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News/Events - Meeting Minutes
Scituate Zoning Board of Appeals, January 31, 2008
TOWN OF SCITUATE
Scituate Zoning Board of Appeals
January 31, 2008
OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer, Jason Talerman, Special Town Counsel and Jay Tehan, Special Town Counsel.
MEETING CALLED TO ORDER:
Meeting was called to order at 7:00 P.M.
First Application: Continued from October 25, 2007: Dichrisda, LLC requests a special permit/finding, pursuant to Zoning By-law 820/1020.2 (D) and G.L. c.40A, §6, to authorize a change of nonconforming uses at 44 Jericho Road to different nonconforming use, following a remand of the application from the Superior Court at the Board’s request.
Albert Bangert read his letter dated January 11, 2008 that was addressed to the applicant into the record (see file). Mr. Bangert then read a letter from David Pallotta addressed to the Board dated January 16, 2008 (see file)
Mr. Bangert- asked if the public would like to comment on the application.
There were no comments from the public.
Trezise moved to include the entire record from the May 24, 2006 hearing into the record, seconded by Morin, all in favor, unanimous.
Albert Bangert- explained that the Board would close the hearing and file a decision within 90-days. All deliberations would be done in public session.
Richard Stella of 28 Porter Road- was confused that Mr. Pallotta was not resolving this issue.
Albert Bangert- the Board was not sure why the applicant was not present.
Brian Murphy of 28 Jericho Road- asked what the original suit was.
Albert Bangert- explained that two of the members signed the decision when they were no longer on the Board. The deliberations were complete but the members were no longer appointed Board members.
Attorney Talerman- the Zoning Board’s underlying decision was based on the prior variances. There was a procedural irregularity when the decision was filed. The applicant felt this gave them grounds for a constructive approval. The Board felt they should correct the procedural imperfections. The Court felt they should hear it again. The Appeals Court said a remand should go forward to clear the decks of any procedural irregularities.
B. Murphy- asked the Board to read into the record the last paragraph of the 2006 decision.
Albert Bangert- read it into the record (see file).
B. Murphy- asked how the Board felt about this paragraph.
J. Talerman- explained the difference between a special permit and variance. The 2006 Board felt they came under the wrong bylaw.
Richard Taylor of Northy Farm Road- felt the property should remain a restaurant. As a citizen he would like some combination of restaurant, retail with condos above.
Bob Nadeau of 5 Third Avenue- asked if the Board would go back to the courts.
Albert Bangert- the Board would follow counsel’s advice.
Sullivan moved to close the hearing, seconded by Trezise, all in favor, unanimous.
Second Application: Dichrisda, LLC, for approval of a Comprehensive Permit under M.G.L. Chapter 40 B, Sections 20 through 23 and the regulations promulgated there under, 760 CMR 30.00 and 31.00, for the construction of a 24 unit, townhouse development on a 1.042+/- acre parcel. Such property is located off Jericho Road and is shown on Assessor’s Map 45, Sections 12-1-0 and 12-1-B.
Donna C. St-Aubin a registered professional court reporter was present taking a transcript.
Attorney Robert Buckley of Riemer/Braunstein represented the applicant.
David Pallotta was present
Robert Buckley- clarified he was not representing Mr. Pallotta for the previous application. Mr. Buckley met with his client, who felt they could make some changes their original 40B application. They would address the bulk of the dimensional aspects. He would like to have a work session if possible and also urged the Board to vote quickly on resolving the cooling of period. They still had not received all the comments from all the Town’s Boards and Commissions.
Edward Tibbetts- could not decide whether the previous application was open or closed but certainly it wasn’t constructively approved.
Robert Buckley- he was not representing Mr. Pallotta on that application.
Edward Tibbetts- he would have liked his client to be clear and quick on what his intentions were during the section 40A hearing.
Albert Bangert- they were still within the cooling off period.
Robert Buckley- was not asking for them to deliberate or put anything on the record with regard to the previous application. He was asking them to give up the cooling off period.
Sara Trezise- why was he asking if they were not willing to give up anything on their end.
Robert Buckley- he would like them to vote on the cooling off period now and not three months from now. If the Board denied it now and the applicant appealed it would bring in the constructive approval of the 40A application.
Sara Trezise- thought she would be reviewing some changes but all they had was a request for the Board to waive their right to deny the application.
Edward Tibbetts- maybe they need to schedule a workshop and hear from all the Town’s departments. He felt they were putting the cart before the horse.
Robert Buckley- this was still pending litigation. The Board asked them to make some changes but they would like the Board to waive the cooling off period before they continue on and spend any more money.
Edward Tibbetts- wanted to hear what they intended to discuss at the workshop.
Robert Buckley- they were not ready now
Edward Tibbetts- then what were they going to bring to the workshop.
Robert Buckley- he wouldn’t characterize it as workshop.
Attorney Talerman- suggested giving he Board a glimpse of what their changes were so everyone could get a sense of where this was going.
Robert Buckley- would like to have the workshop, if not they would have to rest their case.
Sara Trezise- the workshop would be open to the public.
Brian Sullivan- would like to decline the offer of a workshop. Felt that 40B was not a level playing field. They were asking them to waive the cooling off period but they were not giving them anything in exchange. The applicant could have come in with revised plans. Attorney Pollack had clarified his position on the 40A. In his mind nothing has changed other than they have had the benefit of the Town’s comments to work with. The Board was quite candid with how their project could be improved. It would behoove the Board to grant the relief of the cooling off period. The Board was willing to work with them and have the workshop but they would hear the same comments from them they heard at the last meeting.
Peter Morin- was trying to look at the application with regard to the history that led up to it. Neither side wants to show their hand. He asked if there was a process where the definition of fair was discussed, was this something they could all agree on.
Robert Buckley- felt they could not define “fair”. His client had spent a lot of money on the proposal he presented 2 years prior, which he felt the Board wronged him. Mr. Pallotta wants a design that both parties can agree on. In the beginning of the hearing he did state that they could make changes with regard to height and bulk. They met with architects and engineers and were confident they could make changes but not with the number of the units.
Albert Bangert- his interests were with the design not with the number of units.
Edward Tibbetts- he was hoping to move forward. They can find on this matter independent of the other matter.
Albert Bangert- the ball is in the applicant’s court.
Robert Buckley- agreed to come back with a revised plan.
David Pallotta- it would be in black and white not color.
Brian Sullivan- the Board was willing to cooperate and work towards a reasonable project.
Bob Nadeau of 5 Third Avenue- felt the citizens shouldn’t bare the brunt because Mr. Pallotta may have paid too much for the property.
David Pallotta- felt he didn’t pay too much for the site.
Bob Nadeau of 5 Third Avenue- read a letter to the Board, which stated he felt the site should remain a restaurant. He gave examples of businesses in Weymouth and other Town’s that did not succeed when someone tried to develop them. He suggested people boycott anything that is built on the site of 44 Jericho Road.
Brian -Murphy- what is the size of the proposed building.
Neil Duggan- 80 x 24, height to the main ridge is 44 feet.
Dan Ruiter of 23 Jericho Road- had issues with the proposed buildings dimensions. Gave Central School as a reference stating that the building would be larger than the school.
Albert Bangert- the Board has asked them to scale the project back.
Richard Taylor of 6 Northy Farm Road- was surprised a computer modeling had not been presented for the citizens to look at.
Albert Bangert- that would be up to the applicant.
Robert Buckley- addressed the cost of the land. The underlying premise of 40B was to make the project something people could achieve.
Edward Tibbetts- did not want to rush into another meeting right away.
Robert Buckley- they would not be coming back with full-engineered plans.
Edward Tibbetts- the Board never asked for engineered plans and he was told they would come prepared to this meeting.
Albert Bangert- would like to see concrete changes they could move forward on.
Robert Buckley- would like to meet on February 28th.
Edward Tibbetts- would like to meet on March 6th.
Attorney Talerman- asked that the applicant submit their plans prior to March 6th.
Brian Sullivan- was torn on whether to have a workshop. He did not want to engage in dialogue outside of the public hearing that could be used against the Board in the future.
Edward Tibbetts- asked what they would like to discuss at the workshop.
Attorney Talerman- felt the workshop should come after the next session.
Robert Buckley- agreed to submit the plans to the Board first.
Sullivan moved to continue the application to March 6, 2008, seconded by Trezise, all in favor, unanimous.
Trezise moved to adjorn the hearing at 8:45 pm, seconded by Sullivan all in favor, unanimous.
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