Richardson v. Board of Appeals of Chilmark
Richardson v. Board of Appeals of Chilmark
Opinion of the Court
The following undisputed facts lead us to conclude that, although “difficult questions concerning adequacy of notice may arise at the margins,” Connors v. Annino, 460 Mass. 790, 798 n.10 (2010), Carlin had constructive notice of the issuance of the permit on September 11, 1999. By that time, Carlin had hired an attorney, Daniel Larkosh, to assist with her opposition to the proposed construction on Cohen’s property.
These undisputed facts establish Carlin’s awareness of Cohen’s intention to begin construction on his property as soon as possible. We are satisfied that she possessed evidence more than “sufficient to place on [her] a duty of inquiry” into the building permit’s issuance on September 11, 1999. Gallivan v. Zoning Bd. of Appeals of Wellesley, supra at 859. Construction began in the fall of 2001. It is undisputed that she first requested revocation of the permit by letters to the town building inspector (the permit granting authority) by letters dated June 20 and September 21, 2004. She then appealed from the building inspector’s inaction to the defendant board on October 8, 2004. The board denied the appeal on December 14, 2004. The appeal to the Land Court followed.
Carlin’s failure to appeal within thirty days of issuance of the permit on September 11, 1999, required the entry of summary judgment in favor of Cohen and dismissal of her complaint. Connors v. Annino, supra at 791. The Land Court judge correctly concluded that Carlin’s subsequent enforcement requests could not resurrect the neglected appeal for which she possessed actual or constructive notice. See Gallivan v. Zoning Bd. of Appeals of Wellesley, supra at 859-860.
Laches. As an independent ground of decision apparent on the record, we find the doctrine of loches applicable to bar Carlin’s appeal.
Improper claim splitting cannot circumvent prejudicial delay. In effect, Carlin has now pursued three judicial actions against the neighboring structure: the 1999 Superior Court suit appealing from the municipal permit for a septic system upgrade; the 2001 Land Court action alleging infringement of her beach access easement; and the present (2005) Land Court challenge to the issuance of the building permit. See generally Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153, 163-164 (1979). Her delay here was unjustified, unreasonable, and prejudicial. See Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45, 49 (1990). Accordingly, as a matter of equity, the doctrine of loches independently justifies summary disposition of Carlin’s appeal. See Myers v. Salin, 13 Mass. App. Ct. 127, 137-140 (1982); Garabedian v. West-land, 59 Mass. App. Ct. 427, 437-438 (2003). Contrast Cornell v. Michaud, 79 Mass. App. Ct. 607, 615-616 (2011) (defendant’s harm was self-inflicted, and not caused by delayed litigation by plaintiffs).
Judgment affirmed.
In testimony in Carlin’s divorce case in California on January 13, 2000, Carlin asked Larkosh, “Are you representing me in attempting to prevent the relocation of a house in front my house at Stonewall Beach [in the town of Chilmark]?” He responded, “That’s correct.”
Laches cannot bar a municipality from the enforcement of its own zoning standards. Cape Resort Hotels, Inc. v. Alcoholic Lie. Bd. of Falmouth, 385 Mass. 205, 224-225 (1982), and cases cited. That rule implements the principle that error or inaction cannot forfeit the public interest embodied in valid health, safety, and welfare provisions
In a private dispute between landowners, in which the municipality has independently represented the public interest, no comparable policy bars one private adversary from assertion of loches against the other in circumstances in which the bar of loches would sustain the municipal determination of the public interest. See Cape Resort Hotels, Inc. v. Alcoholic Lie. Bd. of Falmouth, supra at 224 n.12.
Reference
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- John W. Richardson, trustee in bankruptcy v. Board of Appeals of Chilmark
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