First, is the concept I raised previously, regarding the “clock” for appealing an action of the Building Commissioner. An appeal of an action by the Building Commissioner must be appealed within 30 days of the action. This has been a fairly basic standard for some time, however, there has been some disagreement as to the actual start of that clock. The Miles-Matthias case, when coupled with the 2011 case of Connors v Annino, starts to pull this into focus.
Connors had established that the 30 day clock was fairly firm, if the abutter learned of the action within a timely fashion. Connors left open the concept of “timely.” In Connors, the abutter learned of the building permits being issued with 20 days remaining before the appeal period expired. The SJC in Connors ruled that this was adequate time to file an appeal, but left open that at some point there would not be enough time. In Miles-Matthias, the abutter learned that the permits were issued with 11 days remaining to file an appeal. The court not only ruled that 11 days was adequate, and formalized a notice with only 2 days remaining, an at the margins type of notice, might be considered too short to file an appeal. The court also went on to point out that, since the abutter knew a permit was soon to be issued, illustrated by the fact the abutter had gone into the Building Commissioner’s office on several occasions to ask if a permit had been issued, illustrated that the abutter had adequate notice and did not pursue due diligence to stay informed of the processing of the permit.
Dennis has had a couple of timely filing issues. This Connors decision did not get a lot of press when it first came out, and we were faced with one where we only learned of the timing issue within the week before the hearing. As with the Seekonk issue, which started through the court system before Connors was decided, we worked off of the day the abutter actually learned of the permit being issued for the clock to start. Since that case, we have worked harder to be sure people are aware of the limits. This Miles-Matthias case takes us a step farther though, if an applicant has to file for hearings before Old King’s Highway, South Dennis Historic, the Conservation Commission or the Board of Health, and abutters are notified, it appears a higher standard will need to apply. One that will require the abutter to bird-dog the Building Department and building permit issuance, as being on the notice list for another hearing, would seem to put an abutter on notice that a building permit might be being issued in the near future.
The second issue that arises in this case is the concept of allowed accessory uses. In this case, the court is dealing with an accessory use of a common driveway serving adjacent properties to provide access. The Seekonk Zoning By-law does not define accessory use, it did once, but it was removed. Since the term is not defined, the majority of the Board of Appeals chose to substitute its own definition, the definition that Town Meeting had removed from the by-law and determined that common driveways were not allowed. The Board split 3-2 on this issue, since it did not gain the 4 votes needed to overrule the Building Commissioner, the actual decision upheld the Building Commissioner’s decision. The Superior Court chose to accept the majority position and overrule the Building Commissioner.
While this is highly unusual, the Appeal provides guidance for the Board of Appeals. In Miles-Matthias, the court spends a significant amount of time addressing whether the Zoning in Seekonk is permissive or prohibitive, in the end coming to the conclusion that it is permissive. This essentially means that, if the town does not clearly define an item and restrict it, there is a possibility that it can be allowed. A scary portion of this involves the Board of Appeals powers themselves. The Seekonk zoning adopts language relative to modifications to pre-existing non-conforming uses that comes straight out of the Zoning Act. The court uses this to determine that, if the Board of Appeals can allow modifications to non-conforming uses, the Zoning By-law must be viewed as permissive. Based upon that reasoning, the court ruled that, since Seekonk did not define accessory uses in the by-law, there was no restrictions on the nature of what might be considered to be accessory. Thereby determining that a driveway serving adjacent properties could be considered an allowed accessory use, even though it was not accessory to the burdened property.
Dennis defines accessory uses. Accessory uses are clearly defined as being “incidental to and on the same lot with the use to which it is accessory.” Clearly, a driveway serving an adjacent lot is not an accessory use that is “incidental to and on the same lot with the use to which it is accessory” and therefor is not allowed under the Dennis Zoning By-law.
While we might be protected under the issue of accessory uses, we might want to take a careful look at our zoning by-law and determine whether this Appeals Court reasoning could have other ramifications.