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Application of General Laws Chapter 40A, Section 7 and the Two Limitation Periods for Zoning Enforcement to an Improperly Sited Structure.

Recently we were asked to address the situation where a landowner obtained a use special permit with a condition that the structure containing the use be built as located on a designated site plan, and that a final as-built plan be filed after completion of construction. A building permit issued for the structure, but without reference to the site plan or location of the structure. The structure was built and occupied. No final as-built plan was ever filed. More than 10 years passed. It was later determined that the structure was sited on the lot incorrectly. The landowner became concerned that the structure located on its property was not properly authorized and so was unlawful, rendering the property non-compliant with zoning.

Overview. Our analysis began with a review of the statute of limitations or so-called grandfather provisions of G. L. Chapter 40A, Section 7. Chapter 40A, Section 7 includes two statutes of limitations on enforcement of state and local zoning: (1) a six-year limitations period that applies to structures or uses undertaken in accord with the terms of a building permit (G. L. c. 40A, § 7, second par.), and (2) a 10-year statute of limitations for structures for which no building permit was sought or for the violation of the conditions of a variance or special permit (G. L. c. 40A, § 7, third par.). These provisions read, as follows:

Six-Year Limitation Period (G. L. c. 40A, § 7, second par.):

If real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action intended to compel the abandonment, limitation or modification of the use allowed by the permit or the removal, alteration or relocation of a structure erected in reliance upon the permit by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies or, in the case of registered land, the notice is filed in the registry district in which the land lies within 6 years of the commencement of the alleged violation. (Emphasis added).

Ten-Year Limitation Period (G. L. c. 40A, § 7, third par.):

No criminal or civil action intended to compel the removal, alteration, or relocation of a structure by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter or the conditions of a variance or special permit shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies or, in the case of registered land, the notice is filed in the registry district in which the land lies within 10 years of the commencement of the alleged violation. (Emphasis added).

Application of the Six-Year Limitation Period. In our case, the six-year limitation provision of Section 7 fully protects both the use and the structure. More than six years has passed since the completion of the structure and commencement of use. There is no question regarding the validity of the use of the property because the use of the structure on the property was authorized by special permit explicitly for that use. In addition, the original building permit describes the structure in relation to its proposed use. On its face then, the building permit, in addition to the special permit, authorized the applicable use when issued. Thus, no action could be maintained to compel the "abandonment, limitation or modification of the use." Bruno v. Board of Appeals, 62 Mass. App. Ct. 527, 537 (2004) (six-year statute of limitations applies if "property has been improved and used in accordance with the terms of [an] original building permit").

As to the structure, the building permit and the special permit are not identical. The special permit identifies the use of the structure and specifies its location, as a condition of the zoning relief. The building permit does not mention location; only use of the structure. Put another way, there is no location condition contained in the building permit. Thus, the location of the structure is grandfathered under the protections afforded by six-year limitation provisions of c. 40A, § 7.

Application of the Ten-Year Limitation Period. The structure as constructed, together with its dimensional inconsistencies as to site location, are also fully protected by the 10-year limitation period of Chapter 40A, Section 7, ¶3, because the construction of the structure was completed more than 10 years ago. The 10-year limitation period bars the removal, alteration, or relocation of a structure by reason of an alleged zoning violation of Chapter 40A or ordinance or by-law adopted thereunder. Moreover, to the extent that a precise location for the structure was a condition of the special permit, the violation of that condition, which occurred when the structure was first sited, is likewise protected by the 10-year limitation provisions of G. L. c. 40A, § 7. The violation of a condition of a variance or special permit is unenforceable after 10 years.

As explained in Wyman v. Zoning Board of Appeals of Grafton, 47 Mass. App. Ct. 635, 460-461 (1999), " [c]onditions of a variance or a special permit are subsumed in the provisions of c. 40A and ordinances or by-laws under which they are promulgated; they are part of the zoning law to be enforced. This is apparent from the text of G. L. c. 40A, § 7, which in the second sentence of the second paragraph, in relation to structures, speaks of actions to compel removal of violations of 'any ordinance or by-law . . . or the conditions of any variance or special permit . . . .'" (Emphasis in original.)

Therefore, just as a condition in a special permit is enforceable under § 7, so too would be the grandfather protections of § 7 as to an enforcement action against the same, if a condition were violated for a sufficient period of time. The condition, while not eliminated, is simply unenforceable. And, as noted in the recent case of Green v. Zoning Board of Appeals of Southborough, a condition is a requirement to which a permit is subject, rather than a predicate to its legal effectiveness. See Green, 96 Mass. App. Ct. 126, 130 (2019). This is all simply to say that the special permit in our matter is valid and an operable permit. Its enforceability is simply limited as to the error in location under c. 40A, § 7, third par.

Another important aspect of the application of the 10-year limitation provision flows from the 2016 amendment to Chapter 40A, Section 7. Not only are structures that fall within the 10-year statute of limitations protected from any action to compel their removal, but they are also given legal grandfather status. G.L. c. 40A, §7, third par. provides, in relevant part, "[i]f real property has been improved by the erection or alteration of one or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation . . . has been recorded in the registry of deeds . . . within a period of 10 years from the date the structures were erected, then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or by-law relating to non-conforming structures." (Emphasis added).

The benefit provided by this amendment is significant. As an illegal structure the removal of which is merely time-barred, any modification, alteration or expansion would require a variance; a difficult legal standard to meet and likely to elicit limited sympathy from a permit granting authority. The 2016 Amendment blesses the structure as a legally non-conforming structure, which status allows modification, alteration or expansion through a G. L. Chapter 40A, Section 6 process, or by special permit (depending on the local zoning bylaw provisions), rather than by variance. See Chapter 184 of the Acts of 2016. That amendment was made fully retroactive by the Legislature to all structures, whether erected prior to or after the effective date of this act. See Chapter 184 of the Acts of 2016, §2; Cox v. Davis, 25 LCR 67, 70 (Jan. 17 2017) (08 MISC 383738) (Long, J.).

In this fact pattern, both the six and 10 year limitations periods worked independently and together to provide protection to the structure, as built. In this instance, the analysis ended there. Many more complexities can arise when a landowner seeks to extend or modify a structure using the G. L. c. 40A, § 6 process; a topic for another day.

Written by Jeffrey T. Angley, Esq.

Copyright (c) 2018 - 2019 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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