atlantic Avenue and Stephen J. Crummey of 391 Atlantic Avenue,of the Building Inspector's decision to issue a building permit for a single family home at 390 Atlantic Avenue(landowners John and Martha Shaw). File#14.08.26. Chairman Chittick opened the hearing. Mr. Goedecke recused himself and moved to a seat in the audience. Chairman Chittick reviewed how the hearing would go. He stated that they will have the Attorney for the petitioners address the Board first. The Board will talk with them first. The Board will not be engaging the audience at this time. Chairman Chittick stated that there are few issues before the Board, one of which is that of standing. He asked Attorney Talerman to address this. Attorney Jay Talerman addressed the Board on behalf of his clients, Mr.Alexander Koines of 380 Atlantic Avenue and Mr. Stephen J. Crummey of 391 Atlantic Avenue. Mr.Talerman stated that there was no standing issue. The applicants are abutters so they absolutely have standing; he added that there is no court in the world that would say otherwise. Secondly, he used the Board's applications to file. This appeal is of the issuance of the building permit. He stated that this is a very tricky case. Attorney Talerman referred to the memo he submitted to the Board via email on October 1, 2014. Attorney Talerman states that because the lot in question came out of"common ownership" in 2002, it retained the protection (details in memo on file in Town Hall), but when it went back to "common ownership" in 2007, the lot lost its protection under§8.3 of the Town's Bylaw. He stated that the 2007 when the lot was combined into common ownership once again with 394 Atlantic Avenue,this was the fatal aspect of this case as the lots were now merged. It is his belief that where these lots were now merged under the 'merger doctrine', the lot is no longer protected and the Board should revoke the building permit. There was then a lengthy discussion regarding merger between Mr.Talerman and the Board. Zoning Member, Jennifer Schultz stated that the bylaw reads in the past tense and that this tells her to look back and it [the effective date] informs the protection. Mr. Lacy stated that the Board would need to see cases regarding merger. Ms. Schultz stated that she felt the language [in the Town's Bylaw}does give perpetual protection [to the lot]. Attorney Talerman stated that merger is automatic; he will provide cases to support this. After further discussion, Chairman Chittick asked Attorney Henderson to address the Board. Attorney Henderson addressed the Board on behalf of his clients, Mr. and Mrs. Shaw. Attorney Henderson stated that the effective date is what needs to be understood. Section 8.3 gives single lot protection. He stated that when the deed is recorded for a lot, if it never changes,the lot is protected in perpetuity. Mr. McMorris said that Attorney Talerman is saying that the lot changed due to merger. Attorney Henderson stated that if that was the case, than the then lot owner, Mr. Healy, did something he could not do and there would be an illegal house on one of the lots [391 Atlantic Avenue]. Attorney Henderson stated that this situation is not a merger; it's a single lot exemption. Attorney Henderson added that the effective date in the language of the bylaw refers to when the lot was laid out. Chairman Chittick asked Attorney Henderson about the point he brought up in his brief(dated October 3, 2014) about the appeal being flawed. Attorney Henderson stated that they did not follow the 14 day language that is in the Town Bylaw. Mr. Lacy reviewed §12.2 and stated that an inaction is considered ZBA—9.6.14-JBO 2 Minutes—Zoning Board of Appeals October 6, 2014 an action. Attorney Talerman said that was not the case. Chairman Chittick stated that Attorney Talerman will be able to present his case on that shortly. Mr. McMorris asked Attorney Talerman how he would respond to Attorney Henderson's contention that this {the merger theory of Attorney Talerman) would affect Mr. Crummey's property(391 Atlantic Avenue). Attorney Talerman stated that this comes up from time to time where lots that should have merged didn't and there are equitable cases in court to deal with that, but those are essentially private remedies. But Crummey could have an action to quiet the title between these two properties and demand in a bill of equity that the lot be reverted back. Money would change hands and there would be all sorts of court action. But equitably speaking, there was not sufficient title to convey that lot out. He is not saying that the lot belongs to Mr. Crummey; the lots were essentially indivisible as of 2007. As I have said from the beginning about merger,there is nothing easy about merger, people miss them. A court would have to put them back together. It's a peculiar situation. There have been private lawsuits. It's a messy-situation. Mr. McMorris asked Attorney Talerman if a single lot exemption would be cleaner. Attorney Talerman reviewed his thoughts regarding the common lot protection and stated that it comes down to the language of the effective date. He added that he is not trying to defeat the local bylaw, he is saying the bylaw has limits. Attorney Talerman asked to address the section 8 issue. He said to suggest that he can't appeal a building permit within 30 days shows a complete lack of knowledge altogether of the zoning bylaw. He stated he would give the cases to show this. Mr. McMorris asked for just the references. Chairman Chittick asked Attorney Talerman if he felt he had provided the Board with all of the relevant case law. Attorney Talerman stated that he did not think he had and would go back and bring it forward. He stated that it's a peculiar situation. Ms. Schultz asked that submissions come in time so the Board has time to review them and at the next meeting each side can present them. Chairman Chittick asked if anyone in the audience wished to speak. He stated that the issue before the Board is not the appearance of the lot, but if the protection has been lost due to a merger or if it is protected by section 8.3. Mr. Steve Crummey of 391 Atlantic Avenue asked if anyone from the Board had been by the property. The entire Board stated they had. He mentioned the porta potty and said that it should be moved to the back of the property. Michael Russell of 105 Atlantic Avenue asked if was true that the lot was unbuildable. Attorney Henderson answered as the previous owners were his clients. He said that it was not deemed unbuildable, it was that they could not get a sewer permit (for both lots). Mr. Russell asked further questions regarding the sewer. Chairman Chittick stated that this was not before them and was the jurisdiction of the Sewer Commission. Jody Johnson of 249 Jerusalem Road asked if the property owners would continue to build while this is before the Board. Chairman Chittick stated that some people do and some people don't, but if they do, they do so at their own risk. Pamela Hill 380 Atlantic Avenue asked if the Board would get involved for damage to their property. Chairman Chittick said no, it would be a private action. Leila Hill of 40 Atlantic Avenue asked if a pertinent fact of this case is because both lots are non-conforming. Would it be different if one were conforming and the other was not? After a ZBA—9.6.14-JBO 3 Minutes—Zoning Board of Appeals October 6, 2014 brief discussion,Attorney Talerman stated that merger still happens. Mr. Higginson asked about the terrace on the back. Mr. Crummey stated that some of it is his and the other belongs to the Shaws at 390. It will have to be split off. He stated that it does not make sense to build this across two lots if the intention was to split them and sell them off. Mr. Alex Koines of 380 Jerusalem Road added that there was more than a legally joining of the lots, but also physically joining them with gardens etc. He also asked about the 5' Variance that they received in 1957 and said that a stake was put at 4'. He wanted to add this to the discussion. Tom Littauer of 268 Jerusalem Road asked if anyone knew the tax history of the properties. He wondered how they could be merged and not merged. He thinks that tax information may shed some light on the issue. Chairman Chittick stated that the Board did not know and he was not sure it was relevant. Mr. Koines offered to address it. Ms. Schultz said the Board would be happy to take it as a submission. Chairman Chittick moved to continue the hearing to November 3, 2014. Mr. Lacy seconded and the vote was unanimous. Chairman Chittick moved to adjourn the meeting. Mr. Lacy seconded the motion and the vote was unanimous. Meeting adjourned at 9:5813M. Respectfully submitted, Jennifer Brennan Oram Assistant Clerk, Zoning Board of Appeals Documents: Additional Calculations and Site Plan filed for 47 Highland Avenue by Mr. Kevin Pennington. Dated received by the Zoning Board Office on September 22, 2014. Memo from Attorney lay Talerman sent via email regarding the 390 Atlantic Avenue appeal. Memo dated October 1, 2014. Document date stamped received by the Zoning Board Office on October 2, 2014. Brief filed by Attorney Richard Henderson on October 3, 2014 regarding 390 Atlantic Avenue appeal. ZBA—9.6.14-JBO 4