ZBA Unsure About How to Apply Bylaw

            The application of Mark Ross and Margot Mims for a special permit was continued again on February 7 as the Marion Zoning Board of Appeals wrestled with the applicability to the proposal of several Town zoning bylaws.

            Ross and Mims are requesting a special permit under Zoning Bylaw 230-6.1C, which regulates non-conforming uses and structures.

            Nick Dufresne of Farland Corp presented the board with a revised plan for the proposal at 195c Converse Road. The modified plan proposes to elevate the existing structure rather than the previous plan to tear it down, and build an addition off one side.

            Building Commissioner Scott Shippey wrote a letter to the board, which stated in part, “The intent of the bylaw was to allow the reconstruction, extension, alteration or change of a nonconforming structure by special permit. … I see no problem with approving the special permit.”

            The proposed structure would be two feet above the Base Flood Elevation as required by the state’s Building Code, and Dufresne suggested this new proposal was “more in line with the bylaw.”

            John Markey, the attorney for the applicants, suggested that there were legal issues with this proposal, not just engineering ones. He argued that the proposal fell squarely within the bylaw’s intent, in that the structure was being elevated in the exact same location and extended in one direction. Markey suggested that the board and Shippey were interested in making older cottages FEMA compliant, and there was “tangible benefit to have people willing to invest in making improvements to [the] neighborhood.” It is “helpful” and “desirable” and will protect other buildings in the area, he added.

            Dufresne told the board that the proposed structure with the addition would be similar in style to what had been previously submitted to the board.

            Associate board member David Bramley seemed skeptical that the house would withstand being raised, asking, “Will it fall apart and be reconstructed?” Markey responded that “it will be jacked up, raised, and built around.”

            Abutter Caroline Elkins, 195a Converse Road, attended the meeting with her attorney, Mark Deshaies. Deshaies suggested that Ross and Mims were proposing a “significant departure as to what portion of the bylaw to go to.” Deshaies drew the board’s attention to a memorandum by the Planning Board dated January 8, 2019, in which the board cites the Zoning Bylaw Section 230-8.1.E:

            “In the case of lots created before the date of enactment of this bylaw and with areas both in the Velocity Zone and outside the Velocity Zone, all structures built after the enactment of this bylaw shall be located in an area outside of the Velocity Zone.”

            Deshaies suggested that since the bylaw section 230-8.1 is an Overlay District, the proposal first must comply with it before being considered under any other bylaw. He reiterated that the bylaw states no new construction of any sort can occur in the Velocity Zone.

            “If you’re expanding – a lateral extension – I would suggest that’s new construction. … Elevating, leaving one or two walls, blowing out walls, that’s new construction,” Deshaies opined. He went on to say that in paragraph two of the bylaw, any new construction on a lot that has an area outside of the Velocity Zone must be located out of the Velocity Zone. A variance may be required to allow for lesser setbacks.

            “Take the lead from the Planning Board,” Deshaies concluded. “This is a 230-8.1 case.”

            Bramley, visibly irritated, asked Deshaies, “What is the basic objection? Why are [you] so upset [by this proposal]?”

            Deshaies responded that the proposal to build in the Velocity Zone puts the Town in jeopardy under FEMA. Board member Tad Wallenhaupt observed that, if the structure is currently in the flood zone, “it presents more of a hazard now than if it is elevated.”

            Deshaies agreed, stating, “Correct, and when you are doing an expansion, you take it out of the floodplain.”

            ZBA Chairman Leblanc suggested that if all the applicant was doing was raising the structure, they would not need to come before the ZBA, which Deshaies refuted by saying, “All structural and non-structural activities are covered by 8.1.”

            Elkins rose to speak, highlighting paragraph two of Section 8.1E, in which it states that all structures built after the enactment of the bylaw must be built outside the Velocity Zone. She said of Ross and Mims, “They have that area. [It] is least detrimental to the neighborhood if it is out of the Velocity Zone.”

            Leblanc countered, “This structure is not built after! If this lot was vacant, absolutely. If they were moving it two feet. … It’s basically an addition.”

            Elkins responded, “An addition is a new structure.” She went on to say that she believed this was an issue partly of semantics. She pointed out that this was the third proposal by Ross and Mims and that she expected that, when they raised the structure, it will fall apart. If they are successful in elevating it, they “leave a couple walls and do what they want. Lift it and build around the shell.” She went on to say, “There is a reason for these laws. [Ross and Mims] have an option – I am more than happy to have them build in the non-velocity zone.”

            Leblanc asked Ross what the appeal was for building in the Velocity Zone. Ross stated that the current location has better views and the non-velocity zone area of the property is very constricted and heavily vegetated.

            Other neighbors to the proposed project spoke generally in favor of the proposal. Edward Richardson, whose wife Meredith has lived in their house at 195b Converse Road for 55 years, “fully supports getting another house up on concrete! I wouldn’t want to see the existing house hit by water.”

            Barry Gaffey, 22 Converse Road, said he felt there was a lot of confusion among the boards. He supports Ross building in the Velocity Zone, saying, “Eventually we will all be in the Velocity Zone.”

            Leblanc asked Elkins, “What is the worst-case scenario for you, personally?”

            Elkins replied, “I believe the laws are written for a reason – environmentally and for the benefit of us all.”

            Attorney Markey concluded his argument for his clients by saying, “Is this a structure built today, or an addition to an existing structure? We are confident it is not a new structure. I agree [Zoning bylaw Section] 8 applies, but no subsection is triggered by this application.”

            The board asked to continue the hearing to gather more information from town counsel. The applicants agreed to continue the hearing for four weeks to accommodate the schedule of Elkins and her attorney.

            The next meeting of the Marion Zoning Board of Appeals is scheduled for February 21 at 6:30 pm at the Marion Town House.

Marion Zoning Board of Appeals

By Sarah French Storer

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