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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


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.


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.


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