In an unpublished decision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.
