[MassHistPres] FW: by a 4-1 vote, ZBA upholds Building Commissioner's revocation of Kline Building Permit

[james hadley]

FYI

Date: Fri, 27 Jul 2012 20:45:49 -0400
From: crherron at peoplepc.com
To: jameswhadley at hotmail.com; pcrow10 at gmail.com
Subject: Fw: by a 4-1 vote, ZBA upholds Building Commissioner's revocation of Kline Building Permit







-----Forwarded Message----- 
From: Joan Holt 
Sent: Jul 27, 2012 1:33 PM 
To: Holt Joan 
Subject: by a 4-1 vote, ZBA upholds Building Commissioner's revocation of Kline Building Permit 




On Monday July 23, 2012 the Truro Zoning Board of Appeals held a Public Hearing on the Kline appeal of the Building Commissioner’s order to Revoke the Building Permit. The meeting room was filled, mostly with Friends of the Hopper Landscape who oppose the Kline house. 

At the close of the hearing the ZBA voted 4 (Efromson, Allee, Perkel, Thornley) to 1 (Hultin) to uphold the Building Commissioner's Order to Revoke the Building Permit. In support of its vote, the ZBA went on record with the following findings:

The Building Commissioner issued the Letter with the order to revoke the building and occupancy permits on January 20, 2012, 
The Land Court and Appeals Court had earlier ruled the Building Permit was issued in error, 
A group of Stephens Way residents have sought enforcement, and 
No argument was made that the building was not in violation of the Zoning Bylaw.

The next event in the saga will be on August 8, 2012 when the Massachusetts Land Court will hear motions for Summary Judgment on several appeals filed by Diane Tillotson on behalf of Duane Landreth, Trustee for Ms. Andrea Kline. Town Attorney Jamie Veara is defending the Truro ZBA and the Truro Building Commissioner. 

Account of the ZBA Hearing:

Parties first spoke on behalf of the Kline’s appeal of the Building Commissioner’s order. Kline attorney, Diane Tillotson, gave a well prepared, argument that the ZBA could change its mind for reasons of equity, but she admitted that the Kline’s took a risk and in retrospect should not have done so. She reported that according to court testimony from Building Inspector Tom Wingard and Town Attorney Jaime Veara, over the years numerous reconstruction projects has been approved on similar roads, including some on Stephens Way. What distinguished this case was that the Board of Selectmen sent it to the Cape Cod Commission for review as a Development of Regional Impact [not precisely true; what the Bd. of Sel. did was ask the Cape Cod Commission to consider whether or not it should review the project as a DRI]. The Commission which doesn’t usually review single family houses, began a review but released the case upon agreement with Kline that the historic Jenness house would not be demolished and that a conservation restriction on all but “a small building envelop” would be created. As a result, the Kline’s could not demolish and reconstruct their house as others had done. She indicated that the Kline’s were willing to make improvements to the road, and later, in her concluding remarks, that, if requested by the Board, they would be willing to request a Special Permit for the building. 

Chris Lucy spoke on behalf of the Klines, stating that they followed standard procedures in obtaining their permits. Bob Weinstein spoke about the large number of houses on unimproved ways and said that the Planning Board was working on the definitions of Alteration and Street, and that the Kline’s shouldn’t be punished for the bylaw’s lack of clarity. Another person spoke about not incurring any further tax payer dollars for legal fees and that nothing would be gained by tearing the house down. Several letters were read on behalf of the Kline’s for similar reasons.

Attorney Bob Shapiro spoke on behalf of his clients, abutters and residents of Stephens Way. He spoke to points of law in terms of what the ZBA could do at this time (later confirmed by Veara) and later about his clients’ standing, which had been challenged by Ms. Tillotson. He also reminded the Board that Ms. Tillotson had admitted that the Klines took a risk that in retrospect they shouldn’t have. 

Joanne Barkan spoke eloquently about (1) the need to enforce our laws, (2) that people with money shouldn’t be able to get around them because of the expense of defending the laws, (3) that Weinstein is using scare tactics to imply that others on similar roads were breaking the law, when the fact is the court’s interpretation of our bylaw wouldn’t be retroactive, and (4) that she and abutters had standing as they were part of the early case against issuing the Building Permit. In response to Art Hultin’s challenge that there was no detriment to them, Jon Friedman spoke about the safety issue and need for emergency vehicles to have access. John Van Kirk also spoke about the safety issue and that while the Stephens Way residents tried to maintain the road, it was nearly impossible to widen it, also in response to Hultin’s charge that they wanted to keep the road unimproved as a basis for not allowing others to build. He also stated that the Kline’s could be fined to help cover the town’s legal expenses.

Upon concluding the part of the hearing for the accepting remarks from the
public, Alan Efromson opened the ZBA’s public deliberation session. Buddy Perkel spoke first and likened the case to getting a speeding ticket, where telling the officer that someone passed you and was going even faster doesn’t carry much weight when you are breaking the law. Buddy picked up on Tillotson’s admission that the Kline’s should not have taken the risk.

Alan Efromson researched the 1989 Definition of Street, and found that it was presented at Town Meeting to prevent further development on unimproved back roads, and in particular a proposal on Stephens Way, and that it passed unanimously. He stated that by asking the ZBA to disregard this bylaw, they were being asked to go against what was approved at Town Meeting. He stated that any citizens could request enforcement of the Zoning Bylaw and that standing was not a requirement. Alan also mentioned that regardless of what decision the ZBA made, the town would be faced with future legal costs.

Art Hultin read the purpose of the zoning bylaw (including protecting welfare and safety and being consistent with the comprehensive plan, etc.) and then expressed his opinion that the January 20, 2012 enforcement order by the Building Commissioner was not consistent with the purpose of the Bylaw. His was the one vote against upholding the Building Commissioner's order to revoke the building permit. (Note: the BC had also ordered the building to be removed, and though the ZBA has gone on record in favor of that remedy, that matter will ultimately be decided by the courts).
            Jaime Veara spoke briefly to answer procedural questions.

---------------------------
Caroline Rand Herron
Box 66 53 Old County Road Truro, MA 02666
(508) 349 3864
cell: (917) 670 5036
e-mail: crherron at peoplepc.com


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