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Board of Appeals



Applicant and Benjamin & Melissa Hux Agent: Attorney Scott Golding
Property Owner: 34 Downing Street 175 Derby Street, Suite 30
Hingham, MA 02043 Hingham, MA 02043

Property: 34 Downing Street, Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds, Book 42332, Page 201

Plan Reference: Site plan entitled, “Plan of Land, 34 Downing Street, Hingham, MA,” prepared by Hoyt Land Surveying, 1287 Washington Street, Weymouth, MA, dated June 28, 2017, revised September 6, 2017 (1 sheet) and architectural plans entitled, “Special Permit Hearing Set,” prepared by Tiryaki Architectural Design, 21C South Main Street, Cohasset, MA, including existing and proposed floor plans, revised through September 12, 2017 (4 drawings) and existing and proposed exterior elevations, revised through September 15, 2017 (2 drawings)


This matter came before the Board of Appeals (the “Board”) on the application of Benjamin and Melissa Hux (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 construct an attached two-car garage with living space above resulting in a 5’-8” side yard setback where 15’ is required at 34 Downing Street in Residence District A.

A public hearing was duly noticed and held on July 18, 2017 at Hingham Town Hall, 210 Central Street. At the Applicant’s request, the Board continued the matter to a subsequent session held on September 19, 2017, during which a revised plan was presented to the Board. As modified, the proposed construction would result in a 10.1’ side yard setback where 15’ is required in the District.

The Board of Appeals panel consisted of its regular members Robyn S. Maguire, Chair, and Joseph M. Fisher and associate member Michael Mercurio. The Applicant was represented during the hearing

by Attorney Scott Golding, Drohan Tocchio & Morgan, P.C. At the conclusion of the proceedings, the Board voted unanimously to grant the requested relief, as revised, subject to conditions set forth below.

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 consists of 8,442 SF of land located on the east side of Downing Street. The property is improved by a single-family dwelling and attached two-car garage. The Applicant represented to the Board that the dwelling was constructed in 1932, prior to the adoption of the By-Law in 1941, and thus qualifies as preexisting nonconforming in terms of lot area, frontage, front and rear setbacks. The onsite wastewater disposal system is located to the immediate east and south of the dwelling, occupying portions of both the rear and south side yards.

The originally proposed plan would both expand the existing house through 1.) conversion of the existing, undersized garage to a family room and 2.) construction of a 24’x29’ garage with living space above. The plan reoriented access to the existing garage to face the front, as opposed to the side, of the property. The originally proposed garage would result in an approximate 280 SF incursion into the required side yard setback. The proposed project would also simultaneously eliminate a very minor side and rear yard intrusion/encroachment associated with an existing shed. During the initial hearing, the Board expressed concern about the proposed project and particularly the proposed side yard setback of 5.4’.

The Applicant submitted revised plans in response that reduced the originally proposed incursion into the side yard setback by approximately one-half. As revised, an attached (23.7’x29’) two-car garage would be still constructed; however, elimination of a previously proposed entry/mudroom and reconfiguration of the interior layout results in a 10.1’ side yard setback where previously a 5.4’ setback was proposed, which improves the originally proposed setback by 4.7’. The Applicant represented that the plan as revised would provide necessary storage space that is presently lacking in the existing dwelling. Due to onsite soil conditions, including the wastewater disposal system and high groundwater elevation related to the property’s proximity to groundwater wells, only a crawlspace exists presently in the dwelling.


Based upon the information submitted and received, and the deliberations and discussions of Board members during the hearing, the Board has determined that:

1. There are circumstances relating to soil conditions, shape or topography especially affecting the land but not affecting generally the zoning district. The Property is somewhat affected by an unusual shape, which is greater in width (120’) than depth (70’). The property also is located in close proximity to the public groundwater wells. Due to onsite soil conditions, the existing nonconforming house lacks a full basement. Additionally, the onsite wastewater

disposal system occupies the southerly side of the lot. These circumstances in combination with the existing improvements on the property do not more generally affect the neighborhood or the district.

2. The literal enforcement of the Bylaws would involve substantial hardship financial or otherwise. The requested relief will allow the Applicant to replace an existing garage that does not function well for its intended purpose and incorporate storage that the current dwelling lacks. 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.

3. 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. There will be no adverse effects or harm to the public good.

4. A variance may be granted without nullifying or substantially derogating from the intent or purposes of the Bylaw. The proposed project, as revised, will not substantially derogate from the intent of the By-Law. The granting of a dimensional variance in this instance is consistent with the purposes of the By-Law in that it will improve safety and access to the Property.


Upon a motion made by Joseph M. Fisher and seconded by Michael Mercurio, the Board voted unanimously to grant the requested Variance from § IV-A of the By-Law and such other relief as necessary to construct an attached two-car garage with living space above resulting in a 10.1’ side yard setback where 15’ is required at 34 Downing Street in Residence District A, subject to the following condition:

1. The Applicant shall construct the addition a manner consistent with the approved plans and the representations made during the hearing before 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,

Robyn S. Maguire
October 18, 2017