Statutes of limitations are a lawbreaker’s best friend. Last month, an amendment to the Massachusetts Zoning Act took effect, making its statute of limitations even friendlier for owners of buildings that violate zoning laws.
Land use law distinguishes zoning nonconformities from zoning violations. “Nonconforming” structures and uses are those that were legal when originally commenced, but would be illegal under current law because of subsequent zoning changes. Section 6 of the Zoning Act protects such “grandfathered” properties, allowing them to continue legally. Property owners can alter or extend nonconforming properties if the local board makes a “finding” that the change will not exacerbate the nonconformity. Such Section 6 findings are easier to obtain than zoning variances.
In contrast, zoning violations involve properties that defy zoning laws at the outset. Building inspectors can prosecute such violations by issuing cease and desist orders, assessing fines and even ordering removal of buildings. However, Section 7 of the Zoning Act provides six-year and 10-year statutes of limitations on such actions. The six-year statute applies only to structures and uses having building permits. If these structures and uses survive for six years without prosecution, they can continue unchallenged.
That is the good news, but there is also bad news. The statute means, in effect, that even though a property has a building permit, it remains subject to enforcement actions for six years if it violates zoning. Therefore, building permits are not conclusive as to whether developments comply with zoning. Because of this peculiarity, astute real estate developers, lenders and investors require expensive legal opinions or title insurance coverage assuring zoning compliance.
The 10-year statute of limitations has issues of its own. Enforcement actions cannot be brought against violating structures after 10 years, even though built without permits. However, the 10-year statute only protects illegal structures, not uses. For example, a building that violates zoning because it is too tall is protected from enforcement actions after 10 years, but an illegal massage parlor in that building is not similarly protected.
Until recently, questions arose when property owners sought to alter or extend violating properties shielded by zoning statutes of limitations. Their properties could not be classified as “nonconforming,” because they broke zoning laws from inception. There was doubt about whether Section 6 “findings” were available for owners seeking to extend or alter those properties. However, this year’s amendment to Section 7 removes this doubt as to 10-year-old structures. The amendment retroactively treats violating structures protected under the 10-year statute as “legally nonconforming” under Section 6. Those structures can be extended or altered by obtaining Section 6 findings instead of variances. The amendment does not similarly benefit illegal uses, or structures protected only under the six-year statute.
A ‘Helpful Guide’
The status of Boston properties is less clear. Unlike the other 350 municipalities in Massachusetts, Boston’s zoning is governed under its own enabling act that offers no statutes of limitation. In theory, Boston’s Inspectional Services Department (ISD) can force removal of buildings that violate the Boston Zoning Code, even if they have existed for decades and were constructed under building permits.
The Appeals Court considered this issue several years ago in Lapidus v. Board of Appeal of Boston. Boston had issued a permit allowing a restaurant with entertainment near Fenway Park in 1972. The city also issued building permits in 1975 and 1978 for the restaurant facility. The restaurant operated unchallenged until 1995, when a disgruntled neighbor complained that the restaurant violated the zoning code. ISD refused to close the restaurant, observing that it had existed since 1972. The board of appeals rejected the neighbor’s challenge as untimely. After losing an appeal in Superior Court, the relentless neighbor turned to the Appeals Court.
While noting the absence of statutes of limitation in Boston’s zoning enabling act, the Appeals Court reasoned that the zoning act governing other cities and towns serves as “a helpful guide” for determining when one may seek enforcement against zoning violations in Boston. The court ruled that because over 20 years had expired since the restaurant secured its original permit, the neighbor’s complaint was time barred.
As of now, outside of Boston, the zoning act not only bars prosecutions of violating structures after 10 years, but also allows changes to those structures under the more liberal standards available to nonconforming properties. In Boston, while it remains unclear whether courts will fully apply statutes of limitations to zoning violations, Lapidus v. Board of Appeal of Boston offers hope of that possibility.
