Ken Steen and the Marion Zoning Board of Appeals decided that a written agreement requiring the developer to build a sewer line as a prerequisite to pulling building permits for Heron Cove Estates was the result of a scrivener’s error when occupancy permits were what was intended.
On November 30, the ZBA held a hastily called public meeting to beat a 20-day deadline to respond to a November 7 letter from Mark Bobrowski, Steen’s attorney, and preserve the town’s right to vote to consider the permitting amendment and a second amendment that would allow Steen to defer the payment of fees totaling $1,100,000 as substantial or insubstantial changes.
Chairperson Cynthia Callow and members Dani Engwert and Will Tifft would cast the unanimous votes that first, officially consider the changes to the agreement as insubstantial (meaning they will not require a public hearing) and second, approve a draft crafted by Town Counsel that also allows the deferral of fees (to a later date) that had originally been stipulated to be paid no more than 10 days after the first building permit is issued.
Earlier this year, Steen was issued a Comprehensive Permit to build Heron Cove Estates, a 120-unit, affordable-housing rental project off Route 6 near the Wareham town line. Its construction would push the Town of Marion over the state-required threshold of 10% in affordable housing and authorize town officials to reject future such applications in favor of market-rate housing projects that generate property-tax revenue and sewer rate payers.
Adjacent to Heron Cove Estates is such a development, a proposed, 48-unit, townhouse-style residential project currently in its vetting process with the Planning Board.
The fees that Steen agreed to pay the town as part of his LIP agreement to build Heron Cove Estates include $590,000 for infiltration and inflow (sewage treatment), $410,000 (sewer connection) and not more than $110,000 toward the replacement of the Creek Road pumping station.
Bobrowski insisted that Steen has no intention of reneging on the agreement, only requesting more than 10 days after a building permit is pulled. When given the floor, Steen explained that town officials initiated the concession.
“Geoff (Gorman, town administrator) and the Select Board came to me and said, ‘Can you pull the building permits?’ I said, ‘Yeah, I’m happy to pull the building permits, but I’m not going to come out of pocket five or six-hundred thousand dollars to pull the building permits to keep the town in safe harbor when I don’t know where we’re going to start the project,’” Steen stated. “So it’s a two-fold situation. We’re trying to help the town out by coming in and getting building permits so that you guys can stay in safe harbor and reach (subsidized-housing inventory) numbers, but at the same time the other correction relative to the sewer line – what I believe is … potentially a scrivener’s error that passed through the process and we’re left with the only option to correct it in this manner.”
Alternate member Tucker Burr expressed concern that construction delays at Heron Cove could cost the town the leverage it hopes to gain against future affordable-housing developments and suggested issuing only the number of building permits it would take to get Marion over 10% in affordable housing.
“Where do we see ourselves a year and a half from now? Because, what’s going to happen is we’re going to issue all these permits, the SHI number is going to bump to like 12 percent,” said Burr, suggesting that Heron Cove might never be built. “What’s the plan if the SHI number goes back to 8 percent? What I’m considering should happen is there’s no reason to issue all the building permits at once. We only need to issue slightly less than half of them to get us back over the 10 percent (in affordable housing.) At a minimum, I think we could actually do even less than that to get us back into safe harbor.”
Burr asked Steen what he had done in the past year to “sort of move toward getting the sewer built.” Steen said his activity has been limited to drawing plans, working with Marion’s Department of Public Works and, after applying several months ago to the state Department of Transportation and seeing no movement, forcing a meeting with MassDOT in Gorman’s office in mid-November.
“The town actually stalled the MassDOT permit issuance because they wouldn’t sign an authorization form,” said Steen.
Burr expressed concern that without a sewer built, Steen would not be in position to begin construction. Steen told Burr he was missing the point.
“What the idea of the sewer line is, first of all – and you can go back and check the tapes and somehow this slipped through in the final permit – it’s ridiculous to make the installation of the sewer line a condition precedent before we can get a building permit. It always should have been ‘occupancy permit,’” said Steen. “That’s only common sense. Why would we want to hold up starting the project, theoretically, contingent upon a sewer line when, in fact, the town is protected at the end of the day because we have to install a sewer line in order to get an occupancy permit? … ‘A,’ we’re correcting that.”
Burr contended that even if Building Commissioner Bob Grillo extends previously issued building permits beyond the 180-day mark, it would not extend how long they apply to Marion’s affordable-housing percentage.
“They’re coming off the SHI in 18 months if you don’t build them. So if you don’t build them in 18 months, we’re back to square one, we’re back to 8 percent,” contended Burr, who suggested that issuing 50 permits now and more later would extend Marion’s stay in safe harbor.
Steen believed that if the building permits got reissued, then the town would remain in safe harbor.
“I’ll do whatever the town wants. My main concern here is to fix the issue with timing (the building of the) sewer line with building permits so it can be tied to occupancy permits so that when we’re ready to pull the trigger and start the project, we’re not held up by a sewer line that potentially might not be able to be installed if that start date is sometime after November 1 when the state does not allow you to work in the state highway. So that is my main concern, to request that the board make that modification,” said Steen. “The building permits … the town came to me, I’m happy to pull the building permits. I’d like to do it. It makes sense for everybody. I’m here to play ball, that’s the way I work. You guys tell me what you want to do, that’s kind of your thing, not mine.”
Burr expressed appreciation to Steen for being amenable to the town’s requests but went on to suggest that the town’s representatives who negotiated the LIP agreement in the first place were not thinking about when the project would be built. He reiterated his preference that the town only issue the number of permits it would take to raise the SHI number to 10% in affordable housing, the threshold that allows Marion to refuse new applications filed with the state by developers.
Callow asked Steen if the ZBA approved the draft agreement as amended by Town Counsel, would he be willing to follow up with Grillo on the matter of protecting Marion’s interests with a potentially measured issuance of building permits.
“I think Tucker makes a good point, I know what he’s getting at. He may be right, I’m not sure, but I know what he’s getting at, and I think it’s a great thought process,” said Steen, indicating he would work with the town on the pulling of permits. “I would say that I would just take Tucker’s thoughts to Town Counsel and let her decide as to how to proceed. That’s just my suggestion.”
Callow said she would bring Burr’s concern to Town Counsel and maintained her preference that the ZBA vote on substantial versus insubstantial changes in order to correct the agreement to reflect what both sides believe to be its original and best intentions, then handle the issuance of permits as a subsequent matter to be determined between Grillo, Gorman and Steen, as informed by Town Counsel.
Tifft expressed the value of Burr’s discussion point but told Callow he was prepared to move forward and vote on the matter at hand.
A substantial change would require a public hearing, whereas an insubstantial change would allow the board to approve the amendment that allows Steen to pull building permits in cooperation with the town’s request but without being tethered to a 10-day timeline that would require his payment of hundreds of thousands of dollars in associated fees. Those payments would be deferred to a later date.
“For the record, I think these are massively substantial changes, but as long as we’re all in agreement that we want to do this, then that’s okay,” said Burr. “But I just would hate for anyone to be confused that changes like this in the future would also be considered insubstantial.”
Anne Marie Tobia, the board administrator, noted that the amendment is “essentially a correction, though, between the selectmen’s original decision and the decision that the Zoning Board made. It’s a scrivener’s correction, so what we’re voting on is actually what the Select Board wanted it to be in the first place,” she said. “I’m not a voting member, but in my mind, this isn’t substantial, it’s a correction. That’s what I think.”
“That completely discounts the idea that the people who voted on it believed that what was being passed was what they wanted to be passed,” argued Burr.
“Not necessarily. The people that voted on it missed the mistake, missed the scrivener error. Yes, we did,” said Callow.
Tobia reminded the board members that no occupancies will be allowed without the sewer line Steen agreed to install. “That sewer line is contingent upon occupancies, but it shouldn’t be contingent upon pulling (building) permits. That’s not fair,” she said.
With that, the board took two unanimous votes, first to consider the amendments to the agreement as insubstantial and secondly to approve the draft as written by Town Counsel.
The next meeting of the Marion Zoning Board of Appeals was not scheduled upon adjournment.
Marion Zoning Board of Appeals
By Mick Colageo