Opinion
10-P-1117
10-12-2011
PATRICK H. BLOUIN v. ZONING BOARD OF APPEALS OF GROTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We affirm the judgment of the Superior Court, for substantially the reasons set forth in the written memorandum of decision entered by the trial judge. It was the plaintiff's burden at trial to establish that the property satisfied all the factual prerequisites for the requested special permit, and the plaintiff failed to satisfy that burden. In particular, the record supports the trial judge's finding that there was no evidence that the property had been used continuously as a seasonal residence during the period prior to 1974 (a prerequisite to eligibility for the requested special permit). The plaintiff's contention that use (or abandonment) prior to 1974 is irrelevant to any question of abandonment of the use is controlled by our holding in Orange v. Shay, 68 Mass. App. Ct. 358, 363-364 (2007).
We need not assess whether the evidence established use of the property as a seasonal residence continuously thereafter.
In any event, the plaintiff's argument fundamentally misapprehends the posture of his application for relief in the form of a special permit. His application sought to change his use of the property, rather than simply to continue an existing use. Accordingly, his eligibility for such relief is a product of the provisions of the current by-law. We do not have before us, and need not consider, any question of enforcement of the by-law against continued use of the property as a seasonal residence.
We likewise need not consider the plaintiff's constitutional arguments, as they were not raised below. See Boston Water & Sewer Commn. v. Commonwealth, 64 Mass. App. Ct. 611, 618 (2005).
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),