**ON POINT:** Zoning board of appeals chair richard hennessey makes a point during tuesday night’s hearing on the Point Nantasket LLC’s appeal of the planning board’s vote to reject the project at 839-845 nantasket avenue. [screencapture from hulltv.net]

By Christopher Haraden

A week after listening to three hours of testimony from the developer proposing a nine-unit project at the foot of Allerton Hill, the zoning board of appeals spent an additional three hours Tuesday night hearing from town counsel regarding the planning board’s unanimous rejection during the site plan review process.

The ZBA continued the hearing until Wednesday, September 2, when members will discuss The Point Nantasket Realty LLC’s plan for the property at 839-845 Nantasket Avenue and vote on whether to uphold the May 14 denial or send the project back to the planning board for further action.

Click here for the documents, drawings, and other information on this project

“Our charge tonight is very narrow. It focuses on how we got here in the sense of how we got to this planning board decision,” ZBA Chair Richard Hennessey said at the outset of Tuesday night’s hearing. “There is no room for public comment as it relates to what we are dealing with here tonight.”

The developer is proposing nine “residential cottages” connected by a common deck at the former Sunset Marine property, as well as a pavilion, boat ramp, boardwalk, and other amenities on approximately 3.28 acres.

The proposal calls for demolishing the existing structures, which have been boarded up and surrounded by fencing for years, and repairing the existing dock. The project is being proposed by Chris Reale of Hingham, who formerly owned the Paragon Boardwalk property at Nantasket Beach, along with Hingham builder Tom Fleck, whose father once ran the boat yard at the site.

The planning board’s decision cited inadequate time “to properly evaluate the project” and asserted that the applicant had not provided enough information. In addition, the board said the developer did not provide a scale model of the project and refused to pay for peer review by consultants. Members also raised concerns “that the traffic condition primarily at the intersection of Fitzpatrick Way and Nantasket Avenue will be negatively impacted and create a dangerous roadway condition.”

Town Counsel Brian Winner represented the planning board and began his presentation by addressing the “elephant in the room” – how an administrative site plan review application could be denied for a project not requiring a special permit or variance.

“It’s kind of an unusual situation to ever be reviewing the denial of an administrative site plan decision that’s not attached to a special permit when it’s a by-right use,” Winner said, referring to a 1986 court case indicating that site plan review can be denied if the developer’s application is incomplete. “If the planning board didn’t have sufficient information, if it didn’t have time to review that information, it didn’t have a fair opportunity to perform its duties as elected members of the planning board to approve a project when it wasn’t in a position to make the findings necessary to do so.”

In a 20-page appeal, The Point Nantasket Realty asserts that “the planning board’s decision should be annulled” and that the board “engaged in improper procedure, had no legal or factual basis to deny approval, and failed to impose reasonable conditions.”

The appeal, written by attorney Adam Brodsky, alleges that “egged on by a small vocal group of opponents, the planning board, together with the design review board, engaged in a witch hunt seeking to, among other things, challenge the Building Commissioner Bartley Kelly’s zoning determination and reviewing the project for conformance with the Massachusetts Building Code, none of which falls within the planning board or design review board’s authority.”

At the August 11 hearing, Brodsky asserted that the board did not have grounds for denial. According to the appeal, the planning board “engaged in improper procedure, had no legal or factual basis to deny approval, and failed to impose reasonable conditions.”

During the hearing, Brodsky claimed that the planning board made “procedural errors” and denied that the development team had not provided adequate information to the board.

Brodsky also claimed that the board’s “allegation that they were not afforded sufficient time to review the project” is inaccurate. Brodsky advocated for the ZBA to send the case back to the planning board.

Separately, Reale filed an Open Meeting Law complaint on August 5 claiming that planning board member Abby Klieman improperly emailed other members about the project, constituting “deliberation” outside of a public meeting, which is prohibited.

As a remedy, Reale asked that the board “vacate” its denial, “which followed from deliberation conducted outside public view, and rehear the application on a properly posted record.” The planning board met in executive session last week about the Open Meeting Law filing and “litigation regarding the permitting appeal.”

Brodsky requested that the ZBA deliberate on the matter and vote Tuesday night, but Hennessey said members needed time to review the information provided during the six hours of hearings. The ZBA hearing was continued to Wednesday, September 2 at 7 p.m. at a location to be determined.

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