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TOWN OF HINGHAM
BOARD OF APPEALS
FINDING PURSUANT TO M.G.L. c. 40A, § 6
IN THE MATTER OF:
Applicant and Ajay and Rachel Sadhwani
Property Owner: 94 Otis Street
Hingham, MA 02043
Premises: 94 Otis Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 43606, Page 202
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals on the application of Ajay and Rachel Sadhwani (“Applicants”) for a Variance from §IV-A of the Zoning By-Law and such other relief as necessary to add a third bay to a preexisting nonconforming garage with a rear yard setback of 10.6' where 15' is required in Residence District A. The third bay and a new mudroom will connect the nonconforming garage to an existing single-family dwelling at 94 Otis Street, creating a new nonconformity for the dwelling.
A public hearing was duly noticed and held on Monday, February 24, 2014 at the Town Hall before a panel consisting of regular members Joseph W. Freeman, Chairman, W. Tod McGrath, and Joseph M. Fisher. Brad Pierce from A. Kearney Architects and Sandy Forsythe from Michael Handrahan Remodeling, Inc. represented the Applicants. Rachel Sadhwani was also in attendance.
BACKGROUND:
The subject property consists of approximately 51,550 SF and contains a single-family dwelling, detached garage/cabana, and pool. A portion of the preexisting, nonconforming detached garage is located within the rear yard setback. The Applicants propose to attach the garage to the existing dwelling by way of a third bay and a new mudroom. All new construction will conform to the dimensional requirements of the Zoning By-Law.
DISCUSSION:
The Applicant represented that the detached garage was constructed prior to the adoption of zoning. Thus, when the Town enacted its Zoning By-Law, the garage became a preexisting nonconforming structure.
Since the garage on the lot predates the enactment of the Zoning By-law in 1941, it is covered by the protections of M.G.L. c. 40A, § 6, first paragraph, which states (in part):
... a zoning ordinance or by-law...shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure ... to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner... Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
When read together, these portions of the statue provide that changes to nonconforming structures may be permitted if (1) the extensions or changes themselves comply with the by-law and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure.
The Board found that there would be no increase in the extent of the nonconforming use of the structure. The portion of the detached garage located within the rear yard setback will continue to serve as a garage, though the "use" of the structure as defined in the Zoning By-Law will technically change from "Accessory Building" to a "Single Family Dwelling" since it will be attached to the existing house by way of the proposed construction. And as noted above, the proposed new construction will conform to the dimensional requirements of the Zoning By-Law.
The Board also determined that the change in use from Accessory Building to Single Family Dwelling resulting from the proposed extension to the preexisting nonconforming garage would not adversely impact or be a detriment to the neighborhood. For these reasons, the Board finds that the proposed construction could be permitted by right pursuant to M.G.L. c. 40A, § 6 and would not require a variance. Accordingly, the Applicant filed a written request to withdraw the variance application without prejudice at the hearing.
During the course of the hearing, the Board of Appeals members also had a lengthy discussion on the applicability of Zoning By-Law §III-I Nonconforming Uses and Structures or the so-called Hatfield Amendment to the resulting Single Family Dwelling. Zoning By-Law §III-I, subsection 2, states:
…the alteration of, addition to, reconstruction of, extension of, or structural change in an existing nonconforming Single or Two-Family Dwelling shall not be considered the extension of a nonconforming use, provided that: A. the Single or Two-Family Dwelling conformed in all respects to the Zoning By-Law in existence at the time of its initial construction; and, B. the alteration of, addition to, reconstruction of, extension of, or structural change in the nonconforming Single or Two-Family Dwelling does not further reduce the minimum linear measurement of the existing nonconforming dimensions.
Under the Zoning By-Law the garage is considered an accessory structure and is not afforded the same protection as a Single or Two-Family Dwelling. The Board also determined that the Single Family Dwelling that would result from the proposed construction will not "conform in all respects to the Zoning By-Law in existence a the time of its initial construction," or following construction of the proposed third garage bay and mudroom. Therefore the preexisting nonconforming rear yard setback is not protected by the Hatfield Amendment and cannot be extended under §III-I. This determination concerning the Hatfield Amendment is integral to the Board’s finding that the project would not be substantially more detrimental than the existing nonconforming use to the neighborhood.
FINDINGS AND DECISION:
For the reasons set forth hereinabove, the Board voted unanimously as follows:
(1) To grant the Applicant’s request to withdraw without prejudice the application for a rear yard variance;
(2) To make a finding pursuant to M.G.L. c. 40A, § 6 that the proposed construction would not be substantially more detrimental than the existing nonconforming use to the neighborhood, provided that such work proceeds in accordance with the plans and representations made by the Applicant to the Board; and
(3) To make a finding that, for purposes of Zoning By-Law §III-I, subsection 2, the Single Family Dwelling resulting from the proposed construction will be deemed not to have conformed in all respects to the Zoning By-Law in existence at the time of its initial construction.
This decision shall not take effect until a copy of the decision, bearing the certification of the Town Clerk that twenty (20) days have elapsed since the decision has been filed in the office of the Town Clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is recorded with the Plymouth County Registry of Deeds and/or the Plymouth County Land Court Registry, and indexed in the grantor index under the name of the record owner or is recorded and noted on the owner’s certificate of title.
For the Board of Appeals,
___________________________
Joseph M. Fisher
March 25, 2014
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