The ZBA was given notice of the suits last week that name both the town and individual board members involved in the cases as defendants.

In one of the suits filed with the state’s land court, plaintiff Margaret LeClerc is seeking a reversal of the board’s decision that a pair of lots had been merged for zoning purposes.

While Inspectional Services Director Richard MacDonald determined in a letter to the applicant that lots at 8 and 12 Prence Street had contained a single lot under one common owner, LeClerc and her attorney, Joseph Coppola refuted such claims throughout two public hearings in September and January. In their decision, the board upheld MacDonald’s determination.

In 1996, LeClerc gained a one-third interest in 12 Prence Street after owning 8 Prence Street for seven years. In August 1997, she transferred title of the latter property to the CLBJ Tavenner Nominee Trust for her children and three months later obtained the remaining two-thirds of 12 Prence Street in a court settlement.

In their March decision, the ZBA stated it was clear LeClerc never held title to both properties at the same time; it cited a previous court case that indicated the transfer of the land to the trust was “simply a variant of a ëchecker boarding’ maneuver” for development purposes and not valid for grandfathered protection.

In paperwork for the civil suit, the plaintiff claims the ZBA misapplied the law regarding the merging of properties and did not heed significant facts presented during the public hearings. LeClerc is asking the court to reverse and annul the ZBA’s decision and find that 8 Prence Street is entitled to grandfather status and exempt from town zoning requirements.{sidebar id=1}

Coppola said on Wednesday that it was his understanding that the “checker boarding” cited by the ZBA was commonly done by putting the properties in two different names, but that these names were a front for one person.

“Here, that is not the case because the trust is on record and the beneficiaries designated,” he said. “The trust controls and under the trust, the beneficiary is not Margaret LeClerc, but her children.”

At no time, added Coppola, did LeClerc hold titles to both properties.

In May of last year, Town Counsel Robert Troy offered his opinion on the zoning status of the lots to MacDonald in a brief that stated the lots had merged between the time LeClerc obtained the one-third interest in 12 Prence Street and the time she transferred ownership of 8 Prence Street to the trust. With the merger, it was Troy’s opinion the lots were no longer available for development as single lots.

In his brief, Troy also discussed the issue of “checker boarding” schemes to avoid having two adjacent lots being held by one person and the effort of appellate courts in two separate cases to invalidate such efforts.

On Thursday, Troy said that while he respects Coppola’s disagreement with his decision, he believes he is correct in this matter.

In the other civil suit filed last week against the town and the ZBA, resident Stanley Merry is seeking a reversal of the special permit denial he received at the same March administrative meeting.

At that meeting, the board voted 3-2 to deny Merry’s request to add a 12-foot by 24-foot three-season porch to his existing garage at 3 Pine Point Place, extending an existing, non-conforming setback.

In their decision, the ZBA noted that while the proposed addition was not a substantial increase in the non-conforming status, the majority felt that the non-conforming porch addition would be more detrimental to the neighborhood based on their own site visits.

In the paperwork for Merry’s civil suit, it claims the ZBA exceeded its authority in denying the permit and refers to the board’s decision as “unreasonable,” “whimsical” and “capricious.”

Merry’s attorney, Paul Driscoll, said that he could not connect with his client to allow comments on the case by press time.

Troy said that while the ZBA’s decision was obviously a close vote and something the court will likely look at, he felt they acted judiciously.

“They found that the addition was not a substantial increase, and that is favorable to the plaintiff, but found, within their [authority], that it was detrimental to the neighborhood,” he said. “It’s a two part test. It appears the board made their decision supported by evidence and their decision will probably be respected by the court.”{sidebar id=6}