Town counsel told the Zoning Board of Appeals on Thursday that a recent variance the board granted for properties on Dunwood Drive appears procedurally defective because it granted relief from an entire overlay section rather than from measurable, specific dimensional standards.

The counsel said the board’s authority under town law is limited to granting area variances — measurable, quantitative relief such as a reduced setback or increased lot coverage — and should not amount to a wholesale exemption from a comprehensive overlay provision. “The relief that was given must be measurable and specific,” the counsel said when reading a memorandum into the record.

Why it matters: the memorandum warns that a variance written as a blanket waiver of an overlay section can functionally operate as a legislative rezoning, a power reserved to the town board, not the ZBA. That interpretation could leave the earlier decision vulnerable to legal challenge and could limit the planning board’s ability to review site-plan and environmental mitigation measures.

What the memo says and options for the board

The memorandum, distributed to board members, identified the legal deficiency and set out two principal options: attach specific, measurable conditions to a building permit (an approach the building inspector could pursue) or have the ZBA reverse or modify its earlier determination and specify quantifiable standards and conditions, preserving planning-board jurisdiction for mitigation and site-plan review.

Town counsel outlined the procedural steps to modify or rescind a prior board decision: a member who voted with the majority on the original vote must move to rehear, the motion must be seconded, notice and an opportunity to be heard must be provided to interested parties, and the matter would return to the public-hearing stage for reconsideration.

Board members asked procedural questions and sought time to review materials. The counsel said the planning-board attorney had reviewed the decision and shared the view that the language used in the variance could be read to divest the planning board of jurisdiction. The counsel said he would circulate the memo and time-stamped video excerpts of the planning-board meeting and the ZBA’s original discussion.

Next steps taken by the board

The ZBA voted to place the Dunwood Drive matter back on its Oct. 21 agenda for continued discussion and potential motion to rehear. The board’s motion to put the item on the Oct. 21 agenda was moved, seconded and approved; the counsel said he would notify the applicant and the applicant’s attorney. Counsel also told the board members the motion to rehear must be initiated by a member who voted in the majority on the original decision (the counsel named the three members who comprised the majority on that vote).

What’s not decided

No rehearing was authorized or executed at the meeting; the board voted only to continue the item on the next agenda so members could review the counsel’s memo, replay the relevant planning-board video and consult before deciding whether to move to rehear or to pursue alternative remedies.

Ending

Town counsel will send the memorandum and related video time stamps to board members and formally notify the applicant that the ZBA will revisit the Dunwood Drive variance at its next meeting. The counsel said the board should aim to resolve the procedural issue promptly to avoid uncertainty for the applicant but also urged members to take the time needed to reach a legally sound decision.