Adding to litigation already underway between Tabor Academy and the town regarding the school’s failure to undergo a site review process for work on its new turf fields, the Marion Zoning Board of Appeals formally put its weight behind the Building Commissioner’s denial of a permit for scoreboards at its January 12 meeting.
Tabor Academy has 20 days to appeal the decision upon its receipt.
Last October, Building Commissioner Scott Shippey had denied Tabor Academy permits to construct three scoreboards at Hoyt Field because the school had not submitted to a site plan review. The school is also in litigation with the Board of Health due to its failure to provide adequate stormwater management plans.
While the courts are pushing the two parties toward mediation, ZBA Chairman Robert Wedge questioned whether that would solve the issues at hand. “The ZBA does not think [mediation] is appropriate – either the Dover Amendment applies or it doesn’t.” Under Massachusetts’ Dover Amendment, academic institutions can bypass local zoning bylaws to construct facilities to provide their services.
Town Counsel Jon Witten said that although the Dover Amendment provides some zoning exemptions to academic institutions, “towns can still impose reasonable regulations, including setbacks.”
However, he said despite the ZBA’s reservations, the Board of Selectmen are going to move forward with the mediation process with Tabor.
“The mediation is nonbinding. Anything that happens will be protected by statute and not be disclosed,” Atty. Witten said.
As much as the Selectmen and other parties mediate, Atty. Witten said at the end of the day the ZBA is the defendant against Tabor Academy.
“Only the ZBA can settle the case. At the end of the day, the buck stops here,” he said.
In other news, the ZBA discussed hearings set to begin on January 26 for Baywatch’s modified affordable housing project – which will include two buildings with 30 affordable units and 36 standalone non-affordable homes.
Atty. Witten said the Selectmen have met with developers and are pushing for a modified plan that requires 25 percent of the free-standing units to be affordable. But Baywatch Realty is saying it is cost prohibitive at about a $500,000 loss, according to Mr. Wedge.
Atty. Witten said that the town is planning to require financials, or pro forma, from the developer showing where the company is really at in terms of profitability. A town can legally ask for this information if a case is reaching closure. The Baywatch project proposal began 11 years ago, thus the counsel believes sufficient time has passed to request more financial disclosure.
“It’s the only way to get numbers on the reasonable profits,” Atty. Witten said.
When the hearings begin on January 26, Mr. Wedge said he plans to “hold their feet to the fire” in ensuring Baywatch follow local rules.
Once the application process begins on the revised plan, the board has 180 days to render a decision.
“It’s nice to see the number [of units] come down. It is a good starting point, but the devil is in the details,” Mr. Wedge said of the case.
By Laura Fedak Pedulli