Fincom Transfers $20,000 To Defend Zoning Lawsuit
by Connie Sartini & Russell Harris
Because Groton has become a secure, wealthy community, there are incentives to seek special permits and variances from the ZBA [Zoning Board of Appeals] for derelict, non-conforming or abandoned properties. Since granting legal status as a building lot to any parcel of land in town carries with it the right to attend excellent public schools, seek protection from a superior police force, access emergency medical and fire services, and to travel on well-tended roads, each legal building lot has a high value.
Because all such zoning variances can establish significant legal precedents, in the last few years, the Planning Board has been careful to be sure variances and special permits are reasonable interpretations of the town’s zoning bylaws. For this reason, the Town is defending the Zoning Board of Appeals decision to deny a special permit to Lawrence Johnson, a Pine Trail property owner who is suing the Zoning Board of Appeals for its denial of a request for a special permit and a variance for just such a non-conforming parcel.
The fact that the Finance Committee - at the request of Town Manager Mark Haddad - voted at their Feb. 13 meeting to transfer $20,000 from the Reserve Fund to defend the ongoing legal suit against the Board of Appeals, a suit brought by property owner Johnson, shows just how seriously the town considers this case and others like it.
The issue in this lawsuit dates back to early 2014 when Johnson requested a special permit to alter a non-conforming structure and a variance from non-use on Lot 114-0, 366 Lost Lake Dr. The ZBA denied both requests.
Lawrence Johnson argues that the Zoning Board of Appeals should grant both a Special Permit and a variance. The special permit would allow Johnson to rebuild an existing structure that had been ordered demolished.
He justified the special permit to rebuild, saying, “The replacement of this nonconforming structure will not be detrimental to the neighborhood and will be an improvement to both the site and neighborhood in general.” He further argued that he should be granted a variance allowing the lot to be a legal building lot because “there has been no intent to abandon this property, and, in fact, activity has occurred on an almost daily basis, (along with monthly overnight stays).”
The Board of Health Inspector rebutted Johnson’s characterization of the structure, writing, “The Applicant's dwelling located at 366 Lost Lake Drive has not been used as a habitable dwelling for a period in excess of two years.” In addition, the Board of Health Inspector found that “the applicant had lived in Ayer for years and most recently/currently lives at 11 Pine Trail. Staying once a month and sleeping on the floor is hardly using the dwelling as a conventional and proper use of a home.”
According to the Board of Health, the Building Inspector, along with testimony of the applicant and abutters, the ZBA found, there has not been a use that could be construed as residential in nature for a period of more than two years. Additionally, at the time of application, the applicant had accrued adjacent parcels such that total ownership of contiguous lots 129-112,113, 114, 115 had a total area of only 33,960 square feet, significantly less than the 80,000 square feet required for a minimum lot size. Granting a permit would have created an even more non-conforming situation, the ZBA ruled.
The ZBA additionally argued, “Furthermore, the structure at 366 Lost Lake Drive has been demolished (per Court Order) and most of the debris has been removed; however, the applicant remains in violation of the orders by the Board of Health and the Court Agreements, for his failure to properly clean up the site. For much of the last decade the Applicant has repeatedly made statements and promises to the Groton Board of Health, as well as the most recent "Agreement" to clean up the property and yet the Applicant has failed to meet either his self-imposed compliance deadlines or the current legal agreement. As recently as May 5 (2018), the Court has ruled that Mr. Johnson is in contempt of the Agreement that includes the property clean up, proper rubbish disposal and the deadline for compliance.”
Finally, the Building Inspector reported, “It is determined that lots 112,113,114,115, have merged under the Common Law Merger Document. At any time two or more lots, within the same ownership which are contiguous, are acquired, they must combine to try to make a conforming lot. By combining lots 129-112,113,114,115 the total square footage of the combined lots is 33,960. The dwelling located on lot 129/114 (11 Pine Trail) is still non-conforming after the merger due to lot size. Required lot size is 80,000 SF. Therefore, the special permit should be denied.”
Citing Special Permit Bylaws §218-32.1B, the ZBA determined, "Given the finding of residential non-use for a period exceeding two years, and the fact that the lot (even if merged with adjoining lots) does not conform to minimum zoning, the board made a finding that a special permit cannot be issued."
The Board then voted to deny a special permit to allow alteration of a non-conforming structure and a variance from non-use to Lawrence Johnson