MISC 05-305100

March 18, 2011

DUKES, ss.

Scheier, C.J.


Related Cases:

In this case, brought pursuant to G. L. c. 40A, § 17, Plaintiff challenges a decision of the Town of Chilmark’s Zoning Board of Appeals (Board), in which it upheld an action of the Chilmark Building Inspector. The dispute began when Jacqueline Carlin requested that the Building Inspector enforce a provision of the Chilmark Zoning Bylaw (Bylaw) against Edwin C. Cohen, the then-owner of property at 125 East Lane in Chilmark (Defendant’s Property). In her request to the Building Inspector, Ms. Carlin alleged that Defendant’s Property was in violation of the frontage requirement of the Bylaw and requested that the Building Inspector revoke the building permit issued for Defendant’s Property, permitting Mr. Cohen to build a single-family residence. The Building Inspector failed to act on the request and Ms. Carlin appealed to the Board. [Note 3]

The case is before the court on cross-motions for summary judgment, which were heard on October 19, 2010. The summary judgment record establishes the following: [Note 4]

1. Defendant, Fool’s High Tide, LLC, owns Defendant’s Property, having purchased it from Edwin C. Cohen on June 12, 2007.

2. Plaintiff, John W. Richardson, as Trustee in Bankruptcy of the estate of Jacqueline C. Melcher a/k/a Jacqueline Carlin or Jacqueline Carlin Melcher, owns property located at 21 East Lane in Chilmark, Massachusetts (Carlin Property). [Note 5]

3. The Carlin Property abuts Defendant’s Property and is approximately fifteen feet higher in elevation than Defendant’s Property. The Carlin Property slopes in a general southwesterly direction toward Defendant’s Property.

4. Between June 2 and June 16, 1999, Mr. Cohen caused the installation of a new septic system on Defendant’s Property. Ms. Carlin was aware of this construction.

5. On August 26, 1999, Mr. Cohen submitted an application for a building permit to the Chilmark Building Department (Building Department), seeking a permit to construct a new residence on Defendant’s Property. 6. On September 11, 1999, the Building Department issued a building permit to allow Mr. Cohen’s construction of a new residence (Building Permit).

7. Prior to the issuance of the Building Permit, Ms. Carlin had contested multiple permits affecting Defendant’s Property, including the issuance of a septic system upgrade permit, [Note 6] and she submitted a request to the Massachusetts Department of Environmental Protection (DEP) for a Superseding Order of Conditions. [Note 7]

8. In September 1999, Ms. Carlin hired Attorney Daniel Larkosh to represent her in connection with Mr. Cohen’s construction plans. Attorney Larkosh was “intimately involved in all proceedings,” meeting with representatives of the Town of Chilmark, and reviewing plans for construction of Mr. Cohen’s new house, town files, and records. 9. By January 2000, Defendant’s Property had been staked to indicate where the residence would be built. Ms. Carlin was aware of the staking.

10. During the month of September 2001, Mr. Cohen demolished the small house that was located on Defendant’s Property. On September 6, 2001, Attorney Larkosh sent a “Notice of Trespass/Demand” letter on Ms. Carlin’s behalf to Mr. Cohen’s attorneys.

11. By the fall of 2001, construction had commenced for a new house on Defendant’s Property.

12. On November 1, 2001, Ms. Carlin filed a complaint in the Land Court (01 MISC 275914), asserting easements rights to cross Defendant’s Property to gain access to the beach. In connection with the case, Ms. Carlin sought and obtained an injunction to prevent further construction on Defendant’s Property.

13. The court bifurcated the trial so that it would first determine whether Ms. Carlin had deeded rights, and, if so, whether the easement could be moved consistent with the mandates of M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Following phase one of the bifurcated trial, on February 2, 2006, the court ruled that Ms. Carlin has a deeded easement to pass over Defendant’s Property for foot access to the beach.

14. On January 12, 2007, following phase two of the trial, the court declared that Ms. Carlin’s easement could be moved to a different location across Defendant’s Property where it would not be affected by the location of Mr. Cohen’s new house.

15. By a letter dated January 14, 2002, Ms. Carlin made additional claims to the Chilmark Board of Health concerning the new septic system on the Defendant’s Property. [Note 8]

16. By Order dated February 10, 2003, the Land Court dissolved the injunction prohibiting construction that it had entered on November 1, 2001. Construction resumed.

17. On June 20, 2004, Ms. Carlin sent a letter to Leonard Jason, Jr., Building Inspector/Zoning Enforcement Officer (Building Inspector) for the Town of Chilmark, alleging that Defendant’s Property has no street frontage in violation of the Bylaw and requesting that he revoke the Building Permit.

18. Ms. Carlin did not appeal the Building Inspector’s failure to respond to the June 20, 2004 letter, but on September 21, 2004, she sent a second letter to him alleging that Defendant’s Property did not meet minimum street frontage requirements and again requesting that the Building Permit be revoked.

19. As of October 5, 2004, the construction of the new house on Defendant’s Property had progressed to the point where the foundation had been constructed.

20. On October 8, 2004, Ms. Carlin appealed to the Board the Building Inspector’s failure to act on her September 21, 2004 enforcement request pursuant to G. L. c. 40A, §§ 8 and 15. After hearing on December 14, 2004, the Board voted to deny Ms. Carlin’s appeal.

21. On January 4, 2005, Ms. Carlin appealed the Board’s denial of her zoning enforcement request by filing the current action.

22. Ms. Carlin’s alleged aggrievement is that the new house that Mr. Cohen constructed upon Defendant’s Property significantly blocks her view of the ocean and that as a result of the diminished view, the fair market value of the Carlin Property has been diminished. Ms. Carlin does not have a view easement over Defendant’s Property.

Plaintiff’s appeal is before this court pursuant to the parties’ cross-motions for summary judgment. “Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934)). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat’l Bank, 595 F.2d 994, 997 (5th Cir. 1979)). This court finds that there are no material facts in dispute and the case is ripe for summary judgment.

Defendant has moved for summary judgment seeking dismissal on the grounds that (1) Plaintiff’s claims are time-barred by the statute of limitations set forth in G. L. c. 40A, §8; (2) Plaintiff’s claims are barred by the doctrine of laches; and (3) Plaintiff lacks standing.

As a preliminary matter, Defendant argues that Plaintiff is barred from pursuing this appeal since Ms. Carlin had constructive notice of the issuance of the Building Permit and failed to appeal the permit within thirty days. Plaintiff asserts that it was not required to appeal the issuance of the Building Permit because it did not have actual or constructive notice of its issuance. For the reasons set forth herein, relying on Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 854-55 (2008), this court agrees with Defendant.

In the instant case it is undisputed that “[t]he plaintiff did not appeal [the issuance of the Building Permit] but instead. . .sought enforcement of the [Bylaw] pursuant to G. L. c. 40A, § 7. She did so within six years of the alleged violation of law as permitted by that section. She then filed with the board. . .an appeal from the [Building Inspector’s failure to act.]. . . . That, however, was significantly later than the thirty days in which to appeal to the board from the issuance of the permit itself, given her by the same statute.” Gallivan, 71 Mass. App. Ct. at 854-55 (internal citations omitted). “[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. 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.” Id. at 857 (internal quotations omitted) (emphasis added). The crucial question for this court is whether, in the instant case, Plaintiff “[had] sufficient notice of [the Building Permit] to require [an] appeal at that time.” Id. at 858. For the reasons set forth herein, this court finds that Ms. Carlin did have constructive notice of the issuance of the Building Permit such that Gallivan precludes her from bringing an enforcement action.

It is undeniable that Ms. Carlin was, at a minimum, constructively aware that the Building Permit had issued. By the time the Building Permit was issued, Ms. Carlin had already appealed both the septic permit issued by the Board of Health and the Order of Conditions issued by the Conservation Commission. Indeed, Mr. Cohen had already staked out the building area on Defendant’s Property by the time Ms. Carlin filed her complaint with the Board of Health, alleging that Mr. Cohen planned to “build a significantly larger structure” on Defendant’s Property. Between June 2 and June 16, 1999, Mr. Cohen caused the installation of the new septic system on Defendant’s Property. Ms. Carlin was aware of this construction. Further, in September 1999, the same month that the Building Permit was issued to Mr. Cohen, Ms. Carlin hired an attorney. By his own admission, her attorney was “intimately involved in all proceedings,” meeting with representatives of the Town of Chilmark and reviewing plans for construction of the new house, town files, and records.

Nonetheless, Ms. Carlin did not appeal the Building Permit or seek enforcement of the Bylaw at that time. Instead, she filed case number 01 MISC 275914 in this court, claiming easement rights over Defendant’s Property. At no point during that case, in which two separate trials were conducted, did Ms. Carlin raise the frontage issue addressed by her enforcement request and in this case. In November of 2001, Ms. Carlin sought an injunction enjoining Mr. Cohen from continuing with the construction on Defendant’s Property. This court (Trombly, J.) issued the requested injunction and construction was halted on Defendant’s Property until the injunction was lifted fourteen months later. Once the injunction was lifted, construction promptly resumed and has since been completed. Still, Ms. Carlin did not seek to enforce the Bylaw against Defendant’s Property for sixteen months, until June 20, 2004, when she sent the first of two letters to the Building Inspector, alleging a frontage violation and seeking a cease and desist order.

Given the meticulousness with which Ms. Carlin and her attorney monitored and challenged the permitting and construction process on Defendant’s Property, together with her attorney’s familiarity with plans for construction of the new house, town files, and records, this court concludes that Ms. Carlin had, at a minimum, constructive knowledge of the issuance of the Building Permit, sufficient to bring the facts of this case within the holding of Gallivan. As the Appeals Court instructed in Gallivan, “in the absence of. . .notice of the issuance of a building permit, there may well be disputes that center on whether an aggrieved person actually has sufficient notice of a permit to require that she appeal at that time.” Gallivan, 71 Mass. App. Ct. 850 . Despite not having received actual notice of the issuance of the Building Permit, as the Gallivan plaintiff had, Ms. Carlin was aware and involved in nearly every step of the permitting process. She had seen the plans connected with Defendant’s construction and was on notice of any alleged zoning violation and nonetheless waited to bring her enforcement request. Indeed, she halted construction on Defendant’s Property in connection with the litigation of her claim of easement rights nearly four years prior to bringing her enforcement request. It is important to note that the alleged zoning violation (no frontage) goes to the buildability of Defendant’s Property. It is not an alleged violation, as it was in Gallivan, that the proposed construction violates a set back or other dimensional provision of a local bylaw. Ms. Carlin’s position before the Building Inspector, the Board, and this court is that Mr. Cohen had no right to build at all on Defendant’s Property. Therefore, at the very latest, Ms. Carlin would have been aware of the existence of an alleged zoning violation as soon as Mr. Cohen broke ground, even if she did not have actual notice of the issuance of the Building Permit. That means there was, at a minimum, nearly four years between the commencement of construction and Ms. Carlin’s first request for enforcement.

Under Gallivan, the sufficiency of constructive notice under to Ms. Carlin is established on this record. The contrary position pressed by Plaintiff would permit a neighbor who thinks there is a zoning violation to sit on her rights while a property owner incurs substantial expense by (1) pursuing multiple permits from local boards, (2) defending those permits against the neighbor’s challenges in administrative agencies and the courts, and (3) undertaking authorized construction, only to have his neighbor “spring into action sometime [during] the next six years and demand enforcement of a zoning restriction.” Id. at 857. Certainly, Ms. Carlin knew how to pursue and protect her rights, as she did in several instances, never once raising the zoning issue raised here.

For the reasons set forth herein, Defendant’s motion for summary judgment hereby is GRANTED and Plaintiff’s cross-motion for summary judgment hereby is DENIED. [Note 9] Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 18, 2011


[Note 1] John W. Richardson, Trustee, has been substituted for Jacqueline Carlin. See footnote 5.

[Note 2] Fools High Tide LLC, has been substituted for Edwin C. Cohen

[Note 3] This matter is the latest in a history of litigation involving these parties, some of which is detailed in the numbered paragraphs.

[Note 4] The parties agreed on many additional facts which are not set forth herein given that they are not necessary to this court’s disposition of the case. The parties are nonetheless bound by these agreed facts.

[Note 5] On June 28, 2001, Ms. Carlin filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. On September 15, 2008, Ms. Carlin’s Chapter 11 petition was converted to a Chapter 7 proceeding and the plaintiff in this case, John W. Richardson, was appointed Trustee of the bankruptcy estate. On March 16, 2009, Mr. Richardson filed a Notice of Election by Trustee to Appear in this action, substituting himself for Ms. Carlin as Plaintiff.

[Note 6] On April 30, 1999, Ms. Carlin filed a Complaint in the Dukes County Superior Court, appealing the Board of Health’s February 3, 1999 issuance of the septic upgrade permit to Mr. Cohen.

[Note 7] In this request, filed June 14, 1999, Ms. Carlin was appealing the Chilmark Conservation Commission’s June 3, 1999 Order of Conditions granted to Mr. Cohen to allow him to regrade Defendant’s Property to prepare it for construction of his residence. On December 22, 1999, the DEP issued a Superseding Order of Conditions regarding the Conservation Commission’s Order of Conditions. On May 3, 2001, the DEP dismissed Ms. Carlin’s appeal.

[Note 8] On September 20, 2003, the Board of Health filed a decision with the Chilmark Town Clerk, ruling against Ms. Carlin with respect to her January 14, 2002 letter complaint about Mr. Cohen’s proposed septic system.

[Note 9] For the reasons set forth herein, I do not now reach the issues of laches, Plaintiff’s standing, or the merits of the underlying appeal. It is worth noting, however, that Plaintiff may be barred from pursuing this action under the doctrine of collateral estoppel, or issue preclusion. Given Ms. Carlin’s failure to pursue Defendant’s alleged zoning violation administratively and within the context of the 2001 Land Court case, she may be now barred from prosecuting this claim. Further, the doctrine of laches may likewise bar Plaintiff’s claim due to Plaintiff’s piecemeal approach regarding the various cases filed regarding Defendant’s Property.