The Rochester Zoning Board of Appeals did not take a vote on January 9 to approve or deny a variance request for Tom Kennedy, 177 Marion Road, and instead voted to simply overturn the building inspector’s decision to deny Kennedy a building permit for his garage.
It was a long and winding discussion, though, one that included two recesses and a teleconference with town counsel before four of the five ZBA members formed an opinion and concluded that Kennedy did not need a variance. The Board invoked the Mullen rule to allow all members to participate, including members who had not attended the previous meeting.
Kennedy is seeking a variance to allow for a garage to be built in his front yard; however, the zoning bylaw prohibits accessory structures from being built in the front yard.
The hearing was continued from December, and during that meeting, the crux of the matter was a porch at the front of the main structure – the house – and whether that porch was substantial enough to be considered a “front wall of the house” under the bylaw with its foundation, full length of the house, and roof.
ZBA Chairman David Arancio, absent from the last meeting when the hearing was opened, contacted Town Counsel Blair Bailey on that matter; Bailey told him that the intent of the bylaw was that the porch was not considered part of the main house and therefore the setbacks that define the “front yard” must be calculated from the front wall of the house. Anything beyond that main house wall would be considered the front yard, placing the proposed garage in the front yard.
If that porch was considered a part of the main structure, though, the proposed garage location would not be considered the front yard and no variance would be needed.
“He’s (Bailey) considering the house itself as the main structure,” said ZBA member Richard Cutler, “but we have a porch that has a foundation as… it could easily be enclosed, so I would consider that in this case the main structure, part of the main structure.”
“It’s not a simple platform with a couple of steps,” said ZBA member Davis Sullivan.
“I want to make sure the petitioner tonight walks away with the ability to do this,” said ZBA member Tom Flynn. “I want to make that clear, but I don’t think there’s any other way to interpret it than that the porch has to be part of the main structure.”
The problem facing the Board was the fact that the bylaw does not address whether a porch like that was considered part of the “main structure.” It does leave a subjective interpretation of a “wall”, though, and the board struggled to conclude whether the foundation of the porch qualifies.
If the board considered the porch to be part of the main house, then the garage would technically be outside the front yard. But if the board considered the front wall of the house as the main structure, the garage would be about two feet into the front yard.
Arancio was not convinced the porch should count as part of the main structure.
“Every time this body talks about how close something is for setback requirements, we go from the closest point,” said Arancio. “So the porch, the overhang, the gutter… if we are now to define it differently, I think that’s problematic.”
Arancio also had a problem with an inconsistent setback that was presented in the plan before them, the plan that was approved for the placement of the garage, and the mistake the contractor made in pouring the foundation of the garage in a different place.
Arancio insisted on a recess to consult with Bailey, and then returned to open session even more convinced that he was right. Furthermore, the project would not meet the three criteria required to grant a variance if a variance was needed.
“Most of us don’t believe that this… variance is even necessary,” said Cutler.
Arancio said he asked Bailey for clarification, and, “He has not instructed this board to discontinue this hearing base off of what he believes…”
“Respectfully, I disagree with town counsel,” said Flynn.
Arancio lamented that Bailey was not present at the meeting, so he called for another recess to again phone Bailey, and the meeting was reopened with Bailey on speaker.
Bailey said, to the best of his knowledge, the bylaw has never been applied to anything attached to the structure – no porch, landing, or stairs. And to consider the porch as part of the main structure, where does the board draw the line?
“The issue becomes… if you start using decks and front porches as that limitation, I think you’re going to start bringing into question… how big a deck does it have to be?” said Bailey. “My problem is, where are you going to draw the line on the deck?”
Bailey cautioned the board by setting a precedent by interpreting the porch as part of the main structure.
“I think in this case… if you want to change that interpretation… I think the problem becomes – unless and until you… rewrite the bylaw, you’re going to be in a really subjective realm.”
That won’t help the board that night, though, Cutler pointed out.
“Tonight, it’s really within your discretion,” said Bailey. “If you don’t feel that a variance is needed… I would just say to you, you should be very specific as to where you’re going with the definition of wall so that there’s some direction for [the building inspector].”
“I know I am in the extreme minority in this,” said Arancio, “and I understand that; and I am well aware of the optics of that. I believe that this could’ve been 100 percent avoided… if [the garage foundation] was put as placed at the 55 [feet] and this wouldn’t even be a talking point.”
No abutters contested the application, and none were present that evening.
“In this case, I think that the porch is part of the main structure,” said Cutler.
“This porch is part of the main structure,” said Flynn. “It’s substantial, and I think we can exercise our authority.”
“I also think that this is the intent of the bylaw,” said Cutler.
Cutler made a motion to overturn the building inspector’s denial of the building permit, and the motion was then amended to specify that the nature of the porch made it part of the main structure.
The vote in favor was 4-1. Arancio dissented.
The next meeting of the Rochester Zoning Board of Appeals is scheduled for January 30 at 7:15 pm at the Rochester Town Hall.