In Barkan, et al. v. Brown, et al., No. 17-MISC-000371 (Mass. Land Court, Nov. 27, 2017), the Land Court stopped a group of homeowners from attempting to have a second bite at stopping a neighbor’s development project. Initially, a group of homeowners sought zoning enforcement action to preclude the issuance of a Certificate of Use and Occupancy for a neighboring home. The Building Commissioner denied the request and the Board of Appeals denied the homeowners’ appeal. A few, but not all, of the disappointed neighbors/homeowners appealed the Board of Appeals decision to the Land Court. Ultimately, those homeowners/plaintiffs settled the case. Pursuant to the terms of that settlement, the Court ordered the Building Inspector to issue a Certificate of Occupancy to the defendant homeowner. Thereafter, the homeowners who had chosen to forgo participation in the Land Court litigation and who were not parties to the settlement brought a second enforcement action again seeking to preclude issuance of the Certificate of Occupancy. The Building Inspector rejected their effort as did the local Board of Appeals. The homeowners appealed the Board of Appeals’ decision to Land Court pursuant to G.L. c. 40A, § 17. The Land Court dismissed the claim, holding that neighbors having challenged the Building Inspector’s first decision to the local Board of Appeal, but having failed to continue with the other plaintiffs in their appeal to court, cannot revive their foregone right of appeal by a new enforcement action.

Background: On May 27, 2008, two building permits issued to the then-owner of real property located at 25-27 Stephens Way in Truro (the “Property”). The permits allowed the conversion of a pre-existing nonconforming, single-family residence into a habitable studio and allowed the construction of a new single-family residence (the “Kline House”). On June 20, 2008, property owners on Stephens Way, including all but one of the present plaintiffs, appealed the issuance of the permits to the Truro Zoning Board of Appeals (the “Board”). In a decision dated August 11, 2008, the Board upheld the issuance of the building permits. Four property owners on Stephens Way, but none of the plaintiffs in the present action, appealed the Board’s decision to the Land Court. Extensive litigation ensued, during which period the Kline House was built, and the parties ultimately reached a settlement agreement. Pursuant to the settlement agreement, on December 1, 2016 the Land Court ordered the Building Commissioner to issue a Certificate of Use and Occupancy for the Kline House within fourteen days from entry of the Judgment. On December 5, 2016, the plaintiffs requested zoning enforcement action to preclude the issuance of a Certificate of Use and Occupancy for the Kline House. The Building Commissioner denied the plaintiffs’ request and issued a Certificate of Use and Occupancy for the Kline House on December 16, 2016. On January 6, 2017, plaintiffs appealed to the Board, challenging the Building Commissioner’s denial of their request for zoning enforcement and the issuance of the Certificate of Use and Occupancy. By a decision dated March 7, 2017, and filed with the Town Clerk on April 10, 2017, the Board denied the plaintiffs’ appeal. The plaintiffs then brought the instant case in Land Court, under G.L. c. 40A, § 17, challenging the Board’s denial of the plaintiffs’ appeal. The owner of the Property moved to dismiss the plaintiff’s complaint on the basis that it fails to state a claim pursuant to Mass. R. Civ. P. 12(b)(6).

Holding: The Land Court held that a plaintiff who, having received an adverse decision from the board of appeals, has failed to utilize the exclusive remedy of G.L. c. 40A, § 17 to appeal that adverse decision to a court within twenty days, may not later employ the alternative remedy of G.L c. 40A, § 7 to seek a subsequent enforcement action. In doing so, the Court found no logical distinction between the current situation and Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), where the Appeals Court held that a plaintiff who has failed to file an appeal to a board of appeals within thirty days as required by G.L. c. 40A, § 8 may not file a subsequent enforcement action pursuant to G.L. c. 40A, § 7. Here, the Court found that the plaintiffs had failed to timely pursue to completion their exclusive remedy of appeal of the original issuance of the building permit, allowing their rights to expire while other neighbors litigated the issue over a period of years. By doing so, the plaintiffs ran the risk that the neighbors who did appeal might settle the case, which is ultimately what happened. Following a decision by the Board that was adverse to the plaintiffs, their exclusive remedy was to file an appeal of the Board’s decision pursuant to G.L. c. 40A, § 17. In addition, the Court found that the plaintiffs are barred from seeking zoning enforcement by the six-year statute of limitations in G.L. c. 40A, § 7, which requires that any action for alleged zoning violations be commenced “within 6 years of the commencement of the alleged violation,” which in this case was May 27, 2008, the date the original building permits were issued. The plaintiffs had actual knowledge of the original issuance of the building permits, as evidenced by their initial appeal to the Board, as well as constructive notice, as evidenced by the actual construction of the Kline House commenced in 2008.

The Takeaway: Under the Land Court’s decision, an aggrieved party who has challenged the issuance of a building permit pursuant to G.L. c. 40A, § 8 must appeal an adverse decision by a board of appeal pursuant to the exclusive remedy provided by G.L. c. 40A, § 17. That remedy must be utilized within twenty days following the filing with the Town Clerk of the adverse decision of the Board. Otherwise, the Land Court’s decision would preclude an aggrieved party from attempting to revive appellate rights through the mechanism of a subsequent enforcement action under G.L. c. 40A, § 7.