Building a house is never easy — any HGTV fan knows that. Sometimes, though, the obstacles are bigger than any homeowner could have anticipated. At last week’s Planning and Zoning Commission meeting, Keegan and Alison Martin learned they had run up against one of those issues.
During the Public Hearing for a re-subdivision of lot #5 at 24 Spencer Street, it was said that when the area was initially subdivided, that lot of about 14 acres was not approved for building. Then, before the COVID-19 pandemic, Martin bought the parcel and said he asked the Zoning Enforcement Officer (ZEO) at the time, Dave Perkins, if he would have any trouble building on the lot. The answer, he was assured, was "No." Eventually, Perkins issued a zoning permit for the property. More recently, current ZEO Andy Marchese noticed the Martins — who also have approval from the Inland Wetlands Commission to build their three-bedroom home on the plot — had never gone before the PZC for the resubdivision process.
The town’s subdivision regulations say, “The applicant may pay an open space fee in lieu of dedication of land for open space. The fee shall be equal to not more than twenty percent (20%) of the fair market value of the land to be subdivided prior to the approval of the subdivision.” Richard Shuck, a commissioner, said the town used to levy a flat fee that went to the fund. The regulations were changed, however, by a previous iteration of the PZC.
Predictably, Martin was not keen to give the town 20% of his land or pay potentially tens of thousands of dollars. A sympathetic PZC discussed several ways to sort out a mistake that they say not only started with Perkins issuing the zoning permit but that surveyors and other professionals hired by the property owner should have caught.
Marchese suggested Martin donate a portion of essentially unusable land subject to a state right of way; however, Chair Dave Palmberg thought it would require DEEP permission and take too long. Palmberg also suggested the property owner could suggest a text amendment, but the process would require a public hearing.
At some point, the property owner pointed out that the regulation stipulated that the fee must not be more than 20% of the property's value but did not necessarily say what the low end of the fee should be. He offered to pay the town a dollar, as the commissioners said several times that they could not waive the requirement. As Shuck put it, “It’s poorly written, I’ll concede that,” but also noted that it’s the commission’s job to interpret and apply the regulations equally to everyone.
After some discussion, Martin agreed to table the meeting and continue the public hearing until the next PZC meeting. This would give the commission time to go back to the minutes from the meetings where the regulations were originally changed to try to interpret the intent of the regulation. Commissioner Ron Houle said, “It will be more than a dollar, but it won’t be $100,000.” We will have to wait until the next meeting to find out what the final verdict will be.