TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicants/Appellants: Stan and Susan Cox of
Margaret and Constance Coleman of
Christine Cadegan of
(hereinafter referred to jointly as the “Appellants”)
Concerning the Premises at: 14R
Owners of Premises: Mike and Beth Davis
Title Reference: Book 32200, Page 161-162
SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals on the application/appeal of Stan and Susan Cox, Margaret and Constance Coleman, and Christine Cadegan, being several abutters of the property located at and known as 14R Friend, which is located in the Residence B zoning district. The appellants assert several challenges to the Building Commissioner’s issuance of a building permit dated
A public hearing was duly noticed and held on
BACKGROUND:
In 2007 the Appellants and the Owners were before the Zoning Board of Appeals regarding this Premises and the Appellants’ challenge of a building permit which had been issued with regard to a proposed new structure. In the 2007 matter the Zoning Board of Appeals, consisting of the same panel as in this new matter, was not unanimous in its Decision, and the issues raised in the 2007 hearings are now pending in a judicial appeal in the Land Court (Cox et al v. Davis, et al., Docket No: 07 Misc. 357136).
In recognition that the parties, the Premises, and several of the arguments raised by the Appellants are the same as those present in the 2007 matter, and in recognition that the Zoning Board consists of the same Members, each of whom confirmed their memory of the details of the 2007 hearings, the parties agreed that those facts and arguments presented in the 2007 hearing, and which are relevant to the current issue before us, can be considered by the Zoning Board of Appeals, and incorporated in the Board’s Decision on this new matter.
The Premises is non-conforming in that it lacks street frontage, and the existing structure is non-conforming in that it encroaches into the required yard setbacks.
In
The appellants challenge the issuance of the Building Permit asserting the following arguments:
(1) that the scope of work authorized by the Building Permit constitutes an expansion of the existing dwelling structure, with components not in the existing structure, and that zoning relief was required prior to the issuance of the Building Permit,
(2) that there was continuous non-use of the existing dwelling for more than two (2) years and that under Section III-H, 4. of the Hingham Zoning By-Law the permissible non-conforming use/structure terminated such that the Owner is not entitled to a Building permit as a matter of right,
(3) that the existing structure is not a lawfully pre-existing non-conforming structure and/or was constructed unlawfully and is therefore not entitled to the benefits conferred upon lawfully pre-existing non-conforming structures with respect to alteration and/or extension of such non-conformity,
(4) that the Premises does not conform to applicable septic disposal requirements, and
(5) that the process for the issuance of the Building Permit is flawed in that it provided the appellants, as abutters, with no notice of the application, and that in issuing the Building Permit the Building Commissioner overstepped his authority and usurped the provisions of the Zoning By-Law and the authority of the Zoning Board of Appeals as the special permit granting authority regarding alterations and extensions of non-conforming structures.
The Zoning Board of Appeals reviewed several photographs of the existing dwelling structure as it existed prior to the commencement of the work in question, during the construction, and as completed (as of the date of the hearing).
DISCUSSION:
Several of the Appellants’ arguments (referenced above as items 2 through 5) are the same or substantially similar to the arguments that they raised in the 2007 matter and which are currently pending appeal. Accordingly, the Zoning Board of Appeals is setting aside those issues (2 through 5) with the understanding and expectation that those issues will be dealt with, and resolved, in the pending appeal. As a result, the Zoning Board of Appeals focuses its review on the Appellant’s argument that the scope of work authorized by the Building Permit constitutes an expansion of the existing dwelling structure, with components not in the existing structure, and that zoning relief was required prior to the issuance of the Building Permit.
The Owner asserts that the Appellants’ argument has no merit in that the scope of work permitted by the Building Permit is of such a small scale that the Appellants’ concerns are “illusory” as referenced in the Supreme Judicial Court in Bjorklund v Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008).
In Bjorklund the Court stated: “Concerns over the making of small-scale alterations, extensions, or structural changes to a preexisting house are illusory. Examples of such improvements could include the addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of a one-story garage for no more than two motor vehicles; the conversion of a one-story garage for one motor vehicle to a one-story garage for two motor vehicles; and the addition of small-scale, proportional storage structures, such as sheds used to store gardening and lawn equipment, or sheds used to house swimming pool heaters and equipment. Because of their small-scale nature, the improvements mentioned could not reasonably be found to increase the nonconforming nature of a structure, and we conclude, as matter of law, that they would not constitute intensifications.” Bjorklund v Zoning Board of Appeals of Norwell, 450
RULING AND DECISION:
The members of the Zoning Board of Appeals were unanimous in their opinion that the nature and scope of the work authorized by the Building Permit was of a small scale, and reasonably consistent with what already existed in the structure. The fact that some work involved bringing the existing structure into further compliance with applicable Building Code requirements is not a legitimate basis for asserting that the improvements cause the structure to lose any lawfully pre-existing non-conforming status that it may possess.
The Board finds that the nature and scope of the work authorized by the Building Permit is precisely that type of work which the Bjorklund decision recognizes as permissible, and that the Appellants’ concerns with such work is “illusory” (to use the terminology employed by the Supreme Judicial Court).
For these reasons the Zoning Board of Appeals has voted, unanimously, to uphold the Building Commissioner’s issuance of the Building Permit.
Any person aggrieved by this Decision has the right to appeal to a court of competent jurisdiction as provided in Massachusetts General Laws Chapter 40A, Section 17, within twenty (20) days from the date that this Decision is filed with the Office of the Town Clerk.
For the Zoning Board of Appeals,