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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
IN THE MATTER OF:
Owner/Applicant: Emily O. and Matthew J. Dowal
Property: 40 Elm Street
Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds Book 39998, Page 209
Plan Reference: Plan entitled, "Plan of Land, 40 Elm Street, Hingham, MA," prepared by Hoyt Land Surveying, 1287 Washington Street, Weymouth, MA, dated April 23, 2014, revised through September 16, 2015
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the “Board”) on the application of Emily O. and Matthew J. Dowal (collectively, the “Applicant”) for a Variance from § IV-A of the Hingham Zoning By-Law (the “By-Law”) and such other relief as necessary to replace a nonconforming garage that encroaches on abutting property with a new two-car garage resulting in a 3' rear yard and 5.6' side yard setback where 15' is required at 40 Elm Street in Residence District A.
A public hearing was duly noticed and held on November 18, 2015, at the Town Hall, 210 Central Street. The Board panel consisted of its regular members Joseph M. Fisher, Chairman, Joseph W. Freeman, and W. Tod McGrath. The Applicant, Emily Dowal, appeared to present the request. At the conclusion of the hearing, the Board voted unanimously to grant a Variance from the side and rear yard setback requirement under § IV-A of the By-Law.
Throughout its deliberations, the Board has been mindful of the statements of the Applicant and the comments of the general public, all as made or received at the public hearing.
BACKGROUND AND DISCUSSION
The subject property consists of approximately 11,777 SF improved by two-story dwelling and detached garage. The lot is narrow in shape with 51' of frontage. The rear property line meets the sides at an angle and the existing garage mirrors this angle, so that in addition to encroaching on an adjoining property by 2', the structure has an unusual shape. The property is also affected by grade changes in the southwesterly portion as evidence by several retaining walls in the area.
The proposed plan calls for replacement of the nonconforming single-story garage, which appears to be in significant disrepair based on photographs submitted with the application. The project would eliminate the existing encroachment and improve the rear yard nonconformity by approximately 5' (2' encroachment to 3' setback). However, the proposed project would create a new nonconformity with respect to the southwesterly side yard setback. The proposed placement would result in a 5.6' setback where 15' is required. The architectural plans depict a two-car, two-story garage. The second floor, accessible by an exterior stairway, would remain unfinished.
During the hearing, the Board discussed alternative options, concluding that there would be no way to fit the proposed garage on the lot without encroaching on a side yard setback in a manner that promotes safe maneuvering. Members noted that four neighbors, including three direct abutters, submitted letters of support for the proposed project. Members agreed that the proposed structure appears to substantially improve the existing conditions.
Based upon the information submitted and received, and the deliberations and discussions of Board members during the hearing, the Board has determined that:
a. There are circumstances relating to soil conditions, shape or topography especially affecting the land but not affecting generally the zoning district. The Property is narrow in shape with 51' of frontage. The rear property line intersects with the sides at an angle resulting in an unusual shape. The property is also affected by grade changes in the southwesterly portion as evidence by several retaining walls in the area.
b. The literal enforcement of the Bylaws would involve substantial hardship financial or otherwise. Absent relief, the Applicant would be forced to repair a significantly deteriorated garage, which encroaches on adjoining property. A grant of a Variance in this instance will allow for a reasonable use that is consistent with a single family use in the Residence A Zoning District;
c. A variance may be granted without substantial detriment to the public good. The proposed project will not create any noise, traffic or result in other similar negative impacts. In fact, the proposed project will improve existing conditions with respect to the rear yard encroachment and the design of the accessory structure will be consistent with many single family residences in the surrounding neighborhood. There will be no adverse effects or harm to the public good; and
d. A variance may be granted without nullifying or substantially derogating from the intent or purposes of the Bylaw. The proposed project will eliminate the existing encroachment and improve the rear yard setback nonconformity. The granting of a dimensional variance in this instance will not derogate from the intent of the By- Law.
Upon a motion made by W. Tod McGrath and seconded by Joseph W. Freeman, the Board voted unanimously to grant a Variance from the side and rear yard setback requirement under § IV-A of the By-Law approving replacement of a nonconforming garage that encroaches on abutting property with a new two-car garage resulting in a 3' rear yard and 5.6' side yard setback where 15' is required at 40 Elm Street in Residence District A, subject to the following conditions:
1. The Applicant shall construct the project in a manner consistent with the approved plans and the representations made at the hearings before the Board.
2. The second story of the accessory structure shall not be converted to habitable living space without further review by the Board.
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 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
December 14, 2015