TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and:Mary Parkes
Property Owner32 Fresh River Avenue
Hingham, MA02043
Premises:32 Fresh River Avenue
Hingham, MA02043
Title Reference:Plymouth County Registry of Deeds Book 28115, Page 95
SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals on the application of Mary Parkes (the “Applicant”) Appealing the Building Inspector’s decision dated June 3, 2010 ordering her to cease and desist all business operations at 32 Fresh River Avenue (the “Property”), in Residence District A, as the operation of Dunham Transportation is in violation of §III-A of the Zoning By-Law, and/or in the alternative modify the Building Inspector’s decision to specify activities prohibited from being conducting on the premises.
A public hearing was duly noticed and opened on August 19, 2010, at the Town Hall before a panel consisting of regular members Joseph W. Freeman, Chairman, Joseph M. Fisher and W. Tod McGrath. Due to the unavailability of the Applicant’s attorney, the hearing was immediately continued to September 16, 2010.The Applicant was represented by Attorney Frank Baldassini.
BACKGROUND:
The Applicant is the owner of the Property at 32 Fresh River Avenue, located in Residence District A having purchased the property in 2004.After a history of complaints from abutters and following meetings with the Applicant the Building Inspector sent a letter to Ms. Parkes dated June 3, 2010 stating that her business, Dunham Transportation, is in violation of §III-A of the Zoning By-Law and she is to cease and desist all business operations.On June 28, 2010 the Applicant’s attorney filed an appeal of the Building Inspectors decision.
According to the information submitted by the Applicant’s attorney, Ms. Parkes operates, as a sole proprietor, a school transportation company known as “Dunham Transportation.” The business has been in operation for approximately 32 years and the Applicant owns 15 vans which are used to transport special needs students in various towns.The vehicles are registered under M.G.L. Chapter 90, Section 7D which regulates motor vehicles used in the business of transporting school pupils which carry not more than eight (8) passengers (in addition to the operator).According to attorney Baldassini, Section 7D states that such vehicles “shall be registered as private passenger vehicles.”The vehicles have distinctive license plates as required by the statute and all maintenance of the vehicles is performed at commercial establishments and not on the Property.
Attorney Baldassini stated that all of the vans used in the Applicant’s business, other than two (2), are not parked at the Applicant’s premises but are parked at the individual residences of the respective drivers.Those drivers use the vans to go directly to their assignments without parking or garaging the vans at the Applicant’s residence.Two of the vans are parked at the Applicant’s residence; the drivers of those two vans arrive in their own private vehicles in the morning, drive the two vans during work hours, return the vans to the Applicant’s residence and drive home in their own private vehicles.The Applicant also parks her own personal vehicle at her residence.The Applicant’s Property has a horseshoe-shaped driveway that was recently widened to 12’.
The Applicant employs a phone and fax machine at her residence for purposes of operating the business.No business meetings are held on the Property.Employees may pick up their weekly paychecks at the Applicant’s residence, or the paychecks may be mailed to the employees.
DISCUSSION:
During the course of the hearing the Applicant’s attorney urged the Board to recognize that §III-A of the Hingham Zoning By-Law differentiates between “commercial” vehicles and “non-commercial” vehicles and between “garaging” and “parking.”He argued that because the vehicles, by statute, are considered “private passenger motor vehicles” and the Hingham Zoning By-Law does not define “commercial” and “non-commercial” vehicles, the vans should be considered “non-commercial” vehicles.Under §III-A, 1.8.1 the “Garaging of not more than 3 non-commercial motor vehicles” is a use permitted in a residential zone.Under §III-A, 1.8.3 the “Garaging or parking of a commercial vehicle in excess of 10,000 lbs or more than one commercial vehicle” is allowed by Special Permit A1 in a residential district.
The Applicant’s attorney also urged the Board to recognize that the Applicant’s use of a phone and fax machine on the premises does not constitute the operation of a business.He also stated that, in his opinion, the start of the Applicant’s business is when the students are picked up at their premises, not when the two drivers pick the vans up at the Applicant’s Property.The Applicant also presented the Board with a letter from the Hingham Public Schools dated September 8, 2010, which confirmed the fact that students are not picked up at the Applicant’s Property on Fresh River Avenue.
A number of abutters spoke to the fact that in the past the Applicant has “parked” four (4) to five (5) large vehicles on the Property and that many of the Applicant’s employees come to her Property and park and pick up payroll checks once a week.
Board member Joseph Fisher disputed attorney Baldassini’s characterization of Chapter 90, Section 7D.According to Mr. Fisher, 7D vehicles are not registered as private passenger motor vehicles unless the vehicles are operated pursuant to certain statutory exceptions that are not applicable here, such as vehicles operated by a parent who is uncompensated for his or her services.Instead, the vans are registered as “School Pupil Transport Vehicles” pursuant to 540 CMR Section 2.05.The vans are required to have special plates and, unlike private passenger vehicles, are required to have semiannual safety inspections pursuant to 540 CMR Sections 21.01 to 21.04.
The Board interpreted the Hingham Zoning By-Law as differentiating between private passenger vehicles and commercial/business vehicles, where the latter category would include vehicles classified under 540 CMR 2.05 as a “commercial vehicle,” “school bus”, and a 7D “School Pupil Transport Vehicle”, as well as other business vehicle classifications.
Board members also discussed what constitutes a business operation under the Zoning By-Law and whether employees driving to the Property, parking their vehicles and driving away in vans parked on the Property should be considered conducting a business on the Property.
RULING AND DECISION:
After consideration of the facts and testimony at the public hearing, the Board of Appeals determined to uphold the Building Inspector’s cease and desist order.The Board further determined that the order should be construed so as not to prevent the Applicant from conducting the following activities for Dunham Transportation on the Property:(a) the use of a phone and fax machine at the Applicant’s residence, (b) the parking of one (1) 7D vehicle, (c) the parking of one (1) private passenger vehicle of a Dunham Transportation employee for the sole purpose of allowing such employee to drive to the Property to pick up the 7D vehicle parked at the Property, and (d) driving off the Property and returning to the Property one (1) 7D vehicle.Other business activities of the Applicant may not be conducted at the Property, such as holding in-person employee meetings at the property or distributing weekly paychecks in-person to individual employees (other than to the one (1) employee whose private passenger vehicle is parked at the Property as permitted by the previous sentence).
If the Applicant intends to park more than one (1) 7D vehicle at the Property or to engage in other business activity prohibited by the cease and desist order, she will have to apply for a Special Permit A1 under§III-A, 1.8.3 of the Zoning By-Law.
Therefore the Board voted unanimously to UPHOLD the decision of the Building Inspector, dated
June 3, 2010, as long as the activities as stated above are the only activities operating for Dunham Transportation on the Property.
The zoning relief granted herein shall not become effective until (i) the Town Clerk has 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
Joseph M. Fisher
October 6, 2010