Opinion
16-P-1183
06-02-2017
Mary PALERMO v. TOWN OF MANCHESTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mary Palermo, appeals from a Superior Court judgment that dismissed her complaint based on the Massachusetts Tort Claims Act, G. L. c. 258 (MTCA). We affirm.
We take the allegations of the plaintiff's complaint to be true. In April, 2012, the plaintiff contacted the town's building inspector, alleging that the development of an abutting property in the town, for which a special permit had been issued, violated the town's zoning by-law due to inadequate access for vehicular traffic and topographical changes that had raised the grade. The building inspector responded in writing on May 3, 2012, stating that the land in question was in compliance with the zoning by-law, and rejected the plaintiff's request that enforcement action be taken against the owner of the land. The plaintiff took no further action until March 10, 2015, when she filed a single-count complaint against the town in Superior Court, alleging negligence by the building inspector for failing to enforce the zoning by-law.
Previously, the plaintiff had unsuccessfully challenged the issuance of the special permit in Superior Court and in this court. See Palermo v. Zoning Bd. of Appeals of Manchester-By-The-Sea, 84 Mass. App. Ct. 1112 (2013).
The plaintiff's husband had first contacted the building inspector regarding these issues in March, 2012.
The plaintiff's complaint was correctly dismissed because her appeal from the building inspector's decision is untimely. One who applied unsuccessfully to a building inspector for enforcement of a zoning by-law has a right of appeal to the town's zoning board of appeals. G. L. c. 40A, § 8. Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469, 478 (1988), S.C., 404 Mass 571 (1989). Such an appeal must be brought within thirty days of the date of the order or decision being appealed. G. L. c. 40A, § 15. Here, the date on which the building inspector responded in writing to the plaintiff's request for enforcement created an appealable decision and became the date for measuring the thirty-day appeal period. See Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 477 (1984). Failure to first appeal to the local authority is a jurisdictional defect that precludes judicial review under G. L. c. 40A, § 8. See Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1995) (The requirement of first submitting zoning disputes to local authority is "so central to the architecture of G. L. c. 40A that we have required the exhaustion of administrative remedies as a prerequisite to judicial review"). See also Neuhaus v. Building Inspector ofMarlborough, 11 Mass. App. Ct. 230, 231 (1981).
Alternatively, even if the plaintiff had exhausted her administrative remedies, we agree with the town that her complaint was properly dismissed because the relief she requests is barred under the MTCA. Specifically, G. L. c. 258, § 10(f ), inserted by St. 1993, c. 485, § 57, exempts "any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code." Here, the essence of the plaintiff's complaint is that the building inspector negligently failed to inspect the subject property, and as a result negligently failed to enforce the town's zoning by-law. Section 10(f ) applies explicitly where the harm alleged was caused by the negligent inspection or failure to inspect the subject property. The plaintiff's restyling of her claim as negligently failing to conduct an "investigat[ion]" as opposed to an "inspection" does not take her claim out of the scope of § 10. As a result, her complaint was properly dismissed, as her factual allegations do not "plausibly suggest an entitlement to relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
"Th[e] language [of § 10(f ) ] applies to situations where the [public employee] inspects the property of third parties, as in the case of an inspection for code compliance." Twomey v. Commonwealth, 444 Mass. 58, 63-64 (2005).
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Judgment affirmed.