ROBERT E. CONNORS, JR. and FRANCES W. CONNORS as trustees of BOY HILL REALTY TRUST, and FRANCIS W. CONNORS as trustee of 85-87 OVERLAND ROAD REALTY TRUST v. BARBARA RANDO, BRUCE MORRIS, MARK A. HICKERNELL, EDWARD T. McCARTHY, JR. and GLENNA GELINEAU as members of the CITY OF WALTHAM ZONING BOARD OF APPEALS, and ANTHONY ANNINO, III as trustee of 88-91 OVERLAND ROAD REALTY TRUST

Introduction

On July 28, 2008, defendant Anthony Annino, III, as trustee of 88-91 Overland Road Realty Trust, filed an application for building permits to raze the existing two-family dwelling at 89-91 Overland Road in Waltham and construct a new and somewhat larger two-family house in its place. Plaintiffs Robert Connors, Jr. and Francis Connors, owners (through trusts) of the properties on either side of Mr. Annino’s, learned of this application on July 30, 2008 and, on August 20, wrote to the city’s building commissioner asking him to deny the permits. The commissioner disagreed with the Connors’ arguments and, on September 15, 2008, issued the requested permits to Mr. Annino. The Connors learned that the permits had issued on September 25 and, in addition, received a letter from the commissioner on October 1 explaining his reasons for doing so.

Despite all this, the Connors did not appeal Mr. Annino’s building permits to the defendant City of Waltham Zoning Board of Appeals within the thirty-day deadline set by G.L. 40A, §§ 8, 15 (i.e. on or before October 15). Instead, they delayed until October 20 before filing a petition to the board seeking the permits’ revocation. The board dismissed that petition as untimely, citing the statutory deadline. The Connors then filed this G.L. c. 40A, § 17 action to challenge that dismissal.

The defendants now move to dismiss the Connors’ case, contending it is barred because the Connors’ petition to the zoning board seeking revocation of the building permits was not timely filed, depriving both the board and this court of subject matter jurisdiction or, in the alternative, fails to state a claim. For the reasons set forth below, that motion is ALLOWED.

Facts

A motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) (lack of jurisdiction over the subject matter) “places the burden on the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 427 Mass. 505 , 516 n.13 (2002)). “Under this factual challenge to the jurisdiction, the plaintiff’s jurisdictional averments in the complaint are entitled to no presumptive weight and the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties.” Hiles, 437 Mass at 516 (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (internal quotations omitted). To the extent the defendants’ motion is based on the Connors’ “failure to state a claim upon which relief can be granted,” Mass. R. Civ. P. 12(b)(6), that motion has been converted to one for summary judgment by the parties’ submission of matters outside the pleadings. Mass. R. Civ. P. 12(c). The ultimate result is the same whichever rule applies since none of the material facts is in dispute. Those material facts are as follows: [Note 1]

Plaintiffs Robert Connors, Jr. and Francis Connors, as trustees of the Boy Hill Realty Trust, own the property at 95 Overland Road in Waltham. Francis Connors, as trustee of the Overland Realty Trust, owns the property at 85 Overland Road. The parcel between the two (89-91 Overland Road) is owned by defendant Anthony Annino III, as trustee of 89-91 Overland Road Realty Trust.

In September 2007, Mr. Annino met with the Connors at Robert Connors’ law office [Note 2] to discuss his plans to raze the existing two-family house at 89-91 Overland Road (a non-conforming structure) and replace it with a larger two-family house. The Connors informed Mr. Annino of their belief that the proposed expansion would violate the Waltham zoning code and, at the least, would require review and approval by the zoning board before it could proceed. At some point thereafter, they retained an engineer to prepare a plot plan showing the three properties with the intention of using it as part of their opposition at the hearing of any application Mr. Annino might make.

On April 23, 2008, Mr. Annino sent a letter to each of the plaintiffs by certified mail, return receipt requested, notifying them that the existing structure on his property would be razed and excavation would follow. Shortly thereafter (April 29), plaintiff Robert Connors, Jr. telephoned the Waltham building department and spoke with one of its zoning enforcement officers (Patrick Powell), arguing that Mr. Annino would not be able to build unless he complied with the Bransford and Bjorklund cases. [Note 3] On May 2, Mr. Connors followed up this call by meeting personally with the building commissioner (Ralph Gaudet) and the zoning enforcement officer (Mr. Powell), once again making the Bransford and Bjorklund arguments and giving them copies of those cases. Commissioner Gaudet responded that he would consult with the city’s law department, but that permits for that type of construction had been allowed in Waltham for over sixty years. Shortly thereafter (May 6), Commissioner Gaudet sent a letter to the city solicitor advising him of the situation.

Mr. Annino applied for building permits on July 28, 2008, including a proposed plot plan with that application. Robert Connors was at the building department on July 30 on an unrelated matter and learned of Mr. Annino’s application at that time. He wrote a four page, detailed letter to Commissioner Gaudet on August 20, attaching plot plans prepared by a professional engineer, asking that Mr. Annino’s building permit request be denied or, in the alternative, forwarded to the zoning board for a determination as to whether it would “increase the nonconforming nature of [the existing] structure” in violation of § 3.7225 of the zoning ordinance and G.L. c. 40A, §6. Verified Complaint, Ex. 1.

Commissioner Gaudet and the city’s legal department disagreed with the Connors’ arguments and, on September 15, two building permits were issued to the 89-91 Overland Road Realty Trust for the construction of a two-family dwelling to be known and numbered as 89 Overland Road, Unit 1 and 89 Overland Road, Unit 2. The Connors learned of this on September 25, 2008 when Robert Connors was at the building department, again on unrelated business. On September 26, Mr. Connors met with Commissioner Gaudet and zoning enforcement officer Powell concerning the issues raised in Connors’ August 20, 2008 letter. Commissioner Gaudet responded by letter dated September 29, stating:

We are in receipt of your correspondence dated August 20, 2008 challenging the issuance of a building permit to voluntarily demolish and erect a new house at the above noted address [89-91 Overland Road]. After review of your opinion, a permit to reconstruct was issued under the right of the so called “old lot” or “small lot” exceptions contained in the City of Waltham Zoning Code, Article 4, Section 4.2181. This department has consistently held the view, and the opinions of the Law Department have concurred, that properties that are deemed eligible under this ordinance may avail themselves of the rights to build.

Article 7, Section 7.31 of the Zoning Code allows a person aggrieved by a ruling of the Inspector of Buildings the right of appeal to the Zoning Board of Appeals as provided in the Zoning Code and in the General Laws.

Letter, Ralph E. Gaudet to Robert Connors, Jr. (Sept. 29, 2008). The Connors received this letter on October 1. Verified Complaint, Ex. 2 (receipt stamp).

Thirty days from September 15, 2008 (the date the building permits were issued) was October 15. On October 20, the Connors filed a petition with the Waltham Zoning Board of Appeals purporting to appeal the decision of the building commissioner to issue the building permits — thirty-five days after the permits were issued and twenty days after the Connors received Commissioner Gaudet’s response to their August 20, 2008 letter. The board dismissed their petition on January 27, 2009, ruling that the Connors had “failed to bring the appeal within the time frame required by statute and therefore the Board lacks jurisdiction to hear the petition.” Decision at 2 (Jan. 27, 2009). The Connors timely appealed that dismissal to this court.

Analysis

“[A] party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal. See G.L. c. 40A, §§ 8, 15. Where adequate notice of such order or decision 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 v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008). Here, the “order or decision” being challenged is the granting of the building permits to Mr. Annino to reconstruct an expanded two-family residence on his property. Those permits were issued on September 15, 2008. Thus, the deadline for filing a challenge with the zoning board of appeals was October 15 so long as the Connors had “adequate notice” of the permits’ issuance to do so. It is undisputed that they had that notice on September 25 when Robert Connors learned that the permits had issued while he was at the building department on unrelated business. The plaintiffs then had twenty more days to prepare and file a timely appeal — a more than adequate time to do so, particularly given the detailed prior knowledge they had of Mr. Annino’s building plans [Note 4] — and yet did not. Their failure to file an appeal on or before October 15 is thus fatal to their case and the zoning board quite properly dismissed it. Gallivan, 71 Mass. App. Ct. at 857, 859-60.

The Connors dispute this, contending that the focus should not be on the issuance of the permits themselves, but rather on the building commissioner’s September 29 response to their August 20 letter. It is that response, they say, that is the operative act from which a timely appeal should be dated. But this is clearly wrong and contrary to Gallivan. The Connors’ August 20 letter was nothing more than a continuation of their dialogue with the building commissioner on the zoning validity of Mr. Annino’s construction plans. It was not a “request for enforcement” because there was nothing to enforce at that time (the permits had not issued), and the commissioner’s September 29 response to that letter was thus not a denial of such a request with significance independent of the permits themselves. Even were it deemed an enforcement request and the commissioner’s letter a denial of enforcement, that would not override the thirty-day deadline to appeal from the permits themselves. As Gallivan makes clear, that thirty-day deadline controls so long as the party seeking to appeal the permits had “adequate notice” of the permits’ issuance before the thirty days expired. 71 Mass. App. Ct. at 857, 859-60. In that situation, there is no alternative right of challenge. Id. Here, unquestionably, the Connors had notice of the permits’ issuance twenty days before the statutory deadline expired. Moreover, and fatal to any claim they may have of prejudice or unfairness, they knew on October 1 (the day they received the commissioner’s September 29 letter) —fourteen days before the deadline expired and more than enough time to prepare and file an appeal — that the building commissioner, supported by the city’s legal department, would not change his mind and revoke the permits. Indeed, that very letter contained explicit notice of their need to make a formal appeal from the permits’ issuance in accordance with the statutory requirements. Verified Complaint, Ex. 2. Nor was there any ambiguity to the law. The Gallivan decision had issued in June 2008, over three months before the building permits were issued to Mr. Annino, and plaintiff Robert Connors, an attorney familiar with land use law (apparent from his citation and discussion of Bransford and Bjorklund in his August 20, 2008 letter to Commissioner Gaudet) either knew or should have known of Gallivan’s holding.

Conclusion

For the foregoing reasons, the defendants’ motion is ALLOWED and the Connors’ claims are dismissed in their entirety, with prejudice. Judgment shall enter accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 15 July 2010