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BOARD OF APPEALS
SPECIAL PERMIT A1 DECISION
TWO-FAMILY DWELLING
IN THE MATTER OF:
Applicant and Ann E. Beale and Raymond E. Beale, Jr.
Property Owner: 1 Accord Pond Drive
Hingham, MA 02043
Premises: 1 Accord Pond Drive
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 15443, Page 348
Plan References: Untitled site plan stamped
by Raymond E. Beale, Jr., P.E., P.L.S., dated
October 2, 2009
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals (the "Board") on the
application of Ann E. Beale and Raymond E. Beale, Jr. (the “Applicant”)
for a Special Permit A1 under § III-A, 1.2 of the Zoning By-Law (the
"By-Law") to allow an existing in-law apartment to be recognized as an
approved “specific type of use” at 1 Accord Pond Drive in Residence
District B pursuant to M.G.L. c.40A, § 9.
The Board heard the application at a duly advertised and noticed
hearing on December 17, 2014 in the Hingham Town Hall at 210 Central
Street. The Board of Appeals panel consisted of its regular members W.
Tod McGrath, Chairman, Joseph M. Fisher, and Joseph W. Freeman. The
hearing was conducted concurrently with a hearing on an application by
the same Applicants for a Use Variance from § III-A, 1.2 of the Zoning
By-Law concerning the same Premises. The Applicant personally appeared
to present the application. At the conclusion of the hearing, the Board
voted unanimously to issue the requested Special Permit A1 under §
III-A, 1.2 to maintain the two-family use of the property. The Board
also granted a withdrawal without prejudice of the Use Variance
application.
Throughout its deliberations, the Board has been mindful of the
statements of the Applicant and the comments of the general public, all
as made or received at the public hearing.
BACKGROUND:
The subject property is located at the corner of Accord Pond Drive
and Whiting Street. The lot consists of approximately 0.7 acres and
supports a residence constructed in 1961. In 2009, the Applicant
applied for and received a building permit to renovate a portion of the
dwelling. The approved plans called for a second kitchen to be
installed within the footprint of the existing single-family and an
attached garage. According to the Applicant, the renovation created
living space for extended family. The second unit was constructed in
accordance with the building permit, but without the benefit of any
relief from the Board.
On November 19, 2014, the Board opened an earlier hearing on a
separate application from the Applicant for a Use Variance from §
III-A, 1.2 of the Zoning By-Law to allow the existing in-law apartment
at 1 Accord Pond Drive in Residence B to continue as an allowed
variance use pursuant to M.G.L. c.40A, § 10.
The Applicant had requested a Use Variance based on the belief that
the Premises would not qualify for a Special Permit. Under § III-A,
1.2 of the By-Law, the Board may grant a special permit to allow the
"alteration and conversion of a Single-Family Dwelling containing at
least six rooms exclusive of hall and bathroom existing prior to March 10, 1941
to accommodate not more than two families, provided that the exterior
design of the structure is not changed from the character of a
Single-Family Dwelling (emphasis added)." The subject Premises was
constructed in 1961 and thus did not meet the date-based criteria of the
By-Law.
The Board discussed in detail whether the By-Law’s date-based
criteria were consistent with the uniformity requirements of state law.
M.G.L. c. 40A, § 4 provides that “any zoning bylaw that divides the
town into districts shall be uniform within the district for
each class or kind of structures or uses permitted.” (Emphasis added.)
The Board recognized the overriding state law principle of
uniformity: “The uniformity requirement is based upon principles of
equal treatment: all land in similar circumstances should be treated
alike, so that ‘if anyone can go ahead with a certain development [in a
district], then so can everybody else.’” SCIT, Inc. v. Planning Bd. of Braintree,
19 Mass. App. Ct. 101, 107 (Mass. App. Ct. 1984)(internal citations
omitted). The Board noted that in 2003 the Attorney General's office
specifically disapproved and deleted a date-based bylaw amendment in
Brookline that would have allowed conversion of attic or basement space
into habitable space only for properties that were in existence as of a
certain date. The Board further noted that in 2004 the Attorney
General's office approved a date-based bylaw amendment in Falmouth that
permitted conversion of a family dwellings to office space in
residential districts only for buildings in existence as of 1980, with
the Attorney General’s approval based on the expressed representations
of town officials that there had been little, if any, building in the
affected residential district since 1980 and thus, as applied, the bylaw amendment would not create an inconsistency with the uniformity provisions of M.G.L. c. 40A, § 4.
With respect to the present Application, the Board observed that if
the date-based criterion (i.e., the Premises being constructed in 1961
rather than 1941) was the only reason that the Premises would fail to qualify under § III-A, 1.2 of the By-Law, then the By-Law as applied
would violate the uniformity provisions of M.G.L. c. 40A, § 4 and thus
the date restriction could not be enforced consistent with state law.
The Board noted that the uniformity issue at hand was fundamentally
different from the principles associated with “grandfathering”.
Grandfathering allows a preexisting use to continue despite a subsequent change in regulations. On the other hand, § III-A, 1.2 of the By-Law allows a new use
to occur (occupancy by two families) when there is no such preexisting
use at the property. Thus, for two identical homes similarly situated
in the same zoning district, where one dwelling was built in 1941 and
the other built in 1961, and where neither home could accommodate two
families, the date-based criteria of § III-A, 1.2 would allow a new use
to be created today in the older home while simultaneously denying the
same new use to the home that was built after 1941. Such unequal
treatment violates the uniformity mandate of M.G.L. c. 40A, § 4 since
similar properties in the district would not be treated the same.
Accordingly, members then indicated to the Applicant that the Board
would consider a Special Permit A1 application pursuant to Section
III-A, 1.2 to allow a two-family use of the Premises. The hearing was
continued to December 17, 2014.
On December 17, 2014, the Board opened a hearing on a Special Permit
application by the same Applicant to allow an existing in-law apartment
to be recognized as an approved “specific type of use” at 1 Accord
Pond Drive in Residence District B pursuant to M.G.L. c.40A, § 9. The
hearing on the Special Permit proceeded concurrently with the continued
hearing on the initial Variance application.
The Board verified that the property complies with the other
standards of use specified in § III-A, 1.2 of the By-Law. According to
Assessor's records, the dwelling consists of 14 rooms and 7 bedrooms
where the By-Law requires a minimum of just 6 rooms. The property
retains the appearance of a single-family dwelling as the entrance to
the second unit is stepped back from the main portion of the house. The
Applicant also confirmed that there is adequate onsite parking. The
Board found that, absent the date-based criteria (Premises constructed
in 1961 rather than 1941), the Premises fully qualified for a Special
Permit under § III-A, 1.2 of the By-Law. Pursuant to the uniformity
provision of M.G.L. c. 40A, § 4, this finding “left the Board no discretion to deny the special permit application as submitted.” Forster v. Board of Appeals of Belmont,
2002 Mass. Super. LEXIS 83, 16 (Mass. Super. Ct. 2002)(holding that
the Dover Amendment, M.G.L. c.40A, § 3, compelled the Board to grant a
special permit to erect light poles even though the poles’ height
exceeded the applicable bylaw’s height restrictions).
At the conclusion of the public hearing, the Applicant requested to
withdraw without prejudice the initial application for a Use Variance.
FINDINGS:
Based upon the information submitted and received at the hearing, and
other information available to the Board, the Board has determined in
accordance with § I-F, 2 that:
- Use of the property as a two-family dwelling is in harmony with
the general purpose and intent of the Zoning By-Law because this is a
residential use in a residential district.
- The proposed use complies with the purposes and standards of the
relevant sections of the By-Law. The continued use of the property for
two families would not change the character of the dwelling from that
of a single-family dwelling, which consists of more than six rooms
exclusive of halls and bathrooms. The Board finds that the pre-1941
criteria contained in the By-Law is inconsistent with state law and is
not enforceable.
- The location is an appropriate place given the exterior
appearance of the structure remains consistent with other dwellings in
the residential area.
- There will be no adverse impacts associated with the continued use of the property as a two-family dwelling.
- There will be no hazard to vehicles or pedestrians created by the
conversion since there is a large driveway on the property that
provides adequate parking for both units.
- Adequate facilities exist to support the use, which has existed for five years.
- The proposal meets accepted design standards for the two-family residential use.
The Board also found that, as applied to these Premises, the
dated-based criteria of § III-A, 1.2 of the By-Law, which limited the
By-Law’s application to properties “existing prior to March 10, 1941”,
was unenforceable under Massachusetts law.
RULING AND DECISION:
Upon a motion made by Joseph M. Fisher and seconded by Joseph W.
Freeman, the Board voted unanimously (1) to GRANT the Special Permit A1
to maintain the two-family use of the property in accordance with the
representations made in the application and during the public hearing,
and (2) to GRANT the Applicant’s request to withdraw the Variance
application without prejudice.
This Decision shall not become effective until (i) the Town Clerk as
certified on a copy of this decision that twenty (20) days have
elapsed after the decision has been filed in the office of the Town
Clerk and no appeal has been filed or that if such an appeal has been
filed, that it has been dismissed or denied, and that (ii): a copy
thereof has been duly recorded in the Plymouth County Registry of Deeds
and indexed in the grantor index under the name of the owner of record
or is recorded and noted on the owner’s certificate of title.
For the Town of Hingham
Board of Appeals,
________________________________
Joseph M. Fishe
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