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FINDING under M.G.L. Ch. 40A § 6 and VARIANCE



Applicant:                   Marco and Laura Boer

                                    33 Elm Street

                                    Hingham, MA  02043


Property Owner:       33 Elm Street Realty Nominee Trust

                                    Philip Lyman Rice and Jennifer Foss Rice, Trustees

                                    6240 Gentle Lane

                                    Alexandria, Virginia 22310


Premises:                    33 Elm Street

                                    Hingham, MA  02043


Title Reference:          Plymouth County Registry of Deeds, Book 42455, Page 248


Plan References:        "Monument Plan," prepared by Nantasket Survey Engineering, LLC, 46 Edgewater Road, Hull, MA, dated May 1, 2005 and architectural plans prepared by Roger Hoit, AIA, Architect, 1175 Main Street, Hingham, MA, dated June 16, 2014, Drawings A1-A5.



This matter came before the Zoning Board of Appeals on the application of Marco and Laura Boer for a Finding under M.G.L. Chapter 40A Section 6 and a Variance from §IV-A of the Zoning By-Law and such other relief as necessary to reconstruct and extend a preexisting nonconforming garage at 33 Elm Street in Residence District A.


A public hearing was duly noticed and held on July 7, 2014 at Hingham Town Hall before a panel consisting of Chairman W. Tod McGrath and Regular Members Joseph M. Fisher and Joseph W. Freeman. The project architect, Roger Hoit, appeared to present the application.

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.



According to the Assessor's database, the subject property consists of approximately 19,165 SF improved by a single family residence built circa 1829 and a detached garage. The garage is located within approximately 3.5' from the rear property line, which is accessed by a common right-of-way from Bates Way. 


The proposed plan calls for reconstruction and extension of the existing accessory structure within the setback (upward extension) as well as an addition that would itself comply with the 15' setback. The proposed garage will include a heated playroom, but no bathroom. Because a portion of the proposed construction will intensify the existing nonconforming rear yard setback by extending the linear measurement upwards, the proposed construction requires a variance in addition to a Finding under M.G.L. Chapter 40A Section 6.


During the hearing, Mr. Hoit submitted a letter of support for the proposed work from Timothy and Denise Silva, 26 Lafayette Avenue. Another abutter, Alan Perrault, spoke in favor of the project suggesting that it would improve the current appearance of the structure.


Mr. Hoit also described the subject property. He explained that the area around the house consists of granite ledge, which limits relocation of the existing garage. Because of the topographical changes between Elm Street and the rear of the lot, it would be difficult to relocate the driveway from the current location off of the common right-of-way. Relocation would also require the removal of mature trees from the property. 



The Board voted unanimously to GRANT the requested Finding under M.G.L. Chapter 40A Section 6 and Variance from §IV-A of the Zoning By-Law to reconstruct and extend the preexisting nonconforming garage at 33 Elm Street in Residence District A.  In granting the requested Finding, the Board found that the proposed construction will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. In granting the requested Variance, the Board found that:


  1. Circumstances relating to the presence of ledge and grade change between Elm Street and the building area affect the subject property and not generally the zoning district;
  2. A literal enforcement of the Zoning By-Law would involve substantial hardship, requiring the owners to blast significant amounts of ledge and relocate the current driveway from the common right-of-way to Elm Street;
  3. The requested relief may be granted without substantial detriment to the public good. The addition will improve the property in a manner consistent with other homes in the neighborhood; and
  4. The relief may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law.


The Variance is granted subject the following condition:


  1. Prior to issuance of a Building Permit, the Applicant shall submit a complete engineered site plan demonstrating that there is no encroachment of the structure into the adjacent right-of-way.
  2. The construction shall be completed in accordance with the plans submitted with the application, and 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,




                                                                                    W. Tod McGrath

                                                                                    August 5, 2014