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TOWN OF HINGHAM
BOARD OF APPEALS
FINDING PURSUANT TO M.G.L. c. 40A, §6
IN THE MATTER OF
Applicant and Claire M. Gillis
Property Owner: 107 Leavitt Street
Hingham, MA 02043
Premises: 107 Leavitt Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 43749, Page50
References: Site Plans entitled, "Existing and Proposed Conditions
Plan," prepared by Nantasket Survey Engineering, LLC, 46 Edgewater Road,
Hull, MA (Sheet L1) and "Site Plan," prepared by Roger O.
Hoit, AIA, Architect, 1175 Main Street, Hingham, MA (Sheet L2) dated
January 6, 2014; Floor Plans (Drawings A2 and A8) and Elevations
(Drawings A11-A12), prepared by Roger O. Hoit, AIA, dated March 1, 2014.
SUMMARY OF PROCEEDINGS
matter came before the Board of Appeals on the application of Claire M.
Gillis (“Applicant”) for a Finding under MGL c. 40A, §6 that the
proposed addition of a covered open walkway connecting the existing
single family dwelling to the pre-existing nonconforming detached garage
at 107 Leavitt Street in Residence District C is not substantially more
detrimental than the existing nonconforming use or structure to the
A public hearing was duly noticed and held on
Wednesday, May 21, 2014 at the Town Hall before a panel consisting of
regular member W. Tod McGrath, Chairman, and Joseph M. Fisher, and
associate member David W. Anderson. Architect Roger Hoit and the
Applicant, Claire Gillis, appeared to present the application.
subject property consists of approximately 33,132 SF and contains a
single-family dwelling, detached garage, and pool. The existing garage
detached garage is located within the side yard setback. The garage
encroaches onto adjacent property to the west by approximately 1.5'. The
owners of the affected property, Kevin and Heather Carroll, 101 Leavitt
Street, submitted a letter of support for the application during the
The Applicants propose to attach the garage to the
existing dwelling by way of a covered walkway. All new construction will
conform to the dimensional requirements of the Zoning By-Law.
Applicant represented that the detached garage was constructed prior to
the adoption of zoning. Thus, when the Town enacted its Zoning By-Law,
the garage became a preexisting nonconforming structure. Since the
garage on the lot predates the enactment of the Zoning By-law in 1941,
it is covered by the protections of M.G.L. c. 40A, § 6, first paragraph,
which states (in part):
... a zoning ordinance or
by-law...shall apply to any change or substantial extension of such use,
to a building or special permit issued after the first notice of said
public hearing, to any reconstruction, extension or structural change of
such structure and to any alteration of a structure ... to provide for
its use for a substantially different purpose or for the same purpose in
a substantially different manner... Pre-existing nonconforming
structures or uses may be extended or altered, provided, that no such
extension or alteration shall be permitted unless there is a finding by
the permit granting authority . . . that such change, extension or
alteration shall not be substantially more detrimental than the existing
nonconforming use to the neighborhood.
When read together, these
portions of the statue provide that changes to nonconforming structures
may be permitted if (1) the extensions or changes themselves comply
with the by-law and (2) the structures as extended or changed are found
to be not substantially more detrimental to the neighborhood than the
preexisting nonconforming structure.
The Board found that there would
be no increase in the extent of the nonconforming use of the structure.
The portion of the detached garage located within the side yard setback
will continue to serve as a garage, though the "use" of the structure
as defined in the Zoning By-Law will technically change from "Accessory
Building" to a "Single Family Dwelling" since it will be attached to the
existing house by way of the proposed construction. And as noted above,
the proposed new construction will conform to the dimensional
requirements of the Zoning By-Law.
The Board also determined
that the change in use from Accessory Building to Single Family Dwelling
resulting from the proposed extension to the preexisting nonconforming
garage would not adversely impact or be a detriment to the neighborhood.
For these reasons, the Board finds that the proposed construction could
be permitted by right pursuant to M.G.L. c. 40A, § 6 and would not
require a variance. Accordingly, the Applicant filed a written request
to withdraw the variance application without prejudice at the hearing.
FINDINGS AND DECISION:
For the reasons set forth hereinabove, the Board voted unanimously as follows:
To make a finding pursuant to M.G.L. c. 40A, § 6 that the proposed
construction would not be substantially more detrimental than the
existing nonconforming use to the neighborhood, provided that such work
proceeds in accordance with the plans and representations made by the
Applicant to the Board.
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 County 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
For the Board of Appeals,
W. Tod McGrath
July 7, 2014