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Board of Appeals



Applicant and Deborah T. Smith        Agent:  Cavanaro Consulting
Property Owner: 39 Eldridge Court  687 Main Street
Hingham, MA 02043 Norwell, MA 02061

Premises: 39 Eldridge Court, Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds, Book 39063, Page 136

Plan Reference: Site plan entitled, “Site Plan to Accompany ZBA Application, 39 Eldridge Court, Hingham, MA 02043,” prepared by Cavanaro Consulting, 687 Main Street, Norwell, MA, dated December 14, 2016 and an architectural plan set entitled, “Salt Marsh Residence,” including a floor and elevation plans, prepared by Zero Energy Design, dated December 14, 2016


This matter came before the Board of Appeals (the “Board”) on the application of Deborah T. Smith (the “Applicant”) for a Finding under MGL c. 40A, § 6 and such other relief as necessary to reconstruct an existing nonconforming three-story dwelling built in 1985 at 39 Eldridge Court in Residence District A.

A public hearing was duly noticed and held on Wednesday, February 15, 2017 at the Town Hall along with a concurrent hearing on a related application for a Special Permit A1 under § III-C., 8. of the Zoning By-Law and such other relief as necessary to construct a detached garage located partially within the Floodplain Protection Overlay District on the Property. The Board panel consisted of regular member Robyn S. Maguire, Acting Chair, and associate members Michael Mercurio and Jim Blakey. The Applicant was represented during the hearing by project engineer John Cavanaro, Cavanaro Consulting, and project architect, John Mucciaarone, Zero Energy Design. At the conclusion of the hearing, the Board voted unanimously to make the requested Finding under MGL c. 40A, § 6.

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.

The subject property contains approximately 52,158 SF of land. While the parcel is located directly adjacent to Chief Justice Cushing Highway/Route 3A, access is provided via an easement located from the end of Eldridge Court. The property, which backs up to the Mill Pond, is affected by areas of both salt marsh and floodplain.
The property was improved by a contemporary-style, single-family home in 1985. The By-Law then in effect contained a maximum height limit of 2.5 stories; however, the existing structure consists of 3 stories. Review of building permit records confirmed that the construction was completed in compliance with a building permit issued in error. The Applicant plans to reconstruct the dwelling in a manner that would reduce the linear height, while maintaining 3-stories.

Since Governor Baker signed H3611, an Act relative to noncompliant structures, in August, the existing dwelling is now considered nonconforming. The Act amends c. 40A, § 7, which addresses the circumstances under which zoning violations can be enforced. Prior to the passage of this bill, the law prevented a municipality from taking enforcement action against unlawful structures if seven years elapsed from the date of the building permit issuance. If seven years passed, then the building or structure became protected from enforcement action; however, alteration, extension, or reconstruction was not permitted absent a variance. H3611 amended the statute by granting legal status, subject to the provisions of c. 40A, § 6, as well as local ordinances or by-laws, to nonconforming structures that survive the applicable statute of limitations.

MGL c. 40A, § 6 provides that:

a zoning ordinance or bylaw… shall apply… to any reconstruction, extension or structural change of such structure…except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.

The Board considered whether the proposed reconstruction would increase the nonconforming nature of the existing single-family dwelling. While the nonconforming linear height of the existing structure will be reduced such that the proposed structure will conform to the present limitation of 35’, the third story floor area will increase by approximately 215 SF. As a result, the Board determined that the nonconforming nature of the structure will be increased.

The Board then reviewed the request through the lens of the second except clause in GL c. 40A, § 6, which reads as follows:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority…that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

The Board confirmed that the proposed reconstruction would not result in new nonconformities. The Board additionally found that the proposed project will not create any additional noise, traffic, or other negative effects on the neighborhood. While one abutter appeared during the hearing, her expressed concern related more to temporary construction impacts on the shared access drive for the Property. The Applicant’s representatives indicated that the driveway would be restored to its preconstruction conditions. As a result, the Board found that the extension will not be substantially more detrimental than the existing nonconforming structure to the neighborhood.


For the reasons set forth hereinabove, and upon a motion made by Michael Mercurio and seconded by Jim Blakey, the Board voted unanimously as follows:

(1) To make a finding pursuant to M.G.L. c. 40A, § 6 that the proposed reconstruction of the 3-story single-family dwelling would intensify the nonconforming nature of the single-family dwelling; however, the proposed extension shall be no more detrimental than the existing nonconforming use or structure to the neighborhood, provided that such work proceeds in accordance with the plans and representations made by the Applicant to the Board during the hearing such that the shared access drive for the Property restored to its preconstruction condition.

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,

Robyn S. Maguire
April 14, 2017