Scituate Zoning Board of Appeals
Meeting Minutes
April 17, 2008

PRESENT: Albert Bangert, Chairman, Brian Sullivan, Sara Trezise, Peter Morin and Edward Tibbetts.

OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer.

Request for the Board to determine that the applicant, Diamond Development Realty Trust, exercised their rights under the variance granted to Little Rock Island in November 2006.

Attorney Michael Hayes represented the applicant.

Steve Bjorklund could not attend the meeting because he was attending the Housing Summit meeting with the Planning Board.

Mike Hayes- decision was recorded in November 2006 and filed with Land Court in December 2006. In 2007 the Board extended the decision. He was seeking direction from the Board on how they should proceed. The variance was granted due to lack of frontage. They have been dealing with the Planning Board and were having difficulty due to access to the island. His Client had spent over $150,000.00 to develop the property. The statue was clear that a variance is good for one year unless you extend it. The law is murky on when you have exercised your rights under the law. His client had relied upon the variance that was granted when they had spent money and made changes to their plan. If the Board in their wisdom decides his clients have not done enough to excise their rights, he would like to ask the Board to grant them another six months extension.

Albert Bangert- he was on the Board when the variance was issued back in 2006. He felt it definitely met the criteria for a variance. Asked why there is a one-year time limit with a six-month extension if granted by the Board.

Mike Hayes- not sure of answer but offered a theory that maybe neighbors change and didn’t want an old variance to remain.

Brian Sullivan- the thought was that they should be given out rarely and they must exercise their rights or they lose it. He felt that zoning wasn’t likely to become less restrictive so he was content with extending it for another six-months. He stated the money that was spent was on another piece of land not this one.

Sara Trezise- was on board with Mr. Sullivan

Peter Morin- wanted Attorney Hayes to clarify that the granting of this variance was tied to the other piece of land that was needed for access. He asked if this was mentioned in the decision.

Mike Hayes- was clear.

Brian Sullivan- the cart path, which a court granted rights to access over in the 1800’s. He felt they could use this as access but the in the Boards decision this was to be extinguished if he was granted another access.

Neil Duggan- would have to examine the access and the variance to determine whether to give a building permit. The variance was given because of lack of frontage. He would need to look at 81 L.

Peter Morin- could the variance be exercised with access by boat or water.

Edward Tibbetts- if a building permit was pulled that would be exercising the variance.

Sullivan moved to grant the extension with it expiring on November 13, 2008, seconded by Trezise, all in favor, unanimous.

First Application: Francis and Vickie Schlosser of 117 Lawson Road requests a variance from Section 620.3 of the Zoning Bylaw allowing construction of an accessory structure (garage for one automobile) within 30-feet of the setback from Lawson Road.

Attorney Michael Hayes represented the applicant.

Frances Schlosser was present.

M. Hayes- his clients purchased the property 1999, which was a single-family ranch. His clients had three very difficult meeting with the Conservation Commission when they renovated the home a few years back. Recently, the new members of Conservation Commission granted an order of conditions that allow a one-car garage. His clients were proposing to construct the garage 11-feet from its closest point to Lawson Road. It would be 39 feet from the pavement of Lawson Road. He stated the Conservation Commission did not want it closer to Lawson Road due to the wetlands. Attorney Hayes went through the criteria of a variance.

Edward Tibbetts- asked why it could not be attached.

M. Hayes- because the land behind the dwelling was near the buffer zone and they would like it as far away from that as possible.

Edward Tibbetts- felt that the Conservation Commission put the applicants in this position.

M. Hayes- disagreed; he felt they could do this as a matter of right.

B. Sullivan- felt they could move it a little. He asks about the layout of Lawson Road.

M. Hayes- it was the biggest layout he has seen.

A. Bangert- they had significant criteria to meet in order to be granted a variance. He would like to know what the hardship was.

Sara Trezise- felt this was the same as the Clapp Road application they denied last month.

Brian Sullivan- the Conservation Commission was stepping into the realm of zoning. He suggested reconfiguring the garage a little closer to the wetlands.

Peter Morin- asked why the Conservation Commission wanted it where they did.

Mike Hayes- because they didn’t want the footprint expanded.

Mr. Schlosser - gave some history of their previous attempts with the Conservation Commission.

Edward Tibbetts- felt there was an easier way to configure this without the variance but because of what the Conservation Commission wanted; they couldn’t.

Neil Duggan- they could do this with a special permit and attach it to the house.

Albert Bangert- felt that a hardship did not exist.

Mike Hayes- Thomas Lawson’s duck pond was in their back yard. The pond was built over a hundred years ago. It still exists as a tiled pond. The Wetlands Protection Act prevents any maintenance to the pond to preserve it. Unfortunately, the wetlands have extended down from the pond to squeeze the property, limiting the homeowner on what they can do on their property.

Peter Morin- asked if there was a topographical reason why the garage could not be attached to the left side of the house.

Brian Sullivan- because of the Conservation Commission. The pond was moving closer to the house everyday.

M. Hayes- felt this made the situation unique.

Edward Tibbetts- the Conservation Commission should not be dealing with zoning issues.

Peter Morin- was bothered that a Board who had no jurisdiction of zoning was making demands. He would like the Conservation Commission to articulate why they won’t let them attach the garage.

Mike Hayes- the area between the home and proposed garage floods all the time.

Peter Morin- asked if the attaching of the garage to the house displaced water.

Brian Sullivan- wanted the applicant to go back to the Conservation Commission and say that the ZBA would grant a special permit if they allow them to move the garage over.

Edward Tibbetts- did not want to grant a variance because of the actions of another Board.

Peter Morin- if the Conservation Commission could convince him, he might be in agreement with the applicant.

Brian Sullivan- agreed. He suggested Attorney Hayes go back to the Conservation Commission to get relief and then come back to the ZBA for a special permit.

Peter Morin- volunteered to go with the applicant to a Conservation Commission meeting.

M. Hayes- felt that the proposal in front of the Board meets the criteria for a variance. He requested to withdraw without prejudice.

Sullivan moved to allow the applicant to withdraw without prejudice, seconded by Bangert, all in favor, unanimous.

Second Application: Richard Walden of 28 Cherry Lane requests a M.G.L c. 40A Sec. 10 variance or a special Permit/finding under M.G.L c. 40A Sec. 6 to encroach into the front yard setback by constructing a roof over an existing open porch. Dwelling is a pre-existing non-conforming single-family dwelling at 37 Egypt Avenue.

Janet Walden was present.

The Board clarified that they could grant either a variance or special permit because it was advertised as both.

Edward Tibbetts- wanted to know the average setbacks of the street.

Albert Bangert- there was only one other house on the same side.

Edward Tibbetts- they were on the part that disappears into the marsh.

Janet Walden- wasn’t sure of the other houses in the neighborhood. They did raise the house out of the floodplain several years.

Edward Tibbetts- would like more information on the neighborhood and setbacks.

Brian Sullivan- thought the other houses were further from the street than this house. He would like a more detailed plan.

Sullivan moved to continue the application until May 15, 2008, seconded by Morin, all in favor, unanimous.

Third Application: Roman Catholic Archdiocese of Boston requests a finding under M.G.L. c. 40A, Sec. 6 that the construction of additional gravesites in the pre-existing non-conforming ST. Mary’s cemetery located on Assessor’s map 55-3-15 will not be substantially more detrimental than the existing use to the neighborhood.

Attorney Frank Colpoys represented the applicant.

John Chessia from Chessia Consulting Services was present.

Amy Weber was present.

Attorney Colpoys- there was a crises in State because there was not enough cemetery’s to accomodate the by people who needed them.

Brian Sullivan disclosed that he is was a parishioner of St. Mary’s but feels that he could still hear the applicant if no one objected.

Edward Tibbetts disclosed he was an abutter on Meeting House Lane and would be an abutter in the cemetery someday.

Sara Trezise disclosed that Amy Weber was her Accountant.

Brian Sullivan- suggested they develop more of the land.

F. Colpoys- because of financial concerns they were only going to do this section. His clients were only seeking a finding. He turns the presentation over to John Chessia.

John Chessia- explained the layout. They would extend the roadway over to provide a buffer to the neighbors. They have met with neighbors and discussed the project. Currently, there was only one entrance to the site and they would like to create two exits for when they have funeral sessions. They were proposing to add 242 gravesites. The new sections would have preinstalled vaults preventing any dirt from having to be removed from the graveyard. There will be landscaping around the buffer of the abutting homes.

Neil Duggan- it is a pre-existing non-conforming use but because they are expanding they would need a finding.

Edward Tibbetts- would like to grant relief for the whole yard but they can’t.

Mike Diable- asked about the drainage system.

Sara York- wanted to know about the landscaping plan.

John Chessia- they will take away the dirt and then the field would be seeded for grass. They were proposing landscaping around where the work will be done.

Neil Duggan- suggested donating the dirt to fill down at Young’s Boat Yard.

Tom Provost of Meeting House Lane- asked about the runoff on the site.

John Chessia- the conditions would not be much different from what is currently there now.

Robert York- had called about the noise and cars in the cemetery in the past. He would like them to provide some screening for the neighbors. Suggested they use the stones in the dirt pile to extend the rock wall that was built in the 17th century.

Amy York- suggested meeting with the neighbors again to discuss these issues.

Sullivan moved that the proposed would not be substantially more detrimental, seconded by Trezise, all in favor, unanimous.

Fourth Application: Continued from March 20, 2008: South River Partners, LLC of 9 Stonebridge Lane, Milton, MA 02186 requests: M.G.L. c. 40A, sec. 6, cl. 1 and Zoning By-Law sections 820 and 1020.2.D finding that the razing of the existing structures and the reconstruction of twenty (20) housing units thereupon, shall not be substantially more detrimental than the existing non-conforming use to the neighborhood; and sections 1020.2.D and 1030.2. Special Permit for such razing and reconstruction, including the findings required by section 1030.2, subsections A through E at 8 Dartmouth Street and 3 Webster Street, Humarock, MA.

Walter Sullivan from Sullivan & Sullivan represented the applicant.

Michael Solamondo was present.

Walter Sullivan- stated that people were asking them why they don’t withdraw from the ZBA now that the overlay district passed at Town Meeting. Mr. Sullivan talked about Rockwood v. Snow, the last three pages deal with colonial laws of 1641. What extent can you use your rights to the low water mark. He read from Rockwood v. Snow. Then talked about the Willard v. Town of Orleans case. He showed photos to the Board that had the boat storage in it. Mr. Sullivan claimed that any use in the residential zone was automatically allowed as of right in the business zone. He talked about the proposed decision he sent to the Board. He felt that hey had satisfied the Rockwood two-prong standard. This project was in total compliance with the overlay district.

Brian Sullivan- wanted to clarify that he was stating that he could withdraw from the ZBA and apply to the Planning Board under the overlay district, and they would get this relief.

Walter Sullivan- yes, but they would be starting all over again.

Sara Trezise- that bylaw had not been approved by Attorney General yet.

Walter Sullivan- they designed their project around the overlay district.

Sara Trezise- asked about the amendment of the overlay district bylaw at town meeting.

Walter Sullivan- it had to do with a 10-foot setback off the street.

Brian Sullivan- had concerns with the Webster Street encroachment. It’s a Way shown on a plan that they could use for frontage. The average setback was 19-feet and they were proposing 8-feet. He was inclined to grant the special permit as proposed.

John Cronin- was very impressed with the Board. He wondered how the ZBA could act on an issue that the Planning Board had advertised on. He went into detail about the overlay district bylaw. He felt the applicant was only offering a boat ramp in essence in exchange for the hassle to the neighbors.

Brian Sullivan- clarified that they were not acting on behalf of the Planning Board.

Sara Trezise- asked about the affordable housing condition. She wanted a date in the decision stating when that unit had to be completed by.

Brian Sullivan- said the Board could put that in there decision.

Sullivan moved to grant the proposed change the pre-existing non-conforming uses as proposed by South River LLC subject to certain condition as written by the Board, seconded by Trezise, all in favor, unanimous.

Respectfully Submitted,

Nicole Harris
Administrative Assistant to the
Zoning Board of Appeals