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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant andWilder Charitable and Educational Fund, Inc.
Property Owner:666 Main Street
Premises: 666 Main Street
Title Reference: Plymouth Registry of Deeds, Book 452, Page 64R and
Book 1678, Page 397
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals on the application of Wilder Charitable and Educational Fund, Inc. (the “Applicant”) for a side yard setback Variance under §IV-A of the Zoning By-Law and such other relief as necessary for removal and reconstruction of damaged portions of the retaining wall which forms the northerly boundary line at the property known as Wilder Memorial Nursery School at 666 Main Street (the “Property”), in Residence District C.
A public hearing was duly noticed and held before the Board of Appeals at the Town Hall on March 18, 2010 with a continuance hearing held on April 5, 2010 before a panel consisting of regular members Joseph M. Fisher, Chairman, Joseph W. Freeman and W. Tod McGrath.The Applicants were represented by Attorney Jon S. Davis and John J. Gannon, Civil Engineer, of McArdle Gannon Associates, Inc.
The Property consists of approximately 22,000sq.ft. of land on which Wilder Memorial Hall was erected in 1879 to be used as a meeting house for the benefit of the inhabitants of South Hingham. The Wilder Charitable and Education Fund, Inc. is a recognized non-profit corporation founded in 1854; The Wilder School was founded in 1924.A mortared block retaining wall, built in the late 1800’s, with grade variations of approximately 8’ to 11’ defines the boundary line with the abutting property at 662 Main Street.Portions of the retaining wall are in deteriorating and unstable condition due to storm water infiltration behind the wall and tree growth below the wall, which trees are located on the abutting property.As portions of the wall exceed the 6’ height limitation as stated in the Zoning By-Law and due to the fact that the wall is the defining boundary line and is located within the required zoning setback, zoning relief is required to remove and reconstruct portions of the wall.
There are only two means by which to access the retaining wall for repair purposes: from the abutter’s land at 662 Main Street, which would require that the abutter grant a temporary access easement for construction and repair purposes and would also require removal of certain trees, or from the Wilder land.The Applicant originally attempted to negotiate a temporary construction easement and tree removal arrangement with the abutter at 662 Main Street but negotiations were unsuccessful.Therefore the Applicant is now proposing to remove and reconstruct the damaged portions of the retaining wall from within the confines of its own Property.In the process, the Applicant will reconstruct the wall, which will move the outer portion of the wall approximately 5 feet further from the property boundary.
During the course of the two public hearings the discussions addressed the drainage issues as well as the height and aesthetics of the retaining wall.Mr. Gannon spoke about the deteriorating condition of portions of the wall due to drainage issues and tree growth under the wall from the abutting property.The proposed reconstruction will consist of removal of portions of a mortared granite block retaining wall and construction of a new masonry granite block and reinforced modular block retaining wall with associated drainage improvements, excavation, filling, landscaping and fencing.Included as part of the improvements to the drainage system is removal of the existing roof drains on Wilder Hall and construction of a new infiltration system, roof drains and drainage piping which will keep water on Wilder’s Property.
Abutters located at 654 and 658 Main Street voiced concerns about the drainage and aesthetic issues.The abutters at 654 and 658 Main Street had a French drain installed on their properties at considerable cost to them, and expressed concerns that the new wall and improved drainage system not exacerbate their current situation.They also expressed concerns with the replacement wall and the fact that Wilder will be using modular block retaining wall to replace an antique wall.
The most immediate abutter at 662 Main Street, Marjorie Nicholson, was in attendance at both hearings.Ms. Nicholson submitted her documentation on the attempt to negotiate a temporary construction easement and tree removal arrangement with the Applicant.She also submitted the research she conducted with local landscapers and masonry companies about repair of the wall.Concerns expressed by Ms. Nicholson include the drainage problem, historical continuity of the antique wall, possible damage to trees and mature plantings on her property and possible landscaping to screen the playground and parking lot.
During the first public hearing the Applicant agreed to submit a landscape plan for plantings to be installed to screen the parking lot from the abutting property.Also discussed were possible plantings to be done on the abutting property at 662 Main Street in order to screen the reconstructed retaining wall.Due to the fact the Applicant does not have access to the abutting property, the Applicant suggested that it provide the abutter at 662 Main Street with funds to allow the abutter to purchase the type of plant screening she may deem suitable.The Applicant also suggested, at the second public hearing, the planting of ivy along the wall that will not damage the wall and over time may help mitigate the aesthetics of the reconstructed retaining wall.
During the first public hearing the Board suggested having the Town’s Conservation Agent review the Applicant’s drainage plans as submitted by McArdle Gannon Associates.At the Board’s request the Conservation Agent did such a review and made written comments on the plans concerning (a) the need for a structural engineer to review the wall, (b) batter along the wall, (c) weep holes to be connected along the length of the wall, (d) trees on abutter’s property may be unstable and may be advantageous to remove and replant, and (e) suggested a seed mix of white clover to be planted along top of wall.At the second public meeting, Mr. Gannon addressed the Town’s Conservation Agent’s comments as follows: (a) wall designed by regulations of Massachusetts Building Code stamped by Registered Civil Engineer, (b) no batter to be done along wall, (c) the Applicant is comfortable with one weep hole with crushed stone, (d) one objective of moving the wall further off the property boundary is to salvage trees, and (e) the plantings on the wall subject to review by the Applicant’s arborist - prefer mulch on top of wall due to maintenance issues.
The Board and abutters raised the issue of whether or not the wall reconstruction had to be reviewed by the Hingham Historic District Commission as the property lies in The Tower-Wilder Extension Historic District.The Applicant stated that due to the fact that the wall cannot be seen from Main Street the Historic District Commission has no review jurisdiction.However, the Board noted that its actions would be without prejudice to the jurisdiction of the Historic District Commission to act now, or at a later date, concerning the Applicant’s activities.
All Board members expressed their disappointment with the Applicant’s plan to replace the antique mortared block retaining wall with a new masonry granite block and reinforced modular block retaining wall.However, the Board recognized that the Applicant has the right to repair and replace a wall on its property that is in unsafe, deteriorating and unstable condition and which creates liability issues for them.
During the second public hearing the Applicant stated that the ruling of the Board could be subject to the so-called “Dover Amendment” due to the educational use of the Property. Chairman Fisher stated that under the so-called “Dover Amendment” (G.L.c. 40A, § 3, second par., inserted by St. 1975, c. 808, § 3) the Town does have the right to impose reasonable regulations upon the project.The Board may apply to educational institutions reasonable, generally applicable bulk or dimensional regulations that do not have the effect of preventing or unreasonably restricting the educational use.
FINDINGS and DECISION:
After consideration of the Applicant’s proposal, together with the plans submitted and representations made by the Applicant, the Board voted unanimously to GRANT the VARIANCE.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 involve substantial hardship to the Applicant.
The Board determined that the presence of the existing retaining wall which forms the northerly boundary line on the Property and the location of Wilder Hall practically limit the placement of the reconstructed retaining wall.The topography of the property, with grade variations of approximately 8’ to 11’, necessitates the need for the reconstruction of damaged portions of the retaining wall to be above that allowed under the by-law.The Board also determined 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 and will improve a situation that is a public safety hazard and will place the wall 5’ off the property boundary.
The Variance is granted subject to the following conditions:
2.Annual inspections of the drainage system, including the catch basins, to be filed with the Building Department, along with a maintenance plan to be filed with the Building Department, which should be re-certified each year to show that the plan has been followed through.
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 M. Fisher
May 11, 2010