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ZBA finds it lacks jurisdiction in appeal over six‑unit redevelopment at 1280 Middlesex St.
Summary
The Lowell Zoning Board of Appeals voted that an administrative appeal challenging a building permit for a proposed six‑unit redevelopment at 1280 Middlesex Street was not filed timely and therefore the board declined to overturn the building commissioner’s permit decision.
The Lowell City Zoning Board of Appeals on Jan. 13 voted that it did not have jurisdiction to hear an administrative appeal challenging a building permit for redevelopment at 1280 Middlesex Street, finding the appeal was not timely.
Attorney Christopher Alphen, representing appellant Mark J. Carabini, told the board his client’s argument rests on two points: that the building’s prior six‑unit use was a grandfathered, nonconforming right that was extinguished after two years of nonuse (he cited “section 456” of the zoning ordinance), and that the structure’s dimensions and lot area would require separate zoning relief rather than a straight building permit. Alphen said records show the property was vacant after a 2017 boiler failure and a Board of Health vacancy order and that the legal right to continue a multiunit use was therefore lost.
David Fuller, Lowell’s building commissioner, said he issued the permit and that “the abandonment didn’t play into my decision.” Fuller told the board he reviewed the submitted plot plan and concluded there was adequate off‑street parking and the floor‑area ratio requirement had been met, and he described issuing the permit as his professional judgment.
Assistant City Solicitor Chris Blake told the board the zoning ordinance language appears to set a two‑year nonuse rule and that the city’s records include a vacancy order from 2018. The proceeding shifted to a legal dispute over timeliness: state and case law require an appeal of a building permit within 30 days of notice, but courts also recognize that where an affected party had no actual or constructive notice, separate zoning enforcement and a later appeal are permissible. The parties disagreed about whether the appellant had constructive notice within 30 days of the permit’s issuance; counsel referenced a permit issuance date of Nov. 27, 2023 during the discussion.
The board voted first on timeliness. Member Callahan moved that the appeal was not timely and the ZBA therefore lacked jurisdiction; Member Prokop seconded. The roll call showed Chairman Peck, Member Callahan and Member Prokop voting yes; Member Havi voting no; Member Briere recording “present”/abstain. The motion passed 3–1–1, and the board did not proceed to rule on the underlying zoning merits. The clerk recorded the action as a denial of jurisdiction.
Board members and city counsel repeatedly framed the hearing as a procedural matter — whether the appeal was filed within the legal time limits or whether the appellant had no notice — rather than a reexamination of construction quality. The developer and current owner, who spoke during the public comment period, urged that the renovation restored a blighted property and said they had worked with the building commissioner and city staff during the project.
The board’s action leaves open administrative options for the parties: the developer may apply for any required special permits or variances if the owner wants to retain or change the six‑unit configuration, and the appellant retains any remedies allowed under law short of a timely appeal of the original permit.
