PRESENT: John Danehey, Chairman, Edward Tibbetts, Richard Dennis, Agnes Rona and Albert Bangert.

MEETING CALLED TO ORDER:

Meeting was called to order at 7:10 PM.

First Application: Continued from March 16, 2006: Kenneth R. Grondell of 45 Chief
Justice Cushing Highway requests a special permit/finding under Section 420.2 to construct a “four-car” private garage.

Brian Sullivan was attorney-representing applicant.

Applicant was present.

B. Sullivan submitted a letter (see file) asking the Board to continue the application until May 18, 2006.

John Danehey clarified that Neil Duggan asked for the extension via a memo (see file).

Tibbetts moved to allow the applicant to extend until May 18, 2006, seconded Rona, all in favor, unanimous.

Second Application: Dichrisda, LLC of 44 Jericho Road, Scituate requests special Permit/finding pursuant to 820/1020.2 (D) of the Scituate Zoning Bylaws and M.G.L. Ch 40A, Sec. 6 and any other relief the Board of Appeals may grant to authorize the change of nonconforming uses of the premises to more restricted uses or to uses not substantially more detrimental or injurious to persons.

William Ohrenberger the attorney for the applicant submitted letter (see file) requesting to extend the application until May 24, 2006. He explained in his letter that he would like Neil Duggan the Building Commissioner to be present when the application was heard.

Tibbetts moved to allow the applicant to extend until May 24, 2006, seconded Rona, all in favor, unanimous.

Third Application: Continued from March 16, 2006: James J. Coronella, Trustee of Seven Beaver Dam Realty Trust, PO Box 232 Cohasset, MA 02025 requests special permit under section 810 and 820 to reconstruct and expand the structure and pre-existing non-conforming use at 7 Beaver Dam Road.

Michael Hayes was the attorney-representing the applicant.

Gary Gardner from Shesky Architects was present

John Danehey recused himself due to the fact that his law firm abuts the property. Edward Tibbett’s stepped in as chairman.

Tibbetts said he wanted to discuss the legal issues regarding the variance at the property.

M. Hayes- explained that the plans had been redesigned (see file). He said his position still stands that they can request a special permit. He stated that unless a town has specifically authorized either a change of substantial extension of a use, the reconstruction, extension, or structural change of structure, or the alteration of a structure is provided for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent, such modifications may not be permitted. The Town of Scituate has such a provision in its Bylaw, namely, Section 820. He explained that the location has been pre-existing and nonconforming since at least 1770 when it was the Merrymount Boarding House and continues pre-existing nonconforming to this day. He felt the nonconforming use was not lost by the issuance of the 1969 variance. He said that if the voters of Scituate intended to limit Section 820 to pre-existing nonconforming structures only, they would have specifically said so in the bylaw.

Agnes Rona- said she did not understand how they could use the variance process to get a special permit. She read from the letter Mr. Hayes submitted regarding Mendes vs. Board of Appeals of Barnstable (see file). She felt when the variance was granted whatever happened prior to the variance no longer applied. She explained her decision was based on the case law presented by Mr. Hayes.

M Hayes- talked about Goldhirsh vs. McNear, 32 Mass. App.Ct 455 (1992), which focused not how or when the nonconforming building came to be used, but rather the question is whether the proposed change to the structure will increase its nonconforming nature.

Agnes Rona- asked if the building existed because of a variance or because it always existed.

M. Hayes- answered both.

Albert Bangert- said that the owner sought a variance in 1969 to abandon the boarding house and asked for a liquor license. He felt they were dealing with the business on the property to which the variance was granted. He felt they should not look back prior to the issuance of the variance.

M. Hayes- stated he would like to continue the hearing and not have the Board make a decision that evening. .

E. Tibbetts- talked about Shrewsbury Edgemere Associates Limited Partnership vs. Board of Appeals of Shrewsbury, 409 Mass. 317 (1991). He felt the Board could come to a decision because the current use came about due to a variance granted in 1969, which stated the entire nonconforming use would be abandoned.

M. Hayes- explained that his client did not want to appeal the Boards decision or end up in the courts at all. He suggested the Board get a legal opinion from Town Counsel. He said his client would cover the costs for the Board to consult with Town Counsel.

The Board decided to extend the application until they could request a legal opinion from Town Counsel on whether the application merits a special permit.

E. Tibbetts- commented that the applicant’s offer was very generous and he would like the opinion shared with the applicant.

Edward Vitiello, 25 Beaver Dam Road- asked if he could receive a copy of the opinion.

E. Tibbetts- explained that the opinion would not become available to the public until it became part of the public record at the next hearing.

M. Hayes- explained that he and the applicant would not have contact with the town’s attorney.

Doreene Close of 132 Summer Street- Felt the Board should let the citizens speak. She stated she would like the board to do an up or down vote that evening.

E. Tibbetts- said he would like to be informed on the legality of the application from Town Counsel before voting.

Doreene Close- asked why Town Counsel hadn’t reviewed the application. She stated she was not comfortable with the applicant paying for the Town’s legal fees. She felt it gave the appearance that the applicant was paying to get the answer they were looking for.

Henry Lynch of 15 Beaver Dam Road- submitted documents to the Board (see file).

Freddy Maguire of 4 Jericho Road- expressed he was inconvenienced by the Board extending the meeting and felt they should have made a decision that night.

Edward Leary of 199 Front Street- wanted clarification on the procedures of the Zoning process.

Evan Toomey of 6 Jericho Road- felt there was a problem with the variance being transferable.

Ann Palmer- asked if applicant would go to the Planning Board if turned down by the ZBA.

E. Tibbetts- answered no.

Mike Rezendes of 20 Brookland Road- stated the Board could not reverse the 1969 variance and felt they should deny the application.

Bertien Westerveld of 12 Harbor View Road- asked if there were more resources available to learn the zoning process.

Bangert moved to allow the applicant to continue until June 15, 2006, seconded by Rona, all in favor, unanimous.

Danehey moved to adjourn hearing at 8:45 P.M., seconded by Tibbetts, all in favor, unanimous.

Next schedule meeting will be May 24, 2006.

Respectfully Submitted,

Nicole Harris
Secretary
Zoning Board of Appeals