969 N.E.2d 727
Mass. App. Ct.2012Background
- Carlin had constructive notice of the September 11, 1999 building permit issuance, aided by attorney Larkosh who knew plans and engaged with town officials.
- Carlin had been monitoring Cohen's plans and previously challenged related permits, indicating awareness of Cohen's construction.
- Construction on Cohen's property began in fall 2001.
- Carlin first sought revocation of the permit via letters dated June 20 and September 21, 2004, and appealed on October 8, 2004; the town building inspector denied the appeal on December 14, 2004.
- Carlin then pursued Land Court review, but the court granted summary disposition based on failure to appeal within 30 days and, independently, laches; the court also noted improper claim splitting and multiple actions against the neighbor structure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to appeal within 30 days bars the challenge | Carlin argues timely appeal was required by law. | Cohen argues untimely appeal defeats the claim. | Barred by untimely appeal. |
| Whether laches independently bars the appeal | Carlin contends no prejudice or undue delay. | Cohen contends delay was prejudicial and unreasonable. | Laches independently bars the appeal. |
| Whether multiple actions constitute improper claim splitting | Carlin's successive suits were justified challenges to the same issue. | Defendant asserts improper forum-shopping and prejudicial delay. | Improper claim splitting supported dismissal. |
Key Cases Cited
- Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008) (adequate notice may be actual or constructive; duty of inquiry when notice exists)
- Connors v. Annino, 460 Mass. 790 (2010) (marginal questions about adequacy of notice; duty to inquire if evidence places inquiry burden)
- Champagne v. Commissioner of Correction, 395 Mass. 382 (1985) (loches as an independent basis for decision in equity cases)
- Cape Resort Hotels, Inc. v. Alcoholic L. Bd. of Falmouth, 385 Mass. 205 (1982) (public interest in health, safety, welfare provisions cannot be forfeited by government inaction; loches cannot bar enforcement by municipality in public interest context)
- Myers v. Salin, 13 Mass. App. Ct. 127 (1982) (loches may justify summary disposition in certain private disputes)
- Garabedian v. West-land, 59 Mass. App. Ct. 427 (2003) (loches as an equitable defense in private disputes)
- Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45 (1990) (unjustified delay and prejudice support dismissal)
- Cornell v. Michaud, 79 Mass. App. Ct. 607 (2011) (comparison of self-inflicted harm versus delayed litigation)