Introduction and Procedural History
This appeal was initiated on March 26, 2008 pursuant to G.L. c. 40A, § 17, from a decision [Note 1] of the Chelmsford Zoning Board of Appeals (Board/ZBA). The Board had earlier upheld the denial by the Chelmsford Building Inspector (Building Inspector) of plaintiffs request for zoning enforcement against the Chelmsford Department of Public Works (DPW).
The DPW had sought and obtained a building permit allowing it to pour [a] concrete pad and install [an] emulsion tank. at 54 Richardson Road (locus), Chelmsford, Massachusetts. The North Chelmsford Water District (District/plaintiff) owns and operates public drinking water and supply wells abutting the locus directly to the east.
On July 25, 2008, the defendants [Note 2] filed a Motion for Summary Judgment (Motion), together with a supporting memorandum and affidavits. On September 19, 2008 Plaintiffs Memorandum in Opposition was filed. Defendants Motion for Summary Judgment was heard and taken under advisement on September 22, 2008.
It is the defendants primary contention that the District failed to comply with the thirty day appeal deadline as set forth in G. L. c. 40A, § 15. Consequently, they argue that the court is without jurisdiction to hear plaintiffs complaint. This court agrees.
In September of 2007, prior to the issuance of a building permit, the DPW erected and installed a concrete pad and emulsion tank at the locus. [Note 3] The locus is situated within a Public Zoning District as well as an Aquifer Overlay Protection District. [Note 4]
By letter dated October 2, 2007, Bruce H. Clark (Clark) wrote to the Chelmsford Building Inspector. [Note 5] In that letter, Clark argued that a building permit would be required for this type of structure to ensure compliance with building codes and zoning laws. Clark continued that a building permit would not be able to be issued as this use appears to be prohibited in the Aquifer Protection District, and the DPW was in violation of zoning. Referring to an increase in the already nonconforming storage of toxic and hazardous materials at the DPW, Mr. Clark asserted that a special permit from the planning board would be required for enlarging or altering the nonconforming storage use at this site. He concluded by requesting the issuance of a stop work order so that the tank could not be filled or [that the Inspector] order the removal of the storage structure.
Thereafter, the DPW applied for the requisite building permit, and on October 31, 2007 the permit was issued. In simple terms, the permit authorized the applicant TO PERFORM THE FOLLOWING WORK: POUR CONCRETE PAD & INSTALL EMULSION TANK.
On the following day, November 1, 2007, the building inspector sent a letter to plaintiffs chairman notifying him that:
A building permit was not [initially] taken out as the D.P.W. was not aware that a permit was necessary. A permit has since been issued to a licensed construction supervisor, to install the tank and pour the concrete pad .It is my determination that the D.P.W. was not in violation of the Aquifer Protection District. This is based on the fact that the D.P.W. has always stored emulsion in 5 gallon pails on the property. The only difference now is the manner in which it is stored, which is much safer. It is not increasing any non-conforming use.
On November 16, 2007, writing in his capacity as Chairman of the North Chelmsford Water District, Clark requested the Building Inspector to revoke the building permit for the construction of the Emulsified Asphalt storage tank at the D.P.W. facility . [Note 6] He argued that the relevant by-law required a special permit to alter or expand the storage of toxic or hazardous material. He argued too, that the by-law required a containment system for the above ground storage tank, that the construction does not appear to meet the manufacturers installation guidelines , and that the footing does not appear to meet the requirements of the State Building Code .
The Building Inspector responded by letter of November 30, 2007 in which he denied Clarks request for relief, stating inter alia that I will not revoke the building permit issued to erect the tank and construct the base.
On December 11, 2007, [Note 7] the plaintiff filed an Application for Administrative Appeal with the Board in which he claimed that the building permit for the storage tank had violated pertinent zoning by-laws. [The Building Inspectors] determination that [the pad and tank] comply with zoning in his letter dated November 30, 2007 is not correct in my opinion. The Board denied plaintiffs appeal and determined that the installation of the emulsion tank did not constitute an enlargement or alteration of the preexisting nonconforming use. [Note 8] On March 7, 2008 the Decision of the Board upholding the determination of the Building Inspector was filed with the Town Clerk.
Summary Judgment Standard
Summary Judgment is appropriate when pleadings, depositions, answers to interrogatories, and responses to requests for admission taken together with affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. c. Aerovox Inc., 424 Mass. 226 , 232 (1997). A corollary to the moving partys burden is that the court is to make all logically permissible inferences form the facts in the non-moving partys favor. Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).
Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts or only if a question of law is involved. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. The record before the court reflects no genuine factual dispute which would preclude a legal determination at this juncture. Consequently, the case is ripe for summary judgment.
By virtue of the instant Motion, the defendants argue that the plaintiff failed to timely appeal the issuance of the building permit to the DPW within the thirty day time limit afforded by G. L. c. 40A, § 15. The relevant law is rather straightforward. Pursuant to G. L. c. 40A, § 8:
An appeal to the permit granting authority [here the ZBA] may be taken by any person aggrieved by an order or decision [Note 9] of the inspector of buildings in violation of any provision of this chapter or any by-law adopted thereunder.
Pursuant to G.L. c. 40A, § 15:
[Any] appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the decision [of the building inspector] which is being appealed.
Unless an aggrieved party has adequate notice of the issuance of a building permit, an appeal within the statutorily allotted thirty day time period is unlikely. Consequently, a party lacking adequate notice regarding the issuance of a building permit, may under appropriate circumstances, seek to initiate an enforcement action under G.L. c. 40A § 7. The enforcement action provides an alternative means to stop allegedly unlawful construction . . . . Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748 , 751 (2002) citing Vokes v. Lovell, 18 Mass. App. Ct. 471 , 482 (1984). One who has received adequate notice however, is not afforded the unfettered option of proceeding pursuant either to G. L. c. 40A, § 7, or § 8.
[W]here the plaintiff had a fair opportunity to appeal from the issuance of the permit, she was not entitled to forgo that remedy [i.e. that afforded under G. L. c. 40A, §§ 8 & 15] in favor of a subsequent request for enforcement and appeal therefrom. Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 855 (2008).
This court finds that the recent Gallivan decision is dispositive of the issue at hand. The plaintiff in Gallivan owned property which abutted that of the individual defendants. On February 28, 2000, the plaintiff received notice that Richard Eyges and Colleen Eyges (defendants) had submitted an application for a building permit to the Wellesley Building Inspector (Inspector). Thereafter, on March 9, 2000, a building permit for the construction of a modular dwelling was issued by the Wellesley Inspector. Plaintiff did not appeal the issuance of the building permit by the April 8, 2000 deadline. Rather, on July 17, 2000, she wrote a letter to the Inspector pursuant to G. L. c. 40A, § 7 seeking enforcement of certain set-back provisions adopted by the Town Meeting on March 27, 2000. [Note 10] Her request was denied. Thereafter, on August 21, 2000, the plaintiff appealed the Inspectors denial to the Wellesley Board of Appeals; that appeal too, was soon denied. [Note 11] The plaintiff then sought judicial review pursuant to G. L. c. 40A, § 17. In upholding the Land Court dismissal for lack of jurisdiction, [Note 12] the Gallivan Court determined that a party with adequate notice [Note 13] of an order or decision that violates a zoning provision must appeal to the appropriate permit granting authority within the thirty day period allotted for such an appeal. Where adequate notice exists, such a person may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40A, § 7. Gallivan, 71 Mass. App. Ct. at 857.
Applying the principles enunciated in Gallivan to the case at bar, this court concludes that it lacks the requisite jurisdiction to proceed to the merits of the case. The plaintiff simply did not avail itself of the opportunity to appeal the issuance of the building permit for which clear notice had been provided by the Inspectors letter of November 1, 2007. [Note 14]
Citing Gallivan, plaintiff readily acknowledges that one with adequate notice [Note 15] of the issuance of a building permit which violates a zoning provision, is afforded thirty days in which to appeal to the appropriate permit-granting authority [Note 16] Citing Gallivan further, however, plaintiff argues that an appeal from a request for enforcement would still lie notwithstanding the issuance of a building permit, where the owner exceeds the scope of the permit. [Note 17] Consequently, plaintiff asserts that its letter of November 16, 2007 sought an enforcement action by the Inspector to address issues that exceeded the scope of the issued building permit.
It is noteworthy that nowhere in the November 16th letter [Note 18] to the Inspector does the plaintiff explicitly state that the DPW exceeded the scope of the building permit. Rather, plaintiff claims that the issuance of the building permit fails to comport with the requirements of the zoning by-law.
In its Opposition Memorandum, plaintiff contends that it was not simply challenging the issuance of the permit, but it was claiming that the [concrete] pad and emulsion tank, as built, exceeded the scope of the building permit . Where, as here, the Water District raised issues outside of the issued building permit, the only way to raise such issues is pursuant to a request to enforce. (emphasis added) [Note 19]
Plaintiffs use of the highlighted language mischaracterizes the phraseology used by the Gallivan Court to describe a situation which might warrant a request for enforcement. The Court spoke not of issues which might lie beyond the scope of the building permit, but rather of an owner whose actions might exceed the scope of the permit. The difference in meaning is by no means insubstantial. In any event, there has been no convincing demonstration that the DPW, by its actions, exceeded the scope of the building permit. It is well to recall in the regard, that the building permit issued after the completion of the work in question. It was issued presumably in contemplation of the construction that already existed on the ground. Under such circumstances, plaintiff would bear a heavy burden indeed to demonstrate that the owner exceed[ed] the scope of the permit. In any event, plaintiffs arguments in this connection have been at best conclusory, lacking analysis or support.
In sum, after being notified of the permits issuance by letter of November 1, 2007, the plaintiff had thirty days in which to lodge an appeal with the Board. Instead, plaintiff sought an enforcement action from which it appealed to the Board on or about December 11, 2007, following the Inspectors denial.
Because the plaintiff failed to properly challenge the issuance of the building permit within the time frame allotted by statute, this court is without the requisite jurisdiction to decide the merits of this case. [Note 20]
Accordingly, it is hereby
ORDERED that defendants Motion for Summary Judgment be, and hereby is, ALLOWED, and that the plaintiffs complaint be DISMISSED.
Judgment to enter accordingly.
By the Court (Grossman, J.)
[Note 1] Dated March 7, 2008.
[Note 2] Collectively, the DPW and the Board.
[Note 3] Affidavit of Building Inspector Anthony F. Zagzoug.
[Note 4] Plaintiffs Memorandum of a Law. ¶ 1
[Note 5] The letter was signed by Bruce H. Clark as Precinct 2 Town meeting member. By all appearances. He is the same Bruce H. Clark who chairs the North Chelmsford Water District.
[Note 6] See letter of November 16th to the Building Inspector. I am hereby requesting you revoke the building permit (#2007-696) for construction of the Emulsified Asphalt storage tank Plaintiff argued in that letter, that (a) the by-law prohibited an above ground storage tank that does not have a containment system, (b) [t]he construction does not appear to meet the manufacturers installation guidelines and (c) that [t]he footing does not appear to meet the State Building Code frost protection for structures over 10 feet in height.
[Note 7] Letters of December 7, 2007 and of December 10, 2007 from Clark to the Town Clerk and to the Board of Appeals respectively, had preceded the filing of the official Administrative Appeal form. The parties apparently differ therefore, as to the actual date on which the appeal was filed. The letter of December 7, 2007 begins, I am hereby appealing the determination of the Building Inspectors letter of November 30, 2007 In light of the courts determination in this matter, however, the precise filing date is not relevant.
[Note 8] Complaint, Exhibit A.
[Note 9] Including the issuance of a building permit.
[Note 10] In Gallivan, the inspector issued the building permit on March 9, 2000. However, on March 27, 2000, the Town Meeting had adopted an amendment to its bylaw altering the relevant set-back requirements. The effective date of the bylaw, while not particularly relevant in light of the Courts decision, is not clear.
[Note 11] The Board determined that construction of the modular dwelling had commenced offsite prior to publication of the proposed bylaw amendment.
[Note 12] The Land Court judge did not reach the merits of the plaintiffs proposition, and neither do we, because we agree with the judge that the board (and therefore the Land Court) were without jurisdiction to act on the plaintiffs appeal. Gallivan, at 853.
[Note 13] In Gallivan, the Court concluded that plaintiff became at least constructively aware of a potential zoning violation when she received notice of the application for a building permit, i.e. even though the permit did not contain specific measurements demonstrating a zoning violation. Under these circumstances, plaintiff had a duty to inquire, as, for example, by visiting the building department to secure additional information.
[Note 14] Supra, p. 3.
[Note 15] Plaintiff does not contest receipt of the notice of the issuance of the building permit.
[Note 16] Plaintiffs Memorandum in Opposition (Plaintiffs Memorandum), p. 4.
[Note 17] Id, pp. 4 & 5.
[Note 18] Supra, FN 10.
[Note 19] Plaintiffs Memorandum, p. 2.
[Note 20] Plaintiff argues that the DPW is foreclosed from raising the timeliness issue before the ZBA in connection with the Inspectors decision to deny enforcement action. Suffice it to say that the legal analysis provided on this point is unconvincing. Issues presented with regard to possible state building code violations are similarly unavailing.