MA Appeals Court Holds Ten-Year Statute of Limitations for Zoning Enforcement Actions Seeking to Compel the Removal of a Nonconforming Structure Applied

This post was authored by Matthew Loeser, Esq.

The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. The Brunos became displeased with the Goethals’ guesthouse expansion and rental use, and complained to the Goethals and town officials concerning the zoning nonconformities and violations. The town zoning enforcement officer denied the Brunos’ request on the basis that the six-year statute of limitations under G. L. c. 40A, § 7, barred enforcement. The Brunos appealed the decision to the Board, which unanimously affirmed on the same statute of limitations grounds, and found the house in nonconformity with the by-law. The Brunos then filed a complaint in the Land Court, which likewise held that the enforcement action was barred by the statute of limitations.

As it pertains to this case, General Laws c. 40A, § 7 provides a statute of limitations for any enforcement action seeking “to compel the removal, alteration, or relocation of any structure” because of a zoning violation. The statute requires these enforcement actions to be brought and recorded either within six or ten years of “the commencement of the alleged violation,” depending on the nature of the violation and the manner in which it arises. Here, the court held that the Brunos were challenging “structural violations” subject to the ten-year statute of limitations. The court further determined that the Goethals’ subdivision did not create an enforceable zoning violation, and the violation was created when the Goethals conveyed Lot 2 to the Brunos in August, 2005. Thus, under the statute, the Brunos were required to commence and record their action within ten years of that date. Here, the Brunos brought their action on May 2, 2014; thus, the court found that it the Brunos effectively recorded their action on April 30, 2015, as they alleged, their claims were not barred. Accordingly, the court reversed and remanded the case for further proceedings.

Bruno v Zoning Board of Appeals of Tisbury, 93 Mass. App. Ct. 48 (3/19/2018)