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TOWN OF HINGHAM

BOARD OF APPEALS

IN THE MATTER OF:

Applicant:        J & P O’Brien Family Limited Partnership
                       23 Foley Beach Road
                      Hingham, MA 02043

Premises:        25 Eldridge Court
                      Hingham, MA 02043

Deed Reference:    Plymouth County Registry of Deeds, Book 20876, Page 349, and
Book 22436, Page 343

SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals on the Application of J & P O’Brien Family Limited Partnership (contract purchaser, the “Applicant”) for a Special Permit A1 under Section III-C 8, and if necessary, a front yard and a rear yard setback Variance from Section IV-A and a use Variance from Section I-D 2 c of the Zoning By-Law and such other relief as necessary in order to replace the pre-existing nonconforming structure and nonconforming commercial use (clam shack) with a single family residence on the same footprint as the existing clam shack in the Flood Plain and Watershed Protection District at 25 Eldridge Court (the “Property”) in Residence District A.

A public hearing was duly noticed and held on the following dates: February 15, 2012, with continuances held on March 14, 2012, and April 11, 2012. As part of the public hearing process the Zoning Board of Appeals also conducted a Site Visit on February 18, 2012.  The public hearing and deliberations were conducted by a panel consisting of regular members W. Tod McGrath, Chairman, Joseph Fisher, and Joseph Freeman.

BACKGROUND:
The Property is a nonconforming (undersized) lot, currently the site of a nonconforming structure and a nonconforming business use, a ‘clam shack’ that dates back to the 1930’s. The existing clam shack is a 1½ story wooden structure of approximately 1,028 square feet and is situated on the Property as depicted on the “Proposed Building Plans” (3 sheets, prepared by Merrill Associates, Inc. 427 Columbia Road, Hanover, MA stamped by Thomas A. Pozerski, Civil RPE, revised through November 14, 2011) submitted by the Applicant.

The Property has frontage directly on Eldridge Court which is a public way extending the length of the Property.  The average width of the paved public way leading to the Property is fourteen (14) feet. However, commencing at the end of this Property, Eldridge Court is a private way that is paved but is narrower.

 
The surrounding neighborhood is comprised of single-family residential homes, some of which have frontage on the public way, and the others have access over the private way. 
 
The Applicant submitted photographs depicting the existing clam shack structure and such photographs are consistent with the observations made by the Members of the Zoning Board at the Site Visit of February 18, 2012.

The Applicant proposes to replace the clam shack with a 2½ story, three bedroom, single-family residence.  The home will be constructed on the footprint of the existing structure as shown on the “Proposed Building Plans”.  The square footage of the living space in the proposed residence is 1,770 square feet.  The square footage of the footprint of the proposed home is 1,028 +/- square feet.

The Applicant submitted a preliminary design proposal for the single-family home, which was in a style intended to invoke the maritime spirit of the existing clam shack.  At the suggestion of the Zoning Board of Appeals the Applicant obtained a revised design depicting a ‘shingle style’ residence with a stucco façade on the lower level, and a natural shingle façade on the second floor level.

DISCUSSION:
I.    Previous Zoning Relief Granted in 2005 Expired Without Use and Is Not Relevant to this Applicant’s Proposal:

In 2005 the owners of the Property, Myrle F. Derbyshire and Judith S. Derbyshire, sought and in 2006 obtained, zoning relief for a single-family home, which they proposed to build on a different portion of this same lot. The zoning relief was allowed to expire without use after the Derbyshires encountered difficulty in establishing a wetland resource boundary located within the lot.

The current Applicant does not seek to replicate, renew or modify the zoning relief previously granted. Rather, the current Applicant proposes a new plan to erect a single-family dwelling on the footprint of the existing clam shack, rather than being relocated on the lot as previously proposed in 2005.  Accordingly, the Applicant informed the Board that the zoning relief granted in 2006 is not relevant to the current proposal, should not be relied upon by the Board in its consideration of the current Applications for relief, and has no precedential value as to the current Applicant’s proposal.  The Board agreed with the Applicant, noting that recent action taken by the Conservation Commission in 2011 with respect to the Property created a new set of circumstances for the Board to consider.  Accordingly, the Board proceeded without reference to or reliance upon the expired zoning relief from 2006.
 

II.    Wetland Resource Boundary and Issuance of an “Order of Conditions” by the Hingham Conservation Commission:

The Applicant has conducted extensive wetlands testing and analysis and the wetland resource boundary has been satisfactorily established. The Applicant’s research has resulted in a clarification showing that the lot is larger than previously thought, and that the lot contains more upland than previously referenced in the 2005-2006 zoning review.

The Applicant successfully established the wetland resource boundary and has already obtained an Order of Conditions from the Hingham Conservation Commission specifically relating to the proposed improvements on the Property.  A copy of the Order of Conditions dated December 8, 2001, was submitted by the Applicant for consideration by the Board.

III.    Termination of Nonconforming Commercial Use and Replacement by Conforming Residential Use:

The general provisions of the Hingham Zoning By-Law allow properties to be used in the manner as “is permitted in the district in which such building, structure or land is located.”  Zoning By-Law §I-B.  A non-conforming use may be changed over to a conforming use.  Once changed to a conforming use, however, it may not revert back.

“Changes - Once changed to a conforming use, no structure or land shall be permitted to revert to a nonconforming use.”  (Zoning By-Law §III-I 5.)

IV.    Application of Exemptions Under the Flood Plain and Watershed Protection District Zoning By-Law: Section III-C 5:

Zoning By-Law §III-C 5., governing the Flood Plain and Watershed Protection District, allows for the modification and enlargement of buildings which existed in the Flood Plain and Watershed Protection District as of January 1, 1969:

“The following are specifically exempt from the provisions of this Section III-C:
a. All residential dwellings, and those portions only of the lots therefore needed for such repair, rebuilding, modification or enlargement of buildings as is permitted under this paragraph 5, existing in the Flood Plain and Watershed Protection District on January 1, 1969.
b. All industrial, commercial and business buildings, and those portions only of the lots therefor needed for such repair, rebuilding, modification or enlargement of buildings as is permitted under this paragraph 5, existing in the Flood Plain and Watershed Protection District on January 1, 1969.
c. All residential, commercial, industrial and business buildings, and those portions only of the lots therefor needed for such repair, rebuilding, modification or enlargements of buildings as is permitted under this paragraph 5, the Building Permits for which were issued prior to January 1, 1969.

“All dwellings and buildings referred to in this paragraph may be repaired, rebuilt, modified, or enlarged including but not limited to the addition of garages, additional living space, and construction of appurtenant outbuildings, together with such filling, diking, and/or draining as may be necessary therefor or for the protection of said structures from flood water inundation, consistent with the laws of the Commonwealth of Massachusetts, and compliance with all other zoning requirements, and provided such construction does not affect the natural flow patterns of any water course.”

The provisions of the Flood Plain and Watershed Protection District Zoning By-Law specifically authorize “…repair, rebuilding, modification or enlargement of buildings…”, both residential and commercial, provided that the five (5) enumerated criteria are satisfied:
(1)    there is a building that was in existence as of January 1, 1969;
(2)    the proposed work is limited to the building and those portions only of the lot needed for such work;
    (3)    the proposed work is in compliance with the laws of the Commonwealth;
(4)    the proposed work is in compliance with all other zoning requirements; and
(5)    such proposed construction does not affect the natural flow patterns of any water course.

Reviewing the above-referenced criteria and applying such criteria to the Applicant’s proposal reveals the following:

1.    The clam shack, a commercial building, has been in existence since long before January 1, 1969.  Accordingly, the Applicant qualifies under subpart (b) of Zoning Bylaw §III-C 5 .

2.    The Applicant has limited its proposed work to the replacement of the existing structure and those portions only of the lot needed for such work.  If the project is approved, the Board would impose restrictions in its decision that will limit the work to the replacement of the existing structure and those portions only of the lot needed for such work.

3.    The Conservation Commission issued its Order of Conditions on December 8, 2011, approving the project subject to certain enumerated conditions which, if followed by the Applicant, will assure that the proposed development is in compliance with the Massachusetts Wetlands Protection Act (as well as Hingham’s Wetlands Protection By-Law).  The Order of Conditions is final and effective; it has not been challenged or appealed.  Any approval of this project by the Board will be subject to the Applicant’s adherence to the Conservation Commission’s Order of Conditions and compliance with all applicable laws of the Commonwealth.

4.    The Zoning By-Law’s criterion that the development of the residence is in “..compliance with all other zoning requirements...” refers only to those requirements which are applicable to the project, subject to such modifications and conditions as may be determined by this Board pursuant to its authority under the Zoning By-law and consistent with the laws of the Commonwealth. Accordingly, the Applicant’s proposed residential structure, to be built upon the same footprint as the existing clam shack, would not have to comply with the various dimensional requirements of the current Zoning By-law. 

5.    The proposed residential structure will be situated on the same footprint as the existing clam shack, which is located on the upland portion of the lot and not within the actual watercourse. The Applicant is not proposing any construction which would “…alter the natural flow patterns of any water course...” and the Order of Conditions grants no permission for any such construction.

Accordingly, pursuant to Sub-section 5 of the Flood Plain and Watershed Protection District Zoning By-Law (§III-C 5.) the Applicant’s proposal is within the stated exemptions from those provisions of I§II-C that would otherwise impose greater restrictions on the permissible use of the Property.

Therefore, the Board finds that because the Applicant’s proposal is exempt from the provisions of the Flood Plain and Watershed Protection District Zoning By-Law (§III-C 5.), the provisions of sub-section 8 which allows the Board to issue a Special Permit A1 do not need to be addressed and the Applicant’s request for such a permit is denied as unnecessary. 

V.    Application of Zoning By-Law § IV-C 5.a and Chapter 40A, §6, Fourth Paragraph:

The Property is a lawfully pre-existing nonconforming (i.e. undersized) lot containing 15,638 square feet +/- (Upland: 6,604 +/-   Wetland 9,034 +/-).  The current provisions of the Hingham Zoning By-Law require 20,000 square feet of lot area as the Minimum Lot Size in the Residence A zoning district.

The Applicant requested that the Board consider the proposed project for a single-family residential use as qualifying the Property as an exempted lot under Zoning By-Law § IV-C 5.a, which provides:

“A lot or parcel of land in a residential district having an area or frontage less than that required by this section may be developed for a single residential use provided that such lot or parcel complies with the specific exemptions of Section 6 of Chapter 40A of the Massachusetts General Laws.” (Emphasis added)
 
The Applicant stated that its Property complies with the specific exemptions of M.G.L. Chapter 40A, Section 6, fourth paragraph, which requires that the lot “was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.” The Applicant represented that the Property satisfies these requirements, including the requirement of no common ownership with any adjoining land.

However, the Courts have held that the fourth paragraph of Section 6 applies only to “vacant land.”  See Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987); Dial Away Co., Inc. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996).  The subject Property is not vacant.  Accordingly, the Board did not apply the fourth paragraph of Chapter 40A, Section 6, nor did the Board apply Zoning By-Law § IV-C 5.a.

VI.    Application of Chapter 40A, §6, First Paragraph:

The Applicant proposes to replace the existing nonconforming commercial structure with a single-family residence that will maintain the same dimensional nonconformities (front and rear yard setbacks). Accordingly, no new nonconformity will be created.  However, the proposed single-family residence will be a 2½ story structure, as compared to the existing 1½ story clam shack.  Therefore, the proposed new structure constitutes a change, extension or alteration of the existing nonconforming structure.

The Board notes that §III-I 6. of the Hingham Zoning By-Law, commonly referred to as the “Hatfield Amendment”, permits as of right certain expansions to nonconforming single and two-family dwellings, so long as the specific nonconformity is not exceeded.  However, the Hatfield Amendment is not applicable to the present application because the existing structure, a clam shack, is not a single or two-family dwelling.

M.G.L. Chapter 40A, §6, first paragraph, applies to the Applicant’s proposal.  The first two (2) sentences of Chapter 40A, § 6 provide as follows:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent 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. 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 or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood. (Emphasis added.)

The words “structure or” appearing in brackets in the second sentence quoted above were supplied by the Appeals Court in Willard v. Board of Appeals of Orleans, 25 Mass.App.Ct. 15, 21, 514 N.E.2d 369 (1987), and subsequently approved and applied by the Supreme Judicial Court in Rockwood v. Snow Inn Corp., 409 Mass. 361, 363 n. 4, 364, 566 N.E.2d 608 (1991), Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852, 856, 832 N.E.2d 639 (2005) (Greaney, J., concurring), and Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357, 358 n. 3, 878 N.E.2d 915 (2008). 

The Courts have established a two-step framework for consideration of proposed single or two-family residential structures:

First, under the second “except” clause of the first paragraph of the statute, the Board must (a) “identify the particular respect or respects in which the existing structure does not conform to the present by-law” and then (b) “determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones. If the answer to that question is in the negative, the applicant will be entitled to the issuance of a special permit.” Bransford, supra at 858, quoting from Willard v. Board of Appeals of Orleans, supra at 21–22.

Second, if the answer to the question about intensification of nonconformities is in the affirmative, then a finding of “no substantial detriment” under the second sentence of the statute is required in order for the project to proceed. Willard v. Board of Appeals of Orleans, supra.

Step 1.    Identification of the particular respect or respects in which the existing structure does not conform to the requirements of the current by-law and determination of whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones.

Current Nonconformities:

The existing structure does not conform to the current dimensional requirements of the Zoning By-Law:

a.)    the lot is nonconforming, containing 15,638 square feet +/-. The current minimum lot size requirement in the Residence A zoning district is 20,000 square feet,

b.)    The front yard setback is 6.9 feet.  The current minimum front yard setback in the Residence A zoning district is 25 feet.

c.)    The rear yard setback is 12.6 feet.  The current minimum front yard setback in the Residence A zoning district is 15 feet.

In addition to the nonconformities of the structure, the current commercial use is nonconforming.

New Nonconformities:

The Applicant’s proposed alterations, being wholly located in the footprint of the existing structure, do not create any new non-conformity.

Intensification of Current Nonconformities:

The Applicant’s proposed higher structure, with the same setback nonconformities, constitutes an intensification of the nonconformity.  This Finding is predicated upon the following facts:

a.)    the public way is very narrow even though it extends almost the full breadth of the road layout (i.e from the property boundary line on the lot across from the Property to the boundary line of the Property),

b.)    the Applicant has agreed widen the paved roadway (or allow the Town to do so during a currently scheduled re-paving to take place in the near future),

c.)    the new residential structure will be situated approximately 7 feet from the Property boundary line and new edge of pavement,

d.)    the larger building façade will present a noticeable change to the current ‘streetscape’ and will be a natural focal point as it is located on a curve in the road.

In light of this Finding, the Zoning Board’s review must now proceed to the second step of the review standard as set forth in the Willard decision.

Step 2. Are the proposed alterations “substantially more detrimental” than the existing nonconforming structure or use to the neighborhood?

Upon consideration of all the facts, submissions and testimony presented, and following the Board’s visit to the Property and the neighborhood, the Board finds that the Applicant’s proposal for the construction of a 2 ½ story, single family residence, with on-site parking, as shown in the Applicant’s plans revised as of April 4, 2012, and subject to the Board’s conditions and restrictions identified below, will not be substantially more detrimental to the neighborhood than the current nonconforming commercial structure and commercial use.

In making this Finding, the Board has considered numerous facts, including the following:

1.)    Lots Sizes on Eldridge Court: The Applicant has provided documents showing that the Hingham Assessors Office lists thirteen (13) properties located on Eldridge Court (including the Property at issue). All of the lots are improved with residences (except the subject Property has the clam shack). Eight (8) of the lots are undersized nonconforming lots:

        6 Eldridge Court – 6970 square feet
        9 Eldridge Court – 19602 square feet
        14 Eldridge Court – 12632 square feet
        16 Eldridge Court – 10890 square feet
        22 Eldridge Court – 10454 square feet
        25 Eldridge Court – 15638 square feet
        26 Eldridge Court – 9583 square feet
        32 Eldridge Court – 16117 square feet

    Accordingly, the Applicant’s proposal to build the proposed residence on the undersized lot at 25 Eldridge Court is consistent with the general character of the neighborhood.

2.)    Home Sizes on Eldridge Court: The Applicant has provided documents showing that the Hingham Assessors Office lists thirteen (13) properties located on Eldridge Court (including the Property at issue). All of the lots are improved with residences (except the subject Property which has the clam shack). The living area of the existing residences varies from 1078 square feet to 2244 square feet:

        6 Eldridge Court – 1112 square feet
        9 Eldridge Court – 1350 square feet
        14 Eldridge Court – 1078 square feet
        16 Eldridge Court – 1409 square feet
        22 Eldridge Court – 1931 square feet
        25 Eldridge Court – 1770 (proposed)
        26 Eldridge Court – 1489 square feet
        32 Eldridge Court – 1467 square feet
        33 Eldridge Court – 1903 square feet
        35 Eldridge Court – 1608 square feet
        37 Eldridge Court – 2244 square feet
        39 Eldridge Court – 1633 square feet

    Accordingly, the size of the residence proposed by the Applicant is consistent with the size of the other homes in the neighborhood.

3.)    Height of the Homes on Eldridge Court: Of the twelve (12) existing residences located on Eldridge Court, ten (10) of them are at least 2 stories in height.  The Property is located in a lower lying area of Eldridge Court, especially compared to the property directly across the street.  The 2 ½ story height of the residence proposed by the Applicant appears to be consistent with the height of the other homes in the neighborhood. 

4.)    Off-Street Parking: The Applicant proposes an off-street parking area for two (2) vehicles as required by Zoning By-Law §V-A.  (The current nonconforming commercial use {clam shack} would require 3 ½ parking spaces.) The Applicant’s proposal for off-street parking is in compliance with the minimum off-street parking requirements of the Zoning By-Law.  In addition, concerns regarding the potential for off-street parking are addressed by Conditions and Restrictions imposed by the Board in this decision.

5.)    Traffic and Road Width: Eldridge Court is a public way leading to, and in front of, the Property.  Thereafter, Eldridge Court is a private way.  Although Eldridge court is paved, it is narrow and the Property is located on a curve in the road.  Across the street from the Property there is a concrete wall, approximately five (5) feet in height, which immediately borders the road layout and paved surface.  As a result of the curve and the concrete wall, the visibility around the corner is somewhat limited. These conditions create a natural impediment to fast vehicular traffic. Also, the Applicant’s engineer has depicted the sight lines on the Plan and the visibility appears to be adequate for vehicular and pedestrian safety.  

    In addition, the Board recognizes that Eldridge Court is a “dead end” street that provides access only to the lots on Eldridge Court.  Accordingly, there is no “through” traffic.  The residents of Eldridge Court are likely to have familiarity with the nature and condition of the road.

    The Applicant has also agreed that the roadway may be widened up to the boundary of the property fronting on Eldridge Court.  The Applicant has volunteered to provide such widening of the pavement, and the Board has received information that the Town has scheduled the repaving of Eldridge Court for 2012.  Regardless of who performs the paving, the roadway width is expected to be increased along the frontage of the Property by an additional two (2) feet (approximately).

    During the public hearing process several abutters expressed concern with the safety of pedestrians, especially children, who walk down Eldridge Court. The abutters stated that due to the narrowness of the road, and the lack of sidewalks, the pedestrians are effectively forced to walk in the street or to trespass onto private property. The abutters have expressed a fear that the construction of the proposed home will exacerbate the danger to pedestrians by reducing their ability to trespass onto the Property and by increasing vehicular traffic. The Board has considered the abutters’ concerns and conducted a site visit to examine the risks.   The Board does not agree that the Applicant should be required to allow pedestrians to continue to trespass onto the Property.  The Applicant’s design widens the paved road surface by some two (2) feet, and the placement of safety bollards and a walkway in front of the house, between the street and the house, creates an area where a pedestrian may step off the roadway in the event of oncoming traffic. The Board finds that while the existing conditions may not be ideal, such conditions are already in existence and will not be caused by, or exacerbated by, the new home on the Property. In fact, the safety of pedestrians at this curve on Eldridge Court is likely to be improved by the proposed construction.  Further, there is no evidence that the proposed home will lead to increased vehicular traffic beyond a level that can safely be handled on Eldridge Court or in excess of the vehicular traffic generated by any other residence in the neighborhood.

    Accordingly, the Board finds that the addition of the proposed residence will not unduely increase vehicular traffic on Eldridge Court and will not adversely affect or exacerbate the existing conditions relative to the roadway, traffic or pedestrian safety.

6.)    Stormwater Drainage and Runoff Control: The existing conditions on Eldridge Court do not provide for any catchment of stormwater drainage and runoff.  In accordance with the requirements of the order of Conditions issued by the Hingham Conservation Commission, the Applicant’s construction must include stormwater catchment and treatment.  This will be an improvement to the neighborhood.

7.)    Fire Safety / Hydrant: Although there are water mains located near the entrance to Eldridge Court, there is no fire hydrant  situated further down Eldridge Court, across the MBTA tracks, where the majority of the residences are located.  The nearest hydrant is located on the “far side” of the MBTA tracks. The Board is mindful that several homes at the end of Eldridge Court were built in recent decades despite the lack of a hydrant in close proximity.

The Applicant has discussed the possible installation of a hydrant with the Hingham Department of Public Works and the Fire Department.  Whether or not the Town will act to install a hydrant is beyond the Applicant’s control.  The Board finds that the construction of the proposed residence will not exacerbate any fire hazard or reduce public safety. 

8.)    Adequacy of Utilities Servicing the Property:  The Property is currently serviced by Aquarion Water Company, Town sewer, and Town electric service, and gas service.  The public health will not be adversely affected by the construction of a residence having similar utility service.

9.)    The Board also finds that the proposed change of use, in and of itself, from a nonconforming business use to a conforming residential use, is “not substantially more detrimental” to the neighborhood, but rather is in keeping with the overall residential character of the neighborhood.
 
VII.    No Special Permit A1 or Variance is Required:

The Applicant has made multiple requests for zoning relief, including alternative claims for a Special Permit A1 pursuant to §III-C 8., a front yard and a rear yard setback Variance from §IV-A, and/or a use Variance from §I-D 2.c. of the Zoning By-Law. 

In light of the Board’s finding pursuant to Chapter 40A, §6 that the proposal is not substantially more detrimental to the neighborhood than the existing nonconformities, the Board declines to grant the Applicant’s other requests for zoning relief and hereby denies such requests.  The Chapter 40A, §6 finding is sufficient to allow the Applicant to proceed with the proposed project.  See Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass.App.Ct. 331, 952 N.E.2d 977 (2011).

FINDINGS:  
The Findings made by the Board are those as set forth above, and as follows:

1.    The Property, although undersized, may be developed for a single residential use.

2.    The Applicant has the right to terminate the nonconforming use and change the use of the Property to a residential use.

3.    Pursuant to Sub-section 5 of the Flood Plain and Watershed Protection District Zoning By-Law (§III-C 5.) the Applicant’s proposal is within the stated exemptions from those provisions of §III-C that would otherwise impose greater restrictions on the permissible use of the Property. The proposed scope of work is limited to the replacement of the existing structure and those portions only of the lot needed for such work. 

4.    The Applicant’s proposed project is exempt from the provisions of the Flood Plain and Watershed Protection District Zoning By-Law (§III-C 5.); accordingly, the Applicant does not need a Special Permit A1 in order to proceed with the proposed construction.

5.    As referenced in §VI above, the existing structure does not conform to the current dimensional requirements of the Zoning By-Law:

a.)    the lot is nonconforming, containing 15,638 square feet +/-. The current minimum lot size requirement in the Residence A zoning district is 20,000 square feet,

b.)    The front yard setback is 6.9 feet.  The current minimum front yard setback in the Residence A zoning district is 25 feet.

c.)    The rear yard setback is 12.6 feet.  The current minimum front yard setback in the Residence A zoning district is 15 feet.

In addition to the nonconformities of the structure, the current commercial use is nonconforming.

6.    As referenced in §VI above, the Applicant’s proposed alterations, being wholly located in the footprint of the existing structure, do not create any new non-conformity.

7.    As referenced in §VI above, the proposed higher residential structure does intensify the existing setback nonconformities.

8.    The Applicant’s proposal for the construction of a 2 ½ story, single family residence, with on-site parking, as shown in the Applicant’s plans revised as of April 4, 2012, and subject to the Board’s conditions and restrictions identified below, will not be substantially more detrimental to the neighborhood than the current nonconforming commercial structure and commercial use.

DECISION:
The Zoning Board of Appeals voted unanimously to GRANT the following relief sought by the Applicant, namely:

1.    A determination, pursuant to M.G.L. Chapter 40A, §6, that the Applicant’s proposal to replace the existing 1 ½ story nonconforming commercial structure (clam shack) with a 2 ½ story single family residence, thereby eliminating a nonconforming commercial use, will not be substantially more detrimental to the neighborhood than the existing nonconforming commercial structure (clam shack) and its attendant nonconforming commercial use.

2.    The Conditions and Restrictions herein set forth are expressly included as components of the Board’s decision that the construction of the single family residence on the Property will not be substantially more detrimental to the neighborhood than the current nonconforming commercial structure and commercial use.

CONDITIONS and RESTRICTIONS:
The approvals are expressly subject to the following conditions and restrictions:

1.    The residential structure to be erected on the Property shall be in accordance with the architectural drawings and elevations prepared by David Sargent / Janez Design and Development dated 4/4/12, subject to possible changes to the windows at the rear of the structure to facilitate optimum views.  The Building Commissioner/Building Inspector shall determine whether or not the construction is being conducted in conformity with such design.  In the event of any further question as to compliance with the design, the issue may be reviewed at any regularly scheduled meeting of the Board of Appeals without need for advance notice by publication.

2.    The construction on the Property shall be in substantial compliance and conformity to the “Proposed Building Plans” submitted by the Applicant (revision date April 4, 2012 with modifications to bollards as discussed in Condition 6 below) subject to any minor modifications that may be necessitated for compliance with federal, state, or municipal rules and/or regulations. The Applicant shall provide updated “Proposed Building Plans” prior to the issuance of a Building Permit.

3.    There shall be no on-street parking by the residents of the Property and/or their guests.  All vehicle parking shall be located wholly on the Property.

4.    The stormwater drainage and treatment facilities located on the Property shall be maintained by the Owner of the Property using best management practices and/or in compliance with the requirements of the Hingham Conservation Commission Order of Conditions.

5.    The Applicant shall confer with the Hingham Department of Public Works (DPW) with regard to the scheduled repaving of Eldridge Court and shall advise the DPW that the repaving may extend up to the Property boundary line bordering on the road layout.  If the DPW does not proceed with the repaving as currently scheduled for 2012, then the Applicant shall provide the additional paving to widen the road along the Property frontage, provided that the Applicant can obtain satisfactory permission from the DPW.  The Applicant will perform such widening at an appropriate time during the overall construction process. This Condition shall not be construed as requiring the Applicant to provide paving, or repaving, of the full width of the road along the frontage of the Property.

6.    The bollards proposed for the front of the house are designed and intended to act as a functional traffic safety measure to protect the home from being struck by any wayward vehicle.  Accordingly, the bollards are to remain in place.  The bollards shall remain as separate and free-standing posts without connection by chains, cables, fencing or other enclosure so that pedestrians will be able to step off the paved roadway and behind the safety of the bollards in the event of oncoming traffic. However, in the area in front of the drainage berms, a chain, gate, enclosure or similar barrier may be placed to connect the bollards so as to block or prevent pedestrian traffic. 

7.    All commercial uses of the Property shall cease.

8.    No work will be allowed on any portion of the Property except for those portion only of the lot needed for the repair, rebuilding, modification or enlargement of the proposed residential structure.

9.    All work shall be performed consistent with the laws of the Commonwealth of Massachusetts, Hingham’s Wetlands Protection By-Law, and any applicable Order of Conditions of the Conservation Commission.

This decision shall not take effect until (i) 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, and that (ii) a copy thereof has been duly 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 M. Fisher
                        June 20, 2012