Concerns raised about Building Permit, precedent, and ZBA process over “monster” Sports Barn

by beth on August 25, 2021

Post image for Concerns raised about Building Permit, precedent, and ZBA process over “monster” Sports Barn

Above: Neighbors are questioning the Town’s decision to allow a homeowner to build a large barn for sports and entertainment in a residential neighborhood. (contributed image)

A resident on Presidential Drive is appealing a Zoning Board of Appeals decision related to a large addition being built next to her home. She argued that they should have overruled a Building Permit issued by the Building Commissioner. In addition to bringing the issue to court, she is asking other Town Boards to get involved.

Resident Laura Scott also asked me to alert readers about the dangers of a precedent that could be set by the ZBA’s decision.

ZBA members agreed that the decision to allow the large Sports Barn on a residential lot could set a dangerous precedent. The difference was that they described the problem as not under their purview. Whether it is an issue of the Commissioner’s interpretation of zoning code or the need to rewrite the code, they opined the issue should be looked at by the Board of Selectmen.

35 Presidential Rd barn through bedroom window of 37 PresidentialAt the heart of the matter is a 35 foot tall building that was raised behind a home at 35 Presidential Road. Scott is arguing that the structure “towering” over her home next door* doesn’t comply with Southborough’s zoning bylaws. (See photo right for Scott’s bedroom window view.)

The building was originally proposed as a 20 foot high building on the property. Scott accuses that the design was altered to bypass the ZBA. The developer added a connection from the barn to the garage to get a Building Permit for an addition. The owners’ attorney claims that the connection was made to allow the family to access the property in the winter without going outdoors.

Scott filed an appeal this past spring. When she began to realize the scale of the planned building, she looked into the permit. To get the information, she was required to file a public information request. Subsequently she filed an appeal of the permit with the ZBA. At that point, the hearing was delayed 90 days before the ZBA convened. 

During that time, the owners (Desheng Jiang and Jinyun Hian) and developer chose to proceed with the building.

Attorney Ginny Kremer represented Scott at the hearing asking the ZBA to overrule the Building Commissioner’s decision. She told the board that the zoning bylaws don’t just apply to the physical structure, but also its use. She argued that the barn does not fit the allowed accessory definitions. It is not  is not intended for residential use for habitation and isn’t a “customary use” under the law. She described it as rivaling the size of single family dwelling to which it purports to be attached. It includes an indoor basketball half-court, two locker rooms, and an entertainment lounge.

Scott wasn’t the only resident objecting to the barn raising. Dorianne Jasinski, the neighbor on the other side of property, voiced her upset to the ZBA over the large building constructed next to her backyard.

ZBA members agreed that the building was out of scale. They also indicated that they didn’t buy it as being a true addition/accessory building. Yet, they expressed discomfort at “second guessing” the Building Commissioner whose job is to interpret the Town’s bylaws.

Member Michael Robbins used a “walks like a duck” analogy to say that the building doesn’t appear to be an accessory building in his eyes. Yet, he opined that it fit Town Code and it was within the Building Commissioner’s authority to grant the permit. He posited that the problem may be in the language of the Town Code. He warned it could be difficult to fix since Town Meeting tends not to like changing the zoning bylaws.

ZBA member David Williams described the homeowner and his developer as having driven a truck through a gap in the Town Code. Member Debbie DeMuria suggested the issue should be raised with selectmen since they oversee the Commissioner. The board agreed that a communication should be sent to the BOS asking them to take a look at the bylaw.

Much of the discussion between members took place after the hearing was closed. That prohibited Scott and Kremer from rebutting members’ statements that night.

Following the ZBA’s unanimous decision to deny the request to pull the building permit, Kremer issued a letter to the ZBA, Board of Selectmen, the Planning Board and Board of Health. In it, she argued that second guessing the Commissioner was exactly the ZBA’s role. She excoriated the board as being “ill informed of their duties”. She argued that they shouldn’t have voted on the matter without soliciting advice from Town Counsel. 

At the August 17th BOS meeting, Scott addressed the issue during public comment. She asked the Board to have Town Counsel review the ZBA’s decision and process, and to order work to be put on hold while he conducted the review. She told the selectmen that she is litigating the specific decision, but also felt they needed to look at the precedent being set. She also requested the Board of Health to review plans to see if they comply with septic system laws given changes made by the previous owners. And she asked the Planning Board to consider if it should review plans for the Sports Barn.

Prior to her comments, BOS Chair Lisa Braccio warned that the board doesn’t generally respond in meetings to public comment. (The Board has often made some responses to public comments, even if just a promise to put an issue on a future agenda. Still, lack of selectmen’s response on this issue isn’t surprising since the matter relates to a lawsuit involving the Town.)

Earlier this month, Scott filed her appeal in Worcester Superior Court. It requests the decision be annulled and an order be issued to remove the barn. They are also asking the Board to declare that Town officials and the ZBA acted “with gross negligence and bad faith” and award the plaintiff for attorney fees and costs.

*Because of the topography, although the Barn is 35 feet high, Scott says it’s the equivilant of approx. 45 feet above the grade of her abutting property.

{ 17 comments… read them below or add one }

1 Mike Ferris August 25, 2021 at 7:37 PM

Nice to see rich people fighting! Pardon me can you please pass the gray poupon? Hey Laura Scott The Eagles have this famous song, “Get over it”. Why don’t you put your house up for sale, take the profit, and let someone else build an even bigger dream home on your diminished view. Who the heck are you to impede someone else dreams of the land they own. If it had bedrooms and living space it would be the same as the rest of them. We have plenty of space and views up here in Westminster, happy to show you around and what Southboro was like 40 years ago. Plenty of views. Not as many cows as Sears Rd had but we have a lot of good land.

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2 Djd66 August 26, 2021 at 7:33 AM

The building permit was issued. I can’t imagine the size of the lawsuit the town would be dealing with if they were forced to stop construction. Plenty of people look at their neighbors. I would suggest making friends with them as from the looks of the photos above- you do live close to them. Alternatively, plant some bamboo along the property line.

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3 roxanneperro2@gmail.com August 26, 2021 at 5:48 PM

“Plant some bamboo”. That was a racist remark. Better check yourself next time.

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4 Louise Barron August 26, 2021 at 8:14 PM

“Plant some bamboo”. What a bigoted, racist remark. Beth should not have printed this. .

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5 beth August 27, 2021 at 10:55 AM

I don’t agree with assumptions that the remark as racist.

Bamboo is a fast growing, dense plant that some people use as a privacy buffer.

Living bamboo can be an excellent choice, both as a noise barrier and as a privacy screen. The ideal way to buffer street sounds is to interpose a mass of sound-absorbent material between your home and the street. A bamboo privacy hedge can form just such a mass, because its canes grow together so densely, by nature. It also offers the benefit of doing the job very quickly, since no other hedgerow plant grows as quickly as bamboo. And because the plants grow so densely, bamboo is almost as good as a solid fence as a privacy screen.

If it was directed at the family who is Asian, I may have suspected intent. But the suggestion was directed at the white neighbor who is upset about the building next door. It was part of a comment defending allowing her neighbors right to build a barn and suggestion that she makes friends with them.

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6 Tim Martel August 27, 2021 at 11:41 AM

I agree with Beth.

Whatever happened to giving people the benefit of the doubt? Innocent until proven guilty? Or does virtue signaling trump that now?

(wow, did I just zing them with a “trump” comment??? Oops. My bad.)

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7 Djd66 August 27, 2021 at 12:35 PM

I have no idea who is white or Asian. I do not know either of the parties involved. I have no idea what color, race, creed, political preferences and what toilet paper they use. Quite honestly, I could care less. If I wanted to block the view to my neighbor’s yard – I would plant bamboo. It happens to be a very fast growing plant that can serve as excellent screening- that’s all! People need to calm down on the racist banter!!

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8 bamboozled! August 28, 2021 at 9:52 AM

DO NOT plant bamboo!!!

It spreads – FOREVER

If you think bittersweet and poison ivy are noxious species, stay completely away from bamboo!

We had it in our yard, put there by a previous owner, as a privacy fence and once you have it, you cannot get rid of it – and it spreads.

As Nancy Reagan put it, “Just Say No!”

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9 Dean Dairy August 26, 2021 at 10:57 AM

The owners’ attorney claims that the connection was made to allow the family to access the property in the winter without going outdoors.

If human nature is any guide, that behemoth “Sports Barn” will soon become a very expensive laundry rack, just like that treadmill/exercise bike stuffed in the corner of everyone’s basement. :-)

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10 Kathy Cook August 27, 2021 at 12:22 PM

I know both Ms. Scott and Ms. Jasinski well. I have seen the structure and it is quite an eyesore from the Scott property. But I am writing due to my concern about the process up to this point. I have watched the ZBA meeting which dealt with Ms. Scott’s appeal of the building permit. I do not understand why town counsel wasn’t consulted immediately upon the filing to determine the ZBA’s jurisdiction over the permit. Town counsel was not consulted and the hearing was quite delayed. The hearing was a waste a time for all parties.

If the ZBA does not have the jurisdiction to overrule the issuance of a building permit – then Ms. Scott should have been informed of that fact upon filing instead of wasting three months during which substantial construction took place.

And to be even more blunt than Beth’s original coverage – it appears that this structure is being built to host Fay School basketball games. The plans call for seven additional parking spaces and home and visitors’ locker rooms. The owner has two children at Fay School who play basketball. It is not clear that the owners are even going to live in the house. They bought the house only after they determined that the structure could be built.

I also do not believe that the building commissioner gave appropriate credit to Ms. Scott’s and Ms. Jasinski’s concerns.

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11 djd66 August 30, 2021 at 1:33 PM

“it appears that this structure is being built to host Fay School basketball games.”

Do you have any actual proof to back this statement up? I seriously doubt that the Fay School will be hosting school sanctioned basketball games in someone’s house!

“The owner has two children at Fay School who play basketball. It is not clear that the owners are even going to live in the house. They bought the house only after they determined that the structure could be built.”

Again, how do you know this? Have you discussed their decision to buy this house and how much time they plan to spend there? And if this is actually the case – who cares??

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12 Alex Neihaus September 2, 2021 at 1:15 PM

Without all the facts, I can’t say what happened here. But I can speculate, based on my own recent experience with the Southborough Building Department. This department is, in a word, incompetent.

Here are some facts I _do_ know from my own recent experience with this department:
=> The Building Department issued a building permit for construction already underway based on the wrong plan and without requiring the owner to provide a proper plot plan.
=> It ignored, obfuscated and ultimately frustrated all attempts to correct the situation.
=> The department modified online records to reflect its own desired reality (I have screenshots to prove it). It failed to respond to attorney’s requests and made up “legal” process as it went along.

This department is out of control. Nobody in town should expect to be treated competently, expeditiously or, most concerning, fairly. Ultimately, I decided not to appeal to the ZBA because I assumed it would reflexively support the department. From Beth’s description of the facts here, that’s what happened. This incident almost precisely echoes my experience on a grander scale.

IMO, the root cause of this dysfunction Southborough’s chronically dysfunctional town governance: poor administrative leadership at the top that permits an environment in which incompetence rules. This unfortunate state is perpetuated by an echo chamber of the same people rotating through Southborough oversight roles, such as being a Selectman and/or working on a town committee. It’s a form of regulatory capture: the administration is protected from real accountability by obscuring and covering up the administrative disasters it creates. No Selectman or committee chair wants to make enemies – or even have testy relationships – with town employees who can frustrate and ignore them. So, the cycle of incompetence continues.

It may be our fault for allowing this echo chamber to persist. For many years, I felt it wasn’t fair to criticize from the stands. But take it from me, even if you try to better the situation by serving on a committee or two, you won’t be able to effect any real change.

When I first moved here 30 years ago, I was amused by the “nut cases” at Town Meeting who got up and ranted about the poor state of town government. The echo chamber would collectively roll their eyes – and move on. I figured I’d never get that cynical.

I was wrong.

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13 roxanneperro2@gmail.com August 29, 2021 at 11:11 PM

Another great call by the ZBA. No discussion with selectmen, no discussion with our town counsel, no discussion with the building inspector. This is the only type of building of it’s kind in town.
For attorney Gould and his client Mr. Jiang to compare their eyesore, and very questionable build with 13 Presidential is down right deceitful. I would expect more from an attorney. Then I ask myself why.
ZBA has again done a shotty job.

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14 Open Letter to BOS September 1, 2021 at 8:27 AM

To the BOS and commenters above: Like most matters, a quick read of governing law is the appropriate starting point. To Ms. Cook: Start by reading 174-25. The simple language of the bylaw makes the matter of “appeals” the jurisdiction and business (the actual job, function, and purpose) of the Zoning Board of APPEALS. This is so basic that it takes stunning incompetence for any town’s ZBA to miss that fact, if that was a question. It is the very basic function of the ZBA to examine and overturn, if needed, any decisions of any building inspector, including permits. This “checks and balances” process is part of any town structure.

Secondly, a quick read of governing zoning bylaw 174-8.2.D.4 is necessary and helpful. This new gargantuan, steel-framed industrial building (“sports” barn) is not a residential use. This is a separate use and structure on a residential lot in a residentially zoned neighborhood. It does not contain any bedrooms or living space. The assertion that the new construction is an “addition” to the residence and not an accessory building (which is NOT allowed) is nonsensical on its face. The bylaw defines an “accessory” building or use as “a building structure or use customarily incidental and subordinate to the principal permitted building or use, and not permitted by this chapter.” In this case, the principal permitted building is a residential home, and the only permitted use in the district is residential. The “sports” building is simply and clearly “incidental and subordinate to the principal permitted use” of the existing residential home. It is crystal clear that it is intended as recreational use, not residential living space. The plain language of the law rules that the new construction is not an “addition” to the house, because it is an “accessory” use and “accessory” building. In plain English, it is not a house, residential use, living space. As an “accessory” use, the accessory bylaw and regulation dimensions apply and the height limit is 17 feet. Hope this helps. Of course, the lingering serious problem here is that if any of this was misinterpreted or not read and applied correctly, the question of competence and or training is paramount. In any municipality, the ZBA must receive full training and be comprised of individuals willing to perform competently. Otherwise, the appointees should be replaced with competent individuals. That is the overseeing function of the BOS. The buck stops with the BOS in terms of accountability. Thank you.

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15 Open Letter to BOS September 1, 2021 at 3:52 PM

To the BOS: It is your accountability and responsibility to understand what your appointees on the ZBA are doing, how they are conducting themselves, and assess and address competency issues. See the Southborough Access Media tape dated 8/27/21 (show ID 1875), at the minute mark with 11.5 minutes remaining, until end of tape. There is a stunning PUBLIC discussion of withholding language of meeting minutes on a public matter, discussed in a previous public meeting on the Presidential Drive matter. Interspersed between votes on board structure, is a conversation questioning publication of public minutes to the public meeting held on 7/21/21. Various ZBA members apparently made damaging and compromising statements to their own controversial vote, then at this later 8/26 meeting actively discussed redacting their controversial comments from those public meeting minutes, thereby changing and or concealing comments due to litigation. Simply stunning. Unbelievable. One member suggests that as the matter is under litigation, the minutes “might be redacted” (btw, not the first time this same member has altered minutes), with the Chair incredibly speaking to “justifying the Board’s faith in you as Clerk.” If public meeting minutes are substantially and improperly altered or redacted, this may well be a clear violation of state open meeting law.

On a separate matter of questionable competency, interspersed in the same conversation, is the approval of a variance on Parkerville Road. With the exception of one member, the ZBA approved a variance of a previously denied (?!) lot, appealed, and the denial upheld in land court. The applicant came back with no new information, the ZBA rejected their hardship, and approved the variance! This is simply unacceptable in terms of recklessness and risk to the town. This has been a board well known for many years for its bad reputation surrounding rogue and controversial conduct. However, outright concealing and or altering minutes on already publicly discussed public matters takes the incompetence cake. As the appointing authority, the BOS is obligated to do something. An examination of the meetings, notes, and tapes is called for. It’s not like the BOS is not on notice. Take a look at this public information. For the sake of the town and in the interest of good governance. This town can do and deserves better than the jocular, cavalier, and unprofessional way the ZBA conducts itself. Serious risk and errors are the result. Do better!

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16 Open Letter to BOS September 10, 2021 at 1:39 PM

To BOS and those interested and following this article and the process regarding this “monster” sports barn: This is a serious zoning matter that has real life impacts on town homeowners. There is a process for seeking relief, via the zoning board of appeals, and court, if necessary. The town needs proper legal advice from sources that do not contort the law, make strained legal arguments that defy common sense, or worse, mischaracterize a party’s effort with denigrating or defamatory language.

While this “monster” structure creates controversy and apparently had to go to court, the town’s new town counsel jumps into the dispute with an opposition to a preliminary injunction that contains spurious and strained legal arguments and objectionable vitriol directed at one of the town residents! Why is he using stunningly unnecessary language to denigrate one of the parties?! The matters at hand are life altering to home life, drainage (causing flooding) and other serious TBD factors. Why diminish and denigrate? Why not just be constructive, useful, helpful? Attacking a town homeowner or any taxpayer doesn’t solve anything!!

Among the unnecessary snarky vitriol is: “the plaintiff’s self-righteousness over this matter is not grounds for inventing an entirely new category of building. . . “. Really? This is the best this town can do?? This legal counsel needs to be more professional. This apparently is the same “special” counsel who tried to defeat the anti-corruption Article 1, which re-affirmed the ZBA’s quorum requirement of 4 persons to hold a meeting. Without public knowledge or public discussion, this counsel attempted to “doom” Article 1, by putting forward his own legal opinion that was rejected by the voters, who overwhelmingly voted for Article 1. Fast forward, here we are with another narrative that spews venom by mischaracterizing one party’s legal right to object based on solid, straight forward legal grounds and common sense. The town made a change this year in legal counsel to benefit town residents with expanded and improved service. How is this an improvement? The taxpayers are NOT paying for attacks on other town residents. The town residents are looking for solutions!

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17 southsider September 10, 2021 at 6:41 PM

well said…
These neighbors seem to be concerned and feel let down by our laws and regulations and have tried in various ways to make themselves heard before too much was done… all to no avail except to have their concerns scoffed at by town employees…
Not everything needs to be win at all costs… it would be nice to have neutral, well informed third parties ( town counsel? ) try to find compromise and middle ground when disputes between citizens occur. It would equally apply to disputes between citizens and various town departments and boards and commissions…

we’ve taken a page out of national politics and made everything partisan.
so sad..

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