Opinion
No. 12–P–648.
2013-02-25
Rosaleen COBBETT v. ZONING BOARD OF APPEALS OF MARSHFIELD & another.
By the Court (GRASSO, BERRY & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Rosaleen Cobbett, challenged the issuance of a special permit by the zoning board of appeals of Marshfield (board) that authorized Doris M. Crary, trustee, to expand a nonconforming dwelling situated at 60 Macombers Way, Marshfield. After trial, a judge of the Superior Court entered judgment in favor of the defendants. On appeal, Cobbett argues that the judge erred in determining that she lacked standing to challenge the special permit and that the board improperly issued the special permit. We agree that Cobbett has standing, but agree substantially with the judge that the board properly issued the special permit. Accordingly, we affirm.
1. Background. The lot and building in question were already in existence when Marshfield adopted its zoning by-laws, but were nonconforming when Crary initially applied for a special permit seeking to expand the dwelling in 2004. As was the regular custom and practice in Marshfield at the time, the building inspector directed Crary to advertise for the hearing on the special permit only those alterations to the nonconforming portion of the premises.
After advertisement and the public hearing, the board issued a special permit (2004 permit) outlining only the parts of the project that increased the nonconforming nature of the structure rather than the entire alteration. No appeal was taken from the issuance of the 2004 permit. Subsequently, a new building inspector took office. After receiving complaints from neighbors regarding construction activities under the 2004 permit, the new building inspector initially issued a cease and desist order. After further investigation, however, he rescinded the order, finding the project in compliance with the 2004 permit. Cobbett appealed that decision to the board.
Construction within the conforming portion was subject only to approval of the building inspector through a building permit.
The board reinstated the cease and desist order, concluding that the building inspector did not have the authority to determine whether an addition to a nonconforming dwelling will or will not intensify the nonconformity. Also concluding that Crary had acted in good faith throughout the proceedings, the board directed Crary to apply for a new special permit based on as-built construction, this time advertising and describing all aspects of the project, not merely the expansion to the nonconforming portion. Crary did as directed. After new advertisement and a further public hearing, the board again issued a special permit authorizing expansion of the preexisting nonconforming structure (2007 permit). The 2007 permit covers substantially the same project as originally proposed but not fully advertised in the proceedings relative to the 2004 permit.
2. Discussion. Contrary to the judge's determination, we conclude that Cobbett has standing to challenge the 2007 permit as she presented enough evidence to show that the zoning relief granted to Crary adversely affects her directly, and that her injury is related to a cognizable interest protected by the applicable zoning law. See 81 Spooner Road LLC v. Brookline, 461 Mass. 692, 704–705 (2012). As a direct abutter living across the way from Crary, Cobbett has a rebuttable presumption of standing. G.L. c. 40A, § 11. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117–118 (2011). Although Crary challenged Cobbett's standing with evidence that no shadows were cast on Cobbett's dwelling, Crary's challenge fell far short of rebutting Cobbett's presumption of standing with respect to density, an interest protected by Marshfield's zoning by-laws and a particularized harm raised by Cobbett. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003). Moreover, Cobbett offered sufficient evidence that the enlarged structure, which is set back less than three feet from Macombers Way and is larger and taller than the previous one, will be of particular concern to her since she lives directly across that ten-foot wide way. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996) (plaintiff's allegations need not be ultimately “meritorious”). The 2007 permit “exacerbate[s] the density problems the zoning regulations were meant to address in a way that directly injures” Cobbett. Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass.App.Ct. 8, 13 (2009). Such “crowding of an abutter's residential property ... will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.” Dwyer v. Gallo, 73 Mass.App.Ct. 292, 297 (2008).
The judge did not err, however, in concluding that the board properly issued the 2007 special permit. The crux of Cobbett's challenge to the 2007 special permit is the contention that the dwelling was not a lawfully preexisting nonconforming structure at the time of the permit application, see G.L. c. 40A, § 6, because the 2004 permit, and the construction thereunder, was unlawful. Consequently, Cobbett argues, the board could not retroactively make lawful what was unlawful at its inception. See Cornell v. Michaud, 79 Mass.App.Ct. 607, 616 (2011) (zoning board cannot contravene judicial determination that lot was unbuildable) ( Cornell ). We disagree with Cobbett's characterization, and her assertion that Cornell controls.
In 2004, 60 Macombers Way was a lawfully preexisting nonconforming structure and was still so in 2007. See Mendes v. Bd. of Appeals of Barnstable, 28 Mass.App.Ct. 527, 528–530 (1990). No court or other body had determined anything contrary. Compare Cornell, supra at 610. In commencing construction pursuant to the 2004 special permit, Crary had acted at the direction of the board and the building inspector and without notice that she did so at her own peril. Compare Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass.App.Ct. 726, 727 (2007) (denial of preliminary injunction contained judicial warning of effect of adverse judgment). Crary also filed for a new permit as directed by the board. With these circumstances in mind, we discern no basis to disturb the judgment that the decision of the board is not “based on a legally untenable ground ... unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
Judgment affirmed.