MAURA A. NOCE and JON A. NOCE vs. MAURICE G. McGUIRE, WILLIAM F. SMITH, ROBERT P. PISTONE, SR., LEONARD A. DOUGLAS, VINCENT M. KISSELL and GEORGE MORIARTY, as they are members and associate members of and constitute the BOARD OF APPEALS OF THE CITY OF HAVERHILL, RICHARD OSBORNE, as he is the BUILDING INSPECTOR and ZONING ENFORCEMENT OFFICER FOR THE CITY OF HAVERHILL, and JASON STANICHUK, as Trustee of RICKY C. JUNIOR REALTY TRUST

Plaintiffs filed their unverified Complaint on March 10, 2006, appealing pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Haverhill Board of Appeals (the “ZBA”) which denied Plaintiffs’ appeal of the inaction of Defendant Richard Osborne, Haverhill Building Inspector and Zoning Enforcement Officer (“Building Inspector”) to enforce the Haverhill Zoning Ordinances (the “Ordinance”) with respect to the construction of a single-family residence on property owned by Defendant Jason Stanichuk, as Trustee of Ricky C. Junior Realty Trust (the “Trust”). On April 6, 2006, the Trust filed its Answer, and on April 25, 2006, the ZBA and the Building Inspector filed their Answer.

The Trust filed its Motion for Summary Judgment on March 6, 2007, together with supporting brief, Statement of Material Facts, Appendix, and Affidavit of Stephen J. Corcoran, Esq., and portions of transcripts of Jon Noce (“Noce”) and Maura Noce. On the same day, Plaintiffs filed their Cross-Motion for Summary Judgment, together with supporting brief, Appendix, and Affidavits of Jon A. Noce, Philip G. Christiansen, P.E. and Frank A. Smith, Jr. Plaintiffs filed their Opposition on May 8, 2007, and the Trust filed its Opposition on May 10, 2007, together with Affidavits of Robert A. Masys, P.E. and Richard Osborne. On May 31, 2007, Plaintiffs filed their Reply brief, together with Affidavits of David Hewey, Benjamin Nutter, and Maura A. Noce, and the Trust filed its Reply brief. Plaintiffs filed a Motion for a View on June 11, 2007. [Note 1] A hearing was held on all motions on June 20, 2007, and all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiffs own property located at 20 Wharf Lane, Haverhill, MA (“Plaintiff Property”).

2. The Trust acquired property located at 14 Wharf Lane, Haverhill, MA (“Locus”) by deed from Ricky C. Stanichuk (father of Jason Stanichuk) (Ricky and Jason, together, “the Stanichuks”) dated January 10, 1997. [Note 2] Locus abuts Plaintiff Property. Locus is located in both the Special Conservation Zoning District (“SC District”) and the Rocks Village Historic District under the Ordinance. In the SC District, a lot used for a single-family house requires a minimum lot size of two acres, a minimum street frontage of 200 feet, a minimum front yard setback of forty feet, and a minimum side yard setback of twenty-five feet. Locus has a lot area of 13,490 square feet and frontage on Wharf Lane of sixty-four feet.

3. Locus was improved with a single-family residence until May 24, 1958, when a fire destroyed the house. The remains of the house were removed in the spring of 1959, and nothing was ever rebuilt until the Foundation (as hereinafter defined) in 2004. At the time of the fire, Locus was in a Residence A2 Zoning District, which required a minimum lot size of 15,000 square feet and a minimum frontage of 125 feet for a lot improved with a single-family house.

4. By letter dated November 29, 2000, Philip A. Parry, Esq. (attorney for Plaintiffs) wrote Robert Dill (“Dill”), the Building Inspector at the time, about Locus’ grandfather issues. By letter dated December 19, 2000, Dill responded (the “Dill Letter”) that he felt Locus was a “Residential Lot of Record” under G. L. c. 40A, § 6. [Note 3] This response was never appealed to the ZBA.

5. Between November 2000 and October 2005, the Trust spent approximately $65,000 on development costs on Locus.

6. On September 29, 2003, the Building Inspector issued a foundation permit to the Stanichuks. The permit expired on March 28, 2004, and another foundation permit was issued on March 31, 2004. The Stanichuks constructed the foundation on Locus (the “Foundation”) for a single-family house in September 2004 pursuant to the second foundation permit. The Foundation has a front yard setback of 8.2 feet and side yard setbacks of 16.3 feet and 10.7 feet.

7. An application was filed with the ZBA by Rocks Village Historic District Commission (the “Commission”) on June 25, 2004, to appeal the issuance of the foundation permit for Locus because the Building Inspector had not obtained a certificate of appropriateness from the Commission. [Note 4] The ZBA held public hearings on July 21, 2004, and August 18, 2004, and issued a decision (“ZBA Decision 1”) dated August 18, 2004, upholding the issuance of the foundation permit. [Note 5] ZBA Decision 1 was never appealed.

8. In July 2005, the Stanichuks constructed a subsurface sewage disposal system on Locus. On October 7, 2005, the Haverhill Conservation Commission issued a Certificate of Compliance for the constructed sewage disposal system.

9. The proposed plans for the house on Locus indicate an approximately thirty-foot-high house within 6.5 feet of the northerly line of Plaintiff Property and fourteen feet of the northerly side of Plaintiffs’ house. Plaintiffs’ house is twenty-two feet high.

10. On October 28, 2005, Plaintiffs sent a written request (the “Request”) to the Building Inspector seeking enforcement of the Ordinance (lot area, lot frontage, front yard and side yards) relative to the construction of the Foundation. The Request asked the Building Inspector to: (1) determine that the Foundation was in violation of the Ordinance; (2) order the removal of the Foundation; and (3) refrain from issuing any construction permits for Locus. The Request stated, “Please respond to this request, in writing, within fourteen days of receipt, as specified in M. G. L. c. 40A, § 7. Your failure to respond to this request in a timely fashion will be construed as a denial.” Plaintiffs have never received a response from the Building Inspector to the Request.

11. On December 13, 2005, Plaintiffs filed an appeal with the City Clerk’s Office based on the “[i]nability to obtain enforcement action from the Building Inspector under the provisions of the zoning ordinances” relative to Locus. The ZBA held a public hearing on February 15, 2006. [Note 6] At the public hearing, the attorney for the Trust informed the ZBA that a jurisdictional issue had been raised by reason that Plaintiffs had not received a response in writing from the Building Inspector as to the Request; the attorney also informed the ZBA that he would not waive the jurisdictional issue. The ZBA voted on February 15, 2006 (“ZBA Decision 2”), to deny Plaintiffs’ appeal and sustain the Building Inspector’s decision. ZBA Decision 2 stated:

The ZBA also considered Atty. Lanza’s objection to the failure of the [Building Inspector] to providing a written response to his clients’ written request for enforcement of the alleged Zoning Code violations at 14 Wharf Lane. As the ZBA is hearing this matter at this meeting, the ZBA considers these objections waived and although the [Building Inspector] referred this matter to Asst. City Solicitor William S. Faraci as well as giving a verbal response to Atty. Lanza; we will treat the [Building Inspector’s] actions as a constructive denial of the Appellant’s request. This is notwithstanding that Asst. City Solicitor Faraci’s letter dated February 14, 2006 may very [sic] be considered a written response within the Zoning Code. When citizens request enforcement action from the [Building Inspector] rarely do they get a written opinion from the City Solicitor.

The ZBA filed a written notice of such denial with the City Clerk’s office on March 1, 2006.

12. The Building Inspector executed a building permit for a single-family house on Locus dated March 2, 2006 (good for six months), but the building permit has never been picked up by Plaintiffs, and no construction has taken place pursuant to the building permit.

13. As built, the Foundation decreases flood storage on Locus, thus, resulting in increased flooding on Plaintiff Property from storm water and runoff from melted snow.

*******************************

Plaintiffs argue that the size of Locus and the location of the Foundation do not comply with the terms of the Ordinance, and as a result ZBA Decision 2 exceeds the authority of the ZBA. In the alternative, Plaintiffs argue relief in the nature of mandamus pursuant to G. L. c. 249, § 5, ordering the Building Inspector to issue a written response to the Request. The Trust claims that: (1) Plaintiffs do not have standing; (2) this court does not have jurisdiction because the Building Inspector never denied the Request and because Plaintiffs failed to exhaust administrative remedies; (3) the ZBA Decision 2 is precluded by res judicata; (4) Locus is grandfathered under the Ordinance; and (5) the doctrine of laches applies. I shall address each of these issues in turn.

Standing.

The Trust argues that Plaintiffs have no standing to pursue this action. Plaintiffs argue that they have presumed standing because they are direct abutters to Locus, and that they are aggrieved due to increased storm water runoff, reduced natural light and increased glare from artificial light, increased noise, and blocked views.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G.L. c. 40A, § 17. “A ‘person aggrieved’ is one who ‘suffers some infringement of his legal rights.’” Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008) (citing Marashlian, 421 Mass. at 721). A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G.L. c. 40A § 11. [Note 7] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). However, this presumption of standing is rebuttable. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 32-33 (2006). In order for a defendant to rebut the presumption of standing, a defendant is “required to offer evidence ‘warranting a finding contrary to the presumed fact.’” Standerwick, 447 Mass. at 25 (quoting Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995)). If standing is properly challenged, standing is then decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marashlian, 421 Mass. at 721 (internal citations omitted). This review, when based on “all evidence,” “does not require that the fact finder ultimately find a plaintiff’s allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff.” Id. Rather, the question of standing is a “gatekeeping question [that] requires consideration solely of the quantity and quality of evidence the plaintiffs have presented.” Michaels v. Zoning Bd. Of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 453 (2008).

Without presumed standing, “individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). “To qualify for that limited class, a plaintiff must establish–by direct facts and not by speculative personal opinion–that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “Credible evidence” includes

both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.

Butler, 63 Mass. App. Ct. at 441.

In the case at hand, Plaintiffs are direct abutters to Locus and, as a result, have presumed standing. Furthermore, Plaintiffs have alleged four harms (including increased storm water runoff, reduced natural light and increased glare from artificial lighting, increased noise, and obscured and blocked views) based on the ZBA decisions, and have supplied the Trust with affidavits of Philip G. Christiansen (registered professional civil engineer), David Hewey (registered contractor), Benjamin C. Nutter (registered professional architect), and Jon A. Noce (Plaintiff) detailing these harms. [Note 8] The Trust is required to give evidence challenging such alleged harms, and they have supplied the affidavit of Robert A. Masys (registered professional engineer) in that regard.

With respect to drainage, Christiansen states that the as-built condition of Locus has exacerbated drainage issues for Plaintiffs. He states that as a result of the Foundation, flood storage on Locus is decreased, which leads to increased flooding on Plaintiff Property. Hewey notes that Plaintiff Property and Locus are at equal elevations, but indicates that parts of Locus slope towards Plaintiff Property. Hewey also states that the Foundation exacerbates the existing drainage. [Note 9] Noce indicates that the existing drainage negatively impacts Plaintiff Property. Masys, however, has indicated that once construction is allowed to proceed, any drainage problems will be corrected, and that the existing conditions caused by the Foundation construction are not consistent with factors relative to the house to be built and the attendant drainage swales. Masys states that the grading on either side of the Foundation allows stormwater runoff to drain within Locus, that the final grading (to be completed after construction of the house) will allow for drainage to the rear of Locus (away from Plaintiff Property), and that the driveway will be located to allow runoff to drain to the rear of Locus. Masys points out that the grade of Plaintiff Property is generally higher than the grade of Locus, and that drainage will not flow uphill. [Note 10] Although the affidavit of Masys indicates that all evidence submitted by Plaintiffs relate to existing drainage and not drainage as finalized after the proposed house has been built, future drainage is prospective and does not address the alleged harms that currently exist as a result of the Foundation.

With respect to light, Nutter, as a registered professional architect, gives evidence of the blocking of natural light and the casting of shadows by the proposed house. [Note 11] Noce also indicates that the proximity of the proposed house will reduce natural sunlight and create shadows. The Trust gives evidence that the Noce house will also cast shadows, but does not refute the fact that the proposed house on Locus will impact natural light. [Note 12]

The last two harms alleged by Plaintiffs (regarding noise and views) fail. Noce argues that the proposed house will generate noise. Even though Noce offers evidence as to exacerbated noise, such evidence is speculative; moreover, as a layperson he does not support this allegation with any facts. Views, the other alleged harm cited by Plaintiffs, is not a recognized harm for purposes of standing because there is no evidence that the Ordinance authorized this type of harm.

As a result of the foregoing, I find that Plaintiffs have standing relative to alleged harms based on drainage and natural light.

Jurisdiction.

A. Lack of response to the Request.

The Trust argues that this court lacks jurisdiction over the appeal because the Building Inspector never denied the Request and there was nothing to appeal to the ZBA. Plaintiffs argue that this court has jurisdiction because the ZBA has waived the jurisdictional issue.

G. L. c. 40A, § 7, states, in part:

If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefore, within fourteen days of receipt of such request.

This provision has been held to require a written response to a zoning request before an appeal can be taken. See Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 , 432 (2002) (“[I]t would interfere with the effectiveness of [section 7’s] procedure, and encourage precisely the type of litigation which the procedure was designed to replace, if we were to ignore the written decision requirement . . . .”). In the case at bar, the Building Inspector did not file such a written response. However, Hogan v. Hayes, 19 Mass. App. Ct. 399 , 402 (1985), states that the lack of written response from the building inspector, “although it may be spoken of as ‘jurisdictional,’ appears not to be of such significance that a court must take notice of it even if the opposing party fails to press it . . . rather, like a defect of ‘personal’ jurisdiction, it may be overlooked if not timely objected to . . . .” See also Worcester County Christian Commc’ns, Inc. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 (1986). The Building Inspector, in his Affidavit, states that, “I informed [Plaintiffs] that I disagreed with their position [of lack of grandfather status for Locus] . . . My disagreement with their position did not prevent the Board from accepting their appeal and acting upon it.” [Note 13] In ZBA Decision 2, the ZBA treated the actions of the Building Inspector as a constructive denial of Plaintiffs’ request.

The Trust raised the issue of jurisdiction in its Answer, and argues that as a result the issue is not waived. This position, however, is inconsistent with the language in Worcester County, in which the Appeals Court upheld a finding of jurisdictional waiver after noting that the board at issue “knew full well that only the inspector could issue (or deny the issuance of) the permit and that the inspector had failed to act,” yet “[r]ather than issuing the order, the board chose to do more.” Worcester County, 22 Mass. App. Ct. at 85-86. In fact, the board in Worcester County “reached the merits of the application, decided that the permit could not be granted as matter of law, and advised the plaintiff of its right of appeal under G. L. c. 40A, § 17.” Id. at 86. The court went on to characterize the board’s conduct as “ask[ing] that the plaintiff be put to further expense and delay and be required to press its request anew in order to cure a jurisdictional flaw of no major significance.” The court further explained that “[h]ad the board, on the basis of the jurisdictional ground presently asserted, refrained from hearing the matter and deciding it on the merits, we might well have been put to the task of deciding the question left open in Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 (1984) [whether a building inspector could prevent a party from exercising their rights by failing to act upon receipt of an enforcement request].” Id.

In the case at bar, the parties who had control of the jurisdictional issue (the Building Inspector and the ZBA) both timely waived the jurisdictional defect. [Note 14] The Trust was, or should have been, aware of both waivers. Even though the Trust raised the jurisdictional issue at the ZBA hearing, it was clear to the Trust that the ZBA was going forward on the matter. As Worcester County made clear, such decision was made on the basis of saving expense and delay. [Note 15] It is disingenuous for the Trust to object to the waiver after both the Building Inspector and the ZBA had waived the defect. As a result, I find that this court has jurisdiction over the matter.

B. Res Judicata.

The term res judicata consists of both claim preclusion and issue preclusion. Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 843 (2005). The theory behind claim preclusion is that “the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.” Id. (internal quotations omitted). A successful defense under claim preclusion requires: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id. (citing DaLuz v. Dep’t of Corr., 434 Mass. 40 , 45 (2001)). Issue preclusion prevents “relitigation of issues actually litigated in the prior action.” Id. at 844. It requires: “(1) a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.” Id. at 843 (citing Tuper v. N. Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998)).

The Trust argues that Plaintiffs’ claims are barred by the doctrine of claim preclusion for Plaintiffs never appealed the Dill Letter or ZBA Decision 1, and states that both the Dill Letter and ZBA Decision 1 address the same issues as ZBA Decision 2 with respect to the zoning status of Locus. The Dill Letter was a letter from the Building Inspector to Plaintiffs indicating his position with respect to the grandfather status of Locus. ZBA Decision 2 was the formal decision of the municipal board charged with enforcing the Ordinance.

The facts in this matter do not support an allegation of claim preclusion. To begin, the Dill Letter was only an opinion letter from the Building Inspector (a zoning enforcement officer) and not a final decision from a “court of competent jurisdiction.” [Note 16] Moreover, the issue in the Dill Letter was the status of Locus as a grandfathered lot. The issue in ZBA Decision 2 was whether the Foundation complied with the Ordinance. [Note 17] As such, I find that claim preclusion is not applicable to the Dill Letter.

The same analysis applies to ZBA Decision 1. First, the parties involved with ZBA Decision 1 and ZBA Decision 2 were not the same. In ZBA Decision 1, the plaintiff was the Commission. It is irrelevant that Maura Noce was an officer of the Commission; it was a different legal entity. Second, the issue in ZBA Decision 1 was the lack of a certificate of appropriateness from the Commission relative to the Foundation. [Note 18] Finally, there is no final decision of a court of competent jurisdiction, since ZBA Decision 1 was never appealed. For the above reasons, I find that claim preclusion is not applicable to ZBA Decision 1.

Furthermore, the Trust obliquely argues that ZBA Decision 2 is an attack on the Dill Letter and ZBA Decision 1 because the issues are the same. See Kobrin, 444 Mass. at 843-44, and cases cited. The Trust claims that: (1) the Dill Letter was a letter to Plaintiffs and establishes the grandfather status of Locus, and that the Dill Letter was never appealed by Plaintiffs; (2) that ZBA Decision 1 approving the Foundation permit was premised on the grandfather status of Locus, and that Plaintiffs as abutters were aware of the decision and never appealed it; and (3) that ZBA Decision 2 affirmed these two decisions by denying Plaintiffs’ appeal of the Building Inspector’s constructive denial of Plaintiffs’ request to enforce the provisions of the Ordinance because of the grandfather status of Locus.

Just as the Trust’s argument for claim preclusion failed, so, too, does its issue preclusion argument. To begin, neither the Dill Letter nor ZBA Decision 1 were final judgments on the merits. Furthermore, as previously discussed, privity is lacking between Plaintiffs and the Commission, and the issues at play in the Dill Letter and ZBA Decision 1 are not identical to the current matter. For these reasons, I find that issue preclusion is not applicable in this matter.

C. Failure to Exhaust Administrative Remedies.

The Trust argues that Plaintiffs failed to exhaust their administrative remedies because they did not appeal the Dill Letter to the ZBA in 2000 and, therefore, lost their rights to bring this matter again and have an appeal to the ZBA. As previously discussed, Plaintiffs’ letter relative to the Foundation raised new setback issues with the Building Inspector and his response was appealed to the ZBA and then to this court. As a result, I find that in not appealing the Dill Letter, Plaintiffs did not lose their rights to appeal the issuance of the foundation permit (issued by the Building Inspector on March 31, 2004). The Trust’s reliance on Bonfatti v. Zoning Bd. of Appeals of Holliston, 48 Mass. App. Ct. 46 (1999) is misplaced, as Bonfatti dealt with two appeals of the identical legal issue (whether a lot was buildable).

D. Repetitive Application.

The Trust also argues that Plaintiffs’ appeal of ZBA Decision 2 was a “repetitive application” of ZBA Decision 1, citing G. L. c. 40A, § 16. G. L. c. 40A, § 16 states, in part, as follows:

No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds . . . specific and material changes in the conditions upon which the previous unfavorable action was based . . . .

For the reasons stated relative to res judicata, supra, I find that there is no merit in the Trust’s argument that the approval of ZBA Decision 2 was a repetitive application.

Grandfather Status of Locus.

The Trust argues that Locus is protected as a grandfather lot because it existed prior to zoning. With respect to the SC District, the Ordinance currently requires a minimum lot area of two acres, a minimum street frontage of 200 feet, a minimum front yard of forty feet, and a minimum side yard of twenty-five feet. Locus has a lot area of 13,490 square feet and frontage on Wharf Lane of sixty-four feet, and the Foundation has a front yard setback of 8.2 feet and side yard setbacks of 16.3 feet and 10.7 feet. It is obvious that neither Locus nor the Foundation meet current zoning requirements. Furthermore, Locus did not meet the requirements of the Ordinance in effect on June 12, 1956, which required a minimum lot area of 15,000 square feet and minimum street frontage of 125 feet. The prior house on Locus, which was built prior to the enactment of the Ordinance and therefore grandfathered, was destroyed by a fire on May 24, 1958 and the building remains were removed in the spring of 1959. Nothing was ever rebuilt until the Foundation in 2004.

The Trust cites both G. L. c. 40A and the Ordinance as supporting its grandfather analysis. G. L. c. 40A, § 6, par. 1 states, in part:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.

G. L. c. 40A, § 6, par. 4, provides:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

Section 255-54 of the Ordinance provides:

Any lot lawfully laid out by plan or deed duly recorded, or any lot shown on a plan endorsed by the Planning Board with the words ‘approval under the Subdivision Control Law not required,’ or words of similar import, which complies (at the time of recording, or such endorsement, whichever is earlier) with the minimum area, frontage, width and depth requirements, if any, of this chapter and which was not held in common ownership with any adjoining land, may be built upon for single- or two-family residential use provided it has a minimum area of five thousand (5,000) square feet and a minimum frontage of fifty (50) feet.

Plaintiffs argue that both the statute and Ordinance apply only to vacant land that has never been developed, and cite Dial Away Co., Inc. V. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996). Dial Away states that

[s]imilarly, here, we consider that par. 4 of c. 40A, § 6, while applying to some construction on vacant lots, does not apply to ‘reconstruction’ of a single or two-family residential structure. Such reconstruction, as was the alteration to a single or two-family structure in Willard, is explicitly governed by the second “except” clause of par. 1 of § 6 . . . Paragraph 1, but not par. 4, addresses reconstruction.

Id. at 168. Plaintiffs point out that the Supreme Judicial Court (the “SJC”) confirmed this analysis in Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005).

The Trust argues that Rourke v. Rothman, 448 Mass. 190 , 196 (2007) applies, where the SJC stated:

Our interpretation of the first sentence of § 6, fourth par., comports with the legislative policy that § 6 embodies: “Section 6 is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes, assuming the lot meets modest minimum area . . . and frontage . . . requirements.”

Rourke, however, while confirming the statutory policy of keeping once-buildable lots buildable, does not overrule Dial Away and negate the distinction between the first paragraph (developed lot) and fourth paragraph (vacant lot) of G. L. c. 40A, § 6. There is no issue that Locus was formerly a developed lot and is not now vacant land. See Bransford, 444 Mass. at 856 n.7 (referring to vacant land as “a lot on which construction has not begun”).

The Trust also argues that because Locus was once grandfathered, it is still protected. Plaintiffs argue that because there was no building on Locus from 1958 to 2004, any grandfather protection has been lost because the grandfather status was either abandoned or discontinued. The Ordinance at the time of the fire required a commencement of restoration within one year of the fire, which did not occur. [Note 19] Relative to abandonment and discontinuance, section 255-58 of the current Ordinance states:

A. Any nonconforming use of a structure or lot which has been discontinued for a continuous period of two years or more shall not be used again except for a conforming use. . . .

B. Any nonconforming structure which has been abandoned for a continuous period of three years or more shall not be used except for a conforming use and/or converted to a conforming structure.

G. L. c. 40A, § 6 allows towns to extinguish non-conforming uses if abandoned or not used for a period of two years or more. See Bartlett v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 668-69 (1987). Abandonment (when not specifically defined in an ordinance) consists of “the discontinuance of a nonconforming use [structure or lot] must result from ‘the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment.’” Dial Away, 41 Mass. App. Ct. at 172 (citing Derby Ref. Co. v. Chelsea, 407 Mass. 703 , 708 (1990)). While a voluntary demolition of a structure satisfies this test, under certain circumstances, involuntary demolition “may permit the owner to rebuild.” Id. However, such considerations are not necessary in the case at hand, for the Trust fails in its argument that their single-family use was not discontinued. The phrase “not used” in G. L. c. 40A, § 6 “contemplate a simple cessation of a nonconforming use for a period of at least two years.” Bartlett, 23 Mass. App. Ct. at 669. “[W]hen a building is totally demolished, the use to which it was put is necessarily discontinued.” Dial Away, 41 Mass. App. Ct. at 171. Here, the facts are clear that the single-family use, which the Trust seeks to preserve, was discontinued long ago.

As a result of the foregoing, I find that the ZBA exceeded its authority in finding that Locus is grandfathered and authorizing a building permit for Locus.

Laches.

The Trust argues that even if Locus is not grandfathered, Plaintiffs are guilty of laches. It states that Plaintiffs knew of the zoning issue at least as early as their November 29, 2000, letter to Dill, yet took no action between November 2000 and October 28, 2005. During this time, the Trust states that it was materially prejudiced by this delay because it ran up costs relating to development of Locus in the range of $65,000. Plaintiffs argue that laches is not a defense to enforce a municipality’s zoning ordinance and that laches does not run against public rights.

A laches determination is a fact-intensive query. Tzitzon Realty Co. v. Mustonen, 352 Mass. 648 , (1967); Blakeley v. Pilgrim Packing Co., 4 Mass. App. Ct. 19 , 23 (1976). Laches may be found if the facts show an “unjustified, unreasonable, and prejudicial delay in raising a claim.” Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45 , 49 (1990). It is more than mere delay, rather, a “delay that works disadvantage to another.” Moseley v. Briggs Realty Co., 320 Mass. 278 , 283 (1946). Laches provides no defense where “there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts.” Id. at 284.

The facts in this case indicate that approximately five years passed from the time of the Dill Letter to the Request, and that the Trust expended approximately $65,000 on development costs during those five years. [Note 20] Moreover, the facts fail to show an unreasonable delay on the part of Plaintiffs in raising their claim once construction commenced. This court agrees with Plaintiffs, who note that their zoning enforcement request was timely since it occurred within one year of construction of the Foundation and prior to any construction under a building permit. That Plaintiffs filed the Request well within the statute of limitations period set forth in G.L. c. 40A, § 7, which establishes a six-year limitations period for actions arising from activities pursuant to an “original building permit,” is another factor that supports their claim that laches does not apply. [Note 21] Finally, the fact that the issue of Locus’ development was first raised in 2000, by itself, does not support a claim of laches. See W. Broadway Task Force v. Boston Housing Auth., 414 Mass. 394 , 400 (1993) (“It is well established in the Commonwealth that laches does not operate to bar a claim simply because the events which established rights in the plaintiff occurred long ago.”). As a result of the foregoing, I find that laches is not applicable to the case at bar.

Because laches does not apply in the matter at hand, there is no need for this court to address Plaintiffs’ claims that laches does not protect against the enforcement of a municipality’s zoning ordinance or that laches does not run against public rights.

I ALLOW Plaintiffs’ Cross-Motion for Summary Judgment and DENY the Trust’s Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: December 18, 2008