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HomeMy WebLinkAboutAP-2022-029 Revised memo from Att TardifPage 1 of 6 GROUNDS FOR SPECIAL PERMIT AND MEMORANDUM OF LAW APPLICATION OF MAUREEN E. LEVERONI 14 BEALE WAY, BARNSTABLE, MA The Applicant,Maureen E. Leveroni (Applicant), hereby submits this application for a Special Permit,to the Barnstable Zoning Board of Appeals. The relief is sought pursuant to the Section 240-91(H)(3)of the Zoning Ordinance to allow for the razing of the existing single family dwelling and accessory garage at the property, to be replaced by a 3 bedroom single family dwelling on two floors, not exceeding the footprint of the existing structures . The property is located in the RF-2 Zoning District and has 4,293 square feet of area, with 90 feet of frontage on Beale Way and 9 feet of frontage on Route 6A. The existing house is located 9.5 feet from Beal Way where 30 feet is required, is 5.7 feet from the side setback and 2.9 feet from the easterly boundary, where 15 feet is required.The house is 13 feet in height and building coverage is at 20.6%, and the existing floor area ratio is 20.6%. The new single family dwelling, on two floors, will be 11.5 feet from Beale Way, a 2 foot improvement. The house will also be 6 feet from the northerly abutter, and 3.3 feet from the eastern boundary, both improvements to the setbacks.Although the property will increase in height to twenty six feet (4 feet less than allowed), building coverage will decrease to 20.2%, and the floor area coverage will increase to 29.9%, which complies with the 30% maximum. Although unable to meet the criteria to develop this project by right, the proposal will not be substantially more detrimental to the neighborhood than the existing building or structure. The Floor Area Ratio is currently at 20.6%,well below the maximum of 30%.The proposal will increase the FAR to 29.9%,and will not be substantially more detrimental to the neighborhood than is the existing dwelling. Page 2 of 6 Petitioner is seeking a Special Permit pursuant to Barnstable Zoning ordinance Section 240-91 H(3), which reads as follows: H.Developed lot protection; demolition and rebuilding on nonconforming lots. Preexisting legal nonconforming lots which have been improved by the construction of a single-or two-family residence which conformed to all provisions of the zoning ordinance or bylaw at the time of construction shall be entitled to completely demolish the old residence and construct thereon a new residence in accordance with the following. [Added 11-18-2004 by Order No. 2005-025[1]] (1)As-of-right. The proposed demolition and rebuilding shall be permitted as-of-right on a preexisting legal nonconforming lot that contains a minimum of 10,000 square feet of contiguous upland, provided that the Building Commissioner determines that all of the following criteria are met: (a)The proposed new structure conforms to all current use and setback requirements of the zoning district it is located in; (b)The proposed construction conforms to the following requirements of lot coverage, floor area ratio and building height: [1]Lot coverage by all buildings and all structures shall not exceed 20% or the existing lot coverage, whichever is greater; [2]The floor area ratio shall not exceed 0.30 or the existing floor area ratio of the structure being demolished and rebuilt, whichever is greater; and [3]The building height, in feet, shall not exceed 30 feet to the highest plate and shall contain no more than 2 1/2 stories. The building height, in feet, shall be defined as the vertical distance from the average grade plane to plate. (c)Further expansion of the rebuilt structure must conform to Subsection H(1)(b)above. . . . (3)By special permit. If the proposed demolition and rebuilding cannot satisfy the criteria established in Subsection H(1)above, then the Zoning Board of Appeals may allow the demolition and rebuilding by special permit, provided that the Board finds that: (a)If the proposed new dwelling does not comply with Subsection H(1)(a)above, then the proposed yard setbacks must be equal to or greater than the yard setbacks of the existing building; and [Amended 2-17-2005 by Order No. 2005-058] (b)All the criteria in Subsection H(1)(b)[1],[2]and [3]above are met. Page 3 of 6 (c)The proposed new dwelling would not be substantially more detrimental to the neighborhood than the existing dwelling. (d)This section shall only apply to Subsection H(2)to the extent that the proposed demolition and rebuilding cannot satisfy the criteria established in Subsection H(1)above and shall not be available for relief from any of the other provisions of Subsection H(2). The project will not be substantially more detrimental to the neighborhood than the existing building. In this case, the house is being updated, and built on the same footprint as the existing dwelling. The project will minimize and improve all setbacks of this property. The property is served by town sewer and will accommodate the additional bedroom being added. The building footprint will actually shrink by a few feet in order to accomplish this project. There is no detriment to the neighborhood, which is already built up with 2 story dwellings. The Petitioner is also seeking a Massachusetts General Laws c. 40A, §6 finding that the increase in the Floor Area Ratio, from the pre-existing 20.6% to the proposed 29.9%is not substantially more detrimental than the existing nonconforming use to the neighborhood, pursuant to the recent Supreme Judicial Court case of Bellalta v.Zoning Board of Appeals of Brookline,481 Mass.372 (2019). 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 Page 4 of 6 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 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 [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. Page 5 of 6 357 (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, nonconform ing 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 Page 6 of 6 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, not to mention the reduction or elimination of several current non-conformities (setback encroachments and building coverage). In addition,the provisions of Barnstable Zoning Ordinance §240 -91(H) actually creates an impassible opportunity to a homeowner who wants to alter or extend their single family home. §240-91(H) creates a framework which will allow a property owner to demolish and rebuild a single or two family home, BY RIGHT, under certain conditions. If those conditions cannot be met, then the homeowner can seek a Special Permit under §240-91(H)(3), BUT ONLY if the property complies with the by-right criteria. The irony of this section of the ordinance is that if a property owner could meet the criteria of subsection 1, there would be no need to seek a Special Permit under subsection 3.Additionally, if the Special Permit criteria cannot be met, as in this case, it leaves the Petitioner with the necessity to secure a Variance, which is contrary to the Bellalta Court’s holding. I have attached a copy of the case of Bellalta v.Zoning Board of Appeals of Brookline,481 Mass.372 (2019), for your review.