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Board of Appeals
TOWN OF HINGHAM
Board of Appeals
APPEAL PURSUANT TO M.G.L. c. 40A, § 8
IN THE MATTER OF:
Applicants: Linda Port Eleanor L. Pariseault
18 Marion Street 16 Marion Street
Hingham, MA 02043 Hingham, MA 02043
Premises: 191 Downer Avenue
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds, Book 43746, Page 330
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals (the "Board") on the
application Linda Port and Eleanor Pariseault (the "Applicants"), 18
Marion St. and 16 Marion St. respectively, for an Appeal of building
permits, issued September 9, 2014, for construction at 191 Downer Avenue
in Residence District A.
An initial public hearing was duly noticed to open on November 12,
2014, at the Town Hall, 210 Central Street. Since a quorum of the
Board was not in attendance on November 12, 2014, the hearing was
postponed to November 19, 2014. The Board panel consisted of W. Tod
McGrath, Chairman, Joseph M. Fisher, Vice-Chairman, and associate
member Mario Romania, Jr. The hearing was conducted concurrently with a
hearing on an application by the same Applicants for an Administrative
Appeal of the Building Commissioner’s determination, dated August 5,
2014, concerning the same Premises.
The Applicants were in attendance during the hearings. The owners of
the Premises, Michael and Kerry Connolly, also attended the hearing.
The owners were represented by their contractor, Steve Levin of
Highview Custom Builders, and Attorney Paul J. Moriarty.
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.
The Applicants filed an application with the Board on October 17,
2014, which challenged the Building Commissioner's issuance of two
permits: (1) an amended building permit to construct a dormer (the
“Amended Permit”) and (2) a new building permit to finish interior attic
space at 191 Downer Avenue (the “New Permit”). The Town submitted
notice of the New Permit issued September 9, 2014, to the local
newspaper in accordance with Article 27 of the Hingham General Bylaws.
As requested, the Hingham Journal published the issuance of a building
permit for "dwelling alterations" at 191 Downer Avenue on September
The Building Commissioner had previously issued a building permit
for the reconstruction of a pre-existing nonconforming single-family
dwelling on the Premises on March 14, 2014. There had been no appeal
of the original permit. After construction commenced, the Applicants
filed a request for zoning enforcement, alleging among other possible
infractions that portions of the approved construction violated the
maximum height limitations in the By-Law. The Building Commissioner
reviewed the enforcement request and issued a determination on August
5, 2014. He found that the contested work, including rooftop mechanical
equipment and associated guardrail system, was a permissible exemption
from the maximum height limitations under § IV-C, 8 of the By-Law. The
Applicants filed a separate Administrative Appeal pursuant to M.G.L.
c. 40A, § 7 (the "first" application) with the Board on August 18,
2014, which challenged this determination. During the initial hearing
on the first Appeal on October 15, 2014, the Applicants indicated that
they had no knowledge of the September building permits. Two days
later, the Applicants filed a "second" Appeal, which is the subject of
Appeal of Permit: Section 8 of the Zoning Act allows any person
aggrieved by “an order or decision” of the Building Commissioner to
appeal to the Board. Such an appeal must be filed within thirty days
from the date of the order or decision being challenged, as provided in §
15 of the Zoning Act. The issuance of a building permit is an “order
or decision” which, under §§ 8 and 15, must be appealed to the Board
within thirty days after the permit has issued. Connors v. Annino, 460
Mass. 790, 794 (2011).
The owners of the Premises assert that the Applicants’ appeal of
the Amended Permit and of the New Permit should not be allowed because
the Applicants failed to appeal to the Board within thirty days of
issuance of the building permit on September 9, 2014.
The Board discussed in detail the procedural requirements for an Appeal of a Building Permit. See Connors v. Annino, supra, at 791, in which the Court held that:
...where the aggrieved party has adequate notice of a building
permit's issuance, he or she is required to appeal to the appropriate
zoning board of appeals within thirty days of the permit's issue date
under G. L. c. 40A, §§ 8 and 15; . . .
See also, Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008).
The Board considered whether the Applicants had received timely and
adequate notice of the issuance of the building permit. Throughout the
hearing the Applicants had submitted numerous pictures and testimony
concerning construction activity at the subject premises occurring both
before and after the date of issuance of the building permits -
September 9, 2014, thereby showing that the Applicants had received at
least constructive notice of the building permits. Further, public
notice of the New Permit was published on September 18, 2014, which
occurred well within the 30-day period allowed for appeals.
FINDINGS and DECISION:
Based upon the information submitted and received at the hearings,
and other information available to the Board, the Board has determined
- The Applicants failed to file a timely appeal of the building
permits within the requisite thirty days of the building permit’s
- The Applicants had adequate notice of the issuance of the
building permits issued on September 9, 2014, including the New permit
that was published in the Hingham Journal on September 18, 2014.
- Even if the Applicants could establish that they had not received
adequate notice of the building permits, their appeal of the permits
under Section 8 of the Zoning Act was untimely. Instead, the
Applicants would need to consider their rights to request enforcement
under Section 7 of the Zoning Act.
- There is no Section 7 matter presently before the Board with
respect to the New Permit, so the Board is not considering the matter
further. To the extent that the Amended Permit is deemed to be before
the Board with respect to the first application under Sections 7 and 8,
the issue is properly addressed in the Board’s decision on the first
application and is not addressed further in this decision.
For the reasons set forth above, the Board voted unanimously to DENY
the application for an Appeal of building permits, issued September 9,
2014, for construction at 191 Downer Avenue in Residence District A.
This Decision shall not become effective until (i) the Town Clerk as
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 if such an appeal has been
filed, that it has been dismissed or denied, 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 Town of Hingham
Board of Appeals,
Joseph M. Fisher
Dated: December 15, 2014