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Board of Selectmen's Minutes 01/03/05
Board of Selectmen
Town of Tolland


Selectmen Present:             Eric R. Munson, Jr., James Deming and Wesley D. Greene II

Gert McKay, Planning Board member requested information about the decision the Board made regarding the letter from Stephen McAlister, Planning Board Chairman. (Letter attached)

Decision – Nonconforming lots will be required to have a certified land survey and will
                 have to be reviewed by the Zoning Enforcement Officer prior to issuing the
                 building permit.

The new requirement will be added into the building packets.

Robert Bitso asked for an update on Michael Lodsin of 250 Harvey Mountain Road. The Board replied that they are waiting to hear from the courts with a date for a hearing.

Also, Bob wanted to know when Harvey Mountain Road would be paved. Wes stated that the road is scheduled to be paved in the spring or summer of 2005.

Meeting adjourned 7:15PM

Respectfully submitted,
Margaret McClellan
Administrative Assistant

Eric R. Munson, JR
James Deming
Wesley D. Greene II

December 6, 2004

Board of Selectmen
Town of Tolland
Tolland, MA 01034

Re:  Planning Board and Zoning Enforcement


I write as chairman of the Tolland Planning Board, in an attempt to solve a problem that has slowly become clear to the Board. I wish to stress at the outset that this letter is not concerned with issues of job performance, or the like. The problem is that of insuring that people build what they have been given Planning Board permission to build, and not something else. This problem has gradually arisen during the long, slow process of development in the township over many years. This Board wants to solve the problem in the most consistent, appropriate manner we can, in the best interests of the Town as a whole.

Within the last year or so, there have been two incidents of faulty site layout in Wildwood, in which the actual layouts for construction projects did not match the site plans submitted to the Planning Board. One incident was ultimately traceable to a faulty survey, and the other to the property owner’s faulty information regarding property line locations. In both cases, a zoning variance has been required, after the fact. So there is clearly a potential problem with site layouts, particularly in those areas of town having small, nonconforming lot sizes and high development density.

The question has been raised as to the prevention of similar situations repeatedly arising. The proper local remedy would appear to be lie with the Building Inspector position, including any adjustments that might be needed in terms of compensation, assistance, or other items.  Section 7 of Chapter 40A (“Zoning”) of the Massachusetts General Laws states:    “The inspector of buildings, building commissioner or local inspector, or if there are none in a town, the board of selectmen, or person or board designated by local ordinance or bylaw, shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit for construction, alteration or moving of any building or structure if the building or structure as constructed would be in violation of any zoning ordinance or by-law.”

Therefore, it appears that state law implies that the Building Inspector, or other similarly qualified, appointed inspector also act to enforce the zoning by-law, including withholding a building permit until conformance with the by-law is established. The typical situation in small Massachusetts municipalities is that the Building Inspector is also the ZEO, although at least one (Richmond) has a separate ZEO. It also appears that the state’s intention is not to devolve enforcement upon local Planning Board members, presumably because Planning Board members may lack the expertise, mobility, insurance, etc., for this type of field work, and should not be held accountable for possible mistakes, oversights or omissions, particularly when they are primarily volunteer in nature.

It is reasonable to conclude that the BI may require a property owner to clearly stake out the project, including assumed property lines, and even furnish a certified land survey where conformance is in question, or provide any other reasonable evidence that the project will conform, prior to issuing the building permit, both for his own liability protection and that of the Town.

So the Planning Board requests that steps be taken, through the Board of Selectmen, to ensure the proper layout of projects, including but not necessarily limited to the following possibilities:

        Clarify that state law requires that an inspector, other than the Planning Board or its members, act as zoning enforcement officer, to ensure that projects conform to zoning, prior to issuance of building permit. This should extend to all aspects of ascertaining conformance, including the accuracy of field layout of projects, prior to issuance of permit. In Tolland, this would presumably be the Building Inspector, in an expanded capacity.

        The inspector could then adopt a blanket policy requiring that all projects, large or small, be staked out, brush-cleared, etc to his satisfaction, for his convenience of examination, prior to issuance of building permit. This places the onus on the project owner to be very clear about the layout, and to do all of the “grunt work”, which is appropriate. Witholding the permit also gives the Town excellent leverage to ensure cooperation. The majority of towns in the region always require staking and verification by the Building Inspector acting as ZEO, so it can’t be too onerous, and is especially desirable in fast-growing townships like ours.

        Since the Building Inspector is probably not currently compensated for ZEO work necessary for enforcement “before the fact”, raise the level of compensation appropriately. The Town has had a surplus recently in the BI fund, from which to draw in future, so compensation could probably be adjusted without raising the permit fees. The expenses of the Building Inspector are the purpose for which we have those fees.

        If additional part-time staff could solve the problem, investigate adding staff. The qualifications could be less than those required for a BI, and perhaps the position could be contracted out.

        In addition to these requests of the Selectmen, I plan to ask that, in the new zoning by-law revision, a certified land survey always be required for building permits for nonconforming conditions, including lot sizes, pre-existing situations, etc. Such a provision would apply to most, if not all, situations in Wildwood, North Tolland, and Tunxis, which are where the preponderant majority of serious enforcement problems occur, due to small lot sizes. I believe that we could currently at least require pins or markers at lot corners, without a full survey, where appropriate.

There is an additional change that might be made after bylaw revisions, assuming that the proposed revisions are adopted, but should be held off for now to avoid confusion. This would be to adopt the nearly-universal practice of allowing the BI, acting as ZEO, to review and process routine, fully conforming by-right applications for site plan approval (such as the typical conforming house on a conforming lot) at the time of application for building permit. If a building lot is conforming, the setbacks are met, there’s no Special Permit involved, etc., then there is no reason the BI should not be able to approve the site plan. This would avoid the situation in which someone shows up for a building permit the day after the monthly Planning Board meeting, and has to wait four or five weeks while the weather deteriorates, or requests a Special Meeting of the Planning Board, just for a rubber stamp approval.

In fact, it appears that, legally speaking, the determination of zoning conformance itself begins with and rests with the ZEO, and not with the Planning Board, so that, for example, if the ZEO were to find a condition to not require a Special Permit, for example, and the Planning Board might think it does, his determination would prevail. From that standpoint, we may have actually been handling the process backwards for decades, by having the Board determine conformance in each case.

If this practice were adopted, the Planning Board would remain the SP Granting Authority, and deal with questions involving community judgment. The PB might then also be freer to undertake work that has been previously outsourced, such as the rewriting of the zoning by-law. This is uniform practice in almost all towns in the region.

To conclude, we are proposing changes to the longtime methods of operation that have worked well enough in the past, but are beginning to result in problems, as the town grows larger and denser in population. Please consider these suggestions and respond to us at your earliest convenience. Thank you for your cooperation, and please feel free to contact me if you require further information.

Sincerely yours,

Steve McAlister
Planning Board Chairman
Cc: Planning Board members; Chair, Zoning Bylaw Review Commission

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