Abutters face procedural disadvantages in trying to challenge building inspectors’ decisions regarding illegal construction.

The following scenario is not uncommon in Massachusetts: An abutter awakens one morning to find a building under construction next door. The building violates local zoning regulations. The abutter notifies the building inspector of the violation, but learns that a building permit was issued despite the zoning violation. The abutter decides to halt the construction.   

The abutter’s first instinct may be to run to the nearest courthouse for an injunction stopping the construction. But the Massachusetts Zoning Act requires that before going to court, abutters must file an enforcement request with the same building commissioner that issued the building permit.  

If the building inspector does not act to enforce the zoning regulation, the abutter may appeal to the local board of appeals within 30 days. If the board of appeals denies the appeal, then – and only then – can the abutter turn to the courts. 

Even if the court rules in favor of the abutter, the court’s judgment can be appealed to the Appeals Court and the Supreme Judicial Court. After all of this, the abutter might eventually secure a final judgment annulling the decisions of the building inspector and the board of appeals.  

But under these circumstances, building inspectors and boards of appeals are sometimes unmotivated to enforce the zoning regulation and compel the removal of the new building. The board of appeals may even grant a variance allowing the building. Either way, the aggrieved abutter then must start the time-consuming appeal process over again. Joseph Bylinski of the central Massachusetts town of Douglas has spent the last 12 years down this rabbit hole. 

An Undersized Lot 

Louis Tusino owned a vacant lot next door to Bylinski. Although Tusino’s lot lacked sufficient frontage and area, the Douglas building commissioner issued a building permit in 2008 for a new house on the undersized lot. 

Bylinski filed an enforcement request with the building commissioner, seeking revocation of Tusino’s permit. The building commissioner refused Bylinski’s request. Bylinski appealed to the town Zoning Board of Appeals, which allowed 100 days to lapse without deciding the appeal, resulting in automatic revocation of Tusino’s building permit. Bylinski then sued the building commissioner in Land Court, to compel enforcement of the zoning bylaw against Tusino.   

Meanwhile, Tusino continued construction undaunted, completing the house in 2012. Tusino applied for a variance, which the ZBA denied.   

The Land Court dismissed Bylinski’s suit in 2014, because Bylinski had not filed a second enforcement request with the building commissioner as required under the Zoning Act. Bylinski then filed his second enforcement request with the building commissioner, who predictably refused it. On Bylinski’s appeal, the ZBA issued a demolition order. Tusino appealed the demolition order in District Court without success. Nevertheless, Tusino’s house remained standing. 

A Cautionary Tale 

Bylinski revived his Land Court suit in 2017, seeking court orders that Tusino demolish the house, and that the building commissioner make sure of it. The Land Court issued the requested demolition order against Tusino, but made no decision as to the building commissioner. Tusino appealed. 

In April, the Appeals Court vacated the Land Court’s demolition order for procedural reasons in (BEG ITALICS)Bylinski v. Building Commissioner of Douglas(END ITALICS). It noted that Bylinski revived the previously dismissed Land Court action to compel the demolition, instead of filing a third enforcement request with the building commissioner. According to the Appeals Court, building inspectors and boards of appeals can enforce zoning bylaws in court without first exhausting administrative remedies to enjoin zoning violations, but abutters cannot do so. Also, abutters have no private cause of action to directly enforce zoning regulations. 

Instead, abutters such as Bylinski, who want enforcement of zoning regulations, must follow the steps required by statute; namely, filing enforcement requests with the unresponsive building inspector, appealing to the ZBA, and only then filing an appeal with the Land Court or Superior Court. Bylinski did not follow these necessary steps in his revived Land Court lawsuit.   

Christopher Vaccaro

In vacating the Land Court’s order, the Appeals Court offered some guidance. First, the Land Court must consider Bylinski’s request for an order requiring the building commissioner to enforce the demolition. Second, Bylinski may pursue administrative remedies with the building commissioner and board of appeals a third time, to get the building commissioner to order the demolition. Third, Bylinski may seek to revive the District Court action affirming the demolition order against Tusino. 

After 12 years of legal wrangling, Tusino’s house continues to stand and the litigation remains unresolved. This is a cautionary tale for abutters hoping to stop construction that violates zoning. Without the local building inspector’s cooperation, they might encounter years of frustration with few results. 

Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.