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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and Property Owner: Monica Herman and Peter J. Dunphy
Premises: 108 Kilby Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds,
Book 43391, Pages 288
SUMMARY OF PROCEEDINGS
This
matter came before the Board of Appeals on the application of Monica
Herman and Peter J. Dunphy (“Applicants”) for a Variance from Sections
III-A, 1 and Section IV-C, 4 of the Zoning By-Law and other relief as
necessary to proceed with construction of a new single family dwelling
before converting the existing residential structure located at 108
Kilby Street in Residence District C to an allowed accessory structure.
A
public hearing was duly held on Wednesday, September 18, 2013 at the
Town Office Building before a panel consisting of regular members Joseph
Freeman, Chairman and W. Tod McGrath and alternate member Robyn
Maguire. The Applicant was represented by Daniel A. Brewer, Esq.
FACTUAL BACKGROUND
The
Premises consist of a single family residence constructed in 1912 with
accessory structures on a lot on the westerly side of Kilby Street. The
total area of the lot is 59,063 SF, which exceeds the minimum lot size
of 40,000 SF called for under Section IV-A of the Zoning By-Law for
Residence District C.
The Applicants plan to construct a new
energy efficient and solar powered single family dwelling in the
northwest corner of the Premises. The proposed home will comply with all
applicable setback requirements.
At issue before the Board is
Section IV-C, 4 of the Zoning By-Law which prohibits more than one
dwelling on any single lot. As represented in the application and during
the hearing, the requested relief will be temporary in nature. The
Applicants hope to avoid relocation costs by staying in their existing
home while constructing a new house on the same lot. Following
completion, they will convert the existing home to a nonresidential use.
Accordingly, the Applicants are requesting a Variance from Section
IV-C, 4 in order to allow them to continue to occupy their existing
dwelling while their new dwelling is being constructed.
During
the hearing, the Board asked for more detail about the plan changes made
since application. Attorney Brewer explained the existing house would
not be demolished or converted to a garage as indicated in the
application. Instead, the Applicants plan to repurpose the existing
house for storage and play space, which is needed because the new house
will not include a basement. He also indicated that the owners would
agree to any conditions the Board felt appropriate to insure that the
cooking and bathing facilities will be removed from the existing house.
The
Applicants also no longer intend to demolish the existing nonconforming
garage on the property. Attorney Brewer explained that the applicants
could build a new three-car garage by right, but chose instead to
renovate the existing two-car garage due to cost considerations. The
Applicants confirmed that they planned to dispose of asbestos shingles
appropriately when the existing structures are renovated.
FINDINGS AND DECISION
The Board voted unanimously to GRANT the VARIANCE. In granting the requested relief, the Board found the following:
1.
The Variance is sought because of circumstances relating to the soil
conditions, shape or topography of the land which especially affect the
premises, but do not affect generally the zoning district in which the
premises are located. The Premises consist of a lot having 20,000 SF in
excess of the minimum lot area requirement of 40,000 SF for Residence C.
As shown on the submitted site plan, there is ample room on the site
for construction of the proposed single-family dwelling within all
applicable setbacks.
2. Literal enforcement of the Zoning By-Law
would involve substantial hardship for the Applicants in that it would
prevent them from occupying their current home while constructing a new
one. If the By-Law were literally enforced, either the Applicants would
incur costs of temporary housing offsite during construction, or the
Applicants would incur significant costs of a comprehensive remodel of
the existing dwelling. Neither option can be justified on a financial or
cost benefit basis.
3. Desirable relief may be granted without
substantial detriment to the public good. The property again consists of
more than 60,000 SF, which is adequate space to serve two residences
temporarily.
4. Desirable relief may be granted without
nullifying or substantially derogating from the intent of the Zoning
By-Law, particularly since only one household will be using the lot. The
single-family dwelling init restriction of the By-Law will not be
undermined in any material way.
The Variance is granted subject the following conditions:
1.
Prior to application for a Building Permit, the Applicants shall
deliver a $5,000 performance bond in favor of the Town and in a form
acceptable to the Building Commissioner and Town Counsel, together with
such other documentation as Town Counsel may reasonably require, for
purposes of insuring removal of the cooking and full bathing facilities
from the existing dwelling by the Town if the same has not been
completed by the Applicants within twenty-five (25) months from the date
of commencement of construction of the new dwelling;
2. The new
dwelling must be completed and must have received a Certificate of
Occupancy within twenty-four (24) months from the date of commencement
of construction of the new dwelling. Further, upon completion of the
new dwelling, the existing dwelling must be repurposed for an allowed,
non-residential use within 30 days. If these conditions are not
satisfied, the Variance granted herein shall automatically lapse and be
of no further force and effect, and, absent further relief from this
Board, the Applicants shall be obligated to immediately remove the
kitchen and full bathing facilities from the existing dwelling;
3.
No final Certificate of Occupancy shall be issued to the Applicants for
the new residence until the removal of the kitchen and full bathing
facilities from the existing dwelling has been completed to the
satisfaction of the Building Commissioner.
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,
_____________________
Joseph W. Freeman
October 7, 2013
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