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TOWN OF HINGHAM

Board of Appeals

NOTICE OF DECISION
VARIANCE

IN THE MATTER OF:

Owner/Applicant: Five Cousins Realty LLC
c/o George A. Lambert
220 Providence Highway
Westwood, MA 02090

Property: 1099 Main Street
Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds Book 40911, Page 40

Plan Reference: Existing conditions plan entitled, "Plan of Land, 1099 Main Street, Hingham, Massachusetts," Merrill Associates, Inc., 427 Columbia Road, Hanover, MA, dated September 2, 2004; and plan entitled, "Proposed New Plan & Elevation" and "New Addition Electric, Lighting & Roof Plan," prepared by Studio E Architecture, 48 Old Plain Street, Marshfield, MA, dated March 25, 2015, Drawings A-1 and A-3 respectively.

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the “Board”) on the application of Five Cousins Realty LLC (the “Applicant”) for a modification of a Use Variance from § III-A of the Zoning By-Law (the "By-Law") and such other relief as necessary to remove an existing green house and replace it with a similarly sized structure at 1099 Main Street in Residence District B.

A public hearing was duly noticed and held on July 15, 2015 at the Town Hall, 210 Central Street. The Board panel consisted of its regular members Joseph M. Fisher, Chairman, and W. Tod McGrath and associate member Robyn S. Maguire. Michael Lambert, Lambert's Nurseries and Garden Center, and Bartley Kelly, project contractor, appeared to present the application. At the conclusion of the hearing, the Board voted unanimously to grant a Variance from the side and rear yard setback requirements 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

The subject property has been used as a garden center since 1960. At the time of its initial construction, the Board determined that the nursery and related retail business was a permitted use. The then-bylaw allowed farm, garden or nursery uses provided that a majority of the products sold were raised on the premises. The business had grown by 1964 such that it no longer qualified as an allowed use. Significant portions of the goods sold were not grown on the property and landscaping services were offered and conducted onsite. After application, the Board granted a Use Variance on May 15, 1964, conditionally permitting the operation of a commercial garden center and landscaping business. The decision included a statement that "...any increase in the area, size, or number of the structures in which the business now operates would be detrimental to the public good and would deprive the predominately residential area the protection against the encroachment of commercial enterprises which is afforded by the Zoning By-Law..." The property has been the subject of several applications since, including appeals filed by abutters seeking enforcement action.

The Applicant stated that Lamberts, the nursery/landscaping business presently operated on site, would like to update the greenhouse structure to improve both its functionality and appearance. The proposed 14' x 29.5' wood-framed addition would be constructed on the foundation of the existing greenhouse. The Applicant explained that it is difficult to use the current structure in the winter due to cold weather and the summer due to heat. The proposed addition would create a more controlled climate for customers viewing merchandise and employees accessing storage. The greenhouse roof also partially collapsed during recent winter snow events and requires structural improvement. The applicant confirmed that the proposed structure would continue to be used as both storage and retail space for the garden center in the same manner it is presently used.

Several abutters to the property spoke in favor of the application on the condition that the use is not expanded. Neighbors also voiced complaints about noise generated onsite from a radio and a "cowbell" phone ring. The Applicant agreed to take certain steps to minimize noise from the outdoor speaker system and to replace the current phone ring.

FINDINGS and DECISION

Based upon the information submitted and received at the hearing, and the deliberations and discussions of Board members at the meeting, the Board determined that the proposed modification primarily affects the building design and structural integrality. Members agreed that the proposed construction represents an improvement in both respects over the existing conditions. The Board also found that the proposed plan complies with the condition included in the 1964 variance that "structures used for sales and storage in connection with the business shall not be increased in size or area..."

Upon a motion made by W. Tod McGrath and seconded by Robyn S. Maguire, the Board voted unanimously to grant a modification of a Use Variance from § III-A of the By-Law to remove an existing greenhouse and replace it with a similarly sized structure at 1099 Main Street in Residence District B, subject to the following conditions:

1. The rights authorized by this Variance shall expire one year from the date this Decision is filed with the Town Clerk, unless exercised or extended in accordance with the terms of M.G.L. c. 40A, § 10.

2. The applicant shall complete the construction project in a manner consistent with the submitted plans and representations made during the hearing.

3. Construction activity shall not commence prior to 7am weekdays, 8am on Saturdays, and 9am on Sundays. Construction activity shall cease by 7pm daily.

4. The applicant shall take all actions they committed to during the hearing to mitigate noise issues raised by abutters, including repositioning speakers and eliminating the cowbell phone ring.

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 M. Fisher, Chairman
July 21, 2015