AUBUCHON v. MASSACHUSETTS

933 F. Supp. 90 (1996) | Cited 1 time | D. Massachusetts | August 9, 1996

95-24068.

1. On March 1, 1996, the Board filed, and this Court ALLOWED, a motion to remand Count I to Massachusetts Superior Court on Eleventh Amendment grounds.

2. M.G.L.c. 143, § 10 permits an owner who is aggrieved by an order to remove a dangerous structure to "have the remedy prescribed by [M.G.L.c. 139, § 2]." That section permits a person aggrieved by an order to appeal to the superior court in the county in which the building is located, and a jury "may affirm, annul or alter such order" and award damages and costs.

3. 780 C.M.R. 126.3.2, entitled "Stay of Proceedings," provides, in relevant part, that: entry of an appeal [to the Board] shall stay all proceedings in furtherance of the action or failure to act appealed from, unless the...person charged with the administration or enforcement of this code...presents evidence...that a stay would involve imminent peril to life or property. In such an event, stay of all proceedings shall be waived....

4. 780 C.M.R. 126.3.2 provides that, before waiving the stay, the Board "shall hold a hearing and give the appellant and local agency written notice of the hearing no fewer than 24 hours before the hearing. Section 126.3.4, which governs "Hearings," provides in relevant part that: The Chairman of the Board [of Appeals] shall fix a convenient time and place for a public hearing. Said hearings shall be held not later than thirty (30) days after the entry of such appeal....Any such party may appear in person or by agent or attorney at such hearing. The chairman or clerk shall give notice of the time and place of said hearing to all parties to the hearing and to anyone else requesting notice in writing at least ten (10) days prior thereto.

5. 780 C.M.R. 126.6 does not, by its terms, provide an appeal period. Rather, that section states merely that any person who is aggrieved by a decision of the Board "may appeal to a court of law or equity in conformance with [M.G.L.c. 30A, § 14]." Presumably, plaintiff is relying on the fact that M.G.L.c. 30A, § 14 permits an action to be commenced "within thirty days after receipt of notice of the final decision of the agency." That same statute clearly provides, however, that "the commencement of an action shall not operate as a stay of enforcement of the agency decision, but the agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper." (emphasis supplied).

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