Dwyer v. Gallo

897 N.E.2d 612, 73 Mass. App. Ct. 292
CourtMassachusetts Appeals Court
DecidedDecember 5, 2008
DocketNo. 07-P-1242
StatusPublished
Cited by16 cases

This text of 897 N.E.2d 612 (Dwyer v. Gallo) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dwyer v. Gallo, 897 N.E.2d 612, 73 Mass. App. Ct. 292 (Mass. Ct. App. 2008).

Opinion

Brown, J.

The zoning board of appeals of Walpole (board) granted zoning relief to Richard J. Gallo on his petitions for construction of two homes on his adjacent, undersized lots. His direct abutters, John and Maura Dwyer, appealed the board’s decisions to the Superior Court pursuant to G. L. c. 40A, § 17, [293]*293and a judge overturned the board’s decisions after determining that Gallo’s two lots had merged for zoning purposes. Gallo brought this consolidated appeal from the judgments, arguing, as he did in the Superior Court, that the Dwyers lack standing to pursue a zoning challenge. In addition, Gallo argues that even if the Dwyers have standing, the zoning relief granted is the result of a reasonable interpretation of the Walpole zoning by-law (by-law). We conclude that the Dwyers have standing and that zoning relief was improperly granted.

Background. Gallo owns two adjacent lots, lot 1A and lot 2A, deriving from a 1937 subdivision plan that predated the 1956 adoption of the by-law. The two lots front on Common Street in the “Residential B’’ zoning district of Walpole. The parcels have been held in common ownership at least since 1945. Lot 1A, containing 12,918 square feet and 71.42 feet of frontage, has never been improved and abuts the Dwyers’ property on one side and lot 2A on the other.3 Lot 2A, containing 13,418 square feet and 71.94 feet of frontage, was improved in 1932 with a home in which Gallo currently resides.

1. The zoning provisions. Since at least 1956, Walpole’s zoning by-law has required 20,000 square feet and 125 feet of frontage for buildable lots in the residential B zoning district. When the by-law was adopted in 1956, section VI-6 provided that “a lot, track or parcel laid out and recorded prior to the effective date of the applicable area and frontage requirement hereof, and not, on said effective date, adjoining other land of the same owner available for use in connection therewith, may be: (1) divided into two lots where, each lot resulting from such division has not less than eighty (80) per cent of the required lot area and frontage . . . .” Lots 1A and 2A have been held in common ownership since 1945. Not only were Gallo’s two lots adjoining, but neither met the eighty percent requirement.

Currently, section 3-G of the by-law is entitled “NonConforming Uses.” Section 3-G(l) provides that “[a]ny lawful building or structure, or use of a building or structure, or land, existing at the time this by-law or any amendment thereto takes [294]*294effect may be continued although not conforming to the provisions thereof.” Section 3-G(2) of the by-law provides that “[preexisting, nonconforming structures, or uses may be extended, altered, changed or rebuilt only by Special Permit from the [board]. Any such rebuilding, change, extension or alteration shall not be more detrimental than the existing nonconforming use to the neighborhood. Exempted from the requirement for a Special Permit are the following: (a) alteration, reconstruction, extension or structural change to a nonconforming single or two-family residential structure where such change does not increase the nonconforming nature of said. . . ,”4

2. Zoning relief. Gallo seeks to construct a new house on lot 1A and remove the existing house on lot 2A and replace it with a new house in a different footprint. For lot 1A, he sought a special permit to construct a single-family dwelling and garage on a lot with inadequate frontage. There is no mention of the area deficiency in the application. For lot 2A, he sought a special permit to allow the removal of the existing dwelling, shed, and garage, and the construction of a new single family dwelling in what is shown on the plans as a different footprint. The Dwyers, unable to attend the public hearing on the zoning relief requests due to a death in the family, sent a letter in protest of construction on lot 1A.

The board voted to allow a special permit for lot 1A, after first determining that a variance was not required because lot 1A retained its pre-existing nonconforming status in that the “subdivision plan from 1937 . . . predates the Walpole Zoning Regulations [adopted] in 1956.” The board also determined that [295]*295neither a special permit nor a variance is needed for the reconstruction on lot 2A.

Thereafter, the Dwyers appealed from the board’s two decisions pursuant to G. L. c. 40A, § 17. In the Superior Court, Gallo asserted that the Dwyers lack standing to appeal the zoning decisions. While conceding that the Dwyers had failed to rebut Gallo’s challenge to their standing, the judge nonetheless overturned the board’s decisions on the ground that the lots had merged into one lot for zoning purposes. Gallo appeals.

Discussion. 1. Standing. “Under G. L. c. 40A, § 17, only a ‘person aggrieved’ by a decision of a permitting authority has standing to appeal from the decision to the Superior Court.” Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539, 543 (2008). A “person aggrieved” is one who suffers a nonspeculative “infringement of his legal rights.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). Although, as abutters, the Dwyers were entitled to a presumption of standing, that presumption receded when Gallo presented evidence to rebut the presumption, and the Dwyers’ standing, as required, was determined on the basis of all the evidence without giving the Dwyers any benefit of the presumption. See Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376 (1988).5 6 To succeed, the Dwyers must show that the zoning relief granted adversely affected them directly and that their injury is related to a cognizable interest protected by the applicable zoning law. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 31 (2006). “A trial judge’s findings of aggrieved person status will not be reversed unless clearly erroneous.” Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 731 (2007).

On our review of the record, to the extent that the judge determined that the Dwyers are not persons aggrieved, we conclude that her finding was clearly erroneous. The agreed facts reveal that the Dwyers’ property and Gallo’s property are located in a neighborhood where construction is already more [296]*296dense than allowed by the current zoning. We have recognized an abutter’s legal interest in “preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass, at 31, quoting from Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55, 58-59 (1992), S.C., 415 Mass. 329, 330 (1993). See Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 930-931 (2004). The parties submitted a statement of agreed facts at trial indicating that some of the local by-law’s purposes are to “prevent the overcrowding of land, lessen[] congestion, [and] avoid[] undue concentration of population,” all of which are furthered to some extent by the area and frontage requirements of the by-law. There can be little doubt, then, that the Dwyers have raised a private property or legal interest protected by the zoning by-law. See Standerwick v.

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Bluebook (online)
897 N.E.2d 612, 73 Mass. App. Ct. 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwyer-v-gallo-massappct-2008.