HARVARD -- In the third session of a public hearing last Thursday morning, the Zoning Board of Appeals denied the variance application submitted by the Town Hall Building Committee, and as a result of that decision, denied its special permit application as well.

In the ZBA's opinion, the variance application didn't meet the hardship criteria it hinged upon and none of the evidence the proponent submitted convinced them otherwise.

As for the other application, special permits may only be issued when a structure is in compliance with zoning, which in this case required a variance. With one application denied, the other could not be granted, either, so the answer was no on both counts.

Under current zoning and absent the requested "relief," remodeling and addition plans that Town Meeting has already approved and funded can't move forward as proposed, including razing and reconstruction of the addition on the east side of the building.

After the vote, Chairman Chris Tracey said the obvious place to go from there would be to change town zoning and he suggested that Town Meeting review its bylaws to that end. "That's the appropriate avenue for making this (project) happen" if the people want it to, he said.

During its deliberations and in previous discussions, the board made it clear that the intent was to view the town's application as it would any other, with no special consideration for a public project versus a private, residential project.


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With the evidentiary portion of the hearing closed at the previous session a week ago, there was no public input at the recent meeting, which lasted about an hour. There was a good deal of discussion at the table, however, with several legal questions for the attorney representing the ZBA in this case, Barbara St. Andre, of Petrin & Associates in Framingham.

To begin with, member Robert Capobianco said he wanted her legal take on whether the board could adjourn into executive session to discuss litigation strategy before he made a motion to do so.

Capobianco, who is an attorney himself and has participated as a voting member of the board in this hearing via an audio-video internet connection, said that after pondering the matter for the past week, he had "specific legal questions for counsel" regarding a possible appeal by the applicant that it might be better to address behind closed doors.

St. Andre said it wouldn't work. Although discussing litigation strategy is one of the reasons a board can go into executive session under the Open Meeting Law, it only applies if litigation is in process or has been threatened, which was not the case here, she said.

In effect, he was seeking a legal blessing for the board to discuss in private the implications of a decision they hadn't officially made yet but which was clearly listing toward no. Capobianco said he'd ask the questions in public ..." at some point."

Most of his questions were in reference to cited chapters and sections in the zoning laws, which St. Andre told him didn't apply in this instance.

Over a long law career and many years serving on this board, Capobianco said his slant on the applications it rules on is typically techno-legal, while Tracey tends to take a "common sense" approach.

It should also be noted that Steve Moeser, with his experience n the building trade, brings another level of specialized knowledge to the table and his input and opinion reflect that.

This time was no exception, but they were all on the same page in the end.

Asked for comment after the meeting, Selectman Marie Sobalvarro said the ZBA's decision seemed like an endorsement of the citizen's petition to change town zoning.

The petition, which Stu Sklar submitted to selectmen a few weeks ago, is slated for the April 6 Town Meeting warrant. It calls for amending the zoning laws to exempt public buildings in the town center from the need for variances or special permits in most cases.

Building Committee Chairman Pete Jackson told reporters that the addition, which was the sticking point, represents the best, "most reasonable" plan the architects could come up with. The board's rejection of it "shows the bylaw must be changed," he said. 

However, he also said the board's logic for denying the application wasn't "based on facts." For example, the ZBA talked about borings not yet done at the addition site that might reveal ledge and up site preparation costs. The committee held off doing that until the variance issue was settled, Jackson explained, but it worked against them.

Still, if he had it to do over again, he'd forward the same design. "It's the least problematic," Jackson said.