STEPHEN D. PEABODY vs. EVELYN NOYES, HOWARD TRAISTER, RICHARD SALMONSON and ROBERT WATTS, as they are members of THE ZONING BOARD OF APPEALS OF THE TOWN OF NEWBURY, THE TOWN OF NEWBURY, NEWBURY BUILDING INSPECTOR SAM JOSLIN, DANIEL VAROSKI, and MARY ANN VAROSKI

Plaintiff Stephen D. Peabody filed his unverified complaint on March 24, 2009, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Newbury Zoning Board of Appeals (the “ZBA”) that upheld Defendant Newbury Building Inspector’s (the “Building Inspector”) denial of Plaintiff’s application to enforce a zoning enforcement letter relating to property owned by Defendant Daniel Varoski, individually and as Trustee of the Varoski Family Realty Trust. [Note 1] A case management conference was held on June 15, 2009.

Plaintiff filed his Motion for Summary Judgment on October 21, 2009, together with supporting memorandum, Statement of Undisputed Material Facts, Appendix, and Affidavits of Stephen D. Peabody and Julie Pruitt Barry, Esq. On November 23, 2009, the Varoskis filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Facts, Appendix, and Affidavits of Mary Ann Varoski and Michael P. McCarron, Esq. Defendants Town of Newbury, the ZBA and the Building Inspector (“Municipal Defendants”) (together with the Varoskis, “Defendants”) filed their Opposition to Plaintiff’s Motion for Summary Judgment on December 4, 2009, together with supporting memorandum. Plaintiff filed his Reply on December 11, 2009, together with Supplemental Affidavit of Stephen D. Peabody, Supplemental Appendix, and Motion to Strike Portions of Affidavit of Mary Ann Varoski. A hearing was held on all motions on April 5, 2010, and all motions were taken under advisement.

I find that the following material facts are not in dispute:

1. The Varoskis purchased property located at 12 51st Street, Newbury, Massachusetts (“Defendant Property”) by deed dated December 22, 1972, and recorded with the Essex South District Registry of Deeds (the “Registry”) in Book 5941, Page 174.

2. By application dated January 6, 1988, Dan Varoski applied for a building permit for a “small deck on second story & [4' x 4'] small playhouse for children” to be built on Defendant Property. The sketch attached to the application shows the playhouse to be three feet from a side lot line. [Note 2] The application was approved on January 21, 1988 (the “1988 Building Permit”). [Note 3]

3. By letter dated January 29, 1988, David Caldwell (then Building Inspector) notified John Vozzella (“Vozzella”), owner of property located at 14 51st Street, Newbury, Massachusetts (“Plaintiff Property”), that the Varoskis had applied for and received a “building permit for a small children’s playhouse and small wood frame deck on the second floor of their [home].”

4. On March 21, 1994, Charles Powers (then Building Inspector) issued a building permit number 132-94 (the “1994 Building Permit”) to Mary Ann Varoski to “replace deteriorated 7' x 18' building” on Defendant Property. The sketch attached to the application did not indicate anything about the structure. The Varoskis built a shed (the “Shed”) in reliance on the 1994 Building Permit. [Note 4]

5. By letters dated January 2, 1995 (citing lack of hearing notice), and August 24, 1995 (citing violation of side yard setback), representatives of Vozzella filed a complaint with the Building Inspector that the Shed violated the Newbury Zoning Bylaw (the “Bylaw”).

6. By letter dated September 25, 1995 (the “1995 Order”), the Building Inspector directed Daniel Varoski “to relocate the [Shed] so that it complies with the ten (10) foot side lot line set back distance or proceed with a plan for a variance.” The 1995 Order was not appealed to the ZBA pursuant to G. L. c. 40A, § 7, and the Varoskis did not move the Shed or seek a variance.

7. By application to the ZBA dated December 12, 1995 (the “Vozzella Appeal”), Vozzella sought to enforce the Bylaw against the Varoskis relative to the Shed. The minutes of a ZBA meeting dated February 14, 1996, indicated that Vozzella and the Varoskis talked about whether a continuance of the Vozzella Appeal hearing would be necessary. [Note 5] The summary judgment record does not indicate whether the ZBA ever acted on the Vozzella Appeal nor does it indicate that Vozzella followed the proper procedure for constructive approval.

8. Plaintiff purchased Plaintiff Property from Vozzella on August 12, 1997.

9. In response to a complaint filed with the Building Inspector by Plaintiff on May 21, 2008, the Building Inspector (Sam Joslin), by letter to Plaintiff dated August 26, 2008 (the “2008 Opinion”), stated that “it is the Town’s opinion the statute of limitations has passed on the shed in question.” [Note 6]

10. By application to the ZBA dated September 25, 2008, Plaintiff sought to appeal the 2008 Opinion and enforce the 1995 Order. [Note 7]

11. On November 17, 2008, Plaintiff emailed the ZBA to request that the scheduled hearing date of December 4, 2008 be postponed because Plaintiff had requested the Building Inspector to review the case and had yet to receive a response from the Building Inspector. [Note 8] On February 3, 2009, Plaintiff emailed the ZBA to request a hearing date because the ZBA had not responded to his earlier email. The hearing was held on March 5, 2009.

12. By decision filed with the Newbury Town Clerk on March 17, 2009 (the “ZBA Decision”), the ZBA “voted unanimously . . . to DENY [Plaintiff’s] petition and to uphold the decision of the Building Inspector that the statute of limitations had passed on the shed in question.”

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A. Jurisdiction.

The Varoskis argue that Vozzella knew by at least January 2, 1995 that the 1994 Building Permit had been issued, yet filed his appeal with the ZBA almost one year after such knowledge (and 1 3/4 years after the issuance of such permit). The Varoskis argue that this court lacks jurisdiction because Vozzella violated the policy outlined in Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), that a failure to act promptly regarding zoning enforcement forecloses the right to bring actions pursuant to the Zoning Act. If Gallivan were interpreted as such it would render the statute of limitations outlined in G. L. c. 40A, § 7 meaningless. Rather, Gallivan requires that parties “armed with knowledge of a zoning violation” bring actions promptly instead of waiting as long as six years. Id. at 857-58 (emphasis supplied). The summary judgment record does not indicate that Vozzella knew of the violation when the 1994 Building Permit issued. Furthermore, Vozzella sent two letters to the Building Inspector in 1995 and filed his appeal only two months after the 1995 Order. Therefore, Vozzella did not fail to act promptly after learning of the 1994 Building Permit.

The Varoskis argue that this court lacks jurisdiction because the subject matter of this case is the same as that of the Vozzella Appeal. The summary judgment record, however, indicates that the ZBA never acted on the Vozzella Appeal and, thus, never reached a decision. Therefore, the subject matter has not previously been litigated.

The Varoskis argue that this case must be dismissed because the ZBA failed to act within 100 days as required by G. L. c. 40A, § 15. [Note 9] Although more than 100 days passed from the date of Plaintiff’s application to the date of the ZBA Decision, the statute states only that in such a case, applicants may follow procedures for constructive approval; the statute does not require actions to be dismissed for failure to act within 100 days. Plaintiff did not follow the statutory requirements to seek constructive approval. [Note 10]

The Varoskis also argue that this court lacks jurisdiction because Plaintiff has in effect brought a mandamus action and failed to act with sufficient promptness. The Varoski’s characterization of this case as a mandamus action appears incorrect. Mandamus actions are a form of extraordinary relief granted “only to prevent a failure of justice in instances where there is no alternative remedy.” Callahan v. Superior Court, 410 Mass. 1001 , 1001 (1991). In other words, a mandamus action is “to be used only as a last resort, when nothing else would work.” Doe v. District Attorney of Plymouth Dist., 29 Mass. App. Ct. 671 , 674 (1991). This case does not appear to be a mandamus action because Plaintiff’s appeal to the Land Court is not one of last resort: Plaintiff appealed the 2008 Opinion to the ZBA and then appealed the ZBA Decision to the Land Court. Additionally, Plaintiff does not claim to bring a mandamus action.

As a result of the foregoing, I find that this court has jurisdiction over this case.

B. Plaintiff’s Motion to Strike Portions of Affidavit of Mary Ann Varoski.

Plaintiff filed his Motion to Strike Portions of Affidavit of Mary Ann Varoski (the “Varoski Affidavit”), but neither the Varoskis nor the Municipal Defendants filed a response to this motion. I concur with Plaintiff’s motion to strike. Many of the statements made in the Varoski Affidavit are inconsistent with the summary judgment record [Note 11] and not based on personal knowledge or foundation. [Note 12] In addition, the statements in Paragraph 6 are hearsay. As a result of the foregoing, I find that the Varoski Affidavit is stricken in its entirety.

C. Statute of Limitations under G. L. c. 40A, § 7.

The main issue in the case at bar is the validity of the ZBA Decision that found the statute of limitations had passed on enforcing the 1995 Order. G. L. c. 40A, § 7 describes the statute of limitations as follows:

[I]f real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law; and provided, further no action, criminal or civil, the effect or purpose of which is to compel removal, alteration or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, or the conditions of any variance or special permit, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation . . . . The superior court and the land court shall have jurisdiction to enforce the provisions of this chapter . . . .

Plaintiff argues that the 1995 Order is still in effect and requires the Varoskis to remove the Shed. Defendants argue that the 1995 Order is no longer in effect because the statute of limitations, which controls appeals of the 1995 Order, as specified in G. L. c. 40A, § 7, is applicable and binding on the parties. The summary judgment record does not disclose any evidence that the 1995 Order has been rescinded. [Note 13] As a result, unless it is no longer valid by operation of law, the 1995 Order would require the removal of the Shed.

G. L. c. 40A, § 7 contains a six-year statute of limitations and a ten-year statute of limitations. [Note 14] By its own terms, the six-year statute of limitations is applicable only to structures that have been “improved and used in accordance with the terms of the original building permit” and “erected in reliance upon said permit.” The term “original building permit” may apply to building permits that authorize additions or alterations of existing buildings. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 219 (1982). A landowner has the burden of proving that a structure was being used in accordance with a building permit. Moreis v. Oak Bluffs Bd. of Appeals, 62 Mass. App. Ct. 53 , 57 (2004). Plaintiff argues that the six-year statute of limitations is inapplicable because, although the Shed was constructed under the 1994 Building Permit, the 1995 Order revoked such building permit. Plaintiff argues that because the 1995 Order revoked the 1994 Building Permit, the Shed could not have been used pursuant to the 1994 Building Permit. [Note 15]

The ten-year statute of limitations controls appeals of structures without a building permit. Plaintiff argues that the ten year statute of limitations is inapplicable because the Shed was built under the 1994 Building Permit (irrespective of the fact that the 1994 Building Permit was later revoked). By claiming that neither statute of limitations applies to the Shed, however, Plaintiff makes contradictory arguments. Plaintiff cannot argue that the Shed was both built and not built under a building permit. [Note 16]

As Plaintiff argues, the 1995 Order effectively revoked the 1994 Building Permit. The 1995 Order stated that Plaintiff must move the Shed in compliance with the Bylaw or obtain a variance; the Varoskis did neither of these things. As a result, the Shed would appear to have been constructed without a building permit and, as a result, the ten-year statute of limitations would apply. If the Shed was not built pursuant to the 1994 Building Permit, Plaintiff would have needed to commence an action “within ten years next after the commencement of the alleged violation.” The commencement of the alleged violation (the violation of the side yard setback) would have been the date of construction of the Shed. We know that the Shed was built between the date of issuance of the 1994 Building Permit (March 21, 1994) and the beginning of 1995 (Vozzella’s first complaint of the Shed on January 2, 1995). The ten-year statute of limitations will not apply if an “action, suit or proceeding” has been commenced, and notice thereof has been recorded with the Registry, on or before the beginning of 2005.

“As used in statutes of limitation, the word ‘action’ has been consistently construed to pertain to court proceedings.” Carpenter v. Pomerantz, 36 Mass. App. Ct. 627 , 631 (1994) (citing Lynch v. Springfield Safe Deposit & Trust Co., 300 Mass. 14 , 16 (1938); Ginzberg v. Wyman, 272 Mass. 499 , 501 (1930); Pigeon’s Case, 216 Mass. 51 , 56-57 (1913); Boston v. Turner, 201 Mass. 190 , 196 (1909)). Furthermore, the words “action, civil or criminal” in the statute appear to contemplate a court action. [Note 17]

The only challenge to the construction of the Shed that occurred prior to the beginning of 2005 was the Vozzella Appeal, which was not an “action, suit or proceeding” as contemplated by G. L. c. 40A, § 7, for several reasons. First, no notice of such action was recorded with the Registry as required by the statute. Second, the statute contemplated that only the Superior Court and the Land Court had jurisdiction to enforce the provisions of that chapter, and no action was brought in either of these courts within the proper time frame. Lastly, the Vozzella Appeal was not carried forward to completion. The last entry in that matter were minutes of a ZBA meeting in 1996 in which it was noted that a continuance was contemplated for a hearing before the ZBA. The summary judgment record does not reflect any further activity on this appeal. [Note 18]

As a result of the foregoing, I find that the ten-year statute of limitations specified in G. L. c. 40A, § 7, barred any further action to challenge the construction of the Shed at the latest in January 2005. The case at bar was filed on March 24, 2009. [Note 19] As such, I uphold the ZBA Decision. I DENY Plaintiff’s Motion for Summary Judgment and ALLOW the Varoskis’ Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: November 9, 2010