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TOWN OF HINGHAM

BOARD OF APPEALS

IN THE MATTER OF:

Applicant andMark Casale

Property Owner:504 Main Street

Hingham, MA02043

Premises:504 Main Street

Hingham, MA02043

Title Reference:Plymouth County Registry of Deeds, Book 26154, Page 115

SUMMARY OF PROCEEDINGS:

This matter came before the Board of Appeals on the application of Mark Casale (the “Applicant”) for a Variance from §IV-C, 4 of the Zoning By-Law and such other relief as necessary to maintain the existing dwelling during construction of a new dwelling on the same lot at 504 Main Street (the “Property”), in Residence District A, maintaining the existing dwelling as an accessory building upon completion and occupancy of the new dwelling.

A public hearing was duly held on Thursday, September 16, 2010 at the Town Office Building before a panel consisting of regular members Joseph W. Freeman, Chairman, W. Tod McGrath and Joseph M. Fisher.

The Applicant represented himself at the hearing.A number of abutters appeared at the public hearing and expressed concerns about the past and present use of the property and the condition of the present structures.

FACTUAL BACKGROUND:

The Property consists of 25,144sq.ft. of land which includes three existing structures with frontage and a “right of way” driveway entry at 502 Main Street and contains a private road (Wight Avenue) which intersects Merrymount Road.The existing single family dwelling (building 1) was built in the 1920’s with just over a 1,000sq.ft. footprint that is sited in a pre-existing non-conforming setback on the northern side of the Property.One accessory structure (building 2) has an approximate 1,800sq.ft. footprint and is sited in a pre-existing non-conforming setback also on the northern side of the Property close to the property line.The garage structure (building 3) has an approximate 700sq.ft. footprint and conforms to all zoning setbacks.

The Property has been the subject of a previous zoning decision.In 1990 the Board of Appeals denied an Appeal from the order of the Building Commissioner to cease and desist using the Property for any use other than a residential one.At the time of the order the Property was being used for a painting contracting business (including wall covering, drywall taping and carpentry work such as studding and sheetrock installation) uses not allowed unless protected as a non-conforming use.After much testimony, the Board found that the Building Commissioner cease and desist order was properly issued and denied the Appeal.

The Applicant is now proposing to demolish building 2 in order to install a new septic system in that area of the Property.He is also proposing to demolish building 3 (the present garage) and construct a new residential dwelling in its place, meeting all the current Residence A dimensional requirements. The Applicant is proposing to continue to reside in building 1 during construction of the new residential dwelling.Upon completion and prior to occupancy of the new residential dwelling the Applicant is proposing to remove the bathing facility from the existing dwelling (half bath to remain) and maintain this structure as an accessory building.

DISCUSSION:

At the hearing the Applicant presented the Board with photographs of the Property and the existing structures.Much of the discussion at the hearing centered on the new accessory structure and the Applicants proposal to maintain what is the existing residential dwelling as an accessory structure (building 1).Because the existing single family dwelling (building 1) is sited in a pre-existing non-conforming setback on the northern side of the Property, when it is converted into an accessory structure it violates Section IV-C 2 of the Zoning By-Law which states “Accessory buildings shall not be located nearer the lot line than the minimum dimensions of the front, side, or rear yards and shall be no more than two stories and shall not exceed 30 feet in height.”The plans submitted with the application show that the northern side of the existing dwelling (building 1) is less than the 15’ side yard requirement in Residence District A.The Board ultimately determined that the intrusion into the setback was de minimus and would allow building 1 to be converted into an accessory structure upon completion of the new residential dwelling.

The Applicant also represented that the use of building 1 as an accessory structure would be limited to professional office and storage for his painting and decorating business.During this discussion, the Board and the Applicant discussed what is allowed as an accessory use as stated in Section III-A 1.8 along with associated vehicles.If the Applicant has more than one commercial vehicle parked on the Property he would need to seek a Special Permit A1 from the Board of Appeals under Section III-A 1.8.3.

The Board and the Applicant then discussed the provision of Section IV-C, 4 of the Zoning By-Law which prohibits more than one dwelling on any single lot.As determined in previous hearings before the Board Section IV-C, 4 has been interpreted to prohibit not only the occupancy of more than one dwelling on a lot, but also the construction of more than one dwelling on a lot.Accordingly, the Applicant is requesting a Variance from Section IV-C, 4 in order to allow him to continue to occupy the existing dwelling on the Property while the new dwelling is being constructed.

If the Applicant demolishes the existing dwelling before building the new dwelling, this would force the Applicant and his family to have to relocate from the Property for an extended period of time, causing financial and personal hardships.At the hearing, the Applicant testified that upon completion and prior to occupancy of the new residential dwelling he would remove the bathing facility from the existing dwelling (half bath to remain) and maintain this structure as an accessory building.He testified that this accessory structure will be used as an office and for storage purposes only.He also testified that the relief requested may be granted without substantial detriment to the public good because the new residential dwelling will be conforming to the dimensional requirements of Zoning By-Law for Residence District A.

FINDINGS AND DECISION:

The Board voted unanimously to GRANT the Variance from Section IV-C, 4 to allow more than one dwelling on the Property along with a de minimus setback Variance from Section IV-A to maintain the existing residential dwelling as an accessory structure upon completion and occupancy of the new residential dwelling.In granting the requested relief, the Board found that owing to circumstances relating to the soil conditions, shape or topography which especially affect the premises, but do not affect generally the zoning district in which the premises are located, a literal enforcement of the Zoning By-Law would create a hardship to the Applicant.

The Board determined that the condition of the existing structures combined with the topography of the lot and the fact that the new residential dwelling will not be in violation of any zoning setbacks, justified the Board finding that the requested Variance might be granted without detriment to the public good and without substantially derogating from the intent or purpose of the Zoning By-Law.The Board also determined that forcing the Applicant to move from and demolish the existing dwelling prior to completion of the new dwelling would involve significant financial costs to the Applicant and cause significant inconvenience and disruption to his family; accordingly, a literal enforcement of Section IV-C, 4 would involve financial hardship to the Applicants.

The Variances are granted subject the following conditions:

1.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;

2.No permanent Certificate of Occupancy for the new residential dwelling shall be issued to the Applicant until the removal of the bathing facility in the existing dwelling (building 1) has been completed to the satisfaction of the Building Inspector (half bath to remain).

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

November 4, 2010