MISC 08-380866

September 23, 2010


Grossman, J.



Plaintiff Marcel Masse, Trustee of 243 Glen Road Realty Trust, (Plaintiff/Masse) seeks to annul the action of the Weston Zoning Board of Appeals (Board/ZBA) which ordered the rescission of a building permit (Permit) issued to Masse by the local Building Inspector (Inspector). The Permit authorized the construction of a single-family dwelling on a 30,057 square foot lot located in the Town of Weston at 3 Glen House Road (Locus), formerly known as 243 Glen Road. Defendant Gary Lee (Defendant/Lee), a neighboring, though not abutting, property owner had requested enforcement by the Inspector against the Plaintiff. Specifically, he sought a cease and desist order and, inferentially, the rescission of the Building Permit owing to Plaintiff’s alleged violation of an underlying variance. The Inspector timely declined Lee’s request whereupon the Defendant purported to file an appeal with the ZBA. Thereafter, in the course of a hearing before the Board, Lee verbally raised a second issue, arguing that the variance had lapsed. Upon Lee’s appeal of the Inspector’s denial, the Board concurred that the variance had lapsed. As a consequence, the Board ordered the building permit rescinded, and that a cease and desist order issue.

As a consequence of the Defendant’s failure to meet the statutory jurisdictional requirements, primarily his failure to appeal the Inspector’s decision within the statutorily mandated 30 day time period, the Board lacked the requisite jurisdiction to entertain the purported appeal.


The Board granted the underlying variance on April 13, 2006 to Erica Powell, [Note 1] Plaintiff’s immediate predecessor in title. [Note 2] In 2003, after inheriting the property, Powell razed the existing dwelling due to its poor condition. Consisting now of a vacant lot, the Locus met all Bylaw requirements for the construction of a single-family dwelling, save for the minimum frontage requirement. For this reason, Powell sought and obtained a frontage variance from the Board. In granting the variance, the Board imposed several conditions, including a limitation of no more than 2,500 square feet of residential gross floor area (RGFA). Powell recorded the variance with the Middlesex South District Registry of Deeds [Note 3] on May 16, 2006.

On September 29, 2006, Powell conveyed the Locus to Masse for a stated consideration of $490,000. [Note 4] From the purchase date through the spring of 2007, Masse constructed a paved way to comply with the Inspector’s requests, had architectural plans developed, and sought approvals from various municipal departments in preparation for a building permit application.

The one year anniversary date for the variance passed on April 13, 2007. Two months later, on June 11, 2007, the Plaintiff filed a completed building permit application. The Inspector approved the application and issued a building permit on July 20, 2007. Shortly thereafter, the Plaintiff commenced construction of a single family dwelling at the Locus.

By letter dated December 4, 2007 and received on December 5, 2007, the defendant Lee submitted a zoning enforcement request to the Building Inspector, Courtney W. Atkinson, in which he asserted that the basement, as constructed, constituted a “story above grade” and should therefore be included in the calculation of the RGFA (Claim #1). The inclusion of such additional square footage would have rendered the RGFA in excess of the 2,500 square feet permitted by the variance.

Per Mr. Lee in his letter dated December 4, 2007:

[I]t is my belief that the house being built at 3 Glen Way [Note 5] (formerly 243 Glen Road when under the ownership of Erica Powell) is not in compliance with the variance issued by the Zoning Board of Appeals in April 2006. I therefore respectfully request that you take all actions necessary to have construction on the property cease and desist until such time as the matter can be resolved….

Thereafter, by written correspondence dated December 11, 2007, Inspector Atkinson commenced her response as follows:

Pursuant to your Cease and Desist Request for 3 Glen House Way, I must respectfully deny such action.

The Inspector concluded by observing that the basement did not constitute a “story above grade” under the Bylaw.

On January 11, 2008, the defendant filed his appeal with the Board, from the Inspector’s decision of December 11, 2007. The Board first entertained that appeal at a hearing on January 28, 2008. That hearing was subsequently continued to February 25, 2008.

By letter dated February 8, 2008, Lee sent the Inspector a second written enforcement request (Claim #2) asserting in relevant part, as follows:

It is my belief that the building permit issued to construct the house being built at 3 Glen Way…was issued in violation of the General Laws of Massachusetts, Chapter 40A, Section 10 that requires any variance to be exercised within one year of the date of grant. I therefore respectfully request that you take all actions necessary to have construction on the property cease and desist until such time as the matter can be resolved….

Unlike the earlier claim of December 4, 2007, this request challenged the continuing validity of the variance itself, alleging that it had lapsed prior to the issuance of the Permit. At the continued hearing on February 25, 2008, Lee verbally presented Claim #2 to the Board. [Note 6] The Board continued the hearing once again to March 31, 2008. [Note 7]

By letter dated February 26, 2008, the Inspector responded in relevant part, as follows:

I respectfully deny your enforcement request for 3 Glen House Way…. While it is a fact that the property owner was not issued a building permit within the one year period, in my opinion the variance did not lapse because it was exercised by the owner’s substantial efforts in taking the necessary steps to achieve the purpose of the variance….

The Inspector’s written response was dated one day following Lee’s presentation of Claim #2 to the Board.

On March 31, 2008, the Board conducted the last of three hearings on Lee’s appeal. On April 28, 2008, the Board issued its decision ordering the Inspector to rescind the Permit. Pursuant to the Board’s ruling, the Inspector, on May 2, 2008, issued a cease and desist order precluding further construction at the Locus.

The Plaintiff commenced the instant action on May 16, 2008, seeking review of the Board’s decision pursuant to G. L. c. 40A, §17. The Board filed an Answer on June 2, 2008. On March 2, 2009, the Board filed a Motion for Summary Judgment (Motion). The Plaintiff responded on March 27, 2009 with a Cross-Motion for Summary Judgment (Cross-Motion). This court held a hearing on the Motions on June 1, 2009, and took the matter under advisement upon receipt of the Board’s Supplemental Brief shortly thereafter.

In its Cross-Motion, the Plaintiff contends that the variance did not expire because it had been exercised, and that Lee failed to comply with the thirty day appeal deadline as set forth in G. L. c. 40A §15. He argues therefore that the Board was without jurisdiction to hear Lee’s appeal. This court is in agreement as to the jurisdictional issue. Consequently, it need not reach the secondary issue concerning the proper exercise of the variance.


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 party’s burden is that the court is to “make all logically permissible inferences” form the facts in the non-moving party’s 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.

Appeal Under G. L. c. 40A, §§ 8 and 15

The relevant law is rather straightforward. Pursuant to G. L. c. 40A, § 8, a person enjoys the right to appeal a zoning administrator’s decision, [Note 8] including that of a building inspector, [Note 9] to a local zoning board.

More precisely, § 8 provides in relevant part, as follows:

An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter [. . .] in violation of any provision of this chapter or any ordinance or 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 order or decision [of the building inspector] which is being appealed. The petitioner shall file a notice of appeal specifying the grounds thereof, with the city or town clerk, and a copy of said notice…, shall be filed forthwith by the petitioner with the officer or board whose order or decision is being appealed, and to the permit granting authority, specifying in the notice grounds for such appeal.

The first three clauses of §15 are mandatory rather than directory or permissive, Thus, (1) an appeal under § 8 to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed; (2) the petitioner shall file a notice of appeal specifying the grounds thereof (3) with the city or town clerk.

The 30-day filing period under § 15 commences with the date on which the zoning officer provides written notice of the decision. Vokes v. Avery M. Lovell, Inc., 18 Mass. App. Ct. at 476. Gallivan v. Zoning Bd of Appeals of Wellesley, 71 Mass. App. Ct. at 851.

In Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549 , 552 (1966), the Court spoke of an appeal to be filed with the town clerk “within thirty days from the date of the order or decision which is being appealed.” It set forth the governing principle, [Note 10] as follows:

When a remedy has been created by statute and the time within which it must be pursued is one of the prescribed conditions under which it can be availed of, the court has no jurisdiction to entertain proceedings for relief begun at a later time. (emphasis added)

Therefore, the right to appeal to the zoning board, and the board’s concomitant authority to hear that appeal, are contingent upon a timely filing within 30 days from the date of a written, adverse decision by the building inspector. See Carstensen v. Cambridge Zoning Bd. of Appeals, 11 Mass. App. Ct. 348 , 351 (1981). [Note 11]

Noncompliance with G. L. c. 40A, § 15

Simply stated, Lee’s appeal to the Board must fail as being untimely. The period for filing an appeal commences when the building inspector provides written notice of a decision. Vokes v. Avery M. Lovell Inc., 18 Mass. App. Ct. at 476. The appeal period concludes 30 days thereafter. Carstensen v. Cambridge Zoning Bd. of Appeals, 11 Mass. App. Ct. at 351. Here, Inspector Atkinson issued her initial decision on December 11, 2007. Lee filed his appeal January 11, 2008, 31 days thereafter. Under § 15, the Board had jurisdiction to hear this appeal only if filed on or before January 10, 2008, the 30th day from the Inspector’s written notice of decision. [Note 12]

The Board endeavored to combine Lee’s “petitions,” but to no avail. Lee’s untimely appeal of January 11, 2008 was, for all relevant purposes, a nullity, i.e. a nullity that could not be revived by combining it with a subsequent claim that was never itself the subject of an independent § 15 appeal. Claim #2, concerning the alleged lapse of the plaintiff’s variance, was not submitted in written form to the town clerk, but was rather broached verbally directly to the Board when Lee perceived that his hearing on Claim # 1 was not “going well.” [Note 13]

Even if one were prepared to assume, aguendo, that the Defendant’s action in verbally presenting Claim # 2 to the Board somehow constituted an “appeal,” the submission of an appeal to an entity other than that called for by statute, will not constitute an effective filing and could not suffice to confer jurisdiction on the Board. Greeley v. Zoning Bd of Appeals of Framingham, 350 Mass. at 552. See Racette v. Zoning Bd. of Appeals of Gardner, 27 Mass. App. Ct. 617 , 619 (1989) (Neither the city nor the petitioner may vary the statutory filing requirement.).

See also Pasqualino v. Bd. of Appeals of Wareham, 14 Mass. App. Ct. 989 , 990 (1982) where the Court observed as follows:

The plaintiffs cannot claim that the required notice was received by the town clerk within the required statutory period, because the only notice sent was addressed to the board. Manifestly, the purpose of the notice provision is not served within the time limited unless the notice is received within the time limited.

Here, Defendant Lee purported to appeal Claim #1 after the appeal period had expired. The Board sought to hear Claim #2 in the course of a proceeding that the Board was without jurisdiction to conduct in the first instance. Moreover, Claim #2 was never the subject of a properly executed § 15 appeal.


For the foregoing reasons, this Court is satisfied that the Board lacked the requisite jurisdiction to consider Lee’s appeal, or to consider either Claim advanced by the Defendant. [Note 14] Consequently, its decision must be annulled.

Accordingly, it is

ORDERED that the Plaintiff’s Motion for Summary Judgment be, and hereby is, ALLOWED as specified herein.

ORDERED that Defendants’ Motion for Summary Judgment be, and hereby is, DENIED.

ORDERED that the decision of the Weston Zoning Board of Appeals rescinding the Plaintiff’s Building Permit, is hereby ANNULLED. The underlying Building Permit is hereby reinstated and shall remain in full force and effect.

Judgment to enter accordingly.


By the Court (Grossman, J.)


[Note 1] Powell’s father had acquired the Locus in 1957.

[Note 2] Appendix to Defendant Town of Weston Zoning Board of Appeals’ Statement of Material Facts (Def. App.), 2-7.

[Note 3] At Book 47457, Page 252. In its brief, the Board erroneously identifies the book of recording as 4457. See Zoning Board of Appeals’ Memorandum of Fact and Law in Support of Its Motion for Summary Judgment (Def. Brief), ¶ II(4).

[Note 4] The quitclaim deed was recorded with the Middlesex South District Registry of Deeds at Book 48256, Page 40.

[Note 5] (Sic)

[Note 6] “At the February 25, 2008 continued hearing on Lee’s initial enforcement request, Lee argued that, in addition to violating the limiting RGFA condition, the frontage variance for the Property had not been exercised within one year of its grant….” Defendant Board of Appeals Statement of Material Facts (Board’s Statement), ¶ 21.

[Note 7] “In order to consider the additional issue of whether the variance had lapsed, the board set a continuation for the hearing to March 31, 2008 to provide public notice and to combine Mr. Lee’s two petitions.” Board of Appeals Decision (Decision) for February 25, 2008. See also Decision for March 31, 2008.

[Note 8] See G.L. c. 40A, § 7. In the event the building inspector declines to act on a request for enforcement, “he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefore, within fourteen days of receipt of such request.”

[Note 9] See G. L. c. 40A, § 13.

[Note 10] See Del Grosso v. Revere, 330 Mass. 29 , 32 (1953).

[Note 11] The appeal in Carstensen was found to be timely due to the intervention of a state of emergency caused by the Blizzard of ’78, making strict compliance with the requirements of G. L. c. 40A, § 15 impractical. 11 Mass. App. Ct. at 351.

[Note 12] Aside from the procedural failings associated with Lee’s appeal, his argument that the variance had lapsed, would not likely prove successful. Lee’s argument that the variance had lapsed due to non-exercise within a year, is unpersuasive. The Supreme Judicial Court has reasoned that a party must record its variance and obtain a building permit or convey a lot in reliance on the variance within a year in order to “exercise” it within the meaning of G. L. c. 40A, § 10. Cornell v. Board of Appeals of Dracut, 453 Mass. 888 , 892 (2009). In Cornell, the variance holder failed to “undertake any action on the lot necessitating the variance” within a year by not obtaining a building permit or making a conveyance. Id. Unlike the Cornell plaintiff, Masse’s predecessor in title, Powell, did make a conveyance in reliance on the variance. The variance was obtained by Powell on April 13, 2006, recorded by Powell on May 16, 2006, and conveyed by Powell to Masse on September 26, 2006. Those actions, completed within a year, likely constitute an exercise of the variance within the meaning of G. L. c. 40A, § 10.

[Note 13] At the second hearing Lee first introduced the issue of a lapsed variance to the Board. Conceding that the hearing concerning compliance with a condition of the variance “was not going well,” he presented an alternate legal theory in an effort to obtain a cease and desist order. See Hearing on Summary Judgment of 6.1.09. The Board agreed to consider the additional issue or claim in a subsequent hearing the following month. On this basis, the Board later granted the cease and desist order predicated upon what it perceived as a lapsed variance. In rendering its decision to rescind the building permit, the Board stated in relevant part, as follows:

[T]he issue regarding whether the subject buildings exceed the RGFA limit imposed as condition of the April 13, 2006 variance is a moot issue, because the variance has expired. The Building Inspector is required to issue a cease and desist order for the property… based on the lapse of the April 13, 2006 variance.

[Note 14] Greeley, 350 Mass. at 552; DiGiovanni, 19 Mass. App. Ct. at 344; Carstensen, 11 Mass. App. Ct at 351.