Appeals Court Ruling Reinforces Importance of Timely Filing of Permit Appeals

Do not take a casual approach to permit appeals – that is the lesson from the Appeals Court’s recent decision in Richardson v. Bd. of Appeals of Chilmark

 Under the Massachusetts Zoning Act, G.L. c. 40A, §§8, 15, a party with “adequate notice” of an order or decision that violates a zoning requirement must file her appeal within 30 days.  “Adequate notice” can be actual or constructive.  Constructive notice is that sufficient to place a party on a “duty of inquiry” regarding the issuance of the order or decision. 

In this instance, the Chilmark building inspector issued a building permit in September 1999 to Edwin Cohen for the demolition and replacement of his Martha’s Vineyard home.  By September 11 that year, Jacqueline Carlin, the aggrieved neighbor, had constructive notice of the permit.  She had hired an attorney to oppose Cohen’s project, and her attorney had reviewed plans of the proposed construction.  In addition, she had already filed a complaint in Superior Court challenging the septic upgrade permit issued for the project, and another in the Land Court in 2001 alleging infringement of her beach access easement.  Although Cohen’s construction began in 2001, Carlin waited until 2004 before she first requested that the building inspector revoke the building permit. 

 The Chilmark Board of Appeals, and then the Land Court, upheld the denial of Carlin’s appeal of the building permit.  The Appeals Court affirmed the Land Court’s entry of summary judgment finding that Carlin had undisputed, constructive knowledge of the building permit in September 1999.

The Appeals Court went the extra (and somewhat unusual) step of separately denying her appeal under the doctrine of laches.  Laches is an equitable principle that bars a claim by a party who waited too long to bring it. 

The complete history of Carlin’s opposition to Cohen’s project played no small role in the Court’s approach to this case.  The Court noted Carlin’s three separate lawsuits challenging the project and the “unjustified, unreasonable, and prejudicial” delay in her most recent appeal.  The lesson:  don’t sit on your rights!  If you have an appeal, it must be made promptly.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners and developers in local land use permitting matters. Dave is active in the Boroughs+ region serving as the Chair of the Southborough Economic Development Committee and as immediate Past Chair of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership, the Advisory Board of the MetroWest Economic Research Center at Framingham State University, and the Marlborough Economic Development Corporation. Dave lives in Southborough with his wife and two sons.
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