Michaud owned several parcels on Harris Pond in Blackstone, Massachusetts. Some of the lots had been reconfigured and been granted a variance with conditions. The defendant and his son did not fully comply with those conditions, which led to a final 2000 judgment in Superior Court. The 2000 judgment stated that the nonconforming use of what was called “historic lot 48” had been abandoned and that all future uses must comply with zoning. Despite the 2000 judgment, the defendant in 2005 reached an “agreement between the parties” with the building inspector and obtained a building permit for a house on historic lot 48. When the defendant began construction, the plaintiffs – abutters to historic lot 48 – complained to the town, filed an enforcement request, and appealed to the Blackstone Zoning Board of Appeals, all to no avail. They brought an action in Superior Court, which ruled that the 2000 Superior Court judgment had conclusively determined that historic lot 48 was not a separate, buildable lot and that the issue could not be re-litigated. The court ordered the building permits revoked and the structure removed.
The Appeals Court affirmed. It first found that the building permit was never valid: the so-called “agreement” by which it had been issued was beyond the scope of the building inspector’ authority, making the permit void from the outset. It dismissed the defendants’ defense of laches because “the secretive and bizarre manner by which [the building inspector] issued this purported building permit justified and made reasonable the resulting mild delay in the Cornells’ raising of a claim.” Finally, the court affirmed the Superior Court’s choice of remedy. While acknowledging that removal of a structure is inappropriate if the landowner can modify the structure or obtain a variance to bring it into compliance with zoning, that was not the case here. Here, the landowner built despite notice of a nonconformity, opinions of town counsel, and the adverse 2000 judgment. As a result, the defendant “acted at his own peril, and he cannot request an opportunity to cure the nonconformity of his use which he did not cure prior to being construction”.
Cornell v Michaud, 947 N.E. 2d 1138 (Mass. Ct. App. 5/31/2011).
The opinion can be accessed at: http://masscases.com/cases/app/79/79massappct607.html
Hat Tip to Robert Foster of Rackemann, Sawyer and Brewster for including this summary in the 2011 ALI-ABA Land Use Institute in Boston last month.
See his MA land use blog here: http://www.massachusettslandusemonitor.com
