Posted by: Patricia Salkin | June 15, 2020

MA Appeals Court Reverses Imposition of Fines Due to Improper Notice

This post was authored by Matthew Loescher, Esq.

Plaintiffs, entities owned or controlled by Michael J. Maroney, were the developers of a fifty-lot residential subdivision in the city of Haverhill. Maroney was part way through the subdivision build out, with many of the homes already completed, when City officials stopped issuing the necessary permits for the remaining subdivision lots. The City contended that Maroney had to complete a water pressure booster station before building on the lots in question, and that he had not done so. Following this, Maroney brought this suit in Superior Court, seeking relief in the nature of mandamus to compel the appropriate officials to issue the permits. Maroney began building on several of the lots for which he did not have permits, and the City building inspector issued cease and desist orders, and counterclaimed in this action for civil penalties due to the unauthorized building. A Superior Court judge entered summary judgment for the City on Maroney’s affirmative claims, and granted the building inspector summary judgment on his counterclaims. 

At the outset, the court noted that Maroney was no longer the owner of the property, having lost it through foreclosure. Thus, Maroney’s requests for mandamus and injunctive relief were moot. Furthermore, although Maroney’s complaint contained claims for misrepresentation, breach of contract, and breach of the implied covenant of good faith, Maroney did not pursue those claims on this appeal. As with the requests for mandamus and injunctive relief, however, the declaratory judgment claim was found moot because Maroney no longer had a legal interest to vindicate. 

Next, Maroney did not contest that he violated both the State building code and the City bylaws by building on the lots without the required permits; instead, he challenged the procedure by which the fines were imposed and calculated. The building inspector first issued two cease and desist letters in July of 2015. Those letters did not identify any specific fine amount or state that fines would be imposed for actions that Maroney had taken before the letters had issued.

 The City argued that because Maroney was an experienced builder, he should have known that fines would be imposed when he knowingly proceeded without a building permit, and that strict compliance with the notice requirements for both the State building code and the local bylaws was unnecessary. The court rejected this position, finding the statutory procedures in question served more than a salutary notice function, and were designed to provide not only appropriate notice, but also an opportunity to be heard with administrative efficiency. The judgment that awarded monetary penalties to the City was therefore reversed.

 Maroney v Planning Board of Haverhill, 2020 WL 3165011 (MA. App. 6/15/2020)


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