Opinion
10-P-1335
02-07-2012
ROBERT SKYDELL & others v. MATTHEW TOBIN & 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 plaintiffs appeal and assert that the Land Court judge erred by (1) affirming a denial by the zoning board of appeals of Chilmark (ZBA) of their enforcement request concerning Matthew Tobin's business operation; (2) denying their petition for a writ of mandamus; (3) failing to act on their request for remand; and (4) dismissing their nuisance claims for lack of subject matter jurisdiction.
Most of the plaintiffs' properties and all of Tobin's property once composed a single, thirty-one-acre parcel owned by George Graves from 1948 until 1967, and then by his daughter, Ann Graves Hunt, from 1967 until it was subdivided in 1980. The area was zoned as agricultural-residential district I (ARD-I) pursuant to a by-law adopted on December 4, 1971. When Graves owned the parcel, it was used solely as a nursery. After his death, Hunt continued her father's activities, adding a landscaping business, and later leased and eventually sold the operation to Tobin, who also purchased the westerly 11.2 acres of the parcel. The remaining land was sold and became the properties belonging to Robert Skydell, Robert Chidsey, and Charles Fitzgerald. In July of 2004, the plaintiffs wrote to the building inspector and zoning enforcement officer of Chilmark requesting zoning enforcement, arguing that the landscaping operation conducted by Tobin does not fall within the scope of uses permitted in the ARD-I zone.
Section 8.0 of the by-law states that '[t]he lawful use of any structure or land existing on January 15, 1973 or at the time an amendment of this bylaw becomes effective which prohibits such use, may be continued, although such structure or use does not conform with the provisions of this bylaw.' The judge also considered in his analysis whether the nonconforming use had been abandoned for a period of seven years. Pursuant to § 8.5 of the by-law, such an abandonment would prevent reestablishment of the use.
Rosemarie Willet resides at the Skydell property but has no ownership interest.
After the building inspector and zoning enforcement officer failed to respond to the plaintiffs' letter, they appealed to the ZBA. The ZBA denied the appeal, and the plaintiffs appealed that decision to the Land Court pursuant to G. L. c. 40A, § 17. The Land Court judge concluded that Tobin's landscaping operation was a protected preexisting, nonconforming use. We affirm the judgment in all respects.
Discussion. The judge's findings of fact are binding on this court unless they are 'clearly erroneous' or there is 'no evidence to support them.' Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (citation omitted). Moreover, our review is 'highly deferential' to a ZBA's 'conclusions regarding interpretations of a zoning ordinance and their application to the facts.' Ibid. Appeals brought pursuant to G. L. c. 40A, § 17, also have the following refinement -- a ZBA's decision and that of the reviewing lower court will be upheld 'if a rational basis for the [decision] exists which is supported by the record.' Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 486 (2009) (citation omitted).
1. Denial of the enforcement request. After concluding that Tobin's use was not permitted by right under the by-law, the judge employed the three-pronged test set out in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973). The judge took the proper steps in deciding that the use constituted a protected preexisting, nonconforming use pursuant to G. L. c. 40A, § 6. Specifically, the judge noted that Tobin's operation was both an on-site nursery and a base for off-site landscaping now and when Hunt owned the property. The area of the operation remains the same as when Hunt owned the property, and the nature of the activities pursued there also are fundamentally the same. While the business has increased, it is of the same kind as it always has been and there has been no change or substantial extension within the meaning of G. L. c. 40A, § 6. These findings are supported by the evidence and are not clearly erroneous.
2. Writ of mandamus. The plaintiffs argue that a writ of mandamus is appropriate in this case. 'Relief in the nature of mandamus is extraordinary and is granted in the discretion of the court where no other relief is available.' Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006). '[M]andamus does not lie if any other effective remedy exists.' Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 135 (1997), quoting from County Commrs. of Middlesex County v. Sheriff of Middlesex County, 361 Mass. 89, 90-91 (1972). Here, the judge did not err in deciding that a writ of mandamus was inappropriate considering the availability of relief pursuant to G. L. c. 40A, § 17.
3. Request for remand. The plaintiffs assert that the judge ignored their requests for remand to the ZBA. The reviewing court need not remand for particularized reasons 'if a rational basis for the denial exists which is supported by the record.' Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 356 (2001). Even without particularized findings by the ZBA, the judge examined the facts de novo and found a rational basis existed for the denial of the enforcement request. The judge concluded that the ZBA's denial of the enforcement action only could have been based on the finding that Tobin's operation was protected as a preexisting, nonconforming use pursuant to G. L. c. 40A, § 6, and thus remand was not required.
4. Nuisance claims. The plaintiffs argue that the judge erred in dismissing their nuisance claims. A Land Court judge properly may exercise subject matter jurisdiction over a nuisance claim if it is ancillary to a claim relating to any right, title, or interest in land. Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008). See G. L. c. 185, § 1(k). Here, the plaintiffs' claims are for relief from the ZBA's denial of an enforcement action, which is neither a right nor a title nor an interest in land. The judge correctly dismissed the nuisance claims.
Judgment affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),