When a Building Permit Is Not a Building Permit

Recently I took some continuing education courses to renew my Construction Supervisor license for Massachusetts. One of the courses discussed the requirements for contracts between builders and customers. The instructor, who was an attorney, told a story about a builder who had – and then lost – a building permit. I’m very glad this has never happened to any of my customers, and I hope it doesn’t happen to you.

The Building Permit that Wasn’t

The builder sought the attorney’s help after he was denied a building permit for a property he had purchased.  In fact, the building inspector had already issued the builder a permit, but the zoning board required the building inspector to revoke it.  To make matters much worse for the builder, he had already installed a foundation and framed much of the structure – it was a stick built home.

An example of the first two pages of a building permits application
Click Here to See an Example of a Building Permit Application.

The attorney learned that the builder seemingly had done nothing wrong.  He had submitted a complete permit application along with the other required paperwork.  The building inspector reviewed the application and issued the permit.  The builder began work immediately.  But after installing the foundation and framing the exterior of the home, an abutter contacted the town and said the builder’s property was not a legal building lot.  The abutter reminded the town that 20 or 30 years earlier another builder tried to get a permit and was turned down.

The problem was that the lot didn’t have the minimum square footage required by the town’s zoning regulations.  It was about 10 square feet short.  Apparently, the building inspector didn’t notice this when he “reviewed” the application.  (The builder foolishly didn’t verify the claim by the seller of the property that it was a legal building lot.)  After confirming that the abutter was correct, the building inspector was forced, by law, to revoke the permit.

No Solution for the Disappearing Building Permit

The builder attempted to buy the 10 square feet from the abutter, who had plenty to spare.  But the abutter didn’t want a house on the property, not even when the builder offered a very generous payment.  The builder then applied for a variance with the town.  But the zoning board shot down the variance.  Some disagreements between the building inspector and zoning board likely contributed to the ruling.  In the end the builder had to take down the framing and remove the foundation at his own expense.

No Recourse for the Revoked Building Permit

It might surprise you – it certainly surprised me – that the builder did not have grounds to sue the building inspector or anyone else in the town for mistakenly issuing the building permit.  The builder also couldn’t go back to the seller of the property because he had purchased the land for cash without the aid of an attorney and without a written agreement that represented the property as a legal building lot.

The attorney concluded that if you are buying a property, always use an attorney and have them confirm in writing that the property is a legal building lot.  Also, make sure you discuss with the attorney what you need to do to secure a legal building permit.  If a problem emerges later, you will at least have recourse with your attorney.

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