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TOWN OF HINGHAM
Board of Appeals

VARIANCE DECISION

IN THE MATTER OF:

Applicant/Owner:   Anchor Plaza Realty Trust
134 East Howard Street
Quincy, MA 02169

Premises:              207 Lincoln Street
Hingham, MA 02043

Title Reference:     Plymouth County Registry of Deeds Book 22660 Page 46 and
Certificate of Title No. 101847 issued by the Plymouth County Registry District of the Land Court

Plan References:   Plan entitled, "Site Plan Exhibit," prepared by Highpoint Engineering, Inc., 45 Dan Road, Canton, MA, dated November 2, 2015, revised through January 25, 2016, Sheet SP001

SUMMARY OF PROCEEDINGS:

This matter came before the Board of Appeals on the application of S. John Hajjar, Trustee of the Anchor Plaza Realty Trust (the “Applicant”), for a Variance from § IV-A of the Zoning By-Law (the "By-Law") and such other relief as necessary to construct three concrete pads to support mechanical equipment in the required rear and side yard setbacks at 207 Lincoln Street (the “Property”) in Business District B.

A public hearing was duly noticed and held on December 16, 2015. The Board of Appeals panel consisted of its regular members: Joseph M. Fisher, Chairman, Joseph W. Freeman, and W. Tod McGrath. The Applicant was represented by Frank Collura, Property Manager. At the conclusion of the hearing, the Board voted unanimously to grant the requested relief, with conditions as 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.

BACKGROUND and DISCUSSION:

The Property consists of approximately 8,572 SF located on the northerly side of Lincoln Street (Route 3A). The parcel is shaped like a trapezoid with 83' of frontage running parallel to a 50' rear property line. The site is improved by a vacant restaurant building, formerly occupied by Salsa's. A new restaurant, Comella's, plans to occupy the space. The Applicant represented that the new tenant requires additional heating and ventilation equipment to be housed outside the building envelope. The Applicant proposes to locate this equipment 16.7' from the rear property line and 13' from the side property line.

Section IV-A of the By-Law requires buildings and structures to be setback a minimum of 25' from side and rear property lines in Business District B. The definition of structure contained in § VI reads in part:

In residential districts, and for any lot that abuts a residential district, "structure" shall include, without limitation, mechanized or motorized equipment that is placed or installed at a fixed location on the ground, or at a fixed location, or at a fixed location on a pad, platform or foundation that is itself is on or in the ground, which equipment is used to ventilate, heat or cool a building or structure..."

Residence District A extends across the full width of the Lincoln Street layout such that the subject property abuts a residential district along its street frontage. All other abutters are located within Business District B. The proposed plan would locate HVAC equipment within side and rear setbacks, adjacent to business-zoned properties and not within the front yard, which is adjacent to the residentially-zoned Lincoln Street.

The Applicant represented that alternative locations are limited due to both lot shape and the existing improvements on the lot. Relocation of the proposed equipment to the building roof is not feasible due to required structure upgrades.

During the hearing, abutters expressed concern about the potential noise generated by the proposed equipment. The Applicant explained that a fence would be installed in conjunction with the project to minimize any potential auditory or visual impacts associated with the HVAC equipment.

Members noted that since only the front property line abuts a residential zone, the intent of the By-Laws is met by locating the necessary equipment for the allowed restaurant use in the side and rear yards. The Board then asked whether the pads could be moved further away from nearby residential properties and whether the fence could be extended. The Applicant confirmed that it was possible and provided the Board with hand written edits to the plan showing the stockade fence and relocated pads to be in line with the existing bulkhead.

FINDINGS:

Based upon the information submitted and received at the hearing, the Board then 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 affected by an unusual trapezoid-like shape. The lot width tapers from 83' at the front to 50' at the rear. The existing vacant restaurant structure occupies the westerly half of the lot. This shape and the existing improvements are circumstances that do not affect the neighborhood or zoning district more generally.

2. A literal enforcement of the By-Laws would involve substantial hardship financial or otherwise. The Applicant would incur hardship if the setback requirement is literally enforced. It is not feasible to locate the equipment, which is necessary to operate the permitted restaurant use, elsewhere on the lot.

3. A Variance may be granted without substantial detriment to the public good. The equipment is located as far from the abutting residential district as possible. Route 3A is a heavily traveled roadway. Noise generated by passing vehicles will minimize any potential noise from the proposed equipment. The units will be screened from view by installation of a new 6' stockade fence along the easterly side property line, which is shared with a preexisting nonconforming residential use.

4. Variance may be granted without nullifying or substantially derogating from the intent or purposes of the By-Law. The intent of the By-Law is to minimize adverse impacts associated with mechanical equipment in residential districts. The proposed equipment is itself located in a business district and as far as possible from the abutting residential, which overlaps with Route 3A.

DECISION:

Upon a motion made by W. Tod McGrath and seconded by Joseph W. Freeman, the Board voted unanimously to grant the requested Variance from § IV-A of the By-Law to construct three concrete pads to support mechanical equipment in the required rear and side yard setbacks at 207 Lincoln Street in Business District B in accordance with the hand edited approved plans and representations made during the hearing.

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,


___________________________
Joseph W. Freeman
February 25, 2016