This action presents a question left unanswered by Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). In Gallivan, the Appeals Court held that a neighbor who had adequate notice of the issuance of a building permit must utilize the remedy provided by G. L. c. 40A, §§ 8 and 15 by appealing the issuance of the building permit to the board of appeals within thirty days, and could not instead file a subsequent enforcement action pursuant to G. L. c. 40A, § 7 after the expiration of the thirty-day appeal period. This case presents the related question whether neighbors who in fact filed a timely appeal of a building inspector's issuance of a building permit, but then failed to appeal, pursuant to G. L. c. 40A, § 17, an adverse decision of a board of appeals upholding the issuance of the building permit, can then utilize a G. L. c. 40A, § 7 enforcement action to rekindle the appeal they abandoned eight years earlier.
The plaintiffs filed this appeal under G. L. c. 40A, § 17, seeking judicial review of the April 10, 2017, decision of the Truro Zoning Board of Appeals (the "Board") to deny the plaintiffs' appeal of the Truro Building Commissioner's December 13, 2016, denial of the plaintiffs' request for zoning enforcement at 25-27 Stephens Way in Truro (the "Property"). [Note 1] The plaintiffs sought enforcement by requesting that the Building Commissioner decline to issue a Certificate of Use and Occupancy for the house at the Property, commonly known as "the Kline House." [Note 2] The plaintiffs allege that the Kline House was constructed without a valid building permit and in violation of the Truro Zoning Bylaw (the "Bylaw"). They further allege that the Board and the Building Commissioner refuse to enforce the Bylaw and that this refusal results in increased traffic safety hazards on Stephens Way. The defendants, Benjamin E. Zehnder ("Zehnder") as Trustee of Stephens Way Nominee Trust 1 (the "Trust") and the Board, contend that a settlement agreement reached by Zehnder and the Town of Truro's ("Town") municipal officials, and incorporated into an agreement for judgment entered in this court, precludes the plaintiffs' complaint.
Zehnder has moved to dismiss the plaintiffs' complaint on the basis that the complaint fails to state a claim pursuant to Mass. R. Civ. P. 12(b)(6). In the alternative, Zehnder moves for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). For the reasons stated below, Zehnder's motion to dismiss is ALLOWED.
FACTS
In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations in the complaint and reasonable inferences drawn therefrom. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004). Likewise, for purposes of a Rule 12(c) motion for judgment on the pleadings, the facts pleaded by the nonmoving party are accepted as true. See Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002).
In addition, although the present action was filed only recently, on April 26, 2017, it cannot be properly assessed in a vacuum, as it is only the latest in a series of related suits, occurring over the course of eight years, stemming from the construction of the Kline House on the Property. These prior actions were referenced in the plaintiffs' complaint, both parties' supporting memoranda, and in other filings by the parties in this court, including a joint case management conference statement, and were discussed by the parties at the oral argument of Zehnder's motion.
In considering a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), "a judge may consider on a rule 12(c) motion those facts of which judicial notice can be taken. Further, a judge may take judicial notice of the court's records in a related action." Jarosz v. Palmer, supra, 436 Mass. at 530 (2002). The court takes judicial notice of the prior related actions and of undisputed facts concerning the present plaintiffs' participation in the initial appeal of the building permits when first issued.
Accordingly, the following facts are accepted as true for the purposes of deciding this motion to dismiss under Mass. R. Civ. P. 12(b)(6) and (c):
1. The plaintiffs are residents of the Town and own property on Stephens Way. [Note 3]
2. Title to the Property is held by the Trust. In 2007, the beneficial owner of the Property was Donald Kline, and Duane Landreth was trustee of the Trust.
3. On May 27, 2008, two building permits issued to Kline for the Property: permit 08-096, allowing the conversion of a pre-existing nonconforming single-family residence known as "the Cobb House" into a habitable studio, as defined by the Bylaw, and permit 08-097, allowing the construction of a new single-family residence, the aforementioned Kline House (collectively, the "Kline Project").
4. On June 20, 2008, property owners on Stephens Way, including the present plaintiffs, except for Deborah Smulian-Siegel, appealed the issuance of the permits to the Board. [Note 4]
5. In a decision dated August 11, 2008, the Board upheld the issuance of the building permits. Four property owners on Stephens Way appealed the August 11, 2008 decision of the Board to this court, seeking judicial review of the Board's decision pursuant to G. L. c. 40A, § 17. [Note 5] The plaintiffs in the present action did not participate in the appeal of the Board's August 11, 2008 decision.
6. On October 23, 2008, the court (Piper, J.) cautioned counsel for Kline that Kline, who had broken ground for the Kline Project, proceeded with construction at his own risk. Kline continued with construction.
7. On April 12, 2010, the court (Piper, J.) ruled that the Building Commissioner's determination that the Kline Project would not increase the nonconformity of the existing structures on the Property was incorrect and that the Board erred when it upheld the issuance of the building permits. Judge Piper annulled the Board's decision and remanded the case to the Board to consider whether the Kline Project was an "alteration or extension [that] will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure . . . ." [Note 6] Landreth appealed. [Note 7]
8. On February 7, 2011, the Building Commissioner issued a Certificate of Use and Occupancy for the Kline House.
9. On May 26, 2011, the Appeals Court affirmed Judge Piper's remand to the Board. The Appeals Court also determined that the Kline Project did not qualify as a cognizable alteration of nonconforming property, regardless of the degree of change in the nonconforming nature of the property, and directed the Board to conduct its further proceedings subject to that determination. [Note 8] The Supreme Judicial Court denied further appellate review on November 2, 2011. [Note 9]
10. On July 11, 2011, property owners on Stephens Way filed a request for zoning enforcement pursuant to G. L. c. 40A, § 7, challenging the Certificate of Use and Occupancy that issued on February 7, 2011.
11. On December 19, 2011, the Board voted to direct the Building Commissioner to revoke the building permits for the Property. Landreth, as trustee of the Andrea Kline Truro Qualified Personal Residence Trust, appealed the Board's decision in an action filed in the Land Court on January 17, 2012. [Note 10]
12. On January 20, 2012, the Building Commissioner revoked building permit nos. 08-096 and 08-097, and the Certificate of Use and Occupancy, and ordered the demolition of the Kline House. [Note 11]
13. On February 16, 2012, Landreth filed another action in the Land Court, against the Building Commissioner, seeking judicial review of his order to demolish the Kline House. [Note 12]
14. On July 30, 2012, the Board upheld the Building Commissioner's decision to revoke the building permits.
15. On August 7, 2012, Landreth filed yet another action in the Land Court, against the Building Commissioner, the Board, and the Town, pursuant to G. L. c. 40A, § 17. [Note 13]
16. On January 15, 2014, the court (Grossman, J.) affirmed the Board's decision ordering the Building Commissioner to revoke the building permits. [Note 14] Landreth appealed that decision and on December 2, 2015, the Appeals Court affirmed. [Note 15] On January 27, 2016, the Supreme Judicial Court denied further appellate review. [Note 16]
17. Two cases remained pending in this court, Zehnder v. Wingard, 12 MISC 459506, and Zehnder v. Zoning Bd. of Appeals of Truro, 12 MISC 468633.
18. The new beneficial owners of the Property, Thomas Dennis and Kathleen Westhead- Dennis (the "Dennises") engaged in mediation with the Town to resolve the two remaining cases.
19. On November 29, 2016, the Town's Board of Selectmen held a public meeting at which town counsel announced the terms of a settlement between the Dennises and the Town. The Board of Selectmen voted to approve the settlement. After the vote, the Board of Selectmen took comments from members of the public in attendance.
20. Under the settlement agreement, the Dennises agreed to pay a mitigation fee of $468,000, representing the maximum daily fine of $300 per day under the Bylaw, for a period of time agreed upon by the parties. The Dennises separately signed an agreement with the Town in which they pledged to make a charitable gift of $2.532 million to the Town over the course of approximately ten years.
21. On November 30, 2016, Zehnder and the Town filed a joint motion to approve the settlement agreement in the form of an agreed-upon proposed judgment.
22. On December 1, 2016, the court (Speicher, J.) approved the proposed judgment (the "Judgment") between Zehnder, the Building Commissioner, and the Board, as an agreement for judgment, pursuant to Land Court Rule 10. The Judgment ordered the Building Commissioner to re-issue a Certificate of Use and Occupancy for the Kline House within fourteen days from the entry of the Judgment.
23. On December 5, 2016, the plaintiffs (other than Deborah Smulian-Siegel) [Note 17] requested zoning enforcement action to preclude the issuance of a Certificate of Use and Occupancy for the Kline House. The Building Commissioner denied the plaintiffs' request.
24. On December 16, 2016, pursuant to the Judgment, the Building Commissioner issued a Certificate of Use and Occupancy for the Kline House. The Certificate of Use and Occupancy stated that it was "Associated with B[uilding ]P[ermit] #08-097," the building permit that had been revoked on January 20, 2012.
25. On January 6, 2017, plaintiffs Nathalie Ferrier, John A. Van Kirk, Jon Friedman, Joanne Barkan, and Vicky Tomayko, as well as Nancy Callander, who is not a plaintiff in the present matter, appealed to the Board, challenging the Building Commissioner's denial of their request for zoning enforcement and the issuance of the Certificate of Use and Occupancy. [Note 18] Plaintiff Deborah Smulian-Siegel was not an appellant before the Board.
26. By a decision dated March 27, 2017, and filed with the office of the Town Clerk on April 10, 2017, the Board denied the plaintiffs' appeal. This action followed.
DISCUSSION
"[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." Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 857, citing G. L. c. 40A, §§ 8, 15. When an aggrieved party possessing adequate notice of the issuance of a building permit fails to appeal to the zoning board of appeals pursuant to G. L. c. 40A, §§ 8 and 15, within thirty days of the permit's issuance, "a later appeal to the board from a denial of a request for enforcement made pursuant to G. L. c. 40A, § 7, is not an available alternative remedy." Connors v. Annino, 460 Mass. 790 , 791 (2011), citing Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. 850 . This is so because allowing an aggrieved party to choose between remedies "permits an aggrieved person, armed with knowledge of a zoning violation, to sit on her rights while the recipient of the permit incurs substantial expense by undertaking authorized construction, only to have the aggrieved person spring into action sometime in the next six years and demand enforcement of a zoning restriction." Gallivan, supra, at 857.
The Plaintiffs Abandoned the Appeals Process
As an initial matter, although the complaint alleges that "the Plaintiffs requested enforcement action" and the "Plaintiffs filed a notice of appeal with the ZBA," it is apparent from the Decision of the Board, which is attached to the complaint and is therefore considered by the court, that one of the plaintiffs, Deborah Smulian-Siegel, did not participate as an appellant before the Board. Since Ms. Smulian-Siegel did not participate as an appellant before the Board, and appears to have become a plaintiff in an appeal of a decision to which she was not a party, she has failed to exhaust her administrative remedies, and the court does not have subject matter jurisdiction over her attempt to seek judicial review of the Board's decision. Accordingly, the complaint will be dismissed with respect to her participation as a plaintiff. See G. L. c. 40A, §§ 8, 15.
Likewise, for different reasons, the remaining plaintiffs are not entitled to pursue the present action because they have failed to timely pursue to completion their exclusive remedy of appeal of the original issuance of the building permit. The complaint does not allege that the plaintiffs appealed the issuance of the original May 27, 2008, building permits within thirty days as required by G. L. c. 40A, §§ 8, 15. However, counsel for the plaintiffs represented at the hearing on Zehnder's motion that the plaintiffs did participate in the June 20, 2008, appeal to the Board challenging the Building Commissioner's decision to issue the building permits. This participation demonstrates both the plaintiffs' actual knowledge of the issuance of the original building permits, and their failure to pursue their available exclusive remedy in a timely way.
The plaintiffs acknowledge that they appealed the issuance of the original building permits within thirty days to the Board in 2008, and that the Board at that time voted to uphold the Building Commissioner's decision, leading to the appeal to this court by the Schiffenhauses and the Solomonts, but not by the present remaining plaintiffs. The Board's adverse vote rendered the plaintiffs aggrieved parties, as it did the Schiffenhauses and the Solomonts, at which point the plaintiffs' exclusive remedy was to seek judicial review as provided by G. L. c. 40A, § 17. The plaintiffs failed to preserve their rights, however, choosing instead to abandon the appeal process and allow their rights to expire while the Schiffenhauses and Solomonts litigated the issue over a period of years. Judge Piper's decision that the permits issued in error did not enter until April 12, 2010, and the Appeals Court decision affirming Judge Piper's decision was not issued until more than a year later; meanwhile, the Kline Project had already broken ground and was underway by October, 2008. For more than three years, the plaintiffs sat by while other parties pursued the available judicial remedy and while Kline moved forward with construction. [Note 19] The plaintiffs also ran the risk that the abutters who did appeal, the Schiffenhauses and Solomonts, might settle with Kline, which is, in fact, what happened.
Enforcement Pursuant to G. L. c. 40A, § 7
Zehnder argues that the plaintiffs are barred from seeking zoning enforcement by the six-year statute of limitations in G. L. c. 40A, § 7. Section 7 provides in relevant part,
"[i]f real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action intended to compel the abandonment, limitation or modification of the use allowed by the permit or the removal, alteration or relocation of a structure erected in reliance upon the permit by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter shall be maintained unless the action, suit or proceeding is commenced . . . within 6 years of the commencement of the alleged violation."
G. L. c. 40A, § 7. See Garabedian v. Westland, 59 Mass. App. Ct. 427 , 436-437 (2003) (neighbors seeking zoning enforcement eleven years after original building permit issued barred by six-year statute of limitations in G. L. c. 40A, § 7). The plaintiffs incorrectly counter that the statute of limitations in § 7 only applies if the subject property has been "used in accordance with the terms of the original building permit" for a six-year period. They claim that the Kline House has only been used in accordance with the original building permit since December 16, 2016, when the Certificate of Use and Occupancy issued. [Note 20] These arguments are inapposite for two reasons.
First, § 7 does not require that a property be in use for six years in accordance with the original building permit before a party may be precluded from seeking zoning enforcement; the statute requires that any action for alleged zoning violations be commenced "within 6 years of the commencement of the alleged violation." G. L. c. 40A, § 7 (emphasis added). See Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 854 (where building permit issued and plaintiff requested enforcement under § 7 four months later but before construction completed, Appeals Court noted plaintiff appealed within six-year statute of limitations).
The plaintiffs argue that the Kline House increases a prior nonconformity and lacks the frontage required by the Bylaw, the same arguments that were available to the plaintiffs eight years ago. Likewise, their concerns about increased traffic the plaintiffs recite are the same concerns the plaintiffs alleged at the outset. The plaintiffs, along with the Schiffenhauses and the Solomonts, had notice of the original building permits that issued on May 27, 2008, and claimed from the start that the building permits violated the Bylaw. Thus, commencement of the alleged violation began when the permits issued, at which time the statute of limitations started to run. See Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 854.
Second, and more fundamentally, the plaintiffs' attempted use of an enforcement action pursuant to G. L. c. 40A, § 7, would fail even had it been filed less than six years after the issuance of the building permit, because following a decision of the Board adverse to them, in their 2008 appeal of the Building Commissioner's decision to issue the building permits, the plaintiffs failed to pursue an appeal pursuant to G. L. c. 40A, § 17. This was their exclusive remedy, and they failed to utilize it.
In Gallivan v. Zoning Bd. of Appeals of Wellesley, the Appeals Court considered at length the two statutory remedies provided by G. L. c. 40A, §§ 8, 15, and G. L. c. 40A, § 7, and concluded that aggrieved parties cannot choose the latter if the former was available to them and they failed to take advantage of it within the thirty days allotted by the statute. 71 Mass. App. Ct. at 854. The plaintiff in Gallivan received a notice in the mail of a neighbor's application for a building permit to place a modular house on land abutting the plaintiff's property. Id. at 852. At the time of the neighbor's permit application, the town of Wellesley had proposed amendments to its by-laws that, if passed, would render the placement of the neighbor's modular home a zoning violation because of setback requirements. Id. The building permit issued shortly after the plaintiff received notice of the permit application, but the plaintiff did not appeal the issuance of the building permit. Id. at 853. Rather, the plaintiff requested zoning enforcement pursuant to G. L. c. 40A, § 7, approximately four months after the building permit issued. Id. The Appeals Court concluded that the plaintiff had notice of the building permit's issuance and had a "fair
opportunity" to appeal; therefore "she was not entitled to forego that remedy in favor of a subsequent request for enforcement and appeal therefrom." Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 855.
The Appeals Court explained that the remedy provided in § 7 is appropriate where the aggrieved party lacks notice of the issuance of a building permit and for that reason cannot appeal the issuance of the permit within thirty days, or where a properly-granted building permit issues, but at some later date the owner exceeds the scope of the permit and subsequently violates the zoning by-laws. Id. at 856-857, citing Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 483 (1984) (plaintiff not aggrieved by original building permit until later date when owner exceeded permit and enforcement under § 7 only available remedy). In holding that "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," the Appeals Court precluded parties with notice from pursuing an alternate remedy under G. L. c. 40A, § 7. Id.
Here, the remaining plaintiffs obviously had actual notice of the original issuance of the building permit, as evidenced by their utilization and then abandonment of their appeal rights under G. L. c. 40A, §§ 8 and 15. Even had they not had actual notice, they had constructive notice, as evidenced by the actual construction of the Kline House, commenced in 2008. See Richardson v. Bd. of Appeals of Chilmark, 81 Mass. App. Ct. 912 , 913 (2012) (plaintiff first requesting revocation of building permit nearly three years after commencement of construction had constructive notice and accordingly was not entitled to bring G. L. c. 40A, § 7 enforcement action).
The remedy available to the plaintiffs was to appeal the Building Commissioner's decision to issue the permits to the Board, pursuant to G. L. c. 40A, § 8, which they did. However, following a decision by the Board adverse to them, upholding the issuance of the building permits, the plaintiffs' exclusive remedy was to file an appeal of the Board's decision pursuant to G. L. c. 40A, § 17. Section 17 provides that "[a]ny person aggrieved by a decision of the board of appeals . . . may appeal . . . The foregoing remedy shall be exclusive . . ." The plaintiffs chose, however, to forego further pursuit of this available remedy after they received an adverse decision from the Board and did not seek judicial review. As such, the plaintiffs cannot spring on the scene nearly eight years later through the use of G. L. c. 40A, § 7, to challenge the same zoning violation, when they had previously filed an appeal of the same alleged violation and then abandoned their appeal. See Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 857 (aggrieved party "may not lawfully bypass [the G. L. c. 40A, §§ 8, 15] remedy and subsequently litigate the question by means of a request for enforcement under G. L.
c. 40A, § 7"). The December 16, 2016, Certificate of Use and Occupancy issued to fulfill the same purpose of the original building permit; the plaintiffs had actual knowledge of the issuance of the building permit, and constructive knowledge of its issuance by the construction of the Kline House; and even if they did not, their request for enforcement is well beyond the six-year statute of limitations applicable to the commencement of the zoning violation in 2008.
While the plaintiffs allege that the Kline House remains in violation of the Bylaw and is therefore ineligible for a Certificate of Use and Occupancy, the violation has existed at least since May, 2008, when the original building permits issued, and certainly since the construction of the house began later in 2008. There was nothing precluding the plaintiffs from protecting their rights and following through with an appeal of the Board's decision upholding the issuance of the building permit, pursuant to G. L. c. 40A, § 17, as the Schiffenhauses and Solomonts did, instead of resurfacing eight years later and seeking judicial review arising out of the same violation that they allege existed when they first complained of it in 2008.
Just as Gallivan requires an aggrieved party who had adequate notice to challenge the original building permit within thirty days pursuant to G. L. c. 40A, § 8, in order to prevent that party from springing onto the scene years later to challenge the existence of a zoning violation, G. L. c. 40A, § 17 requires an aggrieved party who has utilized the procedure of G. L. c. 40A, § 8, to appeal an adverse decision pursuant to the exclusive remedy provided by G. L. c. 40A, § 17. That remedy must be utilized within twenty days following the filing with the Town Clerk of the adverse decision of the Board. The failure to utilize this exclusive remedy precludes an aggrieved party, like the plaintiffs, from appearing again years down the road to pursue an enforcement action.
There is no logical distinction between a plaintiff who has failed to file an appeal to a board of appeals within thirty days as required by G. L. c. 40A, § 8, and one who, having received an adverse decision from the board of appeals, has failed to utilize the exclusive remedy of G. L. c. 40A, § 17 to appeal that adverse decision within twenty days. In either case, the alternative remedy provided by G. L. c. 40A, § 7, is no longer available.
CONCLUSION
For the foregoing reasons Zehnder's Motion to Dismiss is ALLOWED. Judgment will enter dismissing the plaintiffs' complaint.
JOANNE BARKAN, NATHALIE M. FERRIER, JON R. FRIEDMAN, DEBORAH SMULIAN-SIEGEL, VICKY A. TOMAYKO, and JOHN A. VAN KIRK v. NICHOLAS L. BROWN, JOHN R. DUNDAS, ARTHUR F. HULTIN JR., BERTRAM PERKEL, JOHN THORNLEY, and FREDERICK W. TODD, as they are Members of the TOWN OF TRURO ZONING BOARD OF APPEALS, and BENJAMIN E. ZEHNDER, TRUSTEE OF STEPHENS WAY NOMINEE TRUST 1.