After an extended discussion by the Marion Zoning Board of Appeals (ZBA) on December 6 comparing two sections of the zoning bylaw, the applicant for 195c Converse Road decided to withdraw their application without prejudice.
The public hearing for the application of Mark Ross and Margot Mims of 195c Converse Road began with ZBA Chairman Marc Leblanc reporting that the Planning Board sent a letter which suggested that the bylaw under which the application had been submitted, Section 230.6.1.G, was the incorrect bylaw for this particular project.
This section pertains to the demolition of a structure after a catastrophic event, which this structure has not experienced.
In addition, the Planning Board noted that the applicant should also make sure they met the requirements of a section that pertains to moving a new structure out of the V zone.
Nick Dufresne of Farland Corp. represented the applicants who proposed razing the structure at the Converse Road parcel and “substantial” rebuilding in the same footprint.
Dufresne noted that his clients would be building a “flood-compliant” structure elevated 10 feet above grade, which creates more volume than the original 1945 structure.
ZBA associate member David Bramley questioned whether the applicants could place fill in a floodplain, to which Building Commissioner Scott Shippey replied, “The [Marion] Conservation Commission issued an Order of Conditions. [It] must not be substantial enough.”
Shippey went on to say that he spoke with town counsel who confirmed that the section cited by the application states that the demolition doesneed to be caused by a catastrophic event. However, section 230.6.1.Cdoesallow reconstruction with a Special Permit.
Town Counsel Jon Witten added, “Paragraph G is awkward but in total – [requires] demo as a result of catastrophe. … Subsection C would allow demolition. [Was this a] scrivener’s error?”
Whitten said the applicant could acknowledge that the application was submitted under the wrong section in error and was advertised as such, and continue the discussion. This would, however, put the application at risk if it were approved, since it could be appealed on the basis that it was advertised incorrectly.
“[The applicant] could withdraw and re-file without prejudice,” suggested LeBlanc.
There was further discussion clarifying for members of the community in attendance the distinction between subsections G and C. Shippey stated succinctly, “G was redefined to deny demolition by-right. C allows demolition by Special Permit.”
Witten added, “One is voluntary: one is a natural disaster.”
Witten, after pointing out he was not the applicant’s attorney, recommended that, since there was what he called a “procedural defect” in the advertisement, the applicant should withdraw their application and refile.
The ZBA tabled the discussion while it went into executive session with Witten to address an Open Meeting Law complaint filed by Peter Douglas on November 30. When they returned to the open meeting, Ross informed the board that he would like to withdraw the application for 195c Converse Road.
Also during the meeting, the board discussed the application for Brian Keane at 8 Pie Alley. Keane’s application was correctly filed under the section of the bylaw under discussion earlier in the meeting, 230.6.1.C. The applicant proposes to level the existing garage and rebuild a two-story carriage house on the same footprint.
Leblanc noted that the structure would not be “exacerbating a non-conforming use,” which is a requirement of the bylaw.
Shippey stated, “The board has discretion to grant reconstruction under this subsection [of the bylaw].”
The board voted unanimously to approve the Special Permit.
The next meeting of the Marion Zoning Board of Appeals has not yet been scheduled.
Marion Zoning Board of Appeals
By Sarah French Storer