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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
IN THE MATTER OF:
Owners: Olsen’s Folly Trust, Claudia Bonnie Olsen, Trustee (249 North Street)
and Claudia Bonnie Olsen (251 North Street)
249A North Street
Hingham, MA 02043
Agent: Attorney Jeffrey A. Tocchio
Drohan Tocchio & Morgan, P.C.
175 Derby Street, Suite 30
Hingham, MA 02043
Premises: 249-249A North Street and 251 North Street, Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds, Book 47088, Page 56
and Book 3129, Page 391
Plan References: Plans entitled, “Plot Plan of Land, 249-249A North Street, Hingham Massachusetts,” and “Plot Plan of Land, 251 North Street, Hingham, Massachusetts,” prepared by Hoyt Land Surveying, 1287 Washington Street, Weymouth, MA, dated September 26, 2018
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the "Board") for a Modification of a Use Variance Decision, issued to Ronald J. and Claudia Olsen (the “Owner”) on November 15, 2007, which granted relief from § III-A, 1.8.7 of the Zoning By-Law (the “By-Law”) and allowed an accessory studio apartment, by removing conditions related to continued ownership of the property at 249 North Street in Residence District A.
The Board opened a duly noticed public hearing on the matter on September 19, 2017 in Hingham Town Hall, 210 Central Street. Subsequent substantive sessions were held on September 25, 2017, October 16, 2018, and March 19, 2019.
The Board panel consisted of its regular members Joseph M. Fisher, Chair, and Robyn S. Maguire, and associate member Mario Romania, Jr. The Owner and her Agent, Attorney Jeffrey A. Tocchio, appeared to represent the application to the Board. The Board was assisted in its review by Special Real Estate Counsel, Susan C. Murphy, Esq., Dain, Torpy, Le Ray, Wiest & Garner, P.C. At the conclusion of the hearing, the Board voted unanimously to grant the requested Modification, with conditions as set forth below.
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 Board issued a Decision, dated November 15, 2007, granting relief from § III-A, 1.8.7 of the By-Law so as to allow an existing accessory structure located at 249A North Street to be converted from a childcare facility to a studio apartment. In its Decision, the Board imposed a condition related to the continued ownership of the property by the then Applicants, Ronald J. and Claudia Olsen, and/or their children, such that the Variance would expire if the property at either 249 or 251 North Street were to be transferred outside of the family. Condition #1 of the 2007 Decision specifically read as follows:
The upper level of the building at 249A North Street can be converted into a studio apartment to be occupied by the Applicants for so long as they own the Premises at 251 North Street, or for so long as the Premises at 251 North Street is owned by children of the Applicants. The Variance shall expire upon a conveyance of either 251 and/or 249A North Street to any party other than children of the Applicants.
In 2017, the Owner requested that the above referenced condition be removed, so that relief would remain in effect upon any future sale of the Property. The Board initiated the proceedings in order to formally determine whether the condition would be valid or enforceable given the limitations under MGL c. 40A, § 10. The statute explicitly excludes from allowed conditions any “safeguard or limitation based on the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.” With the assistance of Special Real Estate Counsel, the Board reviewed Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710 (1981). The case likewise involved a use variance, or more specifically, a request to remove a condition related to ownership from a previously granted variance. Counsel noted that Huntington excerpts the legislative history, which indicates that Section 10 was adopted to eliminate “the practice of some local boards of appeals to condition the grant of a variance on the continued ownership of property by a particular person… [because it is] improper, considering that hardship must be unique to the land or building and not merely to an individual.” Huntington, 12 Mass. App. Ct. at 718, quoting 1973 House Doc. No. 6200, at 20. As a result, the Board committed to modifying the 2007 Decision to remove any requirement concerning continued ownership by the Applicant or their family.
After advertising the initial hearing in September 2017, the Owner requested a series of continuances in order to both confer with her attorney and engage the services of a surveyor. Attorney Tocchio submitted stamped plot plans in October 2018, along with a request that the 2007 Decision be further modified to correct confusion related to the principal uses and addressing of the properties at 249 North Street and 251 North Street.
The 2007 Decision allowed an accessory structure to the rear of 249 North Street to be used as a detached accessory apartment. As described in the property deed and depicted on the submitted plot plans, the principal dwelling on the Property located at 249 North Street consists of a deeded half house. At the time, the Applicants’ primary residence was the adjoining half house located at 251 North Street. In its Decision, the Board also imposed certain conditions on this adjoining, and then commonly owned, property.
During the hearing, the Board considered whether conditions related to 251 North Street should likewise be removed or modified since that Property was not the subject of the Variance. The Board determined that it would be appropriate to remove from the 2007 Decision any conditions related to 251 North Street.
FINDINGS AND DECISION
Based on the information submitted and presented during the hearing, and the deliberations and discussions of the Board during the meeting, the Board determined that the modification of Conditions, as set forth below, does not affect the specific findings of the original 2007 Decision.
Upon a motion made by Robyn S. Maguire and seconded by Mario Romania, Jr., the Board voted unanimously to modify the 2007 Decision granting relief from § III-A, 1.8.7 of the By-Law, which allowed an accessory studio apartment at 249A North Street in Residence District A, by in part restating and in part modifying its Conditions as follows:
1. The upper level of the building at 249A North Street may be converted into and used as a detached, studio apartment accessory to the principal dwelling at 249 North Street.
2. Upon discontinuance or abandonment (as defined in Section III-I, 1.E of the By-Law) of the detached, studio apartment accessory to the principal dwelling at 249 North Street or other expiration of the Variance, the full bath at 249A North Street shall be modified to a half bath by the removal of any tub and/or shower facility.
3. There shall be no subdivision or declaration of condominium of the property at 249 North Street while the rights granted in this Variance remain in effect.
4. There shall be no business use of either 249 North Street or 249A North Street.
5. The lower level of the building at 249A North Street shall not be converted to habitable living area.
6. The building at 249A North Street shall not be enlarged.
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
June 5, 2019