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Friday, January 17, 2014

CHAPTER 40A § 7 STATUTE OF LIMITATIONS CLARIFIED (AND PERHAPS NARROWED A BIT)


In an unpublished decision issued in December, the Appeals Court provided further clarification of the statute of limitations contained in G.L. 40A, § 7. In  Guaranteed Builders, Inc. v. Bylinski, 84 Mass. App. Ct. 1125, 999 N.E.2d 502 (2013) “the defendant homeowner obtained a variance and a building permit, and he constructed a single-family dwelling on the locus in Douglas in 2005. Alleging that the home had not been built in accordance with the permit, the plaintiff sought enforcement of town zoning bylaws via a letter to the building commissioner in 2012.”

Yes, that is correct: seven (7) years later.

After the ZBA concluded the house had been built in conformance with the variance, the plaintiff appealed to Land Court and the judge determined it was time barred by the provisions of Section 7 which read:

“ No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen; provided, further, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law…” (emphasis added)

The plaintiff appealed arguing that the judge erred by ignoring the second part of Section 7 which the plaintiff asserted allows an action to be brought within ten years if it pertains to a variance or special permit. The provision states:

“…no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, or the conditions of any variance or special permit, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation.” (emphasis added)
The court dissected the language of Section 7 and determined that “the six-year statute of limitations applies to challenges to structures and uses that were built or improved in accordance with a building permit, see Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 216–218 (1982), whereas the ten-year limitations period applies to challenges made to structures not built pursuant to or in reliance on a building permit. See Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass.App.Ct. 226, 227 (1991) (the second paragraph of G.L. c. 40A, § 7, contains a ten year statute of limitations ‘applicable to actions complaining of structural violations for which no permit was given’).”

Since the complaint was not filed within the six year window, the Appeals Court found that the Land Court properly dismissed the case.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

 
http://www.lawbas.com