Docstoc

2011 Waltham Supreme Judicial Court Real Estate Legal Battle -- City Defendant Brief for Overland Old Lot Case

Document Sample
2011 Waltham Supreme Judicial Court Real Estate Legal Battle -- City Defendant Brief for Overland Old Lot Case Powered By Docstoc
					                  COMMONWEALTH OF MASSACHUSETTS
                      SUPREME JWDCIAL COURT


                             NO. SJC-10813



 F M C I S W . CONNORS, ROBERT E. CONNORS, JR. as TRUSTEES OF
BOY HILL REALTY TRUST, AND FRANCIS W. CONNORS as Trustee of
                8 5 - 8 7 OVERLAND ROAD REALTY TRUST,

                      Plaintiffs-Appellants

                                  V

  ANTHONY ANNINO, 111, as Trustee Of 8 9 - 9 1 OVERLAND ROAD,
      REALTY, and BARBARA FANDO, BRUCE MORRIS, MARK A .
HICKERNELL, E D W A R D T. MCCARTBY, J R . , AND GLENNA GELINEAU as
  they are members of the W a l t h a m Zoning Board o f Appeals,
                        and n o t individually,

                      Defendants-Appellees.



                ON APPEAL FROM A JUDGMENT OF THE
                           LAND COURT
                 NO. 09 MISC 3 9 4 0 4 9 (LONG, J.)


            B R I E F , ADDENDUM, AND SUPPLEMENTAL APPENDIX
         FOR THE C I T Y OF WALTHAM ZONING BOARD OF APPEALS
                       DEFENDANT      -   APPELLEE



                                             MICHELLE LEARNED
                                             Assistant: City Solicitor
                                             For The City of Waltham
                                             SSO# 634955
                                             119 School Street
                                             W a l t h a r n , MA 02451
                                             mlearned@city.waltham.ma.us
                                             (781) 3 1 4 - 3 3 3 7

DATED:    January I , 2011
                      TABLE OF CONTENTS

TAELE OF AUTHORITIES     .............................     iii

ISSUES PRESENTED   .....................................         1
                        ...............................
STATEMENT OF THE C A S E .                                       1
STATEMENT OF FACTS ...................................           2
ARGUMENT .............................................           9

I. THE ZBA    (AND THERFORETHE LAND COURT) WAS WITHOUT
   JURISDICTION TO REVIEW THE ADMINISTRATIVE APPEAL
   BELOW BECAUSE THE APPELLANTS DID NOT APPEAL FROM THE
   BUILDING INSPECTOR’S ISSUANCE OF THE BUILDING PERMIT
   UNTIL AFTER THE THIRTY-DAY APPEAL PERIOD OF G.L. c .
   40A, § 8 HAD EXPIRED, DESPITE HAVING ADEQUATE NOTICE
   (TWENTY DAYS) OF THE ISSUANCE O F SAID BUILDING
   PERMIT ....................................... 3-30

   A. The plain language   o f the Zoning Act does not
      allow aggrieved abutters with notice of the
      issuance of a building permit to freely choose
      between filing a direct appeal under c. 40A, § 8
      or filing a request for enforcement with the
      building inspector under c. 40A, § 7 because such
      a reading of Chapter 40A would render the 30-day
      deadline for direct appeals valueless... . . . 12-19
   B. Mandamus case law prior to the enactment of the
      Zoning Act and principles of exhaustion further
      support reading c. 40A, § § I , 8, and 15 so that
      the zoning enforcement procedure of c. 4024, 5 I
      is only available in circumstances where the
      aggrieved party has n o t had notice of the
      issuance of the building permit w i t h i n the
      thirty-day appeal period.     .................
                                                 19-23

   C. Appellants cannot avoid dismissal by asserting
      that the Gallivan decision improperly introduced
      a notice requirement into the text of the Zoning
      A c t when the Gallivan Court’s interpretation of
      G.L. c. 40A, 55 7, 8, and 15 i s compelled by it.3
      plain language............................. 23-27

   D. Applying the sound holding of G a l l i v a n v. Zoning
      B o a r d of Appeals of Wellesley, 7 1 Mass. App. Ct.

                                i
     850     (2008) and its p r o g e n y to the c a s e at b a r .
     the        Land     Court          lacked     jurisdiction
     ...........................................           27-30

CONCLUSION ........................................            31

ADDENDUM:      REPRODUCTION OF RELEVANT PARTS OF STATUES
AND RULES,    REGULATIONS: ........................ 32-44

SUPPLEMENTAL APPENDIX ..............................           45




                                 ii
                      TABLE OF AUTHORITIES

CASES

81 Spooner Road, LLC v . Z o n i n g Board of Appeals of
    Brookline, 7 8 Mass. App. Ct. 233 (2QIO)       11, 20     ....
Atlanticare Med. Cts. v. Commissioner of t h e Div. of
     Med. Assistance, 439 Mass. 1, 6 (2003)         13        .........
Balcam v . Town of Hingham, 4 1 Mass. App. Ct. 260, 263
     (1996)     .........................................
                                                     22

Bankers Life & Cas. Co. v. Commissioner of Ins., 427
     Mass. 136, 140 (1998)         ..........................
                                                  15

Bjorklund     v. Z o n i n g Bd.   of Appeals       of Norwell,          450
        Mass. 357 (2008)    ....................         ..4, 5 , 6 , 29

Bonfatti v. Zoning Bd. of Appeals o f Holliston, 48
     Mass. App. Ct. 4 6 , 5 0 (1999) ...................21

Brady v. Board of Appeals of Westport, 348 Mass. 5 1 5
     (1965)     .....................................
                                              20, 21

Bransford v. Zoning Bd. of Appeals of E d g a r t o m , 444
     Mass. 8 5 2 (2005)     ......................
                                           4, 5 , 6 , 29

Bsonstein     v . Prudential       Ins.    Co.   of A m . ,    390   Mass.
        701, 708   .......................................                26

Callahan v. First Congregational Church of Haverhill,
     441 Mass. 699, 709-710 (2004) . . . . . . . . . . . . . . . . . . 11

Charles C. v . Commonwealth, 415 Mass. 58 (1993)                  .....15
Clark     & C l a r k Hotel Corp., v . B u i l d i n g Inspector of
        Falmouth, 20 Mass. App. Ct. 206, 212-213 (1985) 22

Commissioner of Correction v . S u p e r i o r C o u r t Dep't of
     the XriaL Court: f o r the County of Worcester, 446
     Mass. 123, 126       .................................    26

Commonwealth v. A .       GXaZiano, Inc., 3 5 Mass. App.                 Ct.
     6 9 , 70 (1993)     ..................................               22




                                     iii



                                                                     .
Commanwealth v . Woods H o l e , Martha '3 Vineyard &
     Nantucket S.S. Authy., 3 5 2 Mass. 617, 618 (1967)
      ............................................... 15
Commonwealth v . Zone Book, Xnc., 372 Masa. 366, 369
       (1977)   .........................................                     14

Cumberland Farms, Inc. v. Zoning Board of Appeals of
    Walpole, 61 Masg. App. Ct. 124, 129 (2004)    22                    .....
C u r t i s v. Herb Chambers 1-25, Inc., 75 Mass. App. Ct.
         662, 666 (2009)      ................................
                                                        11

Dowlinq v. Registrar of Motor Vehicles, 425 Mass. 523
       (1997)   .........................................                     15

Elio v. Zoning B d . o f A p p e a l s of Barnstable, 5 5 Mass.
     App. Ct. 424 ( 2 0 0 2 )       ............................
                                                             24

Frank's Towing, Inc. v. Zoning Board of Appeal# of
     Lowell, 76 Mass. App. Ct. 1132 (2010) (1:28
     Decision) ...................................... 12

Gallivan v. Zoning Board of Appeals of Wellesley, 71
     Mass. App. Ct. 850 ( 2 0 0 8 ) , fur. app. rev. den.
      452 Mass. 1104 (2008) . . . . . . . . . . . . . . . . . . . . . . .   assim

General Elec. Co. v. Department of Envtl. Protection,
     429 Mass. 798, 803            ............................
                                                  2 6

Guzman v. Commonwealth, 458 Mass. 354, 361 (2010) 14,15
Hanlon v. Rollins, 286 Mass. 444, 447 (1934)                        ........ 14
R i l e s v. Episcopal Diocese of Massachusetts, 4 2 7 Mass.
         505, 5 1 6 n.13 (2002)       ...........................
                                                          11

Hipson v. Auburn Board of Appeals,                      75 Mass. App.         Ct.
      1111 (2009) (1:28 Decision)                ....................          12
Hoffman v. Howmedica, I n c . , 373 M a w . 32, 3 7 (1977) .I4
Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636
       (2008)   .........................................                      11

Joosfyn v. Chang, 445 Mass. 344, 3 5 0 (2005) . . 1 9 , 24, 25
Law v. G r i f f i t h , 457 Mass. 349, 353 (2010) . . . . . . . . . .14
Lowery v . Klemm, 446 Mass. 572, 576-577 (2006)                                    . . . . . . 14
Madden      v . Secretary             of     the      Commonwealth,             337      Mass.
       7 5 8 , 761 (1958)          ...............................                         2 0

Massachusetts Insurers Insolvency Fund v . Smith, 458
     Mass. 5 6 1 (2010)              ..............................
                                                  ,13

Neuhaus    v. Bldg. I n s p e c t o r of Maulborough, 11 Mass.
       App. Ct. 230, 231 (1981) .......................     22

Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456
     Mass. 463, 468 (2010)                     ..........................
                                                  15

North     Chelmsford Water D i s t r i c t v. Department of
        Public Works of Chelmsford, 75 Mass. App. Ct. 113
        (2009) (1:28 Decision) .....................  12, 29

Quincy v. Planning Bd. of Tewksbury, 3 9 Mass. App. Ct.
     17, 20 (1995) .................................. 22

Saab v . Building Xnspector of Lowell, 1 Mass. App. Ct.
     e7 (1973) .................................. 20, 21

S i m v. Zoning Board of A p p e a l s o f Burlington, 7 6 Mass.
       App. Ct. 1137 (2010) (1:28 Decision)                   12          ...........
Sullivan v . Brookline, 435 Mass. 353, 360                                (2001) . . . . 14

Vokes v. Avery W .   Lovell, Inc., 18 Mass. App. Ct. 471,
        review denied, 393 Mass. I103 (1984) ........... 17

Wheatley v. Massachusetts Insurers Insolvency Fund,
    456 Mass. 594, 601 (2010) ...................... 15

CONSTITUTIONAL PROVISIONS

Art. 30 of Massachusetts Declaration o f Rights . . . 23-25
Mass. Const. P a r t 11, c. 1, § 1                       .....................                25

STATUTES

G.L. c.40A, 5 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .assim
                                                                                 .p

G.L.    c.40A, S 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   assim

G.L. c.40A, 9 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . assim
                                                                              ..p
                        ISSUES PRESENTED
I.   Whether the Land Court properly ruled that Appel-
lants'    administrative      appeal    was    jurisdictionally
barred because Appellants had failed to appeal the
building permit within thirty days of its issuance de-
spite having notice that building permit had issued.

                   STATEMENT OF THE CASE

     This case is before this Court on the appeal of
Appellants Robert E. Connors, Jr. and Frances W. Con-
nors, as trustees of Boy H i l l Realty Trust and Francis
W. Connors, as trustee of 85-87 Overland Road Realty
Trust    (hereinafter "Appellants") from a Land               Court
Judgment entered on July 15, 2010             --    stemming from
Court's motion to dismiss/summary judgment decision                --
for Anthony Annino, 111, Trustee o f               89-91 Overland

Road Realty Trust (hereinafter "Annino") and the City
of Waltham Zoning Board of Appeals (hereinafter "ZBA")
(collectively, "Appellees") dismissing the complaint,
and all claims therein, in their entirety, with preju-
                     I
dice. ( A . 187-200).
     On February 24, 2 0 0 9 ,       the Appellants brought a
G.L. c . 40A,   S 17   action a g a i n s t Annino and the   ZBA   in
Land Court: ( A . 196).
     On April 9, 2009, Annino filed a motion to dis-
misa/motion for summary judgment (ZBA adopted all ar-


     'References in this brief will be cited as fol-
lows: to the Record appendix as (A. page).

                                 1
guments made by Annino and Land Court expressly pre-
served ZBA's appellate r i g h t s on the record) (A. 124,
199)
       After oral argument held on May 2 8 , 2009 (A. 122-
186), the Land Court       (Judge Long) granted Defendants'
Motion t o Dismiss by Memorandum and Order dated July
15, 2010 and Judgment issued on July 15, 2010 dismiss-
ing the complaint in its entirety for lack of juris-
diction   (A.   187-1951, which the Appellants timely ap-

pealed (A. 200).

                      STATW~ENTOF F A C T S ~
 I.     The s u b j e c t lot qualifies for tbe "small lot"
        exception of S 4 . 2 1 8 1 o f the City's Zoning O s d i -
        naace BO Building Znspector i s s u e d the requested
        building permi ts  .
       The Appellants own the property at 8 5              and 95
Overland Road.        The parcel between the Appellants'
lots is 89-91 Overland Road ("the subject lot"), which
is owned by Appellee Annino ( A 189).
       The subject l o t i s in a Residence B district,
which penits two-family homea.
       The C i t y of Waltharn Zoning Ordinance contains an
express exemption from current land area requirements
and permits reduced f r o n t ,       side and rear yards, and
reduced frontage for certain qualifying grand-fathered


         * The facts are taken f r o m the factual findings
m a d e by the Land Court (J. Long) in its Memorandum and
O r d e r on Defendants' Motion to Dismiss (A. 187-194).


                                  2
lots under 5 4.218 and 5 3.711 of the Zoning Ordinance
o f the City   of Waltham.   The Building Inspector deter-
mined that the subject lot qualified for the protec-
tions afforded to 'small lots" by 5 4.2181 and 5 3.711
of the City's Zoning Ordinance (A. 191).3
     In September of    2007,       Annino met with the Appel-
lants at Robert Connors' law office to discuss                  Ar-

nino's plan to raze the existing two-family house (a
nonconforming structure) on the subject lot in order
to build a new, somewhat larger two-family house on
his grandfathered lot pursuant to the express exemp-
tion for small lots in 5 3.711            and    §
                                                 .   4.218   of the
City's Zoning Ordinance ( A .         189).     At that meeting,
the Appellants protested believing that the proposed
expansion violated local zoning and they believed, at
a minimum, that the expansion would require ZBA review
and approval (A. 189)   .
     On April 23, 2008, Annino sent certified l e t t e r s

to the Appellants, notifying each abutting landowner
that the existing structure on Annino's property would
be razed and excavation would follow ( A . 189-190).
     On April 29, 2008, Attorney Robert Connors tele-
phoned the Building Department and relayed to Zoning


     '     In 2007, the City Law Department advised the
Building Inspector that, in accordance with 5 4.2181,
m i n o ' s lot was not subject to lot area requirements
and because the lot was recorded prior to 1942 it was
eligible for reduced side and rear yard requirements.

                                3
Enforcement Officer Patrick Powell (hereinafter “Pow-
ell’’) his position that t h e proposed expansion vio-
lates l o c a l zoning law, arguing that Annino could not
build unless he complies with Bransford v . Zoning Bd.
of Appeals    of E d g a r t o m ,    444    Mass.   852    (2005) and

Bjorklund    v. Zoning Bd.           of   Appeals    of Norwell, 450
Mass. 357 (ZOOS) (A. 190).
      On May 2, 2008, Attorney Robert Connocs met with
the   Building     Inspector         Ralph     Gaudet      (hereinafter
“Building Inspector”) and Powell, once again making
the B r a n s f o r d and Bjorklund         arguments, giving     them
copies of those cases         (A.    190).     The Building Inepec-
tor responded that he would consult with the City’s
Law Department4 but that permits akin to that requested
by Annino [where proposed new structure conforms to
current; “small lot” zoning provisions ( 5 4.218 and 5
3.711)   and eliminates need to rely upon S 3.7225 or
G.L. c. 4 0 A , 5 61 had been allowed in Waltham f o r over
s i x t y years (A. 190).5

     4 O n May 6, 2008, the Building Inspector sent the
City Solicitor a letter advising him o f Appellants‘
argument and the Building Inspector‘s determination
that the ‘small lot” provision exemption nonetheless
applied to &mino‘$ lot (structure thereon did not de-
stroy lot‘s small lot status - no requirement that lot
be vacant land in city zoning ordinances), asking the
City Solicitor to contact h i m if he disagreed with his
conclusion (A. 190).
     5Bjorklund v. Zoning Bd. of Appeals of Norwell,
450 Mase. 357, 362 (2008) p o i n t s out t h a t a different
conclusion may be compelled by the Local zoning bylaw
or ordinance: ** [tl he plaintiffs did not argue below,

                                      4
      On July     28,       2008,    Annino applied for building
permits for the subject property and included a pro-
posed plot plan depicting the new two-family house to
be erected on his lot (A. 190).
      Two days later,           on J u l y   30, 2008, Robert Connors

was at the Building Department on an unrelated matter,
and at that time was told by Building Department em-
ployees that Amino had filed a building permit appli-
cation f o r the s u b j e c t lot     ( A . 130-131, 190).

      On August 20, 2008, Robert Connors                    (as attorney
fox the Appellants) hand-delivered a detailed letter
to the Building Inspector, attaching a plot plan of
the three properties prepared by a professional engi-
neer retained by the Appellants                   (A.    30, 189,   1901,

asking that Annino's building permit request be denied
or, in the alternative, be forwarded to the ZBA for a
determination as to whether it would                      "increase the
nonconforming nature of               [the existing] structure" in
violation of S 3.7225 o f the City's Zoning Ordinance
and G.L. c .    40A,    §   6    (A 1:27, 190).         Said letter once
again made the Bransford and B j o r k f u n d arguments and,
notably, acknowledged t h a t its August 20th letter did


before judgment entered, that a different provision o f
the zoning bylaw might exempt their property from the
one acre lot requirement."          Similarly, B r a n s f o r d v.
Zoning Bd. of Appeals of E d g a r t o w n , 444 Mass. 8 5 2 , 860
n.10 (2005) rules that "a different conclusion is not
compelled by 5 1 1 . 9 ( b ) of the zoning bylaw," providing
detailed analysis of the bylaw.

                                       5
not    toll      the   administrative        appellate        process:
 [w] i t b o u t restricting f u r t h e r responses to the items
addressed, or f u t u r e appeals o r actions our clients
state.,  ."    (A. 27-29).
       On September 15, 2008           ( a f t e r consultation with

the City's Law Department), believing that t h e B r a m -
ford and Bjorklund cases d i d not compel. the conclu-
sions reached by the Appellants because             §   4.218 of the

City's Zoning Ordinance exempts the subject property
from t h e     lot area requirement and expressly permits
reductions in front, rear and side yard setbacks (un-
like t h e zoning by-laws examined i n the Bransford and
Bjorklund cases, supra n. 3 through n . 5 ) , the Build-

ing I n s p e c t o r issued the requested building permits to
Annino ( A . 32, 190).

 31.    The A p p e l l a n t s had adequate n o t i c e t h a t t h e
        building permits had i s s u e d to Annino y e t f a i l e d
        t o appeal w i t h i n requisite t h i r t y d a y s .
       Ten days later, on September 2 5 ,               2008,   Robert
Connors       (then counsel     for    Appellants)      was     at   the

Building Department on an unrelated matter, and waa
told by Building Department employees that the build-
ing permit had iesued to Annino an September 15,                     2008

(A.    191).    At this time, twenty days remained before
the expiration of the thirty day time period f o r ap-
pealing the challenged building permit.




                                   6
      The next day (eleven days after the issuance of
the oubject building permit), on September      26,   2008,

Robert Connors met with the Building Inspector and
Powell in the Building Department concerning t h e is-
m e s raised in the Appellants' August 20, 2008 letter
(A.   191).   At: this time, nineteen days remained before
the expiration o f the thirty day time period €or ap-
pealing the challenged building permit.
      On September   29,   2008   (fourteen days after the
issuance of the building permit), the Building Inspec-
t o r responded to the Appellants' objections in writing
as follows:

      We are in receipt of your correspondence
      dated August 20, 2008 challenging the issu-
      ance of a building permit to voluntarily de-
      molish and erect a new house at the above
      noted address [89-91 Overland Road].    After
      review o f your opinion, a permit to recon-
      struct was issued under t h e right of the so
      called "old l o t " or "small lot" exceptions
      contained in the City of Waltham Zoning
      Code, Article 4, Section 4.2181. Thin de-
      partment has consistently held the view, and
      the opinions of the Law Department have con-
      curred, that properties that are deemed eli-
      gible under this ordinance may avail them-
      selves of the rights to build.

              Article 7 , Section 7.31 of the Zoning
      Code allows a person aggrieved by a ruling
      of this Inspector of Buildings the right o f
      appeal to the Zoning Board of Appeals as
      provided in the Zoning Code and in the Gen-
      e r a l Laws.
(A. 191).     The Appellants received this letter on        Oc-

tober 1,    2008    (A. 191); notably, at that t i m e ,   four-
teen days remained before the expiration of the thirty
day time period for appealing the challenged building
permit.
     On October 15, 2008, the thirty day time period
for appealing the issuance of the building permits ex-
pired (A. 191).
     On October 20,        2008 (thirty-five days after the

issuance of the permit) the Appellants filed a peti-
tion with the ZBA purporting to appeal the decision of
the Building Inspector to issue the building permits
(A. 191).
      On January 2 7 ,      2009, after receipt of a       legal
opinion from the City's Law Department regarding ]u-
risdiction    (A.   82).   the ZBA dismissed the Appellants'
petition ruling that they had "failed to bring the ap-
peal within the time frame required by the statute and
therefore the Board lacks juxisdiction to hear the pe-
tition" (A. 191).
      The Appellants timely appealed that decision to
the Land C o u r t ( A . 191).




                                 8
                          ARGUMENT
  P.     THE ZBA (AND THERFORE THE LAND COURT) WAS WITW-
         OUT JURISDICTION TO REVIEW THE ADMLNISTRATXVE
         APPEAL BELOW BECAUSE THE APPELLANTS BID NOT AP-
         PEAL FROH THE BUILDING INSPECTOR’S ISSUANCE OF
         THE BUILDINGl PERMIT UNTIL AFTER THE THIRTY-DAY
         APPEAL PERIOD OF Q.E.  C. 40A. S 8 HAD EXPIRED,
         DESPXTE HAVING ADEQUATE NOTICE (TWENTY DAYS) OF
         THE ISSUANCE OF SAID BUILDING PERMIT.
       The Land Court    (Judge Long) properly dismissed
the action in ite entirety on jurisdictional grounds
given the Appellants had failed to exhaust all availa-
ble administrative remedies by not filing a timely ap-
peal with the ZBA pursuant to M.G.L. c. 4 0 A , 5 8 (ap-
peal filed five days late).          No material facts were
disputed below on the jurisdictional issue of whether
the Appellants had properly preserved t h e i r adminis-
trative appeal.    The Appellants do not dispute:              (1)

that the Building Inspector issued the building per-
mits to Annino on September 15, 2008; ( 2 ) that the Ap-
pellants learned that the Building Inspector had is-
sued said building permits on September      25,   2008    (when
20 days remained before expiration of appeal period o f

c. 40A, S 8); or ( 3 ) that the Appellants did n o t file
an appeal to the ZBA until October 20, 2008 ( 5 days
beyond expiration of appeal period of c .     40A,   5    8)   (A.

181).    In fact, the Appellants concede that ”the suf-
ficiency of notice      [of the issuance of the building
permit] in this case has been established”     (A.   166).




                             9
      Rather, the Appellants'        argument on appeal is
that a letter sent by their counsel to the building
inspector on August 20, 2008 (urging him to not issue
the building permits) somehow amounts to an enforce-
ment request as defined i n Chapter 40A, 5 7, and that
the Zoning Act provides abutters aggrieved by the is-
suance of a building permit with an unfettered             choice
between two avenues of appeal:          (1) filing a direct

appeal to the ZBA under Chapter 40A, 5          8   (which must
be filed within 30 days of the issuance of the build-
ing permit) or       (2)   filing a request for enforcement
w i t h the building inspector under Chapter 40A,      §    7 and

then appealing the building inspector's written denial
to the ZBA within 30-days (enforcement actions may be
filed up to six years after the issuance of a building
permit) .
      This argument, however, is precluded by the plain
language and legislative history of the Zoning A c t ( c .
40A, S § 7 ,   8,   15), long settled principles    of exhaus-
tion of administrative remedies, and Gallivan v. Zon-
i n g Board of Appeals Of Wellesley, 71 Mass. App. Ct.
850   (2008). f u r . app. rev. d e n . 4 5 2 Mass. 1104 (ZOOS),

and its progeny, which put to rest any notion that the
zoning a c t allows aggrieved abuttes with adequate no-
tice of     the issuance of a building permit to freely
choose between filing a direct appeal under c.             40A,   §

8   and requesting an enforcement action under c. 40A, 5

                                10
7,   and then pursuing an appeal from the denial thereof
under c.    40A,   5   8.   Based upon the statute's terms,
neither the    ZBA     nor the Land Court had the power to
extend the thirty-day period, thus the Land Court cwc-
rectly dismissed the a c t i o n below €or lack of juris-
diction.6
      As   a threshold issue, where Appellants are essen-
tially advocating for this Court to explicitly over-
turn GallIvan v . Zoning Board of Appeals of Wellesley,
71 Mass. App.      Ct. 850, f u r t h e r appellate rev. den.,
4 5 2 Mass. 1104 (ZOOS), it is important to advise that

the statutory interpretation of G.L. c. 40A provided
by the Gallivan Court (now challenged at bar) has been
repeatedly cited by t h e Appeals Court, full opinions
and 1:28 decisions alike.       See 8 2 Spooner Road, LLC v.
Zoning Board o f Appeals       of Brookline, 78 Mass. App.
Ct. 233 (2010) (notably, circulated to entire court             -

Court advances same principles/interpretation enunci-
ated by Gallivan Court); S i m v. Zoning Board of Ap-
peals of Burlington, 76 Mass. App.            Ct. 1137    (2010)


           An appellate court's review of jurisdiction is
de novo; appellate courts consider the record and the
legal principles anew. See Iannacchino v. Ford Motor
PO., 451 Mass. 623, 635-636 ( 2 0 0 8 ) (articulating t h e
standard       €or reviewing             the   adequacy of    com-
plaints).      See also Callahan v. F i r s t Congregational
Church of Haverhill, 441 Mass. 699, 709-710 ( 2 0 0 4 ) ;
H i l e s v. Episcopal Diocese of Massachusetts, 427 Maso.
5 0 5 , 516 11.13 ( 2 0 0 2 ) ; C u r t i s V. Herb Chambers 1-95,
Inc., 75 Mass. App. Ct. 662, 666 (2009).


                                11
( 1 : 2 8 Decision, panel:       Gr'assO,         Brown, Kafker, JJ.);

Frankts Towing,      Inc.    v. Zoning Board of Appeals of
Lowell, 76 Mass. App. Ct. 1132 (2010)) (1:28 Decision,
panel:    Kantrowitz,       McHugh,             Fecteau,   JJ.) ;   North
Chelmsford    Water D i s t r i c t        v.    Department   of    Public
Works of C h e l m s f o r d , 7 5 Mass. App. Ct. 113 (ZOOS)(1:28
Decision, panel: Kantrowitz, Smith, Graham, JJ.)                    ;   Hip-
son v. Auburn Board of A p p e a l s , 7 5 Mass. App. Ct. 1111

(2009) (1:28 Decision, panel: Berry, Grainger, Woloho-

jian, JJ.).    Said 1:28 Decisions are included below in
the Supplemental Appendix.
A.   The plain language of the Zoning Act does not al-
     low aggrieved abuttera with notice of the issu-
     ance of a building permit to freely choose be-
     tween filing a d i r e c t appeal under c . 40A, B 0 or
     filing B request f o r enforcement with the build-
     i n g inspector under c. 40A. S 7 because such a
     reading of Chapter 40A would render the 30-day
     deadline €or direct appeals valuelesa.
      Ignoring the standard rules of statutory con-
struction, the Appellants incorrectly argue that the
Appeals Court "judicially created" a bright-line r u l e
in Gallivan v. Zoning B o a r d o f Appeals of W e l l e s l e y ,
71 Mass. A p p . Ct. 8 5 0 ( 2 0 0 8 ) , fur. a p p . rev. den. 452
Mass. 1104    (ZOOS),     in violation of the principle o f
judicial restraint        of art. 30 of the Massachusetts
Declaration of Rights when ruling that:

     A party w i t h adequate notice o f an order or
     decision that violates a zoning provision
     must appeal that order ox decision to the
     appropriate permit granting authority within


                                      12
     the thirty-day period allotted f o r such an
     appeal. See G.L. c . 40A, § § 8 , 15. Where
     adequate notice of such order or decision
     exists, such a person m a y not lawfully by-
     pass that remedy and subsequently litigate
     the question by means of a request for en-
     forcement under G.L. c. 40A, § ? .
(Appellant’s Brief at 2 0 - 2 5 )   .   The Appellants’ argument
is unpersuasive, particularly given the rules of atat-
utory construction mandate the holding reached by the
Gallivan Court
     The p l a i n meaning of the statutory language of
the Zoning Act (G.L. c . 4 0 A ) , read as a whole to pro-
duce an internal consistency that effectuatea the pre-
sumed intention of the Legislature and read so that
none of the pxoviaions will be “inoperative” or “su-
perfluous”, requires the Gdallivan Court‘s interpreta-
tion (which expressly did away with the notion that
aggrieved abutters with adequate notice of the issu-
ance of a building permit can forgo t h e direct appeal.
procedure and sender inapplicable the plain require-
ments of 5    8   by misconstruing the zoning a c t in the
manner proposed by Appellants). 7
     The inquiry at bar thus begins with the language
adopted by the Legislature.              See Guzman v.   Common-

w e a l t h , 458 Mass. 354, 361 (2010) (outlining rules of


           Appellate Courts “exercise de novo review over
questions of statutory construction.” See Massachu-
s e t t n Xnsurers Insolvency Fund v. Smith, 4 5 8 Maaa. 561
(2010); Atlanticare Med. Ctr. v . Colmissioner of the
Div. of Med. Assistance, 439 Mass. 1, 6 (2003).

                               13
statutory construction)   .   see e.g. Hoffman v. Howmedi-
ca, h c . , 373 Mass. 32, 37 (1977) ("salient principle
of    statutory construction .   ..   [is] that the statutory
language itself is the principal source of insight in-
to the legislative purpose").          "The general and famil-
iar rule is that a statute must be interpreted accord-
ing to the intent of the Legislature ascertained from
a l l its words construed by the ordinary and approved

usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfec-
tion to be remedied and the main object to be accom-
plished."    Lowery v. Xlemm,         446 Mass.    572,   576-577

(2006) (quoting Hanlon v. Rollins, 286 Mass. 444, 447
(1934)). Where the language         of the statute is clear,
courts interpret it according to its ordinary meaning.
See    Guzman, 458 Mass. at 361 (citing Law v. Griffith,
457 Mass. 349, 353 (2010)).         This Court has explained:
"where a statute fails to             specifically define     its
terms, ' w e give them their usual and accepted mean-
ings, as long as theae meanings are consistent with
the statutory purpose."'      Id. (quoting Commonwealth v .
Zone Book, Xnc., 372 Mass. 366, 369 (1377)). See also
S u l l i v a n v . Brookline, 435 Mass. 353, 360 (2001) (ex-
plaining that statutory terms should be given effect
consistent with their ordinary meaning and with regard
to the intent of        the Legislature, unless doing so
"would achieve     an   illogical      result").    "Unless the

                               14
plain meaning of the statute requires it, we will not
expand or limit its meaning."                    Guzman,   458   Mass. at
361    (citing Norfolk           h   Dedham Mut.       Fire Ins. CO.    v.

Morrison, 456 Mass. 463, 468 (2010)).
       Notably,        the    entire       statutory    scheme must     be
"read as a whole to produce an internal consistency
and to effectuate the presumed intention of the Leqis-
lature."        Cornonwealth v .           Connor C., 432 Mafia. 635,
640 (2000) ( c i t i n g Dawling v . Registrar of Motor V e h i -

cles, 425 Mass.             523, 525       (19971, and     Charles C v.
                                                                    .

Commonwealth, 415 Mass. 58, 64 (19931).                    Mareover, and
particularly relevant to the inquiry at bar, a funda-
mental rule of statutory construction is t h a t effect
must be given to all of a statute's provisions, so
that     none       will    be    "inoperative" or         "superfluous   .   "



Wheatley       v. Massachusetts Insurers Infiolvency Fund,
456 Mass.       594, 601         (2010).     See also Bankers L i f e         &

Cas.     co.   V.    Commissioner of I n s . , 4 2 7 Mass. 136, 140
(1998) ; Commonwealth v .             Woods Hole, Martha's V i n e y a r d
&   Nantucket       S.S.   A u t h y . , 3 5 2 Mass. 617, 618 (1967).
       Applying these principles, the Gallivan Court' 8
interpretation of the controlling comprehensive statu-
tory scheme (G.L. c. 40A) is compelled by its plain
language.           G.L. c. 40A, 5          8,   provides, in relevant
part :     "Caln appeal to the permit granting authority
[here the ZBA]        ...    may be taken by any person aggrieved
by reason of his inability to obtain a permit or en-

                                       15
forcement action from an administrative officer under
the provisions of this chapter [here the building in-
spector],    ...   or by any person         ...   aggrieved by an or-
der or decision of the inspector of buildings, or oth-
er administrative official, in violation of any provi-
sion of this chapter or any ordinance or by-law adopt-
ed thereunder."      G.L.   c.   40A,   §    15 reads, in pertinent

part:     * Calny appeal under section eight to a permit
granting authority shall be taken within thisty days
from the d a t e of the order or decision which is being
appealed."    G,L. c .      40A,   §    15        (emphasiB provided).
There is no ambiguity in G.L.                c.    40A,   5 s 8 and 15:
read together, the word " s h a l l " dictates that abutters
aggrieved by the issuance of a building permit must
file a direct appeal within thirty days from the date
said building permit issued.
        Section 7 of the Zoning Act a l s o provides a zon-
ing enforcement appeal procedure to p r o t e c t persona
aggrieved by others allegedly violating zoning law:

     If the officer or board charged with en-
     forcement of zoning ordinances ox by-laws is
     requested in writing to enforce such ordi-
     nances or by-lawd against any person alleg-
     edly in violation of the same and such of-
     ficer or board declines to act, he shall no-
     tify, in writing, the party requesting such
     enforcement of any action or refusal to act,
     and the reasons therefor, within fourteen
     days of receipt of such request.8

       Notably, fourteen-day limitation on building in-
spector's written response in G.L. c. 40A, § 7 is di-

                                   16
    G.L.   c.   40A,    §   7.   Section 8 and 15 furthes provide
    that, any person aggrieved by the denial may appeal to
    the local permit granting authority, so long as they
    do so within thirty days from the date of such written
    denial.     See    G.L. c.   40A,   E § 8 and 15.

           Reading G.L. c .      40A    as a whole to produce an in-
    ternal consistency that effectuates the presumed in-
    tention of the Legislature and so that effect i s given
    to all OP the statute's provisions so that none will
    be "inoperative" or "superfluous,
                                    '
                                    I               requires that the
    zoning enforcement appeal procedure is only available
    in circumstances where the aggrieved party was n o t on
    notice sufficient to permit a timely appeal from the
    issuance of the building permit              (the action that is
    the alleged cause of aggrievernent).                This i s so be-
    cause reading the Zoning A c t as permitting a choice
    between (1) filing a direct appeal under c .             40A,   5 8,

    which must be filed within 3 0 daya of the issuance of
    the building permit, or (2) filing a request f o r en-
    forcement with the building inspector under c. 40A,                E

    7 and then appealing the building inspector's written

    denial of said request within 30-days, where enforce-
    ment actions may be filed up to six years after the
    issuance of a building permit, would render the 30-day


    rectory and not mandatory. Vokes Y. Avery W. L o v e l l ,
    Inc., 18 Mass. App. Ct. '471, review denied, 3 9 3 Mass.
    1103 (1984).


                                        17
~
deadline for direct appeals valueless (i.e. "superflu-
ous" and "inoperative")         .   A contrary interpretation of
the plain meaning o f the statute would thus 'impermis-
sibly negate" o t h e r contemporaneously-enacted statuto-
ry language where a more reasonable alternative con-
struction exista. See Connor C . ,               432 Mass. at 642.
The rules of statutory construction thua preclude Ap-
pellants' argument.
        Equally fatal to Appellants' argument, the plain
language of the statute establishes that the appellate
time period of Chapter 4Oa is expressly triggered by
the action that makes a person an "aggrieved party"
and not notice of such act (here, the decision or or-
der o f the building inspector that allegedly injures
the plaintiff). See G.L.            c . 40A, $ 5 8 and 15.    Conse-
quently, Appellants' arguments that their appeal was
filed within 30 days of receiving notice of the grant-
ing of the building permit and within 30 days of the
building          inspector's       response     to   their    self -
characterized "enforcement letter", are red herrings.
See G - I , .   c , 40A, 5 8.   If the Legislature intended the
trigger of the 30-day time period for filing appeals
to be notice of an orderldecision of the inspector of
buildings, it could have structured the statute to
specifically reflect this intent by using the word
"notice" therein (notably, t h e Legislature has struc-
tured other statutes this way).                Instead, the trigger-

                                     lE
ing event i s the action that aggrieves           -   here, the is-
suance of the building permit.

B.    Mandmua case law prior to the enactment of the
      Zoning A c t and principles o f exhaustion further
      support reading c. 40A, § § I , 8, and 15 so that
      the zoning enforcement procedure of c. 4 0 A , S I
      is only available in c i r c u m s t a n c e s where the ag-
      grieved party has not had notice of the bsuancs
      of the building permit within t h e thirty-day ap-
      peal period.
      Preexisting case law, which the Legislature is
presumed to have had knowledge of when it enacted the
Zoning Act in 1975, also supports the conclusion t h a t
the plain language of the statute does not permit an
aggrieved party with notice            of   the   issuance of       a
building permit to forgo appealing said permit issu-
ance within the 30 day jurisdictional time constraints
and instead subsequently litigate their challenge by
means o f a request for enforcement under c .            40A,   fi 7 .
See    Joslyn     v.     Chany,       445   Mass.       344,     350
(2005)(explaining that when ascertaining the intent of

the Legislature courts "presume that the Legislature
knew preexisting law and the decisions o this court,
                                        f
and intended the new language to be interpreted in
like manner"). "Prior to the enactment of the Zoning
Act, see St. 1975, c. 808,        §   3, mandamus was t h e rec-

ognized remedy for the procedure now established in c.
40A." 81 Spooner Road, LLC v .         Zoning Board o f Appeals
of Brookline, 78 Mass. App. Ct. 233, 243 (2010). See



                               19
also Gallivan, 71 Mass. hpp. Ct. at 855-856 (explain-
ing enforcement action remedy in c. 40A, S 7 was de-
rived from mandamus law).          However, mandamus relie€
wae not available where another effective remedy ex-
isted and, notably, "the party aggrieved            [walB   re-
stricted to the available remedy, including any time
limitations applicable to commencing the proceeding."
Galfivan, 71 Mass. App. Ct. at 8 5 5 - 8 5 6   (quoting Madden
v . Secretary o€ t h e
               .         Commonwealth, 337 Mass. 758, 761
(1358)).

     Two cases rendered prior to the enactment of the
Zoning   Act   (which the law presumes the Legislature was
cognizant o f and intended t h e new language it crafted
to be interpreted in a like manner) illustrate that
the Legislature did not enact new language that ex-
panded the mandamus remedy previously afforded in the
zoning enforcement context:        Brady v. Board o f Appeals

of Westport, 348 Mass. 515      (1965) and Saab v . Building

Inspector of L o w e l l , 1 Mass. App. Ct. 87 (1973).      For
example, nthere is a clear implication in B r a d y that
the use of     mandamus to compel enforcement of zoning
provisions was available only in circumstances where
an aggrieved party was not on notice sufficient to
permit a timely appeal from the action that is the
cause of her aggrievement."         Gallivan, 73 Mass. App.
Ct. at 855-856.      In Saab, the Appeals Court rejected
the aggrieved party' 8 reliance on B r a d y :    "having al-

                              20
 ..   . ... .




lowed the time to pass in which these statutory reme-
dies were available to him, he may not now have re-
course to petition for a writ of mandamus on the
                                          .
ground that he has no alternative remedy., [in Brady]
mandamus became an appropriate remedy because altsrna-
tive remedies were unreasonable ox never in fact be-
came available to the petitioner."            I d . at 8 8 .    Thus,
with this legislative intent and history i n mind, the
conclusion that harmonizing c. 40A, 5 5             7,   8,    and 15
mandates that the zoning enforcement procedure o f c .
40A, 5 7 is only available in circumstances where the

aggrieved party has not had notice of the issuance of
the building permit within the thirty-day appeal peri-
od, does not expand the plain meaning of the statute's
terms but rather effectuates the Legislature's pre-
sumed intent.
         Furthermore, a contrary interpretation would undo
long-settled principles o f exhaustion of administra-
t i v e remedies:     "a plaintiff cannot challenge the va-
lidity of a ruling "in a proceeding which, regardless
of ita form, [is] the equivalent of an appeal" from
the earlier decision."         See Bonfatti v . Z o n i n g Bd. of

Appeals o f Holliston, 48 Mass. App. Ct. 46, 5 0 (1999).
Principles of exhaustion require a party aggrieved by
action of a Local zoning administrator (the building
inspector       in   most   municipalities)    to    exhaust      all
available administrative remedies, bypassing an avail-

                                 21
able remedy divests the reviewing court of jurisdic-
tion.    For example, in Cumberland F a r m s , Inc. v . Zon-
i n g Board of Appeals          of W a l p o l e ,   61 Mass. App.   Ct.
124, 129     (2004), the Court            precluded CFI from chal-
lenging t h e validity of a cease and desist order or
the requirement of a special permit in Land Court be-
cause "CFX did not appeal from the building inspec-
tor's order, but instead filed applications for spe-
cial permits." Cumberland F a r m s , 61 Mass. App. Ct. at
129.     The Court held:          " [ t l h e failure to exhaust ad-
ministrative remedies is jurisdictional in nature, and
the court may not hear the matter                       if it was    not
[properly] appealed to the local board of appeals."
Id.     Accord Balcam v. Town of Hingham, 41 Mass. App.
Ct. 260, 263 (1996); Quincy v . Planning Ed. of Tewks-
bury, 39 Mass. A p p . Ct. 17, 20 (1995); Commonwealth v .
A.    Graziano,    Inc., 35 Mass. App.               Ct. 69, 70 (L993);
C l a r k & C l a r k Hotel    Cosp., v . Building Inspector of
Falrnouth, 20 Mass. App, Ct. 206, 212-213 (1985); NeU-
haus v. Bldg. Inspector of Marlborough, 11 Mass. App.
Ct. 230, 231 (1981).
        Ruling that the statute does not permit an ag-
grieved abutter with             notice      o€ the      issuance o f   a
building permit to bypass t h e direct appeal. remedy o f
c. 40A, 5     8,   is consonant with the principles of ex-
haustion.     See i d .       The opportunity to appeal from the
issuance of        the building permit               is dispositive of

                                     22
whether or not the "request for enforcement" procedure
enumerated in c. 40A,    5    7 may be used.         It is the
foregoing or bypassing o f the available remedy that
divests the ZBA (and in turn the reviewing cwurt) of
jurisdiction.     Thus, the Gallivan's      court holding is
compelled by principles of exhaustion

C.   Appellants cannot avoid dismissal. by asserting
     that the G a l l i v a n decision improperly introduced
     a notice requirement into the text of the Zoning
     Act when the G a l l i v a n Court's interpretation of
     0.L. c. 40A, S S I , 8 , and 15 is compelled by i t s
     plain language.
     In a creative attempt to avoid the clear holding
o f Gallivan, Appellants argue that      the Gallivan deci-
sion improperly reads a notice requirement into the
text of the Zoning Act in violation of the principle
of judicial restraint of art. 30 of the Massachusetts
Declaration of Rights.        Curiously, Appellants believe
their interpretation of the Gallivan decision            -   that

courts axe permitted to make case by case equity de-
terminations tied to whether or not a party has been
prejudiced by the occurrence of construction in reli-
ance on the issued building permit      -   reconciles G a l l i -
van with the principle of       judicial restraint (Appel-
lants'   Brief   at 14-20).     Arguing that the Gallivan
Court did not expressly "reject the reasoning" of Eli0
v. Zoning Bd. of Appeals of Barnstable,         55   Mass. App.
Ct. 424 (ZOOZ), which they argue appears to accommo-



                               23
date the contention that aggrieved abutters may freely
choose between filing a direct appeal or an enforce-
ment action,g the Appellants assert that rather than
reading Galallivan as "reforming" G.L. c . 40A, 5 s    7,   8,

and 15, it should be read as "preserv[ing] the equita-
ble power that trial courtB enjoy to deny relief where
justice so    dictates"   (Appellants' Brief     at 14-20)
Advocating to resolve an alleged a r t .       30 violation

with a different art. 30 violation is a perverse (and
thus unpersuasive) argument.
     It is a well-settled principle of judicial re-
straint that the judiciary "cannot introduce an egui-
table exception when the Legislature has fashioned an
ironclad rule."    See Chang, 445 Mass. at 351 ("[recog-
                         f
nizing hardship statute o repose may have in certain
circumstances,] we     are not    to   interpret a statute
based on such considerations).         This Couxt has ex-
plained:     n[t]he duty of the court [is] to adhere to


       Appellants wrongly argue that the G a l l i v a n Court
did not expressly reject said implication, in fact the
Ga11ivan decision answers t h e plaintiff's argument
that the E l i 0 decision "meane that the opportunity to
appeal from issuance of a permit is irrelevant to the
sight o f an aggrieved person to forego such an appeal
and still seek enforcement later of the zoning by-laws
allegedly violated. We do not share the plaintiff 'E:
interpretation of the language in E l i o . "     Gallivan, 71
Mass. App. Ct. at 8 5 7 .      Notably, E l i 0 contemplates -
as does G a l l i v a n and its progeny - that the enforce-
ment appeal procedure remains available to challenge
permit holders whose construction exceeds the scope of
the issued permit. These are not the facts at bar.

                             24
the very terms of the statute, and not, upon imaginary
equitable considerations, to escape from the positive
declarations of the text.         No exceptions ought to be
made, unless they are found therein; and i€ there are
any inconveniences or hardships growing out of such a
construction, it: is for the legislature, and not for
the court, to apply the proper remedy."          .   Chany,   445

Mass. at 352.
     First, as detailed above in Section      A,     the Appel-
lants' reasoning rejects the only sensible interpreta-
tion of the interplay between G.L. c. 40A, S S 7. 8,
and 15 and the plain meaning of the statute's terms.
Supra    at 12-19.    The   foregoing statutory analysis
clearly demonstrates that the Gallivan Court did not
"judicially create" a notice requirement but: rather
adhered to the very terms of the statute and thus did
not usurp    the   law-making authority constitutionally
allocated to the legislative branch.       See   Mass. Const.
Part 11, c. 1, 5 1; Art. 30 of the Massachusetts Dec-
laration of Rights.
     Next, if the Legislature intended the 30-day ju-
risdictional bar to only operate when the permit hold-
er was prejudiced by their reliance on the building
permit   (i.e. the "no construction" versus "completed
construction" argument advanced by Appellants), the
Legislature could have structured the statute to spe-
cifically reflect this intent.          It did not; conse-

                             25
quently, this Court is not empowered to interpret the
statute based on Appellants' proffered equitable con-
cerns . ''      See Commissioner of             correction v. S u p e r i o r
Court     Dep't       of    the   Xrial      Court   for    the County of
Worcester, 446 Mass. 123, 126 (2006), citing General
Elec.     Co.    v.        Department     of   Envtl.      protection,   429

Mass. 798, 803 (1999) ("We do not read into la] Eltat-
ute a provision which the Legislature did not see €it
to put there, nor add words that the Legislature had
an option to, but chose not to include"); Bronstein                       v.

Prudential Ins. Co. of Am.,                  390 Mass. 701, 708 (1984)

(court cannot insert words into statute that is clear
and unambiguous).              The G a l l i v a n Court did not intro-
duce equitable considerations into the text of the
Zoning Act nor should this Court.

D.      Applying the sound h o l d i n g o f GaLlivan v. Zoning
        Board of Appeals of Wellesley, 71 Mass. App. Ct.
        8 5 0 (2008) and its progeny ko the case at bar,
        the Land C o u r t lacked jurisdiction.
        Applying the sound holding of Gallivan and its
progeny to the case at bar, the Land court properly


        l o Appellants claim such an interpretation would
a l s o permit courts to resolve the inequity of an abut-
ter who receives notice on the twenty-ninth day (re-
view barred if appeal not filed within the 30-day
deadline) and an abutter who receives notice on the
thirty-first day (who appear to have up to six years
to use the enforcement procedure in c. 40A, 5 7). Any
inconvenience or hardships that may exist under the
current version of the Zoning Act (if any), is for the
Legislature to remedy.

                                        26
dismissed             Appellants'     action    on   jurisdictional
grounds.              Where the Appellants assert that permitting
the construction o f a new, somewhat larger two-family
house on the subject lot aggrieves them as direct
abutters, they fall within the category of a "person
aggrieved    ...       by an order or decision of the inspector
of buildings           ...   in violation of" a zoning provision.
See G.L. c. 40A, 5             8.   Notably, the action that causes
the Appellants' agyrievement is the issuance of the
building permit.               Quite telling, the ultimate relief
sought by Appellants in their alleged enforcement re-
quest letter was denial of                 the building permit   (A.
       12
29).        Accordingly, an appeal from the issuance of the

        As previously noted, the statutory interpreta-
tion of G.L. c. 40A provided by the Gallivan Court has
been repeatedly cited by the Appeals' Court, full bpin-
ions and 1:28 decisions alike. Supra at 11.
       Even assuming, arguendo, that Appellants quali-
fied as persons "aggrieved by reason of his inability
to obtain enforcement action from administrative of-
ficer" (notably the Land C o u r t ruled otherwise), such
an inability would not negate that the facts o f this
case establish that t h e Appellants were, jurisdiction-
ally, persons "aggsieved by an order or decision of
the inspector of buildings."       ( S e e a l s o A. 192-193).
Here, factually, Appellants aggrieved status cannot be
baaed upon their alleged inability to obtain an en-
forcement action because, as the Land Court reasoned,
there.was nothing to enforce at the time Appellants
submitted the August 2 0 , 2008 letter to the Building
Inspector (A. 192-193). The permit was not issued un-
til September 15, 2008, while the Appellant's letter
was delivered on August 20, 2 0 0 8 .     Thus, the timeline
of events bars Appellants from using the enforcement
action procedure. As the Land Court Judge reasoned,
the Building Inapector's response to the August 20th
              .....

                                      27
building permit had to be filed by Appellants no latex
than October 15, 2008.         See G.L.     c. 40A,        §§        E    and 15.
Yet, Appellants did not file an appeal with the ZBA
until October 20, 2008 ( 5 days beyond expiration of
appeal period of c . 40A,      § 8)     ( A . 181).

       Appellants attempt to sidestep the 30-day juris-
dictional filing requirement of G.L. c.                   40A,           §!$   8 and

15 crafted by the Legislature via imaginative plead-
ing. The Gallivan decision, however, quickly disposes
of this argument.          Gallivan's     holding instructs that
the Appellants cannot extend the time for filing by
characterizing their action as an enforcement action
rather than an appeal of the building permit decision.
See    GalaLlivan, 71 Mass. App. Ct. at       857.

        It is undisputed in the record at bar that the
Appellants received actual notice of the September 1'
                                                    5h

issuance of the building permit on September 25, 2008,
when 20 days remained before the appeal period of c.
40A,    5   8 was set to expire          (A. 181).           Appellants'
counsel met with the Building Inspector and Powell on
September     26,   2008   (when 19 days remained to lodge
                                                      ~          ~             ~-
letter simply advised Appellants that the building
permit had issued and his reasons for issuing same, it
does not bear on any zoning violation independent from
those involving the isguance of the building permit
(A. 192-L93). Notably, the factual timeline and the
fact that Annino has yet to build in reliance on the
permit, also precludes any argument that Appellants
made an enforcement request based upon the permit
holder exceeding the scope of the permit.

                                 28
their appeal), objecting to t h e issuance o f the build-
ing permit citing all of the grounds ultimately in-
cluded in their belated appeal to the ZBA ( A . 191).
Appellants also received written notice that the per-
mit had issued on October 1, 2008             (A.    191); notably,
at that time, fourteen days remained before the expi-
ration of the thirty day time period for appealing the
challenged building permit.            The grounds advanced to

the ZBA in Appellants' enforcement action appeal (that
the proposed expansion violated local zoning law pur-
portedly because of the Bsansford and B j o r k l u n d cases)
were formulated as far back as September of 2007, and
had already been reduced to writing in correspondence
sent to the Building Inspector by Appellants' attorney
back on August   20,    2008    (A. 190); said argument could
easily have been incorporated into a timely filed ap-
peal within the twenty days that Appellants still had
to file a direct appeal from the issuance of the
building permit.       See   North Chelmsford Water D i s t r i c t ,
7 5 Mass. App. Ct. at 1113 (where plaintiff had notice

of the issuance of the building permit during 30-day
time period Court ruled arguments "could and should
have been raised in the permit appeal, not in a belat-
ed request f o r zoning enforcement").              Instead, Appel-
lants decided only t o follow the enforcement procedure
rather than timely appeal the issuance              of   the building
permit.

                                 29
     Clearly, these facts conclusively establish, by
uncontroverted proof, that the Appellants had                  "ade-
quate" notice o f the permit's issuance and a "fair op-
portunity" to bring a timely appeal within the thirty-
day appeal period.        See G a l l i v a n , 71 Mass. App. Ct. at

858-860;   North C h e l m s f o r d   Water   District, 7 5   Mass.
App. Ct. at 1113 (where plaintiff had been notified by

letter of November 1, 2007 that building permit had
issued b u t plaintiff sought an enforcement action from
which it appealed on December 11, 2007, Court dis-
missed action on jurisdictional grounds because plain-
tiff failed to properly challenge the issuance of the
building permit w i t h i n       the    time frame allotted by
statute (appeal 10 days l a t e ) ) .          In fact, the Appel-
lants concede that "the sufficiency of notice [of the
issuance of the building permit] in this case has been
established" (A. 166).
     Having failed to take a timely appeal from the
building inspector's action in granting the building
permit, Appellants failed to properly preserve its ad-
ministrative remedy and, thus, the ZBA (and therefore
the Land Court) lacked jurisdiction to consider the
merits o f Appellants' appeal.             Accordingly, the Land
Court's dismissal must stand.
                           CONCLUSION

        For the foregoing    reasons,   the Zoning Board o €
Appeals o f the City of Waltham         respectfully requests

that    this   Honorable   Court    affirm   the   Land   Court's

grant    of Defendants'    Motion to Dismiss and the Land
Court's Judgment issued on July         15, 2010, dismissing

the complaint in its entirety.


                                    Reapectfully submitted


                                                     4
                                    FOR THE CITY OF WALTKRM,

                                    w-
                                    MICHELLE LEARNED
                                    Assistant City Solicitor
                                    City of Waltham
                                    BBO# 634955
                                    119 School Street
                                    Waltham, MA 02451
                                     (781) 314-3337
January 7 , 2011




                               31

				
DOCUMENT INFO
Description: Unofficial copy, City of Waltham defendent Appelle submission to the Supreme Judicial Court of Massachusetts, for oral arguments done heard on September 6th, 2011.