"Build First, Ask Permission Later" Not The Best Plan

Sometimes “act first, ask permission later” isn’t the best course of action, as evidenced by a recent Land Court decision concerning a change to a Gloucester multi-family home.

The entire factual history is set forth in detail in the Court’s decision in Gattineri v. McGeary, (Mass. Land Ct. Oct. 31, 2016), but can be summarized as follows.  Plaintiff Daniel Gattineri, both individually and in various business and trust capacities over the years, was involved in renovating an historic house in Gloucester that was converted to multi-family use pursuant to a special permit issued to the prior owner.  The special permit allowed for 4 units with a total of 7 bedrooms.  Gattineri eliminated the 4th unit, turned the remaining 3 units into a condominium, and purchased Unit 2, which had 2 bedrooms.  Despite the limitations set by the special permit, Gattineri enclosed the second-story porch off Unit 2, converting it to a third bedroom.  An interim building inspector told Gattineri that the conversion didn’t require an amendment to the special permit, but shortly after construction began, the new permanent building inspector advised Gattineri that he needed a modification of the special permit to allow the proposed third bedroom in Unit 2, and that any work undertaken was at Gattineri’s risk.  Nonetheless, Gattineri completed construction and began living in or renting Unit 2 without an occupancy permit, which the building inspector refused to issue.  Gattineri appealed this refusal, along with the denial of his requests for a modification of the special permit, to the Superior Court, which affirmed Gloucester’s position.  Gattineri further appealed, but never followed through, leaving the appeals in limbo.

Gattineri next appealed to the State Building Code Appeals Board (“SBCAB”), alleging that the building inspector never acted on his request for an occupancy permit.  The SBCAB ordered Gloucester to issue the occupancy permit, but upon appeal, the Superior Court annulled the SBCAB’s decision, which decision was later upheld by the Appeals Court.

Presumably in an attempt to resolve the issue once and for all, in 2015 Gattineri and Gloucester entered into an Agreement for Judgment in two of the Superior Court cases (notwithstanding the entry of judgment in 2006 and Gattineri’s failure to pursue the appeals).  Gattineri agreed to file an application to amend the special permit to allow the already-completed conversion of the open deck to a third bedroom in Unit 2.  If the amendment was approved, Gattineri would pay $40,000 to Gloucester in lieu of fines; if the amendment was not approved, Gattineri would file the necessary applications to demolish the bedroom and reconstruct the deck. 

Gattineri filed his application to amend the special permit, but it was denied for lack of the requisite supermajority vote.  Rather than comply with the Agreement for Judgment and move forward with demolition, Gattineri appealed the denial to the Land Court. 

The Land Court determined that Gloucester applied an appropriate standard for review of the request to amend the special permit, was not estopped from denying the amendment, did not single out Gattineri for harsher treatment than other residents of Gloucester, and that Gloucester reasonably concluded that it “anticipates no beneficial effect from granting the application. Far from comporting with the general purpose of the ordinance, the requested amendment would reward Gattineri for flouting the terms of the Special Permit. It would allow an undue intensification of use in an already crowded neighborhood.”  Cognizant of “the discretion afforded to a special permit granting authority to deny an application for a special permit even if the standards for granting the permit could be found to be met,” the Land Court upheld the denial of the modification of the special permit. 

Whether this resolves the long-standing issue remains to be seen.  However, the case serves as a good reminder that though “[t]here is a school of thought that it is better to ask for forgiveness than for permission, . . . in order render such a practice even remotely viable, one must at least try to make it appear as if one is actually asking for forgiveness,” and that an approach that involves a “thirteen-year strategy of ignoring the lawful orders of the building inspector, occupying or renting a dwelling unit with no occupancy permit, and conducting dilatory litigation in Superior Court” is not the best way to proceed.