Chiaraluce v. Zoning Board of Wareham (and a consolidated case) (Lawyers Weekly No. 11-040-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-328                                        Appeals Court   JOSEPH H. CHIARALUCE, trustee,[1]  vs.  ZONING BOARD OF APPEALS OF WAREHAM (and a consolidated case[2]).     No. 15-P-328. Suffolk.     January 7, 2016. – April 8, 2016.   Present:  Hanlon, Sullivan, & Maldonado, JJ. Zoning, Nonconforming use or structure, By-law.       Civil actions commenced in the Land Court Department on July 21 and July 25, 2011.   The cases were heard by Gordon H. Piper, J.     Richard M. Serkey for Joseph H. Chiaraluce. Mark J. Lanza for Denise R. DePedro.        SULLIVAN, J.  Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus).  A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law.  We affirm. Background.  We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 523 (2008), and “do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings.”  Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014).  The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet.  It has no street frontage and is accessible from the street over a twelve-foot-wide right of way.  Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $ 16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet.  In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage.  Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus. Wareham’s zoning board of appeals (ZBA or board) granted a “blanket” special permit for reconstruction of residences damaged by Hurricane Bob.  Although the Olsens obtained such a permit in March of 1992 […]

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