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TOWN OF HINGHAM
Board of Appeals
ADMINISTRATIVE APPEAL PURSUANT TO M.G.L. c. 40A, §§ 7 & 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 Administrative Appeal
of the Building Commissioner’s determination, dated August 5, 2014,
that the rooftop mechanical equipment along with the railing and
guardrail system at 191 Downer Avenue in Residence District A qualify
for the maximum height exemption under § IV-C, 8 of the Zoning By-Law
An initial public hearing was duly noticed and held on October 15,
2014, at the Town Hall, 210 Central Street. The Board panel consisted
of W. Tod McGrath, Chairman, Joseph M. Fisher, Vice-Chairman, and
associate member Mario Romania, Jr. The Board held subsequent public
hearings on November 19, 2014 and November 24, 2014.
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. Michael Clancy,
Building Commissioner, testified during the public hearings as well.
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 August 18,
2014, which challenged the Building Commissioner's August 5, 2014
determination that the rooftop mechanical equipment and associated
guardrail system at 191 Downer Avenue qualify for the maximum height
exemption under § IV-C, 8 of the By-Law.
The Building Commissioner had previously issued a building permit
for the reconstruction of a pre-existing nonconforming single-family
dwelling, including the contested work, on March 14, 2014. The Town
submitted notice of the building permit to the local newspaper in
accordance with Article 27 of the Hingham General Bylaws. As requested,
the Hingham Journal published public notice on March 27, 2014, of the
issuance of the building permit. No appeals were filed of the permit
issued on March 14, 2014. After construction commenced, the Applicants
filed a request for zoning enforcement. The Building Commissioner's
response is the subject of this Appeal.
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).
Request for Enforcement: Section 7 of the Zoning Act authorizes the
Building Commissioner to enforce the local zoning bylaw in response to
a written request for enforcement. If he declines to act, he must
notify the requesting party in writing within fourteen days of receipt
of the request for enforcement. As provided in § 8 of the Zoning Act,
a person aggrieved by his or her inability to obtain enforcement
action from the Building Commissioner may appeal to the Board. Again,
as provided in § 15 of the Zoning Act, such an appeal must be taken
within thirty days from the date of the order or decision, which is the
date of the Building Commissioner’s written response to the request
The owners of the Premises assert that the Applicants’ request for
enforcement should not be allowed because the Applicants failed to
appeal to the Board within thirty days of issuance of the building
permit on March 14, 2014.
The Board discussed in detail the procedural requirements for an
Administrative Appeal and an Appeal of a Building Permit. Members
reviewed relevant case law, including the decision of the Massachusetts
Supreme Judicial Court in Connors v. Annino, 460 Mass. 790, 791 (2011)
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; in such circumstances, a later appeal
to the board from a denial of a request for enforcement made pursuant
to G. L. c. 40A, § 7, is not an available alternative remedy.
Thus, an aggrieved party with “adequate notice” of the issuance of a
building permit who asserts that the permit violates the Zoning By-Law
must appeal to the Board within thirty days of the issuance of the
permit under §§ 8 and 15, and may not bypass that procedure by
foregoing an immediate appeal and then filing a § 7 enforcement
proceeding at a later date. 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 commencing at
very early stages of the project, thereby suggesting that the
Applicants had received at least constructive notice of the building
permit. More importantly, public notice of the building permit was
published on March 27, 2014, which occurred well within the 30-day
period allowed for appeals. As the Court observed in Connors v.
Annino, supra, 460 Mass. at 798 n.10:
We add that municipal permit granting authorities may
potentially avoid disputes over notice by adopting a bylaw or ordinance
providing for public notice of building permit applications and perhaps
even the issuance of permits.
Public notice published pursuant to Article 27 of the Hingham
General Bylaws meets the standard for “adequate notice” of the issuance
of a building permit as suggested by the Court.
The Board also observed that, subsequent to the filing of the
present appeal with the Board, an amended permit was issued for the
Premises on September 9, 2014 (the “Amended Permit”). Although an
appeal of the Amended Permit was currently before the Board in a
subsequent filing by the Applicants, the Amended Permit was potentially
relevant to the current proceedings to the extent that it had been
issued to address concerns raised by the Building Commissioner under
the original permit. After reviewing the Amended Permit and considering
the concerns of the Applicants and other members of the public, the
Board confirmed with the Building Commissioner that the limited work
covered by the Amended Permit did not violate the By-Law.
FINDINGS and DECISION:
Based upon the information submitted and received at the hearings,
and other information available to the Board, the Board has determined
For the reasons set forth above, the Board voted unanimously to DENY
the application for an Administrative Appeal of the of the Building
Commissioner’s determination, dated August 5, 2014.
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,