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TOWN OF HINGHAM
Board of Appeals
IN THE MATTER OF:
Applicants: James Blakey and Alison Ferrante
29 Elm Street 15 Elm Street
Hingham, MA 02043 Hingham, MA 02040
Property: 13, 15, 17 Elm Street, Hingham, MA 02043
Property Owner: Elm Street Development, LLC
88 West Grove Street
Middleboro, MA 02346
Title Reference: Plymouth County Registry of Deeds, Book 46466, Page 346
SUMMARY OF PROCEEDINGS:
This matter came before the Board of Appeals (the "Board") on the application of James Blakey and Alison Ferrante (collectively, the "Applicant") for an Administrative Appeal of the Building Commissioner’s determination, dated June 13, 2017, denying a request for enforcement against Elm Street Development LLC in order to prevent reconstruction of a three-family dwelling at 15 Elm Street in Residence District A.
The Board opened a hearing on the application at a duly advertised and noticed public hearing on August 15, 2017 at Hingham Town Hall, 210 Central Street. The Board panel consisted of its regular members Robyn S. Maguire, Chair, and Joseph M. Fisher and associate member Joseph W. Freeman. The Applicant was in attendance during the hearing. Matt Falconeiri, Elm Street Development, LLC, and his attorney, Bruce Issadore, appeared to represent the Property Owner. Susan C. Murphy, Esq., Special Real Estate Town Counsel, also appeared on behalf of the Board.
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 subject property consists of approximately 0.2 acres of land configured in a trapezoidal shape. It is located on the northwest side of Elm Street, opposite the Lincoln School Apartments and adjacent to the former Light Plant building. The property was improved by a three-family dwelling (ca. 1870) and a detached single car garage. The structure was extensively damaged by a fire in September 2016. The Property Owner received a permit on January 11, 2017 to demolish the fire-damaged structure in its entirety. Following removal of the building in February – March 2017, the Building Commissioner issued a permit, dated April 11, 2017, allowing reconstruction of the three-family dwelling under Section III-I, 1.B. of the By-Law. This Section of the By-Law provides that:
A lawfully existing nonconforming building or structure may be repaired or rebuilt if damaged or destroyed by a casualty, including explosion, fire, storm or other natural disaster, but only if such repair or reconstruction is begun within two (2) years of such damage or destruction and diligently pursued to completion within two (2) years of commencement; provided however, tat, except as may be allowed by the provisions of M.G.L. Chapter 40A, Section 6 or this Section III-I governing alterations of nonconforming structures, the repaired or reconstructed structure shall be no less conforming than the structure that was so damaged or destroyed.
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 May 4, 2017, of the issuance of the building permit. No appeals were filed of the permit issued on April 11, 2017.
One of the Applicants, James Blakey, filed a Request for Enforcement (the “Request”) with the Building Commissioner on May 22, 2017. The Request suggests that reconstruction of the three-family dwelling violates current Use Regulations under the By-Law and suggests that the prior three-family use of the Property was not a “grandfathered use non-conformance.” The Building Commissioner issued a letter, dated June 13, 2017, denying the Request for 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 for enforcement.
The Property Owner asserts 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 April 11, 2017.
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. The Owner represented that construction activity, including demolition of the prior structure and a garage, took place in February, March and April, thereby suggesting that the Applicants had received at least constructive notice of the building permit. During the hearing, one Applicant acknowledged that he had also read notice of the permit in the Hingham Journal 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 discussed standing during the hearing. The Board agreed that there was no creditable evidence in the record to establish standing for Mr. Blakey. While Ms. Ferrante may have presumptive standing, members felt that the harm claimed is speculative and not specific to the particular circumstances.
The Board discussed whether it was necessary to get to the substance of the Appeal given the concerns about the application’s timeliness and the applicant’s standing, and ultimately decided to review the merits of the case in the event that a court of competent jurisdiction might not find the same concerns. The Building Commissioner’s determination relied in part on a letter, dated April 25, 2005, regarding “Non-Conforming Dwellings,” along with an Exhibit entitled “Non-Conforming 3-Family Residences.” Counsel explained that the April 25, 2005 letter and attached list of grandfathered, nonconforming properties were incorporated into the By-Law in April 2005. While the referenced was subsequently removed from the By-Law in 2012, the nonconforming use of those properties included on the list remained protected as long as the structures were not converted to a single-family dwelling. The Board confirmed that between 2012 and the 2016, when the structure was extensively damaged by fire and later demolished, the property was used as a three-family dwelling.
FINDINGS and DECISION:
Upon a motion made by Joseph M. Fisher and seconded by Joseph W. Freeman, and based upon the information submitted and received at the hearings, and the deliberations and discussions of members during the hearings, the Board voted unanimously to find that:
1. The Applicants lack standing. Mr. Blakey, 29 Elm Street, failed to establish standing because he has not demonstrated a harm particular to himself and not generally to the community. While Ms. Ferrante, 15 Elm Street, has presumptive standing, the Property Owner challenged the presumption. The Board also found insufficient evidence that Ms. Ferrante would experience any particular harm.
2. The Applicant’s did not file a timely appeal of the April 11, 2017 building permit, so the Board lacks jurisdiction to make a determination.
3. In the event a court of competent jurisdiction would find otherwise, then the Board additionally found insufficient evidence to overturn the Building Commissioner’s determination, dated June 13, 2017, not to proceed with enforcement.
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,
Robyn S. Maguire
October 19, 2017