Zoning Board of Appeals - Jun 12th, 2018

The ZBA heard two dockets tonight 3569 (21 Hutchinson Road) and 3570 (23 Hutchinson Road). The board and petitioners agreed to hear both dockets together.

(I have some familiarity with the background of this case. 21 Hutchinson Road was a large lot with a single-family house in the R0 district. A developer purchased the property for a million dollars, and subdivided the 18,000+ square foot lot into two lots of just over 9,000 square feet each. The developer demolished the house, and planned to build two single-family homes, one on each lot. R0 is Arlington's large-lot residential district. The minimum lot size is 9,000 square feet with 75 feet of frontage. As far as I've been able to determine, each of the subdivided lots meets these dimensional requirements, and I'm not aware of any claims that the proposed construction exceeds dimensional requirements for R0. But the abutters don't like the idea of a house on a double-sized lot being torn down and replaced with two homes. End of background information.)

The abutters are appealing the decision of the building inspector.

Attorney Liz Pyle is representing the abutters, and attorney Robert Annesse is representing Hutchinson Homes LLC (the developer).

Ms. Pyle makes opening arguments. She'd like to introduce her clients and give them an opportunity to speak. About a dozen abutters are there. Most give brief remarks, like "I support the appeal".

Ms. Pyle asks the board to interpret section 6.08 Large Additions to apply to teardowns and rebuilds, based on the definition of "alteration". Ms. Pyle cites Debb vs Lamport in her argument. She says it is the board's responsibility to interpret the language of the Zoning Bylaw, and they should not be bound by the building inspector's interpretation.

Ms. Pyle also cites language in section 4.01, which says (in part) that the more restrictive language should apply. Therefore, "alteration" should include the demolition and rebuilding of a structure. She believes that a failure to interpret "alteration" in this way ignores the intent of section 6.08.

Ms. Pyle is requesting a special permit hearing, and for the current permit to be rescinded.

Mr. Annesse addresses the board next. He reads language in 6.08 and the definition of alteration, and states that both apply to existing structures, and building on a vacant lot. He feels that if town meeting had intended 6.08 to apply to vacant land, then they would have said so.

Mr. Annesse believes believes this claim is frivolous. He states that if the abutters bring this case to land court, he will ask the judge to dismiss it as frivolous. If the judge agrees, Mr. Annesse will seek attorneys costs and damages.

Later in the hearing, several abutters express discontent at this remark. They feel like Mr. Annesse is threatening them. Mr. Annesse stated that this was not a thread, and reiterated his earlier position. If a judge were to dismiss this case as frivolous, the court allows him to seek attorneys fees and damages, and he intends to do so.

A ZBA member asks how this argument would apply to a vacant lot that was subdivided. Ms. Pyle feels that this case is different.

The ZBA asks "even though the subdivision was legal?". Ms. Pyle reiterates her earlier position: tearing down and rebuilding is the same as reconstruction.

The ZBA asks if this all hinges on the definition of "alteration". Ms. Pyle states that it does.

There's back and fourth about what the ZBL's definition of "alteration" means.

The ZBA asks another question about subdivision. If a lot is subdivided, should each lot have a special permit requirement? Does this requirement last into perpetuity? Ms. Pyle believes that the special permit requirement should apply if both lots are developed as a single project.

The ZBA notes that the bylaw talks about buildings, rather than "projects". The exception is planned unit development, which doesn't apply here.

The board opens the meeting to public comment. I make a remark about an article from 2016 town meeting. During the 2016 town meeting, a group of residents proposed a warrant article that would have applied 6.08 to teardowns. This was Article 15. The ARB voted no action they felt that new construction should be governed by the ZBL rather than what was there before. The residents brought their article back to town meeting as a substitute motion, and town meeting voted it down. To me, it seemed like the ZBA was being asked to interpret 6.08 in a way that town meeting had rejected.

Ms. Pyle stated that she was part of the group of residents that submitted this article. She believes the ARB rejected it because it made too many changes to section 6.08, and that we can't treat town meeting's vote as a rejection of the idea that 6.08 should apply to teardowns.

Other attendees (mostly abutters) provide comments.

Comment: The standard is what the ZBL says, and we're asking you to go outside of your comfort zone. The language is unclear, courts look to intent and try to eliminate absurd results. This is an absurd result. We're talking about process now, not merit. We (the residents) want an opportunity to describe how this development will impact us.

Comment: The back half of 6.08 applies here. Article 2 says where the definition comes from. The commenter feels the project qualifies as an alteration.

Comment: A speaker reads prepared remarks on the differences between teardowns and additions. He states that the garage is still standing, so the lot is not vacant. Asks the ZBA to require a special permit.

John Nyberg: There's another discussion here. We have to weigh homeowners property rights vs. neighborhood rights. My neighbor is building a home right next door to me, and I've been living through construction for the last nine months. But my neighbor has a right to build a beautiful home. People hate change, and construction isn't fun. But these are my neighbors, and part of my community.

Comment: We're not here to talk about change, families, or good neighbors. We're here to talk about whether we have a voice. I feel this is predatory development, and I want to give homeowners a voice.

Mr. Annesse talks more about section 6.08. He disagrees with the notion that this is predatory development. Mr. Annesse says his clients paid a lot of money to acquire this property, and they have the right to develop it.

Steve McKenna: We need to look at a number of things. The language in our ZBL is unclear, but we just went through a recodification, and a lot of language is much clearer now. R0 came about 20 or so years ago, because of a case like this. Did the developer follow all of the processes in the ZBL? We have to consider the entire ZBL as a whole, and not focus on the meaning of one word. I'm not opposed or in favor if the arguments being made here, but I am concerned about unintended consequences.

Joanne Preston: There are unintended consequences either way. My understanding is that zoning protects neighbors. We need more preservation and less construction.

There are a few more comments (which I missed).

The ZBA begins their deliberation. They agree that this all comes down to the definition of alteration. The two attorneys are asking us to make very different interpretations. We've looked at section 6.08 many times, and here we are once again.

Board votes 5-0, to deny the appeal.