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Applicant and Property Owner: Brian and Elizabeth White

11 Kents Lane

Hingham, MA02043

Premises:11 Kents Lane

Hingham, MA02043

Title Reference:Plymouth Registry of Deeds

Book 09579, Page 0343


This matter came before the Board of Appeals on the application of Brian and Elizabeth White (the “Applicants”)for a Special Permit A1 under Section III-A, 1.8.3 along with use Variances from Section III-A, 4.14A & 5.2 of the Zoning By-Law and such other relief as necessary to maintain the existing garaging/parking of a commercial vehicle, a storage container and the welding/repair of personal equipment at11 Kents Lane (the “Property”), in Residence District A.

A public hearing was duly noticed and held before the Board of Appeals at the Town Hall on February 22, 2010 with a continuance hearing held on March 1, 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 Michael Nuesse.


The Property is approximately 34,570 sq.ft. and is located in Residence District A.Located on the Property is a single family dwelling along with a detached 30’ x 30’ garage that was built in 1993, one 12’ x 8’ storage container, one John Deere backhoe with a gross vehicle weight over 10,000 lbs. and one swing loader with a weight of 8,000 lbs.There is also a compressor and welder located on the Property that the Applicants stated were used for personal use only.

For seventeen years Mr. White has operated a business called B.W.I. equipment repair; he is a self-employed mobile equipment repairman. In addition to servicing general contractor’s equipment he also services vehicles for the Town’s Department of Public Works.

After a history of complaints from abutters and following a site visit to the property on September 16, 2009 the Building Commissioner sent the Applicants a letter dated September 21, 2009 stating the following zoning violations:

  • Section 1.81.3 -Garaging or parking of a commercial vehicle in excess of 10,000 lbs. or more than one commercial vehicle (Special Permit A1 required from the Board of Appeals)
  • Section 4.14A - Storage trailers/containers (except for (i) dumpsters or other trash receptacles, and (ii) construction trailers approved under site plan review) subject to the renewal of the


Special Permit on an annual basis. All storage trailers/containers must otherwise comply with dimensional, parking and other provisions of the Zoning By-Law (Use Variance required from the Board of Appeals)

  • Section 5.2 - Repair or storage garage for motor vehicles or trailers, which may include body, repair, welding, or soldering shop for motor vehicles or trailers, provided such operation shall be sufficiently insulated so that any noise, flashing, fumes, gases, smoke, or vapor shall be confined to the premises (Use Variance required from the Board of Appeals).

On January 8, 2010 the Applicants filed for zoning relief as directed by the Building Commissioner.


At the first hearing held on February 22, 2010 the Applicants Attorney Michael Nuesse stated that the Applicants would remove the storage trailer, therefore a use Variance from Section 4.14A was not required.Attorney Nuesse also stated that the Applicants, namely Mr. White, does not do repair work on the property. Mr. White repairs his own vehicles only on the Property and he obtains a permit to weld issued on a yearly basis by the Hingham Fire Department.Therefore Attorney Nuesse stated a use Variance from Section 5.2 was not required.Attorney Nuesse requested a withdrawal without prejudice with regards to the use Variances as applied for.

The Applicants stated that the John Deere backhoe is not used for commercial purposes on-site nor does it meet the statutory definition of “Commercial Vehicle.” It is not registered (Town of Hingham General By-Law does allow for one unregistered, ungaraged vehicle per property in residential districts) and is only used on site for moving wood, excavation and snow plowing.

Board members expressed their concerns with the fact that this issue dated back to 1996 (based on records in the Building Department file) and have taken this long to be resolved.The Board members also expressed a desire to make a site visit to the Property and the first hearing was continued to allow for that and also to allow the Applicants to remove the storage trailer.

Much of the discussions during the hearings were centered around Mr. White’s use, garaging and parking of the backhoe and the swing loader on the Property.Many of the Applicant’s abutters were in attendance at the hearings and expressed their concerns with the hours of operation of the commercial equipment, the fact that it was a residential neighborhood, and the possibility of requiring the machinery to be housed in the garage when not in use.Many of the abutters also wrote letters to the Board expressing these same concerns.

During the course of the hearings the Board, Applicants and abutters discussed conditions which the Board could impose in granting a Special Permit which would include hours of operation, notification to abutters prior to operation of machinery, property not to be used for commercial purposes, screening for the compressor and welder and the housing of the machinery.


Based upon the application and representations made at the public hearing, the Board determined that the granting of the Special Permit A1 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 as long as it is properly condition and enforced.The Board also determined that, based on the representations made by the Applicants and their attorney, the use Variances as applied for were not required.

Therefore the Board of Appeals voted to GRANT the requested withdrawal without prejudice for the use Variances from Sections 4.14A and 5.2 and voted to GRANT the Special Permit A1 under Section III-A, 1.8.3 to allow for the garaging or parking of a commercial vehicle in excess of

10,000 lbs. or more than one commercial vehicle subject to the following conditions:

  1. Backhoe to be housed in the garage when not in use.
  2. The following abutters are to be notified prior to the backing out of the backhoe from the garage:60 Thaxter Street (Brandt/Montgomery), 50 Thaxter Street (Scully), 7 Kents Lane (Fee), 13 Kents Lane (Cappella), 13R Kents Lane (Ham), 17 Kents Lane (Simonetti) and 19 Kents Lane (Doran).If there is no objection from any of the abutters the backhoe may be operated, if one abutter objects no commencement of use of the backhoe may begin.
  3. The hours of operation for use of the backhoe are as follows:Monday-Friday 9:00am-5:00pm, Saturday 10:00am-5:00pm and Sunday 12:00pm-4:00pm.
  4. Screening, in the form of either a fence or plantings, is to be installed in the area where the compressor and welder are located.
  5. The use on the property of equipment to do commercial work shall cease.If it should re-occur the equipment on the property shall be removed forthwith and the Special Permit is deemed null and void.
  6. The Special Permit expires one year from the date of issuance.The Applicant can seek renewal of the Special Permit.
  7. Should there be any complaints received by the Building Department prior to the expiration of the Special Permit they should be brought to the Board’s attention and the applicant is required to appear before the Board of Appeals to address the issue(s).

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