Posted by: Patricia Salkin | May 11, 2014

MA Appeals Court Finds Appeal Time-Barred and Objecting Neighbors Had Constructive Notice and Failed to Satisfy Their Duty of Inquiry

Dias proposed to divide his land into six lots with access to lots 1-3 via a common driveway that already serviced one of his lots as well as the lots of two of his neighbors including Miles-Matthias. Dias’s plan was endorsed by the Town’s planning board as an approval-not-required plan (“ANR”) pursuant to Massachusetts statutory law, G.L. c. 41, § 81P. Dias then applied to the Town’s building commissioner for authority to install the common driveway extending from Ledge Drive to service lots 1-3. Upon learning of Dias’s application to the building commissioner, Miles-Matthias voiced opposition to Dias’s proposed use of the common driveway, speaking to the building commissioner on a frequent basis.

On March 26, 2010, the building commissioner mailed her decision to Dias approving the common driveway as a permissible means of access to lots 1-3, and as an accessory use under the Town’s zoning by-law. On April 14, 2010, Miles-Matthias learned of the building commissioner’s decision and requested a written copy, which they received on April 19, 2010. On May 3, 2010, they appealed the building commissioner’s decision asserting that the proposed common driveway was not a permissible accessory use under the Town’s zoning by-law. The zoning board upheld the building commissioner’s decision and Miles-Matthias appealed.

MA statute provides that a party aggrieved by a building commissioner’s determination must file the appeal within 30 days of the decision. Since the building commissioner issued her decision on March 26, 2010, Dias contended that the appeal had to be filed no later than April 25, 2010, and that therefore the May 3rd filing was not timely. The trial judge disagreed and overturned the zoning board’s decision. Dias appealed.
The appeals court reversed, and held that appeal was untimely. The court found that the 30-day period began to run when the building commissioner issued her decision to approve the driveway on March 26, 2010. The court noted that Miles-Matthias received actual notice on April 14, 2010, and therefore arguably still had 11 days to appeal within the required 30 days (counting the 30 days starting from the March 26 issuance of the decision). The court continued that, even if it accepted the argument that 11 days of actual notice was insufficient, they had adequate constructive notice to timely file an appeal. The court explained that “[a]dequate notice may be actual or constructive.” The court said a party has constructive notice when the evidence “is ‘sufficient to place on [that party] a duty of inquiry’ regarding the … permit.” Here, the court found there was constructive notice from early 2010, when they first learned that Dias had requested a zoning determination. The court also noted that since Miles-Matthiass failed to inquire about that determination after March 12, they “failed to satisfy their duty of inquiry.”

Miles-Matthiass v Zoning Board of Appeals of Seekonk, 2014 WL 503593 (MA App. 2/11/2014)

The opinion can be accessed at:

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