Applicants Bernadette Kelly and L. Sheldon Daly III will be allowed to offer their real-estate clients circumstantially driven, short-term stays on the second floor of their 313 Wareham Street office after the Marion Zoning Board of Appeals voted unanimously during its April 14 public meeting to reinstate with a significant amendment a special permit that had automatically expired with the sale of the property last year.
Originally, the special permit issued to the property’s previous owners in 2016 allowed the use of the second floor as office space. The amendment sought under Section 230-7.4a of the Zoning Bylaw will allow second-floor use as owner-occupied, residential space to occasional, overnight accommodations for the applicant’s clients.
Representing the applicants, Attorney Cary Leblanc explained that Kelly and Daly bought the 313 Wareham Street property last summer and that the existing special permit was not conveyed with the sale. She told the ZBA that they run their real-estate company, Bernadette Kelly Group, out of the street level and are looking to make use of the second floor to host clients looking at area properties.
“It’s not a landlord-tenant matter, it’s more along the lines of bed and breakfast, which is why I quoted Section 7.4a,” said Leblanc, noting the plan for occasional use and no additional amenities than those already present.
She said the applicants have a smoke-detector certificate and that the Fire Department has likened the building to a Cape with a single stairwell, lacking ingress and egress.
ZBA Chairperson Cynthia Callow asked for more specifics on “occasional use.”
“We do not want a full-time tenant upstairs,” stressed Kelly. “I think, having a business downstairs that’s operating all the time and having a tenant upstairs, that’s potentially not a good mix. But we also do have clients from out of state, out of area who are looking for property.”
Kelly said one client recently was forced by closing delays to rent a BnB in Falmouth for two weeks.” That just added to their stress; we could have helped,” she said.
Kelly identified three basic scenarios whereby her clients would benefit from an act of hospitality: a delay in the closing of a property, an overnight stay that would afford clients the opportunity to revisit prospects and/or expand their search and a one-night family-related solution.
“I quoted a case this winter that would have been a couple of weeks, that’s the maximum we would be looking for,” she said. “That would not be the norm.”
Kelly also stipulated a maximum two-car parking availability.
ZBA member Margie Baldwin asked if the usage would be strictly limited to clients and if they would be charged. Kelly said they are thinking along the lines of $125 per night because of associated costs and that clients would be allowed to bring their dogs.
“We don’t want to run a business with this, we just want it to be an ancillary service,” said Kelly.
Baldwin countered that it is not necessarily a hardship for clients to find housing in the area, citing nearby accommodations.
Leblanc explained that given the real-estate business, the need arises “at the 11th hour” and clients are not easily able to find accommodations at the end of the day they are needed. These scenarios, suggested Leblanc, become more likely on holiday weekends, and she pointed out that Converse Company Realtors at 166 Front Street have the same setup that Kelly is looking to provide her clients.
Baldwin noted from a recent training session with Town Counsel Jon Witten that there is no such thing as precedent. “Whatever happened before is not a precedent for making decisions here,” she said.
ZBA member Will Tifft asked why the amendment was originally considered necessary and if the reinstatement of that judgment under the property’s new ownership would afford them the right to change course and run the space as a bed-and-breakfast-type business. Kelly suggested conditioning the permit to ensure that would not be the case, and Callow reminded the members that the ZBA could always condition permits.
ZBA member Dana Nilson motioned to grant the special permit to the applicants with the condition that the space only be offered to clients as outlined by Kelly and Leblanc, not the general public and with no advertising for rental allowed.
Town Planner Doug Guey-Lee had questioned in a Planning Board meeting which board should adjudicate the case. In response, Witten wrote that since the ZBA had issued special permits in 2003 and in 2008 that governed and restricted the use of the property, any amendments to the same permits should be sought from and potentially granted by the ZBA.
In other business, the board took up some matters for discussion, most notably the Mullin Rule, a state rule that allows the members of a town’s adjudicatory board to miss one public hearing without losing the right to vote on the application.
Callow informed the ZBA that at present, the Mullin Rule only applies to Marion’s Planning Board, thus Baldwin cannot vote on the Heron Cove case, although she is allowed to participate in the discussions. The Mullin Rule, said Callow, will be on the warrant for the Fall Special Town Meeting, and a positive vote would apply the rule to all adjudicatory boards in Marion.
Maintaining a quorum in the Heron Cove case is the top priority for the ZBA, the only Marion board hearing the 40B, affordable-housing case. Callow said Dr. Ed Hoffer’s candidacy for Select Board, if successful, would necessitate his resignation from the ZBA because he was seated by appointment rather than election.
Building Commissioner/Zoning Officer Robert Grillo said the town is trying to streamline some processes, and a new step is not to have applicants sign paperwork until their applications are complete and ready to go forward. Once they sign, then will the application be processed and all associated timelines will become subject to town regulations.
Callow’s volunteering to remain the ZBA chair for one more year was unanimously approved by the members.
The next meeting of the Marion ZBA is scheduled for Thursday, April 28, at 6:30 pm in person, but the availability of the Music Hall was not known at adjournment.
Marion Zoning Board of Appeals
By Mick Colageo