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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
IN THE MATTER OF:
Applicant/Owner: Michael Cifrino
143 Summer Street
Hingham, MA 02043
Property: 143/133 Summer Street Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds Book 44779, Page 254
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the “Board”) on the application of Michael Cifrino (the “Applicant”) for an Administrative Appeal of the Building Commissioner’s determination, dated April 18, 2019, that a fence on the property at 143 Summer Street in Residence District A violated a condition of the Site Plan Review decision issued by the Planning Board on January 13, 2019.
A public hearing was duly noticed and held on July 22, 2019 at the Town Hall, 210 Central Street and continued to July 23, 2019. The Board panel consisted of its regular members Robyn S. Maguire, Chair, and Paul K. Healey and associate member Mario Romania, Jr. The Applicant was represented during the hearing by Jennifer L. Ioli, Esq., Sherin and Lodgen. Special Counsel, Susan C. Murphy, Esq., Dain, Torpy, Le Ray, Wiest & Garner, P.C., appeared to assist the Board. The Building Commissioner, Michael Clancy, also appeared to present to the Board. At the conclusion of the hearing, the Board voted unanimously to grant the request.
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
In response to a complaint made pursuant to G.L. 40A, s. 7, the Building Commissioner issued a violation notice to the Applicant on April 18, 2019. The violation identified in the notice related to a condition imposed by the Planning Board in a Site Plan Review decision, dated January 13, 2019. During the hearing, the Building Commissioner confirmed the specific condition as Condition #9, which reads as follows:
Prior to start of final grading work the applicant shall coordinate with the HMLP to schedule replacement of the utility poles that fall within the existing easement and access to the easement shall not be obstructed by plantings or any other structure.
The Building Commissioner determined that the installation of a 6’ stockade fence either partially or fully along the easement areas along the property line between the Applicant’s property and Lot 2 violated Condition #9. After receipt of the Building Commissioner’s April 18, 2019 determination, the Applicant remedied the reported violation by installing hinges between fence panels so that access to the easement may be gained by the benefited party. During the hearing, the Board asked whether the remedy made the issue moot. The Applicant stated that he filed the Administrative Appeal in an effort to clarify the intent of Condition #9.
The Condition speaks to obstructions related specifically to plantings and structures. The Applicant’s attorney noted that a fence cannot qualify as either, and is specifically exempted from the definition of structure under Section VI of the By-Law.
FINDINGS and DECISION
Based upon the information submitted and received at the hearing, and the deliberations and discussions of members during the meeting, the Board has determined that no violation occurred by installation of a fence since a fence is not a structure under the definition in the By-Law.
Upon a motion made by Paul K. Healey and seconded by Mario Romania, Jr. the Board voted unanimously to GRANT the requested administrative appeal and reverse the Building Commissioner’s determination, dated April 18, 2019, that a fence on the property violated a Site Plan Review Decision issued by the Planning Board on January 13, 2019 at 133 Summer Street Residence District A.
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 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,
Robyn S. Maguire, Chair
August 23, 2019