Opinion
No. 15–P–895.
10-18-2016
Graham ALLISON & another v. ZONING BOARD OF APPEALS OF FALMOUTH & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Graham and Elizabeth Allison appeal from a judgment of the Land Court allowing the defendants' motion, and dismissing as untimely the Allisons' complaint seeking zoning enforcement based on allegations that their abutters' house violates the town of Falmouth's (town) height and story zoning limitations. For the reasons that follow, we affirm.
Campanella and Marino, the owner-defendants, filed a motion to dismiss supported by affidavits and other submissions, and the Allisons supported their opposition with affidavits as well. The judge converted the motion to one for summary judgment pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974).
The Allisons own unit 209 (unit) in the Cape Codder Condominium Complex, situated at the extreme northeast end of the complex. The individual defendants, Kathleen M. Campanella and Roger M. Marino (together, the owner-defendants), own the abutting property to the northeast, 32 Cape Codder Road, and have improved it with a house, situated over 100 feet to the northeast of the Allisons' unit. Both properties abut and have views of Buzzards Bay. The Allisons contend the owner-defendants' newly-constructed house partially obstructs the Allisons' view to the northeast and has resulted in a diminution in the value of their unit.
The owner-defendants purchased their property in 2012 when the house thereon was partially constructed. In 2011, a building permit had issued to raze the existing house and construct a new one. The town transferred the existing building permit to the owner-defendants on September 11, 2012, enabling them to resume some work on the structure. The owner-defendants made revisions to the existing plan and sought an amended order of conditions, giving notice to abutters, including the Allisons, of their intent “to make modifications to the house and landscape.” They also sought and received a new building permit based on their revised plans, which issued on March 12, 2013.
There is no requirement that abutters be notified of a building permit and there is no evidence that the Allisons were informed of the new building permit. See Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass.App.Ct. 850, 858 (2008).
The record reflects that work resumed on the project under the new permit no later than April 4, 2013. The Allisons aver that they had no knowledge of the building permit in the thirty days following March 12 and, as seasonal residents, were not present to observe any construction within those thirty days. While they were present in the summer of 2013, however, foundations, substantial framing, and vertical steel beams were erected. The steel beams were put in place to support the new decks on the side of the house facing the Allisons' unit.
The Allisons concede they saw steel beams sticking up from the ground in the summer of 2013. The wooden joists supporting the highest peak were in place by September 18, 2013. The Allisons, despite being aware of resumed construction, did not return to their condominium until late May of 2014, when they claim they first noted the imposing size of the house and its height.
On May 29, 2014, claiming that the house violated the town zoning code (code) in that it exceeds thirty-five feet in height and is more than two and one-half stories, the plaintiffs requested that the town building inspector enforce the code. On or about July 7, 2014, the building inspector responded and indicated that the height of the structure is 34.7 feet, that is, below the thirty-five foot limit, and that it does not consist of more than two and one-half stories as defined in the code. The Allisons appealed to the town zoning board of appeals which determined that the Allisons lacked standing to bring an appeal of the building inspector's decision. On the Allisons' appeal to the Land Court, the judge concluded that “[t]he Allisons' request for zoning enforcement-brought more than a year after the issuance of the building permit, and over eight months after the offending rooftop line was in place and visible to all—came too late to be timely, and the Allisons cannot now claim that the construction failed to comply with the zoning bylaws.”
Discussion. Our review of a summary judgment decision is de novo. Richardson v. Board of Appeals of Chilmark, 81 Mass.App.Ct. 912, 912 (2012). The plaintiffs claim to be aggrieved by the owner-defendants' construction of a house that violates the code's height and story restrictions. It is well settled that an abutter who has adequate notice of a building permit cannot sit idly by while construction that violates the zoning code occurs, only to later bring a zoning enforcement action pursuant to G.L. c. 40A, § 7. Connors v. Annino, 460 Mass. 790, 797 (2011) (“We interpret [G .L. c. 40A,] §§ 7, 8, and 15 [,] to mean that when a party with adequate notice of the issuance of a building permit claims to be aggrieved by the permit on the ground that it violates the zoning code, the party must file an administrative appeal within thirty days of the permit's issuance; a failure to do so deprives the board or other permit granting authority, and later the courts, of jurisdiction to consider the appeal”); Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass.App.Ct. 850, 857 (2008) (“[A] party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal” and “may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40, § 7 ”). This court explained in Gallivan that it would make no sense to permit “an aggrieved person, armed with knowledge of a zoning violation, to sit on her rights while the recipient of the permit incurs substantial expense by undertaking authorized construction, only to have the aggrieved person spring into action sometime in the next six years and demand enforcement of a zoning restriction.” Ibid. However, “an enforcement request may still be pursued under § 7 if the aggrieved party can establish that he or she was without adequate notice of the order or decisions being challenged.” Connors, supra.
The question, here, is whether the Allisons had “adequate knowledge” of the building permit. “Adequate knowledge” may be actual or constructive, and “[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.” Richardson, 81 Mass.App.Ct. at 913, quoting from Gallivan, supra. The Supreme Judicial Court acknowledged in Connors, supra at 798 n. 10, that “difficult questions concerning adequacy of notice may arise at the margins.”
Here, the Allisons were aware that the original house was razed and that construction of a new house had begun in the summer of 2011. They observed that construction had stopped in the summer of 2012 and the house remained partially constructed. Campanella asserts that construction resumed in September of 2012. There is no indication that the Allisons ever inquired about the original plans or any revised plans when construction began again. In October of 2012, the Allisons were notified that the new owner-defendants sought an amended order of conditions “to make modifications to the house and landscape.” The Allisons, therefore, were on notice of the owner-defendants' plans to modify the design of the house. The Allisons again made no effort to determine what modifications were planned for the house. The new building permit issued on March 12, 2013, and the record reflects that work resumed on the project no later than April 4, 2013. Despite their awareness of the original reconstruction and that an amended order of conditions was necessary due to modifications of the house and landscaping, the Allisons made no effort to view the plans or return to their unit to observe the construction.
The Allisons claim that they never received the certified letter sent by the owner-defendants to the abutters regarding the hearing before the town conservation commission; however, this assertion is immaterial, as a notice of the public hearing was posted on the town's Web site, and twice published in the local newspaper. In addition, as the judge noted, the owner-defendants' revised building plans showing all of the modifications, additions, and the top of the structure were on file with the town building department shortly after the conservation commission approved the proposed modifications.
On these facts, we conclude that the Allisons possessed evidence “sufficient to place on [them] a duty of inquiry” into the building permit's issuance at the time they received notice of the application for the amended order of conditions—which indicated a clear intent to resume construction under a modified plan. Compare Richardson, 81 Mass.App.Ct. 913 (where abutter had hired attorney to oppose construction and attorney had seen plans of proposed construction, had been “intimately involved in all the proceedings and met with members of the town,” and had vigilantly monitored plans for construction and had fought septic system approval, abutter had evidence sufficient to place on her duty of inquiry into the building permit issuance). See Miles–Mathias v. Zoning Bd. of Appeals of Seekonk, 84 Mass.App.Ct. 778, 782–783 (2014). We agree with the Land Court judge that the Allisons' seasonal occupation of their unit does not excuse them from making reasonable inquiries. They can hardly claim surprise when they returned in May of 2014 to find ongoing work had resulted in a large structure which they claim violates the code when they had ignored since 2011 the construction going on next door.
Even were we to assume, and we do not, that the Allisons received inadequate notice, their claim is barred independently by the doctrine of laches. See Richardson, 81 Mass.App.Ct. at 914. By September 18, 2013, the wooden joists supporting the highest peak of the roof were in place, putting the Allisons on actual notice as to any potential zoning violation. However, they delayed an additional eight months (until May, 2014) before bringing their enforcement action challenging the construction. This delay was unjustified, unreasonable, and certainly prejudicial to the owner-defendants. Ibid. As a matter of equity, and based on the particular facts in this case, the doctrine of laches independently would justify dismissal of the Allisons' appeal. Ibid. See Wadsworth's Case, 78 Mass.App.Ct. 101, 109 (2010).
Had the Allisons reviewed the plans associated with the new building permit, they would have discovered long before May of 2014 that the permitted structure would reach heights of sixty-nine feet overall and at least appeared to have more than the allowable two and one-half stories, depending on how “story” is defined. Review of the code would have revealed that the height and story limitations, as defined in the code, are calculated based on the “mean level of natural grade” and that the portions of the structures located below mean level of natural grade are not included in height and story measurements. Code § 240–13. It would have become clear that the “mean level of natural grade” would play a pivotal role in determining both the height and the number of stories. Their current argument, that the mean level of natural grade was calculated incorrectly, using inappropriate building lines and ignoring other appropriate building lines, could have and should have been made earlier in a challenge to the issuance of the building permit. We have rejected arguments that such an analysis “is far too vexing to ask of a lay person,” reasoning that imposing a duty to visit the building department is not “onerous,” Gallivan, 71 Mass.App.Ct. at 859, and any necessary assistance might well have been available from the building department staff.
The height limitation in the code is “2 1/2 stories, not to exceed 35 feet.” Code § 240–70. Building height is measured by “the vertical distance from the mean level of natural grade across the actual building line across all street sides of the proposed building ... based on the elevation of the lot in its natural state prior to construction, grading or filling.” Code § 240–13. A “story” is “[a] partially or wholly enclosed floor of a building. A story, the ceiling of which is four feet or more above the average natural grade level across the building wall fronting all streets, shall be considered a ‘story.’ “ Ibid.
We conclude the Allisons had constructive notice of the new building permit in time to inquire into the plans of the defendant-owners and uncover potential zoning violations. Their failure to do so precludes a subsequent attack on the permit by means of an enforcement request.