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TOWN OF HINGHAMBoard of AppealsNOTICE OF DECISIONVARIANCEIN THE MATTER OF:Applicant: John and Gloria MacGillivray Agent: Weathervane Companies 5 Callahan Place 14 Sandtrap Circle Hingham, MA 02043 So. Weymouth, MA 02190Property: 5 Callahan Place, Hingham, MA 02043 Deed Reference: Plymouth County Registry of Deeds, Book 44033, Page 213 Plan Reference: Site plan entitled, "Existing Foundation, Lot 7 (# 5) Callahan Place, Hingham, Ma.,” prepared by CCR Associates, 40 Mears Ave., Quincy, MA, dated April 27, 2012 and revised to show proposed pergola location, and specifications for “Free Standing Pergola” from Suncast®SUMMARY OF PROCEEDINGSThis matter came before the Board of Appeals (the “Board”) on the application of John and Gloria MacGillivray (collectively, the “Applicant”) for a Variance from § IV-D, 9 of the Hingham Zoning By-Law (the “By-Law”) and such other relief as necessary to construct a 14’ x 14’ pergola over an existing patio located partially within the required 15’ rear yard setback at 5 Callahan Place in Residence District A.The Board opened a duly advertised and noticed public hearing on the application on February 15, 2017 at Hingham Town Hall, 210 Central Street. The Board panel initially consisted of regular member Robyn Maguire, Acting Chair, and associate members Jim Blakey and Michael Mercurio. Subsequent sessions were held at the Applicant’s request on March 15, 2017 and May 17, 2017. Regular member Joe Fisher participated in place of associate member Michael Mercurio in these subsequent proceedings pursuant to MGL c. 39, s. 23D. The Applicant and representatives of Weathervane Companies appeared to present the application to the Board. At the conclusion of the hearing, the Board voted unanimously to grant the requested relief subject to conditions contained herein. Several abutters to the Property submitted letters of support for the record. 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 DISCUSSIONThe subject property consists of 11,432 SF of land located on the north side of Callahan Place. The lot was created through a Flexible Residential Development (“FRD”) special permit issued by the Planning Board in October 2005 under Section IV-D of the By-Law. It is part of a 23-unit development known as Weathervane at Chestnut Gardens. Through the FRD special permit, the Planning Board waived certain dimensional requirements, including minimum lot area, since the project otherwise fulfills the purposes of the By-Law. These purposes include the preservation of open space and creation of more diverse housing stock. Approximately half (46%) of the land area within the development is dedicated to open space and 2 deed restricted affordable homes will be offered in the development. While there is some dimensional flexibility allowed through the FRD special permit, the minimum rear yard setback requirements for FRDs mirror that required in Residence District A: 15-feet. As described in the initial application, the proposed project would locate a pergola over an existing patio approximately 10’ from the rear yard setback. A significant open space buffer is located between the subject property and the closest abutters to the rear on Rhodes Circle. During the initial hearing, the Board compared the submitted plan to orthoimagery for the property available on the Town’s website and found that the patio was not located in the area depicted on the plan, nor was it configured in the manner represented. As a result, members indicated that they would also require an updated plan showing the particular circumstances affecting the property and an accurate representation of existing and proposed conditions. The Applicant’s Agent provided the Board with the requested plan during the continued hearing in March. The revised plan locates the proposed pergola on the rear property line, resulting in a 0’ setback. The submittal also included photographs of the rear façade of the dwelling. After discussion, the Agent requested another continuance in order to consult with the Applicant on potential alternatives to the proposed location. During the May hearing, the Applicant explained in more detail how the location of the proposed pergola is limited by both topographical conditions and the particular arrangement of the existing dwelling. The accessory structure cannot be located to the sides of the Property due to the presence sloping grades associated with drainage swales that serve the development. He noted in addition that the 8.9’ H structure could not be moved significantly closer to the house without obstructing a palladian window on its rear façade; however, he indicated that a modest 1’ shift away from the rear property line would be possible. The Applicant’s Agent noted that the existing patio encroaches slightly onto the adjoining open space buffer. The Applicant said that this encroachment could be eliminated in conjunction with the proposed pergola installation.FINDINGSBased upon the information submitted and received, and the deliberations and discussions of Board members during the hearing, the Board has determined that:1. Circumstances related to soil, shape, or topography especially affect the land or structures in question: The lot is affected by variable grades that slope away from the dwelling toward drainage swales located to the sides of the Property. The rear façade of the existing dwelling also includes a large palladian window that overlooks an open space buffer to the rear of the Property. These circumstances in combination do not generally affect the neighborhood.2. The literal enforcement of the By-Laws would involve substantial hardship financial or otherwise. The topography of the lot, in addition to the configuration and design of the existing dwelling, present significant difficulties and hardship with locating an accessory structure elsewhere on the Property. 3. A Variance may be granted without substantial detriment to the public good. The proposed project, which is located in an area already improved by a patio, will not generate additional noise, traffic, or result in other similar negative impacts. Abutters to the Property as well as the Home Owners Association submitted letters in support of the request. There will be no adverse effects and there will be no harm to the public good resulting from the proposed accessory structure. 4. A Variance may be granted without nullifying or substantially derogating from the intent or purposes of the By-Law. Relief will permit installation of a pergola, which is an allowed accessory structure in residential districts. The pergola will appear to conform to the required setback since the Property is bound to the rear by a significant open space buffer area. The granting of a dimensional variance in this instance is consistent with the purposes of the By-Law.DECISION Upon a motion made by Joseph M. Fisher and seconded by Jim Blakey, the Board voted unanimously to grant the requested Variance from § IV-D, 9 of the By-Law to construct a 14’ x 14’ pergola over an existing patio located partially within the required 15’ rear yard setback at 5 Callahan Place in Residence District A, subject to the following conditions:1. The Applicant shall construct the Project in a manner consistent with the approved plans and the representations made at the hearings before the Board such that the pergola shall be installed no closer than 1’ from the rear property line. 2. The existing patio shall be modified to eliminate an encroachment onto the adjoining open space buffer to the rear of the Property. 3. If the open space buffer to the rear of the property becomes a more active use in the future, the applicant shall remove or relocate the pergola from within the rear yard setback. 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 June 5, 2017