Home DENISE M. HUDSON and ROBERT J. HUDSON, JR., as Trustees of the Denise M. Hudson Revocable Trust, et al., v. KIMBERLY BIELAN, KENNETH FOREMAN, TERRANCE HURRIE, EDWARD VAN KEUREN, PAUL MURPHY, GERALD POTAMIS, and ROBERT B. DUGAN, as Members of the Falmouth Zoning Board of Appeals; and ANDREW REALE.

MISC 17-000325

December 17, 2018

Barnstable, ss.



Plaintiffs Denise M. Hudson and Robert J. Hudson, Jr., co-trustees of two eponymous revocable trusts, have appealed the May 2017 decision of defendant Falmouth Zoning Board of Appeals (the "Board") under G.L. c. 40A, § 17. In its decision, the Board directed Falmouth's building commissioner to order the Hudsons to remove from their Falmouth property (a) a 10' x 37' stone wall, (b) a pergola erected atop the wall, (c) a raised patio and kitchen, and (d) a landing and stairs leading to the second floor of their house. The Board also directed the commissioner to order the Hudsons to bring their property "into Compliance with Section 240-69 A. of the Code of Falmouth [the 'Code']."

What prompted the Board's decision was a December 22, 2016 appeal filed by the Hudsons' neighbor (now former neighbor), defendant Andrew Reale. (To be precise, the party that filed the appeal was Newport Exchange Corp., but it was acting at Mr. Reale's request. This Decision won't distinguish further between Newport and Reale.) Reale claimed in his petition to the Board that he had asked Falmouth's building department in November 2016 to enforce the Code against the Hudsons, but the department hadn't responded to his request. Reale wrote that the Hudsons had received a building permit "without being properly signed off on by the [Board]." Reale also asserted "Lot coverage exceeded".

The Hudsons, the Board and Mr. Reale appeared for trial on December 14 and 17, 2018. The Court had identified for trial six issues, three of which pertained to the Board's jurisdiction under G.L. c. 40A, §§ 7, 8 and 15 to hear Reale's appeal. For reasons that won't be explained in this Decision, the Board and Reale had the burden at trial of proving the Board's jurisdiction to hear Reale's appeal, so they offered their "jurisdictional" evidence first. At the conclusion of that evidence, the Hudsons moved for a directed decision.

Before addressing the Hudsons' motion, it's helpful to look at the Code's provisions regarding zoning-enforcement requests and related appeals. Section 240-18 of the Code allows a person to ask the commissioner to enforce the Code against a suspected violator. (Chapter 40A, § 7 provides the same right.) Section 240-18 of the Code and c. 40A, § 7 direct that responses to such requests are due within fourteen days. Section 240-202.A of the Code provides that a person who's aggrieved by "his inability to obtain . . . enforcement action" or by "an order or decision of the Building Commissioner" may appeal to the Board. Section 240-202.B of the Code provides, however, that "[s]uch appeal shall be initiated within 30 days from the date of the order or decision which is being appealed . . . ." The Code's appeal provisions are similar to those under c. 40A, §§ 8 and 15.

The Hudsons contend that Mr. Reale's November 2016 request for Code enforcement wasn't his first. They point out that on June 10, 2016, Reale wrote to Falmouth's building department at a time when construction was underway on the Hudson property. Reale complained that the Hudsons' activities violated § 240-69 of the Code (Reale erroneously called the provision "State Code S 240.69"). That part of the Code limits the amount of one's lot that "structures" and "structures/paving" may occupy. Reale claimed that "structures" on the Hudson lot already occupied more than 20% of the lot, in violation of § 240-69.A's limits for properties in Falmouth's Residence C zone; according to Reale, the Hudsons' new construction was worsening the "structural coverage" problem. Reale also argued that the construction would result in a violation of § 240-68's rear-yard setback requirements, and produce a fence two feet over state-allowed limits.

In contrast to how it handled Mr. Reale's November 2016 request for Code enforcement (which met with silence), the building department responded to Reale's June 10, 2016 request, in writing, on June 28, 2016. The department responded to each of Reale's June 10 allegations. (It also corrected his erroneous references to the "State Code.") The department informed Reale that the Hudsons' alleged existing lot-coverage violation wasn't one. The department explained that the town had issued to a prior owner of the Hudson property, in 2012, a special permit allowing the property to exceed the Code's 20% coverage-by-structures limit. The department suggested that the Hudsons' project would yield less "structural" coverage than what the 2012 special permit allowed. The department also informed Reale that the project complied with the Code's setback requirements, and that a building permit issued by the department to the Hudsons in May 2016 allowed construction of the Hudsons' wall. Reale didn't appeal the department's June 28, 2016 decision.

The facts set forth in the two preceding paragraphs weren't entirely clear to all of the parties until shortly before trial. It is now undisputed, however, that (a) Mr. Reale brought to the attention of the building department in June 2016 his concerns that the Hudson project didn't obtain proper zoning approvals, and asked the department to undertake enforcement; (b) the department responded to each of Reale's concerns in a sufficiently definitive manner so as to constitute a denial of his request for enforcement, see Pepin v. Belrose, 15 LCR 284 , 286 (2007) (Scheier, J.); (c) the department's response put Reale on notice of the 2012 special permit; and (d) Reale didn't appeal the department's denial. It is now settled law that Reale's failure to appeal the department's denial prevents him from later raising, by way of a later enforcement request to the department (and on further appeal to the Board, under the Code and c. 40A, §§ 8 and 15), all challenges to the Hudson project that were available to Reale as of the June 2016 denial. See Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 855-857 (2008).

The Board thus lacked jurisdiction to hear Mr. Reale's December 2016 appeal from the commissioner's apparent refusal in November 2016 to take enforcement action against the Hudsons. The Board also conceded following presentation of its "jurisdictional" case that (a) the Hudsons performed no work on the rear of their property, or on the side of their property that faces the former Reale property, that exceeded the scope of their May 2016 building permit (which means that Reale couldn't invoke any of the exceptions described in Connors v. Annino, 460 Mass. 790 , 797 & n. 9 (2011), for not appealing the May 2016 permit, or the department's June 2016 enforcement denial, on time); and (b) a second building permit that the Hudsons received in July 2016 did not give them any approval under the Code for any work for which the Hudsons hadn't already received Code approval in May 2016 (meaning that the July 2016 permit, which Reale also didn't timely appeal, didn't give him any additional rights to appeal the Hudson project under the Code).

Judgment shall enter annulling the Board's May 2017 decision for lack of jurisdiction. Because the Board lacked jurisdiction to hear Mr. Reale's challenges to the Hudson project, the Court will not reach the merits of any of those challenges, or any of the Board's claims that the Hudsons have violated the Code.