9/11/1996 ZONING BOARD OF APPEALS Minutes

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Attorney Henchy: I ' ll try again. We asked the Building Inspector for a Ruling on whether or not . . . The Chairman: Is he authorized to give a Ruling on that? Attorney Henchy: On what? I haven' t finished yet . The Chairman: Go ahead, on the Modification. I mean, that ' s what you' re saying in here. Attorney Henchy: We asked him for a Ruling on whether or not the 1995 Modification Agreement between the Selectmen and New Seabury constituted an amendment to the 1964 Special Permit so as to allow the construction of four hundred and twenty-five (425) more units and the three hundred and sixty thousand (360, 000) square feet per acre space on the. . .on the property. The Building Inspector' s response was that in his view, it did not. And if I 'm. . . I 'm reading his letter correctly he also indicated that until such time as permits are issued uh. . .he really didn' t feel that he had any jurisdiction in the matter. And I think that ' s what you're driving at . The Chairman: That ' s exactly. . . i mean, there ' s been. . . the. . . I mean, this does not. . .we're not to a point —What I 'm saying, not to beat a dead horse, but we're not really to a point where this Plan comes into effect for what the Appeal is . Because no. . .no building permits have been issued. And he can' t change the Modification. That ' s . . .you know, he just doesn' t have the power to do that. And what that ' s . . . that ' s. . . Attorney Henchy: What we ' re. . .what we ' re asking the Board to determine. . .What we 're asking the Board to determine is that the Modification to the extent it purports to modify the Special Permit has no legal effect whatsoever. And that ' s. . . that ' s precisely what we 've asked you to decide. And I went uh. . . through this in some great detail last time and don' t intend to cover all of that ground again. The reason I bring out the Plan is because I 'm trying to suggest to the Board that what was ruled upon in 1964 was in fact a particular Plan and that until such time as this Board takes some action to make a Finding that the Modification Agreement, so-called, um. . . is substantially in compliance with the intent and spirit of the By-Law and does not substantially detriment to the public good. The Selectmen have no authority to modify a portion of the Special Permit granted by this Board in 1964 . The Chairman: For us . . . for an advisory opinion, we don' t have the authority under General . . .uh. . .Chapter 40A Section S, we don' t have the authority to give you an advisory opinion on that end of it, and what you requested at the end. And we don' t have that authority. . .We have an authority if you come up before us . . . if he had issued a building permit, the twenty-sixth one say, and the. . .you appea. . .you know, to appeal his decision to -5-