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October 4, 2021

Legal Update
Dylan Sanders

Landowners Seeking Relief for a Neighbor’s Zoning Violations Can Reset the Deadline for Appeal by Making Subsequent Requests for the Same Relief, Court of Appeals Says

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In a decision with significant ramifications for landowners, the Massachusetts Court of Appeals effectively ruled that aggrieved property owners can get around the deadline for appealing the denial of a zoning enforcement request by filing a subsequent request that resets the clock.

The ruling in Fisher v. Presti Family Limited Partnership gives individuals not one, not two, not three, but a theoretically infinite number of bites at the apple despite a 30-day statutory limit on requesting relief from a zoning board of appeals.

Multiple Letters With the Same Complaints

In Fisher, the plaintiff sent letters in April 2017 and May 2017 to Craig Martin, her town’s building commissioner and zoning enforcement officer, alleging a host of zoning bylaw violations by Presti, owner of a neighboring property. In those letters, she requested that the officer take action to stop these alleged transgressions. Martin sent a letter to Fisher on May 26 denying her request and providing the reasons for his decision.

Under Massachusetts law, specifically G. L. c. 40A, § 8, Fisher had 30 days from the date of Fisher’s May 26 letter to appeal his decision to the zoning board of appeals.

Fisher did not file an appeal of that letter. Instead, she wrote to Martin again on June 8, 2017, repeating her various complaints about the uses of Presti’s property and identifying several new issues she claimed required enforcement action. Martin responded in writing on June 30, 2017, again denying her request and stating that “[i]f in the end you do not accept my conclusions you may file an appeal with the [z]oning [b]oard of [a]ppeals.

On July 31, 2017, Fisher appealed Martin’s June 30 denial of zoning relief to the board, as well as a subsequent denial from Martin dated August 7, 2017, in which he provided specific reasons for his decision not to issue a cease and desist order as requested.

After a hearing on both appeals, the board issued a detailed decision in which it affirmed in part and reversed in part Martin’s denials of Fisher’s requests for zoning enforcement. Fisher appealed the board’s decision to the Land Court, where Presti moved to dismiss on the grounds that Fisher’s appeals to the board were untimely.

The Land Court judge concluded that Fisher’s April 7 and May 22 letters were zoning enforcement requests and that Martin’s May 26 letter in response was an appealable decision as to those requests. Accordingly, the judge ruled that Fisher’s subsequent letters to Martin could not, in essence, revive or extend the appeals period and concluded that the appeals were untimely, and the board’s decision was a nullity.

Subsequent Decisions Addressing the Same Issues Restart the Appeals Clock

The Court of Appeals reversed, holding that Fisher’s subsequent letters seeking similar zoning enforcement effectively allowed her to bypass her failure to timely appeal from the May 26 letter.

The Court noted that the law placed “no express statutory limitation on when [an] enforcement request need be filed.” This made sense, according to the Court, because “uses of real property may evolve or change over time, and an aggrieved person may not know of the precise contours, extent, or even existence of all uses of property at the same point in time, and because towns have an ongoing interest in the use of property within their boundaries.”

After finding “nothing either in our case law or in c. 40A that forecloses multiple or successive requests for zoning bylaw enforcement by different aggrieved persons,” the Court concluded that “nothing prevented Fisher from renewing her requests for zoning enforcement as to ongoing use of Presti’s property, and she was entitled to appeal within thirty days from Martin’s denials of those subsequent enforcement requests.”

For those with complaints about neighboring property owners’ alleged violations of zoning ordinances, the Fisher decision allows them to continue their quest for relief even after missing the deadline on an appealable decision. For landowners on the receiving end of such complaints, the ruling means they cannot slam the door on them as quickly and definitively as they would like.