ANNE HALLET v. ZONING BOARD OF APPEALS OF BILLERICA & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-128

ANNE HALLET

vs.

ZONING BOARD OF APPEALS OF BILLERICA & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment entered by a Land

Court judge that dismissed as untimely her G. L. c. 40A, § 7

appeal. We affirm.

Background. In November 2022, the town of Billerica

awarded a bid to the defendant, Habitat for Humanity (Habitat),

to build affordable housing. A building permit was issued by

the defendant building commissioner (commissioner)2 on December

4, 2023. On December 13, 2023, the plaintiff, whose property

1Building commissioner of Billerica and Habitat for
Humanity of Greater Lowell, Inc.

2The defendant is also referred to as the building
inspector, zoning enforcement officer, and the director of
permitting.
abuts the lot, requested that the commissioner enforce the

zoning bylaws pursuant to G. L. c. 40A, § 7, and deny the permit

application due to "insufficient lot area and additional zoning

noncompliance." The commissioner responded by e-mail message on

December 19, 2023, informing the plaintiff that the permit had

been approved and issued on December 4, 2023.

On December 20, 2023, the plaintiff again asked the

commissioner to enforce the zoning bylaws and revoke the

building permit. The plaintiff argued that the lot did not meet

the minimum size to build a single-family home, nor did it meet

the reduced lot size minimum for affordable housing. She

additionally stated that there was no evidence that the lot had

a prior nonconforming use, and therefore, the lot should not be

afforded protection from having to meet these minimum size

requirements. The commissioner responded and informed her that

she could appeal the issuance of the permit to the defendant

zoning board of appeals (board).

On January 11, 2024, the plaintiff appealed to the board.

After a hearing, the board voted to deny the appeal and ruled

that the permit was granted because of a prior nonconforming

use.

The plaintiff filed the instant complaint in the Land

Court, and the defendants moved to dismiss. The judge agreed

that the plaintiff was barred from appealing because she did not

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file a direct appeal to the board within thirty days of the

permit's issuance. This appeal followed.

Discussion. There are two pathways that a party may take

to challenge the issuance of a building permit for violating a

zoning bylaw. See Barkan v. Zoning Bd. of Appeals of Truro, 95

Mass. App. Ct. 378, 384 (2019). "The first is by appealing from

the issuance of the permit to the local board of appeals

pursuant to G. L. c. 40A, § 8." Id. An appeal from a permit

under G. L. c. 40A, § 8, is required to be filed within thirty

days from the date the permit was issued. G. L. c. 40A, § 15.

"The second potential pathway for challenging the validity of a

building permit is through requesting town enforcement of the

zoning bylaw pursuant to G. L. c. 40A, § 7." Barkan, supra.

The plaintiff chose to pursue the second pathway. However,

"when a party with adequate notice of the issuance of a
building permit claims to be aggrieved by the permit on the
ground that it violates the zoning code, the party must
file an administrative appeal within thirty days of the
permit's issuance; a failure to do so deprives the board or
other permit granting authority, and later the courts, of
jurisdiction to consider the appeal."

Connors v. Annino, 460 Mass. 790, 797 (2011).

The plaintiff contends that she was not aggrieved at the

time the permit was issued and therefore she could not have

appealed under G. L. c. 40A, § 8. However, because the

plaintiff is an abutter, there is a presumption that she was

aggrieved. See Murray v. Board of Appeals of Barnstable, 22

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Mass. App. Ct. 473, 476 (1986). "Abutters are entitled to a

rebuttable presumption that they are 'aggrieved' persons under

the Zoning Act and, therefore, have standing to challenge a

decision of a zoning board of appeals." 81 Spooner Rd., LLC v.

Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012).

Although the presumption does not shift the burden of proof on

standing, it places the initial burden on the adverse party to

present evidence "to warrant a finding contrary to the presumed

fact" of the plaintiff's aggrievement. Id. at 701. "[W]hen a

defendant fails to offer evidence warranting a finding contrary

to the presumed fact, the presumption of aggrievement is not

rebutted, [and] the abutter is deemed to have standing." Id.

At the time the plaintiff requested enforcement, she was

presumed to be an aggrieved party. See 81 Spooner Rd., LLC, 461

Mass. at 700-701. She therefore "may not lawfully bypass [§ 8]

and subsequently litigate the question by means of a request for

enforcement under G. L. c. 40A, § 7." Connors, 460 Mass. at

796, quoting Gallivan v. Zoning Bd. of Appeals of Wellesley, 71

Mass. App. Ct. 850, 857 (2008). Once an aggrieved party has

requested enforcement by the commissioner, the party is subject

to strict statutory deadlines regarding any appeals. See

Barkan, 95 Mass. App. Ct. at 385.

Because the permit was granted on December 4, 2023, the

plaintiff had until January 4, 2024, to appeal. She did not.

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"Where the 'decision' of the building commissioner is the
issuance of a building permit, it is reasonable and
consistent with the statutory scheme to require the
aggrieved party to comply with the route prescribed in §§ 8
and 15 if the party has adequate notice of the permit's
issuance and therefore an ability to meet the thirty-day
limitation."

Connors, 460 Mass. at 798. The plaintiff had notice as early as

December 19, 2023, more than fifteen days before the thirty-day

appeal period would expire.

The plaintiff's argument that Connors is not applicable

here because that case did not include a valid § 7 enforcement

request is unavailing. Connors details when an aggrieved party

may bring an enforcement request under § 7 and subsequently

appeal under §§ 8 and 15. See Connors, 460 Mass. at 797. An

aggrieved party may request enforcement under § 7 if "(1) the

aggrieved party had not received adequate notice of the issuance

of the permit, (2) the allegedly offending structure was built

without a building permit, and (3) the structure was built in a

manner that exceeded the scope of a permit." Barkan, 95 Mass.

App. Ct. at 385. See Connors, supra at 797-798 & n.9. The

plaintiff's circumstances do not fall under any of these

scenarios; she had adequate notice of the issuance of the

permit, and when she requested enforcement, the building had not

been built. See Connors, supra. Accordingly, pursuing an

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appeal under §§ 8 and 15 was the exclusive path for the

plaintiff to challenge the permit. See Barkan, supra.

Judgment affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.3),

Clerk

Entered: December 18, 2025.

3 The panelists are listed in order of seniority.

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