Westport News

The Zoning Board of Appeals hereby submits the following record of the Board’s proceedings and its decision on the application request of Timothy Borden (owner/applicant), 597 State Road, Westport, MA for a variance from Zoning Bylaw Article 7, Section 7.8 to use a gravel section of Stagecoach Road to gain the necessary 150 ft. minimum frontage requirement.  The property is located at Stagecoach Road, Assessor’s Map-41, Lots—9M & 9N.

RECORDING OF PROCEEDING AND DECISION

Pursuant to a Notice of Public Hearing, which was duly published in the Shorelines on October 23, 2008 and October 30, 2008 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 opened on Wednesday, November 5, 2008 at the Westport Town Hall, 816 Main Road, Westport, MA on the above noted application for a variance as to property located on Assessor’s Map-41, Lots-9M & 9N and recorded in the Bristol County (S.D.) Registry of Deeds Book-5132, Pages-285-286 and Book-6331, Pages-22-23.

November 5, 2008
Chairman Clayton Harrison called the meeting to order at 7:00 P.M. in the Westport Town Hall, 816 Main Road, Westport, MA.  Members present were Christopher Graham, Kimberley Fernandes, Kendal Tripp, Gerald Coutinho and William Wyatt.  Absent was Donna Lambert.

Timothy Borden, applicant and Steven Gioiosa, SITEC Engineering was present.

Mr. Gioiosa presented plans to the Board regarding the proposal.  Mr. Gioiosa explained the original plan and the change of lot lines for parcel A, which is approximately 20 acres off of Stagecoach Road, which is part of the subdivision.  Mr. Borden created a gravel road extension and 4 lots were created off the gravel section.  The parcel has 90.9 ft of frontage on the paved section of road and 109.6 ft., which extends along the gravel way.  The Town of Westport’s prior Conservation Commission Agent delineated wetlands on Parcel A for Mr. Borden.  Over time, Mr. Borden had the wetlands again delineated and an error was found according to the present Conservation Agent and upland area was gained.  An ABBREVIATED NOTICE OF RESOURCE AREA DELINEATION (ANRAD) was filed and approved.  Mr. Borden is working with an abutter for a swap of land in order to change the lot lines.  The new parcel will contain 21.4 acres of land with 1.11 acres of upland area and 20.3 acres of wetland area.  The Building Inspector determined the creation of another lot was not allowed using the rural residential lane, which only allows for 4 dwelling access.  Mr. Gioiosa stated that his client would not be changing the frontage; his client wants to create a buildable lot and to be able to build a small house on it.  Mr. Borden is not looking for a physical access on the gravel extension.  There will be no expansion of the detention pond.

Mr. Coutinho asked if the original engineer contested the original flagging by the Conservation Agent and what led them to have the new Conservation Agent and SITEC go out to the property for new delineation.  Mr. Borden stated there was no dispute of the wetland line originally.  Mr. Gioiosa said his client wanted to revisit the wetland line because often there will be a difference found.  There are no waivers from the Board of Health or the Wetlands regulations.

Mr. Coutinho asked if the septic system and leaching field was located in the only place it could be on the property.

Mr. Gioiosa stated yes.

Mr. Graham asked how many dwellings were currently on the gravel section of the roadway.  Mr. Gioiosa stated there are 4 lots that will eventually have access.

Mr. Coutinho asked if any applications have been denied at this point.
Mr. Gioiosa stated no; there has been a filing with the Planning Board, who directed Mr. Borden to the Building Department, who in turn directed Mr. Borden to the Zoning Board of Appeals and here we are awaiting Town Counsel’s opinion.  There is nothing in writing from the Planning Board but there is a letter from the Building Inspector.
Mr. Harrison read the letter received from the Building Inspector into the record.
Mr. Gioiosa stated the bylaw allows access for 6 lots but only 4 are there presently.  Mr. Gioiosa said they intend to reconfigure the lot to get contiguous upland to create a buildable lot; this being done by lands swap with the abutter.

Attorney Philip Beauregard, representing the abutters (Ustinovich, Rego and Pereira) stated his clients objected to this proposal.  As for the request for a variance, no hardship has been shown.  If there is a hardship, the owner created it himself.  At this time, relief is
being sought from the Town’s Bylaw Article 7, Section 7 and this is not Zoning Bylaws.  The Zoning Board of Appeals cannot vary Town Bylaws, only Zoning Bylaws.  Attorney Beauregard stated his clients were told there would be no development due to the wetlands in the area; there is no legal binding paperwork for this statement, only that it was told to them in conversations.  The drainage area is a concern of how and where it will be moved.  In regards to aesthetics, this was to be a subdivision as originally divided, not as they are trying to change it.  The deed of at least one of his clients states that Stagecoach Road is to be owned by the owners of Lots 1, 2, 3 and 4.

Roberto Pereira, 33 Stagecoach Road, asked where the drainage easement would be placed.
Mr. Gioiosa said there would only be a slight relocation by 10 or 15 degrees.  The detention pond will basically be in the same area.  The entrance to the parcel will stay on the paved area and along the detention pond.

Sonya Ustinovich, 21 Stagecoach Road, stated she purchased the property in 2005.  At that time, she was told that no one could build to the back of her or to the right of her; restrictions were placed on her property; a lot of fill had to be brought in to improve her lot along with hay bales, etc.  Ms. Ustinovich is opposed to this petition.

Mr. Gioiosa stated that a formal process for the wetland lines being delineated was conducted and a permit was issued, which is good for three years unless an extension is granted.  In this case, the permit for the line had expired and Mr. Borden requested that the wetlands be revisited.  Every owner has the right to have lines redefined.  The Conservation Commission Agent or a hired botanist will re-delineate the lines and the wetlands can be found to be more or less.  It is chance that is taken by the property owner.  Mr. Gioiosa questioned Attorney Beauregard’s comment about the Town’s Bylaws and felt that perhaps Town Counsel may want to be sought on this matter.  The development of these lots was based on the prior Conservation Commission Agent’s delineation.  At this time, Mr. Gioiosa stated the developer would be willing to deed restrict this parcel.  This proposal is not a detriment to the neighborhood and the abutters are buffered by a good amount of woodlands.

Attorney Beauregard stated there was nothing close to creating a hardship; the land swap with the abutter has not even happened yet and the Zoning Board of Appeals cannot vary a Town Bylaw.

Mr. Coutinho stated he had a serious question of jurisdiction in this matter.  Personally, he did not believe the Zoning Board of Appeals had jurisdiction and the bylaw for which relief is being sought is a Town Bylaw, not a Zoning Bylaw.

Ms. Fernandes asked if there were covenants attached to the deeds of each of the lots.
Mr. Borden stated the only restriction was 2,200 sq.ft. of living space was allowed.

Mr. Coutinho stated he would like to see case law and/or legal citations on which the Town Counsel bases their legal opinion.

Motion made by Mr. Graham to close the hearing at 7:55 P.M.  Second by Ms. Fernandes.  The Board voted unanimously in favor.

Motion made by Mr. Coutinho to continue this hearing to Wednesday, November 19, 2008 at 7:00 P.M. with a written request being forwarded to Town Counsel worded as follows: “If an applicant wants to request an appeal or a waiver from Town Bylaw 0708.4 (NOT a Zoning Bylaw), to which body would they go? Which Town board/department or which Court would hear the initial appeal or waiver request and have legal jurisdiction to make such a decision? Please provide legal citations, which are the basis for your opinion.”  Second by Mr. Graham.  The Board voted unanimously in favor.

Motion made by Mr. Graham to adjourn the meeting at 8:30 P.M.  Second by Ms. Fernandes.  The Board voted unanimously in favor.

November 19, 2008
Chairman Harrison called the Zoning Board of Appeals meeting to order at 7:00 P.M.  Members present were Gerald Coutinho, Christopher Graham, Kimberley Fernandes, Kendal Tripp and William Wyatt.  Absent was Donna Lambert.

Mr. Borden was present.  

Mr. Harrison stated the hearing was closed at the last meeting and tonight the Board would discuss the petition, with the information that was received from Attorney Kathleen O’Donnell, Town Legal Counsel.

Discussion by the Board members
Mr. Coutinho stated that this was not a Zoning Bylaw but a Town Bylaw.  The Board sought verification and a legal opinion from Town Counsel after Board members and the abutters’ attorney expressed concern.  After research, Attorney O’Donnell indicated in her most recent email, that the Zoning Board of Appeals does not have jurisdiction in this matter due to the appeal that is being sought falls under a Town Bylaw.

Mr. Harrison recognized the following materials, the Legal Opinion of Town Counsel, the covenant for Stagecoach Road, which was recorded at the Registry of Deeds and the date the Planning Board signed off.

Motion made by Mr. Coutinho to take no action to either approve or deny this petition due to the Zoning Board of Appeals having no jurisdiction in this matter.  Second by Mr. Tripp.  The Board voted unanimously in favor.

*A copy of the emails regarding the legal opinion of Town Counsel was given to Mr. Borden at his request.

Motion made by Mr. Graham to adjourn the Zoning Board of Appeals meeting at 7:10 P.M.  Second by Ms. Fernandes.  The Board voted unanimously in favor.

Adjournment.

Chairman Harrison advised that any aggrieved party has twenty (20) days, from the date the decision is filed with the Town Clerk, to appeal the Zoning Board of Appeals’ decision.

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 within the twenty (20) day appeal period in accordance with Massachusetts General Laws Chapter 40A, Section 17.

Upon expiration of the twenty (20) day appeal period, from the date of the filing 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 as to the certification of this decision without appeal and to record this certified decision at the Bristol County (S.D.) Registry of Deeds.

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