Terrence and Laura Hartford can now step off their deck and onto their own property after the Marion Zoning Board of Appeals voted to grant them a variance immediately following a June 22 public hearing.
The Hartfords applied for a variance from Section 230-5.1 of the Marion Zoning Bylaws to allow the conveyance of an abutting parcel at 62 Water Street, also described as Map 16, Lot 135B, to the applicant’s lot (135C) at 70 Water Street to remove a hardship of trespass.
Tom Ryan, the applicants’ attorney, described “a jagged boundary line,” harkening back to a 1999 Approval Not Required maneuver that “took some land from Lot 135B, giving it to 135C in order to build an extension.”
The existing deck, Ryan said, was built right to the boundary line. “Every time my clients step off of the deck, they’re technically trespassing,” he noted with some humor. Ryan said this has gone on ever since the 1999 construction without any sort of right-of-way or access agreement. He considered the situation “a major hardship” for the applicants.
As ZBA member Margie Baldwin would point out, both neighbors are shielded from view of this situation by either the house or trees at a distance and a fence.
The goal, Ryan said, was to establish a more-natural boundary line between the two lots, one that would run along an existing fence marked on the site plan. The plan would not alter the frontage facing Water Street.
Robert Braman, a Marion-based land surveyor, said the parcel that the applicant will take from Lot 135B to Lot 135C measures approximately 605 square feet. That loss of land from Lot 135B will leave in excess of 1 acre, the minimum required when that lot saw an addition to the house.
Ryan said the abutters, whose property is the landing point when the Hartfords step off their deck, actually suggested the proposed plan.
ZBA member Dana Nilson asked if there is any plan for addition(s) to the house that would require future setback variances. Laura Hartford said there are plans to add a dormer to the back of the house and a kitchen to the front side, neither of which would alter the footprint.
Marion Building Commissioner Bob Grillo identified the case as “one of the rare circumstances where this variance is making it more conforming. It’s not conforming, but it’s making a bad situation better,” he said.
Grillo also pointed out that if the ZBA did not grant the requested variance, the applicant could file an application for a special permit based on the fact the deck already sits within inches of the lot line. The deck, as Baldwin also pointed out, had been installed prior to the sale of the abutting lot.
ZBA Chairperson Cynthia Callow sought clarification from Ryan as to whether easements are an option, to which Ryan confirmed they “always” are. But he said they do not want a situation in the future in which an attorney could challenge an easement created by attorneys in this case. Ryan called a variance “the cleanest possible way” to ensure the future of the proposed arrangement.
Based on a “lengthy packet” given the ZBA by former Town Counsel Jon Witten, Nilson and Baldwin admitted struggle with the hardship as asserted, a prerequisite of a variance. Nilson quoted Witten’s document disqualifying resale value as a legitimate hardship in a variance application. “I don’t understand the hardship here,” he said.
Ryan said the hardship is not based on a deterrent to the house’s resale value but on “breaking the law every time they step off the deck.”
“If the Hatfields and the McCoys get the land, then we’re in trouble, aren’t we,” said Callow.
ZBA member Will Tifft expressed concern that the abutters’ approval was not documented, but Grillo said the associated ANR plan required the transfer of property, implying the abutter’s approval. Ryan said the abutters had planned to attend the hearing and apologized for their absence.
Baldwin and Callow called it a “bad division” of property that would be made a little better and less nonconforming.
With that, the public hearing was closed. Deliberation quickly gave way to a unanimous vote of approval.
With the resignation of Dr. Ed Hoffer from the ZBA, Dani Engwert became a full, voting member, and on June 22, alternate member Joan Gardner voted on the Hartford public hearing. The ZBA needs a new alternate member.
In discussion regarding CPTC on-demand training, Callow asked the membership for feedback while noting that Marion can determine the focal point of needed training.
Callow introduced Assistant Treasurer/Collector Daryl Hope Cook, who filled in for regular board administrator Anne Marie Tobia.
Without scheduled public hearings, the next meeting of the Marion Zoning Board of Appeals was not set upon adjournment.
Marion Zoning Board of Appeals
By Mick Colageo