ZBA reversal triggers controversy on board appointments

Local landowner caught in the crossfire

When Mark Robitaille bought the strip of land across from his house on Bay Road he knew it wouldn't be easy to use it for a building lot.

The 1.6-acre parcel had belonged to the town, confiscated in 1985 for non-payment of property taxes. He bought it "as is" in December of 2009 and Robitaille said he was never told it wasn't a "buildable" lot by zoning standards.

"I wasn't told anything," he said.

But he and his wife Janet began making plans for building a two-bedroom home on the long and narrow lot, hoping eventually to sell their bigger home and relocate. They hired a septic design engineer, secured a Department of Transportation permit to cross Bay Road with a sewer line, and were in the process of getting their state septic permit.

On March 23, by a vote of 3-to-2, the Robitaille's were granted a zoning variance from the town Zoning Board of Adjustments, needed because the only spot for a house was less than 75 feet from the brook that marks the back property line.

But while the Robitaille's were navigating the final hurdles for their septic system, the town fathers were working behind the scenes. Following what Selectmen's Chair David Nickerson said were "a couple of people who asked us to take a look at it," the Selectboard, after seeking a legal opinion from Town Attorney Christopher Boldt, asked the Zoning Board to rehear the variance request and it assented, granting the rehearing on May 11.

"We were not sure everything was done correctly," said Nickerson who said changes in state zoning laws effective Jan. 1, 2010 detail five criteria that needed to be specifically met, on a vote-by-vote basis, before a variance can be approved.

Those criteria are: if the proposed use would not diminish surrounding property values; not be contrary to the public interest; result in an unnecessary hardship for the owner, not deny substantial justice, or be contrary to the spirit of the ordinance.

Member Jim Wells votes against the variance both times in came before the ZBA.

The minutes of the March 23 Zoning Board meeting do not reflect whether or not these five specific criteria were discussed but Wells remembers there was no formal vote taken by the board on the individual criteria.

Zoning Board member Bill Whalen said he thought the variance was granted appropriately and fairly.

Regardless, a second hearing was held on June 22 and this time the board, made up of several different members, said "no".

Despite strong words contained in a memo from attorney Boldt, a majority of the five members present, Chairman Jim Van Valkenburgh, Tim Grant and Ann Littlefield still felt Robitaille had met the heavy burden of proving there was a hardship inherent in his land, different from that found on nearby parcels, that made meeting the letter of the zoning ordinance unrealistic. Wells and Don Bormes said he had not.

All five members and alternates voting agreed the house that Robitaille wanted to build would not diminish neighboring property values but Bormes and Littlefield, in the minority, said "yes" to to the question of whether or not the building project would be contrary to the public interest. Wells and Bormes, likewise, provided a minority of "no" votes on whether or not granting a variance would provide substantial justice.

The final vote came on the "spirit of the ordinance" question and Wells, Bormes and Littlefield cast the decisive three "no" votes that reversed the variance.

Whalen voted to grant the variance in March and didn't attend the June 22 meeting because he said his term had expired and he wasn't sure if he was still a member.

"We run a fair ZBA," he said, adding he believes the selectmen have issues with the ZBA that run deeper than just the Robitaille's variance.

As Whalen explained it, his term expired on June 1 along with that of ZBA Vice Grant and alternate Littlefield.

All three were appointed three years ago by the Board of Selectmen — the same three men who still fill the seats, Nickerson, Andrew Livernois and Steve Ober.

"Someone, somewhere has an issue with the ZBA," Whalen said, adding that the same selectmen now require individual meetings with prospective board members prior to appointment, or in this case, reappointment.

He also questions a statement Livernois made at the June 9 Selectboard meeting about his concerns with how the Zoning Board operates, how they liberally grant variances if no one objects.

Both Whalen and Wells deny the allegation.

"The ZBA is kind of like a higher court," said Wells. "The implication to some people is that the selectmen are trying to drive to boat."

"We don't have control [over the Zoning Board] and we don't want any," said Nickerson defending the interviews as something recently applied to position on all town boards.

At the last meeting, he said selectmen interviewed prospective candidates for the Conservation Commission. while tonight they will interview a candidate for the Planning Board.

"We just want every board to run the way it is supposed to [run]," he said.

"I could understand it if it was a different group of selectmen or if we were new appointees to the Zoning Board," Whalen said, adding that he refuses to subject himself to an interview and if he is not reappointed because of it, so be it. Grant announced last week that he would not seek reappointment because he would not be able to attend regularly. Littlefield could not be reached for comment on Tuesday.

As for the Robitailles, they have hired a lawyer and have applied for an tax abatement. Right now he said the property is assessed for $66,600 but without a building permit it's worth about what he paid for it — $7,500 — probably less.

"I just think this really stinks," he said noting that his 40 feet from the river is no closer than most of the houses on that same side of Bay Road.

Because the property now not contain wetlands, Department of Environmental Services compliance officer Stacey Humbold said there are no state issues with the location and the town zoning ordinance that requires it be 75 feet from the river is the only one that applies, aside for the septic permit and the road crossing which are not in her jurisdiction.

"I don't get it," said Robitaille. "The distance [setback] is no different than most of the other properties and the town sold me the property to get the taxes."

"I just don't get it."