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TOWN OF HINGHAMBoard of AppealsDECISIONADMINISTRATIVE APPEALIN THE MATTER OF:Applicant: Dennis McCormack & Felicia Catale-McCormack, 21 Beal Street, Hingham, MA 02043 Sharon Cain, 19 Beal Street, Hingham, MA 02043 David Lipkat & Erin Evans, 15 Beal Street, Hingham MA 02043 Lawson & Gable Clarke, 25 Beal Street, Hingham, MA 02043 Brian & Sarah Joynt, 60 Baker Hill Drive, Hingham, MA 020403Applicant’s Jeffrey A. De Lisi, Esq.Agent: Ohrenberger, De Lisi & Harris, LLP 28 New Driftway Scituate, MA 02066Property James P. & Bernadette Ippolito Owner: 323 North Street Hingham, MA 02043 Property: 323 North Street, Hingham, MA 02043Title Ref.: Plymouth County Registry of Deeds, Book 29055/Page 275 & Book 22701/Page 297SUMMARY OF PROCEEDINGS:This matter came before the Board of Appeals (the "Board") on the application of Dennis McCormack and Felicia Catale-McCormack, Sharon Cain, David Lipkat and Erin Evans, Lawson and Gable Clarke, and Brian and Sarah Joynt (collectively, the "Applicant") for an Administrative Appeal of the Building Commissioner’s determination, dated July 2, 2018, that the large family child care facility operating at 323 North Street in Residence District A is an allowed use under MGL c. 40A, § 3. The Board opened a hearing on the application at a duly advertised and noticed public hearing on September 25, 2018 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 Mario Romania, Jr. The Applicant, represented by Jeffrey A. De Lisi, Esq., Ohrenberger, De Lisi & Harris, LLP, appeared before the Board. The Property Owner, represented by Jeffrey A. Tocchio, Esq. and Scott Golding, Esq., Drohan Tocchio & Morgan, P.C., also attended the hearing. Finally, Special Real Estate Counsel, Susan C. Murphy, Esq., Dain, Torpy, Le Ray, Wiest & Garner, P.C., provided legal assistance to the Board. During the hearing, the Board heard testimony both in support and in opposition to the application. Throughout its deliberations, the Board has been mindful of the statements of the Applicant, the Property Owner, their representatives, 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 and detached barn. A home-based daycare has operated from the dwelling for the past twelve years.The application arose from a Request for Zoning Enforcement filed by Attorney De Lisi on behalf of Brian and Sarah Joynt. The Request, dated June 29, 2018, asked the Building Commissioner (the “Commissioner”) to require the owner and operator of the “North Street Play School,” located on the Property, to obtain a special permit under Section III-A, 3.4 of the By-Law. The Commissioner’s response, dated July 2, 2018, indicated that the daycare qualifies as a “large family child care home” and is an exempt use under MGL c. 40A, § 3. During the hearing, Counsel for both the Board and the Property Owner provided legal analysis of both the state and local regulations related to child care facilities and specifically the “large family child care home” located on the Property. Section 1A of chapter 15D provides in part that “large family child care homes shall be an allowable use unless a city or town prohibits or specifically regulates such use in its zoning ordinances or by-laws.” The local bylaw governing “day care of children” (Use 3.4) was initially adopted in the 1960s. Subsequent amendments to the present text predate the introduction of a definition for “large family day care home” in the state statute in the 1990s. As a result, the Commissioner determined that the local bylaw requiring a special permit for “nursery schools or other use for the day care of children, other than as exempted under MGL c. 40A s. 3” does not specifically regulate “large family day care homes.” Members agreed that the use is allowable and does not require a special permit to continue operating. The Request for Zoning Enforcement additionally asked the Commissioner to determine whether a proposed agricultural use of the Property, which proposal is the subject of a pending Site Plan Review application before the Planning Board, would likewise be exempt under MGL c. 40A s. 3 or would require a special permit under Section III-A, 2.2 of the By-Law. The Commissioner, in his July 2, 2018 response, indicated that he would not prospectively address the proposed agricultural use. Substantial discussion took place during the hearing about this matter. To the extent that the Commissioner took no action on the matter, the Board ultimately found it had no jurisdiction to consider the proposed agricultural use. Further, the Board, noting that the proposed agricultural use of the Property had not commenced, found that the Commissioner would not be able to take the requested enforcement action. FINDINGS and DECISION:Upon a motion made by Joseph M. Fisher and seconded by Mario Romania, Jr., and based upon the information submitted and received at the hearing, and the deliberations and discussions of members during the hearing, the Board voted unanimously to affirm the Building Commissioner’s Determination, dated July 2, 2018, finding as follows:1. That the Commissioner’s interpretation of Section III-A, 3.4 is correct; and2. That it was proper for the Commissioner to take no action on the proposed agricultural use of the Property. 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 November 7, 2018