Zoning Board of Appeals Decisions and Pending Applications

This matter came before the Board of Appeals on the application of Jon Perette, Trustee, Three Otis Street Realty Trust (“the “Applicant”) appealing the decision of the Building Commissioner dated March 11, 2008, that the Applicant is in violation of the parking requirements of §V-A of the Zoning By-Law and such other relief as necessary as it relates to the operation of its 38-slip dock at Old Salt Outfitters, Inc., 3 Otis Street, in the Waterfront Business District.

A public hearing was duly noticed and held before the Board of Appeals at the Town Hall, Hingham, Massachusetts, on May 22, 2008 and June 9, 2008 before a panel consisting of regular members Stephen J. McLaughlin, Chairman, W. Tod McGrath and Joseph M. Fisher. Attorney Richard D. Paster represented the Applicant. Public comments were solicited, and received, prior to and at the public hearings.

The subject property is located at 3 Otis Street, within the Town’s Flood Plain and Watershed Protection District and is zoned Waterfront Business (the "Premises"). The Premises abuts the Town-owned boat ramp and parking area. The Premises is currently the location of a marine chandlery and recreational marina known as Old Salt Outfitters.

1984 (July): A prior owner of the Premises applied to this Board and was granted, with conditions, a Special Permit A2 to expand an existing marine chandlery to provide additional office, storage, and sales space. At that time, this Board also granted a parking waiver and Variances from applicable setback requirements. The Variances and Special Permit allowed for the expansion of the Premises to its current size, and operation of the Premises provided that eight (8) parking spaces along the face of the building at an angle of 45 degrees were constructed. The building footprint has not been modified or expanded since the 1984 expansion.

1996: A prior owner received an “Amnesty” Chapter 91 License for the then-existing pier, floats and gangway where the “existing and proposed use(s)” are described as “Boat loading and unloading.” Comments written on the License describe the facility as a “dinghy dock only.”

2002 (December): The Hingham Harbormaster issued a permit under M.G.L. Chapter 91, section 10A to the Applicant. Section 10A allows the Harbormaster to “authorize by permit the mooring on a temporary basis of floats or rafts held by anchors or bottom moorings within the territorial jurisdiction of [the Town] upon such terms, conditions and restrictions as he shall deem necessary.” The permit allowed the Applicant to install bottom-anchored floats and thereby add 38 dedicated seasonal boat slips to a finger pier adjacent to its premises. Such 10A Permit has been renewed on an annual basis by the Harbormaster.

2003: The Applicant applied to the Massachusetts Department of Environmental Protection (“DEP”) for a License pursuant to M.G.L. c. 91, to install a 38 slip dock at the same location as the 38 slip floating dock. DEP approved the License in 2007 and it was issued in due course on February 20, 2008 (see below).

2004 (August): The Applicant applied to this Board and was granted, with conditions, a Special Permit A1 under Section III-C of the Zoning By-Law to allow for the installation and use of new timber mooring piles and a concrete containment structure at the existing chandlery and recreational marina, all within the Floor Plain and Watershed Protection District.

2006 (October): This Board granted to the Applicant, with conditions, a Special Permit A2 under Section III-A, 4.1 and 4.10 of the Zoning By-Law to allow for the interior renovation of approximately 1,300 sq.ft. of the building to be used for retail sale of art and antiques and use of a single desk for on-line real estate brokerage.

2006 (October): The Planning Board granted to the Applicant, with conditions, a Special Permit A3 Parking Determination under Section V-A of the Zoning By-Law. The ruling and decision included, among other provisions, the following Condition #3: “A temporary waiver from the off-street parking requirement that 38 parking spaces be provided to serve the 38 boat slips is granted, provided that such waiver shall expire on December 31, 2006, at which time continued operation of the boat slips on the premises will be in violation of the off-street parking requirements of the zoning by-law unless a further determination is made that the required off-street parking has been provided in accordance with the Zoning By-Law of further relief is granted.”

2006 (December): The Planning Board granted to the Applicant a requested modification to the Special Permit A3 to extend the time from 2006 to 2007. Specifically, the decision modifies Condition #3 as follows: “This Special Permit A-3 (parking waiver) will expire on December 31, 2007, at which time continued operation of the boat slips on the premises will be in violation of the off-street parking requirements of the zoning by-law unless the required off-street parking is provided, and past which date such relief shall not be extended.”

2008 (February): DEP issued the Chapter 91 License that the Applicant had applied for in 2003. Unlike the temporary license of Section 10A, which is subject to annual renewal, the Applicant’s Chapter 91 License has a term of 30 years. The Chapter 91 License authorized the Applicant, subject to conditions, “to install and maintain mooring piles, bottom anchored floats and a concrete containment structure” in Hingham Harbor. As of Spring 2008, the piles were installed as per the plans filed with the DEP.

2008 (March): The Building Commissioner wrote to the Applicant stating that its proposed operation of “thirty-eight boat slips at 3 Otis Street without providing parking for those slips or seeking relief from the parking requirements through the Board” would “be in violation of Section V–A of the by-law.”

2008 (March): The Harbormaster refused to issue permits for any of the Applicant’s 38 boat slips for the stated reason of a failure to provide adequate parking consistent with the by-law requirements.

2008 (March): The Applicant, among others, filed a Complaint in the Land Court challenging the Harbormaster’s determination and seeking an injunction to compel the Harbormaster to issue mooring permits for the Applicant’s docks.

2008 (April): The Applicant appealed to this Board to reverse the Building Commissioner.

2008 (May): The Land Court issued its decision denying the request of the Applicant and others for a Preliminary Injunction.

The Applicant urges this Board to reverse the Building Commissioner for a single reason, namely, that its slips at the new dock, which was constructed pursuant to the Chapter 91 License issued in 2008, are exempted from the parking requirements of Section V-A of the Zoning By-Law because such use is “grandfathered”. Applicant contends that its use of the premises as a marina constitutes a preexisting nonconforming use of the Premises pursuant to Section III-H of the Zoning By-Law and M.G.L. c. 40A, §6.

“Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . . 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 or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

“1. Continuation - The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of the By-Law may be continued although such structure or use did not conform with the provisions of the By-Law as adopted or amended.

“2. Extension - No increase in the extent of the nonconforming use of a structure or land may be made.”

Section V-A of the Zoning By-Law creates Off-Street Parking Requirements. Relevant provisions of the current Section V-A include the following:

“Safe and convenient off-street parking shall be provided in all zoning districts in accordance with the requirements of this Section. The parking criteria are directed toward lessening congestion and securing safety from personal injury or property damage on public and private ways and abutting lands in the Town of Hingham. The Planning Board may grant a Special Permit A3 which provides relief from portions of these regulations, if it finds that it is impractical to meet these standards and that a waiver of these regulations will not result in or worsen parking and traffic problems on-site or on the surrounding streets or adversely affect the value of abutting lands and buildings. The Planning Board may impose appropriate time, use or dimensional conditions on the granting of such a Special Permit. Frequent parking of vehicles on a street adjacent to the premises shall be considered evidence of the inadequacy of the off-street spaces provided.

“Provision for off-street parking, drives, services, and display and loading areas shall be as specified below. These requirements shall be met for new construction, the enlargement or increase in gross floor area of an existing building, the development of a use not located in a building, or the change from one type of use to another. Parking areas for each land use shall be located on the same parcel unless appropriate relief is granted by the Planning Board to permit parking on a contiguous parcel. Within Business District A, parking space requirements are reduced by 25%.

From 1983 to 2007 the off-street parking requirement for marina use was one (1) space/berth.

From 1972 to 1983 the off-street parking requirements for Institutional, Education and Recreational Uses along with Automotive and Marine Sales and Service in the Waterfront Business and Waterfront Recreations Districts were “at least one space per each 200 square feet of total floor area and a least one and one-half spaces per slip or other space provided for berthing a boat alongside a fixed or floating structure connected with the shore.” The Zoning By-Law first adopted off-street parking requirements in 1962.

The Applicant offered an Affidavit and testimony that prior owners of the Premises operated a business since the late 1930’s involving (a) setting out bottom anchored floats in Hingham Harbor in order to moor recreational water craft, and (b) transporting the owners of the water craft to and from their boats.

In 1998, when the Applicant acquired the Premises, the business owned and operated 230 bottom anchored floats. After acquiring the mooring business, the Applicant states that it increased the number of bottom anchored floats to 240 and continued operating the mooring business at the Premises as it had been operated for some 70 years.

The Applicant notes that the Premises is located in the Waterfront Business District which allows as a matter of right a marina use. The Zoning By-Law does not include a definition of “marina”, but the Applicant points out that “Merriam-Webster Dictionary defines a ‘marina’ as a dock or basin providing secure moorings for pleasure boats and often offering supply, repair, and other facilities.”[1]

The Applicant argues that its mooring business constitutes a grandfathered use because “the bottom anchored floating moors which have been the hallmark of the mooring business conducted at the Locus since the 1930’s and the slips at the new dock are one in the same.”

The Applicant grounds its argument on the definition of terms found in Hingham’s Harbor By-Law (Article 15 of the Town of Hingham By-Laws), which offers the following definition in Section 1:

“Moor” or “mooring”: “The securing or making fast of a boat, raft, or float by means of cables, anchors, lines, chains, or other device or contrivances, to the ocean bottom, the shore, or a dock, slip, pier, or marina; meaning and intending that this phrase applies to boats, rafts or floats which are secured to the ocean bottom, as well as to boats, rafts, or floats secured to a dock or slip in a marina.”

The Applicant asserts that since its mooring business predates zoning, its continued use is protected from the necessity of obtaining a Special Permit for parking.

The Applicant maintains that its current use of the Premises does not constitute a change or substantial extension of use of the Premises. In the alternative, the Applicant argues that even if the Board found that a change or substantial extension had occurred, such use would still not be subject to the current zoning by-laws pursuant to the three-part test found in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973), and as applied in numerous other cases.

Finally, the Applicant suggests that the second sentence of the first paragraph of Section 6 of the Zoning Act provides that a preexisting nonconforming use or structure may be extended or altered if the Board finds that the change, extension, or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming use.

The Board received testimony, both oral and written, from numerous residents and users of the Applicant’s facilities, who encouraged the Board to allow the Applicant to operate its 38 slip dock without regard to the off-street parking requirements of the Zoning By-Law. These persons stressed that (a) off-street parking in the area is not a real problem except around the 4th of July; (b) parking is readily available at public lots, including the Station Street parking lot on the other side of Route 3A; (c) restricting the Applicant’s operations would adversely impact boaters, local businesses and the community at large; (d) Town residents have benefited from the water-related activities of the Applicant; and (e) the Applicant’s owner is a responsible business person.

Board member Fisher stated that the above-noted comments would be more properly addressed to the Planning Board, which has the authority to grant a “Special Permit A3” to provide relief from the off-street parking requirements “if it finds that it is impractical to meet these standards and that a waiver of these regulations will not result in or worsen parking and traffic problems on-site or on the surrounding streets or adversely affect the value of abutting lands and buildings.” (Section V-A (1) of the Zoning By-Law) The Zoning Board of Appeals does not have such authority under the Zoning By-Law, and the Applicant was not before this Board seeking a Special Permit, a Variance, or any relief other than a determination that its operations were grandfathered pursuant to Section III-H of the Zoning By-Law and M.G.L. c. 40A, §6.

A member of the Planning Board testified, and a letter from the Planning Board dated May 12, 2008, was received by the Zoning Board of Appeals, urging the Zoning Board of Appeals to deny the Applicant’s request to reverse the Building Commissioner’s determination.

A police sergeant representing the Hingham Police Traffic Committee testified that, from a parking perspective, there is a difference between a slip and a mooring. He stated that people spend more time on their boats at a slip and this leads to a greater use of parking.

In response to questioning from Board member Fisher, the Applicant’s attorney stated that he was not aware if the Applicant had filed its Chapter 91 application in 2003 as an existing or grandfathered marina under 310 CMR § 9.38. Applicant did not offer any testimony or evidence as to whether its business, or the business of its predecessors-in-interest at the Premises, had ever previously been licensed by a state agency to operate as a marina.[2]

In deliberations among the members of the Board it became apparent that there was not unanimity as to whether the Applicant’s use was grandfathered as a preexisting nonconforming use of the Premises pursuant to Section III-H of the Zoning By-Law and M.G.L. c. 40A, § 6.

One Board member (McLaughlin) was of the opinion that the Premises had been used as a marina prior to the adoption of the Zoning By-Law. This marina use (1) lawfully existed before off-street parking was required, (2) continued uninterrupted to the present, (3) is unaffected by the intervening changes of ownership of the Premises, and (4) need not comply with the zoning requirements for off-street parking.

Two of the Board members (McGrath and Fisher) were of the opinion that the Applicant’s use was not grandfathered, that the use must comply with the parking requirements of

§V-A of the Zoning By-Law, and that Applicant was in violation of the off-street parking requirements.

Board member McGrath found that (1) the business of Applicant (and of its predecessors in interest) as conducted prior to the adoption of the applicable zoning requirements for off-street parking (“Prior Business”) involved setting out bottom-anchored floats in public waters, not at a location on or connected to the Premises; (2) boat owners could access their boats secured to the bottom-anchored floats located in public waters only by traveling across public waters; (3) the Prior Business did not offer berths, slips or floats at or connected to the Premises; (4) for moorings set out by the Prior Business, the waiting list to obtain a mooring was established and maintained by the Harbormaster; (5) Applicant’s currently proposed use under its Chapter 91 license involves a 38-slip dock connected to the Premises; (6) access to the 38 slip dock is controlled by the Applicant, subject to the provisions of the Chapter 91 license; and (7) for berths at the dock, the waiting list is to be established and maintained by the Applicant, not the Harbormaster, subject to the conditions of the Chapter 91 license. Mr. McGrath was of the opinion that the proposed use as a marina was substantially different in quality, character and degree from the Prior Business and, accordingly, was not grandfathered.

Board member Fisher found that (1) to the extent that marina activity existed prior to the adoption of the applicable zoning requirements for off-street parking, such activity occurred in public waters and not at the Premises; (2) the Prior Business was operated as if it were a contractor paid to set out bottom-anchored floats on someone else’s property, namely, public property, and to take persons from the shore to their boats located in public waters; and (3) the Prior Business, as a contactor and not an owner, acquired no rights that could be protected by Section III-H of the Zoning By-Law or by M.G.L. c. 40A, §6, with respect to activities taking place elsewhere and not occurring on or at its Premises, because such rights run with the land where the activity occurs. Mr. Fisher was of the opinion that for the Prior Business, the Premises served only as a departure point for transport purposes and was not a marina. By contrast the Applicant’s proposed use of the 38 slip dock connected to the Premises will function, as stated in its Chapter 91 license, “to provide a public recreational boating facility/marina for docking and boating access to navigable waters.” This is a new use, not a grandfathered use, and must comply with local zoning requirements.

Board member Fisher was also of the opinion that, assuming arguendo that the Applicant had rights protected by Section III-H of the Zoning By-Law or by M.G.L. c. 40A, §6, the Applicant’s proposed activity constituted a change of use that violates the tests of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). The proposed use is different in nature and purpose because it changes what had been a business of setting out floats and transporting boat owners across public waters to access their boats, to a business where boat owners can dock their boats at or connected to the Premises and where access to the dock is available unrestricted by the need for boat transport across water. The proposed use is also different in quality, character and degree from the Prior Business. See Crawford v. Building Inspector of Barnstable, 356 Mass. 174, 248 N.E.2d 488 (1969) (finding that a new, substantial timber seashore pier, not a replacement of any previous pier, which had an attached float and on both sides a number of mooring or berthing bays defined by driven piles and which was constructed in connection with a small commercial hotel or club having the zoning status of a preexisting nonconforming use, did not acquire the protection of that status). Finally, the testimony of the Hingham police concerning the increased parking needs associated with boat slips provided a basis for finding that the Applicant’s proposed use will increase the severity of the parking situation, thereby failing the third test under Powers.

Board member Fisher expressed a desire to consider whether the Applicant’s use might be considered as a permissible extension pursuant to the second sentence of the first paragraph of Section 6 of the Zoning Act. However, in light of the prohibition stated in Section III-H of the Zoning By-Law that “No increase in the extent of the nonconforming use of a structure or land may be made”, Mr. Fisher declined to explore such a possible finding under Section 6.[3]

Upon a vote of the Board members, two (2) members were in favor of upholding the Building Commissioner’s determination that the Applicant is in violation of the parking requirements of §V-A of the Zoning By-Law, and one (1) member was opposed to upholding the Building Commissioner’s determination.

Because the vote of a three-member panel must be unanimous in order to render a binding decision, the split vote of the Zoning Board of Appeals means that the Applicant’s challenge to the Building Commissioner’s determination has not been successful and the determination is not reversed.

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.

[1] DEP’s regulations under Chapter 91 define “Marina” as follows: “Marina means a berthing area with docking facilities under common ownership or control and with berths for ten or more vessels, including commercial marinas, boat basins, and yacht clubs. A marina may be an independent facility or may be associated with a boatyard.” 310 CMR § 9.02.

[2] For example, M.G.L. c. 40A, § 59B, provides: “No marina shall be operated without a license issued by the division of water pollution control.” The Chapter 91 “Amnesty” License issued in 1996, which the Applicant did not discuss with the Board as part of the current filing, was for a “dingy dock only,” not a marina.

[3] See Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725, 729-30 (2005) (“‘Blasco v. Board of Appeals of Winchendon, [31 Mass. App. Ct. 32, 33 (1991)], indicates that nonconforming uses may be changed or substantially extended only where the local ordinance or by-law specifically authorizes those practices. The [local zoning authority] is free to liberally allow such changes or to prohibit modification. [Id. at 39.] Resort to [the first two sentences of G.L. c. 40A, § 6,][fn5] is not appropriate if the local regulations [contain no authority to permit changes or modifications of existing nonconforming uses].’ Bobrowski, Handbook of Massachusetts Planning Law § 6.04[A].”)