The short limitations periods found in G. L. c. 40A - 20 days from decisions of boards of appeal and special permit granting authorities; 30 days from orders and decisions issued by building inspectors and other zoning enforcement officers; and a six-year statute of repose for all actions to enforce zoning following the issuance of a duly issued permit - are grounded in the need of those making the large investments typically necessary to construct buildings and implement uses of land for certainty in the safety of their investments. "Allowing a property owner . . . to enjoy the benefit of the shorter limitations period appears to be driven by considerations of fairness." Barkan v Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378 , 390 (2019). Hence those seeking to appeal orders allowing the commencement or continuation of challenged structures or uses are held to the strict limitations in the various sections of G. L. c. 40A.
In the present consolidated cases, an abutting landowner, Kathleen Fisher, sought zoning enforcement concerning various uses on the neighboring commercial property owned by Presti Management Corp., general partner of Presti Family Limited Partnership ("Presti"). Presti contends that Ms. Fisher, having sent two zoning enforcement requests in quick succession, and having received a response from the Stow building commissioner and having failed to appeal his decision, was barred from appealing responses to two subsequent letters Ms. Fisher sent to the building commissioner, again requesting enforcement. Ms. Fisher contends that her first two letters are not fairly characterized as enforcement requests, and that even if they are, the building commissioner's response to those letters is not fairly characterized as an appealable denial of her requests for enforcement.
For the reasons that follow, I find and rule on the undisputed facts that as a matter of law, Ms. Fisher's first two letters were enforcement requests, and that the building commissioner's
response to those letters was an appealable decision. Consequently, the board of appeals had no jurisdiction to consider Ms. Fisher's later appeals from two subsequent responses of the building commissioner to Ms. Fisher's subsequent enforcement requests.
RELEVANT PROCEDURAL HISTORY
On January 3, 2018, Presti filed a complaint against the Stow Zoning Board of Appeals ("Board") and Ms. Fisher in Middlesex Superior Court, seeking judicial review of a decision by the Board filed with the Stow town clerk on December 20, 2019. Separately, on January 9, 2018, Ms. Fisher filed an action in Land Court appealing the same decision of the Board. The matter was before the Board as a result of two appeals by Fisher of decisions of the Stow building commissioner refusing two zoning enforcement requests.
On January 12, 2018, counsel for all parties conferred and made a joint request for interdepartmental assignment so that the two pending cases could be heard by the same judge. A motion to dismiss Fisher's complaint in the Land Court case on grounds that she failed to comply with the procedural requirements of G. L. c. 40A, §17 was denied on April 9, 2019. On April 11, 2018, I was assigned to hear the Superior Court case, and subsequently the two cases were consolidated. Presti subsequently filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), or in the alternative, a motion for summary judgment, on June 4, 2019. A hearing was held before me on September 26, 2019, after which I took the matter under advisement.
FACTS
Treating the present motion as one for summary judgment, the following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions:
1. Presti - the plaintiff in the Superior Court case and a defendant in the Land Court case - owns property located at 84-92 Great Road in Stow ("Subject Property"). [Note 1]
2. Kathleen A. Fisher - the plaintiff in the Land Court case and a defendant in the Superior Court case - owns property located at 1 Great Road in Stow. [Note 2] Her property abuts the Subject Property. [Note 3]
3. On April 7, 2017, Ms. Fisher wrote a letter to the Stow building commissioner ("April 7 letter"). The letter discussed uses being conducted at the Subject Property that Ms. Fisher alleged were in violation of the Stow zoning bylaw, and specifically alleged that new uses, not authorized by current zoning, were being conducted. The letter included the following specific request: "Now I am asking the town of Stow to enforce the zoning bylaws on [Presti's] properties." [Note 4] The request related to commercial uses and activity on the Subject Property, as well as to the alleged elimination of a buffer zone between the Subject Property and Ms. Fisher's property. [Note 5]
4. On May 22, 2017, Ms. Fisher wrote another letter to the building commissioner, again complaining that the Subject Property "is in violation of the zoning regulations in The Town of Stow" (May 22 letter"). She further wrote: "I have not received a response to my request that your office and the town issue a cease and desist order on the commercial activity on these properties." [Note 6] She added, "it is clear the commercial use does not belong in the Business Zoned area," and she asked "please give me the proper documentation showing why you and the town believe [Presti] has the right to start up a commercial operation abutting residential properties . . . breaking the town zoning laws related to commercial and business use in the town of Stow." She concluded by arguing that "none of [Presti's use] is a grandfathered use.". [Note 7]
5. On May 26, 2017, the building commissioner responded to both letters from Fisher ("May 26 response"). [Note 8] He listed the uses of the Subject Property of which Ms. Fisher complained, for "storing materials which consist of trucks, cars, snowplowing equipment, trailers, building & construction materials, piles of cord wood, wood chippers, clean dumpsters[,] and school buses." With respect to these uses, he concluded that, "These types of uses are recognized as 'grandfathered uses.'" [Note 9] He further informed Ms. Fisher that he had "no jurisdiction over control of traffic."
6. In an earlier letter, dated July 13, 2010, the building commissioner corresponded with Mr. Presti about whether Mr. Presti needed special permits to engage in certain uses of the Subject Property. [Note 10] The building commissioner informed Mr. Presti that the uses contemplated were "the same or consistent with the past uses of the site recognized as grandfathered uses by the Zoning Board of Appeals and that no Special Permits are required." [Note 11] The building commissioner included a copy of this letter in his May 26, 2017 response to Ms. Fisher about her requests. [Note 12]
7. Ms. Fisher did not appeal the building commissioner's letter of May 26 to the Board, within thirty days or thereafter. Instead, on June 8, 2017, Ms. Fisher again wrote to the building commissioner ("June 8 letter"). She acknowledged receipt of his letter of May 26, and disputed his conclusions in the May 26 letter. She stated that "I was shocked in your letter that you grandfathered the uses on Mr. Presti's property without any communication to any abutters. I was unaware of this change and disagree with what you are saying are grandfathered uses." Ms. Fisher goes on in the June 8 letter to make a lengthy argument that various uses on the Subject Property are prohibited or require zoning approvals that Presti does not have. She also clarifies that her complaints in her earlier letters about traffic are not unrelated to her zoning complaint: "the traffic is a byproduct of the zoning issues that are not being complied with. Once you have stopped the zoning rules being violated, the traffic situation also will be resolved." [Note 13]
8. On June 30, 2017, the building commissioner responded to Fisher's most recent June 8 letter ("June 30 response"). [Note 14] He explained that no special permits were found in the town's records relating to Presti's installation of an interior wall and garage on the Subject Property. [Note 15] The building commissioner additionally informed Fisher that he scheduled a meeting with Presti to discuss the other items in her letter. [Note 16] The building commissioner noted that "[i]f in the end you do not accept my conclusions you may file an appeal with the Zoning Board of Appeals." [Note 17]
9. On July 24, 2017, Ms. Fisher's attorney sent a letter to the building commissioner ("July 24 letter"). In this letter, Ms. Fisher's attorney referenced Ms. Fisher's and the building commissioner's earlier correspondence relating to the Subject Property. The attorney stated: "In order to have a complete decision for appeal, please provide your opinion concerning all items specified in Ms. Fisher's correspondence." The letter also contained an explicit acknowledgment that Ms. Fisher's earlier letters constituted requests for zoning enforcement: "Specifically, Ms. Fisher's correspondence requests zoning enforcement for all the current uses by all the tenants at the [Presti] Property." [Note 18]
10. Fisher, through her attorney, filed an appeal of the building commissioner's purported June 30, 2017 decision "denying zoning enforcement requested by [Fisher] with regard to the commercial uses by Presti Management Corporation on [the Subject Property]." [Note 19] Notice of the appeal was sent to the town clerk and the Board on July 31, 2017. [Note 20]
11. On August 7, 2017, the building commissioner responded to the July 24 letter from Ms. Fisher's attorney ("August 7 response"). While noting that he believed his letters "of July 13, 2010, May 26, 2017, & June 30, 2017 provide the majority of details regarding [his] decision that no special permit is required[,]" he summarized his conclusions disclosed in his earlier correspondence.
12. On August 30, 2017, Ms. Fisher, through her attorney, notified the town clerk and the Board of her appeal of the building commissioner's August 7, 2017 decision "denying zoning enforcement requested by [Fisher] with regard to the commercial uses by Presti Management Corporation on [the Subject Property]." [Note 21]
13. The Board held a hearing on Ms. Fisher's first appeal (filed on July 31) on September 11, 2017. [Note 22] The Board held hearings on the second appeal (filed on August 30) on October 2, October 19, and November 9, 2017. [Note 23]
14. The Board voted and issued a decision on the both of the pending appeals - that of the June 30 letter and that of the August 7 letter - which was filed with the town clerk on December 20, 2017. The decision upheld in part and reversed in part the building commissioner's decision, as follows: automobile sales were permitted under the bylaws; outside display and storage of automobiles was permitted though not allowed under the current bylaws, because it was a prior nonconforming use that had not been changed or substantially extended; outside display or storage of vehicles other than automobiles was not permitted without a special permit because it was a change or substantial extension of the prior nonconforming use; automobile service was permitted although not allowed under the current bylaws, because it was a prior nonconforming use that had not been changed or substantially extended; automobile leasing and towing was partly permitted under the current bylaws and to the extent it was not, it was permitted as a prior nonconforming use that had not been changed or substantially extended; car wrapping was partly permitted under the current bylaws and to the extent it was not, it was permitted as a prior nonconforming use that had not been changed or substantially extended; contractor, landscaper, and tree business, with associated storage of equipment, including containers, was not permitted under the current bylaws, and to the extent it was permitted as a prior nonconforming use, it had changed or substantially extended and was no longer allowed without a special permit; the main structure on the property did not conform to dimensional requirements but was permitted because it was lawfully preexisting; the absence of a landscaped buffer to screen parking and loading activity on the Subject Property from abutters was required under the current bylaws, but the Subject Property was not required to have a buffer because its absence was lawfully preexisting; and the lighting fixtures on the Subject Property did not conform to the current bylaws and must be adapted to comply. [Note 24]
15. Presti timely filed its appeal of the Board's decision in the Land Court, and Ms. Fisher timely filed her appeal of the Board's decision in Middlesex Superior Court.
DISCUSSION
"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
Additionally, "a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Though the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.
I. AS A MATTER OF LAW, FISHER'S APRIL 7 AND MAY 22, 2017 LETTERS WERE ZONING ENFORCEMENT REQUESTS, AND THE BUILDING COMMISSIONER'S MAY 26, 2017 RESPONSE WAS AN APPEALABLE DECISION ON THOSE REQUESTS.
A board of appeals must have jurisdiction to properly hear and decide an appeal of a zoning enforcement request decision. Connors v. Annino, 460 Mass. 790 , 791 (2011); G. L. c. 40A, §§8, 15. Without jurisdiction, any decision reached by that body is a nullity. In the present action, I must determine whether the Board had jurisdiction to hear and decide Ms. Fisher's appeals of the building commissioner's June 30 and August 7, 2017 responses to Ms. Fisher's earlier zoning enforcement requests, where she had sent earlier letters - to which the building commissioner responded - on the same subject, and which she did not appeal. Because Ms. Fisher and her attorney sent several letters to the building commissioner, all on different dates, I
must determine which, if any, of these constitute zoning enforcement requests, in order to identify the time within which Ms. Fisher was required to appeal to the Board.
General Laws c. 40A, §7, provides that a person "seeking enforcement of a local zoning ordinance or by-law against any other person allegedly violating the ordinance or by-law can make a request in writing for such enforcement to the building commissioner or other local official charged with enforcement of the ordinance or by-law[.]" Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 , 431 (2002). Once the commissioner or official responds, the person seeking enforcement can appeal the decision as permitted by G. L. c. 40A, §8. Such an appeal must "be taken within thirty days from the date of the order or decision which is being appealed." G. L. c. 40A, §15.
The parties disagree about the nature of Ms. Fisher's April 7 and May 22 letters to the building commissioner, and about his response to those letters. Ms. Fisher characterizes these pieces of correspondence as "limited in scope" - as not zoning enforcement requests, but rather as specific requests only that the building commissioner stop the commercial traffic and noise occurring on the Subject Property. She further argues that the building commissioner's May 26 letter in response to her April 7 and May 22 letters was similarly limited, addressing only Fisher's concerns about commercial traffic on the subject property. Presti, instead, characterizes Fisher's letters as zoning enforcement requests, and the building commissioner's response as a decision on the requests which would have to be appealed, if at all, within the statutory period permitted by G. L. c. 40A, §15.
In order to have one's letter to a building official be classified as a zoning enforcement request, it is not necessary that the person seeking zoning enforcement parrot the language of the statute or specifically characterize the request as one for "zoning enforcement," although such
phraseology would naturally be a clear indication of the requesting party's intent. See Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 474 (1984) (letters to the building inspector requesting "a 'stop order' prohibiting [the defendant] from operating and maintaining eighteen-wheel gravel trucks and flatbed trailers" were treated as requests for zoning enforcement). In the present case, however, Ms. Fisher explicitly classified her April 7 letter as a zoning enforcement request when she wrote, "I am asking the Town of Stow to enforce the zoning bylaws on [Presti's] properties." In her follow-up May 22 letter, she asked the building commissioner to stop activities on the Subject Property that were "in violation of the zoning regulations in The Town of Stow." She further asked the commissioner to "issue a cease and desist order on the commercial activity on these properties." In the May 22 letter Ms. Fisher further states "it is clear that the commercial use does not belong in the Business Zoned area"; inquires about the status of Ms. Fisher's earlier April letter, fashioned a "cease and desist order"; and opines that Ms. Fisher has "owned [her] property longer than Mr. Presti and none of this is a grandfathered use." The April 7 and May 22 letters speak for themselves in conveying that Ms. Fisher was explicitly requesting zoning enforcement from the building commissioner.
Similarly, the building commissioner's May 26 letter responding to Ms. Fisher constituted a decision for the purposes of the appeal provisions in G. L. c. 40A §§ 8, 15. To be an appealable decision or order, the correspondence must be "sufficiently definitive to constitute an 'order or decision,' tantamount to a refusal to enforce the Bylaw [or ordinance]." Pepin v.
Belrose, 15 LCR 284 , 286 (2007) (Scheier, C.J.) (citing G. L. c. 40A, §§7, 8). In Pepin, the court concluded that a zoning enforcement request response from the building inspector was an appealable order even when the response stated that the inspector would refer the matter to the local planning board rather than giving his own definitive approval or denial of the request. Id.
The letter at issue in this case is more than a mere punting of the issue to the Board. The letter noted that the building commissioner had "met with Rich Presti and inspected the property regarding current uses and traffic on the property[;]" it mentioned multiple uses being carried on at the subject property; and it concluded that the "uses are recognized as grandfathered uses as outlined in [the] attached July 13, 2010 letter to Mr. Presti." The building commissioner further advised that he did not have jurisdiction to control any of the traffic issues complained of by Fisher. This response definitively informed Fisher that the uses of which she complained had been determined to be grandfathered - that is, the building commissioner had determined that they were lawful prior nonconforming uses, and therefore no zoning enforcement action would be taken. The plain language of this letter from the building commissioner was an explicit denial of Fisher's zoning enforcement request. The building commissioner told Ms. Fisher in no uncertain terms that he did not intend to take the action she requested to stop the uses at the Subject Property. The building commissioner's May 26 response was a decision on the April 7 and May 22 zoning enforcement request letters, as contemplated by G. L. c. 40A, §§7, 8, 15.
II. FISHER DID NOT TIMELY APPEAL THE BUILDING COMMISSIONER'S MAY 26, 2017 ZONING ENFORCEMENT DECISION.
Section 15 of G. L. c. 40A provides, in relevant part, that any "appeal under [section 8] to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed." When the order or decision being appealed is the denial of an enforcement request, the thirty-day period for appeal is measured from the date the municipal official provides a written response to the enforcement request. Connors v. Annino, 460 Mass. at 794. "[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. "Where adequate notice of such order or decision exists, such a person may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G. L. c. 40A, §7." Id. In fact, the aggrieved person must timely raise all challenges to the uses on the subject property during the time provided for appeal.
Hudson v. Bielan, 26 LCR 631 , 632 (2018) (Vhay, J.), citing Gallivan v. Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 855-857 ("It is now settled law that [an aggrieved person's] failure to appeal the department's denial prevents him from later raising, by way of a later enforcement request to the department . . . all challenges to the [use of the subject property] that were available to [him] as of the [earlier] denial.").
Ms. Fisher attempts to distinguish the Bielan case from the present matter by arguing that Bielan concerned multiple requests for the same enforcement relief, where the requests in this matter concerned firstly commercial traffic, and then later, commercial uses that violated local zoning bylaws. The argued distinction between Bielan and the current matter is not well taken.
Fisher's April 7 and May 22 letters did not merely ask that the building commissioner address commercial traffic issues, separate from zoning enforcement. As recited above, these letters are replete with references to commercial uses that Ms. Fisher requests be ordered to cease, and her April 7 letter explicitly requests that the building commissioner "enforce the zoning bylaws on [Presti's] properties." Ms. Fisher's subsequent enforcement request in her June 8 letter, sent to the building commissioner after he had rejected her April 7 and May 22, 2017 requests, more thoroughly outlines which sections of the Stow zoning bylaw she believes Presti to be violating. However, that Ms. Fisher's June 8 letter included references to specific sections of the Bylaw does not alter the character of the April 7 and May 22 letters as zoning enforcement requests. None of the "specific zoning violations" referenced in Ms. Fisher's June 8 letter were
unavailable to her in April and May, as she contends. The Bylaw had not changed between April and June, nor had the activities on the Subject Property. Ms. Fisher had the ability to address specific sections of the Bylaw in her earlier letters, but chose not to. It is well settled that an aggrieved person cannot request zoning enforcement for certain activity on a property while reserving certain related requests (even if more targeted than the first) to be made at a later date. Gallivan v. Zoning Bd. of Appeals of Wellesley, supra, 71 Mass. App. Ct. at 857.
Because Fisher's April 7 and May 22 letters were zoning enforcement requests, and because the building commissioner's May 26 response was a decision on those requests, Ms. Fisher was required to appeal the building commissioner's decision within thirty days, by June 25, 2017. It is undisputed that no appeal was taken from the building commissioner's response letter to Ms. Fisher dated May 26, 2017. Rather, Ms. Fisher only appealed the June 30 response of the building commissioner, on July 31, and the August 7 response of the commissioner, on August 30, 2017. Both of these subsequent responses by the commissioner were in response to letters from Ms. Fisher or her attorney essentially reiterating the zoning enforcement request she made in the April 7 and May 22 letters. These subsequent responses from the building commissioner do not reset the clock on the time for appeal of his May 26 response.
Having failed to appeal the building commissioner's May 26 response to her zoning enforcement requests, Ms. Fisher cannot now appeal subsequent responses from the building commissioner on the same issues, especially where, as here, the July 24 letter from Ms. Fisher's attorney was a transparent attempt to generate a response from the commissioner for the very reason that Ms. Fisher had failed to appeal the May 26 letter in a timely manner. The Board only had jurisdiction to entertain an appeal of the May 26, 2017 response, but never had the opportunity to hear such an appeal as none was made within the statutory period mandated by G. L. c. 40A, §15. Nor does the building commissioner's statement in his June 30 response that Ms. Fisher could appeal his decision in that letter confer jurisdiction on the Board where it had none. The Board was therefore without jurisdiction to entertain Ms. Fisher's appeals from the building commissioner's June 30 and August 7 responses, and as such, the decision the Board issued must be annulled.
CONCLUSION
For the reasons stated above Presti's motion, treated as a motion for summary judgment in the Land Court case, is ALLOWED. Furthermore, the motion, again treated as a motion for summary judgment, is ALLOWED in the Superior Court action. The decision of the Stow Zoning Board of Appeals, filed with the town clerk on December 20, 2017, is annulled, given the court's ruling that the Board was without jurisdiction to entertain the appeals made to it by Kathleen Fisher on July 31 and August 30, 2017.
Judgment will enter accordingly in both cases.
KATHLEEN A. FISHER v. ZONING BOARD OF APPEALS OF STOW and EDMUND C. TARNUZZER, JR., CHARLES A. BARNEY, WILLIAM F. BYRON, JR., MARK JONES, BRUCE FLETCHER, as they are members of the ZONING BOARD OF APPEALS, and PRESTI FAMILY LIMITED PARTNERSHIP; PRESTI MANAGEMENT CORPORATION, General Partner of the PRESTI FAMILY LIMITED PARTNERSHIP v. EDMUND C. TARNUZZER, JR., CHARLES BARNEY, WILLIAM BYRON, BRUCE FLETCHER, MARK JONES, ANDREW DEMORE, RUTH KENNEDY SUDDUTH, LEE HERON, as they constitute the STOW ZONING BOARD OF APPEALS, and KATHLEEN FISHER