MISC 117640

October 20, 1988

Norfolk, ss.




The plaintiffs have applied for a building permit from the Building Inspector to construct a single-family residence on Lot 34 in the case of D. Cynthia Vitello, and on Lot 35 in the case of her parents, in each instance on Beaverbrook Road in the Town of Norfolk, in the County of Norfolk. The plaintiffs had appealed from a denial of the defendant Building Inspector of an application for a building permit. The Building Inspector and the Zoning Board of Appeals thereafter both held that an exception/special permit was required under the provisions of Sections D.2.h.4.1 and D.2.h.4.2 of the Norfolk Zoning Bylaws (Exhibit No. 1). The decision of the Board of Appeals upholding the Building Inspector's decision in each case contained the following reasons:

1). No evidence was presented to show that the conditions of the Special Permit/Exemption have been complied with and it has expired;

2). No evidence was presented to convince the Board that the Order of Conditions from the Conservation Commission have been met;

3). The Board was not supplied with concrete evidence that this is no longer a Wetland.

The plaintiffs contend that their lots are not within a Flood Plain/Wetlands District if less than twenty-five percent of the lot is without the criteria for a Wetlands District.

A hearing was held at the Land Court on June 9, 1988 at which the testimony of the witnesses was recorded. They included Joseph J. Vitello, one of the plaintiffs, and Gerald E. Hughes, the Building Inspector for the Town of Norfolk, who was called by the defendants. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The Zoning Bylaws of the Town gives a grade of 186 feet as that for a Flood Plain/Wetlands District in the area of locus, but it appears in fact that this elevation is in error and that the proper minimum elevation is 182.6 feet.

2. The concrete slab for one of the houses which Joseph Vitello wishes to construct is at a grade of 181.8 feet.

3. The plaintiffs previously obtained an exemption/special permit from the Zoning Board of Appeals to do certain grading and filling on the premises, but the work was not in fact done. The Conservation Commission has also granted an Order of Conditions which requires a retention area, but this order has not been complied with. Mr. Vitello has excused his non-performance on the ground that he wished to be certain building permits would issue before he spent the money to meet the other town requi rements.

4. The Norfolk Zoning Bylaws provide in Section D.2.h as follows:

2.10 The portion of any lot within the area delineated in section 5 may be used to meet the area and yard requirements for the district or districts in which the remainder of the lot is situated, provided that portion does not exceed twenty-five percent of the minimum lot area.

5. There was no expert testimony as to the actual elevation of the two lots in question nor the extent of the wetlands on either or both of them.

It is clear that no one is entitled to an exception or special permit. The plaintiffs, however, contend that not more than twenty-five percent of either lot is a wetland and that therefore the Zoning Board of Appeals should have reversed the decision of the Building Inspector and ordered building permits to be issued to them. There was no credible evidence as to the extent of the wetlands on the two lots in question nor the grade thereof. However, the plaintiffs seem to misunderstand the meaning of the section of the Bylaws quoted above. It does not say that if less than twenty-five percent of the lot falls within a wetlands, the locus is thereby exempt from the provisions relating to the overlay district. Rather it simply authorizes the use of the wetlands area in the computation of the minimum requirements of the Zoning Bylaw. The Court's attention has not been directed to any provision which suggests that the lot itself is excluded from the overlay district if less than the applicable percentage is without the characterization of a Flood Plain or Wetlands District.

Accordingly there is no ground on which the Court properly can remand the case to the Zoning Board of Appeals to reconsider its decisions in these two matters. It may well be that the plaintiff, on the introduction of appropriate evidence, might be able to establish before the Board that the permit which it sought in 1982 is no longer required. Moreover, while the plaintiffs have not constructed the retention area required by the Conservation Commission, it is understandable that they are reluctant to spend the money therefor until they can be certain that a building permit ultimately will be issued to them. If the plaintiffs are able to prove by credible evidence that neither lot falls within the Flood Plain District, then the circuity of actions required by meeting the provisions of the decision of the Conservation Commission might be avoided by issuing a building permit expressly subject to completion of the requirements of the Conservation Commission. The defendants also gave as a reason for denial of the building permit the failure of the plaintiffs to complete the work set forth in the 1982 application. On this record it cannot be determined whether the plaintiffs still need this relief and so there are no grounds for setting aside this requirement of the ZBA. Also, on the present record there is nothing to show that either the Building Inspector or the Zoning Board of Appeals was wrong in denying the application for an Exception/Special Permit since there is no evidence in the words of the Bylaw "that the proposed use [will] not be detrimental to the public health, safety and welfare." Moreover, the Bylaw further requires that the land be shown to be neither subject to flooding nor unsuitable for the proposed use because of hydrological and topographical conditions. Finally, the Bylaw requires compliance in all respects to the conditions of the underlying district. There is nothing before the Court to show that such findings would be proper and accordingly, for all the foregoing reasons, the decision of the Board of Appeals must be affirmed.

Judgment accordingly.