Opinion
21-P-438
04-28-2022
ROBERT P. DOYLE v. ZONING BOARD OF APPEALS OF CHARLTON & others[1] (and a companion case[2]).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Robert P. Doyle, appeals from judgments of the Superior Court, which, inter alia, annulled a decision of the zoning board of appeals of Charlton (board) affirming, in part, a cease and desist order issued by the zoning enforcement officer of the town of Charlton against Hylka Construction Co., Inc. (Hylka). We conclude that the judge erred in his 1 conclusion that Doyle lacked standing to bring his complaint, but that he correctly concluded that Hylka's activity on its property was permissible as an extension of its legally preexisting nonconforming use.
The Superior Court consolidated two separate complaints, one of which was brought by Hylka and others against the board (Hylka case), and the other by Doyle (Doyle case); both sought judicial review of the board's decision under G. L. c. 40A, § 17. In the Hylka case, judgment entered in favor of the plaintiffs; in the Doyle case, the judge dismissed all of Doyle's claims based on lack of standing and ordered judgment to enter against him. Neither the town nor the board participated in the Superior Court proceedings; counsel for the town and the board was present at the trial but participated solely on Doyle's claim that the members of the board acted in bad faith. The board did not file a notice of appeal in the Hylka action, and neither the board nor the town participated in this appeal.
Particularly because it has no effect on the result, we comment only briefly on the question of Doyle's standing. As an abutter to the Hylka property, Doyle enjoyed a rebuttable presumption of standing. G. L. c. 40A, § 11. Once his standing was challenged, with credible evidence, the burden shifted to Doyle to establish that he incurred an injury to a legally cognizable interest, within the scope of protection of the zoning bylaw, that was special and different from the general interests of the community as a whole. See, e.g., 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 7 01 (2 012); Kenner v. Zoning Bd. of Appeals of Chatham, 4 59 Mass. 115, 118, 120 (2011). Contrary to Hylka's contention (which the trial judge appears to have adopted), however, to support standing, Doyle's injury need not be unique to him alone; in other words the fact that other abutting property owners also suffered from the noise generated by Hylka's 2 blasting activities on the property does not defeat Doyle's standing. Instead, each of the abutting property owners who suffered from such noise (an injury, as the trial judge recognized, within the scope of protection of the zoning bylaw) had standing by virtue of such impacts, because the impact on them was special and different from the effects of Hylka's use on members of the community as a whole, particularly those more distant from the Hylka property.
It is likewise immaterial to Doyle's standing that he does not currently reside at the property he owns. It is enough that the blasting conducted on the Hylka property adversely affects his ability freely to use and enjoy his property as he could in the absence of the blasting.
On the merits of Doyle's challenge to the judge's decision, we discern no error in the judge's conclusion that Hylka's current use of its property is a permissible extension of the use conducted on the property since before the current zoning bylaw was adopted.Applying the framework articulated in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 663 (1973), the judge concluded, with support in the evidence, that (1) the nature and purpose of the current use is the same as it was immediately before adoption of the bylaw, (2) the character of the use was essentially the same, and in particular did not effect such a "dramatic increase" as to "rise to the level of a 3 qualitative change or substantial extension" of the use, Oakham Sand & Gravel Corp. v. Oakham, 54 Mass.App.Ct. 80, 84 (2002), and (3) the current use of the property is not "different in kind" as to its effect on the neighborhood than the use at the time the bylaw was enacted. See Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966); Oakham Sand & Gravel Corp., 54 Mass.App.Ct. at 84-85.
Doyle does not appear to dispute on appeal that the use commenced before the adoption of the town's zoning bylaw in 1987.
While we conclude that the trial judge correctly concluded that Hylka's use of its property as of the time of trial is a permissible extension of its protected nonconforming use at the time the bylaw was enacted, we emphasize that that conclusion is specific to the facts and conditions presented at the trial; it is entirely possible that further expansion in scope, location, or degree of the blasting or other mining activity in the future could exceed levels that are permissible under the Powers/Chuckran formula.
Hylka does not, in other words, have the unfettered right to extend or modify its mining activity on its property. To the extent its counsel suggested otherwise at oral argument, he is mistaken.
The judgment against Doyle in civil action no. 1785CV01856 is reversed. The judgment in favor of the plaintiffs in civil action no. 1785CV01866, annulling the board's October 4, 2017 decision and authorizing the plaintiffs to conduct their business in accordance with the judge's decision dated February 4 25, 2021, is affirmed.
So ordered.
Green, C.J., Wolohojian & Henry, JJ. 5
The panelists are listed in order of seniority.