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.
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.
