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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and Michael Borgen
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
This 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.
A public 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.
The Property 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 sheets)
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.
The Applicant’s 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 Company).
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 proposed work.
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.
The 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 variance relief.
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, Section 6?
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 residential use.
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 following reasons:
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:
The 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:
The 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.
g. 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:
The Applicant 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
Based 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 following conditions:
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;
2. The construction sequencing plan dated January 5, 2012 as submitted by Paul J. Mirabito, CE, PLS, Ross Engineering Company, Inc. shall be followed; and
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.
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,
Joseph M. Fisher
March 23, 2012