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HomeMy WebLinkAbout1984-10-09PLANNING BOARD MINUTES MEETING OF OCTOBER 9, 1984 The meeting of the Lexington Planning Board was called to order at 7:38 P.M. by the Chairman, Mrs. Smith, with members Cripps, Flemings, Sorensen, Uhrig and Planning Director Bowyer present. 200. EXECUTIVE SESSION On a motion by Mr. Sorensen, seconded by Mr. Cripps, it was voted 5-0, by poll of the Board, to go into executive session to discuss strategy with respect to litiga- tion which, if discussed in an open session, may have a detrimental effect on the litigating position of the town. The Board went into executive session at 7:39 p.m. stating they would return to open session only to adjourn. Following the executive session, the Board return to open session at 11:20 p.m. The meeting was adjourned at 11:22 p.m _ Tudith J. Uhrig•,' Clerk (� 1 PLANNING BOARD MINUTES: EXECUTIVE SESSION: OCTOBER 9, 1984 After a unanimous vote of the five members present, by poll of the Board, the Lex- ington Planning Board met in executive session in Room G-15, Town Offices, at 7:39 P.m., to discuss strategy with respect to potential litigation which, if discussed in open session, may have a detrimental effect on the litigating position of the Town. Present were Chairman Smith and members Cripps, Flemings, Sorensen, Uhrig, Planning Director Bowyer and attorney Martin Healy of Rackemann, Sawyer and Brewster. Attorney Healy said that he would respond to the 13 questions posed in the letter from the Planning Director dated October 4. ' First, he said, this is a very fact dependent situation. He suggested that if the Planning Board pursued an appeal to the courts, the first thing to do is a title examination to document whether the property owner is entitled to the "grandfather- ed" lot exemption and into which of the several categories set up in Section 7.4.1 it would fall. The Board agreed to hold up on any research on the title until it had determined whether to puruse an appeal or not. Healy said he was in basic agreement with the "Guidelines for Lot Combination" prepared by Stephen Anderson in April, 1983. He would suggest some "fine tuning" but his recommendation would not be much different from what the Board has now. He stressed that they are guidelines without the force of law and represent an attempt to define what the By -Law means in a way consistent with case law precedents. If there are situations that need to be clarified, an amendment to the Zoning By -Law would be the best route. Planning Board Minutes: EXECUTIVE SESSION: October 9, 1984 N A key concept in combination of lots is whether an owner has intentionally waived known rights. He thought the combination by application was the weakest of the guidelines because the Building Department's files would be "off the record" for a prospective purchaser. A court is likely to emphasize the official record in a registry of deeds or land court, which a prospective purchaser would be assumed to review. The building -zoning records of individual cities and towns are often incomplete and inconclusive. Whether the 1969 application for an addition to the house is determinative, is an open question. In this case, both the owner -seller and the prospective buyer had knowledge of the 1969 application. A subsequent owner, other than the Herseys, might not be assumed to have knowledge of the 1969 application. The fact that the Herseys filed an "approval not required" plan may be some evidence of their know- ledge of the side yard violation. It could be considered inconsistent with their claim of "grandfathered" lot status. In this case, the builder -buyer is likely to know because the special permit would be on record. The stronger part of the Planning Board case is the encroachment on the side yard. Once a part of a building is in a required side yard, Healy considered it to be combination by use consistent with the principle in the Butts decision. Whether the building is over, on or adjacent to the "lot line" are only minor gradations of the same principle. Once a lot has been combined, the exemption for undersized lots is lost and separate lots cannot be re-established. The granting of the special permit in 1983 confuses the issue." The effect of the special permit is to eliminate a side yard setback violation of three feet three inches, but it does not determine the other lot is a separate building lot. It Planning Board Minutes: EXECUTIVE SESSION: October 9, 1984 3 allows the owner to sell the other lot but doesn't answer the question of whether the other lot is buildable. For instance, the owner might sell the other lot to an abuttor who might wish to have more land. The fact that the two lots were assessed as separate lots is a very marginal con- sideration and does not have legal relevancy. The courts rely on the hard data, i.e., registry records. Relying on the intentions of the Board of Assessors or of owners or other Town officials, which are not documents, is a murky proposition. The key procedural issue is the timeliness of the Planning Board's appeal in rela- tion to the issuance of the building permit in April. The right to appeal from a determination on a building permit is essentially limited to the applicant because of the inability to obtain a permit. For other parties who did not apply for a per- mit, the proper procedure is to request enforcement of the Zoning By -Law. The Planning Board followed the proper procedure and the reason given by the Board of Appeals in its decision on the Planning Board's first appeal, i.e., that it was not timely, is wrong. The Planning Board is not limited to a 30 day period from the issuance of the building permit in which to bring its appeal. It can request zoning enforcement at any time. The courts are likely to consider the amount of progress the builder has made on a building but more in the determination of damages. For instance, it would not be reasonable for the Planning Board to wait until the building was com- pleted and occupied before it brought its request for zoning enforcement. On other procedural issues, the failure to take an appeal within 30 days from the Building Commissioner's August 19, 1983, denial of a building permit is not a bar Planning Board Minutes: EXECUTIVE SESSION: October 9, 1984 n to a later application. Nor is the Building Commissioner barred from changing his mind from his August, 1983, determination and he does not have to provide written reasons why he changed. A court would be likely to make a distinction between the owner and the buyer -builder in making an appeal so that the buyer -builder's rights to a hearing are not foreclosed. The Board of Appeals decision doesn't make new precedent. Neither the Building Commissioner nor even future Board of Appeals cases are bound on this point. While not bound by it, one would assume that the Building Commissioner may be guided by the decision. The Town need not worry about exposure to a claim for financial damages by the Herseys or Fine Homes Realty Inc. They would have to prove that the Town had been ' discriminatory or had violated their civil rights. There is no evidence of bad faith or malice by the Building Commissioner. Further, the Planning Board, the Board of Appeals and the Building Commissioner have a "qualified immunity." If the builder were well along or finished, the court might order an equitable remedy, e.g., damages paid to abuttors if they can prove they have suffered finan- cial damages. The builder's claim against the Town for financial damages is not strong because there is some "business risk" assumed and there may be by condition- al clauses in the agreement between the builder and the Herseys. The decision in the Ward Street case will have no effect on this case or vice versa Any appeal to the courts is heard "de novo" and the decision of a board on the same case is not even admisable as evidence so another case is completely extraneous. Planning Board Minutes: 5 EXECUTIVE SESSION: October 9, 1984 Healy thought that the guidelines for lot combination could be a good basis for the Town working out its procedures internally. The Board of Appeals should not cite the guidelines themselves as the basis for a decision but should use the reasons and similar wording contained in the guidelines. There should not be a problem for the Board of Appeals to agree in principal with guidelines but they should probably not adopt them specifically. Planning Board members asked Mr. Healy if he thought the Board had a strong case for an appeal to the courts. On procedural grounds, he could see no problems. On the merits, he thought there were some good arguments. He considers the encroach- ment to the side yard setback to constitute combination by use based on the Butts case. He thinks that fact is stronger than the November, 1983, special permit and the retraction of the three-foot yard violation. In response to a question about the cost of litigation, he said an off hand esti- mate would be at least $10,000. If the case is carried to superior court, the costs are greater. Under the Massachusetts rules of precedence, a decision of the superior court is not precedent. The case would have to go to the appeals court or the supreme judicial court for a decision that would constitute precedent. Mrs. Smith thanked Mr. Healy for his thorough review and clear explanation of the issues. Mr. Healy left the meeting and the Board continued discussion. Mrs. Smith said the question seems to be whether we can accomplish our objective of obtaining consistency administratively or whether we need to go to court. The amount of money involved is substantial. Mrs. Flemings said that if there were a Planning Board Minutes: EXECUTIVE SESSION: October 9, 1984 0 strong commitment by the Board of Selectmen, the Board of Appeals and the Build- ing Commissioner toward consistency, she would not be in favor of going to court. Mrs. Uhrig commented on her dilemma; she hated to see one lot with a three foot three inch side yard and another undersized lot developed for a large house. But she had trouble spending $10,000-$20,000 to correct what were administrative errors. It was agreed to defer a decision on whether to proceed with an appeal until next Monday's meeting with the Board of Selectmen. Mrs. Flemings suggested, and it was agreed, to ask Mr. Healy to furnish a three- four page written opinion summarizing the comments he had made to the Board. The Executive Session was adjourned at 11:20 p.m. and the Board returned to Open Session. LJ Judith J. UhY g, Clerk