by Attorney Henry J. Lane
Lane & Hamer P.C.
Recent media coverage of the aggressive efforts of Webster's code enforcement officials to bring property into compliance with local building and zoning regulations, dovetailed nicely with the latest episode in the saga of the Route 395 billboard.
On January 10, 2013, the Worcester Superior Court concluded its hearings on motions for summary judgment in the ongoing dispute concerning the billboard along Route 395 on the Long Subaru property. The focus of the legal argument is the question of whether or not the Town is prevented from attempting to enforce the height restriction in its zoning by-laws in view of the fact that the issue was not raised when the Building Inspector originally questioned the construction of the billboard. At that time, the Building Inspector questioned whether or not the billboard was located in a commercial area as required by the zoning by-laws. The matter was presented to the Zoning Board of Appeals which concluded that the billboard was located in a commercial area and complied with local requirements
No one appealed from that Zoning Board of Appeals decision about the commercial use and the matter appeared closed until a new Building Inspector conducted what he characterized as a "final inspection." Upon completing the final inspection, the new Building Inspector determined that the billboard was 85 feet in height and, therefore, exceeded the four story limitation included in the zoning by-laws. That decision was also appealed to the Zoning Board of Appeals which through some procedural confusion upheld the decision of the Building Inspector.
The billboard company appealed to the Worcester Superior Court from the determination that the billboard exceeded the applicable height restriction. As indicated, the primary argument by the billboard company is that the Zoning Board of Appeals had already determined in the first hearing that the billboard complied with the zoning by-law requirements and that, since no one appealed from that decision, it had become final. The Town, on the other hand, argued that zoning by-laws can always be enforced, subject only to a six (6) year statute of limitations. The Town further argued that enforcement of the zoning by-laws cannot be forfeited by an oversight or an inadvertent error by a building official.
A somewhat technical collateral issue concerned whether or not the Building Inspector even had the ability to appeal from the first decision by the Zoning Board of Appeals because only persons "aggrieved" by a decision of the Zoning Board can appeal from its decision. Therefore, the argument goes, since the Building Inspector was not "aggrieved" by the Zoning Board decision, he did not have a right to appeal and therefore, should not be foreclosed from new enforcement action.
The discussion of the potentially" aggrieved" Building Inspector resulted in the one moment of levity during the hearing. In addressing the question of whether or not the Building Inspector had been "aggrieved" by the Zoning Board's initial decision, Judge Richard Tucker, who was hearing the case, reflected on an unrelated Appeals Court decision written by the legendary Associate Justice Rudolph Kass. With his usual wry wit, Justice Kass opined that the nature of a building inspector's work is "to give grief, not suffer it."
Although some of the property owners that are the subject of the current code enforcement efforts might agree with Judge Kass's characterization of a building inspector's duties, it is not entirely clear that the nature of the job precludes a building inspector from being an "aggrieved" person for the purposes of administrative zoning appeals. In any event, as is commonly done, at the conclusion of the hearing on January 10, 2013, Judge Tucker took the matter under advisement and is expected to issue a ruling within the next several months.