Section 7 of Chapter 40A contains a statute of limitations for actions by individuals and municipalities to compel the removal, alteration, or relocation of any structure due to a zoning violation.  In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court considered when the statute of limitations commences based on a zoning violation arising from an ANR (Approval Not Required) subdivision of land.

The Goethals owned a large lot with a single family home and guesthouse.  In 2001, the local planning board endorsed the Goethals’ plan to subdivide that lot into two parcels and, for a time, the Goethals retained both Lots.   Their guesthouse was on Lot 1 and a single family home was on Lot 2.  Lot 1 is about 12,000 square feet, whereas zoning requires a minimum lot size of 25,000 square feet for a single family home.

In August 2005, the Goethals sold Lot 2 to the Brunos.  The Goethals retained Lot 1, later improved the guest house on that Lot (allegedly in violation of zoning) and rented it out as a vacation home.   The Appeals Court agreed that, since at least 2005, there has been a single family residential use of Lot 1.

The case arose from the Brunos’ attempt to compel the Zoning Board of Appeals to order the removal of the Goethals’ house or, in the alternative, to obtain an injunction against all uses of that house–which “would inevitably require the eventual removal of the structure all the same.”  The ten-year statute of limitations in Section 7 applies to actions intended “to compel the removal, alteration, or relocation of any structure” on the basis of a zoning violation (a six-year statute of limitations applies to actions concerning structures authorized by a building permit and being used in accordance with that permit or the use authorized by a building permit).

The issue was whether the ten-year statute of limitations began to run in 2001, as a result of the ANR endorsement that created the undersized lot, or in 2005, when the Goethals conveyed Lot 1.  In adopting the later date, the Appeals Court relied on the rule that, when adjacent nonconforming lots are held in common ownership, they are normally merged and treated as a single lot for zoning purposes.  So, when taken together, “Lots 1 and 2 formed a single conforming lot under the Goethals’ common ownership.”  That land remained a single conforming lot for zoning purposes until the 2005 conveyance.  Before that time, the Tisbury zoning enforcement officer could not have pursued an enforcement action against the Goethals.  Therefore, the statute of limitations did not start to run until they conveyed Lot 1 in 2005 and Lot 2 became nonconforming.

Under Section 7, the Brunos had until August 2015 to file and record their action.  In light of a dispute regarding whether the purported recording of the action in April 2015 was proper, the Appeals Court remanded the case to the Land Court.  The Appeals Court left unresolved whether the statute of limitations clock starts ticking on the date of the deed creating the nonconformity or the date of its recording.

This case provides a useful reminder that the doctrine of merger may complicate a zoning analysis, including with respect to the critical question of whether the statute of limitations bars a zoning enforcement action.