by Frank Schroth
Town officials have decided not to appeal a recent ruling by the Department of Housing and Community Development. The town had sought approval that it met its affordable housing requirement, citing that the town had at least 1.5% of its geographic area had housing at an affordable level. The DHCD did not agree that the town met the requirement. Neither did John Flynn, Town Counsel. Mr Flynn wrote in a letter to John Leonard, member of the Board of Appeals.
Consequently, Mr Leonard, Chair of the Board of Appeals, which is in the process of a comprehensive permit hearing on a 40B development at 711 Randolph Ave, wrote in a 1/26 letter notifying the attorneys involved in that hearing:
Please be advised that based upon the evidence at the Administrative Hearings and the January 23,2015 advice to the Milton Board of Appeals by Town Counsel, John P. Flynn, (a copy of which letter is attached hereto) the Milton Board of Appeals has unanimously voted not to appeal the December 31,2014 decision of the Massachusetts Department of Housing and Community Development to the Housing Appeals Committee.
The hearing for the comprehensive permit will continue with no risk of the town being able to successfully rebuff the application.
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Last week the Planning Board resumed a hearing on a special permit to allow Thayer to re-establish its landscaping business at its Hillside location. Joe Prondak, Milton’s Building Commissioner spoke for over a half hour citing concerns he had. There were three: 1) the existing challenges of enforcement orders 2) some language in the bylaw and special permit and 3) some recommended conditions
Prondak reviewed the process of hearing violations and issuing enforcement orders. The first thing the building department does is perform an investigation to confirms a violation has taken place They then send out an enforcement order if a violation is found or send out a letter saying no violation found. Every letter is appeal-able to the permit granting authority, the Zoning Board of Appeals (BoA). Prondak noted that “almost every letter has been appealed.” The BoA then holds a hearing that either will uphold the Building Inspector’s decision or overturn it. It is then appeal-able to the Superior court.
“I think its it is fair to say almost every decision by the Board of Appeals on this property has been appealed to Superior Court. Currently there are 5 cases pending . . . 2 filed by abutters and 3 filed by the holders of the permits.”
– Joe Prondak, Building Commissioner
Prondak then went through the some the language of the bylaw and special permit. The first order of confusion is the “permit granting authority.” Prondak cited language that has Planning Board issue permit but Board of Appeals hears appeal but BoA is not the permit granting authority. The language of the special permit is also “challenging,” Prondak cited numerous examples but they all relate to subjective language. For example, “reasonable limits . . . what I will say over and over again is that it is important to be specific,” Prondak said. A specific example was an amount of “mulch consistent with business use.”
He also cited the potential conflict between what is allowed by the special permit and what is allowed “by rite” as a result of the farm exemption. Prondak believed that if they are granted the special permit they should forfeit the farm exemption because what can happen they could bring in 40 head of cattle I am using examples that are a stretch but is has been a challenge for us and BoA. Don’t want to bring this in only to have it defeated by farm exemption.” Mr. Prondak listed specifics including but not limited to need to ensure that Thayer cannot be a construction business.
When he was done Mr. Whiteside said “the most horrifying thing” was the issue regarding the granting authority and that given the “endless set of litigation . . . if we issue a permit it has to be a really tight.”
Prondak speculated that the court may be waiting to hear how the board ruled on this special permit before issuing rulings but that was just an opinion. The hearing will continue om March 4th.
As I mentioned at the Planning Board Meeting, there is a misleading mythology that has been created around Thayer that I would like to clear up. The idea that the facility is protected by MGL Chapter 40A, Section 3 (the Dover Amendment) is not correct.
Think about it. If Thayer did not have to abide by local zoning Bylaws because it is a farm, then why did Thayer bring the Bylaw Amendment to the Town Meeting? Why did Thayer apply for a Special Permit? Why is the Town holding Public Hearings? None of this would be necessary if the facility was, in fact, protected. Such protection does not exist because the primary purpose of the facility is not agricultural; it is commercial. This finding has been made by the Milton Zoning Board of Appeals on at least two occasions and by 4 justices sitting at the Norfolk County Superior Court. My experience with the Zoning Board of Appeals, who issued a Cease and Desist Order against Thayer for certain lines of business conducted on their property and my experience with Judge Wilson who did the same, tells me that Mr. Prondak was not correct when he said that protections exist. Again, you only have to recognize that Thayer is applying for a Special Permit to see that Thayer, itself, recognizes that they are subject to Milton’s 1938 Zoning Bylaws.
Statements have been on this website that I feel entitled. In fact, that is true. I do feel entitled to the same protections from the 1938 Zoning Bylaws as every other resident in Town receives.