ZBA rejects attempt to appeal Railroad Street Park and Fly

  The Zoning Board of Appeals (ZBA) will not consider an appeal of the decision to allow a 120 space Park and Fly commercial parking lot at 44 Railroad St. An attorney representing Durant Performance Coatings at 112 Railroad St. argued that the ZBA legally had the right to hear the case, since it involved the city’s building inspector not taking action against what he characterized as a violation of the city’s zoning ordinances.

  The City Council approved a special permit for the Park and Fly last November after receiving a favorable recommendation from the city’s Site Plan Review Committee. That decision is still being appealed in state Land Court.

  “When a project is over 10,000 square feet or is going to add more than 10 parking spaces, there are a number of things enumerated that [the site plan review committee] must consider and that they must receive from an applicant,” said Adam Gutbezahl, the attorney representing Durant Performance Coating at the ZBA meeting on Wednesday, April 27. “The project I am here before you for is more than 100,000 square feet and is for a commercial parking facility of over 120 parking spaces, therefore it more than meets the threshold requirements.”

  Material that should have been provided but wasn’t, according to Gutbezahl, included three copies of water and sewer utility plans and storm drainage plans, as well as a plan showing the internal traffic circulation on the plot. Because those materials were not provided, Gutbezahl said, the city’s building inspector should have rejected the Site Plan Review Committee’s recommendation to the City Council. He said there should also have been a traffic analysis provided as part of the review.

  “I ask you to consider how the Site Plan Review Committee could make a determination about the adequacy of a commercial parking facility that would provide over 120 parking spaces when they were not in receipt of any parking analysis,” the attorney said. “It was not a reasonable recommendation for the Site Plan Review Committee to make or for the building inspector to allow those recommendations to proceed.”

  An attorney representing the abutting businesses the Park and Fly will be carved from, Amato Bocchino, reiterated the points he made in a letter to the ZBA in January claiming the ZBA has no jurisdiction over the issue. Bocchino said the building inspector only has jurisdiction if there is an enforcement issue with a by-right project; since the Park and Fly required a special permit from the City Council, the building inspector did not have jurisdiction. “In the special permit context, the Site Plan Review Committee acts independently of the building inspector,” said Bocchino.

  The ZBA members agreed and voted to put the request by Durant Performance Coatings on file, meaning they would not be rendering a decision on the issue.

  “This was approved by the City Council,” said ZBA member John Lopes. “If there is any case, it should go back to the City Council and the Site Plan Review Committee. I don’t think this should be our case under the zoning.”