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TOWN OF HINGHAM
Board of Appeals
FINDING PURSUANT TO M.G.L. c. 40A, § 6
IN THE MATTER OF:
Applicant and Patrick O’Grady Agent: Robert L. Devin
Property Owner: 213 Conant Road 80 Washington Street
Westwood, MA 02090 Norwell, MA 02061
Premises: 31 Blaisdell Road, Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 47667, Page 344
Plan Reference: Site plan entitled, “Plan of Land, 31 Blaisdell Road, Hingham, MA,” prepared by Hoyt Land Surveying, 2187 Washington Street, Weymouth, MA, dated November 21, 2016 and an architectural plan set entitled, “Proposed New Master Bedroom, 31 Blaisdell Road, Hingham, MA,” including a floor plan and front elevation plan, prepared by Edward H. Yeomans, 43 Gaslight Lane, N. Easton, MA, dated November 14, 2016
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the “Board”) on the application of Patrick O’Grady (the “Applicant”) for a Finding under MGL c. 40A, § 6 and/or a Variance from § IV-A of the Zoning By-Law (the “By-Law”) and such other relief as necessary to add a second story to a nonconforming attached garage located 12.1’ from the side yard setback where 20’ is required at 31 Blaisdell Road in Residence District B.
A public hearing was duly noticed and held on Wednesday, January 11, 2017 at the Town Hall before a panel consisting of regular members Joseph M. Fisher, Acting Chair, and Robyn S. Maguire and associate member Alan M. Kearney. The Applicant and Attorney Robert L. Devin, Devin, Barry, Murray & Austin, P.C., appeared to present the application. A subsequent session was held by the Board on January 25, 2017. At the conclusion of the hearing, the Board voted to grant the requested Finding under MGL c. 40A, § 6 that the proposed extension shall not be substantially more detrimental than the existing nonconforming use or structure to the neighborhood. Attorney Devin then requested that the Board withdraw the Variance application, which the Board unanimously approved.
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 consists of multiple lots (131-138) shown on a plan of land recoded in 1907. The combined lot area is approximately 15,940 SF. The property is improved by a single-family dwelling that dates to 1972 according to the Assessor’s Card. A building permit was issued in 1991 authorizing construction of an attached garage located 12.1’ from the westerly property line, which location violates the 20’ side yard setback requirement.
The Applicant plans to add a second story to the garage in order to expand the living area. The addition would include a master bedroom, bathroom and laundry room. During the hearing, the Board considered what form of relief would be most appropriate since the Applicant had filed applications for both a Finding and a Variance. In the past, a Variance was required to extend a noncompliant structure. However, Governor Baker signed H3611, an Act relative to noncompliant structures, in August 2016. The Act amends c. 40A, § 7, which addresses the circumstances under which zoning violations can be enforced. Prior to the passage of this bill, the law prevented a municipality from taking enforcement action against unlawful structures after ten years elapsed from the date of the violation. If ten years passed, then the building or structure became protected from enforcement action; however, alteration, extension, or reconstruction was not permitted absent a Variance. H3611 amended the statute by granting legal status, subject to the provisions of c. 40A, § 6, as well as the local By-Law, to nonconforming structures that survive the applicable statute of limitations.
MGL c. 40A, § 6 provides that:
a zoning ordinance or bylaw… shall apply… to any reconstruction, extension or structural change of such structure…except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.
The Board considered whether an upward extension of the nonconforming side yard setback would increase the nonconforming nature of the existing single-family dwelling, which includes the attached garage. This type of extension would not be considered an extension of a nonconformity under § III-I, 2 of the Zoning By-Law, the so-called Hatfield Amendment; however, the Hatfield exemption only applies to dwellings that “conformed in all respects to the Zoning By-Law in existence at the time of its initial construction” and the attached garage did not conform to the setback requirements in effect when the building permit was issued in 1991. Since the Hatfield exemption does not apply, the Board found that the increased massing within the side yard setback increases the nonconforming nature of the structure. As a result, the Board then reviewed the request through the lens of the second except clause in GL c. 40A, § 6, which reads as follows:
Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority…that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
The Board reviewed case law provided by both Attorney Devin and Special Real Estate Counsel, Susan Murphy, confirming that the intensification of a nonconformity associated with a single-family dwelling, which in the present case includes a proposed second story addition within the side yard setback, may be authorized through a finding of no substantial detriment. Conversely, the creation of a new nonconformity may not be considered through a finding and instead would require a variance.
The Board found that the proposed plan will not result in new nonconformities. The Board additionally found that the proposed second story addition will not create any additional noise, traffic, or other negative affect on the neighborhood. While one abutter appeared during the initial hearing, his expressed concern related more to maintenance of the property. The new owner confirmed that the site would be cleaned up in conjunction with the renovation.
FINDINGS AND DECISION
For the reasons set forth hereinabove, and upon a motion made by Robyn S. Maguire and seconded by Alan M. Kearney, the Board voted unanimously as follows:
(1) To make a finding pursuant to M.G.L. c. 40A, § 6 that the proposed second story addition within the side yard setback would intensify the nonconforming nature of the single-family dwelling; however, the proposed extension shall be no more detrimental than the existing nonconforming use or structure to the neighborhood, provided that such work proceeds in accordance with the plans and representations made by the Applicant to the Board during the hearing such that the site is cleaned up in conjunction with the project; and
(2) To grant the Applicant’s request to withdraw the application for a side yard setback variance.
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,
Robyn S. Maguire
February 14, 2017