Thursday, October 14, 2021

Timing is Everything for Zoning Appeals

 Meghan E. Hall

Pursuant to G.L. c. 40A, § 7, any person may make a request in writing to the building inspector of a town (or other officer charged


with zoning enforcement) to enforce a zoning ordinance or bylaw against any person allegedly in violation of the same. But what do you do if the building inspector denies such a request?

 

The short answer is that pursuant to G.L. c. 40A, §15, a party aggrieved by a building inspector’s decision may file an appeal of such decision to the town’s zoning board of appeals, but such appeal must be filed within thirty (30) days from the date of the order or decision which is being appealed. An appeal of a town’s zoning board of appeals’ decision can then be taken to the Superior Court or Land Court pursuant to G.L. c. 40A, § 17.

 

In this instance, the Appeals Court found that the plaintiff failed to timely appeal the initial response from the ZEO, which constituted an adverse, appealable decision.

 

In a recent decision issued by the Massachusetts Appeals Court in Fisher v. Presti Family Limited Partnership, et al., 2021 WL 4203426 (Mass. App. Ct. 2021), the Appeals Court clarified the time-period necessary for an aggrieved party to file their appeal of a building inspector’s decision concerning a zoning enforcement request pursuant to G.L. c. 40A, § 15.

 

In Fisher, the plaintiff submitted multiple letters to the zoning enforcement officer for the Town of Stow (“ZEO”) in the Spring of 2017 requesting zoning enforcement because of commercial traffic that was being generated by her neighbor and his commercial tenants along her abutting property. Ultimately, on May 26, of 2017 the ZEO responded to both of the Plaintiff’s letters which informed her: (i) that he inspected the property, (ii) that the types of uses of the property were pre-existing non-conforming and were protected uses, and (iii) that he had no jurisdiction over the traffic concerns raised in her letters. While the ZEO’s written response informed the plaintiff she could contact the building department if she needed any further information, it did not indicate that his response was an appealable decision. As a result, the plaintiff did not file an appeal of the ZEO’s May 2017 decision denying her request for enforcement at that time.

 

Instead, on June 8, 2017, and again on July 24, 2017, the plaintiff submitted further written enforcement requests to the ZEO reiterating her prior complaints and asserting that the use of the defendant’s property was not a pre-existing non-conforming use protected by the zoning bylaw and identified several new zoning violation issues pertaining to the defendant’s property. On June 30, 2017 and again on August 7, 2017, the ZEO issued additional written decisions which declined to enforce the zoning bylaw and informed the plaintiff that if she did not agree with his findings, she could bring an appeal to the Town of Stow Zoning Board of Appeals (“ZBA”).

 

The plaintiff timely appealed the ZEO’s July 24th and August 7th decisions to the ZBA who consolidated the appeals for review and upheld in part and reversed in part the ZEO’s denials of the plaintiff’s requests for zoning enforcement. The plaintiff then filed a G.L. c. 40A § 17 appeal of the ZBA’s decision with the Land Court and the defendant, for the first time, moved to dismiss the plaintiffs appeal on the grounds that the plaintiff’s action was time barred because she failed to timely appeal the ZEO’s initial May 26, 2017 decision denying her zoning enforcement request within thirty (30) days.

 

The Land Court held that the ZBA’s decision upholding the ZEO’s decisions was a nullity because the initial written response that the plaintiff had received from the ZEO on May 26, 2017 was a decision on her zoning enforcement request, which she failed to timely appeal. Additionally, the Land Court held that the subsequent letters to the ZEO did not “revive or extend the appeals period.” Following the Land Court’s decision, the plaintiff appealed.

 

The Appeals Court disagreed that the subsequent letters to the ZEO were not appealable decisions under G.L. c. 40A, § 15 and specifically held:

 

We conclude that although the zoning enforcement officer’s letter of May 26, 2017, denying [the plaintiff’s] requests for zoning bylaw enforcement against certain uses of property owned by [the defendant] was an appealable decision from which the [plaintiff] did not timely appeal, her failure to appeal that decision did not foreclose her from pursuing the same or related relief through her timely appeals from the zoning enforcement officer’s letters of June 30, 2017, and August 7, 2017, denying the [plaintiff’s] subsequent requests for zoning enforcement against ongoing uses of [the defendant’s] property. Fisher, 2021 WL 4203426 at *1.

 

The Appeals Court clarified that while there was no dispute that the Plaintiff failed to appeal to the ZBA within thirty days of ZEO’s May 26th Decision, there is equally no dispute that she did appeal within thirty days of the ZEO’s June 30 and August 7th Decisions and the plaintiff’s failure to appeal from the initial decision did preclude her appeal from her subsequent request for zoning enforcement challenging ongoing uses.

 

This decision serves as a reminder of the critical importance of timely appealing a ZEO’s decision to the ZBA, which deadline is “strictly enforced and is a jurisdictional prerequisite to the [ZBA’s] jurisdiction to hear an appeal.” McIntyre v. Zoning Bd. of Appeals of Braintree,(2018). Additionally, it is also a reminder that the ZEO has no obligation to notify an aggrieved party of his or her right to appeal an adverse decision to the ZBA. See Elio v. Zoning Bd. of Appeals of Barnstable, (2002) (“[T]hose who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.”). That responsibility is left solely to the aggrieved landowner.

 

In this instance, the Appeals Court found that the plaintiff failed to timely appeal the initial response from the ZEO, which constituted an adverse, appealable decision. Accordingly, following the receipt of the written response from the zoning enforcement officer careful attention must be paid, first, to the contents of the ZEO’s written response to determine if it constitutes a decision, and, then the applicable timeframe to appeal, if it constitutes an adverse decision or order.

 

Anyone seeking the enforcement of zoning or the issuance of a building permit is well-advised to consult with an attorney to discuss the attendant facts and the relevant procedure, in order to avoid any fatal missteps in the nuanced process of appeals to the local zoning boards of appeal.

 

Click here to view a copy of Fisher v. Presti Family Limited Partnership, et al., 2021 WL 4203426 (Mass. App. Ct. 2021).

 

An associate at the Boston and Quincy-based firm of Moriarty Troyer & Malloy LLC, Meghan Hall  is an experienced real estate litigator licensed in Massachusetts. Meghan’s experience includes representing clients in all Massachusetts trial courts, including the Land Court, and the Massachusetts Appeals Court. Meghan can be contacted by email at mhall@lawmtm.com.

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