Lake amendment stymied by technicality

SALISBURY — The Planning and Zoning Commission (P&Z) voted not to approve an amendment to the zoning regulations proposed by the Lake Wononscopomuc Association.

The vote was held at the Tuesday, Nov. 16, commission meeting.

The amendment would have prohibited vertical expansion of nonconforming buildings in the Lake Protection Overlay Zone. The last time the commission considered the amendment was at a public hearing Nov. 3.  At that time the commission decided to seek clarification from its attorney, Chuck Anders, on whether or not a conforming section of a building could be enlarged. They said they would vote on Nov. 16.

Commission member Jon Higgins, noting the matter was not on the Nov. 16 agenda, said he thought there was a public expectation of a vote. After some discussion, the commission voted to add it to the agenda, with Higgins saying if the commission felt more time was needed it could be tabled.

Some members of the Lake Wononscopomuc Association as well as the Twin Lakes Association were on hand for a public hearing on a different subject, but not nearly as many as attended the public hearings on the amendment.

When the commission got to the amendment, Allen Cockerline (who was there as an alternate, taking the place of absent Vice Chairman Michael Klemens), expressed concern over the language of the amendment: “Except in the Lake Protection Overlay Zone subject to the approval of a Special Permit, the Commission may approve second story additions or other vertical additions to the height or bulk of that portion of a residential building which is nonconforming in terms of minimum yard requirements provided ...�

What gave Cockerline pause was the unpuncuated juxtaposition of the phrases “Except in the Lake Protection Overlay Zone� and “subject to the approval of a Special Permit.�

Cockerline and the other commissioners read and reread the language several times. Marty Whalen said, “I understand where Allen’s coming from.�

Higgins said, “It’s not an insignificant issue so if we need more time ...�

Zoning Enforcement Officer Nancy Brusie, when asked her opinion, said the text means any nonconforming building may be expanded by special permit — except in the lake zone.

“A period would help,� commented Cockerline. “But if it’s clear to the majority then we should act on it.�

Dan Dwyer said the commission should go ahead and vote. “Vote for whatever reason. If clarity’s one of them then so be it.�

Dwyer then moved the commission accept the amendment, and Cockerline seconded.

At the Nov. 3 public hearing Higgins noted the 300 signatories to the lake association’s amendment petition and the almost total absence of any dissenting comment from the public.

“I guess I’m OK with it,� he concluded at that time.

But he appeared to back off from that position Tuesday night. “I still have concerns about removing property rights from people matter-of-factly,� he said, and reiterated his belief that the existing special permit process addresses the same concerns as the lake association’s amendment.

And when the vote was called, the amendment failed 3-2, with Dwyer and Chairman Cristin Rich in favor and Cockerline, Higgins and Whalen opposed.

In the days following the vote, there was a strong negative reaction from members of the lake association.

In a Nov. 19 e-mail to The Journal, Rich explained some of the events. Asked why the vote on the lake’s petition wasn’t on the agenda in the first place, she wrote: “The item was not on the agenda as we were waiting for confirmation on the type of majority needed.  Some petition amendments require a super majority of the commission.

“We learned that we did not need a super majority on this amendment, but not within the time frame to place it on the meeting agenda.�

She added that a member of the commission had asked her to check with the commission’s attorney before the vote, and she obliged. “It seemed prudent to do so.�

As to adding the vote on the petition to the agenda, she said that is in accordance with standard procedure, and she treated Higgins’ agenda modification request the same as any other.

And asked if the Lake Wononscopomuc Association could tweak the language and resubmit the petition, or the commission itself could rewrite the amendment and vote to amend the regulations, Rich said in her e-mail that either action is possible.

She added, however, that the “commission is not required to hear a petition about the same or basically the same changes, but it may.â€� 

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