Agenda - Planning Commission - 05/01/2014

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April 10, 2014 1 Volume 8 1 Issue 7 Zoning Bulletin Upon learning of Dias's application to the building commissioner, the Neighbors voiced their opposition to Dias's proposed use of the common driveway. The Neighbors thereafter spoke to the building commissioner on a "fairly regular basis" from February 26, 2010 to March 12, 2010. On March 26, 2010, the building commissioner mailed her decision to Dias approving the common driveway as a permissible means of access to lots 1 -3, and as an accessory use under the Town's zoning by -law. On April 14, 2010, the Neighbors learned of the building commissioner's decision and requested a written copy, which was received by the Neighbors on April 19, 2010. On May 3, 2010, the Neighbors filed an appeal to the building commissioner's decision. The Neighbors argued that the proposed common driveway was not a permissible accessory use under the Town's zoning by- law. The zoning board ultimately affirmed the building commissioner's deter- mination that Dias's driveway was peinussible. The Neighbors then appealed to court. Dias argued that the Neighbors' appeal must fail. Dias contended that the Neighbors' appeal to the zoning board was untimely and that a common driveway was a peinussible use under the Town by -law. As to the argument that the Neighbors' appeal was untimely, Dias pointed to G.L. c. 40A, § 15. That statute provides that a party aggrieved by a building commissioner's determination must file the appeal within 30 days of the decision. Since the building commissioner issued her decision on March 26, 2010, Dias contended that the Neighbors' appeal had to be filed no later than April 25, 2010. The Neighbors, however, did not file their appeal until May 3, 2010. The judge agreed with the Neighbors and overturned the zoning board's decision. In doing so, the judge found that the Neighbors appeal was timely and that the Town by -law prohibited common driveways. In finding that the Neighbors' appeal was timely, the judge found that the Neighbors had not received "adequate" notice until April 14, 2010, the date they learned of the building commissioner's decision and requested a written copy. The judge also noted that the appeal on May 3 "only constituted a modest deviation from the thirty-day requirement." DECISION: Judgment of superior court reversed. The Appeals Court of Massachusetts held that the Neighbors had failed to timely appeal. The court found that the 30 -day period for the Neighbors to appeal began to run when the building commissioner issued her decision to approve the driveway —on March 26, 2010 —and therefore the Neighbors' appeal made on May 3, 2010 was untimely. In so holding, the court first noted that the Neighbors received actual no- tice on April 14, 2010, and therefore arguably still had 11 days to appeal within the required 30 days (counting the 30 days starting from the March 26 issuance of the decision). The court continued that, even if it accepted the Neighbors' argument that 11 days of actual notice was insufficient, the Neighbors had adequate constructive notice to timely file an appeal. The court explained that "[a]dequate notice may be actual or constructive." The 8 © 2014 Thomson Reuters