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MARSHFIELD
DEVELOPMENT REVIEW BOARD
Approved Minutes of
January 5, 2006
Board Members
present: James Arisman, Tom Daley, Jon Groveman, Martin
Johnson, and Gary Wilson. Also attending: Zoning
Administrator Bob Light, Daniel Mulligan, David
Mulligan, Timothy Mulligan, Michael Phoenix, Dan
Mucherino Jr, Leif Richardson, and Tim Booth.
At 7:05 Bob
distributed to the Board copies of an advisory letter
he’d received from Town Attorney Paul Gillies on the
topic of notice requirements for public zoning hearings.
Under a new provision of state law that went into effect
on September 1, 2005, notice of a scheduled hearing for
development review must include posting a warning on the
public road near the site of the proposed development.
Paul’s letter stated his view that the DRB should not go
ahead with public hearings on applications or appeals
“if less than perfect notice has been given.” Otherwise
the town risks having the matter remanded by the
Environmental Court should an interested person (as
defined by statute) appeal a permit on the grounds that
he/she was unaware of the hearing.
Jon
replied that the Board is now aware of this provision of
the new law, and that the Town must establish a system
for meeting this new posting requirement for future
hearings. Is the present position of the Board, however,
that they will not hold up pending matters for the
purposes of posting on-the-road warnings, unless they
have reason to believe that not doing so will actually
compromise the interests of any interested persons.
At 7:15 pm the
Board opened public hearing on the on the Appeal and
Site Plan/Conditional Use application of Christ Covenant
Church. Jon opened by describing the question that had
been raised regarding whether the notice for this
hearing was sufficient under the new state law, and that
reiterated that we were going to proceed because, in the
view of the Board, the interested parties in this matter
have all been sufficiently and repeatedly warned. Jon
then reported that the Board had received two lengthy
letters from adjoining landowners Dan and Florence
Mucherino, raising several procedural objections to
proceeding on these applications. Dan Muchino Jr.
attended tonight’s hearing with the intention of putting
the latest of these letters on the record. Jon stated
that the Board would neither consider such a written
submission nor place it on the record unless and until
the applicants and any other interested party had
received a copy. Furthermore, although written arguments
are acceptable when necessary, the Board strongly
encourages anyone with concerns about a proposal to air
them openly at the Public Hearing. In this way, everyone
in attendance can hear the concerns, ask questions, and
respond, and the application process will not be drawn
out by the distribution of written arguments, replies,
and counter-replies.
Dan
Mucherino Jr. replied that, in this case, he was not
sufficiently familiar with the arguments in his parents’
letter to present and defend them orally. He agreed to
get copies to the Christ Covenant Church (via Mike
Phoenix), and to the other attendees at tonight’s
hearing, within 24 hours. The Board will give the Church
and anyone else until January 20, 2006 to make any
response they choose to make to this letter.
The Board then
turned to the substance of the Church’s Appeal of the
Zoning Administrator’s decision that their proposed new
church building exceeded the height limits for
structures under the Town’s Zoning Regulations. Speaking
for the Church, Dan Mulligan stated that the structure
as designed would exceed the 45' height limit on the
South and East sides, but was within the limitation on
the North and West sides. Under the Regulations,
building height is determined by measuring from the
average grade “at the front of the building.” The denial
of the Zoning Administrator follows from his view that
the front of this building is the East side, which faces
Creamery Street. But in Dan’s view the Regulation allows
for the interpretation that the front of the building is
the side that features the main entrance, which in this
case is the North side. Dan presented a series of 30
photographs of properties all over Marshfield in which,
as he describes it, the “front” of the building as built
and used is plainly not the side facing the public road.
In conclusion, Dan stated that, given the wording of the
controlling Regulation, “there is room for you to find
in our favor.” In concurrence, Martin stated that he
consulted 6 dictionaries, and all were in agreement
that, regarding buildings, “the ‘front’ is where the
front door is.”
Bob
stated that, for the purpose of reviewing and enforcing
provisions of the Zoning Regulations, you have to have a
reference point. In the time he has been Zoning
Administrator, he has always — for zoning purposes —
treated the front of a structure as that side facing the
public road. This is the only practical way to apply,
for instance, the setback criteria provided in the
Regulations, and consistency requires that it be applied
uniformly to all the regulations. Bob also submitted
copies of a case from Environmental Court (In re.
Appeal of Maplewood, Ltd), with portions highlighted
that, in his view, make it clear that the front of the
building — for the purposes of zoning — must be
considered that which faces the public road.
Dan
Mulligan responded that setback and road frontage
criteria are horizontal measurements, and it’s
reasonable to make a distinction between those and a
provision relating to vertical dimensions.
Leif
Richardson raised the point that the purpose of zoning
ordinances are generally to control the impact of
development on the rest of the town, and that the
outside impact of a structure presents itself most
directly to the part that faces the public road.
At 8:35 pm the
Board turned to the Site Plan/Conditional Use
application for the planned development of the property
as a whole. Dan Mulligan supplied a display copy of
their site plan, and described the various alterations
planned for access, parking, grading, and the
re-purposing of the existing buildings, as well as the
siting details of the new construction proposed. He
stated that this plan is identical in each respect to
the plan reviewed by the Board last July, but for the
fact that the new Church no longer includes a steeple.
He recognizes that the plan is being reviewed anew
tonight, and considered as a new application, but asked
the Board to recall that in its previous review there
was no objection raised to the existing operation of the
church, and that those neighbors who were present at the
earlier hearing were generally in favor of the proposal.
Bob
strongly recommended that, given the size and complexity
of this project, the Board make visit to the site. After
discussion, the Board set a site visit for Saturday,
January 28, 2006 at 9:30 am. Several people requested
that the Church do what they can beforehand to mark out
the corners of the proposed building and new parking
areas.
At 9:25 the Board
closed the Appeal hearing. All submissions in response
to the written objections of the Mucherinos must be
received by January 20, 2006. On or before that date the
Board will also allow the Town, if they so choose, to
submit a brief through their Attorney on the legal
question of how to identify the front of a regulated
structure. Copies of any such brief must also be
supplied to the Church.
The Board then
recessed the hearing on the Site Plan/Conditional Use
application until Thursday, February 2, 2006 at 7:30 pm.
By that time the Board will have made a site visit.
Decision on the Appeal may or may not have been made by
that date.
Brief discussion
followed on the Town Plan hearing scheduled by the
Selectboard for January 17, and the process leading up
to it.
At 9:40 pm Jon
moved to accept the minutes of December 15, 2005 as
drafted. Seconded by James, all approved. Martin then
moved to adjourn the DRB meeting. Seconded by Jon, all
in favor.
Respectfully submitted,
Tom Daley
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