For over three hours on July 12, members of the Marion Zoning Board of Appeals struggled to wrap their heads around the 324 Front Street appeal filed by abutter Peter Douglas as he sought to have the building inspector’s zoning enforcement denial overturned.
The meeting started out seeming expedient as the ZBA moved down the list of points to address as explained in a memorandum from Town Counsel Barbara Carboni – yes, Christian Loranger’s multi-family use of the property is lawfully non-conforming; and yes, the condominium development could be built under the bylaw which, at the time, allowed for reconstruction after demolition regardless of whether it was demolished via natural disaster, catastrophe, or by choice.
But when it came to interpreting the language of the bylaw pertaining to area and volume, and whether the razed house ever had a rear basement that would validate Loranger’s use of said basement as usable volume, the discussion was a broken record that kept spinning and skipping over the same scratches forming a bad loop that played on until nearly 11:00 pm.
Some residents, including the appellant himself, Douglas, left well before the meeting was even over as the tune grew tiresome.
One repeated verse of that tune was Section 230-6.1 of the bylaw, which says a reconstructed non-conforming house can only be rebuilt “to an extent only as great in volume or area as the original nonconforming structure unless a larger volume or area or different footprint is authorized by special permit.” The question stemming from Loranger’s argument emphasizing the “or” between “volume” and “area” and whether it means one must abide by both volume andarea or either one of them.
ZBA members were clearly frustrated as they pondered the meaning of “or,” until they decided to skip over it to address the other skip in the record – is the new structure within the same footprint as the original house?
The board referred back to Carboni’s memo on occasion when talks were at their bleakest: “[The board should] use its best judgment and common sense of it,” was the refrain as ZBA member Kate Mahoney’s read the memo. “You are the fact finder. … Common sense and local precedent should guide interpretation.”
Eventually the board was unanimous, agreeing that the footprint was the same, more or less, give and take an external staircase or two.
“I can forego that,” said ZBA member Betsy Dunn.
The minutia was thick and convoluted as ZBA members with opposing viewpoints argued over “or” again, and whether Loranger simply had to keep with either the prior house’s area or volume, or both area and volume.
“It’s one or the other to me,” said ZBA member Michelle Smith via telephone remotely from Hawaii. “Up to the same area or up to the same volume as the original structure.”
But wait, what is volume and area, again? Mahoney was getting confused.
“Volume is cubic; area is footprint,” said ZBA member Tad Wollenhaupt.
The discussion took a dubious turn when the board began questioning which of the several – and very different – volume calculations by different surveyors to go by, fixating more on calculating volume than the actual task at hand: can Loranger stay within the prior structure’s area and go bigger in his volume, or must he stay within the prior house’s volume and area?
Here, at the two-hour point, the board referred again to Carboni’s memo and then reverted back to the discussion of which surveyor calculations to use.
“In my world, we take the medium – or the average,” said ZBA Chairman Marc LeBlanc.
Mahoney had a hard time believing Loranger’s surveyor, purveyor of three different sets of calculations for the original house, each of them larger in scale.
“There was a motive for them to perhaps … increase the numbers,” said Mahoney.
“That’s a strong statement,” LeBlanc said.
“That’s a very strong statement,” Loranger said from the audience, eliciting shushes from the board with the public comment period over.
As talk went on, the viewing public became increasingly visibly frustrated, and even Douglas was cautioned that he would be removed for expressing his own perplexity in a reflexive remark. The board was all on edge as well and paused for some comic relief to laugh amongst themselves about texts LeBlanc said his sister was sending him that moment. The public sat and waited.
Still engrossed with which calculations to believe, Wollenhaupt eventually remarked on how he doesn’t feel there is enough information to determine a bylaw-abiding volume, since the old building is now long gone.
The meeting dragged on, and even Loranger himself during a “weak moment,” as he put it ironically, pondered aloud if tearing down the building would be less painful than that meeting.
Then the board turned to Building Commissioner Scott Shippey and asked him the magic question: when you interpret the bylaw while issuing a permit, does “or” mean eitheror both?
“It’s ‘or,’ said Shippey. “It’s either or. It says it plain as day. The word ‘or’ is clear.”
And then immediately the board went back to which calculations to use. Dunn advocated for the first set of calculations, which Douglas’ and Loranger’s surveyors both said were inaccurate, “Because that’s what it was built to,” said Dunn.
Then, again, it was back to “or,” courtesy of Mahoney this time, asking if the board accepts a literal interpretation of “or” or if they see it as meaning “both.”
The vote was 4-1, Dunn dissenting, but this vote and the prior votes that night were simply used as scaffolding to support a final vote to either uphold or overturn Shippey’s denial of Douglas’ zoning enforcement request, which would need a supermajority vote of 4-1 to overturn in Douglas’ favor.
“No matter what happens,” LeBlanc said, “if we don’t agree, it fails.”
The discussion went around again a couple more times until – suddenly –
another vote: does the project comply with the bylaw (same footprint, not greater in volume “or” area …)? Yes, 3-2, with Dunn and Mahoney opposed, which contradicted Mahoney’s prior vote deeming Loranger’s structure was within the original footprint, and her vote to accept “or” as meaning ‘either.’
Still with us?
A 3-2 vote to uphold Shippey’s decision ensued. Loranger left with a “thank you,” and Douglas was already home by then.
In a follow-up email to The Wanderer, Douglas wrote, “A number of uninvolved observers present at the ZBA meeting remarked on the apparently obvious bias of the [three] ZBA members who are real estate brokers or developers. I can’t comment on that other than to say that I am 100% certain that a judicial decision on appeal will result in a complete reversal of those [three] members’ votes.”
The next meeting of the Marion Zoning Board of Appeals is scheduled for July 26 at 7:30 pm at the Marion Town House.
Marion Zoning Board of Appeals
By Jean Perry