As Town Counsel Blair Bailey explained during the December 10 meeting of the Rochester Zoning Board of Appeals, variances to zoning bylaws are mainly about the difference between want and need. So, as soon as applicants Daniel and Carrie Costa withdrew their petition for a third variance that would have allowed a proposed addition to their home at 173 Pierce Street to exceed the allowable 30 percent of the existing structure, the road was paved for the ZBA to grant them the Special Permit to convert their house into a multi-family dwelling.
The ZBA readily approved the other two variances for lack of the frontage requirement and lack of contiguous linear feet of frontage for the hardships the Costas inherited with the June 2020 purchase of a nonconforming lot.
The real hardship of the case is not something the ZBA can factor in. As Daniel Costa explained during the continued public hearing, that’s a family situation that has become more challenging with the passing of Carrie Costa’s father and her affliction with the auto-immune disease lupus. The Costas are home-schooling a child and will significantly benefit from her mother living with them to assist.
“I’m at the mercy of you guys,” said Daniel Costa, who bought Lloyd’s Market four years ago. “We have no intention to rent it to anyone else. We’re not going anywhere; we’re here for the long haul…. All we have is cranberry bog behind us, so it doesn’t seem like a sight issue.” In trying to explain the motive for the since-withdrawn variance, he explained they had hoped to give his mother-in-law a little more space to visit with her five sisters.
No abutters announced their attendance, but a point of discussion emerged in the board’s debate concerning the Special Permit, specifically language in the bylaw stipulating a single-family house must be occupied for seven years before its owners seek a variance to convert it into a multi-family home.
ZBA Chairman David Arancio told the members that the language gave him pause. “I’m a little bit concerned about it because anyone can walk into town and buy a house that’s been up for seven years,” he said. The membership felt that Arancio was getting hung up unnecessarily.
“Mr. Chairman, what you’re saying is possible, but anybody requesting a two-family, the family has to come before this board, okay? At that point, the board would go through the hearing process and make a determination whether they’re going to be given a Special Permit…. They cannot put a two-family up unless they come before this board,” said ZBA member Kirby Gilmore.
“The intent [of the bylaw],” said Vice Chairman Davis Sullivan, “was to keep new homes from being blown into multi-families before they were even lived in.”
Bailey agreed with Sullivan and explained it this way: “A general rule of construction in the law is that a general document is interpreted against its drafter. In other words, if there is something that is ambiguous or can be interpreted two ways, then [as] a general rule, it is interpreted to have the ambiguity because, otherwise, the person who drafted it would have written it a different way…. Since it can be interpreted both ways, it has to be interpreted in favor of the Costas since we wrote it.”
Citing other examples that apparently contradict the application of rules that other board members are setting to establish an interpretation of the bylaw, Arancio wanted to make a point. “Again, I don’t think it’s necessarily to this particular application, and I have documentation that’s based off of a prior bylaw review where we did have language in there. Whether it falls [under Section] 8c.17 of the multi-family where it needed to be occupied for at least two years … I think it’s something that the town will look at down the road,” he said.
Qualifying his sticking point by acknowledging his agreement with the comments made by the ZBA members, Arancio said, “I also have the right to go ahead and not agree with the same thought process in regards to that [case]. It’s just given me a moment of pause because I think it creates opportunity…. I just want to make sure that if you have a relationship with a neighbor for 20 years and someone else moves in, that’s a completely different relationship. Even if they have to come before us … everybody can go ahead and sit in front of us and be nice, and it could be a difficult situation, so I’m looking at it from the global perspective.”
Bailey reminded the ZBA that it can always limit the issuance of a Special Permit to the current owner. The board agreed to address the language of the bylaw for the sake of future cases.
ZBA member Richard Cutler proposed five conditions to the Special Permit: two units only, at least one unit to be owner-occupied, all parking to be off-street, Special Permit to be non-transferrable, and plans to be changed to reflect 30 percent of the existing structure. The ZBA voted 5-0 in favor of the Special Permit and the two remaining variances sought.
In Case 1155, Plumb Corner, LLC, is seeking permission to construct an 8-by-4-foot sign covering 32 square feet for property located at 0 Rounseville Road. The applicant is advertising a new subdivision, The Village at Plumb Corner. Per the applicant’s request, the board voted to continue the case to the ZBA’s next meeting on January 14.
The ZBA is looking to level-fund $300 as its appeals budget. Discussion ensued as to paying for Bylaws booklets. Bailey advised the members that there would be enough copies for the board.
The next meeting of the Rochester Zoning Board of Appeals is scheduled for January 14.
Rochester Zoning Board of Appeals
By Mick Colageo