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Board of Appeals

TOWN OF HINGHAM
Board of Appeals

DECISION
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 (the "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.

BACKGROUND:

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.

DISCUSSION:

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 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 that:

1. The Applicants had adequate notice of the issuance of the March 14, 2014 building permit as it was published in the Hingham Journal on March 27, 2014.
2. The Applicants failed to file an appeal of the building permit, which clearly authorized placement of mechanical equipment and construction of a railing/guardrail on the rooftop, within thirty days of the building permit’s issuance.
3. Section 7 of the Zoning Act does not allow the Applicants to pursue an Administrative Appeal of the Building Commissioner’s August 5, 2014, determination and thus this appeal is not properly before the Board. 
4. The Amended Permit is not part of the present application since it postdates the Building Commissioner's determination of August 5, 2014, as well as the Applicants’ filing with the Board on August 18, 2014.  However, to the extent that the Amended Permit is deemed to be part of the present application, and since there was no published notice of the Amended Permit (unlike the original permit), the Board finds that the work covered by the Amended Permit did not violate the By-Law.

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,