Ken Steen’s request earlier this year that the Marion Zoning Board of Appeals officially consider his plan to install meters for all 60 units at Marion Village Estates to be unsubstantial was met with advice from Marion Town Counsel Jon Witten that the ZBA consider the additions a substantial change, to which attorney Mark Bobrowski appealed to the state Housing Appeals Committee.

            One of the waivers recently approved by the ZBA for Steen’s Heron Cove Estates project was that he does not have to tier-meter water at the new development.

            ZBA Chairperson Cynthia Callow informed the ZBA that Bobrowski has since filed a second appeal with the state HAC office, stating that the ZBA’s decision to consider Marion Village Estates a substantial change should be nullified because the ZBA later waived the requirement that Steen tier-meter water at Heron Cove.

            Callow participated with Interim Town Administrator Judy Mooney (and Town Counsel Jon Witten via remote connection) during the Select Board’s executive session on December 20th, where it was decided Witten would file an opposing motion.

            “His argument was it’s apples and oranges: Heron Cove was a ‘friendly 40B,’ Marion Village Estates was not,” said Callow, noting that while Heron Cove was approved by the Select Board, Marion Village Estates was never approved by any Marion board.

            According to Callow, the ZBA approved Heron Cove, but the state leveraged all the waivers necessary for Steen to build Marion Village Estates.

            “Further and foremost,” she stressed to the ZBA members, “Marion Village Estates does not improve the town at all. Heron Cove, with the sewer going in and the enhancements to that pumping station, Heron Cove will add improvement to the town.”

            Callow summarized Witten’s argument that the waivers granted Heron Cove were based on what the project would positively yield to the Town of Marion, while no such argument could be made on behalf of Marion Village Estates, so the decision to grant waivers to Heron Cove should not apply to any decision regarding Marion Village Estates.

            Because Witten’s opposing appeal was filed that morning, Callow said both filings became public record on December 22nd, allowing her to share the information at the public meeting of the ZBA. She cautioned the members not to “reply all” with any comments to her email.

            “That’s all I know so far,” said Callow, who anticipates the matter will go to the state Housing Appeals Committee.

            Callow said the Marion Village Estates disagreement will not jeopardize the Heron Cove project; Steen still has a year to break ground per the agreement with the town.

            Earlier in the meeting, ZBA member Will Tifft brought to members’ attention his concerns regarding the recent first draft produced by the town’s Codification Committee (a subcommittee of the Planning Board).

            “A couple of things popped out to me … first of all it allows things that would go to Town Meeting … superseded by the Planning Board,” said Tifft. “If there is a buildable lot above 2 acres, you can tear down the house and you can put eight houses on that property under this proposed law, as it’s understood by me and some other people.

            “I think what it comes down to is that the goal is to create a village environment to manage the village, and you take into account other housing and all the things that are worth considering, right? … But it’s very vague, and there’s some big loopholes in it. There are things that would ultimately come to us, and I think we should at least have some idea of what we’d consider here and with the idea that we may want to consider representing our opinion.”

            ZBA member Tucker Burr, who is also a member of the Planning Board, called the document a “rough draft” authored by the Codification Committee.

            “It needs a lot of work. I don’t know how far it’s going to get quite frankly. … It’s current form I don’t think would pass in Town Meeting,” he said.

            Tifft clarified that he’s “not waving a gigantic red flag. This is going to be probably one of the biggest, most profound, potential changes to town bylaws and Town Meeting, and I just want to say, ‘Hey, this group who cares about these things, we should do that,'” he said.

            Callow, who attended the Planning Board meeting in which the document was initially rolled out, said it was her understanding that the new bylaws could usurp some of the ZBA’s authority.

            “It was setting it up so they could also basically play with the zoning laws,” said Burr. “So now we’re going to have two boards that you can apply to either one to get what you want and change zoning? It doesn’t make sense.”

            ZBA member Dana Nilson suggested the board submit to the Codification Committee and the Planning Board a request to review any approval voting process.

            “The devil’s in the details,” said ZBA member Dr. Ed Hoffer.

            “I wouldn’t be too worried about it right now,” said Burr. “I think the next step is for it to keep getting spun around by the Planning Board, and eventually they’ll call for a public hearing as a first step of putting it on the (Town Meeting) warrant.”

            Not knowing an exact timeline, Burr suggested the ZBA stay in the loop and, when the Planning Board gets closer to a final draft, to get its opinion out.

            Tifft also told the ZBA that the Select Board created a seven-member, Local Historic District Study Committee for the purpose of a state-outlined process for considering what would be appropriate for the town where it concerns a local historic district in the Marion village area. The committee would presumably make recommendations to the Select Board, those recommendations potentially going to voters at Town Meeting.

            “This is expected to be a two-year process that will involve surveys, open meetings, discussions, education …” said Tifft.

            In a lighter moment, Callow informed Tifft, who was not present at the Select Board meeting, that he was appointed chair of that committee.

            Martha Collins-Gray and Robert Gray, whose continued public hearing for two variances that would have allowed them to construct a detached, nonconforming garage to their 114 Front Street residence, withdrew their application.

            The board received some homework via paper handouts addressing four documents including: the change in voting standards for granting of special permits in certain projects; special permits and variances from the members courses with the Citizens Partnership; and site-plan review.

            The next meeting of the Marion ZBA is scheduled for Thursday, January 12th, at 6:00 pm at the Marion Police Station, also accessible via Zoom.

Marion Zoning Board of Appeals

By Mick Colageo

            An existing, bottom-anchored float section measuring 31 feet by 12.2 feet that was added to an existing, northern float system at the Beverly Yacht Club was voted a Negative Box 2 Determination of Applicability by the Marion Conservation Commission during its December 14 public meeting.

            In a new public hearing, the BYC filed a Request for Determination of Applicability for the recently constructed float section to increase dinghy storage and access to navigate waters at the club’s 99 Water Street location.

            Michael Count from Foth Infrastructure and Environment, LLC explained that the BYC also requested an amendment through the Chapter 91 license to add on the float system.

            The BYC, explained Count, goes back to the late 1800s and early 1900s with its seawall and boat ramp. The pier, originally constructed in 1928, was rebuilt under an Order of Conditions in 2007 and 2008. “That’s basically what we have out there today,” said Count, noting that the 2007 OOC was never “closed out.”

            The mission 15 years later, he said, is to get everything squared away with authorizations.

            Conservation Commission Chairman Jeff Doubrava clarified that the application is an “after the fact filing.” Count acknowledged that to be the case.

            “I believe that bottom-anchored floats are a locally permitted issue, so it’s the harbormaster who permits floats,” said Doubrava. “I don’t think since I’ve been on the commission that we’ve ever done a change in float as a permit, unless it’s gone from bottom-anchor to pile-supported.”

            That would require changing the Chapter 91 (state-issued) license. Count said the Chapter 91 license is being amended to account for the increase in square footage, so he believed the Conservation Commission needed to sign off to establish documentation.

            Chapter 91, the Massachusetts Public Waterfront Act, regulates activities in keeping with its role as the state’s waterways licensing program.

            “The difference here is, because this is a fix to a licensed structure, like all of the other timber floats here, it becomes subject to Chapter 91,” explained commissioner Shaun Walsh. “It’s not a 10A (Marion-issued) permit. If it was just a float that you put out in the harbor and it had a bottom anchor, then it would be a 10A permit, but they are seeking either a modification or a whole new license … to add this, the regulations under Chapter 91 require either a final order of conditions or, in lieu thereof, a negative determination of applicability.”

            Doubrava pointed out that none of the commissioners were members when the pre-existing Order of Conditions was issued.

            Walsh said entities such as yacht clubs typically have a “reconfiguration zone” that limits the scope of potential expansion and also allows for layout changes. An increase in size, he says, requires modification of the license.

            Count said BYC is not seeking to alter its reconfiguration zone but is seeking approval of the added dock space via Chapter 91. Locally, the Conservation Commission adjudicates cases to which the law applies.

            The commissioners considered the addition of a single float within the reconfiguration zone to be a simple request and voted to close the public hearing.

            With Count sitting before the commission, Doubrava moved back to action items on the agenda and addressed the matter of the BYC’s request for a Certificate of Compliance relative to a Notice of Intent application filed to add floats and rebuild the gazebo and pier. The Order of Conditions was amended in 2009 to widen the concrete float with wood framing. In September, Count said, an as-built survey was conducted.

            Commissioner Emil Assing asked Count if any other elements were included in the Order of Conditions. Count did not believe so.

            The commissioners voted to issue a full Certificate of Compliance.

            Earlier in the meeting, the commission voted to issue the Marion Lands Trust LLC an Amended Order of Conditions at 369/371 Wareham Street, allowing modification of a driveway that will connect at a stream-crossing culvert to an approved, common-driveway easement on the property.

            Dave Davignon of Schneider, Davignon & Leone Inc., representing the applicant, explained the change in the driveway path that would result from 261 to 117 linear feet, a 56% percent reduction in space taken by the driveway.

            The amendment would allow the driveway to run east of the buildings in its entirety. The driveway will consist of gravel over its full length. Davignon also told the commission that there was a glitch in abutter notification.

            Noting several previous site visits, Doubrava asked if this amendment had been requested before. Davignon clarified that the proposed scenario is in some aspects the same as the initial proposal. The project has seen multiple iterations.

            Conservation Agent Doug Guey-Lee asked about accommodations for drainage. “We definitely want to do the bend,” said Davignon. “Not sure you can do that project without a bend in the driveway,” said Walsh.

            After Doubrava’s invitation for public comment went unanswered, the continued public hearing was voted closed.

            Per their request, applicants Michael Popitz and Timothy Milbert were granted a continuance of their Notice of Intent filing for the treatment and removal of nonnative, invasive plant species located throughout portions of the site and within wetland resource areas at 64 and 72 Indian Cove Road. The public hearing was continued to January 11 at 7:00 pm.

            The commission discussed its 2023 public-meeting format and schedule. Doubrava told the commissioners he would like to continue meeting remotely until the state’s exemption allowing remote meetings expires.

            Without any scheduled hearings, the commission canceled its December 28 public meeting. The next meeting of the Marion Conservation Commission will be held on Wednesday, January 11, at 7:00 pm via Zoom.

Marion Conservation Commission

By Mick Colageo