Friday, November 11, 2005
Revisiting Gould v. Board of Appeals
Albert Ira Gould was back before the Board of Appeals along with Town Attorney, Richard Hucksam to discuss his remanded application for work at 1230 Westford Street.
Original BOA decision
In September 2004, Gould had appeared before the Board of Appeals asking for a variance to the bylaw that states houses on non-conforming lots (less than two acres) may not be expanded by more than 50% of their original square footage. Gould's lot is 1.3 acres. The board was concerned that granting a variance would allow the applicant to build a home without any conditions as long as it was built within the required setbacks. They decided to grant Gould a special permit instead to construct a house and garage at 1230 Westford Street within the 65'x65' footprint as shown on plans with the following conditions:
• The structure is limited to two stories and a basement
• The structure cannot be enlarged at a future time
• The total floor area of the proposed structure shall not be more than 2870 square feet, 50% more than its present size of 1913.
Planning Board's objection
The Planning Board, however, took issue with the BOA's decision calling it "flawed." According to David Freedman, Chairman of the Planning Board, "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 non-conforming lots are fair game for teardowns." (See "Lawsuit Seeks to Overturn BOA Amended Decision," November 12, 2004, available on the Mosquito web site.)
After discussions with the BOA, Selectmen, Planning Board and Associate Town Counsel Richard Hucksam in October 2004, the original BOA decision was "clarified" and amended by adding two conditions on the Gould project: 1) the total floor area of the proposed structure cannot exceed more than 150% of the total floor area of the existing structure; and 2) the total floor area of the existing structure is specified as 1913 square feet, based upon the assessor's records, and is limited to a total floor area of 2870 square feet for the proposed structure The new document stated, "The purpose of this modification is to correct the Board of Appeal's inadvertent omission of these conditions so that the record reflects the board's true intention."
Gould subsequently decided to file a complaint in Middlesex Superior Court on November 2, 2004 against the Town Clerk, members of the BOA, Town Counsel, Richard Hucksam and his firm, Deutsch/Williams. In his complaint, Gould asked the court to declare that the original decision of the BOA as final, since it was not appealed within the 20-day appeals period. Furthermore, he asked that the subsequent "amended decision," which limits the total area of the new house to no more than 50% greater than the existing structure, to be void, and requested monetary damages.
Case remanded back to BOA
After sitting on court dockets for a year, the Gould case was remanded back to the Board of Appeals for further consideration by the Superior Court judge, with a strong implication that the judge would rule in favor of Gould if the matter could not be ultimately resolved by the BOA, according to Cindy Nock, chair of the BOA. Discussions between the attorneys, which included Gould as he was representing himself, and the Board of Appeals, yielded a motion to be voted on at a public BOA hearing.
BOA's new decision
At Thursday's hearing, and after heated discussions between Gould and members of the BOA, the board ultimately decided to grant the motion, which ordered the BOA:
• To vacate the "Modified Decision on the Petition of Albert Ira Gould" dated October 13, 2004
• To modify the "Decision on the Petition of Albert Ira Gould" dated September 23, 2004 by adding a paragraph that limits the total floor area of the new home not to exceed 3600 square feet, exclusive of the unfinished attic and cellar space. The applicant is required to submit a plan, and any other documents required, to the Building Inspector showing the total floor area of the proposed structure, exclusive of the attic and cellar space, that will not exceed 3600 square feet.
David Freedman, who was present at Thursday's BOA hearing as a private citizen, feels that the Gould decision is "an affront to Carlisle citizens who have stuck to the letter of the bylaws, expanding their homes within the 50% rule. If the board is going to bend the bylaws, they should do it for people who live in town, not for developers."
© 2005 The