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