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TOWN OF HINGHAM
Board of Appeals

NOTICE OF DECISION
ADMINISTRATIVE APPEAL


IN THE MATTER OF:

Applicant/Owner: James P. & Bernadette Ippolit Agent: Jeffrey A. Tocchio,Esq.
323 North Street   175 Derby Street, Suite 30
Hingham, MA 02043 Hingham, MA 02043

Property: 323 North Street, Hingham, MA 02043

Deed Reference: Plymouth County Registry of Deeds, Book 22701, Page 297

SUMMARY OF PROCEEDINGS

This matter came before the Board of Appeals (the “Board”) on the application of James P. and Bernadette Ippolito (collectively, the “Applicant”) for an Administrative Appeal of the Building Commissioner’s order, dated January 25, 2017, to cease and desist from using the property located at 323 North Street in Residence District A as a contractor’s yard.

The Board opened a duly noticed public hearing on the application on April 19, 2017, at the Town Hall, 210 Central Street. The Board panel consisted of its regular members Joseph W. Freeman, Chairman, and Joseph M. Fisher, and associate member Mario Romania, Jr. The Building Commissioner, Michael Clancy, and Fire Marshal, Chris DiNapoli, assisted the Board in its review during the hearing. At the conclusion of the hearing, the Board voted unanimously to uphold the Building Commissioner's order to cease and desist from using the Property as a contractor’s yard.

The Applicant was in attendance during the hearing and represented by Attorney Jeffrey A. Tocchio, Drohan Tocchio & Morgan, P.C. Substantial public comment was submitted for the record by abutters to the Property. 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 AND DISCUSSION

The subject property consists of 3.58 acres of land located on the north side of North Street. It is improved by a single-family dwelling, which also serves as a home based daycare, and detached barn.
Upon receipt of numerous complaints about business operations on the Property, the Building Commissioner conducted an investigation. Photographs taken during visits to the Property captured piles of brush, stone and masonry equipment, pipes, and other construction debris. On January 25, 2017, the Building Commissioner issued a violation notice, demanding that the owner cease use of the property as a (landscape) contractor’s yard and remove all trucks and construction material within 14 days.

Attorney Tocchio, acting on behalf of the owners, then filed a timely appeal of the notice on February 23, 2017. The appeal claimed that the business operation is an exempt use under MGL c. 40A, s. 3, or the “agricultural exemption.” The agricultural exemption also includes horticultural uses, which consist of both the growing and keeping of nursery stock and the sales thereof. The definition of horticulture provides that: “Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises.”

To qualify for the exemption, the agricultural use must be the principal use of a property that contains a minimum of 2 acres and produces annual revenues in excess of $1,000/acre. The Applicant represented in the application to the Board that a 3-acre portion of the Property located to the rear of the residence is used to “cultivate plantings and trees grown on-site, for sale and use off-site, and to maintain, nourish and manage plantings brought to the site, for the sale and use off-site”. The application also notes that the agricultural use generates more than $1,000/acre in annual revenue.

The Building Commissioner and Fire Marshal testified during the hearing, stating for the record that they found little evidence during their investigation that would confirm that the site is used as a nursery. The Board reviewed historic aerial imagery of the Property, which shows that an approximate 25,000 SF area has been used in recent years for storage of vehicles and material. Other photographs submitted by the Building Commissioner and abutters to the Property suggest that the remainder of the site has supported either the residential/daycare use or remained wooded until recently. Members agreed that this evidence supports the Commissioner’s determination that the property has been used as a contractor’s yard and not principally as a horticultural use. More recent photographs show that a significant portion of the site was cleared of trees and filled. Stumps and debris are scattered throughout this area.

During the hearing, the Applicant confirmed that the property has been used as a landscape contractor’s yard for more than a decade. Attorney Tocchio described the Applicant’s plan to transition use of the rear portion of the Property to a nursery. The Board said that those plans would be subject to Site Plan Review by the Planning Board in accordance with § III-B, 8. of the By-Law; however, the Administrative Appeal proceedings before the Board would focus on the current use of the Property as opposed to the Applicant’s proposed plans.

Several residents from the surrounding neighborhood submitted videos and photographs of the business operations on the site. Abutters spoke during the hearing about their concerns related to the current site conditions and use of the Property as a landscape contractor’s yard.
DECISION

Upon a motion made by Joseph M. Fisher and seconded by Mario Romania, the Board of Appeals voted unanimously to affirm the Building Commissioner’s order, dated January 25, 2017, to cease and desist from using the property located at 323 North Street in Residence District A as a contractor’s yard.

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 Board of Appeals,

__________________________________
Joseph W. Freeman, Chair
June 2, 2017