Schiffenhaus v. Kline

947 N.E.2d 1133, 79 Mass. App. Ct. 600
CourtMassachusetts Appeals Court
DecidedMay 26, 2011
DocketNo. 10-P-1055
StatusPublished
Cited by5 cases

This text of 947 N.E.2d 1133 (Schiffenhaus v. Kline) 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
Schiffenhaus v. Kline, 947 N.E.2d 1133, 79 Mass. App. Ct. 600 (Mass. Ct. App. 2011).

Opinion

Grainger, J.

The board of appeals (board) of the town of Truro (town) issued a building permit to the codefendant Donald Kline for work on his property at 25-27 Stephens Way (Kline property or property). The plaintiffs, direct abutters or abutters once removed, sought judicial review under G. L. c. 40A, § 17. A judge of the Land Court concluded that the town’s building commissioner erred in determining that the project would not increase the existing nonconforming nature of the property, and that the board consequently erred in upholding that determination.

Background. The facts are undisputed. The property comprises 9.11 acres located in a residential district in the town in which the minimum lot size is 33,750 square feet (or roughly three-quarters of one acre) and the minimum frontage is 150 feet on a street of at least forty feet in width. An owner of conforming property is permitted a single family residence and a “habitable studio” as that term is defined in the town’s zoning by-law.3

For many years the property contained a small house of roughly 1,970 square feet, predating the present dimensional requirements. That house qualified as a preexisting nonconform[602]*602ing structure because the land fronted on a street of inadequate width, found by the judge to vary between nine and twelve feet rather than the required forty. Kline’s goal was to transform the existing house into a “habitable studio” by removing the kitchen from that structure, and to construct a new 6,800 square foot residence some 200 feet from the site of the original house. We address the issues in the same order as the judge in his comprehensive memorandum of decision on the defendants’ motion for summary judgment.

Standing. The judge found that the plaintiffs have standing because the defendants failed to proffer any evidence that would rebut the presumption of aggrievement. We agree. The plaintiffs alleged in their complaint that the project would “increase traffic and exacerbate the unsafe conditions on Stephens Way, interfere with the ability of emergency vehicles to access the plaintiffs’ properties, and interfere with the [ejasement that the plaintiffs have over the Kline Property and rely upon for safe access to their properties.” Despite the fact that the property relies for access on a road that is deficient in width under the town’s zoning code, and was alleged to be deficient in quality by the plaintiffs whose properties are located on the same road beyond the Kline property, the defendants offered no evidence that the project would not adversely affect traffic on what the judge described as “this constrained, narrow, twisting road over which the [pjlaintiffs need to pass.”

Standing is a prerequisite for judicial review. Accordingly the defendants might still challenge the judge’s finding, based as it is on the defendants’ failure to rebut the presumption in favor of aggrievement established by the plaintiffs. We therefore also consider the judge’s conclusion that the plaintiffs cannot base a claim of aggrievement on impairment of view. The judge correctly noted that a zoning by-law can create a protected interest in views from a landowner’s property. See Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146-147 (2001). In this case the by-law itself does not explicitly refer to views; it does however incorporate by reference the town’s local comprehensive plan,4 which contains the following statement: “Long and broad [603]*603vistas, sights of harmonious and distinctive architecture, and views of historic and culturally important sites are part of the heritage of Truro. These resources need to be cared for and preserved for the future” (emphasis added). There is no reason why a zoning by-law, like any other document, cannot incorporate material provisions by reference — rather than restating them in full — as is the case here. We note that to establish standing the plaintiffs “would need to show a particularized harm to [their] own property and a detrimental impact on the neighborhood’s visual character.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121 (2011). Accordingly, in the event that standing resurfaces as an issue in future proceedings, we note that the plaintiffs are not precluded as a matter of law from asserting aggrievement on this basis with a showing that they have suffered a harm specific to their property.

Mootness. After the case had been filed in the Land Court, Kline prepared an “approval not required” (ANR) plan, which depicts the road fronting the property as forty feet in width. This plan, he asserted, rendered the case moot because the property was thereby brought into compliance. The judge correctly rejected this argument, noting that the by-law “does not cast its requirement for a road forty feet wide so it can be satisfied merely by drawing a new line on a paper plan.”5 Frontage roads must “in fact exist on the ground.” Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 151 (1983). Even if the plan alone were deemed adequate, “[t]he Board may disapprove a plan if it determines the access road to the subdivision is inadequate.” Truro planning board subdivision regulations, § IV (f)2. See Perry, supra, 153 (board can properly disapprove a plan “because of inadequate access, despite technical compliance with frontage requirements”). Here, moreover, the regulation specifically requires a width of forty feet; it does not permit a separate overriding determination that a lesser width is permissible if it can be deemed of “sufficient width, suitable [604]*604grades and adequate construction.” Compare G. L. c. 41, § 81L(c), as amended by St. 1956, c. 282. As the judge further noted, even if the ANR plan reflected reality, it would result in a nine- to twelve-foot-wide road that temporarily balloons to forty feet while passing along the Kline property and then returns to its constricted state. This casts doubt on whether it provides “adequate access to all of the lots in a subdivision,” G. L. c. 41, § 81M, added by St. 1953, c. 674, § 7, especially after the project has quadrupled the living space, and inferentially the use, of the property.

Alteration. The judge determined that the building commissioner did not abuse his discretion in determining that the “project fits the Truro definition of an ‘alteration.’ ” Our review of the meaning of statutory or regulatory language is de novo. Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).

Section 10.4 of the by-law defines alteration as follows:

“Any construction, reconstruction or related action resulting in a change in the structural parts, height, number of stories, exits, size, use or location of a building or other structure or any other related change.”

We conclude that the project fails to qualify under this definition.

Our analysis begins with the fact that, considered independently, the erection of any new building requires conformity with current zoning regulations. G. L. c. 40A, § 6. A simultaneous and additional change to the property — here, removal of kitchen facilities from the original structure — does not remove this requirement by converting the new house into an alteration of the old cottage.

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Related

Barkan v. Zoning Bd. of Appeals of Truro
126 N.E.3d 1008 (Massachusetts Appeals Court, 2019)
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Neurath v. Bd. of Appeals of Lexington
89 N.E.3d 1204 (Massachusetts Appeals Court, 2017)
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15 N.E.3d 265 (Massachusetts Appeals Court, 2014)

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Bluebook (online)
947 N.E.2d 1133, 79 Mass. App. Ct. 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiffenhaus-v-kline-massappct-2011.