The Appeals Court has affirmed a Superior Court judgment ordering that a house built in violation of both zoning and a previous Superior Court judgment be torn down.  In Cornell v. Michaud (pdf), the defendant Michaud owned several parcels on Harris Pond in Blackstone, Massachusetts.  Some of the lots had been reconfigured and been granted a variance with conditions.  The defendant and his son did not fully comply with those conditions, which led to a final 2000 judgment in Superior Court.  The 2000 judgment stated that the nonconforming use of what was called “historic lot 48” had been abandoned and that all future uses must comply with zoning.

Despite the 2000 judgment, the defendant in 2005 reached an “agreement between the parties” with the town building inspector and obtained a building permit for a house on historic lot 48.  When the defendant began construction, the plaintiffs – abutters to historic lot 48 – complained to the town, filed an enforcement request under M.G.L. c. 40A, § 7, and appealed to the Blackstone Zoning Board of Appeals under M.G.L. c. 40A, §§ 8 and 15, all to no avail.  They eventually brought an action in Superior Court.  After trial, the Superior Court ruled that the 2000 Superior Court judgment had conclusively determined that historic lot 48 was not a separate, buildable lot, and that the issue could not be re-litigated.  The court ordered the building permits revoked and the structure removed.

The Appeals Court affirmed.  It first found that the plaintiffs’ Superior Court action was timely.  The rule of Gallivan v. Zoning Board of Appeals of Wellesley (pdf) (requiring appeals of some building permits to be brought within 30 days) did not apply, the court said, because the building permit was never valid:  the so-called “agreement” by which it had been issued was beyond the scope of the building inspector’s authority, making the permit void from the outset.  Since the permit was “an unenforceable nullity,” it was not a valid order or decision subject to the 30-day appeal period in section 8.  Therefore, the plaintiffs properly relied on section 7, which provides a six-year window for bringing enforcement actions.

The Appeals Court had little trouble affirming the plaintiffs’ standing and dismissing the defendants’ defense of laches.  Laches was particularly inapt, the court noted, because “the secretive and bizarre manner by which [the building inspector] issued this purported building permit justified and made reasonable the resulting mild delay in the Cornells’ raising of a claim.”

Finally, the Appeals Court affirmed the Superior Court’s choice of remedy.  While acknowledging that removal of a structure is inappropriate if the landowner can modify the structure or obtain a variance to bring it into compliance with zoning, that was not the case here.  Here, the landowner built despite notice of a nonconformity, opinions of town counsel, and the adverse 2000 judgment.  As a result, the defendant “acted at his own peril, and he cannot request an opportunity to cure the nonconformity of his use which he did not cure prior to beginning construction.”

The lesson of Cornell v. Michaud may be harsh, but it is clear.  If a landowner insists on building in knowing violation of zoning requirements, he or she does so at risk.  If the construction is challenged, “sorry” is not a defense.