2019-06-27-ZBA-min - Laserfiche WebLink

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The hearing opened at 7:23 PM Chair, Ralph D. Clifford, clarified what was before the Board. Mr. Tymann stated there were two requests for zoning enforcement. On June 19 he submitted a letter to the board. The case law he sighted that the role of the Zoning Board of Appeals in reviewing an administrator's decision is not akin to abusive discretion. This is a different process, the board has discretion to engage in its own fact finding. Mr. Tymann stated and discussed the eight different grounds for the two appeals. The eight grounds are as follows: screening, traffic safety, light spill over, noise, flooding and run off concerns, placement and number of parking spots, snow storage and loss of property value. A Board member, David G. Williams, asked how wide the easement is (Mr. Tymann responded the easement is wider than what was actually there. It is Mr. Oscan who owns the road and who would have standing in a legal proceeding. The easement limits the right to pass and repass to all lawful purposes in common with all persons having such right. It is the responsibility of the Board to decide whether that is permitted). Mr. Williams asked what Mr. Oscan thought of this (Mr. Tymann responded that on February 27 the Planning Board Hearing was held on the subdivision. At that hearing Mr. Embry stated the use the Cotting School wishes to pursue is not overburdening the easement and they have the right to do it. Board Member Charles Hornig asked Don Borenstein if he agrees with Mr. Embry's position and he said he can't say that he agrees. From his perspective they don't agree). Mr. Clifford stated an easement for passing and repassing is broad. He asked is there anything in that document that indicates the easement is limited to residential use and asked if the land was already developed (Mr. Tymann responded just the language about uses in common. There were houses located at 497 Concord Avenue and 489 Concord Avenue). Mr. Embry discussed the original use of the easement and when it was created. Anybody has a right to use that driveway. The only person who can decide if Cotting School is using that easement poorly is Mr. Oscan. Mr. Embry clarified the terminology in the bylaw regarding driveways. This is a 100 year old driveway, not a driveway the Cotting School is building. The issue of the intersection is the real argument. Mr. Embry then discussed the situation when Mr. Oscan went before the Planning Board for a subdivision. He then stated this is a driveway not a street. He stated the Tufts case has no relevance here. The Cotting School has been working on this project for two years and has produced what has been asked of them from many departments. The main reason for this parking lot was to alleviate traffic in one entrance. It will be the same number of people and not cause more traffic. The Zoning Administrator stated on January 8, 2019 they received a request for zoning enforcement from Benjamin Tymann on behalf of Alyssa Goodman. On February 4, 2019 she replied to the request with the determination that the project does qualify as a protected use under the Dover Amendment but should be subject to reasonable regulations. So she stopped the project. She found they had not addressed specific zoning requirements related to lighting, screening, and landscaping. Cotting School was asked to submit an adequate site plan that would address these issues. In March herself and the Building commission received and reviewed new plans submitted. Screening, landscape and lighting were reviewed and found they reasonably met the requirements of the bylaw. Those are the three issues she had