Opinion
No. 12–P–148.
2013-05-31
Robert LEMANSKY v. ZONING BOARD OF APPEALS OF CHARLTON & others.
By the Court (GRASSO, VUONO & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Lemansky, brought two suits in the Superior Court pursuant to G.L.c. 40A, § 17, seeking reversal of decisions by the zoning board of appeals of Charlton (board) pertaining to three abutting, nonconforming lots located along the shore of Glen Echo Lake (lake). The lots are owned by the defendants, Hugh and Susan Briody (the Briodys), and John and Cheryl Phillips (the Phillipses). After the cases were consolidated, the parties filed cross motions for summary judgment. Initially, a judge of the Superior Court allowed the Phillipses' motion for summary judgment and denied the Briodys' and Lemansky's motions. Thereafter, on the Briodys' and Lemansky's joint motion for reconsideration, a second judge entered summary judgment in favor of the Briodys on the basis that Lemansky lacked standing. Final judgments entered in each case. We affirm the judgment in one case and in the other remand for entry of a judgment dismissing the action. Background. We summarize the facts in the summary judgment record in the light most favorable to Lemansky. Lemansky and his wife own lots 15 and 28 on Sunset Drive in Charlton. Their residence is located on lot 28, which abuts the Lake and is contiguous to lot 30 on which the Briodys reside. Lot 15 is vacant and is located directly across the street from the Lemanskys' home. The Briodys purchased lot 30 and the house thereon from David and Dixie Lawrence (the Lawrences) in 2000. The Lawrences built the house, now owned by the Briodys, sometime after they acquired the lot in 1986. At that time, lot 30 did not meet the dimensional requirements of the applicable zoning by-law, but the house was built legally because lot 30 was grandfathered under G.L.c. 40A, § 6.
“[W]here both parties have moved for summary judgment, the evidence is reviewed in the light most favorable to the party against whom judgment is to enter.” Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n. 4 (2010).
In 1996, the Lawrences purchased lot 31, which is contiguous to lot 30. Lot 31 was vacant, and, standing alone, was a legal preexisting nonconforming lot upon which a house could have been built. However, once the Lawrences purchased lot 31, it merged with lot 30 by operation of law. It is undisputed that when the Lawrences sold only lot 30 to the Briodys in 2000, lots 30 and 31 lost their grandfathered status and became invalid lots. The Lawrences then conveyed lot 31 to their son, David, who sought a variance to permit the construction of a single family house. The board declined the request because lot 31 had lost its grandfathered status. Then, in 2003, David Lawrence sold lot 31 to the Phillipses, who already owned lot 32. Lot 32, which is contiguous to lot 31, was a vacant, nonconforming lot with protected grandfathered status as a buildable lot. As we discuss in more detail below, the Phillipses then consolidated lots 31 and 32 and proceeded with plans to build a house on the newly combined parcel.
By letter dated February 17, 2004, to the town's zoning enforcement officer, who is also the building commissioner (commissioner), Lemansky sought a declaration that the division of lots 30 and 31 by virtue of the sale of lot 30 to the Briodys (and the conveyance of lot 31 to David Lawrence) violated the town's zoning by-law. Lemansky further requested that the commissioner enforce the by-law by ordering the removal of the Briodys' house. The commissioner denied Lemansky's request and Lemansky appealed to the board, which affirmed the commissioner's decision. Lemansky then appealed to the Superior Court pursuant to G.L.c. 40A, § 17. We refer to this appeal as the “2004 case.”
As the 2004 case progressed, the Phillipses applied for a building permit to construct a home on the parcel now consisting of lots 31 and 32. Their application was approved and a building permit issued on June 21, 2004. Lemansky sought a preliminary injunction to enjoin construction but was unsuccessful. A certificate of occupancy was issued on June 22, 2005, after the house was completed.
About one year later, by letter dated March 28, 2006, Lemansky challenged the issuance of the building permit, claiming that the Phillipses' parcel (lots 31 and 32) was not a buildable lot. Lemansky asked the commissioner to (1) rescind the building and occupancy permits, and (2) order the removal of the newly-built home. The commissioner denied Lemansky's request for enforcement and Lemansky appealed to the board again. The board upheld the commissioner and once more Lemansky appealed to the Superior Court. We refer to this appeal as the “2006 case.”
As we have noted, the cases were consolidated and cross motions for summary judgment were filed. In their motions for summary judgment, the Phillipses and the Briodys argued that Lemansky was not an “aggrieved” person within the meaning of G.L.c. 40A, § 17, and therefore lacked standing to appeal the board's decisions. The first Superior Court judge who ruled on the motions concluded otherwise. That judge determined that Lemansky had standing because Lemansky had demonstrated that construction of the Phillipses' house obstructed the view from lot 15, which, in turn, resulted in a diminution in the value of that property. The judge then addressed the parties' remaining arguments and went on to conclude that because the Phillipses had not participated in the illegal conveyance of lot 30 to the Briodys, they were not prohibited from acquiring lot 31. Therefore, the judge reasoned, lots 31 and 32 were lawfully merged, and the parcel now consisting of lots 31 and 32 had grandfathered protected status under G.L.c. 40A, § 6. Consequently, the judge allowed the Phillipses' motion for summary judgment. However, as to the Briodys, the judge denied summary judgment on the grounds that lots 30 and 31 lost their protected grandfathered status when lot 30 was conveyed to the Briodys in 2000, and that a material question of fact existed as to whether Lemansky was entitled to an equitable remedy, namely, removal of the Briodys' home. The judge also denied Lemansky's cross motion for summary judgment.
After the judge issued his ruling, the Supreme Judicial Court, in Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011), addressed a similar claim brought by an abutter, who, like Lemansky, claimed to have standing to challenge the construction of a home that blocked his view and adversely affected the value of his property. In that case, the court concluded that visual impact and diminution in property value were not sufficient to confer standing unless those injuries are specifically tied to an interest protected by the Zoning Act or a municipality's zoning by-law. Id. at 117–124. The Kenner decision prompted Lemansky and the Briodys to file a joint motion to reconsider the summary judgment decision. That motion was allowed by a different Superior Court judge, who concluded that Lemansky did not have standing because the harms alleged (loss of view and diminution in property value) were not interests protected by the town's zoning by-law. Thus, the judge allowed the Briodys' motion for summary judgment and dismissed Lemansky's complaints.
Discussion. We review the grant of summary judgment de novo. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
a. The 2006 case. We turn first to the 2006 case, which concerns Lemansky's appeal from the board's affirmance of the commissioner's decision to issue a building permit to the Phillipses. The circumstances of the 2006 case are controlled in material respects by the reasoning of Connors v. Annino, 460 Mass. 790 (2011). In that case, the Supreme Judicial Court held “that where the aggrieved party has adequate notice of the building permit's issuance, he or she is required to appeal to the appropriate zoning board of appeals within thirty days of the permit's issue date under G.L.c. 40A, §§ 8 and 15; in such circumstances, a later appeal to the board from a denial of a request for enforcement made pursuant to G.L.c. 40A, § 7, is not an available alternative remedy.” Id. at 791.
The undisputed facts show that Lemansky had adequate notice of the issuance of the building permit authorizing the construction of a single residence on lots 31 and 32. Therefore, Lemansky was required to appeal to the board within thirty days of June 21, 2004, the date the permit was issued. However, Lemansky did not initiate a challenge to the issuance of the building permit until two years later when, on March 28, 2006, he requested that the commissioner revoke the building permit. Lemansky's failure to file an administrative appeal of the building permit within the applicable thirty-day period deprived the board, and therefore the Superior Court, of jurisdiction to hear his appeal. Accordingly, the judgment entered in the 2006 case is vacated and a new judgment shall enter dismissing the action as untimely.
b. The 2004 case. We now turn to Lemansky's appeal from the board's decision affirming the commissioner's denial of Lemansky's request for enforcement as to the Briodys' property. As we have explained, Lemansky contends that the Briodys should be required to remove their home as a result of the their purchase of lot 30 without buying lot 31. The issue before us is whether the judge properly granted summary judgment in favor of the Briodys on the ground that Lemansky lacks standing to challenge the board's decision.
Under G.L.c. 40A, § 17, only a person “aggrieved” by the decision of the board may appeal to the Superior Court. In this case, Lemansky, as an abutter to the Briodys, enjoys a rebuttable presumption that he is an “aggrieved person.” As the Supreme Judicial Court recently instructed in 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012), that presumption may be rebutted in two ways. First, “a defendant can rebut the presumption by showing that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect.” Ibid. Second, “where an abutter has alleged harm to an interest protected by the zoning laws a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption.” Ibid.
The Briodys argue that they have rebutted the presumption of standing because they have shown that Lemansky's claims of aggrievement are not interests protected by either the Zoning Act or the town's zoning by-law. This argument is not entirely correct. Lemansky claims that as the owner of lot 15 he is an “aggrieved” person for three reasons: (1) his view from lot 15 has been obstructed; (2) the value of lot 15 has diminished; and (3) the density of the neighborhood has increased. We agree that as to the first two alleged harms, the presumption of standing has been rebutted because the zoning by-law does not protect against a loss of view or a decrease in property value. As to the third alleged harm, however, we agree with Lemansky that the town's zoning by-law is designed to protect against increased density. Thus, in order for the Briodys to rebut the presumption of standing, they must refute this allegation of harm with “credible affirmative evidence.” Ibid. That is, evidence which “warrant[s] a finding contrary to the presumed fact.” Ibid., quoting from Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003).
The lots at issue are located in the R–40 zoning district, the intent and purpose of which is to “provide sites for low density residential development.” Zoning By-law § 3.1.5.2.
We conclude that the Briodys have satisfied their burden and have successfully rebutted the presumption of standing, because the separation of lot 30 from 31 did not result in an increase in density of the neighborhood. It is undisputed that but for the merger of lots 30 and 31 in 1996, each of the three lots (30, 31, and 32) could have had a residence built on it. Instead of three houses, however, there are only two. Therefore, the presumed fact of aggrievement (increase in density) has been rebutted.
That the presumption of standing has been rebutted does not end our inquiry. We must now determine whether Lemansky has presented “credible evidence to substantiate [his] allegations of aggrievement, thereby creating a genuine issue of material fact whether [he] has standing and rendering summary judgment inappropriate.” 81 Spooner Rd., LLC, 461 Mass. at 703 n. 15. This requires that Lemansky “establish—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community.” Id. at 701, quoting from Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006).
Lemansky cannot meet his burden on the record before us. As we have already stated, the sale of lot 30 to the Briodys did not result in an increase in density of the neighborhood. Furthermore, to the extent that Lemansky claims that he has been harmed because the “practical effect” of the unlawful separation of lot 30 from lot 31 was to permit the Phillipses to purchase lot 31 and build a larger (more “dense”) home which straddles lots 31 and 32, he had a remedy. That remedy, which Lemansky lost due to his own inaction, was to pursue an appeal of the commissioner's decision to issue a building permit for the construction of the Phillipses house in a timely manner.
In sum, the alleged increase in density does not confer standing to challenge the commissioner's denial of Lemansky's request for zoning enforcement as to the Briodys' property. Accordingly, the summary judgment entered in favor of the Briodys on the issue of standing in the 2004 case is affirmed.
Conclusion. In Superior Court case no. WOCV2004–01258B, the judgment is affirmed. In case no. WOCV2006–01660, the judgment is vacated and a new judgment shall enter dismissing the action as untimely.
So ordered.