Opinion
No. 11–P–1254.
2012-06-26
Denis PEMBROKE & another v. Daniel McCARTHY & others.
By the Court (KANTROWITZ, COHEN, MEADE JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Before us is the appeal of the plaintiffs, Denis and Joan Pembroke, from a Superior Court judgment after a bench trial, in which the judge ruled against the Pembrokes on (1) their appeal from a decision of the board of appeal of the city of Boston (board) granting a permit to the defendants Daniel and Robin McCarthy (McCarthys) to tear down and replace the decks on their three-family house; and (2) the McCarthys' counterclaim alleging that the Pembrokes were trespassing upon the McCarthy's property. We affirm.
1. Zoning appeal. The judge recognized that the Pembrokes, as abutters, were entitled to a presumption of standing, but found that the presumption was rebutted by the McCarthys. Once the presumption was rebutted, the burden was on the Pembrokes to establish by direct facts and not by speculative personal opinion that their alleged injury was special and different from the concerns of the rest of the community. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006).
Ultimately, the judge found that the Pembrokes' assertions of particularized aggrievement were simply not credible and that they failed to meet their burden. The presence or absence of standing is essentially a factual determination, which we will not overturn on appeal unless it is shown to be clearly erroneous. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011). Here, the judge's findings were drawn from credibility determinations based on live testimony, and were amply and sensitively explained in her dictated findings and conclusions. We discern no basis to disturb them.
Although Standerwick referred to G.L. c. 40A, its teachings are applicable to cases arising under the Boston zoning code. Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass.App.Ct. 601, 604 n. 6 (2007).
Deciding as we do, there is no need for us to discuss the merits of the zoning appeal. We note, however, that the judge's analysis of the merits is sound, substantially for the reasons stated in the brief of the board, at pp. 8–11.
2. Trespass counterclaim. Rejecting the Pembrokes' affirmative defense of adverse possession, the judge ordered that they remove a fence that encroached upon the McCarthys' land, and refrain from further trespass. “Whether, in a particular case, the elements [of adverse possession] are sufficiently shown is essentially a question of fact.” Kershaw v. Zecchini, 342 Mass. 318, 320 (1961). To succeed on a claim of title by adverse possession, the claimant must establish a nonpermissive use which is actual, open, notorious, exclusive, and adverse for a continuous period of twenty years. Ibid. If any of the elements remain unproved or left in doubt, the claimant cannot prevail. See Mendonca v. Cities Serv. Oil Co., 354 Mass. 323, 326 (1968).
Here, the judge specifically found that the Pembrokes failed to prove by a preponderance of the credible evidence that they had maintained exclusive possession of the disputed area for any period longer than 1996 to 2007. The judge made this finding after hearing and weighing the testimony. Our review of the record satisfies us that this finding is supported by the evidence and reasonable inferences therefrom, and is not clearly erroneous.
The McCarthys' request for reasonable costs and attorney's fees, which is unaccompanied by explanation or citation to authority, is denied.
Judgment affirmed.