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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

Plan 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.

This 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 neighborhood.
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. 

The 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 hearing.

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.

The 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.


For the reasons set forth hereinabove, the Board voted unanimously as follows:

(1)    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 title.

For the Board of Appeals,

W. Tod McGrath
July 7, 2014