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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Appellants: Joseph Phillips and Paula Dillon
3 Canterbury Street
Hingham, MA 02043
Subject Property: 132 Weir Street/3Canterbury Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds Book 37930, Page 16
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals on the appeal of Joseph Phillips and Paula S.
Dillon (the “Appellants”) of the Notice of Violation issued by the Building Department dated
May 31, 2012 under the Massachusetts State Building Code, and the Notice of Violation issued
by the Building Department dated June 12, 2012 under §IV-C 4 of the Zoning By-Law. Both
Notices alleged that the existing barn had been altered to create an unlawful second residential
dwelling on the property at 132 Weir Street (the “Property”), in Residence District C.
A public hearing was duly noticed and held on Thursday, August 30, 2012 with a continuance
hearing held on September 12, 2012 at the Town Hall before a panel consisting of regular
members Joseph M. Fisher, Chairman, and W. Tod McGrath and associate member Alan M.
Kearney. Attorney David Kellem represented the Appellants.
INITIAL FINDING CONCERNING JURISDICTION:
The Board observed that it had no jurisdiction to hear an appeal concerning violations of the
State Building Code. The Board and the Appellant agreed that this hearing would be limited to
the Notice of Violation dated June 12, 2012 under §IV-C 4 of the Zoning By-Law.
The Appellants are the owners of the Property that consists of two parcels of land totaling
approximately 30,000 square feet, with frontage on Weir, Canterbury and Rockland Streets.
Presently there are two residential dwellings on the Property – a cape style dwelling built
approximately 1810 and a barn building that was renovated into a separate dwelling unit and
two-car garage in 1991-1992. At the present time, the Appellants desire to place the Property for
On April 19, 1990, Building Permit No. 0459 was issued to “Complete Barn Altns, Dwelling
Altns. & Breezeway Altns. & Add New 2 Car Garage As Per Plans.” The Building
Department’s file on the Property includes four (4) unstamped plans all dated 4/10/90 all entitled
“132 Weir St. Hingham Barn Alterations and Garage/Storage Addition.” After having reviewed
the Building Department’s file the Deputy Building Commissioner made a site visit and found
two dwellings. He determined that what was constructed (and presently exists) on the Property
went well beyond what had been allowed under the April 19, 1990 building permit.
Accordingly, the Notice of Violation was issued.
During the course of the public hearings the Board and the Appellants’ legal counsel had lengthy
discussions regarding the applicability of various statutes of limitations. The second paragraph
of M.G.L. Chapter 40A, Section 7, contains two separate limitations periods applicable to zoning
First, there is a 6-year statute of limitations applicable to enforcement actions against a property
that “has been improved and used in accordance with the terms of the original building permit.”
Second, there is a 10-year statute of limitations applicable to actions “to compel the removal,
alteration, or relocation of any structure by reason of any alleged violation” of zoning.
“In contrast to the six-year limitations period applicable to zoning violations ostensibly
authorized by a building permit, which explicitly covers both structural violations and use
violations, the ten-year limitations period for zoning violations unsanctioned by a permit covers
only structural violations.” Lord v. Zoning Board of Appeals of Somerset, 30 Mass. App. Ct.
226, 227 (1991).
Appellants’ legal counsel asserted that the 6-year statute provides protection for unpermitted uses
of certain structures, i.e., a building that is constructed originally in accordance with a building
permit may continue to be used for the permitted purpose even though the use was actually not
lawful at the time. Appellants’ legal counsel explained that if the Building Permit issued on
April 19, 1990 for the barn building allowed for its construction as a dwelling, then the Town of
Hingham could not now order that its use as a separate dwelling be discontinued. Appellants’
legal counsel contended that the Building Permit issued on April 19, 1990 for the barn building
authorized remodeling of the existing barn to create a separate residential dwelling on the
Appellants’ legal counsel further asserted that under no circumstances could the Building
Department require that the barn be removed or altered.
The Board and the Appellants’ legal counsel discussed the options available in order for the
Property to be brought into compliance with the Zoning By-Law. The Board also discussed the
Appellants’ request that, if only one residential structure is permitted on the Property, that
Appellants’ retain flexibility in allowing a future buyer of the Property to elect which structure
would be deemed a residence.
RULING AND DECISION:
Based on the documents, representations and discussion at the hearing, the Board of Appeals
determined that the Building Permit issued on April 19, 1990 for the barn building did not
authorize its construction and use as a dwelling. Therefore, the protection afforded by the 6-year
statute of limitations of M.G.L. Chapter 40A, Section 7 does not apply to the Appellant.
However, the Board determined that the protection provided for under the 10-year statute of
limitations of M.G.L. Chapter 40A, Section 7 would apply in so far as the Town cannot require
that the barn be altered or removed. The Town may, however, prohibit the use of the barn
structure as a single-family dwelling. Further, if Appellants desire to request that the barn be
utilized as a residential structure, even on a limited basis, then the Town may require alteration
of the barn as a condition of such permission and use.
Therefore, the Board of Appeals voted to UPHOLD the Violation Notice issued by the Building
Department dated June 12, 2012 under §IV-C 4 of the Zoning By-Law, subject to the following
1. If Appellants desire to use or occupy the barn for residential purposes at any time after
the conclusion of these hearings, then on or before September 17, 2012, the Appellants
shall make application with the Building Department to bring the barn building into
building code compliance as a single-family dwelling (the “Application”). Failure to
make such Application by September 17, 2012, shall result in the Appellants having no
further right to use or occupy the barn as a residence.
2. If Appellants make such Application by September 17, 2012, then the Building
Department shall inspect the barn structure. After inspection by the Building Department
is completed the Appellants will proceed diligently and expeditiously to make all such
modifications to the barn building as may be required by the Building Department to
bring it into building code compliance as a single-family dwelling. The Appellants will
complete any required work within thirty (30) days of receiving direction from the
Building Department. The Building Commissioner may grant an extension of the thirtyday
time period based upon his determination that the Appellants have proceeded
diligently and in good faith to complete the required work.
3. The maintenance of both the cape building and the barn building as separate dwellings on
the Property is in violation of the Zoning By-Law for the Residence C zoning district. As
a condition of approving and moving forward with the Application, the Appellants shall
be required to convert the cape building on the Property from a dwelling to an accessory
use structure, as defined in Section III-A, 1.8.1-1.8.7 of the Hingham Zoning By-Law.
This would require that bathing facilities (shower and bathtub) be removed from the cape
building. However, this requirement to convert the cape building to an accessory
structure shall be suspended for a period of not more than nine (9) months from the date
hereof, as set forth in Paragraph 5 below.
4. Nothing contained in this decision, other than the last sentence of this Paragraph 4, shall
require the Appellants or their successors in title permanently to maintain the barn
building or the cape building as the primary residential dwelling. The Appellants and/or
their successors in title may, at their option and subject to applicable provisions of the
Zoning By-Law then prevailing at the time, elect to utilize either the barn building or the
cape building as the primary residential dwelling. Whichever building is selected to
function as the primary residential dwelling, the other building shall be used and
maintained as an accessory building only and not as a separate single-family residential
structure. When the election is made the building designated to be the accessory
structure shall expeditiously and diligently be modified to render it in compliance with
accessory structure uses as defined and allowed under the Hingham Zoning By-Law and
in compliance with the Building Code, and the building designated as residential shall
expeditiously and diligently be modified to render it in compliance with the Hingham
Zoning By-Law and the Building Code. Alternatively, the Appellants or their successors
in title may elect to unify the cape building and the barn building into a single structure in
accordance with provisions of the Zoning By-Law then prevailing at the time.
Notwithstanding the foregoing, if the Appellants or their successors refuse or fail to
modify or alter a structure as may be required by the Building Department for Zoning or
Building Code compliance, even if the requirement of such alteration would otherwise be
unenforceable on account of any statute of limitations, then no change in use shall be
5. The Appellants shall have a period of no more than nine (9) months from the date this
decision is filed with the Town Clerk to notify the Building Commissioner in writing of
their selection (the “Owner’s Selection”) as to which building will be utilized as the
primary residential dwelling and which building will be utilized as the accessory
building. As set forth above, upon such notification of the Owner’s Selection any
required modifications shall be undertaken in an expeditious and diligent manner.
However, if the Appellants have not yet made the Owner’s Selection and they close on
the sale of the Property at 132 Weir Street before expiration of the 9-month selection
period, then the new owner shall make the Owner’s Selection upon the closing of the sale
(the “Closing”). The new owner shall thereafter diligently and expeditiously proceed
with permitting and construction of any required modifications. Alternatively, in
accordance with Paragraph 4 above, the Appellants or their successors in title may elect
to unify the cape building and the barn building into a single structure in accordance with
provisions of the Zoning By-Law then prevailing at the time. If the Appellants make the
Application, as described in Paragraph 1 above, but the Owner’s Selection is not made
upon the Closing or within nine (9) months from the date of this decision, whichever
occurs first, then the barn building shall be utilized as the primary residential dwelling
and the cape building will become an accessory building, and all modifications and work
required by the Building Commissioner to accomplish said result shall be implemented
by the then owner of the Property.
6. Any statute of limitations applicable to the enforcement of zoning violations shall be
tolled during the nine-month (9) time period set forth for compliance pursuant to this
decision. To the extent that the cape building may enjoy “grandfathered” status as a
single-family dwelling under the Zoning By-Law, nothing contained in this Decision
shall be interpreted to waive or obviate such “grandfathered” status unless the cape
building is selected to serve as an accessory structure, in which event it may lose its
“grandfathered” protections as a single-family dwelling.
7. As a condition of the Application referenced above in Paragraph 1, the Appellants shall
acknowledge that they agree with the conditions and terms of this decision.
This decision shall not take effect until a copy of the decision, bearing the certification of the
Town Clerk that twenty (20) days have elapsed since the decision has been filed in the office of
the Town Clerk and no appeal has been filed, or that if such appeal has been filed, that it has
been dismissed or denied, is recorded with the Plymouth County Registry of Deeds and/or the
Plymouth County Land Court Registry, and indexed in the grantor index under the name of the
record owner or is recorded and noted on the owner’s certificate of title.
For the Board of Appeals,
Joseph M. Fisher
October 16, 2012