Wells v. Zoning Bd. of Appeals of Billerica

• Decision Date: 24 April 2007
• Docket Number: No. 06-P-537.,06-P-537.
• Citation: 68 Mass. App. Ct. 726,864 N.E.2d 586
• Court: Appeals Court of Massachusetts
• Parties: Judith A. WELLS v. ZONING BOARD OF APPEALS OF BILLERICA & others.<SMALL><SUP>1</SUP></SMALL>

864 N.E.2d 586

68 Mass. App. Ct. 726

Judith A. WELLS v. ZONING BOARD OF APPEALS OF BILLERICA & others.¹

No. 06-P-537.

Appeals Court of Massachusetts, Middlesex.

Argued December 6, 2006.

Decided April 24, 2007.

James T. Dangora, Jr., Billerica, for Edward P. Coneeny & another.

Denise M. Tremblay, Springfield (Philip C. Lombard, Jr., with her) for the plaintiff.

Present: CYPHER, SMITH, & KATZMANN, JJ.

CYPHER, J.

Edward P. Coneeny and Kathleen M. Bavis, trustees of the Bear Hill Realty Trust (trust), appeal from a Superior Court judgment that ordered the removal of a residence Coneeny constructed on land owned by the trustees in Billerica. Because Coneeny is the principal actor in this case, we shall refer to him throughout. He claims that the judge erred in annulling a decision of the zoning board of appeals of Billerica (board), and in ordering the residence removed.

Background. The plaintiff, Judith A. Wells, surprised to see heavy equipment and a large excavation on an adjacent lot one day in August, 2000, and unaware that Coneeny had obtained a foundation permit on April 5, 2000, sought a cease and desist order from Billerica's building inspector. It was denied, and she appealed to the board. Subsequently, Coneeny was issued a building permit on September 7, 2000. Wells's request for a preliminary injunction was denied on September 25. The motion judge stated that "[Wells's] view has already been obstructed, and thus an injunction against further construction would not achieve her desired relief." The motion judge ended with a caution to the effect that if Wells ultimately prevailed in her action, the court had the authority to order the removal of the house, and that the "continued construction of the building . . . pending the outcome of this action, as well as the appeal to the [board], is being done at [Coneeny's] financial peril, and with fair notice that a court may ultimately order the ... building removed from that location."

On an evenly split vote of 2-2, Wells's appeal of the building inspector's refusal to issue a cease and desist order was denied by the board on November 6, 2000, and the decision was filed with the town clerk on November 20, 2000. Pursuant to G.L. c. 40A, § 17, Wells then filed a verified complaint in the Superior Court on December 1, 2000, appealing from the board's decision and also seeking a preliminary injunction to stop further construction. Again her request for a preliminary injunction was denied, this time by another judge, on December 14, 2000. The judge stated that Wells had "failed to sustain her burden of demonstrating irreparable harm," because the house on Coneeny's property was "nearly finished."

Following a jury-waived trial of Wells's action on January 22 and 23, 2003, a third judge annulled the decision of the board. In a lengthy analysis (first decision), the judge found that the construction resulted in certain illegalities under Billerica's zoning by-law (by-law) and G.L. c. 40A. Although the judge stated that the case had a "troubled history," he thought that an order of demolition was not then appropriate. He opined that because the board had not considered the construction in its current configuration or under a revised by-law, Coneeny should have an opportunity to apply to the board to determine whether the illegalities might be rectified by appropriate action of the board. Accordingly, he ordered a judgment annulling the November 6, 2000, decision of the board, but retained jurisdiction to reopen the case if further proceedings were appropriate.² The judgment further provided:

"The owners of Parcels 28-2 and 28-4 [the "locus" upon which the building had been constructed] may, within thirty days after entry of judgment apply to the Board of Appeals for whatever permits, variances or other relief may be appropriate with respect to the structure thereon. The Board is to make its determinations without regard to any self-created hardship stemming from the builder's election to continue construction after he was on notice . . . that continued construction was at his financial peril."

Coneeny thereupon petitioned the board for a height variance and a special permit for a nonconforming building. In its decision on August 6, 2003, the board, concluding that no variance was required, granted a special permit principally on the ground that construction of the house qualified as a reconstruction, and that it "was not more detrimental to the neighborhood." The board unanimously stated that the "dwelling shall remain."

On September 5, 2003, Wells filed a verified complaint in the Superior Court pursuant to G.L. c. 40A, § 17. She challenged the issuance of the special permit, and alleged several factors of nuisance related to occupancy of the house, as well as water runoff impacting her property, caused by further work performed on the locus. This action was consolidated with her prior action and additional evidence was taken by the judge.

In his decision after remand (second decision), the trial judge annulled the August 6, 2003, decision of the board. In a judgment entered on June 2, 2005, the judge declared that the building permit was unlawfully issued, and ordered that the house and foundation be removed and that the site be restored to its undeveloped state.³ Coneeny's appeal followed.⁴

The locus. The history of the land on which Coneeny constructed the house at issue is essential to an understanding of this case. We summarize the judge's findings. Throughout the relevant times until the trial, the locus consisted of two adjoining parcels that had been known by assessors' numbers as parcel 28-2 (2,733 square feet) and parcel 28-4 (3,627 square feet). At some time prior to the adoption of Billerica's first zoning by-law in 1945, each parcel had been formed by merging two smaller lots from among those created in a development known as Nuttings Lake Park, circa 1910. The two parcels had different owners and did not come into common ownership until 1978 under William B. Callison.⁵

In 1995, Callison sold parcel 28-4 to Coneeny's daughter, Angela M. Culot, but retained ownership of parcel 28-2.⁶ In 1998, parcel 28-2 was conveyed to Coneeny by Callison's executors. Coneeny later conveyed it to the trust. In 2000, when the building permit issued, parcel 28-2 was owned by the trust and parcel 28-4 was owned by Coneeny's daughter. The house at issue was constructed straddling the lot line between parcels 28-2 and 28-4. Parcel 28-4 was conveyed to the trust by Culot in January, 2003, some five days before the trial.

While parcel 28-4 remained unimproved until 2000, parcel 28-2 had contained a "rustic" structure variously described as a "cottage," "shack," "camp," "house," or "dwelling," of some 556 square feet, constructed on piers rather than a foundation, and without heat or running water; it apparently was used seasonally. Its deteriorated condition made it prey to vandalism, and after a wall was pushed out and the roof collapsed, it was removed by Callison in 1979. Parcel 28-2 thereafter remained vacant until 2000.

The judge noted that several attempts had been made by owners of parcels 28-2 and 28-4, including Coneeny, to combine the two parcels into a single lot that could be built upon. In 1995, on a 3-2 vote, the board denied a variance sought for that purpose. The decision was appealed to the Superior Court, and while that case was pending, the owners in 1998 were denied a favorable decision by the building inspector on their contention that the parcels were grandfathered; the board upheld the inspector's decision on a 5-0 vote. That decision also was appealed to the Superior Court, and the two cases were consolidated. In April, 1999, summary judgment was entered against the owners. The motion judge relied on Billerica's zoning by-law and G.L. c. 40A, § 6, fourth par., to rule that the two undersized parcels could not be combined to create a lot that would satisfy the requirement of § 6, fourth par., that a grandfathered lot have at least 5,000 square feet of area, thus exempting the land from the current requirements of the zoning by-law (then 30,000 square feet). The owners appealed, but while the appeal was pending, an "understanding" was reached with the board⁷ that the parcels could be combined and that a "reconstruction" of the former cottage would be permitted. Following the issuance of a foundation permit by the building inspector, the two consolidated cases were voluntarily dismissed and the appeal was not pursued further.

Discussion. a. Standing. We need not consider at any length Coneeny's assertion that the judge erroneously concluded Wells had standing. Wells was a person aggrieved when she contested the actions of the building inspector. Compare Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass.App.Ct. 424, 426-428, 771 N.E.2d 199 (2002). Abutters enjoy a presumption of aggrieved person status, and "may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996), and cases cited. It does not appear that Coneeny produced evidence to rebut Wells's grievance claims. A trial judge's findings of aggrieved person status will not be reversed unless clearly erroneous. Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984). The judge properly denied Coneeny's motion for dismissal or directed verdict. Coneeny has not demonstrated that the judge's findings are clearly erroneous.

b. Standard of review. A decision of a zoning board of appeals "cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639, 255 N.E.2d 347 (1970). The decision must not be based on a "standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59...