Chairperson Cynthia Callow finds her eligible voting body on the Marion Zoning Board of Appeals dwindling to a critical level just as the Heron Cove LLC case comes to a head.
The September 29 public meeting of the ZBA, it was hoped on all sides, would be a formality in which the public hearing would be closed, and the board, having read its decision as drafted by Town Counsel Jon Witten, would be ready to vote its approval of the project.
Ken Steen’s 120-unit, affordable-housing development planned off Route 6 near the Wareham town line is a Local Initiative Program (LIP) 670CMR negotiated with and approved by the Marion Select Board, and the ZBA is the lone municipal vetting authority. The rest is done under the watch of the state.
The ZBA’s work was thought to be near completion when complications arose after two members were missing from the September 29 session.
Minus Dr. Ed Hoffer (illness) and Tucker Burr, the board was down to the bare minimum three eligible voters, Callow, Dani Engwert and Will Tifft. All other ZBA members had already missed at least one meeting except for Burr, who missed approximately 10 minutes of one of the meetings.
Witten said the ZBA needed three affirmative votes to approve the project, so given the strained situation, that would require a unanimous vote. Witten advised Callow to hold off on opening the continued public hearing in hopes that Burr would appear and bring the potentially positive voting body to four.
Dana Nilson was among those who missed one meeting and kept diligent notes, but the ZBA does not have the Mullin Rule at its disposal. According to Witten, in order for the board to vote an approval of the Heron Cove LLC project, a minimum of three voters who have attended every session of the public hearing are needed.
ZBA member Margie Baldwin was also in attendance, along with Zoning/Building administrator Anne Marie Tobia and Building Commissioner Bob Grillo.
Representing Steen, Phil Cordeiro of Allen & Major Associates said the latest revision was meant to bring together one final set of plans addressing landscaping details and signage and tentative locations that had been discussed.
Acknowledging that the developer’s requested waivers relate to the increase from 96 units on the site to 120, it occurred to Tifft that the applicant considers every requested waiver economically essential, yet the ZBA had to date learned nothing of the economics of the project.
Citing the potential for negative feedback toward the board for lack of due diligence, a charge he considered potentially credible given the lack of economic information, Tifft asked Witten, “To what level do we need to be concerned about that?”
Witten called it “a great question” and said that a LIP project (negotiated by the Select Board) comes with the assumption that it has political support in the town, rendering the issue of economics “secondary” to the ZBA.
“I don’t think it matters if it was 96 (units) or 120 because there was never approval (from the Select Board) for 96,” explained Witten, noting that Steen and the Select Board share the presumption that he needs 120 units to make the project successful. “You’re not looking the other way, you’re just making it a secondary issue.”
Tifft suggested that being left in the economic dark still leaves the ZBA vulnerable to second guessing.
Witten reminded the board that it has 40 days from the closing of the public hearing to render a decision and that Steen wanted the opportunity to review the draft decision, but before the meeting ended, the public hearing was voted closed.
Before the ZBA reached that point, at Witten’s suggestion, Attorney Mark Bobrowski weighed in. He thanked Witten for his hard work on the decision and offered no fundamental disagreements, but he did request some “tweaks.”
As a rental project, Steen asserted that a surety is not something the applicant should be required to post. Witten agreed in principle, but given the fact Steen’s crew will be working in the public right of way, said the matter should be left up to the board. Steen countered that, since his team has committed to perform public-way infrastructure. Witten agreed that the requirement should be canceled.
Bobrowski said we are about to enter into a recession that typically lasts two or three years. As a result, he felt the timeline should be relaxed. Witten left the matter up to the ZBA but noted the window’s relevance considering the development’s ability to push Marion over the 10% affordable-housing requirement.
“Once we start it, we will not stop,” said Steen. “Right now, what’s happened in the last 90 days, there’s no way we can start this. We need the (interest) rates to come back up. … It’s just not going to happen right now.”
Witten suggested five years from the issuance of the occupancy permit, and Bobrowski found that option appealing.
Witten confirmed to Steen that he had not written any response to the suggestion for colors. The board members spoke immediate approval of the colors. Witten said his next draft will include reference to colors.
Trash policy was discussed, and the ZBA wished to hear back from Town Administrator Jay McGrail and the Select Board. Witten suggested asking Bobrowski for another extension of the public hearing, which he was happy to grant as all sides benefit.
Callow said that while she is not in a hurry, she felt strongly that the board has done its due diligence. She also reiterated her concern about a dwindling body of eligible approving voters.
The board voted to close the public hearing with a request that Witten would consult with town officials on a trash agreement, then deliver a second draft to the ZBA.
Steen thanked the board members, Witten and Anne Marie Tobia, the Zoning/Building administrator and Building Commissioner Bob Grillo for their work on the process.
The project vote is anticipated at the next meeting of the ZBA scheduled for Thursday, October 13, at 6:30 pm.
Marion Zoning Board of Appeals
By Mick Colageo