Applicant and Sheila O'Neil
Property Owner: 29 South Pleasant Street
Premises: 29 South Pleasant Street
Title Reference: Plymouth County Registry of Deeds, Book 3651, Page 271
This matter came before the Board of Appeals on the application of Sheila O'Neil (the "Applicant")for a rear yard setback Variance from §IV-A of the Zoning By-Law and such other relief as necessary in order to add a second story to the existing 22' x 22' detached garage at 29 South Pleasant Street (the "Property"), in Residence District C.
A public hearing was duly noticed and held on Thursday, November 18, 2010 at the Town Hall before a panel consisting of regular members Joseph W. Freeman, Chairman, W. Tod McGrath and Joseph M. Fisher. The Applicant was represented by builder Peter Bickford.
The Applicant's Property contains a single-family dwelling and a one-story 22' x 22' detached garage on an approximately 9,000sq.ft. lot. The rear setback of the garage is 2.9' at its closest point; the rear setback requirement in Residence District C is 20'. The Applicant is proposing to remove the roof and add a second story to the garage for office space. The Applicant is not proposing any foundation work and is not adding to the current footprint of the garage. The height proposed will not exceed the requirements of the Zoning By-Law.
The Applicant represented that the detached garage was built approximately 70 years ago, prior to the adoption of zoning. Thus, when the Town enacted its Zoning By-Law, the buildings on the lot became pre-existing nonconforming structures.
During the course of the hearing, the Board of Appeals members and the Applicant had a lengthy discussion on the applicability of Zoning By-Law §III-I Nonconforming Uses and Structures. §III-I , subsection 6, states:
"…the alteration of, addition to, reconstruction of, extension of, or structural change in an existing nonconforming Single or Two-Family Dwelling shall not be considered the extension of a nonconforming use, provided that: a. the Single or Two-Family Dwelling conformed in all respects to the Zoning By-Law in existence at the time of its initial construction; and, b. the alteration of, addition to, reconstruction of, extension of, or structural change in the nonconforming Single or Two-Family Dwelling does not further reduce the minimum linear measurement of the existing nonconforming dimensions."
Under the Zoning By-Law the garage is considered an accessory structure and is not afforded the same protection as a Single or Two-Family Dwelling.
However, because the garage on the lot predates the enactment of the By-law, it is covered by the protections of M.G.L. c. 40A, § 6, first paragraph, which states (in part):
"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 . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood."
As noted above, the Applicant is not proposing any foundation work and is not adding to the current footprint of the garage. The Board determined that the use of the second story of the garage for office space is an allowed use as an accessory structure in the neighborhood under §III-A, 1.8 of the Zoning By-Law. The Board considered the lots and structures of the surrounding neighborhood and determined that proposed construction would not adversely impact or be a detriment to the neighborhood.
FINDINGS AND DECISION:
Based on the information before it, the Board voted unanimously to make the finding that the proposed construction would not be substantially more detrimental than the existing nonconforming use to the neighborhood. Therefore, the Applicant could proceed as a matter of right with its proposed construction, pursuant to M.G.L. c. 40A, § 6, provided that such work proceeded in accordance with the representations made by the Applicant to the Board. Since the Applicant could proceed as a matter of statutory right, the Board voted unanimously to DISMISS the VARIANCE application.
For the Board of Appeals,