The Zoning Board of Appeals has denied appeals claiming that the Use Variance for Park Central has expired. Referring to other lawsuits in progress, Chair Andrew Dennington told the public he is well aware that “this is certainly not the end of this”.
The appeals were filed by resident Karen Shimkus and the Planning Board, arguing against a decision written by the Building Inspector. Shimkus had asked Building Commissioner Mark Robidoux to find the Use Variance expired because it had not been exercised in the one year since the date granted.
Instead, Robidoux determined that the developer had up to a year after the linked 40B development’s special permit was approved and its appeal period expired. Last night, the ZBA ruled that the Planning Board didn’t have standing to appeal the decision. Shimkus’ standing was approved. Her appeal was denied on merits.
Shimkus attorney, Donald O’Neil argued that Robidoux’s decision gave the ZBA the interpretation that it was looking for. But he asked the ZBA to step back and recognize that they didn’t have the authority to grant that extended term. O’Neil claimed that state law limits the term to one year, with allowance for six month extension upon request.
It was an argument that the newest ZBA alternate member Debbie DeMuria bought into. But the other four members didn’t. Instead, other ZBA members considered the Use Variance to be in good standing because it had already been exercised within a year of its grant date.
The fact that it was exercised was one of many arguments Capital Group’s attorney Angelo Catanzaro made. Four members agreed that the actions that developer Bill Depietri took to comply with conditions were taken only as a result of the approved variance. Based on legal arguments citing case law, they interpreted those actions as exercising the variance.
Catanzaro had argued that Shimkus had no standing for her appeal. He said she would have to prove “real and measurable harm” from the Building Inspector’s decision. He argued that her home, a 1/2 mile by car from the project, is not proven to be impacted enough by increased traffic to meet that criteria.
O’Neil urged that not only did Shimkus have standing in the case related to the large development, but denying her standing would be postponing the inevitable. He pointed out that if they denied her appeal on standing, they would just be facing appeals from abutters in the future. He pushed them to make a decision now.
The ZBA unanimously agreed on Shimkus’ standing. But her attorney’s legal arguments were trumped by the developer’s.
Cantanzaro said his client spent tens of thousands of dollars to comply with the variance decisions. He argued the Supreme Court has previously showing that use variances don’t require construction or building permit to be exercised. He followed that this case was a perfect example of when that should apply.
As Dennington indicated, this isn’t the end. Even if neither the Planning Board or Shimkus appeal this week’s decision, the ZBA already has to deal with two other actions related to the project by the same appellants. The Planning Board and a group of residents including Shimkus each previously filed appeals in Worcester Court.
