The unpermitted backstop that contributed to a several years-long legal battle between the Marion Zoning Board of Appeals and Tabor Academy is allowed to remain now that the ZBA has granted Tabor the variance it requested.

On March 10, with a unanimous vote, the board let bygones be bygones and allowed the controversial backstop to stay weeks after Tabor Head of School John Quirk withdrew the school’s contentious special permit request and refiled for a variance to modify the backstop for safety.

During the February 11 meeting, Quirk presented the proposed safety changes to keep flyaway balls from exiting into the street and neighboring properties, which include raising the 18.5-foot tall structure by 4 feet and extending the overhang forward another 4 feet.

“I think from what we’ve heard otherwise, the relationship with Tabor has improved significantly which I think is an important element,” said ZBA Chairman Eric Pierce. “I’m leaning towards allowing [this] based on the improvement of safety, and it is a unique situation because of the shape and the placement.”

Pierce included reasons for his approval, such as the financial impact removing the backstop would have on the school, the unique topography of the land, and the alleviation of the safety concerns.

Also during the meeting, an abutting business owner and some residents whose properties abut an architectural firm at 313 Marion Road voiced their concerns about the firm’s request to expand their offices into the second floor in what they considered to be an uncomfortable forum for neighbors to air their concerns.

Peter and Elizabeth Turowski were requesting that the board overturn a prior special permit condition of previous owners of the building to allow an expansion of their offices into the second floor and also add a rooftop deck.

One prior special permit mandated that the second story be used only for storage, and a following one for a subsequent owner required that the second floor be restricted to an owner-occupied apartment. The Turowskis would now like to use it as professional office space.

Owner of a neighboring liquor store, Mark Riley, complained of ongoing parking issues he says he has had with the Turowskis’ business. He claimed the Turowskis’ employees will sometimes park in his business’ parking lot and that there is not enough parking to accommodate an expanding building. Riley said he has often spoken with the Turowskis about moving cars off his lot.

“It is clear that the business has outgrown its space and needs to look [elsewhere],” read a letter submitted by Riley.

Mr. Turowski denied having had any interaction with Riley and said this was the first he had heard of the matter.

“That’s just an all-out lie,” Mr. Turowski stated. “I’ve never had him come over, not to my awareness.”

ZBA member Betsy Dunn commented that there are always cars double-parked in the Turowskis’ lot whenever she passes by.

A gentleman in the audience then approached the board and identified himself as the alleged “liar,” Riley.

“I really don’t like this process because it pits neighbors against neighbors,” said Riley. The Turowskis are “fantastic neighbors,” he stated, “But to allow them to go outside their bounds right now … the area just can’t handle it.”

Mr. Turowski took offense and responded with his own accusations, such as having to often pick up liquor bottles and cigarette butts thrown by Riley’s customers onto his property.

“It’s an issue for me, but I don’t want to make it an issue,” said Mr. Turowski.

Riley threw his hands in the air.

“That’s what I don’t like about this process,” said Riley to the board members, and he sat down.

Bill Washburn and brother Warren spoke on behalf of their elderly mother who resides next door.

“I’m sorry,” said Bill Washburn, “I’m totally against it.” And if they have to challenge it legally, he said, then they will go that route if necessary.

Pierce said, “I think we’ve heard from all sides.” The board closed the public hearing to take it under advisement and then discussed the matter towards the end of the meeting.

“I gotta say, I kind of agree with the Washburns,” said Dunn. “I mean, they’re building out to the absolute edge.” She continued, “I find this a very very difficult one because, when I read it (the application), I was adamant not to do offices on the second floor.”

Building Commissioner Scott Shippey said the Turowskis’ ten parking spaces satisfy the bylaw’s required nine for the square-footage of the building.

In other matters, the board took the special permit request of Jacqueline Gaffey, 20 Old Indian Trail, to raze an existing house and construct a new one with a height of 28 feet, keeping with the same footprint. Since the last meeting, Gaffey’s representative Dana Nilson said he addressed neighbors’ concerns about stormwater runoff by installing a stormwater infiltration and catch system. Neighbors still questioned the functioning of the property’s septic system and decided to take that issue up with the Board of Health.

The board also took under advisement the special permit request by Garret Bradley of 8 Park Street. Neighbors who opposed his plan to demolish an existing garage and rebuild it to include an in-law suite have since withdrawn negative sentiments after Bradley changed the plan to build an addition attached to the house via a breezeway instead of an accessory structure closer to the property lines.

“I actually like this better,” said Bradley. “It’s what we wanted. I actually think it looks better.”

The next meeting of the Marion Zoning Board of Appeals is scheduled for April 14 at 7:30 pm at the Marion Town House.

By Jean Perry

It didn’t take long for tempers to flair as abutters packed in Rochester’s Town Hall on March 10 for the Rochester Zoning Board of Appeals meeting began to speak out against their neighbor’s application for a variance.

Robert Fiano, 397 North Avenue, applied for a zoning variance in order to construct a 28- by 33-foot garage and a 27- by 36-foot deck, and to install a 14- by 28-foot shed on his Old Orchard Estates property that, as planned, would require a variance of the 40-foot setback mandated in bylaws.

Before the public could have their say, Chairman Richard Cutler made sure that the large number of attendees understood the process and the procedure.

As for the variance process, Cutler said the applicant had to satisfy one or more of the following criteria: 1) there are unique circumstances relating to the shape, topography or soil conditions of the land; 2) literal enforcement of the bylaws would involve substantial hardship, financial or otherwise to the petitioner; and 3) the desired relief may be granted without substantial detriment to the public good.

As for the meeting procedure, Cutler explained that all questions and comments given during the public participation portion of the hearing were to be directed through the chairman and not directly to the applicant.

Fiano’s representative Ian Souza provided a drawing that showed the position of the proposed new structures and asked for relief of the 40-foot setbacks by 50 percent or more.

ZBA member Kirby Gilmore started the questioning by asking Fiano if he knew what size lot he had purchased in July 2015. Fiano said he was sure it must have been listed on paperwork but couldn’t really tell due to the number of trees on the property at that time. The lot is .758 acres.

Gilmore then addressed what the decrease in setbacks would mean in terms of the adjacent neighbors’ lot lines, saying, “The distance from the neighbors’ property line is from here to that wall.” He was pointing to the wall opposite his seat in the meeting room.

Gilmore continued, “The deck is 1,000 square feet, it’s almost as big as your house … You’re asking for 18 feet to the neighbor’s property line….” Fiano said he had erected a privacy fence, believing that would give his neighbors relief. They didn’t see it that way.

Abutter Ann Guinen was the first to speak when Cutler opened the floor to the public.

Guinen read from a prepared speech beginning with the fact that the applicant had incorrectly noted the size of the garage, and on the basis of that alone, the application should not be granted. Fiano acknowledged that was an error. But as Guinen continued, it became apparent there were other issues she wanted to air.

She said that having Fiano’s garage so close to her property line would reduce her property’s value. Guinen also took exception to Fiano parking large tow trucks and other heavy equipment along Neck Road, especially during the winter months. Fiano countered that it was not against the law and that all the vehicles were properly registered.

Guinen continued in this vein complaining about the possibility that Fiano was running a business out of his home. That’s when Cutler spoke up saying, “This is not relevant.” He told her that the board could only hear comments germane to the variance application. He asked, “Have you complained about this to anyone?” She said that she had, as several other abutters added to that rising chorus. Cutler cut them off. He said everyone would have a turn to speak but only on the matter of the variance.

One after the other, direct abutters and those living within 300 feet of the applicant told the board members that if Fiano’s variance was granted, their quality of life and property values would decrease.

“This may cause a precedent,” resident John Duryea said. “What will stop someone from trying this in the future?”

Others said they had come before the ZBA in previous years seeking variances and none were granted. Cutler said that wasn’t relevant to this hearing and that precedents are not set simply because an applicant is granted a variance.

ZBA member Richard Spirlet, who had recused himself and now stood as one of the many abutters in the audience said, “I don’t believe the three items have been met.”

And still, more residents added to the outcry wanting to be heard. Several told the board that they have had to live by the rules – the same rules Fiano was asking to be modified for his benefit. Cutler said, “We have to focus on what we have before us tonight.”

In the end, the majority of the board members agreed with the abutters – the qualifying items had been tested. Fiano’s testimony had not provided sufficient justification to approve a variance. Cutlet said, “There will be a determinant to the public.” The application was denied.

Before leaving the meeting, Fiano asked the board if he moved the location of the buildings so that the 40-foot set backs were not breached would they have allowed his application. Cutler said yes, if it met other requirements.

A much more amicable hearing took place earlier in the evening when Pam and Oren Robinson, owners of It’s All About The Animals, Inc., received a modification to their special permit that allows them to operate an animal rescue and adoption service at 103 Marion Road.

The only push back they received was when Gilmore questioned if the special permit stayed with the property or ended if the current property owners sold to another party.

Cutler said that the special permit was for the property and that new owners would have the rights allowed therein.

This troubled Gilmore as he said, “The current owners are very dedicated, but what if someone else who isn’t so careful came in? We’d have a problem.”

Cutler said, “We wouldn’t have a problem; the Board of Health or someone else would.”

The current special permit allows the Robinsons to have up to 50 cats on the premises and three occasional dogs.

Pam Robinson said that over the past year her service has adopted out 400 cats, provided low-income families with spay and neuter services, has provided education to the Girl Scouts and local schools, as well as produced educational materials. She said, “We welcome anyone who wants to come and see our operation.”

The modification will allow for the expansion of one outbuilding to accommodate a washing machine and dryer used for laundering bedding for the animals.

The next meeting of the Rochester Zoning Board of Appeals will be held on March 24 at 7:00 pm in the Rochester Town Hall meeting room if there are hearings.

By Marilou Newell