The Zoning Board of Appeal is a Quasi-Judicial Board, which operates under mandates of Massachusetts General Laws Annotated Chapter 40A and the Billerica Zoning By-laws. The board consists of five members and two alternate members appointed by the Board of Selectmen. The members receive no financial compensation for their services to the board.
Current ZBA members are:
Doris M. Pearson Chairman
Richard A. Colantuoni Vice Chairman, Former Chairman
Ellen Sargent Secretary
Joseph P. Shaw Member
James E Foye Member (newly appointed in 2009 – replaced Pat Fleming)
Ralph J McKenna Alternate Member
Mr. Shawn Hanegan Alternate Member (newly appointed in 2009 – replaced James E Foye)
Ms. Pearson, Ms. Sargent, and Mr. Shaw have been members of the ZBA since at least 1998. Mr. Foye was selected to rise from alternate to member this past year (2009) by the current BOS and Mr. Hanegan took his alternate slot. Mr Colantuoni has been a former Chairman and a member since at least 2004. As a point of reference, Ms. Pearson, Ms. Sargent and Mr. Shaw were members when Mr. Rosa, the now longest serving of the current Board of Selectmen, was first elected. It’s something to consider for those who think the ZBA is not serving the town’s best interests as Mr. Rosa and Mr. Correnti are up for reelection this April.
In recent months, there has been a lot of negative talk about the ZBA and some of the members. In particular, there is the current Aspen Apartments fiasco recently thrown back to the ZBA on the petition of Attorney Dan Hill representing the city of Chelmsford residents opposing the project approved by Billerica’s ZBA. The judge in the case ordered the public hearing reopened based upon a remand by attorneys for each side of the debate.
From the GateHouse News Service:
Hill filed the motion, arguing that Billerica’s Zoning Board of Appeals acted illegally by deferring judgment when it approved the final design of the 384 unit complex on Rangeway Road on June 30. “It’s a significant victory,” said Hill Wednesday afternoon. “It reaffirms what we’ve been saying all along that the ZBA was derelict.”
…“It rushed in June of 2009 to close the hearing,” he said. “It should’ve kept the hearing open. But instead, it closed the hearing and issued a quick decision. There were a number of procedural irregularities.”
The Billerica ZBA is accused of rushing through the public hearings, possible violations of the open meeting law and other procedural irregularities. To date, no comment has been forth coming from the ZBA. The project is currently in the midst of hearings before the Billerica Conservation Commission regarding wetlands impact. Attorney Hill expects that the ZBA is waiting to reopen the hearings for the Conservation Commission to conclude its review.
As a note of special emphasis, Mr. Ralph J. McKenna was the only ZBA member to vote against approving the Aspen Apartments project at the reduced number of units. Although the ZBA is appointed by the Board of Selectmen, their vote came after the BOS voting unanimously not to recommend the project.
“They’re acting as if it’s a helpful thing,” said Selectman Marc Lombardo, who is also a member of the Housing Partnership Committee. “We see it as a devastating thing. Most boards seem to feel that way.”
For those who are curious, below is an overview of the ZBA and its functions:
The ZBA handles numerous petitions filed with the Town Clerk. Petitions heard by the board are open to the public, as established under Chapter 40A, 40B and 808 of Massachusetts General Laws.
To be granted a Variance, the petitioner must show the board that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures, but not effecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordnance or by-law would involve a substantial hardship, financial or otherwise, to the petitioner or appellant. Also, the petitioner must show the board that by granting the petition, it would not be a substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of such ordnance or Zoning By-law.
To be granted a Special Permit, the petitioner must show how the public convenience and welfare will be substantially served and how it will not impair the status of the neighborhood, that the permission requested will be in harmony with the general purposes and intent of the regulations in the Zoning By-laws. Under Chapter 40A, to grant a Variance or a Special Permit, the petitioner has to receive four affirmative votes from a five member board. Two negative votes will deny the petitioner a Variance or Special Permit for two years.
The Zoning Board of Appeal follows Chapter 40B of Massachusetts General Laws when conducting public hearings for Comprehensive Permits. Hearings must be scheduled within 30 days from the date the petition is filed with the Town Clerk. The board has 40 days after the termination of the hearing to render their decision. Approval for a Comprehensive Permit requires a majority vote of the Board.
The board shall hold a hearing within 65 days and must vote to grant or deny a Variance request within 100 days from the date the request was filed at the Town Clerk’s office. The board shall hold a hearing for a Special Permit within 65 days of filing the request and must vote to grant or deny within 90 days from the hearing. Failure of the board to vote on a Variance or Special Permit within the legal time frame results in an automatic granting of the petitioner’s request.
Even though many of the cases are similar, each case is voted on its own individual merits. There are many issues to be considered before voting. Each decision is made in the best interest of the Town of Billerica and its residents.
