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TOWN OF HINGHAM

BOARD OF APPEALS

IN THE MATTER OF:

Applicant:                   Hingham Square Townhomes LLC

Premises:                    229 North Street

                                    Hingham, MA  02043

Deed Reference:       Plymouth County Registry of Deeds Book 1992, Page 378

SUMMARY OF PROCEEDINGS:

            This matter came before the Zoning Board of Appeals on the application of Hingham Square Townhomes LLC (the “Applicant”) for the Modification of a Comprehensive Permit previously issued pursuant to Massachusetts General Law Chapter 40B, Sections 20-22 (“Chapter 40B”).  The proposed modifications include the relocation of the single family dwelling (“Heresy House”) and the modification of the Site Plan of the approximately 3.3 acre site located at 229 North Street (the “Property”), in the Official and Open Space District.

            Public hearings on the matter were duly noticed and held over the course of several months commencing on November 19, 2008, and continuing thereafter on December 10, 2008, and concluding on January 8, 2009.  All public hearings were held at the Town Hall before a panel consisting of regular members Stephen J. McLaughlin, Chairman,  W. Tod McGrath and Joseph M. Fisher.

FACTUAL BACKGROUND:

      The Zoning Board of Appeals previously granted a Comprehensive Permit by Decision dated May 27, 2008, amended through June 20, 2008, for the development of this 144,882 sq. ft. parcel located on North Street, consisting of Lot #1, containing 34,815 +/- sq. ft. (the “Hersey Lot”) and Lot # 2, containing 110,067 +/- sq. ft. (the “Townhome Lot”) as shown on the previously approved Site Plan, Sheet 3 of 13, being labeled also as Assessor’s Map 60, Lot 143.

THE APPLICANT’S PROPOSAL:

The Applicant now proposes to amend the Site Plan to allow for the relocation of the Hersey House to move it away from the roadway which will provide access to the proposed Townhome structures.  The Applicant indicated that such relocation of the Hersey House was also necessitated by the revelation that an in-ground fuel oil storage tank was located in an unknown but close proximity to the foundation of the Hersey House and that a second fuel oil storage tank was located under the structure.

            The Zoning Board of Appeals, and several interested citizens, expressed concern that during the initial hearing for the approval of the Comprehensive Permit, there was considerable concern and discussion with regard to maintaining the Hersey House in it existing location.  As the hearings on this proposed modification progressed there were conflicting accounts as to whether the plans and schematics submitted with the original Comprehensive Permit application depicted a relocation of the Hersey House.  During this hearing process it was revealed, for the first time, that the Hersey House was to be moved laterally, towards the West.  Further review confirmed that an ‘existing conditions’ and ‘proposed conditions’ plan revealed a relocation of the Hersey House but such relocation was never revealed in testimony or at any point during the initial hearing, and approval, process.

During this hearing process it was also revealed that some of the plans submitted to the Zoning Board of Appeals during the initial permit process contained inaccuracies in the depiction of the footprint of the Hersey House. At the same time, some of the plans showing the proposed redevelopment of the Hersey House provided a more accurate measurement of the proposed footprint, but contained erroneous statements as to the square footage of the footprint.

As a result of these inconsistencies caused by a lack of quality control in the Applicant’s submissions, the Zoning Board of Appeals was faced with the task of determining how the purpose and intent of the original Comprehensive Permit could best be accomplished while incorporating the new information on the accurate proposed and approved locations of the various structures.

Submittals from Applicant

The Applicant submitted a proposed new Site Plan depicting the proposed relocation of the Hersey House.  At the request of the Zoning Board of Appeals the Applicant prepared and submitted several variations of the Site Plan to depict the potential relocation of the Heresy House and the adjacent Building B Townhome structure with respective changes to lot lines and setbacks from lot lines.

Public Comment

During the course of the hearings on the request for Modification, the Board took testimony and received correspondence from various individuals, including town residents, numerous neighbors and property owners in the vicinity of the Project as well as representatives of the Board of Selectmen, and Historic Districts Commission.  The Applicant responded orally and in writing to the issues raised by the Board and other interested parties.

FINDINGS AND DECISION:

After reviewing the evidence and extensive testimony, the Board voted unanimously to GRANT the Modifications to the Comprehensive Permit and Site Plan as follows:

Modification and Relocation of Hersey House:  The Applicant is permitted to relocate and redevelop the Hersey House at the location as depicted on the modified Site Plan (revised as of December 17, 2008) which is approved herewith upon the condition that the legend on the Site Plan is corrected to accurately reflect the Board’s decision. 

In addition Condition #21 of the original Comprehensive Permit is modified such that the footprint of the Hersey House, including the footprint of the garage, shall be no more than 2,700 sq.ft.  The construction plans for the Hersey House shall be reviewed and approved by the Building Commissioner to assure compliance with this footprint square footage limitation.

Modification of Site Plan: the zoning waivers #4, 5, and 7 are modified consistent with the approved modified Site Plan such that rear yard and side yard setbacks shall be no less than ten (10’) feet, and the setback between enclosed structures shall be no less than twenty (20’) feet.

The Zoning Board of Appeals will endorse a modified ANR plan depicting the parcels, as consistent with the revised Site Plan.

Miscellaneous:

1.         The Applicant shall provide “as-built” plans for all structures.

2.         The Zoning Board of Appeals approves the above-referenced modifications but in doing so expresses no opinion whatsoever with respect to the rights and authority of the Board of Selectmen  with respect to conveying the parcels, or declining to convey the parcels to the Applicant, and/or whether the relocation of the Hersey House is consistent, or inconsistent, with the previous actions and/or votes of the Board of Selectmen.

3.         The Applicant is reminded that obtaining any other permits and/or approvals necessary for the relocation of the Hersey House remain the responsibility of the Applicant and this Decision is not intended to affect any such permit and/or approval process.

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.

                                                                                    For the Board of Appeals

                                                                                    ___________________________

                                                                                    Stephen J. McLaughlin

                                                                                    February 12, 2009