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Board of Appeals

TOWN OF HINGHAM
Board of Appeals

DECISION
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.

BACKGROUND:

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 18, 2014.

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 this Decision.

DISCUSSION:

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 that:

1. The Applicants failed to file a timely appeal of the building permits within the requisite thirty days of the building permit’s issuance.
2. 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.
3. 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. 
4. 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,