The evening of November 20 started out tame enough, but once the continuance of issues resulting from a conflict between James Henderson and several abutters resumed, the hearing seemed as difficult to untangle as balled-up fishing lines.

During a prior Mattapoisett Zoning Board of Appeals hearing, James Henderson, 16 Bay View, asserted he had a verbal contract with Scott Snow – the developer of three adjacent lots – that would have protected him from harm when Snow and his partners undertook construction.

But that was years ago.

Since that time, Henderson and Snow have been at loggerheads on several matters, resulting in Henderson coming before the ZBA to air grievances and to try to get the Town to act on his behalf.

As far back as 2007, Snow and Henderson met to discuss the work Snow proposed to do on the Grandview lots – work that would include building a sea wall and bringing in fill to elevate the lots to meet FEMA requirements for residential housing in a flood zone. A building permit was issued to Snow, and Henderson did not object.

Henderson asserted, and Snow confirmed, that specific drainage work, which would have assured that the construction nearby would not have a negative impact on his parcel, was to have been completed on the Henderson property. That work was never completed.

Snow says it is because Henderson would not allow his team on the premises to do the necessary construction. Henderson says it is because Snow breached verbal agreements by not doing the work as planned and permitted by the Town.

Henderson contended that he never received notification from the Town of Snow’s permit to build a home and, that being the case, he was within his right to ask the ZBA to hear his after-the-fact concerns.

Attorney Stanford Matathia, representing Henderson, Attorney Shepard Johnson, representing Snow, and Mattapoisett’s Town Counsel Jonathan Silverstein were all in attendance to provide clarity on the issues as viewed by their respective clients.

Matathia provided evidence centered around stormwater runoff onto the Henderson property and contaminated fill transported to the Grandview Avenue lots by Snow. In addition, he noted that the building inspector had not pursued a zoning enforcement against Snow because the home Snow built, asserted Henderson, was larger than the home that was permitted.

Furthermore, Matathia said a variance, rather than a special permit, for the fill and building of a sea wall should have been necessary and there was a lack of proper notification to Henderson.

Matathia also attempted to show that a merger of lots had been granted by the ZBA in order for the residence to meet certain zoning requirements at the time the permit was applied for, and therefore, the building inspector had incorrectly identified one of the three lots as buildable.

Johnson gave evidence that Snow made numerous attempts over the years to try and satisfy Henderson to complete promised land contouring work on his property – all to no avail. He also said that the house constructed not only complied with the permit, but that Town departments had signed off on the structure.

As for the contaminated fill, Johnson said there was a question as to whether the soils were of poor quality when transported to the site, or if demolished structures at the site had fouled the surrounding area.

Johnson also said the Town had never approached his client about subsequent remediation requiring the removal of asbestos from ditches dug by the Water and Sewer Department during the installation of sewer systems. He also gave evidence that the lots were individually owned and had not been merged.

ZBA Chairman Susan Akin, along with ZBA members Norman Lyonnais, Ken Pacheco and Eugene DesLanders, waded through permits, plans, photographic evidence, and nearly two and a half hours of verbal testimony from all three lawyers present.

Several times throughout the proceedings, the ZBA members seemed overwhelmed by the sheer volume of information that was being presented while pondering aloud their jurisdictional duties.

“We do buildings,” stated Akin at one point. “That’s what we do.” She said this in response to facing the volume of details of stormwater runoff, wave action, and poor drainage problems.

Lyonnaise, who was visibly frustrated, stated, “After [an application] leaves us, we go home to our families!”

But Matathia pointed out to the board members that their role was not only to grant special permits and variances, but to act in the role of the appellate body to enforce the permits and variances they grant. Akin turned to Silverstein for guidance.

Silverstein advised the ZBA to take each matter being raised one by one, and make a decision on each, because it was clear to him that Henderson and Snow, et al. would be heading to court. If that should come to pass, Silverstein said, the ZBA should have decisions that would be reflected in documents presented by each side to a judge.

And so they did.

To the issue of Henderson’s after-the-fact appeal, the ZBA voted that the time had passed and therefore he could not pursue a cease-and-desist order against Snow through them; his appeal was untimely, they said.

To the matter of a special permit versus a variance, the board agreed that a variance was not necessary because fill and the construction of a sea wall were on the plans that had been approved, negating the need for the applicant to request a variance.

The ZBA members were in agreement with the building inspector that a zoning enforcement was not appropriate and that the house constructed had met the plans submitted.

The board also believed that no merger of lots had been requested or granted at the time the building permit was granted.

Earlier in the evening, the ZBA quickly heard and approved: Special Permit to Ed Calder, 406 Church Street, for the construction of an addition; Special Permit to James McQuade, 0 Harbor Road, for the construction of a single-family dwelling; and Special Permit to Peter Noyer, 94 Marion Road, for the construction of an apartment over an existing garage.

The next meeting of the Mattapoisett Zoning Board of Appeals is planned for December 18 at 6:00 pm.

By Marilou Newell

As Rochester Zoning Board of Appeals Chairman Richard Cutler and fellow board members Kirby Gilmore and David Arancio waited for the other members to arrive for the November 13 meeting, they reflected upon the loss of Gilmore’s brother, Benjamin, who passed away on October 31.

They placed a bouquet of flowers at the meeting table where for many years on various boards and committees he had served the Town of Rochester, most recently on the ZBA.

Gilmore spoke of Benjamin’s generosity throughout his life with not only his time and possessions, but also his total commitment to helping others and his love of family and friends. He was remembered as an outstanding public servant and now a much missed loving brother.

Cutler was able to call the meeting to order with the arrival of Randal Cabral and Davis Sullivan. Benjamin Gilmore’s vacant seat on the ZBA was filled with the advancement of David Arancio from associate member to member.

Coming before the ZBA to hear the final legal decision on his application was Brian Cook of Sprint Reality for a mixed-use property located at the former General Store site on Route 105.

Cutler read from a letter drafted by Town Counsel Blair Bailey, which states that Cook may construct three businesses and two residences in a single structure that may not exceed the previous structure’s square footage or set-backs.

The applicant is allowed to build on the location, opening businesses in keeping with the character of the neighborhood and of a similar nature to those allowed in the past. Zoning bylaws 9A3 and 9A5 were cited.

Cutler impressed upon Cook the importance of filing the decision with the Registry of Deeds, and that he also has 20 days to appeal the decision. Cook thanked the board and was pleased with the documentation.

Cutler told the board he is scheduled to meet with Planning Board Chairman Arnold Johnson and a member of the board of selectmen to discuss how to move forward with bylaw amendments on the heels of issues that had arisen at the Fall Special Town Meeting.

He said that the various boards are not working from the same set of bylaws and that bylaw amendments from 2012 and 2013 had yet to be included in a thoroughly updated document. Cabral asked who was responsible for updating the zoning bylaws. Cutler responded the town clerk.

The next meeting of the Rochester Zoning Board of Appeals is scheduled for December 11 at 7:00 pm in the Town Hall conference room.

By Marilou Newell

The Marion Planning Board discussed a zoning bylaw amendment proposed in a citizen petition aimed at limiting the size of commercial and retail structures and deemed it to be “too thin,” as Chairman Stephen Kokkins put it on November 17. Board member Norman Hills, though, called it “unclear, confusing,” and in conflict with other current zoning bylaws.

Board Member Rico Ferrari led the discussion on a citizen petition bylaw amendment that would “encourage responsible commercial and retail development … along Route 6,” as stated in the petition. Former Planning Board member, and Master Plan Subcommittee member, Ted North was also present and in support of forming a bylaw amendment.

A bylaw amendment such as this would essentially prevent the impending CVS project from moving forward in Marion.

The citizen petition, already submitted to the Board of Selectmen and certified by the registrar of voters, aims to limit new commercial and retail business structures to a maximum of 5,000 square feet, or a 10 percent lot coverage, whichever is larger, but specifies the exemption of limited industrial, marine business, and campus office park districts.

Hills acknowledged a need for a zoning bylaw amendment. “But I don’t think this is going to get us there,” he stated.

Hills said the language does not specify to which zones the bylaw would be applicable; instead, it states where it is ‘not’ applicable.

Ferrari pointed out that this bylaw would not have allowed Saltworks Marine to develop the plan it had already brought before the Planning Board. “And they’re a valuable business to the community,” said Ferrari.

Hills said this would also conflict with other existing bylaws and does not place any restrictions on parcels an acre or less in size.

“We don’t want to build more conflicts than we have,” said Hills, adding that it should not be brought to Town Meeting floor as currently written.

Kokkins suggested looking to other towns’ bylaws that have been approved by the attorney general.

Planning Board member Eileen Marum, who had drafted her own version of a zoning bylaw amendment to restrict commercial and retail building size, said she also wants to “maintain a balance … so Marion can maintain its character,” but she had already researched other towns’ bylaws for her drafted bylaw.

“I have done the research,” said Marum, “and everything that I have written down has already been approved by the attorney general.” Marum later commented that it looks like she would have to collect her own signatures for her own citizen petition for a Town Meeting vote. Hills commented that it would be best to come up with one bylaw.

The Master Plan Subcommittee has seemingly adopted the role of coming up with a zoning bylaw amendment and appears to favor building upon the citizen petition in the subcommittee’s possession.

Also during the meeting, Marum suggested more transparency in the Master Plan development process, urging the board to reach out to Marion residents and engage them more in the process. Kokkins concurred with Marum, but no decision was made regarding any action to move forward with Marum’s suggestion. Hills mentioned a tentative workshop in the future, much like the September 27 Master Plan workshop led by SRPEDD.

In other matters, “Team CVS” wrote a letter to the Planning Board saying that it has further considered the board’s recommendations and concerns and has altered its plan. Because of the overwhelming turnout of citizens opposed to the project at a previous meeting held at the Marion Music Hall, the board suggested again holding the meeting at the venue.

The next meeting of the Marion Planning Board is scheduled for December 1 at 7:00 pm at the Marion Music Hall, with Team CVS featured on the agenda. (Editors’ Note: The Planning Board has changed the date of the meeting with CVS to December 15)

By Jean Perry