Zoning Board of Appeals Decisions and Pending Applications

Owner/Applicant:Hugh and Maryellen McLaughlin

Bay Head Realty Trust

Premises:4 Steamboat Lane, Hingham, Massachusetts

Deed Reference:Plymouth Registry of Deeds, Book 36903, Page 214

SUMMARY OF PROCEEDINGS:

This matter came before the Zoning Board of Appeals on the Application of Hugh and Maryellen McLaughlin, Bay Head Realty Trust (the "Applicants") seeking side and rear setback Variances from Section IV-A of the Hingham Zoning By-Law so as to allow for (i) the reconstruction of an existing enclosed porch; and (ii) the construction of a new 9'-0" x 14'-6" deck with stairs and a 3-foot high railing at 4 Steamboat Lane (the "Property'), in Residence District C.

This matter was duly heard before the Board of Appeals at the Hingham Town Hall on March 19, 2009 and April 9, 2009.The panel consisted of regular members W. Tod McGrath, Chairman, Joseph M. Fisher and Joseph W. Freeman.Attorney Jeffery A. Tocchio represented the Applicants.

The Applicants filed a Form 2B with the Board on February 24, 2009, and a Supplement to the Form 2B on April 9, 2009.The Applicants submitted a legal memorandum on April 6, 2009 concerning M.G.L. c. 40A, § 6, and the application of Section III-H (6) of the Zoning By-Law (the "Hatfield Amendment") to the proposed project.The Building Commissioner submitted a letter dated April 9, 2009 relating to the Building Department's application of Section III-H (6) to the proposed alteration of, addition to, reconstruction of, extension of, or structural change in an existing nonconforming single or two-family residential building or structure.The Applicants received an Order of Conditions from the Conservation Commission dated March 10, 2009.Public comments were solicited at public hearing.

BACKGROUND:

The Property is comprised of approximately 26,800 square feet of land bounded by Hingham Harbor.Of the total land area, approximately 3,487 square feet of land is identified as lying below mean low water.The westerly portion of the Property is characterized by stone seawalls, and fill, and is properly described as a wharf.The seawalls, constructed long ago, themselves constitute a "structure" under the Definitions at Section VI of the Zoning By-Law. The Property is bisected by a deeded right of way, which provides access between Summer Street and the neighboring homes at 7 and 8 Steamboat Lane.

The portion of the Property located to the east of the right of way rises approximately 20-feet in a steep grade leading to the paved portion of Steamboat Lane.The utility of the easterly portion of the Property leading to, and including a portion of Steamboat Lane is severely limited, in that (i) it is too steep to be traversed by a vehicle; and (ii) is the location of a private wastewater disposal system.The Property does not have legal frontage as defined under Section VI of the Zoning By-Law, therefore relief from the rear yard setback provision of the Zoning By-Law is not required.

The Property is improved with a single-family residence that is located approximately 10-feet from the top of the seawall along the westerly edge of the Property, to which an existing two-story enclosed porch is attached and perched along the top of that seawall.The existing two-story enclosed porch is attached to the west side of the single-family home located at the Property, and situated only 1.3 feet from the westerly lot line.Because the existing porch is unheated, it does not qualify for protection under Section III-H (6) of the Zoning By-Law. The existing single family structure and porch are located within the 20-foot side yard setback under Section IV-A of the Zoning By-Law.The Applicants filed the following plans, prepared by Cavanaro Consulting, with the Zoning Board of Appeals:

The Applicants plan to reconstruct and enlarge the existing single-family residence, and seek to: (i) construct a new one-story porch on the existing concrete block piers and westerly basement foundation wall, and porch substructure; and (ii) construct a new deck with stairs and railings.The reconstruction and enlargement of the house is allowed as of right under Section III-H (6) of the Zoning By-Law.However, neither the porch reconstruction nor construction of the new deck with stairs and a 3-foot high railing qualify for protection under Section III-H (6) of the Zoning By-Law; thus a Variance from Section IV-A is required.

At its meeting on March 19, 2009, the Board asked the Applicants' counsel to explain how the decision issued by the Massachusetts Supreme Judicial Court in Bjorklund v. Zoning Board of Appeals Norwell, 450 Mass. 357 (2008), applying G.L. c. 40A, § 6, impacted the Applicant's proposed expansion project at the Property which might otherwise be allowed as of right under Section III-H (6) of the Zoning By-Law.At its meeting on April 9, 2009, the Board reviewed and discussed the submissions on this legal question provided by the Applicant's counsel and by the Building Commissioner.The Board agreed with the Applicants' counsel that the Bjorklund decision's analysis of the Norwell Bylaw did not apply to the Hingham By-Law because, unlike Norwell, the Hingham By-Law specifically exempts the expansion of an existing nonconforming single family structure meeting the criteria set forth in Section III-H (6) (a) and (b) from the definition of what qualifies as the "extension of a nonconforming use."The Board observed that the expanded footprint of the proposed project would not intrude any further than the existing dwelling into any required setbacks and that the proposed expansion would comply with all applicable height requirements.The Board concluded that the Applicants did not need to apply for a variance to increase the footprint of the existing single-family dwelling on the Property.

Following the closing of the public hearing and deliberation, the Zoning Board of Appeals voted unanimously to grant a setback Variance from Section IV-A of the Zoning By-Law to allow for: (i) the reconstruction of an existing enclosed porch; and (ii) the construction of a new 9'-0" x 14'-6"deck with stairs and a 3-foot high railing, in substantial accord with Architectural Plans prepared by Sally Weston Associates submitted 02/16/09, which consist of:

The Variance is granted, subject to the conditions that the Applicant shall document the condition of the seawall: (i) prior to any excavation activities relating to the construction of foundation elsewhere on the Property, not adjacent to the seawall; (ii) coincident with the filing of a foundation "as-built" plan with the Building Commissioner; and (iii) coincident with the filing of complete "as-built" plans relating to the completed project.Such reporting shall be made in consultation with a registered structural engineer.The Applicant's structural engineer shall address and respond to inquiries forwarded by the Building Commissioner relative to the condition of the seawall.

In granting the requested relief, the Board found that the shape, topography, and soil conditions are very unique relative to other properties lying in the Residence C District.The existence of the steep slopes at the easterly portion of the Property, and the bisecting deeded right of way, have contributed to cause the development of the existing structure, and porch, to be placed in the westerly portion of the Property, adjacent to the seawall.The utility of the easterly portion of the Property leading to, and including a portion of Steamboat Lane is severely limited, in that (i) it is too steep to be traversed by a vehicle; and (ii) is the location of a private wastewater disposal system.The Board determined that the proposed reconstruction of the porch will minimize the potential surface and subsurface disturbance atop and adjacent to the seawall.The Board, abutters, and the Applicants expressed concern regarding the preservation of the seawall.The proposed new 9'-0" x 14'-6" deck, with railing and stairs, will allow for people to transition from the porch and first-floor elevation proximate to the seawall, yet on a safe and stable platform.

A literal enforcement of the Zoning By-Law would likely result in the removal of an existing structure with proven efficacy in protecting people, as well as the residential structure, and the land adjacent to and atop the seawall.The base of the existing porch is comprised of concrete block piers to allow for tidal flow, and sea-stone.The Applicant cited the recommendations of their civil and structural engineers, that the existing base, including the existing west foundation wall of the residence, be retained, without disturbing the area between the west wall and the easterly face of the seawall.While the Applicant did not produce studies or cost estimates relating to the reuse of the west foundation wall and porch piers and substructure versus the construction of a new foundation wall, the Board finds that their proposed course of action eliminates direct risk to the integrity of the seawall.Minimizing the risk of damage to the seawall avoids potential financial, ecological and historic hardships.

Finally, the Board further determined that a Variance may be granted without substantial detriment to the public good, and is consistent with the intent and purpose of the Zoning By-Law, in that a functional porch already exists within the setback, albeit with a second story.The proposed porch reconstruction will remove the second story, thus reducing generally the "degree" of the pre-existing non-conformity.The porch will be visible from the waterside only, and will not impede view or otherwise cause detriment to the public.Moreover, the side yard is immediately adjacent to Hingham Harbor, and there is no possible use of the land west of the side yard as it is seaward of mean low water, and thus the protections provided by the setback requirements are moot in this very unique circumstance.

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.