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Massachusetts Court Dismisses Lawsuit Seeking Tear Down of House in Violation of Zoning Bylaw

Making a significant change to residential property in Massachusetts typically requires approval from the local zoning authority.  That decision may be subject to several levels of appeals by the homeowners and other parties aggrieved by the outcome.  Proceeding with the changes, despite a pending appeal, may cause complications further down the road, as illustrated in a May 30, 2019 Massachusetts real estate case before the Court of Appeal.

In 2008, the owner sought a building permit to construct a 6,800-square-foot residence on his property overlooking Cape Cod Bay, and to convert the existing cottage into a studio.  The proposal was put forth as an alteration of the existing cottage, which was a pre-existing non-conforming structure.  The permit was approved, but a group of individuals filed multiple appeals.  Nevertheless, the owner began construction of the residence immediately, despite the Land Court’s warning that he was proceeding at his own risk.

In 2011, the Court of Appeals revoked the building permit, holding that as a matter of law, the house could not be considered an alteration of the existing cottage.  After that decision, the local building commissioner issued an order requiring that the house be torn down, which the owner appealed.  Ultimately, the owner and the town settled the matter, and the house was allowed to stand in exchange for a significant cash payment to the town and a multi-million dollar payment characterized as a charitable gift.

The plaintiffs filed the current action, seeking an order to compel the town to tear down the house.  The plaintiffs argued that the settlement was essentially the sale of a zoning non-conformity purchased with private money.  The Land Court dismissed the plaintiffs’ action on several grounds, including that the statute of repose barred the lawsuit.  The plaintiffs then appealed to the Court of Appeals.

Unlike a statute of limitations, which may provide for exceptions, a statute of repose strictly bars actions that are not commenced within a defined period after the occurrence of a key event, regardless of when the injury was discovered or when the cause of action accrued.  To enforce a zoning regulation, there are two statutes of repose that potentially apply.  The six-year period applies if the structure was erected in reliance upon a building permit.  The 10-year period applies regardless of the degree of fault of the person who created the zoning violation.  Both periods run from the start of the alleged violation.

The appeals court applied the six-year statute of repose, finding that the construction was undertaken with a building permit, albeit one that was ultimately invalid.  The court went on to conclude that the violation commenced on the date that the construction of the house began, since it placed the owner in violation of the zoning bylaw.  As a result, the court ruled that the plaintiffs’ action was barred by the statute of repose.

The Massachusetts real estate lawyers at Pulgini & Norton can provide trustworthy guidance to help you achieve your residential property goals.  We advise individuals and homeowners in a wide range of legal matters, including purchase and sale agreements, variance and building permit applications, title actions, easements, and many other real estate issues.  Schedule your appointment with a property law attorney by calling (781) 843-2200 or contacting Pulgini & Norton online.

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