Denial of Tyler permit invalid, state says
DORSET -- On Aug. 31 the zoning board of adjustment overturned the permit issued to Brad Tyler for the construction of three one story 20 by 100 foot self-storage units on his property located on 340 Route 30 by a vote of 4-3.
However, according to state statute, the vote is invalid and Tyler’s permit remains valid. The Dorset Zoning Board of Adjustment (ZBA) is comprised of nine people, two of whom -- Kevin O’Toole and Steven Jones -- recused themselves from the vote due to conflict of interest. O’Toole had served as Tyler’s attorney in the case and Jones is an abutting landowner.
By recusing themselves from the vote, a lack of concurrence of the majority of the board -- in this case five members -- needed to issue a decision by state statute was created. The vote, therefore, results in a non-decision, according to an e-mail from Dorset Town Manager Rob Giaotti.
The outcome of the ZBA proceedings on Aug. 31 may be appealed to the Environmental Court by an interested person who participated in the proceedings within 30 days, according to the e-mail.
On June 3 and 4 community members Jacqueline Pistell, Eric Rosencrantz and Patricia Estey appealed Tyler’s permit -- issued by former zoning administrator Joseph Bamford on May 21 -- asserting that it was "not in accord with the policies, purposes or terms of the Dorset Zoning Bylaws," according to the findings of fact and decision. The petitions filed by Pistell, Rosencrantz and Estey contained the signatures of 34, 28, and 12 other registered voters, respectively, according to the document.
During the appeal process, the board had four issues to considered regarding the permit: A. whether the appeals were "untimely and moot because the notices of appeal were filed after the Zoning Administrator issued the permit and not after the Zoning Administrator referred the Application to the Planning Commission," as contended by Tyler; B. whether the appeal was defective because the reason for it was not stated on each page of the petition; C. whether or not self-storage was a permitted use because it wasn’t expressly prohibited by Dorset’s Zoning Bylaw; and D. whether self-storage buildings were a permitted use under section 6.3.4(b)(3) of the Dorset Zoning Bylaw, according to the findings of fact and decision.
While those members of the board who voted agreed on items A, B, and C, dissenting opinions arose from issue D. Four members of the board voted that the permit was invalid because "the project does not fit the definition of a retail ‘shop’ or ‘store’ because the buildings will be used for the storage of the goods of others and therefore does not constitute retail sales/rental activity as those terms are defined under the Dorset Zoning Bylaws, and to the extent not so defined in their plain and ordinary meaning," according to the findings of fact and decision.
However, board members Dale Baker, Michael Connors and Tuck Rawls disagreed. "While we agree with the majority in regards to issues A, B, and C we disagree with the conclusion that the proposed use does not fit within the definition of Permitted Uses within the Village Commercial District," the findings of fact and decision states. "We would find that space is a commodity which can be rented as merchandise. Since the proposed use is to rent space to members of the general public and not for wholesale use, we would find that the proposed use fits within the Retail sales/rental permitted use as set out in section 6.3.4(b)(3) subject only to Site Development Plan Review which has already occurred."
Calls to Tyler and ZBA Chairman John LaVecchia seeking comment were not immediately returned.
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