Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin November 25, 2011 1 Volume 5 I No. 22 (the "board"). The building commissioner did not respond immediately to the letter. On September 15, 2008, the building inspector issued two building permits to Annino. Connors learned that the permits were issued on Sep- tember 25. On September 29, at Connors requests, the building inspector responded to his letter, saying the building permits were properly issued under the city's zoning code. On October 20, 2008, 35 days after the building permits had issued, Connors filed a petition of appeal with the board. The board dismissed Connors' petition, concluding that he had "failed to bring the appeal with- in the time frame required by statute." Connors appealed to Land Court. The Land Court judge agreed that Connors had failed to timely appeal. Connors again appealed. On appeal, he argued that the statutory scheme set out under Massachusetts' Zoning Act, C.L. c. 40A, SS 7, 8, and 15, provided him with two independent ways to appeal from the building de- partment's issuance of the permits to Annino. Section 7 requires the ap- propriate municipal building official (here, the building commissioner) to enforce zoning ordinances or bylaws by withholding a "permit for the con- struction, alternation or moving of any building or structure" if the pro - posed building or structure violates any relevant municipal zoning ordi- nance or .bylaw. Section 8 provides in relevant part that "[a]n appeal to the permit granting authority as the zoning ordinance or by -law may provide, may be taken by any person aggrieved by reason of his inability to obtain ... [an] enforcement action [under § 7] ... or by any person ... aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision" of G.L. c. 40A or the pertinent zon- ing ordinance or bylaw. Finally, § 15 prescribes the time in which the ad- ministrative appeals in 8 must be taken: "within thirty days from the date of the order or .decision which is being appealed." With respect to an ap- peal from an "inability to obtain [a § 7] enforcement action" the date from which the 30 -day period of appeal is measured is the date of the written response of the municipal building official to the aggrieved person's request for enforcement." Connors argued that: (1) under SS 8 and 15, he could have filed a peti- tion of appeal with the board from the decision to issue the building per- mits within 30 days of the permits' issuance; and (2) under SS 7, 8, and 15, he was entitled to submit at any time within six years —a written request to the building commissioner to "enforce" the zoning ordinance by refusing to issue the building permits Annino was seeking. Connors contended that he had taken the second approach. He maintained that under S 7, he had until October 29, 2008 (30 days from the commissioner's September 29, 2008, letter) to file his petition of appeal with the board. DECISION: Judgment of land court affirmed. The Supreme Judicial Court of Massachusetts held that the "alterna- tive" remedy offered in § 7 of requesting the enforcement of the zoning © 2011 Thomson Reuters 3