The Marion Zoning Board of Appeals on September 10 granted Tabor Academy one last continuance pertaining to the unpermitted ball field and its setback-encroaching backstop and lighting which is still in use without a permit nearly three years after the very first public hearing.
ZBA member Betsy Dunn took matters into her own hands when she sent an email to Town Counsel Jon Whitten asking how the board could proceed should it choose to deny any further continuances for the contentious matter that has seen an ever-changing ZBA during the 10 times since December 2012 the board has granted a continuance.
In her letter to Whitten, Dunn stated, “I think this is ridiculous to continue this any longer. If I cannot move to deny a further continuance, what can I do?”
Whitten responded to Dunn and told her that denying the continuance would put the board in the position of having to render a decision in the primary case of the backstop and the lighting. Whitten said in the email that he had always been confident that the backstop had no protection under the Dover Amendment that exempts educational institutions from certain local zoning regulations if the project is considered an educational use, and he wrote that he was about “50-50” in confidence in regard to the lighting issue, stating, “… a judge could conclude that the lighting is necessarily part of an educational use.”
“I read Tabor’s continued request for a continuance as their attorney’s acknowledgement that the Town will prevail,” wrote Whitten. “Having said that, one never knows what a judge will decide, even with the law crystal clear.”
Whitten suggested the board “do nothing” as its best course of action at this time, and continue to grant continuances so any final decision by the ZBA will not end up in litigation. He wrote, “Or, as I proposed to Tabor’s counsel three years ago, try and meet with the various town boards to see if a compromise could be worked out…”
“They know that the backstop is not legal,” said Dunn. “And we have been willing to work with the lights. They are the ones who are not willing to work.”
Dunn said Tabor Academy Head of School John Quirk might have cooperated a bit with the board in the past over the backstop, but Tabor’s counsel Mark Bobrowski specifically has not been cooperative, Dunn said. “Because you know Mark,” said Dunn. “Mark doesn’t want to lose. It’s not good for him.”
Other ZBA members shared Dunn’s frustration, but were concerned as to how to proceed from there.
“I don’t disagree with you,” said Chairman Eric Pierce. ”I just want to do it the right way.”
The board arrives for a public hearing for Tabor, no one from Tabor shows up, and the board continues the hearing for a later date, as Dunn explained it. “And we sit here like monkeys and say ‘aye.’ This time, I thought it’s time. Let’s do something.”
“If they’re not working in good faith … then the courts could tell us what to say in the decision,” said Pierce. “If we allow this variance, we’re creating a nonconformity which we are specifically told not to do.” Pierce pointed out that if the board does not take action on the matter, in the end, Tabor would win their request for a special permit by default. “But if a judge says ‘thou shalt not do it’,” said Pierce, “then it would be taken off our plate.”
As much as she wanted to, Dunn acknowledged that evening it would be unwise to make a motion to deny the continuance since it would force the board to close the public hearing and actually have to take action on the matter.
“They (Tabor Academy) do whatever without building permits,” said Dunn. “And that’s not right…. And I have ties to that school. I’ve paid them a lot of money. But what’s right is right, and what’s fair is fair.” If Tabor has enough money to build new dorms, Dunn said, then they have enough to fix the backstop.
Pierce said he will be prepared on how to act next time, and limited the next continuance for Tabor to a fortnight. “And that’s it,” said Pierce. “Period.”
“Their lack of presence at all these meetings speaks volumes,” said ZBA newcomer Kate Mahoney.
The board voted to continue the hearing until September 24.
Also during the September 10 meeting, the board accepted the letter of withdrawal for a parking variance for Sippican Preservation, LLC for the 16 Cottage Street condominium project.
The next meeting of the Marion Zoning Board of Appeals is scheduled for September 24 at 7:30 pm at the Marion Town House.
By Jean Perry
