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Selectmen won't support court action.

Byline: Michael Kane

WEST BOYLSTON - The Board of Selectmen last week voted twice not to support the Planning Board's decision to appeal a Zoning Board issued variance in land court; first by blocking access to town counsel, second by denying the board's request for money to file the appeal in court.

At issue is a sign for Hanioti Properties, which plans to open a Dairy Queen at 328 West Boylston Street, abutting Commerce Bank and across from West Boylston Seafood. Hanioti requested a variance to install a sign, the area of which is twice what is allowed by West Boylston bylaws. There would be a large sign identifying the business, and then a small sign on the same pole listing sales.

The variance was granted, with the Zoning Board agreeing to the applicant's claim of a topographical hardship - the sign is blocked from southern-traveling traffic by a neighboring lot due to constraints placed on the site's layout because of a stream on the property.

Planning Board's view

According to Planning Board Chairman Vincent Vignaly, because the criteria for issuing a variance are very high, variances can only be appealed in land court. The Planning Board, Vignaly said, feels the Zoning Board did not apply the proper criteria and did not agree with the hardship claim.

The Planning Board, with the support of Zoning Board member Charles Witkus, had asked the Zoning Board to reconsider the sign decision. Speaking at that meeting, Witkus also warned of precedent-setting decisions that could bring all Route 12 businesses to the board seeking variances.

At that meeting, Zoning Board Chairman Philippe Chevalier said his board did feel the topography caused a hardship. In addition, the size of the sign was allowed in that section of the business district and a neighboring business was also approved for the same size sign. Future requests would be handled on a case-by-case basis, Chevalier said. The board did not vote to re-open the hearing.

Selectman Allen Phillips said he agreed the ZBA made a bad decision, but that the Board of Selectmen had decided several years ago, after another Zoning Board/Planning Board court fight, not to allow the use of town money in such event.

In that case, Selectmen Chairman Kevin McCormick said, the two boards worked out the differences.

"I totally disagree with the ZBA, but this board took a stance against using money for one board to sue another. No one wins." Phillips said.

Selectman Christopher Rucho agreed.

"Who's going to win?" Rucho asked. "At the end of all the court cases ... the bottom line is, we get the bills from both boards."

Rucho said he also opposed the court action because he said the Zoning Board broke no rules, and granted a variance under its legal authority. Rucho said he has no opposition to larger signs along Route 12 if businesses go through the variance process.

"Every business has the option of going to the ZBA," Rucho said.

Rucho said the Zoning Board had "done its job," and he would not support the request because the Planning Board did not like the decision. Phillips agreed.

"I think the only way (a Zoning Board decision) should be overturned if it's outside the scope of their job, like it or not, just like (your decisions)," Phillips said.

Vignaly countered that the Planning Board was not fighting the Zoning Board's authority, but that the Zoning Board failed to use the proper standards in reaching its decision.

"We apply document standards. We believe theirs are inaccurate," Vignaly said. "There should be a standard based on law. People expect everyone to play by the same rules."

"They did play by the same rules," Rucho responded. "Anyone can go to the ZBA."

Vignaly also clarified what had happened in the case McCormick had cited. In that case, the applicant withdrew not because the boards worked out a solution, but because the applicant realized the variance would not hold up under the scrutiny of the Land Court. Such is often the case with appeals on variances, Vignaly said

Vignaly said that, under the law, the board would file the appeal against the property owner, thus making Hanioti the defendant in the case, not the town.

"The applicant knew it would not win, so he just went away," Vignaly said. "Since it happened then, we think it will happen again."

Town Administrator Leon Gaumond Jr., however, said he asked for clarification from town counsel, who advised him a judge may still require the Zoning Board or a representative to appear in court to testify about its decision.

While the Planning Board could file the appeal on its own, selectmen were following a policy put in place two years ago requiring boards and department heads to go through the town administrator's office before contacting legal counsel. The policy was put into place in the face of increasing legal costs and stagnant revenue in a year where budget cuts were expected across all town departments. Until the policy was put into effect, board chairmen could call counsel, who could then bill the town for the time.

A second request from the Planning Board was for $300 to file the appeal on its own. Selectmen also voted that down, with Phillips saying his opposition was not an indication of approval of the sign, but that he opposed the use of taxpayer money for one board to sue another.

"It's like giving somebody the bullet for the gun," Phillips said. "Basically, we'd be supporting it."

Questions of authority

Ultimately, discussion turned philosophical, with Planning Board member Patricia Halpin saying selectmen were taking away the Planning Board's only option for appealing what it believes are bad decisions.

"What I'm struggling with here is, what tools does the Planning Board have to support the bylaws if we say we are not going to support a poor decision?" Halpin asked. "The ZBA is human. We're human. We all make mistakes. Under what conditions will we be able to challenge a decision of the ZBA?"

Selectman Kevin McCormick refuted a comment from Halpin that the Planning Board was following bylaws passed by two-thirds at town meeting, noting no abutters attended the hearing held by the Zoning Board, nor the follow-up meeting where Witkus made his reconsideration request.

In contrast, abutters had taken part in earlier discussion about the Dairy Queen and abutters' testimony ultimately helped defeat a plan by the Manor Restaurant to build an outdoor wedding chapel. McCormick also pointed out that the Zoning Board had previously denied an application for a larger sign for the Manor Restaurant.

"If even one person was there, then maybe you could say you were defending the whole town," McCormick said. "Where's the town? When they denied The Manor ... 10 people were there ... In this case, there was not one word."

One of the issues the Planning Board said it faced was lack of notification of Zoning Board meetings. Part of the problem cited by Chevalier is that the Zoning Board only has 20 days from the date of application to hold a hearing. Because of the part-time nature of both the Planning and Zoning Boards, sometimes notifications are received late, as was the case when the Zoning Board first discussed the sign, Halpin said.

However, Selectman Christopher Rucho said that same issue was discussed after a Zoning Board meeting that Halpin attended. Chevalier had said he is working on a new process for notifications, Rucho said.

That informal discussion among Halpin, Rucho and Chevalier also led Rucho to request a joint meeting among the three boards to discuss an overall marketing strategy for the town. Rucho serves as the selectman's member on the Economic Development Committee, and many of the issues it is discussing concern sign and zoning bylaws, Rucho said.

Selectmen said a joint meeting would be scheduled in fall.
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Publication:Telegram & Gazette (Worcester, MA)
Date:Jun 24, 2010
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