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TOWN OF HINGHAM
Board of Appeals
IN THE MATTER OF:
Applicant: Michael T. Moraites
2 Appletree Lane
Hingham, MA 02043
Owner: Michael T. Moraites and Lynn A. Moraites
Property: 2 Appletree Lane, Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 22823, Page 238
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals (the "Board") on the application of Michael T. Moraites (the "Applicant") for an Administrative Appeal of the Building Commissioner’s orders, dated July 24, 2018, August 9, 2018 and August 10, 2018, to remove heavy equipment from 2 Appletree Lane in Residence District C.
The Board opened a hearing on the application at a duly advertised and noticed public hearing on September 25, 2018 at Hingham Town Hall, 210 Central Street. The Board simultaneously opened a concurrent hearing on a related application for a Special Permit A1 under § III-A, 1.8.3 to park a backhoe in excess of 10,000 lbs. on the Property.
The Board panel consisted of its regular members Robyn S. Maguire, Chair, and Joseph M. Fisher and associate member Michael Mercurio. The Applicant appeared before the Board to present the applications. At the conclusion of the hearing, the Board voted unanimously to deny the Administrative Appeal and uphold the Building Commissioner’s orders.
Throughout its deliberations, the Board has been mindful of the statements of the Applicant, the Property Owner, their representatives, and the comments of the general public, all as made or received at the public hearing.
BACKGROUND and DISCUSSION:
The Building Commissioner, after receiving a number of complaints related to the storage of a backhoe in excess of 10,000 lbs. on the subject property, issued several violation notices with fines to the Applicant. The enforcement orders directed the Applicant to either remove the heavy equipment or seek a Special Permit A1 in order to maintain the vehicle on the property in accordance with the accessory uses contained in Section III-A of the By-Law. Specifically, Section III-A includes the following accessory uses that may be permitted in conjunction with a Single Family Dwelling:
• 1.8.2 - Garaging or parking of one non-private passenger vehicle with a maximum gross weight of 10,000 lbs. (Use permitted)
• 1.8.3 - Garaging or parking of a non-private passenger vehicle in excess of 10,000 lbs. or more than one non-private passenger vehicle (Special Permit A1 required from the Board of Appeals).
The above-referenced uses are additionally subject to Section III-J of the By-Law, which provides that accessory uses “shall be those uses that are customarily incidental to and located on the same lot with a principal use…and which are uses otherwise permitted in the zoning district in which they are proposed…” Members agreed that use of equipment such as a backhoe is not customarily incidental to a principal single-family dwelling. Additionally, the Commissioner’s violation notice, dated July 24, 2018, referred to a related notice, dated June 21, 2018, in which the Commissioner notes that parking of heavy equipment is not allowed in residential districts.
Section III-J, Subsection 2.d. further requires that accessory uses “shall not alter the character of the premises on which they are located or impair the neighborhood.” The Board inferred from the Commissioner’s violation notices and the testimony of abutters during the hearing that the backhoe both impacted the character of the subject property and impaired the neighborhood.
The Applicant asked the Board to reverse the enforcement orders on the grounds that the accessory uses listed in the By-Law do not clearly apply because the backhoe is not a non-private passenger vehicle. According to the Applicant, the backhoe is privately owned equipment for personal use. The Board noted that past applications under Section III-A, 1.8.3 were filed in connection with non-private or commercial vehicles, as opposed to private vehicles. Members indicated that the accessory uses related to non-private passenger vehicles were intended to permit parking of commercial vehicles used in connection with a home occupation or transportation between home and work. The Board determined that the backhoe would not be eligible for a Special Permit A1 under Section III-A, 1.8.3 as it is heavy equipment as opposed to a non-private passenger vehicle.
The Applicant also asked the Board to consider whether the backhoe, if dismantled, could be parked on the property by right under Section III-A, 1.8.2. He indicated that the hoe attachment could be removed from the wheeled portion of the machine, bringing the vehicle weight to less than 10,000 lbs. Since Section III-A, 1.8.2, like 1.8.3, relates only to non-private passenger vehicles, the Board found that a dismantled backhoe could not be parked on a residential property by right. Additionally, the Board found that dismantling the backhoe to decrease its weight would be contrary to the Applicant’s representation that the equipment is required to complete a landscaping and excavation project on the property.
FINDINGS and DECISION:
Upon a motion made by Joseph M. Fisher and seconded by Michael Mercurio, and based upon the information submitted and received at the hearing, and the deliberations and discussions of members during the hearing, the Board voted unanimously to:
1. Uphold the Building Commissioner’s orders, dated July 24, 2018, August 9, 2018 and August 10, 2018, to remove heavy equipment from 2 Appletree Lane in Residence District C, except to the extent that the orders suggest that the use could be permitted by Special Permit A1 under Section III-A, 1.8.3.
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,
Robyn S. Maguire
November 20, 2018