Opinion
No. 11–P–1532.
2012-07-24
Richard H. JANEY, Jr. v. BOARD OF APPEALS OF WAREHAM & others.
By the Court (COHEN, MILLS & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the Wareham building inspector denied the plaintiff's written request for zoning enforcement with respect to a single-family dwelling built on a locus adjacent to his property, the plaintiff appealed to the Wareham board of appeals (board). The board rejected the appeal, and the plaintiff brought this action in the Superior Court. On cross motions for summary judgment, the motion judge affirmed the board and dismissed all other claims asserted in the plaintiff's complaint.
On appeal from the ensuing judgment, the plaintiff argues only that he was entitled to relief on his claim for zoning enforcement.
More particularly, the plaintiff contends that the dwelling constructed on the locus does not meet applicable zoning standards and should be ordered demolished. After de novo review, we conclude, as did the judge below, that the plaintiff's enforcement claim is barred because he did not assert it in a timely fashion. “[A]n aggrieved person with adequate notice that issuance of a building permit will violate a zoning provision must avail [him]self of the right to file a timely appeal from the issuance of that permit, and may not lawfully substitute for that remedy a subsequent request for zoning enforcement by the zoning enforcement officer.” Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass.App.Ct. 850, 851 (2008). Adequate notice may be actual or constructive. Id. at 859. 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. Ibid.
The plaintiff has not addressed his other claims on appeal and, therefore, they are waived.
Here, the undisputed facts establish that, at a minimum, the plaintiff had constructive (if not actual) notice of the initial building permit issued on August 29, 2006. See Richardson v. Board of Appeals of Chilmark, 81 Mass.App.Ct. 912, 913 (2012). Prior to the issuance of the permit, the plaintiff attended the public auction where the locus was sold as suitable for building a single-family dwelling. After the sale, he observed surveyors on the property, who were putting down stakes, marking the property lines, and laying out the foundation. He attended two meetings of the conservation commission in connection with the new owner's plan to construct a residence on the property. At the first meeting, the commission specifically discussed the proposed construction of a single-family dwelling. When the plaintiff expressed concerns about boundary lines and electrical services, a member of the commission suggested that the plaintiff bring these concerns to the building inspector. At the second meeting, the plaintiff inquired about drainage and questioned whether the locus was a buildable lot because of its square footage. A commission member informed the plaintiff that his question with regard to square footage was a zoning issue, and not a conservation issue.
These facts compel the conclusion that the plaintiff had sufficient knowledge to give rise to a duty of inquiry as to the procurement of a building permit and to take an appeal within thirty days of its issuance. See G.L. c. 40A, §§ 8, 15. His failure to do so precluded a subsequent attack by means of an enforcement request. Gallivan v. Zoning Bd. of Appeals of Wellesley, supra at 859–860.
The plaintiff argues that after the foundation was constructed, the project was “abandoned,” and he therefore was not required to pursue his concerns until the fall of 2008, when construction recommenced after a hiatus, and a second, “renewed” permit would have expired. Even if we accept the plaintiff's premise of “abandonment,” the difficulty with his position is that his claim independently is barred by the doctrine of laches. See Richardson v. Board of Appeals of Chilmark, 81 Mass.App.Ct. at 913–914. The plaintiff knew from past events of a potential zoning issue with respect to the construction of a single-family dwelling on the locus. Nevertheless, when he became aware of resumed construction he waited to bring his enforcement action for almost six additional months, during which construction was completed by a new owner who invested significant time and resources to build the residence.
It was inequitable for the plaintiff to “sit idly by and permit expensive structures to be constructed.” Fenton v. Malfas, 286 Mass. 339, 342 (1934). See Chiuccariello v. Building Commr. of Boston, 29 Mass.App.Ct. 482, 487–489 (1990). Accordingly, as a matter of equity, the doctrine of laches independently bars his enforcement claim. See Richardson v. Board of Appeals of Chilmark, supra.
Judgment affirmed.