The Hudson Zoning Board of Adjustment met on June 26 to address a deferred equitable waiver request to complete a partially finished metal garage on Fairway Drive.
In the past, the garage received considerable opposition from neighbors due to its size and appearance. During the initial build-out, the unit was found to encroach upon side and front yard setbacks, leading to past opposition from the Zoning Board.
“The property is on a curve, so only a front triangle, if you will, a seven-by-nine triangle and two feet on the side are the encroachments we’re talking about,” explained Gottesman and Hollis attorney Elizabeth Hartigan. She added that the applicant received a permit for the initial concrete foundation. “In 2024, the foundation and the rebar was put down for the base of the garage and at that time the town came out, inspected it.”
The inspection claim was partially disputed by Zoning Administrator Chris Sullivan, who alleged that the foundation was “never inspected” beyond the rebar and a few elements of the base.
“The factors for an equitable waiver is: was it discovered too late? Was it an innocent mistake? The encroachment must not cause a nuisance, and there’s a high cost of correction,” said Hartigan, who claimed the situation met all necessary criteria. “This was a miscalculation by a contractor, not ignorance of the law or a failure to comply in bad faith.”
According to applicant Bradford Baker, the contractor doing the concrete work failed to follow the design. He also claimed to be unaware of the two-tiered permitting process.
“I’m just begging for mercy to see if we can’t do something about this,” said Baker, who wanted to avoid the high costs associated with repouring the foundation.
“In my opinion it sounds like he did basically everything right, with two little mistakes,” argued Board member Tim Lyko. “He didn’t fully read the permit, and he trusted a contractor. But he got the initial permit, and he got the survey to tell him where to put it right.”
This analysis was far from universal, and several abutters attended the meeting to express their continued disagreement.
“It’s basically a big Quonset hut,” said resident Rita Banatwala. “But my issue is the setback. The setback needs to be honored. The structure is 25 feet tall, so therefore eight feet, seven feet, it makes a difference when you’re walking on the street.”
She argued the encroachment should have been discovered earlier and that it was Baker’s responsibility to understand the permitting process before building anything. She also argued the building was “a huge nuisance.”
“What was said about the height of the building is important, because you’re really moving something that is 40-by-25-feet seven feet closer to the road, and that is significant,” said abutter Richard Speer. “I don’t think the cost is significant in this situation, it’s easily accommodated.”
Another abutter, Lynn Ashworth, worried the unfinished garage was already impacting property values.
“I can find a realtor who will tell you it very much does affect property value as to what you are located next door to,” she said. “I don’t believe it’s going to be all that beautiful once it gets done.”
“The Board represents the town, and it is well within its right to enforce the zoning laws of the town,” added resident Ed Thompson.
Board members extensively debated whether or not the waiver request would meet all legal requirements.
“What is the earliest that the applicant would have been able to discover this error?” asked Board member Tristan Dion.
As he had some preexisting knowledge on the topic, Selectman Dillion Dumont answered by saying it could not have been discovered before having a certified plot plan.
“There’s no way of doing a certified plot plan until it’s physically in the ground. There’s just not,” said Dumont.
Members agreed that if the problem had been caught earlier, it would have been less expensive to fix.
“I don’t think this was an innocent mistake,” said Board member Tim Lanphear. “I think what I’ve heard in testimony from the attorney as well as the owner is that at some point there was some information with this long delay before there was a foundation poured.”
Despite general agreement that it was “a hard case,” the ZBA eventually agreed that Baker should have researched the permitting requirements and caught the mistake ahead of time, as they voted to deny the equitable waiver four-to-one.
