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Massachusetts Court Allows Residents to Proceed with Zoning Appeal of Building Permit

In a recent zoning appeal, the Massachusetts Court of Appeals decided the question of whether neighboring residents could continue their attempt to block a permit allowing the construction of a building on an empty lot after missing a filing deadline. In McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119 (2016), the plaintiffs contended that the property, which was located in the town’s residential district, was not a buildable lot under the town’s zoning by-laws, and they sought to appeal a building permit issued to the landowners.building permit

In 1986, the previous owners of the property obtained a variance to divide it into two lots, one of which is the lot at issue. The previous owners recorded a plan endorsed pursuant to M.G.L.A. 41 § 81P in 1987, but the property was not transferred, and no building permit was applied for or granted. In 2013, the plaintiffs learned that the property was listed for sale, and they met with various town officials regarding their position that the property was not a buildable lot under appropriate zoning by-laws. Nevertheless, without any notice to the plaintiffs, a zoning permit was issued to the landowners, and construction commenced the next day.

The plaintiffs then asked the town solicitor whether the town was going to take any action in regard to the building permit, since the deadline to appeal was September 12. The town solicitor informed the plaintiffs in writing that the deadline was not until September 27, which was confirmed by the mayor. Based on these representations, the plaintiffs delayed in filing their appeal. On September 27, 2013, the plaintiffs filed a complaint with the zoning board of appeals, appealing the building inspector’s decision to issue the building permit. The board denied the plaintiffs’ relief for failing to timely file the appeal. The plaintiffs subsequently appealed that decision, arguing that the board should be estopped from asserting that the appeal was not timely, since they relied on the town solicitor’s statement about the filing deadline.

On appeal, the court explained the circumstances that may give rise to estoppel:  (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission. The court went on to state that although courts are reluctant to apply estoppel to public entities, the alleged statements by the town solicitor and the mayor in this case were not of the sort that should preclude the plaintiffs from asserting a claim of estoppel. As a result, the court concluded that the plaintiffs should have been allowed to further pursue their claim, and it vacated the dismissal.

If you are seeking legal guidance concerning a property dispute or real estate matter in Massachusetts, the experienced attorneys at Pulgini & Norton can assist you. Our dedicated real estate lawyers represent individuals in cases involving land use and zoning, closings and mortgages, easements, and many other areas of residential property law. To schedule a consultation with one of our skilled attorneys, contact Pulgini & Norton by phone at (781) 843-2200 or online through our contact page.

More Blog Posts:

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015

Massachusetts Appeals Court Allows Plaintiff to Use Property as Noncommercial Landing Area, Massachusetts Real Estate Lawyer Blog, published May 16, 2016

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