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May 11th 2008

The ZBA Game: Kenney’s Win is Town Loss

By Dan Sapir and Dennis Randall

(February 13, 2003) Housing density in the 3-A Design District could double now that the Kingston Zoning Board of Appeals has authorized multiple residential buildings on single house lots. The unprecedented move comes with the approval of Selectman Richard Kenney’s petition for a variance at 83 Main Street. Kenney sought to subdivide his 16,000 square foot non-conforming lot in order to build a 28' X 48' ranch style house in his backyard. The Zoning Board (appointed by the selectmen), heard the petition to subdivide the lot into two 8,000 square foot lots on December 18, 2002. Testimony was given during the hearing that the ZBA had no authority to hear the case since subdivision issues are only within the realm of the Planning Board.

A direct abutter who would benefit himself if the plan were approved, testified in favor of Kenney’s request, while three residents spoke against the petition. The hearing was closed and taken under advisement.

On the evening of January 29, the ZBA approved Kenney’s petition by a curious route. They denied the request to subdivide, but then went out of their way, and beyond the scope of the advertised hearing notice, and manufactured justification to allow two houses to occupy a single, substandard, non-conforming lot. In their decision, they manipulated the accepted definition of a two family dwelling, to mean two (2) dwellings for individual families. This means that anyone owning a one or two family home in the 3-A Design District, could now become a landlord for backyard rental property. Many of us may remember the slogan “A chicken in every pot”. We now have the ability to have “two houses on every lot.” The implications for density and maximum build out are staggering. Our own ZBA, on behalf of a selectman who appoints them, has opened the door, by precedent, for the Brocktonization of Kingston.

The problem faced by the ZBA now is that to deny a similar request by any other property owner would open the town and taxpayers to a lawsuit for being arbitrary and capricious. Such suits occur when different people get different results from the same request. The quality of life in at least one portion of Kingston is now in peril. Two residential structures per lot will quickly become income opportunities for absentee owners.

Besides being outrageous and politically gratuitous, the ZBA capitulation has some serious flaws. First, their decision went beyond the scope of the request by granting relief not sought in the hearing notice. The public had no way of knowing that the ZBA would “cure” the flaws in Kenney’s application as a courtesy and invoke arguments and logic never broached at the public hearing. The hearing process carries with it a unique set of rules designed to protect the applicant and the public. Boards are prohibited from acting on testimony or facts not presented within the framework of the hearing notice and the hearing process. This is to prevent precisely the kind of abuse of process that occurred. Had the public been aware of the grounds being considered by the ZBA, it would have afforded the opportunity to present counter arguments and testimony.

Secondly, once the hearing was closed, it was improper for the ZBA to gather, introduce and deliberate over evidence not presented during the hearing. Had that been their desire, the hearing should have been continued.

Thirdly, notwithstanding the legality of the ZBA actions, there would still appear to be the necessity for Kenney to file with the Planning Board for structure style approval.

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