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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
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
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.
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'.
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
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.
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,