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Board of Appeals
NOTICE OF DECISION
VARIANCE
IN THE MATTER OF:
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.
SUMMARY OF PROCEEDINGS
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.
BACKGROUND
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.
FINDINGS
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.
DECISION
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
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