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HomeMy WebLinkAbout1982-02-AAC-rpt.pdf 0 6L 4 ,> /t G' .p q, Pry ash 2S 9.4 ‘kar PROPOSED AMENDMENT OF THE ZONING 8Y-LAW AND REPORT & RECOMMENDATIONS OF THE ACCESSORY APARTMENT COMMITTEE { February 1983 Steven Clark, Chairman Cornelius Cronin Jean Gaudet George McCormack Margaret Rawls Note A summary of the Report and Recommendations of the Accessory Apartment Committee appears in the Warrant for the 1983 Annual Town Meeting beginning on page 39 TABLE OF CONTENTS Report of the Accessory Apartment Committee Definition 1 Background 1 Public Purpose 3 Opposing Concerns 4 Proposed Permit Process - "By Right Permit" 4 Conditions and Requirements for New Accessory Apartments 6 Compliance with State Codes 6 Owner Occupancy 6 Exterior Appearance 6 Parking and Screening 7 Minimum House Size 8 Minimum Lot Size 9 Maximum Apartment Size 9 Population and Density Control 10 Public Water and Sewer 10 Building Permit - Certificate of Occupancy - 3 year renewal 10 Existing Illegal Apartment Situation 11 Reasons for Legalizing Some Existing Apartments 11 Proposal for Determining Legal Status of Existing Apartments 12 Registration of Lawful Non-Conforming Units 12 Apartments Built Prior to 1961 13 Enforcement 14 Need for Additional Staff 15 Table I Know Apartments and Know 2 Kitchen Houses 16 Table II Cross Tabulations, House and Lot Size 17 Age of Houses that Do Not Comply 18 Report of Requests for Special Permits for 2-Family Conversion 19 Proposed By-Law Amendment 23 Definition 23 General Objectives 23 Conditions and Requirements 23 Procedures 24 Temporary Absence of Owner 25 Registration of Non-Conforming Units Created Before 1924 25 Special Conditions, Existing Second Dwelling Units in Violation 25 Related Changes in the By-Law 27 F REPORT AND RECOMMENDATIONS OF THE ACCESSORY APARTMENT COMMITTEE DEFINITION An accessory apartment is a second dwelling unit located within a structure constructed as a detached one family dwelling, subordinate in size to the prin- cipal dwelling unit and separated from it, in a manner that maintains the appear- ance of the structure as a one family dwelling BACKGROUND The Town Meeting has twice considered Planning Board articles proposing a change in the Zoning By-Law to allow accessory apartments in single family houses in RO and RS residential zones, subject to specific limitations and to the issuance of a Special Permit by the Board of Appeals Article 64 in 1979 was defeated by a vote of 105 in favor and 63 opposed, less than the 2/3 majority required for passage; while Article 62 in 1980 was defeated by a vote of 107 in favor and 69 opposed The debate indicated a strong desire on the part of Town Meeting Members to know more about the existing unauthorized, and therefore illega" apart- ments in Lexington, and how possible legalization of these apartments would be handled under the proposed by-law change -- How many are there? Where are they? How many would comply with the proposed minimum house and lot size regulations? What would happen to those that do not? Town Meeting members also wished to know how many houses would qualify for new apartments under the proposed regu- lations Clearly, a lack of data concerning the possible ramifications of acceptance of the by-law change contributed to the negative vote In 1981 , the Annual Town Meeting authorized the appointment by the Selectmen of a five member committee to study the whole problem, to make recommendations, and to report back to the 1982 Town Meeting The original motion authorized only a study of the existing accessory apartment situation, but it was amended, deleting the word "existing", thereby expanding the charge to include recommendations as to new accessory apartments as well On October 6, 1981 , the Selectmen appointed a 5 member committee Steven Clark, Chairman, Cornelius Cronin; Jean Gaudet, George McCormack; and Margaret Rawls The Committee spent the fall months collecting and studying literature from the Metropolitan Area Planning Council and from other states concerning the pros and cons and possible methods of legalizing apartments in single family houses; re- viewing the 1979 and 1980 proposals as well as existing by-laws from other towns; discussing the permit process and possible regulations with town boards and officials; and compiling a variety of data on single family houses in Lexington from computer print-outs supplied by the Assessor's Office We identitied and mapped 191 houses in single fammily districts listed in the Assessor's files as 2 family houses These are the "known apartments" spoken of in this report We also identified and mapped 92 possible apartments in houses listed as having 2 kitchens Many of these 2 kitchen houses either now have or did at one time have illegal apartments, and they would, in any case, be easily converted if accessory apartments were legalized Various attempts to identify and locate other illegal apartments not on either of these Assessor lists proved time con- suming and fruitless, so were abandoned 1 To determine the possible number of houses that could qualify for an accessory apartment under various possible house and lot size limitations, the committee requested a print-out containing cross-referenced data (for instance, all houses of a stated minimum size on lots of a stated minimim size) Unfortunately, in- formation had not been programmed to give such cross-referenced results, so the Committee obtained and began analyzing by hand a print-out containing all the necessary data for each single family house in RO and RS districts, a formidable task By mid December 1981 the Committee had agreed that its aim was to recommend a comprehensive by-law change, and had agreed on its basic elements There was, however, far too little time left to complete our research and to prepare a defensih'A by-law for the 1982 Town Meeting We especially felt the need to confront and try to solve the special problems posed by the existing illegal apartments that have been in use for years, but that might not conform to the very limiting regulations we expected to prepare We also wished to have time for further discussions with the Board of Appeals and the Building Commissioner regarding their possible roles in the permit approval process, and with the Planning Board and Selectmen regarding all aspects of the proposed by-law change After submitting a short report under Article 2 of the 1982 Annual Town Meeting, the Committee completed the job of cross-tabulating information on all 8500± single family 2 family and 2 kitchen houses in RO and RS districts The _ __ _ results, which were influential in determining proposed minimum house -end lot sizes are shown on page 17 (Since all tabulations were done by hand, there may be minor errors or discrepancies in the figures ) Except for those 2-family and 2-kitchen houses that were listed as such cui ing our last reappraisal and are therefore known to have existed before 1961 , there are no records of the age of the apartments themselves available in town files Building Permit records prior to 1958 have been destroyed Therefore, the age of the house itself was our best indicator of the probable age of the apartment After agreeing on a minimum house size, we therefore worked the age of the house into the cross tabulations This was done to enable us to at least approx- imate the number of existing units that might be lawful , non-conforming apart- ments built prior to the first Zoning By-Law in 1924 Such units are not sub- ject to any proposed regulations, but can be required to register and prove their pre-zoning legitimacy The Committee has also reviewed the Selectmen's and Board of Appeals files for records of hearings and decisions since 1924, in cases where Special Permits were requested for conversion to a 2 family dwelling * A report on this research, which was an important factor in determing the proposed permit process, begins on page 19 *Since it was enacted in 1924, the ZBL has allowed_conversion to a 2 family dwelling in single family residential zones with a Special Permit from the Special Permit Granting Authority (SPGA) From 1924 to 1929, the Board of Selectmen were the SPGA Since 1929, that authority has been in the hands of the Board of Appeals The present by-law conditions for approval of such con- versions, enumerated in the "Definitions" section of the ZBL, require that the appearance and character of a 1 family dwelling be preserved, that each unit be at least 700 sq ft , that no major exterior structural changes be made, except such as may be required for safety by the General Laws of the Commonwealth; and that stairways leading to the second or any higher floor be enclosed within the exterior walls of the building 2 In October, 1982, after drawing up a preliminary draft of the proposed by-law change, the committee put together a packet of materials containing the research reports and the proposed by-law revisions, together with justification for each regulation and procedure proposed We have discussed the proposal in detail , in three lengthy sessions with the Planning Board, incorporating many of their sug- gestions , and revising the by-law accordingly We have reviewed the material with the Board of Appeals and Selectmen, and have profited from several sessions with the Building Commissioner and the Planning Director Norman Cohen, our Town Counsel and Stephen Anderson of Palmer and Dodge have reviewed several versiorbof the proposed amendment as it progressed, and have been a great help to the committee in refining the legal language and in dealing with legal issues The following report contains an explanation and justification of the by-law as a whole, and of its separate requirements and regulations, followed by a section of Tables and reports on research PUBLIC PURPOSE TO BE SERVED BY ACCESSORY APARTMENTS We are living through a period when our population is changing, our housing needs are changing, and the stock of available single family housing is no longer meeting those needs In the 1970's the price of a single family house increased dramatically Along with this rapid rise in cost came a significant increase in the number of one-parent families, fewer children per family, and a burgeoning elderly population The cost of housing may be reaching a plateau, but the change in demographics will affect housing needs for the forseeable future, with smaller families and the elderly needing housing of a reasonable size and cost. There is a need right now for more small homes, and with the start-up costs for home pur- chase so enormously high, for more rental units As our population ages, many homeowners with children grown and gone, are in houses much larger than they need; and while some would sell and move to smaller units if such could be found in the area, younger buyers find it difficult to pay the price of these larger older homes So the question arises whether there is a more efficient way to use our existing housing stock, which includes more living space than our present population has use for, is too expensive for many potential purchasers to buy, and is too expensive for many present owners to maintain An "Accessory Apartment" offers at least a partial answer, and other potential benefits as well Allowing such income-producing apartments would make it possible for long time owners of larger houses to remain in them in the face of inflation, high maintenance costs, and high taxes Large, old houses with income potential would be less likely to face deterioration Much needed small rental units would be provided In those cases where present owners choose to sell , younger people with small families would be more likely to find it economically feasible to purchase and maintain a smaller home with a possibility of rental income More people sharing existing living space would ensure a more efficient use of energy; and with houses occupied a greater percentage of the time, security would be increased Elderly people living along would benefit from having others living. within the same home, for an increased feeling of safety and companionship 3 OPPOSING CONCERNS - IS ILLEGALITY AN ASSET? Among those who agree that accessory apartments could help to satisfy a real need, but who oppose their legalization, fears that apartments may change the character of single family neighborhoods are paramount They fear a downgrading that will reduce house values; a "tenement" look that may accompany exterior changes such as outside staircases, fire escapes or double entrances; and they anticipate parking problems on quiet residential streets, or an excess of pave- ment and cars on small lots There is a suspicion that while most existing illegal apartments do not cause such problems at all , it is their very ille- gality that keeps them unobtrusive We cannot afford the luxury of continuing to obtain a town benefit in the form of much needed rental housing through openly allowing violations of the Zoning By-Law, a situation that threatens the integrity of the entire By-Law The Committee believes that possible deleterious effects of new accessory apart- ments can be prevented through a by-law that specifically addresses and regulates changes that could produce such effects, and that provides for regular in- spections and reissuance of permits We also agree that there must be a method whereby existing illegal apartments can be subjected to review, and made to comply with appropriate standards To allow their continued, unre- gulated use simply because most have not caused problems for their neighbors would be irrespons ble PROPOSED PERMIT PROCESS FOR NEW ACCESSORY APARTMENTS A Study by the Metropolitan Area Planning Council of 16 Massachusetts town by-laws allowing accessory apartments in single family houses , and studies of similar by-laws in Connecticut, New York and New Jersey provide evidence that the overriding consideration in drafting the necessary legislation has been to preserve the single family appearance and character of the neighborhood and the town Some have tried to accomplish this through the granting of broad discre- tionary powers to a Special Permit Granting Authority, which must notify abuttors, hold hearings, and make difficult, judgmental decisions based on their own in- terpretation of what will or will not be detrimental to the neighborhood Others have spelled out certain conditions for qualifying for an apartment, but have again left the final , judgmert'l decision in the hands of a Special Permit Granting Authority And others are very specific about what will be allowed, and give the permit by right to those who comply 4 "BY RIGHT" PERMIT The committee believes that once the acceptability of accessory apartments in single family houses has been agreed to, the fairest procedure is to approve a tightly written by-law protecting legitimate neighborhood interests through clear and unambiguous regulations Then any proposed apartment complying in all respects with the by-law would be presumed acceptable, and the permit given evenhandedly, "by right" We believe that the proposed by-law adequately protects our single family neighborhoods without the need for additional conditions It actually provides much more control over the use and appearance of the house and lot than the town can exert over a single family use; and it includes far more protective conditions than the Board of Appeals has found it necessary to impose in the past. (See report, page 19 ) Special Permit determinations under the present by-law provision for conversion to a 2 family dwelling have, historically, been greatly influenced by the expression of abuttors ' fears of potential deterioration and devaluation, how- ever unsupported by specific evidence To make possible a "by-right" permit process that will not subject proposed apartments to rejection because of neighborhood fears and pressures, or require subjective, judgmental decisions, we propose a very precise by-law Through specific conditions and requirements, to be enforced by the Building Commisiioner,it anticipates and controls poten- tial harmful effects of proposed 2 family use The committee does not expect an over abundance of applications for new apartments under the proposed by-law (other towns have found that about 10% of eligible houses, included those with already existing apartments, apply) They must all be owner-occupied; they will not be inexpensive to construct in compliance with state codes and the restrictive conditions of this by-law; and minimum house and lot size requirements must be met We agree, however, that any decision to limit the number further must come from the Town Meeting itself, which has the right, at some future date, to repeal or amend the by-law If the very specific conditions proposed are accepted by the Town Meeting, the Building Commissioner's role in the process would remain essentially the same whether he issues a "by-right" permit or advises the Board of Appeals, as it is his responsibility to see that the Zoning By-Law is enforced In the past, the Board of Appeals, reluctant to approve conversions over which they will have no future control , have placed time limitations on the use of the second dwelling unit, or required occupancy by the petitioner' s family The proposed requirement for regular 3 year renewal of permits should provide the control missing in the present by-law provision, and ensure that there will be continued compliance 5 CONDITIONS AND REQUIREMENTS FOR NEW ACCESSORY APARTMENTS COMPLIANCE WITH STATE CODES Although not actually listed in the by-law, all houses with 2 dwelling units must comply with state building, safety, and health codes The Building Commissioner must be satisfied that an apartment will meet these state re- quirements governing such items as number and type of exits, fire walls, fire walls, fire detectors, minimam habitable floor space, minimum window area, etc OWNER OCCUPANCY As evidenced in the literature and by-laws studied by the Committee, there is general agreement that the most important single condition contributing to the preservation of the character of the neighborhood is that one of the units be occupied by the owner of the house Experience has shown that neither temporary renters nor absentee landlords care nearly as much about home maintenance, appearance of the house and lot, tenant behavior, or the opinion of the neigh- bors as does an owner who lives in his own home and comes into daily contact with the neighbors Since one of our goals is to enable home owners to remain in their homes and maintain them, while putting some of their extra space to better and more profitable use, the requirement of owner occupancy seems to offer no hardship, so long as provision is made for legitimate, temporary absences The proposed by-law allows rental of the owner's unit as well as the accessory apartment during an owner's temporary absence To prevent speculation, however, and to insure the presence of a resident owner most of the time, it limits such absences to 2 years and requires the owner to occupy one of the units for at least 2 years between such absences and before the first absence The owner is further required to file a notice with the Building Commissioner before renting both units Some violations of this provision will , undoubtedly occur, but it is our ex- pectation that neighbors will notify the town of at least those infractions that cause a disturbance Others will come to light during the required 3 year renewal process EXTERIOR APPEARANCE OF A HOUSE WITH AN ACCESSORY APARTMENT Paragraph 5 2 2b begins with a general statement that the appearance of the structure must remain that of a one family dwelling, and then lists specific requirements, eliminating the need for judgmental decisions in so far as is possible To comply with the state codes, some houses will need minor exterior enlargements and extensions These and small additions that may be needed for entryways will be the only extensions beyond the present foundations allowed These necessary additions, and other allowable exterior changes , such as new doors or windows, or a change in the placement of doors or windows, must not alter the single family appearance of the house While the placement of a front door may have to be 6 altered, no extra doors may be built on the front of the house; and if there is already more than one, one must have the appearance of the principal en- trance As in the present by-law provision for conversion to a 2 family house, all stairways to 2nd and 3rd floor apartments must be enclosed within the exterior walls of the structure All of these regulations are designed to limit in very specific ways the changes that may be made in the exterior of single family houses PARKING AND SCREENING Cars may not be parked overnight in Lexington' s streets during the winter months, but no laws regulate summertime parking The zoning by-law requires 2 off street spaces per dwelling in RO and RS Districts These must be on the same lot as the house, and must have free and unimpeded access to a street over unobstructed passageways or driveways If the legalization of accessory apartments is not to open up potential hazard to our residential neighborhoods, we must insure that there will be room to park all cars used by any resident in the house in an or- derly manner, on paving rather than on lawns, and suitably screened from abuttors when 2 or more cars are to be parked in the open Paragraph 5 2 2 c of the proposed amendment sets forth 6 standards controlling the number and location of paved or gravel parking spaces, with a maximum of 4 cars allowed to park in the open, and screening to protect abuttors required when more than 2 are parked outside of garages No more than 2 cars may be parked within the required front yard; and screening is to be made up of ever- green or dense deciduous plantings, walls, fence , or a combination of these, placed in the area between the parking spaces and the nearest side lot line; or, if the parking is in the front yard and parallel to the street, in the area between the parking space and the front lot line To allow for irregularities of lots and unique topographical situations, more precise restrictions were re- jected However, the wording makes it clear that the intention is to minimize the visual impact on abuttors, and to maintain the single family appearance of the neighborhood If abuttors are subjected to a significant deterioration of the view from their houses, or if the lot acquires a "parking lot" appearance, it would constitute a violation of this by-law, and enforcement could be required Parking and screening provisions are much more restrictive than any that presently apply to a single family house, as the committee believes this is the aspect of multiple use of a dwelling most likely to effect abuttors if not carefully controlled 7 REGULATIONS CONTROLLING HOUSE, LOT, AND APARTMENT SIZE Under paragraph 5 2 2 a, there are a series of requirements that are designed to limit the total number of apartments possible, to assure that they will be sub- - ordinate to the principal dwelling unit, and to prevent overly intense use of the dwelling Some are self explanatory, but others are worthy of some explana- tion of h^w we arrived at the proposed regulation MINIMUM HOUSE SIZE To determine the possible impact of allowing accessory apartments in houses of various minimum sizes on lots of various minimum sizes , the Committee cross tabulated information from a computer print-out of Assessor' s information on all single family houses in RO and RS districts Information about 2 family and 2 kitchen houses was cross tabulated separately The results , shown in TABLE II were helpful in determining our support for a 2000 sq ft minimum house, and a _1-0,000 sq ft. minimum lot size That combination would make some 2194 single family houses eligible (or about 25% of our RO and RS housing stock) , including 140 of those known to have apartments or 2 kitchens now Reducing the minimum house size to 1500 sq ft would add another 2062 eligible houses, making the total almost one half of our RO and RS housing stock - more than we were prepared to support and defend The 2000 sq ft minimum house size was also influenced by our goal of helping owners of larger, older homes to stay in them and maintain them A larger house would also be more likely to be able to accommodate a subordinate unit comfortably Owners of smaller houses still have the option of applying for a special permit for conversion to a 2 family dwelling if they have the space to create 2 units of at least 700 sq ft without affecting the single family character of the neighborhood We have tied the 2000 sq ft of living area regulation to records available in 1983 This is to prevent the enlargement of smaller homes to qualify We wish to be sure that the 2190+ houses that are eligible now will remain the only eligible houses Our coal is to allow the conversion of houses that are already larger than the owner needs for his or her own use 8 MINIMUM LOT SIZE The 10,000 sq ft minimum lot size was chosen primarily because of our conviction that the single family look of the neighborhood will best be preserved if there is plenty of room to accommodate the necessary cars and paved or gravel parking area _ without crowding, leaving plenty of room for lawns and landscaping Lot size does Mot play a significant part in controlling the number of eligible houses Keeping the 2000 sq ft house size, but allowing a 7500 sq ft lot would add only 96 houses (including 23 already listed as 2 family, and 3 listed as having 2 kitchens) ; and specifying no minimum lot size at all would add only another 97 (including 27 -- known to have apartments, and 3 listed as having 2 kitchens) Many though certainly not all of these large houses on small lots are clustered in older neighborhoods that alread have a number of 2 family houses, a good number of which probably pre-date the Zoning By-Law However, the Committee recommends that any use of smaller lots be subject to greater scrutiny than is afforded by the "by right" permit process we propose Owners who want apartments can apply for a Special Permit for conversion to a 2 family dwelling, and if entire streets of large houses on small lots are amenable to the idea of 2 family houses, they can petition for re-zoning to allow 2 family use At the very least, they should indicate support for each other at Special Permit hearings Since it is often difficult to accommodate apartments on small lots without the area acquiring something of a "2 family appearance" , neighborhood agreement should play some part in the legalization process MAXIMUM APARTMENT SIZE The Committee agrees that an apartment that is clearly subordinate to the main unit of the house is less likely to cause a change in the single family appearance of the house than one that nearly equals the main unit in size The provision that an accessory apartment may not exceed 30% of the gross floor area of the house or 800 sq ft , whichever is larger, insures that the apartment will be subordinate, and an "accessory" use The 800 sq ft option was included because 30% of 2000 sq ft is only 600 sq ft , an unnecessarily small maximum size The 30% figure would allow the conversion of habitable 3rd floors Minimum floor area is regulated by state building and sanitary codes 9 POPULATION AND DENSITY CONTROL Above mentioned regulations governing minimum house and lot sizes , and maximum apartment size will limit the number and size of apartments , and thereby, the possible increase in population The limitation to 2 bedrooms , and the provisions that no house may contain more than one accessory apartment, and that anyone renting an accessory apartment will give up the right to rent rooms to boarders and lodgers , will control the intensity of the use of the structure, a factor that is also partially controlled by the parking requirements PUBLIC WATER AND SEWER The regulation that all houses with accessory apartments be connected to the public water and sewer systems was dictated by local conditions, and was included at the request of the Building Commissioner, Board of Health and Planning Board BUILDING PERMIT - CERTIFICATE OF OCCUPANCY - 3 YEAR RENEWAL The Building Commissioner will issue a building permit for any proposed accessory apartment that, would comply with all of the regulations just described The accessory apartment may not be used as an apartment, however, until the Building Commissioner is satisfied that the completed work does comply with the Zoning By- Law He will then issue a Certificate of Occupancy, valid for 3 years Continued lawful use of the apartment will require issuance of a new Certificate of Occupancy every 3 years , and re-certification of compliance Proof of continued owner occupancy must be submitted with the application for renewal , making it likely that absent landlords who have not filed the required notice with the Building Commissioner would be discovered Any new owner will have to apply for a new Certificate of Occupancy, which would be issued "by right" if there is full compliance with the by-law. These regulations insure that there will be regular inspection and review of those apartments that have been permitted, to assure continued compliance As with any other use, if there are infractions of the Zoning By-Law causing complaints from neighbors , the Building Commissioner will take necessary enforcement action at any time between regular renewal inspections PENALTIES Penalties for violations are the same as for other zoning violations , as provided in Section 3 1 1 of the by-law - a fine not exceeding $50 for each offense, with every day a violation continues after its abatement has been ordered by the town constituting a new offense 10 THE EXISTING ILLEGAL APARTMENT SITUATION At present, the illegal apartment situation in Lexington is out of control , and the committee recommends that it be addressed now 191 two-family houses and 92 two-kitchen houses are actually listed in the Assessor's files , and most were so listed during the 1961 reappraisal also An unknown number of others have avoided the appraiser's eye Why hasn't something been done to enforce a by-law that does not allow apartments in single family zones? All but those that predate the Zoning By-Law, and about 20 that have obtained special permits for conversion to a 2 family dwelling are illegal Yet enforcement cannot be accomplished on any rational basis The Building Commissioner, well occupied with other enforce- ment and inspection activities, cannot be expected to give priority to elimination of a large number of the town's rental housing units, particularly when there is no broad based complaint Many of the illegal apartments have been in use for decades During the war, townspeople were indeed encouraged to provide rental units in their homes for servicemen's families, though the town did nothing to legally recognize those units These, and more recent violations have been quietly accepted by the town over the years It is difficult to object to violations of a law that is so widely flaunted when those violations are quietly accepted by most of the town, and are actually resulting in a public benefit in the form of a much needed type of housing As a result, only those that come to the Building Commissioner's attention through complaints ever receive his attention There is no legal way for him to inspect all the others and enforce even minimum safety and health standards without first officially recognizing their existence Such recognition by the zoning enforcement officer would have to be followed by termination REASONS FOR LEGALIZING SOME OF THE EXISTING APARTMENTS A by-law permitting accessory apartments in single family districts would open the way to legal recognition of the existence of the many illegal apartments in town, providing enforceable regulations requiring that they be brought up to appropriate standards and clarifying their legal position Without a by-law allowing their existence, they will remain sub rosa, unregulated and sometimes unsafe, receiving the attention of the zoning enforcer only when complaints are filed. Furthermore, once the Town Meeting has been informed through this report, it must openly recognize. that a large number of apartments exist illegally and without standards The location of many are known to the Town It it it does not approve some realistic method of dealing with them, the Building Commissioner will have no choice but to terminate their use To allow their continued, unregulated use simply because they have not bothered anyone would be to invite further violations in the future Many "for sale" ads mention a rental unit as an asset, but banks are reluctant to fund mortgages when the price of a home reflects an income producing unit of doubtful legality If a single family home with a legal , safe, unobtrusive, income producing apartment is worth more in today's market than a similar, unnecessarily large residence for one family, and realtors assure us that it is ; then the assessed value of that home should reflect the higher market value Taxes from those homes should increase 11 Compliance with safety and health regulations , the integrity of our Zoning By-Law, and the fair assessment of all taxable property should be matters of concern to the entire town The problem must be addressed and a solution found Most of the by-laws we studied, including those proposed here in 1979 and 1980, recognized the advantages of legalizing existing apartments and bringing them up to code; but none tackled the special problems this can involve Naturally, all existing apartments that conform, or could be made to conform in all ways to the regulations for new apartments would be eligible to receive permits However, our study of computer print-outs from the Assessor's office confirms that about half of the existing known 2-family or 2-kitchen houses, while they probably either meet or could be made to meet basic safety, owner occupancy, exterior appearance and parking standards , would not comply with proposed size regulations Therefore, to absolutely deny permits to all that do not comply in every way with the new by- law would eliminate in one blow many of Lexington's presently occupied small rental units This would cause an even more severe shortage of the very type of housing that the by-law is intended to facilitate On the other hand, to legalize all non- complying apartments simply because they exist, while similar houses whose owners have not broken the law are denied, permits, is inherently unfair Some compromise position is called for 1 PROPOSAL FOR DETERMINING LEGAL STATUS OF EXISTING APARTMENTS Any existing apartment that complies with all of the appropriate conditions and requirements for new apartments (some regulations like the prohibition of additions to living area of more than 10% etc are not relevant) would be eligible to receive a Certificate of Occupancy from the Building Commissioner, as would any new apartment. The committee has proposed that those older apartments that do not comply with the size requirements , but that do comply with certain specific conditions for new accessory apartments , be given special consideration and be allowed to apply for a special permit from the Special Permit Granting Authority (SPGA) for maintenance of an existing, non-complying apartment, as described below We have chosen 1961 as a cut-off date for such consideration , as that is the date of the town's previous reappraisal , and is the earliest date for which there are town records of at least some of the existing apartments It is also far enough in the past to eliminate the possibility of the owner of a recent conversion profiting from having broken the law REGISTRATION OF LAWFUL NON-CONFORMING UNITS CREATED BEFORE 1924 The part of the proposed amendment dealing with existing apartments is concerned first with apartments built prior to the passage of the first Zoning By-Law prohibiting such uses, and in continuous use since then Such apartments are lawful , non-conforming uses, and not subject to conditions other than those already enforceable through state codes The town, however, has no record of where they are, or how many To verify their lawful status, for the town' s benefit as well as the owner's , the proposed amendment requires registration of the apartment before January 1 , 1985, together with submission of evidence of construction before 1924, and of continuous use as an apartment 12 Paragraph 6 5 of the Zoning By-Law says that if there is non-use of any lawful non-conforming use for a period of 24 consecutive months , such non-conforming use shall be regarded as abandoned and shall not be resumed A literal interpre- tation of this would make it almost impossible to prove continuous use since 1924, a period of 59 years Courts, however, have tended to be lenient and unwilling to __ find abandonment where there is an intention to use the dwelling again For this reason, the committee recommends that proof of use for 3 of the last 5 years be accepted as sufficient evidence for this purpose If an owner does not register before January 1 , 1985 as required, however, he/she would have to provide evidence that there had not been an abondonment of use for 24 consecutive months since 1924 ALL OTHER LA1STING APARTMENTS IN VIOLATION All owners of illegal apartments, including those pre-1924 apartments whose owners cannot produce satisfactory evidence of lawful non-conforming status , must apply to the Building Commissioner before January 1 , 1985 for a Determination of Compliance with the requirements and conditions for new accessory apartments Within 90 days, the Building Commissioner will complete his inspections , determine whether there is compliance with all of the applicable regulations , whether such compliance can be achieved through corrective changes, or whether compliance is impossible If there is full compliance, he will issue a Determination of Compliance and a Certificate of Occupancy, valid for three years and renewable If compliance is attainable, he will issue a Conditional Determination of Compliance, listing corrective measures required Those corrections must be completed within 90 days of the date of the Determination, after which the Building Commissioner will issue a Certificate of Occupancy If one or more of the applicable conditions is not met, and compliance is impossible, the Building Commissioner will issue a Determination of Non-Compliance, listing those regulations with which compliance cannot be achieved. Unless the owner can prove that the apartment was constructed prior to 1961 and is in compliance with certain basic regulations as described below, the owner has no recourse but to terminate the apartment within one year of the date of the Determination If there is compliance with the basic regulations described below, the Building Commissioner will include in the Determination of Non=Compliance an explanation of the special procedures available to owners of apartments built prior to 1961 APARTMENTS BUILT PRIOR TO 1961 Of those existing apartments that do not comply with all of the applicable regulations for new accessory apartments, only those built before 1961 , over twenty two years ago, and the date of our previous townwide appraisal , will be allowed the further recourse of seeking a Special Permit for maintenance of an existing non-complying apartment from the SPGA - and then only if they meet the following basic requirements 1 ) owner occupancy, 2) only one accessory apartment per house, 3) no boarders or lodgers in a house with an accessory apartment, 4) enclo- sure of all stairways to upper floors , and 5) all of the parking regulations in sub-paragraph 5 2 2 c , as well as compliance with state codes If compliance with one or more of these conditions would require changes or improvements, such changes would be among the conditions of the Special Permit 13 The SPGA may impose such additional conditions as it may deem necessary to protect the integrity of the neighborhood, and to bring the apartment as near to conformity with the regulations for new apartments as is feasible There is already a provision in the Zoning By-Law, to date rarely used, for a Special Permit for conversion to a 2 family dwelling, and it will remain in the by-law However, the committee proposes that existing apartments reviewed under this amendment be given the advantage of a presumption of acceptability, and that the burden be upon objectors to produce specific evidence of harm to the neighborhood Many of the non-complying pre-1961 apartments eligible to apply for Special Permits will require improvements to meet state safety and health standards, and probably to meet parking standards The SPGA may require changes in the appearance of the house if it has too much of a 2 family look Those with 2 apartments, with too many cars or insufficient parking and screening, with boarders and lodgers, or lacking a resident owner will have to conform or be terminated This is not a "grandfather clause" It is not our intention to reward illegal behavior; but we believe that any proposal for dealing with existing apartments must recognize that they have been serving a public purpose, and that years of quiet tolerance have given the older ones some claims to legitimacy The absence of special procedures making possible the legalization of at least those older, non-complying apartments that have not caused a deterioration of their neighborhoods would either cause a serious depletion in the number of rental units in town, or a continuation of the present, impossible situation ALL OTHER APARTMENTS NOT IN COMPLIANCE All existing apartments not eligible for legalization under the above described procedures must be terminated within one year of notice from the Building Commissioner; and any owner not applying before January 1 , 1985 as required will be subject to enforcement action and penalties The last recourse of an owner denied a permit under the proposed regulations would be to apply for a Special Permit for Conversion to a 2 family dwelling, the provisions for which-are potentially more flexible if the Board of Appeals chooses to so regard them ENFORCEMENT The committee expects the provision for a 3 year renewal of the Certificate of Occupancy to be a sufficient insurance of compliance, and expects that with a workable by-law in place, neighbors will not be so reluctant to bring violators to the attention of the Building Commissioner 14 NEED FOR ADDITIONAL STAFF If the Building Commissioner is to be responsible for reviewing plans and in- specting properties involved in applications for both new and existing apart- ments; and for close liaison with the SPGA when Special Permits are required; as well as for the 3 year renewal process that will be necessary if compliance is to be assured, he will need help The procedures we propose for reviewing existing apartments are designed to spread the work over the year to some extent; but the work load in the first year or two may be great For this reason , we have asked the Selectmen to include at least 1/2 staff person in the Building Commissioner' s personnel budget We propose that the extra costs be partially covered by a fee for a new permit, and a fee for renewal Increased assessments after the first year or two should help to defray this expense also PLANNING BOARD HEARING A Planning Board hearing on the proposed amendment will be held on March 10, at 7 30 P M at Clarke Jr High ACCESSORY APARTMENT COMMITTEE Steven Clark, Chairman Cornelius Cronin Jean Gaudet George McCormack Margaret Rawls 15 TABLE I KNOWN APARTMENTS AND KNOWN 2-KITCHEN HOUSES FROM LEXINGTON 1981 REAPPRAISAL Apartments listed in Assessors files as "2-family houses" in RO and RS zones RO zone 59 RS zone 132 Total 191 Possible Apartments - houses listed as having 2 kitchens RO 32 RS 60 Total 92 Total 2-family and 2-kitchen 283 Houses listed as having more than 2 kitchens District No of Kitchens No of Houses RO 3 2 RS 3 7 4 3 16 TABLE II CROSS TABULATIONS - SIZE OF HOUSE - SIZE OF LOT (Recommended Combination) Category Category Category Category Category Category 1 2 3 4 5 6 Zoning and 10,000+ SFL* 10,000+ SFL 7,500-9,999 SFL 7,500-9,999 SFL Under 7,500 SFL All Others Assessment 2,000+ SFLA** 1 ,500-1 ,999 SFLA 2,000+ SFLA 1 ,500-1 ,999 SFLA 2,000+ SFLA Category RO (1 Family) 818 934 2 22 8 1238 RO (2 Kitchen) 14 14 - - 0 4 RO (2 Family) 30 14 5 1 3 6 Total RO 862 962 7 23 11 1248 RS (1 Family) 1236 1082 68 226 59 2452 RS (2 Kitchen) 32 11 3 3 3 8 RS (2 Family) 64 7 18 2 24 17 Total RS 1332 1100 89 231 86 2477 Total Each Cat. 2194 2062 96 254 97 3725 Total ALL RO & RS houses 8428 *SEL - Square feet of land **SFLA - Square feet of living area AGES OF HOUSES THAT DO NOT COMPLY Of 50 known 2 family houses with 2000+ sq ft land and under 10,000 sq ft land 46 houses were built before 1924 27 houses were built before 1910 None were built since 1961 (the latest in 1933) Of 21 known 2 family houses with under 2000 sq ft land and over 10,000 sq ft land 16 houses were built before 1924 13 houses were built before 1910 2 houses were built since 1961 Of 26 known 2 family houses with under 2000 sq ft land and under 10,000 sq ft land 17 houses were built before 1924 16 houses were built before 1910 None were built since 1961 (the latest in 1930) 2 Kitchen houses tend to be more recent Of 44 with less than 2000 sq ft land or less than 10,000 sq ft of land, or both 6 houses were built before 1924 11 houses were built since 1961 Of the 12 houses listed as having more than 2 kitchens 11 houses were built before 1924 (1 in 1946) NOTE The age of the house is not necessarily an indication of the age of the apartment Some very old houses undoubtedly have recent apartment conversions However, it is known from the Board of Appeals hearing records that many 2 family houses existed before 1924 in single family neighborhoods 18 REPORT ON REQUESTS FOR PERMITS FOR TWO FAMILY CONVERSION 1924 - 1982 From Selectmens' Minutes 1924 - 1929 From Board of Appeals files and Minutes 1929 - 1982 A. 42 Requests for conversion to a 2 family dwelling 17 granted 22 denied 2 no record found of decision 1 (1927) Selectmen reluctant to establish a precedent, put off decision - house sold, no action ever taken Conditions imposed when permits granted 5 for family use only 4 time limitations (5 year; 1 year; duration of need for invalid caretaker) 4 no external changes (All were as proposed by the petitioner ) 2 specific external changes B 10 Requests for permits for an existing 2 family use 4 granted 3 denied (one in an outbuilding) 1 withdrawn (The Board ' s statement, "Before a variance can be granted, the owner must obtain a plumbing permit and install an interior stairway, unless a variance for a fire escape is obtained" ) 1 (1947) told, "No action necessary as the 2 family use already exists" 1 (1947) told, "No action necessary, only one kitchen" Conditions imposed when permits granted 1 for family use only 1 double door to be made single, stairway at rear (These were a part of the petitioner' s original plans ) C 3 requests for continuation of a permit granted earlier with conditions All required occupancy by the original owner' s family 2 were subsequent owners of one particular house 3 granted D 7 requests to build 2 family houses 1 Selectmen determined they had no power to grant under the Zoning By-Law 1 Selectmen told owner to take it up with the Building Inspector as it meant 2 houses on one lot No further notes in minutes 2 granted (One was considered "an appropriate transitional use, with substantial hardship to the petitioner if not granted" 3 denied Conditions imposed when permits granted 1 for parent' s use only E 5 requests for more than 2 apartments 0 granted 4 denied (2 were allowed 2 family permits) (1 asked for conversion of podltry house to 4 apartments , and of boiler house to 2 family) 1 withdrawn 19 THE SPECIAL PERMIT HEARING In 1929 , Town Counsel advised the Selectmen that before +deciding on the request before them, they should advertise a public hearing and; 'notify abuttors This has been done ever since It was noted at that hearing: that several houses in the area were being used as 2 family In denying, the Bloard voted to suggest that the Planning Board consider re-zoning the area for 2 family houses , but the suggestion was not followed Testimony at other early hiearings indicates that there were a significant number of 2 family houses in siirngle family districts when the first Zoning By-Law was passed REASONS FOR DECISIONS In granting or denying permits, the Board of Appeals early used the term "varies the Zoning By-Law"; and until its most recent 2 family conversion decisions , has used the standard variance language in describing its reasons for granting or denying the "exception" It has not used the term "Special Permit" While the phrase "substantially serve the public welfare and convenience" is always included, the idea that an apartment might really/ serve some public purpose has never been discussed. Furthermore, while "substantial hardship to the peti- tioner" is not supposed to play a part in Special Permit decisions, it has always been a consideration in the decision In 1944 a permit was denied in part because "the house is not unduly large for occupancy by one famiilly" , or in other words , no hardship was involved. In another case, a permit to, lbuild a 2 family house was granted in part because denial would cause substantial hiardship to the petitioner In other cases , the standard phrase is used, but not discussed in the statement In only a very few decisions have any specific findings ref fact been given, such as the one where a permit was denied because of an already serious sewage problem. "Impairment of the status of the neighborhood" , which mue t be considered in grant- ing either a variance or a Special Permit, seems to have weighed most heavily as a determining factor A study of the minutes of hearinge and of the official decisions lead to the conclusion that the appearance of neighborhood residents in opposition has , in itself, usually been taken as sufficikent evidence that the proposed conversion would impair the neighborhood's status The opposing argument at hearings , or on petitions, has always been some variation of, "This is a single family district, and a 2 family hawse would be detrimental to our neighborhood and reduce property values " In no, ease was actual evidence presented to verify the claim submitted, and in only 2 eases did the decisions actually discuss the subject (Once they stated that the 2 family use would "lower the general tone of the neighborhood" ; and an interestita[g 1961 denial stated "Evidence offered showed that this would be a 2 family blouse in a 1 family area, and would therefore be contrary to our Zoning By-Law 1 Yet when there was opposition by as few as 2 or 3 people, permits seem to 'have been denied; and when there was no apposition, they often seem to have been granted In the almost complete absence of findings of fact, it is the only coisistent pattern over the years Since "use" variances are no longer permitted, the Board of Appeals ' recent decisions have avoided variance language and have included discussions The dis- cussions indicate some confusion as to basic purpose and criteria For instance, a permit was granted on a 33, 710 sq ft lot because 'the lot is large enough to justify an apartment"; while 2 years later, a permit was granted on a 3,258 sq ft. lot 20 In the 1968 case of an 18 room house facing the green where a third floor apart- ment had been in use for years (perhaps pre-dating the Zoning By-Law, but that could not be proved) the Board considered "whether permission to convert to a 2 family house might eventually change the character of the dwelling facing the green " They wondered "whether an apartment within a one family house qualifies for conversion to 2-family", and"whether the so called apartment --- might re- quire major renovations for present day requirements" They also questioned whether third floors could be used for apartments, since our Zoning By-Law does not allow living quarters about the second floor in garden apartments It is evident that the Board of Appeals itself is, and always has been, puzzled as to just what the 2 family conversion provision should allow, is worried about allowing conversions over which they will have no future control , and feels the need for clarification and more tightly drawn controls CONDITIONS The Board of Appeals does have a statutory right to impose conditions in granting a permit At present, the by-law governing 2 family conversions is not very restrictive, requiring only that the 2 units each be at least 700 sq ft , that no major exterior changes be made except those necessary to meet state codes, that outdoor stairways be enclosed, and that the appearance of a 1 family dwelling be retained Yet the Board has rarely imposed conditions other than that the permit he temporary, or that the apartment be occupied by a family member In those cases where "no exterior changes" was a condition, the petitioner had stated that he planned no such changes And in the one case where a double front door was to be changed to a single, that was also a part of the petitioner' s plans Parking requirements, location and screening of parking , and other items that might effect the neighbors have never been discussed or made subject to conditions 21 ARTICLE 14 I ZONING BY-LAW ACCESSORY APARTMENTS To see if the Town will vote to amend the Zoning By-Law by a. inserting a new sub-section, as follows "5 2 ACCESSORY RESIDENTIAL USES IN ONE FAMILY DWELLINGS ACCESSORY APARTMENTS An accessory apartment is a second dwelling unit located within a structure constructed as a detached one family dwelling, subordinate in size to the prin- cipal dwelling unit and separated from it, in a manner that maintains the appearance of the structure as a one family dwelling 5 2 1 GENERAL OBJECTIVES The provision of accessory dwelling units in owner occupied one family dwellings is intended to 1) increase the number of small dwelling units available for rent in the town, 2) increase the range of choice of housing accommodations, 3) encourage greater diversity of population with particular attention to young adults and senior citizens, and 4) encourage a more economic and energy-effic- ient use of the town's housing supply, while maintaining the appearance and character of the town's single family neighborhoods 5 2 2 CONDITIONS AND REQUIREMENTS The Building Commissioner shall issue a building permit for a newly created accessory apartment in a detached, one family dwelling in an RO or RS district provided that each of the following conditions and requirements is met a General 1 The owner of the dwelling in which the accessory apartment is created, who shall be one or more individuals who constitute a family, who hold title directly or indirectly to the dwelling, and for whom the dwelling is the primary residence for voting and tax purposes, shall occupy either of the dwelling units in the structure, except for temporary absences as provided in paragraph 5 2 4 2 There shall be no more than one accessory apartment within a one family dwelling 3 There shall be no boarders or lodgers within either unit of a dwelling with an accessory apartment 4 The lot area shall be at least 10,000 square feet. 5 The net floor area of the dwelling shall have been at least 2,000 square feet as of January 1, 1983, which amount shall be verified in the rec- ords of the Building/Inspection Department or on a document, "Total Liv- ing Area of Dwellings as of January 1, 1983," prepared by the Board of Assessors 6 The maximum net floor area of the accessory apartment shall be 800 square feet or 30 percent of the net floor area of the dwelling as of January 1, 1983, whichever is greater 7 There shall not be more than two bedrooms in an accessory apartment 8 Each structure with an accessory apartment shall be connected to the public water and sewer systems - 23 b Exterior Appearance of a Dwelling with an Accessory Apartment The accessory apartment shall be designed so that the appearance of the struc- ture remains that of a one family dwelling, subject further to the following conditions and requirements 1 All stairways to second or third stories shall be enclosed within the exterior walls of the dwelling 2 There shall be no enlargements or extensions of the dwelling in connec- tion with any accessory apartment except for minimal additions necessary to comply with building, safety or health codes, or for enclosure of an entryway, or for enclosure of a stairway to a second or third story 3 .,:.y new entrance shall be located on the side or in the rear of the dwelling 4 Where there are two or more existing entrances on the front facade of a dwelling, if modifications are made to any entrance, the result shall be that one appears to be the principal entrance and other entrances appear to be secondary c Off-street Parking There shall be provided at least two off-street parking spaces for the principal Adwelling unit and at least one off-street parking space for the accessory apart- ment In order to maintain the appearance of a single family neighborhood all parking spaces on the lot shall be subject further to the following conditions 1 and requirements 1 Each parking space and the driveway leading thereto shall be paved or shall have an all-weather gravel surface 2 Not more than two outdoor parking spaces shall be located in the re- quired front yard All other parking spaces shall be either 1) out- door parking spaces located in a side or rear yard or 2) in a garage or carport 3 There shall be no more than four outdoor parking spaces on the lot 4 No parking space shall be located within the boundary of a street right- of-way 5 Parking spaces shall be located so that both the principal dwelling unit and the accessory apartment shall have at least one parking space with direct and unimpeded access to the street without passing through a parking space designated to serve the other dwelling unit 6 Where there are more than two outdoor parking spaces, there shall be provided suitable screening with evergreen or dense deciduous plantings, walls, fence, or a combination thereof in the area between the parking spaces and the nearest side lot line and, if the parking space is in the front yard and parallel to the street, in the area between the parking space and the front lot line Screening shall be sufficient to minimize the visual impact on abutters and to maintain the single family appear- ance of the neighborhood. 5 2 3 PROCEDURES a. No newly created accessory apartment shall be constructed without issuance of a building permit by the building commissioner b No use as an accessory apartment shall be permitted prior to issuance of a certificate of occupancy by the building commissioner 24 c The application for a building permit shall be accompanied by a filing fee and by such plans and other documentation related to the conditions and requirements of paragraph 5 2 2 as the building commissioner may require d. The building commissioner shall act on the application within 30 days of receipt e The building permit shall be posted conspicuously on the front of the dwel- ling f A certificate of occupancy shall be issued for a period not greater than three years Continued occupancy will require issuance of a new certificate of occupancy Proof of owner occupancy--shall be submitted with the applica- tion for a new certificate of occupancy g A certificate of occupancy shall be issued to the owner only, and is not transferable. A new owner shall apply for a certificate of occupancy fol- lowing the procedure set forth above 5 2 4 TEMPORARY ABSENCE OF OWNER An owner of a dwelling containing an accessory apartment who is to be absent for a period of less than two years may rent the owner's unit as well as the second unit during the temporary absence provided a. Written notice thereof shall be made to the building commissioner on a form prescribed by him. b. The residence shall be owner occupied for at least two years before such a temporary absence c The residence shall be owner occupied for at least two years between such temporary absences d The house shall remain the owner's primary legal residence for voting and tax purposes e Failure to comply with these conditions shall subject the owner to enforce- ment action. 5 2 5 REGISTRATION OF NON-CONFORMING UNITS CREATED BEFORE 1924 For a second dwelling unit which existed as of January 1, 1983, in a one family dwelling, in an RO or RS district, to be a non-conforming (lawful) use, the second dwelling unit must have been constructed prior to March 17, 1924 in a dwelling and have been in continuous use since that time with the exception of temporary non-use for a period not greater than twenty-four consecutive months To verify the nonconforming status of such a unit, an owner shall apply for a certificate of occupancy from the building commissioner prior to January 1, 1985 and shall present documentary evidence that 1) the second dwelling unit was constructed prior to March 17, 1924 and 2) that the unit was in use for any three years between 1978 and 1983, which shall, for this purpose, be considered prima facia evidence of continuous use since 1924, and the building commissioner shall issue a certificate of occupancy, which shall remain effective so long as the second dwelling unit remains in continuous use If sufficient evidence of construction prior to March 17, 1924 and of continued use is not presented, the second dwelling unit shall be considered a second dwelling unit in violation, and shall comply with paragraph 5 2 6 If an owner does not apply for a certificate of occupancy by January 1, 1985, he/she shall be required to present evidence of continuous use of the second dwelling unit since 1924 in order to obtain a certificate of occupancy, and shall be subject to penalties under paragraph 3 1 1 5 2 6 SPECIAL CONDITIONS, EXISTING SECOND DWELLING UNITS IN VIOLATION All second dwelling units which existed as of January 1, 1983, in a one family dwelling in an RO or RS district, except those which comply with paragraph 5 2 5 25 or those which were granted a special permit under Table 1, Use Regulations Schedule, line 1 6, dwelling conversion to two family, or similar provisions of preceding Zoning By-Laws, are in violation of the Zoning By-Law a All owners must apply to the building commissioner for a determination of compliance before January 1, 1985 Applications shall be accompanied by a filing fee and by such plans and other documentation related to the condi- tions and requirements of paragraph 5 2 2, as may be required by the build- ing commissioner b Within 90 days the building commissioner shall issue one of the following 1 A determination of compliance with paragraph 5 2 2, and a certificate of occupancy 2 A conditional determination of compliance with paragraph 5 2 2, describ- ing corrective changes needed to bring the second dwelling unit into compliance, which changes shall be completed within 90 days of the date of the conditional determination Upon successful completion of the required changes, the building commissioner shall issue a certificate of occupancy 3 A determination of non-compliance with one or more of the requirements of paragraph 5 2 2, together with a listing of those requirements and condi- tions with which compliance cannot be achieved through corrective changes 1 If there is compliance with at least subparagraphs 5 2 2 a 1, 2, and 3 5 2 2.b 1, and 5 2 2 c; or if such compliance can be achieved through corrective changes, the owner of a second dwelling unit built prior to 1961 is eligible to apply within 60 days of the date of the determination to the SPGA for a special permit for maintenance of an existing, non- complying apartment, subject to the special conditions in subparagraph 5 2 6 c, below If such application is not made, the second dwelling unit shall be terminated within one year of the date of the determination of non-compliance All other second dwelling units not in compliance with paragraph 5 2 2 shall be terminated within one year of the date of the determination of non-compliance c Special conditions for second dwelling units constructed prior to 1961 that comply with at least subparagraphs 5 2 2 a 1 2, and 3; 5 2 2 b 1; and 5 2 2 1 Upon presentation of evidence of construction prior to 1961 and of uses of the second dwelling unit for any three years between 1978 and 1983, which shall for this purpose be considered prima facia evidence of con- tinuous use, the owner may, within 60 days of the date of the determina- tion apply to the SPGA for a special permit for maintenance of an exist- ing non-complying apartment 2 The SPGA shall ordinarily grant a special permit to the existing non- complying second dwelling unit unless specific evidence is submitted supporting any claim that the unit has caused a deterioration of the single family neighborhood, a decrease in property values, or has caused any other substantial detrimental effect on the public welfare and con- venience In weighing such claims and evidence, the SPGA shall consider whether any changes required to bring the second dwelling unit into com- pliance are sufficient to counteract any prior negative impact. 26 3 In granting a permit, the SPGA may impose such additional conditions as it may deem necessary to protect the single family character of the dwelling, and to bring the dwelling as close to conformity with the con- ditions and requirements for new accessory apartments, paragraphs 5 2 2, as is feasible 4 If a special permit is granted and corrective changes are required, they must be completed within 90 days of the date of granting the permit When required changes are completed, the building commissioner will issue a certificate of occupancy 5 If a special permit is denied, the second dwelling unit shall be termi- nated within one year of the date of the denial d. Failure to comply with paragraph 5 2 6 shall subject the owner to enforce- ment action The second dwelling unit shall be terminated within six months of the date of notice from the building commissioner, and the owner shall be subjected penalties as provided in paragraph 3 1 1 for each day the second unit is in use after January 1, 1985 b 1) by deleting the following existing definitions from Section 2 DWELLING CONVERSION DWELLING, ONE FAMILY DWELLING UNIT FLOOR AREA FAMILY PARKING SPACE 2) by inserting the following new definitions in Section 2 in the proper alphabetical sequence ACCESSORY APARTMENT A second dwelling unit located within a structure constructed as a detached one family dwelling, subordinate in size to the principal unit and separated from it in a manner that maintains the appear- ance of the structure as a single family house BEDROOM. A private room, however named, planned and intended for sleeping, and separated from other rooms by walls and a door CERTIFICATE OF OCCUPANCY The certificate issued by the Building Commissioner which permits the use of a building in accordance with approved plans and which certifies compliance with the Zoning By-Law DWELLING A structure, or part of a structure, which 1) is designed or used primarily for human habitation; 2) contains one or more dwelling units; and 3) is capable of separate ownership DWELLING, ONE FAMILY DETACHED A dwelling which is designed for and occu- pied by not more than one family and surrounded by open space or yards and which is not attached to any other dwelling by any means DWELLING UNIT One or more rooms, designed, occupied or intended for occu- pancy as separate living quarters, with cooking, sleeping and sanitary facilities provided within the dwelling unit for the exclusive use of a single family maintaining a household. 27 FAMILY An individual, or two or more persons related by blood, marriage or adoption, living together as a single housekeeping unit and occupying one dwelling unit; or a group of individuals, not so related, but living together as a single housekeeping unit For purposes of controlling resi- dential density, not more than four unrelated individuals shall constitute a family FLOOR AREA, GROSS The sum, in square feet, of the horizontal areas of all floors of a building or several buildings on the same lot measured from the exterior face of exterior walls, or from the center line of a party wall separating two buildings Where the text of this By-Law refers to floor area, the term shall mean gross floor area unless the term net floor area is used FLOOR AREA, NET The sum, in square feet of the occupiable or habitable area in a building, which shall be determined by excluding the following from calculation of gross floor area a. areas used for parking or loading b areas devoted exclusively to the operation and maintenance of a build- ing, irrespective of its occupants, such as heating, ventilating and 1 cooling equipment, electrical and telephone facilities, fuel Storage, elevator machinery or mechanical equipment c the thickness of load bearing walls, at each floor d. elevator shafts and common stairways, and common hallways at each floor ie porches, balconies, fire escapes which are unroofed PARKING SPACE An area on a lot (off-street) available for the parking of one automobile, subject to the design standards of Section 9 8, but not including maneuvering space A parking space may be entirely outdoors or within a structure. ROOMING UNIT One or more rooms designed, occupied or intended for occu- pancy as separate living quarters for one roomer or boarder with sleeping facilities but no kitchen facilities c. In Table 1, USE REGULATION SCHEDULE, in line 8 1 1) by striking the words "Taking not more than three boarders or letting or renting of rooms without cooking facilities to " and substituting in place thereof the words "Rooming units, without kitchen facilities, for " so that the phrase, as amended, shall read "Rooming units, with- out kitchen facilities, for not more than three persons in an existing dwelling by a family resident therein* "; and 2) by redesignating lines 8 2 through 8 14 as 8 3 through 8 15 respectively 3) by inserting a new line 8 2, as follows "8 2 Accessory apartment subject to section 5 2" and under the column headed RO, RS the symbol "yes" and under all other columns in Table 1 the symbol "No"; and d In Section 9 8 PARKING AND LOADING REGULATIONS 1) by adding to sub-paragraph 9 8 1 a a second sentence, as follows "The requirement for free and unimpeded access to a street shall not apply to a one family dwelling " 2) In Section 9 8 5, SCHEDULE OF REQUIRED PARKING AND LOADING a) by adding in the third line, the words "of net floor area" after the words "s f - square feet" so that the third line, as amended, will read "s f - square feet of net floor area" 28 b) by striking the line "RO, RS boarding or lodging dwelling 1 for each boarder and lodger" and inserting in place thereof two new, lines under the headings indicated DISTRICT USE REQUIRED PARKING SPACES RO, RS accessory apartment 1 per dwellingeunit Any rooming unit 1 per rooming unit c) by adding a note at the end of the table for required parking spaces and before the table for required loading facilities as follows "NOTE to simplify the calculation of net floor area, 80 per cent of the gross floor area may be used." e 1) deleting the heading "5 1 SECTIONS CONTROLLING USES" and substituting in place thereof the heading "5 1 1 PERMITTED USES"; 2) inserting above the second paragraph in section 5 1, which begins "In the Use Regulations ," a new heading, "5 1 2 PRINCIPAL USES, ACCESSORY USES"; 3) renumbering sub-section "5 2" MORE THAN ONE CLASSIFICATION as "5 1 3"; 4) renumbering sub-section "5 3" USES NOT LISTED as "5 1 4" f By inserting a new section, as follows "5 3 CONVERSION OF ONE FAMILY DWELLINGS The SPGA may issue a special permit for the alteration of a one family dwelling to accommodate two families, executed such that a) The appearance and character of a one family dwelling is preserved. b) The gross habitable floor area for each family in such dwelling is at least 700 square feet. c) No major exterior structural changes are made, except such as may be required for safety by the General Laws of the Commonwealth d) Stairways leading to the second or any higher floor are enclosed within the exterior walls of the building or act in any other manner in relation thereto 29