Zoning Board of Appeals Decisions and Pending Applications

Applicants and Helene Feeley, 31 Bel Air Road, Hingham, MA

Property Owners: as Executor of the Estate of Helene G. Buckley

together with

Michael & Ann MacCune, 9 Bel Air Road, Hingham, MA

as heir of the Estate of Helene G. Buckley

Premises: 38 Planters Field Lane

Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds, Book 04786, Page 0160

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals on the application of Helen Feeley, 31 Bel Air Road, Hingham, MA as Executor of the Estate of Helene G. Buckley, together with Michael and Ann MacCune, 9 Bel Air Road, Hingham, MA as heir of the Estate of Helene G. Buckley, for a Variance from §IV-C, 4 of the Zoning By-Law and such other relief as necessary to maintain the existing dwelling during construction of a new dwelling on the same lot at 38 Planters Field Lane, in Residence District A, demolishing the older dwelling upon completion and occupancy of the new dwelling.

A public hearing was duly held on Wednesday, November 5, 2008 at the Town Office Building before a panel consisting of regular members W. Tod McGrath, Chairman, and Joseph M. Fisher and Joseph W. Freeman.

FACTUAL BACKGROUND

The Premises consist of approximately 8.75 acres of land, improved with a single family home built in the 1800’s with frontage on Planters Field Lane. The existing dwelling conforms to all zoning setbacks. The new dwelling will be constructed behind the existing dwelling and will meet all zoning setback requirements as well as be further from abutting properties.

The Applicants are heirs to their parent’s estate which includes the single family home at 38 Planters Field Lane. The Applicants had planned to renovate the existing dwelling and move into it, but have determined that its age, poor physical condition and layout, and substandard wiring and plumbing, make it financially infeasible to properly restore and expand. More specifically, a renovation of the existing dwelling would require (from a practical standpoint) that the house be gutted in order to bring it up to current building codes. Applicants plan to sell

their existing single family home at 9 Bel Air Road and move into the existing dwelling while the new home is being constructed.

If the Applicants demolished their existing dwelling before building the new dwelling, this would force the Applicants and their family to have to relocate from the Premises for an extended period of time, causing financial and personal hardships. The Applicants, therefore, propose to construct a new dwelling immediately behind the existing dwelling, and promptly demolish the existing dwelling when the new dwelling is complete.

At issue before the Board of Appeals is Section IV-C, 4 of the Zoning By-Law which prohibits more than one dwelling on any single lot. The Building Commissioner has interpreted Section IV-C, 4 to prohibit not only the occupancy of more than one dwelling on a lot, but also the construction of more than one dwelling on a lot. Accordingly, the Applicants are requesting a Variance from Section IV-C, 4 in order to allow them to occupy the existing dwelling on the front of the lot while the new dwelling is being constructed immediately to the rear.

At the hearing, the Applicants testified that they would promptly demolish the existing dwelling upon receiving a certificate of occupancy for the new dwelling and that the relief they are requesting may be granted without substantial detriment to the public good because the new dwelling will be conforming to the dimensional requirements of Zoning By-Law for Residence District A.

At the public hearing the Applicants represented themselves. One abutter closest to the Applicants parcel spoke in support of the project, but did raise concerns about potential blasting that may have to be done on site due to ledge that exists. Their concern extended to the potential for damage to their own dwelling during this process. The Hingham Building Commissioner was in attendance at the hearing and stated that a pre-blast survey would be required along with the posting of a bond to insure against any damage that may occur. No abutters spoke against the granting of the Variance. The Applicants presented both a site plan and design plans for the new dwelling in connection with their Variance application. The site plan indicates that the new dwelling will be conforming with respect to the dimensional requirements of the Zoning By-Law.

The Board voted unanimously to GRANT the VARIANCE. In granting the requested relief, the Board found that owing to circumstances relating to the soil conditions, shape or topography which especially affect the premises, but do not affect generally the zoning district in which the premises are located, a literal enforcement of the Zoning By-Law would create a hardship to the Applicant.

The Board determined that the condition of the existing dwelling combined with the topography of the lot and the fact that the new dwelling will not be in violation of any zoning setbacks, justified the Board finding that the requested Variance might be granted without detriment to the public good and without substantially derogating from the intent or purpose of the Zoning By-Law. The Board also determined that forcing the Applicants to move from and demolish the existing dwelling prior to completion of the new dwelling would involve significant financial costs to the Applicants and cause significant inconvenience and disruption to their family; accordingly, a literal enforcement of Section IV-C, 4 would involve financial hardship to the Applicants.

1. The Building Commissioner shall not issue a Building Permit until the Applicants have delivered to the Town a $5,000 performance bond in favor of the Town and in form acceptable to the Building Commissioner and Town Counsel, together with such other documentation as Town Counsel may reasonably require, for purposes of insuring final demolition and removal of the existing dwelling by the Town if the same has not been completed by the Applicants within twenty-five (25) months from the date of commencement of construction of the new dwelling;

2. The new dwelling must be completed and must have received a Certificate of Occupancy within twenty-four (24) months from the date of commencement of construction of the new dwelling. Further, upon completion of the new dwelling, the existing dwelling must be demolished and removed within 90 days; an extension may be granted if deemed appropriate by the Building Commissioner. If these conditions are not satisfied, the Variance granted herein shall automatically lapse and be of no further force and effect, and, absent further relief from this Board, the Applicants shall be obligated to immediately demolish and remove the existing dwelling;

3. No permanent Certificate of Occupancy shall be issued to the Applicants until the demolition and removal of the existing dwelling has been completed to the satisfaction of the Building Commissioner.

This decision shall not take effect until a copy of the decision bearing the certification of the Town Clerk, that twenty (20) days have elapsed since the decision has been filed in the office of the Town Clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is recorded with the Plymouth County Registry of Deeds and/or the Plymouth County Land Court Registry, and indexed in the grantor index under the name of the record owner or is recorded and noted on the owner’s certificate of title.