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Applicant and: Douglas Karo d/b/a Oceanside Builders
Property Owner 11 Foley Beach Road
Hingham, MA 02043

Premises: 4 Jarvis Avenue
Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds Book 37806, Page 85

This matter came before the Zoning Board of Appeals on the application of Douglas Karo d/b/a Oceanside Builders (the “Applicant”) for rear yard setback Variances from §IV-A of the Zoning By-Law and such other relief as necessary to install 2 (air conditioning) condensing units at 4 Jarvis Avenue (the “Property”), a corner lot in Residence District A.

A public hearing was duly noticed and held on March 18, 2010, at the Town Hall before a panel consisting of regular members Joseph M. Fisher, Chairman, Joseph W. Freeman and W. Tod McGrath.

The Property is approximately 6,300sq.ft. and the Applicant recently completed the construction of a single family dwelling on the Property after tearing down the previous non-conforming dwelling, done by right under §III-H of the Zoning By-Law. The Applicant now desires to install 2 air conditioning condensing units within the rear yard setback in the same location as units that were installed for the previous dwelling. In 2007 a change was made in the Zoning By-Law that requires this type of equipment to meet setback requirements. The house is a corner lot, and under the provisions of the Zoning By-Law corner lots must maintain front yard setback requirements for each and every abutting street. The required front yard setback in Residence District A is twenty-five (25) feet.

The location of the 2 air conditioning units is positioned in the center of the Property hidden behind a row of hedges between 4 Jarvis Avenue and 138 Downer Avenue. The placement of the units in this area puts them less than 1’ from the rear setback. To place the units in the northerly portion of the property, the only area on the Property where they would meet all setback requirements, would place them on top of a large retaining wall that was constructed due to the slope of the property. It would also place them in a less efficient area in relation to the interior configuration of the dwelling and increase the noise level for the abutters.

No abutters spoke for or against the granting of the Variances. During the discussion with the Applicant, he stated that he had spoken to the nearest and most effected abutters to the west at 138 Downer Avenue and they had no problem with the placement of the units. The Board requested the Applicant provide a letter from the abutters at 138 Downer Avenue for the record.

After consideration of the Applicant’s proposal, together with plan and diagrams submitted by the Applicant and testimony at the public hearing, the Board of Appeals agreed that the locations of the 2 air conditioning condensing units are in the best possible location on the lot. The Board determined that due to (i) the location of the dwelling on the lot, (ii) the existing slope in the northerly portion of the Property and (iii) the interior configuration of the dwelling the air conditioning condenser units could be most appropriately sited along the Downer Avenue portion of the lot, which has sufficient shrubbery for screening and buffer for noise. The Board also determined that the condensing units will not detract from the neighborhood and will not impose on the abutting property. In conclusion the Board finds that the premises satisfied the statutory criteria for the grant of the requested Variances in its unique situation with the size and shape of the lot and existing structures and landscaping limiting location of the condensers elsewhere on the premises.

Based upon the application and representations made at the public hearing, the Board determined that the proposed rear yard setback Variances to install 2 air conditioning units will not adversely affect the health, safety or welfare of the general public, or the Town generally, nor create adverse impacts on its surrounding area.

Therefore the Board voted unanimously to GRANT the Variances from the rear yard setback requirements as set forth in Section IV-A of the Zoning By-Law subject to the following conditions:

1. Applicant provides a letter, prior to the issuance of a Certificate of Occupancy, from the abutters to the west at 138 Downer Avenue stating their concurrence with the placement of the air conditioning units.
2. Air conditioning units to be placed in substantial accordance with plans presented and representations made at the public hearing.

The zoning relief granted herein shall not become effective until (i) the Town Clerk has certified on a copy of this Decision that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that if such an appeal has been filed, that it has been dismissed or denied, and that (ii) a copy thereof has been duly recorded in the Plymouth County Registry of Deeds and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner’s certificate of title.

For the Board of Appeals

W. Tod McGrath
April 26, 2010