Past VNA decision to be analyzed
Published on August 5th, 1998
STONEHAM, MA - The dispute over the Visiting Nurse Association's (VNA's) occupation of the East School, as presented by attorneys Charles Houghton and Stephen Columbus, centers on wording and interpretation.
Alternate Building Inspector John Gregorio voided the organization's occupancy permit after reviewing the VNA's usage of the property.
The VNA signed a lease with the School Department in 1983 to occupy the East School for a period of two years with an option for an extension of that lease for one year. In addition, the lease was brought before the Board of Appeals that same year and, since the VNA was a non-profit organization and residents did not vehemently oppose the proposed tenants of the building, an exception was granted to the VNA the organization to be located in a Residence A district.
However, in 1985, Town Meeting changed zoning bylaws and did away with the Board of Appeal's right to grant "exceptions."
The VNA met terms of the lease through 1985 and was granted the extension through 1986 when the original lease gave out.
The School Department and the VNA then entered into a second lease on August 1, 1986 - a lease which Columbus said was in violation of town bylaw given the 1985 Town Meeting vote.
Columbus also said that the second lease was questionable because of the 1983 Board of Appeals ruling which granted usage of the building "limited to the term of the lease by and between the visiting Nurse's Association and the Town of Stoneham and any subsequent extension thereof and this extension shall not be construed to run with the land."
Columbus told members of the Board of Appeals last Thursday that the 1985-86 extension was perfectly legal, but that the VNA's occupation of the East School since 1986 should not have been allowed because new leases were entered into, not "subsequent extensions." For the past 12 years, he said, the VNA has illegally occupied the site.
"The smoking gun in this case is the Board of Appeals decision in 1983," he told the board. "That's why the building inspector was correct."
Houghton, on the other hand, said that he thought John Gregorio, the alternate building inspector, had misinterpreted terminology in the board's 1983 decision. The phrase "This exception shall be limited to the term of the lease" in the decision, he contends, means the exception is allowable for the length of the lease and all subsequent extensions. He said that Gregorio too the word 'term' to mean conditions, not an amount of time.
"The normal meaning of the word term means a length of time," he said. ""It's very clear (in the Board of Appeals decision).
"The only issue before you is whether the building inspector made the proper determination.
Furthermore, Houghton, who represented the VNA in the 1983 Board of Appeals hearing, said that he believed when the board referred to subsequent extensions, they meant to include further leases which were entered into between the town and the VNA.
Houghton said that he intentionally asked then board Chairman Gus Niewenhous, also an attorney, to spell out the language of the decision in wording that could not be misinterpreted.
The VNA requested a Board of Appeals hearing in order to appeal the alternate building inspector's decision.
"My client felt they needed to maintain their rights to occupy their property," Houghton said.
In a letter of correspondence to Beacon Street abutters regarding his review and subsequent finding, Gregorio wrote that he would not enforce the voiding of the occupancy permit because, "As an alternate building inspector, I have no authority to begin eviction proceedings.
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