The Board of Selectmen moved decisively Tuesday night to remedy a potential and recently discovered zoning violation in the schematic design for the renovation of Town Hall that threatens to delay the start of construction.
In a rare unanimous vote on the project, Selectmen directed the Town Hall Building Committee to apply to the Zoning Board of Appeals for a variance that would allow the renovation to proceed.
A recent review of the site plan for Town Hall revealed that the 1872 building is located closer to the centerline of Ayer Road than the 75-foot setback required by town bylaws. While Town Hall predates that rule and is therefore exempted, a planned addition to the building is not. Moreover, the new structure may also exceed a 35-foot height restriction, due in part to the dimensions of the elevator shaft it will house.
‘I’d go for the variance’
In cases like this, state and local laws allow property owners—in this case the Selectmen—to claim a hardship and appeal to the Zoning Board for an exemption from the law. If the variance isn’t granted, Selectmen also have the option of petitioning the Planning Board for bylaw change, which, if approved, would then have to be ratified by a Special Town Meeting.
Tuesday night, Bragan recommended the Selectmen do both, in parallel.
“It’s a belt-and-suspenders approach,” said Selectman Marie Sobalvarro. Because either track could fail and because “time is money,” she said, following two tracks would “keep the project moving forward.”
But Selectman Ron Ricci disagreed, and was eventually joined by Tim Clark and Bill Johnson as the discussion continued.
“I think we need to do one [not both],” said Ricci.
The problem, he said, if the Zoning Board asks Selectmen, “‘Is this a hardship for you,’ we’d say ‘not really, because if you don’t grant us a variance we can go to [the Planning Board]'” and ask for a change to the bylaws.
Ricci recalled a hearing some years ago, a case in which the Zoning Board turned down a hardship request by a phone company that wanted to locate a too-high cell tower on town land. The zoning board refused to grant the variance because the company admitted it had other locations available to it, which led the panel to conclude that the situation was “not a hardship.”
“I’d go for the variance,” concluded Ricci.
“I would not do that alone without engineering assistance,” said Clark. “I would retain another engineering firm to help us with that application, [someone] who’s familiar with the town and has actually succeeded in obtaining variances from the ZBA.” He said he could name two.
The building committee, added Clark, has the authority and money “to pull in whoever it wants.”
“I want to be in agreement with my friend Mr. Clark,” said Ricci, which led Selectman Bill Johnson to comment, to laughter, that “this is an historic occasion.”
Ricci proposed that the town engage an outside engineering services firm and postpone until a future meeting any discussion of broader changes to zoning regulations for town center that might benefit Hildreth House, the old library, and other municipal buildings.
Chairman Lucy Wallace argued that Town Hall project manager DTI and architect LLB would be best qualified to help write the application for variance, and she noted that contracts with both were nearly ready for signature.
But Johnson “respectfully disagreed.” DTI and LLB would not add value, he said.
“My understanding is that what’s left for the package is making the hardship case that we be granted relief. What we need is not further design information or engineering information,” he said. “We need to describe the hardship and why we should be granted relief.”
Besides, Johnson added, “DTI’s credibility has been hurt.”
“We haven’t seen the zoning analysis that tells us what we need,” added Clark. He said the Board had been waiting for that information for weeks. But Bragan said the analysis, short of a written report from town counsel Mark Lanza, was more or less done, with one violation identified and the potential height violation still under study.
“I think we have an opportunity to prevail,” said Clark. “We should not commit dollars to other design work…until we have a variance.”
On a motion by Ricci and Johnson, the board unanimously directed the Town Hall committee chaired by Pete Jackson “to apply for a variance” and to hire any legal and engineering expertise it needs to prepare their case.
In an email to the Press on Wednesday, Jackson said he had not had time to assess the new charge to the committee.
“Right now I have more questions than answers until I can discuss this with the other members of the committee. Tim Bragan [a voting member of the five-person committee] had [already] started the variance process so we would have to pick up where he leaves off,” Jackson said.
When the zoning board receives a request for a variance, it must hold a hearing within 30 days and decide whether to grant it within 45 days. After that, any member of the public who can show harm caused by the decision has 20 days to appeal it and take the case to land court. A court case could tie up the project for another 6 to 8 months, Bragan told the Selectmen Tuesday evening.
‘Was it an oversight?’
Earlier in the meeting Tuesday, Selectmen heard harsh criticism from former Selectman and developer Leo Blair.
“It’s just inconceivable to me,” he said, “that nobody asked the question about zoning, because when you do a project like this, that’s where you start. You start with a site plan and you start with the questions, ‘What can we do’ and ‘What can’t we do?'”
“Was it a conscious decision? Was it an oversight?” he asked.
“We’re mindful of the issues that need to be addressed,” responded Wallace. “We’re not overlooking them.”
But Selectman Ricci said he thought her answer was not accurate.
“Somebody was supposed to determine if the building met a multitude of requirements,” he said. “That was not done. …The board needs to figure out what went wrong, and what we have to do to make sure it doesn’t happen again.”
