Opinion
11-P-715
05-03-2012
MARK D. NELSON v. TOWN OF WILMINGTON & others.
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
The building inspector for the town of Wilmington (town) denied the plaintiff, Mark D. Nelson, a building permit for the property known as 12 Polk Street (shown as lot 40 on the town's assessor's map 6), because, as pertinent here, the lot lacks frontage on a street as that term is defined in the town's zoning by-law (by-law). On appeal before the town's board of appeals (board), the board granted relief from the requirement that Polk Street be listed on the town's official map conditioned on the plaintiff providing plans and obtaining approval from the town's planning board to construct Polk Street pursuant to G. L. c. 41, § 81G, and upheld the denial of a building permit. The plaintiff appealed the denial of the building permit to the Land Court, which allowed the town's motion for summary judgment and affirmed the board's action. The plaintiff appeals and substantially for the reasons stated by the judge, we affirm.
The judge found that the pertinent version of the by-law defines 'street' as either an improved public way laid out by the town, the county commissioners, or the Commonwealth; a way shown on a plan approved in accordance with the subdivision control law; or a way placed on the official map of the town. The judge further found that Polk Street has never been laid out by the town, county commission, or Commonwealth; it is not on the town's official map; and, although Polk Street is shown on a 1909 subdivision plan, that plan was not approved in accordance with the subdivision control law and it has not been built on the ground in front of the plaintiff's property.
The plaintiff contends that there is a disputed question of fact as to whether Polk Street is constructed on the ground in front of his lot. We disagree. The plaintiff relies on the affidavit of Kevin E. Danahy, a professional land surveyor who submitted an affidavit stating that the 'portion of Polk Street leading to the property is constructed of gravel and measures between twenty-two and twenty-four feet in width,' and its grade is in compliance with the town's street construction regulations. The plot plan attached to Danahy's affidavit depicts an 'Existing Gravel Drive' within the forty-feet wide 'Polk Street' that leads into the lot at issue. The 'Drive' is bordered by a stone retaining wall depicted as running some distance within the footprint of 'Polk Street' and continuing into the lot. Even if we were to accept that the 'Existing Gravel Drive' constitutes a portion of Polk Street, at twenty-two to twenty-four feet in width, it would not provide the 125 feet of frontage required in the zoning district. There is no suggestion in Danahy's affidavit or on the attached plot plan that Polk Street is otherwise constructed on the ground in front of the plaintiff's lot. In addition, the plaintiff has not agreed to construct the street on the ground. Compare LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760, 764 (1992) (affirming reversal of denial of building permit where lot was shown on a 1925 plan predating the subdivision control law and the plaintiff conceded he must first construct the way fronting the lot before building permit may issue). We discern no error in affirming the denial of a building permit on this record.
We agree with the judge that the plaintiff's claim that his lot is entitled to grandfathering protection pursuant to G. L. c. 40A, § 6, is unavailing. First, the record reflects that the plaintiff waived this argument before the board. The judge nonetheless addressed the issue and we, therefore, comment on it briefly. The fourth paragraph of G. L. c. 40A, § 6, consistently has been interpreted to apply to vacant land, Willard v. Zoning Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15, 18 (1987), or a lot that housed a structure at one time but the by-law at the time of purchase permitted building on that lot. Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165, 169 n.7 (1996). The plaintiff ignores that a dwelling existed on the lot from the 1950's until it burned down in 1973. In these circumstances, the lot does not resume its vacant status and par. 4 of § 6 does not apply. Rather, par. 1 of § 6 applies to reconstruction. We have found that a lapse of time following demolition of twenty-three years was so significant that it constituted abandonment of any rights it had as a lawfully nonconforming lot as matter of law. Id. at 172. The over twenty-five years that have elapsed since the dwelling burned down here similarly have caused the lot to lose whatever protection as a lawfully nonconforming lot it once had. See ibid. Moreover, it is important to note that the town has the right to impose requirements as to the construction of ways even as to lots predating the subdivision control law. See LeBlanc, supra.
There is no contention that the lot complied with the by-law when Nelson came into ownership in 2008.
The property had some sort of structure on it (lacking water, plumbing, and heat) until it burned down in 1973 and was never rebuilt.
Finally, the plaintiff makes additional assertions that he made efforts to have Polk Street added to the town's official map but the town's planning board and other town officials did not act on his request. That issue is not properly before us, as all counts of the complaint were dismissed by agreement except for the plaintiff's G. L. c. 40A, § 17, appeal of the board's decision upholding the denial of the building permit. In addition, the record does not support the plaintiff's assertions that the town's director of planning and conservation made false statements in her affidavit, but even if it did, the judge made no such findings and we do not address an issue raised for the first time on appeal.
Judgment affirmed.
By the Court (Rubin, Brown & Hanlon, JJ.),