Just how strictly Massachusetts courts will apply the 30-day deadline for appealing a decision by a local building inspector’s zoning determination to the zoning board of appeals continues to evolve, balancing actual notice, constructive notice, and “a duty of inquiry,” in the Massachusetts Appeals Court’s decision in Paul Miles-Matthias v. Zoning Board of Appeals of Seekonk, No. 13-P-635 (Feb. 11, 2014).  The problem is caused by the fact that parties other than those who make the request to the building inspector are not given notice of either the request for the ruling or the building inspector’s decision, even though M.G.L. c. 40A, § 15, requires an appeal to be filed within 30 days of such a decision. 

The underlying case involves a neighborly dispute over the use of a common driveway as access for a new Approval Not Required (ANR) subdivision in the Town of Seekonk, Massachusetts.  Although three of the four lots of defendant John Dias’ subdivision had frontage, that frontage was unusable due to wetlands and he sought a ruling from Seekonk’s building commissioner (as the building inspector is known in that town) to use a common driveway instead.  The plaintiffs, owners of abutting property who have rights in the common driveway, learned of Dias’ request soon after it was made in writing to the building commissioner on February 26, 2010, and registered their opposition with the building commissioner on a “fairly regular basis.” 

The building commissioner mailed her decision approving the use of the common driveway for access on March 26, 2010, to Dias, but it was not until April 14, that the plaintiffs learned of the decision and requested a written copy, which was received on April 19.  On April 22 and 27, the plaintiffs took steps to learn how to file an appeal and gather the necessary paperwork, including a certified abutters list, ultimately filing the appeal on May 3.

Despite the fact that the 30-day period under M.G.L. c. 40A, § 15, counted from March 26 expired on April 25, the Seekonk Zoning Board of Appeals proceeded and issued a decision leaving the building commissioner’s decision intact.  The plaintiffs appealed that decision to Superior Court, where that court ruled that the appeal was timely, that the plaintiffs had standing, and that the building commissioner’s decision was substantively incorrect.  An appeal to the Massachusetts Appeals Court followed.

The Appeals Court reiterated the framework established in Connors v. Annino, 460 Mass. 790 (2011) to require investigation of (i) actual notice of the building commissioner’s decision and (ii) constructive notice that leads to a duty of inquiry regarding the permit.  In this case, the plaintiffs had actual notice of the decision on April 14, 2010, 19 days after the building commissioner’s decision, leaving 11 days for them to perfect the appeal within the statutory 30 days.  However, this is mitigated by the fact that these plaintiffs had constructive notice that the building commissioner had this matter and would be issuing a decision, leading to a duty of inquiry regarding the permit, the Court said.  In short, because the plaintiffs knew about the request to the building commissioner, they had an obligation to check in regularly about the issuance of a decision, particularly where they had decided already that they would appeal any decision that allowed for the use of the common driveway to access the subdivision.  “Therefore, the plaintiffs were on constructive notice from early 2010, when they first learned that Dias had requested a zoning determination, but about which they failed to inquire after approximately March 12^th … Under these circumstances, the plaintiffs here failed to satisfy their duty of inquiry.” 

While acknowledging the Supreme Judicial Court in Connors cautioned that there is no “bright line rule defining what constitutes ‘adequate notice,’” even the “modest deviation” that the Superior Court judge permitted in this case was impermissible under these circumstances.  Indeed, the modest nature of the additional time period beyond the allowed 30 days was irrelevant for these purposes, the Court said.

Even though the untimeliness of the decision left the Seekonk Zoning Board without jurisdiction to rule on the original appeal, ending the case at that point, in the remainder of the decision, the Court upheld the Superior Court’s determination that the plaintiffs had standing and ruling that the lower court had misinterpreted the Seekonk zoning bylaw, ruling that the common driveway was a permissible accessory use.