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BOARD OF APPEALS
Variance DECISION
IN THE MATTER OF:
Applicant/ John Farrell and Claire Farrell
Property Owners: 53 Gilbert Street
Quincy, MA 02169
Premises: 151 Leavitt Street
Hingham, MA 02043
Title Reference: Plymouth County Registry District of the Land Court
Certificate of Title No. 119865, Book 599, Page 65
Plan References: “Zoning
Plan 151 Leavitt Street (Assessor's Map 82, Lot 65) Hingham,
Massachusetts,” prepared by Morse Engineering Co., Inc., 19 Union
Street, P.O. Box 92, Scituate, MA, dated May 23, 2014, Sheet 1 of 1
SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals (the "Board") on
the application of John and Claire Farrell (the “Applicants”) for (i) a
finding under M.G.L. c. 40A, § 6 and § III-I, 1.C. of the Hingham
Zoning By-Law (the “By-Law”) that the use of land at 151 Leavitt Street
in Residence District C (the “Premises”) is a pre-existing,
nonconforming use, and that extending or altering the use to erect a
single-family dwelling thereon would not be substantially more
detrimental than the existing nonconforming use to the neighborhood
(hereinafter, collectively, the “Requested Finding”), or (ii)
alternatively a variance from the lot frontage definition of § VI of
the By-Law (the “Requested Variance”) or other necessary relief, so as
to authorize a single-family dwelling to be erected on the Premises.
A public hearing was duly noticed and held on June 18, 2014, at the
Town Hall, 210 Central Street. The said public hearing was continued at
the request of the applicant August 13, 2014, October 15, 2014,
November 19, 2014, and December 17, 2014. The Board panel consisted of
its regular members W. Tod McGrath, Chairman, Joseph M. Fisher, and
Joseph W. Freeman. The Applicants were present during all sessions and
were represented at the public hearing by their attorney, Jeffrey A.
De Lisi, Ohrenberger, De Lisi & Harris, LLP, and their project
engineer, Gregory J. Morse, P.E. At the conclusion of the hearing, the
Board voted unanimously to grant the Requested Variance. The Board also
granted a withdrawal without prejudice of the Requested Finding as
requested by the Applicants.
Throughout the public hearing and its deliberations the Board has
been mindful of the statements of the Applicants, their representatives,
and comments of the general public, all as made or received at the
public hearing.
BACKGROUND and DISCUSSION
The Premises is a vacant lot, with a residential address of 151
Leavitt Street. It consists of 41,327 SF in the Residence District C.
It was originally laid out on a plan dated March 9, 1976 and filed
with the Land Court as Plan No. 87C (the “Land Court Plan”). At the
time it was created, the Premises complied with the 150' frontage
requirement contained in the then By-Law, and therefore was considered a
buildable lot. In 1986, the Town of Hingham amended the definition
of “frontage,” not by altering the 150' requirement, but by adding the
following language to the requirement of linear distance along a
street: “and tangent [to the street sideline] and within all other lot
lines a circle, the diameter of which is not less than 80 percent of the
minimum lot size frontage set forth in Section IV-A of this By-Law may
be located.” As a consequence of the said 1986 By-Law amendment,
the Premises was rendered nonconforming. At the time, the lot was held
in common ownership with an adjacent lot. Since the lot was not built
upon within the five-year exemption period set forth in the second
sentence of the fourth paragraph of M.G.L. c. 40A, § 6, it lost the
benefit of the exemption from the said zoning change.
The Applicants propose to construct a single-family dwelling on the
Premises. The Applicants indicate that the single-family dwelling will
conform to all dimensional and setback requirements of the By-Law.
As indicated above, the Premises, in fact, has 150' of continuous
linear frontage along Leavitt Street to enable vital access by
emergency vehicles, but, due to its unusual dogleg-like shape within
the Residence District C, the Premises cannot meet the technical
diameter requirement of the definition of “frontage” (a circle tangent
to Leavitt Street with a diameter of 120' is required and the Premises
can only accommodate a circle of approximately 98.70' in diameter
tangent to Leavitt Street). Consequently, the Applicants have
requested a variance from the portion of the definition of “frontage”
concerning the tangent circle.
On November 22, 2013, the Applicants acquired the Premises for
$435,000.00, which is consistent with the value of buildable lots in
this proximity of Hingham. The Applicants indicated at the hearing
that they purchased the Premises based upon the representation that the
Premises complied with all dimensional zoning requirements as a
buildable lot. Following their purchase of the Premises, the
Applicants began the process of obtaining approvals to construct their
home thereon; they engaged an engineer and obtained Board of Health
approval for a septic design, they hired an architect to design a house,
and they obtained approvals from the Conservation Commission and the
Historical Commission, respectively. According to the plans submitted
with the zoning application, the nearest part of the proposed dwelling
is setback from Leavitt Street approximately 274' where a minimum 50’
front yard setback is required.
The Board asked the Applicants’ attorney to research the 1986 zoning
amendment to better understand the rationale for the inclusion of the
tangent circle requirement in the definition of “frontage”. The Board
was provided with information from the Planning Board’s minutes in
1985, the Advisory Board’s minutes in 1986, and the transcript of the
1986 Annual Town Meeting, but little detail was gleaned therefrom.
However, Richard Cook, who was Chairman of the Planning Board at the
time of the 1986 zoning change, and who drafted the proposed tangent
circle language for the “frontage” definition, and thereafter presented
the relevant zoning article at Town Meeting, was present and testified
at the public hearing. Mr. Cook informed the Board that the purpose
of the tangent circle inclusion of the “frontage” definition was to
ensure public safety by curbing “retreat” lots, or lots that obtained
actual access to the dwelling thereon by a means other than the
frontage road.
Additionally, the Board’s administrator confirmed that Captain David
Damstra of the Hingham Fire Department notified her that he reviewed
the Applicants’ plans and is satisfied that there is adequate access
for emergency vehicles. The Applicants’ attorney pointed out that the
most narrow point of the Premises is sixty feet in width at a distance
of approximately 160 feet from Leavitt Street, and that the Premises
has more than enough space to accommodate emergency vehicles. The
Board concurred that sufficient linear frontage is provided, and, in
terms of emergency access and public safety, the purposes of the By-Law
are achieved.
Following discussion, the Applicants requested a withdrawal without
prejudice of their request for a Finding under M.G.L. c. 40A, § 6 and §
III-I, 1.C. of the By-Law.
FINDINGS:
Based upon the information submitted and received at the hearing, and
other information available to the Board, the Board has determined in
accordance with § I-F, 2 that:
- Circumstances relating to the irregular shape of the subject lot affect the Premises and not generally the zoning district.
In this case the lack of frontage is not the sole basis for the grant
of the requested variance. The unusual shape of the subject lot is
also a special circumstance affecting the Premises. The Premises
conforms to the linear requirement for street frontage, but narrows
thereafter before it turns and widens again. The Board found that the
lot is not a "pork chop" lot and further found that the lot shape is
not typical of lots in Residence District C. This special circumstance
affects the Premises but does not affect others more generally in the
Residence District C.
- A literal enforcement of the By-Law would involve substantial hardship.
The Premises is located in a residential zone. Should the By-Law be
literally enforced without the grant of a variance such literal
enforcement would deprive the Applicants of all viable reasonable and
economic uses of the Premises consistent with other allowable uses in
this residential zone. The Applicants did not create this hardship.
When access to the Premises was originally laid out, the access
complied with applicable zoning requirements, and it was not
foreseeable that a variance would have been necessary to construct a
dwelling thereon. A literal enforcement of the By-Law would prohibit
the Applicants from constructing a dwelling thereon, which is the
primary purpose of the Residence District C.
- The requested variance may be granted without substantial
detriment to the public good, and without nullifying or substantially
derogating from the intent or purpose of the By-Law. The
primary purpose of frontage is to ensure access of emergency vehicles
in order to protect public peace, safety, and welfare. The purpose of
the said specific tangent circle requirement of the definition of
“frontage” in the By-Law is also to preserve access from the frontage
street and to prevent "retreat" lots which are difficult to access for
safety purposes. The Hingham Fire Department has reviewed the
Applicants’ plan and determined that, in this case, access is sufficient
for emergency vehicles. Additionally, the inability to meet the
requirement of the tangent circle component of the definition of
“frontage” in the By-Law is de minimis, and not meaningful in
nature. Granting the requested variance does not change the fact that
vital access is attainable to the proposed dwelling on the Premises,
and the public good is served and preserved thereby.
DECISION and CONDITIONS:
Upon a motion made by Joseph M. Fisher and seconded by Joseph W. Freeman, the Board voted unanimously to (i) ACCEPT the Applicants’ withdrawal without prejudice of the said Finding Request, and (ii) GRANT
the Requested Variance from the frontage definition of the By-Law in
order to authorize a single-family dwelling to be constructed on the
Premises in accordance with the approved plans and the representations
made during the public hearing.
The zoning relief granted herein shall not become effective until
(i) the Town Clerk has certified on a copy of this Decision that twenty
(20) days have elapsed after the decision has been filed in the office
of the Town Clerk and no appeal has been filed or that if such an
appeal has been filed, that it has been dismissed or denied, and that
(ii) a copy thereof has been duly recorded in the Plymouth County
Registry of Deeds and indexed in the grantor index under the name of
the owner of record or is recorded and noted on the owner’s certificate
of title.
For the Zoning Board of Appeals,
______________________________
Joseph W. Freeman
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