No one could argue that, of all the Snow’s Pond Road variance requests to ever come before the Rochester Zoning Board of Appeals, Jake Goyette’s has been the most controversial. But on October 24 with town counsel on hand, the ZBA granted Goyette his variance to build his single-family house on the unaccepted town road, despite a contentious but unrelated neighborhood dispute over access that remains unresolved.
The board had Town Counsel Blair Bailey present to help it untangle the issues from the non-issues pertaining to Goyette’s application. Supportive neighbors and Goyette’s attorney argue that Goyette’s variance should be granted like all the other Snow’s Pond Road houses received over the years. After all, it was granted years ago, but then expired in 2012. Neighbors opposed to the variance, however, argue that until access to a right of way is restored, Goyette should be denied the variance.
Goyette’s application, like the rest of his neighbors’ variance applications in the past, requests permission to build a house on property that lacks frontage on an accepted town road. The last time the board opened Goyette’s public hearing, ZBA members chose to continue until they could research prior Planning Board decisions where the Planning Board weighed-in on the adequacy of Snow’s Pond Road.
Bailey said he found two such instances, one of them an Approval Not Required application from 1990 that the board granted. By signing that, Bailey said, “The Planning Board effectively weighed-in on the adequacy of the road up to the point when the split (in Snow’s Pond Road) was made.” Having said that, he continued Bailey, “I did speak with the chairman of the Planning Board and he agreed with that interpretation.”
Although the ZBA ultimately granted Goyette the variance, it came after over an hour of discussion that often veered into the gate that Goyette’s direct abutters – his parents – erected to block all access to a contested right of way across their property.
On behalf of Lisa Holden, a Snow’s Pond Road resident and seller of the property to Goyette, Attorney Marc Deshaies argued that granting a variance to Goyette would be “denigrating from the bylaw” that a house has to be on a public way or shown on a plan approved by the Planning Board.
Deshaies was referring to the drive that Goyette’s parents have blocked with a gate. He said that he traced the right of way all the way back to 1811.
Linda Rounseville, a resident of Snow’s Pond Road, opposed the variance because of the gate on Goyette’s parents’ property, as well as the three-panel stockade fence that sits in the middle of the way on Goyette’s property.
Goyette’s mother, Bonnie Goyette, the owner of the gate blocking the access, clarified that the gate does not belong to Jake, and also pointed out that Lisa Holden, one of the principal opponents of Goyette’s variance, years ago received the very same variance Goyette now seeks. Holden’s and the others’ variances were all “granted within 10 minutes,” Bonnie Goyette said. She said 10 other houses all have zero feet of frontage on an accepted town road. “What is the difference between Jake’s application and Lisa’s application other than the name at the top of the application?”
ZBA Chairman David Arancio said all sides have a right to speak at a public hearing, adding that he is “a process guy” and that he was also on the board when the original variance was granted.
Lauren Francis said she performed the title examination and claimed that the contested right of way was originally named East Snow’s Pond Road and recorded in the past. She said the problem here today was the blocked access.
“The issue that I have here is that’s not the problem here today,” said Bailey.
The ZBA cannot decide someone’s property rights, he said, adding that although he understands the issue of the gate, “That’s not anywhere near this board… It’s not in front of this board. I sympathize and I understand, but there’s nothing this board can do to address this problem.”
According to a letter submitted by Holden, Goyette’s parents put the gate up to block traffic because their grandchildren cross back and forth between the two Goyette family properties.
“They have caused a detriment to their neighbors as well as a safety concern in that area,” wrote Holden.
Goyette’s attorney, however, rose to be one of the last to speak about the blocked access, as Arancio grew tired of the matter he now perceived as unrelated to the application. According to the attorney, Goyette was misled to believe that the original variance was still in effect when he signed the purchase and sale agreement with Holden. He said the variance was written into the deed and also the purchase and sale agreement, despite its expiration prior to the conveyance of the land.
“That is fraudulent,” he stated. Furthermore, the gate is located on Goyette’s parents’ property, not his, and the stockade fence was put up because drivers would proceed down the right of way and then back up onto Goyette’s land to turn around once they approached the fence. The application is solely for relief of the frontage, he reminded the board, not for access rights.
Once public comment was closed, ZBA member Richard Cutler read a statement he prepared on how he had voted for that original variance but did not support this latest application.
“At the time there was no discussion about the rights of others to pass,” said Cutler. “Now [there] appears to be a controversy, indicating to me that there is some detriment to the public good.”
“I don’t see that,” said ZBA member Don Spirlet. “To me, the detriment is the fence, the gate that they’re talking about,” which is on another’s property. “I have no problem issuing this [variance].”
ZBA member Jeffrey Costa agreed, and chastised Goyette’s opposition, saying, “Figure stuff out, neighborhood, and let the poor kid build his house.”
ZBA member Davis Sullivan agreed with Cutler. When he voted for the first variance, there was no detriment to the public, he said. “But at this point, there is.”
“Just to be clear,” Bailey interjected, “the detriment to the public good has to be tied to the relief he’s asking for,” which is a lack of frontage.
“Still,” said Cutler, “there’s a lot more controversy associated with this piece of property than we’ve ever had on any other piece of property over on Snow’s Pond Road.”
“I don’t disagree,” said Bailey, “but what I’m saying is the question before the board is, does granting this relief do a detriment to the public good – that’s the question, and the relief is the frontage on Snow’s Pond Road.
“I just don’t see how it… is detriment to the public good,” said Arancio. “I have not heard one person talk about this application and him building a house in a negative manner.”
The vote was 4-1 with only Cutler opposing.
Also during the meeting, the board granted two variances to Mary and Michael Fitzgerald, Hiller Road, one to allow an accessory structure to exceed 1,000 square feet, and one to allow the accessory structure to be located in the front of the property. The couple also received a Special Permit to allow the structure to exceed the height of the principal structure.
The next meeting of the Rochester Zoning Board of Appeals is scheduled for November 14 at 7:15 pm at the Rochester Town Hall.
Rochester Zoning Board of Appeals
By Jean Perry