Miles-Matthias v. Zoning Board of Appeals

4 N.E.3d 309, 84 Mass. App. Ct. 778
CourtMassachusetts Appeals Court
DecidedFebruary 11, 2014
DocketNo. 13-P-635
StatusPublished
Cited by7 cases

This text of 4 N.E.3d 309 (Miles-Matthias v. Zoning Board of Appeals) 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
Miles-Matthias v. Zoning Board of Appeals, 4 N.E.3d 309, 84 Mass. App. Ct. 778 (Mass. Ct. App. 2014).

Opinion

Fecteau, J.

Defendant John Dias appeals from a Superior Court judgment in favor of the plaintiffs, Paul Miles-Matthias and Linda Coffin, which overturned a zoning board decision that Dias’s proposed common driveway was permissible under the town of Seekonk’s zoning by-law. Specifically, Dias claims the judge erred in finding (1) that the Superior Court and the zoning board had jurisdiction because the plaintiffs’ appeal to the zoning board was timely, (2) that the plaintiffs, as abutters, had the requisite standing to bring the action, and (3) that [779]*779Seekonk’s zoning by-law prohibits common driveways. The judge correctly concluded that the plaintiffs, as abutters, have standing to prosecute the appeal.3 However, because the plaintiffs’ appeal was untimely and the decision below relied upon misinterpretation of the zoning by-law, we reverse.

1. Background. The basic facts found by the judge and which underlie this appeal are not disputed. The plaintiffs own and reside at premises known as 363 Ledge Road in the town of Seekonk, which they purchased on June 28, 1985. The plaintiffs and another neighbor share an easement in common over a pathway of land owned partially by the plaintiffs and partially Dias. This common driveway was in existence before Seekonk adopted its first zoning by-law in 1942. After the plaintiffs purchased their land, a home was constructed on what is now known as lot 4 and on December 21, 2007, Dias purchased property to the south and east of the plaintiffs, including lot 4 and what are now known as lots 1-3.

On March 11, 2008, the Seekonk planning board endorsed Dias’s plan to divide his land off Ledge Road into six lots as an approval-not-required plan (ANR plan) pursuant to G. L. c. 41, § 81R Although lots 1-3 on Dias’s ANR plan had legal frontage on Arcade Avenue, the presence of wetlands prevented the lots from easily having access to this street. Therefore, in the ANR plan, Dias proposed to access lots 1-3 using the common driveway off Ledge Road. Dias planned to expand the driveway currently servicing Dias’s lot 4, the plaintiffs’ lot, and another neighbor’s property so that the common driveway to lots 1-3 would be entirely on Dias’s land.

Dias then applied to the town’s building commissioner for authority to install the common driveway extending from Ledge Road to service lots 1-3. Upon learning of Dias’s application, the plaintiffs spoke with the building commissioner to voice their opposition to Dias’s proposed use of the common driveway. Then, on February 26, 2010, Dias’s attorney wrote to the build[780]*780ing commissioner regarding a zoning determination for the common driveway. Soon thereafter, the plaintiffs became aware of Dias’s zoning request and from about the time of the request, February 26, 2010, to about March 12, 2010, the plaintiffs spoke to building commissioner on a “fairly regular basis.”

On March 26, 2010, the building commissioner mailed her decision to Dias approving the common driveway as a permissible means of access to lots 1-3, and as an accessory use under Seekonk’s zoning by-law. On April 14, 2010, the plaintiffs learned of the building commissioner’s decision and requested a written copy. That same day, the building commissioner mailed a copy of her zoning determination to the plaintiffs. The plaintiffs did not receive the building commissioner’s letter until April 19, 2010. On April 22, 2010, the plaintiffs visited town hall to learn how to perfect their appeal, and a few days later, on April 27, 2010, the plaintiffs filed applications for a certificate of good standing and for a certified abutters list, both of which were required to appeal the building commissioner’s decision to the Seekonk zoning board. Finally, on May 3, 2010, the plaintiffs filed their appeal.

After a public hearing, the zoning board voted three to two to overturn the building commissioner’s approval of the common driveway. However, because G. L. c. 40A, § 15, requires four votes to overturn the building commissioner, the zoning board ultimately affirmed the building commissioner’s determination that Dias’s driveway was permissible.

Thereafter, the plaintiffs appealed to the Superior Court. Dias argued that the plaintiffs’ appeal must fail because the plaintiffs lacked standing, their appeal to the zoning board was untimely, and a common driveway was a permissible use under the Seekonk by-law. The judge, however, overturned the zoning board’s decision and found that the plaintiffs’ appeal was timely, the plaintiffs had standing, and the Seekonk by-law prohibited common driveways.

2. Discussion, a. Timeliness of appeal to zoning board. Under G. L. c. 40A, § 15, a party aggrieved by a building commissioner’s determination must file the appeal within thirty days of the decision. In this case, the building commissioner issued her decision on March 26, 2010. Therefore, an appeal from this [781]*781decision had to be filed no later than April 25, 2010. The plaintiffs, however, did not file their appeal with the zoning board until May 3, 2010.

In finding that the plaintiffs’ appeal was timely, the judge found that the plaintiffs “received adequate notice for filing an appeal on April 14, [2010],” the date the plaintiffs learned of the building commissioner’s decision and requested a written copy. The judge reasoned that “[i]t cannot reasonably be expected that [the plaintiffs] would continue to visit [t]own [h]all and inquire of [the building commissioner] as to the status of the decision.” The judge also noted that the appeal on May 3rd, “only constituted a modest deviation from the thirty-day requirement.”

In reviewing a matter wherein the trial judge was the finder of fact, “the findings of fact of the judge are accepted unless they are clearly erroneous .... We review the judge’s legal conclusions de novo.” T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010) (citations omitted). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 309 (1981), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). “Whether notice is adequate is a question of fact that depends on the particular circumstances . . . .” Connors v. Annino, 460 Mass. 790, 798 n.10 (2011).

In Connors, the Supreme Judicial Court considered whether an appeal from the grant of two building permits, thirty-five days after the permits were issued, was timely. In that case, the plaintiff neighbor was aware that the defendant had applied for the two building permits. Id. at 792. The building inspector ultimately issued the two building permits and the plaintiff received actual notice ten days after the permits were issued. Ibid. Thereafter, the plaintiff filed an appeal to the zoning board thirty-five days after the permits were issued. Id. at 792-793. Nevertheless, the Connors court held that the zoning board and the trial court lacked jurisdiction to hear the plaintiff’s appeal because his appeal was untimely. Id. at 799. Like the plaintiff [782]*782in Connors,

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Bluebook (online)
4 N.E.3d 309, 84 Mass. App. Ct. 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-matthias-v-zoning-board-of-appeals-massappct-2014.