Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 17-P-174 Appeals Court WILLIAM A. BRUNO, trustee,[1] & another[2] vs. ZONING BOARD OF APPEALS OF TISBURY & others.[3] No. 17-P-174. Suffolk. November 9, 2017. – March 19, 2018. Present: Meade, Shin, & Ditkoff, JJ. Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of. Civil action commenced in the Land Court Department on May 2, 2014. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury. DITKOFF, J. The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals). The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan. As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background. The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury. The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s. The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]
Palitz v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 10-037-15)
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 SJC-11678 SUZANNE PALITZ, trustee,[1] vs. ZONING BOARD OF APPEALS OF TISBURY & another.[2] Suffolk. November 6, 2014. – March 3, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Subdivision Control, Zoning requirements, Approval not required. Zoning, Nonconforming use or structure, Variance. Civil action commenced in the Land Court Department on October 10, 2012. The case was heard by Karyn F. Scheier, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Daniel P. Dain for the plaintiff. Jonathan M. Silverstein (Katherine D. Laughman with him) for the defendants. The following submitted briefs for amici curiae: Gareth I. Orsmond & Jesse W. Abair for Massachusetts Association of Regional Planning Agencies & others. Edward J. DeWitt for Association to Preserve Cape Cod. Benjamin Fierro, III, for Home Builders and Remodelers Association of Massachusetts, Inc. CORDY, J. In this appeal, we must decide whether a division of land pursuant to the subdivision control law’s existing structures exemption, G. L. c. 41, § 81L (§ 81L),[3] entitles the structures on the resulting lots to “grandfather” protection against new zoning nonconformities created by the division. As is more fully set forth herein, the plaintiff is the most recent owner of a lot in the town of Tisbury (town). The lot was created in 1994 by a division of land pursuant to the existing structures exemption. On the lot is a structure built before both the subdivision control law and the Zoning Act, St. 1975, c. 808, went into effect. The plaintiff sought a permit to tear down the existing structure and build a new one, somewhat larger and taller than the existing structure. The permit was denied on zoning grounds, and the plaintiff appealed to the Land Court. A judge in the Land Court concluded that the § 81L division created new zoning nonconformities that deprived the plaintiff’s dwelling of the grandfather status it might have had under the Zoning Act. As a result, the plaintiff, who sought to tear down and rebuild her dwelling approximately ten feet taller, was required to obtain a variance. We conclude that an exemption from the subdivision control law entitles a landowner to an endorsement that planning board approval is not required for the division of qualifying […]