DAVID LAPIDUS, trustee [Note 1], vs. BOARD OF APPEAL OF BOSTON & others [Note 2]

KANTROWITZ, J. Some twenty-three years after the city of Boston issued a permit for the use of certain premises as a restaurant with entertainment, the plaintiff [Note 3] requested that the

Page 724

commissioner of the inspectional services department (commissioner) investigate the use and revoke the permit if the premises were not properly zoned for such use. Given "the Legislature's desire for finality [in the appeals process]," Chiuccariello v. Building Commr of Boston, 29 Mass. App. Ct. 482 , 489 (1990), we conclude, in the facts and circumstances of this case, that the passage of twenty-three years precludes an appeal of the decision.

The underlying facts are not in dispute. On October 27, 1972, the city of Boston issued a permit allowing the property located on the comer of 835-843 Beacon Street and 4-12 Miner Street [Note 4] residential parcel), to be used as a restaurant with entertainment (premises). Two subsequent building permits were issued on February 12, 1975, and May 25, 1978, again recognizing the "legal occupancy or use" of the premises as a restaurant with entertainment.

In a letter dated October 23, 1995, addressed to the commissioner, the plaintiff "request[ed] that [the commissioner] examine the proposed reuse of the [p]remises to determine if it is forbidden by the Boston Zoning Code. If [commissioner] so conclude[d], [the plaintiff] request[ed] that [the commissioner] revoke the [c]ertificate of [o]ccupancy." The plaintiff claimed that the premises were in violation of the zoning code because there was no evidence that (1) a necessary variance had been obtained prior to the granting of the permit, and (2) the restaurant was a nonconforming use of the property.

On June 18, 1996, in response to the letter, a special assistant corporation counsel for the inspectional services department informed the plaintiff that an examination of the pertinent records showed that the use of the premises as a restaurant with entertainment had been legal since 1972 [Note 5].

Dissatisfied with this response, the plaintiff appealed to the

Page 725

board of appeal (board) pursuant to s. 8 of the Boston zoning enabling act [Note 6]. On January 7, 1997, the board issued its decision, ruling that the plaintiff had not made his complaint in a timely manner [Note 7]. The plaintiff appealed from the board's decision to the Superior Court, which ultimately granted summary judgment in favor of the defendants. The judge ruled that the letter from the special assistant corporation counsel was not a decision and thus was not appealable [Note 8].

On appeal to this court, the plaintiff argues that his letter of October 23, 1995, was a request for enforcement of the Boston zoning code and enabling act and for revocation of the permit for the premises. He maintains that the response from the special

Page 726

assistant corporation counsel denying the request was a decision and thus appealable.

Conversely, the defendants assert both that the letter was not a decision within the meaning of s. 8 of the Boston zoning enabling act and that, even if it were, the action was time barred, coming more than twenty years after the issuance of the building permit.

Regardless of the categorization of the response [Note 9], for the purposes of this case, the end result is the same. Assuming, without deciding, that the letter from the special assistant corporation counsel was a decision of the commissioner and thus appealable, given the lapse of time since the issuance of the original permit confirming the use, the action is time-barred.

The defendants correctly contend that the plaintiff is "essentially challenging the issuance of the use permit from a quarter century ago." If the Massachusetts Zoning Act, G. L. c. 40A, applied, the argument of the plaintiff, as conceded at oral argument, would be foreclosed. Under s. 7 of the Zoning Act, in situations where improvements have been made pursuant to a building permit, challenges to a use must be brought within six years of the issuance of the permit [Note 10].

The premises in question are, however, located in Boston. As such, the Boston zoning enabling act, St. 1956, c. 665, and amendments thereto, as opposed to G. L. c. 40A, controls. Emerson College v. Boston, 393 Mass. 303 (1984). Unlike G. L.

Page 727

c. 40A, the Boston enabling act does not contain a statute of repose.

"Although G. L. c. 40A does not govern the present matter, we nonetheless find it a helpful guide in defining the time within which an appeal may be brought and the relief which may be sought." Chiuccariello v. Building Commr of Boston, 29 Mass. App. Ct. at 488 (footnotes omitted). In Chiuccariello, abutters waited six months to contest the allowance of a variance. This court held that action time-barred despite the absence of a specifically applicable provision in the Boston zoning enabling act. In its analysis, the court cited and applied s. 17 of c. 40A, which mandated a ninety-day period within which to appeal. "General Laws c. 40A and St. 1956, c. 665, share common purposes and allow for the rendering of comparable decisions. . . . We view . . . G. L. c. 40A, s. 17, as an indication of the Legislature's desire for finality in the variance appeals process. We impute the same legislative concern and intention, that there be both a beginning and an end to this process, to the Boston enabling act." Id. at 488-489.

That same consideration exists in the case at bar. Because the complaint was filed in 1995, over two decades after the first permit was granted, we conclude that, in the circumstances of this case, the suit is time-barred. During that time, the conditions here complained of should have been obvious to the plaintiff, and no action by the defendants, or anyone else, barred or prevented the plaintiff from taking action at a far earlier date. See generally Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 , 409 (1962) (issue of nonconforming use not reached as nine- year interval had passed); Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205 , 219 (1982) ("The judge correctly held that even if this use of the space was illegal in 1961, under G. L. c. 40A, s. 7, the association's action to enjoin that use comes too late").

Judgment affirmed.