Westport News

The Zoning Board of Appeals hereby submits the following record of the Board’s proceeding and its’ decision on the application of Robert Carr (applicant), P.O. Box 482, Saunderstown, Rhode Island and Richard & Michael Benard, 17 Bells Brook Road, Lakeville, MA  02347 (owners) for a Variance from Zoning By-Law regulations regarding Phased Development and Inclusionary Housing. The land in question may be developed pursuant to a 1970 subdivision plan.  The Applicant seeks to modify plan to meet today’s standards and in doing so, the By-Law would unfairly sanction him and impose a financial hardship.  Applicant seeks relief from Article 10, Sections 1, 2, 3, 4, 5and 6 and Article 13, Sections 1 through 11.

RECORD OF PROCEEDING AND DECISION

Pursuant to a Notice of Public Hearing, which was duly published in the Shorelines on November 16, 2006 and November 23, 2006 and posted on the Town Hall Bulletin Board, and mailed to the Applicants, Attorney on Record, Abutters, Owners of land directly opposite on any public or private street or way, abutters to the abutters within three hundred feet of the property line of the Applicants, the Towns of Westport and Dartmouth Planning Boards and the City of Fall River Planning Department, a Public Hearing was held on Wednesday, December 6, 2006 at the Westport Town Hall on the above application for a variance as to property located on Assessor’s Map 35, Lots 24-0-R and recorded with the Bristol County (S.D.) Registry of Deeds in Book 2026, Page 148.

The hearing was opened at 8:23 P.M. with Chairman Harrison reading the Public Hearing Notice and Abutters List aloud.  Other members serving were Gerald Coutinho, Christopher Graham, Kendal Tripp and Glenn Mauk.

Also present were Attorney Brian Corey representing the applicant and Attorney Kathleen O’Donnell, Town Counsel and Phil Hudner, Planning Board member.

Mr. Mauk stated that he had a possible conflict.  Attorney Corey stated that he waived any possible conflict due to Mr. Mauk’s disclosure and allowed for Mr. Mauk to serve on the hearing.

Attorney Corey stated that this parcel of land was just west of the Westport Elementary School.  It was the unbuilt part of the Chestnut Hill subdivision that was not completed back in 1985.  The undeveloped part of the subdivision called for forty-one (41) lots each consisting of 20,000 sq.ft.  The owners have gone before the Planning Board and developed a modification of the old subdivision plan.  The new plan will not max out the old lots due to the lots being merged into 60,000 sq.ft. lots.  While at the Planning Board, Attorney Jonathan Silverstein, Town Counsel for the Planning Board, suggested that the developer and owner apply to the Zoning Board of Appeals for relief from the Phased Development and Inclusionary Housing by-laws.  The intent of the by-law was not to penalize but Article 10 Section 2 deals with Phased Development and Article 13 deals with Inclusionary Housing, are being applied here.  The original subdivision plan was recorded.  The new modified plan would be affected by Phased Development and Inclusionary Housing according to Attorney Silverstein.  These circumstances concerning modifications to previously approved subdivisions were unforeseen in dealing with Articles 10 and 13.

Mr. Coutinho questioned how many lots were being presented now from the then 41 lots of 20,000 sq.ft.

Attorney Corey stated that there were now 13 lots, each consisting of at least 60,000 sq.ft.  

Attorney Corey stated that this has been before the Planning Board with four preliminary reviews.  The area has a naturally treed buffer between the existing homes and proposed 13 new homes.  There will be no cut zones.  A traffic study and police study have been conducted and both state that there is no applicability to the situation.  Another benefit to this proposal is that there will be no additional access tie-ins to abutting properties.  The lots will be sold with covenants.  There will not be any connector to Route 177; this and many concerns have already been addressed at the Planning Board.  The Planning Board has forwarded a letter to the Zoning Board of Appeals asking for support of a variance in this case from Inclusionary Housing and Phased Development due to this change of plan being favorable in the public interest and creating a lesser density to the area.

Mr. Coutinho stated that he had attended a Planning Board meeting and it was clear that all members of the Planning Board felt that the Inclusionary Housing and Phased Development by-laws were not meant for this type of small subdivision.  All members of the Planning Board were in favor of this proposal as well as the abutters.  Mr. Coutinho
then read the memo that was received by the Zoning Board of Appeals from the Planning Board supporting the variance request.

Mr. Hudner, Planning Board member, stated that the Planning Board was in favor of the requested variances.  The Planning Board can only continue their public hearing if the variances are granted. Mr. Hudner indicated that the Planning Board would be proposing changes to these bylaws at the next Annual Town Meeting to eliminate these unintended consequences.

Mr. Harrison called on any abutters present who would like to make a statement or comment.

Clark Gee, 18 Longview Drive, expressed concern over increased traffic and road use.  He asked for clarification of road acceptances and inclusionary zoning.

Mr. Coutinho said that the proposed additional street to Old County Road was no longer part of the developers plan, but that is a Planning Board issue.  As for traffic, there have been studies and the traffic posed no problem.

Daniel Pritchard, 14 Longview Drive, stated that a signed petition containing fifty-five (55) signatures was presented to the Planning Board regarding an additional access road in addition to Jason Drive.

Attorney Corey stated that the Planning Board has released a covenant.  Phase IV needs to be completed but there is no ability to develop the land for a road.  As for Victory Lane, it is a private way; the Chestnut Hill extension does not meet Planning Board requirements and creates an unsafe situation.  Attorney Corey stated that his client is attempting to minimize the impact of this proposed project; studies have shown there will be no significant increase in traffic.  The developer has no legal rights to put a road in because the land has gone to abutters.  

Mr. Hudner, Planning Board, stated that there is a traffic survey and the conclusion of that survey is that there will be no detrimental effect on traffic in that area.

Attorney Corey stated that his client wants to create a subdivision that is beautiful to Westport.  The proposed subdivision was created by working with the Planning Board.

Attorney O’Donnell stated that the by-law was intended for new subdivisions but because a new modified plan is being presented, Inclusionary and Phased Development fall into place causing this plan to fall between the cracks. It was not anticipated that the new by-law would affect this older subdivision.

Mr. Graham stated that for the Board to issue a variance, a hardship needs to be presented.

Attorney Corey stated that the hardship was the configuration of the land and the unforeseen circumstances regarding the effect of the Inclusionary Housing and Phased Development Bylaws.  This proposed plan under today’s standards is calling for thirteen houses.

Mr. Coutinho stated that the Planning Board must address road and traffic issues.

Mr. Graham asked the applicant if the new plan would be implemented, if the variance were not granted.

Attorney Corey stated that his client could do it, but will not be following the submitted plan.

Clarke Gee, 18 Longview Drive, asked what impact Inclusionary Zoning would have on this plan.

Attorney Corey stated that two (2) parcels would have to be developed as low income housing, which means that a 4-bedroom home would be sold in the low $200,000 range with an affordability restriction for future sale.  This is known as Affordable Housing.

Mr. Coutinho asked where the legal hardship was.

Attorney Corey stated that it is the unintentional consequence of the Town’s By-Law, thus equitable relief should be granted.

9:25 P.M.
Motion made by Mr. Coutinho to close the hearing.  Second by Mr. Tripp.   The Board Voted Unanimously in Favor.

Discussion by Board members ensued:
Mr. Coutinho stated that the Town could end up with a nicer looking subdivision, which is environmentally better.  He thought this would be an improvement and the Planning Board will be handling the road issues.

Mr. Harrison asked Attorney Corey, if the Board did vote favorably, would the applicant go back to the Planning Board.

Attorney Corey replied yes, the Planning Board has kept the hearing open until December 12, 2006.  Mr. Hudner, Planning Board, confirmed that Attorney Corey was correct.

Mr. Mauk stated that he did not agree that there is a legal reason for a variance and the Board should say no.

Mr. Tripp stated that he agreed with Mr. Coutinho and that he could also see Mr. Mauks’ idea.  This is a difficult decision.

Mr. Coutinho stated that everyone benefits with the revised plan. It is better for the Town as long as we have a legally defensible reason for the variances.  He supports this plan, it is not harmful and has a protective buffer.

Mr. Graham stated that he was reluctant to give up the affordable housing units for the Town.

Attorney O’Donnell stated that she agreed with both sides.  This is an instance where the by-laws were not supposed to affect an older subdivision.  It is harder to grant a variance with all the new additions to the by-law.  The hardship for the Town would be no affordable units.

Motion made by Mr. Mauk to deny the application for a variance because it does not meet the standards for a variance.  Second by Mr. Coutinho.  The Board Voted Unanimously in Favor.

Chairman Harrison advised that any aggrieved party has twenty (20) days to appeal the Board’s decision after filing with the Town Clerk.
Any person aggrieved by a decision of the Zoning Board of Appeals may appeal to the Superior Court Department in which the land concerned is situated or to the Land Court Department or to the division of the District Court Department within whose jurisdiction the land is situated by bringing an action within twenty (20) days after the decision has been filed in the office of the Town Clerk.  Notice of the action with a copy of the complaint shall be given to such Town Clerk as to be received within such twenty (20) days in accordance with M.G.L.  Chapter 40A, Section 17.

Upon expiration of twenty (20) days from the date of this decision, without an appeal filed for the dismissal or denial of an unsuccessful appeal, it shall be the responsibility of the Petitioners to obtain the signature of the Town Clerk to the certification and to record this decision and the certification of the Town Clerk in the Bristol County (S.D.) Registry of Deeds.

If the rights authorized by a variance are not exercised within one year of the date of granting such a variance, they shall lapse and may be re-established only after notice and a new hearing pursuant to Chapter 40A, Section 10.

UNDER MASSACHUSETTS GENERAL LAWS, THIS DECISION AND NOTICE OF FINDING SHALL HAVE NO LEGAL EFFECT UNTIL IT IS RECORDED IN SAID REGISTRY OF DEEDS.