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HomeMy WebLinkAboutMinutes - ZBoA - 11/03/2014 Minutes—Zoning Board of Appeals November 3, 2014 Members Present: S. Woodworth Chittick Charles Higginson Benjamin Lacy David McMorris Jennifer Schultz Member Absent: Peter Goedecke Others Present: Jennifer Brennan Oram,Assistant Clerk Meeting held in the Board of Selectmen's Office,Town Hall. Chairman S. Woodworth Chittick called the meeting to order at 7:32PM. Board Business Approve Minutes—Chairman Chittick moved to approve the minutes of October 6, 2014 as amended. Mr. Charles Higginson seconded the motion and the vote was unanimous. The Board agreed that the next meeting of the Zoning Board of Appeals will be held December 1, 2014. CONTINUED HEARINGS/DELIBERATIONS 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. Chairman Chittick moved to grant the continuance requested. Mr. David McMorris seconded the motion and the vote was unanimous. Discussion Regarding the Request of the Board for an extension of the 100 days for 390 Atlantic Avenue Chairman Chittick reviewed where this appeal presently stands. Attorney Lisa Mead,Attorney Jay Talerman's partner, will be representing the appellants this evening. Chairman Chittick addressed the email sent by Attorney Jay Talerman (dated October 30, 2014) in which Attorney Talerman said he would consider granting the requested extension if the Board considered requiring the construction at 390 Atlantic Avenue cease while the matter continues before the Board. Chairman Chittick stated he did not feel it was within their purview to do so. He explained that the Board wants the extension to protect it from a constructive grant and to allow it time to deliberate. Attorney Mead stated that they would be willing to extend it to December 15th. Chairman Chittick stated they would consider January 15, 2015, or the Board could close, deliberate and deny this evening. Attorney Mead agreed to January 15th, but asked that the hearings keep moving forward. They will email the approval of the extension to the Assistant Clerk. ZBA—11.3.14-JBO 1 Minutes—Zoning Board of Appeals November 3, 2014 APPEAL—Filed by Attorney Jay Talerman, on behalf of his clients,Alexander Koines of 380 Atlantic Avenue and Stephen J. Crummey of 394 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 asked Attorney Henderson if he wished to address anything. Attorney Henderson stated that he rests on his brief. He added that the aggrieved had 14 days to appeal and that did not happen. Mr. Benjamin Lacy asked if they [the appellants] wrote the Building Inspector. Attorney Henderson stated that they did not and that appellants argue that they have a direct right to appeal the issuance of the building permit to the ZBA. Attorney Mead then addressed the Board. She stated that they did not seek an enforcement action, but instead appealed the building permit which they are allowed to do by law and they have 30 days to do so. It is their position that they are aggrieved by the decision of the Building Inspector to issue the Building Permit. Jennifer Schultz stated that she was inclined to agree with the appellants and does feel the Board has jurisdiction to hear the matter. Mr. McMorris agreed. Attorney Mead then reviewed the case for the Board. She stated that in 1985, the year the zoning changed, 390 and 394 Atlantic Avenue were held in common ownership. She agrees that in this regard, the Town's Bylaw does provide more protection than 40A. This is where their agreement ends. Attorney Mead stated that the Bylaw does not say the protection is perpetual. She stated the Bylaw needs to state this explicitly as is done in other cases they have been provided to the Board. The Town of Cohasset's Bylaw does not provide any express protection after the effective date.Attorney Mead then reiterated she and Attorney Talerman's stance that when these lots were conveyed separately in 2002,then put back together in 2007,the lots were then merged. She stated that as in the Preston v. Hull case,the lots merge under the merger doctrine. There was then some discussion regarding the Preston case and if it applied to this case. Mr. McMorris asked Attorney Mead what lots she believed merged in 2007. She said that 14A and 12 and 13 and 13A when Healy took ownership. Mr. McMorris asked what then happened to 13 and 13A. Attorney Mead stated that Healy sold those in 2013. Mr. McMorris asked if that troubled Attorney Mead. She stated no. He asked if she thought Mr. Crummey had a legal lot today. Attorney Mead stated yes. Mr. Lacy asked Attorney Mead about the language in the Morse case. He said that the language in that case gives protection for lots in common. He stated that it seems to him that they are dealing with a similar situation in this case, only in the Morse case the protection was for 5 years, but the Cohasset Bylaw does not have an end date. Attorney Mead stated that she disagrees and that the language of the Town's Bylaw is not explicit enough. Mr. McMorris stated that he did not see anything ambiguous about it all and to reach what she is saying you would have to put [language] in the Bylaw that is not there. There was then an extensive conversation regarding the language. Mr. McMorris stated that what he finds troublesome is that the Town of Cohasset has a very unambiguous zoning bylaw and the rules seem very clear. However, he feels that Attorney Mead's argument injects an ambiguity into the Bylaw. Attorney Mead stated that she obviously disagrees with Mr. McMorris' interpretation. ZBA—11.3.14-JBO 2 Minutes—Zoning Board of Appeals November 3, 2014 Chairman Chittick asked if Attorney Henderson had anything to add. Attorney Henderson stated that he could not add anything to what they have said tonight. He does feel the intentions of the Bylaw are very clear. Attorney Mead reiterated her position stating that it is clear the effective date is different in Cohasset's Bylaw, but beyond that, when the lots come in and out of ownership,you have to deal with the merger doctrine. She feels the Bylaw needs to be explicit. Ms. Shultz asked why Attorney Mead did not see the beginning language of the Bylaw and asked if she is saying they are not connected at all? Chairman Chittick added what is the purpose of"may be constructed', which tells him that it is somewhere in the future. Attorney Mead replied that she did not think that the Bylaw is explicit enough that it overrides the merger doctrine. Ms. Schultz asked if Attorney Mead could provide cases that supported this, but pointed out that in fairness to Attorney Mead, Ms. Shultz had requested such cases from Attorney Talerman at the last hearing. Attorney Mead said that they had provided three cases, but understood what Ms. Shultz was requesting and will look into providing the cases. Chairman Chittick asked if anyone in the audience wished to speak. Mr. Steve Crummey of 391 Atlantic Avenue stated that they have been in Cohasset about a year and love the Town. He stated the reason they are doing what they are doing is because they don't feel houses should be shoe horned into lots. He said that he thinks they can win in land court, but they appreciate the Board's time. Mr. McMorris suggested that maybe it's time for concerned citizens to do something about the Bylaws and the lot sizes. (Ms. Shultz pointed out that if changes were made,they would not be retroactive). Attorney Henderson stated there are ways to change things, but it's done at Town Meeting. Chairman Chittick explained that such changes are discussed and brought forth to Town Meeting after being vetted by the Zoning Advisory Committee (ZAC). After a few additional comments from the audience, Chairman Chittick moved to continue the hearing to December 1,2014. Mr. Lacy seconded the motion and the vote was unanimous. Chairman Chittick asked that any submissions be submitted at least a week in advance, but sooner would be better. Mr. Lacy moved to adjourn the meeting. Mr. McMorris seconded the motion and the vote was unanimous. Meeting adjourned at 9:10PM. Respectfully submitted, Jennifer Brennan Oram Assistant Clerk, ZBA ZBA—11.3.14-JBO 3 Minutes—Zoning Board of Appeals November 3, 2014 Documents: Brief from Attorney Richard Henderson date stamped October 30, 2014 regarding 390 Atlantic Avenue. Email from Attorney Jay Talerman dated October 30, 2014. ZBA—11.3.14-JBO 4