Recently we had an interesting first hearing. It was interesting because last October the Massachusetts Supreme Judicial Court turned our common assumptions upside down. Before October 2011, everyone read Chapter 40A Section 7 to allow two directions to address zoning questions about a Building Permit, one challenge directly to the Board of Appeals (a process not without its costs to the one making the challenge) and challenge directed to the Building Commissioner. The appeal to the Board of Appeals needed to be filed within 30 days of the issuance of the building permit. Such a limited time frame hardly provided the one making the challenge the opportunity to fully consider the issues raised. The request for enforcement of the Zoning By-law to the Building Commissioner provided more time and allowed concerned abutters with a less costly first step.
In the case of Connors v Annino the SJC established definitively that if you learn about the issuance of a Building Permit with adequate time to challenge the Building Permit to the Board of Appeals, you do not have any rights to seek zoning enforcement by the Building Commissioner under Section 7. In this case the court established that the Building Permit is the appealable action by the Building Commissioner that takes you to the Board of Appeals. No further action by the Building Commissioner is necessary, and if you learn of the issuance of the Building Permit in the 30 days, asking the Building Commissioner to enforce the Zoning By-law is not available to you.
Several past court decisions had left the appeal process somewhat nebulous, never directly addressing the dual appeal issue. In the Connors decision, the SJC clarifies this. Basically here is what you need to know:
- If you see a project being built and have questions, do not delay, check with the Building Department as to when the Building Permit was issued. If if is less than 30 days since the Building Permit was issued, and you believe a Building Permit has been issued in error, you must file a challenge to that Building Permit within the 30 period after the Permit was issued with the Board of Appeals. While the SJC leaves a small amount of grey area in the strict interpretation of this rule, any delay will affect your rights.
- If the permit was issued over 30 days before you first learn of its issuance and question whether it was issued properly, then you need to first pursue the enforcement avenue with the Building Commissioner.
This is very new to all of us and will guide our instructions to all applicants from this point forward.