Opinion
No. 12–P–1956.
2013-12-17
GUARANTEED BUILDERS, INC. v. Joseph BYLINSKI & another.
By the Court (GRAHAM, SIKORA & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant homeowner obtained a variance and a building permit, and he constructed a single-family dwelling on the locus in Douglas in 2005. Alleging that the home had not been built in accordance with the permit, the plaintiff sought enforcement of town zoning bylaws via a letter to the building commissioner in 2012. The building commissioner declined to grant any relief, so the plaintiff appealed to the zoning board of appeals of Douglas. After hearing, the board determined that the defendant homeonwer's home was built in conformance with the variance issued and that the occupancy of the house was proper.
The plaintiff then filed an appeal in the Land Court, pursuant to G.L. 40A, § 17. A judge of the Land Court dismissed the appeal on the basis that the complaint was barred by the six-year statute of limitations set forth in G.L. c. 40A, § 7.
On appeal, the plaintiff argues that the judge erred by ignoring the second part of G.L. 40A, § 7, which, it claims, “establishes that actions involving violations of any variance or special permit [may] be commenced within ten years after alleged violations.”
The plaintiff argued that the defendant homeowner failed to comply with the size and location of the building as required by the plans submitted with the variance application and as approved by the zoning board of appeals.
The resolution of this case turns on application of the proper limitations period under the second paragraph of G.L. c. 40A, § 7, as appearing in St.1989, c. 341, § 21. The pertinent portions of that paragraph provide for two separate limitations periods, of six and ten years respectively, which govern lawsuits for zoning violations. The ten year statute of limitations provides that “no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of ... the conditions of any variance or special permit, shall be maintained, unless such action, suit or proceeding is commenced ... within ten years next after the commencement of the alleged violation” (emphasis added). Here, the plaintiff contends that the ten-year limitations period applies because the defendant homeowner violated the conditions of the variance he obtained to build the house. We disagree.
The six-year statute of limitations applies to challenges to structures and uses that were built or improved in accordance with a building permit, see Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 216–218 (1982), whereas the ten-year limitations period applies to challenges made to structures not built pursuant to or in reliance on a building permit. See Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass.App.Ct. 226, 227 (1991) (the second paragraph of G.L. c. 40A, § 7, contains a ten year statute of limitations “applicable to actions complaining of structural violations for which no permit was given”.
There was no question the complaint was not filed within the six-year statute of limitations provided by § 7, thus the Land Court lacked jurisdiction to hear the appeal, and the complaint was properly dismissed.
Order of dismissal affirmed.