Friday, October 1, 2004
Planning Board may sue Board of Appeals over decision
As the board of last resort in granting exceptions to our local zoning bylaws, the Board of Appeals frequently faces tough decisions that are not universally popular. Denial of a variance or permit frequently brings the threat of a lawsuit from a disappointed applicant. This week the BOA learned that it may be sued for granting a special permit, and the litigants may be the Carlisle Planning Board or the Selectmen.
Earlier this month, the Board of Appeals struggled with an application asking for a variance to the bylaw which states that a house on a nonconforming lot (less than two acres) may not be expanded by more than 50% of its original square footage. After considerable debate, they granted a special permit to Albert Gould to tear down the existing small house and replace it with a new house and garage, within a 65 by 65-foot footprint, no more than two stories, on his 1.3 acre lot on Westford Street. (Mosquito, September 24, 2004)
The Planning Board was very unhappy with this decision which violates the 50% expansion limit. At its September 27 meeting, the Planning Board prepared a letter to the Selectmen outlining their concerns and asking the Selectmen to take action. "The ruling by the Board of Appeals was flawed," said member David Freedman after the meeting. "They had misapplied the zoning bylaw ... The applicant asked for a variance from the two-acre requirement, and the BOA instead gave him a special permit. This set a bad precedent, that nonconforming lots are fair game for teardowns. [The Planning Board] is concerned," continued Freedman, "that Carlisle will become million-dollar homes and 40B and nothing else .... We feel it is important to maintain housing diversity."
Freedman believes that the BOA was concerned that it would be sued by Gould and wanted the new house to be acceptable to the neighbors. Gould has already installed a large five-bedroom, mounded septic in front of the existing small house which the neighbors feel looks completely out of place. A larger house would at least dwarf the septic mound.
On Tuesday Freedman met with BOA Chair Cindy Nock, Planning Administrator George Mansfield and Selectmen Chair Tim Hult to discuss the Planning Board's concerns and how the decision may be reversed — not a simple process.
Once a decision is filed with the Town Clerk, said Hult, it can't be reversed by the Board of Appeals. There is a 20-day period after the date of filing when an appeal may be made to the courts. That grace period expires on October 13. "If no one files an appeal, even if the decision was illegal, after 20 days it stands," said Freedman.
Hult said that the Selectmen are seeking guidance from Town Counsel before deciding how to proceed. Nock declined to comment on the fallout from the BOA decision. "We are having a lawyer review it, and I will wait for that," she said.
© 2004 The