E & J PROPERTIES, LLC v. ZONING BOARD OF APPEALS OF FALL RIVER and GENE ALVES, JOHN FRANK III, DENISE LUCCIOLA and RICHARD MATEUS, as they are Members of said Board, LISA A. MEDAS, Trustee of C.B.L. Realty Trust, and C.B.L. REALTY TRUST

This action was filed by E&J Properties, LLC (E&J Properties), on May 26, 2009, appealing a decision of the Defendant Zoning Board of Appeals of Fall River (Board) pursuant to G. L. c. 40A, s. 17. The Board’s decision, filed with the City Clerk on May 7, 2009, reversed an order issued by the Building Inspector, which required Defendant Lisa A. Medas, as Trustee of C.B.L. Realty Trust (C.B.L. Realty) to “cease and desist” her violation of the execution of a variance previously granted with respect to the Subject Property, a parcel of land located in Fall River and bounded by Rodman, Lawrence, Lewiston and Salem Streets. A trial was held on July 26, 2010. The testimony was reported and thirty-eight exhibits filed. E&J Properties and C.B.L. Realty have submitted post-trial memoranda.

Facts

On all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find the following facts:

1. The Subject Property is located in an industrial district.

2. Section 86-56 of Fall River’s zoning ordinances states:

(a) Authority. Pursuant to the mandate and under the authority of M.G.L.A. c. 40A, §§ 10 and 14(3), the board of appeals shall have the power after public hearing for which notice has been given by publication and posting as provided in M.G.L.A. c. 40A, § 11, and by mailing to all parties in interest to grant upon appeal or petition with respect to particular land or structures a variance from the terms, including but not limited to those with respect to use, the applicable regulations of this chapter.

(b) Fee. The appeal or petition shall be accompanied by a fee as required by the city zoning board of appeals to cover the cost of advertising and notice, which shall forthwith be transmitted to the city treasurer to be included in the general funds of the city.

(c) Procedure. The procedure upon appeal or petition shall be as specified in M.G.L.A. c. 40A.

3. On June 14, 2005, C.B.L. Realty applied for a variance “[t]o demolish existing structures and to subdivide [the Subject Property] into twenty (20) buildable lots for use as sites for single-family residences.” The hardship listed on the application is that “[the Subject Property] is a large parcel on border of commercial and residential zone. Industrial uses have vacated this portion of the city. This neighborhood has been transformed.” The application further stated that the proposed use would not be detrimental to the neighborhood because “[o]ther residential uses exist in this neighborhood. Proposed use is for single-family residences.” The application did not reference any specific time frame within which the buildings would be demolished.

4. A plan submitted with C.B.L. Realty’s application for a variance showed that a building occupied by Global Glass (“Global Glass Building”) was located on a portion of the Subject Property and was “to be demolished” if the variance were granted.

5. The minutes of the Board meeting held on August 18, 2005, reflect that C.B.L. Realty appeared before the Board and expressed a desire to “divide the property into 20 lots for single family dwellings” and that “ten lots [would] be 50' x 100' and ten lots would be 50' x 125'.” At the hearing, C.B.L. Realty’s attorney also “stated that many of the industrial businesses are located in the Industrial Park now and this area is becoming more residential.”

6. In a decision filed September 2, 2005, the Board approved C.B.L. Realty’s request to “demolish the existing structures and divide property into twenty lots and construct a single family dwelling on each lot waiving use and dimensional requirements in an Industrial District [IND].” The decision did not recite a date by which the buildings had to be demolished.

7. On March 30, 2006, the Fall River Planning Board endorsed an Approval Not Required plan, which showed the Subject Property divided into twenty lots for the construction of single-family homes.

8. On August 3, 2006, C.B.L. Realty conveyed sixteen of the twenty lots to E&J Properties (Lots 2 through 4, inclusive; Lots 6 through 10, inclusive; and Lots 13 through 20, inclusive). The deed to E&J Properties indicates that the conveyance of the lots is “[s]ubject to the right of [C.B.L. Realty] to maintain the existing encroachment of [the Global Glass Building] upon Lot # 20.”

9. The four lots retained by C.B.L. Realty (Lots 1, 5, 11, and 12) were occupied by the Global Glass Building.

10. The lots retained by C.B.L. Realty form a parcel that meets the dimensional zoning requirements in an industrial district. The sixteen lots conveyed out to E&J Properties form a parcel that meets the dimensional zoning requirements in an industrial district.

11. On August 4, 2006, C.B.L. Realty and E&J Properties entered into an escrow agreement as partial security for C.B.L. Realty’s demolition of the portion of the Global Glass Building located on Lots 3 and 10, which had been conveyed to E&J Properties. That portion of the Global Glass Building was demolished in accordance with the agreement.

12. In January 2009, the Fall River Building Inspector issued a Notice of Violation ordering C.B.L. Realty to immediately “cease and desist” its violation of ordinance section 86-56 concerning the execution of its variance (i.e., requiring C.B.L. Realty to demolish what remained of the Global Glass Building in accordance with the variance granted to it).

13. On January 26, 2009, C.B.L. Realty appealed the Notice of Violation pursuant to G.L. c. 40A, §§ 13, 15, arguing that the express conditions of the variance did not provide a time limit for C.B.L. Realty to accomplish all of the matters permitted by the variance.

14. In accordance with the Board’s request, on April 16, 2009, Corporation Counsel provided its opinion with respect to the issues raised on appeal by C.B.L. Realty. Counsel stated that “the Board chose not to impose any time limitations on the construction of the twenty (20) new housing units nor on the continued existence of the industrial building[s] to be demolished.” Counsel further opined that the division of the Subject Property into twenty house lots, the construction of four houses, and the demolition of a portion of the Global Glass Building constituted a “substantial use” of the rights granted by the variance, and therefore C.B.L. Realty should be permitted to continue to enjoy the rights authorized by the variance.

15. At a meeting held on April 23, 2009, the Board considered the opinion provided by Corporation Counsel and voted to grant C.B.L. Realty’s request to reverse the Building Inspector’s Notice of Violation. The Board cited the transfer of sixteen of the lots and the commencement of construction of single family homes as a substantial use of the rights granted by the variance.

16. The Board’s decision filed on May 7, 2009, reversed the Notice of Violation issued by the Building Inspector.

17. At the time of trial, E&J Properties had sold five homes, had a sixth under agreement and had a seventh under construction. This construction took places on Lots 2, 4, 8, 9, 13, 14, and 15.

Discussion

In an appeal from the decision of a zoning board of appeals pursuant to G.L. c. 40A, s. 17, the reviewing court engages in de novo fact finding; however, the board’s decision will not be overturned unless it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 355-56 (2001) (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999)).

E&J Properties argues that in light of the materials that C.B.L. Realty presented to the Board in support of its application for a variance, which the Board considered in rendering its decision to grant the variance, the variance required the demolition of the Global Glass building. C.B.L. Realty, on the other hand, argues that the decision from which E&J Properties appeals (the Board’s reversal of the Notice of Violation issued by the Building Inspector) constituted the Board’s interpretation of its own decision to grant the variance and was not based on any legally untenable ground nor was it unreasonable, whimsical, capricious or arbitrary.

This Court agrees that in making its decision to grant C.B.L. Realty’s request for a variance, the Board necessarily relied on C.B.L. Realty’s representation that the Global Glass Building would be demolished. The Global Glass Building occupies several of the lots which were created by C.B.L. Realty for the construction of single-family homes. The plan and application submitted by C.B.L. Realty, as well as the Board’s decision to grant the variance, all clearly reference the demolition of the entire Global Glass Building.

However, even assuming that demolition of the Global Glass Building could be construed as a condition of the variance, the Board did not express any deadline by which the demolition must occur. The only time limit of any sort referenced in the Board’s decision to grant the variance is that the rights authorized by the decision granting the variance must be exercised within one year of the grant, otherwise those rights would lapse. [Note 1] If this one year time limit was applied to the demolition of the Global Glass Building, which clearly did not occur within one year of the grant of the variance, it would result in C.B.L. Realty’s right to demolish the Global Glass Building also lapsing. Any lapse of C.B.L. Realty’s right to demolish the Global Glass Building would leave E&J Properties in an even worse position than that in which it currently finds itself - the Global Glass Building would still be standing and, because C.B.L. Realty’s right to demolish it had lapsed, the Global Glass Building would be left standing indefinitely. [Note 2] It must be remembered also that all twenty lots are still in an industrial zone.

Conclusion

This Court cannot supply a time limit for the demolition of the Global Glass Building where one was not provided by the Board itself in issuing its decision to grant the variance. Although the Court is sympathetic to E&J Property’s reliance on the demolition of the Global Glass building when it purchased sixteen lots from C.B.L. Realty in order to construct single-family homes, the Court cannot provide the requested relief in the case currently before it as the Board’s decision to reverse the Notice of Violation issued by the Building Inspector was not based on any legally untenable ground, nor was it unreasonable, whimsical, capricious or arbitrary. Therefore, the Board’s decision is affirmed.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: November 29, 2010