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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Welch-Philippino, et al. v. Zoning Board of Appeals of Newburyport, et al. (Lawyers Weekly No. 11-111-14)
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 13-P-1586 Appeals Court CYNTHIA WELCH-PHILIPPINO & another[1] vs. ZONING BOARD OF APPEALS OF NEWBURYPORT & others.[2] No. 13-P-1586. Suffolk. June 2, 2014. – September 9, 2014. Present: Grasso, Vuono, & Rubin, JJ. Zoning, Nonconforming use or structure, Special permit, By-law. Civil action commenced in the Land Court Department on April 7, 2011. The case was heard by Alexander H. Sands, III, J. Kevin W. Lawless for the plaintiff. Ryan P. McManus (Diane C. Tillotson with him) for Port Associates Limited Partnership & another. GRASSO, J. Cynthia Welch-Philippino (Philippino) appeals from a Land Court judgment determining that the planned reconstruction of a nursing home (the project) by Port Associates Limited Partnership and Whittier Health Network, Inc. (the defendants), is permissible as of right under G. L. c. 40A, § 6. Philippino principally challenges the trial judge’s ruling that a dimensionally conforming commercial structure is not, by virtue of its employment for a nonconforming use, a nonconforming structure for purposes of the first sentence of G. L. c. 40A, § 6, first par. We conclude, as did the trial judge, that where the project does not work a “change or substantial extension” (ibid.) of the preexisting nonconforming commercial use, the reconstruction and replacement of the existing dimensionally conforming structure with a new dimensionally conforming structure is lawful as a matter of right and not subject to the second sentence of G. L. c. 40A, § 6, which provides that preexisting nonconforming structures or uses may only be extended or altered by special permit. 1. Background. The defendants’ 100-bed nursing home facility, built in 1968, is a dimensionally conforming commercial structure situated on a large (5.5 acre) conforming lot in a residential zone. Use of the facility as a nursing home pre-dates the adoption of the Newburyport zoning ordinance, and thus is a lawful preexisting nonconforming use. The defendants plan to replace the old structure with a modernized 121-bed facility that will meet the dimensional requirements of the current zoning ordinance. The Newburyport zoning board of appeals (board) issued a special permit that authorized the defendants to proceed with the project, and abutters Philippino and her husband appealed under G. L. c. 40A, § 17. After trial, a Land Court judge concluded that the project (1) does not constitute a “change or substantial extension” of the lawful preexisting nonconforming commercial use, and (2) is therefore permissible […]
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Deadrick, et al. v. Zoning Board of Appeals of Chatham, et al. (Lawyers Weekly No. 11-075-14)
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 13‑P‑1264 Appeals Court Sara Deadrick[1], & others[2] vs. Zoning Board of Appeals of Chatham, & others[3] No. 13‑P‑1264. Suffolk. April 2, 2014. ‑ June 25, 2014. Present: Grasso, Green, & Fecteau, JJ. Zoning, Nonconforming use or structure, Special permit, Variance, By‑law, Appeal, Board of appeals: decision. Practice, Civil, Variance, Zoning appeal. Statute, Construction. Civil action commenced in the Land Court Department on December 31, 2007. Following review by this court, 80 Mass. App. Ct. 1104 (2011), the case was heard by Alexander H. Sands, III, J., on motions for summary judgment and a motion for reconsideration was heard by him. Daniel P. Dain for the Robert Jeffrey Chandler & another. Peter S. Farber for the plaintiffs. FECTEAU, J. The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the Chatham zoning board of appeals (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. In reversing the board’s decision, the judge determined that because the proposed new structure’s increased height created a new, additional nonconformity, distinct from the pre-existing dimensional and coverage nonconformities, a variance was required. We agree with the judge’s decision that a variance would be required if the proposed increase in height constitutes an additional nonconformity not otherwise exempted by the town by-law. However, we also conclude that the judge erroneously concluded that the board had determined that the Chandlers’ project is ineligible for the exemption from certain height limits created by § IV.A.3 of the Chatham bylaw. Consequently, we vacate the entry of summary judgment and remand the matter for further proceedings before the board. 1. Facts. The following undisputed facts are taken from the summary judgment record. On July 1, 2005, the Chandlers purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home (old structure). The old structure was built in approximately 1929 and is located within a residential R-40 district and in a coastal conservancy district. The old structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers’ property is nonconforming as to lot size and building coverage, […]
Miles-Matthias, et al. v. Zoning Board of Appeals of Seekonk, et al. (Lawyers Weekly No. 11-010-14)
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 13‑P‑635 Appeals Court PAUL MILES-MATTHIAS & another[1] vs. ZONING BOARD OF APPEALS OF SEEKONK & another.[2] No. 13‑P‑635. Bristol. November 14, 2013. ‑ February 11, 2014. Present: Rapoza, C.J., Cypher, & Fecteau, JJ. Zoning, Timeliness of appeal, Accessory building or use, Board of appeals: decision, By‑law. Notice, Timeliness. Civil action commenced in the Superior Court Department on August 16, 2010. The case was heard by Robert J. Kane, J. Marc E. Antine for John Dias. Gregory D. Lorincz (John Jacobi, III with him) for the plaintiffs. FECTEAU, J. Defendant John Dias appeals from a Superior Court judgment in favor of the plaintiffs, Paul Miles-Matthias and Linda Coffin, which overturned a zoning board decision that Dias’s proposed common driveway was permissible under the town of Seekonk’s zoning by-law. Specifically, Dias claims the judge erred in finding (1) that the Superior Court and the zoning board had jurisdiction because the plaintiffs’ appeal to the zoning board was timely, (2) that the plaintiffs, as abutters, had the requisite standing to bring the action, and (3) that Seekonk’s zoning by-law prohibits common driveways. The judge correctly concluded that the plaintiffs, as abutters, have standing to prosecute the appeal. However, because the plaintiffs’ appeal was untimely and the decision below relied upon misinterpretation of the zoning by-law, we reverse. 1. Background. The basic facts found by the judge and which underlie this appeal are not disputed. The plaintiffs own and reside at premises known as 363 Ledge Road in the town of Seekonk, which they purchased on June 28, 1985. The plaintiffs and another neighbor share an easement in common over a pathway of land owned partially by the plaintiffs and partially by Dias. This common driveway was in existence before Seekonk adopted its first zoning by-law in 1942. After the plaintiffs purchased their land, a home was constructed on what is now known as lot 4 and on December 21, 2007, Dias purchased property to the south and east of the plaintiffs, including lot 4 and what are now known as lots 1-3. On March 11, 2008, the Seekonk planning board endorsed Dias’s plan to divide his land off Ledge Road into six lots as an approval not required plan (ANR plan) pursuant to G. L. c. 41, § 81P. Although lots […]
Alford, et al. v. Boston Zoning Commission, et al. (Lawyers Weekly No. 11-124-13)
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 12‑P‑1579 Appeals Court MARK ALFORD & others[1] vs. BOSTON ZONING COMMISSION & others.[2] No. 12‑P‑1579. Suffolk. May 8, 2013. ‑ October 9, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Boston. Zoning, Amendment of by‑law or ordinance, Appeal, Educational use, Hearing, Judicial review. Quasi‑Judicial Tribunal. Administrative Law, Adjudicatory proceeding, Conflict of interest, Hearing. Practice, Civil, Zoning appeal. Constitutional Law, Right to hearing. Civil action commenced in the Superior Court Department on July 9, 2009. The case was heard by Frances A. McIntyre, J., on a motion for summary judgment. Orestes G. Brown for the plaintiffs. Michael K. Murray for Trustees of Boston College. Adam Cederbaum for Boston Zoning Commission. Denise A. Chicoine for Boston Redevelopment Authority. CARHART, J. The plaintiffs, who own property that abuts property owned by Boston College, appeal from summary judgment entered by a Superior Court judge, who determined that art. 29 of the Massachusetts Declaration of Rights does not apply to review and approval by the Boston zoning commission and the Boston Redevelopment Authority of Boston College’s Institutional Master Plan. The judge also ruled that the approval of the Institutional Master Plan was not arbitrary or capricious, and that the plaintiffs’ request to defer summary judgment pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), was without merit. We affirm. Background. In the spring of 2003, Boston College (BC) embarked on a strategic planning process to redevelop its Chestnut Hill and Brighton campuses. In November, 2003, the Catholic Archdiocese of Boston announced its intention to sell sixty-five acres of property located in Brighton. In May, 2004, BC purchased approximately forty-three of those acres and, in subsequent transactions in 2006 and 2007, purchased the remaining acreage. After BC finalized the purchases, it hired a campus architecture and planning firm to help develop a long-term comprehensive campus plan. Among BC’s main institutional objectives were to develop more “academic, residential and co-curricular facilities.” The plan was projected to cost $ 1.6 billion and span ten years. Under art. 80D of the Boston zoning code (art. 80D), when educational or health care institutions with more than 150,000 square feet seek to expand by more than 20,000 gross square feet, they must file for review an Institutional Master Plan (IMP) with the Boston Redevelopment Authority (BRA). See Bobrowski, Massachusetts […]
Timperio v. Zoning Board of Appeals of Weston, et al. (Lawyers Weekly No. 11-103-13)
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 12‑P‑1158 Appeals Court NICOLAS TIMPERIO, trustee,[1] vs. ZONING BOARD OF APPEALSOF WESTON & another.[2] No. 12‑P‑1158. Suffolk. April 8, 2013. ‑ August 16, 2013. Present: Kantrowitz, Graham, & Wolohojian, JJ. Zoning, Variance, By-law, Lot, Lot size, Frontage. Civil action commenced in the Land Court Department on September 1, 2011. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Nicholas P. Shapiro (Jeffrey T. Angley with him) for the plaintiff. Katherine D. Laughman for the defendants. GRAHAM, J. The plaintiff, Nicolas Timperio, trustee of the Newton Street II Trust, appeals from a decision of a judge of the Land Court granting summary judgment to the defendants and affirming the decision of the zoning board of appeals of Weston (board) denying Timperio’s application for a variance and special permit for a parcel comprised of lots 8 and 9 as shown on a plan dated April 8, 1925, and recorded on April 21, 1925 (the 1925 plan). Albeit for reasons different from those stated by the judge, we affirm. Background. On December 1, 1994, by a single deed, Nicolas and Robin Timperio took title to lots 7, 8, and 9, each fronting on Newton Street in Weston, as shown on the 1925 plan. Lot 7 contains approximately 23,550 square feet with 106 feet of frontage; lot 8 contains approximately 18,410 square feet with 106.2 feet of frontage; and lot 9 contains 6,467 square feet with 73.4 feet of frontage. Lots 8 and 9 together contain 24,877 square feet and 179.6 feet of frontage. When considered as a single parcel, the three lots together contain 48,427 square feet and 285.6 feet of frontage. Shortly after the lots were created in 1925, lot 7 was sold separately from lots 8 and 9. Lots 8 and 9 have never been in separate ownership from one another, and the plaintiff concedes they have merged for purposes of zoning. Lot 7 remained in separate ownership from lots 8 and 9 until 1984 when Richard and Jane Cutter, who had taken title to lot 7 in 1967, took title to lots 8 and 9 as well. The three lots thereafter remained in common ownership and were conveyed to the Timperios by a single deed in 1994. Weston first adopted its zoning by-law […]
Grady v. Zoning Board of Appeals of Peabody, et al. (Lawyers Weekly No. 10-122-13)
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‑11267 MARY E. GRADY[1] vs. ZONING BOARD OF APPEALS OF PEABODY & others.[2] Suffolk. March 5, 2013. ‑ July 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Zoning, Variance, Lapse of variance. Civil action commenced in the Land Court Department on December 28, 2009. The case was heard by Keith C. Long, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William R. DiMento (Debora T. Newman with him) for the plaintiff. Louis J. Muggeo for Arthur Stefanidis & another. DUFFLY, J. This case presents the question whether a properly-granted zoning variance may be deemed to have “taken effect” pursuant to G. L. c. 40A, § 11, where it was not recorded with the registry of deeds within the one-year lapse period set forth in G. L. c. 40A, § 10, but was recorded eleven days thereafter, and where the holders have substantially relied upon it. The question whether a variance will take effect if the holders have substantially relied upon it was left open in Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 891 n.7 (2009) (Cornell). In the unusual circumstances of this case, we conclude that the variance has taken effect, and has not lapsed. Background. We recite the facts as found by a Land Court judge following a jury-waived trial.[3] Arthur and Irene Stefanidis, trustees of the A & I Trust, owned a single large lot in the city of Peabody (city), on which there was an existing structure. They divided this parcel into Lot A, the front portion of the parcel containing the structure, and Lot B, the undeveloped portion at the rear of the parcel that did not have street frontage. They reserved an easement in favor of Lot B over the driveway and parking area of Lot A. They then deeded the lot to the Central Gardens Condominium Trust and converted the building on Lot A into three condominium units. A & I Trust retained Lot B after the condominium trust declined to purchase it. The Stefanidises subsequently planned to build a two-family house on Lot B, and applied for a variance from the zoning board of appeals of Peabody (board) to allow them to build despite the lack of street frontage. The variance was approved, […]
Mauri, et al. v. Zoning Board of Appeals of Newton, et al. (Lawyers Weekly No. 11-033-13)
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 12‑P‑359 Appeals Court MAUREEN M. MAURI & another[1] vs. ZONING BOARD OF APPEALS OF NEWTON & others.[2] No. 12‑P‑359. Suffolk. December 5, 2012. ‑ February 22, 2013. Present: Cypher, Brown, & Cohen, JJ. Real Property, Merger. Zoning, Person aggrieved, Lot size, Nonconforming use or structure. Practice, Civil, Standing. Statute, Construction. Civil action commenced in the Land Court Department on January 7, 2010. The case was heard by Harry M. Grossman, J., on motions for summary judgment. Mark W. Corner for Bonnie E. Chansky & others. Hugh V.A. Starkey for the plaintiffs. Jason A. Rosenberg, G. Michael Pierce, & Terrence P. Morris, pro se, amici curiae, submitted a brief. R. Lisle Baker & Brian Yates, pro se, amici curiae, submitted a brief. BROWN, J. Once again, we are asked to address the longstanding rule that considers adjoining undersized lots held in common ownership as one lot for zoning purposes, in the context of a local zoning ordinance that has been interpreted to provide protection against such merger. A judge in the Land Court granted summary judgment to the plaintiff abutters, Maureen and Ronald Mauri, and revoked a building permit issued by the city of Newton (city) inspectional services department for a residential lot owned by the defendants, Bonnie and James Chansky. On appeal, the Chanskys contend that (1) the Mauris lack standing and (2) the judge erred in concluding that the two adjoining lots owned by the Chanskys had merged for purposes of zoning and thus do not qualify for an exemption contained in the local zoning ordinance. We affirm the judgment. The background facts were stipulated by the parties. Three abutting lots on Bradford Road in the city were created by a plan dated July 9, 1890. Lots forty and thirty-nine, now owned by the Chanskys, abut one another and lot thirty-eight, owned by the Mauris, abuts lot thirty-nine. Each of the three lots contains 8,400 square feet and sixty feet of frontage. Lots forty and thirty-nine have been held in common ownership since 1916. Since at least 1917, a single-family home has been located on lot forty (the house lot) and a garage, servicing the single-family home, has been located on lot thirty-nine (the garage lot). There were no minimum frontage or lot size requirements in […]