Just about a year ago, in Connors v. Annino, 460 Mass. 790 (2011), the Supreme Judicial Court left no doubt that an abutter receiving "adequate notice" of issuance of a building permit must act fast (within thirty days of the issue date) to appeal the permit as violative of the local zoning code - and a zoning enforcement action brought pursuant to G.L. c. 40A, Sec. 7 will not be available to revive such a claim during the far longer six-year "repose" period set forth in that statute.
In adopting the Appeals Court's earlier decision in Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), the Connors decision requires a harsh result in cases where abutters fail to "lawyer up" quickly after a building permit issues, or try to work informally with town officials rather than formally perfecting an appeal. Connors, however, highlights four circumstances where a Section 7 action remains viable and appropriate.
First, there is no doubt that seeking zoning enforcement pursuant Section 7 of G.L. c. 40A (and appealing from any failure or refusal of the zoning enforcement officer to act) is appropriate where a neighbor commences construction without a building permit, or, second, where a neighbor exceeds the scope of a validly granted permit. See Connors, 460 Mass. at 797-98 and n.9. Third, it seems clear that a Section 7 action is available where the aggrieved party has no notice of any sort of a building permit's existence within thirty days of its issuance.
Fourth, the SJC expressly acknowledged that a Section 7 action is appropriate where "the aggrieved party can establish that he or she was without adequate notice of the order or decision being challenged." Id. at 797 (emphasis supplied). And there's the rub. The SJC acknowledged in footnote 10 of Connors "that difficult questions concerning adequacy of notice may arise at the margins - if, for example, an aggrieved party were to receive notice twenty-eight days after a permit's issuance." Id. at n.10. Moreover, "[w]hether notice is adequate is a question of fact that depends on the particular circumstances . . . it is not appropriate to create a bright line rule defining what constitutes 'adequate notice.'" Id.
We, at Fitch Law Partners LLP, fully expect a body of law to develop at the Superior and Appeals Court levels regarding the meaning of "adequate notice" - with fact-specific cases reaching opposite results. A pair of cases decided in 2012 illustrates the point. In a case called Guaranteed Builders & Developer, Inc. v. Bylinski, a judge sitting in the Worcester Superior Court held that various activities occurring at or regarding the subject property, such as approvals granted by non-zoning boards as well as drilling and clearing of land, did not confer "adequate notice" that a building permit had issued. In contrast, in Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912 (2012), a rescript opinion of the Appeals Court handed down in June 2012, the allegedly aggrieved party had adequate notice of a building permit where she had hired a lawyer prior to issuance of the permit who was "intimately involved" with all local proceedings concerning the project, and she had "vigilantly monitored" her neighbor's plans for construction and "fought his efforts at multiple steps." Richardson, 81 Mass. App. Ct. at 913. Notably, however, in Richardson, the allegedly aggrieved party waited five years after the permit issued and several years after construction began to bring the Section 7 enforcement action - this level of delay prompted the Court to find that the builder was entitled to summary judgment not only on jurisdictional grounds pursuant to Connors, but also on a laches theory.
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