JOSEPH BYLINSKI v. LARRY LENCH, as he is the BUILDING COMMISSIONER of the TOWN OF DOUGLAS, GUARANTEED BUILDERS & DEVELOPERS, INC., and LOUIS TUSINO.

This case is the latest of Joseph Bylinski's several attempts to have removed an illegally constructed house next door to his property in Douglas, Massachusetts. In 2009, the Building Commissioner of the Town of Douglas (Town) issued a building permit to defendant Guaranteed Builders & Developers, Inc. (GBI) for the construction of a single-family home on an undersized lot at 103 Shore Road in Douglas, Massachusetts (Property). The Property is owned by Louis Tusino, president of GBI. Plaintiff Joseph Bylinski (Bylinski), an abutter to the Property, requested that the Building Commissioner revoke the building permit. After his request was denied, Bylinski appealed the denial to the Douglas Zoning Board of Appeals (ZBA). After the ZBA failed to act on the appeal, resulting in a constructive grant of Bylinski's appeal and revocation of the building permit, Bylinski brought this action in mandamus in this court seeking a judgment compelling the Building Commissioner to order the removal of the residence. This court dismissed Bylinski's complaint on the grounds that mandamus did not lie because he had not sought enforcement of his constructively approved appeal with the Building Commissioner. Bylinski appealed this judgment, and, at the same time, went ahead and sought enforcement from the Building Commissioner. The Building Commissioner denied enforcement, but on appeal the ZBA reversed the Building Commissioner and ordered the structure torn down. GBI and Tusino appealed that order to the Uxbridge District Court, which affirmed the ZBA, and they appealed. In its August 2016 decision in Tusino v. Zoning Bd. of Appeals of Douglas, 90 Mass. App. Ct. 89 (2016), the Appeals Court dismissed the appeal of the Uxbridge District Court judgment, rendering the ZBA order requiring GBI to demolish or remove the residence illegally built on the Property final, and dismissed the appeal of this court's judgment as moot. GBI has refused to comply with the order, and the Building Commissioner refuses to take any action to compel GBI and Tusino to comply. The court allowed Bylinski's motion to reopen this action and Bylinski now moves for summary judgment seeking relief by way of an action in the nature of mandamus, pursuant to G.L. c. 249, § 5, for enforcement of the ZBA decision and ordering the removal of the dwelling constructed on the Property. The Town takes no position regarding Bylinski's efforts to obtain an order from this court directing GBI to remove the house on the Property. The Town does oppose and object to any request or order that would otherwise require it to pursue, or assist in the pursuit of, the demolition of the house. GBI and Tusino argue that Bylinski does not have standing to pursue this matter beyond requesting enforcement from the Town and that this court can order an equitable alternative to the ZBA's demolition order. As further explained below, the ZBA decision delegates to Bylinski the authority to seek enforcement of the tear-down order, thus giving him standing, and GBI is ordered to remove the dwelling located on the Property.

Procedural History

Bylinski filed his complaint in this action on August 21, 2009. GBI filed its answer on September 8, 2009 and the Commissioner filed her answer on October 15, 2009. The case management conference was held on October 26, 2009. Bylinski's motion to amend the complaint was heard and allowed, and the amended complaint filed, on May 5, 2010. After the retirement of Judge Trombly, this case was assigned to me on January 25, 2012. Bylinski's motion to further amend the complaint was allowed on February 10, 2012, and he filed his second amended complaint on February 14, 2012. GBI filed its answer to the second amended complaint on March 22, 2012.

On June 10, 2013, Bylinski filed Joseph Bylinski's Motion for Summary Judgment, the Statement of Material Facts in Support of Joseph Bylinski's Motion for Summary Judgment, the Memorandum in Support of Joseph Bylinski's Motion for Summary Judgment, and the Appendix in Support of Joseph Bylinski's Motion for Summary Judgment. The Building Commissioner filed Defendant's Partial Opposition to Plaintiff's Motion for Summary Judgment on June 19, 2013. GBI filed Defendant, Guaranteed Builders & Developers, Inc., Opposition to Plaintiff's Motion for Summary Judgment and Appendix in Support of Guaranteed filed Defendant, Guaranteed Builders & Developers, Inc., Opposition to Plaintiff's Motion for Summary Judgment on July 23, 2013. Bylinski's Motion for Summary Judgment was heard on August 1, 2013, and taken it under advisement. Bylinski's Motion to Supplement the Record was allowed on March 20, 2014, and a letter from counsel for GBI was filed on April 2, 2014. In a decision issued on June 13, 2014, this court denied Bylinski's motion for summary judgment and dismissed the action. Bylinski filed a Notice of Appeal to the Appeals Court on June 30, 2014. On August 25, 2016, the Appeals Court dismissed Bylinski's appeal as moot. Tusino, supra.

On February 6, 2017, Bylinski filed a Motion to Vacate Order of Dismissal. Defendant, Adelle Reynolds' Limited Opposition to Plaintiff, Joseph Bylinski's Motion to Vacate Order of Dismissal was filed on February 13, 2017. On February 21, 2017, GBI filed Guaranteed Builders & Developers, Inc., Opposition to Motion to Vacate Order of Dismissal. A hearing on the motion to vacate was held on February 23, 2017, at which the court asked the parties to file memorandum of law regarding whether a new case would invoke the six-year limitations period of G.L. c. 40A, § 7. Bylinski and GBI each filed a memorandum regarding the statute of limitations issue on March 6, 2017, upon receipt of which, the court took the motion under advisement. On March 13, 2017, this court issued an Order Allowing Motion to Vacate Order of Dismissal.

On March 29, 2017, Bylinski filed a Motion to Further Amend Complaint. On April 3, 2017, the Motion to Further Amend Complaint was allowed and the Third Amended Complaint was filed, amending the Complaint to substitute the current Building Commissioner, Larry Lench, for Reynolds and adding Louis Tusino as a defendant. On April 27, 2017, GBI and Tusino filed their Answers to Third Amended Complaint and Affirmative Defenses. On May 26, 2017, Bylinski filed his Motion for Summary Judgment, Statement of Material Facts in Support of Plaintiff's Motion for Summary Judgment (SOF), and Memorandum in Support of Plaintiff's Motion for Summary Judgment and Appendix (App.). On June 21, 2017, Larry Lench filed his Limited Opposition to Plaintiff Joseph Bylinski's Motion for Summary Judgment. GBI and Tusino filed their Memorandum in Opposition to Joseph Bylinski's Motion for Summary Judgment, Response to Plaintiff's Statement of Facts (Def. SOF), and Appendix (Def. App.) were filed on June 23, 2017. The Reply of Bylinski to Opposition to his Motion for Summary Judgment filed by GBI and Affidavit of Carol Bylinski in Support of Joseph Bylinski's Standing to Maintain this Action (Bylinski Aff.) were filed on July 10, 2017. A hearing on Bylinski's Motion for Summary Judgment was held on July 11, 2017, and the court took the motion under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

Based on the pleadings and the documents submitted with the cross-motions for summary judgment, the following facts are undisputed or deemed admitted:

1. Bylinski owns the property known as and numbered 105 Shore Road, Douglas, Massachusetts (Bylinski Property). The Bylinski Property is improved by a single family residence. SOF ¶ 6; Def. SOF ¶ 6.

2. The Bylinski Property was originally developed by Bylinski's father who constructed a cottage in or around 1964, at which time the structure complied with the zoning regulations. Bylinski Aff. ¶¶ 4, 5.

3. In 2005, after the zoning requirements were made more restrictive, Bylinski was required to obtain authorization from the ZBA to reconstruct the cottage. The cottage was reconstructed on the footprint of the original cottage in 2005 or 2006. At the time of the reconstruction, Bylinski believed that the Property was not a buildable lot.

Bylinski Aff. ¶¶ 6, 7, 13.

4. Larry Lench (Lench) is the Building Commissioner of the Town of Douglas, with a principal place of business at 29 Depot Street, Douglas, Massachusetts. Lench, in his capacity as Building Commissioner, is charged with enforcement of the Zoning Bylaw for the Town of Douglas (Bylaw). SOF ¶¶ 2, 5; Def. SOF ¶¶ 2, 5.

5. Section 9.1.2 of the Bylaw states:

The Building Inspector shall institute and take any and all such action as may be necessary to enforce full compliance with any and all of the provisions of this By–Law and of permits and variances issued thereunder, including notification of noncompliance and request for legal action through the Selectmen to Town Counsel.

Def. App., Exh. A.

6. GBI is a Massachusetts business corporation with a principal place of business at 14 West Street, Douglas, Massachusetts. Tusino is the President of GBI. SOF ¶ 3; Def. SOF ¶ 3.

7. Adjacent to the Bylinski Property is the Property, a parcel of land identified as 103 Shore Road, Douglas. SOF ¶ 7; Def. SOF ¶ 7.

8. The property to the north of the Property is owned by the Commonwealth of Massachusetts and is managed as a state forest by the Department of Environmental Management. SOF ¶ 16; App. pp. 37-38; Def. SOF ¶ 16.

9. Shore Road is located to the east of the Property. SOF ¶ 17; App. pp. 35-36; Def. SOF ¶ 17.

10. Wallum Lake, a state-owned great pond, is located to the west of the Property. SOF ¶ 18; App. p. 36; Def. SOF ¶ 18; App., Exh. D.

11. In 1989, GBI purchased the Property for $19,500.00 by a deed recorded with the Worcester District Registry of Deeds (registry) in Book 12351, Page 96. SOF ¶¶ 7-8; App. p. 12; Def. SOF ¶¶ 7-8.

12. The Property lies entirely within the "RA" residential zoning district under the Bylaw. SOF ¶ 9; App. p. 14; Def. SOF ¶ 9.

13. According to the current Bylaw, adopted September 24, 1970, and amended on May 13, 1978, lots in the RA zoning district must have frontage of at least 200 feet and a minimum of 90,000 square feet of lot area to be considered buildable. Structures are required to maintain a minimum side yard setback of 25 feet and a minimum front yard setback of 50 feet. SOF ¶¶ 10-11; App. pp. 22, 26; Def. SOF ¶¶ 10-11.

14. The Property does not satisfy the requirements for a buildable lot. The Property has 47.5 feet of frontage and a lot area of 6,531 square feet. SOF ¶¶ 12-13; App. pp. 14, 22, 26; Def. SOF ¶¶ 12-13.

15. Despite the fact that the Property has less frontage and lot area than required by the Bylaw, on July 8, 2008, Lench's predecessor, Adelle Reynolds (Reynolds), issued GBI a building permit to construct a single family residence on the Property. SOF ¶ 19; App. pp. 26, 40; Def. SOF ¶ 19.

16. On or about February 7, 2009, GBI began excavation at the Property. SOF ¶ 20; App. p. 3; Def. SOF ¶ 20.

17. On February 9, 2009, Bylinski requested that Reynolds revoke the building permit. On February 19, 2009, Reynolds responded to Bylinski's request and refused to revoke the building permit. SOF ¶¶ 21-22; App. pp. 3, 28; Def. SOF ¶¶ 21-22.

18. On February 25, 2009, Bylinski filed an application with the ZBA appealing Reynolds's denial of his enforcement request. SOF ¶ 23; App. p. 28; Def. SOF ¶ 23.

19. The ZBA failed to decide the appeal within 100 days, or by June 5, 2009, thereby constructively granting Bylinski's appeal pursuant to G.L. c. 40A, § 15. The result was that GBI's building permit was revoked. Bylinski filed notice of the constructive grant of his appeal and the revocation of the building permit with the Douglas Town Clerk on June 9, 2009. SOF ¶¶ 25-26; App. pp. 28, 32-33; Def. SOF ¶¶ 25-26.

20. On July 20, 2009, the Town issued GBI a permit to perform electrical work at the Property and construction activity continued. SOF ¶ 27; App. pp. 3, 8; Def. SOF ¶ 27.

21. On September 3, 2009, GBI's appeal from the constructive grant and revocation of its building permit was transferred from the Uxbridge District Court to the Worcester Superior Court. SOF ¶ 28; App. pp. 3, 8; Def. SOF ¶ 28.

22. On January 27, 2012, the Superior Court (Tucker, J.) affirmed the constructive revocation of GBI's building permit and entered judgment on February 2, 2012. SOF ¶ 29; App. p. 34; Def. SOF ¶ 29.

23. At some time prior to the Superior Court judgment, GBI finished construction of a single family residence on the Property. The residence violates the setback requirements as it sits 14 feet from the southern sideline, 8 feet from the northern sideline, and 25 feet from the front line. SOF ¶¶ 14, 30; App. pp. 14, 22, 41, 50; Def. SOF ¶¶ 14, 30.

24. Bylinski's residence is located south of the Property, approximately 10.22 feet from the shared boundary line. SOF ¶ 15; App. pp. 35-36; Def. SOF ¶ 15.

25. On February 14, 2012, GBI applied to the ZBA for a variance for the residence pursuant to G.L. c. 40A, § 10. SOF ¶ 31; App. pp. 3, 8; Def. SOF ¶ 31.

26. On June 19, 2012 the ZBA denied GBI's application for a variance. SOF ¶ 32; App. pp. 4, 8, 44-45; Def. SOF ¶ 32.

27. On July 5, 2012, GBI filed a complaint in this court appealing the denial of its variance request pursuant to G.L. c. 40A, § 17, docketed as Miscellaneous Case No. 467304 (the variance appeal). SOF ¶ 33; App. pp. 41-42, 50; Def. SOF ¶ 33.

28. By a decision dated April 12, 2013, this court (Foster, J.) dismissed the variance appeal with prejudice, and the dismissal was affirmed by the Appeals Court. Guaranteed Builders, Inc. v. Zoning Bd. of Appeals of the Town of Douglas, 21 LCR 203 (2013), aff'd, 85 Mass. App. Ct. 1101 (2014). SOF ¶ 33; App. pp. 41-42, 50; Def. SOF ¶ 33.

29. On June 10, 2013, Bylinski filed a Motion for Summary Judgment in this action, namely, the mandamus action he instituted on August 21, 2009. On June 13, 2014, this court dismissed the complaint, without prejudice, stating that Bylinski must first exhaust administrative remedies by requesting enforcement by the Building Commissioner and then, in the event the Building Commissioner were again to decline to act, appealing the Building Commissioner's decision to the ZBA. Bylinski appealed this decision to the Appeals Court. SOF ¶ 34; App. pp. 50, 57-59; Def. SOF ¶ 34.

30. On June 26, 2014, Bylinski again wrote to Reynolds requesting enforcement of the Bylaw as to the Property. SOF ¶ 35; App. p. 60; Def. SOF ¶ 35.

31. On September 2, 2014, Reynolds issued a written response to Bylinski's enforcement request indicating that she would not enforce the applicable Bylaw. SOF ¶ 36; App. p. 60; Def. SOF ¶ 36.

32. Bylinski appealed Reynold's refusal to enforce the Bylaw to the ZBA. SOF ¶ 37; App., Exhs. 60-61; Def. SOF ¶ 37.

33. On November 19, 2014, the ZBA issued a decision ordering and directing GBI to remove the structure from the Property (the ZBA decision). The ZBA decision states:

[T]he Board hereby unanimously orders and directs, pursuant to its powers under G.L. c. 40A, § 14, that the Property Owner remove or demolish the house on the Property. In accordance with this Order, the Property Owner shall, within thirty (30) days that this Order is served upon him, via mail, file for appropriate permits for the removal and/or demolition of the House; and shall complete such demolition and removal within 120 days from the date that this Order is so served.

This Order may not be construed to require the Town to undertake such removal or demolition in the event that the Property Owner fails to do so. Nor may this Order limit the Petitioner's rights to seek direct injunctive relief in the event that the Property Owner fails to comply with this Order.

SOF ¶ 38; App. pp. 60-61; Def. SOF ¶ 38.

34. GBI appealed the ZBA decision to the Uxbridge District Court, which affirmed the ZBA decision ordering the demolition or removal of the residence from the Property. GBI then appealed the district court judgment to the Appeals Court, which dismissed the appeal for lack of subject matter jurisdiction. In the same decision, the Appeals Court dismissed Bylinski's appeal as moot. Tusino, supra. SOF ¶ 39; App. pp. 63-67; Def. SOF ¶ 39.

35. GBI and Tusino have failed to demolish or remove the structure. SOF ¶ 40; App. pp. 4, 9; Def. SOF ¶ 40.

36. Prior to 2009, the Property was a vacant lot, which had occasionally been used for camping, some passive recreational activity and for access to a boat dock on Wallum Lake. Bylinski Aff. ¶ 8.

37. Before the development of the Property, Bylinski had an unobstructed view of the Douglas State Forest to the north and the waters of Wallum Lake to the northwest. Bylinski Aff. ¶ 10.

Discussion

The principal issues presented by Bylinski's motion for summary judgment are whether Bylinski has standing to seek a writ of mandamus for zoning relief, whether an action in the nature of mandamus requiring enforcement of the Bylaw is proper, and, if so, whether equitable alternatives to demolition of the dwelling on the Property exist. The court need not reach the issue of the propriety of mandamus relief for the enforcement of the Bylaw because, as discussed below, Bylinski is entitled to seek enforcement of the ZBA decision.

I. Standing

Tusino and GBI challenge Bylinski's standing to enforce the ZBA decision on two grounds. First, they argue that as a private citizen, Bylinski does not have standing to seek enforcement of the ZBA decision; only the Town can do so. Second, they suggest that Bylinski is not aggrieved by the Town's not enforcing the ZBA decision.

Bylinski has standing to seek enforcement of the ZBA decision because the ZBA stated in its decision that it was delegating enforcement authority to Bylinski as the Petitioner. The ZBA decision states: "Nor may this order limit the Petitioner's rights to seek direct injunctive relief in the event that the Property owner fails to comply with this Order." Any question of whether the ZBA had the authority to delegate such authority has been resolved, as the decision has been affirmed on appeal. Tusino, supra. Bylinski, having exhausted all other available remedies, has standing under the ZBA decision to ask this court to order that GBI and Tusino comply with the ZBA decision and remove or demolish the dwelling on the Property.

With respect to Bylinski's aggrievement, the parties suggest and this court agrees that such aggrievement be measured by the standard under G.L. c. 40A, § 17. Standing to appeal under § 17 is conferred only upon "aggrieved" parties. Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 572-573 (1989). "[A] person aggrieved is one whose legal rights have been infringed." Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass. 427 , 430 (1949). Owners of abutting property enjoy a presumption of aggrieved party status. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). Bylinski is an abutter to the Property and entitled to a presumption of being an aggrieved party with standing to bring this action. In order to overcome the presumption, GBI must present some evidence to rebut that presumption. "If standing is challenged, the jurisdictional question is decided on ‘all the evidence with no benefit to the plaintiffs from the presumption.'" Marashlian, 421 Mass. at 721, quoting Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957). In its challenge to standing, GBI points to the fact that the Bylinski Property is smaller than the Property and that Bylinski did not object to the dwelling itself, but was objecting to the building permit. Neither of these facts rebuts Bylinski's standing nor suggests that Bylinski is not aggrieved by the construction of the non-permitted dwelling on the Property.

Even if Bylinski's presumption of standing was rebutted, he has presented sufficient evidence that he is an aggrieved party. The Bylinski Property abuts the Property, with the illegally constructed dwelling located only 14 feet from the shared boundary line. Before 2009, the Property was vacant and used for recreational purposes. At the time his cottage was reconstructed in 2005, Bylinski believed that the Property was a non-buildable lot. After the construction of the residence on the Property, the Bylinski Property was subjected to increased density, a harm to an interest protected by the Bylaw. Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11-13 (2009). Bylinski maintains that the close proximity of the dwelling on the Property makes his property considerably less attractive and desirable for him and his wife's use, as well as to perspective purchasers, reducing its property value. Bylinski has standing as an abutter aggrieved by the violation of the Bylaw.

II. Enforcement of the ZBA decision

Bylinski requests relief in the nature of mandamus ordering the Building Commissioner, Lench, to enforce the Bylaw and require GBI and Tusino to tear down the dwelling built on the Property in accordance with the ZBA decision. The court need not reach the issue of whether mandamus relief ordering either the Building Commissioner to enforce the Bylaw or the Town to initiate an enforcement action in Superior Court is appropriate. As discussed, the ZBA decision provides Bylinski with the authority to seek an order enforcing the decision. The ZBA decision is final, and Tusino and GBI refuse to comply with it. Bylinski is entitled to an order enforcing the ZBA decision and requiring the demolition of the dwelling on the Property.

Throughout the protracted course of this litigation Bylinski has fully exhausted all administrative and judicial remedies available to him in his endeavor to have the Bylaw enforced with respect to the illegally constructed dwelling on the Property. After decisions of the ZBA, the Worcester Superior Court, the Uxbridge District Court, a previous decision of this court, and two decisions of the Appeals Court, the status of the dwelling on the Property as illegal and in violation of the Bylaw has been conclusively determined. In its most recent decision, the Appeals Court's most recent decision made final the ZBA decision ordering that the dwelling be removed or demolished, and that decision is now beyond the scope of any further administrative or judicial review. Tusino, supra.

Despite the finality of the ZBA decision, GBI and Tusino have indicated that nothing short of a court order, for which they could be held in contempt, will cause them to comply with the ZBA decision. Further, the Town takes the position that it will not initiate an action to enforce the ZBA decision, arguing that the expense of continued litigation among the two highly litigious parties to this case presents an investment of time and money that could be otherwise allocated to better serve the people of Douglas. Summ. J. Hr'g July 11, 2017. The Town has no objection, however, to Bylinski's seeking enforcement of the ZBA decision as long as the Town may not be required to undertake the removal or demolition of the dwelling on the property itself. Id. In short, the Town feels that it has bigger fish to fry and that their litigation budget is better used to pursue other cases, but will not stand in Bylinski's way. The Town's decision of whether to take legal action to enforce the ZBA decision is discretionary and they may not be compelled to do so. Lutheran Serv. Ass'n of New England, Inc. v. Metro. Dist. Comm'n, 397 Mass. 341 , 344 (1986) ("a court may not compel performance of a discretionary act."), citing Channel Fish Co. v. Boston Fish Mkt. Corp., 359 Mass. 185 , 187 (1971); Scudder v. Selectmen of Sandwich, 309 Mass. 373 , 375-377 (1941).

This does not leave Bylinski without a remedy. As discussed, the ZBA decision, now final, expressly delegated to Bylinski the power to enforce the decision and seek an order to tear down the illegally constructed building on the Property. Bylinski, as an abutter aggrieved by the violation of the Bylaw, and acting with the Town's consent pursuant to the rights delegated to him by the ZBA, is entitled to an order that GBI and Tusino comply with the fully adjudicated final ZBA decision and demolish the dwelling on the Property.

GBI and Tusino argue that an equitable alternative to a demolition order is appropriate in this case. An equitable alternative to the removal or demolition of the dwelling may be available at the court's discretion after considering whether (1) demolition would cause substantial hardship; (2) the property owner greatly changed their position in reasonable reliance on actions taken by a town official; (3) there is injury to a public interest; and (4) the parties acted in good faith. See Delprete v. Zoning Bd. of Appeals of Rockland, 87 Mass. App. Ct. 1104 , No. 13-P- 1749 (Feb. 4, 2015), citing Marblehead v. Deery, 356 Mass. 532 , 537-38 (1969), Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass. App. Ct. 601 , 606-07 (2007), and Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394 , 405 (2012). After beginning construction of the dwelling on the Property in early February, 2009, GBI and Tusino continued construction in spite of Bylinski's February 9, 2009, request that the Building Commissioner revoke the building permit, Bylinski's February 25, 2009, appeal to the ZBA of the Building Commissioner's refusal to revoke the permit, and the constructive grant of Bylinski's appeal on June 5, 2009. GBI and Tusino appealed the constructive revocation of the building permit on September 3, 2009, and the Superior Court affirmed the constructive revocation on January 27, 2012. Notwithstanding the pending appeal of the revocation of the building permit, GBI and Tusino completed construction of a single family residence on the Property. GBI and Tusino constructed the dwelling on the Property, which does not satisfy the requirements of a buildable lot, at their own peril during the pendency of the building permit appeal. Upon consideration of the facts of this case, including significantly GBI and Tusino's awareness of the risks of continued construction during their appeal of the revocation of their building permit, an equitable alternative to demolition is not appropriate.

Conclusion

For the foregoing reasons, Bylinski's Motion for Summary Judgment is ALLOWED. Judgment shall enter ordering that GBI and Tusino comply with the ZBA decision dated November 19, 2014, consistent with this Memorandum and Order. In accordance with the ZBA decision, GBI and Tusino shall within 30 days of the entry of judgment file for appropriate permits for the removal and/or demolition of the dwelling on the Property, and shall within 120 days complete such demolition and removal. GBI and Tusino shall be held in contempt of this court should they fail to apply for the appropriate permits within 30 days or if they fail to effect the complete demolition and removal of the dwelling on the Property within 120 days.

SO ORDERED