Valcourt v. Zoning Board of Appeals

718 N.E.2d 389, 48 Mass. App. Ct. 124
CourtMassachusetts Appeals Court
DecidedOctober 21, 1999
DocketNo. 97-P-2313
StatusPublished
Cited by22 cases

This text of 718 N.E.2d 389 (Valcourt v. Zoning Board of Appeals) 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
Valcourt v. Zoning Board of Appeals, 718 N.E.2d 389, 48 Mass. App. Ct. 124 (Mass. Ct. App. 1999).

Opinion

Spina, J.

A Superior Court judge, in a pair of consolidated cases, ordered summary judgment for the plaintiffs, Raymond and Deborah Valcourt and Paul, Wilhelmina, and Joseph Pelletier, abutters to a parcel of land owned by Gale Martelly, trustee of the Martelly Land Trust, in the town of Swansea, the result of which was to annul a decision of the Swansea Zoning Board of Appeals (board) and to declare invalid a building permit issued to Philip R. Martelly, husband of Gale (Martellys). The Martellys, Philip Martelly’s parents, the board, and the building inspector (collectively, the appellants) appeal, claiming that the abutters lack standing and that the judge erred in concluding that the term “frontage” means an uninterrupted line. The Martellys also claim on appeal, for the first time, that the interpretation of the zoning by-law advanced by the abutters deprives them of all economically viable uses of their land, and as such constitutes a taking. We affirm.

The material facts are not in dispute. Philip’s parents acquired approximately 19.5 acres in Swansea on December 15, 1961. The tract had frontage of approximately 260 feet on Pearse Road and frontage in two noncontinuous sections of 262 feet and 122 feet on Wilbur Avenue, both public ways. Over the years, they conveyed smaller parcels from the tract and, by 1994, were left with approximately 16.2 acres having frontage of 20 feet on Pearse Road and frontage in two noncontinuous sections of 111.91 feet and 50 feet on Wilbur Avenue. The 16.2 acres is depicted roughly on the sketch appended to this opinion, shown thereon as two shaded areas labeled A and B.

Philip Martelly filed a plan with the Swansea planning board showing a division of his parents’ 16.2 acre tract into the parcels A and B, as shown on the sketch. Parcel A is shaped like a lower case letter “h.” It contains 5.9 acres and has frontage on Wilbur Avenue in noncontinuous segments of 111.91 feet and 38.09 feet, respectively, for a total of 150 feet, the minimum frontage required under the zoning by-law.5 Parcel B contains about 10.3 acres and has frontage of 11.91 feet on Wilbur Avenue and 20 feet on Pearse Road. The division would create a violation of the zoning by-law because parcel B, a building [126]*126lot on which Philip Martelly’s parents maintain their home, would be left without sufficient frontage on a public way.6,7 Presumably to cure this problem, the registered land surveyor who created the plan inserted a notation that Philip’s brother and sister-in-law, owners of parcels X and Y on the appended sketch, would convey parcel X, which abuts the parents’ tract on Pearse Road, to the parents. Such a transfer would increase the frontage of parcel B on Pearse Road from 20 feet to 170 feet, an amount in compliance with the frontage requirements of the zoning by-law. On July 11, 1994, the planning board endorsed the plan as not requiring approval under the subdivision control law, pursuant to G. L. c. 41, § 81P.8 On October 12, 1994, the parents conveyed parcel A to Gale Martelly, trustee of the Martelly Land Trust. To date, parcel X has not been conveyed to the parents.

Armed with the plan, Philip applied for a building permit to construct a house on parcel A. The building inspector issued the permit on May 8, 1995. On June 15, the abutters made demand on the building inspector, pursuant to G. L. c. 40A, § 7, to enforce the by-law and rescind the permit on the ground that parcel A did not have 150 feet of frontage, measured as a continuous line, and that the proposed division would reduce the frontage of parcel B below the minimum requirements of the by-law. See note 6, supra. The building inspector responded on June 27, declining to rescind the permit. The abutters, filed an appeal with the zoning board on July 18,9 accompanied by notice to the town clerk and the building inspector, in conformity with G. L. c. 40A, § 15. The board held a hearing on September 7, at the conclusion of which counsel for the abutters requested three weeks in which to file a brief. The [127]*127board approved the request. The chair commented that there was no time limit within which the board was required to file its decision, but Deborah Valcourt declared that the board only had until October 26. On October 30, counsel for the abutters notified the board and the parties in interest, in accordance with the procedure set forth in G. L. c. 40A, § 15, fifth par., that the abutters’ appeal had been granted constructively on October 26 for failure of the board to act within 100 days of the filing of the appeal. The board filed its decision on November 8 denying the abutters’ appeal. As reason for its decision, the board stated that the by-law did not require that frontage be a continuous line.

The Martellys filed a complaint for declaratory relief on November 17 seeking a declaration that there had been no constructive grant and that board’s decision was timely and valid.10 The abutters filed a complaint on November 27, 1995, seeking judicial review of the board’s decision pursuant to G. L. c. 40A, § 17.

1. Standing. The appellants argue that the abutters lack standing to appeal the board’s decision because they failed to establish their status as persons aggrieved within the meaning of G. L. c. 40A, § 17. The abutters contend that, as abutters, they are presumed to have standing, and, absent a proper challenge to their status as persons aggrieved, the presumption is sufficient to confer standing to maintain their appeal.

A decision of a zoning board may be challenged only by a “person aggrieved” within the meaning of § 17. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). A person is “aggrieved” if she suffers some infringement of her legal rights. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949); Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 213-215 (1975). The injury must be personal to the plaintiff and supported by specific facts. See Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 132-133 (1992). Abutters, as “parties in interest” who receive notice of the public hearing, are presumed to be aggrieved. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957); Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. 106, 110-111 (1995). The presumption is rebuttable, and recedes if standing is [128]*128challenged and the challenge is supported by evidence. The issue of standing “will be determined on all the evidence with no benefit to the [abutter] from the presumption.” Marotta v. Board of Appeals of Revere, supra at 204. See Watros v. Greater Lynn Mental Health & Retardation Assn., supra at 111; Waltham Motor Inn, Inc. v. LaCava, supra at 215; Barvenik v. Aldermen of Newton, supra at 131-132.

The appellants do not dispute that the abutters were entitled to the presumption of standing. Rather, they contend that the presumption disappeared when that status was challenged by the Martellys’ answer to the abutters’ complaint and by the appellants’ memoranda of law opposing the abutters’ motions for summary judgment. It is not enough simply to raise the issue of standing in a proceeding under § 17. The challenge must be supported by evidence. See Watros v.

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Bluebook (online)
718 N.E.2d 389, 48 Mass. App. Ct. 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valcourt-v-zoning-board-of-appeals-massappct-1999.