CHERYL ANN DeWOLF, TRUSTEE OF THE DEWOLF NOMINEE TRUST u/d/t dated 11/15/02 v. CAROLINE M. APOVIAN; AUGUST J. BAKER; ANDREW J. BOBOLA, AS HE IS THE INSPECTOR OF BUILDINGS OF THE TOWN OF MATTAPOISETT

Introduction

Plaintiff Cheryl Ann DeWolf commenced the present action November 6, 2009 seeking a declaration that Caroline M. Apovian and August J. Baker’s home, located at 62 Shore Drive in Mattapoisett violates various Town of Mattapoisett Zoning Bylaws (Bylaw) and seeking a mandamus order under G.L. c. 249, §5 to compel Andrew J. Bobola, the municipal Building Inspector to enforce provisions of the Zoning Bylaw.

On August 30, 2012, the parties each filed a Motion for Summary Judgment pursuant to Mass. R. Civ. P. Rule 56 together with memoranda in support of the said Motions. The motions were argued on December 11, 2012 and taken under advisement.

Background

At issue in this case is a reconstructed two-story home (existing structure) owned by the defendants Caroline M. Apovian and August J. Baker (defendants) at 62 Shore Drive, Mattapoisett (locus). The plaintiff, Cheryl Ann DeWolf, Trustee of the DeWolf Nominee Trust u/d/t 11/15/02 (plaintiff / DeWolf), owns the abutting property at 64 Shore Drive. The dispute centers upon the structure and (1) whether it conforms with applicable zoning bylaws, and (2) whether DeWolf is entitled to compel enforcement of the applicable bylaw provisions.

The defendants purchased the subject property at 62 Shore Drive on December 14, 2001. The locus appears on sheet 1 of Subdivision Plan #11958B dated April 28, 1950 and filed with Certificate of Title No. 14273. [Note 1]

Approximately two years thereafter, on December 17, 2003, Building Inspector Andrew J. Bobola (Building Inspector), approved a demolition permit to raze and remove the single-story structure (prior structure) that then stood at 62 Shore Drive. [Note 2] Thereafter, the Building Inspector granted a construction permit to build a new two-story structure (existing structure) in its place, on January 13, 2004. [Note 3] Apovian briefly spoke to the plaintiff noting that she was “thinking of rebuilding.” [Note 4] DeWolf was later informed of the demolition by a neighbor via telephone. [Note 5] DeWolf and her spouse were seasonally present at their residence during periods coinciding with the demolition and construction at the locus, between 2004-2005. [Note 6]

The locus, as a waterfront property, is situated within a designated W-30 zoning district requiring a minimum 30,000 square foot lot size, 125 feet of frontage, 35 feet of setback from the street, 30 feet of rear setback, and 20 feet of side setback. [Note 7] The locus is an undersized lot of approximately 5,500 square feet. [Note 8] The prior structure, built before 1973, was pre-existing and nonconforming with a front setback of approximately 20 feet and sideyard setbacks of 5 feet on the south side and 3 feet on the north side, respectively. [Note 9]

In late 2003, the defendants engaged architect George Robert Graves, Jr. (Graves) to oversee the demolition of the prior structure and to construct the existing structure. As submitted by Graves, the Site Plan attached to the building permit application depicted a front setback of 16 feet, sideyard setbacks of 11 feet to the north side and 10 feet to the south side, respectively, and a rearyard setback of 35.4 feet. [Note 10]

The exisitng structure met the applicable 1973 setback requirements and on that basis, the Building Inspector approved the permit application. [Note 11] Neither the demolition permit nor the construction permit required a special permit in the opinion of the Building Inspector. Consequently, the Mattapoisett Zoning Board of Appeals (Board) had no occasion to preliminarily review the proposals. [Note 12] At the time the defendants applied for the permits, it was the practice of the Mattapoisett Building Department (Department), under Section 6.6 of the Mattapoisett Bylaw, to exempt the demolition and reconstruction of pre-existing nonconforming structures upon pre-existing nonconforming lots from the need to obtain special permits from the Board. [Note 13] In 2008, the Department ceased this practice [Note 14] so that the proposed construction would thereafter require a special permit in order to proceed. [Note 15]

As depicted in an As-Built Foundation Plan completed May 28, 2004, the existing structure has setbacks of 16.06 feet in front, 10.85 feet on the north side, 10.05 feet to the south side, and a height of 34.86 feet. [Note 16] Construction on the existing structure was completed approximately one year later at a cost of $336,900.00. A Certificate of Occupancy issued May 17, 2005. [Note 17] The plaintiff toured the existing structure. She raised no issues regarding the structure’s size, shape, location, setbacks, height, appearance, legality, or effect upon 64 Shore Drive, her own residence. [Note 18]

A dispute over rights in a rock jetty extending into the ocean between the litigants’ respective properties culminated in the filing of an action with this court—Cheryl Ann DeWolf, Trustee of the DeWolf Nominee Trust u/t/d 11/15/02 v. Caroline M. Apovian and August J. Baker, Land Court Misc. 381982 (First Case). Owing to that action, “the parties’ relationship changed over time.” [Note 19] The plaintiff maintains that the relationship was cordial, but argues that her feelings changed when Baker asserted “that he had ownership rights to our property.” [Note 20]

According to the plaintiff, she was unaware, until 2008 or 2009, that the current structure had been built without a special permit and may otherwise have had zoning irregularities. [Note 21] She confirmed her suspicions with a survey “around that time (2008 to 2009).” [Note 22] On September 17, 2009, through counsel, she forwarded a letter purporting to be a settlement offer concerning the then pending jetty related case to the defendants highlighting alleged violations of the zoning code and threatening to bring an enforcement action. [Note 23] The allegations relating to zoning issues contained in the letter track those found in the instant complaint.

For their part, the defendants deny that the letter could be construed as an offer of settlement. [Note 24] The letter, in essence, demands that the defendants agree to waive their asserted rights in the jetty related case and correct any setback encroachments in connection with their existing dwelling and remove or relocate the offending portions of their home: In the event your client [Apovian/Baker] agrees (1) to the entry of judgment in the pending Land Court case that it has no rights in my client’s [DeWolf’s] property or in the jetty constructed on my client’s private tidelands and adjacent common tideland, and (2) to remove and/or relocate the portions of the [New Structure] which encroach on the applicable set-backs, my client will cease and desist all efforts premised upon the other existing zoning deficiencies stemming from your clients’ 2003 construction. [Note 25]

On October 2, 2009, DeWolf filed a Request for Zoning Enforcement with the Building Inspector under c. 40A, §7, demanding the existing structure at the locus be brought into compliance with the Bylaw. [Note 26] The Building Inspector referred the matter to Town Counsel. [Note 27]

DeWolf initiated the present action, alleging that as a neighboring abutter, she is aggrieved by the zoning deficiencies/encroachments of the existing structure. [Note 28] Count I of the complaint seeks a declaratory judgment that the said structure violates applicable Bylaw provisions. Count II requests mandamus relief requiring the Building Inspector to undertake action on the Enforcement Request submitted.

Summary Judgment Standard

To prevail on summary judgment, the moving party bears to burden to demonstrate no material fact exists and they are entitled to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419 , 422 (1983), citing Mass. R. Civ. P. 56(c). In ruling on a motion, the court must “scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party’s favor.” Steffen v. Viking Corp., 441 F.Supp.2d 245, 250 (D. Mass. 2006), citing Mulvihill v. Top-Flite Golf Co., 335 F.3d 15 (1st Cir. Mass. 2003). The substantive law of the case dictates which facts are material in considering summary judgment. Titanium Group, LLC v. Brockton 2009 WL 117989 (Mass. Land Ct.), citing, e.g., Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, leaving the court with sufficient evidence to resolve a key question of law. This court is satisfied on the undisputed facts, that the matter may be resolved on the applicable law. It is therefore ripe for summary judgment.

Discussion

The plaintiff contends that the Building Inspector misconstrued the applicable bylaw provisions, failing to consider that the then proposed dwelling, as a total reconstruction, would amplify the nonconformity of the lot and building. Plaintiff asserts, therefore, that the Building Inspector improperly granted the requisite permits without requiring the defendants to apply for a special permit, or appear before the Board. Plaintiff argues further, that the deck and later addition of an outdoor shower encroached further into the setback areas and thus any nonconformities are even more substantial than those made part of the original permit applications.

The defendants also move for summary judgment arguing that regardless of the merits of the plaintiff’s allegations, her requested relief is barred by the equitable doctrines of unclean hands and laches. In this regard, the defendants assert that the existing structure was lawfully permitted and constructed. They assert that changes in the Town’s practices and cases decided after the approval and completion of the project have no retroactive bearing upon their construction undertaken in reliance upon the state of then-existing law.

For the reasons set forth below, this court concludes that even if it were to credit the plaintiff’s allegations, her failure to come forward with her objections in a timely manner entitles the defendants to maintain the defense of laches. Such defense serves to bar the plaintiff from her requested relief, inasmuch as she raised no objection to the defendants’ completed dwelling for four years before initiating the present action. Under the circumstances, this court need not address allegations that this litigation was brought in bad faith, with unclean hands to in order to gain advantage in the then pending jetty matter.

Laches

The equitable defense of laches is defined as “[u]nreasonable delay or negligence in pursuing a right or claim…in a way that prejudices the party against whom relief is sought.” Black's Law Dictionary 879 (Bryan A. Garner, 7th ed., West 1999).

In the case of Stewart v. Finkelstone, the Supreme Judicial Court articulated the doctrine thusly:

If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word or action of the plaintiff that there was no objection to his operations. Diligence is an essential prerequisite to equitable relief of this nature. 206 Mass. 28 , 36 (1910).

“The operation of laches generally is a question of fact for the judge, and a judge's finding as to laches will not be overturned unless clearly erroneous.” A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502 , 517 (2005), and cases cited.

In general, laches may not be asserted against a municipality acting to enforce zoning laws in the public interest. See in this regard Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912 , 914 n.7 (2012), discussing Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205 , 224-225 (1982) and McAleer v. Bd. of Appeals of Barnstable, 361 Mass. 317 , 322-323 (1972). In the present case, Defendants seek to apply the doctrine of laches as against DeWolf, a private party; the defense may, therefore, be properly invoked. See id.

Commonly referred to as “sleeping on rights,” the most significant consideration is not merely delay, but the disadvantage inured to a party due to the litigant’s failure to come forth in a timely manner following actual or constructive notice. See Richardson, 81 Mass. App. Ct. at 914. This disadvantage often takes the form of a changed position or substantial expenditures relying upon the other party’s active or passive acquiescence. Id.

Several decisions of the Appeals Court are particularly instructive and facilitate the disposition of the case sub judice.

In Richardson v. Board of Appeals of Chilmark, the Appeals Court identified laches as an independent ground for dismissal of an action by an abutter challenging issuance of a permit to construct a single-family residence on an adjacent lot. The court observed the following:

[A]lthough Carlin [the plaintiff] had adequate notice of the issuance of the building permit in September of 1999, and therefore had actual or chargeable knowledge of the alleged zoning by-law violation at that time, she failed to raise the issue until almost five years later, in 2004. Carlin contends that her chargeable knowledge of the alleged zoning by-law violation could begin only with the formal commencement of construction in the autumn of 2001…Even if we were to assume such facts, she would still have delayed her challenge to the permit for more than two additional years as she watched the construction take shape. By that time Cohen [the defendant] had invested significant time and resources in the project.

81 Mass. App. Ct. 912 , 914. As a matter of equity, laches barred the relief sought. Id., citing Myers v. Salin, 13 Mass. App. Ct. 127 , 137-140 (1982).

The case of Chiuccariello v. Building Comm’r of Boston, 29 Mass. App. Ct. 482 , 484 (1990) concerned efforts by abutters to challenge the issuance of a variance to convert warehouses into residential apartments, commercial space, and parking lots. The abutters contended the variance should be invalidated due to inadequate notice of the hearing before the zoning board and sought mandamus relief to enforce the ordinance and halt construction. The Court determined that the action was barred by the doctrine of laches. In so doing, it emphasized that the abutters waited six months after they had actual knowledge of costly demolition and construction activities undertaken by the defendant developer before filing the action. Chiuccariello, 29 Mass. App. Ct. at 487-488.

In a Rule 1:28 decision, [Note 29] the Court in Janey v. Bd. of Appeals of Wareham affirmed the dismissal of an action brought by an abutter seeking to enforce provisions of the zoning bylaw. 82 Mass. App. Ct. 1108 (2012) (unpublished). [Note 30] As in Chiuccariello, the Court determined that a six month delay had given rise to laches as an independent bar to the enforcement action. The Court declared that it was “inequitable for the plaintiff ‘to sit idly by and permit expensive structures to be constructed.’” Id., quoting Fenton v. Malfas, 286 Mass. 339 , 342 (1934).

The question whether the doctrine laches may properly be invoked, is a question of fact. See Myers, 13 Mass. App. Ct. at 138. As a factual inquiry, its application requires a case-by-case evaluation. The court must consider whether the claimant was chargeable with notice of a zoning decision or possible violations, the reasonableness of the claimant’s delay, and the prejudice that would flow were the action allowed to proceed despite any delay. See Stewart, 206 Mass. at 36.

DeWolf does not state with specificity precisely when she had actual knowledge of the zoning issues giving rise to the instant lawsuit. She alludes to 2008 or 2009 during which time she sought to make renovations to her own dwelling requiring a special permit. [Note 31] She suggests it was at that time when she became attuned to zoning concerns with regard to the defendants’ dwelling.

It is uncontested, however, that the plaintiff was present at her own property at least during periods following the demolition of the defendants’ original structure and the construction of the existing dwelling; moreover, she received notice early on of the demolition or commencement of construction. [Note 32] She utilized her home from roughly March to October each year from 2004 through 2009. [Note 33] Arguing that she lacked actual notice of zoning issues concerning the existing structure, DeWolf argues that laches should not apply. [Note 34] This assertion, however, misapprehends the notice standard.

Sufficient notice does not require actual, explicit knowledge of zoning irregularities. See Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 859 (2008) (finding notice of permit hearing sufficient regardless of whether the notice contained specific measurements and zoning deficiencies of the proposed project).

In Richardson v. Board of Appeals of Chilmark at 913, the Court observed as follows:

Adequate notice may be actual of constructive… A party has constructive notice when the evidence is “sufficient to place on [that party] a duty of inquiry” regarding the building permit’s issuance. (emphasis supplied)

The Court noted further:

…[A]lthough difficult questions of notice may arise at the margins… Carlin [the plaintiff] had constructive notice of the issuance of the ‘[building] permit…. We are satisfied that she possessed evidence more that “sufficient to place on [her] a duty of inquiry.” (internal citations omitted) (emphasis supplied)

Discussing the doctrine of laches, the Court stated:

As an independent ground of decision apparent on the record, we find the doctrine of laches applicable to bar Carlin’s appeal. … Here, although Carlin had adequate notice of the issuance of the building permit… and therefore had actual or chargeable knowledge of the alleged zoning violation at that time, she failed to raise the issue until almost five years later…. (internal citations omitted) (emphasis supplied)

In the case at bar, observable activity, such as demolition and/or construction, would reasonably serve to provide the plaintiff with constructive notice as to the issuance of a building permit. She was, as a consequence, obliged to inquire further as to the legality of the proposed structure. There was nothing to preclude such inquiry.

The plaintiff explains that she and her husband believed that they would have received notice if the proposal did not comply with applicable zoning requirements. [Note 35] However, this belief does not excuse a duty to inquire. Especially in light of the substantiality of the existing structure, standing approximately 20 feet taller than the original dwelling, with a larger footprint, it is this court’s view that DeWolf was chargeable with notice, at a minimum, as soon as the size and nature of the project became apparent. Ultimately, the very characteristics of the existing structure that DeWolf alleges to be the cause of her aggrievement, stood for years before the present action was initiated. [Note 36]

The plaintiff argues that the statute of limitations affords a six-year window in which to press these claims. That window is not without its limitations, however. We have seen that the passage of a six month period from the start of construction activities may give rise to a laches defense. Chiuccariello, 29 Mass. App. Ct. at 487-488; Janey v. Bd. of Appeals of Wareham, 82 Mass. App. Ct. 1108 (2012) (unpublished). Similarly, in Richardson, even crediting the plaintiff’s argument that she lacked notice until the project formally commenced, by waiting two years, during which time she “watched the construction take shape,” the court found her delay “unjustified, unreasonable, and prejudicial.” 81 Mass. App. Ct. at 914, citing Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45 , 49 (1990).

Here too, DeWolf “watched the construction take shape” and stood idly for years without formal inquiry or objection. Richardson, 81 Mass. App. Ct. at 914. The defendants invested significant time and monetary resources in order to demolish and reconstruct their dwelling. They resided in that home for over four years before this suit was initiated. Without question, the prejudice to the defendants, facing a possible removal or demolition of at least a portion of their dwelling after the passage of years, would be substantial and unreasonable.

Conclusion

For the foregoing reasons, I conclude, as did the Richardson Court, supra, that DeWolf’s delay was “unjustified, unreasonable, and prejudicial” and pursuant to the doctrine of laches, dismissal of this action is warranted.

Accordingly, it is hereby

ORDERED that Plaintiff’s Motion for Summary Judgment be, and hereby is, DENIED. It is further

ORDERED that Defendants’ Motion for Summary Judgment be, and hereby is ALLOWED.

Judgment to enter accordingly. SO ORDERED.

By the Court (Grossman, J.)