More on revoked building permits

By Henry J. Lane 
Attorney, Lane & Hamer, LLC

Several months ago some controversy arose over the revocation of a building permit for a billboard along Route 395 in Webster. Although many people assume that the issuance of a building permit protects the applicant from future surprises concerning the legality of the proposed work and don’t consider the possibility that the building official may have made a mistake and that the revocation of a building permit is possible, two recent cases highlight the issue.

The first case which recently made the news concerns a beach front home in the town of Truro on Cape Cod. In the Truro case a wealthy businessman owned a small cottage on a nine acre parcel of land in the dunes made famous by the paintings of Eric Hopper. The lot was not located on a public way and could only be reached by a narrow dirt road through the dunes and therefore did not qualify as a buildable lot. Nevertheless the owner decided to build a very large contemporary style home on the property and applied for a building permit on the theory that the new house was an alteration or reconstruction of the cottage, although it was to be located about 200 feet away from the original cottage. The building inspector accepted the argument and issued the permit.

The neighbors appealed to the zoning board of appeals which agreed with the building inspector and upheld the issuance of the building permit. The neighbors filed a new appeal with the Land Court but since the building permit was still valid, the land owner went ahead and began construction of the new home. The case took about three years to wend its way through the Land Court and the Massachusetts Appeals Court, but last summer the Appeals Court decided that replacing a small cottage with a 6000-8000 square foot house did not qualify as an alteration or reconstruction. Despite the court decision, with the house now complete, the neighbors decided to drop their opposition and withdrew their request that the building permit be revoked. Nevertheless, recent news reports indicate that even though the neighbors have dropped their opposition to the house, the building inspector himself has now ordered the house to be demolished. Since the courts ruled that the building permit was improperly granted and violated the town’s zoning bylaws, the municipal officials apparently decided that justice requires that the zoning by-laws be enforced as a matter of fairness, whether the neighbors complained or not.

The second case arose more locally. In 2008, the building official in the town of Douglas issued a building permit for the construction of a new house on a very small lot on the shore of Wallum Lake. Although the permit was issued in 2008, construction did not begin until 2009. As soon as construction started, a neighbor advised the building official that the lot had less than 10 percent of the required area for a new home and requested that the permit be revoked. A few days later, without giving any rationale for giving a building permit for a significantly undersized lot, the building official refused to revoke the permit. The neighbor appealed to the Douglas Zoning Board of Appeals which held hearings but did not issue a timely decision. In June of 2009, the Board’s failure to make a timely decision resulted in a revocation of the building permit.

However, despite the fact that the building permit had been revoked, the builder continued to build, with the acquiescence of the building department which refused to order construction to stop and actually issued a permit for electrical work to be performed in the now illegal building. The builder appealed the revocation of the building permit to the Superior Court arguing that the request for the revocation of the building permit was too late and that the zoning board improperly failed to make a decision. Unfortunately for the builder, on January 31, 2012, the Superior Court decided that the neighbor’s request was timely, that the lot was undersized and that the building permit was properly revoked. Since all of the appeals are not exhausted, time will tell if the building permit revocation will stand. Time will also tell if the Douglas building department, like the building officials in Webster and Truro, will decide that enforcing the zoning by-laws in an evenhanded manner is more important than refusing to admit that mistakes were made.