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7 Statute of Limitations Begin to Run Upon Realization of a Zoning Violation

A Tale Of Two Adjacent Lots

Like most matters, a property owner’s request for enforcement of a municipality’s zoning bylaw is subject to a limitation period. Recently, in Bruno v. Zoning Bd. of Appeals of Tisbury, 93 Mass. App. Ct. 48 (2018), the Appeals Court had an opportunity to analyze the interplay between the statute of limitations contained in the Zoning Act, G.L. c. 40A, § 7, and the endorsement of an approval not required (ANR) plan showing zoning violations. Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

The Basics
The Bruno case involves the interaction of fundamental zoning principles and reached a conclusion that is logical based upon these maxims, but which had not yet been explicitly decided in the Commonwealth. These principles include:

• Statute of Limitations. A statute of limitations bars claims after a specified period by establishing a time limit for suing in a civil case, based upon the date when the claim accrued. The Zoning Act, G.L. c. 40A, contains statute of limitations in § 7. While overly simplistic, there are three applicable limitations for enforcement in the Zoning Act: for structures built pursuant to a building permit, 6 years; for structures not built pursuant to a building permit, 10 years (which structures are now deemed to have “grandfathered” status and constitute legally nonconforming buildings); and for uses pursuant to a building permit, 6 years. Notably, there is no limitations period relative to an unauthorized use that is not identified in a building permit, and an action to enforce a violative use may be brought at any time.

• ANR Plan. An ANR plan is a plan showing division of a property that does not require approval under the subdivision control law. The plan is submitted to a municipality’s planning board and, if approval is not required under the subdivision control law, the planning board must endorse the plan. A planning board’s review of such plan is limited to whether the plan shows a subdivision – it does not look at the zoning compliance of the resulting lots as that is beyond the board’s purview. While a planning board’s endorsement of an ANR plan may be appealed, such appeal concerns only whether the planning board’s determination as to whether the plan is entitled to endorsement was proper.

• Doctrine of Merger. The common law doctrine of merger provides that adjacent nonconforming lots held in common ownership shall be treated as “merged” as a single lot for zoning purposes. The underlying objective of the doctrine is to reduce nonconformities. An example may be helpful. A residential zoning district requires lots to have a minimum size of 40,000 sq. ft. I own two adjacent lots, each containing 20,000 sq. ft. For zoning purposes, those lots will be treated as a single, merged lot.

The Case
In Bruno, the defendant property owners and their family owned a parcel in Tisbury on Martha’s Vineyard. In 2001, the property owners obtained endorsement of an ANR plan, which divided the parcel into two adjacent lots – Lot 1 and Lot 2. Lot 1 contains an accessory structure that had been permitted for use as a guest house, and Lot 2 contains the main single-family structure. While the ANR plan proposed to divide the original parcel into two lots, which would result in certain dimensional violations of the zoning bylaw, the owners continued to hold the lots in common ownership. Indeed, after 2001, the property owners figuratively put the endorsed ANR plan in a drawer and took no further action with respect thereto. In 2005, and after the passage of four years, the defendant property owners then sold Lot 2. Subsequent thereto, in or around 2013, the plaintiffs became aware of the zoning violations and sought enforcement. Enforcement was denied, and affirmed by the zoning board of appeals, on the basis that the enforcement was untimely.i

On appeal to the Land Court pursuant to G.L. c. 40A, § 17, the Court considered a novel issue: whether the 10-year statute of limitations for zoning violations shown on an ANR plan commenced running upon endorsement of the ANR plan or upon alienation of one of the lots, resulting in realization of such violation. The Court held that, as the enforcement request was not initiated until 2013 – more than 10 years after the endorsement of the ANR plan – it was time-barred. The Court reached such conclusion on the basis that “in the eyes of the law, there were … violations in existence starting when the ANR plan was endorsed.”

On appeal, the Appeals Court reversed that portion of the Land Court’s decision relating to the 10-year statute of limitations, holding 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.” In reaching this conclusion, the Appeals Court relied upon the common law doctrine of merger and determined that “Lot 1 and Lot 2 must therefore be viewed as a single conforming lot until the 2005 conveyance, regardless of the prior ANR subdivision.”

As pointed out by the Court, not only was the decision logical in light of the applicable doctrines, but it also preserves the interests of neighboring property owners. “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.”

i The municipality relied upon the 6-year statute of limitations in § 7, which was indisputably erroneous.

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