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Board of Appeals




Owner/Applicant: Nathan H. and Elizabeth J. Thorsteinson
73 Hersey Street
Hingham, MA 02043

Premises: 73 Hersey Street
Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds Book 38156, Page 130

Plan Reference: Site plan entitled, "Survey Report in Hingham, Massachusetts, 73 Hersey Street," prepared by CS Kelley Land Surveyors, Pembroke, MA, dated November 1, 2012, revised through February 17, 2015, and drawings for "Proposed 17' x 19' Exterior Deck at 73 Hersey Street," undated.
This matter came before the Board of Appeals (the "Board") on the application from Nathan and Elizabeth Thorsteinson (collectively, the "Applicant") submitted an application for a Variance from §IV-A of the Zoning By-Law (the "By-Law") and such other relief as necessary to construct a deck within a side yard setback resulting in a 9.7' setback where 15' is required at 73 Hersey Street in Residence District A.

A public hearing was duly noticed and held on February 11, 2015, at the Town Hall, 210 Central Street. The Board panel consisted of its regular members Joseph M. Fisher and Joseph W. Freeman, and associate member Robyn S. Maguire. The Applicant appeared to present the application. At the conclusion of the hearing, the Board voted unanimously to grant a Variance from the side yard setback requirement under § IV-A of the By-Law.

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 6,827 SF and includes a single-family residence and detached garage. The proposed plan calls for construction of a 19' x 17' deck to the rear of the house. The proposed deck would extend the nonconforming side yard setback of the existing residence, which is 9.7' from the southerly side property line, by 17'. This construction would result in approximately 164 SF incursion where 30 SF would be permitted by-right under the Projections exemption contained in Section IV-C, 7 of the By- Law.

During the hearing, the Applicant indicated that acidic soils, a narrow shape and grade changes especially affect this property and not others in the district. The location is also limited by the placement of the garage in relation to the house. The Applicant said shifting the deck to the north in order to increase the setback on the south would require removal of the existing driveway that leads to the detached garage. The Board reviewed the neighborhood to compare these features to other properties in the general area. Members agreed that the lot is narrower than most others in the area. Members noted that the Applicant could construct a 2.5 story addition in the location of the proposed deck by-right under the exemptions contained in Section III-I, 2. of the By-Law, or the so-called "Hatfield Amendment", which would have a greater impact on the neighborhood.

Based upon the information submitted and received at the hearing, and other information available to the Board, the Board has determined that:

a. There are circumstances relating to soil conditions, shape or topography especially affecting the land but not affecting generally the zoning district. The Property is narrow in shape, with just 52' of frontage on Hersey Street. The pre-existing nonconforming dwelling and detach garage are sited in a way that limits placement of an attached accessory structure or deck. In addition, the Applicant represented that the property slopes and has acidic soils that prevent natural vegetation in the area of the proposed deck. Surrounding properties do not generally share these circumstances.

b. The literal enforcement of the Bylaws would involve substantial hardship financial or otherwise. The requested relief will allow the Applicant to construct a deck that provides access to outdoor space in a manner similar to others in the neighborhood. If relief is not granted, the Applicant would have to remove a portion of the existing driveway. This would eliminate the Applicant's ability to park two cars side-by-side or turn around within the property. A grant of a Variance in this instance will allow for a reasonable use that is entirely consistent with a single family use in the Residence A Zoning District;

c. 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. In fact, the proposed project will improve the existing Premises in a manner consistent with many single family residences in the surrounding neighborhood. There will be no adverse effects or harm to the public good; and

d. A variance may be granted without nullifying or substantially derogating from the intent or purposes of the Bylaw. The requested side yard setback relief is modest as the project will create an approximate 134 SF incursion beyond that allowed by-right as a projection for a deck. The deck will also have less impact than a 2.5 story addition that could be constructed by-right under the Hatfield Amendment within this area. The granting of a dimensional variance in this instance is consistent with the purposes of the By-Law.

Upon a motion made by Joseph W. Freeman and seconded by Robyn S. Maguire, the Board voted unanimously to GRANT the requested side yard setback, authorizing construction of a deck to the rear of the existing single-family dwelling at 73 Hersey Street, subject to the following conditions:

1. The construction shall be consistent with the plans submitted and representations made during the hearing, such that the deck shall be:
a.) located no closer than 9.7' from the southerly side property line and create no new incursion on the north side, and;
b.) constructed with dimensions shown on the drawings as follows: 19' at the base, 9' at the top and 17' in total 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,

Joseph W. Freeman
March 30, 2015