ZBA finds in favor of town in Bernier addition snafu
Date: 9/17/2012
By Chris Maza
chrism@thereminder.comEAST LONGMEADOW — Richard and Kimberly Bernier are running out of options as they attempt to reverse a decision by Building Inspector Daniel Hellyer.
Because of a scheduling snafu by their lawyer, a request for a change in variance may be their last chance to keep an addition they have been told to remove despite the fact that the town had previously approved it.
The Berniers have now twice gone before the Zoning Board of Appeals (ZBA) since Hellyer instructed them to remove an addition to their home because of its proximity to a paper street and conservation land. However, they alleged that Hellyer was the one who approved it in the first place.
Because of the existence of the paper street, to which another party has rights, a variance had been issued when the Berniers' home was originally built, which stated that they could not build within 18 inches of the paper street.
According to Richard Goldman, the Berniers' attorney, Hellyer, who visited the site multiple times, did not make them aware of the variances, told them a building permit was not needed and even approved the foundation. It was not until the Berniers submitted a request to install a pool that Planning Director Robyn Macdonald was made aware of any issues regarding the property.
Hellyer did not deny Goldman's accusations and stated he had lost the site plans submitted by the Berniers.
Originally appearing before the ZBA on July 30, the Berniers were told that Hellyer acted inappropriately, however, board could simply overturn the decision without more information, including input from abutters.
The matter was continued to the Sept. 10 meeting at which the Berniers appeared, however, Goldman failed to attend, later stating that he had did not have the correct date and time for the meeting, according to Macdonald.
Due to Goldman's absence and subsequent inability to present any further documentation, the ZBA determined that it would have to uphold Hellyer's decision, with stipulations.
"The board conditioned this decision upon the fact that if they did receive a request to modify the variance and the appellant provides documentation prior to Sept. 20 they will reverse the decision and continue with the application for appeal," Macdonald said.
Goldman told Reminder Publications that he has already filed the paperwork for such a request and that he plans to argue the matter at the Oct. 22 meeting.
If the request fails, he said, there are few other options for the Berniers.
"This is the last course of action short of filing action in housing or superior court," Goldman said.
