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Approval of Structural Modification Does Not Protect Unlawful Use of the Property

image credit: Francis Storr

The Massachusetts Appeals Court recently held that the addition of a fire escape under a building permit did not start the 6-year limitations period for enforcement regarding the use of the house.

The house was used as a single-family residence until 2000, when the owners began renting out some of the rooms as apartments.  A town official determined that one of the apartments required a fire escape.  The owners obtained a building permit and installed the fire escape.  The only statement of purpose on the building permit application was “Fire Egress”, and the permit made no reference to multi-family use of the building.

The current owners applied for a special permit and variance for multi-family use.  The zoning board of appeals denied those applications, and in 2015, the town issued a cease and desist letter on the ground that the zoning by-laws do not allow multi-family use.  When the owner did not stop that use, the town sued for injunctive relief.

The owner argued that the complaint was filed nearly 15 years after the fire escape was permitted and installed, far too late under G. L. c. 40A, §7.  That statute states that “if real property has been improved and used in accordance with the terms of the original building permit”, any action “to compel the abandonment, limitation or modification of the use allowed by said permit” must be brought within six years.

In an unpublished decision reversing a superior court ruling, the Appeals Court rejected the homeowners’ argument.  It held that, “because the application, accompanying materials, and permit made no reference to the nonconforming multi-family use, the statute of limitations protection in G. L. c. 40A, §7, does not apply to that multifamily use.”  The statute protected the fire egress – “the use allowed by said permit” – but not the multi-family use of the building.

This case, besides representing a sensible interpretation of the statute, reaffirms the broader point that building and zoning applications must be drafted carefully.

Town of Auburn v. Eagle Property Management, LP, et al. (Docket No. 16-P-1571) (Oct. 30, 2017).

About the Author

Arthur P. Kreiger – Partner

Art has more than 30 years of experience in all types of environmental and land use matters.


Posted In: Zoning

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