Town counsel for the Marion Zoning Board of Appeals on March 9 was unable to give sound legal advice on how to handle an applicant’s request to deny the special permit request to convert to a two-family, with a subsequent request to approve a kitchen to be built in an addition built to be inhabited by the owners’ adult children. The hearing was continued so that attorney Barbara Carboni could look further into the matter.
Engineer David Davignon represented the owners, listed only as 418 Point Road Trust. Davignon said the building commissioner issued a building permit for an addition to the main house, but constructing a kitchen was prohibited because an addition that contains “a place to sleep,” a bathroom, living space, and a kitchen is considered an apartment and not able to be permitted without ZBA approval.
What the owners did was begin construction of the addition according to the building permit conditions and connected the structure to the main house via a covered breezeway. Davignon now requested, for lack of a better solution to get the space needed to house the owners’ grown daughters when they visit, that the board deny the original special permit application in order to now allow the kitchen for the in-law type space.
“The site is being built; it is not the intention of the applicant to rent the addition, and the sole purpose of the addition is for overflow space for family,” Davignon said, offering up signed affidavits from the owners for assurance.
For a conversion to a two-family, an accessory apartment must be no more that 1,200 square feet and located within the principal structure or in an existing accessory structure, such as a garage. The new construction is 2,400 square feet and is a new structure; thus, under the town bylaw, it is not allowed for a conversion.
“We’re here for a kitchen to be placed in that proposed dwelling,” said Davignon. “We didn’t want to classify it as a two-family … but it was the only mechanism to get it on the docket.”
ZBA Chairman Marc Leblanc turned to Building Commissioner Scott Shippey and asked, “The second kitchen is only allowable if deemed an auxiliary unit?”
Shippey said the new addition could be used as a separate dwelling because it is separated by a breezeway. It has two points of egress, a place to cook, a bathroom, and at least one bedroom. “So it could be considered a two-family,” said Shippey. “However, there are a lot of houses that have two kitchens in it but don’t have other points,” he added, such as two entrances.
“But if it acts like a duck, then it’s a duck?” Leblanc said.
Carboni said she needed to give some more thought before issuing any advice on how the board should proceed on this unique situation, calling it a conundrum.
“Ideally, I would have some time to look at the issue so that I could advise the board if there are alternatives, if there is some sort of relief that can be granted,” said Carboni. “I wouldn’t want to do it on the fly.”
There was talk about future sale of the property and how a new owner might interpret the property as a two-family residence, although permits for two-family residences are not transferrable.
Attorney for the property owner, Gregory Aceto, said he is aware of the controversy two-family conversions create in Marion, but asked the board to please find something in the bylaw that would allow the kitchen in the addition, emphasizing the use of affidavits to ensure the space would never be rented out.
“If you spy anything in the bylaw, a legal argument about relief…” said Aceto, “because we can’t find anything that fits this conundrum that we have. I’m not sure I really have a legal argument to demand the kitchen.”
The board expressed a desire to cooperate with the property owners in some way, but Shippey cautioned the board, and the petitioners, that if the board denies the special permit as requested and was unable to subsequently approve the kitchen, then the applicant would be barred from applying for a special permit for two years.
“I just don’t want to offer an opinion that’s not well-grounded at this point,” Carboni said.
The hearing was continued until March 23 at 7:45 pm.
Also continued, at the applicant’s request and to the chagrin of a number of abutters and residents wishing to voice their opposition to the project, was the public hearing for Christian Loranger’s application to build a 12-unit condo at 324 Front Street. That hearing was rescheduled for March 23 at 7:30 pm.
The next meeting of the Marion Zoning Board of Appeals is scheduled for March 23 at 7:30 pm.
By Jean Perry