The January 19 meeting of the Marion Planning Board was very brief, with only one filing before the members for their consideration. But with time available, the board members aired their positive feelings about new businesses in the community, and at least one member the need for evenhanded deliberations.

            Vice-Chairman Andrew Daniel said he felt good about being a member of the Planning Board, saying, “We’ve worked on projects that benefit the community.… They’ve made an impact on the town.” He commented that he and his wife had recently enjoyed time together in the community frequenting new businesses that he described as “phenomenal.”

            Member Chris Collings, however, had a bit of a different take on the work handled by the Planning Board. He shared that a resident had questioned him about what was perceived as an imbalance in site plan reviews, saying, “We should give thought to how we approach these projects.” The resident had questioned why one filing seemed to be taken to task, while another seemingly received a free pass. “We don’t always approach the projects the same way.”

            Daniel responded that the two projects being noted, one that included steel buildings and the other a boatyard, were two entirely different matters. “The boatyard doesn’t have a project. When they do, we’ll hold it to the same standard,” he said.

            Collings added that when businesses are doing their research, they look for “evenhandedness” as they anticipate the cost of doing business with a town.

            Member Norm Hills said, “Every project is governed by the lot they are on.” Member Eileen Marum added, “You have to think about where those lots are located.”

            “Whether it’s a candy shop or Tabor [Academy], they are handled the same,” Daniel stated.

            As for business on the agenda, the site plan review of the proposed Tabor Academy Campus Center, 85 Spring Street, was continued until Monday, February 1, at 7:00 pm, pending the peer-review report from SITEC. Daniel said that the report had just been received earlier in the day, which prevented the board from having adequate time to study the findings.

            The board members approved an Approval Not Required (ANR) for the conveyance of 5,000 square feet of open land from the adjacent parcel to the lot owned by David and Susan Titus at 36 South Street. Bob Rogers of G.A.F. Engineering said that it was merely a conveyance that would give the Titus residence “a bit of backyard.”

            The next meeting of the Marion Planning Board is scheduled for February 1 at 7:00 pm.

Marion Planning Board

By Marilou Newell

            History was key in the Marion Zoning Board of Appeals’ vote to grant a Special Permit for the legal division of 61 and 63 Oakdale Avenue, where separate homes have existed for 70 years.

            On January 14, Attorney Robert L. Perry once again appeared on behalf of the estate of Joan E. Botelho, seeking to establish a hardship case whereby the ZBA could approve a plan to legally divide the lot so that the families occupying the property could go on with their lives. The estate wishes to sell, pay owed real estate taxes to the Town, and divide the funds among Botelho’s heirs. The neighboring family supports the action, according to Perry.

            Nonetheless, the matter raised the complicated question of hardship, and ZBA Chairman Christina Frangos asked Perry to explain the hardship concept.

            “We have a very extended family at this point…. The hardship is now you’ve got 20 people. They can’t all seem to fit in the two houses together, so we’ve got to get rid of one of these houses,” said Perry, noting that at least 10 years ago, a lawyer took the matter to Land Court. While the Land Court case was in process, Botelho passed away. The Town of Marion, said Perry, is owed approximately $40,000 in real estate taxes. “They’re going to lose that property if we aren’t able to do this. What we’re going to do is sell 63, pay the Town, and distribute the remaining funds among the heirs of Joan Botelho.”

            Mrs. Allard, the resident at 61 Oakdale Avenue, has been paying half of the property taxes on time. “She’s all paid up, just got the new tax bill and called me and said she’s going to go pay her half immediately. But she’s got a real hardship, too, because we’re two lots,” said Perry. “If the Town were to follow on a tax foreclosure, she loses, despite the fact the poor woman’s been paying the Town every single year. So, there’s certainly hardship here.”

            Frangos asked if there is a formal agreement between those residing at 61 and 63 Oakdale Avenue to pay taxes. Perry answered no, noting that Mrs. Allard is the oldest living member of the Sears family, the original owners.

            Frangos also asked if consideration had been given to making the existing garage part of the 63 Oakdale Avenue property in an effort to balance the size of the lots better. Perry answered no because the garage is not part of the will or the original agreement. Perry said Mr. Sears didn’t realize he built the garage a little bit over the lot line.

            “I really hate to do that. I don’t mind equalizing area, even though I’m not thrilled about it. But Mrs. Allard has all her belongings in her existing garage, she has anticipated from the time her father passed on becoming owner of the existing garage.” Likewise, Perry said, the Botelho family understood that. Further explaining new substandard setbacks that would result, Perry asked the ZBA not to order a change on which lot gets the garage.

            Administrative Assistant Anne Marie Tobia reported that the combined lot’s total appraised market value is just over $500,000.

            Reporting on extensive discussion with Town Counsel Barbara Huggins-Carbone, Building Commissioner Scott Shippey said Perry would need ZBA approval to obtain an Approval Not Require (ANR) from the Planning Board and work with the Department of Public Works on frontage and roadway access. “[Huggins-Carbone] said you’re not setting t if you do approve it. The bylaws are set forth to approve something like this,” said Shippey.

            Perry said he had been in touch multiple times with the DPW prior to filing with the ZBA but has not filed a plan with the DPW because he did not want to spend the family’s money before ZBA approval. The Town owns the road to the end of Lot B (63 Oakdale).

            The hardship issue arose again when ZBA member Will Tifft pointed out that the Town, at one time, envisioned one lot at the location, not two. Moreover, back taxes are self-inflicted problems, he suggested. “It’s not a problem that we should be expected to solve for them. Just putting this argument out there,” he said.

            Shippey reiterated that a bylaw had been adopted specifically for this reason. “If you had two houses on a single lot, they can be separated, and it is allowed. And that’s why this bylaw is in there, and Attorney Perry is seeking that bylaw. They’re not setting a precedent or anything. I spoke to Barbara on this at great length. It’s not setting a precedent because the bylaw’s in place for this actual purpose,” said Shippey.

            ZBA member Edward Hoffer agreed with Shippey, saying, “There is clearly a hardship that we’ve been asked to address. The abutters have no objection, and I see absolutely no reason why we shouldn’t grant this. I don’t think this is going to change the character of Marion.”

            But Frangos saw merit in Tifft’s perspective. 

            “I think the argument falls a little short. If this were a case where it were a lot with one house, and the applicant wanted to subdivide the lot to sell (part of it) to pay back taxes, I would say absolutely not,” said Frangos, who went on to acknowledge that 61 and 63 Oakdale Avenue have historically been treated as separate homes. “In theory, I think the whole lot with both houses could be sold, but I also think some of the history here allows us to take advantage of what that bylaw has suggested.”

            ZBA member Jim Ryba asked Shippey if the ZBA could make its approval conditional or if it should cleanly defer to the Planning Board where it concerns the road. Referring to his conversation with Huggins-Carbone, Shippey said the matter should stay in the Planning Board’s realm. “Because they’re going to approve the ANR, they’re going to approve the frontage,” said Shippey. “They’re going to approve the lot size. You’re just giving them permission to do it with that special permit.” Shippey continued, “But they’ll put in the condition that it has to get access to both lots, separate access … Attorney Perry can work with the DPW and figure out how they’re going to get that access.”

            Perry once again addressed the board: “There’s an extreme hardship here, and the hardship wasn’t created by the people; it was created by the Town by combining these two lots without a legal right to combine them,” he said.

            The board asked Huggins-Carboni to draft the decision.

            The next meeting of the Marion ZBA is scheduled for January 28. The board expects to continue the Heron Cove case again to a later date.

Marion Zoning Board of Appeals

By Mick Colageo