Home Construction OK'd Despite Braintree Residents' Objections

Construction can move ahead on a Myrtle Street home after the Zoning Board of Appeals voted unanimously Wednesday night that an appeal lodged by a couple living across the street was filed late.

Neighbors of the two-and-a-half-story home at 38 Myrtle St. argued that Braintree's building inspector issued a permit and construction began last year on an under-sized lot despite a variance that lapsed long ago.

But the board did not take up those objections, instead declaring that the appeal filed in September by Matthew and Christine McIntyre came in after a 30-day deadline had passed.

"I don't think we even reached the issue of whether the [building] permit was issued late or invalid," Board Chair Stephen Karll said. "Should you appeal it, I leave it for a court to decide."

The McIntyres said after the decision Wednesday that they were weighing whether or not to take the dispute to land court. 

They and a number of other neighbors have been challenging the idea of a new home on the lot since last spring, when the former owners sold the property to Braintree-based Mento Enterprises, Inc.

The lot is located in a Residence B zoning area, requiring at least 15,000 square feet, along with 100 feet of width. The lot does not meet those conditions and therefore required an active zoning variance prior to construction.

However, the McIntyre's appeal claimed that state and case law establish that because a variance issued nearly 30 years ago was not used within one year it expired.

That argument was made by residents before the zoning board back in November. Members at that time continued the petition until December to examine the facts and then to Wednesday night because of weather.

Residents on Wednesday night were limited in their remarks because the public hearing on the petition was closed in November, Karll said, adding that there was nothing else the board could do because of the lapsed appeal deadline.

The McIntyres disputed that as well, saying town officials gave them incorrect information on the appeal deadline, and that the permit application they saw from August 2013 did not contain a date.

They said a follow-up visit to the building department yielded no results, that personnel there told them the permit was not available. The abutters also said they never saw the building permit attached to the partially-complete home, as required by law.

The permit on file at the building department contains an issuance date of Aug. 13. 

In a memo to Mayor Joseph Sullivan about the case, Town Solicitor Carolyn Murray said that based on Building Inspector Russell Forsberg's advice she encouraged the McIntyres to file by Sept. 27, even though by then the appeal window had actually passed. 

"There are cases that show even though you were misinformed, it was your responsibility," Karll said. "It's your obligation to check the timeframes."

Joe and John Mento, of Mento Enterprises, said after the decision that they are only trying to build a nice house in a nice neighborhood. They said if the McIntyres were to pursue the issue further in court, case law is on their side.

"The town made the right decision," Joe Mento said.

See more about the dispute in this Braintree Patch article.