Freedom — February 17, 2009 — The Berry Bay Condominium Association has won its case. In November 2008, the town’s Zoning Officer had issued the condo unit owners a cease-and-desist order banning winter use of the units. The Freedom Zoning Board of Appeal, at their meeting on January 27, overturned the Zoning Officer’s order and granted the applicant’s appeal.

History of the Condos
The unit owners – Rhonda Lane, Carlton Lane, and Stephen Ingham – first appeared before the ZBA on December 30, 2008 with an application requesting an appeal from an administrative decision under Article 5 Section 507. That “administrative decision” would be the Zoning Officer’s cease-and-desist order. The owners had received temporary relief from the order earlier in December from the Freedom Board of Selectmen, who voted 2-1 to vacate the order for a period of 45 days, ending on January 28, 2009, thus allowing the owners use of their property through the holidays.

But it was permanent relief from the order that the owners wanted, and that’s what they were seeking from the ZBA. The units they own were part of a recent condominium conversion. The entire property – a 2.7 acre lot, a .9 acre lot, and five buildings on Berry Bay – had been owned for years by Robert and Sharleen Houle. The Houles had gone through a successful condo-conversion process with the Freedom Planning Board that merged the two lots into one and condominiumized the buildings, thereby allowing the buildings to be individually owned and the land to be commonly owned.

The Planning Board decided on the condo-conversion application at their meeting on May 17, 2007 by applying a three-point test. The Board voted on each point of the test in turn. The first point, “that the proposed use reasonably reflects the nature and purpose of the existing nonconforming use,” passed 6 to 1. The second point, “that the proposed use is merely a different manner of using the existing nonconforming use,” passed 4 to 3. The third point, “that the proposed use does not have a substantially different impact upon the neighborhood,” passed 4 to 3.

The application passed the test – by a majority if not overwhelmingly – and the Planning Board approved the condo conversion. The Lanes and Ingham purchased the units, and were eventually issued the cease-and-desist order.

Section 507
The Zoning Officer’s order rests on Section 507 of the zoning ordinance. Just what is Section 507?

Titled “Expansion of Pre-Existing Non-Conforming Seasonal Dwellings,” it defines seasonal summer use as May 15 through October 14 and seasonal winter use as October 15 through March 1. It permits “all pre-existing non-conforming seasonal uses…to the same temporal extent as they have been used on a continuous and uninterrupted basis” and the “burden” is on the “property owner to establish the season or periods of the year in which the use has existed.” It also permits the expansion of “one (1) pre-existing non-conforming seasonal dwelling per lot” to year-round use.

What it prohibits is the expansion of temporal use of “multiple seasonal dwelling on one (1) non-conforming lot.” Which sounds very much like the situation with the Berry Bay Condo Association, which is comprised of five units on one non-conforming lot. The problem is, Section 507 wasn’t approved until almost a year after the approval of the condo conversion.

Section 507 came to voters in March 2008 from the Planning Board, whose meeting minutes seem to indicate that they took up the task of defining seasonal use immediately after and perhaps as a consequence of their approval of the condo conversion. The Planning Board had approved the conversion in May 2007; at their next meeting in June, Planning Board member – and condo property abutter – Barry Rollins said that Board’s approval “set a bad precedent and is bad for the town.” Planning Board member Anne Cunningham said she had researched other towns’ ordinances regarding condo conversion and felt that “Freedom needs to update its ordinance.” Planning Board Chair Paul Dorian stated that he wanted the board to review proposed changes that were being drafted by town counsel and aimed to “get the issue addressed by the end of the year.” And indeed, by March 2008, the amendment was presented to voters, who approved it by ballot vote.

Is it the Use or is it the Septic?
Looking over the condo conversion decision, it is difficult to determine just where the rub is. Is it in a change of use (if, indeed, any change of use occurred, during either the condo conversion or the sale of the units)? Or is the problem to be found underground, in the property’s septic systems?

Meeting minutes all along – from the conversion application’s first appearance before the Planning Board in October 2006 through the Planning Board’s approval of the conversion in May 2007 – indicate a concern about the property’s septic systems. The discussion continued at January’s ZBA meeting. One of the property’s abutters, Barry Rollins, stated to the ZBA that he felt “there is a serious problem with the septic” and he wanted the board to “deal with the septic.”

Meeting minutes, however, also show that “change of use” was an issue from the very beginning. In October 2006, when Houle first appeared before the Planning Board with his attorney, Randy Cooper for an informal discussion, Rollins stated “that his problem with the project had to do with a change of use.” (In addition to being a property abutter, Rollins is a member of the Planning Board; meeting minutes show that he recused himself from Planning Board discussions and votes; he spoke only as an abutter.)

At that October Planning Board meeting, the applicant countered that “this is not a change in use, just a change in ownership.” At a later meeting, in April 2007, Houle said “two of the [five] units can be permanent,” but later in the same meeting, Houle said that three units–A, B, and E, “are winterized.” And finally, at the May 2007 meeting when the condo conversion was approved, town attorney Peter Malia “asked the applicant if they are going to make seasonal cottages as seasonal condominiums” and Cooper responded that “this application does not address that as his client is only looking for a condominium conversion.” Cooper also stated that “there is not a definition of seasonal is the [Freedom] zoning ordinance.” And he was correct; at the time, the Freedom Zoning Ordinance did not define “seasonal.”

The ZBA Decision
At their January meeting, the ZBA considered both issues, the septic and the seasonal use.

The ZBA had continued the application from their December meeting because they needed time to review information, specifically, the Planning Board’s approval decision and the Planning Board minutes leading up to that approval, state subdivision and septic approvals, condominium deeds, and the Berry Bay Condominium Association covenants.

They also needed time to confer with town counsel. They had asked the attorney if the ZBA had the right to hear this case and had been told that they did. (The attorney’s opinion is not a public document but was referenced in January’s draft meeting minutes by ZBA members.) The attorney’s opinion also states that “ordinance [507] went into effect later [than the condo-conversion approval] and does not apply to this applicant.”

The ZBA was asked at January’s meeting by Rollins to consider the property’s septic systems. They determined that the septic was not relevant to their discussion because the applicant was appearing before them with a Section 507 concern; furthermore, the cease-and-desist order stated a violation of seasonal use and made no mention of septic. The ZBA suggested that Rollins take his septic concerns to the town’s Health Officer. ZBA Chair Scott Lees said in a recent interview that septic and water quality are “always a concern” to his board; however, in this particular application, the applicants were seeking relief from a decision made by the town and septic wasn’t part of that decision.

Having put the septic issue aside, the ZBA considered the question of seasonal use. They revisited the Planning Board’s May 2007 votes on the three-point test and decided that since the “three-part test was approved by a majority of the Planning Board,” they would grant the appeal of the applicant. As ZBA Chair Scott Lees said in the interview, “we weren’t going to overturn what the Planning Board had done.” What they did overturn was the Zoning Officer’s decision.

There is a 30-day appeal period; the Freedom Select Board has stated that it does not intend to appeal the ZBA decision. The way things stand now, the owners are allowed year-round use of their condo units. What will happen with any future condo-conversion applications? Any such application would have to appear before the Planning Board, whose decision making would be informed by Section 507.

[Cynthia Davis is a contributing writer]