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 Applicant and              Brian P. and Margaret E. Tomasello 
 Property Owner:         38 Highview Drive
                                    Hingham, MA  02043

Premises:                     38 Highview Drive

                                    Hingham, MA 02043

Deed Reference:           Plymouth County Registry of Deeds,            Book 38962, Page 139. 


This matter came before the Board of Appeals on the application of Brian P. and Margaret E. Tomasello (the “Applicants”) for a Variance from the frontage requirement of §IV-C 1. of the Zoning By-Law and such other relief as necessary in order to convey approximately 819sq.ft. of land from the property at 38 Highview Drive (the “Property) to the adjacent property at 36 Highview Drive, in Residence District A.

A public hearing was duly noticed and held before the Board of Appeals at the Town Hall on Wednesday, February 15, 2012 with a continuance hearing held on Monday, February 27, 2012 before a panel consisting of regular members W. Tod McGrath, Chairman, Joseph M. Fisher and Joseph W. Freeman.  The Applicant was represented by Shane Brenner, RLS of McKenzie Engineering Group, Inc. of Norwell, Massachusetts.


The Property at 38 Highview Drive (Assessors Map 16, Lot 92) was created as Lot 155 and the abutting lot at 36 Highview Drive (Assessors Map 16, Lot 91) was created as Lot 154 as part of a 1954 subdivision that is recorded in the Plymouth County Registry as Plan No. 706 of 1954.  As part of the application the Applicants submitted a plan entitled “Proposed Land Division Plan” dated January 19, 2012 prepared by McKenzie Engineering Group, Inc. stamped by Shane M. Brenner, RPLS (the “Variance Plan”).

As shown on the proposed Variance Plan, the Applicants as owner of the Property (Map 16 Lot 92) would like to convey an approximate 819 s.f. portion of the lot (Parcel B) to the abutting owner of 36 Highview Drive (Map 16 Lot 91) in exchange for a parcel of equal area (Parcel A) so that a driveway can be constructed within Parcel B and a proposed porch can be constructed meeting the current side yard zoning requirement of 15 feet. While the conveyance will result in no change in lot area or length of front property line (frontage along roadway layout) for either parcel, it will result in a decrease of frontage for the subject Property as measured from the 25 foot front setback line from 100 feet to 73.01 feet as shown on the Variance Plan.  As defined in Section IV-C 1 of the Town of Hingham Zoning By-Law, Lot Frontage “shall be measured at the

street line, except that frontage shall be measured at the front setback line if the street is an arc of a curve with a radius of 200 feet or less.”  Here, the arc curve has a radius of less than 200 feet, so frontage is measured from the 25 foot setback line.


Based on the information submitted and received at the hearing, and on other information available to the Board, the Board made the following findings:

a.  There are circumstances on account of soil conditions, shape or topography especially affecting the land or structure, but not affecting generally the zoning district in which the property is located for the following reasons:   

The Property, when approved as part of a subdivision in 1954, met all the zoning requirements, including the 100 foot frontage requirement. The original frontage requirement resulted in the creation of a lot with an unusual shape and due to the location of the existing single family home at 36 Highview Drive, has resulted in an atypical front yard and setback of only approximately 13.9 feet from the northwesterly corner of the structure to the side lot line.  The proposed re-division of land will result in a greater setback of the structure to the side line and a more usable front yard area.  

b.  Owing to the circumstances described above, a literal enforcement of the provision of the Zoning By-Law would involve substantial hardship, financial or otherwise, to the undersigned for the following reasons:

Due to the existing lot configuration on the subject Property there is minimal yard area behind the existing house to be utilized by the owner.  The proposed land division would provide much needed yard area away from the ocean which is also a benefit from a safety standpoint. 

c.  Relief may be granted without substantial detriment to the public good for the following reasons:   

  1. The Variance will not result in the creation of an additional lot or more intensive use.
  2. The Variance will eliminate a dimensional non-conformity for the abutting property at 36 Highview Drive by increasing the side yard setback. 
  3. The Variance will result in a situation that will be mutually beneficial for the property owners impacted and will not be detrimental to any other abutters.

 d.  Relief may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law for the following reasons:

The grant of relief will not result in additional lots or a more intensive use of the Property nor will it result in any additional construction work located within protective buffer zones of wetland resources.  


Based upon the findings set forth above, the Board of Appeals voted unanimously to GRANT a

Variance from the frontage requirement of §IV-C 1.  in order to convey approximately 819sq.ft. of land from the property at 38 Highview Drive to the adjacent property at 36 Highview Drive, subject to the condition that a) the conveyance of the land be completed in accordance with the representations made at the public hearings as well as the “Proposed Land Division Plan” dated January 19, 2012 as submitted with the application to be updated and submitted to the Board showing the revised frontage measured from the 25 foot setback line.


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

                                                                                    March 14, 2012