Fitch v. Board of Appeals of Concord

774 N.E.2d 1107, 55 Mass. App. Ct. 748
CourtMassachusetts Appeals Court
DecidedSeptember 6, 2002
DocketNo. 00-P-1711
StatusPublished
Cited by9 cases

This text of 774 N.E.2d 1107 (Fitch v. Board of Appeals of Concord) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitch v. Board of Appeals of Concord, 774 N.E.2d 1107, 55 Mass. App. Ct. 748 (Mass. Ct. App. 2002).

Opinion

Kass, J.

Stona Fitch and Thomas Cote filed an appeal under G. L. c. 40A, § 17, in the Land Court, from a decision of the Board of Appeals of Concord (board) that had validated a build[749]*749ing permit for the construction of a single-family house on land adjoining theirs. A judge of the Land Court dismissed their action on the ground that it was not ripe. We reverse.

1. Facts. The judge decided the case on a motion for summary judgment. These are the material and undisputed facts. Bessie Adele Cavanagh owns a vacant parcel of land at 188 Central Street, Concord (locus), that contains 10,513 square feet and has frontage of 75.5 feet. The required frontage for a “build-able lot” in the zoning district (residence C) in which the locus is situated is 80 feet; thus, the frontage of the locus is 4.5 feet shy.

Adjoining the locus, along a common rear lot line, Cavanagh owned a lot with 67.80 feet of frontage on Main Street. On that lot was a single-family house, lawful as a nonconforming use, in which Cavanagh resided.3 The locus and the adjoining lot on Main Street have been in common ownership since 1930.

On April 7, 1999, the building commissioner of Concord issued to Cavanagh a permit to build a single-family house on the locus. In doing so, the building commissioner relied on a proceeding in 1998 before the board that had involved the locus. At that time, Cavanagh had asked the board for a variance or, in the alternative, a special permit to use the locus as a single-family residence lot. The board had denied relief to Cavanagh on the ground that it was not necessary. The locus, the board wrote in its decision, was “grandfathered” and “only the most pedantic and unimaginative zoning board could view the matter otherwise.” The board advised the building commissioner to “be mindful of the [bjoard’s position on this matter. If Applicant requests a building permit for the lot on Central Street, it should not be denied on the grounds that it is not a grandfathered building lot.”

By letter dated June 3, 1999, Fitch and Cote, through counsel, conformably with G. L. c. 40A, § 7, wrote to the building commissioner, in his capacity as zoning enforcement officer, requesting him to enforce the zoning by-law of Concord by rescinding [750]*750the building permit. Within twelve days — on June 15 — the building commissioner responded in writing, as the statute requires, that he declined to act on the Fitch/Cote request. See and compare Elio v. Zoning Board of Appeals of Barnstable, ante 424 (2002). From the building commissioner’s action, Fitch and Cote filed a timely appeal with the board on July 9, 1999. See G. L. c. 40A, §§ 8, 15. Following a hearing on the Fitch/Cote appeal, the board, on September 22, 1999, denied relief, citing its decision in 1998 that the locus was a lot on which a single-family house could lawfully be built. From that decision, Fitch and Cote on October 12, 1999, filed a timely appeal seeking judicial review in the Land Court. See G. L. c. 40A, § 17. At the time the motion for summary judgment was argued before the Land Court on September 6, 2000, Cavanagh’s building permit had expired.4

2. Discussion, a. The request for enforcement. As we understand the decision of the Land Court judge, his reason for dismissing the complaint was that it was premature: no construction had begun under the building permit that Fitch and Cote wanted to have declared unlawful. He faulted the plaintiffs for not appealing from the issuance of the permit and wrote that the plaintiffs “cannot use the enforcement request route as a collateral attack on the 1999 permit itself.” The judge also treated as consequential that the permit had lapsed. We are of opinion that the plaintiffs were entitled to adjudication of their appeal on the basis of the applicable statutory language, the decisional law, and sound public policy.

Section 7 of c. 40A of the General Laws, as amended by St. 1986, c. 557, § 55, provides:

“If the officer . . . charged with enforcement of zoning . . . by-laws is requested in writing to enforce such. . . by-laws against any person allegedly in violation of the same and such officer. . . declines to act, he [751]*751shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.”

General Laws c. 40A, § 8, as inserted by St. 1975, c. 808, § 3. authorizes an appeal to the “permit granting authority” — in this case the board — by any person aggrieved by inability to obtain enforcement action. A party has thirty days from the date of the order by which that party is aggrieved to take its appeal to the permit granting authority. G. L. c. 40A, § 15. If aggrieved by the action of the permit granting authority, as the plaintiffs here were, G. L. c. 40A, § 17, authorizes the filing of an action within twenty days after the decision has been filed in the office of the town clerk. All those steps Fitch and Cote followed faithfully within the prescribed time limits. Compare Elio v. Zoning Board of Appeals of Barnstable, supra.

On the basis of the plain language of the statutes, Fitch and Cote were entitled to adjudication of the appeal under G. L. c. 40A, § 17. That entitlement was explicated in Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 480-483 (1984). We observed there that the request for enforcement procedure was independent of the right to take an appeal under G. L. c. 40A, § 15, within thirty days of the issuance of a permit. That was so because there is no public notice of the issuance of a building permit. If a § 15 appeal were the sole remedy for a party aggrieved, the recipient of a permit could keep the permit under wraps for thirty days and then would have succeeded in foreclosing any challenge. Id. at 482 n.17.

For that reason, the Legislature adopted the enforcement procedure that appears in G. L. c. 40A, § 7. That procedure provides an alternative means “to stop allegedly unlawful construction from going forward under color of” the challenged permit. Vokes v. Avery W. Lovell, Inc., supra at 483. Although some construction had begun in the Yokes case by the time the § 7 enforcement mechanism was invoked, use of § 7 before construction has begun is not an impermissible preemptive strike; it is precisely what the Legislature appears to have anticipated and determined to enable. In its “1972 Report on [752]*752Zoning in Massachusetts/Proposed Changes and Additions to the Zoning Enabling Act Chapter 40A,” the Department of Community Affairs stated that enforcing zoning requirements, especially dimensional regulations, “after construction has begun or in some cases, proceeded to completion, is uneconomical for both the developer and the community.” 1972 House Doc. No. 5009, at 56.5 If a requesting party is aggrieved by the administrative official’s decision, it has “a right to seek administrative relief from the board under G. L. c. 40A, §§ 8 and 15, and, after exhausting administrative remedies, a right to obtain judicial review pursuant to G. L. c. 40A, § 17.” Vokes v. Avery W. Lovell, Inc., supra at 482-483. See Green v. Board of Appeals of Provincetown, 404 Mass. 571, 574 (1989).

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Cite This Page — Counsel Stack

Bluebook (online)
774 N.E.2d 1107, 55 Mass. App. Ct. 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitch-v-board-of-appeals-of-concord-massappct-2002.