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TOWN OF HINGHAM
Board of Appeals
IN THE MATTER OF:
Applicant/Owner: Josiah and Alison Winslow
8 Highview Drive
Hingham, MA 02043
Applicant’s Agent: Anthony T. Panebianco, Esq.
Drohan Tocchio & Morgan, PC
175 Derby Street, Suite 30
Property: 8 Highview Drive, Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 51070, Page 36
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals (the "Board") on the application of Josiah and Alison Winslow (collectively, the "Applicant") for an Administrative Appeal of the Local Building Inspector’s determination, dated December 30, 2020, that a health club as defined in § VI of the Zoning By-Law (the “By-Law”) is being operated on the premises at 8 Highview Drive in Residence District a is outside the scope of home occupations under § III-A, 1.8.4, 1.8.6 and/or 1.8.7 of the By-Law.
The Board opened a hearing on the application at a duly advertised and noticed public hearing on February 16, 2021 via Zoom as an alternate means of public access pursuant to an Order issued by the Governor of Massachusetts, dated March 12, 2020, Suspending Certain Provisions of the Open Meeting Law. After consideration of public comment, the Board continued the hearing to a subsequent session held on March 16, 2021. The Board panel consisted of regular members Robyn S. Maguire, Chair, and Paul K. Healey, and associate member Michael Mercurio. The Applicant was in attendance during the hearings and represented by Attorney Anthony T. Panebianco, Drohan Tocchio & Morgan, P.C. The Board was assisted in its review by Special Real Estate Counsel, Susan C. Murphy, Esq., Dain, Torpy, Le Ray, Wiest & Garner, P.C. The Building Commissioner, Michael Clancy, and Building Inspector, Bob Egan, also attended the hearing. At the conclusion of the proceedings, the Board voted unanimously to uphold the Building Inspector’s determination, dated December 30, 2020.
During the hearing, the Board heard substantial testimony both in support and in opposition to the 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.
The subject property consists of approximately 19,000 SF of land improved by a single-family dwelling and a garage attached by way of a breezeway. The Town received a complaint on or about December 14, 2020 that the home based gym operated from the property generated negative noise, traffic, and parking impacts on the neighborhood in violation of the Zoning By-Law. The Building Department conducted inspections of the property and found that the homeowners were operating a health club within the newly constructed garage and on exterior portions of the property, including the driveway and lawn areas. A local building inspector determined that the use as operated was not permitted under the By-Law and issued a Cease and Desist Order on December 30, 2020.
The Zoning By-Law allows certain accessory uses, including home occupations, by-right in residential districts in conjunction with a principal Single-Family Dwelling or Two-Family Dwelling. Section VI of the By-Law includes the following definition of a “Home Occupation”:
An accessory use involving the production of goods or services, the giving of lessons for compensation, or the performance of custom work of a domestic nature conducted from a dwelling by a resident thereof and which does not change the dwelling’s residential character.
Pursuant to Section 1.8.6 of the Zoning By-Law, a “customary home occupation” may be conducted by a resident on the premises as an accessory use in conjunction with a single-family dwelling. Section III-J of the By-Law further governs accessory uses. Accessory uses “shall be those uses that are customarily incidental to and located on the same lot with a principal use…” (Section III-J.1), “shall be clearly incidental and secondary to the primary use (Section III-J.2.c) and “shall not alter the character of the premises on which they are located or impair the neighborhood” (Section III-J.2.d).
The Applicant represented in the application and during the hearings that home based gym was relocated to the property from a commercial space at the outset of the Covid-19 State of Emergency when commercial health clubs were shut down. The Applicant represented that the personal training services conducted onsite are offered between the hours of 7 AM to 7 PM to 1-3 clients per class (although submissions by an abutter at the hearing evidenced more than 3 clients on the premises at certain times). A number of these clients expressed support for the Applicant’s business and the Administrative Appeal. The Board also heard substantial public comment from direct abutters and those in the neighborhood about the intensity of the business being operated on the property, including evidence from the Applicant’s own social media postings and visible from the abutter’s property, and the negative impacts associated with the service. These negative impacts include traffic volume and safety impacts and related overflow parking concerns. Neighbors also described significant noise disturbance from outdoor services that include shouting of instructions and amplified music. Indoor services also result in vibrations from use of the gym equipment.
FINDINGS and DECISION:
Upon a motion made by Paul K. Healey and seconded by Michael Mercurio, and based upon the information submitted and received at the hearings, and the deliberations and discussions of members during the hearings, the Board voted unanimously to:
Uphold the Building Commissioner’s determination, dated December 30, 2020, as the Personal Training Services operated on the Property alter the character of the premises at 8 Highview Drive and impair the neighborhood in violation of the Additional Requirements under Section III-J, Subsection 2.d of the By-Law in that the Services create negative noise, vibration, traffic, and intensity impacts. The Administrative Appeal is therefore DENIED.
For the Board of Appeals,
Robyn S. Maguire
April 9, 2021