Home JANE WELLS, as she is Executrix of the ESTATE OF FRANCES WELLS and JOSEPH SAVINO vs. FRANK BALDASSINI, WILLIAM CULLITY, SHARON McNAMARA, as they are members and constitute the ZONING BOARD OF APPEALS FOR THE TOWN OF PEMBROKE

MISC 11-448208

October 24, 2012

Sands, J.

JUDGMENT

Plaintiffs filed their unverified Complaint on May 3, 2011, pursuant to the provisions of G. L. c. 40A, § 17, appealing a decision of Defendant Pembroke Zoning Board of Appeals which denied Plaintiffs’ application for a permit or variance. A case management conference was held on June 22, 2011.

Defendant filed its Motion for Summary Judgment on January 9, 2012, together with supporting memorandum, Statement of Material Facts, and Affidavits of George Verry (Pembroke Building Inspector) and Tracy Grady (Assistant Building Inspector). Plaintiffs filed their Opposition to the Motion for Summary Judgment on February 9, 2012, together with supporting memorandum, Statement of Additional Material Facts, and Affidavits of Joseph Savino (Plaintiff), Frances Wells, and Daniel M. Smith (professional engineer). [Note 1] On February 23, 2012, Defendants filed their Reply to the Opposition, together with Additional Statement of Material Facts, and Affidavit of Pembroke Fire Chief James Neenan. A hearing was held on the motion on April 9, 2012, and the matter was taken under advisement. A decision of today’s date has been issued.

In accordance with that decision, it is:

ORDERED and ADJUDGED that the foundation is not a structure and therefore is not grandfathered pursuant to the provisions of G. L. c. 40A, § 6.

ORDERED and ADJUDGED that Section V.5.C (the “Casualty Clause”) of the Town of Pembroke Zoning Bylaws (the “Bylaws”) does not apply to the reconstruction of the two-story single-family residence that was built in approximately 1930 before the bylaws were enacted (“Dwelling 1").

ORDERED and ADJUDGED that Section V.5.D of the Bylaws (the “Abandonment Clause”) does not apply to Dwelling 1.

ORDERED and ADJUDGED that thirty years is such a significant period of inactivity that abandonment must exist.

ORDERED and ADJUDGED that a special permit is not warranted relative to the reconstruction of Dwelling 1. [Note 2]

ORDERED and ADJUDGED that the ZBA’s denial of the Plaintiff’s application dated April 14, 2011 ( the “ZBA Decision”) with respect to the special permit is not arbitrary, capricious, and unreasonable and not beyond the scope of authority of the ZBA.

ORDERED and ADJUDGED that a variance is not warranted because the statutory requirements have not been satisfied.

ORDERED and ADJUDGED that the ZBA Decision with respect to the variance is not arbitrary, capricious, or unreasonable or beyond the scope of authority of the ZBA.

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is ALLOWED.

By the Court. (Sands, J.)

FOOTNOTES

[Note 1] The original of the Affidavit of Frances Wells has been lost.

[Note 2] Plaintiffs plead with this court to follow equity principals and address the issue of municipal estoppel to not allow the fraud committed on both the Town and Frances to determine the outcome of this case. Costa filed an application for the building permit, representing himself as owner of Locus, and Plaintiffs had no notice of the application. Moreover, it appears that Defendant did nothing to determine whether Costa was the owner of Locus and issued the building permit without any attempt to verify the information on the permit application. The Town agrees that it, as well as Frances, was defrauded by Costa. However, the SJC has confirmed on numerous occasions that “the doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 162 (1962). See also Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977) (finding that a municipality cannot forfeit its zoning powers due to the actions of building inspectors and officials in disregard of statute or ordinance where Defendant sought application of equitable estoppel). Case law repeatedly and consistently demonstrates that it is a well-established principle that a municipality cannot be prevented “by the acts of its officers, including its building inspectors, from enforcing its zoning bylaws.” Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 224 (1982). Therefore, I find that municipal estoppel cannot be applied in this case.