Controversial Truro house withstands another Appeals Court trip

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In part for the wrong reason, a Land Court judge reached the right result in dismissing an action by a group of plaintiffs seeking to compel the town of Truro to tear down a controversial house, the Appeals Court ruled May 30.

In what the court described as a long-running “saga,” a group of plaintiffs tried to challenge the fact that Truro officials had abandoned a tear-down order issued by the town building inspector, which was ultimately upheld on appeal.

Instead, town officials had agreed to mediation with the successors-in-interest of an owner who had built a new 6,800-square-foot structure on his 9.11-acre parcel overlooking Cape Cod Bay.

To accomplish this, the original owner — initially with the town’s blessing — had stretched the concept of “alteration” of a pre-existing nonconforming small cottage on the property to a degree that the Appeals Court ultimately ruled could not stand as a matter of law.

All but one of the current plaintiffs had been part of a group that appealed the issuance of the building permit to the town’s zoning board of appeals. Once that appeal was unsuccessful, the group splintered, with the current plaintiffs not among the abutters who launched the litigation that culminated with a favorable Appeals Court decision in 2011.

Those abutters then reached a settlement with the owner, who agreed to increase the buffer between his property and theirs and perhaps also pay them some cash.

The subsequent owners of the house made several additional unsuccessful forays into court before they and the town reached their settlement, which was announced and approved in late November 2016. Under the terms of the settlement, the owners agreed to pay the town a $468,000 “mitigation fee” and pledged an additional $2.532 million “charitable gift,” to be paid over 10 years.

“The [town official] defendants portray their settlement as constituting a reasonable exercise of the town’s enforcement discretion to resolve an intractable situation,” Judge James R. Milkey wrote for the panel. “The plaintiffs view it as the naked sale of enforcement forbearance for cash, ‘a case of private money being used to buy zoning nonconformity.'”

The plaintiffs decided to bring an action under G.L.c. 40A, section7, seeking to compel town officials to have the house torn down. After their efforts with the town bore no fruit, they sued in Superior Court, and the case was transferred to Land Court at the town’s request.

There, Judge Howard P. Speicher ruled that the plaintiffs had forfeited their right to seek enforcement because they had failed to appeal from the zoning board’s original decision that had affirmed the building inspector’s grant of the building permit, as the other residents had done.

In doing so, Speicher cited to the Appeals Court’s 2008 decision, Gallivan v. Zoning Bd. of Appeals of Wellesley, the reasoning of which was “adopted and amplified” by the Supreme Judicial Court in Connors v. Annino in 2011, the Appeals Court noted.

But instead of appealing the grant of a building permit, the plaintiffs were actually seeking to challenge the town’s 2016 decision declining to take enforcement action against the house, the Appeals Court explained. As a result, the Appeals Court concluded, “Under the particular circumstances of this case, we discern nothing in Connors (or Gallivan) that stands as an impediment” to that challenge.

Nonetheless, the Appeals Court agreed with Speicher that the plaintiffs’ action 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.”

The plaintiffs argued the six-year limitations period should begin to run only after the permit had been adjudicated invalid, but the Appeals Court said the statute of repose “would be eviscerated” under such an interpretation.

“We conclude that a violation is deemed to commence at least by the time that construction began, because the commencement of construction of a structure improperly authorized by a building permit placed the property owner in violation of the zoning bylaw,” Milkey wrote.

The 24-page decision is Barkan, et al. v. Zoning Board of Appeals of Truro, et al., Lawyers Weekly No. 11-064-19. The full text of the ruling can be found here.