ZBA Mindful of Creep Issue

            When Evelyn Hafferty Fischer went before the Marion Zoning Board of Appeals on November 18, seeking permission to connect two structures at 20 Beach Street so that her father can live full time on her property, ZBA members were enthusiastically supportive of her application and at the same time sympathetic toward concerned abutters.

            ZBA member Dana Nilson told the board that he has an in-law apartment on his property and considers it “very important.” He said the apartment did not increase the size of his house’s footprint and applauded this application. “I think this is an excellent opportunity to provide that (senior housing),” he said.

            Citing the existing use of a guest cottage, ZBA member Dr. Ed Hoffer strongly echoed Nilson’s sentiments. Hoffer has been involved in the town’s think tank studying and seeking solutions for seniors to age in place, especially widows and widowers who cannot afford to keep up a large house. “I applaud this, I think it’s a good use. I don’t see how it makes it any worse,” said Hoffer.

            “This thing’s been creeping. … At this point, it’s growing,” said Jim Stewart, 21 Cove Street, an abutter situated directly behind Fischer’s property.

            Designer Stephanie Metz, who represented Fischer to the ZBA, presented a plan to change the second entry to a wall with two small windows, remove the ivy and repair the trim, and add screening to an existing concrete wall.

            While Marion Building Commissioner Scott Shippey acknowledged substantial work proposed on the site, Metz said, “It’s not exactly a porch,” but a structure made of made of brick and stone and shingle halfway up the wall. Only it’s not winterized.

            There were questions about the redesign and parking, but they faded to the backdrop behind questions and concerns about the structure’s evolution.

            Stewart offered some background, saying that Joe Marini built a wall in the late 1990s, then it was a garden shed and “kind of grew from there.” The next step, said Stewart, was the shed’s conversion into a guest cottage. He asked if that conversion was ever vetted by the ZBA, asserting that he never received notice.

            He’s concerned about that a second floor might be next.

            “They would have to dig out a foundation, and that’s just not feasible,” said Metz, explaining that the building is a slab on grade.

            Shippey said that a second floor would necessarily come before the ZBA for consideration of a special permit anyway. The tax assessor’s record indicates that the structure has been in place since 1987. “Over 10 years (there is) nothing we can do. It becomes pre-existing, non-conforming,” he said, explaining that the statute of limitations for anything related to permitting is 10 years.

            That means that, unless the ZBA determines that a project is making a non-conformity worse, it will not reject an application to improve on a structure especially for the purpose of aging in place.

            “There is a history of creep in this town,” said ZBA member Will Tifft, referencing the porch and subsequently enclosed area. “I’m not going to make a big deal if this, but we need to be careful of it.”

            ZBA member Margie Baldwin agreed but said the time with this property has passed.

            “There is this problem of creep, I understand that,” she said. “I don’t feel that we in our position now … we can determine based on years ago that it was built too close to the property (line).”

            The most-affected abutter, Julie Albert, 26 Beach Street, had hoped she could use the occasion of this application to gain more control. She asserted that the wall is on her property.

            “I don’t know how you’re going to maintain that wall, and I don’t want anyone on my property maintaining it,” she said, correcting a reference to ivy. “It’s a climbing hydrangea … that wall continues right to the street. I had it all landscaped and planted to cover that god-awful stuff, and I don’t want it touched. I don’t want any siding there… It’s my property so I hope it’s possible. Hope I’m clear.”

            Baldwin stressed the fact that the footprint will not be changed, calling the driveway adequate and saying it “doesn’t impact the neighbors. … Yes, it’s too close to the property line, but it’s (already) there,” said Baldwin.

            In the open-comment portion of the meeting, Tifft asked the board to “keep in mind an increasing footprint can happen in many ways.”

            Stewart asked for a survey of the property line, asking if it turned out that part of the applicant’s property was on an abutter’s property, would that not affect the applicant’s rights to revise the structure. Shippey said that question remains in the purview of the ZBA because the applicant is not extending the non-conformity of an existing structure.

            Stewart also insisted that the kitchen was installed inside of the last 10 years, and he asked Shippey to research the matter.

            “You’re input is valuable, but it is allowable by the bylaws,” said Shippey.

            In prefacing discussion with a reference to zoning bylaws 230-8.6 and 230-7.2, ZBA Chair Cynthia Callow also said she has an in-law apartment on her property.

            “This is a good thing we’re doing. We have many three-season porches turned into four-season and living space so I don’t see that encroaching footprints. … I think this thing’s already enclosed,” said Barry Gaffey, an interested resident attending the Zoom meeting.

            After reviewing the application, the ZBA voted to approve with no nay votes. Alternate member Tucker Burr did not vote.

            The board discussed voting protocol later in the meeting, and Callow explained that, as alternate members, Burr and Danielle Engwert don’t vote when there are only five votes needed and five are available. Sometimes a 4-out-of-6 vote is needed, and there are also recusals and/or absences. In such cases, Witten says the chair picks the alternate.

            Tifft suggested that the chair lean, rather than strictly deciding on an alternate member’s vote based on their area of expertise, toward a randomness “so that you could never be accused of loading the group.” Hoffer noted that alternate members are still free to offer their opinions without necessarily voting on a case.

            The scheduled continued public hearing with Heron Cove LLC was once again continued, this time to December 23 at 6:30 pm when it is anticipated that Town Counsel Jon Witten and Ken Steen’s attorney Mark Bobrowski will be in attendance.

            A modification to the permit that was originally put forth to the ZBA is anticipated for the 40B affordable housing project on Route 6 near the Wareham town line.

            The board voted to accept the withdraw without prejudice of the application of Jay Flanagan, 26 West Avenue.

            “My belief is he is going to come back (with a revised proposal),” said Callow, who heard Flanagan’s case the night before as a member of the Conservation Commission.

            In discussing how to handle future such scenarios, Callow said she would recuse herself from ConCom votes so as not to biase the ZBA).

            On December 20, ZBA members will be participating in a two-hour training class with Witten on special permits and variances and the differences in roles of the ZBA and the Planning Board.

            Callow asked ZBA members to send suggestions, and Shippey suggested they be sent to Anne Marie Tobia, the Zoning/Building administrator, to avoid any violations of the state’s Open Meeting Law.

            The next meeting of the Marion ZBA is scheduled for Thursday, December 9, at 6:30 pm.

Marion Zoning Board of Appeals

By Mick Colageo

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