by John Osborn ·
Friday, March 22, 2013
The Zoning Board of Appeals (ZBA) Thursday morning denied the town’s requests for the two variances and special permit needed to begin renovation of Town Hall.
The votes of the three-member board were unanimous.
If the quest of the Town Hall Building Committee to carry out its charge to rehabilitate the 1890s-era building were a board game, then the decisions of the ZBA this week were the equivalent of drawing a giant red card labeled “Go-to-Town-Meeting.” At Town Meeting, on April 6, voters will be given yet another chance to push the project forward by overturning the bylaw that led to the ZBA hearing in the first place.
Until then, however, Thursday’s decision is clearly a setback, and buys more time for opponents who would like to see the project scrapped and a new design created. The building committee, whose four active members were appointed by the Board of Selectmen, had hoped to issue bid documents and begin construction this spring. The Selectmen, Finance Committee and Town Meeting all approved the project a year ago. And the Community Preservation Committee has earmarked $1,000,000 of its trust fund to help pay for the nearly $4 million cost of doing the work.
But as with any building project, the Town Hall renovation requires a building permit, one that is certain to be denied when a project violates Harvard’s Protective bylaw. In that case, the property owner typically seeks a variance—permission to ignore the bylaw—from the zoning board.
In January, the building committee asked the ZBA to grant two variances from Harvard’s Protective Bylaw, having determined six months earlier that a planned addition would be closer to Ayer Road and higher than permitted. The committee also asked for a special permit, also required by law because Town Hall is a so-called “existing nonconforming structure.”
In their deliberations Thursday morning, Chairman Christopher Tracey and members Stephen Moeser and Robert Capobianco were unanimous in concluding that the building committee, represented by Town Counsel Mark Lanza, had failed to show that a denial of the variances would be a special hardship to the town and deserving of an exception. But Tracey, in his remarks, also took notice that the conundrum was one the town had created for itself.
Virtually every structure on or near Harvard’s Town Common—municipal buildings, churches and homes--is “non-conforming,” having been constructed well-before the town began passing bylaws in the 60s. Like some homes, Town Hall is jammed into the corner of a triangular lot, bisected by Ayer Road and between a church, former fire station and a driveway used by the fire department. Although the existing structure exceeds current bylaw restrictions to a greater degree that the proposed addition, new construction, according to the bylaw, must meet its standards. The irony, the building committee and other have noted, is that while municipal buildings are required to obtain variances, nonconforming one- and two-family homes in the district are not and are routinely granted special permits.
The standards for granting a variance in the state of Massachusetts are “very, very high,” ZBA’s counsel, Barbara St. Clair, advised the board at Thursdays deliberation, and Harvard’s bylaw, echoing that language of state laws, spells out in detail the criteria that must be met. Failure to meet any one of them, in the eyes of any one member of the ZBA, is sufficient grounds for a denial.
On Thursday, the three ZBA members focused their deliberations on the requirement that denying its application would be a “substantial hardship” to the town, either because any alternative would be more expensive or the peculiar conditions of the site simply prevented a conforming design.
At prior hearings, the building committee had presented estimates for two alternative structures that would cost an estimated 16 to 17 percent more, but board members concurred with Tracey’s assessment that for a municipal building to exceed its estimated cost by 15 to 20% was not an unusual circumstance.
“Would I be shocked?” asked ZBA member Moeser. “It happens all the time.”
Having dispensed with the case for financial hardship, the board discussed whether soil or other conditions at the Town Hall site made other designs impossible. But here, by having shown that two other conforming designs were, in fact, possible, although not, perhaps, desirable, the committee gave the ZBA grounds to dismiss its own argument.
Tracey used the example of his own house in the district to make the case that the conditions faced by Town Hall were no different from those faced by homeowners. Moeser and Capobianco agreed.
Once the board had voted to deny the two variances, there was no choice but also to deny the special permit, which requires that any work on existing municipal buildings in town center conform to the bylaw or have been granted the necessary variances.
“The right word for me is ‘unfortunate,’” Tracey told his fellow board members. “Common sense says that the people of Harvard have spoken.”
But, he continued, “This is a request that is looking for forgiveness, rather than permission,” and he urged the town to consider the changes to the bylaw that have been proposed to town meeting by a citizen petition.
It’s a case of “politics trumps facts,” building committee chair Pete Jackson told the Press, after the vote.
But Stu Sklar, an organizer and proponent of the citizen petition to exempt town-center municipal buildings from the bylaw, said he was glad the ZBA had made its decision. “The need to pass the citizen petition is now more compelling than ever,” he said.
“I believe I heard the ZBA endorse a bylaw change for municipal building,” said selectwoman Marie Sobalvarro.
Those of Harvard’s 4,000 active voters who choose to attend Town Meeting on April 6 will be given an opportunity to decide the matter in two weeks.