JOHN SIM and ROSE MARIE SIM v. JOHN SULLIVAN, GEORGE MURRAY, WAYNE HARDING, ROBERT MEANEY, WILLIAM GAFFNEY, JOHN ALBERGHINI, and GENE LANE, as members of the Burlington Zoning Board of Appeals, and ANTHONY SCALZILLI, as trustee of A.V. REALTY TRUST

This action was commenced by plaintiffs, John Sim and Rose Marie Sim on February 2, 2007, as an appeal of a decision of defendant, the Zoning Board of Appeals of the Town of Burlington, pursuant to G.L. c. 40A, § 17. The Zoning Board’s decision upheld a decision of the Local Inspector of the Town of Burlington, declining to rescind a building permit concerning construction of a structure on a parcel of real property, known as and numbered 3 Pontos Avenue in Burlington, owned of record by defendant, Anthony Scalzilli.

On August 30, 2007, plaintiffs filed a motion for summary judgment. Defendants opposed the motion on November 30, 2007, and filed a cross-motion for summary judgment, the same day. On December 26, 2007, plaintiffs filed an opposition to the defendants’ cross-motion for summary judgment. The motions were argued on January 10, 2008, and are the matters presently before the Court.

On June 13, 2008, defendants filed a motion for leave to file supplemental materials in support of their cross-motion. The Court (Trombly, J.) allowed the motion on July 10, 2008. On December 12, 2008, defendants filed a supplemental memorandum. Plaintiffs filed their own supplemental memorandum on February 6, 2009.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Plaintiffs, John Sim and Rose Marie Sim, are owners of a parcel of land, known as and numbered 7 Pontos Avenue in Burlington.

2. Defendant, Anthony Scalzilli is the owner of a parcel of land, known as and numbered 3 Pontos Avenue in Burlington (the Scalzilli Property).

3. Plaintiffs’ property abuts the Scalzilli Property along its northeasterly boundary.

4. The Scalzilli Property is a lot that was created at least as early as 1941.

5. At that time, the lot lay in a residential zoning district.

6. At the time the lot was created, the Zoning Bylaw of the Town of Burlington did not impose dimensional or set back requirements in residential zoning districts.

7. In or about 1943, the town amended its Zoning Bylaw to impose dimensional and set back requirements in residential zoning districts.

8. The Scalzilli Property is currently located in the RO Zoning District. This district requires a twenty-five (25’) foot front lot line set back and a fifteen (15’) foot side set back.

9. Mr. Scalzilli acquired the Scalzilli Property on March 30, 2006. The lot has fifty (50’) foot of frontage and an area of five thousand (5,000) square feet.

10. At the time Mr. Scalzilli purchased the property, a single-family, residential structure stood on the lot.

11. The structure was set back less than twenty-five feet from the front lot line and had a side set back approximately twenty-one (21’) feet from the common boundary with the plaintiffs’ property.

12. On March 16, 2006, a building permit was issued concerning the Scalzilli Property to allow construction of a new single-family, residential structure.

13. The proposed new structure planned a side set back of nine (9’) feet from the common boundary with the plaintiffs’ property.

14. Excavation for the new house began on April 18, 2006.

15. On August 30, 2006, plaintiffs wrote to the Buliding Inspector of the Town of Burlington, arguing that the building permit was improperly issued and requesting enforcement of the side set back requirements, pursuant to § 5.2.0 of the Town of Burlington, Zoning Bylaw. [Note 1]

16. The Local Inspector of the Town of Burlington responded by letter dated September 11, 2006. This letter gives several reasons for the issuance of the building permit.

17. The letter concludes as follows: “If you would like to submit copies of the court cases, I will review your concerns further and consult town counsel for any follow up action required.”

18. Plaintiffs appealed to the Zoning Board of Appeals of the Town of Burlington on October 10, 2006.

19. The Zoning Board issued a decision on January 19, 2007, upholding the alleged decision of the Local Inspector. This action followed.

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Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Id.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 2] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).

I. TIMELINESS OF APPEAL

Initially, defendants argue that plaintiffs’ case is barred because plaintiffs failed to timely appeal the issuance of the building permit to the Zoning Board of Appeals. The legislature provides two independent procedures for challenging municipal action or inaction relating to its zoning bylaw. General Laws, chapter 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 must make a mandamus demand on the municipal officer to enforce the bylaw within six years of the alleged violation. 40A, § 7. 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 case, the building inspector issued the building permit concerning the Scalzilli Property on March 16, 2006. However, plaintiffs contend and defendants do not dispute that plaintiffs did not receive any documentation that would serve to put them on notice of the newly issued building permit. Instead, defendants argue that the plaintiffs should have been put on notice by the excavation of the new footprint of the structure that began on April 18, 2006, nine feet from the parties’ common boundary line. Without determining whether by this event plaintiffs were on notice of the building permit, it is evident that the excavation took place after April, 17, 2006, the last day of the thirty-day appeal period. [Note 3] Therefore, plaintiffs had not been afforded a fair opportunity to appeal the issuance of the permit pursuant to § 8. Plaintiffs then had six years in which to bring a mandamus action against the building inspector to enforce the bylaws, pursuant to § 7, which they did by their letter to the Building Inspector on August 30, 2006. Accordingly, I rule that the plaintiffs’ appeal is timely brought and not barred.

II. STANDING

General Laws, chapter 40A, § 11 provides that an “aggrieved person,” is presumed to have standing to seek judicial review of a discretionary board’s decision. 40A, § 11; Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1958). Under G.L. c. 40A, § 17 an “aggrieved person” is defined as a property owner deemed by the town to be affected by a petition concerning the use of real property. 40A, § 17; Marotta, 336 Mass. at 204; Waltham Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210 , 214 (1975). This presumption of standing 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 the instant case, plaintiffs are direct abutters and, therefore, benefit from the presumption of standing. Defendant’s burden in attempting to rebut this presumption is to show that there is no particularized injury to plaintiffs’ property as a result of the zoning relief. However, defendants fall short of this task. Rather, defendants presume that plaintiffs will claim injury in two areas: obstruction of view and diminution of value, and proceeds to address each. Defendants are correct in their position that diminution of value alone is not sufficient to confer standing on an abutter. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 31-32 (2006); Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940). However, defendants do not support this challenge with evidence that plaintiffs cannot derive such a claim from a protected interest in the Burlington Zoning Bylaws or with evidence that the plaintiffs’ property is not in fact devalued. The Court is not persuaded that plaintiffs’ property does not suffer some injury, especially given the fact that Mr. Scalzilli’s new house is in closer proximity to the plaintiffs’ property line than the previous house. And until rebutted, plaintiffs have no obligation to demonstrate such injury.

III. EFFECT OF THE SEPTEMBER 11, 2006 LETTER BY THE LOCAL INSPECTOR

Defendants argue that this case is not properly brought before the Land Court because the Building Inspector never issued a written decision from which plaintiffs could appeal to the Zoning Board of Appeals. General Laws, chapter 40A, § 7 requires that upon request by a party to enforce zoning, should “such officer or board decline(s) 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.” 40A, § 7.

In the instant case, plaintiffs first made their request of the building inspector to enforce the side set back requirements of the Zoning Bylaw, on August 30, 2006. [Note 4] On September 11, 2006, the Local Inspector responded in a written letter. The inspector’s response states that Mr. Scalzilli’s proposed development was properly issued a building permit. The inspector reasons that the Scalzilli Property is a lot created prior to the 1943, when the Town of Burlington first amended the Zoning Bylaw to impose dimensional and set back zoning requirements. The letter continues that as a result of the preexisting, nonconforming status, G.L. c. 40A, § 6, par. 4 applies to exempt proposed alteration to the structure on the Scalzilli Property from the current set back requirements of the bylaw and that there are no requirements in the bylaw that require a nonconforming structure to be rebuilt on the same footprint. It is clear from the letter that the Local Inspector was not going to enforce the Zoning Bylaw to rescind the building permit. It is equally clear that the inspector was not going to make any further response to the plaintiffs’ request unless plaintiffs submitted case law for town counsel to review.

Defendants argue that the last sentence of the Local Inspector’s letter indicates that this was not a decision declining to enforce the bylaw but rather an offer to review the concerns further with town counsel. The letter concludes: “If you would like to submit copies of the court cases, I will review your concerns further and consult town counsel for any follow up action required.” A fair reading of the letter reveals the Local Inspector believed that the building permit was properly issued under statute, town bylaw, and common local practice. The inspector expresses no intent to alter the issuance in any way. The concluding sentence merely invites plaintiffs to submit further documentation, and expresses a willingness to reconsider his decision with the assistance of town counsel. This letter is intended to be and, in the opinion of the Court, acts as a decision of the Local Inspector to decline to enforce the zoning bylaw. Accordingly, I rule that this case is properly before the Land Court.

IV. DISCUSSION

General Laws, chapter 40A, § 17 provides, “[t]he court shall hear all the evidence pertinent to the authority of the…special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of…such special permit granting authority….” 40A, § 17. The Courts have held that an appeal pursuant to G.L. c. 40A, § 17 is a de novo review of a municipal board’s decision. Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990), review denied 408 Mass. 1103 (1990); see id. However, the review is somewhat circumscribed by the simultaneous obligation to pay deference to the decision of the municipal board in the interpretation of its bylaw. See S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976), review denied 370 Mass. 868 (1976). The Court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). However, where the Court’s finding of facts supports any rational basis to support the municipal decision, the decision must stand. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Britton, 59 Mass. App. Ct. at 75; Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 487 (1979).

In the instant case, the decision of the Zoning Board of Appeals upheld the decision of the Local Inspector. The board’s decision does not state any reason for the denial. The Local Inspector’s decision cites G.L. c. 40A, § 6, par. 4 as the reason for its denial. Section 6 provides for the regulation of preexisting nonconforming uses and structures. Section 6, par. 4 provides an exception to this regulation: [a]ny 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.

40A, § 6. The Courts have interpreted this exception to apply only to undeveloped land. “There is nothing on the face of the fourth paragraph to suggest that it was intended to apply to anything but vacant land. The only reference to a building is found in the last sentence of the paragraph, which sets out one of the circumstances (not applicable here) in which a ‘lot’ may be ‘built upon.’” Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 18 (1987). This conclusion is consistent with the legislative history of the provision. The statutory predecessor to § 6, par. 4 is G.L. c. 40A, § 5A, which “applied to original construction on vacant lots but not to alterations of existing structures which had become nonconforming….” Id. and case cited; Bobrowski, Handbook of Massachusetts Land Use & Planning Law 198 (1993). Therefore, once a lot has been developed with a structure, this exception does not apply.

Without the application of this exception, § 6 continues to regulate preexisting, nonconforming structures. ”Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority…that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” 40A, § 6.

Article IV, § 6.1.2 of the Town of Burlington, Zoning Bylaw designates the Planning Board of the Town of Burlington the permit granting authority that must determine the impact of an alteration of a preexisting, nonconforming structure to the neighborhood for that town. IV, § 6.1.2.

In the instant case, it is agreed that the Scalzilli Property contained a structure at the time Mr. Scalzilli purchased the property. Therefore, the exception to G.L. c. 40A, § 6 does not apply to protect the right to construct a single-family residential structure on the lot. Instead, Mr. Scalzilli is required to seek a determination by the Burlington Planning Board that his proposed construction will not be substantially more detrimental than the existing house. The record does not show that any such determination was made by the Planning Board.

Defendants argue that Article V, § 5.3.1 of the Zoning Bylaw authorizes the Burlington Building Inspector to permit alterations to structures which are previously nonconforming in area, frontage, width, yard, or depth requirements. Section 5.3.1. provides, “A Lot Zoned for Single Family Use shall be protected from increased requirements for area, frontage, front, side and rear yards as provided for in Section 9.4.6 of this Bylaw, in addition to protections that may also exist under the provisions of State Law.” V, § 5.3.1. Section 9.4.6 provides,

Any increase in area, frontage, width, yard, or depth requirements of a Zoning Bylaw shall not apply to a lot for one family residential use which at the time of the first notice of the public hearing was not held in common ownership with any adjoining land, conformed to the then existing requirements, and had less than the proposed requirement but at least five thousand (5,000) square feet of area and fifty (50) feet of frontage.

IX, § 9.4.6.

The language of § 9.4.6 is almost identical to that of G.L. c. 40A, § 6, suggesting that the application of § 5.3.1 is to undeveloped lots only. The purpose of Art. V is to delineate the requirements of a buildable lot. See Town of Burlington, Zoning Bylaw Art. V, § 5.10. Section 5.3.1 with reference to § 9.4.6 excludes from these requirements a preexisting, nonconforming lot in a single-family, residential use zone. A fair reading of the Zoning Bylaws does not allow for an interpretation of § 5.3.1 to permit all alteration to any preexisting, nonconforming, single-family, residential structure meeting the requirements of the previous zoning requirements. Such an interpretation would render § 6.1.2 meaningless with regard to single-family residences and would violate G.L. c. 40A, § 6. Defendants reason that because a bylaw may not define a nonconforming structure more narrowly than G.L. c. 40A, § 6, then this interpretation of § 5.3.1, which is more broad than 40A, § 6, must be valid and, therefore, given deference by the Court. This logic does not follow; a more generous bylaw, while perhaps not void for its definition of a nonconforming structure could still violate the procedures required by § 6. The Local Inspector’s interpretation of § 5.3.1 not only conflicts with the § 6.1.2 of the Zoning Bylaw, but is in violation of the procedure of G.L. c. 40A, § 6, for reviewing alterations to preexisting, nonconforming structures. Accordingly, I rule that the § 5.3.1 of the Zoning Bylaw does not apply to exclude alterations to preexisting, nonconforming, single-family residential structures from review by the Burlington Planning Board.

CONCLUSION

For the foregoing reasons, this Court concludes that the Zoning Board of Appeals of the Town of Burlington exceeded its authority in its decision to uphold the decision of the Building Inspector of the Town of Burlington. The Scalzilli Property is not an undeveloped lot and, so, does not qualify for an exception to the regulation of alterations to preexisting, nonconforming structures, pursuant to G.L. c. 40A, § 6, par. 4. Furthermore, Art. V, § 5.3.1 of the Town of Burlington, Zoning Bylaw does not exclude alterations to a preexisting, nonconforming, single-family, residential structure from review by the Planning Board of the Town of Burlington to determine the impact of the alteration on the neighborhood, pursuant to § 6.1.2 and G.L. c. 40A, § 6. This being a matter of law, the plaintiffs’ motion for summary judgment is hereby DENIED and the defendants’ cross-motion for summary judgment is ALLOWED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 27, 2009