Published on: November 14, 2011
The Massachusetts Supreme Judicial Court recently answered an important zoning question in their decision in Connors v. Annino, 460 Mass. 790 (2011). In reaching its opinion in Connors, the SJC confirmed the 2008 Appeals Court decision in Gallivan v. Zoning Board of Appeals of Wellesley, 17 Mass. App. Ct. 859 (2008), that an aggrieved party has thirty days from the issuance of a building permit to file an administrative appeal, if the aggrieved party received adequate notice of the issuance of the permit.
In Connors, on September 15, 2008, the building inspector issued two building permits to Annino. While the building department did not provide Connors with notice of the permits, on September 25th, Connors learned the permits had issued. Prior to the issuance of the permits, Connors had sent a letter to the building commissioner opposing Annino’s building permit application. The building commissioner responded to Connors’ letter on September 29th. On October 20, 2008, thirty-five days after the building permits had issued, but less than thirty days from when the building commissioner responded to Connors’ letter, Connors filed a petition of appeal. The Zoning Board of Appeals dismissed Connors’ appeal noting that Connors “failed to bring the appeal within the time frame required by statute.”
Pursuant to G.L. c. 40A, §8 and §15, an aggrieved party has thirty days from the issuance of a building permit to file an administrative appeal. However, G.L. c. 40A, §7, also provides that an individual may at any time within six years of an alleged zoning violation, make a written request to the town to enforce the zoning by-law. If an individual is aggrieved by the town’s decision, the aggrieved party has thirty days to appeal the town’s decision. These two sections of c. 40A have lead to uncertainty as to whether an aggrieved party, who despite having notice of the issuance of a building permit, may wait to request enforcement of the zoning by-law and appeal that decision, rather than appeal the issuance of the building permit within thirty days. In Connors, the SJC attempts to clear up this uncertainty by finding that if adequate notice is provided of the issuance of a building permit, the aggrieved party may not use the enforcement provisions available in c. 40A, §7, and must appeal the building permit within thirty days.
Unfortunately, the SJC declined to create a distinct definition or bright line rule of what constitutes “adequate notice”. However, in light of this decision, and in order to avoid disputes, we would expect that municipalities may take the proactive step of requiring the notice of the issuance of building permits to abutters. Furthermore, the SJC advises applicants for a building permit to provide notice of the permit’s issuance in order to avoid similar disputes.
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For a copy of the decision please click here.