MISC 298265

January 30, 2009


Trombly, J.


This action was commenced by plaintiff, Elisabeth A. McGrath [Note 2] 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 3] 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 careful consideration of all of the evidence, the Court entered a decision today, affirming the decision of the Zoning Board of Appeals of the Town of Chatham.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the Eldredge Property and the Mitchell Property did not merge when they came under common ownership, but remained as separate lots;

ADJUDGED and ORDERED that the 1986 Plan did not consolidate the Eldredge Property and the Mitchell Property;

ADJUDGED and ORDERED that § V.D.4 of the Chatham Zoning Bylaw applies to the Mitchell Property; and it is further

ADJUDGED and ORDERED that the decision of the Zoning Board of Appeals of the Town of Chatham is affirmed; the board correctly upheld the decision of the Building Inspector refusing to revoke to the building permit for the construction of a single-family dwelling on the Mitchell Property.

By the Court (Trombly, J.).


[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.

[Note 2] The plaintiff’s first name was originally misspelled in the complaint, and the parties have continued to use the erroneous case caption, as does the Court, here.

[Note 3] Plaintiff calls the Courts attention to Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 295 (2008), a case on the issue of standing in the context of zoning relief for a nonconforming lot.