MISC 12-464426

July 29, 2013


Scheier, c.J.



These two cases involve the same property in Dennis, and in both cases, Plaintiffs are challenging the legality of decisions of the Zoning Board of Appeals (Board), relating to the expansion of a deck on a house on property abutting property where Plaintiffs reside. Plaintiffs initiated action in 12 MISC 464426 (First Case), pursuant to G. L. c. 40A, §17, on May 18, 2012, by filing a complaint seeking annulment of a May 2, 2012 decision of the Board. In its decision, the Board dismissed Plaintiffs’ appeal from a March 27, 2012 decision of the Building Commissioner (Commissioner), who had denied Plaintiff’s’ request for enforcement of the zoning bylaw, relating to construction authorized by a February 24, 2012 building permit issued to Defendant Michael J. Joyce, Trustee (Joyce). Plaintiffs allege that the Board’s decision is in excess of the Board’s authority. On August 6, 2012, Joyce filed an answer, which included eight affirmative defenses, including two which challenge Plaintiffs’ standing before the Board.

Plaintiffs initiated action in 12 MISC 470384 (Second Case), pursuant to G. L. c. 40A, §17, on September 19, 2012, by filing a complaint requesting that the court annul an August 27, 2012 decision of the Board. In this second decision, the Board dismissed Plaintiffs’ appeal from a June 7, 2012 “decision” of the Commissioner declining Plaintiffs’ request for enforcement against Defendant Joyce. On October 9, 2012, Joyce filed an answer, which included the same affirmative defenses he asserted in the First Case.

On May 1, 2013, Plaintiffs filed a motion for summary judgment in both cases, as anticipated by the parties. In Plaintiffs’ motion, they request that the court annul both of the Board’s decisions and remand them to the Board for hearing on the merits of Plaintiffs’ appeals. On June 3, 2013, Defendant Joyce opposed the motion through a written opposition and supportive filings, seeking summary judgment in Defendants’ favor. Soon after, the municipal Defendants joined in Joyce’s opposition and cross-motion.

A hearing was held on June 14, 2013, at which all parties were heard. In addition to the parties’ briefs and submissions filed in compliance with Land Court Rule 4, the summary judgment record includes the following, not all of which are necessary to disposition of the summary judgment motions: Documents registered with the Barnstable Registry District of the Land Court; Variance Decision # A-593 issued by the Board; Building Permit #2012-0208 (Building Permit); Various written communications by and among Plaintiff Heather Peters, the Peters’ lawyer, and the Commissioner; Both Appeals to Board; Letter to the Board from D. S. Reid, Esq.; Board decisions challenged in these appeals; Composite Plan of Land of David Boyd; Affidavits of Heather Peters and Todd Peters; Letter from H. Peters to the Board; Side elevation plan (Joyce addition); Letter from Defendant’s counsel to the Board; email from Heather Peters to the Board of the Old Kings Highway Historic Committee; and depositions of both Plaintiffs. The material facts are not in dispute.

1. Plaintiff, Todd Peters, a/k/a Walter Todd Peters, is a Trustee of the Peters Family Trust, which owns the premises located at 378 Sesuit Neck Road, East Dennis, shown as Dennis Assessors’ Parcel 410-45-0 (Plaintiffs’ Property).

2. Plaintiff, Heather Peters, and Todd Peters reside at Plaintiffs’ Property.

3. Defendant, Michael J. Joyce, is the Trustee of the 30 Highland Road Nominee Trust, which owns the property located at 30 Highland Road, East Dennis, shown as Dennis Assessors’ Parcel 420-13-0 (Locus).

4. Defendants, Ernie Oliveira, Peter Checkoway, Linda Slowe, Elisa Zawadzkas and Richard Zinner, are the duly appointed regular members of the Board at all times relevant to these appeals, and Defendant Brian Florence, is the duly appointed Building Commissioner for the Town of Dennis (together, sometimes referred to as Municipal Defendants).

5. On June 12, 1995, the Dennis Planning Board endorsed a plan entitled “Subdivision Plan of Land in East Dennis, MA. Scale of Thirty Feet to an Inch.” Being a subdivision of Lot 49, as shown on Land Court Plan 11274E Sheet 1. This Plan shows Lot 79, Lot 80, Lot 21, and Lot 20.

6. On July 19, 1995, Dennis Building Permit # 3733 was issued to David and Judith Boyd for the construction of a single-family home on the property (shown as Lot 20, Land Court Plan 11274E), on the condition that said Lot 20 (Assessor’s Parcel #420-13) and the adjoining Lot 49 (Assessor’s Parcel 420-29) are considered one lot under zoning.

7. The construction of the Boyd house was completed and a Certificate of Use and Occupancy issued January 18, 1996.

8. On February 16, 1996, the then Dennis Zoning Board of Appeals granted David A. Boyd and Judith B. Boyd a Variance, by decision #A-593 (1996 Variance). The 1996 Variance allowed the Boyds to divide Lot 49 into lots 79 and 80 and to convey Lot 79 to their abutter.

9. The division of Lot 49 into Lots 79 and 80 is shown on Land Court Plan 11274-L. 10. The Boyds continued to own Lots 79 and 80 until they conveyed Lot 79 on December 11, 2000, to Jewel Boyd Foster by deed registered with the Barnstable County Registry District of the Land Court as Document # 819,291.

Facts relevant to 12 MISC 464426 (First Case)

11. On February 24, 2012, the Commissioner issued Building Permit # BP-2012-0208, authorizing certain exterior additions to the home on Locus (Deck Expansion Building Permit).

12. On March 14, 2012, Heather Peters sent an email to the Board of the Old Kings Highway Historic Committee, which was received on 3/14/2012, in which she acknowledged that the Deck Expansion Building Permit was issued on February 24, 2012. The e mail was not a request for enforcement.

13. On March 23, 2012, Heather Peters, submitted to the Commissioner a Request for Enforcement, an initial letter accompanying the form, and a follow-up letter objecting to the construction under way at Locus (Request for Enforcement). As of that date, Heather Peters was not a trustee of the Peters Family Trust, which owned Plaintiffs’ Property.

14. By letter dated March 27, 2012, the Commissioner denied Heather Peters’ Request for Enforcement (Denial).

15. On March 28, 2012, Plaintiffs appealed the Commissioner’s denial to the Board.

16. By letter of April 18, 2012, Plaintiffs’ attorney informed the Board of an additional basis on which Plaintiffs intended to challenge the Building Commissioner’s denial of the Request for Enforcement. The additional basis was that the 1996 Variance granted to Locus had expired and Locus no longer had the benefits granted thereunder.

17. At a duly scheduled and noticed hearing on April 23, 2012, the Board dismissed Plaintiffs’ Appeal of the Denial, because the appeal had not been filed within thirty days of the date of the Building Permit, citing the Supreme Judicial Court’s opinion in Connors v. Annino, 460 Mass. 790 (2011).

Facts relevant to 12 MISC 470384 (Second Case)

18. As a result of his review of the record title to Locus, Plaintiffs’ attorney learned that Joyce’s predecessor-in-title (the Boyds) had not conveyed Lot 79 until December 2000. He concluded from this fact that the Boyds’ 1996 Variance had lapsed by operation of law because they had failed to exercise it timely.

19. On May 8, 2012, and June 6, 2012, Plaintiffs’ attorney wrote to the Commissioner (on behalf of Heather Peters), contending that the 1996 Variance had lapsed and was no longer in effect. In the letter, he requested that enforcement of the bylaw be undertaken due to the lapse.

20. On June 7, 2012, the Commissioner confirmed via email to Plaintiff’s attorney that he had issued a letter of denial on March 27, 2012, and that [the Commissioner’s office] “stand(s) by that denial.”

21. On July 6, 2012, Plaintiffs (Todd Peters, individually, and as “Tee,” and Heather Peters), appealed to the Board the Commissioner’s June 7, 2012 email communication. As of July 6, 2012, Heather Peters was not a trustee of the Peters Family Trust.

22. A duly scheduled and noticed hearing was held on August 27, 2012. By decision filed with the Town Clerk on September 4, 2012, the Board dismissed Plaintiffs’ Appeal, based upon the Board’s view that the Appeal was untimely, not having been filed within thirty days of the issuance of the Building Permit. The Board noted that “ this application was similar to, if not identical to the case heard on April 23, 2012, at which time the Board made the determination that the case was not timely filed . . . “

23. At all times material to this action, Locus has been located in the R-40 zoning district which requires a minimum 40,000 square feet for a residential lot.

24. The combined gross area of Lot 20 and Lot 49 was 33,937 square feet. The gross area of Locus is 6,935 square feet.

* * * *

These cases are before the court pursuant to the parties’ cross-motions for summary judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. See Kourouvacilis v. G.M. Corp., 410 Mass. 706 , (1991).

In considering the materials in support of any motion for summary judgment, "the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, where, as here, the court is faced with cross-motions, it must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. Talmo v. Pihl, 19 LCR 121 (2011) (09 MISC 393714).

Plaintiffs argue that summary judgment should be granted in their favor because they did not have knowledge or notice of the zoning violation or the alleged lapsed Variance until the thirty-day appeal period from the issuance of the Building Permit had expired. They further argue that they did not have a reasonable opportunity to appeal within that appeal period, and therefore the appeal to the Board under G. L. c. 40A, §7 was not foreclosed by the failure to have appealed under section 8.

Defendants argue that summary judgment should be granted in their favor because neither Todd Peters nor Heather Peters has standing, as neither Plaintiff is a person aggrieved by the decisions of the Board. Also, where Plaintiffs had adequate notice of the issuance of the Building Permit, they were required to appeal to the Board within thirty days of its issuance under G. L. c. 40A, §§ 8 and 15. As a result, the Board and consequently the court, lack jurisdiction to hear either appeal.

Based on the facts established by the summary judgment record, the court is persuaded by Defendants’ arguments. Consequently, the court holds that Plaintiffs failed to file a timely appeal under G. L. c. 40A, §§ 8 and 15, and as a result, the board had no jurisdiction to hear the appeals. Accordingly, the court need not reach the issue of whether Plaintiffs were “persons aggrieved” within the meaning of G. L. c. 40A, §17, and cases decided thereunder.

The statutory process by which an appeal of a decision of the Commissioner may be filed and heard by a local zoning board of appeals is set forth in G. L. c. 40A, §§ 8, and 15. Section 15 provides that "[a]ny appeal under [§ 8] to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed." With respect to an appeal from an "inability to obtain [a § 7] enforcement action," the date from which the thirty-day period for appeal is measured is the date of the written response of the municipal building official to the person who filed the request for enforcement. With respect to a building permit, the date of its issuance is considered "the date of the order or decision." c. 40A, § 15. For purposes of § 8, the issuance of a building permit qualifies as an "order or decision of the inspector of buildings, or other administrative official," Connors v. Annino, 460 Mass. 790 , 794 (2011), quoting Gallivan v. Zoning Bd. of Appeals, 71 Mass. App. Ct. 850 , 854 (2008). “Where the aggrieved party has adequate notice of the building permit's issuance, he or she is required to appeal to the appropriate zoning [907] board of appeals within thirty days of the permit's issue date under G. L. c. 40A, §§ 8 and 15; in such circumstances, a later appeal to the board from a denial of a request for enforcement made pursuant to G. L. c. 40A, § 7, [2] is not an available alternative remedy.” Connors, at 791. “We note, as the court did in Gallivan, that an enforcement request under § 7, and a subsequent appeal from a denial of said request under §§ 8 and 15, remains a valid procedural path for aggrieved parties to follow in appropriate circumstances. For example, an enforcement request may still be pursued under § 7 [15] if the aggrieved party can establish that he or she was without adequate notice of the order or decision being challenged.” Id. at 797.

Plaintiffs argue that they did not have adequate notice based on a theory that they had no knowledge of the alleged lapse of the 1996 Variance until after the thirty-day appeal period had expired, and thus were not provided with a reasonable opportunity to appeal in a timely manner. Defendants argue that even if the 1996 Variance could be challenged at this late date (which they deny), the “order or decision” for which the appeal was untimely still began on February 24, 2012, when the building permit was issued. As a result, Defendants contend that the notice exception enunciated in Gallivan and Connors is not available. The email from Plaintiff Heather Peters, dated and received March 14, 2012, clearly indicates that she had knowledge at least as early as March 14th that the Building Permit for Locus had issued. That date was two weeks from the expiration of the thirty-day appeal period. Furthermore, Heather Peters sent a letter requesting enforcement to the Commissioner on March 23, 2012, rather than appealing to the Board, as required by G. L. c. 40A, §§ 8 and 15. The letter to the Commissioner was also sent within the thirty-day appeal period.

The facts of these cases are similar to the facts of Connors, as Plaintiffs in both cases clearly had knowledge of the building permit at issue with adequate notice and time to challenge it, but nonetheless did not file timely appeals. Plaintiffs did not file their first appeal with the Board until thirty-three days after the issuance of the Building Permit, and they do not contend that they did not have adequate notice of its issuance. Furthermore, Plaintiffs’ arguments regarding the lapsed 1996 Variance and unlawful construction were available to Plaintiffs before the appeal period ran, and could have been made to the Board had a timely appeal been filed. The fact that Plaintiffs were not aware of a potential legal theory when they filed their first appeal (which also was not timely), does not turn this fact pattern into one that is akin to the exception noted in Connors or Gallivan.

Plaintiffs argue that the second appeal to the board raised new issues that were different from those raised in the first appeal. They contend that the second appeal was based on a second “decision” by the Building Commissioner, which gave rise to a second opportunity to challenge the issuance of the Building Permit under Plaintiffs’ new theory (the lapsed 1996 Variance). Defendants point out, correctly, that the Commissioner never issued a second “decision.” Rather, his e mail was a confirmation of his first denial, stating that his office “stand[s] by its original denial on March 27, 2012,” and that this is now “a matter for the courts.” Defendants’ attorney argued that the second appeal is really just a new legal argument based on the same issue - expansion of the deck under the Building Permit. The first argument was based on conditions in the 1996 Variance, and after the appeal was denied, Plaintiffs formulated an additional legal theory that the 1996 Variance had lapsed. Defendants’ attorney properly pointed out that if the second Case is viewed as a timely appeal, there would be no end to the appeals, so long as Plaintiffs could come up with new legal arguments as to why an enforcement action should be undertaken by the Commissioner. This court agrees that both appeals are based on the same alleged violation.

Plaintiffs attempt to support their lack of notice theory with the case of Miller v. Zoning Bd. of Appeals. 20 LCR 262 (2012) (09 MISC 414558 and 11 MISC 444621). Plaintiffs contend that the Miller holdings are favorable, in that the court found the Gallivan decision to not be applicable because Miller did not have knowledge of the “dimensional violation” on the property at issue. Defendants distinguish Miller from the current case. In Miller, the party bringing the claim did not know the building permit had been issued for a year. Moreover, the barn that was constructed pursuant to the building permit had a dimensional non-conformity, which was a dimensional violation of the bylaw and the subject of the appeal. Unlike Miller, Plaintiffs in the current case had adequate notice of the issuance of the building permit to file an appeal within the thirty-day appeal period. Furthermore, the alleged violation of the bylaw that was the subject of appeal was authorized by the building permit and construction was conducted in Plaintiffs’ plain-view. What was arguably not in “plain view” (but was fully discoverable) was the record title to Lot 79 at the Barnstable Registry District.

The First Case is informed and controlled by the holding of Connors. Since Plaintiffs’ appeal was filed thirty-three days after the issuance of the building permit, it is not within the thirty-day appeal period set out in G. L. c. 40A, §§8 and 15, and thus was an untimely appeal that denies the Board (and subsequently this court) the jurisdiction to hear the appeal. Plaintiffs’ arguments for a notice exception and a second appeal are not persuasive in light of Connors, as the Second Case is based upon the Commissioner’s original denial of Plaintiffs’ request for enforcement. Therefore, the court holds that Plaintiffs’ failure to file a timely appeal left the Board without jurisdiction to hear the appeals on their merits and both appeals were properly dismissed.

Judgment to issue accordingly in both cases.