Creating Thriving Communities Through Land Use And Real Estate Law

Most Recent Lawsuit Over Truro’s Kline House Dismissed

Is the litigation over Truro’s infamous “Kline House” finally over?  Maybe.

After years of litigation through multiple levels of the court system, concluding with a multi-million dollar settlement between the owners of the Kline House and the Town (for the history of the case, check out our earlier blog posts on the subject), several neighbors appealed an April 10, 2017, decision of the Truro Zoning Board of Appeals to deny the neighbors’ appeal of the Truro Building Commissioner’s December 13, 2016, denial of the neighbors’ request for zoning enforcement of the Kline House.  The neighbors allege that the Kline House continues to violate the Truro Zoning Bylaw, despite the settlement agreement between the owner and the Town.

The owner of the Kline House moved to dismiss the complaint.  The Land Court granted the motion to dismiss in Barkan v. Brown, 2017 Mass. LCR LEXIS 222 (Land Ct. Nov. 27, 2017).  The Court focused its analysis on the fact that most of the plaintiffs had appealed the initial building permit in 2008, but had failed to file a G.L. c. 40A, § 17 appeal of the subsequent Board decision upholding the building permit (the Decision was appealed by other individuals, spawning the original long-running litigation).  The Court determined that the “plaintiffs are not entitled to pursue the present action because they have failed to timely pursue to completion their exclusive remedy of appeal of the original issuance of the building permit.”  The Court noted the six-year statute of limitations set forth in G.L. c. 40A, § 7, and found the plaintiffs to have commenced this case outside the six-year period, which began to run on May 27, 2008, when the original building permit was issued.

The Court found the plaintiffs were also barred from requesting enforcement of the zoning bylaw for failure to utilize the exclusive remedy, set forth in G.L. c. 40A, of appealing the building permit, first to the Board, then to court.  Citing extensively to Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), the Court reiterated that aggrieved parties do not have the liberty of choosing between the statutory remedies for violations found at G. L. c. 40A, §§ 8, 15 (appeal of building permit), and G. L. c. 40A, § 7 (request for enforcement), at their convenience; if an aggrieved party has notice and fails to timely appeal a building permit (and subsequent Board decision), they are barred from requesting an enforcement action later to attempt to prevent construction.  Such is the case here, the Court found.  The plaintiffs failed to protect their rights by appealing the Board decision almost 10 years ago, and therefore cannot challenge the Kline House now.

Will the plaintiffs appeal the dismissal of their case?  We will just have to wait to find out.