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Board of Appeals

IN THE MATTER OF:

Owner/Applicant:            Andrew Schlosberg and Hilleary Plummer
                                   2 Alice Walk
                                   Hingham, MA 02043
 
Premises:                      2 Alice Walk
                                   Hingham, MA 02043

Deed Reference:             Plymouth County Registry of Deeds Book 41244, Page 240

Plan Reference:              Plan entitled, "Proposed Conditions, 2 Alice Walk Plan of Land," prepared by James Engineering, Inc., 125 Great Rock Road, Hanover, MA, dated February 20, 2014, Sheet 2 of 2, and architectural plans entitled, "Schlosberg/Plummer Residence," prepared by Sally Weston Associates, 222 North Street, Hingham, MA, dated August 4, 2014, Drawings A1.2, A2.1-A2.2

This matter came before the Board of Appeals (the “Board”) on the application of Andrew Schlosberg and Hilleary Plummer (collectively, the "Applicant") for a Variance from § IV-A of the Zoning By-Law to replace 520 SF of permitted habitable space with a covered porch within side and rear yard setbacks at 2 Alice Walk in Residence District A.

A public hearing was duly noticed and held on January 14, 2015, at the Town Hall, 210 Central Street. The hearing was continued at the applicant's request to February 23, 2015. The Board panel consisted of its regular members W. Tod McGrath, Chairman, and Joseph M. Fisher and associate member Robyn Maguire.  The Applicant was represented by architect Sally Weston and Joseph E. Kelleher, Esq.  At the conclusion of the hearing, the Board voted unanimously to grant a Variance from the side and rear yard setback requirements under § IV-A of the By-Law.

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 Premises consists of approximately 6,875 SF, with 50' of frontage along Downer Avenue. The lot is also bounded on one side and the rear by two private ways: Melville Walk and Alice Walk. The property slopes down from Downer Avenue toward Alice Walk and Hingham Harbor beyond.  A portion of the property is located within FEMA Flood Zone VE (el. 15).

The subject property was improved by a single-family dwelling (ca. 1900) and detached garage. The Applicant proposes to replace this preexisting nonconforming residence with a new single-family dwelling, including an attached garage. These improvements were designed to minimize risk associated with potential flood events by raising the finished first floor elevation. The Conservation Commission issued an Order of Conditions in April 2014 approving the proposed project.

The Applicants' representatives then sought a building permit. In reviewing the submitted plans, the Building Commissioner determined that certain improvements would not be eligible for the zoning exemptions authorized in Section III-I, 2 of the Zoning By-Law, the so-called "Hatfield Amendment". Specifically, the Commissioner denied construction of a proposed covered porch to be located in an area previously occupied by a nonconforming porch and a portion of the residence. As unenclosed space, the proposed covered porch would not be included in the definition of Single-Family Dwelling and therefore would not benefit from the exemptions under the Hatfield Amendment.

The Applicant modified the plans by enclosing the proposed covered porch. After review, the Building Commissioner issued a permit authorizing the by-right construction on December 2, 2014. The Applicant now seeks relief from the Board to convert 520 SF within the permitted wraparound sunroom to an unenclosed covered porch as originally designed. The application indicates that the change will not create any newly nonconforming dimensions as it would be located partially within the footprint of the now demolished dwelling and partially within the footprint of a former covered porch. In fact, the noncompliant rear yard setback, as measured to the former covered porch, will be improved by the proposed construction. The Applicant also argues that unenclosed space would have less visual impact on the views from neighboring properties. Several abutters testified that the proposed porch would have less impact on their properties than the permitted habitable space.

FINDINGS and DECISION

Based upon the information submitted and received at the hearing, and other information available to the Board, 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 Premises slopes significantly downward towards Hingham Harbor and is partially located in FEMA Flood Zone VE (el. 15).  Additionally, the lot is exceptionally narrow and triangular in shape at the rear of the property abutting Alice Walk.  The Property was previously improved with a pre-existing non-conforming single-family dwelling, and its attached rear porch encroached upon the Alice Walk right-of-way. The combination of the topography, lot shape, and the location of the existing structures on the lot, are not generally found in the neighborhood or the zoning district. 
2. The literal enforcement of the Bylaws would involve substantial hardship financial or otherwise.  A grant of the requested relief will allow permitted habitable space to be converted to a covered porch. The porch will allow the Applicant to access outdoor space from the main living area of the house, which is elevated due to the topography and the location in FEMA Flood Zone VE.  A grant of a Variance in this instance will allow for a reasonable use that is entirely consistent with other single family uses in the Residence A Zoning District as well as the historic use of the Premises;
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.  In fact, the proposed project will create less impact on residents of the neighborhood by reducing the massing of the structure.  The proposed covered porch is consistent with other single family residences in the Residence A Zoning District.  There will be no adverse effects on the neighborhood and there will be no harm to the public good; and
4. A variance may be granted without nullifying or substantially derogating from the intent or purposes of the Bylaw. The design of the proposed porch is consistent with the character of the neighborhood and the proposed plan reduces the preexisting nonconforming rear yard setback.  The granting of a dimensional variance in this instance is consistent with the purposes of the By-Law.

Upon a motion made by Joseph M. Fisher and seconded by Robyn S. Maguire, the Board voted unanimously to grant a Variance from the side and rear yard setback requirement under § IV-A of the By-Law approving construction of a new covered porch on the Property, 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.

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,