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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and Michael Borgen
March 23, 2012
Property Owner: 220 Adams Circle
Hanson, MA 02341
Premises: 280 North Street
Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds, Book 37331, Page 347-348
SUMMARY OF PROCEEDINGS
matter came before the Board of Appeals on the application of Michael
Borgen, (the “Applicant”), 220 Adams Circle, Hanson, MA for a Special
Permit A1 under §III-C, 8 of the Zoning By-Law and such other relief as
necessary to construct an approximately 30' X 67' single-family dwelling
within the Flood Plain and Watershed Protection District, at 280 North
Street (the “Property”), in Residence District A.
hearing was duly noticed and held before the Board of Appeals at the
Town Hall on December 15, 2011 with continuance hearings held on January
12, 2012 and January 26, 2012 before a panel consisting of regular
members W. Tod McGrath, Chairman, Joseph M. Fisher and Joseph W.
Freeman. Attorney Adam Brodsky represented the Applicant at the
hearings. Also appearing for the Applicant was Paul Mirabito, CE, PLS,
president of Ross Engineering.
consists of a 25,018sq.ft. lot, a portion of which is located within the
Town’s Flood Plain and Watershed Protection District. The Applicant
proposes to construct a single-family dwelling that would conform to the
dimensional requirements of Residence District A. The Applicant
submitted the following plans with the application: Site Plan for 280
North Street in Hingham, MA prepared by Ross Engineering Company, Inc.,
Norwell, MA, dated March 13, 2006 stamped by Paul Joseph Mirabito, RLS
(1 sheet) and Foundation Plan, prepared and stamped by Gerald J.
Galiano, P.E., 126 Babcock Avenue, N. Weymouth, MA, dated 2/1/06 (2
Previously, on September 16, 2009, the Applicant had
filed the same application with the Board of Appeals to construct a
residential dwelling in the Flood Plain and Watershed Protection
District. At the time, the Applicant was seeking to obtain an Order of
Conditions from the Town of Hingham Conservation Commission under the
Hingham Wetlands Protection Bylaw (the Applicant had previously obtained
a Superseding Order of Conditions from the Massachusetts Department of
Environmental Protection, “MassDEP”, approving the project but required
authorization under the Wetlands Bylaw). On November 4, 2009, the
Conservation Commission denied the project and the Applicant
subsequently appealed to the Superior Court. On November 16, 2009 the
Board of Appeals recommended that the Applicant withdraw his application
without prejudice pending the wetland appeal.
On May 17, 2011
the judge ruled in favor of the Applicant on the wetlands appeal and
approved the project on the same conditions as the MassDEP’s Superseding
Order of Conditions.
representative, Atty. Brodsky, addressed the possibility that the
Property does not meet the minimum lot area requirements because §IV-B
13 of the Zoning By-Law prohibits wetlands from being included in the
calculation of lot area. The lot contains floodplain that is a wetland
resource area. Atty. Brodsky stated the lot is an exempted lot under
§IV-C 5.a. of the Zoning By-Law and is subject to the residential
exemption under M.G.L. Chapter 40A Section 6 in part because it was laid
out and held in separate ownership prior to the adoption of zoning in
Hingham and has never been built upon. Atty. Brodsky asserted that the
property is grandfathered from any increase in area, frontage, width,
yard or depth requirements.
The Applicant’s engineer, Mr.
Mirabito addressed the design of the dwelling, stating that it has been
designed to meet FEMA and Massachusetts State Building Code requirements
and will tie into municipal sewer and private water (Aquarion Water
As per §III-C, 8 of the Hingham Zoning By-Law the
Board of Appeals is required to refer the application to the Planning
Board, Conservation Commission and Board of Health for review and
comment. By way of a memo dated November 29, 2011 the Board of Health
responded stating that “Board of Health concerns had been satisfied.”
By way of a memo dated December 7, 2011 the Conservation Commission
responded stating that “The Conservation Commission remains convinced
that the project as proposed is detrimental to flood plain values…” On
December 8, 2011 the Town Planner responded (via email) on behalf of the
Planning Board stating “I offer no specific recommendations or concerns
not already addressed by Conservation Commission.”
A number of
abutters appeared at the hearings and also submitted letters to the
Board. Concerns that were raised by them included drainage, effects
during construction, the peer review process (which had been done by the
Conservation Commission), safety issues with the railroad to the rear
of the Property and associated culvert.
The Board asked about
the potential risks to abutters that might arise from a major weather
event if the Applicant kept household items outside in the floodplain
area, where such items could be swept away onto abutting properties.
Atty. Brodsky offered that the Applicant would secure such outdoor items
in advance of a major weather event in order to protect abutting
properties from such risks.
The Board observed that MassDEP’s
Superseding Order of Conditions did not include a construction
sequencing plan and that no such plan had been submitted to the Board.
Mr. Mirabito submitted a letter to the Board dated January 5, 2012
outlining the Applicant’s proposed construction sequencing for the
The Board considered whether the lot qualified for
the residential exemption under M.G.L. Chapter 40A Section 6. The
Applicant agreed that the land must be vacant to qualify for the single
lot exemption. See Willard v. Board of Appeals of Orleans, 25 Mass.
App. Ct. 15, 514 N.E.2d 369 (1987). The question was whether the
existence of an abandoned shed on the property renders the land not
vacant. Atty. Brodsky focused on the “use” of the shed and claimed that
there was no evidence that the existing shed had been associated with
any residential use of the property. According to Atty. Brodsky, since
there had been no “use” on the property, the fact that there is a small
shed on the property is irrelevant. The Board did not find Atty.
Brodsky’s use argument to be a sufficient basis to find the land to be
vacant. Instead, the Board looked at the size of the shed and noted
that it failed to qualify as a “structure” under the Zoning Bylaw
definition. The Board concluded that the shed was sufficiently de
minimis in size so that, coupled with the absence of any residential
use, the lot qualified for the residential exemption under M.G.L.
Chapter 40A Section 6.
The Board also considered whether the
Bylaw’s flood plain minimum area requirement is a dimensional
requirement subject to the single lot exemption. The issue was whether
the property meets the minimum lot area requirements in light of Section
IV-B-13 of the Bylaw, which prohibits wetlands and land within the
flood plain from being included in the calculation of lot area. The
Applicant was contending that the lot is exempted pursuant to Section
IV-C-5-a and M.G.L. c. 40A, Section 6, which protects residential lots
from dimensional zoning changes. Thus, the Board needed to decide
whether the wetlands/flood-plain carve out of Section IV-B-13 is a
dimensional requirement for purposes of Chapter 40A, Section 6.
Board discussed the opinion in Lamb v. Zoning Board of Appeals, 76
Mass. App. Ct. 513, 923 N. E. 2d 1078 (2010), where the Court had looked
at whether a zoning requirement for minimum contiguous dry lot area was
a dimensional requirement (making variance relief unavailable) or
instead was the dry lot area requirement directly tied to soil
conditions (making variance relief available). The Court specifically
examined whether the square footage of the contiguous dry area
requirement was a dimensional requirement of zoning (no variance relief
possible), or instead a function of the size, shape and placement of
wetlands, and topography (variance relief possible). The Court in Lamb
concluded that the contiguous dry lot area requirement was tied to size,
shape and placement of wetlands and thus the property qualified for
Pursuant to the holding in Lamb, the Board asked
whether or not the wetlands/flood-plain carve out of Section IV-B-13 of
the Hingham Bylaw would be be treated as a dimensional requirement for
purposes of granting variance relief under Chapter 40A, Section 10. If
it was not a dimensional requirement for purposes of Section 10, then
could the wetlands/flood-plain carve out of Section IV-B-13 be
considered a dimensional requirement for purposes of M.G.L. c. 40A,
The Board requested the assistance of Town Counsel,
who pointed out that in an earlier decision, Chamseddine v. Zoning Board
of Appeals of Taunton, 70 Mass. App. Ct. 305, 873 N.E.2d 1197 (2007),
the Court had specifically extending the grandfathering protection of
M.G.L. c. 40A, Section 6 to protect a property owner from a zoning bylaw
increase in contiguous upland requirements. According to Town Counsel,
the opinion in Chamseddine suggests that the minimum contiguous lot
area requirement in Section IV-B-13 of the Hingham Zoning Bylaw may be
grandfathered by M.G.L. c. 40A, Section 6 if the requirements of that
statute are otherwise satisfied.
Atty. Brodsky maintained that
the Lamb case had no precedential value on the issue before the Board,
and that the Chamseddine opinion may not be relevant since it was
unclear if that case involved flood plain issues.
The Board did
not accept Atty. Brodsky’s analysis of those cases. The Board concluded
that, in light of Town Counsel’s opinion concerning the Chamseddine
decision, it would be prudent to extend to the present Applicant the
grandfather protections of M.G.L. c. 40A, Section 6 with respect to the
minimum contiguous lot area requirement in Section IV-B-13 of the
Hingham Zoning Bylaw.
Based on the information
submitted and received at the hearings, including the Superseding Order
of Conditions issued by MassDEP and the ruling of the Superior Court
dated May 17, 2011, the Board made the determination, as outlined under
§III-C, 8 of the Zoning By-Law, that the Property is not unsuitable
because of drainage conditions or that the use will not interfere with
the general purposes for which the Flood Plain and Watershed Protection
District has been established, and will not be detrimental to the public
health, safety and/or welfare.
Also based on the information
submitted and received at the hearings, the Board made the following
findings under Special Permit criteria:
a. The proposed use
of the site is in harmony with the general purpose and intent of the
Zoning By-Law, for the following reasons:
The Property is located
within the Town’s Residence A Zoning District surrounded by other
residential dwellings. The Property is an appropriate location for a
b. The proposed use complies with the
purposes and standards of the relevant specific sections of this By-Law,
for the following reasons:
The single-family dwelling will
comply with the dimensional requirements for construction within the
Residence District A for which it is located.
c. The specific
site is an appropriate location for such use, structure, or condition,
compatible with the characteristics of the surrounding area, for the
The Property is located within the Town’s
Residence A Zoning District surrounded by other residential dwellings.
These identical uses and structures are also located within the Flood
Plain and Watershed Protection District.
d. The use as
developed and operated will create positive impacts or potential adverse
impacts will be mitigated, for the following reasons:
Applicant is providing compensatory flood storage for the project that
adequately protects the interests of flood control and storm damage
prevention. It will not interfere with the general purposes of the
Floor Plain and Watershed Projects District and will not be detrimental
to the public health, safety and or/welfare.
e. There will be no nuisance or serious hazard to vehicles or pedestrians, for the following reasons:
construction of a single family dwelling on the Property will be
identical to other uses and structures within the vicinity and vehicle
use and pedestrian access will be the same if not similar to surrounding
single and two-family dwellings.
f. Adequate and appropriate
facilities exist or will be provided for the proper operation of the
proposed use, for the following reasons:
The Property will be served by municipal sewer and private water and is located near adequate fire protection.
The proposed Project meets accepted design standards and criteria for
the functional design of facilities, structures, stormwater management,
and site construction, for the following reasons:
is providing compensatory flood storage for the project and adequately
protects the interests of flood control and storm damage prevention.
The Applicant’s engineer has also provided a construction sequencing
plan to the satisfaction of the Board.
RULINGS AND DECISION
upon the findings set forth above, the Board of Appeals voted
unanimously to GRANT the a Special Permit A1 to construct an
approximately 30' X 67' single-family dwelling within the Flood Plain
and Watershed Protection District, at 280 North Street subject to the
1. The single-family dwelling shall be
constructed in full compliance with the plans submitted with the
application and the representations made at the public hearings;
The construction sequencing plan dated January 5, 2012 as submitted by
Paul J. Mirabito, CE, PLS, Ross Engineering Company, Inc. shall be
3. Prior to a known major weather event the
Applicant shall secure all unsecured outdoor household items to prevent
items from traversing and/or damaging abutting properties. In the event
that items damage abutting properties the Applicant shall clean up
and/or repair the damage to the best extent feasible.
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