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TOWN OF HINGHAM

Board of Appeals

ADMINISTRATIVE APPEAL

DECISION

IN THE MATTER OF:

Applicant/Agent:             Peter and Kathleen Swanson et al

                                          87 Kimball Beach Road

                                          Hingham, MA 02043

Owner:                              Oak 93 Kimball Beach LLC

                                           C/O PJ Antonik

                                           1035 Main Street

                                           Hingham, MA 02043

Property:                           93 Kimball Beach Road, Hingham, MA  02043

Title Reference:               Plymouth County Registry of Deeds, Book 53099, Page 338

SUMMARY OF PROCEEDINGS:

This matter came before the Board of Appeals (the "Board") on the application of Peter and Kathleen Swanson, Lucy Sagansky, Scott Armstrong, and Amelia Newcomb (collectively, the "Applicant") for an Administrative Appeal of a building permit, issued January 22, 2021, for a new single-family dwelling at 93 Kimball Beach Road in Residence District A citing conflict between the proposed house and § I-A, 2. of the Zoning By-Law (the “By-Law”). 

The Board opened a hearing on the application at a duly advertised and noticed public hearing on March 16, 2021 via Zoom as an alternate means of public access pursuant to an Order issued by the Governor of Massachusetts, dated March 12, 2020, Suspending Certain Provisions of the Open Meeting Law. The Board panel consisted of regular members Robyn S. Maguire, Chair, and Paul K. Healey, and associate member Joseph Ruccio. The Applicant and Owner was in attendance during the hearing. The Board was assisted in its review by Special Real Estate Counsel, Susan C. Murphy, Esq., Dain, Torpy, Le Ray, Wiest & Garner, P.C. The Building Commissioner, Michael Clancy, also attended the hearing. At the conclusion of the proceedings, the Board voted unanimously to uphold the issuance of the building permit, dated January 22, 2021.  

During the hearing, the Board heard substantial testimony both in support and in opposition to the application. 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:

The permit issued allows for reconstruction of a nonconforming single family-dwelling pursuant to exemptions under Section III-I, 2, the so-called Hatfield Amendment. The proposed plan maintains or improves all of the nonconforming dimensions associated with the original dwelling. No new nonconformities would be created. 

The Applicants argued that the permit should be revoked because the construction does not fulfill some of the general purposes in the By-Law (Section I-A). The Board discussed with the Applicant that the Building Commissioner reviews plans for compliance with the specific standards of the By-Law, as opposed to the general purposes. It is presumed that the specific standards embody the general purposes. The Board also acknowledged that there has been significant redevelopment activity in the neighborhood; however, that activity complies with the current regulations under the By-Law.

The Board cited to similarities between the present application and the 2019 Massachusetts Land Court Case of Gresek v. Gambale in which the Court found that specific provisions of a By-Law are not overridden by a generally expressed intent or overall purposes. There was additionally no evidence offered by the Applicant to support claims that the development was inconsistent with the general purposes of the By-Law. Conversely, the Owner presented evidence to the Board to demonstrate that the plan complies with specific standards and is generally in keeping with the scale of the surrounding neighborhood.

FINDINGS and DECISION:

Upon a motion made by Paul K. Healey and seconded by Joseph Ruccio, and based upon the information submitted and received at the hearing, and the deliberations and discussions of members during the hearing, the Board voted unanimously to:

            Uphold issuance of a building permit on January 22, 2021 allowing construction of a new single-family dwelling at 93 Kimball Beach Road in Residence District A and deny the                        Administrative Appeal application. 

For the Board of Appeals,

                ________________________________

                Robyn S. Maguire, Chair

                May 26, 2021