Zoning – Revocation of building permit

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Where the plaintiff’s building permit was constructively revoked after the defendant, an abutting landowner, appealed to the zoning board of appeals for revocation of the permit, judgment for the defendant is proper because he filed a timely appeal, the zoning board did not exceed its authority and the property was not eligible for grandfathering under G.L.c. 40A, section6.

“The question here is whether [defendant Joseph] Bylinski had adequate notice of the building permit issued to [plaintiff] GBI, as that will determine which avenue of appeal he could pursue. The court concludes that he did not have adequate notice. There is no evidence that Bylinski actually learned of GBI’s building permit within 30 days of its issuance. … Nor is there evidence that he received notice of GBI’s application for a building permit. …

“Without adequate notice of the building permit within the 30-day appeal period, it was permissible for Bylinski to pursue a challenge to the permit via an enforcement action under section7, which he did by letter dated February 9, 2009, immediately after major construction on 103 Shore Road began on February 7, 2009. The Building Commissioner refused Bylinski’s enforcement request by letter dated February 19, 2009, and Bylinski’s February 25, 2009 appeal of that refusal to the ZBA was well within the 30-day appeal period of section8. … As such, his appeal was timely and the ZBA had jurisdiction to hear it. The defendants are therefore entitled to judgment on Count I of GBI’s complaint.

“The defendants are also entitled to judgment on Count II of GBI’s complaint, which claims that the ZBA exceeded its authority by constructively approving Bylinski’s appeal of the Building Commissioner’s refusal to revoke GBI’s building permit after it continued its hearings on Bylinski’s appeal several times. GBI has not cited any caselaw, however, indicating that the ‘explicit’ constructive approval provisions of section15 … somehow do not apply because a board continues its hearings. Section 15 is specifically intended to apply to the exact situation that occurred here — a board failing to act within the statutorily-prescribed period.”

Guaranteed Builders & Developers, Inc. v. Bylinski, et al. (Lawyers Weekly No. 12-029-12) (10 pages) (Tucker, J.) (Worcester Superior Court) (Civil Action No. 09-2052B) (Jan. 27, 2012).