Applicant Withdraws Plans for Second Duplex on North Pleasant Street

Report On The Meeting Of The Zoning Board of Appeals, September 28, 2023

This meeting was conducted over Zoom and was recorded.

Present
Steve Judge (chair), Craig Meadows, Everald Henry, and Sarah Marshall and Hilda Greenbaum (associate members)

Staff: Rob Watchilla (Planner) and Rob Morra (Building Commissioner)

Prior to the meeting, Thomas and David Casey requested withdrawal without prejudice of the special permit application for a nonowner occupied duplex containing two units of four bedrooms each (eight bedrooms total) to be built on a parcel already containing a seven-bedroom duplex at 798 to 800 North Pleasant Street. The project had raised several issues of concern from the Zoning Board of Appeals (ZBA) and neighbors when it was first presented in July. Withdrawal without prejudice means the applicants can bring the proposal back to the ZBA at any time in the future, without having to wait two years as they would if the application had been denied.

Problems with the management and maintenance of the existing duplex, concern about a second curb cut and excess traffic on the narrow Old Town Road, lot coverage, and the planned location of a PVTA bus stop directly in front of the current curb cut on North Pleasant Street were not given as the primary reason for the withdrawal request; according to Building Commissioner Rob Morra, the primary reason is whether a second duplex is permitted on the site.

Morra said that Section 3.01 of the Zoning Bylaw states, “The development or operation on a single lot of more than one dwelling or more than one of the Principal Uses described in Section 3.3 is expressly prohibited except where the Principal Uses are clearly complementary to each other, or where otherwise provided by this Bylaw.” He noted that a second single-family home on the parcel is definitely prohibited, but the ZBA has sometimes permitted a duplex to be built on a lot containing a single-family home and vice versa. In this case, the existing duplex is a primary use, so a second duplex would be a second primary use. He wants to obtain clarity from the town attorney on the meaning of “complementary” use in the bylaw (see also here). Because of the lack of clarity in the bylaw, Morra supported the withdrawal of the application.

The Caseys are now represented by Attorney Tom Reidy of Bacon, Wilson, who said that the brothers “want to go back to the drawing board and decide what they want to do with the property” and noted that the withdrawal would give them time to show that the management and maintenance issues have been resolved and to work with the neighbors to allay their concerns. He said that he wasn’t sure if the two will present a similar or another proposal in the future.

While ZBA members Steve Judge, Craig Meadows, and Sarah Marshall supported the withdrawal without prejudice, Everald Henry and Hilda Greenbaum had reservations. Henry said it is the board’s obligation to apply the Zoning Bylaw according to its interpretation of it, and that the ZBA should hear the application to its conclusion and make a determination.Greenbaum stated that she was concerned about the application even before it was discussed by the board in July and that the bylaw language discourages people from dividing up their property this way. Morra noted that the parcel lacks the frontage and area for a second lot.

In public comment, Josna Rege represented the feelings of 45 nearby residents who signed and submitted a letter to the ZBA stating  that they do not want the project to come back to the board. She said the neighbors hope for a final determination on the application.

In deliberation, Greenbaum thought the withdrawal was premature because the ZBA has not received an opinion from the town attorney about the term “complementary” yet. Henry noted that the withdrawal would just be “kicking the can down the road.” Judge said that he does not know if the bylaw even allows the board to consider this application, and that denying the withdrawal seems punitive. Morra stated that many parts of the Zoning Bylaw, which was largely written in 1964, are unclear, and that amendments require a two-thirds vote of the Town Council and take several months or more to pass. He worried that rejecting an application because of a lack of clarity in the bylaw would subject the town to litigation from this or other applicants.

The ZBA voted 5-0 to accept the Caseys’ request for withdrawal without prejudice. Marshall requested that Morra inform the ZBA about what he learns from discussions with the town attorney. Planner Rob Watchilla said he will make sure that the topic is placed on a future agenda.