Zoning – Statute of repose

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Where plaintiffs requested an order to have a house torn down after the Truro zoning board issued a building permit, a judgment dismissing the complaint should be affirmed based on the six-year statute of repose.

“Before us now is yet another chapter in the saga of a residence in Truro (town) known as the ‘Kline house’ (house). In 2011, we held that the building permit pursuant to which the house was built was invalid, and we remanded the case for further proceedings. Schiffenhaus v. Kline, 79 Mass. App. Ct. 600, 604-606 (2011). Town officials subsequently ordered that the house be removed. Meanwhile, the private parties who had brought the action challenging the building permit dropped their opposition to the house after they reached a settlement agreement with the house’s current owners. Eventually, town officials also settled with the current owners, and an agreement for judgment approved by a Land Court judge allowed the house to remain. This spurred various individuals who were not parties to the earlier rounds of litigation (or the settlements that flowed from them) to bring the current action seeking to have the house torn down. The question we face is whether it is too late for these plaintiffs to pursue such relief, as the Land Court judge concluded. For the reasons that follow, we affirm the judgment dismissing the case, albeit on a different ground from the one on which the judge principally relied. …

“… With the plaintiffs having commenced their action more than six years after the issuance of the building permit, the judge ruled that the action was barred by the six-year statute of repose in G.L.c. 40A, section7. However, the judge principally relied on a different ground. Specifically, citing to Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), the judge ruled that regardless of whether the statute of repose had run, the plaintiffs forfeited their right to seek enforcement regarding the 2008 zoning violation when — unlike the Schiffenhaus parties — they failed to appeal from the board’s original decision that had affirmed the building inspector’s initial grant of the building permit. …

“What the plaintiffs are seeking to challenge is the town’s 2016 decision declining to take enforcement action against the house, in deference to the settlement agreement that town officials privately negotiated with the current owners. Under the particular circumstances of this case, we discern nothing in Connors [v. Annino, 460 Mass. 790 (2011)] (or Gallivan) that stands as an impediment to their doing so. …

“As noted, although the judge ruled that the plaintiffs’ action was untimely principally because they failed to bring a judicial challenge to the 2008 issuance of the building permit, he expressly ruled that the action also was untimely because the plaintiffs did not commence it within the six-year limitations period that began to run on the ‘commencement of the alleged violation’ (which — according to the judge — was the date that the invalid permit issued). G.L.c. 40A, section7. …

“In the action before us, the plaintiffs seek the removal of an illegal structure (as opposed to the termination of an illegal use). As we have recognized, G.L.c. 40A, section7, includes two separate limitations provisions that potentially apply to such an enforcement action. … The shorter, six-year limitations period applies where the structure in question was ‘erected in reliance upon [a building] permit.’ G.L.c. 40A, section7, second par. The longer, ten-year limitations period applies in any event, that is, regardless of the degree of culpability of the person who created the zoning violation in the first place. … Both limitations periods run from ‘the commencement of the alleged violation.’ …

“… Assuming the six-year statute of repose applies, we agree with the judge that — at least where a plaintiff is seeking removal of an improperly permitted structure — the statute bars an action regardless of whether the property owner has used the structure for a full six years. …

“With regard to the plaintiffs’ argument that the six-year limitations period did not commence until the building permit was adjudicated to be invalid, the plaintiffs failed to raise that argument until their reply brief, and they therefore waived it. …

“For the reasons set forth above, we disagree with the judge’s principal conclusion that under the particular circumstances presented, the plaintiffs waived their right to bring an enforcement action by failing to pursue a judicial challenge to the 2008 building permit. Nevertheless, we affirm the judgment based on the statute of repose, the alternative ground on which the judge relied. The limited arguments that the plaintiffs timely raised with respect to that alternative ground are unpersuasive, and other arguments that the plaintiffs might have raised have been waived.”

Barkan, et al. v. Zoning Board of Appeals of Truro, et al. (Lawyers Weekly No. 11-064-19) (24 pages) (Milkey, J.) Motion to dismiss heard by Speicher, J., in Land Court. Robert J. Shapiro for the plaintiffs; Jonathan M. Silverstein for the zoning board of appeals of Truro; Jonathan W. Fitch (Lester J. Murphy Jr. also present) for Benjamin E. Zehnder (Docket No. 18-P-365) (May 30, 2019).

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