MISC 11-451014

July 16, 2012


Piper, J.



Joseph H. Chiaraluce, as Trustee of the Chiaraluce Realty Trust ("Chiaraluce"), commenced the first of these two actions on July 21, 2011 by filing in this court a complaint under G.L. c. 40A, §17 seeking review of a decision ("Decision") of the Town of Wareham Zoning Board of Appeals ("Board"), whose members are defendants. The Decision was both a victory and a defeat for Chiaraluce. The Board in the challenged Decision upheld on administrative appeal the action of the building inspector, who had determined (after initially issuing a building permit) that he could not legally issue to Chiaraluce as of right a building permit he had requested for the construction of a single-family residence on a beach front lot. In the same Decision, however, the Board issued under a provision of the local zoning law a special permit that authorized the same work. [Note 1]

Denise R. DePedro (as Trustee of the 18 Wankinco Avenue Realty Trust), John W. and Maria P. Downey, and Mary T. Nielsen ("Plaintiffs") filed a separate complaint on July 25, 2011 under G.L. c. 40A, §17 challenging the same Decision. These neighboring landowners assert that a special permit was not available under the Town of Wareham's Zoning Bylaw ("Bylaw"). These cases were consolidated on September 16, 2011.

On March 8, 2012, Plaintiffs filed their motion for summary judgment. On March 22, 2012, Chiaraluce filed a cross motion for summary judgment. Counsel for Chiaraluce, and counsel for Plaintiffs, appeared and argued the motions, on which the court now rules. Municipal counsel chose not to participate in argument, but filed a brief in opposition to Chiaraluce's request.

The following facts are supported by the record and appear without material dispute:

1. Joseph H. Chiaraluce, in his capacity as trustee of the Chiaraluce Realty Trust, holds record title to the property ("Locus" or "Chiaraluce Property") located at 16 Wankinquoah Avenue, Wareham, Plymouth County, Massachusetts that of record comprises two lots, one of whose title has been registered and confirmed by this court: Lot 5A and C5. Lot 5A is more particularly described in the deed recorded at the Plymouth County Registry of Deeds in Book 12168, Page 262. Lot C5 is more particularly described in the deed filed at the Plymouth County Land Registration District of this court as Document Number 356086, and in the resulting Certificate of Title issued by the District, Number 85152. Locus is shown on Town of Wareham Assessors Map 50A and has an area of 7,012 square feet and no frontage on a street; it is accessible only by a twelve-foot wide right of way. The Chiaraluce Property is located in an R-30 residential zoning district in which currently the minimum required lot size is 30,000 square feet and the minimum street frontage is 150 feet. Locus thus fails to meet both current area and street frontage requirements.

2. Bylaw § 1322 provides:


A nonconforming building or structure which has been damaged or destroyed may be repaired or rebuilt provided that such restoration shall not exceed the original area and height and shall be placed no nearer the street line than the building or structure which the restoration replaces and that there is no material change in exterior appearance except according to the terms of a Special Permit issued by the Board of Appeals.

3. Bylaw §§ 1334 and 1335 provide, in relevant part:

1334 Alteration, Reconstruction, Extension Or Structural Changes To Pre-existing Nonconforming Single And Two-Family Residential Structures.


As provided for in M.G.L c. 40A sec. 6, a nonconforming single or two-family dwelling or structure accessory thereto may be altered, reconstructed, extended or otherwise structurally changed provided that: (1) the proposed alteration, extension or structural change itself conforms to the requirements of the present By-Law and does not intensify any existing non-conformities or result in any additional non-conformities in which event the Building Inspector may issue a building permit and an application to the Board of Appeals need not be made; or (2) as provided below the Board of Appeals finds that (i) there is no substantial increase in the nonconforming nature of said structure; and (ii) such reconstruction, alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use ...

4. Bylaw §§ 1340 and 1341 provide, in relevant part:



All nonconforming agricultural, horticultural and floricultural uses, which have been abandoned or discontinued for more than five years, shall not be re-established. All other nonconforming uses, which have been abandoned or discontinued for more than two years, shall not be re-established. In both cases, any future use shall be in conformity with the provisions of this By-Law.

5. The Chiaraluce Property had been improved with a single-family cottage-type residence that was damaged by Hurricane Bob on August 19, 1991. The cottage was ten feet tall, twenty feet long, and thirty feet wide, and had a gross living area of 600 square feet. The cottage had also a 192 square foot screened porch and a 243 square foot attached deck. The total foot print was 1,035 square feet. In or about September of 1991, Chiaraluce's predecessors in title, the Olsens, demolished and removed the cottage at least in part to respond to the damage inflicted by Hurricane Bob. In 1991, the Town authorized a "blanket" special permit for reconstruction of residences destroyed by the hurricane. In March of 1992, the Olsens obtained a building permit under authority of the blanket special permit, permitting them to reconstruct the dwelling on the Locus. The Olsens obtained a six-month extension of that building permit on February 18, 1993. They never commenced any construction on the site.

6. Chiaraluce bought the Locus from the Olsens on July 30, 1993. Chiaraluce since has made several attempts over many years to proceed with reconstruction. In March, 2001, he applied for a building permit that was denied by the Building Inspector. Chiaraluce then applied for a special permit, which the Board denied in June, 2001. In late-March or early-April, 2003, he again applied for a special permit that was granted by the Board on January 27, 2004. This special permit became the subject of an appeal (by neighbors, including some party to these current cases) to the Superior Court, and resulted in review by the Appeals Court which, in a June 7, 2007 memorandum decision under its Rule 1:28, Nielsen v. Board of Appeals of Wareham, 69 Mass. App. Ct. 1106 (2007), overturned the Board's January 27, 2004 decision granting the special permit. In September, 2009, Chiaraluce sought an advisory opinion from the Building Inspector that the Chiaraluce Property was buildable as-of-right. After receiving an affirmative response from the Building Inspector, Chiaraluce applied for a building permit.

7. On May 27, 2010, the Building Inspector issued a building permit to Chiaraluce for the construction on the Chiaraluce Property of an elevated ranch-type dwelling having a floor area of 2,464 square feet.

8. On July 14, 2010, in response to Plaintiff DePedro's request, the Building Inspector ordered the cessation of all work and revoked the permit. In early September, 2010, Chiaraluce requested the Building Inspector to reinstate the permit. By letter dated September 10, 2010, the Building Inspector denied Chiaraluce's request.

9. On October 14, 2010, Chiaraluce filed a petition with the Board appealing the Building Inspector's September 10, 2010 denial, and alternatively requesting a special permit pursuant to either § 1322 or § 1335 of the Bylaw.

10. During the pendency of his appeal to the Board, on December 15, 2010, Chiaraluce filed an application for a building permit to construct a substantially smaller single-family residence on the Chiaraluce Property as-of-right under Bylaw § 1335. The Building Inspector denied this application on January 3, 2011. Chiaraluce appealed the Building Inspector's January 3, 2011 denial to the Board.

11. On June 22, 2011, Chiaraluce voluntarily withdrew his appeal of the Building Inspector's September 10, 2010 denial to reinstate the May 27, 2010 building permit.

12. By the Decision, dated July 13, 2011 and filed with the Town Clerk on July 14, 2011, the Board upheld the Building Inspector's January 3, 2011 denial of the permit to construct as-of-right; the Board issued a special permit, subject to conditions, for the proposed reconstruction of the single-family residence on the Chiaraluce Property.

13. The structure authorized by the Decision is a one-story single-family residence that must be constructed on concrete columns, bringing the overall height to 25.43 feet. The living area will measure 28 feet wide by 31.5 feet long for a total living area of 882 square feet. Outside the living area there will be an attached deck and stairway with an area of 152 square feet. The total proposed foot print is 1,034 square feet. The proposed structure conforms with the Bylaw in all respects, except for lot size and frontage, and would partially obstruct the Plaintiffs' views of Swifts Beach, the Wareham River basin and part of Buzzards Bay.

14. Plaintiff Denise R. DePedro, trustee of 18 Wankinco Avenue Realty Trust, holds title to the property located at 18 Wankinquoah Avenue in Wareham, which directly abuts the westerly boundary of the Chiaraluce Property.

15. Plaintiff Mary T. Nielsen is the owner of property located at 13 Wankinquoah Avenue in Wareham, which is located within 300 feet of Chiaraluce Property and abuts a lot which directly abuts the Chiaraluce Property.

16. Plaintiffs John W. Downy and Maria P. Downy are the owners of property located at 15 Wankinquoah Avenue in Wareham, which is located within 300 feet of the Chiaraluce Property and abuts a lot which directly abuts the Chiaraluce Property.

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In their motion for summary judgment, the Plaintiffs ask the court to rule (1) that Plaintiffs are persons aggrieved who have standing to bring and prosecute their appeal; (2) that the use of the Chiaraluce Property for a single-family residence has been abandoned and discontinued; and (3) that the Board exceeded its authority under Bylaw § 1322 by granting Chiaraluce a special permit for the construction of the proposed single-family residence.

In his cross motion for summary judgment, Chiaraluce asks the court to find that the Board erred when it decided that the proposed single-family residence cannot be constructed on the Chiaraluce Property as-of-right; Chiaraluce also seeks summary judgment in his favor on the motion of the Plaintiffs pursuant to Mass. R. Civ. P. 56 (c).

Standard for Summary Judgment

Summary judgment is appropriate "where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c)). In determining whether genuine issues of fact exist, the Court must draw all inferences from the underlying facts in the light most favorable to the nonmoving party. See Attorney General v. Bailey, 386 Mass. 367 , 371 cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). The moving party has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 , 39 (2005). For any claim for which the moving party does not have the burden of proof at trial, the party 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 Communication Corp., 410 Mass. 805 , 809 (1991); Kourouvacilis, 410 Mass. at 716.

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Plaintiffs Have Standing to Maintain this Action.

Under G. L. c. 40A, § 17, only a "person aggrieved" has standing to challenge the decisions of a zoning board of appeals. A "person aggrieved" is one who suffers some injury of a legal right which the local zoning act is intended to protect, "either implicitly or explicitly." 81 Spooner Road LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012) (plaintiff's interest in maintaining neighborhood density protected by zoning bylaw, sufficient to confer standing); Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 (2011) (plaintiff's interest in maintaining unobstructed pond view implicitly protected by zoning bylaw's density and dimensional requirements, sufficient to confer standing). For instance, obstruction of views alone is typically not enough to confer standing. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011) (standing based on obstruction of ocean view denied where zoning bylaw did not protect individual homeowners' views of the ocean from their own property); Marhefka, 79 Mass. App. Ct. at 520 ("claim of an impairment of a water view, without more, does not confer standing"); compare Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602-603 (2011) (claim of obstruction of ocean view sufficient to confer standing where zoning bylaw incorporated by reference town's comprehensive plan preserving "vistas, sites... and views...").

An abutter who is a "party in interest" under section 11 of G. L. c. 40A initially is entitled to a rebuttable presumption that he or she is a "person aggrieved" with standing. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). However, the presumption recedes when an adverse party offers credible affirmative evidence that refutes the presumption. 81 Spooner Road, 461 Mass. at 703. The adverse party can successfully rebut the presumption by showing that the plaintiff's claims are not interests protected by the zoning bylaw, by producing affirmative evidence that refutes the presumption, or by demonstrating that the plaintiff has no reasonable expectation of proving injury to a legally cognizable interest. Id. at 702-703. If the adverse party offers evidence sufficient to warrant a finding contrary to a presumed fact and the presumption is rebutted, the plaintiff must put forth evidence sufficient to prove standing. Id. at 701. To carry the burden of proving aggrievement necessary to confer standing, the plaintiff must show "by direct facts and not speculative evidence" that its injury would be particularized. Kenner, 459 Mass. at 120. See also Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27-28 (2006) (plaintiff must establish "that his injury is special and different from the concerns of the rest of the community."). The question is then to be decided on all the evidence with no benefit from the presumption. Id. at 32-33.

Here, each Plaintiff is entitled to the presumption that he or she is a person aggrieved with standing. G. L. c. 40A, § 11. It thus falls to Chiaraluce to put the Plaintiffs' presumptive standing sufficiently into contest, by coming forward with affirmative evidence refuting the presumption of aggrievement. Viewing the record in the light most favorable to the non-moving parties, as the court must on summary judgment, there is nothing in the record that would support a finding that rebuts the presumption that Plaintiffs have standing. Plaintiffs argue that the construction of the proposed residence will result in an "overcrowding of land and undue concentration of population...." Even though Plaintiffs may not have explicitly formulated their grievance in zoning terminology, these assuredly are concerns about density, and it is clear that density concerns constitute an interest protected by the minimum lot size and frontage requirements of the Bylaw which, but for the Decision, would stand in the way of Chiaraluce's proposed project. See 81 Spooner Road, 461 Mass. at 704. Chiaraluce has not established that Plaintiffs' concerns are unfounded or de minimis, and the presumption is not refuted. Id. At 702. Rather, the allegations of harm are sufficient to confer standing. Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008) (crowding of an abutter's residential property in violation of zoning bylaw's density provisions constitutes harm sufficient to confer standing). The court therefore does not need to reach the issue whether the Bylaw expressly protects Plaintiffs' ocean views by reference to the Purpose section of the Bylaw. See Schiffenhaus, supra. Given the state of the summary judgment record, Plaintiffs are entitled to go forward with their challenge to the Decision based on their intact presumptive standing; they are entitled to have the court reach the merits of their appeal.

Applicability of Bylaw § 1322.

The Board found that the proposed reconstruction was appropriately authorized by a special permit pursuant to Bylaw § 1322, which the Board proceeded to issue. This provision allows for the as-of-right repair or rebuilding of a damaged or destroyed nonconforming structure that does not, as reconstructed, exceed the height or area of the original structure, is placed no nearer the street line than the original structure, and does not materially change the exterior appearance of the original structure. Under the Board's interpretation of this provision, a reconstruction that will increase the height or area of the original structure, place it nearer the street line, or result in a material change in exterior appearance is permissible, if and when authorized by the issuance by the Board of a special permit under this section.

Plaintiffs argue that the Board incorrectly construed § 1322 when it granted a special permit allowing for the construction of a nonconforming structure that will be 15.43 feet taller and 282 square feet larger in area than the structure it replaces. The provision provides:


A nonconforming building or structure which has been damaged or destroyed may be repaired or rebuilt provided that such restoration shall not exceed the original area and height and shall be placed no nearer the street line than the building or structure which the restoration replaces and that there is no material change in exterior appearance except according to the terms of a Special Permit issued by the Board of Appeals (emphasis added).

Plaintiffs claim that the "except" clause at the end of § 1322 modifies only the immediately preceding clause concerning changes in external appearance. In other words, Plaintiffs say the disputed provision has a narrow focus(that it only allows the Board to issue a special permit to authorize alterations in exterior appearance which constitute a material change, and not for relief from the height and dimensional limitations Plaintiffs say are locked in - set by the dimensions of the damaged or destroyed previous nonconforming structure.

The interpretation of a zoning bylaw is a question of law. Building Comm'r of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 713 (2000). To determine the meaning of a zoning provision, it is the court's role to determine the intent of the legislative body that enacted the provision. Board of Appeals of Hanover v. Housing Appeals Commissioner, 363 Mass. 339 (1973). Although a building inspector's or board of appeals' interpretation of a controverted provision is not controlling, the court will give the local view some weight. Wendy(s Old-Fashioned Hamburgers of New York, Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381 (2009). Deference is due to a board where it is shown that it possesses special knowledge of the history and purpose of the bylaw. Id.

A familiar rule helpful in the parsing of legislative enactments is that a "modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Moulton v. Brookline Rent Control Board, 385 Mass. 228 , 230-231 (1982). The question for the court, then, is whether this principle of statutory construction ought be applied in a firm way, to make the special permit available only to address and allow material changes in exterior appearance (the immediately preceding "antecedent"), or whether this is an instance where "the subject matter or dominant purpose... requires" a broader read of the availability of a Section 1322 special permit, allowing one to be issued as well to relax the dimensional limits the section imposes on as-of-right repair and rebuilding.

The court concludes that in § 1322 the phrase "except according to the terms of a Special Permit..." applies to all three antecedents. This is an instance where the dominant purpose of the section mandates an exception to strict application of the "rule of the last antecedent." Special permits exist to allow flexibility in zoning administration, and to enable a zoning board to consider the particulars of a given property and project, allowing a local body, after hearing from all affected, to make decisions on a case-by-case basis. There is long-standing law upholding special permits which boards have been authorized, by local zoning laws, to issue to reduce the generally-applicable dimensional requirements of those local zoning laws. See, e.g., Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727 , 728 (1994). By authorizing the possibility of a special permit to address a dimensional shortcoming, a local zoning law affords the board not only the opportunity to consider the specifics of a given project and locus, but also to place worthwhile conditions on the project. Here, Section 1322 authorizes the special permit issued under that provision to have "terms." The grant of the §1322 special permit thus is able to be molded to the particulars the Board hears about, when reviewing a specific project, by the imposition of tailored terms and conditions made part of the special permit.

To read § 1322 as limiting the Board's discretionary powers to matters of external appearance alone, would be to undermine the flexibility this provision is meant to confer upon the Board. The section certainly could have been written to cabin in the grant of special permits under it, by providing explicitly that the special permit was available only to address exterior appearance changes, and nothing more. The section could have, for example, been written to replace its "except" clause with a separate sentence saying that "Notwithstanding the foregoing, the Board may issue a Special Permit with terms to permit a material change in exterior appearance." Nothing in the language of Section 1322 expressly shows the Town Meeting intended this special permit to be limited to just exterior appearance changes. This is not a case where the court's interpretation overrides an express limitation on the ability to grant a special permit, thoughtfully drafted into the Bylaw. The court's job is to determine what the enactment means, and nothing in its language or purpose calls for limiting the special permit's availability to just changes in exterior appearance. To the contrary, the purpose of the section is better served by an interpretation that a special permit is available, in suitable cases, to deal with the other limitations which the section imposes. [Note 2]

In addition, the court's construction of the except clause is consistent with the Board's interpretation of the provision. A local board cannot adopt an interpretation which is wholly at odds with the language of a bylaw. But where, as here, the Board's interpretation is well within the band of meaning that the words of the bylaw allow, some deference is due the Board's reading. The court concludes the Board's interpretation is correct. The Board did not commit legal error by determining that a special permit lawfully may be issued under § 1322 to allow for relief from the area and height limitations set by the section - which, without such a special permit, would require the project to, among other things, maintain the same area and height as the previous building.

Abandonment, Discontinuance, and Reconstruction under the Bylaw

Plaintiffs seem also to argue that relief under § 1322 is unavailable because the "use" of the Chiaraluce Property as a lot improved by a single-family residence is a nonconforming "use" that has been discontinued for more than two years, and therefore cannot be re-established, because of the prohibition in Bylaw § 1341. The court is not at all convinced by this argument.

The third paragraph of G.L. c. 40A, § 6 provides that a zoning bylaw may "regulate nonconforming uses and structures abandoned or not used for a period of two years or more." The language in this paragraph authorizes a municipality to extinguish those nonconforming uses or structures (or both) that have been abandoned, or that have not been used for two years. Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 668-69 (1987). The statute does not require a municipality to adopt such a regulation. Here, Wareham has chosen to regulate nonconforming uses through Bylaw § 1341, which provides that such uses "which have been abandoned or discontinued for more than two years, shall not be re-established." The Wareham Bylaw apparently has no similar provision regarding the abandonment or discontinuance of nonconforming structures. While in some instances, the two concepts have been used interchangeably, there is a longstanding distinction between "uses" and "structures" in the zoning act, particularly when the statute addresses and authorizes local limits on nonconformities based on either discontinuance or abandonment. The Appeals Court has held that "[s]ince there is a distinction in [the local bylaw] among nonconforming lots, uses, and structures, we are not persuaded that the two-year abandonment of use provision may be directly applied to the failure to rebuild on an undersized lot." Dial Away v. Auburn Zoning Bd. of Appeals, 41 Mass. App. Ct. 165 , 171 (1996). A similar situation exists as well in the case now before this court; under the Bylaw, nonconforming uses have been subjected to a two-year abandonment period by Bylaw § 1341, but nonconforming structures have not. At all relevant times, the Chiaraluce Property has been zoned for residential use. The project, which would place a single-family residential building back on the land, is a conforming use under the current zoning Bylaw, regardless whether the structure in which that use would take place itself meets the dimensional requirements of the Bylaw. Bylaw § 1341 is no bar to the availability of relief under Bylaw § 1322 in this case.

The Board did not consider whether Chiaraluce could build as-of-right, or as a "reconstruction" under § 1335 of the Bylaw, because the Board thought that section unavailable in the case before it. In the Board's view, "this section of the Bylaw only applies to proposed reconstruction of a house that presently exists." The Board's interpretation of § 1335, however, is not supported by the text. Section 1335 of the Bylaw appears to provide no additional indulgent rights, as a matter of local grace, beyond those conferred by the statute; this Bylaw section is merely the Wareham cognate of G.L. c. 40A, § 6, first para. It is clear that under section 6, the term "reconstruction" may in appropriate cases apply to a building that has been razed completely. See, e.g. Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 359 (2008) (involving "tear down" of existing structure, followed by construction of new structure). [Note 3] The Board argues that § 1335 applies only to existing structures, and that to read it otherwise is to make § 1322 superfluous. This argument is not convincing. Section 1335 begins with "As provided for in M.G.L. C. 40A sec. 6," which evinces a firm intent that the two provisions, statutory and local, be treated as consistent and coextensive. Section 6 permits some interval between the demolition and reconstruction of a structure on a nonconforming lot, and the Wareham Bylaw cannot take away minimum protections granted by the zoning act. The text of § 1335 does not suggest that a different approach than available under section 6 jurisprudence (which does allow reconstruction to take place even after the earlier building is entirely gone) was sought or intended by Wareham's Town Meeting when it enacted the local Bylaw section.

There is an additional threshold question which the court needs to consider before it could enter judgment confirming the availability to Chiaraluce of his right to receive the special permit he secured under § 1322 (or, indeed, to obtain permission under any of the alternative theories on which Chiaraluce might rely to authorize his project, including under Bylaw Section 1335 or directly under G.L. c. 40A, § 6 (see note 5, below, and accompanying text)). That is the question whether there has been abandonment to the degree that would take away any right Chiaraluce might have, under any of these alternative avenues, to go forward with his project. The Dial Away court held that, even though the zoning act and local bylaws do not specifically refer to abandonment of the right to rebuild on a nonconforming lot, abandonment "may be found apart from ordinance." 41 Mass. App. Ct. at 171. That court looked to decisional law instructing that "'[t]o constitute abandonment [other than where defined by ordinance], the discontinuance of a nonconforming use [structure or lot] must result from' 'the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carried the implication of abandonment.'" Id., at 172, quoting Derby Ref. Co. v. Chelsea, 407 Mass. 703 , 708 (1990). On the facts before it, the Dial Away court concluded that it faced a case in which the lapse of time following demolition - twenty-three years - was "so significant that abandonment exists as matter of law." Id.

The court is not fully convinced, however, that the pending case and summary judgment record present facts which (as matter of law at least), require the same result as in Dial Away. Here, there is a history of repeated attempts, over a number of years, by sequential owners of Locus, to obtain approvals needed to reinstitute on it a residence of one description or another. There has been prior litigation, which consumed a number of years, and which at its conclusion left open, in the view of the Appeals Court panel which considered that prior case, alternative avenues to obtaining approval for a building on this land.

The court does not read Dial Away as requiring a determination of abandonment in every instance where decades have elapsed between removal of an earlier building and the request to put up a new one. There may be, in relatively few such cases, viable extenuating circumstances that could cause the court to find that no abandonment had occurred. That is not to say, of course, that Chiaraluce will have a simple time showing that there has not been abandonment. He will need to demonstrate why there were, in the chronology of this site since Hurricane Bob in 1991, various missed opportunities to build, including unexercised permits, and gaps where pursuit of the right to build seems not to have been pressed with much force, if at all. The court determines that the question of abandonment, given the record on summary judgment, is one afflicted by disputed material facts. The question of abandonment is not, given the somewhat unusual history of multiple attempts to build on this land, able to be decided on summary judgment, and instead must be resolved as a factual matter.

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Applying the summary judgment standards, the undisputed record requires the court to grant the Plaintiffs' motion on the issue of standing, and to deny them summary judgment (and to grant it to Chiaraluce) on the issue of the availability of special permit relief under Bylaw § 1322.

The court does not now decide whether Chiaraluce would have been entitled to build as-of-right under G. L. c. 40A, § 6, first para., or under Bylaw § 1335, or as a reconstruction that will not increase the nature of the nonconformity. [Note 4] The court, unless otherwise advised, will accept that Chiaraluce is content to go forward with his project under the special permit the Board issued to him pursuant to Section 1322, and without having the court take up any additional questions of law and fact which would need to be resolved under any alternative statutory and Bylaw provisions. It appears from the record, and counsel for Chiaraluce confirmed at the hearing, that this special permit obtained under § 1322, if upheld by the court when considered on the merits, would be adequate to allow Chiaraluce to build the particular project he has proposed notwithstanding the dimensional shortcomings of lot area and height under current zoning. [Note 5]

Of course, the Section 1322 special permit, while determined in this Order to be legally available to Chiaraluce as a matter of interpretation of the Bylaw section, remains subject to challenge by Plaintiffs, who, in addition to asserting abandonment as discussed above, also contend that, even if there has been no abandonment, and even if (as the court now has ruled) the Board lawfully could have issued the special permit it did under the correct reading of Section 1322, on the merits Chiaraluce simply should not have received that special permit. The court will need to find facts de novo after trial to test, under the standards of G.L. c. 40A, §17, whether there are grounds to annul or modify the Board's Decision granting the special permit, or whether that special permit should stand. This case will proceed to trial de novo on the issue whether the facts the court finds support the Board's issuance of the special permit under Bylaw § 1322. It is

ORDERED that Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part; partial summary judgment is GRANTED to Chiaraluce under Mass. R. Civ. P. 56 (c). Chiaraluce's cross motion is DENIED. It is further

ORDERED that the parties are to confer, and by July 31, 2012, are to file with the court, jointly or severally, written statements of their collective or respective positions on the readiness of this case for trial, including without limitation any requests for limited additional discovery (mindful that discovery was to close January 31, 2011), and on the question whether or not there ought be a remand to the Board prior to trial.

So Ordered.

By the Court. (Piper, J.).


[Note 1] Chiaraluce argues the Board should not have upheld the building inspector's building permit determination, because a building permit was sufficient authorization for the project, that the project was entitled as of right to a building permit, and that no special permit was required.

[Note 2] This is so even though the focus of this section of the Bylaw is on prior nonconformity, and that a reading of Section 1322 which interprets it as authorizing issuance of special permits to allow the rebuilt structure to exceed the "original area and height," may have the effect of approving structures with sizes that now do not meet current dimensional requirements. While elimination of nonconformity certainly is a goal of zoning law, the right of municipalities to grant greater indulgence in this area is well-recognized as well, and there are many examples where municipalities have the opportunity to allow the reconstruction of a formerly conforming single-family residential structure to take place, even though the resulting building may be larger, if a reviewing board after hearing makes the requisite finding, or grants a special permit. There thus is nothing outside the norms of zoning law and practice about a reading of Section 1322 that interprets it to authorize the Board to grant a special permit, to allow the rebuilt house to have somewhat more area or height than what was there before.

[Note 3] There is some question in the decisional law about the amount of time that may elapse between demolishing the old structure and commencing work on the new structure, before a "reconstruction" becomes simple "construction." This question is related to, but legally distinct from, the issue of when a nonconforming use or structure has been "abandoned," as addressed in the Dial Away case.

[Note 4] Chiaraluce argues he is entitled to build as-of-right because the differences between the original structure and the proposed structure are de minimis, and do not constitute an intensification as a matter of law. See Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 362-63 (2008) (listing certain de minimis alterations, such as the addition of a dormer, that could not constitute intensifications as a matter of law). Unlike the situation in Bjorklund, where the size of the structure would be quintupled and the footprint expanded, 450 Mass. at 358, and in Bransford, where the size of the structure would be doubled within an expanded footprint, 444 Mass. at 853, here, Chiaraluce's proposed reconstruction would add living space but still would decrease the overall size of the footprint (by one square foot). This is to be accomplished by reducing the size of the prior-existing outdoor deck space while increasing the size of the indoor living space. The proposed reconstruction, however, would exceed the height of the prior-existing structure because the new structure is to be built on stilts to meet contemporary waterfront building code requirements.

In Bjorklund, the majority noted that "[t]he board does not dispute that the plaintiffs could reconstruct a house on the lot, or modernize the existing house, in keeping with the existing structure's building footprint and living area." 450 Mass. at 362 (emphasis added). In Goldhirsh v. McNear, 32 Mass. App. Ct. 455 (1992), the Appeals Court wrote "we see nothing in Willard which supports the proposition that there will never be an increase in a structure's nonconforming nature where the proposed alterations are confined to the existing footprint." 32 Mass. App. Ct. at 461. See also Bransford, supra., at 859 (quoting Goldhirsh). In Goldhirsh, the permit applicant sought to add a second story on a prior-existing carriage house, and the Appeals Court concluded that "[w]hether the addition of a second level... will intensify the nonconformity is a matter which must be determined by the board in the first instance. The fact that there will be no enlargement of the foundational footprint is but one factor to be considered in making the necessary determination or findings." 32 Mass. App. Ct. at 461. Accordingly, resolving this question would require a return trip to the Board with instruction that they are to consider Chiaraluce's request under § 1335 of the Bylaw and G.L. c. 40A, § 6, first para.; the Board did not reach ths question because they determined the nonconforming structure had been abandoned under the principles set forth in Dial Away v. Auburn Zoning Bd. of Appeals, 41 Mass. App. Ct. 165 (1996), where a nonconforming building was ruled abandoned as a matter of law after the passage of over twenty years. The court does not now decide whether this case presents a situation where the rule from Dial Away needs to be applied, and concludes that the taking of evidence would be required on the question of abandonment under the applicable Bylaw sections as well as section 6.

[Note 5] If Chiaraluce wishes to press his opportunity to pursue his project in reliance on rights other than those granted by the Section 1322 special permit he has received, he needs to advise the court of that intention in the report that this Order requires be filed, and he and the other parties must inform the court in that report (with particularity) whether any or all parties believe that a remand to the Board to consider those alternative avenues is indicated. Specifically, the parties are to advise the court whether a remand ought be ordered prior to the trial on the merits of the Section 1322 special permit which the court will conduct.