January 13, 2026 – Zoning Board of Appeals – Video & Transcript
January 13, 2026 - Zoning Board of Appeals
This is the January 13, 2026 meeting by the Zoning Board of Wailes.
It's going to read the preamble here.
This meeting, sorry, slightly different than the usual preamble. The publication for this meeting is wheelchair accessible. If you need other accommodations in order to participate in the meeting, please contact the Wailens and ADA administrator. The meeting may be recorded, and if recorded, it will be made available to the public on Wailen as soon as possible after the meeting. The public is always excluded from executive sessions.
Pursuant to Chapter 2 of the Acts of 2025, this meeting will be conducted in person and by remote means, remote access in accordance with applicable law. This meeting is remote only to access, no in-person attendance by members of the public. However, this is a hybrid meeting, so that is not the case. If we're required by law or allowed by the chair of persons wishing to provide public comment or otherwise participate in the meeting, we do so at the meeting location. Public comment should be limited to two minutes per person. With that, we're going to start our meeting with public comment. This is public comment, not related to specific cases this evening. This is general public comment. I'm guessing there's no one here for public comment. The next item is, do we have any draft meeting minutes from November 18th and December 9th to review? Has everyone had a chance for a meeting? I have, yep. Yep. Any comments on the meeting, guys? Nope. Someone want to make a motion? Move to accept the meetings from, what's the date again? November 18th and December 9th. December 9th. Second. Everyone's here, so all in favor? Aye. Opposed? Aye. All right.
We're going to start with our 7 p.m. hearing. This is ZBA case number 2601 for 21 Cachito Road. This is the application for the Millbrook Group, LLC, by its manager, Kristen Lipson. We'll be seeking approval from the Zoning Board of Appeals for a site plan approval to add an outdoor patio to the existing building at 21 Cachito Road. Additional zoning reliefs, such as variances for special permits, may be required. The applicant previously received approval under ZBA case 2525 for a restaurant used to operate in the neighborhood cafe. Good evening. Good evening, again. Nice to see you. So, can you give us an overview of what you're looking to do? Yes. So, today I'm looking for a site plan review and special permit for outdoor dining. For the outdoor dining, looking to add a patio to the rear of the building. This patio will be open here. Doesn't meet the definition of a structure, as we determined during this restaurant special use permit last fall. We'll have screening around it in accordance with the historic nature of the building to help shield it from the residential abutter. It will also provide ADA access via two new egresses added to the back, one for additional operational flow directly to the kitchen and the other for ADA access. With our architects, we've determined that we can do a gradual 2% slope along the left-hand side of the building, so we won't actually need a specific separate ramp, and then that will flow right into the patio and the ADA accessible door. We're keeping these as you face the building to the left so that the foot traffic will be minimized on the residential abutter side. The lighting on the patio will be string lights, so it won't be any direct glaring lights to impact any of the wheelbuttors.
I believe those are the highlights. Also, the patio, it'll be about 460 square feet, so this is going to be less than anything that triggers new review by the Conservation Committee. Um, I'm also joined online by, uh, my two architects, uh, as well as my attorney, Jeff, you can know, so, and they're happy to answer any questions that you may have as well. Okay, um, so just as, uh, uh, a little bit of background here, um, this is a little bit unusual in the sense that under, uh, section 11 or 2.1.1 planning board, it's the one that actually hears site plan approval for outdoor dining. In this case, we've received communication from both the building commissioner and from the planning board that they're comfortable with the ZBA acting as a site plan review, granting authority for this outdoor use. So that is a little, a little bit unusual. Um, that said, uh, I would assume what we need to do is follow the same guidelines that the planning board would, which is basically going through sections 604 through 609 of the zoning by-law to basically grant the approval for this. I think large amounts of those sections, I think, can be waived because that is a site plan review template that governs any project that would require site plan review. So many of the criteria that are listed in there are not applicable to a very small under a seating patio as in the case of this. So before we go on, I don't know if there's any questions from the board about this. It's a little bit of an unusual process. So are they officially allowed to make us a designee in their behalf? Is that, is that allowed by the bylaws? It, it's not excluded by the bylaws, but I mean, the communication that I've received both from the town planner and from the building commissioner is that because we approved the, the review, the use for the restaurant, the zoning board would be better, better suited to actually hear the merits of this particular outdoor dining, uh, outdoor dining, uh, facility. So if it's not excluded from the bylaws, we do technically have jurisdiction to be able to do this on behalf of the planning board. Uh, we could, we could take advantage of the fact that we have the town attorney here this evening, even though she was, has, was not at all prepared to talk about the particular nuance of that question. Um, I, you can go ahead and ask. So are we, are we allowed to talk on behalf of the planning board for this and make sure that we have the right to be able to do this for. Well, as I understand it, did, didn't you read something, Mr. Chair, that said that there was some agreement that the zoning board could act on this? Yes. That we have written, we have written from the planning board? Yes. Yeah. Okay. So we're going, we're good. I just wanted to double check and just make sure. Yes. No, we do. All right. Okay. From there, we're allowed to go ahead and stop. Okay. Um, so I guess, you know, instead of necessarily having your, your architects make a presentation, um, I don't know if anyone on the board has any questions for, uh, the outdoors design team on the outdoor seating and, or on any of the drawings that were submitted. I think we have a multi-page package, uh, that I think clearly shows the outdoor seating area. It shows, uh, uh, chairs, their configuration, the quantity of seats, and, you know, I think we heard the hour and talk about accessibility. Uh, yeah. One question I would add, um, one of the abutters sent a, um, sent a note, uh, and raised concern about, uh, the four, uh, AC condensers. Um, are those going to be, are those being moved or is it where they already are located? They are being moved because they need to be replaced. They're outdated. So they're going to be, um, moved to the side next to all of the other utilities currently, and they will also be screened in to be shielded from. Okay. Okay. Thank you. Any other questions from the board? Um, so we, since we don't typically hear, uh, these applications, um, my thought was we should just basically, if you look at the criteria for approval, as I said, it's sections 604 through 609. Um, if we, the board looks quickly at section 604, this is mostly procedural. This just outlines the application procedure. Several items in here, I think are not applicable to this particular project. Um, also 605 are just the application criteria. Again, it talks a lot about the actual site plans. It talks about, uh, a whole series of things associated with topography, paving. These, again, are not applicable for this particular project. Um, it really gets down to, I think, section 606, which is the, uh, the criteria by which we can approve, um, outdoor seating. Um, and again, most of these criteria are related to larger developments. So I, in looking, in looking through this, I, I, I really think the, the issue has to do, I think with 606.2.1.2, which is sort of, does the design preserve the natural or historic features of the building? Um, I don't think any of the other criteria are important for this. There are no wetlands here. Uh, this is not a question about the retention of open space. This is not about scenic views. It's not about soil removal, black ingrate changes, any of those, any of those things. This doesn't have anything to do with the water supply, the sewage. Um, this doesn't have anything to do with minimizing design, uh, demands based on the town services or infrastructure. It's not anything to do with vehicular or parking movements. So, I don't know if we have any particular questions for the applicant based on that, but in my mind, it appears as though it is really just section 606.2 that talks about the site plan criteria. And I said, I only see one that I think is applicable, uh, in this particular case. 11.0.2.111. Yes. That's the one that says, you know, Ken, that's the one that grants the site plan approval for outdoor food and beverages. But then it says section 604 through 609 is how you interpret it. Yes. Right. But I don't know, uh, Mr. Commissioner, if you have any, any thoughts on any of the other pieces in, uh, section between 604 and 609 that in my mind seem applicable to this. I could only identify one. No, I think you've covered it. Similar, but 606.2.6 is very similar. It has to do with the design of the building. Yeah.
In terms of any screening, any objection will be there is, um, there. So is this then, is this a, is this a special permit? Or is this just literally a, a statement of site plan review by this board for the app proceeding? I believe a special permit. Um, the, uh, the planning, um, um, Bob Hummel had sent us something. It was attached to their note. Do you pass it to Thomas? This was an attachment that was sent to, to us when he explained that site planner who should be by us instead of by the planning board because we were much more involved in the, um, approval of the special permit for the change in news. And the list of things there are just items that could be considered. Okay. I don't think that it has been codified anything more than that. So that's more of a high level of things to be considered. And the applicant has mentioned a number of them about screening, about walkway, about lighting, about passage, um, about the type of structure that is there. Um, there are things like, um, alcohol and which I think does not come within our firm. I think it's not coming. Well, that's why I'm confused. I guess I've seen this memo and almost none of these are in session 606. So I don't know where this list of criteria comes from because it doesn't appear in the bylaw. It's, it's not listed as such in the bylaw, um, like a chunk like that, but it was something that he sent to us to be, as you, as you see, some harm may have even scratched it could be considered. Yeah. And then, um, I think that the, the alcohol part goes for the silicone part, I think. I believe so when we, uh, when we submit for that license. And then I think that there's, there's parts that are under, um, wastewater. So it's just a kind of a catch all, right? Yeah. But sufficiency of toilet facilities, wastewater grease, none of this is applicable. Right. Because the restaurant use has already been granted. So. Right. Yeah. Well, I, I had seen this as well and was confused about its applicability. All right. Well, I feel I've done my. Yes. I'm passing it on. Good. Um, and you've already addressed offers around hours of operations. Noise level was one thing I don't, I don't recall whether there was anything about that, but, um, tables and seating and, um, and altogether, um, you had mentioned at point, there would be no outdoor cooking and stuff like that. Correct. So, I mean, I, I, I guess, I mean, we, if we look, if we look at, if you look at this, right, we've all the, all the information about like how many seats are, are there, are provided. Um, the, the question, I guess, is whether or not, I mean, I guess if you want to invite me, if the board could determine whether or not the, the amount of seating sort of presents it presents a density problem, you know, in conjunction with 606.2.142, which is the preservation of natural features. Yeah. What about the, uh, third bullet point? Um, from, uh, what was just showing to you about the setback of seating from property lines and problem waves. Uh, we have the drawings from the applicants, um, that different setback level was already presented. There's not a structure. It's seating. It's not a structure. As I, as I understand it, the outdoor seating wouldn't be subject to setback requirements because there's no structure there. No. That patio is not considered a structure. It looks like the seating is there are 14 seats, right? Yes. Correct. I know it was determined not to be relevant, but, um, we are in, in conversations with the DPW and our civil engineer about the grease trap and all the, um, necessary requirements on that one. Yeah. And that's part of the, the permit application, you know, for your actual building from an application. Yes. It requires an interior and an exterior grease trap that's to be determined by them. Yeah. Yes. Before we, before we go any further, um, is there anyone here that, uh, besides the applicant that is, has anything to say about this case? We hope there's anyone online. Dr. Dr. Humbold. Okay. Mr. Chairman, I just wanted to address that. The reason why the applicant is in front of you is because it was a decision based on the, just me and the building commissioner that because in the bylaw it says, if the board, the ZBA hears a case for special permit, that they can hear the case for the site plan at the same time. And that these two hearings were pretty close in time period to be heard together. And that was a decision made based on, um, making sure the applicant doesn't have to go to a different board and to confuse everybody. Um, in the case of the dummy donors, I will request when they do come back that they come back to the planning board instead of the ZBA because the time period is way too long. But that is where you're, the information that I gave you guys the guidance. It just is purely gives guidance. It's not based on the bylaw, but it's things that the board, you know, could, should encourage when looking at this. Um, but this is, this is just a site plan. It's not a special permit. Just want to make sure. And the, uh, is not a special permit. Um, and you guys are just hearing it because we made a decision based on what made most sense for the applicant because they just got a, uh, a special parent hearing. If they came back in three, four months, I would say they'd come back to the planning board instead. So, um, this was just make sure that the applicants can go through this process. Uh, at a faster pace. Thank you. Thank you very much. Thank you. Um, does that mean that I will also need a special permit leader for outdoor dining or this is kind of the, this would be the special permit for outdoor, this would be the special permit for outdoor dining. Okay. Um, just, just a plan. There's no such permit. You don't need it. She does not need a special permit for this. It's just a purely site plan only. A site plan. You got it. Okay. She got, she got the special permit for the, for the restaurant use. And if she applied at the same time, you could have, could have been heard two, two months ago. She just needs a plan approval. Just that's it. Okay. Well, you won't fall down for something else later. No. As I understand it. No. No. Okay.
Okay. That's why I'm not sure. I don't know. Good evening. Oh, good evening. Uh, just a real quick. I've already sent you an email. Um, but. Say your name, please. Oh, you bet. I live on the north side. I'm the residence right next door. Thank you. Uh, as I looked at the plans, um, I was surprised at the four big AC generators, but I'm assured that they won't make much noise. Is that correct? If they're new. If they're new, they're very efficient and somewhat quiet. Yeah. Okay. And there's a great big, huge fan, kitchen fan facing my front door. And I'm just waiting for the kitchen fan could be put on the west side. Possibly. Maybe it can. Maybe it, that's an impossibility. I don't know, but I'm throwing it out as an idea rather than having it right at my front door. Um, the other thing I do want to bring out is that in the application, uh, the applicant made the point that a structure is of course not a walkway or a virtual way or anything like that, and that the application just needed to go before the historical commission. It's the historic district commission that the applicant needs to go before. It's in the historic district. And according to the historic district commission's, uh, regulations, if you look online, you can find them quite easily. They're all right there. A structure is anything other than the building. That's a wall, a walk, a sign, anything, any hard state that's visible from the public way. So, uh, the historic district commission looks forward to meeting with the applicant. And, um, I guess that's all I have to say. All right. Thank you. Thank you. You signed in? Yes. Yes. I signed in. Thank you. So visible from the public way. It's not ours. It's in the rear of the building. That's the question. I would think it would not count because, uh, there's not a street on both sides. I would think that it wouldn't be visible from the public. But I also, I'm confused if the historic district's definition of the structure is different from the zoning bylaws definition of the structure. That could cause problems. I don't know that that could cause problems, but I think I would assume that we have to go by the definition of the structure in the zoning bylaw, not the historic district commission. And so I guess a question, uh, you heard from, from, you know, your, your neighbor. Um, it's not really before us, but I, we can ask the question anyways, is it feasible to relocate the kitchen exhaust fan? I think I know the answer to this, but, uh, we can ask. Um, I actually might defer, uh, Camille, are you available? I don't know if she's allowed to speak at Camille Schaffler on there. There you go. Just raise your hand. Oh. Can we hold it? All right. I'm sure. See if I know how to do it. I don't know how to do it. I don't know how to do it. There's a writing person. Is it on here? No. I can try. Get it. All right. Do you want to give up? Oh. I think you just stepped out for a half-time. Oh, okay. One time we ask. We'll get, we'll, we'll get this taken care of. It'll just take a second. Okay. I have also been told by our mechanical engineering team that the new ones will be quiet as well. Yeah. Similar to the new generators and whatnot are very, very quiet. Yeah. And you've mentioned that the AC units are being moved to the south side, the left of the building. The north side because the ABA walkway will be on the left side to minimize foot traffic by the residential abutter. Okay. I guess a question for you. Did we ever talk about operating hours for the restaurants? I believe we did. I believe we, we did, but just to reiterate them here, Tuesday through Friday, 7.30 to 3.30. Saturday and Sunday, 8. And the same, those hours are the same for the outdoor seating. Yeah. In the seasons. Yeah. Yeah. Weather committee. You're allowed to have a fire pit in the back? Right. Is that something that we need to have accountability for it for wintertime with like a hot cocoa or something? That's where my mind goes always. I don't think that's something that you would regulate in here. Fire services. I believe that they would not make clearances for that from the most likely not. Okay. I just wasn't sure if we have to have that as part of our scope or not. I think so. Have you seen what we were talking about? You know, how did I just... You didn't keep that up. Oh, you didn't keep that up. That's what Mr. Homer was talking about. Great. All right. Well, in the absence of being able to elevate your mechanical... Oh, here we go. Here we go. Here we go. It's because it's so hard. Trying to keep things moving. I'll have to get through. Right. It's version over? Yes. There's, I guess, someone who needs to elevate. Okay. Oh, my architects. No. Shackler. She's raised her hand. Right now. Can you hear me? Yes. Perfect. Sorry about that. Um, my architects. No. Shackler. She's raised her hand. Right now. Can you hear me? Yeah. Yes. Perfect. Sorry about that. Um. So to answer your question about rerouting the, or changing the, the location of the kitchen fan, we can, we would have to do some, you know, rerouting through the building, um, to potentially put it to the other side. It'd be something we want to work with our, um, MEP mechanical engineers, um, on, but we can definitely look into that for sure. I don't have any other comments on this. I'm sort of looking, I'm looking to understand again, uh, the mechanism for, uh, a site plan review. I'd assume it would be, we would, we would look for a motion. Reading this. Um, we could also subject the site can review to any safeguards or the conditions that we want to impose. But we already have conditions, uh, on the restaurant use to mimic the conditions, uh, for this. Um, I'm. I'm on the fence about, uh, adding a condition for, uh, the relocation of the kitchen exhaust fan. Um, I it's possible, but I don't know that it's a hundred percent feasible given looking at the distances required and, you know, what it would take. So I, I have a concern that we could, we could potentially look at a condition that may turn out to be infeasible and to actually execute. Um, I think that in this particular case, the applicant can use their best knowledge to be able to figure out whether or not this is feasible or not. Um, in my opinion. Um, I feel like the applicant has been very forthcoming and thoughtful of, of the neighbors and stuff. And, and, and doing so, I think that there's a lot of grace that we can walk with that. Um, that's, that's my opinion on it. Okay. Fair. Any other comments from either the applicant or the public? Yeah. None for me. Yeah. I guess with that, we should. It's just an approval. Yeah. Just making sure that we have to see a special permit accident on areas. Yeah. Documentation. It's just an approval. Okay. All right. So I think you're, you're noting that the application itself is requesting a special permit, but in reality it is a site, it is a site plan review. All right. I just want to make sure that that's. Well, I think we should, I think we should, we should, we should. Note that. Yeah. Okay. Actually, sorry. I do have one, um, one other note just to reflect. Sure. Um, at the time that I submitted this application, the sale property had not yet gone through, but it was pending and it has now officially gone through. So, um, previously it had the owner's signature required, but, um, now it's me. That's great. Yeah. All right. Uh, so I want to name a panel for this case. The panel, uh, is going to be the five, uh, permanent members. That would be, uh, Mr. Hirsch, myself, Mr. White, Mr. Perry, and Ms. Jenison's fall. Um, so I would make a motion under 1102.1. Okay. Okay. Okay. Okay. Okay. Okay. Okay. So that's the rule for, uh, food or beverage service. Food or beverages to be served or consumed on the premises outside the building that contains a walkway existing restaurant. Second. I further say that we want to condition this approval on, um, a few notes. One that the application, uh, just needs to be corrected to indicate that it is a, uh, site plan approval, not a special permit, that the outdoor patio needs to sort of be constructed and maintained in accordance with the plans that have been submitted, and that the operating hours for the outdoor patio mimic the restaurant use.
Don't think that any other additional conditions. Maybe that makes sense. Any debate from the board? Any additional comments? No.
So, I made a motion. You seconded it. You've had any conditions. So, all in favor? Aye. Aye. Opposed? None? Aye. All right. So, the site plan for this outdoor seating is approved. So, we are all very excited about this, and I think all of us are anxiously awaiting a chance to use this outdoor terrace as soon as the weather is on them. Just before. Thank you very much. Thank you. Thank you. Thank you. And do I need to resmit the application, or is that simple? No, I think we could just, we could just mark on it. Okay. Okay. I'm just going to turn. You don't need to release it down. What is the process to know? Same as with the special permit in terms of writing it? I would assume it is the same process to write the decision for this, and then the appeal period. I would assume it is the same as the special permit, but I'm not sure. I'm not positive.
Yeah. Do you have an opinion on that? It is, it is kind of the same. Thank you. Thank you. Thank you very much for your time. So, what I'd like to do, if possible, is there a 20-day period to be able to write it, and then another... I think it's 14 days. 14 days, and then a 20-day appeal period. Just make it clear that that's a part of it as well. What I propose to do next is I'd like to take a case out of word here. I'd actually like to proceed with ZBA case 2533 for 321 Commonwealth Road. I'd like to hear that case next. So, do we have anyone for that case here? Online. This is Craig Murphy. Online. All right. Good evening. Why don't you reintroduce us to why you are back before us? Yeah. So, I'm Craig Murphy from COG Graphics. I'm representing Bright Horizons. Wait a minute. Hang on for a second. I just realized that I didn't read the case. I have to read the case first. Sorry. This is the ZBA case 2333, 321 Commonwealth Road. This is the application of Waylon Woods, LLC, care of R.W. Homes Management for property located at 321 Commonwealth Road in the Business A District. The applicant is seeking a special permit to relocate and replace the existing sign, moving it from its current consultation to the front of the building within the front grass area. The request includes relief from the front yard setback requirements associated with the proposed sign relocation. The applicant you have submitted revised the plans to us. So, thank you. Sorry for that. Well, you can just briefly tell us why you're back again. Thank you. So, Mr. White, you're right on the money with your description there. I was asked to do a little bit more of a detailed plan on the location of the placement of the new sign. And so, I did that. So, it's going to be 10 foot away from a setback. There will be a 10 foot setback there. We are going to remove an existing sign and put this sign in the front of the building. The current sign is on the west side of the building. And there's a building. And then there's a gas station. Then there's the entrance to the parking lot or one of the entrances to the parking lot. That sign there sometimes gets very confusing for people looking for bright horizons. So, they felt it would be better if it was just in front of the building and the people will figure out how to get into the parking lot. And hopefully, they'll see the parking entrance on the east side of the building and just arrive there. So, that's basically it. We're taking one sign out, putting another one in.
Looking back at my notes, one of the reasons we asked you to come back was if you could produce a more detailed drawing or more detailed site plan than we had last time. Yes. Just like you did submit, you did submit a more refined scale drawing. I'm just looking to call it up right now. Thank you.
Also, we also have a memo from the planning department. We actually received this at the last hearing. But this is, it's been reattached to our file right now. So, the planning board, you know, expressed support for this. They just noted that the sign does require a special permit from the zoning board of appeals. And as I said, we agreed to this last time. We just asked for the applicant to submit a scale plan, which they have submitted. So, yeah, that's it. And the old sign is all decrepit and it's made out of wood and it's just falling apart, really. It's just ugly. The reason we also have to have this is because you are exceeding, you are exceeding the size requirement, correct? I didn't think we were. In fact, I think the new sign is slightly smaller than the, it is slightly smaller than the old sign. So, I'm not aware of any kind of a size issue. Hang on for a second. Yep. So, if there's not, if there's not a question about the size, this is a question for the building commissioner.
Is it a special permit only because it is inside, it's because it's inside the setback, correct? Correct. And it does not reduce the sight lines to enter or exit the building. All right. Yeah, that's, that's correct. It's actually very far away from the, both entrances. Okay.
Mr. Chairman. Yes. One of the reasons why this, it needs a special permit is there is an existing free setting sign on the property. It's not for bright. There's two, right now there's two free setting signs on the property. One is for bright horizon and one is for the tenants inside the office building. And removing this one and adding a new one would still trigger that you need for multiple free setting signs on the property. That's, that's, that's the reason it's not about the size, it's about the number of signs on the property. The number of signs on the property. Okay. Okay. That's the same special permit criteria under two or three point one. Correct. Yeah. Thank you. All right. Thank you. Thank you. Thank you. Thank you. Anyone here? I didn't think so. And it doesn't look like there's anyone online for this. So, no, okay. Um, for this case, it's going to be the same panel. Uh, Mr. Hirsch, uh, Mr. Perry, Ms. Jenison, Ms. Paul, um, in order to get a grant of permit under two or three point one, uh, we just have to, uh, have a demonstration of this new freestanding sign. Uh, isn't against the public interest. We know the same, the same language here. Um, so based on that, I'd make a motion under three point one that, uh, I think the applicants demonstrated, uh, that this sign, uh, in the CBA, uh, it doesn't, it's not against the public interest. It doesn't derogate from the character of the neighborhood in which the use building or structure occurs. And it's not detrimental or offensive because of noise, vibration, smoke, gas, hearing, motor, dust, or other objectionable features. And the proposed sign is not otherwise injurious to the inhabitants of the town, their property, or dangerous to the public health or safety. Second. Okay. So, um, I think in this case, the, it's a straightforward, uh, application. Uh, I think the only criteria condition I would apply is that the, the science gotta be constructed to match the application that's been submitted. Yep. Uh, all right. So I made a motion to grant a special permit under two or three foot one. We seconded it. So, uh, all in favor. All right. All right. Opposed. None. All right. So. Thank you, everybody. I appreciate it. Yeah. 14 days to write that decision. And then there's a 20 day appeal period. And then after that, you can pick up your special permit. Thank you very much, everybody. Have a great night. Thank you. Um, all right. So, uh, we're going to move on to the 710 hearing. Uh, this is CBA case 2602. This is the appeal of a building permit for the Veritas Christian Academy. Um, read the description here. Um, Adam Miskari is appealing the issuance of a building permit for the Veritas Christian Academy project. The appeal raises concerns regarding compliance with the protection overlay district discrepancies between the building permit and plenty more to approve site plans and potential environmental and stormwater management issues. The appellant seeks a review of the permits validity in compliance with the zoning bylaws. So, as you can imagine, this is obviously why I think everyone is here tonight. Um, I would just like to say that, uh, based on this, I would like this hearing to be orderly and, um, proceed in an organized fashion. So, with that, um, I also like to say that I'm sure there's a lot of people here that, that want to speak. Um, I want to have everyone have a chance to speak on this project, but I will say that if, if what you're going to say is very similar to what someone else has said, I would, I would appreciate that we sort of limit comments to items that bring up substantially different points of view. Um, not that I'm not interested in hearing from all of you, but if all of you want to speak, I'm happy to let that happen. However, being mindful of the time and the fact that we have other cases, um, I think it would be beneficial for everyone if the comments were substantive and as varied as they possibly can be. Um, with that, who is here to make this presentation? So, if you could give us your name and, uh, address and tell us what's happening. Thanks. Mr. White, my name is Peter Durning. I'm a resident of Newbury Fort. I'm not a local, but you'll probably guess by my pronunciation of. Um, I'm here from the law firm, uh, with me as my colleague, Gail Hire. And we represent Adam Skari and Pat Kavanaugh. And I do have, um, a PowerPoint that I think will help focus some of the presentation. If I could do that through the Zoom. Thank you very much. So again, members of the ZBA, our firm represents Adam Skari of 29 Shaw Drive and Patrick Kavanaugh of 21 Shaw Drive. We are before the ZBA on appeal of the building permit and the site plan approval issued on April 15th, 2025 to Veritas Christian Academy for the construction of a dense multi-facility educational campus on four residential house lots located at 162, 164, 168, and 172 Chituate Road. Um, we are here by appealing the building permit that was issued on October 30th. In addition, Mr. Mascari also filed a request for, uh, an appeal based on the building inspector's lack of response to the request for enforcement. And through this action, we are asking you that the ZBA should revoke the building permit and reject, revise, or remand to the planning board, the site plan approval on which the building permit was purportedly based. Given the numerous errors and the building permit because of its lack of compliance with the zoning bylaw and engineering issues contained in that approval. The building permit approved the project despite non-compliance with the aquifer protection zoning district, and this was an error. As noted in the site plan approval, the planning board observed and noted that the property was located within the aquifer protection zoning district, but then it did not insist on compliance with the requirements of that bylaw. The aquifer protection district overlay is a zoning bylaw and requires site plan approval under section 198-1604 regarding density restrictions that apply to the AOPD or aquifer protection overlay district for developments with greater than 15% impervious lot area. The bylaw requires that groundwater be provided and that impervious surface does not degrade groundwater quality. The section further provides that under no circumstance shall the impervious surface of a residential lot exceed 30% of the upland area of the lot. Now, for those familiar with, um, this project. The campus is going to be constructed by consolidating what were four previous residential lots. And it is going to attempt to pack into that area a multi-building, I believe a nine-building educational campus. But importantly, for concerns of compliance with the AOPD, the site plan approval and through that error, the building permit failed to apply the overlay protection district correctly. Now, on this image, you see the four lots that make up the residential lots that are going to become the campus. And shaded in blue is the zone two of Wayland's aquifer. And of course, the aquifer protection bylaw is there designed to ensure groundwater and drinking water quality within the whole town. The only portion of the proposed project that is within the overlay protection district is there outlined in blue. It's all of 172, a significant portion of that right side of 168 and a sliver of 164. However, when the applicant submitted this material and information to the planning board during site plan approval, it calculated the percentage of impervious error area by trying to get credit for all four lots. Rather than an analysis based on the density within the overlay protection, protection district itself. And that was an error. If we look at this next image, which is taken from the cotton fill plan. And it is annotated by us with a blue line mimicking the location of the aquifer protection district, you can see that there is quite a lot of activity and density wedged into a significant portion of the site that is within the aquifer protection district. I apologize that it's difficult to see on this image. I apologize that it's difficult to see on this image, but there are new roadways. There is a sports field. And under that sports field, there's going to be the septic system. And then there's also allowances for, for parking, all of that creating impervious areas within the aquifer protection district. The concentration of infrastructure in the AOPD under the zoning bylaw requires a project to preserve 70% of the area within the zone 2. And the concentration of infrastructure within the AOPD as proposed by the Veritas project and as approved by the building permit is a violation of the bylaw. So this was an error when it was approved by site plan approval and should have been rejected by the building commissioner. Therefore, there was error. In addition, the project also violates the zoning bylaws prohibition on earth removal within the aquifer protection district. Again, this image that we're sharing with you is a cut and fill plan showing the dramatic amount of earth removal activity happening within this zone. While earth movement needed for the project could have been accepted if it was simply for the roadway. Here, the earth removal is going to be enabling a retaining wall structure on a very steep slope. And in addition, in that lower right hand corner, there's going to be the onsite wastewater treatment system. And that amount of earth removal activity is barred by the aquifer protection zone bylaw. As an illustration of what is happening on the ground, here is a current image of some of the work that has been performed already. As I believe this board knows through our communications, we have stressed the importance of a stop work order. Because we feel so strongly that both the site plan approval and the building permit were issued in error. And yet, the project work is continuing apace. The clear cutting that has already occurred and the earth moving activity that is already occurring. We would maintain is really on a front to the structure of the bylaw that should have protected these things from occurring. The fencing that you see is very, very tight to the property line. I have another image showing that further. But again, and another theme that we're going to be coming back to is just the lack of setbacks that have been provided with this development. And a significant amount of denuding all vegetation right up to the property line is, again, I would say an affront to the protections that the zoning bylaw should have protected. That's a slide. So again, this is taken from the site plan approval. The planning board noted that the project proposal would not have respect the setbacks of 30 feet, but we see that this is an error, a glaring error in the approval of the building permit, because the project violates those setbacks. As shown in the selection from the site plan approval, the planning board found that the project met the required setbacks, but as I'll walk you through, this in fact is not met. And the building permit was an error if it allowed the project to go forward with these violations of setbacks. So here is page 20 from the landscape plan, I believe, from the applicant's materials. The areas that I've highlighted in yellow are beyond the 30-foot setback, and that includes a portion of the roadway, a portion of the sports facility, and I believe consistent with that potentially the septic system that is underneath it, and a series of parking spots on that right-hand side. While those features are clear violations of the setback requirement, I would just note that, again, the clearing and the work that is occurring is all the way to the property line. So whereas those structures are probably the most offensive, the scale and amount of work that is proceeding is significant. This image is a recent survey that was performed in the field by Mr. Mascare's property. I have a zoom that can show here. The surveyor noted that in significant areas, the chain length fence, which is establishing effectively the limit of work for this project, is over the property line onto Mr. Mascare's property. This, again, is a significant deviation, a concern that we believe could have been appropriately addressed if the request for a stop work order was honored, but it was not. To provide a visualization of what this looks like now, here you see the significantly denuded area of the property, the homes on the left side that used to have a significant vegetative buffer from their neighboring properties. That is all gone. That is all gone. And in addition, significant earth-moving work is continuing apace. Source of some of the errors and conditions that have caused difficulty with the project has been the real disconnect between what was advertised as a list of as a limited scope of work with respect to phase one of a project that was really part of a very deliberate multi-building nine building master plan for an educational campus. And I think you understand from our papers that we certainly understand and appreciate the contours of the general laws, Chapter 48, Section 3, and that the Dover Amendment does provide certain powerful protections for certain protected uses within the Commonwealth. However, the gravamen of all the concerns that we're bringing to you today that we're highlighting in our materials and through our presentation really focus on technical dimensional issues with the proposed development that run afoul of the dimensional and technical requirements of the zoning bylaw. What we are addressing are not unique to educational institutions. They are not use restrictions that would somehow prevent or impose an undue burden on educational institution. They are dimensional concerns. They are the protection of drinking water, which is embedded in the zoning bylaw. But one of the difficulties that comes through with this iterative approach that the applicant has taken is that there are, again, I'll say disconnects between what has been filed for in terms of the phase one and what is being pursued and understood in the master plan. And again, some of the elements of phase one include construction of the loop roadway, which is going to be for the benefit of the multiple buildings. In addition, as I highlighted earlier, there's going to be a significant major sports facility and septic capacity that is going to be able to host a school with upwards of 400 students. And yet, during the planning board process, certain submittals did not give the planning board the benefit of assessing the entire project. For example, the traffic study that was submitted to the planning board only highlighted 444 vehicle trips. That was based on a student and a student population of about 108 students. And yet, the infrastructure that the applicant is seeking to develop is going to have the capacity of housing, not housing, serving 423 students. That is a serious, again, I'll say disconnect. The average trips on the project at full build-out is going to be well over a thousand trips per day. And yet, the planning board was deprived of that opportunity. Again, I've highlighted the onsite wastewater treatment system. In that context, I believe that the applicant had disclosed that the sizing of that was going to be designed more for, I believe, 360 students and 63 staff for a total of 423 users. But again, that facility is being sized and designed for a much larger campus facility. As we highlighted in our filing, one of the errors that results from this iterative process is that it deprived the town the opportunity to assess the full scale and impact of the project. In addition, we assert that the project could have and should have complied with the Massachusetts Environmental Policy Act, or MEPA. One of the hallmarks of the MEPA process is that you cannot segregate a project. So, you cannot knowingly only submit a portion of a plan development in a manner in which would allow you to skirt the requirements of MEPA review. The application that the applicant submitted during the site plan approval process, the Wayland Planning Board solicited and asked for information about whether or not the project was going to require MEPA review. The applicant left that blank. The applicant left that blank. I believe that the applicant should have appreciated that MEPA would require it, certainly MEPA would require it to articulate the entire scope of development to consider all the potential traffic requirements in previous area and the like. And that since the project is receiving certain state funding. I maintain, and I believe it's correct that this project should undergo MEPA review. Yet, when that was not provided, the planning board was deprived the opportunity of having this project go through that process to be shaped. However, the MEPA review may recommend additional environmental concerns, particularly with respect to the very steep slopes that this project is going to be situated on and the difficult stormwater management that's associated with it. In addition, in our written submittals, we highlight the considerable engineering issues that we maintain remain unresolved. In particular, in our submittal, we call out the review by a professional engineer, Scott Horsley, and his critiques regarding engineering issues, particularly with respect to the on-site wastewater treatment system, but perhaps even more importantly, with the stormwater management. Mr. Horsley provided an analysis that the stormwater systems were designed with incorrect values for permeability that under counted the groundwater mounting off-site flooding and septic system performance problems. Again, this is not so surprising, given the difficult topography of this property, and issues were certainly raised by the public to the planning board and through Mr. Horsley that the stormwater issue was grave. Mr. Horsley concluded that stormwater structures, particularly SI-1 and SI-2, will be inundated and cause outflow during a 100-year storm. In addition to the engineering analysis of Mr. Horsley, the town's own peer review engineer, Greg Roy, also shared concerns about compliance with stormwater standards. We brought some concerns to the Zoning Board of Appeals. This matter, we believe strongly the building permit should be revoked. The project should be sent back to the planning board for site plan review. That is the ordinary course for a review of this matter. Under the Wayland Zoning By-law, a site plan approval is not appealable until a building permit issues. It creates some difficulty insofar as the project gets so much further down the line, rather than appealing the site plan approval itself when it was issued in April. That is a difficulty, but that's what brings us here today. This board has the power and the authority on the appeal of a building permit to review those errors that were committed by the planning board and issuing site plan approval that didn't demand compliance with the aquifer protection district, that didn't demand compliance with setbacks, and the other elements that we highlight in our submittals. This board had the power, authority, and the opportunity to correct those errors. That does not mean that an educational facility won't be able to be sited on this property. It means that the educational facility that gets sited on the property must comply with all the requirements of the by-law. You know, there are strong tenets in the zoning by-law about the design of buildings, structures, and landscapes to be in harmony with the prevailing character and scale of buildings in the neighborhood. I think that, for the most part, Veritas is trying to achieve that by having separate individual buildings rather than one large structure, which really would be out of place in this neighborhood. And while I think their approach has some merit, there are elements of it that have simply gone too far. The concentration of development in the aquifer protection district, the lack of respect for the setbacks are egregious errors that need to be corrected. So this is the four residential lots together are highlighted in red there. So this is the one of the most part of the rest of the neighborhood as it was when those four lots were more individual residential lots. And in contrast, here's the site today with the structure proximate to Petituate Road. And then, again, the denuding of the property and the real exposure to any neighboring properties that now lack the kind of vegetated buffer that they would have had. In their material before the Planning Board, the applicant repeatedly argued that the Dover Amendment protection meant that it was only subject to a very limited site plan review. We agree and would concede that in some respects, there is a somewhat limited site plan review for projects that have protection under the Dover Amendment. However, a Dover protected use still has to be reasonable with respect to its structure, bulk, height, setback, lot area, yard size, building coverage, parking and open space requirements. There's no Dover exception for health based septic standards. There's no Dover exception for protection of Wayland public drinking water resources. The site plan approval failed to reinforce those requirements through reasonable conditions that would have better protected the neighborhood and the town's drinking supply. Again, the right to appeal that approval arose when the building permit issued the building permit, which enshrined some of those errors of the site plan approval process. That building permit was issued an error and there are serious engineering concerns that are attached to that on behalf of the butters and the future neighbors of this project site. We would also ask an event that if the zoning board is not able to come to a final decision on the merits this evening, the petitioners respectfully request that the ZBA consider issuing its own stop work order to prevent further destruction of this neighborhood. The ZBA has the authority. The ZBA has the authority following a motion and a vote. The ZBA would have such authority. And to the extent the board is unable to come to a final decision on the merits this evening. We respectfully request that the zoning board of appeals consider voting to impose a stop work order if the appeal needs to continue to another night. Thank you. And I'll take any questions. Thank you. Thank you. I will see you again. Thank you. I will. I have numerous questions. Probably some for you, some for the building commission and some for the town council.
Perhaps starting with, I think, you know, a question you presented a drawing that showed a construction fence, was actually not located in the property, was located on the. your client's property? That's correct. And that was verified by a surveyor in the field. Okay. I guess these questions are probably for the building commissioner. A construction fence, is that considered a structure that would be a set? That would be a violation if a structure is constructed on, not on the, on another person's property? Would that be a zoning violation? It is a structure. It can be on the property line, verifying that it is the actual property line. I don't know how they're determining the property line there. It's very difficult. It's an imaginary line, unless you have a point A to point B and some kind of verification to show the exact property line. And if there was a report, I'd like to see that because I guess the question is, would that, that would be, would that be a zoning? Is that a zoning violation? Would that be like a zoning enforcement action? It'd be, no, it would just be a disturbance, you know, actually a police matter, you know, but you're on somebody's property. You're putting a temporary structure on somebody's property. Um, I guess this question is per, I guess for the applicant. So you also made, you made a presentation that it was the, the parking lot, the road, and the septic system that violated the, I don't know, you didn't specify what setback it was. Oh, 30 foot setback. Yeah. Is that the front, the side, the rear? Is that a particular? So I'm asking because very specifically, there are certain things that, that there are certain structures that do not fly to setbacks. to setbacks. And I, I just want to be sure that I understand from you that you're saying that there was a, there was this, this planning board indicated that there was a 30 foot setback, presumably on all sides of the property. Correct. Um, so I guess this would also probably be a question for building commissioner. Um, presumably if there was a setback requirement with the parking, the loop road and the septic system, would those all need to comply with a yard setback or are those not? Mr. White, if I can, I think I, I drew attention to, uh, the area that is a sports facility, a sporting field, and there will be septic under it. But the image that I showed on that landscaping plan didn't necessarily show the dimensions of the septic itself. So, uh, I, I, I asserted that that could be an issue as well, but the, the surface level development is a, is a sports field, not the septic, but I highlighted. Sorry. It's okay. Just wanted to make sure. Okay. All right. That's correct. So it's the sports field. So I guess, would it be the parking, the loop road and the sports field? Would those, would those need to comply with the setback? The setback requirement? Only the structures on the sports field, uh, AKA bleachers or a field house of some sort or a shed would need to be, you know, need to be, need to, uh, the setbacks of a rear side setback. What about vegetation clearing in, within a setback? That has all gone through. That's out of my purvey. That's conservation. Um, and I know that was, uh, discussed and, um, several occasions with conservation commission, and I would have to defer to, uh, Ms. Hanson or conservation agent to, uh, answer any of those questions. Okay. Mr. White, if I could, I'd also just clarify. It's not merely a sports field. It is a sport court. It is a, it is a hard structure. It is not. I mean, I believe it's low elevation, but it's not merely a field. It is a, it is a constructive facility. It's a structure. I, I, I had the opportunity to actually walk the facility to be with Brian, the project manager tonight, before today's meeting. And he said that it was going to be a tennis court. Tennis courts typically have fences around this. So I would assume that if it is indeed a tennis court, in fact, in case it would have a fence, which I would think would be in the structure. Um, but I know I'm diving right into sort of specific questions, um, but, um, I guess one, one point that, um, you did raise is, uh, sort of talk about the authority that this board has as, as you can imagine, um, you presented a lot of information. It would be very difficult for this board to conduct like a full engineering analysis of all of the points that you've raised with respect to the, um, the groundwater analysis and sort of the flaws that you've mentioned in the site plan. Um, so I know you asked the question or you sort of raised the option that this board could conceivably act somehow to, to temporarily halt the construction of this, of this project. Um, that's, um, that's, that's a particularly specific question that I, I guess I would, I would ask, um, town council for some opinions on, because, uh, I, I think that for this board to sort of understand and review each of the, the points you've raised, I think it would be difficult. You know, consider the fact that the planning board had months of hearings and engineering analysis that accompanied all of the decisions that went into the design of this. It would be very difficult for this board to come in and within 30 minutes, you know, read all this material and then come to a decision that, that somehow there's a lot of deficiencies in the engineering. There may be, I, I really don't know, but I think it's going to be difficult for this board to sort of make any decisions about that this evening. Um, so in the context of that sort of, I guess I'd ask town council, the zoning board does have the authority to actually rescind this building permit prior to undertaking its own analysis of all of the points of the, uh, the best way to ask that question. It's a very complicated question. Maybe I simplified it too much. So for the record, uh, Carolyn Murray from KP law as counsel to the town of Wayland. Um, and I'm happy to, to, to, to, uh, rephrase and hopefully answer that question point for point. I do also just want the board to be aware that council for Veritas is also here. If you want to hear from them and, um, I'm sure you're going to have a number of questions. Um, uh, overall with respect to the authority of the board to issue a stop work order. Your authority derives under chapter 48 and specifically 48, 14, with respect to this particular appeal. I do want to just pause there for a moment and say, there is an argument to be made that I'm sure we will hear from council for Veritas. Council for Veritas as to whether or not this is even a timely appeal. And the reason I raise that. Is because if this board were to find that this is not in fact a timely appeal. You don't have jurisdiction to entertain the appeal. So that's a, that's a threshold question. The board will have to get to. Assuming the board finds that you do have jurisdiction to entertain this appeal. The statute is pretty clear that you can hear and decide appeals. Pursuant to the statute section eight, which is what, um, this latest appeal has been brought under. And it does go on to say that in exercising these powers, the board of appeals may, um, make orders or decisions where you either reverse or affirm and hold or impart or modify any order or decision. And to that end, you shall have all the powers of the officer from who the appeal is taken and may issue or direct the issuance of a permit. So that's a lot to be said. So what does that all mean? If you accept, you know, the timely appeal of the issuance of a building permit, it goes with it in this case, the site plan review. The board can revoke the building permit. The board can uphold the building permit. That building part of course is, is bolstered by the underlying planning board site plan approval decision. So we can't ignore, um, the underlying decision that literally gave the applicant the, um, ability to go and seek the building permit. You can only revoke a building permit in this context if you find that there is some sort of zoning violation. And to do that, you really do have to look at the underlying site plan approval decision. Um, unless there's something obvious to you all in the issuance of the building permit and looking at the plans that were issued with respect to the building permit. I think you do have to consider both the permit and in the context of what the planning board site plan approval decision was. There's nothing in chapter 48, nor has anyone cited to anything, nor has my research revealed any authority for this board to issue sort of a temporary stay proceedings. I certainly understand that the applicant feels that the more work that goes on, the more harm that the neighbors may suffer. Similarly, you have an applicant that at least for the moment has a validly issued building permit and has a right to exercise that building permit. So if we tell the applicant. Notwithstanding the fact that you have a valid building permit. You need to stop work. They're also going to be harmed. So I think we have to consider the balance there. As I read the statute and my experience with these types of appeals. I think the board has to actually ultimately reach a decision. I think you have to find that there is a violation in order to impose a cease and desist or a stop work or to revoke the building permit. Now, if the applicant wanted to offer to refrain from doing any more work while this process is going forward, that's certainly something that could be asked for. Certainly something they could offer. But I don't think this board has the authority in my opinion. And I will say I am no judge. I am simply your attorney. And you can agree with me. You can disagree with me. But at least in my opinion, I don't think you have the authority to tamper with the building permit that is in effect or tell an applicant they can't continue with it just because you need to get to the heart of the matter or you need more time to get to the heart of the matter. But I think I've answered your question. You've answered the question better than I have. I have a question. If something were to be revoked, could it then be re-brought back at a later date in the same capacity without prejudice? If needed. If you're thinking in the context perhaps of a repetitive petition situation, if that's what you're thinking, I mean, if the answer is yes, it can be brought back. If the building permit is revoked, then ostensibly you've revoked it because you found that somehow or other it was issued not in compliance with zoning, not in compliance with the planning board's decision. So the applicant has the right to cure that if they choose. They also have the right, by the way, to appeal your decision to court if that's ultimately what the board decided to do. But assuming you were to revoke the permit and say whatever you're going to find, and I don't want to presuppose what the board may find, but you'd obviously have to find some sort of zoning violation. The applicant could cure that and come back to the building inspector at that point seeking reinstatement of the building permit. Thank you. If I may, Mr. White, I think Attorney Murray did a very admirable job juggling those issues. I think her recitation of the powers that this board has in General Laws Chapter 48 Section 14 is appropriate. As I think she telegraphed, I see those as more expansive perhaps than she did. I agree with her insofar as the exercise of any type of stop work from this board would require a decision, a vote, and a finding by this board to issue that stop work order. Respectfully, I believe that there is sufficient material that's before this board. I understand your concern perhaps about getting down to the weeds and stormwater calculations, but I think that highlighting the non-compliance with the aquifer protection overlay district in and of itself, I think probably gives strong grounds that this project really needs to go back to site plan review process. And that this building permit was issued an error. That, I believe, is a finding that you could make, and that could give grounds for a determination and a vote that would support a stop work order. And if I may, Mr. White, since, as counsel alluded, counsel for the applicant is here as well, and I anticipate that when they present, they will likely argue that this is not timely. And I guess I'll just, we addressed that somewhat in our papers, but to amplify it a little bit more, I think I'd like to draw attention that Mr. Silverstein's law partner is the author of a law-respected handbook on land use planning, attorney Mark Bobrowski, who I believe represented the applicant before the planning board. And he has an entire section, section 908A, which is just called problems. And it's problems with the difficulty of appealing a site plan. As he notes, several problems persist and deserve immediate attention from the legislature, but I can tell you that since this edition came out, the legislature has not provided any better guidance. In this situation, Mr. Muscari received notice of the building permit, as Mr. Silverstein's submission indicates, and then he promptly filed with the town clerk a request for zoning relief under General Law Chapter 48, Section 8. Yes, there's language in there that it was addressed to the town clerk with the CC with the building commissioner, and there's language there that was seeking enforcement, but it essentially laid out the grounds of the appeal that I've just laid before you as well. And he articulated that he had concerns about the issuance of the building permit based on errors in the site plan approval process, and he highlighted non-compliance with the aquifer protection district and the other elements that I enumerated. I think the key elements of referencing the statute 48, Section 8 for seeking Zoning Board of Appeals review of the issuance of a building permit and filing that, getting that on file with the town clerk, those two elements, I think, are far more than enough to establish that this board has jurisdiction to hear that. As you are likely aware, and as Mr. Silverstein's filing highlights, Mr. Muscari also filed a request for an appeal after he, there was no response to that letter from the building commissioner, and we would maintain that that appeal is equally before you as well. But the more important one is that initial appeal filed in November, well within the 30-day period of the issuance of the building permit. While certain elements of that don't have the precise magic incantation to say that it was an appeal, that citation to 48 and the filing with the town clerk, I think, are well enough to establish jurisdiction for this board to hear the appeal. Thank you. Thank you. Thank you. Yeah, I appreciate that. I appreciate that that's a title problem, because this is the easiest case we've ever had. So, there are probably additional questions, but what I'd like to do is I'd like to hear from the Council for Veritas. I'd like to hear the presentation, and then, again, trying to sort of work our way through this. This is very complicated. I, you know, we're sort of talking about specific details, but I know we also do have to talk about threshold questions, so I think we answered some of those by asking questions about the limits of this board's power with respect to acting for a temporary halt to construction. But I sort of, there will probably be additional questions. Great. And I know you're mindful of time, but I also know there are members of the public that also wish to be right on this. Correct. Yes. I'll be available. Okay. Thank you. So, yes, if you could, you could come up and introduce yourself, and I'm sure give us an overview of an exactly opposite position, which is understood and appreciated. Thank you, Mr. Chair. Thank you. For the record, my name is Jonathan Silverstein. I am a partner at Flatton and Pabrowski, Haverty, and Silverstein with offices in Concord. I'm counseled for Eritas Christian Academy, which was the recipient of the building permit that set issue here. If I could begin with what I would submit is a threshold jurisdictional issue, and that I would suggest to Ms. Murray, who I've partnered for many years. It seems to me it makes sense before the board digs in through the weeds of what took the planning board nine months and over a dozen hearing sessions with peer review reports, expert determinations, engineer reports, just one little correction to my brother. Mr. Horsley is not an engineer, but nine months of dense technical analysis before you decide as a board to delve into that. My suggestion would be to make a threshold determination of whether this matters even properly before the board. And I submit that it is crystal clear that it is not properly before the board. Why do I say that? Case law is well established that when an applicant has knowledge of a building permit issuance, they cannot appeal a denial of an enforcement request as a way to get around the 30-day deadline to appeal the building permit issuance to the zoning board of appeals. So, in his letter, counsel for the appellant points and quotes some of the language from chapter 48, section 15, which deals with the procedures for appealing the decision of the building official. Mr. Horsley notes correctly. Mr. Horsley notes correctly that notice of the appeal has to be filed with the town clerk. Interestingly absent from the quoted language in the letter is the following and to the permit granting authority. That's the zoning board of appeals. So, yes, the town clerk got the November 18 letter and the building commissioner got the November 18 letter. And you know, you know, in the beginning, this board. Or, it's staff. The applicant's attorney cites to a land court decision in which in what's called dicta, meaning not part of the decision that was crucial to the ultimate judgment, the land court, a letter that was filed with the Somerville city clerk and the Somerville inspectional services department and the Somerville office of strategic planning and economic development, which staffed the zoning board of appeals in Somerville, and that said in the Rayline appeal, a building permit, and that included the filing fee for an appeal, that that constituted adequate exercise of an appeal within 30 days. So, I'm not sure that decision, that piece of the decision was properly decided. It was never subject to appeal because the defendants won the case anyway. In my view, it conflates notice of an appeal with the filing of an appeal. It's readily distinguishable anyways, because what Mr. Mascari did not do is provide a copy of his letter to this board within 30 days, file a filing fee for an appeal, or say it was an appeal anywhere. Use the word an appeal. All of those are distinguishing facts from the Somerville case that cited in Mr. Mascari's counsel's letter.
The statute clearly says an appeal has to be filed with the permit-granting authority. It wasn't.
We are entitled to rely on the fact. I mean, we were not required to give notice of the billing permit's issuance to parties in interest. Why did we do it? So that this wouldn't happen. So that we wouldn't get blindsided after we commence construction with an unappealed building permit by, what, if I have to get to the merits of this?
I can't convey to the substantive arguments are. But 30 days went by and nothing was filed with this board. And that's exactly what the statute in the case law prohibits. I'm happy, let me say, I will deal in turn with each of the arguments made by the Appellance Council as to the alleged zoning violations and other issues. They're all completely meritless.
In any way, presume to tell the board how to run this hearing. But I guess I just would ask if you want me to take a pause before I go into all of that, and if the board would be inclined to make a threshold determination on the jurisdictional issue, because this is not properly before you.
Thank you. I think it probably does. In as much as I do want to afford you the opportunity to sort of be able to speak to the points that were raised, this threshold question is quite complicated, because as you can imagine, there is the legal question and then there is the perception question. If this board were to say, we don't have the authority to hear this case, I have a feeling that a lot of people who are here this evening sort of in a way feel deprived of a process venue. That doesn't mean there isn't another venue that this matter could be discussed in. And I know that's a perception thing. That's not necessarily a strictly legal question. And I'm not an attorney, so I can't sort of, you know, opine on the merits of that. But I guess I would ask for assistance from our town council on any guidance on evaluating this question of thresholds. I've read both letters, and I'm not necessarily sure exactly how to sort of go about this question of determining the threshold as to whether this is a timely appeal or not, because I could read both of those statements and come away with an opinion on them. And they both seem equally compelling. So I think in order to analyze this, we need to know what the timeline is and be clear about that. So the building permit issued on October 30th, the applicant, I should say Veritas, the applicant in the underlying matter, did send notice of the fact that a building permit had issued. And they did in their packet include proof that Mr. Muscari had, in fact, signed that he received a copy of that. As council noted, there is no statutory or bylaw requirement that when a building permit is issued that anyone needs to get notice of it. Someone could literally get a building permit, stick it in their pocket, as they say, for 30 days, and just wait to see if there are any appeals. Someone could also get the building permit and the very next day start sticking a shovel in the ground and then notice that the public gets is, gee, what's going on? I see construction vehicles on site or some work is on, is going on. So notice of the building permit issuing can be a letter sent to someone. It can also be noticed that work is being done in the, in the area. There is also case law as council for Veritas alluded to, um, and site is called the Gallivan case. That is an appellate level case where, uh, in their neighboring town of Wellesley, where a building permit was issued and a butter watched the construction go on for some period of time. And then, in the court's words, sat on her hands, sat on her rights, um, and didn't bring an appeal of the building permit because too much time had passed, but actually, um, brought an appeal for zoning enforcement action. And the court said, no, you had notice that a building permit had issued, you needed to appeal the building permit, not do an end around and seek zoning enforcement when you knew of the allegations of, of zoning by alleged zoning violations at the time that the building permit issued, the time that the work began on the site. Um, um, um, counsel for, um, the appellant has also cited in their papers, a case called Murrow versus YM Somerville and council for Veritas just sort of explains that, um, this is just a land court case. And I don't mean that to be disparaging to the land court, um, but I say that because it is not binding on the town of Weyland. If it went up to an appeals court with a Supreme Judicial Court, it would be binding on us, but it is not. Nonetheless, the land court in that case was struggling with a similar situation as, um, attorney Silverstein described where something purporting to be an appeal of the building permit and said, and the court actually cited to the reference line of the letter saying appeal of building permit, and it included the building permit numbers. It was a, it was filed with the town clerk. It was filed with staff that supports the zoning board of appeals. So you have to compare that with Mr. Mascari's November 18th, 2025 letter. Where the reference line, to the extent that that is something compelling to you, says request for zoning enforcement. Yes, I acknowledge it references chapter 48, section seven and section eight, but it says request for zoning enforcement. The opening line is I hereby request zoning enforcement. The closing, uh, requested action, um, you know, does go on to say, again, it cites chapter 48, section seven. Section seven, which is the statute under which, or one of the statutes that relates to zoning enforcement action, but it does also go on to request withdrawal, suspension, modification of the permit. So I don't expect now, then we should also then note. That.
Then on December 5th, but stamped in with the building department on December 8th. Is the actual application. To the ZBA. I think the thing that has really triggered us to be here tonight. Whether you take December 5th is the date or December 8th is the date that it was stamped, um, received. That's certainly more than 30 days past October 30th. So you really do need to focus on. What you think this October, sorry, November 18th letter. What you think this October, um, is, uh, uh, uh, uh, uh, prior court has decided this exact issue and determines that this was a timely appeal. The cases that the court looked to arise under chapter 48, but has to do with an appeal when notice of an appeal is filed with court and with the town clerk. So not exactly comparing apples to apples, but again, a land court judge felt that in that instance, there was enough in that initial letter to put the zoning board on notice that a building permit was being appealed. Do you have all of those elements here with the November 18th letter? No, you do not compare them side by side with the case, with the case law. But again, you're not bound by the holding of the morrow case. You could just find it to be, um, certainly something that would guide us that if this goes off to court and I suspect it will, um, it'll ultimately be a decision for the court to make. But, uh, I think the court's going to struggle with how to interpret this November 18th letter. One thing I do want to note is that in, uh, Vero's cover letter to the board and in their opening statement, uh, the attorney said they also represented Patrick Cavanaugh. You did not receive an appeal of any sort from Patrick Cavanaugh within 30 days of the issuance of the building permit. I know most of the attention is on Mr. Muscari, but I don't want us to lose sight of the fact that, um, someone else has also been named as, um, as an appellant. So I'll pause there, Mr. Chair, in case that was helpful or the board has any further questions. That was helpful. I guess I had a little bit about the questions.
It was a Mr. Kavanaugh mentioned. I did too. Do we need more than that? Do we need more than one person to be making a, um, an appeal to actually, once you have one? For the purposes of this discussion, I'm not asserting that Mr. Kavanaugh filed an appeal. It is the documents for Mr. Muscari. Thank you. Thank you. So I, I don't know if we need that from, I think Mr. Muscari with the 18th notification is trying to make an appeal. Um, which for me is within the 30 day and you have documentation for that. So, I mean, I'm, I'm inclined to hear the appeal because we have at least one person within the timeframe to make a request. Um, I don't know what any other board members feel like, so when you say your, your appeal, I mean, we don't, well, to move forward a violation. Um, the threshold question as to whether or not, I mean, we've heard, we've heard, we've heard, we've heard two, two statements about, about this. I think this board has to make a decision. I think we've also heard that likely, like, however we decide, this will ultimately be, be an issue for a court to decide. And the court would be, we're struggling with this, um, if a court would struggle with this, I would imagine we're going to struggle with this particular question. Um, is there any legal question? You know, there was, there was some other attorneys on the board here about that nuance. This is a very particular nuance question.
Strict interpretation, you know, is, are the elements there?
Well, again, and this is really for the board's determination. If we look at Mr. Muscaro's November 18th letter, it's addressed to the town clerk and the building commissioner. It is not sent to the permit granting authority, which as attorney Silverstein said, would have been the, um, in this instance of appealing a building permit, you will appeal to the zoning board of appeals. I would just contrast that with the actual application that was filled out subsequently, um, you know, zoning board of appeals application for hearing, um, is very deliberately filed with the zoning board of appeals, um, and a different form, which you could take as suggesting nothing. You could also take it as suggesting there's a difference between this letter of November 18th and then this application to the ZBA filed in December, um, if we follow, and, and I'm happy to circulate the Murrow case to folks. It wasn't very long if folks want to read it, um, the Murrow case focused on the reference line in the Murrow case. It said appeal of building permit and said building permit numbers here. The reference line is request for zoning enforcement. Yeah, this is not the, the opening line of, of the November 18th letter is pursuant to chapter 48 section seven and eight. I hereby request zoning enforcement regarding the building permit issued on October 30th. Um, it's unfortunately, it's really a decision for the board as to how you, do you think the November 18th letter has enough of the elements here? To advise you that this was an appeal of a building permit. So it's the question if there were no December letter. Would we have ever known from the November letter that there were an appeal that there wasn't? I think that's part of it. I don't, I, I'm not suggesting that's the only question, but I do think that is part of it because the November 18th letter was certainly not addressed to you. I don't know if it was shared with any of them prior to these proceedings coming into being, but it certainly was not addressed to you, unlike the subsequent appeal, which, you know, like I said, it's on your zoning board of appeals application form. It gets filed with the town clerk and it goes through the process so that, you know, that you've truly got an appeal before you. I have a question. If an awareness is given to the building department, is there an understanding that the building department would automatically be notifying the CBA as part of its, um, receiving of that notification with that understanding? Is there a requirement, the building commissioner or the building department forward everything they received to the CBA? No, there isn't. Um, if in the ordinary course of things, folks request zoning enforcement action pretty frequently. And I'm certainly not going to speak for the building commissioner, but I would venture to guess that when he gets a request for zoning enforcement, the building commissioner reviews it. It makes a determination whether he thinks any action is necessary. I don't know whether the building commissioner's practice is to bring the zoning board of appeals into the loop on that. Or is it only if the person requesting zoning enforcement action is not pleased with the response from the building commissioner that it then rises to a level that it is shared with your board. I just wasn't sure if there was an expectation or thought process behind that as well, so. There may have been an expectation. I really can't get into the minds of the various people. No problem. And that's, I wouldn't, I wouldn't, we have to go off the documentation. And in fairness to, to Mr. Muscari, he's representing himself in that, at that point in time. Correct. Mr. Chair, could I? Sure. Just a couple of quick things. You have a checklist on your website. It's not complicated. You make it very clear how to go about submitting an appeal to this board. And Mr. Muscari had no difficulty following that procedure. This notion that he really intended that November 18 letter as an appeal, I submit, is a post hoc attempt to get around by his counsel who comes in after the appeal is filed. And before seeing my letter, I'm sure the first thing he did was look at this and say, oh, shoot, we missed the deadline. What can we do to explain that away? There's nothing in that letter. The ZBA isn't mentioned. It isn't copied. No filing fee is submitted. No application form is filled out. The December 5 appeal doesn't say that was intended as an appeal. What does it say? It says the building commissioner's failure to respond within 14 days constitutes a constructive denial, a notion that many cases have flatly rejected. This is all respectfully dissemblance after the fact to try to suggest that that original letter was something other than what it explicitly said it was, a request for zoning enforcement. Why would the building commissioner have forwarded that to the board? I don't want to speak for him. I don't want to speak for him. But if I were in his shoes getting that letter, I would have no reason to believe that this is intended as an appeal. Because again, it doesn't mention the ZBA. It doesn't use the word appeal. It uses the word enforcement many times. So, I think if we're all, I understand reaction to what is perceived as, man, that's a harsh result for a technical failure. But that's the law. And the case law is clear that the board is without jurisdiction. That means you don't hear it to make people feel like the process is fair when you don't have jurisdiction. And you don't have jurisdiction. He clearly knew how to file an appeal. The board's website told him how to file an appeal. He did it a week later. And what did he claim? Not that he had filed a timely appeal and he's following up on it. He claimed he was appealing a constructive denial because his request for enforcement, that's what he calls it in his appeal to you, was not responded to by the building commissioner. I don't think anyone who is honestly looking at this can pretend otherwise. Mr. White, if I may. Yes. Just a few points. I mean, as Attorney Murray has stated, Mr. Mascari did do this without kind of good counsel. Mr. Silverstein's recitation is correct. We came in after those documents were filed. And yet, we feel strongly that the town was on notice by virtue of the November 18th submittal that he was seeking an appeal under. But he references both Section 7 and Section 8. And Section 8 is the statutory reference for the appeal to appropriate granting authority. To the extent that folks are elevating the concern about what was mentioned in a reline, he makes the appropriate statutory reference that he's seeking an appeal of a bill increment. And I think that the December 5th letter has more bells and whistles, the application was the November 18th letter establishes that intent to appeal the building permit based on the failures of the site plan approval process. He's very detailed in that regard what those deficiencies are. And I think that the hallmarks are there for the institution of an appeal. Thank you. Thank you. Thank you. I have a question, probably for our town council attorney Murray. Even the difference of opinion between the applicants and Veritas on the merits of the site plan review. So, if this board determines that we do not have jurisdiction, what happens to this substantial difference of opinion? What would occur if this board determined that we don't have the ability to hear this appeal? If, if the board determines that you don't, that this was not a timely appeal, you don't have jurisdiction to hear the appeal. You don't have jurisdiction here, the appeal, the building permit and the site plan approval stand as is. Your decision, however, could still be appealed to court to fight over whether or not this was in fact a timely appeal. And depending upon what the court would rule, if the court agreed that it wasn't a timely appeal, that's really the end of it. If the court feels that there was enough in the November 18th letter to notify the town that this was an appeal of a building permit, then I would anticipate that what the court would do would be to remand the matter to the Zoning Board of Appeals for you to now address the merits of the appeal. Very helpful. Not necessarily. It's not. Can I make just one, like, super fast addition? And I just happened to pull up Mr. Mascari's appeal. And in the Ray line, if we're looking at Ray lines, of his appeal letter to this board, he titles it, Appeal under Chapter 40A, Section 8 and 15, Constructive Denial of Zoning Enforcement Request. I don't think that leaves any doubt as to what the February 18 letter was. At that time, did he have counsel? I have a question for you. Well, I mean, you may know better than, you just may be closer to it. I mean, the planning board here, they are the group that accepted the original proposal, that worked on this proposal over several months. Have we heard from the planning board in regards to whether or not the work that is being undertaken matches, you know, what they approved? We haven't received any communication from the planning board or the town commander on this matter. We've only received the information that we have, like, in the project file, which is the two letters from the appellate's attorney and the information from there, as well as some staff comments. But no, we don't, we don't have a, we don't have any communication from the planning board that I'm aware of. I don't know if Robert's still on or not. I don't know if you're abused. There's also decisions from the conservation commission and the board of health. We're all tied into this whole approval process that was voted on by the planning board in April of 24. And the appeal period for that was up 30 days in May, May 14th of 2014. So no one appealed that decision from the planning board at that time of all the, all the allegations for the work that's being performed now. I don't think that's accurate. The appeal of the planning board decision is upon the issuance of the building permit. Correct. I was, I was actually going to say that it, that is, you are correct with that. It's like that decision could not have been appealed as I understand it at that time. You know, if a building permit had been issued immediately after the site plan approval, it could have been. But as I understand our very quirky bylaw, that if it took two years between a site plan approval and a building permit, that's when that site plan approval would be appealed to the zoning board. You are correct. Right. In the issuance of the building permit. Yeah. So there would be no ability to. So even if the applicants wanted to appeal that site plan, it would not have been possible last year. Correct? Correct. Not until the way I. Not until the way, until the building permit for that work is issued. And then it falls on this body that had nothing to do with the project. That's an entirely. Oh, so we do have, we do have the town planner here. So did you have a, did you have a statement to make, uh, Mr. Rommel? Nope. I'm just here to answer any questions. Yeah. I guess I don't know if you want to restate that question to the, to the town planner with respect to this, but. Yeah, I guess, you know, we have a pretty limited scope where we've received kind of a limited amount of information around, um, all the work that's been done on this proposal over the last several months. Um, you know, there are some pretty, you know, serious allegations, um, brought by, uh, the abutters. To your knowledge is everything that, um, it was approved by the planning board. Does it match the work that has been done thus far? Yes. Yes. Uh, Robert home for the record town planner to the best of my knowledge, everything is, is in compliance. Um, there was some new issues that were brought up tonight about the setbacks. I do not believe we're in some of the letters from, from the advance, uh, council, um, with the parking and the fencing. Um, those are kind of separate issues. If you, if they put down temporary fencing on someone else's property, that's a completely different issue. That has nothing to do with the site plan itself. That was after the fact of the site plan approval. Um, that's, that's a completely different issue. So there are some other things in this with that Rob tonight that are kind of outside of the scope of what's going on. And it kind of need to be investigated on its own at a different time. But yes, best of my knowledge, everything is in compliance based on the plans that were approved. Thank you. So I just want to take us back to the letter itself for a second. Um, I reread it again, just for me. And while Mr. Mascari didn't actually call out appeal, there was the spirit of asking for an appeal without asking for an appeal here. It's very obvious that he didn't like what was happening and the follow up action of doing walking through the additional documentation of being able to set a proper appeal. On the 5th tells me that that letter does actually recognize the initial want from the town and everybody to actually have an appeal on this. So, it's definitely implying an appeal, it's whether or not we want to consider the influence, you know, being able to imply appeal is really a actionable piece for us. Because it's very obvious that in the letter he does not want and feels that there are issues here. And then doing the additional steps of being able to file the actual appeal tells me that he followed up on this. So, I don't know, I still feel like the letter itself still isn't playing and having that spirit of a full appeal and then actually doing the additional actions is in good faith of the actionable pieces within the timeframe. That's just my opinion. I don't know how the board feels about it and thoughts or whatever, so. But that is the core of the issue we have to... I understand, but I wanted to just sort of express that this, from reading it, there are certain statements that are being called out in chapters and stuff that are directly in dealing with this, which, like, I don't want to keep going around in circles and circles and circles. Like, I think that, I mean, this is fairly straightforward that he was looking for something and then he followed up and went through the right channels to be able to get that. So, why wouldn't we be willing to hear... We're not saying that we're not, you know, going one way or the other. We're just willing to listen to what that appeal is to be able to move forward. So, I don't think it hurts anything. I don't think it helps anything. I think it's just, I think it's a fair action for the originating email on the 18th to be considered as, as violent. So, I guess I have a question for Attorney Murray. If this board finds that the appeal was timely and we can hear this matter, our decision on that matter is appealable, correct? Correct. But not until you go through the whole process of reviewing the entire appeal and render decision. It's not like we can appeal that right away. No, no, I understand. I understand. It also looks like there was a statement that looks like a woman in the back would like to make. So, do we want to allow her to come up or... It's your problem. Are we doing that now? No, I think we have to make a determination. I think we have to make a determination on the threshold of this because, like, I'm mindful of several things. Like, we have a lot of people that want to speak. I'm mindful that we have not allowed this attorney to make a presentation on the merits of his points that we did hear from the counterpoints to the appellants of the application. So, I think we have to make a decision on the threshold. But would that be something that we have to vote on? Or is that... That might be one way to facilitate moving kind of off this point because if the board is of the mindset to hear or that it's timely or not timely, then you know whether this hearing is over or whether you're going to continue to hear the rest of the presentation on the merits of the appeal. So, I guess, in my opinion, and this is complicated, I think that the applicants did notify the town that they had concerns about the building permit that was being issued. I think they...I also think it's true that they didn't follow the proper procedure for that. But listening to the case law and the land court ruling, it does seem to me that we have latitude as a board to sort of make that determination if we choose to. So, I am somewhat persuaded that we should hear...we should hear this case so that I could be counter-persuaded by other members of the court. But I do think this is an important one. I think it's something we need to decide on relatively quickly so that we can decide what we're going to move on with. So, discussion? You guys, would you... We would just make a motion. We would just make a motion to vote on this? Well... I mean, for me, I feel like it depends on how much latitude we have. I mean, if we're going strictly based on the language, then... I mean, the language seems like it's very clear and the dates seem like they're...it seems like it's very clear. But if we're trying to...if we're saying the intention is...it is clear by the intention. He references the...the right...you know, the right language. Everything seems...it seems clear what he wants to be doing. But it...I guess I don't understand necessarily. And maybe council can...can tell me how much latitude we have. This isn't a court...we're...we're the zoning board. So, I don't know what exactly we're supposed to be...you know, it was...it...does intention mean anything? Or...or are we supposed to be reading this literally for the language? Because, you know, like that makes my decision. And part of it isn't...there's...see...uh...when I read it several times, I...I see like...there is not the ask. The ask is not there. There is not the clear-cut, um...or even more specific, um...request for...the building...the building commissioner's decision is not being appealed. It's not. It's not. If you...read it, and you can draw out of it, that there is, um...a confusion, and then...expression of trying to figure out...or...or...and say why...there's a thought that there is a problem here. But...and...but then it's...it's how much do you read into it? How much latitude do you get? How much, um...you know, there are checklists again, and people are referred to that. Um...and I appreciate that once...I didn't realize at first that there was no council. I think I skipped over that when I was reading this information. But I certainly appreciate council coming in and saying, let's do the best we can to see how we can get this to the result that you...you were hoping for. Um...so all of that keeps going around. And as Justine was saying, what is the latitude for...for the board? And, um...you know, but on the face, no. It's not there. Hang on one second. Well, I would...I would...I would like to have Attorney Barney answer, I guess, a few questions first. Sure. So...but for this Morrow versus Y.E.M. Somerville case, case law has been pretty clear on this matter. Um...I'd refer folks to Connors versus Amino. Right. Where, you know, again, a court of an appellate level very clearly said, one day late in filing an appeal is...is too late. And again, to go back to the Gallivan versus Wellesley case, you can't...you can't have noticed that a building permit has issued. And rather than appeal the building permit, seek zoning enforcement action. So, you have appellate level cases saying that. Then we have this Morrow versus Y.E.M. Somerville case that, again, is just a land court case. And I...I don't say that to be disparaging to the land court. But there's significance to that in that a land court case is not binding on all the cities and towns in Massachusetts. Does it mean that the...that what the court says in the case may not be helpful guidance to us if we're thinking, how do we think our case might be appealed if it were to go that route? So, that one land court judge that no appeal support has weighed in on yet said, well, I think you can look and have a little bit of latitude. You can look at the reference line. Now, I do also want to say that at least also in the Morrow case, while it wasn't entirely clear, you know, what the appellant was looking to do there, you don't have the exact same facts here. Where you have the November 18th letter. That's certainly within a 30-day time period, followed up by a December 5th stamped in on December 8th ZBA appeal application. That's clearly beyond the 30-day timeline. So, if we're going to rely upon just this one land court judge, there is some degree of attitude that you're given that, yes, you could look to what was the intent of that appeal. You know, was it not as artfully crafted as it could have been if Mr. Muscari had had the benefit of counsel at the time. But, it also does kind of go against a fair number of other cases where appeals court have looked at this and have said, sorry. So, all I can say is I very much appreciate the decision you have to make and I wish I could give you a bright line case out there to say, the answer is, and you must do this. But, the best I can give you is weigh those cases for you. Thank you. I just wanted to... Yes, sorry. Mr. Muscari is traveling for work today, but he has joined the Zoom and he did raise his hand within the Zoom. Okay. I'm happy to sort of... I mean, I guess the question is, should we, before we hear from the applicant, should we make a determination on this question of threshold or should we hear from the applicant who will make that determination? I personally think it's worth hearing from him. I mean, he may have something to say as to why he's been held out of appeal. I think it's reasonable. Yeah, so would you be able to elevate? Yeah. Can you hear me? Yes, we can. Good evening. Thank you. Good evening, everybody. I really appreciate the chance to be able to speak. And chair and members of the board, I want to thank you guys for hearing this tonight. I'm sorry I can't be in there in person, but I just want to put to rest any question around my intent. It is crystal clear that I intended to appeal this. As a non-represented taxpayer, online searches indicated that the process I followed was appropriate and correct. I was appealing this in my November letter. And the idea that it is late is just uncharacteristically true. Also, the idea that we somehow sat on our hands is also simply not true. Our entire neighborhood who is behind you right now and is gathered with other residents from the town have been following this planning process for months and months and months. I clearly referenced sections for an appeal in my communication to the town. I did my best as a taxpaying resident who has followed this for over a year to make my intentions clear and speak for our whole neighborhood. We aren't lawyers. We're parents in this town. I'm a soccer coach and a dedicated citizen who volunteers his time to make this town why we all want to live here. We are taxpayers and we put our trust in boards like you to represent us. As residents, we were told we could not appeal the site plan decisions directly and that the first appealable action available to us was the building permit decision. And we acted promptly. We followed the town's process and there is a clear ask. We're all here pleading with you to hear that collective ask and the idea that we have put this much effort into chairing this effort and that we don't want to appeal is a bit strange. It's very clear from the number of residents of the room and the quality of the presentation that we put forward that this is a community wide issue grounded in real planning and engineering questions. We love this town and we want to protect it. Why would we sit and wait on the sidelines? And why would I not intend to appeal? Why would we waste everyone's time? The idea that we're arguing a technicality instead of the case is exactly why this room is full today. Thank you for hearing our case. We really hope that you will move forward to at least try to stop work until this situation continues to get worse. And we prefer preserve the status quo of this appeal until it's heard on its merits. Thank you. Thank you. I mean, I think we have to we have to make a decision on what we're doing here. I think we've heard to like compelling arguments, one in favor and one opposed to whether or not we hear this. I think it's also clear to me that regardless of what this board determines, this case is going to go on for a while and is likely going to result in sort of like action on court. So I think it's important that we make a decision to sort of be able to move something forward. So entertain a motion. I move that we accept the appeal and continue discussions about the appeal on both sides. Second. To make a board. I suppose that's true. That's true. That's true. Yeah. What is the quantity of them? What do you move for? Is it two thirds? I think. Majority. I think this would just be a majority vote. So, I mean, the panel would be the five permanent members. Mr. Hirsch, Mr. White, Mr. Curry, Ms. Jenison, Ms. Paul. So. All in favor? Aye. Opposed? All right. So we've made that determination that we think the appeal is timely. So, based on that, what I propose we do is we listen to the balance of the material from Veritas and probably answer or allow some members to speak. I guess I should sort of preface this by saying that obviously, you know, that we're going to get on this path with the board here. Like, we do not have the benefit of having attended any of the planning board meetings. So, this is a process that is going to be complicated, and I think it's going to require some supplemental meetings. Because if we continue our cadence of monthly meetings for a case like this, I'm concerned that, you know, if this goes all the way, this could take as many hearings as the planning board took for the approval of this project. So. Can I ask a question? Should we do something about our other two cases? Thank you. Because this is going to not be quick. Yes, we could. I mean, I mean, I suppose, but I mean, to do that, though, we would have to pause. Yeah, I'm just saying that we're in the middle of a particular case. We would actually have to stop. Yeah. We would actually have to open the hearing for those cases, then go to continue them. So, it's perfect that we can avail ourselves. Right. We should just come every month. We should have you here every time. Absolutely. If the question is, could you take, could you just, you know, you know, I wouldn't table. I think you could just say, pause this hearing for five minutes. Take up the other two. If you think those are just simple continuances. And then we come back. You could, you could do that. I don't think anybody would mind the four or five minutes. Or if you don't, I'm not sure if it would, those are simple continuances, you could offer them a continuance now so that they would not need to stay until. Yeah. Now, if we offer them a continuance, do we need to vote on that? Yes. So, we still, so if we do that, we still need, no matter what we need to do, we would have to pause this. We would have to pause this process. I think that makes, I think that makes sense. I think we could dispense of this inside of five minutes. That's. Of course. Okay. Thank you. Thank you. So, do we want to make it official and say that it does? It's fine for some people. Well, yeah, I don't know. Do we, that was, do we actually, you don't have to vote on that? Do we simply announce that we're taking a pause for this? Right. You could, or just, if you want to make a motion to put this in recess for five minutes and then go to whatever's next on your agenda to address those. Move for recess for five minutes. Second. All in favor? Aye. Aye. Aye. Aye. Aye.
Aye. Aye. Aye. Aye. R30 zoning district the applicant seeks a special permit variance or other applicable zoning leave to demolish the existing structure and construct re-placement following the lot is pre-existing and not performing with respect to the minimum lot area requirements um what i would suggest is that um i propose that you look for a continuance um for 7 15 uh at the next applicable hearing which is the calendar uh February February 10th so is that yes is that amenable to the applicant
good evening good evening mr chair members of the board um i'm glad our 7 15 scheduling worked out tonight yeah you know it just seems like no matter which way you do it it's all someone's always gonna get the short end of it um but i you know i'm ready i i know that it's late i appreciate the board's time i've enjoyed the um merits of what we're discussing with some council that i know well in my own practice um you know unfortunately my applicant is ready to go on you know at least present something in terms of both of these um i suppose that the um the board uh and the town council can assist on that i think the board may have the authority to um request a continuance on our behalf um you know that's what we're doing okay well um you know it seems seems to be that that's what that's what we're doing so um okay i i'm i'm ready to go i understand what the board has before you tonight and be trying to be respectful to be possible for us to proceed um this evening um so we need to vote on this yes a motion to continue the two cases or one case on to a date certain can i just request at least that we're first on the next meeting for both of them so i don't duck behind something like this again you can absolutely request that um so we only opened the cake the first case 43 plain road uh do i need to read the notice if you want to pass this motion for both cases you can do that for both have have you opened the hearings on both yes previously yes um yes yeah we have opened both cases you could do one motion to continue both of those cases all right so i'd make a motion that we continue zva case 25-30 for 43 plain road and zvk zva case is 25-35 for 8th parkridge road to 7 p.m on no 7 50. we have the other stuff at 7. 705 705 to 705 on february 10th yeah second all in favor all right opposed none all right so thank you for your patience i appreciate it so um we will see you up first on uh february 10th sounds great thank you for your time all right thank you all right so um we can move to
technically we're still in recess yes yeah you know where it is no i'll show you
you know we've been here enough follow me okay
we need to pause the recording
i can't answer that question i'll sit here
oh come on we're still recording of course that's wild i want some members of our audience i want some members of our audience to be watching i'm trying to be able to see some humor
so um yes we are out of recess and uh back for our case we need to vote on that right yeah okay um so what i propose we do is um at this point i think we should plan on uh listening to the balance of the presentation from varitas's council and i think this board should consider adopting an interim meeting to to um continue this because this we aren't going to be able to make a decision on anything this evening and i think we'll get this board's going to need some a lot of additional material and i think this board's going to need to take some additional testimony so we also need to know what the scope is that we are reviewing um so um if you want if you you would like to resume um your presentation um i think that that would make the most effective use of the time that we have left this evening uh we then consider uh adding interim meeting so thank you mr chair um i do want to say that uh because we and we continue to feel strongly that um this matter is not currently before the board the full suite of project consultants who no i understand that and we we weren't expecting we weren't expecting that this evening it's like especially we know it was going to take us a long time to get through this question i just wanted to give you the opportunity to to make a presentation and i understand that the questions raised by the applicants are going to require numerous consultants to be involved so i certainly was not i'm not i don't want to ambush you and that is not at all the intent i just want to afford you the opportunity again to make a statement um you know based i think on those i would say kind of four kind of four points that the applicant citizens raised there are more of it yeah so i want to start with a couple of overarching points again nine month dozen session public hearing
all of these issues were thoroughly reviewed and peer-reviewed and re-reviewed attached to mr durning's letter for some reports by mr horsley again not an engineer all of those reports were thoroughly discredited not just by vca's experts but by the planning board's peer reviewer and he cites two statements made and questions raised by the peer reviewer early in the hearing process by the end of the hearing process the peer reviewer fully agreed that all of those issues had been addressed as the building commissioner noted the board of health has approved the septic system all of this nonsense about flooding of the resulting from mounding above the septic system was thoroughly addressed what was that mounding 30 feet away from the property line an increase above seasonal high groundwater of three inches where seasonal high groundwater is eight feet underground
all of these arguments are nonsense and they were fully discredited the planning board considered them it had expert advice and it rejected them properly this notion that you have to take just one
lot of all the property that comprises this development site that doesn't happen in zoning that's not how it works in zoning you treat the lot as a whole it doesn't matter what the property lines used to be this is one development site and dep right after mr horsley's letter in march of 25 emailed him and told him it was nonsense they specifically said to him no you're wrong you consider the entire property and not just what's in the zone going to it's not going to be a tennis court but even if it were let's look let's step back and know what the dover amendment is the dover amendment says non-profit educational uses among others cannot be prohibited or unreasonably regulated but they can be subject to certain reasonable dimensional restrictions mr durney tried to flip it on his head he said the burden was on us to prove what was reasonable no that's not what the case law says the case law says that if some if a board or a town wants to impose a dimensional requirement on a dover protected use it has to be reasonably applied and what does that mean it means as the case law provides it can't prohibit unduly inhibit or unreasonably increase the expense of the project well we can't build our project if mr durning's interpretation is correct and that means even if the apod zoning plus your plus were applicable otherwise which is not under dover it would be on its face unreasonable as applied to our project but the fact is that your zoning explicitly exempts fences and a number of other structures from the setback requirement and that would include construction fencing the bombshell that there's nothing in the zoning appeal about this supposed three-line infraction and respectively i don't think that's matter for the board anyway the courtesy it'd be nice to receive a copy of the survey that supposedly shows this if we need to move our construction fencing we will that wouldn't be a ground to revoke our building permit for the project itself anyway so i think that's just more dirt being thrown at the wall sports facility and the road
to the extent if they were considered structures which they're not such how can you have a road that has to be 30 feet set back from every property line kind of doesn't work because then you don't get to the property line with the road obviously that's a ludicrous notion but let's look at the planning board's decision and any dimensional waiver that's necessary it's up to the planning board under your zoning to determine whether to grant that relief so to the extent we needed dimensional relief for the sports facilities for the road the planning board gave it to us this is on page six of the decision quote the planning board approves the location of the proposed buildings roads stabilized slope material sports court the proposed building coverage the open space the parking areas as depicted in the final
so to the extent we're allegedly in violation of any setback requirement or any other dimensional requirement which we're not the planning board specifically approved it under the dover amendment which it appropriately did and so the question is is this board going to substitute its judgment for the planning board's decision to grant us that relief to approve site plan the site plan after a nine month public hearing process and dozens of peer review comments and reports unfortunately it's our bylaw says we're supposed to do that yeah it actually doesn't so your bylaw is silent and under case law because of one of these difficult problems in zoning law the courts have said that if your bylaw doesn't provide for any other sort of appeal then the only way to get at it is to appeal the issuance of the building permit to the zda and then to the court but that doesn't mean that there's any intentional delegation to this board by the by town meeting in the zoning bylaw hey you guys should re-invent the wheel and run your own nine-month hearing process i don't think there's any basis to suggest that that was ever the intent of town meeting in adopting the special dover protections for site limited site plan review in your bylaw that explicitly says the only thing that's supposed to be on the table is this small subset of dimensional requirements not groundwater not septic not nepa this board has nothing to do with the massachusetts environmental plus yet not construction fencing not tree removal none of it bulk and height of structures setbacks height yard area that's what the dover amendment allowed the planning board to consider and it's all that it would allow this board to consider did the planning board proceeding go way way beyond that scope it did and we had to go along with it and we think it made the project better but the septic approved the title five approval hasn't been appealed the conservation commission approvals haven't been appealed so are you gonna not only substitute your judgment for the planning board on these issues but also the board of health and the conservation commission commission after all the months and tens of thousands of dollars this is a non-profit educational school trying to improve its campus for its students it does a lot in the community notwithstanding what people that don't want in their backyard might say this is a hardship on a non-profit entity that's just trying to improve its school you heard from the planner we're not doing anything beyond what was authorized by the planning board we followed the process we went to the building commissioner we put everyone on notice when we got the building now we're going to have to go through this entire process again i don't think that's what's required of you could you do it if you really felt like it i mean i guess there's nothing we can do to stop you but you know what else you could do
you could look at the thoroughness of the process and say there's nothing on its face in any of these materials that leads us to think we could have done a better job than the planning board and so we're not going to take the extraordinary step over of an annulling the issuance of a building permit that was issued pursuant to a site plan review that followed a non-public hearing process that went way beyond the scope of what any dover project is supposed to have to deal with in the first place there is a worn and unfortunately successful practice among an indie attorneys you don't have to win on the merits just keep repeating the same untruths long enough you'll make it costly enough and you'll delay things long enough that you don't kill project that way it happens all the time and that's exactly what
the appellant is asking you to do here and i'm begging you not to do it this is again a non-profit they just want to improve their school they went through the process they went above and beyond every single one of these points there's nothing past march attached to mr turning's letter there were months of public hearings and additional ground water test holes test pits and analyses done after that and signed off on by the planning board's peer reviewers i guess all i'll say is i am begging the board not to force us to go through all of that again thank you i have a quick question um did mr brian zimmerman uh was mistaken about the tennis court i just want to make sure i have my facts right because that's what i was just told that's all i have no idea okay i wasn't there all all i know is that i got a message from my client saying it's not a tennis court it's not a tennis court okay but the fact is if it is whatever we can build what was shown on the approved site plan so i don't know and the planning board explicitly approved that so whatever is shown on the site plan is what we can build i guess i want to address one other issue only because it came up this notion of segmentation that we're somehow trying to hide the ball and we should be forced to put everything in front of the planning board all at once so i want to just clarify nine buildings ultimately um conceived of as part of of the entire or in future plans them already exist two of them are approved that's what we're building as well as site improvements four of the buildings concepts we don't have the funding we don't have designs are we really being told by mr durning that we can't build the buildings that we're ready to build until we design buildings that are just at the con conceptual level it's absurd and it's not required anywhere in the zoning bylaw or any case law so i i did want to note that too we're not hiding the ball as you can imagine nonprofit has to raise funds before it can move forward with the project we've raised these funds oh and by the way we're not taking any state funding so we're not subject to me but but if we were that's not a basis to apply appeal a building permit for the zoning board of appeals you're not the need by board of appeals that's in austin thank you thank you thank you yeah um so we're you know we are we are at 10 o'clock but we we i respect that um it took us a long time to get here and i know there are people here and stayed so like my inclination is to you know push on for a little bit longer and allow the people that have stayed you know to speak um i also think it's important that we understand that we are going to have to continue this um i i floated the idea of considering an interim meeting between our regular cadence of meetings uh one because i i expect that that there'll be additional people that are going to want to speak um how the board feels about that i think we have to have interim meetings so that we can continue with the other cases that come before us and it's um depending on the depth we go into it's really not i i do not feel that it is fair for other applicants to be waiting for their turn after this project if we have this case along with others i believe the other cases should go first i guess depending on the complaints but um generally yeah so how much notice do we have to give i was just going to ask how much notice do we have to give to add a meeting to our schedule you only need 48 hours notice under the open meeting law because you've already opened the public hearings you've already provided your legal notice and your posting for the hearing so the hearing has now begun so you could schedule a meeting next week if you wish to
or not yeah no right no just like the other words what do we think about the idea of if we come up with a time frame for a secondary meeting if anybody in the room can't come to that meeting they have the opportunity to speak here but otherwise maybe hold it because of the amount of resources that we have from the town to keep that in consideration though the other personnel that are here can speak at the next meeting that seems reasonable so as we as i think as we do with 40 days we also before we really leap into it figure out what it is that we have to hear and who we have to have before us such like that so i'm not saying that it should be done tonight but it certainly should be done at the next hearing so that we could better schedule forward
what we what our tasks are and who if anyone would need to have present not members of the public just um any any specialists of any kind you know do we do anything with the planning board that's another question i mean you don't typically have the planning board come in and defend their position um no that doesn't stop someone from the planning board representing more but you know as you heard from the planner tonight um yeah i think what you're really getting at is that you want to have like certain representatives like like the consultants the engineers if if you need them so but yeah to to you know to give us a greater idea of how deep do we go well i think that was a that was a that's a question that's been raised and i've heard two i've heard two different points i've heard i've heard a request to you know remand this back to the planning board to read that was what was what the applicant asked this back to the planning board right um to reopen the hearings to reopen the site plan yeah that would entail that would that would assume that we come to a finding that we we reject it somehow it needs to be re-reputed i had heard i don't know i'm just i'm speculating i don't i don't
they have a lot more knowledge on the project the other i mean i've also heard that you know could this board basically reopen the entire process and sort of re-go through the entire design this board is not set up to do that this board is not the planning board um this board while certainly we could entertain that this that's that's not the venue for this i don't think it's reasonable that this board could reopen the entire design process of this site plan so i i i don't i don't i don't i don't want this board to do that but it's my opinion i don't know how the rest of the board feels but i don't think that's a practical use of our time and i think that could conceivably be something that could take six months and i think that would while that may please some people i i do think that would put a burden on um the construction process right now and the rebuilding permits and approval that they haven't granted i don't think would be reasonable um i don't think it is either yeah i just want i hope that we just figure out with town council's assistance what is it that we really need to be doing going forward who is it do we have to have in front of us if we need people in front of us so that we can then start marching so um this is board want to hear from people that are here tonight does this board want to set up an alternate date first i mean we're going to need an alternate date regardless of who's here right i mean i i think that there's people in the room yes no why don't we discuss and then offer to anybody who cannot make that date for their schedule and speak this evening i guess i would propose i mean we'll propose a week from tonight it's for work so yeah yeah it is you do need four out of five of you to overturn the building permit so you do need to bear that in mind in terms of schedules yeah um we i just randomly picked a week from tonight we couldn't is there another day that works better for you just in or are you just always in hawaii because i i don't want that i'm in hawaii always so it would it would imply that it would have to be this week i'm leaving on thursday this week yeah let's let's set let's set the 20th mr chair if i may i have another zoning board to be with that night we can't have you there so yeah all right um the 19th
the 21st finally i i have something that night should we do this not what about the 22nd all right the the i cannot make the 22nd i can do the 23rd i don't care i can't do one i'm going to try to be as a comment what about the 20 what about the 26th i can do the 26th i can do it all right let's do that yeah that was great okay next week oh it's february yeah so so january january 26th at 7 p.m it was like a reasonable and so some p.m yeah do we need to vote on that this is that this is a question you will need to vote on it but i if i might suggest it might be helpful while you also have counsel for both parties present just to make sure that january 26th is fine so that they aren't requesting a continuance uh tomorrow morning uh that's fair great thank you mr white thank you that that date does work for me i do want to read one i want to thank the board for its delivering process tonight i appreciate that and i recognize the recommendation of uh identifying the issues to be reviewed i think we've spelled those out with our submittals but we can refine that it's required i do want to uh reiterate the concern that the work is really moving apace uh and there is a concern that with this uh appeal going forward that you know there's a there's a lot of work being performed that i realized maybe that's just that veritas of risk but um we have requested a uh stop work order and i'd like this board to consider whether or not that would be appropriate at this time i appreciate the report tried diligently to have a very short tail before this next meeting i appreciate that the board is adding interim meetings to its schedule and proceeding as promptly as it can but the concern about the continuing work is is a concern i'd like to look forward to consider that like it i i i would i would agree i i understand that it's a concern um however i i i don't think i i think we've heard tonight um and i think the board is aware that it would be very difficult for this board to make a decision tonight that that we you know three four of us uh cessation of construction activities i i i i can sympathize with the request and i i fully understand how people feel about that but i i think the board's hands are tied with respect to this i i don't think we i do not believe we have the ability to do that i think that's the reason why we're doing that that's the reason why i'd like to have interim an interim meeting here um i understand and i i'm doing that because i understand the need for us to move quickly but i i i i don't believe this board based on on case law has the ability to to um to vote to stop the work on this project while we evaluate this as much as i can appreciate the sincerity of the ask and the perception of that i really don't believe again but mr wright if i could i appreciate that i appreciate the thoughtfulness i also note that attorney murray did suggest that potentially the applicant veritas could agree to suspend during this period i don't know if we can hear from that it's it's it's true they they can um but they also they can continue to proceed potentially at risk if this board somehow finds that the um the the planning board made a mistake in their approval or the building commissioner made a mistake in his granting of the permit i mean this board could find that and in which case the construction proceeding would be would be at risk um but i i don't think we can if we could ask the question but i i don't know i officially i i feel awkward sort of with the board officially asking that as a question so um that's just a statement so yeah so yeah i'd like yeah i'd like to so so everyone is everyone that is here has obviously waited a long time so i i want to be respectful of that so if anyone has uh some issues they'd like to bring to our attention uh please come up and uh give us your name and address um that we charlotte has linked to him for quite some time is it okay to take online first absolutely sure before we get to that am i allowed to ask the question so that way council can you are allowed to ask any question you'd like council would you be open to uh pausing your uh permit willfully for until we're able to move forward so i guess my answer to that through you mr chair would be i don't have that authority any constituents that's not something that's without cost and that is that sort of clear cost but demobilize the construction team they mobilize we could have you know everyone so discussing this entire year isn't here and i'm not in the question totally fine thank you thank you okay sir
also before we do this um how much longer does the board want to go on this evening well i think we should only listen to people that cannot make the 26th okay okay so if there's anybody that can make the 26th please hold all your comments until the 26th so that way we can listen to you then if you cannot make the 26th we are happy to listen to you this evening we're also happy to receive letters and we're also happy to receive letters i think we should also try to keep the time limit to it'll be be yes try to keep it as brief as possible 10 13 now yep yeah we said and 10 30 at the very latest okay is that allowed okay okay 10 30 at the latest for anybody who cannot make the 26th okay good can you hear me yes we can good evening so if you could um be as brief and uh i guess as concise as possible i will i will do my my earnest best uh luke shardlow 22 shore drive oh yep luke shardlow 22 shore drive so uh look i appreciate you providing the opportunity to speak i'm going to try and keep this brief uh i'm speaking here for a very narrow purpose which is to respectfully request that the zba exercise its authority as outlined by town town council in this meeting under chapter 48 section 14 to affect an immediate stoppage of work on the veritas campus i also believe the building commissioner has the authority to to pursue the same um i wouldn't presume to speak down to you guys or instruct you on how you should interpret the facts of the case but i would like to make a brief comment on dover ahead of the substance of of my my earlier request so dover enshrines the power uh in the town to regulate a development bulk and i think um veritas council um uh stipulated this the cut fill plan that's that's being discussed involves 23 000 cubic yards now i'm not sure if everyone understands the magnitude of that but but let me just bring it into perspective here that's about 3000 construction size dump trucks and it will fill a football field including the end zones to about 11 feet deep seems like uh that's bulk that could be regulated but but let's move on to the to the substance of what i'm here to to discuss which is there are clear and material building permit errors the building permit authorizes infrastructure and occupancy for approximately 450 individuals however the planning board approval was for a much smaller program of 100 people um i actually have traffic studies printed out for the board if uh it please uh can can i have them distributed in the room please i suppose yes um if they're available if they're available is uh giselle shardlow still in the room
i have the the planning board the 108 yeah that's it yeah if you can just distribute those copies please so i draw your attention to the uh planning board the the submission to the planning board which speaks to the scale and scope of the traffic study that was performed and you'll see in there uh on page three i believe it's been highlighted for you that the traffic study was performed for 108 individuals we are now seeing a development and a building permit was approved that includes infrastructure for a much larger development this building permit error because it does not adhere to the planning board's approval i believe is sufficient uh sufficient grounds on its own for a stop work i mean i'd also like to draw attention to the fact that um burtas council indicated and i believe his words were we're not hiding the ball on additional buildings i mean the the plant the building plan itself has multiple concrete pads for additional buildings it has a septic uh infrastructure for 450 people now how do you reconcile the planning board's approval for a 100 person campus with this broader scope of works this clearly is a building permit error second you know i'm not going to speak to um you know i'm going to try and keep this brief but but look i veritas council said look if if there's encroachments on other people's uh property this isn't a big deal i mean i'm not sure where we we land on that but uh from my perspective what kind of engineering oversight is there when um the construction has encroached up to three feet onto a butter's property and we actually have uh the printouts if if the board would like to see them uh of the uh the assessors uh determination uh that identifies specifically where on the abutters property that the construction has um uh progressed into so i i think taken together the permitting errors and the engineering violations alone justify an immediate intervention and i respectfully request that the zba uh use their powers the town council indicated earlier in the meeting are vested in you to affect a stop work this is not going to be a short process of appeal and the damage that's being done now is irrevocable thank you for your time and consideration anybody else here tonight cannot make the meeting on the 26th just gives your name and address that'd be great my name is nicolette mascarry and i'm from 29 shaw drive which is a director butter of 164 172 gochituit road i had something prepared but i feel like those have been beaten like a dead horse so i'm just going to speak a little from the heart if you don't mind hearing the words like meritless no value nonsense absurd and ludicrous are instilling fear timelines complications and legal jargon of other cases it's very distracting and i think that that's by design we've heard from the council that he is begging you and we are also begging you to represent your taxpayers do your diligence take a pause you have the right to do that and we're asking you to do that tonight if they are not in violation as the council says that they are not let's just stop and take a look thank you please sign in thank you uh anybody else here tonight there's chris um what's in my line sure good evening can you guys hear me yes we can all right um my computer died so i had to switch to my phone so i don't have a camera available but um i'm chris the architect for veritas and um i'll be available on the 26th but there's um there's just comments that are uh just factually not correct that i don't want this board or the public to sit with for the next uh however many uh you know 14 days 13 days um do you want me to try to address those now or hold that till the 26th i just it's important as the council has said that this was um and and all of these abutters and everybody who was in the room the planning board went to great length much more than our firm has ever experienced on any public or private project that we've been through in a planning process and the facts are all there and i think that much like the last speaker sort of alluded to is that there there can be legal jargon there can be things said that cloud and fog the actual truth of what went what went down with the review of this project and i think you're only hearing little bits and pieces of facts from um from the appellant uh that both weighed into your decisions tonight but also may sit with you in a way that doesn't feel um like right for the next 13 days and so um i'm happy to just let it sit like that and let you know that it like you're hearing things that aren't right factually um and we can get down to the business of this on the uh the 23rd or whatever day you said but um just if if you want that uh mr white and and uh the zoning board uh i'm happy to help provide some color to that or we can wait i just want you to know that um that these things are um you know there's a lot here so so i uh mr buston i i agree i think that based on the time i i think it i think it makes sense that we we defer sort of those comments until the the next hearing which is on the uh we said on the 26th um but i i appreciate i appreciate the sentiment uh there um i think again based on on where we are it's going to be too difficult to go into those those in detail but if you have the ability or any inclination we're also happy to have an email if you want or you know sent over to the board to sort of highlight some of those items that you're raising yeah is it possible to send the entire planning file for your review yeah i think we actually have the entire the happy okay we have the decision okay well you haven't done i think we do have the entire package it's all on the planning board's application website yeah yeah so so i guess that's and there's also multiple sorry i'll let the towns counselor or the council speak sorry sorry chris i was just going to say my suggestion would be that before the next hearing session we'll i'll work with all of our project consultants and point five point at least that are there won't be additional new issues coming up at the next hearing that we didn't have notice of um and if mr durney wants a survey that supposedly shows that it's not a big deal each point in writing before the next hearing so that thank you um sorry i have a turnout of the survey and i was going to speak on that but it felt like i have to call the police instead you guys can't do anything about that is that true i forbid you tell us i was going to say i brought it up here you know it's like joe i don't think that is necessarily that is not what this board said um so if you want if you want if you want to come up and identify yourself uh and uh present some information that's we're fine to receive that okay i didn't mean to mention that i had it do you want to see it um it was mike smith from 25 shot drive on the butter to the property um and so i had an independent survey done um after the construction started seeing that the trees were coming down all the way up to what i thought was my property line and uh then the construction fence went up which is going into my property line now that i now know um and i have so this is showing that there's different lot markers for my property here and you can see the fence coming on really property pretty clearly i would like to have it taken off absolute reasonable request so yes if you could provide us copies of that for sure i can email us to you or if you want this now actually we can yeah we can take that now just so we have you can give that right to the to the building commissioner sure sure i have a close up on the fence area if you want to see that
and i think we also in fairness we do we do need to provide a copy of this to the um i was going to say the applicant but i i meant i meant to uh i would suggest we provide a copy to the council for veritas because i think if i can clarify deciding property line issues is not within the zba's jurisdiction doesn't mean you don't have an encroachment or a potential trespass which is what i think the building commissioner was alluding to but perhaps this is something that the fence could simply be moved if um you know if it is truly crossing the property line like that yeah that's all i ask so do you need this copy no i have a file and i can send it if you want it okay that would actually be great because then we could then everyone can have a copy of it and we can make sure it gets distributed to all parties of course that can get resolved as fast as possible okay and what i send that to you um send it to the it's uh what i think it's just the only board of appeals and yeah
okay yeah now it comes to one of coming to all of us you don't have to email it to us individually okay perfect yeah all right thank you for that thank you uh just sign in if you could do you have to do that thank you all right so i know we're we're up against um up against the time i i guess um there's one i guess additional issue that sort of um i want to ask town council again um and i know you've given us a very a very nuanced answer but like we've heard we've heard several people say that this board has the authority to tonight vote to overturn the building permit um but i also heard from you that uh we don't really have clear-cut guidance on our ability to overturn the building permit setting so i'm wondering if you have any additional uh information that you could share on this because for me as chair i am struggling with listening to this and i understand passions on this project but i'm also struggling to sort of reconcile these two two statements that we should immediately act to stop the construction on this project and the fact that we really can't do that without actually making a finding and evaluating the merits of the building permit that was applied for and all the engineering data that went into nine months worth of planning board decision because i i mean again the planning board is the body that litigated this project or i don't want to say litigate is maybe not the right word but debated this project and discussed all the merits and listen to all the evaluation of engineering reports like i think it would be imprudent for this board to make a decision this evening and say that all of that work presume all of that work was an error and we can make a ruling tonight i i i respectfully disagree with presentations tonight that we can do that i don't know what the rest of the board feels and maybe that's not necessarily a question that that attorney marie can answer i'm happy to try unless other board members want to jump in on that so again your authority derives from chapter 48 section 14. it says you can hear and decide appeals it also says that you could act in place of the local official here the building inspector or the planning board because of your bylaw and take whatever action they would be able to take so i think what you're considering tonight is this temporary pause a temporary restraining order um a cease and desist whatever you whatever name you want to give to it if you're considering tonight that the work should stop you have to back up and say what is our basis for making that decision ordering that action
if you are the building commissioner who has the authority issue a stop work order or cease and desist the building commissioner doesn't just do it the building commissioner does it based on there's a violation of the state building code there's a violation of our bylaw and cites to it and then issues that determination in order for you to do the same or the zba to do the same you would also have to make a finding that there is some kind of violation of the zoning bylaw
i would tend to agree with you mr chair you don't you're not at a point yet you've heard allegations you've also got a building commissioner that had he felt that there was a zoning violation the building commissioner could have revoked this building permit or could have issued a cease and desist or stop work order we didn't you heard from the planner tonight who said they don't see that the building permit exceeds the scope of the planning board's review so i guess i would ask if you were to issue some kind of order tonight telling an applicant that has a valid building permit to stop work what are you basing that on what finding could you make tonight to arrive at that determination and again i appreciate as you said both sides feel like they're going to suffer harm one way or the other but the law constrains us that we can't just say everybody you know it's not like we're dealing with our kids time out everybody in the corner you know until everybody can learn to uh to to play nicely you have to have you have to find some sort of basis for a zoning violation to tell an applicant with a valid building permit stop doing work under that building permit if you feel you can do that tonight then someone could go ahead and make a motion to do so thank you that was very clear i i think it's clear that that we've heard at your point we've heard allegations and we've heard rebuttals of those allegations and uh to me i i think both um both sides of this issue have have raised compelling points right i think that's i i am not comfortable at this point making any kind of determination about that i don't know how the rest of the board feels but i i agree and i think that we said we just haven't had enough time or been presented the information for what was studied for nine months um to make a determination tonight i think we we have the continuance set um and hopefully before that meeting we'll we'll have enough time to review what's happened even even that period of time is pretty short to really be knowledgeable about everything that's happened over that time but we we will have better sense any additional comments no i don't think that we have enough information i cannot understand what we would be basing a stop border license order on at this point i i would i would tend to agree i i think we need to assess more and that's why we're having that extra meeting which will be able to hopefully allow us to uh come up with a more concrete answer on this all right i guess with that and given the hour um i would make a motion to continue i guess this is case 2602 to january 26th at 7 00 p.m so i did all in favor all right aye opposed um i guess there were motions moved to adjourn second all in favor aye opposed right we were returning thank you
This meeting, sorry, slightly different than the usual preamble. The publication for this meeting is wheelchair accessible. If you need other accommodations in order to participate in the meeting, please contact the Wailens and ADA administrator. The meeting may be recorded, and if recorded, it will be made available to the public on Wailen as soon as possible after the meeting. The public is always excluded from executive sessions.
Pursuant to Chapter 2 of the Acts of 2025, this meeting will be conducted in person and by remote means, remote access in accordance with applicable law. This meeting is remote only to access, no in-person attendance by members of the public. However, this is a hybrid meeting, so that is not the case. If we're required by law or allowed by the chair of persons wishing to provide public comment or otherwise participate in the meeting, we do so at the meeting location. Public comment should be limited to two minutes per person. With that, we're going to start our meeting with public comment. This is public comment, not related to specific cases this evening. This is general public comment. I'm guessing there's no one here for public comment. The next item is, do we have any draft meeting minutes from November 18th and December 9th to review? Has everyone had a chance for a meeting? I have, yep. Yep. Any comments on the meeting, guys? Nope. Someone want to make a motion? Move to accept the meetings from, what's the date again? November 18th and December 9th. December 9th. Second. Everyone's here, so all in favor? Aye. Opposed? Aye. All right.
We're going to start with our 7 p.m. hearing. This is ZBA case number 2601 for 21 Cachito Road. This is the application for the Millbrook Group, LLC, by its manager, Kristen Lipson. We'll be seeking approval from the Zoning Board of Appeals for a site plan approval to add an outdoor patio to the existing building at 21 Cachito Road. Additional zoning reliefs, such as variances for special permits, may be required. The applicant previously received approval under ZBA case 2525 for a restaurant used to operate in the neighborhood cafe. Good evening. Good evening, again. Nice to see you. So, can you give us an overview of what you're looking to do? Yes. So, today I'm looking for a site plan review and special permit for outdoor dining. For the outdoor dining, looking to add a patio to the rear of the building. This patio will be open here. Doesn't meet the definition of a structure, as we determined during this restaurant special use permit last fall. We'll have screening around it in accordance with the historic nature of the building to help shield it from the residential abutter. It will also provide ADA access via two new egresses added to the back, one for additional operational flow directly to the kitchen and the other for ADA access. With our architects, we've determined that we can do a gradual 2% slope along the left-hand side of the building, so we won't actually need a specific separate ramp, and then that will flow right into the patio and the ADA accessible door. We're keeping these as you face the building to the left so that the foot traffic will be minimized on the residential abutter side. The lighting on the patio will be string lights, so it won't be any direct glaring lights to impact any of the wheelbuttors.
I believe those are the highlights. Also, the patio, it'll be about 460 square feet, so this is going to be less than anything that triggers new review by the Conservation Committee. Um, I'm also joined online by, uh, my two architects, uh, as well as my attorney, Jeff, you can know, so, and they're happy to answer any questions that you may have as well. Okay, um, so just as, uh, uh, a little bit of background here, um, this is a little bit unusual in the sense that under, uh, section 11 or 2.1.1 planning board, it's the one that actually hears site plan approval for outdoor dining. In this case, we've received communication from both the building commissioner and from the planning board that they're comfortable with the ZBA acting as a site plan review, granting authority for this outdoor use. So that is a little, a little bit unusual. Um, that said, uh, I would assume what we need to do is follow the same guidelines that the planning board would, which is basically going through sections 604 through 609 of the zoning by-law to basically grant the approval for this. I think large amounts of those sections, I think, can be waived because that is a site plan review template that governs any project that would require site plan review. So many of the criteria that are listed in there are not applicable to a very small under a seating patio as in the case of this. So before we go on, I don't know if there's any questions from the board about this. It's a little bit of an unusual process. So are they officially allowed to make us a designee in their behalf? Is that, is that allowed by the bylaws? It, it's not excluded by the bylaws, but I mean, the communication that I've received both from the town planner and from the building commissioner is that because we approved the, the review, the use for the restaurant, the zoning board would be better, better suited to actually hear the merits of this particular outdoor dining, uh, outdoor dining, uh, facility. So if it's not excluded from the bylaws, we do technically have jurisdiction to be able to do this on behalf of the planning board. Uh, we could, we could take advantage of the fact that we have the town attorney here this evening, even though she was, has, was not at all prepared to talk about the particular nuance of that question. Um, I, you can go ahead and ask. So are we, are we allowed to talk on behalf of the planning board for this and make sure that we have the right to be able to do this for. Well, as I understand it, did, didn't you read something, Mr. Chair, that said that there was some agreement that the zoning board could act on this? Yes. That we have written, we have written from the planning board? Yes. Yeah. Okay. So we're going, we're good. I just wanted to double check and just make sure. Yes. No, we do. All right. Okay. From there, we're allowed to go ahead and stop. Okay. Um, so I guess, you know, instead of necessarily having your, your architects make a presentation, um, I don't know if anyone on the board has any questions for, uh, the outdoors design team on the outdoor seating and, or on any of the drawings that were submitted. I think we have a multi-page package, uh, that I think clearly shows the outdoor seating area. It shows, uh, uh, chairs, their configuration, the quantity of seats, and, you know, I think we heard the hour and talk about accessibility. Uh, yeah. One question I would add, um, one of the abutters sent a, um, sent a note, uh, and raised concern about, uh, the four, uh, AC condensers. Um, are those going to be, are those being moved or is it where they already are located? They are being moved because they need to be replaced. They're outdated. So they're going to be, um, moved to the side next to all of the other utilities currently, and they will also be screened in to be shielded from. Okay. Okay. Thank you. Any other questions from the board? Um, so we, since we don't typically hear, uh, these applications, um, my thought was we should just basically, if you look at the criteria for approval, as I said, it's sections 604 through 609. Um, if we, the board looks quickly at section 604, this is mostly procedural. This just outlines the application procedure. Several items in here, I think are not applicable to this particular project. Um, also 605 are just the application criteria. Again, it talks a lot about the actual site plans. It talks about, uh, a whole series of things associated with topography, paving. These, again, are not applicable for this particular project. Um, it really gets down to, I think, section 606, which is the, uh, the criteria by which we can approve, um, outdoor seating. Um, and again, most of these criteria are related to larger developments. So I, in looking, in looking through this, I, I, I really think the, the issue has to do, I think with 606.2.1.2, which is sort of, does the design preserve the natural or historic features of the building? Um, I don't think any of the other criteria are important for this. There are no wetlands here. Uh, this is not a question about the retention of open space. This is not about scenic views. It's not about soil removal, black ingrate changes, any of those, any of those things. This doesn't have anything to do with the water supply, the sewage. Um, this doesn't have anything to do with minimizing design, uh, demands based on the town services or infrastructure. It's not anything to do with vehicular or parking movements. So, I don't know if we have any particular questions for the applicant based on that, but in my mind, it appears as though it is really just section 606.2 that talks about the site plan criteria. And I said, I only see one that I think is applicable, uh, in this particular case. 11.0.2.111. Yes. That's the one that says, you know, Ken, that's the one that grants the site plan approval for outdoor food and beverages. But then it says section 604 through 609 is how you interpret it. Yes. Right. But I don't know, uh, Mr. Commissioner, if you have any, any thoughts on any of the other pieces in, uh, section between 604 and 609 that in my mind seem applicable to this. I could only identify one. No, I think you've covered it. Similar, but 606.2.6 is very similar. It has to do with the design of the building. Yeah.
In terms of any screening, any objection will be there is, um, there. So is this then, is this a, is this a special permit? Or is this just literally a, a statement of site plan review by this board for the app proceeding? I believe a special permit. Um, the, uh, the planning, um, um, Bob Hummel had sent us something. It was attached to their note. Do you pass it to Thomas? This was an attachment that was sent to, to us when he explained that site planner who should be by us instead of by the planning board because we were much more involved in the, um, approval of the special permit for the change in news. And the list of things there are just items that could be considered. Okay. I don't think that it has been codified anything more than that. So that's more of a high level of things to be considered. And the applicant has mentioned a number of them about screening, about walkway, about lighting, about passage, um, about the type of structure that is there. Um, there are things like, um, alcohol and which I think does not come within our firm. I think it's not coming. Well, that's why I'm confused. I guess I've seen this memo and almost none of these are in session 606. So I don't know where this list of criteria comes from because it doesn't appear in the bylaw. It's, it's not listed as such in the bylaw, um, like a chunk like that, but it was something that he sent to us to be, as you, as you see, some harm may have even scratched it could be considered. Yeah. And then, um, I think that the, the alcohol part goes for the silicone part, I think. I believe so when we, uh, when we submit for that license. And then I think that there's, there's parts that are under, um, wastewater. So it's just a kind of a catch all, right? Yeah. But sufficiency of toilet facilities, wastewater grease, none of this is applicable. Right. Because the restaurant use has already been granted. So. Right. Yeah. Well, I, I had seen this as well and was confused about its applicability. All right. Well, I feel I've done my. Yes. I'm passing it on. Good. Um, and you've already addressed offers around hours of operations. Noise level was one thing I don't, I don't recall whether there was anything about that, but, um, tables and seating and, um, and altogether, um, you had mentioned at point, there would be no outdoor cooking and stuff like that. Correct. So, I mean, I, I, I guess, I mean, we, if we look, if we look at, if you look at this, right, we've all the, all the information about like how many seats are, are there, are provided. Um, the, the question, I guess, is whether or not, I mean, I guess if you want to invite me, if the board could determine whether or not the, the amount of seating sort of presents it presents a density problem, you know, in conjunction with 606.2.142, which is the preservation of natural features. Yeah. What about the, uh, third bullet point? Um, from, uh, what was just showing to you about the setback of seating from property lines and problem waves. Uh, we have the drawings from the applicants, um, that different setback level was already presented. There's not a structure. It's seating. It's not a structure. As I, as I understand it, the outdoor seating wouldn't be subject to setback requirements because there's no structure there. No. That patio is not considered a structure. It looks like the seating is there are 14 seats, right? Yes. Correct. I know it was determined not to be relevant, but, um, we are in, in conversations with the DPW and our civil engineer about the grease trap and all the, um, necessary requirements on that one. Yeah. And that's part of the, the permit application, you know, for your actual building from an application. Yes. It requires an interior and an exterior grease trap that's to be determined by them. Yeah. Yes. Before we, before we go any further, um, is there anyone here that, uh, besides the applicant that is, has anything to say about this case? We hope there's anyone online. Dr. Dr. Humbold. Okay. Mr. Chairman, I just wanted to address that. The reason why the applicant is in front of you is because it was a decision based on the, just me and the building commissioner that because in the bylaw it says, if the board, the ZBA hears a case for special permit, that they can hear the case for the site plan at the same time. And that these two hearings were pretty close in time period to be heard together. And that was a decision made based on, um, making sure the applicant doesn't have to go to a different board and to confuse everybody. Um, in the case of the dummy donors, I will request when they do come back that they come back to the planning board instead of the ZBA because the time period is way too long. But that is where you're, the information that I gave you guys the guidance. It just is purely gives guidance. It's not based on the bylaw, but it's things that the board, you know, could, should encourage when looking at this. Um, but this is, this is just a site plan. It's not a special permit. Just want to make sure. And the, uh, is not a special permit. Um, and you guys are just hearing it because we made a decision based on what made most sense for the applicant because they just got a, uh, a special parent hearing. If they came back in three, four months, I would say they'd come back to the planning board instead. So, um, this was just make sure that the applicants can go through this process. Uh, at a faster pace. Thank you. Thank you very much. Thank you. Um, does that mean that I will also need a special permit leader for outdoor dining or this is kind of the, this would be the special permit for outdoor, this would be the special permit for outdoor dining. Okay. Um, just, just a plan. There's no such permit. You don't need it. She does not need a special permit for this. It's just a purely site plan only. A site plan. You got it. Okay. She got, she got the special permit for the, for the restaurant use. And if she applied at the same time, you could have, could have been heard two, two months ago. She just needs a plan approval. Just that's it. Okay. Well, you won't fall down for something else later. No. As I understand it. No. No. Okay.
Okay. That's why I'm not sure. I don't know. Good evening. Oh, good evening. Uh, just a real quick. I've already sent you an email. Um, but. Say your name, please. Oh, you bet. I live on the north side. I'm the residence right next door. Thank you. Uh, as I looked at the plans, um, I was surprised at the four big AC generators, but I'm assured that they won't make much noise. Is that correct? If they're new. If they're new, they're very efficient and somewhat quiet. Yeah. Okay. And there's a great big, huge fan, kitchen fan facing my front door. And I'm just waiting for the kitchen fan could be put on the west side. Possibly. Maybe it can. Maybe it, that's an impossibility. I don't know, but I'm throwing it out as an idea rather than having it right at my front door. Um, the other thing I do want to bring out is that in the application, uh, the applicant made the point that a structure is of course not a walkway or a virtual way or anything like that, and that the application just needed to go before the historical commission. It's the historic district commission that the applicant needs to go before. It's in the historic district. And according to the historic district commission's, uh, regulations, if you look online, you can find them quite easily. They're all right there. A structure is anything other than the building. That's a wall, a walk, a sign, anything, any hard state that's visible from the public way. So, uh, the historic district commission looks forward to meeting with the applicant. And, um, I guess that's all I have to say. All right. Thank you. Thank you. You signed in? Yes. Yes. I signed in. Thank you. So visible from the public way. It's not ours. It's in the rear of the building. That's the question. I would think it would not count because, uh, there's not a street on both sides. I would think that it wouldn't be visible from the public. But I also, I'm confused if the historic district's definition of the structure is different from the zoning bylaws definition of the structure. That could cause problems. I don't know that that could cause problems, but I think I would assume that we have to go by the definition of the structure in the zoning bylaw, not the historic district commission. And so I guess a question, uh, you heard from, from, you know, your, your neighbor. Um, it's not really before us, but I, we can ask the question anyways, is it feasible to relocate the kitchen exhaust fan? I think I know the answer to this, but, uh, we can ask. Um, I actually might defer, uh, Camille, are you available? I don't know if she's allowed to speak at Camille Schaffler on there. There you go. Just raise your hand. Oh. Can we hold it? All right. I'm sure. See if I know how to do it. I don't know how to do it. I don't know how to do it. There's a writing person. Is it on here? No. I can try. Get it. All right. Do you want to give up? Oh. I think you just stepped out for a half-time. Oh, okay. One time we ask. We'll get, we'll, we'll get this taken care of. It'll just take a second. Okay. I have also been told by our mechanical engineering team that the new ones will be quiet as well. Yeah. Similar to the new generators and whatnot are very, very quiet. Yeah. And you've mentioned that the AC units are being moved to the south side, the left of the building. The north side because the ABA walkway will be on the left side to minimize foot traffic by the residential abutter. Okay. I guess a question for you. Did we ever talk about operating hours for the restaurants? I believe we did. I believe we, we did, but just to reiterate them here, Tuesday through Friday, 7.30 to 3.30. Saturday and Sunday, 8. And the same, those hours are the same for the outdoor seating. Yeah. In the seasons. Yeah. Yeah. Weather committee. You're allowed to have a fire pit in the back? Right. Is that something that we need to have accountability for it for wintertime with like a hot cocoa or something? That's where my mind goes always. I don't think that's something that you would regulate in here. Fire services. I believe that they would not make clearances for that from the most likely not. Okay. I just wasn't sure if we have to have that as part of our scope or not. I think so. Have you seen what we were talking about? You know, how did I just... You didn't keep that up. Oh, you didn't keep that up. That's what Mr. Homer was talking about. Great. All right. Well, in the absence of being able to elevate your mechanical... Oh, here we go. Here we go. Here we go. It's because it's so hard. Trying to keep things moving. I'll have to get through. Right. It's version over? Yes. There's, I guess, someone who needs to elevate. Okay. Oh, my architects. No. Shackler. She's raised her hand. Right now. Can you hear me? Yes. Perfect. Sorry about that. Um, my architects. No. Shackler. She's raised her hand. Right now. Can you hear me? Yeah. Yes. Perfect. Sorry about that. Um. So to answer your question about rerouting the, or changing the, the location of the kitchen fan, we can, we would have to do some, you know, rerouting through the building, um, to potentially put it to the other side. It'd be something we want to work with our, um, MEP mechanical engineers, um, on, but we can definitely look into that for sure. I don't have any other comments on this. I'm sort of looking, I'm looking to understand again, uh, the mechanism for, uh, a site plan review. I'd assume it would be, we would, we would look for a motion. Reading this. Um, we could also subject the site can review to any safeguards or the conditions that we want to impose. But we already have conditions, uh, on the restaurant use to mimic the conditions, uh, for this. Um, I'm. I'm on the fence about, uh, adding a condition for, uh, the relocation of the kitchen exhaust fan. Um, I it's possible, but I don't know that it's a hundred percent feasible given looking at the distances required and, you know, what it would take. So I, I have a concern that we could, we could potentially look at a condition that may turn out to be infeasible and to actually execute. Um, I think that in this particular case, the applicant can use their best knowledge to be able to figure out whether or not this is feasible or not. Um, in my opinion. Um, I feel like the applicant has been very forthcoming and thoughtful of, of the neighbors and stuff. And, and, and doing so, I think that there's a lot of grace that we can walk with that. Um, that's, that's my opinion on it. Okay. Fair. Any other comments from either the applicant or the public? Yeah. None for me. Yeah. I guess with that, we should. It's just an approval. Yeah. Just making sure that we have to see a special permit accident on areas. Yeah. Documentation. It's just an approval. Okay. All right. So I think you're, you're noting that the application itself is requesting a special permit, but in reality it is a site, it is a site plan review. All right. I just want to make sure that that's. Well, I think we should, I think we should, we should, we should. Note that. Yeah. Okay. Actually, sorry. I do have one, um, one other note just to reflect. Sure. Um, at the time that I submitted this application, the sale property had not yet gone through, but it was pending and it has now officially gone through. So, um, previously it had the owner's signature required, but, um, now it's me. That's great. Yeah. All right. Uh, so I want to name a panel for this case. The panel, uh, is going to be the five, uh, permanent members. That would be, uh, Mr. Hirsch, myself, Mr. White, Mr. Perry, and Ms. Jenison's fall. Um, so I would make a motion under 1102.1. Okay. Okay. Okay. Okay. Okay. Okay. Okay. So that's the rule for, uh, food or beverage service. Food or beverages to be served or consumed on the premises outside the building that contains a walkway existing restaurant. Second. I further say that we want to condition this approval on, um, a few notes. One that the application, uh, just needs to be corrected to indicate that it is a, uh, site plan approval, not a special permit, that the outdoor patio needs to sort of be constructed and maintained in accordance with the plans that have been submitted, and that the operating hours for the outdoor patio mimic the restaurant use.
Don't think that any other additional conditions. Maybe that makes sense. Any debate from the board? Any additional comments? No.
So, I made a motion. You seconded it. You've had any conditions. So, all in favor? Aye. Aye. Opposed? None? Aye. All right. So, the site plan for this outdoor seating is approved. So, we are all very excited about this, and I think all of us are anxiously awaiting a chance to use this outdoor terrace as soon as the weather is on them. Just before. Thank you very much. Thank you. Thank you. Thank you. And do I need to resmit the application, or is that simple? No, I think we could just, we could just mark on it. Okay. Okay. I'm just going to turn. You don't need to release it down. What is the process to know? Same as with the special permit in terms of writing it? I would assume it is the same process to write the decision for this, and then the appeal period. I would assume it is the same as the special permit, but I'm not sure. I'm not positive.
Yeah. Do you have an opinion on that? It is, it is kind of the same. Thank you. Thank you. Thank you very much for your time. So, what I'd like to do, if possible, is there a 20-day period to be able to write it, and then another... I think it's 14 days. 14 days, and then a 20-day appeal period. Just make it clear that that's a part of it as well. What I propose to do next is I'd like to take a case out of word here. I'd actually like to proceed with ZBA case 2533 for 321 Commonwealth Road. I'd like to hear that case next. So, do we have anyone for that case here? Online. This is Craig Murphy. Online. All right. Good evening. Why don't you reintroduce us to why you are back before us? Yeah. So, I'm Craig Murphy from COG Graphics. I'm representing Bright Horizons. Wait a minute. Hang on for a second. I just realized that I didn't read the case. I have to read the case first. Sorry. This is the ZBA case 2333, 321 Commonwealth Road. This is the application of Waylon Woods, LLC, care of R.W. Homes Management for property located at 321 Commonwealth Road in the Business A District. The applicant is seeking a special permit to relocate and replace the existing sign, moving it from its current consultation to the front of the building within the front grass area. The request includes relief from the front yard setback requirements associated with the proposed sign relocation. The applicant you have submitted revised the plans to us. So, thank you. Sorry for that. Well, you can just briefly tell us why you're back again. Thank you. So, Mr. White, you're right on the money with your description there. I was asked to do a little bit more of a detailed plan on the location of the placement of the new sign. And so, I did that. So, it's going to be 10 foot away from a setback. There will be a 10 foot setback there. We are going to remove an existing sign and put this sign in the front of the building. The current sign is on the west side of the building. And there's a building. And then there's a gas station. Then there's the entrance to the parking lot or one of the entrances to the parking lot. That sign there sometimes gets very confusing for people looking for bright horizons. So, they felt it would be better if it was just in front of the building and the people will figure out how to get into the parking lot. And hopefully, they'll see the parking entrance on the east side of the building and just arrive there. So, that's basically it. We're taking one sign out, putting another one in.
Looking back at my notes, one of the reasons we asked you to come back was if you could produce a more detailed drawing or more detailed site plan than we had last time. Yes. Just like you did submit, you did submit a more refined scale drawing. I'm just looking to call it up right now. Thank you.
Also, we also have a memo from the planning department. We actually received this at the last hearing. But this is, it's been reattached to our file right now. So, the planning board, you know, expressed support for this. They just noted that the sign does require a special permit from the zoning board of appeals. And as I said, we agreed to this last time. We just asked for the applicant to submit a scale plan, which they have submitted. So, yeah, that's it. And the old sign is all decrepit and it's made out of wood and it's just falling apart, really. It's just ugly. The reason we also have to have this is because you are exceeding, you are exceeding the size requirement, correct? I didn't think we were. In fact, I think the new sign is slightly smaller than the, it is slightly smaller than the old sign. So, I'm not aware of any kind of a size issue. Hang on for a second. Yep. So, if there's not, if there's not a question about the size, this is a question for the building commissioner.
Is it a special permit only because it is inside, it's because it's inside the setback, correct? Correct. And it does not reduce the sight lines to enter or exit the building. All right. Yeah, that's, that's correct. It's actually very far away from the, both entrances. Okay.
Mr. Chairman. Yes. One of the reasons why this, it needs a special permit is there is an existing free setting sign on the property. It's not for bright. There's two, right now there's two free setting signs on the property. One is for bright horizon and one is for the tenants inside the office building. And removing this one and adding a new one would still trigger that you need for multiple free setting signs on the property. That's, that's, that's the reason it's not about the size, it's about the number of signs on the property. The number of signs on the property. Okay. Okay. That's the same special permit criteria under two or three point one. Correct. Yeah. Thank you. All right. Thank you. Thank you. Thank you. Thank you. Anyone here? I didn't think so. And it doesn't look like there's anyone online for this. So, no, okay. Um, for this case, it's going to be the same panel. Uh, Mr. Hirsch, uh, Mr. Perry, Ms. Jenison, Ms. Paul, um, in order to get a grant of permit under two or three point one, uh, we just have to, uh, have a demonstration of this new freestanding sign. Uh, isn't against the public interest. We know the same, the same language here. Um, so based on that, I'd make a motion under three point one that, uh, I think the applicants demonstrated, uh, that this sign, uh, in the CBA, uh, it doesn't, it's not against the public interest. It doesn't derogate from the character of the neighborhood in which the use building or structure occurs. And it's not detrimental or offensive because of noise, vibration, smoke, gas, hearing, motor, dust, or other objectionable features. And the proposed sign is not otherwise injurious to the inhabitants of the town, their property, or dangerous to the public health or safety. Second. Okay. So, um, I think in this case, the, it's a straightforward, uh, application. Uh, I think the only criteria condition I would apply is that the, the science gotta be constructed to match the application that's been submitted. Yep. Uh, all right. So I made a motion to grant a special permit under two or three foot one. We seconded it. So, uh, all in favor. All right. All right. Opposed. None. All right. So. Thank you, everybody. I appreciate it. Yeah. 14 days to write that decision. And then there's a 20 day appeal period. And then after that, you can pick up your special permit. Thank you very much, everybody. Have a great night. Thank you. Um, all right. So, uh, we're going to move on to the 710 hearing. Uh, this is CBA case 2602. This is the appeal of a building permit for the Veritas Christian Academy. Um, read the description here. Um, Adam Miskari is appealing the issuance of a building permit for the Veritas Christian Academy project. The appeal raises concerns regarding compliance with the protection overlay district discrepancies between the building permit and plenty more to approve site plans and potential environmental and stormwater management issues. The appellant seeks a review of the permits validity in compliance with the zoning bylaws. So, as you can imagine, this is obviously why I think everyone is here tonight. Um, I would just like to say that, uh, based on this, I would like this hearing to be orderly and, um, proceed in an organized fashion. So, with that, um, I also like to say that I'm sure there's a lot of people here that, that want to speak. Um, I want to have everyone have a chance to speak on this project, but I will say that if, if what you're going to say is very similar to what someone else has said, I would, I would appreciate that we sort of limit comments to items that bring up substantially different points of view. Um, not that I'm not interested in hearing from all of you, but if all of you want to speak, I'm happy to let that happen. However, being mindful of the time and the fact that we have other cases, um, I think it would be beneficial for everyone if the comments were substantive and as varied as they possibly can be. Um, with that, who is here to make this presentation? So, if you could give us your name and, uh, address and tell us what's happening. Thanks. Mr. White, my name is Peter Durning. I'm a resident of Newbury Fort. I'm not a local, but you'll probably guess by my pronunciation of. Um, I'm here from the law firm, uh, with me as my colleague, Gail Hire. And we represent Adam Skari and Pat Kavanaugh. And I do have, um, a PowerPoint that I think will help focus some of the presentation. If I could do that through the Zoom. Thank you very much. So again, members of the ZBA, our firm represents Adam Skari of 29 Shaw Drive and Patrick Kavanaugh of 21 Shaw Drive. We are before the ZBA on appeal of the building permit and the site plan approval issued on April 15th, 2025 to Veritas Christian Academy for the construction of a dense multi-facility educational campus on four residential house lots located at 162, 164, 168, and 172 Chituate Road. Um, we are here by appealing the building permit that was issued on October 30th. In addition, Mr. Mascari also filed a request for, uh, an appeal based on the building inspector's lack of response to the request for enforcement. And through this action, we are asking you that the ZBA should revoke the building permit and reject, revise, or remand to the planning board, the site plan approval on which the building permit was purportedly based. Given the numerous errors and the building permit because of its lack of compliance with the zoning bylaw and engineering issues contained in that approval. The building permit approved the project despite non-compliance with the aquifer protection zoning district, and this was an error. As noted in the site plan approval, the planning board observed and noted that the property was located within the aquifer protection zoning district, but then it did not insist on compliance with the requirements of that bylaw. The aquifer protection district overlay is a zoning bylaw and requires site plan approval under section 198-1604 regarding density restrictions that apply to the AOPD or aquifer protection overlay district for developments with greater than 15% impervious lot area. The bylaw requires that groundwater be provided and that impervious surface does not degrade groundwater quality. The section further provides that under no circumstance shall the impervious surface of a residential lot exceed 30% of the upland area of the lot. Now, for those familiar with, um, this project. The campus is going to be constructed by consolidating what were four previous residential lots. And it is going to attempt to pack into that area a multi-building, I believe a nine-building educational campus. But importantly, for concerns of compliance with the AOPD, the site plan approval and through that error, the building permit failed to apply the overlay protection district correctly. Now, on this image, you see the four lots that make up the residential lots that are going to become the campus. And shaded in blue is the zone two of Wayland's aquifer. And of course, the aquifer protection bylaw is there designed to ensure groundwater and drinking water quality within the whole town. The only portion of the proposed project that is within the overlay protection district is there outlined in blue. It's all of 172, a significant portion of that right side of 168 and a sliver of 164. However, when the applicant submitted this material and information to the planning board during site plan approval, it calculated the percentage of impervious error area by trying to get credit for all four lots. Rather than an analysis based on the density within the overlay protection, protection district itself. And that was an error. If we look at this next image, which is taken from the cotton fill plan. And it is annotated by us with a blue line mimicking the location of the aquifer protection district, you can see that there is quite a lot of activity and density wedged into a significant portion of the site that is within the aquifer protection district. I apologize that it's difficult to see on this image. I apologize that it's difficult to see on this image, but there are new roadways. There is a sports field. And under that sports field, there's going to be the septic system. And then there's also allowances for, for parking, all of that creating impervious areas within the aquifer protection district. The concentration of infrastructure in the AOPD under the zoning bylaw requires a project to preserve 70% of the area within the zone 2. And the concentration of infrastructure within the AOPD as proposed by the Veritas project and as approved by the building permit is a violation of the bylaw. So this was an error when it was approved by site plan approval and should have been rejected by the building commissioner. Therefore, there was error. In addition, the project also violates the zoning bylaws prohibition on earth removal within the aquifer protection district. Again, this image that we're sharing with you is a cut and fill plan showing the dramatic amount of earth removal activity happening within this zone. While earth movement needed for the project could have been accepted if it was simply for the roadway. Here, the earth removal is going to be enabling a retaining wall structure on a very steep slope. And in addition, in that lower right hand corner, there's going to be the onsite wastewater treatment system. And that amount of earth removal activity is barred by the aquifer protection zone bylaw. As an illustration of what is happening on the ground, here is a current image of some of the work that has been performed already. As I believe this board knows through our communications, we have stressed the importance of a stop work order. Because we feel so strongly that both the site plan approval and the building permit were issued in error. And yet, the project work is continuing apace. The clear cutting that has already occurred and the earth moving activity that is already occurring. We would maintain is really on a front to the structure of the bylaw that should have protected these things from occurring. The fencing that you see is very, very tight to the property line. I have another image showing that further. But again, and another theme that we're going to be coming back to is just the lack of setbacks that have been provided with this development. And a significant amount of denuding all vegetation right up to the property line is, again, I would say an affront to the protections that the zoning bylaw should have protected. That's a slide. So again, this is taken from the site plan approval. The planning board noted that the project proposal would not have respect the setbacks of 30 feet, but we see that this is an error, a glaring error in the approval of the building permit, because the project violates those setbacks. As shown in the selection from the site plan approval, the planning board found that the project met the required setbacks, but as I'll walk you through, this in fact is not met. And the building permit was an error if it allowed the project to go forward with these violations of setbacks. So here is page 20 from the landscape plan, I believe, from the applicant's materials. The areas that I've highlighted in yellow are beyond the 30-foot setback, and that includes a portion of the roadway, a portion of the sports facility, and I believe consistent with that potentially the septic system that is underneath it, and a series of parking spots on that right-hand side. While those features are clear violations of the setback requirement, I would just note that, again, the clearing and the work that is occurring is all the way to the property line. So whereas those structures are probably the most offensive, the scale and amount of work that is proceeding is significant. This image is a recent survey that was performed in the field by Mr. Mascare's property. I have a zoom that can show here. The surveyor noted that in significant areas, the chain length fence, which is establishing effectively the limit of work for this project, is over the property line onto Mr. Mascare's property. This, again, is a significant deviation, a concern that we believe could have been appropriately addressed if the request for a stop work order was honored, but it was not. To provide a visualization of what this looks like now, here you see the significantly denuded area of the property, the homes on the left side that used to have a significant vegetative buffer from their neighboring properties. That is all gone. That is all gone. And in addition, significant earth-moving work is continuing apace. Source of some of the errors and conditions that have caused difficulty with the project has been the real disconnect between what was advertised as a list of as a limited scope of work with respect to phase one of a project that was really part of a very deliberate multi-building nine building master plan for an educational campus. And I think you understand from our papers that we certainly understand and appreciate the contours of the general laws, Chapter 48, Section 3, and that the Dover Amendment does provide certain powerful protections for certain protected uses within the Commonwealth. However, the gravamen of all the concerns that we're bringing to you today that we're highlighting in our materials and through our presentation really focus on technical dimensional issues with the proposed development that run afoul of the dimensional and technical requirements of the zoning bylaw. What we are addressing are not unique to educational institutions. They are not use restrictions that would somehow prevent or impose an undue burden on educational institution. They are dimensional concerns. They are the protection of drinking water, which is embedded in the zoning bylaw. But one of the difficulties that comes through with this iterative approach that the applicant has taken is that there are, again, I'll say disconnects between what has been filed for in terms of the phase one and what is being pursued and understood in the master plan. And again, some of the elements of phase one include construction of the loop roadway, which is going to be for the benefit of the multiple buildings. In addition, as I highlighted earlier, there's going to be a significant major sports facility and septic capacity that is going to be able to host a school with upwards of 400 students. And yet, during the planning board process, certain submittals did not give the planning board the benefit of assessing the entire project. For example, the traffic study that was submitted to the planning board only highlighted 444 vehicle trips. That was based on a student and a student population of about 108 students. And yet, the infrastructure that the applicant is seeking to develop is going to have the capacity of housing, not housing, serving 423 students. That is a serious, again, I'll say disconnect. The average trips on the project at full build-out is going to be well over a thousand trips per day. And yet, the planning board was deprived of that opportunity. Again, I've highlighted the onsite wastewater treatment system. In that context, I believe that the applicant had disclosed that the sizing of that was going to be designed more for, I believe, 360 students and 63 staff for a total of 423 users. But again, that facility is being sized and designed for a much larger campus facility. As we highlighted in our filing, one of the errors that results from this iterative process is that it deprived the town the opportunity to assess the full scale and impact of the project. In addition, we assert that the project could have and should have complied with the Massachusetts Environmental Policy Act, or MEPA. One of the hallmarks of the MEPA process is that you cannot segregate a project. So, you cannot knowingly only submit a portion of a plan development in a manner in which would allow you to skirt the requirements of MEPA review. The application that the applicant submitted during the site plan approval process, the Wayland Planning Board solicited and asked for information about whether or not the project was going to require MEPA review. The applicant left that blank. The applicant left that blank. I believe that the applicant should have appreciated that MEPA would require it, certainly MEPA would require it to articulate the entire scope of development to consider all the potential traffic requirements in previous area and the like. And that since the project is receiving certain state funding. I maintain, and I believe it's correct that this project should undergo MEPA review. Yet, when that was not provided, the planning board was deprived the opportunity of having this project go through that process to be shaped. However, the MEPA review may recommend additional environmental concerns, particularly with respect to the very steep slopes that this project is going to be situated on and the difficult stormwater management that's associated with it. In addition, in our written submittals, we highlight the considerable engineering issues that we maintain remain unresolved. In particular, in our submittal, we call out the review by a professional engineer, Scott Horsley, and his critiques regarding engineering issues, particularly with respect to the on-site wastewater treatment system, but perhaps even more importantly, with the stormwater management. Mr. Horsley provided an analysis that the stormwater systems were designed with incorrect values for permeability that under counted the groundwater mounting off-site flooding and septic system performance problems. Again, this is not so surprising, given the difficult topography of this property, and issues were certainly raised by the public to the planning board and through Mr. Horsley that the stormwater issue was grave. Mr. Horsley concluded that stormwater structures, particularly SI-1 and SI-2, will be inundated and cause outflow during a 100-year storm. In addition to the engineering analysis of Mr. Horsley, the town's own peer review engineer, Greg Roy, also shared concerns about compliance with stormwater standards. We brought some concerns to the Zoning Board of Appeals. This matter, we believe strongly the building permit should be revoked. The project should be sent back to the planning board for site plan review. That is the ordinary course for a review of this matter. Under the Wayland Zoning By-law, a site plan approval is not appealable until a building permit issues. It creates some difficulty insofar as the project gets so much further down the line, rather than appealing the site plan approval itself when it was issued in April. That is a difficulty, but that's what brings us here today. This board has the power and the authority on the appeal of a building permit to review those errors that were committed by the planning board and issuing site plan approval that didn't demand compliance with the aquifer protection district, that didn't demand compliance with setbacks, and the other elements that we highlight in our submittals. This board had the power, authority, and the opportunity to correct those errors. That does not mean that an educational facility won't be able to be sited on this property. It means that the educational facility that gets sited on the property must comply with all the requirements of the by-law. You know, there are strong tenets in the zoning by-law about the design of buildings, structures, and landscapes to be in harmony with the prevailing character and scale of buildings in the neighborhood. I think that, for the most part, Veritas is trying to achieve that by having separate individual buildings rather than one large structure, which really would be out of place in this neighborhood. And while I think their approach has some merit, there are elements of it that have simply gone too far. The concentration of development in the aquifer protection district, the lack of respect for the setbacks are egregious errors that need to be corrected. So this is the four residential lots together are highlighted in red there. So this is the one of the most part of the rest of the neighborhood as it was when those four lots were more individual residential lots. And in contrast, here's the site today with the structure proximate to Petituate Road. And then, again, the denuding of the property and the real exposure to any neighboring properties that now lack the kind of vegetated buffer that they would have had. In their material before the Planning Board, the applicant repeatedly argued that the Dover Amendment protection meant that it was only subject to a very limited site plan review. We agree and would concede that in some respects, there is a somewhat limited site plan review for projects that have protection under the Dover Amendment. However, a Dover protected use still has to be reasonable with respect to its structure, bulk, height, setback, lot area, yard size, building coverage, parking and open space requirements. There's no Dover exception for health based septic standards. There's no Dover exception for protection of Wayland public drinking water resources. The site plan approval failed to reinforce those requirements through reasonable conditions that would have better protected the neighborhood and the town's drinking supply. Again, the right to appeal that approval arose when the building permit issued the building permit, which enshrined some of those errors of the site plan approval process. That building permit was issued an error and there are serious engineering concerns that are attached to that on behalf of the butters and the future neighbors of this project site. We would also ask an event that if the zoning board is not able to come to a final decision on the merits this evening, the petitioners respectfully request that the ZBA consider issuing its own stop work order to prevent further destruction of this neighborhood. The ZBA has the authority. The ZBA has the authority following a motion and a vote. The ZBA would have such authority. And to the extent the board is unable to come to a final decision on the merits this evening. We respectfully request that the zoning board of appeals consider voting to impose a stop work order if the appeal needs to continue to another night. Thank you. And I'll take any questions. Thank you. Thank you. I will see you again. Thank you. I will. I have numerous questions. Probably some for you, some for the building commission and some for the town council.
Perhaps starting with, I think, you know, a question you presented a drawing that showed a construction fence, was actually not located in the property, was located on the. your client's property? That's correct. And that was verified by a surveyor in the field. Okay. I guess these questions are probably for the building commissioner. A construction fence, is that considered a structure that would be a set? That would be a violation if a structure is constructed on, not on the, on another person's property? Would that be a zoning violation? It is a structure. It can be on the property line, verifying that it is the actual property line. I don't know how they're determining the property line there. It's very difficult. It's an imaginary line, unless you have a point A to point B and some kind of verification to show the exact property line. And if there was a report, I'd like to see that because I guess the question is, would that, that would be, would that be a zoning? Is that a zoning violation? Would that be like a zoning enforcement action? It'd be, no, it would just be a disturbance, you know, actually a police matter, you know, but you're on somebody's property. You're putting a temporary structure on somebody's property. Um, I guess this question is per, I guess for the applicant. So you also made, you made a presentation that it was the, the parking lot, the road, and the septic system that violated the, I don't know, you didn't specify what setback it was. Oh, 30 foot setback. Yeah. Is that the front, the side, the rear? Is that a particular? So I'm asking because very specifically, there are certain things that, that there are certain structures that do not fly to setbacks. to setbacks. And I, I just want to be sure that I understand from you that you're saying that there was a, there was this, this planning board indicated that there was a 30 foot setback, presumably on all sides of the property. Correct. Um, so I guess this would also probably be a question for building commissioner. Um, presumably if there was a setback requirement with the parking, the loop road and the septic system, would those all need to comply with a yard setback or are those not? Mr. White, if I can, I think I, I drew attention to, uh, the area that is a sports facility, a sporting field, and there will be septic under it. But the image that I showed on that landscaping plan didn't necessarily show the dimensions of the septic itself. So, uh, I, I, I asserted that that could be an issue as well, but the, the surface level development is a, is a sports field, not the septic, but I highlighted. Sorry. It's okay. Just wanted to make sure. Okay. All right. That's correct. So it's the sports field. So I guess, would it be the parking, the loop road and the sports field? Would those, would those need to comply with the setback? The setback requirement? Only the structures on the sports field, uh, AKA bleachers or a field house of some sort or a shed would need to be, you know, need to be, need to, uh, the setbacks of a rear side setback. What about vegetation clearing in, within a setback? That has all gone through. That's out of my purvey. That's conservation. Um, and I know that was, uh, discussed and, um, several occasions with conservation commission, and I would have to defer to, uh, Ms. Hanson or conservation agent to, uh, answer any of those questions. Okay. Mr. White, if I could, I'd also just clarify. It's not merely a sports field. It is a sport court. It is a, it is a hard structure. It is not. I mean, I believe it's low elevation, but it's not merely a field. It is a, it is a constructive facility. It's a structure. I, I, I had the opportunity to actually walk the facility to be with Brian, the project manager tonight, before today's meeting. And he said that it was going to be a tennis court. Tennis courts typically have fences around this. So I would assume that if it is indeed a tennis court, in fact, in case it would have a fence, which I would think would be in the structure. Um, but I know I'm diving right into sort of specific questions, um, but, um, I guess one, one point that, um, you did raise is, uh, sort of talk about the authority that this board has as, as you can imagine, um, you presented a lot of information. It would be very difficult for this board to conduct like a full engineering analysis of all of the points that you've raised with respect to the, um, the groundwater analysis and sort of the flaws that you've mentioned in the site plan. Um, so I know you asked the question or you sort of raised the option that this board could conceivably act somehow to, to temporarily halt the construction of this, of this project. Um, that's, um, that's, that's a particularly specific question that I, I guess I would, I would ask, um, town council for some opinions on, because, uh, I, I think that for this board to sort of understand and review each of the, the points you've raised, I think it would be difficult. You know, consider the fact that the planning board had months of hearings and engineering analysis that accompanied all of the decisions that went into the design of this. It would be very difficult for this board to come in and within 30 minutes, you know, read all this material and then come to a decision that, that somehow there's a lot of deficiencies in the engineering. There may be, I, I really don't know, but I think it's going to be difficult for this board to sort of make any decisions about that this evening. Um, so in the context of that sort of, I guess I'd ask town council, the zoning board does have the authority to actually rescind this building permit prior to undertaking its own analysis of all of the points of the, uh, the best way to ask that question. It's a very complicated question. Maybe I simplified it too much. So for the record, uh, Carolyn Murray from KP law as counsel to the town of Wayland. Um, and I'm happy to, to, to, to, uh, rephrase and hopefully answer that question point for point. I do also just want the board to be aware that council for Veritas is also here. If you want to hear from them and, um, I'm sure you're going to have a number of questions. Um, uh, overall with respect to the authority of the board to issue a stop work order. Your authority derives under chapter 48 and specifically 48, 14, with respect to this particular appeal. I do want to just pause there for a moment and say, there is an argument to be made that I'm sure we will hear from council for Veritas. Council for Veritas as to whether or not this is even a timely appeal. And the reason I raise that. Is because if this board were to find that this is not in fact a timely appeal. You don't have jurisdiction to entertain the appeal. So that's a, that's a threshold question. The board will have to get to. Assuming the board finds that you do have jurisdiction to entertain this appeal. The statute is pretty clear that you can hear and decide appeals. Pursuant to the statute section eight, which is what, um, this latest appeal has been brought under. And it does go on to say that in exercising these powers, the board of appeals may, um, make orders or decisions where you either reverse or affirm and hold or impart or modify any order or decision. And to that end, you shall have all the powers of the officer from who the appeal is taken and may issue or direct the issuance of a permit. So that's a lot to be said. So what does that all mean? If you accept, you know, the timely appeal of the issuance of a building permit, it goes with it in this case, the site plan review. The board can revoke the building permit. The board can uphold the building permit. That building part of course is, is bolstered by the underlying planning board site plan approval decision. So we can't ignore, um, the underlying decision that literally gave the applicant the, um, ability to go and seek the building permit. You can only revoke a building permit in this context if you find that there is some sort of zoning violation. And to do that, you really do have to look at the underlying site plan approval decision. Um, unless there's something obvious to you all in the issuance of the building permit and looking at the plans that were issued with respect to the building permit. I think you do have to consider both the permit and in the context of what the planning board site plan approval decision was. There's nothing in chapter 48, nor has anyone cited to anything, nor has my research revealed any authority for this board to issue sort of a temporary stay proceedings. I certainly understand that the applicant feels that the more work that goes on, the more harm that the neighbors may suffer. Similarly, you have an applicant that at least for the moment has a validly issued building permit and has a right to exercise that building permit. So if we tell the applicant. Notwithstanding the fact that you have a valid building permit. You need to stop work. They're also going to be harmed. So I think we have to consider the balance there. As I read the statute and my experience with these types of appeals. I think the board has to actually ultimately reach a decision. I think you have to find that there is a violation in order to impose a cease and desist or a stop work or to revoke the building permit. Now, if the applicant wanted to offer to refrain from doing any more work while this process is going forward, that's certainly something that could be asked for. Certainly something they could offer. But I don't think this board has the authority in my opinion. And I will say I am no judge. I am simply your attorney. And you can agree with me. You can disagree with me. But at least in my opinion, I don't think you have the authority to tamper with the building permit that is in effect or tell an applicant they can't continue with it just because you need to get to the heart of the matter or you need more time to get to the heart of the matter. But I think I've answered your question. You've answered the question better than I have. I have a question. If something were to be revoked, could it then be re-brought back at a later date in the same capacity without prejudice? If needed. If you're thinking in the context perhaps of a repetitive petition situation, if that's what you're thinking, I mean, if the answer is yes, it can be brought back. If the building permit is revoked, then ostensibly you've revoked it because you found that somehow or other it was issued not in compliance with zoning, not in compliance with the planning board's decision. So the applicant has the right to cure that if they choose. They also have the right, by the way, to appeal your decision to court if that's ultimately what the board decided to do. But assuming you were to revoke the permit and say whatever you're going to find, and I don't want to presuppose what the board may find, but you'd obviously have to find some sort of zoning violation. The applicant could cure that and come back to the building inspector at that point seeking reinstatement of the building permit. Thank you. If I may, Mr. White, I think Attorney Murray did a very admirable job juggling those issues. I think her recitation of the powers that this board has in General Laws Chapter 48 Section 14 is appropriate. As I think she telegraphed, I see those as more expansive perhaps than she did. I agree with her insofar as the exercise of any type of stop work from this board would require a decision, a vote, and a finding by this board to issue that stop work order. Respectfully, I believe that there is sufficient material that's before this board. I understand your concern perhaps about getting down to the weeds and stormwater calculations, but I think that highlighting the non-compliance with the aquifer protection overlay district in and of itself, I think probably gives strong grounds that this project really needs to go back to site plan review process. And that this building permit was issued an error. That, I believe, is a finding that you could make, and that could give grounds for a determination and a vote that would support a stop work order. And if I may, Mr. White, since, as counsel alluded, counsel for the applicant is here as well, and I anticipate that when they present, they will likely argue that this is not timely. And I guess I'll just, we addressed that somewhat in our papers, but to amplify it a little bit more, I think I'd like to draw attention that Mr. Silverstein's law partner is the author of a law-respected handbook on land use planning, attorney Mark Bobrowski, who I believe represented the applicant before the planning board. And he has an entire section, section 908A, which is just called problems. And it's problems with the difficulty of appealing a site plan. As he notes, several problems persist and deserve immediate attention from the legislature, but I can tell you that since this edition came out, the legislature has not provided any better guidance. In this situation, Mr. Muscari received notice of the building permit, as Mr. Silverstein's submission indicates, and then he promptly filed with the town clerk a request for zoning relief under General Law Chapter 48, Section 8. Yes, there's language in there that it was addressed to the town clerk with the CC with the building commissioner, and there's language there that was seeking enforcement, but it essentially laid out the grounds of the appeal that I've just laid before you as well. And he articulated that he had concerns about the issuance of the building permit based on errors in the site plan approval process, and he highlighted non-compliance with the aquifer protection district and the other elements that I enumerated. I think the key elements of referencing the statute 48, Section 8 for seeking Zoning Board of Appeals review of the issuance of a building permit and filing that, getting that on file with the town clerk, those two elements, I think, are far more than enough to establish that this board has jurisdiction to hear that. As you are likely aware, and as Mr. Silverstein's filing highlights, Mr. Muscari also filed a request for an appeal after he, there was no response to that letter from the building commissioner, and we would maintain that that appeal is equally before you as well. But the more important one is that initial appeal filed in November, well within the 30-day period of the issuance of the building permit. While certain elements of that don't have the precise magic incantation to say that it was an appeal, that citation to 48 and the filing with the town clerk, I think, are well enough to establish jurisdiction for this board to hear the appeal. Thank you. Thank you. Thank you. Yeah, I appreciate that. I appreciate that that's a title problem, because this is the easiest case we've ever had. So, there are probably additional questions, but what I'd like to do is I'd like to hear from the Council for Veritas. I'd like to hear the presentation, and then, again, trying to sort of work our way through this. This is very complicated. I, you know, we're sort of talking about specific details, but I know we also do have to talk about threshold questions, so I think we answered some of those by asking questions about the limits of this board's power with respect to acting for a temporary halt to construction. But I sort of, there will probably be additional questions. Great. And I know you're mindful of time, but I also know there are members of the public that also wish to be right on this. Correct. Yes. I'll be available. Okay. Thank you. So, yes, if you could, you could come up and introduce yourself, and I'm sure give us an overview of an exactly opposite position, which is understood and appreciated. Thank you, Mr. Chair. Thank you. For the record, my name is Jonathan Silverstein. I am a partner at Flatton and Pabrowski, Haverty, and Silverstein with offices in Concord. I'm counseled for Eritas Christian Academy, which was the recipient of the building permit that set issue here. If I could begin with what I would submit is a threshold jurisdictional issue, and that I would suggest to Ms. Murray, who I've partnered for many years. It seems to me it makes sense before the board digs in through the weeds of what took the planning board nine months and over a dozen hearing sessions with peer review reports, expert determinations, engineer reports, just one little correction to my brother. Mr. Horsley is not an engineer, but nine months of dense technical analysis before you decide as a board to delve into that. My suggestion would be to make a threshold determination of whether this matters even properly before the board. And I submit that it is crystal clear that it is not properly before the board. Why do I say that? Case law is well established that when an applicant has knowledge of a building permit issuance, they cannot appeal a denial of an enforcement request as a way to get around the 30-day deadline to appeal the building permit issuance to the zoning board of appeals. So, in his letter, counsel for the appellant points and quotes some of the language from chapter 48, section 15, which deals with the procedures for appealing the decision of the building official. Mr. Horsley notes correctly. Mr. Horsley notes correctly that notice of the appeal has to be filed with the town clerk. Interestingly absent from the quoted language in the letter is the following and to the permit granting authority. That's the zoning board of appeals. So, yes, the town clerk got the November 18 letter and the building commissioner got the November 18 letter. And you know, you know, in the beginning, this board. Or, it's staff. The applicant's attorney cites to a land court decision in which in what's called dicta, meaning not part of the decision that was crucial to the ultimate judgment, the land court, a letter that was filed with the Somerville city clerk and the Somerville inspectional services department and the Somerville office of strategic planning and economic development, which staffed the zoning board of appeals in Somerville, and that said in the Rayline appeal, a building permit, and that included the filing fee for an appeal, that that constituted adequate exercise of an appeal within 30 days. So, I'm not sure that decision, that piece of the decision was properly decided. It was never subject to appeal because the defendants won the case anyway. In my view, it conflates notice of an appeal with the filing of an appeal. It's readily distinguishable anyways, because what Mr. Mascari did not do is provide a copy of his letter to this board within 30 days, file a filing fee for an appeal, or say it was an appeal anywhere. Use the word an appeal. All of those are distinguishing facts from the Somerville case that cited in Mr. Mascari's counsel's letter.
The statute clearly says an appeal has to be filed with the permit-granting authority. It wasn't.
We are entitled to rely on the fact. I mean, we were not required to give notice of the billing permit's issuance to parties in interest. Why did we do it? So that this wouldn't happen. So that we wouldn't get blindsided after we commence construction with an unappealed building permit by, what, if I have to get to the merits of this?
I can't convey to the substantive arguments are. But 30 days went by and nothing was filed with this board. And that's exactly what the statute in the case law prohibits. I'm happy, let me say, I will deal in turn with each of the arguments made by the Appellance Council as to the alleged zoning violations and other issues. They're all completely meritless.
In any way, presume to tell the board how to run this hearing. But I guess I just would ask if you want me to take a pause before I go into all of that, and if the board would be inclined to make a threshold determination on the jurisdictional issue, because this is not properly before you.
Thank you. I think it probably does. In as much as I do want to afford you the opportunity to sort of be able to speak to the points that were raised, this threshold question is quite complicated, because as you can imagine, there is the legal question and then there is the perception question. If this board were to say, we don't have the authority to hear this case, I have a feeling that a lot of people who are here this evening sort of in a way feel deprived of a process venue. That doesn't mean there isn't another venue that this matter could be discussed in. And I know that's a perception thing. That's not necessarily a strictly legal question. And I'm not an attorney, so I can't sort of, you know, opine on the merits of that. But I guess I would ask for assistance from our town council on any guidance on evaluating this question of thresholds. I've read both letters, and I'm not necessarily sure exactly how to sort of go about this question of determining the threshold as to whether this is a timely appeal or not, because I could read both of those statements and come away with an opinion on them. And they both seem equally compelling. So I think in order to analyze this, we need to know what the timeline is and be clear about that. So the building permit issued on October 30th, the applicant, I should say Veritas, the applicant in the underlying matter, did send notice of the fact that a building permit had issued. And they did in their packet include proof that Mr. Muscari had, in fact, signed that he received a copy of that. As council noted, there is no statutory or bylaw requirement that when a building permit is issued that anyone needs to get notice of it. Someone could literally get a building permit, stick it in their pocket, as they say, for 30 days, and just wait to see if there are any appeals. Someone could also get the building permit and the very next day start sticking a shovel in the ground and then notice that the public gets is, gee, what's going on? I see construction vehicles on site or some work is on, is going on. So notice of the building permit issuing can be a letter sent to someone. It can also be noticed that work is being done in the, in the area. There is also case law as council for Veritas alluded to, um, and site is called the Gallivan case. That is an appellate level case where, uh, in their neighboring town of Wellesley, where a building permit was issued and a butter watched the construction go on for some period of time. And then, in the court's words, sat on her hands, sat on her rights, um, and didn't bring an appeal of the building permit because too much time had passed, but actually, um, brought an appeal for zoning enforcement action. And the court said, no, you had notice that a building permit had issued, you needed to appeal the building permit, not do an end around and seek zoning enforcement when you knew of the allegations of, of zoning by alleged zoning violations at the time that the building permit issued, the time that the work began on the site. Um, um, um, counsel for, um, the appellant has also cited in their papers, a case called Murrow versus YM Somerville and council for Veritas just sort of explains that, um, this is just a land court case. And I don't mean that to be disparaging to the land court, um, but I say that because it is not binding on the town of Weyland. If it went up to an appeals court with a Supreme Judicial Court, it would be binding on us, but it is not. Nonetheless, the land court in that case was struggling with a similar situation as, um, attorney Silverstein described where something purporting to be an appeal of the building permit and said, and the court actually cited to the reference line of the letter saying appeal of building permit, and it included the building permit numbers. It was a, it was filed with the town clerk. It was filed with staff that supports the zoning board of appeals. So you have to compare that with Mr. Mascari's November 18th, 2025 letter. Where the reference line, to the extent that that is something compelling to you, says request for zoning enforcement. Yes, I acknowledge it references chapter 48, section seven and section eight, but it says request for zoning enforcement. The opening line is I hereby request zoning enforcement. The closing, uh, requested action, um, you know, does go on to say, again, it cites chapter 48, section seven. Section seven, which is the statute under which, or one of the statutes that relates to zoning enforcement action, but it does also go on to request withdrawal, suspension, modification of the permit. So I don't expect now, then we should also then note. That.
Then on December 5th, but stamped in with the building department on December 8th. Is the actual application. To the ZBA. I think the thing that has really triggered us to be here tonight. Whether you take December 5th is the date or December 8th is the date that it was stamped, um, received. That's certainly more than 30 days past October 30th. So you really do need to focus on. What you think this October, sorry, November 18th letter. What you think this October, um, is, uh, uh, uh, uh, uh, prior court has decided this exact issue and determines that this was a timely appeal. The cases that the court looked to arise under chapter 48, but has to do with an appeal when notice of an appeal is filed with court and with the town clerk. So not exactly comparing apples to apples, but again, a land court judge felt that in that instance, there was enough in that initial letter to put the zoning board on notice that a building permit was being appealed. Do you have all of those elements here with the November 18th letter? No, you do not compare them side by side with the case, with the case law. But again, you're not bound by the holding of the morrow case. You could just find it to be, um, certainly something that would guide us that if this goes off to court and I suspect it will, um, it'll ultimately be a decision for the court to make. But, uh, I think the court's going to struggle with how to interpret this November 18th letter. One thing I do want to note is that in, uh, Vero's cover letter to the board and in their opening statement, uh, the attorney said they also represented Patrick Cavanaugh. You did not receive an appeal of any sort from Patrick Cavanaugh within 30 days of the issuance of the building permit. I know most of the attention is on Mr. Muscari, but I don't want us to lose sight of the fact that, um, someone else has also been named as, um, as an appellant. So I'll pause there, Mr. Chair, in case that was helpful or the board has any further questions. That was helpful. I guess I had a little bit about the questions.
It was a Mr. Kavanaugh mentioned. I did too. Do we need more than that? Do we need more than one person to be making a, um, an appeal to actually, once you have one? For the purposes of this discussion, I'm not asserting that Mr. Kavanaugh filed an appeal. It is the documents for Mr. Muscari. Thank you. Thank you. So I, I don't know if we need that from, I think Mr. Muscari with the 18th notification is trying to make an appeal. Um, which for me is within the 30 day and you have documentation for that. So, I mean, I'm, I'm inclined to hear the appeal because we have at least one person within the timeframe to make a request. Um, I don't know what any other board members feel like, so when you say your, your appeal, I mean, we don't, well, to move forward a violation. Um, the threshold question as to whether or not, I mean, we've heard, we've heard, we've heard, we've heard two, two statements about, about this. I think this board has to make a decision. I think we've also heard that likely, like, however we decide, this will ultimately be, be an issue for a court to decide. And the court would be, we're struggling with this, um, if a court would struggle with this, I would imagine we're going to struggle with this particular question. Um, is there any legal question? You know, there was, there was some other attorneys on the board here about that nuance. This is a very particular nuance question.
Strict interpretation, you know, is, are the elements there?
Well, again, and this is really for the board's determination. If we look at Mr. Muscaro's November 18th letter, it's addressed to the town clerk and the building commissioner. It is not sent to the permit granting authority, which as attorney Silverstein said, would have been the, um, in this instance of appealing a building permit, you will appeal to the zoning board of appeals. I would just contrast that with the actual application that was filled out subsequently, um, you know, zoning board of appeals application for hearing, um, is very deliberately filed with the zoning board of appeals, um, and a different form, which you could take as suggesting nothing. You could also take it as suggesting there's a difference between this letter of November 18th and then this application to the ZBA filed in December, um, if we follow, and, and I'm happy to circulate the Murrow case to folks. It wasn't very long if folks want to read it, um, the Murrow case focused on the reference line in the Murrow case. It said appeal of building permit and said building permit numbers here. The reference line is request for zoning enforcement. Yeah, this is not the, the opening line of, of the November 18th letter is pursuant to chapter 48 section seven and eight. I hereby request zoning enforcement regarding the building permit issued on October 30th. Um, it's unfortunately, it's really a decision for the board as to how you, do you think the November 18th letter has enough of the elements here? To advise you that this was an appeal of a building permit. So it's the question if there were no December letter. Would we have ever known from the November letter that there were an appeal that there wasn't? I think that's part of it. I don't, I, I'm not suggesting that's the only question, but I do think that is part of it because the November 18th letter was certainly not addressed to you. I don't know if it was shared with any of them prior to these proceedings coming into being, but it certainly was not addressed to you, unlike the subsequent appeal, which, you know, like I said, it's on your zoning board of appeals application form. It gets filed with the town clerk and it goes through the process so that, you know, that you've truly got an appeal before you. I have a question. If an awareness is given to the building department, is there an understanding that the building department would automatically be notifying the CBA as part of its, um, receiving of that notification with that understanding? Is there a requirement, the building commissioner or the building department forward everything they received to the CBA? No, there isn't. Um, if in the ordinary course of things, folks request zoning enforcement action pretty frequently. And I'm certainly not going to speak for the building commissioner, but I would venture to guess that when he gets a request for zoning enforcement, the building commissioner reviews it. It makes a determination whether he thinks any action is necessary. I don't know whether the building commissioner's practice is to bring the zoning board of appeals into the loop on that. Or is it only if the person requesting zoning enforcement action is not pleased with the response from the building commissioner that it then rises to a level that it is shared with your board. I just wasn't sure if there was an expectation or thought process behind that as well, so. There may have been an expectation. I really can't get into the minds of the various people. No problem. And that's, I wouldn't, I wouldn't, we have to go off the documentation. And in fairness to, to Mr. Muscari, he's representing himself in that, at that point in time. Correct. Mr. Chair, could I? Sure. Just a couple of quick things. You have a checklist on your website. It's not complicated. You make it very clear how to go about submitting an appeal to this board. And Mr. Muscari had no difficulty following that procedure. This notion that he really intended that November 18 letter as an appeal, I submit, is a post hoc attempt to get around by his counsel who comes in after the appeal is filed. And before seeing my letter, I'm sure the first thing he did was look at this and say, oh, shoot, we missed the deadline. What can we do to explain that away? There's nothing in that letter. The ZBA isn't mentioned. It isn't copied. No filing fee is submitted. No application form is filled out. The December 5 appeal doesn't say that was intended as an appeal. What does it say? It says the building commissioner's failure to respond within 14 days constitutes a constructive denial, a notion that many cases have flatly rejected. This is all respectfully dissemblance after the fact to try to suggest that that original letter was something other than what it explicitly said it was, a request for zoning enforcement. Why would the building commissioner have forwarded that to the board? I don't want to speak for him. I don't want to speak for him. But if I were in his shoes getting that letter, I would have no reason to believe that this is intended as an appeal. Because again, it doesn't mention the ZBA. It doesn't use the word appeal. It uses the word enforcement many times. So, I think if we're all, I understand reaction to what is perceived as, man, that's a harsh result for a technical failure. But that's the law. And the case law is clear that the board is without jurisdiction. That means you don't hear it to make people feel like the process is fair when you don't have jurisdiction. And you don't have jurisdiction. He clearly knew how to file an appeal. The board's website told him how to file an appeal. He did it a week later. And what did he claim? Not that he had filed a timely appeal and he's following up on it. He claimed he was appealing a constructive denial because his request for enforcement, that's what he calls it in his appeal to you, was not responded to by the building commissioner. I don't think anyone who is honestly looking at this can pretend otherwise. Mr. White, if I may. Yes. Just a few points. I mean, as Attorney Murray has stated, Mr. Mascari did do this without kind of good counsel. Mr. Silverstein's recitation is correct. We came in after those documents were filed. And yet, we feel strongly that the town was on notice by virtue of the November 18th submittal that he was seeking an appeal under. But he references both Section 7 and Section 8. And Section 8 is the statutory reference for the appeal to appropriate granting authority. To the extent that folks are elevating the concern about what was mentioned in a reline, he makes the appropriate statutory reference that he's seeking an appeal of a bill increment. And I think that the December 5th letter has more bells and whistles, the application was the November 18th letter establishes that intent to appeal the building permit based on the failures of the site plan approval process. He's very detailed in that regard what those deficiencies are. And I think that the hallmarks are there for the institution of an appeal. Thank you. Thank you. Thank you. I have a question, probably for our town council attorney Murray. Even the difference of opinion between the applicants and Veritas on the merits of the site plan review. So, if this board determines that we do not have jurisdiction, what happens to this substantial difference of opinion? What would occur if this board determined that we don't have the ability to hear this appeal? If, if the board determines that you don't, that this was not a timely appeal, you don't have jurisdiction to hear the appeal. You don't have jurisdiction here, the appeal, the building permit and the site plan approval stand as is. Your decision, however, could still be appealed to court to fight over whether or not this was in fact a timely appeal. And depending upon what the court would rule, if the court agreed that it wasn't a timely appeal, that's really the end of it. If the court feels that there was enough in the November 18th letter to notify the town that this was an appeal of a building permit, then I would anticipate that what the court would do would be to remand the matter to the Zoning Board of Appeals for you to now address the merits of the appeal. Very helpful. Not necessarily. It's not. Can I make just one, like, super fast addition? And I just happened to pull up Mr. Mascari's appeal. And in the Ray line, if we're looking at Ray lines, of his appeal letter to this board, he titles it, Appeal under Chapter 40A, Section 8 and 15, Constructive Denial of Zoning Enforcement Request. I don't think that leaves any doubt as to what the February 18 letter was. At that time, did he have counsel? I have a question for you. Well, I mean, you may know better than, you just may be closer to it. I mean, the planning board here, they are the group that accepted the original proposal, that worked on this proposal over several months. Have we heard from the planning board in regards to whether or not the work that is being undertaken matches, you know, what they approved? We haven't received any communication from the planning board or the town commander on this matter. We've only received the information that we have, like, in the project file, which is the two letters from the appellate's attorney and the information from there, as well as some staff comments. But no, we don't, we don't have a, we don't have any communication from the planning board that I'm aware of. I don't know if Robert's still on or not. I don't know if you're abused. There's also decisions from the conservation commission and the board of health. We're all tied into this whole approval process that was voted on by the planning board in April of 24. And the appeal period for that was up 30 days in May, May 14th of 2014. So no one appealed that decision from the planning board at that time of all the, all the allegations for the work that's being performed now. I don't think that's accurate. The appeal of the planning board decision is upon the issuance of the building permit. Correct. I was, I was actually going to say that it, that is, you are correct with that. It's like that decision could not have been appealed as I understand it at that time. You know, if a building permit had been issued immediately after the site plan approval, it could have been. But as I understand our very quirky bylaw, that if it took two years between a site plan approval and a building permit, that's when that site plan approval would be appealed to the zoning board. You are correct. Right. In the issuance of the building permit. Yeah. So there would be no ability to. So even if the applicants wanted to appeal that site plan, it would not have been possible last year. Correct? Correct. Not until the way I. Not until the way, until the building permit for that work is issued. And then it falls on this body that had nothing to do with the project. That's an entirely. Oh, so we do have, we do have the town planner here. So did you have a, did you have a statement to make, uh, Mr. Rommel? Nope. I'm just here to answer any questions. Yeah. I guess I don't know if you want to restate that question to the, to the town planner with respect to this, but. Yeah, I guess, you know, we have a pretty limited scope where we've received kind of a limited amount of information around, um, all the work that's been done on this proposal over the last several months. Um, you know, there are some pretty, you know, serious allegations, um, brought by, uh, the abutters. To your knowledge is everything that, um, it was approved by the planning board. Does it match the work that has been done thus far? Yes. Yes. Uh, Robert home for the record town planner to the best of my knowledge, everything is, is in compliance. Um, there was some new issues that were brought up tonight about the setbacks. I do not believe we're in some of the letters from, from the advance, uh, council, um, with the parking and the fencing. Um, those are kind of separate issues. If you, if they put down temporary fencing on someone else's property, that's a completely different issue. That has nothing to do with the site plan itself. That was after the fact of the site plan approval. Um, that's, that's a completely different issue. So there are some other things in this with that Rob tonight that are kind of outside of the scope of what's going on. And it kind of need to be investigated on its own at a different time. But yes, best of my knowledge, everything is in compliance based on the plans that were approved. Thank you. So I just want to take us back to the letter itself for a second. Um, I reread it again, just for me. And while Mr. Mascari didn't actually call out appeal, there was the spirit of asking for an appeal without asking for an appeal here. It's very obvious that he didn't like what was happening and the follow up action of doing walking through the additional documentation of being able to set a proper appeal. On the 5th tells me that that letter does actually recognize the initial want from the town and everybody to actually have an appeal on this. So, it's definitely implying an appeal, it's whether or not we want to consider the influence, you know, being able to imply appeal is really a actionable piece for us. Because it's very obvious that in the letter he does not want and feels that there are issues here. And then doing the additional steps of being able to file the actual appeal tells me that he followed up on this. So, I don't know, I still feel like the letter itself still isn't playing and having that spirit of a full appeal and then actually doing the additional actions is in good faith of the actionable pieces within the timeframe. That's just my opinion. I don't know how the board feels about it and thoughts or whatever, so. But that is the core of the issue we have to... I understand, but I wanted to just sort of express that this, from reading it, there are certain statements that are being called out in chapters and stuff that are directly in dealing with this, which, like, I don't want to keep going around in circles and circles and circles. Like, I think that, I mean, this is fairly straightforward that he was looking for something and then he followed up and went through the right channels to be able to get that. So, why wouldn't we be willing to hear... We're not saying that we're not, you know, going one way or the other. We're just willing to listen to what that appeal is to be able to move forward. So, I don't think it hurts anything. I don't think it helps anything. I think it's just, I think it's a fair action for the originating email on the 18th to be considered as, as violent. So, I guess I have a question for Attorney Murray. If this board finds that the appeal was timely and we can hear this matter, our decision on that matter is appealable, correct? Correct. But not until you go through the whole process of reviewing the entire appeal and render decision. It's not like we can appeal that right away. No, no, I understand. I understand. It also looks like there was a statement that looks like a woman in the back would like to make. So, do we want to allow her to come up or... It's your problem. Are we doing that now? No, I think we have to make a determination. I think we have to make a determination on the threshold of this because, like, I'm mindful of several things. Like, we have a lot of people that want to speak. I'm mindful that we have not allowed this attorney to make a presentation on the merits of his points that we did hear from the counterpoints to the appellants of the application. So, I think we have to make a decision on the threshold. But would that be something that we have to vote on? Or is that... That might be one way to facilitate moving kind of off this point because if the board is of the mindset to hear or that it's timely or not timely, then you know whether this hearing is over or whether you're going to continue to hear the rest of the presentation on the merits of the appeal. So, I guess, in my opinion, and this is complicated, I think that the applicants did notify the town that they had concerns about the building permit that was being issued. I think they...I also think it's true that they didn't follow the proper procedure for that. But listening to the case law and the land court ruling, it does seem to me that we have latitude as a board to sort of make that determination if we choose to. So, I am somewhat persuaded that we should hear...we should hear this case so that I could be counter-persuaded by other members of the court. But I do think this is an important one. I think it's something we need to decide on relatively quickly so that we can decide what we're going to move on with. So, discussion? You guys, would you... We would just make a motion. We would just make a motion to vote on this? Well... I mean, for me, I feel like it depends on how much latitude we have. I mean, if we're going strictly based on the language, then... I mean, the language seems like it's very clear and the dates seem like they're...it seems like it's very clear. But if we're trying to...if we're saying the intention is...it is clear by the intention. He references the...the right...you know, the right language. Everything seems...it seems clear what he wants to be doing. But it...I guess I don't understand necessarily. And maybe council can...can tell me how much latitude we have. This isn't a court...we're...we're the zoning board. So, I don't know what exactly we're supposed to be...you know, it was...it...does intention mean anything? Or...or are we supposed to be reading this literally for the language? Because, you know, like that makes my decision. And part of it isn't...there's...see...uh...when I read it several times, I...I see like...there is not the ask. The ask is not there. There is not the clear-cut, um...or even more specific, um...request for...the building...the building commissioner's decision is not being appealed. It's not. It's not. If you...read it, and you can draw out of it, that there is, um...a confusion, and then...expression of trying to figure out...or...or...and say why...there's a thought that there is a problem here. But...and...but then it's...it's how much do you read into it? How much latitude do you get? How much, um...you know, there are checklists again, and people are referred to that. Um...and I appreciate that once...I didn't realize at first that there was no council. I think I skipped over that when I was reading this information. But I certainly appreciate council coming in and saying, let's do the best we can to see how we can get this to the result that you...you were hoping for. Um...so all of that keeps going around. And as Justine was saying, what is the latitude for...for the board? And, um...you know, but on the face, no. It's not there. Hang on one second. Well, I would...I would...I would like to have Attorney Barney answer, I guess, a few questions first. Sure. So...but for this Morrow versus Y.E.M. Somerville case, case law has been pretty clear on this matter. Um...I'd refer folks to Connors versus Amino. Right. Where, you know, again, a court of an appellate level very clearly said, one day late in filing an appeal is...is too late. And again, to go back to the Gallivan versus Wellesley case, you can't...you can't have noticed that a building permit has issued. And rather than appeal the building permit, seek zoning enforcement action. So, you have appellate level cases saying that. Then we have this Morrow versus Y.E.M. Somerville case that, again, is just a land court case. And I...I don't say that to be disparaging to the land court. But there's significance to that in that a land court case is not binding on all the cities and towns in Massachusetts. Does it mean that the...that what the court says in the case may not be helpful guidance to us if we're thinking, how do we think our case might be appealed if it were to go that route? So, that one land court judge that no appeal support has weighed in on yet said, well, I think you can look and have a little bit of latitude. You can look at the reference line. Now, I do also want to say that at least also in the Morrow case, while it wasn't entirely clear, you know, what the appellant was looking to do there, you don't have the exact same facts here. Where you have the November 18th letter. That's certainly within a 30-day time period, followed up by a December 5th stamped in on December 8th ZBA appeal application. That's clearly beyond the 30-day timeline. So, if we're going to rely upon just this one land court judge, there is some degree of attitude that you're given that, yes, you could look to what was the intent of that appeal. You know, was it not as artfully crafted as it could have been if Mr. Muscari had had the benefit of counsel at the time. But, it also does kind of go against a fair number of other cases where appeals court have looked at this and have said, sorry. So, all I can say is I very much appreciate the decision you have to make and I wish I could give you a bright line case out there to say, the answer is, and you must do this. But, the best I can give you is weigh those cases for you. Thank you. I just wanted to... Yes, sorry. Mr. Muscari is traveling for work today, but he has joined the Zoom and he did raise his hand within the Zoom. Okay. I'm happy to sort of... I mean, I guess the question is, should we, before we hear from the applicant, should we make a determination on this question of threshold or should we hear from the applicant who will make that determination? I personally think it's worth hearing from him. I mean, he may have something to say as to why he's been held out of appeal. I think it's reasonable. Yeah, so would you be able to elevate? Yeah. Can you hear me? Yes, we can. Good evening. Thank you. Good evening, everybody. I really appreciate the chance to be able to speak. And chair and members of the board, I want to thank you guys for hearing this tonight. I'm sorry I can't be in there in person, but I just want to put to rest any question around my intent. It is crystal clear that I intended to appeal this. As a non-represented taxpayer, online searches indicated that the process I followed was appropriate and correct. I was appealing this in my November letter. And the idea that it is late is just uncharacteristically true. Also, the idea that we somehow sat on our hands is also simply not true. Our entire neighborhood who is behind you right now and is gathered with other residents from the town have been following this planning process for months and months and months. I clearly referenced sections for an appeal in my communication to the town. I did my best as a taxpaying resident who has followed this for over a year to make my intentions clear and speak for our whole neighborhood. We aren't lawyers. We're parents in this town. I'm a soccer coach and a dedicated citizen who volunteers his time to make this town why we all want to live here. We are taxpayers and we put our trust in boards like you to represent us. As residents, we were told we could not appeal the site plan decisions directly and that the first appealable action available to us was the building permit decision. And we acted promptly. We followed the town's process and there is a clear ask. We're all here pleading with you to hear that collective ask and the idea that we have put this much effort into chairing this effort and that we don't want to appeal is a bit strange. It's very clear from the number of residents of the room and the quality of the presentation that we put forward that this is a community wide issue grounded in real planning and engineering questions. We love this town and we want to protect it. Why would we sit and wait on the sidelines? And why would I not intend to appeal? Why would we waste everyone's time? The idea that we're arguing a technicality instead of the case is exactly why this room is full today. Thank you for hearing our case. We really hope that you will move forward to at least try to stop work until this situation continues to get worse. And we prefer preserve the status quo of this appeal until it's heard on its merits. Thank you. Thank you. I mean, I think we have to we have to make a decision on what we're doing here. I think we've heard to like compelling arguments, one in favor and one opposed to whether or not we hear this. I think it's also clear to me that regardless of what this board determines, this case is going to go on for a while and is likely going to result in sort of like action on court. So I think it's important that we make a decision to sort of be able to move something forward. So entertain a motion. I move that we accept the appeal and continue discussions about the appeal on both sides. Second. To make a board. I suppose that's true. That's true. That's true. Yeah. What is the quantity of them? What do you move for? Is it two thirds? I think. Majority. I think this would just be a majority vote. So, I mean, the panel would be the five permanent members. Mr. Hirsch, Mr. White, Mr. Curry, Ms. Jenison, Ms. Paul. So. All in favor? Aye. Opposed? All right. So we've made that determination that we think the appeal is timely. So, based on that, what I propose we do is we listen to the balance of the material from Veritas and probably answer or allow some members to speak. I guess I should sort of preface this by saying that obviously, you know, that we're going to get on this path with the board here. Like, we do not have the benefit of having attended any of the planning board meetings. So, this is a process that is going to be complicated, and I think it's going to require some supplemental meetings. Because if we continue our cadence of monthly meetings for a case like this, I'm concerned that, you know, if this goes all the way, this could take as many hearings as the planning board took for the approval of this project. So. Can I ask a question? Should we do something about our other two cases? Thank you. Because this is going to not be quick. Yes, we could. I mean, I mean, I suppose, but I mean, to do that, though, we would have to pause. Yeah, I'm just saying that we're in the middle of a particular case. We would actually have to stop. Yeah. We would actually have to open the hearing for those cases, then go to continue them. So, it's perfect that we can avail ourselves. Right. We should just come every month. We should have you here every time. Absolutely. If the question is, could you take, could you just, you know, you know, I wouldn't table. I think you could just say, pause this hearing for five minutes. Take up the other two. If you think those are just simple continuances. And then we come back. You could, you could do that. I don't think anybody would mind the four or five minutes. Or if you don't, I'm not sure if it would, those are simple continuances, you could offer them a continuance now so that they would not need to stay until. Yeah. Now, if we offer them a continuance, do we need to vote on that? Yes. So, we still, so if we do that, we still need, no matter what we need to do, we would have to pause this. We would have to pause this process. I think that makes, I think that makes sense. I think we could dispense of this inside of five minutes. That's. Of course. Okay. Thank you. Thank you. So, do we want to make it official and say that it does? It's fine for some people. Well, yeah, I don't know. Do we, that was, do we actually, you don't have to vote on that? Do we simply announce that we're taking a pause for this? Right. You could, or just, if you want to make a motion to put this in recess for five minutes and then go to whatever's next on your agenda to address those. Move for recess for five minutes. Second. All in favor? Aye. Aye. Aye. Aye. Aye.
Aye. Aye. Aye. Aye. R30 zoning district the applicant seeks a special permit variance or other applicable zoning leave to demolish the existing structure and construct re-placement following the lot is pre-existing and not performing with respect to the minimum lot area requirements um what i would suggest is that um i propose that you look for a continuance um for 7 15 uh at the next applicable hearing which is the calendar uh February February 10th so is that yes is that amenable to the applicant
good evening good evening mr chair members of the board um i'm glad our 7 15 scheduling worked out tonight yeah you know it just seems like no matter which way you do it it's all someone's always gonna get the short end of it um but i you know i'm ready i i know that it's late i appreciate the board's time i've enjoyed the um merits of what we're discussing with some council that i know well in my own practice um you know unfortunately my applicant is ready to go on you know at least present something in terms of both of these um i suppose that the um the board uh and the town council can assist on that i think the board may have the authority to um request a continuance on our behalf um you know that's what we're doing okay well um you know it seems seems to be that that's what that's what we're doing so um okay i i'm i'm ready to go i understand what the board has before you tonight and be trying to be respectful to be possible for us to proceed um this evening um so we need to vote on this yes a motion to continue the two cases or one case on to a date certain can i just request at least that we're first on the next meeting for both of them so i don't duck behind something like this again you can absolutely request that um so we only opened the cake the first case 43 plain road uh do i need to read the notice if you want to pass this motion for both cases you can do that for both have have you opened the hearings on both yes previously yes um yes yeah we have opened both cases you could do one motion to continue both of those cases all right so i'd make a motion that we continue zva case 25-30 for 43 plain road and zvk zva case is 25-35 for 8th parkridge road to 7 p.m on no 7 50. we have the other stuff at 7. 705 705 to 705 on february 10th yeah second all in favor all right opposed none all right so thank you for your patience i appreciate it so um we will see you up first on uh february 10th sounds great thank you for your time all right thank you all right so um we can move to
technically we're still in recess yes yeah you know where it is no i'll show you
you know we've been here enough follow me okay
we need to pause the recording
i can't answer that question i'll sit here
oh come on we're still recording of course that's wild i want some members of our audience i want some members of our audience to be watching i'm trying to be able to see some humor
so um yes we are out of recess and uh back for our case we need to vote on that right yeah okay um so what i propose we do is um at this point i think we should plan on uh listening to the balance of the presentation from varitas's council and i think this board should consider adopting an interim meeting to to um continue this because this we aren't going to be able to make a decision on anything this evening and i think we'll get this board's going to need some a lot of additional material and i think this board's going to need to take some additional testimony so we also need to know what the scope is that we are reviewing um so um if you want if you you would like to resume um your presentation um i think that that would make the most effective use of the time that we have left this evening uh we then consider uh adding interim meeting so thank you mr chair um i do want to say that uh because we and we continue to feel strongly that um this matter is not currently before the board the full suite of project consultants who no i understand that and we we weren't expecting we weren't expecting that this evening it's like especially we know it was going to take us a long time to get through this question i just wanted to give you the opportunity to to make a presentation and i understand that the questions raised by the applicants are going to require numerous consultants to be involved so i certainly was not i'm not i don't want to ambush you and that is not at all the intent i just want to afford you the opportunity again to make a statement um you know based i think on those i would say kind of four kind of four points that the applicant citizens raised there are more of it yeah so i want to start with a couple of overarching points again nine month dozen session public hearing
all of these issues were thoroughly reviewed and peer-reviewed and re-reviewed attached to mr durning's letter for some reports by mr horsley again not an engineer all of those reports were thoroughly discredited not just by vca's experts but by the planning board's peer reviewer and he cites two statements made and questions raised by the peer reviewer early in the hearing process by the end of the hearing process the peer reviewer fully agreed that all of those issues had been addressed as the building commissioner noted the board of health has approved the septic system all of this nonsense about flooding of the resulting from mounding above the septic system was thoroughly addressed what was that mounding 30 feet away from the property line an increase above seasonal high groundwater of three inches where seasonal high groundwater is eight feet underground
all of these arguments are nonsense and they were fully discredited the planning board considered them it had expert advice and it rejected them properly this notion that you have to take just one
lot of all the property that comprises this development site that doesn't happen in zoning that's not how it works in zoning you treat the lot as a whole it doesn't matter what the property lines used to be this is one development site and dep right after mr horsley's letter in march of 25 emailed him and told him it was nonsense they specifically said to him no you're wrong you consider the entire property and not just what's in the zone going to it's not going to be a tennis court but even if it were let's look let's step back and know what the dover amendment is the dover amendment says non-profit educational uses among others cannot be prohibited or unreasonably regulated but they can be subject to certain reasonable dimensional restrictions mr durney tried to flip it on his head he said the burden was on us to prove what was reasonable no that's not what the case law says the case law says that if some if a board or a town wants to impose a dimensional requirement on a dover protected use it has to be reasonably applied and what does that mean it means as the case law provides it can't prohibit unduly inhibit or unreasonably increase the expense of the project well we can't build our project if mr durning's interpretation is correct and that means even if the apod zoning plus your plus were applicable otherwise which is not under dover it would be on its face unreasonable as applied to our project but the fact is that your zoning explicitly exempts fences and a number of other structures from the setback requirement and that would include construction fencing the bombshell that there's nothing in the zoning appeal about this supposed three-line infraction and respectively i don't think that's matter for the board anyway the courtesy it'd be nice to receive a copy of the survey that supposedly shows this if we need to move our construction fencing we will that wouldn't be a ground to revoke our building permit for the project itself anyway so i think that's just more dirt being thrown at the wall sports facility and the road
to the extent if they were considered structures which they're not such how can you have a road that has to be 30 feet set back from every property line kind of doesn't work because then you don't get to the property line with the road obviously that's a ludicrous notion but let's look at the planning board's decision and any dimensional waiver that's necessary it's up to the planning board under your zoning to determine whether to grant that relief so to the extent we needed dimensional relief for the sports facilities for the road the planning board gave it to us this is on page six of the decision quote the planning board approves the location of the proposed buildings roads stabilized slope material sports court the proposed building coverage the open space the parking areas as depicted in the final
so to the extent we're allegedly in violation of any setback requirement or any other dimensional requirement which we're not the planning board specifically approved it under the dover amendment which it appropriately did and so the question is is this board going to substitute its judgment for the planning board's decision to grant us that relief to approve site plan the site plan after a nine month public hearing process and dozens of peer review comments and reports unfortunately it's our bylaw says we're supposed to do that yeah it actually doesn't so your bylaw is silent and under case law because of one of these difficult problems in zoning law the courts have said that if your bylaw doesn't provide for any other sort of appeal then the only way to get at it is to appeal the issuance of the building permit to the zda and then to the court but that doesn't mean that there's any intentional delegation to this board by the by town meeting in the zoning bylaw hey you guys should re-invent the wheel and run your own nine-month hearing process i don't think there's any basis to suggest that that was ever the intent of town meeting in adopting the special dover protections for site limited site plan review in your bylaw that explicitly says the only thing that's supposed to be on the table is this small subset of dimensional requirements not groundwater not septic not nepa this board has nothing to do with the massachusetts environmental plus yet not construction fencing not tree removal none of it bulk and height of structures setbacks height yard area that's what the dover amendment allowed the planning board to consider and it's all that it would allow this board to consider did the planning board proceeding go way way beyond that scope it did and we had to go along with it and we think it made the project better but the septic approved the title five approval hasn't been appealed the conservation commission approvals haven't been appealed so are you gonna not only substitute your judgment for the planning board on these issues but also the board of health and the conservation commission commission after all the months and tens of thousands of dollars this is a non-profit educational school trying to improve its campus for its students it does a lot in the community notwithstanding what people that don't want in their backyard might say this is a hardship on a non-profit entity that's just trying to improve its school you heard from the planner we're not doing anything beyond what was authorized by the planning board we followed the process we went to the building commissioner we put everyone on notice when we got the building now we're going to have to go through this entire process again i don't think that's what's required of you could you do it if you really felt like it i mean i guess there's nothing we can do to stop you but you know what else you could do
you could look at the thoroughness of the process and say there's nothing on its face in any of these materials that leads us to think we could have done a better job than the planning board and so we're not going to take the extraordinary step over of an annulling the issuance of a building permit that was issued pursuant to a site plan review that followed a non-public hearing process that went way beyond the scope of what any dover project is supposed to have to deal with in the first place there is a worn and unfortunately successful practice among an indie attorneys you don't have to win on the merits just keep repeating the same untruths long enough you'll make it costly enough and you'll delay things long enough that you don't kill project that way it happens all the time and that's exactly what
the appellant is asking you to do here and i'm begging you not to do it this is again a non-profit they just want to improve their school they went through the process they went above and beyond every single one of these points there's nothing past march attached to mr turning's letter there were months of public hearings and additional ground water test holes test pits and analyses done after that and signed off on by the planning board's peer reviewers i guess all i'll say is i am begging the board not to force us to go through all of that again thank you i have a quick question um did mr brian zimmerman uh was mistaken about the tennis court i just want to make sure i have my facts right because that's what i was just told that's all i have no idea okay i wasn't there all all i know is that i got a message from my client saying it's not a tennis court it's not a tennis court okay but the fact is if it is whatever we can build what was shown on the approved site plan so i don't know and the planning board explicitly approved that so whatever is shown on the site plan is what we can build i guess i want to address one other issue only because it came up this notion of segmentation that we're somehow trying to hide the ball and we should be forced to put everything in front of the planning board all at once so i want to just clarify nine buildings ultimately um conceived of as part of of the entire or in future plans them already exist two of them are approved that's what we're building as well as site improvements four of the buildings concepts we don't have the funding we don't have designs are we really being told by mr durning that we can't build the buildings that we're ready to build until we design buildings that are just at the con conceptual level it's absurd and it's not required anywhere in the zoning bylaw or any case law so i i did want to note that too we're not hiding the ball as you can imagine nonprofit has to raise funds before it can move forward with the project we've raised these funds oh and by the way we're not taking any state funding so we're not subject to me but but if we were that's not a basis to apply appeal a building permit for the zoning board of appeals you're not the need by board of appeals that's in austin thank you thank you thank you yeah um so we're you know we are we are at 10 o'clock but we we i respect that um it took us a long time to get here and i know there are people here and stayed so like my inclination is to you know push on for a little bit longer and allow the people that have stayed you know to speak um i also think it's important that we understand that we are going to have to continue this um i i floated the idea of considering an interim meeting between our regular cadence of meetings uh one because i i expect that that there'll be additional people that are going to want to speak um how the board feels about that i think we have to have interim meetings so that we can continue with the other cases that come before us and it's um depending on the depth we go into it's really not i i do not feel that it is fair for other applicants to be waiting for their turn after this project if we have this case along with others i believe the other cases should go first i guess depending on the complaints but um generally yeah so how much notice do we have to give i was just going to ask how much notice do we have to give to add a meeting to our schedule you only need 48 hours notice under the open meeting law because you've already opened the public hearings you've already provided your legal notice and your posting for the hearing so the hearing has now begun so you could schedule a meeting next week if you wish to
or not yeah no right no just like the other words what do we think about the idea of if we come up with a time frame for a secondary meeting if anybody in the room can't come to that meeting they have the opportunity to speak here but otherwise maybe hold it because of the amount of resources that we have from the town to keep that in consideration though the other personnel that are here can speak at the next meeting that seems reasonable so as we as i think as we do with 40 days we also before we really leap into it figure out what it is that we have to hear and who we have to have before us such like that so i'm not saying that it should be done tonight but it certainly should be done at the next hearing so that we could better schedule forward
what we what our tasks are and who if anyone would need to have present not members of the public just um any any specialists of any kind you know do we do anything with the planning board that's another question i mean you don't typically have the planning board come in and defend their position um no that doesn't stop someone from the planning board representing more but you know as you heard from the planner tonight um yeah i think what you're really getting at is that you want to have like certain representatives like like the consultants the engineers if if you need them so but yeah to to you know to give us a greater idea of how deep do we go well i think that was a that was a that's a question that's been raised and i've heard two i've heard two different points i've heard i've heard a request to you know remand this back to the planning board to read that was what was what the applicant asked this back to the planning board right um to reopen the hearings to reopen the site plan yeah that would entail that would that would assume that we come to a finding that we we reject it somehow it needs to be re-reputed i had heard i don't know i'm just i'm speculating i don't i don't
they have a lot more knowledge on the project the other i mean i've also heard that you know could this board basically reopen the entire process and sort of re-go through the entire design this board is not set up to do that this board is not the planning board um this board while certainly we could entertain that this that's that's not the venue for this i don't think it's reasonable that this board could reopen the entire design process of this site plan so i i i don't i don't i don't i don't want this board to do that but it's my opinion i don't know how the rest of the board feels but i don't think that's a practical use of our time and i think that could conceivably be something that could take six months and i think that would while that may please some people i i do think that would put a burden on um the construction process right now and the rebuilding permits and approval that they haven't granted i don't think would be reasonable um i don't think it is either yeah i just want i hope that we just figure out with town council's assistance what is it that we really need to be doing going forward who is it do we have to have in front of us if we need people in front of us so that we can then start marching so um this is board want to hear from people that are here tonight does this board want to set up an alternate date first i mean we're going to need an alternate date regardless of who's here right i mean i i think that there's people in the room yes no why don't we discuss and then offer to anybody who cannot make that date for their schedule and speak this evening i guess i would propose i mean we'll propose a week from tonight it's for work so yeah yeah it is you do need four out of five of you to overturn the building permit so you do need to bear that in mind in terms of schedules yeah um we i just randomly picked a week from tonight we couldn't is there another day that works better for you just in or are you just always in hawaii because i i don't want that i'm in hawaii always so it would it would imply that it would have to be this week i'm leaving on thursday this week yeah let's let's set let's set the 20th mr chair if i may i have another zoning board to be with that night we can't have you there so yeah all right um the 19th
the 21st finally i i have something that night should we do this not what about the 22nd all right the the i cannot make the 22nd i can do the 23rd i don't care i can't do one i'm going to try to be as a comment what about the 20 what about the 26th i can do the 26th i can do it all right let's do that yeah that was great okay next week oh it's february yeah so so january january 26th at 7 p.m it was like a reasonable and so some p.m yeah do we need to vote on that this is that this is a question you will need to vote on it but i if i might suggest it might be helpful while you also have counsel for both parties present just to make sure that january 26th is fine so that they aren't requesting a continuance uh tomorrow morning uh that's fair great thank you mr white thank you that that date does work for me i do want to read one i want to thank the board for its delivering process tonight i appreciate that and i recognize the recommendation of uh identifying the issues to be reviewed i think we've spelled those out with our submittals but we can refine that it's required i do want to uh reiterate the concern that the work is really moving apace uh and there is a concern that with this uh appeal going forward that you know there's a there's a lot of work being performed that i realized maybe that's just that veritas of risk but um we have requested a uh stop work order and i'd like this board to consider whether or not that would be appropriate at this time i appreciate the report tried diligently to have a very short tail before this next meeting i appreciate that the board is adding interim meetings to its schedule and proceeding as promptly as it can but the concern about the continuing work is is a concern i'd like to look forward to consider that like it i i i would i would agree i i understand that it's a concern um however i i i don't think i i think we've heard tonight um and i think the board is aware that it would be very difficult for this board to make a decision tonight that that we you know three four of us uh cessation of construction activities i i i i can sympathize with the request and i i fully understand how people feel about that but i i think the board's hands are tied with respect to this i i don't think we i do not believe we have the ability to do that i think that's the reason why we're doing that that's the reason why i'd like to have interim an interim meeting here um i understand and i i'm doing that because i understand the need for us to move quickly but i i i i don't believe this board based on on case law has the ability to to um to vote to stop the work on this project while we evaluate this as much as i can appreciate the sincerity of the ask and the perception of that i really don't believe again but mr wright if i could i appreciate that i appreciate the thoughtfulness i also note that attorney murray did suggest that potentially the applicant veritas could agree to suspend during this period i don't know if we can hear from that it's it's it's true they they can um but they also they can continue to proceed potentially at risk if this board somehow finds that the um the the planning board made a mistake in their approval or the building commissioner made a mistake in his granting of the permit i mean this board could find that and in which case the construction proceeding would be would be at risk um but i i don't think we can if we could ask the question but i i don't know i officially i i feel awkward sort of with the board officially asking that as a question so um that's just a statement so yeah so yeah i'd like yeah i'd like to so so everyone is everyone that is here has obviously waited a long time so i i want to be respectful of that so if anyone has uh some issues they'd like to bring to our attention uh please come up and uh give us your name and address um that we charlotte has linked to him for quite some time is it okay to take online first absolutely sure before we get to that am i allowed to ask the question so that way council can you are allowed to ask any question you'd like council would you be open to uh pausing your uh permit willfully for until we're able to move forward so i guess my answer to that through you mr chair would be i don't have that authority any constituents that's not something that's without cost and that is that sort of clear cost but demobilize the construction team they mobilize we could have you know everyone so discussing this entire year isn't here and i'm not in the question totally fine thank you thank you okay sir
also before we do this um how much longer does the board want to go on this evening well i think we should only listen to people that cannot make the 26th okay okay so if there's anybody that can make the 26th please hold all your comments until the 26th so that way we can listen to you then if you cannot make the 26th we are happy to listen to you this evening we're also happy to receive letters and we're also happy to receive letters i think we should also try to keep the time limit to it'll be be yes try to keep it as brief as possible 10 13 now yep yeah we said and 10 30 at the very latest okay is that allowed okay okay 10 30 at the latest for anybody who cannot make the 26th okay good can you hear me yes we can good evening so if you could um be as brief and uh i guess as concise as possible i will i will do my my earnest best uh luke shardlow 22 shore drive oh yep luke shardlow 22 shore drive so uh look i appreciate you providing the opportunity to speak i'm going to try and keep this brief uh i'm speaking here for a very narrow purpose which is to respectfully request that the zba exercise its authority as outlined by town town council in this meeting under chapter 48 section 14 to affect an immediate stoppage of work on the veritas campus i also believe the building commissioner has the authority to to pursue the same um i wouldn't presume to speak down to you guys or instruct you on how you should interpret the facts of the case but i would like to make a brief comment on dover ahead of the substance of of my my earlier request so dover enshrines the power uh in the town to regulate a development bulk and i think um veritas council um uh stipulated this the cut fill plan that's that's being discussed involves 23 000 cubic yards now i'm not sure if everyone understands the magnitude of that but but let me just bring it into perspective here that's about 3000 construction size dump trucks and it will fill a football field including the end zones to about 11 feet deep seems like uh that's bulk that could be regulated but but let's move on to the to the substance of what i'm here to to discuss which is there are clear and material building permit errors the building permit authorizes infrastructure and occupancy for approximately 450 individuals however the planning board approval was for a much smaller program of 100 people um i actually have traffic studies printed out for the board if uh it please uh can can i have them distributed in the room please i suppose yes um if they're available if they're available is uh giselle shardlow still in the room
i have the the planning board the 108 yeah that's it yeah if you can just distribute those copies please so i draw your attention to the uh planning board the the submission to the planning board which speaks to the scale and scope of the traffic study that was performed and you'll see in there uh on page three i believe it's been highlighted for you that the traffic study was performed for 108 individuals we are now seeing a development and a building permit was approved that includes infrastructure for a much larger development this building permit error because it does not adhere to the planning board's approval i believe is sufficient uh sufficient grounds on its own for a stop work i mean i'd also like to draw attention to the fact that um burtas council indicated and i believe his words were we're not hiding the ball on additional buildings i mean the the plant the building plan itself has multiple concrete pads for additional buildings it has a septic uh infrastructure for 450 people now how do you reconcile the planning board's approval for a 100 person campus with this broader scope of works this clearly is a building permit error second you know i'm not going to speak to um you know i'm going to try and keep this brief but but look i veritas council said look if if there's encroachments on other people's uh property this isn't a big deal i mean i'm not sure where we we land on that but uh from my perspective what kind of engineering oversight is there when um the construction has encroached up to three feet onto a butter's property and we actually have uh the printouts if if the board would like to see them uh of the uh the assessors uh determination uh that identifies specifically where on the abutters property that the construction has um uh progressed into so i i think taken together the permitting errors and the engineering violations alone justify an immediate intervention and i respectfully request that the zba uh use their powers the town council indicated earlier in the meeting are vested in you to affect a stop work this is not going to be a short process of appeal and the damage that's being done now is irrevocable thank you for your time and consideration anybody else here tonight cannot make the meeting on the 26th just gives your name and address that'd be great my name is nicolette mascarry and i'm from 29 shaw drive which is a director butter of 164 172 gochituit road i had something prepared but i feel like those have been beaten like a dead horse so i'm just going to speak a little from the heart if you don't mind hearing the words like meritless no value nonsense absurd and ludicrous are instilling fear timelines complications and legal jargon of other cases it's very distracting and i think that that's by design we've heard from the council that he is begging you and we are also begging you to represent your taxpayers do your diligence take a pause you have the right to do that and we're asking you to do that tonight if they are not in violation as the council says that they are not let's just stop and take a look thank you please sign in thank you uh anybody else here tonight there's chris um what's in my line sure good evening can you guys hear me yes we can all right um my computer died so i had to switch to my phone so i don't have a camera available but um i'm chris the architect for veritas and um i'll be available on the 26th but there's um there's just comments that are uh just factually not correct that i don't want this board or the public to sit with for the next uh however many uh you know 14 days 13 days um do you want me to try to address those now or hold that till the 26th i just it's important as the council has said that this was um and and all of these abutters and everybody who was in the room the planning board went to great length much more than our firm has ever experienced on any public or private project that we've been through in a planning process and the facts are all there and i think that much like the last speaker sort of alluded to is that there there can be legal jargon there can be things said that cloud and fog the actual truth of what went what went down with the review of this project and i think you're only hearing little bits and pieces of facts from um from the appellant uh that both weighed into your decisions tonight but also may sit with you in a way that doesn't feel um like right for the next 13 days and so um i'm happy to just let it sit like that and let you know that it like you're hearing things that aren't right factually um and we can get down to the business of this on the uh the 23rd or whatever day you said but um just if if you want that uh mr white and and uh the zoning board uh i'm happy to help provide some color to that or we can wait i just want you to know that um that these things are um you know there's a lot here so so i uh mr buston i i agree i think that based on the time i i think it i think it makes sense that we we defer sort of those comments until the the next hearing which is on the uh we said on the 26th um but i i appreciate i appreciate the sentiment uh there um i think again based on on where we are it's going to be too difficult to go into those those in detail but if you have the ability or any inclination we're also happy to have an email if you want or you know sent over to the board to sort of highlight some of those items that you're raising yeah is it possible to send the entire planning file for your review yeah i think we actually have the entire the happy okay we have the decision okay well you haven't done i think we do have the entire package it's all on the planning board's application website yeah yeah so so i guess that's and there's also multiple sorry i'll let the towns counselor or the council speak sorry sorry chris i was just going to say my suggestion would be that before the next hearing session we'll i'll work with all of our project consultants and point five point at least that are there won't be additional new issues coming up at the next hearing that we didn't have notice of um and if mr durney wants a survey that supposedly shows that it's not a big deal each point in writing before the next hearing so that thank you um sorry i have a turnout of the survey and i was going to speak on that but it felt like i have to call the police instead you guys can't do anything about that is that true i forbid you tell us i was going to say i brought it up here you know it's like joe i don't think that is necessarily that is not what this board said um so if you want if you want if you want to come up and identify yourself uh and uh present some information that's we're fine to receive that okay i didn't mean to mention that i had it do you want to see it um it was mike smith from 25 shot drive on the butter to the property um and so i had an independent survey done um after the construction started seeing that the trees were coming down all the way up to what i thought was my property line and uh then the construction fence went up which is going into my property line now that i now know um and i have so this is showing that there's different lot markers for my property here and you can see the fence coming on really property pretty clearly i would like to have it taken off absolute reasonable request so yes if you could provide us copies of that for sure i can email us to you or if you want this now actually we can yeah we can take that now just so we have you can give that right to the to the building commissioner sure sure i have a close up on the fence area if you want to see that
and i think we also in fairness we do we do need to provide a copy of this to the um i was going to say the applicant but i i meant i meant to uh i would suggest we provide a copy to the council for veritas because i think if i can clarify deciding property line issues is not within the zba's jurisdiction doesn't mean you don't have an encroachment or a potential trespass which is what i think the building commissioner was alluding to but perhaps this is something that the fence could simply be moved if um you know if it is truly crossing the property line like that yeah that's all i ask so do you need this copy no i have a file and i can send it if you want it okay that would actually be great because then we could then everyone can have a copy of it and we can make sure it gets distributed to all parties of course that can get resolved as fast as possible okay and what i send that to you um send it to the it's uh what i think it's just the only board of appeals and yeah
okay yeah now it comes to one of coming to all of us you don't have to email it to us individually okay perfect yeah all right thank you for that thank you uh just sign in if you could do you have to do that thank you all right so i know we're we're up against um up against the time i i guess um there's one i guess additional issue that sort of um i want to ask town council again um and i know you've given us a very a very nuanced answer but like we've heard we've heard several people say that this board has the authority to tonight vote to overturn the building permit um but i also heard from you that uh we don't really have clear-cut guidance on our ability to overturn the building permit setting so i'm wondering if you have any additional uh information that you could share on this because for me as chair i am struggling with listening to this and i understand passions on this project but i'm also struggling to sort of reconcile these two two statements that we should immediately act to stop the construction on this project and the fact that we really can't do that without actually making a finding and evaluating the merits of the building permit that was applied for and all the engineering data that went into nine months worth of planning board decision because i i mean again the planning board is the body that litigated this project or i don't want to say litigate is maybe not the right word but debated this project and discussed all the merits and listen to all the evaluation of engineering reports like i think it would be imprudent for this board to make a decision this evening and say that all of that work presume all of that work was an error and we can make a ruling tonight i i i respectfully disagree with presentations tonight that we can do that i don't know what the rest of the board feels and maybe that's not necessarily a question that that attorney marie can answer i'm happy to try unless other board members want to jump in on that so again your authority derives from chapter 48 section 14. it says you can hear and decide appeals it also says that you could act in place of the local official here the building inspector or the planning board because of your bylaw and take whatever action they would be able to take so i think what you're considering tonight is this temporary pause a temporary restraining order um a cease and desist whatever you whatever name you want to give to it if you're considering tonight that the work should stop you have to back up and say what is our basis for making that decision ordering that action
if you are the building commissioner who has the authority issue a stop work order or cease and desist the building commissioner doesn't just do it the building commissioner does it based on there's a violation of the state building code there's a violation of our bylaw and cites to it and then issues that determination in order for you to do the same or the zba to do the same you would also have to make a finding that there is some kind of violation of the zoning bylaw
i would tend to agree with you mr chair you don't you're not at a point yet you've heard allegations you've also got a building commissioner that had he felt that there was a zoning violation the building commissioner could have revoked this building permit or could have issued a cease and desist or stop work order we didn't you heard from the planner tonight who said they don't see that the building permit exceeds the scope of the planning board's review so i guess i would ask if you were to issue some kind of order tonight telling an applicant that has a valid building permit to stop work what are you basing that on what finding could you make tonight to arrive at that determination and again i appreciate as you said both sides feel like they're going to suffer harm one way or the other but the law constrains us that we can't just say everybody you know it's not like we're dealing with our kids time out everybody in the corner you know until everybody can learn to uh to to play nicely you have to have you have to find some sort of basis for a zoning violation to tell an applicant with a valid building permit stop doing work under that building permit if you feel you can do that tonight then someone could go ahead and make a motion to do so thank you that was very clear i i think it's clear that that we've heard at your point we've heard allegations and we've heard rebuttals of those allegations and uh to me i i think both um both sides of this issue have have raised compelling points right i think that's i i am not comfortable at this point making any kind of determination about that i don't know how the rest of the board feels but i i agree and i think that we said we just haven't had enough time or been presented the information for what was studied for nine months um to make a determination tonight i think we we have the continuance set um and hopefully before that meeting we'll we'll have enough time to review what's happened even even that period of time is pretty short to really be knowledgeable about everything that's happened over that time but we we will have better sense any additional comments no i don't think that we have enough information i cannot understand what we would be basing a stop border license order on at this point i i would i would tend to agree i i think we need to assess more and that's why we're having that extra meeting which will be able to hopefully allow us to uh come up with a more concrete answer on this all right i guess with that and given the hour um i would make a motion to continue i guess this is case 2602 to january 26th at 7 00 p.m so i did all in favor all right aye opposed um i guess there were motions moved to adjourn second all in favor aye opposed right we were returning thank you