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17-P-174                                             Appeals Court

  WILLIAM A. BRUNO, trustee,1 & another2 vs. ZONING BOARD OF
                 APPEALS OF TISBURY & others.3


                             No. 17-P-174.

           Suffolk.    November 9, 2017. - March 19, 2018.

                Present:   Meade, Shin, & Ditkoff, JJ.


Subdivision Control, Approval not required, Zoning requirements.
     Zoning, Enforcement, Nonconforming use or structure.
     Practice, Civil, Summary judgment, Zoning appeal, Statute
     of limitations. Limitations, Statute of.



     Civil action commenced in the Land Court Department on May
2, 2014.

     The case was heard by Gordon H. Piper, J., on motions for
summary judgment.


     1   Of the W.A.B. Realty Trust and the L.B. Realty Trust.

     2 Lynne Bruno, trustee of the W.A.B. Realty Trust and the
L.B. Realty Trust.

     3 Jeffrey Kristal, Anthony Holand, Susan Fairbanks, Michael
Ciancio, Neal Stiller, Frank Piccione, and John Guadagno, as
members of the zoning board of appeals of Tisbury; and Samuel
Goethals and Mary Goethals, trustees of the Goethals Family
Trust.
                                                                    2



     Douglas A. Troyer for the plaintiffs.
     Howard M. Miller for Samuel Goethals & another.
     Jonathan M. Silverstein for Zoning Board of Appeals of
Tisbury.


    DITKOFF, J.   The plaintiffs, William A. Bruno and Lynne

Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty

Trust (Brunos), appeal from a Land Court judgment upholding the

denial by the zoning board of appeals of Tisbury (board) of the

Brunos' request to enforce the zoning law against the

defendants, Samuel Goethals and Mary Goethals, as trustees of

the Goethals Family Trust (Goethals).   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.   We conclude that the ten-year

statute of limitations under G. L. c. 40A, § 7 -- which governs

actions to compel the removal of a structure because of alleged

zoning violations -- commenced at the time that the lot

containing the primary house was conveyed, rather than at the

endorsement of the approval not required (ANR) subdivision plan.

As the Land Court judge concluded otherwise, we reverse that

portion of the judgment and remand for further proceedings,

while affirming the judge's denial of the Brunos' request for

attorney's fees and costs from the members of the board.
                                                                     3


    1.    Background.   The Goethals and Brunos separately own

adjoining real property parcels, held in trust, located on

Goethals Way in the town of Tisbury.    The Goethals' property

(Lot 1) and the Brunos' property (Lot 2) formerly comprised a

single parcel (original lot), first purchased by the Goethals

family in or around the 1930's.   The original lot contained a

single-family dwelling when the Goethals purchased it, and they

added a separate garage sometime prior to 1960.

    In 1978, the planning board of Tisbury granted the Goethals

a special permit under the town zoning by-law (by-law) to build

a detached guesthouse on the original lot.    As authorized by the

special permit, the Goethals constructed a guesthouse structure

of approximately 850 square feet in place of the garage.     In or

around 1986, the Goethals performed additional work on the

guesthouse, including the addition of two bedrooms and

increasing the total area to 1,710 square feet.    There is no

evidence that the 1986 addition was authorized by a building

permit.

    On December 19, 2001, the planning board endorsed the

Goethals' plan to subdivide the original lot into two parcels,

Lot 1 and Lot 2, with approval not required (ANR) under G. L.

c. 41, § 81L.   Under the subdivision plan, Lot 1 measured

approximately 12,350 square feet and contained the guesthouse,

and Lot 2 measured approximately 32,200 square feet and
                                                                   4


contained the original single-family dwelling.   Both lots are in

Tisbury's R-25 zoning district, which requires a minimum lot

size of 25,000 square feet for a single-family dwelling, well in

excess of the square feet assigned to Lot 1.4

     Lot 1 and Lot 2 remained in common ownership following the

ANR subdivision, until the Goethals conveyed Lot 2 to the Brunos

by deed dated August 17, 2005, and recorded two weeks later.

Under the terms of the conveyance, the Goethals reserved

easements for their family and guests granting access across a

portion of the Brunos' property to use the beach.   After the

2005 conveyance, the Goethals maintained ownership of Lot 1.

     In 2010, the Goethals converted a television room in the

former guesthouse into a bedroom, bringing the number of

bedrooms to five.   The Goethals did not seek any permits or

authorization for this work.   The lots are subject to the

"Coastal District and Barrier Beach Regulations" (coastal

district regulations) incorporated into the by-law, which limit




     4 As the moniker suggests, an ANR endorsement expresses no
view of town authorities as to the zoning compliance of any lot
proposed by a subdivision plan. Palitz v. Zoning Bd. of Appeals
of Tisbury, 470 Mass. 795, 807 (2015), quoting from Cornell v.
Board of Appeals of Dracut, 453 Mass. 888, 892 (2009) ("ANR
indorsement serves merely to permit the plan to be recorded
. . . and is not an attestation of compliance with zoning
requirements").
                                                                   5


dwellings to three bedrooms and a maximum occupancy of five

persons.

       Since 2006, the Goethals have rented or attempted to rent

their house for up to eight weeks each July and August.    They

have advertised it sometimes as a three-bedroom vacation home

and sometimes as a five-bedroom vacation home sleeping up to ten

guests.

       Apparently displeased with the guesthouse expansion and

rental use, the Brunos complained to the Goethals and town

officials concerning the zoning nonconformities and violations.

In September, 2013, the Brunos submitted a letter to the town

zoning enforcement officer, requesting enforcement of the by-law

prohibiting the presence of a single-family house on an

undersized lot.5   On January 8, 2014, 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, while finding the house in nonconformity with the by-

law.




       The Brunos raise no claim that the 1986 addition is
       5

actionable at this late date.
                                                                     6


     On May 2, 2014, the Brunos filed a complaint and later an

amended complaint in the Land Court pursuant to G. L. c. 40A,

§§ 7 and 17, to annul the board's determination, compel the

removal of the Goethals' house, and award them attorney's fees

and costs.6   On the parties' cross motions for summary judgment,

the judge concluded that the ten-year statute of limitations in

§ 7, rather than the six-year statute of limitations in the same

section, applied.7    The judge then determined that the by-law

violations commenced in 2001 with the ANR subdivision

endorsement -- not the 2005 conveyance and thus that the

enforcement action was barred by the statute of limitations.      We

reverse.

     2.    Standard of review.   We review de novo a Land Court

judge's decision granting summary judgment to a zoning board of

appeals.   Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass.

795, 799 (2015).     On appeal, the issue "is whether, viewing the

evidence in the light most favorable to the nonmoving party, all


     6 The Brunos assert that they recorded their action in the
registry of deeds on April 30, 2015.

     7 The judge also found the Goethals' house in violation of
the by-law and the coastal district regulations. The judge
correctly noted that the Goethals agreed to perform the
necessary work to conform their dwelling to the coastal district
regulations once this dispute is resolved. The Goethals
reaffirmed this agreement at oral argument before this court.
We see no need to address this issue further.
                                                                    7


material facts have been established and the moving party is

entitled to judgment as a matter of law."    Molina v. State

Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

     3.   Statute of limitations.   a.   Enforcement actions.

General Laws c. 40A, § 7, as appearing in St. 1989, c. 341,

§ 21,8 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.    That is the

case here; the Brunos demand nothing less than the removal of

the Goethals' house.

     The statute requires such enforcement actions 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.    Under § 7, the

six-year limitation period applies where the "real property has

been improved and used in accordance with the terms of the

original building permit."   G. L. c. 40A, § 7.    This provision

bars actions against alleged violations to (1) terminate, limit,

or modify the use allowed by a building permit; or (2) remove,


     8 Section 7 was amended in 2016. See St. 2016, c. 184, § 1.
The amendment took effect after the entry of judgment appealed
from here, and did not materially alter the statutory language
discussed infra.
                                                                     8


alter, or relocate a structure authorized by a building permit

and being used in accordance with that building permit.     See

Moreis v. Board of Appeals of Oak Bluffs, 62 Mass. App. Ct. 53,

58-60 (2004).   In contrast, the ten-year statute of limitations

does not depend on the issuance of a building permit.      See id.

at 60.   Rather, it bars actions intended "to compel the removal,

alteration, or relocation of any structure" on the basis of a

zoning violation after ten years, regardless of how the

structure came to be.   See Bruno v. Board of Appeals of

Wrentham, 62 Mass. App. Ct. 527, 535 n.14 (2004), citing Lord v.

Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226, 227-

228 (1991).

     The Brunos contend that they are challenging the use of the

Goethals' house as a residence instead of as a guesthouse, and

thus their action is not subject to any statute of limitations.9

As the judge observed, at least since 2005, there "is, and has

been, a single-family residence on Lot 1.   And a single-family

residential use is allowed of right in this zoning district."

We agree with the judge that the use of the Goethals' house

"constitutes a single family residential use of that lot," and,

     9 This would be so because the ten-year limitations period
does not apply to actions alleging only use violations and
because the six-year limitations period applies only where,
unlike here, the action is challenging a use (or structure)
authorized by a building permit.
                                                                     9


therefore, "the current use is a lawful one."    See Lord, 30

Mass. App. Ct. at 227-228; Moreis, 62 Mass. App. Ct. at 57-59.

    As the judge stated, the Brunos request "nothing less" than

the removal of the house, bringing their suit squarely within

the purview of the statute of limitations in § 7.    To whatever

extent the Brunos request in the alternative an injunction

against all uses of the house, we see no substantive difference

(from the perspective of the statute of limitations) between the

removal of a structure and the total preclusion of its use for

any purpose.   The latter would inevitably require the eventual

removal of the structure all the same.    Either way, as the judge

correctly discerned, the Brunos are challenging "structural

violations" subject to the ten-year statute of limitations.

Bruno, 62 Mass. App. Ct. at 535 n.14.    See Lord, 30 Mass. App.

Ct. at 228 (ten-year limitations period protects structural

alterations made without building permit).

    b.   Commencement of violation.     "It is well settled that

'[u]nder the common-law merger doctrine, when adjacent

nonconforming lots come into common ownership, they are normally

merged and treated as a single lot for zoning purposes.'"

Timperio v. Zoning Bd. of Appeals of Weston, 84 Mass. App. Ct.

151, 155 (2013), quoting from Hoffman v. Board of Zoning Appeal

of Cambridge, 74 Mass. App. Ct. 804, 811 (2009).    The merger

doctrine applies in such circumstances unless "clear language"
                                                                  10


in the zoning ordinance states otherwise, Dwyer v. Gallo, 73

Mass. App. Ct. 292, 298 (2008), as "[t]he 'usual construction of

the word "lot" in a zoning context ignores the manner in which

the components of a total given area have been assembled and

concentrates instead on the question of whether the sum of the

components meets the requirements of the by-law.'"   Carabetta v.

Board of Appeals of Truro, 73 Mass. App. Ct. 266, 270–271

(2008), quoting from Asack v. Board of Appeals of Westwood, 47

Mass. App. Ct. 733, 736 (1999).

    In this case, Lot 1 as proposed in the ANR subdivision in

2001 was in nonconformity with the by-law.   Taken together,

however, Lots 1 and 2 formed a single conforming lot under the

Goethals' common ownership.   The by-law does not specify

anything to the contrary, and the merger doctrine accordingly

applies here; Lot 1 and Lot 2 must therefore be viewed as a

single conforming lot until the 2005 conveyance, regardless of

the prior ANR subdivision.

    Zoning violations created by ANR subdivisions, moreover, do

not commence for enforcement purposes until the subsequent

conveyance of a lot.   "Zoning violations arising from

nonconformities may be stayed by the doctrine of merger, 'which

treats adjacent lots currently in common ownership as a single

lot for zoning purposes so as to minimize nonconformities.'"

Palitz, 470 Mass. at 800, quoting from Marinelli v. Board of
                                                                  11


Appeals of Stoughton, 440 Mass. 255, 261 (2003).   As a result,

even though the ANR subdivision created nonconforming lots, the

Tisbury zoning enforcement officer could not have pursued an

enforcement action against the Goethals until the time of the

conveyance.   See Palitz, 470 Mass. at 800 ("absent a variance,

alienation of one of the nonconforming properties will result in

realization of the zoning violations by the new owner" [emphasis

supplied]).   See also Carabetta, 73 Mass. App. Ct. at 271 n.10

(conveyance severing common ownership "demerged" adjacent lots,

and resulted in purchase of nonconforming lot subject to

enforcement).

    The statute of limitations in § 7 applies as equally to

town enforcement actions as it does to private lawsuits.   If we

construed the statute of limitations as commencing upon the ANR

endorsement, any property owner could obtain an ANR endorsement

for a subdivision plan and then wait ten years to separate the

lots, thus creating nonconforming lots without any opportunity

for the town to enforce its zoning by-law.   Our construction, by

contrast, allows the town ten years after the lots are separated

to enforce its zoning by-law, consistent with the Legislature's

intent.

    The 2001 ANR subdivision did not create an enforceable

zoning violation; such a violation was created only when the
                                                                    12


Goethals conveyed Lot 2 to the Brunos in August, 2005.10    Under

§ 7, the Brunos were required to commence and record their

action within ten years of that date.    The Brunos brought their

action on May 2, 2014.   If they effectively recorded their

action on April 30, 2015, as they claim,11 their claims are not

barred by § 7.   Accordingly, we reverse and remand for further

proceedings.12

     4.   Attorney's fees and costs.    There is no basis for the

assessment of attorney's fees and costs against the board

members in this case.    General Laws c. 40A, § 17, inserted by

St. 1975, c. 808, § 3, provides that "[c]osts shall not be

allowed against the board or special permit granting authority

unless it shall appear to the court that the board or special

permit granting authority in making the decision appealed from


     10Because it is unnecessary for our result, we leave
unresolved the issue whether a zoning violation, realized upon
conveyance, commences at the date of the deed or at the time of
its recording.

     11 Whether the commencement of the suit was properly
recorded is disputed and must be determined by the Land Court on
remand.

     12Of course, even if the recording issue is decided
favorably to the Brunos, removal orders "do not necessarily
follow every determination of a zoning violation." Sheppard v.
Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 405
(2012). Rather, a court may consider equitable factors and the
potential availability of alternative remedies. See Steamboat
Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass. App. Ct.
601, 606 (2007).
                                                                   13


acted with gross negligence, in bad faith or with malice."

Generally, there can be no finding of bad faith in the absence

of evidence of improper motives, harassment, or causing needless

delay or unnecessary cost.   Sheehan v. Zoning Bd. of Appeals of

Plymouth, 65 Mass. App. Ct. 52, 61-62 (2005).

    Here, the record does not show any harassment or delay, nor

negligence of any kind on the part of the board.    The Brunos'

allegations of bad faith and gross negligence are without merit,

if not frivolous, and the judge properly denied their request

under § 17.

    5.   Conclusion.   The ten-year statute of limitations under

G. L. c. 40A, § 7, commenced no earlier than August 17, 2005.

So much of the judgment granting the Goethals' motion for

summary judgment is reversed, and the case is remanded for

further proceedings consistent with this opinion.   So much of

the judgment as denies attorney's fees and costs against the

board members under G. L. c. 40A, § 17, is affirmed.

                                   So ordered.
