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ZBA Appeal - Smith Boat House

    Town of Leicester

 Zoning Board of Adjustment Minutes

Thursday, January 7, 2010

 

*Unapproved*

 

** See subsequent minutes for any changes

 

Members Present:  Gerry Flint, Chair, Jeff McDonough, Peter Fjeld, Donna Swinington

 

Others Present:   Kate Briggs,  Mr. & Mrs. Gary Makovec, Jeff & Linda Smith,  William & Linda Pitkin, Sandra Trombley, Secretary

 

Call to Order/Roll Call:  Meeting called to order at 6:00 p.m. by Chair and roll call. 

 

Appeal of Approved Permit Application 39-09-ZA Parcel # 212021 L1 Lake District, Jeff & Linda Smith by ZA on October 29, 2009 to build a boathouse:

 

Chair asked any parties giving testimony or asking questions to direct them directly to the Board.

 

Pete asked Gary Makovec if he had a document stating that he was agent for his parents. 

 

Gary stated he has his driver’s license and a letter from his father.

 

The letter from his father, Charles Makovec was reviewed by the Board. 

 

Jeff Smith asked the Chair to point out where the section is within the ordinance with regard to who may make an appeal.

 

Pete noted it was on page 9, definition of interested person. 

 

Jeff Smith noted that is the definition of interested parties, which Gary Makovec is not.  Jeff commented that typically in these ordinances there is a section on appeals and who may take an appeal.  Jeff stated he didn’t see it.

 

Donna stated it was on page 27.

 

Jeff Smith stated that Gary is not an interested party and his appeal is probably mute or fatally defective.

 

Kate commented that the issue was whether he was an agent of an interested party or not.

 

Jeff Smith commented that the ordinance is pretty clear with regard to who may take an appeal and that is an interested party.  It doesn’t say anything about agency or person doing it in his stead.  If that were the case he would need a Power of Attorney which he doesn’t have.

 

Chair showed Jeff Smith a letter received directly from Charles Makovec as to who can participate at the hearing. 

 

Jeff Smith didn’t feel that the letter was meeting the statute in the ordinance.  He requested a copy of the letter since he felt the Board was relying on it to some degree. 

 

Jeff Smith made a motion to have the appeal dismissed based on the information previously discussed.

 

There was more discussion on interested persons and whether Gary Makovec from Orwell properly represents the landowner. 

 

The Chair explained that by definition of interested persons, an interested person to represent in a hearing of any type is recognized as a neighboring person, an adjoining property owner in terms of presenting evidence or offering any complaint or suggestion toward an appeal or hearing.  That becomes the question as this point, in one of several ways.

 

The Chair asked Gary where his father’s property was located in relation to Jeff Smith’s property.

 

Gary answered, 1274 Hooker Road, directly across the street, and shares a right of way with Jeff Smith.  The boat house would be right next to the right of way.

 

Pete asked how the right of way is described.

 

Jeff Smith explained that the right of way granted by deed is on the north side of the property.

 

Kate explained that Gary’s parent’s property is directly across the street and is an abutting property.  It doesn’t matter about the right of way.

 

Gary Makovec asked if the Board could delay the meeting for two weeks so he could get adequate authorization to be a proper representative.

 

The Chair explained that the Board was meeting tonight to come to a decision. 

 

Pete indicated that they could come up with a decision, but it would only be valid if the appeal was valid and he doesn’t feel the appeal is valid because it was produced by a person who was not a landowner or agent thereof.  Pete read the definition of “interested persons” on page 9.

It doesn’t even say that you can do it if you are an agent.  It only says you can do it if you own or occupy property in the immediate neighborhood and Gary lives in Orwell.

 

Gary indicated that his father had called and talked with Kate Briggs and conveyed his wishes and mailed a letter to the Board.

 

Donna indicated that nowhere in the letter did Mr. Makovec indicate that his son is the agent.

 

The Chair continued; or did he say that he would like you to represent him at the hearing.

 

There was discussion about when the permit was posted.

 

Jeff Smith asked to move the question.

 

Motion by Jeff McDonough to dismiss the appeal based on the fact that the Board does not have adequate representation per definition in our statute of a qualified person of interest.

 

Second by Donna. 

 

Vote:  Yes, Donna

            Yes, Peter

            Yes, Jeff

            Yes, Gerry

 

Motion by Donna to adjourn meeting at 6:35 p.m.  Second by Jeff.  All in favor.  So approved.

 

 

Respectfully submitted,

 

 

Sandra L. Trombley

ZBA Secretary