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TOWN OF HINGHAM
BOARD OF APPEALS
Applicant and Loren Thomas
Property Owner: 31 Thaxter Street
Hingham, MA 02043
Premises: 31 Thaxter Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 41086, Page 328
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals on the application of Loren Thomas (the “Applicant”) for a side and/or rear yard setback Variance from §IV-A of the Zoning By-Law and such other relief as necessary in order to tear down the garage portion of the existing barn and replace it with a taller structure on a smaller footprint, at 31 Thaxter Street (the “Property”), in Residence District A.
A public hearing was duly noticed and held on Wednesday, June 19, 2013 at the Town Hall before a panel consisting of regular members Joseph W. Freeman, Chairman, and associate members Robyn S. Maguire and Alan M. Kearney. The Applicant represented himself.
BACKGROUND:
The Applicant’s Property contains a single-family dwelling and a 23.5’ x 28.2’ detached garage/barn on an approximately 11,398 sq.ft. lot. The rear setback of the garage is 0’, and the structure actually encroaches on the property to the rear, the Applicant proposes to increase the rear setback to 3'; the rear setback requirement in Residence District A is 15’. The present side yard setback is 4.7' and the Applicant proposes to increase the setback to 7.7' where the requirement is 15'. The Applicant is proposing to remove the rear section which is dilapidated and replace it with a structure that is taller but on a smaller footprint. The Applicant is not adding to the current footprint of the garage. The height proposed will not exceed the requirements of the Zoning By-Law.
DISCUSSION:
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 buildings on the lot became pre-existing nonconforming structures. The barn structure was built right up to, if not over, the property line with the baseball field to the rear. The applicant stated he would like to remove the rear section which is dilapidated and replace it with a structure that is taller but on a smaller footprint. Mr. Freeman noted this would be less intrusive into the rear and side yard setbacks. The applicant stated the height was going from 16' to 24' high.
During the course of the hearing, the Board of Appeals members and the Applicant had a lengthy discussion on the applicability of Zoning By-Law §III-I Nonconforming Uses and Structures. §III-I, subsection 6, states:
“…the alteration of, addition to, reconstruction of, extension of, or structural change in an existing nonconforming Single or Two-Family Dwelling shall not be considered the extension of a nonconforming use, provided that: a. the Single or Two-Family Dwelling conformed in all respects to the Zoning By-Law in existence at the time of its initial construction; and, b. the alteration of, addition to, reconstruction of, extension of, or structural change in the nonconforming Single or Two-Family Dwelling does not further reduce the minimum linear measurement of the existing nonconforming dimensions.”
Under the Zoning By-Law the garage is considered an accessory structure and is not afforded the same protection as a Single or Two-Family Dwelling.
However, because the garage on the lot predates the enactment of the By-law, it is covered by the protections of M.G.L. c. 40A, § 6, first paragraph, which states (in part):
“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.”
As noted above, the Applicant is not adding to the current footprint of the garage. The Board determined that the proposed modification to the existing garage and reduction of the building footprint would not adversely impact or be a detriment to the neighborhood.
FINDINGS AND DECISION:
Based on the information before it, the Board voted unanimously to make the finding that the proposed construction would not be substantially more detrimental than the existing nonconforming use to the neighborhood. The Applicant’s proposed structure would result in reduced intrusions into the rear and side yard setbacks and the new construction would replace a dilapidated existing structure. The result of the proposed construction would be a more aesthetically pleasing and less non-conforming structure. Therefore, the Applicant could proceed as a matter of right with its proposed construction, pursuant to M.G.L. c. 40A, § 6, provided that such work proceeded in accordance with the representations made by the Applicant to the Board. Since the Applicant could proceed as a matter of statutory right, the Board voted unanimously to DISMISS the VARIANCE application.
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
August 12, 2013
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