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Board of Appeals

NOTICE OF DECISION
VARIANCE

IN THE MATTER OF:

Owner/Applicant:       Katharine Derum
 
Property:                  41 Kimball Beach Road
                              Hingham, MA 02043

Deed Reference:        Plymouth County Registry of Deeds, Book 44809, Page 94

Plan Reference:          Plans entitled, "Proposed Building Plan, 41 Kimball Beach Road in Hingham, MA (showing front porch footprint)," prepared by Cavanaro Consulting, 687 Main Street, Norwell, MA, dated October 21, 2014; "Proposed Garage Plan, 41 Kimball Beach Road in Hingham, MA," prepared by Cavanaro Consulting, dated January 30 2015 and revised March 30, 2015; unsigned, undated drawing showing rear porch footprint, submitted April 14, 2015; and architectural plan set entitled, "Derum Residence New Construction," prepared by Susan Acton Interiors, dated September 19, 2014, Drawings A1 - A7 and S1.

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the “Board”) on the application of Katharine Derum (the “Applicant”) for a Variance from § IV-A of the Hingham Zoning By-Law (the “By-Law”) to (i) to allow for the construction of portions of front stairs, related porch extensions and rear deck extensions within the side yard setback and (ii) to allow for the reconstruction and enlargement of an existing one-car garage within the required front and side yard setbacks at 41 Kimball Beach Road in Residence District A.

A public hearing was duly noticed and held on March 18, 2015, at the Town Hall, 210 Central Street. The hearing was continued to April 22, 2015 at the Applicant's request. The Board panel consisted of its regular members W. Tod McGrath, Chairman, Joseph M. Fisher, and Joseph W. Freeman.  The Applicant was represented by Attorney Jeffery A. Tocchio, Drohan, Tocchio & Morgan, P.C.  On April 14, 2015, Applicant’s counsel provided a supplemental filing that withdrew the request for the Variance relating to the front setback (garage), reduced the areas of requested side yard Variances relating to the rear deck and garage reconstruction, and withdrew a request for issuance of a Special Permit A1 to allow for conversion to a two-family residence under Section III-A, 1.2.  At the conclusion of the hearing, the Board voted unanimously to grant the requested Variances from the side yard setback requirement under Section IV-A of the By-Law, subject to the conditions listed.

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 contains 8,032 +/- s.f. of land located on the northeast side of Kimball Beach Road, and is located within the Residence A Zoning District.  The property was improved by a pre-existing, legally non-conforming residential structure and single-car garage (10’ 4” wide x 18’ 4” long). The Building Department issued permits to allow for the reconstruction of the single-family dwelling under the provision of Section III-I(2) (the “Hatfield Amendment”).  The new residence is presently under construction and the Applicant now seeks relief to add porches and associated exterior stairs within the side yard setback at both the front and rear of the primary structure. The proposed plan also calls for reconstruction of the detached, undersized garage, which is located only 0.6' from the southeasterly property line, resulting in a 12' x 24' footprint. 

The lot is level with Kimball Beach Road at the front yard, and slopes approximately 6' - 7' downward to the rear of the property. The lot contains 50' of frontage and that width continues to the rear of the lot, resulting in a long, rectangular lot shape.  The application of 15' side setbacks effectively reduces the width of the traditional building envelope to a narrow 20-foot strip.  The original dwelling on the Property was a 2-bedroom bungalow, setback 6.4' from the northwesterly sideline, and 12.7' from the southeasterly sideline.  The new dwelling under construction holds those setback distances or greater, and the porches and decks subject to this Variance will also maintain or increase these setbacks.  The Applicant noted that the Hatfield Amendment permits the alteration of, addition to and reconstruction of, existing nonconforming dwellings that create useable floor area; however, the Hatfield Amendment does not permit unenclosed projections such as stairs, decks, or landing areas.  As a result, while dwelling areas of a reconstructed home may be allowed into a setback, non-dwelling areas such as attached stairs, porches or decks extending into a setback require a Variance if they exceed 30 s.f. in area in the aggregate.
           
Following an initial hearing on March 18, 2015, the Applicant revised her plans to reduce the length of the proposed new garage from 28’ to 24’, and locate the proposed garage 25’ from the property frontage; thus eliminating a pre-existing non-conformity with respect to front yard setback.  Additionally, a portion of rear deck area extending into the side setback was eliminated, and replaced with a proposed landing and stairs, with the landing and stairs extending only 6’ 2” into the 15’ side yard setback.  The Applicant provided the Board with photographs of other properties within similarly designed and sized front porches to support the remaining request for relief related to the extension of porches at the front of the house.

During the hearing, the Board members discussed the Applicant’s proposed project and the circumstances relating to the necessity of variances from the side-yard setback requirements specified in Section IV-A of the By-Law. 
FINDINGS

Based upon the information submitted and received at the hearing, the Board made the following findings:

1. There are circumstances relating to soil conditions, shape or topography especially affecting the land but not affecting generally the zoning district.  The property is affected by a confluence of circumstances, including a narrow shape resulting in a 20'-wide “as-of right” building envelope, a significant downward slope of approximately 6-7' from the midpoint to the rear of the property, and both the property layout as dictated by the original 1926 home and garage, as well as the siting of the new permitted home under construction.  The Applicant's counsel acknowledged that other narrow, undersized or sloped lots do exist in the neighborhood; but the Board found that the combination of circumstances listed above affecting the property do not otherwise affect the neighborhood or zoning district more generally. 
   
2. The literal enforcement of the By-Laws would involve substantial hardship financial or otherwise.  The proposed porches would allow for safe use of areas on what is a narrow lot. Literal enforcement of the By-Law would result in the termination of attached porches and decks at the 15-foot side setback line, while the main structure has been permitted to extend into the same side setbacks.  This would result in difficult and unsafe entry and egress into and out of the home, as well as other negative impacts.  The existing non-conforming garage is undersized and damaged owing to surface drainage problems.  If the By-Law is literally enforced with respect to the garage setbacks, the Applicant would be faced with either performing costly repairs and required elevation of a damaged, undersized garage, or allowing the existing garage to further deteriorate and suffer casualty, to the detriment of the property and neighborhood.
3. A Variance may be granted without substantial detriment to the public good. The proposed project will not create any noise, traffic or result in other similar negative impacts.  The design of the proposed porches and garage is consistent with the character of the neighborhood and other single family residential uses in the Residence A Zoning District.  There will be no adverse effects on the neighborhood and there will be no harm to the public good; and
4. A Variance may be granted without nullifying or substantially derogating from the intent or purposes of the By-Law.  The Variances requested are generally consistent with the provisions of the Hatfield Amendment, and allow for safe utilization of useable floor area constructed in accordance with the By-Law.   With respect to the garage reconstruction, the Board has recognized the benefits of allowing for the reconstruction and enlargement of pre-existing non-conforming garages, to allow for the functional use of such structures.  The modest increase in the size of the pre-existing non-conforming accessory structure in no way derogates from the intent or purposes of the By-Law.  The record shows that the proposed structure is appropriate for the neighborhood in which it is to be built.

                                                         
DECISION

Upon a motion made by Joseph M. Fisher and seconded by Joseph W. Freeman, the Board voted unanimously to grant a Variance from the side yard setback requirement under § IV-A of the By-Law approving construction of (i) stairs and a landing at the rear of the home, (ii) extension of the first and second-story porches at the front of the home, and (iii)  a single-story garage, on a 12’ x 24’ footprint, and located no closer than 0.6-feet from the southeasterly property line, 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:

1. the side yard setback from the westerly property line measured to the two-story front porch and associated stairs shall be no less than 6.4';
2. the side yard setback from the westerly property line measured to the landing and stairs to the rear deck shall be no less than 8.8' ; and
3. the reconstructed garage footprint shall be no greater than 12' wide and 24' in length.

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,