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Board of Appeals

 

 

NOTICE OF DECISION
ADMINISTRATIVE APPEAL

IN THE MATTER OF:

Applicant and              People's United Bank 
Property Owner:         850 Main Street
                                Bridgeport, CT 06604

Applicant                     Joseph M. Antonellis
Representative:           288 Main Street
                                 Milford, MA 01757

Premises:                    13 Baker Hill Drive
                                 aka Lot 45 Christine Hill Estates
                                 Hingham, MA 02043

Deed Reference:         Plymouth County Registry of Deeds, Book 42762, Page 156

Plan Reference:          Plan entitled, "Plot Plan in Hingham , Mass.," prepared by P.N Associates, Inc., 310 Oak Street, Shrewsbury, MA, dated October 14, 2014

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the “Board”) on the application from People's United Bank (the "Applicant") for an Administrative Appeal of the Building Commissioner’s determination, dated September 25, 2014, that the principal use on the lot is a Public Utility Building/Pump Station and a single-family dwelling cannot be an accessory use to the pump station nor can the pump station be an accessory use to the single-family dwelling at 13 Baker Hill Drive in Residence A. In the alternative, the Applicant requested a Use Variance from the Hingham Zoning By-Law (the "By-Law") to allow two principal uses on one lot.

The Board of Appeals heard the application at a duly advertised and noticed public hearing on November 19, 2014. The hearing was continued at the Applicant's request to February 23, 2015. This session was held concurrently with a hearing on an application filed jointly by the Applicant and Aquarion Water Company for a Special Permit A1 to maintain a public utility building on the same Premises. At the conclusion of the hearing, the Applicant requested a withdrawal of the Variance application and the Board voted unanimously to approve the Special Permit A1 and Administrative Appeal.

The Board of Appeals panel consisted of its regular members W. Tod McGrath, Chairman, Joseph M. Fisher and Joseph W. Freeman. During the hearing, the Applicant was represented by Joseph Antonellis, Esq.

Throughout the public hearing and its deliberations the Board has been mindful of the statements of the Applicant, their representative, and comments of the general public, all as made or received at the public hearing.

BACKGROUND and DISCUSSION

Lot 45 in the Baker Hill Subdivision consists of approximately 116,510 SF. It is an irregularly shaped lot, as are many of the lots within the subdivision. The property is improved by a pump station that is 20' x 30' in size. The By-Law allows "public utility buildings" by Special Permit A1. Though the structure received a building permit in 2005, there is no evidence in Town records that the water company, as owner of the public utility building, ever applied for or received the required Special Permit.

In September 2014, the Applicant made an inquiry to the Building Commissioner seeking a determination as to whether Lot 45 could be used for the purpose of a single-family dwelling. The Commissioner issued his determination on September 25, 2014 that a variance would be required to locate a single-family dwelling on the lot since there is already a principal use on the property. The determination also indicated that a single-family dwelling could not be accessory to a public utility building. The Building Commissioner's letter of September 25, 2014 is the basis of the appeal. 

The Applicant argues that the By-Law does not prohibit multiple principal uses on a single lot.
He noted that there are many examples of industrial and business-zoned properties with multiple uses on a property. Even within residential districts, it is not clear that otherwise allowed uses such as agriculture, commercial breeders, riding stables, daycares, would be prohibited if a single family home already existed on lot. It is the Petitioner's position that by requiring a special permit, the By-Law anticipates that a public utility building or structure can be established on the same parcel as a dwelling. If the By-Law is read otherwise, then any telephone/cable distribution center or other utility structure would require its own lot of 20,000 - 40,000 SF in residential districts, and potentially more in other zones.

The Board reviewed the By-Law and determined that there was no prohibition against two principal uses of the Applicant’s lot, provided that both uses were otherwise permissible.  The Board noted that the By-Law prohibits more than one dwelling on a single lot (Section IV-C, 4.), but the Applicant was not proposing multiple dwellings.  A member referenced the decision in Hooper v. Goddard, 1 LCR 122 (Mass. Land Ct. 1993), where the Court had conducted a similar analysis of the Zoning Bylaw for the Town of Manchester by the Sea, concluding that there was “no prohibition in the Bylaw against having two principal structures on a lot” associated with two permissible, principal uses.  The Board observed that a Special Permit is required for "public utility buildings and structures" under Section III-A, 3.10, and that the conditions associated with the issuance of such a Special Permit might, or might not, impose restrictions on allowing a utility building and a single-family dwelling to coexist on the same lot.  Accordingly, before proceeding further on the Applicant’s Appeal and/or Variance requests, the Board turned to the Special Permit application that was concurrently pending before the Board, voting unanimously to grant the requested Special Permit A1 for the pump house.  The Applicant then requested a withdrawal of the variance without prejudice.

FINDINGS AND DECISION

Based on the information submitted and presented during the hearing, the Board made the following findings:

  1. Single-family dwelling is a permitted use in the Residence A zoning district.
  2. A public utility building is a use allowed by Special Permit A1 in the Residence A zoning district. The Board granted a Special Permit A1 to maintain the exiting public utility building, consisting of a 20' x 30' pump house, on the Premises on February 23, 2015.
  3. The Hingham Zoning By-Law does not prohibit more than one principal, permissible use at the premises.
  4. Construction of a single-family dwelling on the Premises is not inconsistent with the terms or conditions of the Special Permit A1 issued for the public utility building.

Upon a motion made by Joseph Fisher and seconded by Joseph Freeman, the Board of Appeals voted unanimously to accept the Applicant's request to withdraw without prejudice the Variance application and GRANT the Administrative Appeal such that a building permit may be sought and issued for construction of a single-family dwelling on the Premises.

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 16, 2015