Assessing Civil Penalties for Violating Zoning Bylaws or State Building Code: Appeals Court Says to Adhere Closely to the Correct Process Featured

Written by ========
Haverhill City Hall Building Haverhill City Hall Building

A June 15, 2020 opinion of the Massachusetts Appeals Court reminds building inspectors and other municipal officials of the trilogy of remedies to assess money penalties for zoning and building code violations and to be sure to follow the proper procedures. There are lessons as well for any local officials who have been given the power to issue citations using the non-criminal disposition procedures of G.L. c 40, § 21D. The Appeals Court’s decision is Michael J. Maroney, Trustee et al v. Planning Board of Haverhill et al, 19-P-566, 97 Mass. App. Ct. 678 (2020).

The Appeals Court ruled that the City of Haverhill did not use correct procedures to seek monetary fines for violating a zoning ordinance or bylaw. The Appeals Court looked to Burlington Sand & Gravel v. Harvard, 31 Mass. App. Ct. 261, 265 (1991) which ruled that the Zoning Act does not specify any process because the Legislature did not intend to authorize imposition of civil penalties for violations of zoning bylaws and ordinances, and, in fact, provided only for injunctive relief.

The Appeals Court noted that Burlington Sand & Gravel v. Harvard established the procedures for a municipality to impose monetary “fines”, or, really, criminal penalties for zoning violations: by initiating a criminal proceeding through either filing a complaint in District Court or seeking an indictment in the Superior Court under G.L. c. 40, § 21 (providing for assessment of criminal penalties for violation of a local bylaw or ordinance). Also, if the municipality has adopted so-called G.L. c. 40, 21D providing for noncriminal disposition by issuing citations, then that is a third method available that begins as a civil matter but can become a criminal matter if the violator does not pay the amount specified in the 21D citation or “ticket” issued to him or her.

Here, the Appeals Court ruled that Haverhill’s filing of a counterclaim in a civil action brought by the alleged offender was not a permitted way to seek fines for violating zoning laws. The Court also ruled that the Building Inspector’s cease-and-desist letters lacked the jurisdictional and notice provisions to use 21D, so were not proper notices under that statute.

Additionally, the Appeals Court held that the City failed to follow the procedures under G.L. c. 148A, § 2 to impose civil penalties for violations of the State Building Code as an alternative to initiating criminal proceedings. Under the proper procedure:

  • The notice of violation must specify the offense charged and the time and place of the violation;
  • The notice must include a schedule for assessment of fines;
  • For a continuing violation, the notice must indicate that it must be corrected within 24 hours;
  • The alleged violator must return the notice to the municipal hearing officer and, within 21 days, either pay the full assessed fines or request a hearing before the municipal hearing officer.

The Appeals Court noted that the purpose of these procedures, like those for violation of zoning bylaws and those in c. 40, § 21D, is to give adequate notice of the violation and the amount of any proposed fine, as well as provide for a relatively efficient administrative process to either pay the fine or dispute it and obtain a hearing.

The Appeals Court found that the Building Inspector’s cease-and-desist letters to the plaintiff did not identify any amount of fine or state that fines would be imposed for work done prior to the date of the letters. These letters only spoke of fines being imposed if work continued on residential lots for which the plaintiff, a developer, lacked permits. The City withheld permits for these lots because it maintained the plaintiff had agreed to build, prior to starting work, a water pressure booster station in his residential subdivision.

The developer commenced a civil action in Superior Court to force the City to issue the permits, alleging he had to build the water booster station later, prior to occupancy rather than prior to construction.

Sometime after suit, the City Building Inspector filed a counterclaim for fines pursuant to the State Building Code and Haverhill’s zoning ordinances. The motion judge granted summary judgment to the City and then held a hearing on monetary amounts. The City sought fines of $1,000 per violation of the State Building Code (per day, per lot) and fines of $300 per day of violation of the zoning ordinance. Notably, the City sought amounts only for violations on days before its letters ordering the developer to stop work or use of a maintenance building.

After dismissing the plaintiff’s claim for declaratory judgment for lack of standing because he no longer owned the development (having lost it through foreclosure), the Appeals Court addressed his challenge to the fines, mainly on the basis that the City had not followed proper procedures to impose and calculate the fines.

The Appeals Court acknowledged that “the result here is unappetizing,” since the City could have followed the correct procedures. It also left for another day the questions of whether, and how, monetary penalties could be imposed for past conduct on a daily basis and for how far into the past, though surmised that it can be done because “A person should not be able to violate the State building code and local bylaws without risk of civil penalty, so long as they fall into line once they are caught.to encourage compliance with the local zoning bylaws and State Building Code.”

Officials charged with enforcing local zoning requirements who wish to do so by imposing monetary sanctions in addition to or instead of injunctive relief should be sure to adhere to either of the two main routes available. A third route is available if the municipality has adopted the non-criminal disposition authority under G.L. c. 40A, § 21D in which specified officials issue citations or “tickets” for relatively small but effective amounts. Similarly, officials seeking civil penalties for violations of the State Building Code must sure to follow the correct procedures.

Read 805 times Last modified on Thursday, 11 February 2021 14:03
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Senior Associate of the Firm. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

View Attorney Steven's Case List >>