In 2010, the Town of Kingston (Town) amended its zoning bylaw to allow, within a specified overlay district, the construction as-of-right of utility-scale wind facilities (i.e., wind turbines), subject only to site-plan approval by the Towns Planning Board. The overlay district included the property owned by the defendants Mary ODonnell and Keon C. ODonnell, trustees of the ODonnell Family Realty Trust (ODonnell), who sought and obtained site plan approval in the summer of 2010 for the construction of four wind turbines on the trusts property. In the fall of 2011, ODonnell obtained approval of a revised site plan for three wind turbines, and building permits for the construction of the three turbines were issued on December 16, 2011. Construction of the turbines immediately followed.
The plaintiffs are residents of Country Club Way and Raboth Road in Kingston, streets on the north and south side of the turbines site. Some of these plaintiffs filed a request for zoning enforcement with the Kingston Building Commissioner on April 9, 2012, challenging the site plan approval for the turbines. The Building Commissioner denied the request on April 27, 2012, and these same plaintiffs appealed the denial to the Towns Zoning Board of Appeals (ZBA). The ZBA upheld the Commissioners determination, and this action followed.
At issue is whether the plaintiffs were obligated to appeal the building permits for the wind turbines to the ZBA within 30 days of their issuance, i.e., by January 15, 2012, as required by G.L. c. 40A, §§ 8 and 15, or whether they had the benefit of the six-year statute of limitations for zoning enforcement requests under G.L. c. 40A, § 7. This question turns on whether the plaintiffs had adequate constructive notice of the building permits issuance in time to challenge the building permits within the 30-day period, under the test set forth in Connors v. Annino, 460 Mass. 790 (2011), and Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). In response to the defendants motion to dismiss, the court conducted a view and held an evidentiary hearing, at which it heard evidence on each of the plaintiffs knowledge of the issuance of the building permits and of the construction of the wind turbines, and their opportunity to investigate the grounds for appeal of the site plan approval. As set forth below, the court finds that while none of the plaintiffs had actual knowledge of the issuance of the building permits, they each had knowledge of the construction of the wind turbines in sufficient time to investigate and appeal the permits by January 15, 2012. Because they failed to appeal the building permits within 30 days of their issuance as required by G.L. c. 40A, §§ 8 and 15, the plaintiffs challenge to the building permits is time-barred, and the court lacks subject matter jurisdiction to hear this action.
Procedural History
The plaintiffs filed this action on September 25, 2012, seeking to reverse the decision of the ZBA that upheld the decision of the Towns zoning enforcement officer to deny the plaintiffs request for enforcement of the Towns Zoning By-Laws with regard to issuance of a building permit to defendants No Fossil Fuels, LLC and ODonnell. On October 16, 2012, Mary ODonnell filed her Answer and Counterclaim and Defendant ODonnells Motion to Dismiss Plaintiffs Appeal (Motion to Dismiss). A case management conference was held on October 25, 2012. On that same day, the plaintiffs filed Plaintiffs Special Motion to Dismiss Counterclaims. The plaintiffs filed their Opposition to the Defendants Motion to Dismiss on November 9, 2012. The ZBA filed the Response of Defendant Kingston Zoning Board of Appeals to Defendant ODonnells Motion to Dismiss Plaintiffs Appeal filed on November 15, 2012, in which the ZBA joined the Motion to Dismiss. Defendant ODonnells Assented to Motion to Dismiss Counterclaims and Plaintiffs Request to Withdraw Special Motion to Dismiss Counterclaims in Light of Consented Dismissal of the Counterclaims were filed on November 20, 2012. The court heard argument on the Motion to Dismiss on November 26, 2012. At the hearing, Defendant ODonnells Assented to Motion to Dismiss Counterclaims and Plaintiffs Request to Withdraw Special Motion to Dismiss Counterclaims in Light of Consented Dismissal of the Counterclaims were both allowed. After hearing, the court took the Motion to Dismiss under advisement.
On January 16, 2013, the court issued its Order Denying Defendants Motion to Dismiss and Setting Down the Action for Further Proceedings (Order). In the Order, the court denied the Motion to Dismiss, but found that a threshold issue of fact remains as to whether the plaintiffs had actual or constructive notice of the Building Permits and the grounds for appealing them sufficient to have obligated them to have appealed the Building Permits to the ZBA pursuant to G.L. c. 40A §§ 8 and 15. The court ordered an evidentiary hearing on this issue of fact.
Based on the Order, as revised at the status conference held on January 31, 2013, the court ordered that evidence on the following issues would be heard at the evidentiary hearing:
1. When did each of the plaintiffs have actual notice of the issuance of the Building Permits? [Note 1]
2. When did each of the plaintiffs become aware of the ODonnell Turbine Project, including but not limited to construction thereof, sufficient to put them on constructive notice of the issuance of the Building Permits?
3. What inquiry did the plaintiffs need to make in order to determine their grounds for appeal of the Building Permits? The grounds for appeal to be considered are limited to the five objections to the Site Plan Approval that were made to the Building Commissioner and that were the subject of the appeal to the ZBA. No other objections to the Site Plan Approval or the ODonnell Turbine Project, whether raised in this action or in any other forum, will be considered. These five objections are as follows:
a. The site plan application from ODonnell was not properly filed with the Town Clerk;
b. Notice of the site plan proceedings was faulty in that it did not adhere to G.L. c. 40A, § 9;
c. The Site Plan Approval was sought and granted prior to the effective date of the zoning amendment;
d. The Site Plan Approval contained inappropriate conditions relative to future peer review; and
e. The Planning Board proceeding from the date of the filing of the site plan application to the date of the issuance of the Site Plan Approval was arbitrary and capricious.
4. When did each of the plaintiffs have knowledge of the five grounds for appeal?
5. Given the knowledge of the plaintiffs, did they have adequate time to appeal the Building Permits to the ZBA by January 15, 2012?
A pretrial conference was held on March 18, 2013. The court took a view on March 27, 2013. The court held an evidentiary hearing on March 28 and March 29, 2013. At the hearing, the court heard testimony from, in order, Lisa Obey, Timothy Dwyer, Jenna Goldstein, Jennifer DiRico, Thomas Bott, Town Planner for the Town, Mark Beaton, Paul Armstrong, Building Commissioner for the Town, Fred Svenson, Piotr Lazowski, Patrick Gavin, William Moore, Sean Day, Caitlin Gavin-Day, and Mary ODonnell. By stipulation of the parties, the transcript of the deposition of Cameron Snyder was submitted as his testimony. Exhibits 1 through 43 were marked; the parties Stipulation of Facts was marked as exhibit 41. The defendants motion for mandatory dismissal was heard and denied. The parties submitted their respective proposed findings of fact and conclusions of law on May 8 and May 9, 2013, and the court took the matter under advisement.
Findings of Fact
Based on the exhibits, the testimony at the hearing and in the Snyder deposition, and the courts assessment of credibility, all as informed by the view, the court makes the following findings of fact.
1. On April 5, 2010 the Towns annual Town Meeting voted to amend the Town of Kingston Zoning By-Laws (Zoning By-Laws) by adopting new zoning regulations for the construction of utility-scale wind facilities (USWF). The new zoning by-law, identified as § 4.16 of the Zoning By-Laws, created the Green Communities Wind Turbine Overlay District (GCWTOD). It replaced a former overlay district called the Wind Turbine Overlay District (WTOD). Exhs. 2, 41.
2. The former WTOD did not include the land owned by ODonnell at 42 Marion Drive, Kingston (the ODonnell Property). The GCWTOD expanded the district of the WTOD to include the ODonnell Property. The ODonnell Property had been used for a sand and gravel business and, more recently, ODonnell had sought to develop the Property as a transit-oriented development under G.L. c. 40R. Exh. 41; Tr. II-332-333.
3. The former WTOD allowed a USWF only by special permit. Under the new GCWTOD, a USWF is allowed as of right in the overlay district. Exh. 2, Zoning By-Laws § 4.16.2; Tr. I-183. USWF proposals over a certain generating threshold are subject to site plan review by the Town of Kingston Planning Board, meaning that they cannot be constructed without obtaining a building permit following site plan approval. Exh. 2, Zoning By-Laws § 4.16.3.1. Applications are to be filed with the town clerk. Id. at § 4.16.10.1.2. The USWF must be sited to minimize shadowing or flicker impacts, and must conform with the provisions of the Department of Environmental Protections Division of Air Quality Noise Regulations. 310 CMR 7.10; Exh. 2, Zoning By-Laws §§ 4.16.6.2, 4.16.6.3. The site plan review process is set forth in § 7.3 of the Zoning By-Laws. Exhs. 2, 41.
4. After the adoption of the GCWTOD, the Town Clerk certified the results of the vote and the by-law to the Attorney Generals office for review by the Municipal Law Unit (as required by law). The Assistant Attorney General approved the GCWTOD by letter dated October 1, 2010. Exh. 41.
5. Upon receipt of the approval letter, the Town Clerk created a single-page document entitled Town of Kingston Official Bulletin. That document reads in part: Amendments to the Town of Kingston Zoning By-Laws/Map adopted under Articles 18, 19, 23, 24, 25, 26, 27, 29, 30, 31, 33, and 34 of the Warrant for the Annual Town Meeting that convened on April 5, 2010, are attached hereto with the approval of the Attorney General as outlined in her letter dated October 1, 2010. Exh. 41.
6. This Official Bulletin was duly posted by Constable Robert Short in each precinct in the Town. The Official Bulletin ends with Constable Shorts certification: Said Amendments were posted at the following public places in Town: Harbor Masters Shack (Precinct 1); Kingston Public Library (Precinct 2); Town Hall (Precinct 3); Highway Barn (Precinct 3); Pembroke Street Fire Station (Precinct 4). This certification is signed by Constable Short and dated October 7, 2010. Exh. 41.
7. On May 27, 2010, ODonnell filed an application under the GCWTOD with the Kingston Planning Board for site plan review of a project to construct wind turbines on the ODonnell Property (the ODonnell Turbine Project). The site plan application was a one-page, hand written form called Site Plan Approval Project Notification Form, which reads in part:
General description of Site Plan being sought, including citation of applicable provisions of Zoning Bylaw: Site plan approval under bylaw section 4.16 as voted at the annual town meeting of April 5, 2010.
Exhs. 15, 41.
8. The Site Plan Approval Project Notification Form was not filed with the Town Clerk at or before the time it was filed with the Planning Board. Exh. 41.
9. The May 27, 2010, Site Plan Approval Project Notification Form was supplemented by, among other materials, a binder of materials with a date of June 25, 2010. This binder of materials includes a shadow flicker analysis, an acoustical analysis, and other information and documents related to the seeking of site plan approval (application binder). Exhs. 15, 41.
10. On June 28, 2010, the Town Planner transmitted the application binder to eight departments within the Town, including the Health Agent representing the professional staff of the Board of Health. Exhs. 16, 41.
11. In the Town Planners memorandum transmitting the application binder, he stated, I anticipate that the Planning Board will continue their review to July 12, 2010, and sought input from the recipients (Please review and provide any comments you may have for the Board site plan review.). Id.
12. Numerous possible turbine manufacturers and sizes are mentioned in the application binder, and ODonnell states, in § 2a of the application binder, that a final turbine make and model has not yet been selected. Exhs. 15, 41.
13. The wind turbine models mentioned in the application binder include the following:
a. Vestas V-90 with a hub height of 80 meters and a rotor diameter of 90 meters. These plans are not referenced in the application binder; they appearby identifying title block on the plansto be plans for a turbine under consideration for the Towns wind turbine project on the Towns former landfill site.
b. GE 1.5MWsle with a hub height of 65 meters or 80 meters, and a rotor diameter of 77 meters. These plans are not referenced in the text of the application binder; there is a specifications sheet from a brochure for this turbine model toward the end of the binder.
c. MM92 with a hub height of 68.5 meters, 80 meters, or 100 meters, and a rotor diameter of 92 meters. These plans are not referenced in the text of the application binder; there is a specifications sheet from a brochure for this turbine model toward the end of the binder.
d. Gameas G-87 2.0 MW with hub heights of 67 meters, 78 meters, and 100 meters, and a rotor diameter of 87 meters. These plans are not referenced in the text of the application binder; there is a specifications sheet from a brochure for this turbine model toward the end of the binder.
Id.
14. The shadow flicker analysis in the application binder was based on turbines with an 80-meter hub height and a 90-meter rotor diameter. Id.
15. The acoustical analysis in the application binder was based on a GE 1.5MWsle with a 77-meter rotor diameter. Id.
16. The Planning Board met on June 28, 2010, to consider the site plan application for the ODonnell Turbine Project. At that meeting, the Planning Board granted site plan approval for the Project. Exhs. 12, 18, 41.
17. The Planning Board issued its site plan approval in the form of a memorandum to Paul Armstrong, Building Commissioner/Zoning Enforcement Officer of the Town of Kingston (Building Commissioner), on July 7, 2010 (the Site Plan Approval). Exh. 12, Tr. I-235.
18. The Site Plan Approval references a set of plans (4 sheets), as follows: Overall Site Plan for 1021 Kingstons Place Wind Project prepared by Atlantic Design Engineers, LLC dated May 27, 2010. These plans were approved by the Planning Board on June 28, 2010. On sheet 4 of 4 of the plans there appears a plan of a turbine which shows a rotor diameter of 82 meters. Exhs. 12, 13, 41.
19. The Site Plan Approval was filed with the town clerk on July 19, 2010. [Note 2]
20. At a meeting of the Planning Board on October 11, 2011, ODonnell presented a modification of the site plan, reducing the number of wind turbines from four to three. On November 22, 2011, the Planning Board voted to approve the modifications to the site plan. The wind turbines as shown on the modified site plan are referred to as the ODonnell Turbines. The modified site plan shows the three ODonnell Turbines, in the location at which they were ultimately constructed. The modified site plan has a circular diagram marked 90m rotor dia. The court finds that this is a statement that the rotors on the ODonnell Turbines are to have a diameter of 90 meters. Exhs. 1, 14, 24, 27, 41; Tr. I-188-190.
21. At some time in the fall of 2011, ODonnell submitted applications for building permits for the three ODonnell Turbines. Exhs. 9, 10, 11, 41.
22. On October 19, 2011, the Building Commissioner issued foundation building permits allowing construction of the foundations of the ODonnell Turbines. These foundation permits refer to the Site Plan Approval of June 28, 2010 and the October 12, 2011 amendment of the Site Plan Approval for Turbine Location only. Exhs. 3, 5, 7, 19, 41.
23. Construction and associated site work and site clearing began on the ODonnell Turbines soon after the issuance of the foundation permits. Installation of the deep foundations for the ODonnell Turbines began on November 7, 2011, and was completed on December 4, 2011. Exhs. 37, 38, 41.
24. On December 16, 2011, the Building Commissioner issued building permits for the construction of the three ODonnell Turbines themselves (the Building Permits). Exhs. 4, 6, 8, 41.
25. No actual notice of the applications for, or the granting of, the foundation permits or the turbine Building Permits, in the form of a mailing to abutters or neighbors or in the form of a published notice, was required or provided. Exh. 41; Tr. II-353.
26. Construction of the ODonnell Turbines began on December 18, 2011. The locations of each ODonnell Turbine are shown on the Decision Sketch attached to this order, and each Turbine is numbered on the Decision Sketch. Exhs. 1, 41.
27. Although Exhibit 41, the statement of agreed facts, recites that the Turbines were completed sequentially, one through three, Exhibit 43 states, and the court finds, that the first of the ODonnell Turbines to be completed (constructed to full height and rotors with blades attached) was Turbine 3 as shown on the sketch plan. Turbine 3 was completed on December 18, 2011. The next to be completed, as stated on Exhibit 43 and as the court finds, was Turbine 2 as shown on the sketch plan, on December 23, 2011. The last to be completed, as stated on Exhibit 43 and as the court finds, was Turbine 1 as shown on the sketch plan, on December 31, 2011. Exhs. 1, 41, 42, 43.
28. Between the dates set forth above on which each Turbine was completed and the rotor attached and January 15, 2012, the Turbines were not electrified, had no flashing lights, and were not operating. Exh. 41.
29. None of the plaintiffs attended any Town Meetings, meetings at the Kingston Town House (Town Hall), or meetings elsewhere which dealt with the ODonnell Turbines prior to January 15, 2012. None of the plaintiffs received notice of the hearing on the site plan application. None of the plaintiffs participated in or attended meetings concerning the site plan review for the ODonnell Turbine Project. None of the plaintiffs hired an attorney to represent them in any way connected with the ODonnell Turbines before January 15, 2012 (their first legal representation was in March 2012). Tr. I-60, 132-133, 136, 141, 183-184, 191-192; Exh. 41.
30. On April 9, 2012, plaintiffs Lisa Obey, Timothy Dwyer, Cameron Snyder, and Piotr Lazowski, along with other persons who are not parties to this action, submitted an enforcement request to the Building Commissioner, seeking the invalidation of the Building Permits (zoning enforcement request). On April 27, 2012 the Building Commissioner issued a decision denying the zoning enforcement request. See note 2, supra.
31. On May 24, 2012, plaintiffs Lisa Obey, Timothy Dwyer, Cameron Snyder, and Piotr Lazowski, along with other persons who are not parties to this action, appealed the Building Commissioners decision by filing a petition with the ZBA, asserting that the Building Permits were based upon improper issuance of the Site Plan Approval for the ODonnell Turbine Project (the Petition). See note 2, supra.
32. The ZBA held a public hearing on the Petition on June 20, 2012, which was continued to August 1, 2012. By agreement the date for the filing of a decision was September 7, 2012. On September 5, 2012, the ZBA unanimously voted to deny the Petition, thereby upholding the underlying decision of the Building Commissioner. The ZBA denied the Petition on the basis of the following findings: (1) The enforcement request to the Building Commissioner was fatally late; (2) the petitioners lacked standing to challenge any lack of filing with the Town Clerk; (3) the GCWTOD was effective; (4) no public notice of the Site Plan Approval application was required; and (5) the conditions of the Site Plan Approval were proper. The ZBAs decision was filed with the town clerk on September 6, 2012. The plaintiffs filed this action, appealing from the ZBAs decision, on September 25, 2012. See note 2, supra.
33. Plaintiffs Timothy Dwyer, Lisa Obey, Cameron Snyder and Piotr Lazowski live on Country Club Way, north of the ODonnell Property. The location of their homes is shown on the Decision Sketch attached hereto. Exh. 1.
34. Turbine 3 was constructed to its full height and the rotor and blades attached on December 18, 2011. As of that date, Turbine 3 was visible to anyone passing along the section of Country Club Way between the Dwyer and Lazowski properties. View; Exhs. 1, 41, 42, 43.
35. Plaintiff Lisa Obey lives at 263 Country Club Way, Kingston, and has lived there continuously since 2005. She was aware of how notice of Town Meeting is provided, and has attended at least one Town Meeting. She first saw the ODonnell Turbines while driving, as she testified, at the end of December or beginning of January. The court finds that Ms. Obey saw Turbine 3 sometime in the few days after December 18, 2011. She was shocked at the size of Turbine 3. Tr. I-35-37, 39, 48, 51; View; Exhs. 1, 41, 42, 43.
36. In early January 2012, Ms. Obey telephoned Town Hall and spoke with the town clerk. The town clerk described the GCWTOD and told her that she could contact the town assessor if she wanted to have her property reassessed. Ms. Obey did not contact the town assessor or any other person connected with the Town, or take any other action with respect to the Town. In January, Ms. Obey spoke to a Boston Globe reporter, who suggested that she contact attorney Christopher Senie. She contacted Mr. Senie in March 2012. Tr. I-39-42, 46-47, 55-57.
37. Plaintiff Cameron Snyder lives at 269 Country Club Way, Kingston. He has lived there continuously since 2007. Mr. Snyder can see Turbines 1 and 2 from his backyard. He heard construction noise from the construction of the turbines after the building permits were issued on December 15, 2011, but did not know what it was. He saw Turbine 2 when it was completed, with the rotor and blades, on December 23, 2011. After seeing Turbine 2, he did not contact any town officials or visit Town Hall. He first met with his attorney, Mr. Senie, along with Ms. Obey and plaintiff Timothy Dwyer, in mid to late January 2012. Snyder Dep. 5, 7-10; Exh. 1.
38. Plaintiff Timothy Dwyer lives at 299 Country Club Way, Kingston. He has lived there continuously since 2004. Mr. Dwyer works for a company called Pentalpha Capital, where he was involved in evaluating complex bundled securities and has worked with legal counsel. He has attended Town Meeting, but did not attend the Town Meeting at which the GCWTOD was adopted. He was aware, however, of the bylaws adoption. Tr. I-58, 72, 74, 81-82, 89-90, 95-96; Exh. 1.
39. Mr. Dwyer heard noise from the clearing work for the foundation construction in October 2011, but did not connect the noise with the ODonnell Turbines. He and his family went on vacation on December 26, 2011. He first saw the ODonnell Turbines when he and his family returned from vacation on January 3, 2012. He was shocked at the size of the turbines and their proximity to his home and other residences on Country Club Way. Tr. I-59-60, 78, 82-83; Exhs. 3, 5, 7, 19, 41.
40. On January 3, 2012, Mr. Dwyer looked at the Towns website and saw the acoustical study for the town-owned turbine that is near the ODonnell Turbines. That same day, he telephoned Thomas Bott, the Town planner, and asked Mr. Bott for a copy of the acoustical study for the ODonnell Turbines. Mr. Bott emailed him a copy of the acoustical study that was part of the site plan application for the ODonnell Turbine Project. Although he was concerned that the acoustical study appeared to be a cut and paste job of the study for the town-owned turbine, he did not ask Mr. Bott for any additional information, nor did he visit Town Hall to review any other documents. Tr. I-60-61, 94-95, 179-181; Exhs. 15, 21, 26.
41. Mr. Bott suggested that Mr. Dwyer contact Henny Walters, the Town health agent. Mr. Dwyer telephoned her during the week of January 3, 2012. Ms. Walters told him that the board of health only reviewed the site plan application with respect to location. Mr. Dwyer then reached out to the president of the neighborhood association to determine whether the community would address the issue of the turbines, but was told nothing could be done. Later in the week of January 3, 2012, he spoke with neighbors about engaging legal counsel, and was approached by Ms. Obey. He engaged his attorney, Mr. Senie, in February or March 2012. Tr. I-62, 68-71.
42. Plaintiff Piotr Lazowski lives at 389 Country Club Way, Kingston. He has lived there continuously since 2008. He has never attended Town Meeting, but has visited Town Hall. In or around 2009, Dr. Lazowski, as part of a group of doctors, was a party to zoning litigation with the Town of Plymouth regarding a medical building, for which he hired an attorney. Tr. II-262-263, 267-269; Exh. 1.
43. Dr. Lazowski first saw the ODonnell Turbines while driving home from work at the end of December 2011. The court finds that Dr. Lazowski saw Turbine 3 sometime in the few days after December 18, 2011. He was struck by the size of Turbine 3 and by the fact that it was so visible from his house. He did not contact anyone at the Town about the ODonnell Turbines, but he did look at the Towns website. He contacted Ms. Obey in January and talked with her about the turbines. He then deferred to Ms. Obey to talk to other neighbors. Tr. II-264-267; Exhs. 1, 41, 42, 43; View.
44. Plaintiffs Caitlin Gavin-Day, Sean Day, Patrick Gavin, William Moore, Jennifer DiRico, and Jenna Goldstein live in or own houses on Raboth Road, Kingston, along Smelt Pond and south of the ODonnell Property. The location of their homes is shown on the Decision Sketch attached hereto. Exh. 1.
45. Noise from the clearing and construction work for the foundation and turbine construction was audible at the Raboth Road properties beginning in October 2011. Turbine 2 was constructed to its full height and the rotor and blades attached on December 23, 2011. As of that date, Turbine 2 was visible to anyone passing along the section of Raboth Road that passes by the DiRico and Goldstein properties. Turbine 3 was constructed to its full height and the rotor and blades attached on December 31, 2011. As of that date, Turbine 3 was visible to anyone passing along the section of Raboth Road from Smelt Pond Road past the plaintiffs properties. Tr. I-242-243, 248-249, II-288; View; Exhs. 1, 3, 5, 7, 19, 41, 43.
46. Plaintiff Caitlin Gavin-Day lives at 8 Raboth Road, Kingston. Ms. Gavin-Day grew up at this address and has lived there on and off for 34 years. She was living there in December 2011 and January 2012. She attended one Town Meeting in 2007 or 2008, which concerned a warrant article to establish a district pursuant to G.L. c. 40R at the ODonnell Property. She accompanied her mother, who opposed the c. 40R district and engaged in litigation with ODonnell. She knows where Town Hall is located. Tr. II-278, 295-296, 298-301; Exh. 1.
47. Ms. Gavin-Day first saw the ODonnell Turbines during a day toward the end of December. The court finds that she saw either Turbine 2 or Turbine 1, sometime between December 23 and December 31, 2011. From then on, she passed them twice a day, five days a week on her way to work. At the time she saw the turbines, she had no concerns and did not do anything. She did not contact the Town. She did not participate in the zoning enforcement request or the Petition. She agreed to become a plaintiff in this action in September 2012 after plaintiff Jennifer DiRico invited her to meet Mr. Senie. Tr. II-294-297, 301-303; Exhs. 1, 41, 43; View.
48. Plaintiff Sean Day lives at 8 Raboth Road, Kingston. He is married to Ms. Gavin-Day. He moved to their house in March 2010 and was living there in December 2011 and January 2012. He does not volunteer for any Town boards and has not attended a Town Meeting. Tr. II-290-292; Exh. 1.
49. Mr. Day first saw the ODonnell Turbines in mid to late December 2011. He can see them from his house and his yard. The court finds that he saw both Turbine 2 and Turbine 1, sometime between December 23 and December 31, 2011. From then on, he passed them twice a day, five days a week on his way to work. Within a few days after seeing the turbines, he visited the Town website. He took no further action with respect to the ODonnell Turbines. He did not participate in the zoning enforcement request or the Petition. He agreed to become a plaintiff in this action in September 2012 at the invitation of plaintiff Jennifer DiRico. Tr. II-290-295, 301-303; Exhs. 1, 41, 43; View.
50. Plaintiff Patrick Gavin lives at 8 Raboth Road, Kingston. He is the brother of Ms. Gavin-Day. He grew up in the house, but was not living there in December 2011 and January 2012. Ms. Gavin-Day and Mr. Day were living in the house at that time. Mr. Gavin visited the house in for one or two days around December 25, 2011. He formally changed his residence to 8 Raboth Road at the end of May 2012, but did not move into the house full-time until fall 2012. Tr. II-271-274, 278; Exh. 1.
51. Mr. Gavin did not see any of the ODonnell Turbines during his visit to the property around December 25, 2011, although Turbine 2 was fully constructed and visible from Raboth Road. He saw Turbines 1 and 2 when he visited again in February or March 2012. He never contacted any Town officials about the turbines or visited Town Hall. He did not participate in the zoning enforcement request or the Petition. He agreed to become a plaintiff in this action in September 2012 after plaintiff Jennifer DiRico spoke to his sister. Tr. II-272, 277-278.
52. Plaintiff William Moore lives at 10 Raboth Road, Kingston. He has lived there for 15 years, and was living there in December 2011 and January 2012. He lives next door to Ms. Gavin-Day, Mr. Day, and Mr. Gavin. He has visited Town Hall for stickers and licenses, and is aware of what a building permit is. He did not attend the Town Meeting at which the GCWTOD was adopted. Tr. II-279-282, 284-286; Exh. 1.
53. In October 2011, Mr. Moore heard noise from the clearing and construction of the foundations for the ODonnell Turbines, but could not tell where it was coming from. He first saw the ODonnell Turbines in December 2011. The court finds that he saw Turbine 2 shortly after December 23, 2011. While he found the turbines to be a big surprise, the only thing he did in response to seeing the ODonnell Turbines was to speak to his neighbors, Ms. Gavin-Day and Mr. Day. He did not participate in the zoning enforcement request or the Petition. He joined this action as a plaintiff in September 2012. Tr. II-280-283, 288.
54. Plaintiff Jennifer DiRico owns a house at 28 Raboth Road, Kingston. She also owns homes in Hamilton, Massachusetts, and Key Largo, Florida. Ms. DiRico was not in her Raboth Road home in December 2011 and January 2012; she was in Key Largo. She first saw the ODonnell Turbines on January 30, 2012. The turbines were not operating at that time. She did not contact Town Hall or engage an attorney at that time. She returned to her Kingston home at Easter 2012, and then during the summer of 2012. At that time, the turbines were operating and she was concerned about the sound coming from them. Shortly after, she became aware that some of the other plaintiffs were opposed to the turbines. Her husband contacted Mr. Senie in August or the beginning of September 2012. Tr. I-117-120, 126-127; Exh. 1.
55. Ms. DiRico was aware of, and opposed, development on the ODonnell Property for several years. She attended the Town Meeting that approved the warrant article to establish a district pursuant to G.L. c. 40R at the ODonnell Property. She brought a lawsuit opposing the approval of this bylaw and the size of the project at the ODonnell Property under the bylaw. In 2010 or 2011, her husband had a conversation with defendant Mary ODonnell in which they discussed both the proposed project under the c. 40R bylaw and wind turbines on the ODonnell Property. She was aware that the GCWTOD had been enacted and that it applied to the ODonnell Property. Tr. I-123-126, 128-130, 132-133.
56. Sometime shortly after the Planning Board meeting that considered ODonnells site plan application for the ODonnell Turbine Project in June 2010, Fred Svenson telephoned Frank DiRico, Ms. DiRicos husband. Mr. Svenson told Mr. DiRico that Ms. ODonnell was planning to build wind turbines at the ODonnell Property. The court does not credit Ms. DiRicos denial that her husband did not inform her of this conversation, and finds that she knew of the ODonnell Turbine Project in the summer of 2010. Tr. I-121, 241-242, 244-248.
57. Plaintiff Jenna Goldstein lives at 44 Raboth Road, Kingston. She has lived there continuously since 2010. She has visited Town Hall for a dog license, and is aware of what a building permit is. She did not attend the Town Meeting at which the GCWTOD was adopted. Tr. I-99-100, 112-116; Exh. 1.
58. Ms. Goldstein first saw the ODonnell Turbines during a day in late December. The court finds that she saw either Turbine 2 or Turbine 1, sometime between December 23 and December 31, 2011. Turbine 2 is visible from her house, and Turbine 1 is visible from Raboth Road. Shortly after she saw the turbines, she did research on the internet. At first, she had no concerns and did not do anything. She did not contact the Town. She became concerned after the turbines began operating, and emailed Ms. ODonnell sometime in the spring of 2012. She did not participate in the zoning enforcement request or the Petition. She contacted Mr. Senie after reading an article in the Boston Globe that mentioned his name. Tr. I-101-103, 107-108, 114-116; Exhs. 1, 41, 43; View.
Discussion and Conclusions of Law
This case arises from the plaintiffs April 9, 2012, zoning enforcement request to the Building Commissioner and their subsequent appeal of the Building Commissioners denial to the ZBA in the Petition. The basis for the Petition was that the Building Permits were invalid because (a) the site plan application from ODonnell was not properly filed with the Town Clerk; (b) notice of the site plan proceedings was faulty in that it did not adhere to G.L. c. 40A, § 9; (c) the Site Plan Approval was sought and granted prior to the effective date of the zoning amendment; (d) the Site Plan Approval contained inappropriate conditions relative to future peer review; and (e) the Planning Board proceeding from the date of the filing of the site plan application to the date of the issuance of the Site Plan Approval was arbitrary and capricious.
As discussed in the Order, the plaintiffs were not entitled to directly appeal the Site Plan Approval to the ZBA under G.L. c. 40A, § 8, at the time it was issued in 2010. A planning boards site plan approval [is] not an appealable order under § 8. Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 142 (2000). Under the GCWTOD, site plan approval of a turbine project is a prerequisite to the issuance of a building permit, not a final decision. Exh. 2, Zoning By-Laws § 4.16.3.1; see St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1 , 9 (1999); Dufault, 49 Mass. App. Ct. at 141-142. This means that the right of an aggrieved person to appeal a local planning boards site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector. Dufault, 49 Mass. App. Ct. at 141, quoting St. Botolph Citizens Comm., 429 Mass. at 9. The plaintiffs properly challenged the Site Plan Decision only after the Building Permits were issued in December 2011.
The plaintiffs challenge, therefore, is to the building permit itself, not to the underlying site plan approval or other grounds for the challenge. As a challenge to a building permit, it must be brought in compliance with G.L. c. 40A, § 7, or §§ 8 and 15, whichever are applicable. The plaintiffs sought to challenge the Building Permits through an enforcement request under G.L. c. 40A, § 7, a request that could be made any time within six years of the date of the Building Permits. The defendants contend that the plaintiffs were obligated to follow G.L. c. 40A, §§ 8 and 15, and appeal the Building Permits to the ZBA within thirty days of their issuance. The issue before the court in this evidentiary proceeding is which statutory regime and which time limit, six years or thirty days, applied to the plaintiffs initial challenge to the Building Permits. This question, addressed by both the SJC and the Appeals Court, does not lend itself to a simple answer.
A party who is aggrieved by the issuance of a building permit to another party may pursue the administrative remedies available within the Zoning Enabling Act, as set forth in G.L. c. 40A, §§ 7, 8, and 15. Connors v. Annino, 460 Mass. 790 , 793-794 (2011); Gallivan v. Zoning Bd. Of Appeal of Wellesley, 71 Mass. App. Ct. 850 , 854-855 (2008). Under G.L. c. 40A, § 8, an appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken
by any person
of the city or town
aggrieved by an order or decision of the inspector of buildings
in violation of any provision of this chapter or any ordinance or by-law adopted thereunder. G.L. c. 40A, § 8. To take the appeal, the petitioner shall file a notice of appeal specifying the grounds thereof. G.L. c. 40A, § 15. An appeal brought pursuant to § 8 shall be taken within thirty days from the date of the order or decision which is being appealed. G.L. c. 40A, § 15. General Laws c. 40A, § 7 provides for enforcement of zoning regulations and violations thereof. Under § 7, a request for enforcement of a zoning by-law can be made to the person or board designated by local ordinance or by-law to enforce zoning ordinances or by-lawshere, the Building Commissioner. G.L. c. 40A, § 7. Requests for enforcement must be submitted within six years after the commencement of the alleged violation of law. Id.
These two remedies, with their respective time limits of thirty days and six years, apply in distinct circumstances and do not operate to provide an aggrieved person with an option of substituting one for the other. Gallivan, 71 Mass. App. Ct. at 851. Permitting the aggrieved party this choice would make little sense if aggrieved parties armed with knowledge of a zoning violation could sit on [their] rights while the recipient of the permit incurs substantial expense undertaking authorized construction, only to have the aggrieved party
in the next six years
demand enforcement of a zoning restriction. Id. at 857. The question is when is a person obligated to enforce a zoning violation by appealing a building permit within 30 days under §§ 8 and 15, rather than seeking zoning enforcement within six years under § 7. A party that has fair opportunity to appeal from the issuance of a permit pursuant to §§ 8 and 15 is not entitled to forego that remedy in favor of a subsequent request for enforcement and appeal therefrom under § 7. Connors, 460 Mass. at 797; Gallivan, 71 Mass. App. Ct. at 855.
Whether a party has fair opportunity turns on whether the aggrieved party had adequate notice of the building permits issuance in time to challenge it within the thirty days. Connors, 460 Mass. at 796. Adequate notice may be actual notice or constructive notice. Gallivan, 71 Mass. App. Ct. at 859; Miles-Matthias v. Zoning Bd. of Appeals of Seekonk, 84 Mass. App. Ct. 778 , 782 (2014); Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912 , 913 (2012). When notice, either actual or constructive, gives the plaintiff a reasonable opportunity to appeal to the board within thirty days, failure to do so precludes a subsequent attack on the permit by means of an enforcement request. Gallivan, 71 Mass. App. Ct. at 859-860.
Actual notice is what it sounds likeactual notice of the issuance of the building permit. A party has constructive notice when the evidence is sufficient to place on [that party] a duty of inquiry regarding the building permits issuance. Gallivan, 71 Mass. App. Ct. at 859; see Miles-Matthias, 84 Mass. App. Ct. at 782. Courts have not specified whether the required notice, actual or constructive, is notice only of the issuance of the building permit or notice of both the permit and the underlying zoning violation that allegedly makes the permit invalid. Generally, the cases use notice of issuance of the permit and notice of a zoning violation almost interchangeably. See, e.g., Gallivan, 71 Mass. App. Ct. at 855, 856 (referring to lack of notice as applied to the issuance of a building permit or alleged violation of by-law); Richardson, 81 Mass. App. Ct. at 913 (quoting Gallivan regarding notice of violation of zoning provision but goes on to describe notice regarding the building permits issuance); Janey v. Board of Appeals of Wareham, 82 Mass. App. Ct. 1108 (2012) (unpublished opinion) (consistently describes notice as pertaining to the issuance of a building permit); Sim v. Zoning Bd. of Appeals of Burlington, 76 Mass. App. Ct. 1137 (2010) (unpublished opinion) (explaining that there must be actual or constructive notice of a zoning violation within thirty days of issuance of building permit). Section 15, however, is explicit that any appeal of a building permit must specify[] the grounds for the appeal. G.L. c. 40A, § 15. Therefore, in order to appeal a building permit a person must not only be aware of the issuance of the permit but also of the reasons why it should be appealed. In other words, in order to be held to the thirty-day appeal period of §§ 8 and 15, an aggrieved party must have actual or constructive notice not only of the issuance of the building permit but also of the potential zoning violations which form the basis for the appeal.
The Building Permits were issued on December 16, 2011. If §§ 8 and 15 apply, the thirty-day appeal period ran on January 15, 2012. Plaintiffs Lisa Obey, Timothy Dwyer, Cameron Snyder, and Piotr Lazowski filed their enforcement request on April 9, 2012, well after the thirty-day period had run. The other plaintiffs did not file any enforcement request at all. The plaintiffs argue that the statutory provision applicable to their challenge to the Building Permits is G.L. c. 40A, § 7, rather than G.L. c. 40A, §§ 8 and 15. They contend that they did not have adequate notice of either the Building Permits or the zoning violations incurred as a result of the construction of the turbines within thirty days from the date on which the Building Permits were issued. Therefore, they argue, the six-year period of limitations applicable to zoning enforcement requests applies rather than the thirty-day limitation period that applies to an appeal of a building permit. Because they made the zoning enforcement request well within six years of the violation and appealed the Building Commissioners response to the zoning enforcement request to the ZBA within the statutorily prescribed time period, the plaintiffs argue that they are entitled to appeal the ZBAs denial of the Petition to this Court.
Whether the plaintiffs were bound by §§ 8 and 15s 30-day time limit or § 7s six-year time limit depends on the answers that the evidence provides to the following questions:
1. When did each of the plaintiffs have actual notice of the issuance of the Building Permits?
2. When did each of the plaintiffs become aware of the ODonnell Turbine Project, including but not limited to construction thereof, sufficient to put them on constructive notice of the issuance of the Building Permits?
3. What inquiry did the plaintiffs need to make in order to determine their grounds for appeal of the Building Permits? The grounds for appeal to be considered are limited to the five objections to the Site Plan Approval that were made to the Building Commissioner and that were the subject of the appeal to the ZBA. No other objections to the Site Plan Approval or the ODonnell Turbine Project, whether raised in this action or in any other forum, are considered. These five objections are as follows:
a. The site plan application from ODonnell was not properly filed with the Town Clerk;
b. Notice of the site plan proceedings was faulty in that it did not adhere to G.L. c. 40A, § 9;
c. The Site Plan Approval was sought and granted prior to the effective date of the zoning amendment;
d. The Site Plan Approval contained inappropriate conditions relative to future peer review; and
e. The Planning Board proceeding from the date of the filing of the site plan application to the date of the issuance of the Site Plan Approval was arbitrary and capricious.
4. When did each of the plaintiffs have knowledge of the five grounds for appeal?
5. Given the knowledge of the plaintiffs, did they have adequate time to appeal the Building Permits to the ZBA by January 15, 2012?
The court makes the following conclusions of law in answer to each question with respect to each of the plaintiffs.
Actual notice. None of the plaintiffs had actual notice of the issuance of the Building Permits on December 16, 2011.
Constructive notice. Each of the plaintiffs was sufficiently aware of the construction of the ODonnell Turbines to be on constructive notice of the issuance of the Building Permits for the turbines. All of the plaintiffs are aware that a building permit is required for construction in the Town of Kingston. For most of the plaintiffs, the sight of one of the turbines constructed to its full height was sufficient to put that person on notice that a Building Permit had issued for its construction. With respect to the plaintiffs living on Country Club Way, Lisa Obey and Piotr Lazowski both saw Turbine 3 no later than December 20, 2011, and were each therefore on notice of the Building Permits on that date. Cameron Snyder saw Turbine 2 on December 23, 2011, and was therefore on notice of the Building Permits on that date. Timothy Dwyer first saw Turbine 3 on January 3, 2012, and was therefore on notice of the Building Permits on that date.
With respect to the plaintiffs living on Raboth Road, Caitlin Gavin-Day, Sean Day, and Jenna Goldstein first saw either Turbine 1 or Turbine 2 no later than December 31, 2011, and were each therefore on notice of the Building Permits on that date. William Moore first saw Turbine 2 no later than December 25, 2011, and was therefore on notice of the Building Permits on that date.
Two of the plaintiffs, Patrick Gavin and Jennifer DiRico, did not see the ODonnell Turbines in December 2011 or January 2012. Each of them did, however, have constructive knowledge of the Building Permits. Patrick Gavin was not living at the 8 Raboth Road house in December 2011 and January 2012, but his sister and brother-in-law were. It is reasonable to infer that they would communicate their knowledge of the ODonnell Turbines to him. Therefore, their knowledge of the construction of the ODonnell Turbines is imputed to Patrick Gavin, and he was on notice of the Building Permits no later than December 31, 2011.
Jennifer DiRico was not in Kingston in December 2011 or early January 2012; she first saw the ODonnell Turbines on January 30, 2012. She was, however, aware of development proposals on the ODonnell Property, and had brought actions against previous development proposals. She had knowledge of the adoption of the GCWTOD and that the bylaw applied to the ODonnell Property. She had knowledge that Ms. ODonnell was interested in building wind turbines on the ODonnell Property. Most important, she had knowledge, through her husband, of ODonnells site plan application for the ODonnell Turbine Project by the summer of 2010. In light of Ms. DiRicos previous efforts to oppose development of the ODonnell Property, this knowledge put her on notice that a site plan approval might issue under the GCWTOD for the ODonnell Turbine Project, a prerequisite to the issuance of the Building Permits, so that she had an obligation to monitor whether the Building Permits issued. See Connors, 460 Mass. at 791-792 (plaintiff aware of construction plans and issuance of building permit); Miles-Matthias, 84 Mass. App. Ct. at 782-783 (plaintiff aware of defendants plans for driveway before building commissioner decision issued); Richardson, 81 Mass. App. Ct. at 913 (plaintiff aware of proposed construction before issuance of building permit).
Inquiry needed to determine grounds for appeal. Each of the five grounds for appeal could be determined from public records held by the Town at the time each of the plaintiffs had constructive knowledge of the Building Permits. (a) The Site Plan Approval Notification Form, which constituted the initial site plan application, was filed with the Planning Board. A review of the Form as filed with the Planning Board and a review of the records of the Town Clerk, both of which are at Town Hall, would have disclosed that the Form was not filed with the Town Clerk before it was filed with the Planning Board. (b) Each of the plaintiffs was aware that he or she did not receive notice of the Planning Boards meeting to review the site plan application. A review of the file with the Planning Board would have disclosed just what notice the Planning Board gave of its June 28, 2010, meeting at which it voted and issued the Site Plan Approval and its meetings in October and November 2011 at which it voted to amend the site plan. (c) The date of the Site Plan Approval, June 28, 2010, and the dates on which the GCWTOD was approved by the Attorney General and posted in the Town are matters of public record available from the Town. (d) The conditions of the Site Plan Approval with respect to peer review are stated on the face of the Site Plan Approval, which was filed with the Town Clerk on July 19, 2010. (e) The entire record of the Planning Boards proceeding from the filing of the Site Plan Approval Notification Form on May 27, 2010, to the Planning Boards Site Plan Approval on June 28, 2010, was available at Town Hall. This includes the Form, the application binder supplementing the Form that included a shadow flicker analysis, an acoustical analysis, plans, and other information and documents, the Town Planners transmittal memorandum, minutes, and the Site Plan Approval itself. Review of these materials would disclose whether there were grounds to consider the Planning Boards process arbitrary and capricious.
When each plaintiff had knowledge of the grounds and, given their knowledge, whether they had adequate time to appeal. Based on the facts found by the court, while not all of the plaintiffs had knowledge of the grounds of appeal by January 15, 2012, each of them had sufficient opportunity to learn of those grounds within an adequate time to file an appeal within thirty days of the date of the issuance of the Building Permits, or January 15, 2012. Ms. Obey knew of the ODonnell Turbines and had constructive notice of the Building Permits on December 20, 2011, and telephoned Town Hall for information. She did not take any further action to inform herself, even though she is aware of Town government and all the information necessary to determine the grounds for appeal was available at Town Hall. She could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Mr. Snyder was aware of the ODonnell Turbines and had constructive notice of the Building Permits on December 23, 2011. He took no action to determine any grounds for appeal, even though all the information necessary to determine the grounds for appeal was available at Town Hall. He could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Mr. Dwyer was aware of the ODonnell Turbines and had constructive notice of the Building Permits on January 3, 2012. He telephoned Mr. Bott, the Town Planner, and obtained the acoustical study, and spoke to Ms. Walters, the Town health agent. In his profession, Mr. Dwyer undertakes complex analyses and has experience working with legal counsel. From his actions, Mr. Dwyer had information to support some grounds for appeal. He had the opportunity, expertise, and experience to obtain information and determine the other grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Dr. Lazowski knew of the ODonnell Turbines and had constructive notice of the Building Permits on December 20, 2011, and looked at the Towns website for information. He did not take any further action to inform himself, even though all the information necessary to determine the grounds for appeal was available at Town Hall. He was aware of the nature and process of zoning appeals by his experience with his medical practice, and knows where Town Hall is. He could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Ms. Gavin-Day and Mr. Day knew of the ODonnell Turbines and had constructive notice of the Building Permits on December 30, 2011. Ms. Gavin-Day had no initial concerns about the turbines, and neither of them took any action whatsoever to inform themselves of any grounds for appeal, even though all the information necessary to determine the grounds for appeal was available at Town Hall. Ms. Gavin-Day has lived in Kingston most of her life, has attended Town Meeting, and knows where Town Hall is. Neither of them participated in the zoning enforcement request or the Petition. Both of them could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but neither did so.
Mr. Gavin is charged with the knowledge of Ms. Gavin-Day and Mr. Day and had constructive notice of the Building Permits on December 30, 2011. He took no action, nor asked Ms. Gavin-Day or Mr. Day to take any action, to determine the grounds for appeal. He did not participate in the zoning enforcement request or the Petition. He could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Mr. Moore knew of the ODonnell Turbines and had constructive notice of the Building Permits on December 25, 2011. He took no action whatsoever to inform himself of any grounds for appeal, except to speak to Ms. Gavin-Day and Mr. Day, even though all the information necessary to determine the grounds for appeal was available at Town Hall. He did not participate in the zoning enforcement request or the Petition. He could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Ms. DiRico had constructive notice of the ODonnell Turbine Project in the summer of 2010. With that constructive notice, she was under a duty to inquire as to whether the Building Permits had issued. Gallivan, 71 Mass. App. Ct. at 859; Miles-Matthias, 84 Mass. App. Ct. at 782. She did not do so, nor did she participate in the zoning enforcement request or the Petition. She is subject to the thirty-day appeal period of January 15, 2012.
Ms. Goldstein knew of the ODonnell Turbines and had constructive notice of the Building Permits on December 30, 2011. She looked at the Towns website for information, but had no concerns. She knows where Town Hall is. She did not contact the Town or take any further action to inform herself, even though all the information necessary to determine the grounds for appeal was available at Town Hall. She did not participate in the zoning enforcement request or the Petition. She could have determined the grounds for appeal with adequate time to appeal the Building Permits by January 15, 2012, but did not do so.
Each of the plaintiffs had constructive notice of the Building Permits and the grounds for appealing them sufficient to have obligated them to have appealed the Building Permits to the ZBA pursuant to G.L. c. 40A §§ 8 and 15. Such an appeal was required to be filed by January 15, 2012, the last day of the thirty-day appeal period under § 15. The plaintiffs failed to appeal the Building Permits by that date. Because the plaintiffs failed to appeal the Building Permits within the thirty-day period as required by § 15, the court lacks subject matter jurisdiction over this action. Connors, 460 Mass. at 797. The Motion to Dismiss must be allowed, and this action dismissed.
Conclusion
For the foregoing reasons, Defendant ODonnells Motion to Dismiss Plaintiffs Appeal is hereby ALLOWED. The plaintiffs complaint shall be DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction. Judgment to issue accordingly.
PATRICK GAVIN, CAITLIN GAVIN-DAY, SEAN DAY, JENNA GOLDSTEIN, JENNIFER DIRICO, WILLIAM MOORE, TIMOTHY DWYER, LISA OBEY, CAMERON SNYDER, and PIOTR LAZOWSKI v. JOHN L. HAAS, DAVID M. ROSE, GEORGE H. BOERGER, PAUL B. DAHLEN, CARL L. PIKE, R. LINDSAY WILSON II, and PHILIP A. RICARDI, as they are members of the KINGSTON ZONING BOARD OF APPEALS, TOWN OF KINGSTON, NO FOSSIL FUELS, LLC, and MARY O'DONNELL and KEON C. O'DONNELL, trustees of the O'Donnell Family Realty Trust.
