Thursday, December 6, 2018

Can I Build My House? The Answer is “Maybe”


At the REBA’s 2018 Annual Meeting and Conference, Dan Dain and Diane Tillotson chaired a
discussion regarding the effect of Gallivan v. Zoning Bd. of Appeals of Wellesley (2008). In 1999, Richard and Colleen Eyges (collectively, Eygeses) obtained oral approval from the Wellesley Building Inspector to build a modular home, and in December they made a partial payment to the modular home contactor. In January 2000 notices of an amendment to the Zoning Bylaw were published, which amendment would have rendered the proposed construction unlawful? In February the Eygeses submitted a formal building permit application. Notice of the Eygeses' application was published in a local newspaper and was mailed to abutters, including the plaintiff.

On March 9th the permit was issued and on March 27th Town Meeting adopted the zoning change. “In a letter dated July 17, 2000, the plaintiff, pursuant to G.L. c. 40A, § 7, and § XXIII of the by-laws (Wellesley), requested in writing that the building inspector enforce the now-effective, new setback restriction applicable to the Eygeses' now virtually completed modular structure. In a letter dated July 28, 2000, the building inspector declined to enforce the requirement on the ground that he had ‘verbally authorized’ the proposed construction in December of 1999. On August 21, 2000, the plaintiff appealed to the [zoning] board from the building inspector's refusal to enforce the new setback requirement.   The relevant provision of  G.L. c. 40A, § 8,  provides in  part that  ’ [a]n appeal to the permit granting authority [here the board] ... may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter [here the building inspector], ... or by any person ... aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.’” Id    Such an appeal is to be taken within 30 days from the date of the order or decision which is being appealed.

The plaintiff did not file an appeal within 30 days, and instead wrote the July 17, 2000 letter to the building inspector seeking enforcement of the new amended bylaw. The Appeals Court concluded that the appeal from the issuance of the permit had to be filed no later than April 8, 2000; which was 30 days after the building permit was issued.

The Appeals Court based its decision on the fact that the Plaintiff received written notice by mail of the building permit application and could have easily determined when the building permit had been issued and filed an appeal within 30 days of the issuance of the permit. Otherwise, to allow an aggrieved party to sit and wait up to 6 years and seek enforcement pursuant to G.L. c 40A § 7 would be unfair to people like the Eygeses.  

The case turned on the fact that the Plaintiff had received actual notice of the building permit application. But many towns do not provide actual notice to abutters of building permit applications, or notices of the issuance of permits. Does that mean that you should counsel clients to provide notice to abutters of permit applications to reduce the risk of a later appeal or mandamus action years later? The learned attendees at the REBA Conference could not agree. Many of us have had unfavorable results when clients went out of their way to give advance notice to abutters of proposed developments; as it provides a potential catalyst to organize neighborhood opposition.

As reinforced in the Essex Superior Court decision of Purcell v. Sherrill (2012), if you represent an aggrieved abutter do not employ the old school approach of trying to work things out with the building inspector at the risk of not filing a timely appeal. On the other hand, if you represent a building permit applicant, how can you assure them that they are in the clear before the end of the Section 7 statute of limitations?

Does that mean that if a permit is issued and the abutters get notice and the appeal period expires without an appeal that there is never another opportunity for appeal? Not necessarily. The Appeals Court recently wrote that exceptions to the rule “are sometimes made in extraordinary circumstances, as when the administrative remedy is inadequate (e.g., the administrative board does not have jurisdiction to hear the plaintiff's complaint), or the issues in the case are of such public significance that the outcome will affect numerous persons in addition to the plaintiffs, or where there is no dispute about the facts, and the issue involves merely a question of law.” Lafond v. Renewable Energy Dev. Partners, LLC  (2018). That leaves the door open to potential appeals in certain circumstances even after the expiration of the appeal period.

At a recent meeting of The Abstract Club. Michael Giaimo lead a lively discussion regarding the troublesome decision within Hickey v. Zoning Bd. of Appeals of Dennis, review denied sub nom. Hickey v. Oliveira (2018). In Hickey, landowners filed a timely appeal with the Land Court appealing a decision of the ZBA regarding an abutter’s plan to build a stairway. Counsel for the Plaintiff did not file a notice of the appeal with the Town Clerk, as required by statue. Instead he sent copies by certified mail to all the members of the ZBA, and the ZBA Chairman’s copy was routed to the town planner. Apparently the town planner asked the assistant town clerk if she had received a copy of the complaint, and she had not; the planner showed her the first page of the complaint but did not provide the clerk with a copy. The Court determined the appeal was filed on a timely basis because “it is the state of the clerk's knowledge, not the physical location of the papers that controls.” Id.

I thought that the purpose of filing documents with the Town Clerk was to provide notice to the public of an appeal, or lack of an appeal. An abutter, who may be contemplating an appeal, or an attorney preparing a zoning opinion, should be able to rely upon the documents on record without having to examine the collective memory of everyone in the Town Clerk’s office.

These are just a few of the cases that create exceptions to what we thought were “rules”. They are reminders that when a client sends you an email and asks if they have a good case, or if they can safely proceed with the construction of their house, the answer is often “it depends”.


 A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is also a member of the Executive Committee of the Abstract Club. He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com


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