Agenda - Planning Commission - 10/04/2012

Home

July 10, 2012 I Volume 6 I No. 13 Zoning Bulletin in Superior Court appealing from the issuance of a septic system upgrade permit to Cohen. In that complaint, Carlin acknowledged Cohen's plans to build a large single-family dwelling on his property. On September 11, 1999, a building permit was issued to Cohen. The permit authorized him to demolish and replace a small dwelling on his property with the larger proposed one. Cohen began construction in the fall of 2001. By let- ters dated June 20, 2004 and September 21, 2004, Carlin urged the town to revoke the building permit. She appealed the building inspector's inaction to the town's zoning enforcement officer and board of appeals (the "board") on October 8, 2004. She argued that the building permit was issued in violation of a zoning bylaw; she alleged that Cohen's property lacked adequate frontage. The board denied Carlin's appeal. She appealed to the Land Court. Before the Land Court, the board argued that Carlin had failed to timely ap- peal within 30 days of the issuance of the building permit. Under Massachusetts statutory law (Mass. Gen. L. c. 40A, §§ 8, 15) "a party with adequate notice of an order or decision that violates a zoning provi- sion must appeal that order or decision to the appropriate authority within the thirty -day period allotted for such an appeal." Carlin contended that she did not have "chargeable" knowledge of the building permit until construction began in the fall of 2001. The Land Court dismissed the appeal on the grounds that Carlin failed to timely appeal. DECISION: Judgment of land court affirmed. The Appeals Court of Massachusetts held that Carlin had constructive no- tice of the issuance of the permit in 1999 and failed to timely appeal within 30 days of that constructive notice. The court explained that the "adequate notice" that starts the 30-day appeal period may be "actual or constructive." The court said that 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." The court found that "although `difficult questions concerning adequacy of notice May arise at the margins,' Carlin had constructive notice of the issu- ance of the permit on September 11, 1999." The court made this finding based on the facts of: Carlin's attorney's "intimate" involvement with Cohen's proceedings, as well as Carlin's 1999 appeal from Cohen's municipal permit for a septic system upgrade. The court found these facts established Carlin's awareness of Cohen's intention to begin construction on his property as soon as possible. The court concluded that Carlin possessed evidence "more than `sufficient to place on [her] a duty of inquiry' into the building permit's issu- ance on September 11, 1999." Moreover, noted the court, even assuming Carlin did not have chargeable knowledge of the permit until construction began (as she alleged), Carlin still delayed her challenge to the permit by more than two additional years. (Carlin had brought a 2001 Land Court action alleging infringement of her beach ac- cess easement, but she had failed to raise the alleged zoning by-law violation in that action.) 10 ©2012 Thomson Reuters