Variances Should Be Granted ‘Sparingly’

Rochester Zoning Board of Appeals Chairman David Arancio on January 30 presented his fellow ZBA members with a summary from a recent conversation he had with Town Counsel Blair Bailey about granting variances.

            The point, Arancio said, was to clarify exactly what a variance is “and how we really need to look at a variance going forward and what our obligations under the law are with that.”

            Right away, ZBA member Don Spirlet said he did not agree with all the points that Bailey offered.

            Reading from the memorandum, “It is important to note… variances should be sparingly granted,” said Spirlet.

            “Correct,” said ZBA member Richard Cutler.

            “So, we should be denying most variances?” said Spirlet. “Is that what we’re saying?”

            Providing his interpretation, Arancio said: “I think that the applicant needs to do their due diligence to make sure that the three criteria [for a variance] are well explained… It has to be laid out very well. We shouldn’t be pulling it out of the applicant to get us to the finish line.”

            For a variance, the applicant must prove that the topography or some physical aspect of the property would prevent the construction from adhering to the zoning bylaw requirements, that there would be a hardship without the variance, and that the construction would produce no detriment to the public good.

            This discussion continued: “We don’t necessarily have to grant a variance, and we sometimes shouldn’t,” said Cutler. “Just because (the applicants) feel like they have a problem doesn’t mean that we always have to relieve it.”

            “But if the applicant satisfies all the criteria,” said ZBA member Kirby Gilmore, “whether or not we grant a variance shouldn’t be [based on] whether we are granting too many or not granting enough. It depends on the conversation we have amongst ourselves once we close the public portion of the hearing.”

            Arancio said the information was simply a result of the conversation he had with Bailey, and that the purpose of the board’s discussion that night was to ensure a full understanding of the nature of variances, as well as how the courts look at variances and the factors involved when a variance is appealed.

            “[We are] making sure that we are well informed and educated,” said Arancio. “It’s more or less of a refresher – everybody on the same page – everybody knows it so we’re not guessing or looking at it that way.”

            “I just don’t agree that we should be granting the variances sparingly,” Spirlet said. “If we’re looking at ten variances and they’re all well-documented and they satisfy the three criteria, why shouldn’t we grant them?”

            Cutler felt that Spirlet appeared to be “oversimplifying” things.

            “There may be other things that the applicant could do,” said Cutler, “or there may be some of the neighbors who don’t particularly care for it.”

            When it comes to abutters, Spirlet said, “To me, the public – and especially abutters – get two bites out of the apple.” (They may voice their concerns at the public meeting or appeal the variance after it is granted.) “If they don’t do either one of those, why would we… assume that just so we can just deny it?”

            Arancio suggested inviting Bailey to the next ZBA meeting to address the board members’ lingering concerns and questions.

            “I wanted to make sure that we were 100 percent on the same page,” said Arancio.

            Cutler pointed to the original intent of the zoning bylaws and also mentioned how, in Rochester, the lots tend to be on the larger side so it is “easy enough to grant more variances.”

            That being said, Cutler commented, “What’s the intent of the bylaw, and the bylaw is to try to keep things spread out.”

            Gilmore said he welcomes further clarification from Bailey, whose job, Gilmore said, is “to guide us in the right direction.”

            Arancio said he simply wished to foster clear and open communication amongst the board.

            Meanwhile, the representative present on behalf of applicant Jonathan Crowell, 694 Snipatuit Road, witnessed the discussion just before presenting the board with an application for a variance to install an interconnected, ground-mounted solar array system less than 40 feet from the rear property line.

            The board ultimately denied the variance in a 4-1 vote (Spirlet voted in favor) because three of the panels could potentially be relocated to remain within the 40-foot required setback, which could still provide Crowell with the energy input he needs to power his single-family residence.

            The next meeting of the Rochester Zoning Board of Appeals is scheduled for February 13 at 7:15 pm at the Rochester Town Hall.

Rochester Zoning Board of Appeals

By Jean Perry

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