Just three months ago, Marion Zoning Board of Appeals member Michelle Smith referred to 120 Front Street as a “shut case,” as board members on October unanimously agreed that Christian Loranger’s reconstruction of a two-family house should be considered a grandfathered two-family and exempt from a zoning bylaw, which prohibits multi-family homes. Now, on January 25, ZBA members started from scratch when forced to revisit the question after receiving a memorandum from town counsel telling them that a vote to approve a Special Permit for a two-family use was unlawful.
According to Attorney Barbara Huggins Carboni in her November 6, 2017 memorandum, the board could not grant a Special Permit for a two-family use without reviewing a specific proposal. Carboni wrote, “…[The] Board could not carry out its duties under the Bylaw … for issuance of a special permit without a specific proposal. The Board’s apparent vote to ‘approve’ a special permit was not valid for that purpose.”
On January 25, Loranger appealed Building Commissioner Scott Shippey’s denial for a building permit to reconstruct the two-family house, a denial based on two-family “use” and not based on the building plans, which Shippey stated did not increase any non-conformities of the structure. A Special Permit in that regard was not required.
After the board’s initial unanimous opinion that the house should be exempt from the zoning bylaw and considered a grandfathered two-family, Loranger discovered on January 25 that the board, which had previously agreed that there was no two-year “abandonment” of two-family use, had abandoned that opinion.
According to Chapter 230-6.1 of the bylaw, “A nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all the provisions of this Zoning Bylaw.”
Loranger went straight to Part A. of Chapter 230-6.1 that addresses applicability, arguing that because the house was built and was a proven two-family before the bylaw was adopted in 1954, then the bylaw does not apply to him, rendering the matters of “abandonment” and “non-use” moot.
And when he referred back to that October 26 meeting, the one when the board granted the house ‘grandfathership,’ he was stopped mid-sentence and told that anything discussed at that meeting no longer mattered, that this was a new hearing unrelated to the last one, and to “throw it out the window and start again,” as associate board member Tad Wollenhaupt put it.
As for Loranger’s interpretation of the bylaw, Town Counsel Carboni rebutted, saying, “I don’t think that is a clear statement of the law. There is no such thing as a … permanent grandfathering from the application of bylaws.”
What Part A of the bylaw means, said Carboni, “The use is protected, but that use can lose its protection.… There’s no such thing as a permanent exemption from application of the bylaw.”
“I don’t agree at all with town counsel’s assessment,” said Loranger. The first thing it says under Section 6.1, he said, was that no provision of the bylaw would apply to a structure or use built before the adoption of the bylaw.
“No provision of this Zoning Bylaw shall 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…. Such prior, lawfully existing nonconforming uses and structures may continue, provided that no modification of the use or structure is accomplished, unless authorized hereunder.”
“This is the first sentence … ‘No provision stands,’” said Loranger. “It is very black and white; it is in the town’s bylaw.” He called town counsel’s interpretation of the bylaw “ridiculous,” but then later apologized for it.
But that part of the bylaw is only one of its parts, argued Carboni. There are seven other subsections to Section 6.1, which is where the language makes it clear, she said.
Shippey asserted that Loranger’s house, which he purchased in 2013, has been “abandoned” as it applies in the bylaw for over four years. Providing some history, Shippey said the house suffered a fire in 2010, and the previous owner was issued a building permit for repairs that were never completed. No one occupied the damaged house from 2011 until Loranger purchased it in 2013 – “So there’s two years right there,” Shippey said. “And now we’re in 2017…”
“It was grandfathered,” said Loranger. “I’m not arguing that it’s been less than two years … but it is grandfathered.”
Loranger’s argument wore thin on the board, although ZBA member Kate Mahoney said she could understand where Loranger was coming from.
Anyway, said Shippey reiterating his position, “That use in my opinion has been abandoned for two years.”
“If you don’t use it, you could lose it,” Shippey said.
So the fundamental question that night was not whether the bylaw applied to the project, but was the house’s two-family use abandoned for at least two years.
“I don’t see it as abandoned,” said Smith, noting that the prior owner was in the process of rebuilding the two-family after the fire and adding that Loranger then purchased the house with the intent of keeping it a two-family and took steps over time to work towards rebuilding the two-family.
Loranger said once he acquired the property in 2013, he was unable to move forward with rebuilding plans, starting with the Conservation Commission that Loranger said told him, “I was not to touch a blade of grass or a stick on that property.”
The property lies within a 100-foot wetlands buffer zone.
To make sense of Loranger’s progress and steps taken during the time since he acquired the property – steps that could possibly demonstrate that the use, per se, was not abandoned but only stalled – Wollenhaupt suggested Loranger return with a comprehensive timeline for the board to consider.
Loranger acquiesced, but he expressed his frustration.
“I bought the two family, [I’ve] been paying taxes on a two-family, I intend to use it as a two-family,” said Loranger. “People are arguing really hard against letting me use a two-family…”
He isn’t trying to open up a supermarket, Loranger said. “I don’t really see what the harm is in keeping it a two-family … why is everybody trying to tear it back to a single family?”
Chairman Marc LeBlanc said it would be one thing if Loranger bought the property and then sat on it doing nothing for several years. “Then our issue of abandonment would be much clearer,” LeBlanc stated. “But if we see you’ve been diligently trying … then we would have something physical to look at.”
ZBA member Bob Alves asked, if someone continued to pay taxes on a two-family residence, does that demonstrate abandonment?
“Just because you pay taxes on a piece of property doesn’t mean continued use,” said Carboni. “But that’s one piece of evidence [the board] could consider … This is the right conversation to have.”
LeBlanc opened it up to the audience at that point, which he commented was sparser than prior meetings.
Sandria Parsons of 24 South Street said, “I’m eager to see this accomplished so that my neighbor Mr. Loranger can build the house that he wants to build for his family and include a space for his in-laws to live … because I know it’s going to be beautiful.”
Parsons commented on “how long it takes a town to issue permits to do something which, seems to me, to be perfectly reasonable.”
Pretty much what she said, said Jonathan Chase of 102 Front Street. “I have no doubt it’ll be a tasteful structure.”
As LeBlanc discussed with town counsel options for the board to gather and consider more information to make its decision at the next meeting, Loranger said, “I’m just running out of time getting my family into a house. It just keeps going on and on and on and on; it just never ends.”
As the board was set to continue the hearing until the next meeting, ZBA member Betsy Dunn could not commit to being at a February 8 meeting without checking her calendar first, and Wollenhaupt said he would be absent on February 8.
Loranger would require a minimum 4-1 vote to be granted the Special Permit, so five voting members must be present.
The next meeting of the Marion Zoning Board of Appeals is scheduled for February 22 at 7:30 pm at the Marion Town House.
Marion Zoning Board of Appeals
By Jean Perry