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HomeMy WebLinkAboutGrounds for Special Permit and Memorandum of LawGROUNDS FOR SPECIAL PERMIT AND MEMORANDUM OF LAW APPLICATION OF MARYANN FELLS 57 GENERAL LAWRENCE ROAD, SOUTH YARMOUTH, MA The Applicant, Maryann Fells (Applicant), hereby submits this application for a Special Permit, and in the alternative a Variance, to the Yarmouth Zoning Board of Appeals. The relief is sought pursuant to the following Sections of the Zoning Bylaw to allow for the extension of the current setback non -conformity by permitting the recently constructed accessory structure to remain in its present location. In the alternative, the Variance relief is sought to allow the structure, mistakenly constructed within a front yard setback on a corner lot, to remain in its present location. The property is located in the R40 Zoning District and has 15,721 square feet of area, with 69 feet of frontage on General Lawrence Road and 115 feet of frontage on Captain Bacon Road. The existing house is located 15.4 feet from the side boundary, where 20 feet is required. There is also a newly construed garage which is located 28.8 feet from Captain Bacon Road, where 30 feet is required. The Applicant recently contracted for the construction of a new 30 foot by 35 foot garage. The intention was to build the garage on a slab, which would meet all the existing setbacks and other bulk requirements. However, when the as built was created and submitted to the Yarmouth Building Department, it was learned that the garage had been built, in error, too close to the front lot line by 1.3 feet. The Special Permit request is based on the recent Massachusetts Supreme Judicial Court case of Bellalta v. Brookline Board of Appeals, 481 Mass. 372 (2019), which only requires that the applicant demonstrate that the extension of the pre-existing nonconformity (setback violations) is not substantially more detrimental to the neighborhood than the existing building. There is no detriment to the neighborhood, which permits accessory structures such as this one. The Bellalta case expands the holding of the case of Gale v. Gloucester Zoning Board, 80 Mass. App.Ct. 331 (2011). MEMORANDUM OF LAW In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), the Supreme Judicial Court reaffirmed the process by which a preexisting, non -conforming single- or two- family structure can be altered or expanded, clarifying the framework established by courts having difficulty with the challenging language of G.L. c. 40A, Section 6. A copy of that statute is attached to this Memorandum. Bellalta confirmed that changes to such structures can be made by special permit without the additional need for a variance. Section 6 regulates the application of local zoning to preexisting, nonconforming structures and uses. The Bellalta Court recognized and affirmed the notion that "rights once acquired by existing use or construction of buildings in general ought not to be interfered with." Opinion of the Justices, 234 Mass. 597, 606 (1920). Thus, under Section 6, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun ... but shall apply to any change or substantial extension of such use ... to any reconstruction, extension or structural change of such structure ... except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may he extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority ... that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood. In two sentences, the statute (i) protects previously compliant structures and uses from the effect of subsequently enacted zoning bylaws, (ii) preserves the need to comply with zoning if one wants to change or alter a nonconforming structure or use, and (iii) creates a separate exemption for certain changes or alterations to single- and two-family structures. In Bellalta, the SJC examined the extent of the protections afforded by the "second except clause" to owners of single- and two-family preexisting, nonconforming structures. Defendant homeowners owned a unit in a two -unit Brookline condominium. They proposed to construct a dormer to add 677 square feet of living space. The building did not comply with the floor area ratio ("FAR') — the ratio of building gross floor area to lot area --- for the zoning district in which it was located. The FAR for the zoning district was 1.0 and the FAR for the defendants' building was 1.14, and the proposal would increase that number to 1.38. After being denied a building permit, the defendants applied for, and were granted, a "Section 6 finding" by the Brookline Zoning Board of Appeal. The Board found that the proposed addition and resulting increase in FAR would not be substantially more detrimental to the neighborhood than the nonconforming structure was prior to renovation. Interested abutters appealed, arguing that because Brookline's bylaw expressly prohibited FAR increases of more than 25%, defendants also needed to apply for a variance — a more difficult type of zoning relief. Beginning with Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985), and culminating with Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008), the courts have established a three -step framework to analyze a homeowner's request to alter, reconstruct, extend, or change a preexisting, nonconforming, single- or two- family home. First, how does the structure violate current zoning? Second, does the proposed change intensify that non -conformity? If the answer to question two is "no", the proposed change is allowed by right, without the need for relief. Only if the answer to question two is "yes" must a homeowner apply for a finding by the local board that the proposed change will "not be substantially more detrimental than the existing nonconforming use to the neighborhood." Bellalta, 481 Mass. at 380-81. In Bellalta, the defendants argued that the new dormer would make the building more consistent with the architecture and dimensions of other buildings on the street. In addition, the proposed addition was modest, as it only increased the habitable space by 675 square feet. Thus, they argued that the new dormer would not be substantially more detrimental to the neighborhood than the existing, nonconforming building. The Board agreed, issued the Section 6 finding, and allowed the project to proceed without a variance. Bellalta, 481 Mass. at 383; see also Gale v. Zoning Board of Appeals of Gloucester, 80 Mass, App. Ct. 331 (2011). In upholding the Board's decision not to require a variance, the Bellalta court explained that since the "second except" clause was adopted in 1975, the Legislature has amended Section 6 on multiple occasions, and never clarified the language — thereby ratifying the courts' interpretative framework. Bellalta, 481 Mass. at 383. To require the defendants to also apply for a variance would allow the Brookline bylaw to eliminate the special protections otherwise afforded preexisting, non -conforming single- or two-family structures by Section 6. Id. at 386 -- 87. Underlying the language of Section 6 and the language in the Bellalta decision is a stated pronouncement that extra effort should be taken to protect a particular segment of housing stock: single- and two-family homes. The protections afforded preexisting, nonconforming single- and two-family homes would be deceptive if owners were obligated to undertake the burden of applying for a Section 6 finding and a variance. Bellalta, 481 Mass. at 383. Bellalta's re- affirmation of the "special protections" afforded to single- and two-family homes is particularly important amid today's housing crisis. Section 6 provides a valuable tool against towns seeking to stop housing production by increasing minimum lot sizes or other dimensional requirements. Bellalta, 481 Mass. at 384 — 85. The Section 6 process allows homeowners to make changes to accommodate evolving housing needs, without adding additional demand to an undersupplied housing market. It is my opinion that the petitioner in this case need not establish the Variance criteria, in addition to demonstrating that the project is not substantially more detrimental to the neighborhood, which would be contrary to the holding in Bellalta. There are no new non - conformities being created with this project —just extensions of existing non -conformities. I have attached a copy of the case of Bellalta and the Gale cases for your review for your review.