Town, McKee differ on language of zoning ordinance

Developer Jim McKee told the Zoning Board of Review on Tuesday that he misinterpreted a local zoning ordinance, resulting in him constructing a home on Rockyroad Avenue that does not conform to the town’s requirements.

McKee, whose company Summit Builders has been working on extending Rockyroad Avenue to add additional homes, came before the board seeking side setback relief for the home at 10 Rockyroad Ave.

The ordinance in question requires that four feet be added to the side setback of a property “for every 10 feet of building height over 25 feet.”

The town and McKee interpreted that language “differently,” according to McKee attorney Nicole Martucci. McKee’s company built a home at 26.5 feet, “so the builder interpreted that he did not need that relief,” Martucci said.

Town Solicitor Tony DeSisto said the confusing language of the ordinance has been “a longstanding issue with the town,” and that he and Martucci’s partner, former Assistant Solicitor Joelle Rocha, would have debates about the language.

“It has been a longstanding policy of the town that once it goes over 25 feet, that provision kicks in,” DeSisto said.

Asked whether there was any case law to support that, DeSisto said, “Depending on how it goes tonight, you might get a decision from the court.”

DeSisto conceded that the language of the ordinance is confusing, and said some type of sliding scale has been suggested as an alternative. Still, DeSisto said it’s been the practice of the town’s Zoning Board to enforce the ordinance on any home over 25 feet tall.

“Without this variance we’d have to tear down a building and move it four feet over,” Martucci said. “We have here a good faith interpretation of a statute that the town interprets differently.”

McKee told the board that he first became aware there was an issue when he attempted to secure a certificate of occupancy and the Building Official notified him. He said he has built five homes on Rockyroad so far. Asked how many houses he has built total, Mckee said close to 400.

He said he has zoning experience, and specifically, “read that ordinance and I believed that it said if we’re over 10 feet we’d need to add four to the side yard setback.”

Asked by Chairman David DeAngelis whether he’s had other zoning issues in Lincoln or Cumberland, he said, “I have not.” Asked whether he’s had violations on his contractor’s registration, McKee said, “in the past 25 years, I may have had one.”

“Past five?” DeAngelis asked. “No,” McKee said.

Ultimately, the board unanimously agreed to grant four feet of relief to McKee.

“You don’t have to tear your house down,” DeAngelis said.

McKee developments have long been a source of contention locally, mostly in Cumberland and more recently in Lincoln.

In other zoning news, Link Commercial Properties will proceed to the next level of planning in its proposed 55-and-older condo development at the former Highridge Swim and Tennis Club.

That project was approved for a special use permit and dimensional variance for lot width relief, and will now move back to the Planning Board where a number of potential concerns will be worked out.

After hearing words of support from neighbors, a couple at 1 Bittersweet Lane will be allowed to construct an in-ground pool on their property despite the Technical Review Committee’s recommendation for denial of lot coverage relief. The TRC contends that the owners were aware they were at the maximum for lot coverage when they received 2014 planning approval.

Lastly, an application for dimensional variance seeking front setback relief for a two-car garage at 6 Anna Sayles Road was delayed again to the Feb. 4 zoning meeting.


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