Third Time Should be Charm for Multi-Family

            The first time Daniel and Carrie Costa, 173 Pierce Street, came before the Rochester Zoning Board of Appeals, they said a variance was necessary to allow the couple to convert their house into a multi-family residence for important personal reasons.

            The Costas, who moved to Rochester in June, suffered the loss of Mrs. Costa’s father when he passed away unexpectedly, leaving behind his wife. As Daniel explained at the October 29 ZBA meeting, his mother-in-law needed to move closer to them now that is a widow; furthermore, Mr. Costa’s wife, who suffers from an autoimmune disease, needs her mother’s support help with their children.

            At that hearing, the ZBA members held that since the Costas had not owned and lived in their home for seven years, they could not seek a variance or special permit to convert it to a multi-family residence. The board advised the couple to seek the advice of Rochester Town Counsel Blair Bailey to try and find a way to meet the guidelines set out in Chapter 20.40, Section F.9.a of the building bylaws. The hearing was continued.

            On November 12, the Costas returned. This time, however, things were looking brighter.

            Bailey told the board members that, given the bylaw’s actual text, nothing specified that it had to be the same owner over the seven-year period. While he understood that the seven-year stipulation was intended to restrict multi-family subdivisions, the language in the bylaw could be challenged. He said that it was incumbent upon the “writer” to clearly spell out details.

            ZBA member Richard Cutler said, “It’s clear it’s not intended for homes that have been around for a while.” Still, instead, the seven-year period was to restrict new homes from being converted into multi-family units.

            Chairman David Arancio expressed his concern, saying, “We’ve gotten into interpretations of meanings. We talk about intent, and there is a lot of institutional knowledge, but I’m on the fence on Blair’s interpretation.” He said he was being “mindful of the conservative nature of the community.”

            ZBA member Jeffrey Costa also had concerns, saying, “It doesn’t say anywhere in there (the bylaw) for new owners”; however, “knowing our town,” he said, in his opinion, seven years applies to the current owners.

            Bailey went deeper into his point. “The general principle is you have to read the bylaw the way it is written. Courts would say, if you meant something else, you should have said something else.” He went on to say, “Courts may not agree with you.”

            The proposed apartment is a 1,040 square-foot addition, Costa said, which will exceed 30 percent of the existing 2,540 square-foot structure’s footprint. The variance requested by the applicant was only for the frontage requirement. Bailey said the applicant would need a variance from the 30-percent rule as well.

            The board determined that the applicants could withdraw without prejudice and refile with the two variances required. Bailey offered his assistance moving forward.

            The next meeting of the Rochester Zoning Board of Appeals has not yet been scheduled.

Rochester Zoning Board of Appeals

By Marilou Newell

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