Dustan McGlinn admitted he made multiple mistakes in building a deck that blatantly violates property-line setbacks, but he dug in hard before the Marion Zoning Board of Appeals to dispute the emerging narrative that he operated on the theory that it’s better to apologize than it is to ask for permission.
“I apologize if that’s the way it seems, but that’s just not the case,” said McGlinn during the December 9 continued public hearing.
Already complicated, Case No. 797 took on another dimension on November 4 when McGlinn, who is still the applicant for a variance, sold his 20 Beach Street house to Steven and Heidi Nye.
ZBA Chair Cynthia Callow was admittedly stymied by the series of events that placed McGlinn back before the board seeking forgiveness. “I have no idea why a permit was not pulled,” said Callow, noting that the abutter directly behind the house “doesn’t even see the deck.” Callow further stated that had such an application come before the ZBA prior to construction, “it would have been a five-minute meeting.”
ZBA member Margie Baldwin concurred and added that it’s not fair to punish the new owners of the home.
Steven and Heidi Nye were present on the December 9 Zoom call and stated that they bought the house for their daughter Jessica Nye and that the deck as built was a selling point because of the small yard.
The variance from Section 230-5.1 of Marion’s zoning bylaws seeks allowance of an existing, nonconforming deck to remain in place despite its construction without Building Department permission, Conservation Commission vetting (because the property sits in the flood zone) or ZBA approval.
The three-pronged violation, especially coming in the wake of multiple communiques with the town dating back to August 17, was a hard sell.
“I want to let Mr. McGlinn know that it was pretty bad what he did here,” said Callow.
McGlinn, who described himself as a Marine Corp veteran and a firefighter, blamed his missteps on ignorance and insists he did not intend to ignore communication from Building Commissioner Scott Shippey or violate regulations.
Callow prepared a response and bounced it off Town Counsel Jon Witten. “Any way we can open up a new permit (application) or continue and ask the new owners to buy a little part of land from the abutters to meet the setbacks?” Callow asked.
Impressed with the idea, Witten said that would work “if it can be done on the ground,” meaning if the Nyes and their abutter(s) could strike a deal.
Steve Nye said he is amendable to a land acquisition. “I get it, I’m in the building industry, and I get it. We can’t let people run amok with what they’re doing.”
Given her opportunity to address the board, abutter Veronica Williams, 122 Wareham Road, expressed outrage at the unpermitted construction and asserted that the deck invades her property, but McGlinn disputed the fact.
“We’re trying to remove Dustan from the situation now that we’re the new owners. I totally understand the legality of this,” said Heidi Nye, who asked the ZBA for a 12-month period to formulate a Plan B in the event the board rules against McGlinn’s application for the variance. She acknowledged a potential land purchase and adjusting the deck to the setback requirements.
While acknowledging Covid and weather-related delays in construction, Witten advised against granting the Nyes a full year to address the problem. “Because it’s an illegal deck, the board cannot be party to looking the other way; 12 months may be taken as looking the other way,” said Witten, who suggested a month for the parties to work out a solution.
The board heeded his advice.
In voting to continue the public hearing to January 27, Callow said “no construction or engineering is going to happen right away.”
ZBA member Will Tifft was the lone dissenting vote against the continuance. ZBA member Dana Nilson recused himself from participation in judging the case so Callow replaced him on the voting roster with associate member Dannie Engwert.
After substantial deliberation, the ZBA voted to grant Mark McKenzie a special permit under Section 230-5.2b of Marion’s bylaws to allow the division of an existing lot with two homes, contingent on specifically located water and sewer connections.
The resulting two lots at 3 and 12 Taunton Avenue date back to 1947 with the building of the first of the two houses on the property. The more recent house was built in 1986 and an unattached garage added in 2001.
According to both the town and McKenzie’s representative, Bill Madden of G.A.F. Engineering, the lots could have been divided by right and without the vetting of the ZBA had the lot sizes and frontage been divided equally. But an unattached garage and a piece of a driveway overlap with what would be the property line and necessitated the special permit.
“A portion of one of the lots would intersect the driveway and require easements. It didn’t really make a lot of sense to divide them that way,” explained Madden to the board, noting that the effort in the petition is to “create two lots that are created most-nearly equal.”
The resultant lots are uniformly shaped, Lot 265-A measuring 211.47 feet of frontage and 15,276 in total square feet and Lot 265-B measuring 241 feet of frontage and 15,898 in total square feet.
“It doesn’t make sense to have a property line at the garage … I think they’ve done a pretty good job … I think the hardship is the location of those buildings,” said Nilson, recommending the board’s approval of the application.
As Shippey explained to the board and confirmed by McKenzie, the houses are connected on one municipal service line, and then one feeds the other. McKenzie said he had already addressed the matter with the Water/Sewer department and assured the ZBA that there is no problem fixing the connection.
As conditioned in the special permit, the lot at 3 Taunton Avenue will connect to services via Converse Road, and the lot at 12 Taunton Avenue will revert to its prior connection. Shippey said that there will be connection fees associated with the rearrangement through the DPW.
In answer to Baldwin’s question, McKenzie confirmed the intention to sell both properties to settle the estate.
Two members of the public spoke, Barry Gaffey, 22 Converse Road, in support, and Sharon Levine, 8 Taunton Avenue, who expressed concern over lack of notification.
Board administrator Anne Marie Tobia told the board she mails to all abutters within 300 feet. Levine said no one on Taunton Avenue was notifie, and all have forwarding mail service. McKenzie said that unless residents notify the post office on an annual basis, their mail will not be forwarded. Tobia reiterated the fact of her effort.
The next meeting of the Marion ZBA is scheduled for Thursday, January 13, at 6:30 pm.
Marion Zoning Board of Appeals
By Mick Colageo