The unanimously agreed to rat its Wednesday night meeting at .
What began as a 38-unit senior community and evolved into an all-ages development of only 22 units over more than four years of deliberation finally by a vote of 4-3.
Attorney Joseph O'Neill, representing Mosberg, appealed to the ZBA to give the project another hearing.
O'Neill argued that the site plan for what's called 700 Mountain Way has been revamped. The number of units was cut to 20, which the lawyer said would preclude the need for steep slope variances, which gave some board members pause.
He also argued that the expert hired by residents who opposed the project to argue their case failed to provide support for some of the conclusions offered in his testimony before the board of adjustment.
O'Neill said the developer had every right to ask for and expect a re-hearing for the application.
"We are asking, before the [official ZBA] adoption of the resolution [to deny the application], to reopen the matter for reconsideration," he said.
O'Neill referred to a 1973 U.S. Supreme Court case in which the high court ruled that "agencies and boards do have the opportunity to reconsider decisions."
"We think there are certain grounds given the testimony to ask for the opportunity to show you, again, the merits of this application," he said.
Asked for his opinion, ZBA attorney George Johnson said that the board is permitted to reconsider cases.
"Mr. O'Neill is correct," he said. "There is a 20-day period in which you can ask for reconsideration. All you need is a simple majority vote. A bylaw passed several years ago gives them the right to make an appeal to recosnider before a resolution is adopted. Case law says the board always has the ability to go back and determine whether it made the correct decision."
Chairman Robert Iracane queried the board about its feelings regarding the prospect of taking up the case of 700 Mountain Way again.
Every member stated that he or she was comfortable with re-hearing the case.
"I like the new application," said Amil Shah.
"I don't think anyone should be denied the right to be re-heard," Brian Kelley said.
Members of the public in the audience—which included Mountain Way area residents opposed to the plan—were not given a chance to weigh in on the matter.
The ZBA voted, 6-0, to reconsider the project.
Iracane then explained that a re-hearing would be "a continuation of what went before—re-opening the same application with some changes and a new site plan. We'll go through all the motions just as we did last time."
Rick Jilleba, who heads , an organization of residents committed to preventing 700 Mountain Way from moving forward, asked the chairman if a reconsideration would permit residents to speak against the application and to offer testimony from their own expert. Iracane said yes.
A date for the case to continue deliberations will be set in the near future, the chairman said.
Asked about how he felt about the case being re-opened, Jilleba told Patch that residents suspected that the June denial would be reversed.
His objections remained, he said.
"The reduction of the number of units from 22 to 20 is de minimis," he said. "Nowhere in any of our testimony did we say that less townhouses is OK. We stand by the fact that the master plan reserves that area for single-family homes. As the applicant has the right to re-try, we have the right to stay with it and continue to object, and we will.
"Preserve Mountain Way will preserve."
In another case, the ZBA unanimously voted to allow use variances to . The multi-tenant site will house a dance studio, a martial-arts gym and a spa.
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