MISC 376194

November 19, 2008


Long, J.



This case is a G.L. c. 40A, § 17 appeal from a decision by defendant Weston Zoning Board of Appeals (“the board”) denying as untimely plaintiff Eugene Reznik’s appeal of the Weston building inspector’s refusal of his request to enforce the Town of Weston’s Zoning By-law §§ V.B.1.a and V.B.2.d (the “Bylaw”) concerning the residential gross floor area of defendants MJN Construction LLC’s and Jonathan White’s (as trustee of the 144 Beaver Road Trust) (collectively, “MJN”) recently constructed house at 144 Beaver Road. [Note 1] All parties have cross-moved for a judgment on the pleadings. The essential facts are undisputed. For the reasons discussed below, the board’s decision is AFFIRMED and the plaintiff’s claims are DISMISSED in their entirety, with prejudice. [Note 2]

Standard of Review

Motions for judgment on the pleadings are governed by Mass. R. Civ. P. 12(c), which provides the following:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

“Rule 12(c) functions as a ‘motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.’” Boston Water & Sewer Comm’n v. Commonwealth, 64 Mass. App. Ct. 611 , 614 (2005) (quoting Ritchie v. Dept. of State Police, 60 Mass. App. Ct., 655, 659 (2004)) (alterations in original, internal citations omitted). Thus, the same standard of review that applies to Mass. R. Civ. P. 12(b)(6) applies to Rule 12(c). Id.

Accordingly, in reviewing the parties’ cross-motions for judgment on the pleadings, I am required to accept as true any well-pleaded factual allegations in the complaint and any inferences favorable to the plaintiff that can reasonably be drawn from those allegations. Fairneny v. Savogran Co., 422 Mass. 469 , 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass. 426 , 429 (1991). Characterizations and conclusions of law, however, warrant no such consideration and may be disregarded. See, e.g., Schaer v. Brandeis Univ., 432 Mass. 474 , 477-478 (2000); Boston & Maine R.R. Co. v. County Com’rs of Middlesex County, 239 Mass. 127 , 131 (1921). I may also consider matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint. Schaer, 432 Mass. at 477-78; see also Jarosz v. Palmer, 436 Mass. 526 , 529-30 (2002); Jackson v. Longcope, 394 Mass. 577 , 580 n.2 (1985). Moreover, the evaluation properly can include the entirety of the documents integral to, referenced in, or explicitly relied upon in the complaint, even though not attached to the complaint. See, e.g., Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004) (“[w]here, as here, the plaintiff had notice of . . . documents and relied on them in framing the complaint, the attachment of such documents to a motion to dismiss does not convert the motion to one for summary judgment”); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1220 (1st Cir. 1996); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n.3 (1st Cir. 1991). Where those documents differ from the plaintiff’s allegations, the documents control. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 647-48 (2002). Lastly, I may consider stipulations of counsel. See Rutland v. Fife, 11 Mass. App. Ct. 341 , 345 (1981), rev’d on other grounds, 385 Mass. 1010 (1982).


Bylaw § V.B.1.a provides that, in single-family residential districts, single-family dwellings are by-right uses so long as “[t]he Residential Gross Floor Area (‘RGFA’) of any new or replacement single-family dwelling use constructed pursuant to a building permit issued on or after October 29, 1998, [does] not exceed the greater of 3,500 s.f. or 10% of the lot area up to a maximum of 6,000 s.f.” Bylaw § V.B.2.d provides that a “[n]ew or replacement single-family dwelling, . . . which is constructed pursuant to a building permit issued on or after October 29, 1998 and which exceeds the RGFA limit provided in Section V.B.1.a” is a by-right use allowed with site plan approval (emphasis added)

MJN constructed a large, single-family residence at 144 Beaver Road in Weston. It neither sought nor obtained site plan approval for that house. Mr. Reznik and his wife, whose home at 158 Beaver Road directly abuts MJN’s property, contend that MJN’s residence exceeds 6,000 square feet and sought zoning enforcement against it. The question presented by this case is whether their appeal to the board from the building inspector’s denial of such enforcement was timely.

A certificate of occupancy was issued for MJN’s residence on September 7, 2007 based on the building inspector’s finding that it “ha[d] been erected in accordance with the Building Code as it applies to buildings in Residence A District.” Certificate of Occupancy No. 1943 (Sept. 7, 2007) (Complaint, Ex. 4). On September 10, 2007, updated information was faxed to the building inspector by MJN’s architect, who calculated the RGFA of the residence as 5,991 square feet. Fax from Ed Danielson to Courtney Atkinson, Building Inspector (Sept. 10, 2007) (Complaint, Ex. 5). Mr. Reznik reviewed these calculations and, on September 26, 2007, e-mailed Ann Swaine, the building inspector’s office administrator, stating his belief that those calculations “contain[ed] omissions as well as simple arithmetic errors” and understated the RGFA by about 450 square feet. E-mail from Eugene Reznik to Ann Swaine (Sept. 26, 2007) (Complaint, Ex. 6). Ms. Swaine responded that she would “forward[] this email to Courtney [Atkinson (the building inspector)].” E-mail from Ann Swaine to Eugene Reznik (Sept. 27, 2007) (Complaint, Ex. 6). The building inspector apparently contacted MJN’s architect who, by letter dated September 28, 2008, stated that he “ha[d] remeasured the entire house to confirm the RGFA Calculations” and, “as calculated to comply with the RGFA definition under the Weston Zoning bylaws,” the total was 5,959 square feet. Letter from Edmond J. Danielson to Courtney Atkinson, Building Inspector (Sept. 28, 2007) (Complaint, Ex. 7). In response, Mr. Reznik wrote to the building inspector on October 5, 2007, (1) noting discrepancies amongst the past square footage calculations; (2) highlighting an arithmetic error by the architect; (3) pointing out an allegedly omitted area occupied by a whirlpool tub, which Mr. Reznik contended should have been included in the square footage calculation; (4) referencing a “computer-calculated” RGFA value, claimed to be based on “computer-generated drawings” that were based on preliminary (not “as built”) plans, showing the building “exceeds the 6,000 limit by approximately 371 square feet”; and (5) contending that the actual “as built” structure was approximately six inches deeper and an unspecified distance wider than shown on the preliminary plans. Letter from Eugene Reznik to Courtney Atkinson, Building Inspector (Oct. 5, 2007) (Complaint, Ex. 8). Mr. Reznik’s letter concluded, “[t]herefore, even when corrected for arithmetic errors and for omissions the proposed RGFA understates the actual RGFA of the Building.” Id. Mr. Reznik’s therefore requested the building inspector to, “once again[,] . . . enforce the Zoning Bylaw with respect to the RGFA limit violation which currently exists at 144 Beaver Road.” Id.

On October 12, 2007, in accordance with G.L. c. 40A, § 7, [Note 3] the building inspector wrote to Mr. Reznik as follows:

I most respectfully deny your REGA [sic: RGFA] enforcement request of 144 Beaver Road based upon the mandates of the Weston Planning Board. The RGFA presentation must be calculated by a Registered Architect or Engineer; therefore, your calculations must be submitted to this office by said professionals.

Letter from Courtney Atkinson, Building Inspector, to Eugene Reznik (Oct. 12, 2007) (Complaint, Ex. 9). G.L. c. 40A, § 8 grants a right of appeal from such a denial to “the permit granting authority as the zoning ordinance or by-law may provide,” which, in Weston, is the zoning board of appeals. G.L. c. 40A, § 15 requires that any such appeal “be taken within thirty days from the date of the order or decision which is being appealed.” Mr. Reznik did not do so. Instead, on October 18, 2007, he again wrote to the building inspector, contending that MJN’s architect’s “revised calculations acknowledge that the RGFA exceeds 6,000 square feet” [Note 4] and, on that basis, requested the building inspector to “enforce the Bylaw and revoke the Occupancy Permit which has been issued based on incorrect information.” Letter from Eugene Reznik to Courtney Atkinson, Building Inspector (Oct. 18, 2007) (Complaint, Ex. 11). So far as the record shows, Mr. Atkinson did not respond to this letter.

On December 4, 2007, Mr. Reznik wrote a third time to the building inspector. Letter from Eugene Reznik to Courtney Atkinson (Dec. 4, 2007) (Complaint, Ex. 13). The letter enclosed RGFA calculations performed by a registered architect retained by Mr. Reznik, apparently based on an analysis of the October 26, 2007 submission by MJN (Complaint, Ex. 12). [Note 5] Mr. Reznik alleged that his architect found numerous errors in that MJN submission and, based on “corrections” to those errors, his architect concluded that MJN’s residence contained at least 7,100 square feet. Id. Mr. Reznik’s letter ended with another request for zoning enforcement and revocation of the building permit. Id. The building inspector responded ten days later:

Relative to your Cease and Desist enforcement request of December 4, 2007, I must point out that I have already denied your request by correspondence dated October 12, 2007 (copy enclosed).

Letter from Courtney W. Atkinson to Eugene Reznik (Dec. 14, 2007) (Complaint, Ex. 14). Mr. Reznik then filed an appeal to the board (citing G.L. c. 40A, §§ 8, 15 and Bylaw § IX.A.4 [Note 6]), making clear that his appeal was from the building inspector’s December 14, 2007 decision:

Appeal by Eugene Reznik (Jan. 11, 2008) (Complaint, Ex. 15) (emphasis in original).

By decision filed with the town clerk on March 10, 2008, the board unanimously denied Mr. Reznik’s appeal, making the following findings and observations:

The Board found that on October 12, 2007 the Building Inspector denied Mr. Reznik’s RGFA enforcement request. The Building Inspector stated in his October 12 letter to Mr. Reznik that the denial was issued because Mr. Reznik’s request was not supported by RGFA calculations of a Registered Architect or Engineer.

On December 4, 2007 Mr. Reznik submitted RGFA calculations by Mr. Massarsky, a Registered Architect and requested the Building Inspector to revoke the Occupancy Permit for the subject property. On December 14, 2007 the Building Inspector responded to Mr. Reznik’s December 4 submission, writing that he (the Building Inspector) had previously, on October 12, 2007, denied Mr. Reznik’s request. The subject of this hearing was Mr. Reznik’s appeal of the Building Inspector’s action of December 14.

While the Board was sympathetic to Mr. Reznik’s feelings of frustration, the Board found that Mr. Reznik did not appeal the Building Inspector’s initial denial, dated October 12, 2007, within the required 30-day period. Mr. Reznik’s letter of December 4, 2007 dealt with the same subject matter (RGFA) as the Building Inspector’s denial of October 12, 2007. However, that December 4 letter technically was not an appeal of the October 12 denial because it was addressed to the Building Inspector and not to this Board. Even more significant, that December 4 letter was written more than 30 days after the Building Inspector’s October 12 denial. If Mr. Reznik wished to contest the Building Inspector’s action based on the RGFA of the subject dwelling, he should have filed with this Board by November 11, 2007 a petition to appeal the Building Inspector’s October 12 denial. Mr. Reznik’s December 4 letter did not require the Building Inspector to reconsider his October 12 action because Mr. Reznik’s December 4 letter did not fall within any proper legal procedure.

Following due and open deliberations, the Board, by unanimous vote, upheld the Building Inspector, and denied the present appeal because the statute of limitations had run.

Weston Zoning Board of Appeals Decision (Mar. 10, 2008) (Complaint, Ex. 16) at 3-4 (emphasis added).


The issue presented by this appeal is simple and straightforward. Was the building inspector’s October 12, 2007 letter a denial of Mr. Reznik’s zoning enforcement request, from which Mr. Reznik was required to timely appeal or forever be precluded from future requests based on the same alleged violation? The answer, as a matter both of statutory construction and the policy that statute reflects, is yes.

Mr. Reznik contends that the October 12th letter was not a denial requiring an appeal, but rather, fairly read, a request for further information before a ruling on its merits could be given. This ignores the plain language of the letter, which states, “I most respectfully deny your [RGFA] enforcement request of 144 Beaver Road based upon the mandates of the Weston Planning Board.” Letter from Courtney Atkinson, Building Inspector, to Eugene Reznik (Oct. 12, 2007) (Complaint, Ex. 9) (emphasis added). True, the letter went on to give a reason for that denial (“The RGFA presentation must be calculated by a Registered Architect or Engineer; therefore, your calculations must be submitted to this office by said professionals.” Id.), but it was a denial nonetheless. It was not a deferral of a denial pending receipt of further information, nor can it reasonably be construed as an invitation for that information with an implicit promise of reconsideration if that information so warranted. It was a denial, pure and simple, because Mr. Reznik’s request had not been made with the proper support.

Under G.L. c. 40A, § 15, Mr. Reznik then had only two alternatives. One, he could appeal that denial to the board within thirty days, arguing that an architect’s calculations should not have been required for a valid RGFA enforcement request (there is nothing in G.L. c. 40A or the Bylaw that requires them) or, once before the board, submitting such calculations and showing how they supported his request, leaving it to the board to decide if the building inspector had acted properly. Two, if he did not file a timely appeal, he would be bound by the building inspector’s decision and could not later challenge the RGFA calculation unless there was a physical change to the structure. As the board noted in its decision, the course of action Mr. Reznik chose — to write again to the building inspector on October 18th with a new argument [Note 7] and then, after receiving no response to that letter, write again to the building inspector on December 4th with an architect’s calculations — did not toll the thirty-day appeal period. Furthermore, because those submissions were made to the building inspector and not the board, they were not an effective appeal. Having failed to appeal the building inspector’s October 4th denial within thirty days, Mr. Reznik is precluded by G.L. c. 40A, § 15 from seeking enforcement action based on RGFA absent a physical change to the structure in dispute.

This may seem harsh, but it is not. Building inspectors’ offices and zoning boards of appeal are busy places with much to do. As the statute recognizes, they should not be forced to deal with seriatim submissions on the same subject matter, which simply add new arguments or information. A person making an enforcement request should be, and is, required to make only one such request for an alleged violation. [Note 8] If that request is denied on improper or inadequate grounds, an appeal can be made to the municipal board designated for such appeals, so long as it is timely. Just as importantly, the owner whose structure is being challenged should not be forced to deal with seriatim submissions and has a right, recognized and protected by the timeliness requirements of G.L. c. 40A, § 15, to know and rely upon an end point.


For the foregoing reasons, the plaintiff’s appeal from the March 10, 2008 decision of the Weston Zoning Board of Appeals is DISMISSED in its entirety, with prejudice, and the board’s decision is AFFIRMED. Judgment shall enter accordingly.


By the court (Long, J.)


[Note 1] The trust is the owner of the property. MJN Construction LLC, as agent for the trust, was the building permit applicant.

[Note 2] As previously ruled at the August 19, 2008 hearing on the motion, I STRIKE MJN’s arguments that Bylaw §§ V.B.1.a and V.B.2.d are invalid. The Town of Weston is a necessary party for the adjudication of such claims and it has not been joined in this action. G.L. c. 231A, § 8. Moreover, in light of this decision (which dismisses the plaintiff’s complaint on other grounds), the point is moot.

MJN also moved for leave to supplement the record with a motion and supporting materials it filed in White v. Reznik, Misc. Case No. 381210 (KCL). Motion of Jonathan A. White, Trustee and MJN Construction LLC for Leave to Supplement Record on their Motion for Judgment on the Pleadings and Motion for Summary Reinstatement of Building Permit, Other Sanctions and Relief (Sept. 5, 2008). As discussed below, these materials are beyond the scope of those that properly may be considered under Rule 12(c). In light my decision on the Rule 12(c) motions, which neither considers nor relies upon any materials beyond those properly within Rule 12(c), the motion for supplementation is moot and thus DENIED.

[Note 3] G.L. c. 40A, § 7 requires “the officer or board charged with enforcement of zoning ordinances or bylaws” to notify persons who make written requests for zoning enforcement of their decision not to take enforcement action no later than fourteen days after receipt of that request.

[Note 4] It is unclear which calculations Mr. Reznik was referencing. As indicated in Mr. Reznik’s October 15, 2007 letter, the three calculations of RGFA were all less than 6,000 square feet. Complaint, Ex. 8. In addition, MJN had a second architectural firm (Meridian Associates, Inc.) calculate the RGFA, which determined it to be 5,992 square feet. This calculation, along with its backup calculation sheets, was forwarded to the building inspector on October 26, 2007. Letter from Meridian Associates, Inc. to Courtney Atkinson, Building Inspector (Oct. 26, 2007) (Complaint, Ex. 12). Mr. Reznik may be referring to Mr. Danielson’s October 15, 2007 letter to the building inspector, which identifies the square footage for the fireplace/chimney and the front and rear stairs as totaling 208 square feet and identifies the rear bedroom over the kitchen as totaling 240 square feet. Letter from Edmond J. Danielson to Courtney Atkinson, Building Inspector (Oct. 15, 2007) (Complaint, Ex. 10). It further states that “[r]emoving the ceiling to said bedroom is our solution to this issue.” Id. Whether or not these RGFA calculations, if reviewed on their merits, are accurate or not is immaterial to my disposition of this case, which dismisses the plaintiffs’ claims (right or wrong) based on his failure to timely appeal the building inspector’s denial of his request for zoning enforcement pursuant to G.L. c. 40A, § 15.

[Note 5] The architect’s RGFA calculations, however, were not attached as part of exhibit 13.

[Note 6] Bylaw § IX.A.4 provides,

An appeal to the Zoning Board of Appeals taken by any person (as above defined) aggrieved by reason of his inability to obtain a Permit or obtain enforcement from the Inspector of Buildings or any administrative official under the provisions of the Zoning By-Law or applicable statutes, shall be taken within thirty days from the date of the order or decision appealed from, by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk.

[Note 7] Letter from Eugene Reznik to Courtney Atkinson (Oct. 18, 2007) (Complaint, Ex. 11).

[Note 8] Since the plaintiff’s zoning violation claim had only a single basis (RGFA in excess of 6,000 square feet), I need not and do not decide if a person is required to raise all zoning violations he knows, or reasonably should know, at the same time in the same enforcement request. See Heacock v. Heacock, 402 Mass. 21 , 23-24 (1988) (discussing principles of claim preclusion, and their bar of “further litigation of all matters that were or should have been adjudicated in the action.”).