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Board of Appeals

TOWN OF HINGHAM
Board of Appeals

NOTICE OF DECISION
VARIANCE

IN THE MATTER OF:

Owner/Applicant: Timothy J. Colton, Jr. & Tracey D. Colton

Property: 200 North Street
Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds, Book 44324, Page 130

Plan Reference: Plan entitled, "Certified Plot Plan, 200 North Street - Hingham," prepared by Cavanaro Consulting, 687 Main Street, Norwell, MA, dated May 13, 2015

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the "Board") on the application of Timothy J. Colton, Jr. & Tracey D. Colton (collectively, the "Applicant") for a Variance from § IV-A of the Zoning By-Law (the "By-Law") and such other relief as necessary to maintain a heat pump within the side yard setback at 200 North Street in Residence District A.

A public hearing was duly noticed and held on May 13, 2015 at the Town Hall, 210 Central Street. Subsequent sessions were held on June 29, 2015 and August 10, 2015. The Board panel consisted of its regular members W. Tod McGrath, Chairman, Joseph M. Fisher, and Joseph W. Freeman. The Applicant, Timothy J. Colton, Jr. & Tracey D. Colton, appeared to present the application. At the conclusion of the hearing, the Board voted unanimously to grant a Variance from the side yard setback requirements under § IV-A of the By-Law, permitting the Applicant to maintain a heat pump 5.2' from the westerly side property line where 15' is required at 200 North Street in Residence District A.

Throughout its deliberations, the Board has been mindful of the statements of the Applicant and the comments of the general public, all as made or received at the public hearing.

BACKGROUND

The subject property consists of approximately 8,616 SF improved by a preexisting nonconforming single-family dwelling (ca. 1920). The lot is 50' wide and 175' long. The Property abuts the MBTA commuter rail to the rear. The is limited by the presence of a floodway to the rear, and the location of the existing residence, shared driveway and garage, and a deck upon a narrow lot.

The Building Department received complaints about an existing heat pump on the Property that is located to the immediate west of the approximate midpoint of the residence and within the required side yard setback. After inspection, the Building Commissioner determined that the existing heat pump was installed without the benefit of permits. The Commissioner issued zoning violation notices to the owners on December 29, 2014, January 6, 2015 and March 23, 2015, which each stated that the location of the unit required a variance.

The owners submitted a variance application on April 2, 2015 in an effort to remedy the violation. The initial application requested relief to maintain the heat pump 6.5' from the westerly side property line where 15' is required in Residence District A. The filing was supplemented shortly before the initial hearing with the referenced site plan showing the current location of the unit, which is actually 5.2' from the westerly side property line.

During the initial hearing an abutter expressed concern related to the proximity of the unit to his adjacent property and the safety of his children. The applicants offered to add additional fencing and landscaping to minimize any visual or noise impacts generated by the pump and protect children from any moving parts within the unit. The Applicant submitted a revised site plan in advance of a subsequent hearing showing the location of a proposed fence (10' in width, 16' in length and 6' in height). The Applicant then requested a continuance of the Board's proceedings to allow time to complete permitting of the proposed fence through the Historic Districts Commission. The Commission issued a Certificate of Appropriateness on August 7, 2015 permitting a cedar fence with a flat top rail and landscaping, both with a maximum height of 4'.

FINDINGS

Based upon the information submitted and received at the hearing, and the deliberations and discussions of Board members at the meeting, the Board has determined that:

1. Circumstances related to soil, shape, or topography especially affect the land or structure in question: The subject property is limited in the rear by the presence of a floodway and FEMA Flood Zone AE. The applicant represented that these circumstances also result in a high water table in the rear of the lot. The submitted site plan demarcates the top of the Town Brook riverfront bank at the extreme rear of the property. Riverfront regulations limit work within 100' of a bank, precluding location of the heat pump anywhere beyond the back third of the dwelling. The narrow shape of the lot, at just 50' in width, exists elsewhere in the neighborhood but is not common throughout Residence District A. Finally, the location of the preexisting nonconforming single-family dwelling in combination with a shared right-of-way and detached garage upon the lot are circumstances that do not more generally affect the zoning district.
2. Owning to these circumstances, literal enforcement of the By-Law would involve substantial hardship: The soil conditions, shape of the lot, and location of the existing historic residence, shared driveway and garage result in both physical and regulatory barriers to any by-right location of the mechanical equipment.

3. Relief may be granted without substantial detriment to the public good: The applicant will install fencing and landscaping to mitigate any potential adverse impacts resulting from the location of the mechanical equipment.

4. Relief may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law: The granting of a dimensional variance in this instance is consistent with the purposes of the By-Law in that it secures safety from flood and conserves natural resources.

DECISION

Upon a motion made by Joseph W. Freeman and seconded by W. Tod McGrath, the Board voted unanimously to grant a Variance from § IV-A of the By-Law to allow the Applicant to maintain a heat pump 5.2' from the westerly side property line where 15' is required at 200 North Street in Residence District A, subject to the following conditions:

1. The rights authorized by this Variance shall expire one year from the date this Decision is filed with the Town Clerk, unless exercised or extended in accordance with the terms of M.G.L. c. 40A, § 10.

2. The Applicant shall construct the Project in a manner consistent with the approved plans and the representations made at the hearings before the Board such that:
a. The approved 4'-high fence shall consist of cedar with a flat top rail as presented in a submitted photograph;
b. The approved landscaping shall consist of hydrangeas, lilacs, and other flowering plants in a number sufficient to minimize the visibility of the fence and heat pump , but shall not exceed 4' in height;
c. The unit, if replaced at some point in the future, shall not be located any closer than 5.2' to the side property line, nor shall it exceed 4' in height.

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 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,