Thursday, March 29, 2012

NO MORE MR. NICE GUY (OR GAL); APPEAL TO THE ZBA FIRST, ASK QUESTIONS LATER

Massachusetts Lawyers Weekly recently reported on Purcell v. Sherrill, et al within which the Essex Superior Court made it painfully clear that the thirty (30) day period described within M.G.L. c. 40A, § 15 for filing an appeal of the issuance of a building permit is a hard and fast time limit. The Court was not moved by the Plaintiff’s attempt to first informally persuade the Building Commissioner that the building permit was issued in error.  As practitioners commonly have done (but never again), the Plaintiff filed a G.L. c. 40A, § 7  request for enforcement after learning of the grant of the building permit, believing that he had 30 days after receiving a response from the Building Commissioner within which to file an administrative appeal with the Board of Appeals.  The Court referred to Connors v. Annino, 460 Mass. 790, 955 NE2d 905 (2011) within which the SJC considered the case of a party that had taken a similar route and filed his appeal after pursuing a Section 7 request for enforcement. The SJC stated: “… G.L. c. 40A, § 15 (§ 15), prescribes the time in which the administrative appeals described in § 8 must be taken. Specifically, § 15 provides that ‘[a]ny appeal under [§ 8] to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.’ With respect to an appeal from an ‘inability to obtain [a § 7] enforcement action’ the date from which the thirty-day period for appeal is measured is the date of the written response of the municipal building official to the aggrieved person's request for enforcement. With respect to a building permit, the date of its issuance is considered ‘the date of the order or decision.’ Id. at § 15. For purposes of § 8, the issuance of a building permit qualifies as an ‘order or decision of the inspector of buildings, or other administrative official,’ see Gallivan, 71 Mass.App.Ct. at 854, 887 N.E.2d 1087, and therefore any appeal to the permit granting authority under § 8 must be brought within thirty days after the permit has issued. See Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass.App.Ct. 424, 427, 771 N.E.2d 199 (2002).”
The SJC left the door open for appeals beyond the 30 day window, but within 30 days after seeking a request for an enforcement action, if the appellant did not have adequate notice of the order being challenged or when an abutter proceeds to construct something without a building permit.

The bottom line: no more Mr. Nice Guy. When you get a call of an alleged zoning violation, file an immediate appeal to the Board of Appeals. Do not try friendly persuasion. I wonder what will happen in those towns that do not allow you to file an application with the ZBA until you have first obtained an abutters’ list, and the clock will run out if you wait for the list.

PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.

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