PRESENT: Peter Morin, Brian Sullivan, Sara Trezise, Edward Tibbetts and John Hallin.

OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer

First Application: Phyllis and Charles Flynn of 6 Polk Road, Hingham requests M.G.L. c40A, sec. 6 special permit/finding to construct an addition 9-feet from sideline, 15-feet is required at 11 Tara Road.

Applicant requested to withdraw without prejudice.

Tibbetts moved to allow the applicant to withdraw without prejudice, seconded by Hallin, all in favor, unanimous.

Second Application: Gerard T. and Laura M. Sheehan of 28 Beal Place requests
special permit/finding or variance in accordance with M.G.L. c40A section 6 or 10 to
construct a garage within 5’ of rear lot line and 5’ of side lot line at 28 Beal Place.

Gerard Sheehan was present.

Neil Duggan- had him check off variance because he felt a variance was required. The bylaw includes accessory uses and structures.

Gerard Sheehan- they will use the second floor for storage and his wife’s sewing room.

Peter Morin- the applicant had submitted an incomplete application; it was missing the zoning district.

Edward Tibbetts- had concerns with the future uses of the structure. He suggested extending the driveway.

Edward Tibbetts- hadn’t heard compelling evidence for the Board to allow this. He suggested redesigning it and attaching it to the back of the house.

Neil Duggan- a one-story garage can be 8-feet from the side and 8-feet from the rear.

Peter Morin- is not going to vote for a two-story garage 5-feet from the lot line.

Sara Trezise- would not vote for a variance.

Peter Morin suggested he withdraw the application or continue it until next month so he can redesign it.

Gerard Sheehan- he would like to continue the hearing.

Tibbetts moved to allow the applicant to continue to October 15, 2009 meeting, seconded by Trezise, all in favor, unanimous.

Second Application: Continued from August 20, 2009: Dennis Leary of 83 Old Cow Pasture Lane, Kinnelon, New Jersey is appealing the Building Commissioner/Zoning Enforcement Officer’s denial of his June 22, 2009 request for enforcement at 6 Lighthouse Road, in accordance with the zoning bylaw, section 1020.1 and M.G.L. Chapter 40A Section 8.

Attorney Maureen Hurley represented the applicant.

Maureen Hurley- pointed out the discrepancy between lot lines shown by Hannigan surveyor and Leary surveyor. Both plans show Hannigan sonotube on Leary property. Eaves project further into the required 8’ side setback than the 18” allowed by the zoning bylaw. Two air conditioning units attached to building project beyond the three foot setback allowed by ZBA decision.

Neil Duggan- property line discrepancy is a matter for the Land Court. Hannigan plan was approved by ZBA and the building conforms to ZBA decision. The required setback is 3’ in accordance with ZBA decision. Eave projection shows on plan approved by ZBA.

Brian Sullivan-concurred that ZBA does not rule on property line disputes.

Peter Morin- questioned if the sonotubes were outside the exterior wall of the structure.

Neil Duggan- the sonotubes are not part of the foundation. They are beyond the approved foundation and are not part of the structure. The two sonotubes in question are flush to the ground. They were placed there by the owner to support a step out of the garage. The step has since been removed.

Dan Hannigan of 6 Lighthouse Road- the sonotube is to support a small step from the garage. He has since taken the steps out of his design completely.

Neil Duggan- under the bylaw you can build an open deck or steps up to the lot line.

Brian Sullivan- if the sonotubes are not part of the structure, the encroachment on Leary’s property is a civil matter between Hannigan and Leary.

Maureen Hurley- discussed the two air conditioning units attached to the house.

Neil Duggan- the air conditioning units were not a subject of the request for enforcement so the question is not properly in front of the Board.

Maureen Hurley- discussed the projection of the eaves into the required setback. Argued that the required setback is 8’ from the side. The eaves, which are allowed to project 18” into the required setback, project several feet beyond what is allowed under the bylaw. Just because the dwelling is non-conforming does not change the required setback as it relates to eave projection.

Peter Morin- under her interpretation they would need to specifically provide that the setback applies to the eave and not the foundation.

Brian Sullivan- part of the reason this was granted was because the original dwelling was on the neighbor’s property. The reality is what is here now is much better than what was there originally.

Edward Tibbetts- the finding was to raze and reconstruct two non-conforming dwellings. He agreed with Neil that the Board approved the plan with the eaves and that decision could have been appealed but it wasn’t.

Maureen Hurley- brought up the air conditioning units for discussion.

Dan Hannigan- he did a lot of research on the air conditioners. This type was chosen because they were quieter than the window units. He didn’t mean to offend anyone.

Brian Sullivan- they were not a subject of the request for enforcement.

Dan Hannigan- their intent was not to offend the neighborhood. They will only be used a few times in the summer. They do not live there year round.

Sullivan moved to uphold the Building Commissioners decision to deny the request, seconded by Trezise, all in favor, unanimous.

Fourth Application: Jack Mitchell of 557 Nantasket Avenue, Hull, MA 02045 requests M.G.L c. 40A section 6 special permit/finding to raze and reconstruct pre-existing non-conforming single-family dwelling at 596 Hatherly Road.

Jack Mitchell was present.

Pete Morin- asked if the only non-conformities are the porch and addition on the back. Did the porch have a roof

Jack Mitchell- the porch would have a roof.

Brian Sullivan- asked what the average setback was on Hatherly Road. He suggested Mr. Mitchell find out the average setback.

Jack Mitchell- he looked the average setback with Neil and found that he was one of the closer homes.

Neil Duggan- he already has a non-conforming setback. Neil recommended that the Board decide if it is an intensification.

Sara Trezise- they are intensifying it.

Edward Tibbetts- they are not creating a new non-conformity.

Sara Trezise- didn’t agree.

Jack Mitchell- it’s 3x10. He has not shared the plans with the neighbor, but he said the neighbors keep asking him when he is going to start construction.

Peter Morin- asked about the walk.

Jack Mitchell- the walk was existing. He plans on moving the location of the front door. The intent was to renovate the house, which is the worst built home he has ever seen.

Edward Tibbetts- scaled the roof at 17 ½ feet.

Neil Duggan- read from the case law in Bobrowski Land Use Manager.

Brian Sullivan- felt the Board needed to review any intensification.

Edward Tibbetts- the roof is not dimensioned on the plan.

John Hallin- clarified that if he closes in the front stoop he would need to come back in front of the Board for relief.

Sullivan moved grant the relief requested finding and special permit and that the proposed was an increase of the non-conformity on the Hatherly Road setback but not an intensification, seconded by Morin, all in favor, unanimous.

Fifth Application: Maurolago, LLC c/o Bernard F. Shadrawy, Jr. of 15 Broad Street, Boston, MA 02109 seeks a determination/finding that the proposed retail/office and restaurant use of the premises at 146-164 Front Street are permitted by right at the subject property or in the alternative a special permit/finding under M.G.L. c. 40a sec. 6 and sections 820/1020.2 (D) of the Scituate Zoning Bylaws as a change in a nonconforming use. In addition, the applicant seeks a determination/finding that the parking requirements of section 760 of said Bylaws are not applicable to the proposed uses/project pursuant to section 760.2 of said Bylaws since it does not involve an intensification of the parking use, or in the alternative if they are applicable, then the applicant seeks a determination/finding that the proposed uses/project requires a Site Plan Special Permit from the Planning Board pursuant to section 770 of said Bylaws, or such other relief as the Planning Board deems appropriate.

Attorney Bernard F. Shadrawy from Shadrawy & Rabinovitz represented the applicant.

Stephen Wienig was also present.

Attorney Shadrawy submitted two exhibits to the Board (see file). The concept was that there were two condos. The restaurant and mariner is one unit and unit two consists of retail and office space. They are not changing any uses in building one. A new 60-seat restaurant will replace the old Asian restaurant. The other condo will remain retail on the first floor, the second floor will have office space and the cable building will also be office space. The 2006 decision by the Board stated these buildings were non-conforming therefore the uses were non-conforming. He can work with this; in fact they were decreasing one use by eliminating an apartment that had existed on the second floor. They were adding four hundred square feet of accessory uses in the restaurant and they were decreasing the uses. Mr. Shawrawy did not agree that because it was a non-conforming building it caused the uses to be non-conforming.

Peter Morin- asked about the case law precedent on an allowed use within a non-conforming structure.

B. Shadrawy- the law was very specific in addressing this. In Scituate the code does not address it. He stated that applicant would prefer a finding.

Peter Morin- philosophically he agreed with him, but felt the Board should follow what the 2006 decision stated and have the Special Bylaw Review Committee review this section. .

Bernard Shadrawy- felt The Board could make a finding under their authority.

Peter Morin- because it effects compliance with the parking bylaw. Did he have any objection to something binding the restaurant.

Bernard Shadrawy- he did not. The apartment was a three bedroom.

Bernard Shadrawy- addressed the parking issue. A determination/finding as to whether a use permitted as of right in a nonconforming structure was a nonconforming use. If they find there was, then the Board would then need to next determine whether the proposed uses involve a change in a nonconforming use.

Mr. Shawdrawy- felt they met the criteria of all the arguments on his submission to the Board (see file).

Peter Morin- asked about Stephen Warren’s change of mind.

Bernard Shawdrawy- those concerns have gone away.

Brian Sullivan- there were concerns with the liquor license.

Robin King the owner of Oro Restaurant that is being proposed. Mr. King spoke in favor of the application.

Bernard Shawdrawy- thanked Mr. Duggan for his efforts.

Edward Tibbetts was in support of the request.

Sara Trezise- didn’t see non-conforming uses. She liked both of the B options from Mr. Shadrawy’s submission.

John Hallin- was in support of request.

Brian Sullivan- would issue both a finding or special permit.

John Danehey- was the chair at the time of the 2006 decision. The applicant’s attorney originally authored the decision and unfortunately he did not catch this line at the time he reviewed it the decision. He felt it may have been a scrivener’s error.

Trezise moved that the Board find that the use of the property is permitted by right and is not a non-conforming use under section 4 of the bylaw and 760.2 is not applicable in the uses of January 88 in are not increasing the demand for the parking needs, seconded by Sullivan, all in favor, unanimous.

Peter Morin wanted to make sure the decision stated that the restaurant did not exceed the 65 seats.

Meeting adjourned at 8:45 P.M .

Respectfully Submitted,

Nicole Harris