Home ROBERT DELPRETE v. THOMAS RUBLE, as he is Building Inspector and Zoning Enforcement Officer for the Town of Rockland; TOWN OF ROCKLAND ZONING BOARD OF APPEALS; TOWN OF ROCKLAND BOARD OF SELECTMEN; and TOWN OF ROCKLAND; and SUSAN A. JOYCE and THOMAS J. JOYCE, Interveners.

MISC 12-458553

July 2, 2013

Plymouth, ss.

Piper, J.


Robert DelPrete (“Plaintiff”) commenced this case in this court on January 26, 2012 as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Rockland Zoning Board of Appeals (“Board”). The Board’s challenged decision, [Note 1] issued on administrative appeal, upheld actions taken by the building inspector in ordering a building permit issued to Plaintiff revoked in response to an enforcement request from Susan A. Joyce and Thomas J. Joyce (“Interveners”) under G.L. c. 40A, § 15; the Board also denied Plaintiff’s alternative request--for a variance. On March 29, 2013, the Town of Rockland Board of Selectmen and the Town of Rockland (“Town”) joined the case as parties to a counterclaim for enforcement under G.L. c. 40A, § 7. The subject property (“Property”) is known as 320 Concord Street, Rockland, Plymouth County, Massachusetts. [Note 2] It is undisputed that the Plaintiff’s lot, Lot 1 as laid out on the recorded 1999 Avery ANR Plan, is deficient as to the frontage, lot width, and area required in the relevant zoning district, R-1. That 1999 plan contains a clear notation that Plaintiff’s Lot 1 did not meet the zoning requirements then in effect. Lot 1 was redrawn from its configuration in an earlier, 1992 plan; the revision of the property lines gave frontage and land to is now the Interveners’ lot, and took away frontage and land to render Plaintiff’s current Lot 1 with less than the local law requires.

This case came on the be heard on cross motions for summary judgment on March 19, 2013. Following hearing, the court (Piper, J.) issued the following ruling, which was entered on the court’s docket for this case:

Hearing Held on Cross-Motions for Summary Judgment. Attorneys Gossels, Galvin, and Sullivan Appeared and Argued. Court Rules Only in Part on Cross-Motions, Deciding Only that: In Light of Presence of Counterclaim by Municipal Officials for Enforcement Under G.L. c. 40A, § 7, There Is No Need to Decide Whether Original Request for Enforcement Under G.L. c. 40A, § 15 Brought by the Joyces Was Timely Under Connors v. Annino, 460 Mass. 790 (2011). The Failure of an Abutting Neighbor Timely to Appeal Issuance of Building Permit Does Not Operate to Bar the Municipality's Right to Enforce Its Zoning Bylaw. Nothing in the Doctrine of Connors Repeals or Shortens the Otherwise Applicable Six-Year Limitations Period of Section 7 When, as Here, the Municipality Affirmatively Pursues Enforcement. Because the Municipality Is Pursuing Enforcement, the Court Also Need Not Consider Whether, How and When the Joyces First Acquired Sufficient Awareness of the DelPrete Lot’s Lack of Compliance with the Dimensional Requirements of the Zoning Bylaw and/or Failure to Qualify as Protected Prior Nonconforming. No Further Ruling or Other Action on Cross-Motions Pending the Following: By Tuesday, March 26, 2013, Municipal Counsel to File and Serve Either an Amended Counterclaim that Joins Town of Rockland (Authorized by its Board of Selectmen) as Party Seeking Enforcement, or Memorandum of Law Arguing Why Case for Enforcement As Pleaded is Adequate. By April 2, 2013, Plaintiff DelPrete to File and Serve Supplemental Legal Memorandum that Explains to Court the Legal Theory and Supporting Decisional Law that Supports Contention, Advanced at Argument, that Laches or Other Equitable Considerations May Operate as Bar to Municipality’s Ability to Enforce its Zoning Bylaw, and/or that Equitable Considerations May Require Zoning Board of Appeals to Grant Variance Where Applicant Concedes Statutory Conditions, G.L. c. 40A, § 10, are Otherwise Not Met. Defendants to File and Serve Responses, If Any, to Plaintiffs’ [sic] Supplemental Filing Within Fourteen (14) Days of its Receipt by Court, At Which Point Court to Take Cross-Motions Under Advisement Without Further Hearing Unless Otherwise Ordered. [Note 3]

Plaintiff’s supplemental memorandum of law was filed on April 1, 2013. The municipal parties and the Interveners filed supplemental memoranda on April 11, 2013, and the matter was taken under advisement. I now decide the case.

As directed by the court’s March 19, 2013 orders, the sole issue remaining for decision is whether laches or some other equitable doctrine operates in this case to either (1) bar the Town from enforcing its own zoning bylaws, or (2) require the Board to grant a Plaintiff a variance, notwithstanding that the provisions of G.L. c. 40A, § 10 are not met. These arguments are legally unavailable to Plaintiff.

The material facts in this case are not disputed. [Note 4] On or about April 28, 2010, Plaintiff obtained a building permit for the Property despite the fact that the lot does not comply with the lot size, frontage, or lot width requirements of the zoning bylaw in the Town of Rockland. [Note 5] Plaintiff proceeded to construct a single-family house on the Property, and obtained a certificate of occupancy on or about April 20, 2011. After the zoning violations came to light, Plaintiff sought and was denied a variance, and the Town sought to enforce its zoning bylaw. It is conceded that, absent a variance, the building is not allowed under current zoning.

* * * * *

The Board cannot be compelled by this court to grant a variance. To start, “[n]o person has a legal right to a variance and they are to be granted sparingly.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55 , 61 (1971). “[E]ven where a board legally could grant a variance, they would not be required by a court to do so.” Chiancola v. Board of Appeals of Rockport, 65 Mass. App. Ct. 636 , 638 (2006). In Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318 , further appellate review denied, 370 Mass. 867 (1976), the building inspector improvidently granted a permit for a lot lacking sufficient frontage. Id. at 319. It was only after the lot was cleared, and the foundation dug and poured, that the same building inspector revoked the permit. Id. The board of appeals granted a variance but a neighbor challenged the decision. Id. The trial court upheld the issuance of the variance, but the Appeals Court reversed the decision, holding that the applicant failed to meet the “hardship” requirement for issuance of a variance, and the fact that the variance holder “expended a substantial amount of money [does not] justify the granting of a variance.” Id. at 320.

Here, this case is a lot like Raia, where the construction took place pursuant to a building permit, and yet a variance nonetheless was impermissible. Plaintiff DelPrete is even less well situated than the applicant in Raia, who received a variance from the Board; in the case now before me, the Board, as is clear from its decision, does not support the issuance of the variance. I must uphold the Board’s decision not to issue a variance to Plaintiff DelPrete because there is simply no doctrine in the Commonwealth that would allow a court to order the issuance of a variance.

There is support for the general legal proposition that in some exceptional cases a “strict enforcement of the zoning code... should be considered oppressive, inequitable, and illegal.” See Steamboat Realty, 70 Mass. App. Ct. 601 , 604 (2007) (quoting Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 227 (1999)). [Note 6] In Steamboat Realty, 70 Mass. App. Ct. 601 , the plaintiff’s “principal argument on appeal [was] ... notwithstanding that it does not meet the criteria for a variance, a variance should have been granted on equitable principles that disfavor enforcing trivial or de minimis zoning infractions, particularly where the violation was made innocently, the cost to the applicant is great, and the harm to abutters is minimal.” 70 Mass. App. Ct. at 604. [Note 7] These cases do not allow the court to direct issuance of a variance; however, I consider them as in the context of Plaintiff’s request to prevent, by estoppel or other equitable principle, the Town’s enforcement action.

There is a formidable line of cases holding that laches, estoppel, or other equitable doctrines will not bar a municipality from enforcing its bylaws. [Note 8] “[L]aches or estoppel is not a defense to an action to enforce municipalities’ by-laws or zoning ordinances.” Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 , 224 (1982) (internal quotation marks omitted). This is because the zoning power exercised by a municipality for the public interest may not be forfeited by the actions of one person, even acting in his or her capacity as a municipal officer. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977) and cases cited therein. “This is true even where there has been a substantial financial investment[.]” Cape Resort Hotels, 385 Mass. at 224. Even in Marblehead v. Deery, 356 Mass. 532 (1969), where the court ultimately affirmed the dismissal of the town’s enforcement action, the court was careful to note that it did so because there was “no showing of any public advantage which could result from a rigid and inequitable enforcement of the by-law” and that “the town is not now estopped to assert the zoning violation by reason of the [earlier] conduct of its selectmen and officers[.]” 356 Mass. at 537-38.

Here, I must affirm the Board’s decision directing enforcement of the zoning bylaw. There is simply no basis in the case law to apply the doctrine of estoppel against a municipality seeking to enforce its own bylaw. In fact, the cases align unanimously against such a proposition.

Judgment accordingly.


[Note 1] The challenged decision was filed with the T own Clerk on January 17, 2012 following public hearing on January 3, 2012.

[Note 2] The Property is described in the deed from Frank P. DelPrete and Dominic M. DelPrete to Robert F. DelPrete, dated March 10, 2010 and recorded on April 12, 2010 at the Plymouth County Registry of Deeds at Book 38415, Page 73.

[Note 3] Nothing since March 19, 2013 would cause me to depart from the rulings I made then, affording partial summary judgment to the Town. As I ruled from the bench on the record, and as the elaborative docket order made that day sets out, the plaintiff’s arguments--that enforcement ought be unavailable to the municipality in this case, based on the intervener neighbors’ delay in moving forward on the zoning dimensional violation which concededly exists here–lack merit. Any delay by the neighbors simply does not take away the independ- ent right of a municipality to enforce its zoning laws. The words of the relevant statutes, and the line of cases culminating in Annino, see also Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), nowhere evince a legislative intention to deprive municipalities of their right and obligation to enforce zoning laws by proceedings brought by the local government within the otherwise applicable statute of limitations period. An abutter who snoozes may lose the legal right to compel a reticent city or town to proceed with enforcement. But the legislature has not shortened, to a mere thirty days after a violation became known to a third party, the time within which a town may act of its own accord to have the zoning bylaw obeyed. This is true even where, as here, a third party may have called the violation to the attention of municipal officials. (It is not at all clear in this case that the interveners truly did “snooze.” The nature of the zoning violation in this case initially appears obvious, given the dimensions of Lot 1 since it was laid out--on the 1999 plan--with insufficient frontage, width and area, and a plain warning on the plan to that effect. Nevertheless, Plaintiff took the position with the Town that he somehow had a “grandfathered” right to build on this dimensionally inadequate parcel. The building inspector at first accepted this contention and issued the permits, only later to reverse himself and assert that he had been “defrauded” by Plaintiff. I do not read the Annino line of cases to mean that every building permit issued which authorizes construction in violation of zoning violation triggers a swift thirty-day period within which a third party must pursue enforcement or lose that right. Some violations are relatively obvious. Others are obscure, and require for their determination knowledge of back titles, or the history of use and control of adjoining lots, where questions of merger are implicated and can settle the prior nonconforming status of a lot. In cases where much deeply hidden evidence would need to be evaluated before one would know if a zoning violation existed or not, I am not convinced that application of an inflexible thirty day cutoff on a neighbor’s right to gain enforcement would be just, equitable, or required by the statute. Fortunately, given the posture of the case before me, I need not weigh the obviousness to the Joyces of Lot 1's zoning status when the building permit issued. That is because the Town itself is pursuing enforcement, and the question of what the Joyces knew, and when they knew it, is immaterial. As I ruled on partial summary judgment, the Town is not limited in its enforcement rights by what a neighbor (or even what a municipal official) knew or should have known within thirty days after the Town issued a permit.)

[Note 4] I do not consider the dispute over whether the building inspector was “misled” by the Plaintiff over the “grandfathered” status of the locus to be material. The reasons for my decision regarding the merits of this case, set forth below, do not rely in any way on a determination of what knowledge Plaintiff had at the time he requested the building permit, or the existence or nature of a duty, if any, the building inspector is alleged to have owed the Plaintiff in performing his municipal duties.

[Note 5] Plaintiff’s lot is approximately 28,937 square feet, and has 97.43 feet of frontage. The R-1 district in which the Property lies requires 32,670 square feet and 110 feet of frontage.

[Note 6] Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 (1999) was not a zoning appeal. It concerned an encroachment of a building over a property line and considered the limits of the “deminimis” doctrine which, in exceptional circumstances, may empower a court to refrain from issuing an injunction to require removal of the trespassing portion of the structure.

[Note 7] While the court in Steamboat Realty appears to endorse this as a statement of law, on the facts in that case, the court ultimately upheld the refusal to issue a variance.

[Note 8] The cases where a court has relied on equitable principles in the context of fashioning a remedy for a zoning violation are inapposite. See Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394 , 405 (2012) (“The case law recognizes that tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy.”); Steamboat Realty, 70 Mass. App. Ct. at 605 (“In the absence of [a tear down order], an argument that principles of equity militate against literal enforcement of the zoning code strikes us as premature.”).