Opinion
14-P-925
06-01-2015
MAURICE PICARD v. ZONING BOARD OF APPEALS OF WESTMINSTER & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Maurice Picard appeals from a Superior Court judgment dismissing his complaint under G. L. c. 40A, § 17, for lack of standing. The defendant 3333, Inc. appeals from the judge's finding that a lot it owns is not entitled to grandfather status under G. L. c. 40A, § 6.
Background. The record reflects the following facts.
1. The properties. Picard resides at 26 Laurie Lane, Westminster. Picard's property consists, in part, of lots 34 and 43 on a plan of land entitled "Plan & Profile Laurie Lane, Layne Shores, Westminster, Mass. Oct. 23, 1967," recorded at the Worcester north district registry of deeds (subdivision plan). Picard purchased his land from Henry A. Fredette, who created the Laurie Lane subdivision and filed the subdivision plan in the registry of deeds. Picard's deeds grant him "the right to use in common with others a certain area located on Laurie Lane and designated as the Beach Area" on the subdivision plan. Since 1971, Picard, his family, and his guests have used the beach area lot for recreational purposes.
In 1969, Fredette conveyed lot 56 of the subdivision plan to Clement and Pompilia Franciosi. In 1979, the Franciosis took title to the beach area lot, which abuts lot 56 and has been vacant since the subdivision plan was approved in 1967. "Said premises [we]re conveyed subject to restrictions of record[.]" In 1991, the Franciosis conveyed lot 56 to Peter Franciosi. In 2001, the Franciosis conveyed the beach area lot to Michael Franciosi and Lauren Dandrade. In 2009, Michael Franciosi and Lauren Dandrade granted to 3333, Inc. a mortgage secured by the beach area lot. In 2010, 3333, Inc. foreclosed on the mortgage and took title to the beach area lot "subject to the rights of all those who may be entitled thereto to use the premises as a beach area."
2. The zoning ordinance. In 1974, the town of Westminster (town) adopted a zoning ordinance requiring lots located in the R-I zoning district to have a minimum of 30,000 square feet of land area and 100 feet of frontage. While the beach area lot conformed to these requirements, lot 56 did not. On November 2, 1978, the zoning ordinance was amended to require that lots located in the R-1 district have 50,000 square feet of land area. The amendment rendered the beach area lot nonconforming.
All of the lots in the subdivision plan are located in a R-I zoning district.
Although lot 56 was rendered nonconforming by the 1974 zoning ordinance, the Franciosis' house was a permissible "nonconforming use" as that term is defined in the zoning ordinance because it was built before 1974.
"Nonconforming" is defined by the zoning ordinance as "[a] lot that does not conform to a dimensional regulation prescribed by this chapter for the district in which it is located but was in existence at the time of adoption of this chapter and was lawful at the time it was established and conforms to the requirements of MGL c. 40A."
Under the zoning ordinance, "[n]o buildings shall be erected or used and no land shall be used or divided unless in conformity with the regulations of this chapter. All other buildings and all other uses of land or of buildings are hereby expressly prohibited, except those already lawfully existing which by the provisions of this chapter become lawfully nonconforming."
3. The dispute. In March of 2011, 3333, Inc., sought a determination from the town's building inspector that it could build a single family residence on the beach area lot, and asked that a building permit issue. The building inspector determined that a building permit could be issued pursuant to G. L. c. 40A, § 6, because the lot met the zoning requirements in existence between 1967 and 1978 for a single family residence. Picard appealed to the zoning board of appeals (ZBA) from "the Building Commissioner/Zoning Enforcement Officer's finding . . . that the lot conforms to General Laws chapter 40A section 6 as a nonconforming lot and that it meets the Zoning Requirements in existence in order to erect a single family dwelling on said lot[,]" on the basis that "[t]he lot in question was part of an approved subdivision plan which approval endorsed as a 'Beach Area' for the other lots in the subdivision." After a hearing, the ZBA found that lot 56 and the beach area lot were held in common ownership from 1979 until 1991. Two ZBA members voted to reverse the building inspector's determination and one voted to dismiss Picard's appeal. Picard's appeal was denied for failure to obtain three votes in his favor, and he timely appealed to the Superior Court.
The ZBA's decision misidentifies the beach area lot as lot 56 and lot 56 as lot 57.
After a jury-waived trial in Superior Court, judgment entered for the defendants dismissing Picard's complaint and affirming the ZBA's decision. The judge found that Picard lacked standing to challenge issuance of the building permit because he had failed to demonstrate any injury to his easement rights, and that the beach area lot is not grandfathered for zoning purposes. The judge also ordered Picard to pay the defendants' costs.
Discussion. "Upon appeal, we accept a trial judge's findings of fact unless they are 'clearly erroneous,' and do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge's findings." Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014), quoting from Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). While "[w]e uphold the findings of a judge who saw and heard the witnesses unless we are of the 'definite and firm conviction that a mistake' has been made," we review the judge's conclusions of law de novo. Ibid.
1. Standing. "Any person aggrieved by a decision of the [zoning] board of appeals" may appeal the decision to the Superior Court. G. L. c. 40A, § 17, as amended by St. 2002, c. 393, § 2. "A plaintiff is a 'person aggrieved' if he suffers some infringement of his legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). While "[t]he injury must be more than speculative, . . . the term 'person aggrieved' should not be read narrowly." Ibid. (citation omitted).
The judge correctly found that Picard enjoys a rebuttable presumption of "aggrieved person" status. See Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). Once 3333, Inc., challenged the presumption, the judge was required to decide the issue on the basis of all of the evidence. Ibid. "A review of standing based on 'all the evidence' does not require that the factfinder ultimately find a plaintiff's allegations meritorious." Marashlian, supra. Rather, "a plaintiff must 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." Barvenik, supra at 132. "He must show that his legal rights have been, or likely will be, infringed or his property interests adversely affected." Ibid.
Here, Picard's deeds establish that he has an easement over the beach area lot. "An easement is an interest in land which grants to one person the right to use or enjoy land owned by another." Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 133 (1990). Picard's deeds grant him "the right to use in common with others a certain area located on Laurie Lane and designated as the beach area" on the subdivision plan. Picard testified that he purchased his lots from Fredette, with the "understanding that if we purchased the property, we had the rights to use the beach lot or beach area in common with the rest of the people that lived on Patricia Road and back lots on Laurie Lane as a beach lot and recreation area." The judge did not discredit Picard's testimony, which, together with the filed subdivision plan and the deeds, establishes that Picard's property is part of a common "scheme." Snow v. Van Dam, 291 Mass. 477, 482-483 (1935). The scheme is a subdivision offering recreational access to Wyman Pond, with one lot reserved as a beach area for those whose lots do not abut the pond. The scheme is evidenced by the subdivision plan (which shows an undivided beach area lot); Picard's deeds (which define the easement as an "area" known as the beach area and not a portion thereof); Picard's testimony that the beach area lot has never been developed and that he and his family, among others, have used the lot for recreational purposes since 1971; and the town's assessment cards, which state that the beach area lot is unbuildable. The evidence showed that use of the beach area lot was an important component of the subdivision for those without direct access to Wyman Pond, and that the failure to develop it was due to "an intent to reserve it for other than residential purposes." Snow, supra at 486.
While some lots in the Laurie Lane subdivision do not have easement rights to the beach area lot, "[n]either the restricting of every lot within the area covered, nor absolute identity of restrictions upon different lots, is essential to the existence of a scheme." Snow, supra at 483.
The success of any common scheme "is dependent on the adherence to it by each property owner." Gulf Oil Corp. v. Fall River Hous. Authy., 364 Mass. 492, 498 (1974). It is evident from Picard's testimony, the subdivision plan, the assessment cards, and the fact that the Franciosis never developed the beach area lot, that "each property owner underst[ood] the nature of the whole plan before purchase." Ibid. "[A]n earlier purchaser in a land development has long been allowed to enforce against a later purchaser the restrictions imposed upon the latter by the deed to him in pursuance of a scheme of restrictions[,]" as "[e]arlier as well as later purchasers of lots within the area covered by the scheme acquire . . . an interest in the restrictions." Snow, supra at 484. Picard has "a right to enforce [the restrictions] against other landowners similarly restricted[,]" Gulf Oil Corp., supra, and there can be no doubt that Picard's interest "is special and different from the concerns of the rest of the community[,]" Barvenik, supra at 132, because the town consists of more than the Laurie Lane subdivision of which Picard's property is a part. The building inspector's determination that the beach area lot is buildable would allow for construction of a house on a lot which was reserved for recreational use by Picard and approximately twenty other families, and violates Picard's rights in the common scheme by changing the scope of his easement. Picard thus established "a plausible claim of a definite violation of a private right, property interest, or legal interest." Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989). While the judge found that Picard "failed to demonstrate any injury" that falls within the "scope of concern" of the zoning laws, Picard's appeal from the ZBA's decision, which upheld the building inspector's determination that the lot is buildable, falls squarely within the "scope of concern" of G. L. c. 40A, § 17. See Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 483 (1984) (noting that "the Superior Court ha[s] jurisdiction of [an] appeal from [a] board's decision affirming the issuance of [a] building permit"). Accordingly, the judge's decision that Picard lacks standing was erroneous.
While the judge found that Picard's easement "was intended to afford residents of this neighborhood passage to Wyman Pond," he does not state the evidence on which this finding is based. The scope of an easement must be construed "from the parties' intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer." McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 364 (1996). Here, the subdivision plan identifies the whole lot as the beach area and the deeds do not contain any area restrictions on the easement holders' right of access. Picard testified that he purchased his lots with the understanding that the beach area lot would not be developed and that as many as twenty families would share the right to use the lot for recreational purposes. The judge did not find Picard's testimony incredible, and there is nothing in the record to suggest that the easement is limited to gaining access to the pond.
2. Grandfather status. 3333, Inc. appeals from so much of the judge's decision as found the beach area lot not to be grandfathered under G. L. c. 40A, § 6, or the town's zoning ordinance. General Laws c. 40A, § 6, "'grandfathers' once buildable lots held in separate ownership at the time a zoning change resulted in a particular parcel losing its status as a valid residential lot." Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 239 (2001). "The purpose of this provision is 'to freeze and minimize substandard lots,' while at the same time protecting landowners from the hardship of not being able to use a once valid residential lot." Ibid., quoting from Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239, 242 (1976).
In light of the common "scheme" set forth in the subdivision plan and Picard's deeds (and further evidenced by the assessment cards), it is doubtful that the beach area lot was ever a "once-valid buildable residential lot[]." Adamowicz v. Ipswich, 395 Mass. 757, 764 (1985).
There was no error in the judge's conclusion. The ZBA found that lot 56 and the beach area lot were held in common ownership from 1979 until 1991, and it is a "general principle that adjacent lots in common ownership will . . . be treated as a single lot for zoning purposes so as to minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance." Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987). This common-law doctrine of "merger" was not eliminated by G. L. c. 40A, § 6, Preston, supra at 243; thus lot 56 and the beach area lot merged once the Franciosis purchased the latter in 1979. See Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748, 754-755 (2002). The Franciosis' 1979 purchase rendered their adjoining lots compliant with the 1978 ordinance, while the "grandfather" clause of G. L. c. 40A, § 6, was intended to protect "the use of lots that . . . cannot be made compliant with subsequently adopted zoning code requirements by adding adjoining land of the owner." Id. at 754. Once the lots merged, "alienation of one of the nonconforming properties [would] result in realization of the zoning violations by the new owner." Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795, 800 (2015). See Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266, 271 (2008) (noting "the general rule against recreating old lots that resurrect a nonconformity even to subsequent owners"). The beach area lot did not conform to the town's zoning requirements when it was separately conveyed in 2001, and it did not conform in 2010 when 3333, Inc. took title. "[A] new nonconformity is not entitled to grandfather protection under [G. L. c. 40A]," Palitz, supra at 801-802, and the zoning ordinance provides that once "any nonconforming use of any . . . land . . . is changed to a conforming use, it shall not thereafter be put into any nonconforming use." Thus, the judge correctly concluded that the beach area lot is not grandfathered either under G. L. c. 40A, § 6, or under the town's zoning ordinance.
We agree with the judge and reject 3333, Inc.'s argument that the town's ordinance is more liberal than G. L. c. 40A, § 6, as the language in the ordinance mirrors the general rule that prior nonconforming lots may not be resurrected.
3. Costs. Finally, although not argued by either party, we must reverse the portion of the judgment awarding costs against Picard. Under G. L. c. 40A, § 17, "[c]osts shall not be allowed against the party appealing from the decision of the board . . . unless it shall appear to the court that said appellant or appellants acted in bad faith or with malice in making the appeal to the court." The judge made no findings that Picard acted in bad faith or maliciously in appealing the ZBA's decision, and it is difficult to infer bad faith where two members of the ZBA voted in Picard's favor. Absent specific findings, "the assessment of costs against [Picard] was erroneous." Leominster Materials Corp. v. Board of Appeals of Leominster, 42 Mass. App. Ct. 458, 463 (1997).
The portion of the judgment dismissing the complaint is reversed, as is the award of costs. In all other respects the judgment is affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 1, 2015.