Plaintiff filed her unverified Complaint with the Middlesex Superior Court (No. 11-2723) (the Superior Court Action) on August 2, 2011, a) appealing, pursuant to G. L. c. 40A, § 17, a decision of Defendant Waltham Zoning Board of Appeals (the ZBA) which upheld the issuance of a building permit to Kevin McManus (McManus) for property owned by McManus and located at 44 Murray Street in Waltham, MA (Locus), and b) seeking a declaratory judgment pursuant to G. L. c. 231A, relative to the validity of Section 3.711 of the Waltham Zoning Ordinance (the Ordinance) of Defendant City of Waltham (the City). The City and the ZBA filed their Answer on August 18, 2011.
Plaintiff filed her unverified Complaint with the Land Court (11 MISC 456490) on December 2, 2011, pursuant to G. L. c. 240, § 14A, challenging the validity of Sections 3.711 and 4.218 of the Ordinance facially and as they apply to Locus. Defendants City, Patrick Powell (Powell), and McManus filed their Answer on January 12, 2012. Powell is the Citys zoning enforcement officer, although the Complaint in this action names him as the Acting Building Commissioner. A case management conference was held on January 27, 2012, and the Superior Court Action was consolidated with this case, pending a transfer of the Superior Court Action to this court. This court requested such a transfer, and by Order of Transfer dated February 6, 2012, the Superior Court Action was transferred to this court (13 MISC 480423).
The City, the ZBA, Powell, and McManus (together, Defendants) filed their Motion for Summary Judgment on January 15, 2013, together with supporting brief, Statement of Material Facts, and Appendix including Affidavits of Michael Garvin, Kevin McManus, Patrick Powell and Linda Geraci. [Note 1] Plaintiff did not file any Opposition. A hearing was held on Defendants Motion on May 1, 2013, at which time the matter was taken under advisement. [Note 2] A decision of todays date has been issued (the Decision). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that this court has jurisdiction to hear all issues in this case, whether they were raised pursuant to G.L. c. 40A, § 17 or G.L. c. 240, §14A.
ORDERED and ADJUDGED that Plaintiff has not established standing based on traffic concerns to challenge a 3-2 vote of the ZBA (the ZBA Decision) upholding the issuance of two building permits (the Permits) relative to Lot 26 and Lot 27 (which comprise Locus), as they are shown on a plan of land titled Plan of Building Lots in Waltham, Massachusetts prepared by Hartley L. White, Civil Engineer, dated November 1909 (the 1909 Plan).
ORDERED and ADJUDGED that Plaintiff has put forth credible evidence to substantiate her allegations of standing based on noise and ambient light pollution and accordingly has standing on these grounds.
ORDERED and ADJUDGED Plaintiff does not have to challenge the ZBA Decision based on increased runoff onto property located at 36 Caughey Street, Waltham, MA (Plaintiff Property) as a result of the construction of a single family home each on Lot 26 and on Lot 27 (the Project).
ORDERED and ADJUDGED that Plaintiff has failed to put forth credible evidence to substantiate her allegation of standing based on diminution of property value and accordingly does not have standing on this basis.
ORDERED and ADJUDGED that Plaintiff has failed to put forth credible evidence to substantiate her allegation of standing based on loss of privacy resulting from increased density, therefore Plaintiff does not have standing to challenge the ZBA Decision on these grounds.
ORDERED and ADJUDGED that Plaintiff has standing to challenge the ZBA Decision.
ORDERED and ADJUDGED that Plaintiff is time barred from challenging any procedural deficiencies relative to the adoption of Sections 3.711 and 4.218 (together, the Old Lot Exception) of the City of Waltham Zoning Ordinance (the Ordinance); however, Plaintiff is not time barred from challenging the substance of Sections 3.711 and 4.218 of the Ordinance on the grounds that such sections violate the uniformity requirement set forth in G.L. c. 40A, § 4.
ORDERED and ADJUDGED that Sections 3.711 and 4.218 of the Ordinance are not facially invalid.
ORDERED and ADJUDGED that Sections 3.711 and 4.218 of the Ordinance are not invalid as applied to Locus.
ORDERED and ADJUDGED that Lot 26 and Lot 27 fall within the Old Lot Exception of Section 3.711 of the Ordinance, i.e. common ownership or merger by deed is not relevant, and Lot 26 and Lot 27 comply with the forty foot frontage requirement of said section.
ORDERED and ADJUDGED that reduced setback requirements set forth in Section 4.2181 apply to Lot 26 and Lot 27. Moreover, Lot 26 (combined side-yard setback of 17.6 feet) and Lot 27 (combined side-yard setback of 18.3 feet) each comply with the ten foot minimum combined side-yard setback requirement stated in Section 4.2181 of the Ordinance. [Note 3]/ [Note 4]
ORDERED and ADJUDGED that Lot 26 and Lot 27 shall be considered two separate lots. Therefore, any contention that Locus must be subdivided into two separate Lots, i.e. Lots 26 and 27, pursuant to the procedures set forth in G.L. c. 41, is irrelevant because Locus shall be considered two lots.
ORDERED and ADJUDGED that Plaintiffs contention that the Old Lot Exception only applies to vacant land is without merit.
ORDERED and ADJUDGED Defendants Motion for Summary Judgment is ALLOWED.
[Note 1] Defendants brief is titled Brief in Support of Motion to Dismiss and for Summary Judgment. Defendants do not argue a motion to dismiss and attach Affidavits to their brief. As a result, this court shall treat the motion as one for summary judgment.
[Note 2] Plaintiff appeared at the hearing but did not make any oral argument.
[Note 3] Even if the two new homes on Lot 26 and Lot 27 are two stories, the combined side-yard setbacks for both lots exceed the minimum sixteen feet required for a two story home in accordance with Section 4.2181 of the Ordinance.
[Note 4] Lot 26 and Lot 27 comply with both the frontage and side-yard set back requirements of the Old Lot Exception. As noted, supra, Plaintiff does not contend that Lot 26 and Lot 27 do not comply with the dimensional requirements of the Old Lot Exception. This court treats Plaintiff as having waived this argument. Therefore, although there is no evidence in this regard, the ZBA Decision will not be overturned on grounds that Lot 26 and Lot 27 do not comply with the rear-yard setback requirement of the Old Lot Exception.