At the previous Marion Zoning Board of Appeals meeting on January 18, applicant Christian Loranger had been asked by the board to provide it with a timeline of his ownership of and activities relating to his property at 120 Front Street. The purpose of the timeline was to provide information to help the ZBA establish whether the non-conforming use of the property, a two-family house, had been lost due to either abandonment or non-use, which is the current ruling of Zoning Enforcement Officer Scott Shippey. On February 22, Loranger arrived at the Town House with a thick packet of emails and a summary of his correspondence with the Town, his engineers, realtors, neighbors, and architects.
“In the interest of time,” Loranger began, “You know how I feel about the bylaws…” and therefore, he wanted to skip straight to the timeline.
The timeline was divided into two sections – a summary of dates, which were backed up by emails, and then the emails themselves. Loranger painstakingly reviewed the dates since he acquired the property in 2013, including his Conservation Commission hearings, his purchase of the parcel of land located on Pitcher Street, among others.
Loranger contends that he visited the Conservation Commission office in March 2014 and was told by “a woman running the office that he didn’t need to worry about wetlands.” He went on to say that he pursued and eventually purchased land behind his property located on Pitcher Street, a process that took over two years.
He highlighted the ConCom’s denial of his Notice of Intent application in July of 2016, which he then appealed to the DEP, which also denied his permit. Loranger finally received his Order of Conditions (OOC) in September 2017. During this time, Loranger was apparently also in discussions with then Fire Chief Thomas Joyce about using the house for fire training exercises. Eventually, the idea was scrapped, which Shippey thought was due to the house being in close proximity to other structures and an inability to safely contain the fire.
ZBA Chairman Marc Leblanc asked Loranger about his architects. “In 2014, you hired a new architect to design a home – was it a two-family?” to which Loranger replied that it was a two-family structure.
Conservation Commission Chairman Cynthia Callow, present at the meeting, said, “It has been a long process with Mr. Loranger on 120 Front Street. We did deny [Notice of Intent] at first, and the DEP affirmed our decision. The second plan, we approved.” Callow could not remember why the first NOI was denied, but suggested it had to do with a retaining wall too close to the wetlands. She added that Loranger does not hold a superseding OOC from the DEP, as was mistakenly claimed, saying that Loranger has not paid the DEP for the appeal process. She also noted that the commission would be visiting the site due to a report of dumping in the wetlands on the property.
Norman Hills, selectman and ex-Conservation Commission member, took issue with the report that the commission had told Loranger “not to touch a blade of grass or stick on that property,” implying that the commission had somehow contributed to delaying his project. In his written statement, Hills defended the commission, writing that at no time did the ConCom tell Loranger not to cut his grass, etc., adding, “Nothing has prevented him from doing routine maintenance of the property.… I would note during that postulated time … Mr. Loranger somehow managed to cut down every tree on the property.” Hills concluded, saying that Loranger owned the property for three years prior to applying for an NOI.
Loranger clarified that he believed it was the DEP who had told him not to touch a blade of grass on his property.
Looking over Loranger’s data, ZBA member Kate Mahoney underscored the dilemma before the board, saying, “[We are] grappling with the concept of abandonment – if something is being done, what looks like to be at a lagging pace, is that use?”
At this point, Town Counsel Barbara Huggins Carboni weighed in. “The board looks at the whole period of time, asking has there been any abandonment or non-use? If you see activities relating to constructing a new home – that is part of your consideration.”
Carboni pointed out that action or non-action, coupled with “intent not to abandon” and with “activities not to abandon,” were factors the board took into consideration. Carboni underscored that, with the idea of abandonment, intent was important.
Shippey clarified that the property was used as a two-family prior to a fire in 2010, before Loranger’s ownership, but since the fire Shippey had performed one inspection at the house, an insulation inspection on January 3, 2012. There was no Certificate of Occupancy issued since that time. The permits pulled after the fire weren’t completed, and no work had been performed.
In November 2013, Loranger asked that the previous owner’s building permit be extended. A discussion ensued about the validity of the construction permits held by the previous owner. Leblanc argued that because there were open permits when Loranger bought the property, that indicates it is still being used as a two-family.
When ownership changes, the permit becomes null and void, Shippey stated. The clock starts with the new ownership; therefore, according to Shippey, the permit held by the previous owner as a two-family structure has no bearing on the new permit. The last permit pulled by the previous owner was in January 2012.
Leblanc and alternate member Tad Wollenhaupt followed the timeline for the previous owner’s permit (January 2012) to the first contact by Loranger (February 2013) to the closing on the parcel (November 2013) to Loranger contacting the building office for a new building permit application (January 2014). This timeline, Leblanc suggested, showed good faith in the owners moving forward on the home being a two-family structure. However, Carboni pointed out again, the question is about whether use continued or not – not about good faith.
“Just because the purchaser thought in good faith that [it is a two-family structure] doesn’t decide it is in use as a two-family.” The state of mind of an owner or purchaser, Carboni added, does not control or decide continued use.
Loranger said he submitted a construction permit to Shippey on January 14, 2014, and that the permit was returned to him on January 22. Neither he nor Shippey have a written record of the permit application. Shippey couldn’t recall returning the permit to Loranger, but he was quick to clarify it was not a denial.
“I would have written him a denial so that he could appeal – that is his due process,” Shippey said. If Shippey had returned the permit, it may have been because of a lack of information.
Mahoney had trouble understanding Loranger’s response to the return of his permit, saying, “You go through all this work and it is returned to you and then there’s no activity. Doesn’t look like there is any urgency after the denial.”
Loranger said he looked at the bylaws and decided that “…My property was grandfathered and I don’t need to go down this road – I had attorneys that agreed with me.”
Loranger said he had documentation of this, but felt like this path was beating a dead horse.
“All that I’ve been asked about, I’ve shown [the board. You’re] handpicking what you don’t think I’m telling the truth about.”
Mahoney replied that she was not handpicking but would have expected more of a response to the returned permit. ZBA member Betsy Dunn put the issue to bed with a curt “He says the building permit was returned to him, so he did.”
This brought the board to the crux of the issue: the determination of either abandonment or non-use for two years. The zoning bylaw says abandonment or non-use of a two-family for two years or more shall lose its protected status. In her memo to the board dated January 18, Carboni noted that the two concepts are not interchangeable and that the board may find a nonconforming use to be “extinguished by either abandonment or by non-use, or by both.”
Hills defended Shippey’s denial of the permit based on his conclusion of the loss of the non-conforming use, saying the Town relies on Shippey’s knowledge. “Scott knows the building code. He’s the expert.”
Wollenhaupt said he didn’t see abandonment of the use at all, adding “But I possibly see non-use.”
Leblanc asked if non-use is applicable if the structure is uninhabitable.
Carboni responded, “I think you’ve hit the hard part of the case – the issue of non-use is difficult. The court has said that the mere vacancy of a dwelling does not in and of itself determine non-use…. This does give the board some room because the concept of non-use is not well defined.”
If the board suggests the dwelling was uninhabitable, it can take that into consideration.
With a bit of exasperation, Leblanc asked the board what they were looking for, saying, “We are bouncing the ball back and forth – we are looking to overturn or uphold…” the decision.
Mahoney suggested the board continue the hearing so that they may “think.”
The board has 90 days after closing the hearing to issue a decision.
At one point, a neighbor rose to speak in favor of closing the public hearing and a positive vote for Loranger. Sandria Parsons, 24 South Street, urged the board to take some time this evening to deliberate and assess the information. “It’s only 8:40 pm. Can you take twenty minutes to look over your notes to make a decision for this man to build his home? I’m eager for a home for the Loranger family.… It’s hard for me to believe there’s more to say. I kinda think this man has given you all you asked for in the last three meetings.”
Parsons argued that Loranger wants to build a home with a mother-in-law apartment, “…Not a second apartment to rent.” Shippey said Loranger can, by right, build a single-family home on the lot and apply for an accessory apartment for family members.
Mahoney reiterated that the board should continue the hearing, seeing no disadvantage of continuing since they were not going to decide the issue this evening. The public hearing for 120 Front Street was continued to March 15. Leblanc said the board should put it to bed at that meeting.
The next meeting of the Marion Zoning Board of Appeals is scheduled for March 15 at 7:30 pm at the Marion Town House.
Marion Zoning Board of Appeals
By Sarah French Storer