Building Inspector, Planning and ZBA struggle with questions over variance process (and refute accusations of collusion and subversion of process)

by beth on September 29, 2016

Last night, Attorney William Pezzoni argued that the Town was subverting due process. Although the Zoning Board of Appeals disagreed with his charges, they may have set precedent changing Town procedures for future variance applications. And there is concern about a potential loophole for developers.

Pezzoni’s complaint stemmed from the rejection of an application for a Use Variance to install a digital billboard. Building Commissioner Mark Robidoux refused to accept the paperwork. He explained that the applicant needs a report from the Planning Department before applying to the ZBA.

According to Pezzoni, bylaws say the ZBA is unable to “act” on the application until they receive Planning’s report. Bylaws don’t specify rejecting the application. The key difference is that acceptance of an application “starts the clock” on the approval process. He believed he should have been able to schedule a hearing with the Planning Board after the application began.

Pezzoni began his hearing in front of the ZBA with accusations of improper collusion and the trampling of his client’s rights. The first charge was lobbied against new Chair Andrew Dennington and Planning Board Chair Don Morris. The second at the entire Planning Board.

The attorney’s anger was over discussion at the Planning Board’s meeting on Monday. Morris told fellow board members that he had discussed the appeal with Dennington and had a great conversation. The board then deliberated on what to include in a letter to the ZBA.

In the end, Planning’s letter went beyond simple support of the Building Inspector’s decision. They argued against allowance of the billboard based on documents they reviewed of the plan. The documents weren’t submitted to them by the applicant. The board accessed them as public documents that had been submitted to the Building Department/ZBA.

Last night, Dennington rejected Pezzoni’s request that he recuse himself. (That followed the Chair’s urging for former Chair Leo Bartolini to recuse himself.)*

Dennington defended that he contacted Morris after seeing the matter on Planning’s agenda. He wanted to find out what they were doing. He maintained that he had an open mind on the issue. Later, Morris angrily refuted the charges. He pointed out that Pezzoni had no idea what was discussed on the call.

He then responded to Pezzoni’s assertion that they were wrong to form an opinion on the project without allowing a presentation. Morris claimed the board was confused about what the process would be at the ZBA hearing. If the ZBA determined they should vote on the application, Planning wanted them to have their report. The Chair said they were willing to rescind the letter so that the applicant could make a proper presentation. 

After internal discussion and questions, ZBA members came to agree with Pezzoni on the process. But they worried about precedent setting and possible repercussions.

Planning Board Member Meme Luttrell worried that supporting the appeal was setting precedent. And she believed there could be a loophole for applicants. If the ZBA can’t act until they receive a report from Planning, does that mean they can’t reject it? And if the applicant doesn’t go before the Planning Board in time for them to report before the approval deadline, does that trigger constructive approval?

Dennington, an attorney, rebutted that they were more vulnerable under current process. A court could rule that the clock should have already been ticking on an incorrectly rejected application – and therefore the project is constructively approved. But, he believed that the board has the right to continue hearings, or to reject the application if the applicant won’t cooperate.

Before voting, the board questioned Pezzoni on his desire to start the clock on the original application date. Pezzoni assured that he would grant an extension on the approval period.

After clarifying that no Town officials acted improperly, the Zoning Board of Appeals voted to accept the application. (That doesn’t mean the variance was approved. Just the right for the petitioner to apply for one.)

*Bartolini is an abutter to the business seeking the variance. Bartolini reluctantly agreed to recuse himself. He argued that given the question was on process, not the Use Variance, he didn’t need to recuse for last night’s hearing. But Dennington urged that he do it for appearance of conflict and to promote transparency. Pezzoni tried to convince Dennington to keep Bartolini on the board. Then he turned on Dennington, pushing for his recusal.

1 Rob September 29, 2016 at 1:04 PM

Who’s the sign for? and if they need a “Use Variance” it shouldn’t be built. The only reason they even applied for something not allowed is because our town bylaws are able to be gamed, and a lot of town officials simply are not qualified or competent enough. And don’t give me that “its only a part time job” line.. We deserve a full time effort from elected and appointed officials. Are my taxes only part-time? We pay for and deserve better.

2 beth September 29, 2016 at 1:13 PM

In my editing of the article, I accidentally removed (instead of moving) the “who”. The applicant is building an already approved auto repair shop at 6-8 Turnpike Road. The Planning Board approved it, but obviously without the digital billboard.

Pezzoni claims they will make a case as to why the digital board is better than other billboards in town.

At this point, use variance is allowed – so they have the right to pursue it.

Soon, Special Town Meeting voters will decide whether the Town will continue to allow use variances. (Which is likely why the applicant wanted the paperwork accepted prior to that meeting. Pezzoni is very aware of that pending vote.)

3 Steve September 30, 2016 at 10:08 AM

Hi Beth, 6 and 8 Main Street are the two properties on either side of Park Street next to Mauros Market on one side and Latisquama Road on the other. Do you mean 6 and 8 Boston Road?

4 mark dassoni September 29, 2016 at 2:57 PM

The selectmen+ Planning boards are doing their jobs ,ZBA are not so elected there not appointed, ZBA are anti-citizens and for development at all cost. Mark Dassoni.

5 Pat D September 30, 2016 at 9:49 AM

Is an auto repair shop perhaps going where the old gas station was on the corner of Main and Newton? That’s going to look lovely for downtown Southboroough!! NOT!!

6 beth September 30, 2016 at 10:07 AM

It’s at 6-8 Turnpike Road. That’s between the eastbound Red Barn Coffee and the off ramp for Crossing Boulevard.

7 Pat D September 30, 2016 at 11:15 AM

That’s much better. In your Sept. 29 post above, you have 6-8 Main St. You may want to change that. I could not imagne a Main St. auto repair shop much less a large billboard!!

8 beth September 30, 2016 at 12:06 PM

Thanks for pointing out. I couldn’t find where all the confusion was stemming from! I just fixed that.

9 YY September 30, 2016 at 2:13 AM

I think Planning Board did right thing here. Maybe new ZBA Chair Andrew Dennington is right about “[a] court could rule that the clock should have already been ticking on an incorrectly rejected application” (quoting Beth here) but somethings still don’t add up for me. And I think Planning Board Member Meme Luttrell is on to something, at least with respect to the special permits (not too sure about use variance).

On principle, I actually think is admirable that Attorney William Pezzoni (or at least his client) is in insisting on correcting a procedural problem but he was arguing something to the effect of it being more expedient and that doesn’t hold any water with me. If it was me, after being told by Building Commissioner Mark Robidoux that a report from Planning Board was needed, I would had went to Planning Board and maybe concurrently appeal the refusal to accept original application.

It is not crystal clear what “act” means in our bylaws but I think it could be argued to include holding a public hearing on application and making a decision on application. And MGL does say special permits are constructively approved if “final action” is not taken within prescribed time limit. Although extensions are allowed, they require written consent of both petitioner and ZBA and it can’t be unilateral. Given that and it seems applicant still have not gone to Planning Board, it could well been case that ZBA is barred from acting in a timely manner. And that is the only way I can make sense of sequence actions by applicant. Also, I don’t see Mr. Pezzoni agreeing to extension change any of that because, now with written report in hand, ZBA can act (as in ZBA can now deny special permit if extension is not given).

I don’t see anywhere that says report from Planning Board must affect decision of ZBA so given all that, is best for the town that Planning Board issued a report and allow ZBA to act. I am not sure if the letter itself contain language to rescind report and invite applicant to make presentation but given report doesn’t have any real weight, I don’t think it really matters.

In terms of precedent setting, I think ZBA should simply go to Planning Board and get a cookie cutter report just so ZBA can reject applications should applicant not go to Planning Board within a reasonable amount of time and thereby not give ZBA enough time to consider application properly.

10 mark dassoni October 8, 2016 at 10:29 AM

Clock starts clicking when plans are stamped and dated ,special permits and site reviews can be discussed by planning board ,variances are only a condition talk through by planning board ,ZBA can ask but not act on them without planning board”s ok, the word “act ‘ is a vote by both boards yea or nay to proceed progress for plans to advance, overall it a procedure that connects progress for boards to follow for together .Mark Dassoni ,YY-Beth-Meme all are right in the way you said it here.

Previous post:

Next post: