TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant: Michael C. Garrity
7 Howard Road
Hingham, MA 02043
Premises: 7 Howard Road
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds: Book 34963, Page 92
SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals on the application of Michael C. Garrity (the “Applicant”) for a Special Permit A1 under §III-C, 4 of the Zoning By-Law and such other relief as necessary to construct a 20' x 10' elevated deck landing, 150' x 4' pile supported pier deck, 35' x 3' ramp, 12' x 10' pile-held floating dock and 8' x 6' pier head in the Flood Plain and Watershed Protection District at 7 Howard Road (the “Property”), in Residence District A.
A public hearing was duly noticed and held on Thursday, September 15, 2010 and subsequently continued to October 4, 2010, October 18, 2010 (which was continued at the Applicant’s request), November 18, 2010 and December 13, 2010. The hearings were held at the Town Hall before a panel consisting of regular members Joseph W. Freeman Chairman, W. Tod McGrath and Joseph M. Fisher. The applicant was represented by Attorney Matthew Watsky and Charles J. Natale, Jr. of ESS Group, Inc.
BACKGROUND:
The Applicant is the owner of the waterfront Property located at 7 Howard Road, and desires to construct a pier as an appurtenance to the residential dwelling at the Property. The proposed structure is approximately 205’ in total length and is to be used for outdoor recreation purposes including boating. According to the Applicant’s Project Manager, Mr. Charles Natale, the pier must be of sufficient length to access navigable water for most of the tide cycle as shown on the plans prepared by both ESS Group, Inc. of Wellesley, MA and CLE Engineering, Inc. of Marion, MA. These plans were received by the Board on July 22, 2010 as part of the application for the Special Permit.
Section III-C, 4 of the Zoning By-Law applies to the proposed structure because the site is located within the Flood Plain and Watershed Protection District. Pursuant to Section III-C, 4, a Special Permit A1 is required for boat landings within this district.
The Applicant filed a Notice of Intent with the Town of Hingham Conservation Commission and was issued a Denial Order of Conditions on April 28, 2009 under both the M.G.L. Chapter 131 Section 40 Wetland Protection Act regulation and the Town of Hingham Wetland Protection Bylaw #22. The Applicant was issued a Superseding Order of Conditions on July 30, 2009 by the Commonwealth of Massachusetts Department of Environmental Protection. Said Superseding Order of Conditions was submitted as part of the application for the Special Permit.
DISCUSSION:
Hearings on this application took place over the course of a few months as there were many issued raised not only by the Board but numerous abutters and residents of the Town. Those issues included length of the structure, navigation of the waters in the area, ownership rights over tidelands, frontage on an un-built portion of Whiton Avenue and possible zoning setback relief required. A number of abutters also signed a petition in support of the application and also spoke at the public hearings.
One question raised during the hearings was whether the un-built portion of Whiton Avenue, where it extends down to Hingham Bay, constitutes a Street and provides Frontage, as those terms are defined in the Hingham Zoning By-Law. Section VI of the Hingham Zoning By-Law defines “Street” as “a public way or way having, in the opinion of the Planning Board, sufficient width, suitable grades and adequate construction to provide for the proposed use of the land abutting thereon or served thereby.” At issue is whether a front setback or side setback from the property line (the edge of the paper street) would be required. If the frontage is adequate to provide access, a front setback would be required. If the frontage is “illusory” or could never actually be provided, the area where the paper street is located would not be deemed to be a Street, and thus only a side setback would be required. The Applicant appeared before the Town of Hingham Planning Board on December 13, 2010 seeking a determination on this un-built portion of Whiton Avenue. After some discussion the Planning Board determined that the portion of Whiton Avenue in question was not a Street as defined under Hingham’s Zoning By-Law.
The Applicant also submitted a revised Dock Layout Plan dated December 7, 2010 prepared by the ESS Group, Inc. in which the dock has been relocated further to the west on the Property in order to meet the side setback requirements of 15’ on both the westerly and easterly portion of the Property.
Another issue discussed over the course of the hearings was the proposed length of the structure and navigation of the waters in the area. Many of the abutters raised concerns with the present use of the water in the area for recreational purposes, including both children and adults. The Board of Appeals also received a recommendation from the Hingham Harbor Development Committee (HHDC), which is an advisory committee to the Board of Selectmen for matters relating to Hingham Harbor. In a letter to the Board dated November 15, 2010 HHDC recommends that the proposed dock and pier conform to the extent possible with the newly promulgated requirements of the Town of Hingham Conservation Commission Wetlands Regulations Section 23.4 c) (1), which provides (in part): “When a dock, pier, or walkway is located at a private residence, The Commission may allow at its discretion, a pier (dock or walkway) no greater than 4 feet wide at any point; no greater than 150 feet long; . . .”
FINDINGS
After consideration of the Applicant’s proposal, together with the plans and documents submitted by the Applicant, the Board of Appeals finds that (a) use of the site is in harmony with the general purpose and intent of this By-Law; (b) the proposed use complies with the purposes and standards of the relevant specific sections of this By-Law; and (c) the specific site is an appropriate location for such use, structure, or condition, compatible with the characteristics of the surrounding area. More specifically, the proposed dock is appropriate for the recreational boating uses proposed by the Applicant. The Board further finds that if the length of the dock structure is reduced to 150’ from the mean high water mark, then (d) the use as developed and operated will create positive impacts and potential adverse impacts will be mitigated; and (e) there will be no nuisance or serious hazard to vehicles or pedestrians. Finally, the Board finds that (f) adequate and appropriate facilities exist or will be provided for the proper operation of the proposed use; and (g) the proposal meets accepted design standards and criteria for the functional design of facilities, structures, and site construction.
The Board makes its findings concerning the length of the dock based on considerations of individual and community impacts as described in the Zoning Bylaw and without reliance on the provisions of the Conservation Commission Wetlands Regulations.
RULING AND DECISION:
Based upon the findings of the Board as set forth above, the Board of Appeals voted unanimously to GRANT the Applicant a Special Permit A1 under Section III-C, 4 of the Zoning By-Law to construct an elevated deck landing, pile supported pier deck, ramp, pile-held floating dock and pier head in the Flood Plain and Watershed Protection District subject to the following conditions:
1. The design of the dock shall be as depicted in the plans submitted by the Applicant and representations made at the public hearing, with the exception that the total length of the structure is to be reduced to 150’ from the mean high water mark. New plans shall be submitted to the Building Commissioner for review and approval during the building permit process.
2. The anchor piles and the float shall each bear the identification of the owner or address of the property, such that if they break loose or float away the owner can be identified.
3. No davits shall be placed on the dock or float.
4. No lights shall be installed on the dock other than lights with amber lenses for safety walking on the dock.
5. No ornamentation (flags, lights, windsocks, etc.) shall be erected or placed on the dock.
6. No rafting of vessels shall be permitted.
7. The rail posts shall not exceed forty inches (42”) in height as depicted on the plans.
8. No vessels shall be tied or moored at the dock except directly to the float.
9. The dock shall be maintained in good condition.
The zoning relief granted herein shall not become effective until (i) the Town Clerk has certified on a copy of this Decision that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that such an appeal has been filed within such time, and that (ii) a copy thereof has been duly recorded in the Plymouth County Registry of Deeds and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner’s certificate of title.
For the Zoning Board of Appeals
Joseph M. Fisher
February 18, 2011