ZBA Issues Special Permit for Converse Road

            After months of deliberation and numerous public hearings, the Marion Zoning Board of Appeals issued a special permit Thursday night to Mark Ross and Margot Mims for their project at 195c Converse Road.

            The applicants proposed to elevate an existing house to make it FEMA compliant, using the same footprint of the prior house, except for an extension of a deck off the south side of the building.

            The existing non-conformity is the 14-foot setback to the northern property line.

            The applicants’ attorney, John Markey, stated that there had been no change to the proposal since the February meeting, but cautioned the board to reference only the correspondence they had received pertaining to the current plan, dated January 29. He argued that the proposal does not increase the non-conformity, since the structure is not moving closer to the property line, only moving laterally along it.

            At a previous hearing, both the Planning Board and an abutter, Caroline Elkins of 195a Converse Road, suggested the board should consider the zoning bylaw section that governs the Flood Hazard District when considering this proposal, since the existing structure is located partially within the V zone.

            The board spent considerable time grappling with the bylaw section that states, “In the case of lots created before the date of enactment of this bylaw and with areas both in the Velocity Zone and outside the Velocity Zone, all structures built after the enactment of this bylaw shall be located in the area outside the Velocity Zone. If this area is not sufficient to allow for the required zoning setbacks, the applicant may apply for a variance to allow lesser setbacks. The only exceptions are seawalls, piers, groins, wharves, weirs and similar structures.”

            The board wasn’t sure if the raising and extension of the structure should be considered new construction under this bylaw, and Elkins’ attorney, Marc Deshaies, argued because the property is located within the Flood Hazard District, and because the applicant has the ability to build outside the V zone, that section does apply. Elkins, through her attorney, provided a letter to the board, which stated in part that the bylaw states “no new construction of any sort may be built in the Marion Velocity Zone.”

            [T]he only available option is to build outside the Velocity zone,” wrote Elkins.” This option is available to [Ross and Mims], as their property includes ample area for construction fully outside the Velocity zone.”

            Markey asserted, “[The existing house is] lawfully in existence … therefore not a structure being built, but modified.” He added that the setbacks already are nonconforming, but will not become more nonconforming.

            Nonconforming structures in existence before the 1999 zoning bylaw may be governed by the old setback requirements.

            “Arguably, you could be [increasing the nonconformity] if you are extending the structure, increasing the size of the nonconformity,” said Carboni. “Anytime you increase the size of a nonconforming structure on a nonconforming lot, [you are] increasing the nonconformity.” She urged the board to first examine the applicability of the bylaw, and underscored that, since the lot has area both in and out of the V zone, that section 203-8.1E2 (no new construction in a V zone) applied, but that the board could look at other sections to inform their decision and to understand the intent of the bylaws.

            ZBA member Tad Wollenhaupt reiterated that section 230-8.1E1 states “no new construction of any sort” in the Marion Velocity zone.

            Carboni remarked that this was for lots entirely within the V zone, and could be used to “shed light” on the decision, but does not apply directly to the current application.

            Building Commissioner Scott Shippey, Carboni stated, has said that a property owner is allowed, by right, to raise a structure to make it FEMA compliant.

            The board discussed the applicability and merits of the different sections of the bylaw, but Carboni steered them back to 8.1E2, and advised them to “come to consensus” about the question of whether the construction was “new” or not, in order to move on to section 230-6.1, which allows construction within the V zone only when impossible to build outside of it. Carboni allowed that, if the board was trying to understand if the intent of the bylaw was to not allow any structure in the V zone, another section, 8.1E4, seemed to say construction is allowed.

            Carboni said she found section 8.1E2 as “ambiguous” and that it could be interpreted either way. Section 8.1E4 contemplates construction in the V zone, including improvements, and it could be defensible to interpret 8.1E2 in a similar way.

            “If the board finds it permissible,” Carboni said, “then you go to 6.1 for expansion of a nonconforming structure.”

            Leblanc also wanted the January 29 plan to go back before the Conservation Commission.

            Ultimately, the ZBA found that the proposed construction does not violate any provision of section 230-8.1 of the bylaw, and approved the special permit under section 6.1, stating that the proposed expansion is not substantially more detrimental than the existing structure.

            Also during the meeting, the board denied a variance for Wayne and Bonnie Camara, 222 Point Road, to build a two-car attached garage with less than the required setbacks. David Davignon, of N. Douglas Schneider & Associates, submitted the “shape of lot” criteria as the evidence for a hardship, as required for a variance. The board responded to this assertion by suggesting that the Camaras could relieve the hardship by simply building a smaller garage.

            John and Jessica Peters, 20 South Street, were a no-show for their proposal for a special permit for setback relief for a gazebo and swimming pool; their abutters, however, asked questions and viewed the plans.

            Leblanc asked what the options were for the board if the applicant didn’t show up again. Carboni noted that the board could close the hearing, but acknowledged that it was “uncharacteristic of this professional (Anthi Frangiadis) to not show up.” The hearing was continued to May 2.

            The next meeting of the Marion Zoning Board of Appeals is scheduled for April 18 at 6:30 pm in the Marion Town House.

Marion Zoning Board of Appeals

By Sarah French Storer

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