Dunked plan headed for State Land Court
Published on November 23rd, 2005
The town's Zoning Board of Appeals (ZBA) unanimously denied a bid by attorney Charlie Houghton to overturn Interim Building Inspector Cheryl Noble's decision to reject a building permit for two fast-food uses on Franklin Street.
Nearly a year-and-a-half after the town's Board of Selectmen narrowly defeated the proposal to construct a Dunkin Donuts and Baskin Robbins at 128 Franklin Street - the current site of Mac's Landscaping - the ZBA convened last Thursday night to consider an appeal of Noble's Aug. 17, 2005 ruling that a permit could not be issued for the construction of the 3,440 square foot building.
Citing a June 8, 2004 memo sent from former Selectmen Chair Cosmo Ciccarello to Houghton, Noble concluded that a building permit could not be issued for the proposed fast-food use without site-plan approval.
In that June letter, Ciccarello referred to the Selectmen's 3-2 decision on May 18, of 2004 to reject the plan "for reasons of public safety (motor vehicle and pedestrian safety)," as "a 4/5 majority is needed for site plan approval."
However, according to Houghton, Noble's decision was made in error based on two grounds:
- First, that a simple majority, not a supermajority of the Selectmen was needed to approve a site plan;
- And secondly, that the Selectmen exceeded their authority in denying the proposal, as they were unable to cite any specific overwhelming safety concerns.
According to Houghton, he began reviewing the sections of the town code governing site plan approvals shortly after the Selectmen denied the doughnut and ice-cream shop proposal.
Initially curious as to what grounds the Selectmen can base a denial on - specifically, for sites such as 128 Franklin Street when the use itself is allowed by-right according to zoning regulations -Houghton discovered a loop-hole in the Town Code which could unglue the Selectmen's rejection itself.
Specifically, the Town Code sections explaining site plan requirements, which were rewritten in 1985 to reflect modern day changes in zoning and building bylaws, referred to parts of Mass General law Chapter 40A in explaining where and how the Selectmen derive their authority for the reviews.
Chapter 40A, which does not mention the word site plan at all, does govern the authority of municipal Planning and Zoning Boards. Site plan approvals, though different in every city and town, essentially allow the Stoneham Board of Selectmen to usurp the authority of local Planning and Zoning Boards, requiring all project's to come before the Selectmen for approval regardless of whether the use is allowed by right.
In cases where a special permit is required or a developer needs relief from a zoning bylaw, petitioners would first go before the Planning Board or ZBA, respectively, for those approvals.
The only problem, Houghton later learned in turning to Chapter 40A for a list of the site plan requirements referred to in the Town Code, was that the specific section of 40A had been repealed in 1975, nearly a decade before Stoneham officials rewrote the Town Code.
"Mass General Law Chapter 40A regulates zoning. What it regulates is anything your board does, such as special permits and variances," the Main Street attorney explained. "But what it doesn't say anything about, and this is interesting, is site plan approval. Site plans are not regulated by 40A, they're regulated by local bylaws."
"It turns out that in 1975, Mass General Law 40A was rewritten and [section 19A was abolished]. In 1985, we completely rewrote our own bylaw," Houghton added. "It was ten years after 19A had been repealed. And what our bylaw says is, 'for site plans, go to section 19A.' Well, section 19A doesn't exist."
According to Houghton, after learning about the Town Code inconsistencies, he began researching legal cases challenging site plan approvals.
What he found was a 1997 land court ruling that essentially declared that unless a local site plan bylaw specifically says a four-fifths or supermajority is required, a majority vote of the Selectmen would constitute an approval.
With that decision in hand, Houghton argued that the ZBA must overturn Noble's denial on the grounds that the Selectmen approved the Dunkin Donuts site plan in it's 3-2 vote - regardless of whether the Selectmen felt that a supermajority was needed.
"I think it's pretty straight forward. It's the issue of whether our bylaw is regulated by 40A. And the answer is no. And we do have three Selectmen in favor of this and two against," Houghton said.
Despite the local attorney's legal reasoning, several ZBA members resisted the request for relief from Noble's decision on the grounds that granting such a request was outside their authority.
The primary proponent of that assertion, ZBA member William Sullivan claimed that despite Houghton's explanation, the zoning board lacked the authority to render a decision that would forever alter the way in which site plan hearings and votes were conducted.
In doing so, the master electrician argued, the ZBA would be regulating the Board of Selectmen, not an individual decision of the town's building inspector that was made with supporting documentation provided by Town Counsel Bill Solomon.
"Do we have the authority to interpret the bylaw like that? I thought that was why we had the Building Inspector," Sullivan commented. "Under 7.5.2.2, the Building Inspector should not issue a permit unless it received a site plan that has been approved."
"I understand that, yes, the Building Inspector denied you a permit. And you have a right to come before our board if you feel aggrieved by that decision. But with the Board of Selectmen, I don't see where we get involved with that," the ZBA veteran furthered.
As to Houghton's second contention, that the Selectmen exceeded their authority in denying the site plan for safety reasons without providing expert opinions or documents claiming that such a threat existed, Sullivan similarly insisted that such a determination exceeded the authority of the ZBA.
Specifically, since Noble's denial was based solely on the grounds that no site plan approval existed, and the ZBA could only overturn a decision of the Building Inspector, Sullivan failed to see how the ZBA could overturn something Noble never ruled on herself.
By overturning the Building Inspector's decision based on the second argument, the ZBA would again be regulating the Selectmen's activities, not a decision made by Noble, Sullivan reasoned.
Appearing unsurprised by the ZBA's decision to reject his appeal, Houghton referred to the hearing as a necessary "legal step" in the process. It is widely accepted that the local attorney will now use the ZBA's recent ruling to appeal the Selectmen and Building Inspector's denial of the fast-food proposal in land court.
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