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DON'T LIKE YOUR NEIGHBOR'S NEW CONSTRUCTION? SAY SOMETHING SOONER RATHER THAN TOO LATE

It's an all too common scenario: a landowner builds something on his property, and then an abutter or neighbor thinks it is being built unlawfully and tries to stop it. In fact, let's assume that the landowner has already gone through an initial site plan review (as required by his town's zoning bylaw) and obtained a building permit accordingly thereafter.

The question is: when does the opponent have to initiate a zoning enforcement action or appeal to prevent the work?

There are two relevant statutes at play here. One statute (M.G.L. c. 40A, §§ 8 and 15) says thirty days. The other (M.G.L. c. 40A, § 7) says the opponent has six years. That's a big difference. So, which statute of limitations applies?

The answer, of course, is that it depends. And this was the very issue recently addressed in a case decided by the Land Court in March, Gavin v. Haas, 2014 WL 904925, (Case No. 12 MISC 470629 (RBF)) (Mass. Land Ct. March 10, 2014).

Here are the basic facts of the Gavin case:

  • Landowner (defendants) wanted to install four utility-scale wind turbines.
  • Town zoning statute stated that in defendants' overlay zoning district, these kinds of wind facilities were an as-of-right use, subject only to site plan approval by the planning board before building permits could issue.
  • In summer 2010, landowner obtained site plan approval for construction of four turbines.
  • In fall 2011, landowner obtained approval of a revised site plan for three turbines.
  • Building permits for the construction of the three turbines were issued on December 16, 2011. Construction commenced immediately thereafter.
  • Opponents (plaintiffs) are residents near the project site. They filed a request for zoning enforcement (with building commissioner) on April 9, 2012, challenging the site plan approval. (The 30-day mark from the issuance of the building permit would have been January 15, 2012.)
  • When the plaintiffs' request was denied by the building commissioner, they appealed to the ZBA.
  • ZBA upheld the commissioner's determination.
  • Plaintiffs filed their appeal in Land Court.

The issue before the court was whether the plaintiffs had filed their enforcement request on time. That is, which of the statutes of limitations applied? If they were too late, then the Land Court would have to dismiss the action (pursuant to the defendants' underlying motion to dismiss) for lack of subject matter jurisdiction.

After hearing arguments on the defendants' motion to dismiss, the court took the matter under advisement. The court then denied the motion to dismiss and issued an order for further proceedings. Specifically, the evidentiary hearing would determine an open and threshold issue of fact: did the plaintiffs have either actual or constructive notice of the building permits "and the grounds for appealing them sufficient to have obligated them to have appealed the Building Permits to the ZBA pursuant to G.L. c. 40A §§ 8 and 15 [within 30 days]"? The court set out five very specific questions/issues to be addressed at the evidentiary hearing (you should review the decision, if you're interested).

After a site view and a two-day evidentiary hearing, the court eventually concluded that the plaintiffs did have constructive notice of the building permits, and thus the 30-day statute of limitations found in M.G.L. c. 40A, §§ 8 and 15 applied (and not the six-year statute of limitations allowed under § 7). Thus, the plaintiffs' zoning enforcement action was not timely filed, leaving the court without subject matter jurisdiction. The case was ultimately dismissed.

It is worth noting here that the plaintiffs were not entitled to directly appeal the initial site plan approval because it was "not an appealable order under § 8" (citations omitted). It was merely a prerequisite to the issuance of the building permits required for the wind turbine and not a final decision. Thus, even though the plaintiffs claimed that there were five reasons that the site plan approval and proceedings were faulty, the plaintiffs were forced to wait until the issuance of the building permits before they could take any action to stop the project:

the 'right of an aggrieved person to appeal a local planning board's site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector.'

Id. at *11 (quoting St. Botolph Citizens Comm. v. Boston Redev. Auth., 429 Mass. 1, 9 (1999).

In turn, any challenge to such a building permit must be brought pursuant to one of the statutory schemes: M.G.L. c. 40A, § 7 or §§ 8 and 15. As the Land Court noted, determining which one of these applies is not necessarily straightforward, but the test starts with the following question:

A party that has fair opportunity to appeal from the issuance of a permit pursuant to §§ 8 and 15 is not entitled to forego that remedy in favor of a subsequent request for enforcement and appeal therefrom under § 7

Id. at *12 (citations omitted).

So, the question then becomes, when does a party (presumably an aggrieved one) have "fair opportunity"?

[This] turns on whether the aggrieved party had 'adequate notice of the building permit's issuance in time to challenge it within the thirty days.' [citation omitted] Adequate notice may be actual notice or constructive notice. [citation omitted] When notice, either actual or constructive, gives the plaintiff a reasonable opportunity to appeal to the board within thirty days, failure to do so precludes a subsequent attack on the permit by means of an enforcement request.

Id. at *13 (emphasis added).

The Land Court then notes the following important caveat:

in order to appeal a building permit a person must not only be aware of the issuance of the permit but also of the reasons why it should be appealed. In other words, in order to be held to the thirty-day appeal period of §§ 8 and 15, an aggrieved party must have actual or constructive notice not only of the issuance of the building permit but also of the potential zoning violations which form the basis for the appeal.

The problem for the plaintiffs in Gavin was that they simply waited too long. The court found that they had constructive notice of the building permits, primarily because they were aware of the construction as it was starting to take place. The court found that for most of the plaintiffs, "the sight of one of the turbines constructed to its full height was sufficient to put that person on notice that a Building Permit had issued for is construction." And, in this case, the dates on which they could visibly notice the new turbines were well within the thirty days after the issuance of the permits.

Moreover, even though one plaintiff was not physically in the area during construction (and thus could not have actually seen the turbines being built), she had previously opposed the wind turbine project in summer 2010. Accordingly, the court found, "this knowledge put her on notice that a site plan approval might issue under the [bylaw] for the [project and that it was a] prerequisite to the issuance of the Building Permits, so that she had an obligation to monitor whether the Building Permits issued."

The court also found that as to whether the plaintiffs were aware of the "reasons why the building permit should be appealed," there was adequate information in the public records (i.e. the Town Clerk, Planning Board office) to meet this requirement.

Clearly, the takeaway from Gavin is that people need to pay attention to what is going on around them in their neighborhood-both the landowners wishing to develop their lot and any potential opponents to the project-and determine if they need to act quickly. Because of the benchmarks laid out by §§ 7, 8 and 15, the ability to seek (or be subject to) a zoning enforcement action may lapse if the thirty-day statue of limitations applies rather than the six-year window. If an aggrieved person sits idly by, they will likely miss their chance to pursue their claims.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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