ELIZABETH A. McGRATH v. CHATHAM ZONING BOARD OF APPEALS and DAVID W. MITCHELL

This action was commenced by plaintiff, Elisabeth A. McGrath [Note 1] on April 9, 2004, as an appeal, pursuant to G.L. c. 40A, § 17. Plaintiff seeks to annul a decision of the defendant, the Zoning Board of Appeals of the Town of Chatham, which upheld a decision of the Chatham Building Inspector declining to revoke a building permit relating to a parcel of real property, known as and numbered 76 Orleans Road in Chatham, owned of record by defendant, David W. Mitchell (Defendant Mitchell).

On March 16, 2005, Defendant Mitchell filed a motion for summary judgment. Plaintiff opposed the motion on May 27, 2005. The motion was argued before the Court on June, 2, 2005, and taken under advisement. The Court (Trombly, J.) issued a Decision and Judgment on July 13, 2005, allowing the defendant’s motion for summary judgment on the grounds that defendant successfully challenged the plaintiff’s presumption of standing and that plaintiff lacked standing to bring this action.

On July 27, 2005, plaintiff appealed the Decision to the Appeals Court. That Court issued a Decision on September 5, 2006, vacating the Judgment on the grounds that defendant had not met his evidentiary burden of showing that plaintiff should not benefit from the presumption of standing. The Appeals Court remanded the case to the Land Court for further proceedings consistent with the Appeals Court Decision.

On April 1, 2008, plaintiff filed a motion to add parties and a motion to amend the complaint. Defendants opposed the motions on April 16, 2008. The motions were argued before the Court on April 17, 2008, and taken under advisement. The Court issued an Order on April 25, 2008, denying the plaintiff’s motions to add parties and to amend the complaint. On August 25, 2008, plaintiff filed a motion for reconsideration, which the Court denied on September 23, 2008.

Trial began in Boston on September 23, 2008 and concluded in Orleans District Court on September 24, 2008, at which time the Court took a view of the property. Plaintiff filed a motion in limine, which the Court allowed in part and denied in part. Karen Smith was sworn to take the testimony. Testifying at trial were: Chester N. Lay, Robert Saben, Jr., Andrew Macado, Elisabeth A. McGrath, Eleanor Johnson, and William J. McGovern. Twenty six exhibits and one chalk were admitted into evidence. Post-trial brief were filed on December 2, 2008. Subsequently, plaintiff sent a letter to the Court, calling its attention to new case law. [Note 2] On December 18, 2008, defendants filed a supplemental memorandum refuting the applicability of this new case law. On January 26, 2009, plaintiff filed a memorandum in response to that of defendants.

After reviewing the record before the Court, I find the following facts:

1. Plaintiff, Elisabeth A. McGrath is a resident of Suffern, New York.

2. Plaintiff is the owner of a parcel of land, known as and numbered 3 Hillcrest Road in Chatham (the McGrath Property).

3. The McGrath Property is a corner lot abutted on its southwestern border by a public way known as State Highway Route 28/Orleans Road.

4. The McGrath Property is abutted on its northeastern border by a parcel of land owned of record by Peter O’Neill.

5. The McGrath Property is abutted on its northwestern border by a parcel of land, known as and numbered 76 Orleans Road in Chatham, owned of record by defendant, David W. Mitchell (the Mitchell Property).

6. The Mitchell Property is, in turn, abutted on its northwestern border by a parcel of land owned of record by Kevin P. Eldredge (the Eldredge Property). (A Decision Sketch is attached hereto).

7. On August 22, 1984, Mary V. Eldredge became the sole owner of both the Eldredge Property and the Mitchell Property.

8. Prior to May 12, 1987, the properties at issue were located in the R-20D Zoning District, pursuant to the Zoning Bylaws of the Town of Chatham. In the R-20D District, the minimum square footage requirement for a buildable lot was twenty thousand (20,000) square feet.

9. The Eldredge Property and the Mitchell Property each, individually contain less than twenty thousand square feet. The combined square footage of these two lots is over twenty thousand square feet.

10. On or about July 18, 1986, Mrs. Eldredge commissioned J.M. Monahan, Jr. & Associates to draft a plan of land depicting the Eldredge Property and the Mitchell Property. The plan was drawn by registered land surveyor, Joseph M. Monahan, Jr. (the 1986 Plan).

11. The 1986 Plan is titled “Plan of Land in Chatham, Mass. For: Mary V. Eldredge Scale: 1”-30’ July 16, 1986.

12. The 1986 Plan outlines the combined perimeter of the two lots with a bold line.

13. The 1986 Plan traces the common border shared by the two lots with a dashed line.

14. The 1986 Plan identifies the Eldredge Property as Parcel 1 and the Mitchell Property as Parcel 3.

15. The 1986 Plan calculates the square footage of each lot individually as well as the total square footage of both lots combined.

16. The 1986 Plan does not contain a “zig-zag” line over the common border. This mark is sometimes used in the surveying trade to indicate the excising of a dividing line.

17. At the time, the Eldredge Property contained a house and the Mitchell Property was undeveloped with the exception of a paved driveway used for access the Eldredge Property.

18. On May 12, 1987, the Town of Chatham amended its Zoning Bylaw. Under this amendment, the properties are now located in the R-40 Zoning District, where the minimum area for a building lot is forty thousand (40,000) square feet.

19. On May 18, 1995, plaintiff became the owner of the McGrath Property.

20. At all times relevant to this litigation, the McGrath Property contained a house, which is situated with the front facing the southeasterly border of the lot and its rear facing the northwesterly border (the McGrath House). The rear of the house contains an outdoor patio, an outdoor shower, and a number of windows of rear rooms of the house with views of the Mitchell Property.

21. Sometime in 1996, Mrs. Eldredge offered to sell the Mitchell Property to plaintiff.

22. By deed dated April 10, 1997, Mrs. Eldredge conveyed the Mitchell Parcel to Kevin P. Eldredge.

23. On or about June 23, 2003, prior to becoming owner of the Mitchell Property, Defendant Mitchell filed an application for a building permit with the Chatham Building Inspector, to construct a single-family dwelling on the Mitchell Property. On August 4, 2003, the Building Inspector issued the building permit.

24. By deed dated October 31, 2003, Kevin P. Eldredge conveyed the Mitchell Property to Defendant Mitchell.

25. On November 14, 2003, Defendant Mitchell caused construction to begin on the Mitchell Property. The same day, Mrs. McGrath received a telephone call from her neighbor, Peter O’Neill, informing her of the construction.

26. Plaintiff, by her counsel, wrote a letter to the Building Inspector dated November 18, 2003, demanding that he enforce the zoning bylaw and revoke the building permit.

27. In a letter dated December 1, 2003, the Building Inspector refused to revoke the permit on the grounds that it was properly issued.

28. On January 13, 2004, plaintiff appealed the Building Inspector’s decision to the Chatham Zoning Board of Appeals.

29. At a public hearing on March 11, 2004, the Zoning Board voted to deny the appeal and uphold the decision of the Building Inspector. This action followed.

30. As a result of the construction, the Mitchell Property currently contains a house, which is situated with its front facing the southwestern border of the lot and one side facing the common border with the McGrath Property (the Mitchell House), as well as a paved driveway which runs, in part, parallel and in close proximity to the common border with the McGrath Property.

31. The southwest side of the Mitchell House contains a number of windows in side rooms of the house with views of the McGrath Property.

***

I. TIMELINESS OF PLAINTIFF’S APPEAL

As a threshold matter, defendants argue that plaintiff’s case is barred because she failed to timely file her appeal of the issuance of the building permit. The legislature provides two independent procedures for challenging municipal action or inaction relating to its zoning bylaw. G.L. c. 40A, § 8 provides the procedure for appeals by aggrieved parties to the municipal authority for municipal action in violation of its own bylaw. 40A, § 8. Under G.L. c. 40A, § 15, “[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.” 40A, § 15. In the case of a building permit, a party has thirty days from the date of the issuance to appeal to the municipal board. Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 , 427 (2002).

Simultaneously, G.L. c. 40A, § 7 provides that if a municipal officer “[…] 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 […] declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act […].” 40A, § 7. The Courts have interpreted § 7 to provide a procedure for appeal, where a fair opportunity to appeal was not available under §§ 8 and 15. Fitch v. Bd. of Appeals of Concord, 55 Mass. App. Ct. 748 , 751 (2002); see Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). Such unavailability occurs where there is no municipal action from which to appeal or where a party did not have notice of the municipal action during the thirty-day appeal period.

When § 7 applies, a party makes demand on the municipal officer to enforce the bylaw. If the municipal officer refuses to meet the demand, he or she must inform the party in writing. This written decision then serves as the municipal action from which the party may appeal, pursuant to § 8. This independent procedure is necessary, especially where there is no public notice of the issuance of a building permit, in order to prevent the recipient of a building permit from concealing the permit during the appeal period, thereby, foreclosing the rights of abutters to appeal. Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 480-83 (1984).

In the instant matter, while it is true that plaintiff did not file her appeal within the thirty-day appeal period after the issuance of the building permit, pursuant to G.L. c. 40A, § 8, it is undisputed that plaintiff had no knowledge that a building permit had issued relating to the Mitchell Property; there was no public notice of the issuance of the permit or any activity on the property that would suggest that a building permit had issued during those thirty days following the issuance of the building permit. Accordingly, plaintiff did not “sleep on her rights” and was still entitled to a fair opportunity seek relief. Plaintiff appropriately and timely made demand of the Building Inspector and subsequently appealed his refusal to act to the Zoning Board. I find and rule that this appeal is properly before the Court.

II. STANDING

A property owner deemed by the town to be affected by a petition concerning the use of real property is, pursuant to G.L. c. 40A, § 17, an “aggrieved person.” Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1958). Under G.L. c. 40A, § 11, such a person, is presumed to have standing to seek judicial review of a discretionary board’s decision. Id.; 40A, § 11; Waltham Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210 , 214 (1975). This presumption is rebuttable, however, and “[…] recedes when a defendant challenges a plaintiffs’ status as an aggrieved party and offers evidence to support his or her challenge.” Watros v. Greater Lynn Mental Health & Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995). Once rebutted, plaintiff must put forth credible evidence to substantiate claims of injury to his or her legal rights.

In order to demonstrate standing, a plaintiff must produce evidence of credible, “[…] direct facts and not […] speculative personal opinion—that injury is special and different from the concerns of the rest of the community.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). The harm must be particularized to the plaintiff, and “[…] not merely reflective of the concerns of the community.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). Accordingly, “[…] a general civic interest in the enforcement of zoning laws […] is not enough to confer standing.” Amherst Growth Study Committee, Inc. v. Bd. of Appeals of Amherst, 1 Mass. App. Ct. 826 , 826-827 (1973); Chongris v. Bd. of Appeals of Andover, 17 Mass. App. Ct. 999 , 999 (1984); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 495-96 (1989).

A plaintiff need not show a substantial likelihood of harm greater than that which could result from a use of the property permissible as of right. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996). However, to have standing, plaintiff must be able to demonstrate more than mere speculation, “that there has been some infringement of his legal rights.” Denneny, 59 Mass. App. Ct. at 211. Conjecture, personal opinion, and hypothesis, are not sufficient to substantiate standing. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). The plaintiff must provide factual support for his or her claim of particularized injury, sufficient for “[…] a reasonable person […] to conclude that the claimed injury likely will flow from the board’s action.” Id.; see Marashlian, 421 Mass at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994).

An abutter has a legal interest “[…] in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulation allows,[…].” Tsagronis v. Bd. of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58-59 (1992), S.C., 415 Mass. 329 , 330 (1993); see Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003); McGee v. Bd. of Appeal of Boston, 62 Mass. App. Ct. 930 , 930-31 (2004). Where a violation of the density requirements occurs, the abutter must then show that it has caused particularized harm to the abutter’s property, of the kind protected under the bylaw. Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 295 (2008); see Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 31 (2006).

Plaintiff is an abutter and thus enjoys the presumption of standing. However, defendants have successfully challenged the presumption and offered evidence to support that challenge. Specifically, defendants offer expert testimony that the McGrath Property has not been devalued by the construction of the Mitchell House. Defendants have also posited that any noise emanating from the Mitchell House is not more than what is already experienced on the McGrath Property from State Highway Route 28/Orlean Road, and that any invasion of privacy imposed by the presence of the Mitchell House is not more than what is already experienced on the McGrath Property by the abutting property of Peter O’Neill. Accordingly, the presumption of standing is rebutted and the Court will consider the issue of standing.

Plaintiff claims that the construction of the Mitchell House has caused increased noise and loss of privacy on the McGrath Property as well as diminution of value. Plaintiff further claims that the neighborhood in which the properties at issue lie, is already more dense than the zoning bylaw allows. She argues that the building permit granted to Defendant Mitchell continues to exacerbate this density problem and, because the Mitchell Property abuts the McGrath Property, the McGrath Property suffers a particularized injury. The neighborhood in question is undoubtedly more dense than the bylaw allows; the McGrath property as well as the Eldredge Property are among the nonconforming lots in the area. It is clear that plaintiff has raised a legal interest. The question then is whether the building permit caused the McGrath Property particularized injury and whether that injury is of the kind that the bylaw is intended to prevent.

Plaintiff alleges that the Mitchell House has caused an increase in noise heard on the McGrath Property. However, plaintiff does not produced any evidence of such increase. Plaintiff produces no comparative measurements of the alleged noise, nor does she testify to any specific incidences of having perceived them herself.

Plaintiff also alleges that the Mitchell House has caused a devaluation of the McGrath Property. In support of this allegation, plaintiff’s real estate appraiser, William J. McGovern testified that the Mitchell House was not in conformity with the characteristics of the neighborhood and, therefore, negatively impacted the values of the surrounding properties, with the greatest impact on those properties in closest proximity. However, defendants’ real estate appraiser, Robert Saben, Jr. testified that the value of the McGrath Property increased from the day Defendant Mitchell obtained his building permit to the day the Mitchell House was completed. Mr. Saben further testified that although the real estate market in the area was experiencing an upswing during this time period, the appreciation of the McGrath Property was consistent with the market trend. Defendants conclude that the McGrath Property was not affected by the construction of the Mitchell House.

Mr. McGovern’s study of the neighborhood did not include a valuation of the neighborhood. In fact, his study did not employ any quantitative analysis whatsoever. His conclusions were based entirely on his experienced, yet subjective opinion. Moreover, Mr. McGovern conceded that the Mitchell Property was more conforming to the neighborhood than nonconforming, differing only in lot size. Defendants ask the Court to strike this expert’s testimony because his conclusions are not based on an accepted methodology. Although I am not convinced that the testimony is improper, I do find it thoroughly unpersuasive.

However, I do agree with plaintiff in her contention that the Mitchell House lies in close proximity to the common border with the McGrath Property. Although plaintiff does not contest that the house is in compliance with setback requirements on its southeasterly side, her previous view of woodland from her backyard patio has been dramatically altered. The circumstances of this case are strikingly similar to those in Dwyer v. Gallo. 73 Mass. App. Ct. 292 (2008).

In Dwyer, defendant owned adjacent lots. The first contained a house and the second was undeveloped. The second lot abutted the plaintiff’s property. The properties in question were located in a neighborhood which was already more dense than the zoning bylaw allowed. Defendant sought a special permit to construct a single-family dwelling on the undeveloped lot. Plaintiff brought a challenge to the issuance of the special permit. The Appeals Court ruled that “[…] crowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.” Id. at 297.

In the instant case, the Mitchell Property is a similar size to the lot in Dwyer—in fact somewhat smaller. In addition, plaintiff testified that because of the higher elevation and proximity of the Mitchell Property to the McGrath Property, the backyard of the McGrath Property is no longer private.

Among the stated purposes of the Chatham Zoning Bylaw are:

“- prevention of overcrowding of land, undue concentration of population, […];

- preservation of the value of land and buildings.”

§ I.B. In addition, among the stated intents of the section of the bylaw regulating nonconforming lots are:

“- To promote or maintain compatibility with neighboring properties and natural resources.

- To avoid the creation of adverse impacts on neighboring properties or on natural resources.

- To reduce or minimize existing adverse impacts on neighboring properties or on natural resources.”

§ V. promote and maintain compatibility with neighboring properties and avoid adverse impacts on them. Accordingly, I find and rule that plaintiff has standing to bring this action.

III. EFFECT OF THE 1986 PLAN

An appeal pursuant to G.L. c. 40A, § 17 is a de novo review of a municipal board’s decision. However, such review is limited by the standard that the Court cannot disturb that decision “[…] unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” See Roberts. v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478 , 486 (1999); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639, (1970); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001).

Plaintiff argues that when the Eldredge Property and the Mitchell Property came into common ownership by Mrs. Eldredge in 1984, they merged into a single lot. Plaintiff concludes that because this new lot was undersized under the 1987 amended bylaw, it was improper for the lot to be divided and issued a building permit. Defendants argue that the properties were not merged prior to the 1987 bylaw amendment, and therefore that the exception of the bylaw permitting single-family dwellings on undersized lots applies.

“A basic purpose of the zoning laws is ‘to foster the creation of conforming lots.’” Asack v. Bd. of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999), quoting Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414 n.7 (1993). This purpose “[…] is reflected in the zoning principle that precludes an owner from availing himself of a nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity, […].” Id. Generally, “[…] adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities.” Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987) (and cases cited). This “‘[…] general rule has been consistently applied, before and after the enactment of [our current zoning enabling act, St. 1975, c. 808J].’” Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 238 (1999), quoting Bobrowski, Handbook of Massachusetts Land Use & Planning Law 199 (1993).

The crucial inquiry in determining merger is whether the lot retains a separate identity. Lindsay v. Bd. of Appeals of Milton, 362 Mass. 126 , 131 (1972) (holding undersized lot held in common ownership with adjoining lot did not retain a separate identity because deed conveyed the two lots as one lot and the property had been jointly assessed as one lot). Factors examined in determining separate identity include: (1) the physical division of the lots by a fence or wall; (2) the location of structures on the lot(s); (3) the means in which the lot is assessed; and (4) the description of the lots in the deed. See id.; Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628 , 630 (1953); Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286 , 291 (1979).

However, in certain instances, the Courts have placed minimal emphasis on these factors. “The mere fact that the [deeds] refer to [multiple lots] is insufficient to give rise to a presumption of intention to preserve the lots designated therein.” Lindsay, 362 Mass. at 131. “There is nothing to show that any part of this tract had been physically walled off or separated in any way from any other part, if that would make a difference, which we do not decide.” Vetter, 330 Mass. at 630. “Assessment practices serve only as ‘some indication of the status of the property.’” Heald, 7 Mass App. Ct. at 291 (1979).

The Eldredge Property and the Mitchell Property are adjacent lots. They came into common ownership under Mrs. Edredge in 1984. The parties have presented no evidence that the rules and regulations of the Town of Chatham at that time provided for any exception to the merger doctrine. The question then is whether the properties retained separate identities.

Since gaining common ownership of the properties in 1984, Mrs. Eldredge has not acted in a manner suggesting that the properties were consolidated. Mrs. Eldredge did not attempt to develop the Mitchell Property, nor did she expand her house on the Eldredge Property. The Mitchell Property remained undeveloped, with the exception of the existing paved driveway.

Furthermore, Mrs. Eldredge did not seek a reassessment of her property as a single lot. The properties continued to be assessed by the town as two separate lots. While this is not outcome determinative, the Court does find it persuasive that the properties maintained separate identities. Quite the opposite, Mrs. Eldredge took steps consistent with maintaining separate identities of the properties. In 1986, she commissioned the 1986 Plan, which depicts the Eldredge Property and the Mitchell Property. This plan indicates an intent to define the separate lots. Most strikingly, the plan includes a dividing line between the properties.

Plaintiff argues that the 1986 Plan was commissioned for the purpose of consolidating the two properties. I cannot agree. It seems counterintuitive to include a dividing line separating the parcels that are to be consolidated. Even if such a line were included in a consolidation plan, the drafter would otherwise clearly and expressly indicate that this line was merely a marker of the old boundary and no longer of any significance. In that vein, I am persuaded by the notable absence of a “zig-zag” mark over the dividing line, sometimes used in the surveying trade to indicate the excising of a dividing line. Lastly, I am persuaded by the absence of any other consolidation-identifying feature to the plan either in the title, description, or elsewhere. Instead, the plan maintains the separate parcel numbers and calculations of square footage of each lot.

Plaintiff contends that the plan outlines the perimeter of the parcels with a bold line while making the dividing line a dashed line. Plaintiff further contends that the plan does calculate the combined square footage of the properties. However, these features are not indicative of an intent to consolidate the parcels but, instead, that the plan was truly for the purpose of surveying the two properties owned by Mrs. Eldredge in 1986, as defendants insist.

Plaintiff further submits the testimony of the surveyor who drafted the 1986 Plan, Joseph Monahan, who testifies that his intent was to draw a plan that had the effect of consolidating the two properties. However, Mr. Monahan also admits that Mrs. Eldredge commissioned a plan that surveyed all of her land, without mention of consolidating the properties. On its face, the plan is merely a perimeter plan, and I do not find Mr. Monahan’s testimony to the contrary to be credible. It has been over twenty years since he was hired by Mrs. Eldredge and I cannot believe that his experience as a registered surveyor would lead him to draft such a deficient consolidation plan.

Lastly, the Court is persuaded by the fact that some time in 1996, Mrs. Eldredge sought to sell the Mitchell Property, separately, to plaintiff. Accordingly, I find and rule that the Eldredge Property and the Mitchell Property did not merge into a single lot, but remained separate lots. I further find and rule that the 1986 Plan did not consolidate the properties. Therefore, the Mitchell Property is a separate lot and § V.D.4 of the Chatham Zoning Bylaw applies to permit the construction of a single-family dwelling thereon.

CONCLUSION

For the foregoing reasons, this Court concludes that § V.D.4 of the Chatham Zoning Bylaw applies to the Mitchell Property protecting the right to construct a single-family dwelling. The Eldredge Property and the Mitchell Property did not merge, but maintained separate identities when they came into common ownership. Furthermore, the 1986 Plan did not serve to consolidate the two properties, and therefore, the Zoning Board correctly upheld the decision of the Building Inspector not to revoke the building permit. Accordingly, the decision of the Zoning Board of Appeals of the Town of Chatham is AFFIRMED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: January 30, 2009