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Zoning Board of Appeals -- Meeting Minutes -- June 7, 2012

A duly posted meeting of the Shelburne Zoning Board of Appeals was held in the Shelburne Center Fire Station meeting room on June 7, 2012.

Present: Chair: Joseph Palmeri, John Taylor, Ted Merrill, Lowell LaPorte, William Sweeney, alternate
Elizabeth Kidder, Administrative Assistant
Absent: Catherine Smith, alternate
Audience: Judi Truesdell

MEETING CALLED TO ORDER: 7:08pm

Approval of past minutes: Meeting minutes for May 10, 2012 which include the minutes of the Public Hearing on May 10, 2012, and meeting minutes for the ZBA Special meeting on May 24, 2012 which include the public hearing scheduled for May 24, 2012 were distributed for review by John Taylor. Ted Merrell noted that a motion was left out of the minutes for the meeting on May 10th - half way down the page. John will forward a corrected set of minutes for approval at the next meeting.

Mail: Joe Palmeri noted that two letters were received and distributed to Board members concerning the Mt. Massaemet Windfarm application public hearing on May 24, one from Judi Truesdell and one from Sue Frasier Frankewicz. Joe noted that these letters have been filed with the Mt. Massaemet Windfarm files.

Old Business: Palmeri noted that the decision regarding the special permit for Greenfield Savings Bank had been filed with the Town Clerk on May 18, 2012. The Bank can pick up their special permit at town hall if the Town Clerk hasn't received any appeals.

ZBA Rules and Regulations: Palmeri noted that there are several sections of the ZBA "Procedural Rules and Regulations" that he feels need to be reviewed.

Note: The authority to develop these rules comes from the Shelburne Zoning Bylaw "Section 6.0 - SPECIAL PERMITS, 6.2 Rules and Regulations: Pursuant to Section 9 of Chapter 40A of the Massachusetts General laws, the SPGA shall adopt rules relative to the issuance of Special Permits. The SPGA's Rules and Regulations may relate to the size, form, content and style of the plans, fees, and procedures for submission and approval of such Special Permits, and shall not be inconsistent with the General Laws and provisions of this Bylaw. The SPGA shall from time to time amend these rules. Copies of the rules shall be on file and available for review at the office of the Town Clerk. Copies of Special Permit Applications and related documents shall be submitted to the Board of Health, the Planning Board, and the Conservation Commission, who shall have 30 days within which to comment."

Joe said he would like to look at the Article IV: Section 3: Withdrawals.

"An application may be withdrawn at anytime, but can be withdrawn without prejudice only by notice in writing to the Town Clerk at any time prior to the publication of the notice of the public hearing or, for good reason, by approval of the Board. Also see Article III section 4 above."

Palmeri noted that there was confusion about this language at the last public hearing. In reviewing the language, he felt that the three words, "for good reason", is extra verbiage. The original language in Section 16 of Chapter 40A - second paragraph - does not include these three words and there was discussion as to where this language came from and what was its intent.

MGL Chapter 40A, Section 16 second paragraph: "Any petition for a variance or application for a special permit which has been transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the special permit granting authority or permit granting authority."

It was noted by William Sweeney that "for good reason" could be if the petitioner stated he withdrew for good reason or was it up to the ZBA to determine if they had good reasons to allow the withdrawel without prejudice. John Taylor noted that at one meeting it was discussed that it was on the burden of the applicant to indicate what the good reason was. Sweeny suggested that to avoid confusion, the ZBA should remove those words.

Motion was made by Sweeney and seconded by Merrill to remove the three words, "for good reason", from the ZBA's Rules and Regulations. Approved unanimously.

Article IV: Disposition by the Board, Section 3: Withdrawals will now read as follows:

"An application may be withdrawn at anytime, but can be withdrawn without prejudice only by notice in writing to the Town Clerk at any time prior to the publication of the notice of the public hearing but thereafter be withdrawn without prejudice only with the approval of the Special Permit Granting Authority. Also see Article III Section 4 above."

Sweeney also suggested that any votes taken under Article IV, Section 3, vote should be a simple majority not a super majority.

Taylor brought up Article III: Hearings, Section 4: Representation and absence.

"An applicant may appear in his/her behalf, or be represented by an agent or attorney. In the absence, without due cause, of any such appearance by, or representation on behalf of, the applicant, the board may decide on the matter using the information it has otherwise received, or it may declare the petition to be withdrawn without prejudice."

Taylor and the board reviewed this section to see if it was consistent with Article IV and Section 3. The board consensus following discussion was that this section did not need any changes.
Lowell Laporte asked if at some time the Board had voted on these rules? Taylor noted the date of the latest regulations with the signatures of the Board at the time was July 1, 2010.

Sweeney suggested that based upon issues which came up at the last public hearing, the board should review the first paragraph of Section 16 of Chapter 40A.

M.G.L. Chapter 40A, Section 16 Final unfavorable decisions by permit granting authorities; reconsideration; withdrawal of petitions for variance or applications for special permit. No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon with two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.

Sweeney and the board attempted to analyze the meaning of the first paragraph. This lead to an extensive discussion on the issue of repetitive petitions and the difficulty in understanding state law that has been interpreted by the courts for over 35 years.

Liz Kidder mentioned the there was a lawyer who worked for the State Department of Housing & Community Development whose job it was to keep abreast of the case law relevant to the Zoning Act. In 2009 Donald Schmidt wrote a report that is available online: Decision Making Requirements of the Zoning Act. This report is designed to help local boards interpret their decision making responsibilities under the Zoning Act. Palmeri asked Kidder to forward copies of Don Schmidt's report to the members of the board via email. Taylor made a copy of the pages referencing repetitive petitions and the role of the planning board, page 16 and 17 of this report.

V REPETITIVE PETITIONS
Note: The Zoning Act authorizes reapplication to the Special Permit Granting Authority and the Zoning Board of Appeals. However, the statute is not clear as to the process a community should follow when entertaining a reapplication. The process recommended in this outline is based partly on remarks made by the court when dealing with the repetitive petition issue. For the exact statutory language, please refer to MGL, Chapter 40A, Section 16.
A. PROHIBITION ON REAPPLICATION
1. No appeal, application or petition that has been unfavorably and finally acted upon by a Special Permit Granting Authority or the Board of Appeals can be acted upon favorably within two years after the date of final unfavorable action unless approved pursuant to the repetitive petition process.
B. PURPOSE
The purpose of the repetitive petition provision, as stated in Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 (1981), is to give finality to administrative proceedings and to spare affected property owners from having to go repeatedly to the barricade on the same issue.
C. PLANNING BOARD CONSENT
1. An appellant or petitioner must first submit his appeal, application or petition that has been unfavorably acted upon to the Planning Board. As was noted by the court in Paquin v. Board of Appeals of Barnstable, 27 Mass. App. Ct. 577 (1989), the language of MGL, Chapter 40A, Section 16 "leaves it unclear whether a Planning Board's function is simply to approve reconsideration by a Zoning Board of Appeals or to endorse favorable action. It is the former, which appears likely, the Board of Appeals could not even consider the merits of the repetitive petition until the Planning Board approved."
2. The Planning Board gives notice to parties in interests of the time and place of the proceedings where the board will consider the question of consenting to a repetitive petition.
3. At the public meeting, it is assumed that the Planning board would consider whether the appellant or petitioner has submitted sufficient information that could lead to a finding that there has been a specific and material change in the conditions upon which the previous unfavorable action was based.
4. All but one member of the Planning board must vote in favor of allowing the appellant or applicant to resubmit the appeal, application or petition.
D. REVIEW BOARD FINDINGS
1. Upon obtaining Planning Board consent the appellant or applicant files his repetitive petition with the Special Permit Granting Authority or Zoning Board of Appeals in the same manner as the original appeal, application or petition.
2. The Special Permit Granting Authority or Zoning Board of Appeals holds a public hearing on the repetitive petition in the same manner as the original appeal, application or petition.
3. In addition to what is normally required to be contained in the public hearing notice, the notice should also specify that the appeal, application or petition is a repetitive petition and that the Special Permit Granting Authority or Zoning Board of Appeals will be considering the question of whether there has been a specific or material change in the conditions upon which the previous unfavorable action was based.
4. Before acting favorably on any repetitive petition, the Special Permit Granting Authority or Zoning Board of Appeals must find, by a unanimous vote of three member board, by a vote of four members of a five member board or by a two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based. Such changes must be specified in the record of its proceedings.
5. The Special Permit Granting Authority or Zoning Board of Appeals must then find that all the statutory requirements have been met before granting any special permit or variance.

The information from Don Schmidt's report, indicates that when a reapplication is submitted to the ZBA, it must be reviewed by the Planning Board and they are to determine if the application is materially changed before the ZBA accepts the application.

Sweeney reviewed the legal definition of the word "prejudice" which is "disadvantage". When you are approved or disapproved with prejudice it means you suffer a disadvantage. If you look at Section 16 the only disadvantage they mention is the two year wait. You are disadvantaging the applicant for two years. Sweeney said that in a withdrawal without prejudice it is just withdrawn. If we are to allow them to withdraw period, are we able to add on the prejudice of two years? If you just accept the withdrawal, what does that mean? Our town counsel said that there is nothing in the case law that would allow a ZBA to accept a withdrawal with prejudice.

Shelburne ZBA Application forms and process: an extended discussion took place on how to improve the Special Permit and Variance Application process. Presently, applicants are told to submit their form with a check to the Town Clerk. Once it is filed with the Town Clerk, the "clock starts ticking" following a timeline set in the Zoning Act. The Board felt there needs to be an improved process whereby the applications being submitted will be complete prior to the Town Clerk receiving them. The role of the Zoning Enforcement Officer (Cooperative Building Inspector) was discussed and it was suggested that he may have suggestions based upon what other towns do. Palmeri noted that he had heard that the Town of Deerfield had very good procedures already established. One issue is developing guidelines that the Town Clerk will feel comfortable implementing.

Taylor commented that at the first wind power hearing the ZBA was told they were too flexible in their applications requirements. It was noted that in all other towns, the applicants have to get all signatures of boards prior to their application being accepted -- we need to note on the ZBA application what is required before the application is complete, including going to the Zoning Enforcement Officer.

It was agreed that something needs to be done to clarify the application. It was decided that the ZBA will keep looking at all the regulations -- looking for a way to improve the applications with a clear checklist of what needs to be included. This will Include that the applicant needs to file at least 4 full copies of the application or it isn't complete. A review of the ZBA's Application form and procedure will be included on next month's meeting agenda.

Sweeney said there have been changes to the Zoning Act in relation to Agricultural Exemptions that are included in the online versions of the Zoning Act. Taylor suggested we get new copies of the Zoning Act from the Statehouse bookstore.

Recommendations on amendments to the Shelburne Zoning Bylaw: Palmeri noted that it had been decided we were going to meet jointly with the Planning Board in September to review areas in which the ZBA think the Shelburne bylaws could be improved. Palmeri encouraged Liz to help organize this meeting. There is a letter that has already been sent to the Planning Board with areas of concern noted by the ZBA. Some of the Issues to be discussed include:
* The ability to charge fees to fully cover the costs of the town to process the application including 100% of the cost of hiring appropriate consultants.
* Changing language relative to 30 day meeting notices and responses from boards.
* Signage
* Reviewing Table of Use Codes relating to what needs a Special Permit.

Motion to adjourn the meeting: moved by Lowell LaPorte and seconded by Ted Merrill. Passed Unanimously.

Meeting was adjourned at 9:38 pm.

Respectfully submitted by,

Liz Kidder, Administrative Assistant.

These minutes were corrected and approved at a duly posted meeting of the ZBA on July 5, 2012.