In order for the Marion Planning Board to authorize the division of a parcel of land on Oakdale Avenue into separate lots, the Zoning Board of Appeals will need to allow a lot line to be drawn without the equal frontage required by the town’s bylaws.
“You can’t do that here because the houses were built before zoning. Equal frontage and equal area would put a lot line through a house,” said Attorney Robert L. Perry, who represented the Estate of Joan E. Botelho in Case 782, a continued public hearing before the ZBA on December 10.
The hearing was continued to January 14 at 6:30 pm but not before a history lesson and lengthy discussion.
As Perry explained, the owners of the homes at 61 and 63 Oakdale Avenue own property that Marion at some point in time began to consider as one lot and its residents as “tenants in common.” Botelho passed away and her lot sat vacant for a number of years, according to Perry. He is seeking a Special Permit to legally divide the lots so that the Botelho Estate can sell.
As Building Commissioner/Zoning Enforcement Officer Scott Shippey explained, the Planning Board would grant an Approval Not Required (ANR) that, assuming the ZBA approves the non-conforming lot line, becomes a permanent record.
“Basically, we cannot do a plan that will provide equal area and not have a serious hardship,” said Perry, who explained that the intent is to have Lot A owned solely by Denise Allard, and Lot B owned solely by the Botelho Estate. Allard has been paying the property taxes. Perry told the ZBA Botelho’s four children wish to sell their property, pay off the taxes owned, and move on.
According to Perry’s research, two parcels were originally purchased separately in 1939 with an easement permitting the town to lay water lines to the two houses. Houses were built on the lots in 1943.
“The family never treated them as one lot. Parcels 1 and 2 in the deed from (original owner) Sears and from Botelho,” explained Perry, whose research did not solve the mystery as to when, how, or why the town combined them. “We have no idea how the town came to treat them as one. I don’t know how it happened, but the family did not make it happen.”
Further complicating the matter is Lot B sits off of the dead end of Oakdale Avenue that, according to Perry, is a road the town voted to take possession of sometime around 1955. Perry’s clients seek to clear that road at their own expense in order to further facilitate an expedient solution. “I didn’t expect the Town of Marion to incur costs to do this,” he said.
Perry has spoken with the Department of Public Works and called the proposal “a glorified driveway” that he does not believe is before the ZBA’s judgment. The Conservation Commission sent a letter saying the case does not fall within its jurisdiction.
“I think it’s a fine idea. The road goes to the south border of their second lot,” said abutter George Tinkham, 57 Oakdale Avenue, who explained that the town owns the road and “took an easement on our property to all four houses (in 1958)…. Nobody’s used it because just the two driveways. The road does extend up to the border of the second lot. It’s all public land in front of it [and] there wouldn’t be a problem clearing it.”
Several agreed that two lots will generate more property tax revenue for the town than one, but ZBA Chairman Christina Frangos was concerned the board does not overlook some aspect of the case and create a problem with its decision.
While ZBA member Ed Hoffer entertained the idea of a vote to approve with a contingency, which Perry preferred, Frangos said, “I would like to hear from the DPW to see where they stand on feasibility.” She would also like to hear from town counsel regarding precedence in Massachusetts, not just Marion.
Shippey told Frangos he would email DPW Director Dave Willett to obtain the DPW’s stance in writing.
Perry was beleaguered by the bylaw, and Frangos agreed, saying, “The bylaws give very little guidance.”
“We’re trying to clean it up. It’s baby steps,” said Shippey, who serves on the Bylaw Codification Subcommittee.
In other matters, Heron Cove developer Ken Steen requested a continuance to his proposed 40B housing project to January 28, 2021, with the modification of 24 additional units. Mark Bobrowski, Steen’s attorney, sent the ZBA a letter the day before the meeting with the request.
Marion’s Board of Selectmen had endorsed the prior 96-unit version of the project, so it will need to return to the selectmen’s agenda. Bobrowski said he already generated the abutters list and spoke the day of the meeting with Town Counsel Jon Witten.
Citing that “40Bs are controversial, generally,” Bobrowski stressed that he intends to take all proper steps to avoid any oversights. “I’m optimistic the Board of Selectmen will support it; I don’t know. The [Massachusetts Department of Housing and Community Development] will support it,” he said.
Frangos requested two weeks’ notice for any future continuance requests so that the applicants for public hearings scheduled later the same evening would not face undue delays.
Before the meeting ended, the ZBA voted to change its public hearing schedule to one public hearing every two minutes rather than every 15.
In Case 781, Kevin Walsh, the owner of property he bought June 30 at 12 Richardson Road, received a Special Permit to complete renovation of a nonconforming deck.
Hudson Plumb, a direct abutter to Walsh’s property, said that Walsh had been at it for six months and has done substantial work that Plumb called “greatly improved.”
Members Jim Ryba, Margie Baldwin, and Cynthia Callow have all gotten a look and complimented Walsh as well.
Callow, an alternate board member without voting privileges when a quorum is present, expressed interest in joining the ZBA as a full voting member.
The ZBA also voted to accept the withdrawal of Katrina Trull’s request.
Finally, the board discussed a new Procedurals Manual from KP Law so that all members can strengthen their knowledge and equip themselves to preside if necessary.
“The goal is really to help us,” said Frangos, who would like to receive feedback from the membership prior to the ZBA’s January 14 meeting in order to finalize a version for a vote. Frangos told the board she wants to require 80 percent attendance of the ZBA’s members, citing a fall meeting in which the board fell short of a quorum, and said she hopes the Board of Selectmen supports the proposed rule.
Member Will Tifft noted that Zoom meetings reduce scheduling conflicts. Openly hoping for a March 2021 return to in-person meetings, Frangos said she hopes that meetings remain accessible via Zoom. Hoffer called March “too optimistic” for a full reopening, and while he anticipates COVID-19 immunizations for police and fire personnel, Hoffer said expects “the rest of us” to be waiting our turn.
The next meeting of the Marion ZBA is scheduled for January 14.
Marion Zoning Board of Appeals
By Mick Colageo