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|ZBA Rules Against Pair of Applicants|
|Written by Administrator|
|Tuesday, 30 March 2004 17:00|
The Zoning Board of Appeals preserved both a group of residents’ view
to the water and the opinion of the building inspector in their latest
The Zoning Board of Appeals preserved both a group of residents’ view to the water and the opinion of the building inspector in their latest decisions.
In one of the decisions made during the group’s March 1 administrative meeting, board members were closely divided on allowing an extension to a garage on Pine Point Place. The board voted three in favor and two opposed to deny the special permit request of Stanley Merry, who sought to add a 12-foot by 24-foot three-season porch to his existing garage on the property. Because the addition extended an existing, non-conforming setback, it triggered the need to come before the ZBA to request a special permit.
During three public hearings stretching from July of last year to this January, the board inquired about several aspects of the addition, most notably the obstruction of views by nearby neighbors and the use of the structure as a second dwelling.
At each hearing, many of Merry’s neighbors spoke out against the project citing these reasons as well as traffic concerns in the area.
During their most recent administrative meeting, the ZBA decided to deny the permit on the grounds that while the proposed addition was not a substantial increase in the non-conforming status, a majority of the board felt that the non-conforming porch addition would be more detrimental to the neighborhood based on their own site inspections.
The ZBA cited infringement on water and saltwater marsh views to several neighbors if the porch was allowed to be built. They also determined that the traffic impact was small and that concerns about the structure as a dwelling unit could be addressed in conditions, but these determinations were insignificant as the permit was denied.
Also at the March 1 meeting, the ZBA voted unanimously to uphold the determination of Building Inspector Richard MacDonald regarding ownership of a pair of lots that was being appealed by the applicant.
The appeal concerned two lots at 8 and 12 Prence Street that MacDonald said had merged into a single lot for zoning purposes with one common owner. The applicant, CJBL Tavenner Nominee Trust and Margret LeClerc, however, claimed that the two lots remain in separate legal ownership and are entitled to “grandfather” treatment for zoning given changes to town by-laws.
At a January public hearing, the ZBA decided that they could hear the appeal, recognizing that MacDonald’s memo to the applicant created a “constructive inability” to obtain a building permit, as the existence of two separate lots would be necessary for a permit.
LeClerc took title of 8 Prence Street in 1989 and in 1996 gained a one-third interest in 12 Prence Street. In August 1997, LeClerc transferred title of 8 Prence Street to the trust and three months later, obtained the remaining two-thirds of 12 Prence Street in a court settlement.
While the ZBA said it was clear that LeClerc never held title to both properties at the same time, it cited a court case that indicated that she had a chance to eliminate, or at least reduce, the non-conformity on the adjoining lot before obtaining 12 Prence Street, but she did not. Therefore, the board said that transferring the property to a trust was “simply a variant of a ëchecker boarding’ maneuver” and not valid for grandfathered protection.