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Subject: Remove Five Board of Appeal Members
Addressed To: Board of Selectmen
Inspector of Buildings
From: Neighborhood Committee for the Sensible Development of Concord Road
Date: August 24, 1998
Location: Town of Billerica, Massachusetts

        Neighborhood Committee for the Sensible Development of Concord Road

                                                                                                       August 19, 1998

The Honorable Selectman Edward Hurd, Chairman
Billerica Board of Selectmen,  and
Ruthanne Bossi, Inspector of Buildings
Town of Billerica
365 Boston Road
Billerica Massachusetts

Dear Mr. Hurd and Ms. Bossi:
This letter is a formal complaint by the "Neighborhood Committee for the Sensible Development of Concord Road" to the Board of Selectmen to demand the immediate removal of five members of the Billerica Board of Appeals, per Section 7.7 of the Billerica Home Rule Charter for malfeasance and recalcitrance.  We also are requesting the Board of Selectmen to file an Appeal in Superior Court against the Board of Appeals for a series of decisions made by these five members of the Board of Appeal on August 12, 1998.  This letter also officially challenges the building permit for the new hotel on Concord Road, according to Section 17 of the Billerica Zoning By-Law.  The following information briefly explains why we are making these demands and requests.

As you know, our committee is comprised of neighbors and abutters to the industrial land along Concord Road, a road officially designated as one of historical and scenic value.  Since 1991, we have been put in the unenviable position of defending our neighborhood and property rights voted by the town meeting and safeguards voted by the Massachusetts legislature to protect neighborhoods against developers who choose to ignore the by-laws of towns.

We have been very concerned with protecting our neighborhood from intrusions from traffic and noise, preserving the appearance of historic Concord Road, and particularly demanding the protections granted to us by the Billerica Zoning and General By-Laws.  We have made a good faith effort to work with the town to balance our neighborhood needs, the needs of the industrial developers and the need to provide jobs and tax revenues.  To affect a compromise with the town, we negotiated an eighteen (18) point agreement (the "Agreement") with the town and the Concord Road developers.

However, over the last several months, the Board of Appeals, a duly constituted agency of the town, has deliberately and intentionally aggravated our Agreement and our relationship with the town.  One recent example was their granting, without a single change, more than a dozen variance deviations to the Billerica Zoning By-Law and special permits to the new Concord Road hotel. These decisions were made over the objections of the neighborhood in official testimony. While we are not opposed to new hotel, we have insisted, as is our right, that the proper procedures need to be followed to complete this project.  Recently, this hotel was apparently granted a building permit, even though the Board of Appeals failed to specifically identify (narrative) what sections of the Zoning By-Law were deviated in terms of where and how these deviations would be applied on the land.  The Board of Appeals also failed to state the statutory reasons, as defined by the law and case law, for granting these appeals.  Further, the Board of Appeals' decision failed to include an authorized plan, signed by a majority of the Board of Appeals.  Still outstanding, and known to all parties, is the proposed hotel driveway, which is too wide (more than fifty three feet wide) and violates Section 5.4.H of the Billerica Zoning By-Law that limits driveways to twenty four (24) feet:
            "Section 5.4.H. In all districts, vehicle access curb and sidewalk openings shall
            be limited to an aggregate of twenty-four feet in each fifty feet of frontage and
            no such curb or sidewalk openings shall exceed twenty four feet in width."

How did a building permit get issued without these deficiencies being cured?

To exacerbate the tensions with the neighborhood, on August 12, 1998, the Board of Appeals granted an unprecedented number of variances and special permits, again without substantial change, to a developer, and again over the neighborhood's objections. This latest series of grants by the Board of Appeals has, in our opinion, seriously violated Massachusetts General Laws by the Board of Appeals granting appeals in excess of the board's statutory authority and by the Board of Appeals ignoring the requirements of the Billerica Zoning By-Law.  (For more examples of abuses, see: Dougherty v. Board of Appeals, Carroll v. Board of Appeals, Gallagher v. Board of Appeals)

The Board of Appeals does not have legislative authority, but their votes indeed appear to represent a constructive and significant re-legislation of the Billerica Zoning By-Law.  This is wrong and clearly demands redress.  To illustrate this complaint, one deviation granted on August 12th to this developer was to allow the developer to exceed the Zoning By-Law building height limit of forty five (45) feet for a proposed building with a low end of fifty seven (57) feet high and the high end of sixty five (65) feet.  Simple mathematics translates these measurements to an average building height of sixty one (61) feet high, which results in a building that will be 35% higher than the Zoning By-Law allows. By law, the Board of Appeals and the developer must prove that a hardship exists on the land, not to the developer's pocketbook, to vary the Zoning By-Law.  The courts have ruled that a profit resulting from the grant of an appeal is insufficient to grant an appeal.  Doesn't a building about 35% higher (likely with 35% more rentable floor space) than the Zoning By-Law allows, generate a substantial profit to the developer?  How could anybody justify this deviation?

At the August 12th meeting, representations were made regarding previous traffic studies that factored in the effect of the industrial development in question.  We do not believe the traffic studies addressed this increase in traffic, which would be substantially more detrimental to our neighborhood.  Furthermore, information was provided by the applicant after the close of the public meeting and residents were denied the same privilege.    Based on this, we believe that he Board of Appeal was unfairly predisposed to support the developer before the board voted.  This is wrong and demands an investigation.
We would like an opportunity to discuss this matter with the Board of Selectmen in more detail because it is our sincere belief that the Board of Appeals is out of control and needs to be replaced immediately with people who abide by the law and their oath of office.  We feel that it is now time to act, particularly with regard to the twenty (20) day appeal period required by MGL, Chapter 40A.

Would you please call a special meeting of the Board of Selectmen to take up this matter immediately.  We have designated a sub-committee of our committee to handle this matter.  Please contact the committee to coordinate a mutual acceptable meeting date and time.  Thank you.


                                                                  The Committee,

                                                                  [original signed by twelve members of the committee]


Copies to:
    The Honorable Robert Haven, Senator, State House, Boston, MA 02133
    The Honorable Rep. W. Greene, Jr., Representative, State House, Boston, MA 02133
    The Honorable Martin Meehen, 11 Keaney Sq., Lowell, MA 01852


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