With its first ZBA-approved plan to demolish and reconstruct a home at 7 Cedar Road in court, Cedar Realty Trust (C/O Greta Fox) submitted a new special permit application to construct an addition and renovate the existing structure instead. After a lengthy hearing on the application, the Mattapoisett ZBA on March 15 okayed the second special permit request.

The hearing almost did not take place, however, as lawyers from both sides had conflicting views whether the applicant could hold two special permits for different projects on the same property.

Attorney Marc Deshaies, representing the applicant, explained that repetitive petitions are barred from coming before the board for two years only when the first application was denied. Cedar Realty Trust received approval on January 19 from the ZBA to demolish and reconstruct a home set back further on the property, thus he said the case could be heard.

The legal counsel of the contesting abutters disagreed.

“They have to wait until the first application is adjudicated with finality. If you go forward, it sets a bad precedent,” said attorney Jim Goodhue. “You can’t have it both ways.”

Deshaies argued otherwise.

“There is no prohibition that we can’t come back and file an application for a different alteration on the property… If this board grants the special permit before the board, they have right to make an appeal of that decision, and consolidate it in the Land Court,” he said.

After taking a ten-minute break to contact Building Inspector Andrew Bobola by phone for his opinion, the board ended up taking up the case.

Engineer David Davignon of Schneider and Associates explained the project, which demolishes 40 percent of the existing home and rebuilds it so it does not encroach on a neighbor’s property. The remaining 60 percent of the home would be significantly renovated with a new foundation, and connected to the new expansion.

The final home would occupy 25 percent of property, a lot coverage that is similar to other residences in the neighborhood, Davignon said.

“They are either keeping the setbacks as they are or improving nonconformities,” he added.

More than 12 neighbors came out in support of the petition, including Dr. Mark Desnoyers. “We feel it is very much in harmony with the neighborhood. It’s a modest upgrade, in our view, and we don’t think it is going to be detrimental to the neighborhood,” Desnoyers said. Other abutters testified in favor of the project.

Atty. Goodhue, however, said the project amounts to a reconstruction, not an extension, which triggers a Variance.

“The task is not to succumb to a popularity contest. It is a complete reconstruction, not an alteration… Essentially this will be two structures… you are going to have two homes on one non-conforming lot,“ Goodhue argued.

But Davignon challenged that idea. “The [contesting abutters] have not studied the plans, and is making contentions without doing their homework. It’s an extension, an addition on a nonconforming lot,” he said.

In the end, the board sided with Cedar Realty Trust and approved the special permit.

In a second case that also drew some opposition, the ZBA approved a special permit for Diane and Alan D’Orlando to add a second floor to a dwelling at 52 Pico Beach Road that does not meet setbacks.

The application was a repetitive petition for a project that had been denied by the Planning Board in the past. The applicant had reduced the home, altered the roofline and removed bump outs to appease neighbors who felt the project was too large for the neighborhood, according to Davignon, who was the engineer on this case as well. The proposed house, which would add an additional story to the home, was originally proposed to have five bedrooms but the applicant had reduced it to three. According to Davignon, the footprint would not change, just the height.

Vicky Keiser was one neighbor who spoke out against the project. She said D’Orlando had not kept promises on the existing house he had built, and failed to construct a boardwalk to the beach. She said he rents the house, which draws a lot of cars to the small area.

D’Orlando indicated that he would not rent it again, and plans to turn it into a primary residence.

Direct abutter Heather Hobler voiced concerns about the project and the trustworthiness of the applicant. She said the applicant’s lawyer had sent her plans of the project, with an offer of money “to look the other way.”

Hobler said original plans called for a four-bedroom house with an additional storage room – but the applicant had really been trying to get a five bedroom and had to adjust the plans when confronted. “They’ve not been upfront about all of this, who knows what’ll happen.”

She also said the plans presented do not match what she was given, and that the home would go outside its current footprint. She said a staircase has been added that descends to the beach, which is clearly outside the footprint.

She noted that the home is on the smallest lot in the neighborhood, and it is surrounded by gravel while neighbors keep their areas green. She said construction on the previous house significantly expanded the roadway and nothing was done to remediate that.

“There is nothing to keep back erosion. There is very little greenery and protection for the coastal dune and barrier beach,” she said. “We need to keep [the house] within reasonable size so we are not putting too much stress on the whole area.”

While the board acknowledged the environmental concerns, Chairman Jeffrey Chase said those issues are under the jurisdiction of the Conservation Commission.

Hobler also said the applicant had said he would live in the house, and instead rented it out.

“I was part of the team who permitted the other house, and many of the comments made are absolutely false. The house was not designed to be lived in by the client,” Attorney Shepard Johnson said.

“I will suggest we worked hard to appease the abutters… Obviously we can’t make everyone happy. It’s an addition of 750 square feet when you take out the stairway,” said Davignon, who was the engineer on this project.

In the end, the board unanimously approved the request – with a condition that Andy Bobola, building inspector, ensures that the home does not go beyond its footprint and conforms to every aspect of the plan that is within the application.

In other hearings that evening, the board:

• Approved a special permit application for Eloise Ricciardelli to construct a new home at Crestfield Street, on a vacant parcel. The home would be set back 52 feet from the property line.

• Approved a special permit for Kenneth and Jann Williams to demolish and rebuild an existing dwelling that will not meet the required setbacks on 26 Ocean Drive.

• Approved a special permit for applicants William and Mary Beth Mansfield to construct a second story on an existing single-story structure at 7 Channel Street.

• Approved a special permit for Quentin and Linda Kampt to allow construction of a 700 sq. ft. family-related apartment onto their home at 6 High-on-a Hill Road.

By Laura Fedak Pedulli

The Old Rochester Regional School Committee settled an accounting mistake at its March 14 meeting, which has implications both large and small for the town budgets of Mattapoisett, Rochester and Marion.

Last year, the town of Rochester’s Treasurer discovered that the Plymouth County Retirement Association had been overcharging Rochester for pensions for several ORR district staff – which should have been shared more evenly across the towns. Instead of charging the towns directly, the retirement payments should have been part of the PCRA assessment to ORR, which in turn would be assessed to each town based on the enrollment percentage.

“I’m not sure if everyone realized the magnitude of the problem,” Town Administrator Richard LaCamera said to the school committee, noting that Rochester paid out $200,469 in pension benefits over the past decade when it should have paid only $105,223 through the district.

While Mattapoisett is only marginally affected by the mistake and would owe about $9,070 to make up their portion of the costs – Marion was undercharged to the tune of $86,174.

District Business Administrator Katie Isernio said that several meetings have taken place with PCPA staff, Tri-Town and school officials to rectify the problem. With numbers in hand, Isernio laid out three scenarios for the committee to choose: Marion and Mattapoisett would pay back their portion in one, two or three years.

“The town of Marion said it would like it over two years,” Isernio informed the committee, as no Marion town officials were present at the meeting. That way their payments would be staggered over multiple years and have less of an immediate drastic impact.

LaCamera made clear at the meeting that he wants Marion and Mattapoisett to pay their share – about $95,245 in total – during the next fiscal year to account for the loss.

“Since we’ve been discussing this during two budget periods, we want to get this over with,” he said. “From Marion’s side, they are in a lot better financial shape since we have paid the bulk of the money over the past nine years. We need the money and we need it resolved.”

In the end, the committee voted 5-2 on the side of LaCamera and rejected Superintendent Doug White’s suggestion for them to authorize ORR to broker an agreement.

“It does seem we have taken the brunt of the hit,” Robin Rounseville said, a Rochester resident and school committee member. Thomas Shire was the sole Marion resident in attendance at the meeting, and he voted against the measure. Marion School Committee member Joseph Scott was absent.

As a result of the vote, Rochester will have $95,245 more in its general FY2013 town budget. Marion will have $86,174 less in its town budget for next year due to the vote.

In other major business, the school committee officially approved ORR’s $16,639,305 budget for next fiscal year. Seven paraprofessional staff positions are eliminated in the budget. Savings from a modified bus contract and a more favorable utilities agreement provided additional revenue that helped prevent deeper cuts.

Also at the meeting, ORR High School Principal Michael Devoll received approval to overhaul two student handbook policies. One policy would limit the number of directed study blocks (free periods for studying) for one per semester. The other policy would make it more difficult for a student to drop a class. Students will only be able to withdraw from a class if they need to drop a level, and this can only happen following a joint meeting with their guidance counselor, teacher, parent and principal.

“It’s been too easy for kids to take the easy way out,” Devoll said. Also, he said the class sizes have become disproportionate as a result. “It wreaks havoc on the scheduling… it is detrimental to the equity in the building,” he said.

In other business:

• The committee agreed that a change to its policy on dogs, cats and other pets should be considered by the Joint School Committee – following a request from a resident. Currently no one can walk their pets on district schools’ properties without authorization from the principal or superintendent.

• The committee authorized Isernio to purchase a new NutriKids computer program to store and process Free and Reduced Lunch Forms.

By Laura Fedak Pedulli

The construction of a new bituminous concrete facility in northeastern Rochester has been delayed indefinitely due to a protracted legal battle.

The project was proposed for construction on a 5-acre site off King’s Highway within Rochester’s industrially zoned section of town – and would process 2,200 tons of bituminous concrete per day. Its controversy in part stems from its proximity to two residences.

On March 5, Benjamin Tymann of law firm Mintz Levin – who is representing residential and commercial abutters opposed to the plant – filed a 39-page appeal to Massachusetts Land Court contesting the Zoning Board of Appeal’s February 9 approval of Edgewood Development’s proposed facility.

The ZBA’s decision had upheld the Planning Board’s May 24, 2011 affirmative decision on the plant, which was later appealed by Mintz Levin. The group filing the latest appeal includes Todesca Realty Trust (owner of Rochester Bituminous), Willard Realty Trust and residents Carol and Michael D’Acci,

Brandon and Krystle Empey, Emma Galvin, Jeffrey Mason, and Sean Somers.

“As demonstrated by a mountain of expert evidence on the issues of property valuation and noise, traffic, lighting and visual impacts – presented first to the Planning Board then at the Board of Appeals – the Edgewood plant will have dramatic and damaging effects on each of these four properties and their residents,” the appeal states.

According to Mintz Levin, the plant would be less than 25 yards from the Mason home (recently acquired by William Realty Trust) and 30 yards from longtime residents, the D’Accis.

“If the Edgewood plant is built, it will be a closer distance to its residential abutters than any other known asphalt plan in Massachusetts,” said the appeal.

The opponents also argue that construction of the plant would violate a town bylaw, which states that “no such use is permitted which would be detrimental or offensive or tend to reduce property values in the same of adjoining district.” According to Mintz Levin, construction of the plant would reduce nearby property values “by between 17 percent to 28 percent, or more.”

Timothy Higgins of Edgewood Development said he was not surprised by the appeal.

“This is the third [bituminous plant construction] that I’ve been involved in… It’s not crazy unusual,” he said.

Higgins said he is “confident” that courts will rule in Edgewood’s favor.

“We feel we will prevail, we feel the facts in our favor,” he said. “The fact is that there an existing [bituminous] facility with an identical use in the area governed by the same rules works in our favor.”

For now, it remains uncertain how long the legal wrangling will go on.

“It could be one year, or it could be three to four,” he said. “It’s very difficult to tell how long the court system will take.”

By Laura Fedak Pedulli

The Rochester Planning Board briefly met on Tuesday night at the Town Hall.  The Board heard from Laurell J. Farinon, the town Conservation Agent regarding the draft-zoning article that was submitted to the Board of Selectmen.  She explained that she received notification from FEMA informing that the reevaluation of new flood plain maps had been finalized and that the new maps will become effective July 17, 2012.  The new maps will include far more information than the previous maps, which were printed in the 1980s.  “These are really cumbersome, as you can see. We don’t have many known points of reference,” she said.

The Board then discussed the procedure of the annual review of the Town Planner, a position currently held by John Charbonneau.  They voted for the Town Planner to be reviewed annually, on the first Planning Board meeting of January in executive session.  The review would be done primarily by the chair, vice-chair, and town administrator, but with input from all Planning Board members.

The next meeting of the Rochester Planning Board will be Tuesday, March 27, 2012 at 7:00 pm.

By Eric Tripoli