A routine special permit hearing before the Marion Zoning Board of Appeals on September 10 turned into a more extensive discussion about how recent changes to Massachusetts zoning law could affect the town’s bylaws.
The discussion followed the board’s consideration of a special permit application from Robert and Elizabeth Allen to demolish and reconstruct a legally nonconforming single-family home at 10 Doran Way. The board ultimately approved the application as submitted.
The existing home, built around 1960, sits on a lot that does not meet Marion’s current minimum lot-size and frontage requirements. Matthew Leone of Schneider, Davignon and Leone, Inc., representing the Allens, explained that the proposed two-story home would be larger than the existing one-and-a-half-story structure but would remain below the town’s 35-foot height limit.
The proposed home would also maintain compliant side and rear setbacks. Because of wetlands on the western part of the property, the applicants requested a reduction in the required 35-foot front setback. The proposed setback from Doran Way would be 31.4 feet, compared with about 30.9 feet for the existing porch overhang.
Alternate board member Ann Morgan asked, regarding the height change, “So, we don’t have the percentage increase?”
Leone answered, “We don’t, off the top of my head.”
So, I’m assuming that when the permit gets applied for, that percentage will be calculated to determine whether or not it requires another special permit?” Morgan asked. Under a town bylaw, alterations to a nonconforming structure are permitted if they result in a structure no more than the lesser of the maximum height allowed under the bylaws or a 10% increase in the existing height.
Building Commissioner and Zoning Officer Bob Grillo answered, “Good question,” then began a side discussion about how recent changes to Massachusetts zoning law have complicated these cases.
Under the new Massachusetts law, signed in July, certain alterations to nonconforming residential structures may advance without a special permit if they comply with current height, setback and story requirements. The law also changes the standard for granting variances, replacing the traditional “substantial hardship” standard with a “practical difficulty” standard and giving zoning boards more flexibility to weigh a variance’s benefits and neighborhood impacts.
Grillo said he was unsure whether Marion could continue enforcing its 10% provision when a structure is nonconforming due to its setback but otherwise complies with state requirements. He noted the new law could make the town’s provision inapplicable in some cases.
Grillo said Marion’s bylaws include separate provisions addressing nonconforming lots and nonconforming structures, and some of the language may need clarification.
“Part of the changes I’m going to recommend to the Planning Board is to put language in to clear it up,” Grillo said.
He also raised the question of older lots created before certain subdivision regulations. In some cases, the town’s language refers to the setback requirement in effect when the lot was created, creating uncertainty about which setback applies to older properties.
“There’s a lot of stuff that will be real head scratchers,” Grillo said.
The Doran Way property also raised concerns from an abutter, Ryan Burke, about drainage. Burke, who lives at 4 Doran Way, told the board the steep grade causes water to run toward the shared property line. Leone said he’d be willing to discuss a possible berm or swale to address drainage.
The Board of Health had no objection to the project other than requesting a clean assessor’s report in the event the existing structure is demolished. The Conservation Commission had no comments.
After discussing the zoning questions, the board voted to approve the application as submitted.
Following the vote, Grillo said he is working with the Planning Board and town counsel to codify bylaw changes to conform to the new law and will include the ZBA in these conversations.
“The biggest thing affecting the [ZBA] is the change to variances. You’ll have to wade through it best you can and try to stay uniform in your decisions. Nothing is precedent-setting, but you’ll want to form new opinions on what you think the new variances are, and what they are not,” Grillo said. “It will be interesting to see town counsel’s opinion and discussion on what will impact the board.”
Marion Zoning Board of Appeals
By Laura Pedulli