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DECISION
ADMINISTRATIVE APPEAL


IN THE MATTER OF:

Applicants: Daniel and Denise Barbuto
33 Pine Street
Hingham, MA 02043

Property: 102 Hull Street
Hingham, MA 02043

Title Reference: Certificate of Title No. 110391 issued by the Plymouth County Registry District of the Land Court

SUMMARY OF PROCEEDINGS:

This matter came before the Board of Appeals (the "Board") on the application of Daniel and Denise Barbuto (collectively, the "Applicant") for an Administrative Appeal of the Building Commissioner’s determination, dated October 21, 2016, that 102 Hull Street in Residence District C is not a buildable lot due to a brief period of common ownership in 2013 with an adjoining and similarly undersized lot located at 0 Pine Street (Lot 99).

The Board opened a hearing on the application at a duly advertised and noticed public hearing on November 16, 2016 at Hingham Town Hall, 210 Central Street. The initial hearing was continued at the Applicant’s request without receipt of testimony. Subsequent sessions were held by the Board on December 21, 2016 and January 25, 2017. The Board panel consisted of its regular members Joseph W. Freeman, Chairman, Robyn S. Maguire, and Joseph M. Fisher.

The Applicant was in attendance during the hearings. John F. Danehy, Esq., Danehey & Osterberg, P.C., appeared on behalf of the Applicant to present the application. Michael Clancy, Building Commissioner, testified during the public hearing. Susan C. Murphy, Esq., Special Real Estate Town Counsel also appeared on behalf of the Board.

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.

BACKGROUND and DISCUSSION:

The subject property is located at the corner of Hull and Pine Streets and consists of two parcels, 20D and 20E, as shown on a plan prepared by Robert B. Bellamy, Surveyor, dated August 17, 1932, and approved by the Land Court on September 1, 1932 (the "3540H" plan). In total, the lot includes approximately 18,972 SF of land area with 135 linear feet of frontage on Pine Street and 125 linear feet of frontage on Hull Street. A right of way (the “Way”) set forth in a deed from John F. Stackpole, Trustee, dated February 10, 1932, affects portions of the combined lot.

The Applicant acquired the Property in 2007. In May 2014, the Applicant filed a Request for Zoning Interpretation pursuant to Mass. Gen. L. ch. 40A, s. 7, asking the Building Commissioner to determine whether the property at 102 Hull Street would be considered a buildable lot under the Zoning By-Law. After extensive review, the Building Commissioner issued his determination, dated October 21, 2016, that the subject property would not constitute a buildable lot due to a brief period of common ownership with an adjoining and similarly undersized lot located at 0 Pine Street (Lot 99) in 2013.

The Town of Hingham adopted the Zoning By-Law in 1941. The Property was initially zoned Residence A, which required a minimum lot area of 12,500 SF with a 100’ width. The Town subsequently increased Residence A standards in 1955 to require a minimum 20,000 SF area and 125’ frontage. However, the By-Law also included generous exemptions for any lot of record with a minimum of 8,000 SF land area and 75’ of frontage through the early 1970s. In 1982, the property was rezoned to Residence C, which requires 40,000 SF and 150’ of frontage. These regulations remain in effect today. The Commissioner noted in his determination that local exemptions contained in prior By-Laws may have protected the Property from increased dimensional requirements were it not for the brief period of common ownership with the adjoining 0 Pine Street (Lot 99) in 2013.

On October 24, 2016, the Applicant filed an administrative appeal application with the Town Clerk and the Board which challenged the Building Commissioner's determination. During the hearing on this matter, the Applicant’s attorney noted for the record the following considerations that would have prevented a merger of the adjoining properties:

1. The Applicant had no knowledge that the adjacent 0 Pine Street (Lot 99) was going to be gifted, or had been gifted, to them by Daniel Barbuto’s mother, Jessie Barbuto, for estate purposes in 2013. An affidavit from the closing attorney, Daniel J. Singleton, confirms this representation. The Applicant never accepted the gift and never asserted control over the adjacent lot because they had no knowledge of the conveyance. Upon learning of the gift and the consequences of a potential merger of lots, the Applicant immediately acted to convey the re-convey the property.

2. The location of the Way is a substantial barrier that effectively separates the two lots and prevents use of the two lots as a single unit. The Way benefits a third-party and is actively used as the sole means of access for 96 Hull Street.

3. The Properties are separately identified and taxed by the Town.

4. A sewer betterment was assessed for each lot and two separate sewer stubs were installed.

5. The lots have separate deeds, separate addresses, and are used differently.

6. Past Zoning By-Laws contained generous exemptions preserving the nonconforming status of lots of record.

7. Other lots in the area are of a similar size. The Character of the neighborhood is made up of undersized lots.

FINDINGS and DECISION:

The sole question for the Board was whether the Property at 102 Hull Street had merged in 2013 with the adjoining lot at 0 Pine Street (Lot 99). Based upon the information submitted and received at the hearings, and the deliberations and discussions of members during the hearings, the Board determined that no merger occurred between 102 Hull Street and 0 Pine Street (Lot 99) in 2013. In reaching this conclusion, the Board found that:

(A) There was an absence of control. “The crux [of the merger question is] not the form of ownership, but control: did the landowner have it ‘within his power’, i.e., within his legal control, to use the adjoining land so as to avoid or reduce the nonconformity?” Planning Bd. v. Serena, 27 Mass. App. Ct. 689, 691 (1989). The location of the Way, which benefits a third-party, presents a substantial barrier to use of the two properties as a single unit. The Courts have held that an easement or a right of way may constitute a “barrier” which, for practical purposes, prevents two adjacent lots from forming into a single unit. See Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547, 548-549 (1990) (“Although also owned by the plaintiffs, the lot easterly of Tabor House Road is separated from the subject lot by the road, a substantial physical barrier which, for practical purposes, prevents use of the two parts of the property as a unit.”). See also Johnson v. Casper, 16 LCR 86 (Mass. Land Ct. 2008), vacated on other grounds, Johnson v. Bd. of Appeals of Andover (Mass. App. Unpub. 2009), subsequent proceedings at 78 Mass. App. Ct. 292, 294 n.7 (2010) (“The Land Court judge . . .[ruled] that the existence of others’ easement rights to even a paper way sufficiently interrupted the use of the parcels as one lot, making them not ‘adjoining’ under the statute. Our view of the case obviates any need to consider whether the Land Court judge was correct in that ruling, and we express no view on the subject.”).

(B) There was an absence of knowledge and consent. The only reason cited by the Building Commissioner for his inability to determine that the property constitutes a buildable lot was the Applicant’s “brief common ownership of the adjoining Lot 99 in 2013.” On this narrow issue – whether common ownership during a two-month period in 2013 resulted in a merger of the property - the Applicant provided an Affidavit, dated January 16, 2017, from Attorney Daniel J. Singleton, who confirms that he acted as the attorney for Jessie W. Barbuto, that he arranged for the conveyance of the subject property (Lot 99) to the Applicant in September 2013, that he was instructed by Jessie W. Barbuto not to inform the Applicant of the conveyance, and that the Applicant promptly instructed him to convey the property to Oak Hill Trust upon discovery of the transfer by Jessie W. Barbuto in early November 2013. The Courts have disregarded such transfers, done without the Applicant’s knowledge of the new deed, in order to preserve for the innocent landowner the grandfathered status of a lot. See Cormier v. Checkoway, 15 LCR 114 ((Mass. Land Ct. 2007). The Board expressed no opinion concerning any time period other than the period of “brief common ownership” referenced in the Building Commissioner’s determination.

Upon a motion made by Joseph M. Fisher and seconded by Robyn S. Maguire, the Board voted unanimously to approve the application for an Administrative Appeal of the Building Commissioner’s determination, dated October 21, 2016, thereby reversing the Commissioner’s determination that the property at 102 Hull Street is not buildable due to a brief period of common ownership with adjoining property at 0 Pine Street (Lot 99) in 2013. For the reasons set forth above, merger of the adjoining lots in 2013 was not established.

This Decision shall not become effective until (i) the Town Clerk as certified on a copy of this decision that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that if such an appeal has been filed, that it has been dismissed or denied, and that (ii): a copy thereof has been duly recorded in the Plymouth County Registry of Deeds and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner’s certificate of title.

For the Board of Appeals,


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Joseph M. Fisher
February 2, 2017