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Constructive Notice Of Building Permit Triggers 30-Day Appeal Period

By Richard Gallogly on February 21, 2014
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Last week the Appeals Court decided Miles-Matthias v. Zoning Board of Appeals of Seekonk (pdf), the latest opinion to address the 30-day window under M.G.L. c. 40A, § 15 for appealing the issuance of a building permit.

In Miles-Matthias, the plaintiffs were aware that the defendants planned to build three single-family homes that would share a common driveway.  The plaintiffs objected, on zoning grounds, to the common driveway, and voiced their concerns to the local building commissioner.  On these facts, the Appeals Court found that the plaintiffs had constructive notice that a building permit might be issued.  This constructive notice, in turn, triggered a duty of inquiry requiring the plaintiffs to monitor activity at the building commissioner’s office.  Had the plaintiffs done so, they would have learned that the building permit in fact issued on March 26, 2010, meaning the deadline for their appeal to the zoning board of appeals was April 25, 2010.  By the time the plaintiffs received a copy of the permit by mail on April 19, 2010, they had only six days left to file their appeal.  They appealed on May 3, 2010 – less than 30 days after receiving a copy of the permit but more than 30 days after it was issued.  Though the Superior Court ruled in the plaintiffs’ favor – finding that the appeal period didn’t begin to run until they received actual notice of the permit – the Appeals Court reversed based on the date they received constructive notice.

The clear lesson here is:  anyone who becomes aware that a neighboring landowner has applied for a building permit that may affect them, or who has any other reason to believe that such a permit might issue, should inquire of their local building department early and often, to avoid losing their right of appeal under M.G.L. c. 40A, § 15.

Photo of Richard Gallogly Richard Gallogly

Rich Gallogly’s practice focuses on zoning and real estate development, from site acquisition to permitting, financing and development on behalf of clients throughout Massachusetts. For over 28 years, he has advised clients on all aspects of land use law, including zoning, subdivision, wetlands…

Rich Gallogly’s practice focuses on zoning and real estate development, from site acquisition to permitting, financing and development on behalf of clients throughout Massachusetts. For over 28 years, he has advised clients on all aspects of land use law, including zoning, subdivision, wetlands, historic preservation and environmental impact review and regulatory compliance.

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  • Posted in:
    Real Estate & Construction
  • Blog:
    Massachusetts Land Use Monitor
  • Organization:
    Rackemann, Sawyer & Brewster
  • Article: View Original Source

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