The Planning Board voted Monday to approve a motion to reconsider a vote it had just taken against a proposal to build a home at 69 Hayward Street due to the applicant’s unique circumstances. After hearing additional details, members voted to continue the hearing until the Feb. 9 meeting.

Custom Nest Builders, Inc. requested the board’s consent to submit a renewed/repetitive petition to the Board of Appeals to develop a home on the property that would replace a house that had burned down in a fire.

On April 9, 2023, an elderly couple and their dog died in a two alarm fire. Seldon “Don” MacNeil, a veteran who was active in veterans affairs, and Judith MacNeil died in the blaze.

Patel explained that the applicant reached out to the Board of Appeals last summer for a variance, which was denied in a 3-2 vote. In this instance, four votes were needed for the plan to pass, she said.

“The board did not agree with the dimensions and the setback requirements that they were requesting at that time,” she said.

She noted that an applicant cannot present a new proposal for two years unless eight Planning Board members approve of advancing the plan. The Planning Board consists of nine members.

Plan changed after denial

The previous plan proposed an L-shaped structure, A new plan removed the leg, making the new house 40 feet by 22 feet.  The previous home was 565 square feet.

Rick Goodreau of United Consultants represented the applicant. He explained that two Board of Appeals members expressed concern about the side setbacks. The zoning requires homes to have 25-foot setbacks. But in this case, the property is only 50 feet across, preventing anything from being built. It extends back 91 feet.

Removing the 8-foot by 14-foot leg allowed the setbacks to be increased from 10 feet to 14 feet in the new plan, he said. The previous home had side setbacks of 11.4 feet. It is a preexisting nonconforming lot created in 1933, according to Goodreau, before town zoning was adopted.

The property actually contains four lots that are roughly 25 feet in width, he continued. Two have frontage on Hayward Street, while the other two in the rear have frontage on Old Town Road. The two rear lots are not contiguous to the two lots proposed for the home.

Under the state’s Chapter 40A law, developers proposing redevelopment of a property that has a preexisting nonconforming use could apply for relief if the land equaled 5,000 square feet. This plan misses that requirement by 550 feet, Goodreau said.

Under the town bylaws, the applicant is requesting variances for the lot area, frontage, side setbacks and front setback, he added. The rear setback requirement of 20 feet was met by the new plan.

Patel pointed out that the applicant did not file its application within 12 months of the home being destroyed in the fire. This is why zoning relief and a special permit now are necessary.

Parker Happ, who later called for the reconsideration, said the homes in that area along Lake Maspenock tend to be smaller in scale and have unconventional boundary lines.

“The family died in the house, you know,” he added. “I can’t blame them that they didn’t get paperwork done in 12 months.”

Lucia Lopez noted that the applicant has made positive changes. She said it would “potentially make sense” for the Board of Appeals to review the new plan.

Peter Edwards, the listing broker for the property, represented the family overseeing the estate.

“Unfortunately, they did miss the 12-month time period where there would have been a little bit more leeway for rebuild after the fire,” he said.

The developer chosen has “tastefully” developed other homes in the lakefront community, he added.

“This is the first time this has ever happened since I’ve been on the Planning Board,” said Benson, a member for more than six years.

The board voted 6-2 to approve the submission of the renewed/repetitive petition to the Board of Appeals. Vice chair Matthew Wronka and Amna Diwan voted against it. Because eight votes were needed for this to pass, the request failed.

Happ requests reconsideration

Immediately after the vote, Happ made the unprecedented move of calling for a motion to reconsider the proposal and reopen debate. It was approved 8-0.

Said Benson: “That’s never happened.”

Peter Mimmo said the previous vote was “elevating form over substance.” He explained that the home would add to the community.

“We’re not building a mansion down by the lake here,” stressed Edwards. “We’re replacing a house that burned down with a small house to improve the neighborhood.”

The requirements to remove footage are “absolutely asinine,” he added.

Wronka noted that “there is explicit context” under with the Board of Appeals is allowed to consider variances. If it is sent back there, he wondered if it would change its opinion.

Elyse Mihajloski, the ninth member, joined the meeting at 8:47 p.m. Patel said she would not be able to vote unless the board explained the case to her.

Benson recapped the details of the vote and the reconsideration request. He asked if the vote for the reconsideration could be taken up at the next meeting to allow Mihajloski to review the meeting recording. The board voted unanimously to continue the public hearing.

“This is a family that has experienced significant loss,” stressed Happ. “And this helps them to move on.”