MISC 11-451014

December 31, 2014

Plymouth, ss.





In 1991, Hurricane Bob destroyed what was a lawful prior nonconforming single family dwelling located on a waterfront lot in the Swifts Beach area of Wareham at 16 Wankinquoah Avenue (“Locus”or “Chiaraluce Property”). At the time, the property was owned by Olaf Olsen and two other members of his family (“Olsens”). Soon after Hurricane Bob, the Olsens removed the damaged remnant of the structure from the Locus, leaving it vacant. The Olsens received $70,000 in insurance proceeds which the family used to purchase a mobile home at a different location in Wareham. Two years after the destruction of the dwelling, in 1993, the Olsens sold the Locus to Joseph H. Chiaraluce for $5,000. Chiaraluce later attempted, at various times, with more or less diligence (a question discussed at length following), to secure the zoning permission necessary to allow reconstruction of the demolished structure.

Before the court are appeals from decisions of the Wareham Zoning Board of Appeals (“Board”), which authorized Chiaraluce to proceed with plans to rebuild on the Locus. Plaintiffs Denise R. DePedro, Mary T. Nielsen, John W. Downey, and Maria P. Downey (collectively “plaintiffs”) seek judgment voiding the permits and approvals issued by the Board to Chiaraluce allowing the erection on the Locus of a residential structure. Chiaraluce and the Board submit that the permits issued are valid and within the scope of authority and discretion allotted to the Board by the relevant provisions of the Town’s zoning laws (“Bylaw” or “Bylaws”).


On July 21, 2011, Chiaraluce commenced Miscellaneous Case No. 11 MISC 451014, filing an appeal pursuant to G. L. c. 40A, §17, requesting review of a decision of the Board. The Board on an administrative appeal had upheld the determination of the building inspector who found that Chiaraluce was not entitled to a building permit as of right. The Board, however, did issue Chiaraluce a special permit under Bylaw §1322, which allowed Chiaraluce to move forward with the reconstruction of the demolished nonconforming structure. On July 25, 2011 plaintiffs filed a separate action, Miscellaneous Case No. 11 MISC 451165, challenging the decision of the Board which had granted the special permit to Chiaraluce. These cases were consolidated on September 16, 2011.

On March 8, 2012 the plaintiffs filed a motion for summary judgment; Chiaraluce filed a cross motion for summary judgment on March 22, 2012. The court heard arguments on May 29, 2012. On July 16, 2012 the court (Piper, J.) issued an Order Granting Partial Summary Judgment (“Summary Judgment Order”). In the Summary Judgment Order, the court determined that the plaintiffs had the requisite standing, but rejected their arguments that, as matter of law, the Board had exceeded its authority in issuing a permit under §1322. [Note 2] Although the court determined that “a special permit lawfully may be issued under §1322 to allow for relief from the area and height limitations of the section,” the court left open the evaluation of the merits of the discretionary permit granted by the Board under §1322. See Chiaraluce v. Wareham Zoning Bd. of Appeals, 20 LCR 357 , 362 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.). The Summary Judgment Order addressed as well the question whether a permit issued under another provision of the Bylaws, §1335, could provide an alternative source of zoning relief in these circumstances, and left open the possibility of a remand to the Board for its evaluation on this point. See 20 LCR at 361. Finally, the Summary Judgment Order declined to resolve the factually-intensive question whether the right to a nonconforming structure on the Locus has been abandoned “apart from ordinance,” which would independently require annulment of the special permit issued by the Board. See 20 LCR at 360-361.

After the court issued its Summary Judgment Order on October 26, 2012, defendant Chiaraluce requested a remand to the Board to allow it to examine whether §1335 applied. The court granted his request. On remand, the Board granted Chiaraluce a special permit under § 1335 at a hearing on March 13, 2013. Following the filing of the Board’s decision, and amendment of the pleadings to take into account the further local proceedings, the case came on for trial to the court. [Note 3]

With many of the legal issues already ruled upon by the court, presentation of evidence at trial was limited to the unresolved issues in the case: (1) whether the right to the contested nonconforming structure had been abandoned “apart from ordinance,” and (2) whether the Board exceeded its authority by issuing the permits under the Bylaws.


After trial, based on all the evidence, and the reasonable inferences I draw therefrom, in my role as trier of fact, assessing the credibility, weight, and persuasive power of the evidence, I make the following factual findings and rule as follows: [Note 4]

1. 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.

2. Bylaw §§ 1334 and 1335 provide:

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...

3. Bylaw §§ 1340 and 1341 provide:



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.

4. As Trustee of the Chiaraluce Realty Trust, Joseph H. Chiaraluce holds title to the Chiaraluce Property located at 16 Wankinquoah Avenue, Wareham, Plymouth County, Massachusetts. Locus, as of record, comprises two lots, Lot 5A and C5, respectively, shown on Town of Wareham Assessors Map 50A; one of the two lots’ title has been registered and confirmed by this court. Lot 5A is more particularly described in the deed filed 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 851152.

5. Locus is shown on the Town of Wareham Assessors Map 50A. The Chiaraluce Property has no frontage on the street and is accessible only by a twelve-foot right of way over intervening land, which has been the subject of separate litigation. Locus, which has a total area of 7,012 square feet, is in an R-30 residential zoning district, in which 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.

6. Prior to Chiaraluce’s acquisition, the Locus was owned by Olaf Olsen, Lorraine E. Olsen, and Laurence C. Olsen.

7. Throughout most of the Olsens’ ownership of the property, a one story residential cottage type building that was ten feet in height, twenty feet long, and thirty feet wide with a gross living area of 600 square feet was on the Locus. The building also contained an attached porch with 192 square feet of floor area, and a deck with a floor area of 243 square feet.

8. On August 19, 1991, Hurricane Bob substantially damaged the existing structure. It became unusable.

9. During September, 1991, Olaf Olsen’s two sons, Glen Olsen and Laurence Olsen, removed the damaged structure. The demolition took about two weeks, with much of the work carried out by hand. The Locus since has been effectively vacant, with no dwelling present.

10. In March, 1992, the Olsens obtained a building permit pursuant to a special permit from the Zoning Board of Appeals; this was a “blanket” permit issued in the Town in the wake of Hurricane Bob. The blanket special permit, a special dispensation employed to deal with widespread structural damage occasioned by the hurricane, would have allowed reconstruction of the dwelling on the Locus despite nonconformity with the Bylaws.

11. On February 18, 1993, the Olsens received a six-month extension on their permit. No construction on Locus took place under the building permit issued pursuant to the blanket special permit, even as extended.

12. The Olsens received approximately $70,000 from their insurer for the damage to the cottage which had been caused by Hurricane Bob. The Olsens did not use these funds to reconstruct the dwelling. They used the insurance proceeds to purchase a mobile home elsewhere in Wareham, at a separate location where they resided after the Locus was sold.

13. The Olsens sold the Locus to Chiaraluce on July 30, 1993 for $5,000 while the blanket special permit building permit still was in effect. Chiaraluce allowed that building permit to lapse without commencing the reconstruction of the dwelling structure.

14. At some point during his ownership, Chiaraluce installed a fence approximately six feet tall along the side of the Locus nearest Wankinquoah Avenue. Then, as now, there were no other structures on the Locus except for a small storage shed at the rear of the Locus.

15. In March, 2001, Chiaraluce applied for a building permit to reconstruct a dwelling on the Locus. The Town of Wareham’s Zoning Enforcement Officer (“Zoning Enforcement Officer ”) denied the application and informed Chiaraluce that he needed to obtain a special permit and/or variance from the Board under the nonconforming use provisions of the Bylaws prior to applying for another building permit.

16. Chiaraluce subsequently applied for a special permit and the Board held a hearing on April 25, 2001 regarding his application. The Board, by divided vote, denied Chiaraluce’s application. Chiaraluce did not appeal the Board’s determination.

17. About late March or early April of 2003, Chiaraluce again applied to the Board for a special permit. After a hearing on May 25, 2003, the Board issued a written decision on January 27, 2004 (“January 2004 Board decision”) granting Chiaraluce’s application for a special permit under G. L. c. 40A, §6, fourth para.

18. Mary T. Nielsen (“Nielsen”) appealed the January 2004 Board Decision by commencing Plymouth County Superior Court Civil Action No. 04-218B.

19. John W. Downey (“Downey”) appealed the January 2004 Board decision by commencing Plymouth County Superior Court Civil Action No. 04-217B.

20. Denise R. DePedro appealed the January 2004 Board decision by commencing Land Court Case No. 04 MISC 296841.

21. After trial in Plymouth County Superior Court Civil Action No. 04-217B and Civil Action No. 04-218B on October 14, 2005, the court (Rufo, J.) issued judgment on November 22, 2005 (“Superior Court’s 2005 decision”) affirming the Board’s January 2004 decision pursuant to G. L. c. 40A, §6, fourth para.

22. Downey and Nielsen appealed the Superior Court’s 2005 judgment to the Massachusetts Appeals Court. Chiaraluce did not take an appeal from the Superior Court’s 2005 judgment.

23. On June 7, 2007, the Massachusetts Appeals Court issued a Memorandum and Order pursuant to its Rule 1:28 in which it reversed the judgments entered on the Superior Court 2005 decision and ordered the entry of new judgments annulling the Board’s January 2004 decision as in excess of its authority.

24. No rehearing and no further review was sought of the Appeals Court 1:28 decision, Nielsen v. Board of Appeals of Wareham, Mass. App. Ct. Case No. 2006-P-0415, consolidated with Case No. 2006-P-416, and the judgment ordered in the Appeals Court’s rescript became final.

25. DePedro filed a motion with a supporting brief in Land Court Case No. 04 MISC 296841 seeking summary judgment in her favor on the grounds that the Massachusetts Appeals Court decision in Nielsen vs. Board of Appeals of Wareham, 69 Mass. App. Ct. 1106 (2007) (Rule 1:28) had res judicata effect on her claim that the Board’s January 2004 decision exceeded its authority. (Docket and File, Land Court Case No. 04 MISC 296841). No action had been taken on DePedro’s motion when the cases now before the court were commenced.

26. On September 23, 2009, Chiaraluce, through J.E. Engineering, Inc., sought an advisory opinion from the Zoning Enforcement Officer indicating whether the Locus was buildable as a matter of right under the Bylaws.

27. In a letter dated September 25, 2009, the Zoning Enforcement Officer responded to Chiaraluce’s request for advisory opinion by noting that the Locus would be entitled to a building permit under the Bylaws as long as the proposed structure would be in conformance with the present Bylaws.

28. On May 27, 2010, the Zoning Enforcement Officer issued a building permit to Chiaraluce (“May 2010 permit”) allowing him to build an elevated ranch-type dwelling with a floor area of 2,464 square feet on the Locus.

29. On July 12, 2010, DePedro sent a written request to Myles Burke, the new Zoning Enforcement Officer, requesting that he order the cessation of all work on the Locus and revoke the May 2010 building permit granted by his predecessor.

30. On or about July 14, 2010, the Zoning Enforcement Officer hand delivered and mailed a letter to Chiaraluce revoking the May 2010 permit and ordering the cessation of all work commenced on the Locus under the permit.

31. Chiaraluce did not appeal the Zoning Enforcement Officer’s July 2010 revocation.

32. Sometime in early September 2010, Chiaraluce requested that the May 2010 permit be reinstated.

33. The Zoning Enforcement Officer denied on September 10, 2010 Chiaraluce’s request for reinstatement of the May 2010 permit.

34. On October 14, 2010, Chiaraluce filed a petition with the Board (i) appealing the Zoning Enforcement Officer’s September 10, 2010 decision; and (ii) requesting a special permit pursuant to §1322 and/or §1335 of the Bylaws (“October 2010 petition”).

35. On December 8, 2010, the Board began a multi-session public hearing on Chiaraluce’s October 2010 petition.

36. On December 15, 2010, with the Board proceedings pending, Chiaraluce filed an application with the Zoning Enforcement Officer for a building permit to construct on the Locus a single-family dwelling which would be substantially smaller than the building authorized by the revoked May 2010 permit.

37. The Zoning Enforcement Officer denied Chiaraluce’s December 15, 2010 building permit application on January 3, 2011 (“January 2011 decision”).

38. Chiaraluce appealed the Zoning Enforcement Officer’s January 2011 decision to the Board pursuant to G. L. c. 40A, §8.

39. The Board’s hearing on Chiaraluce’s administrative appeal of the Zoning Enforcement Officer’s January 2011 decision was consolidated with the hearing on his October 2010 petition.

40. At the June 22, 2011 session of the public hearing, Chiaraluce voluntarily withdrew his appeal of the Zoning Enforcement Officer’s September 10, 2010 decision and the October 2010 petition.

41. On June 22, 2011, the Board voted unanimously (i) to deny Chiaraluce’s administrative appeal of the Zoning Enforcement Officer’s January 2011 decision; and, (ii) to grant Chiaraluce a special permit pursuant to §1322 of the Bylaws to construct single-family residence on the Locus. The Board’s written decision dated July 13, 2011 (“July 2011 Board decision”) was filed with the Town Clerk on July 14, 2011.

42. The July 2011 Board decision authorized a one-story, single-family dwelling to be constructed on concrete columns with an overall height of 25.43 feet, and a living area of 882 square feet measured from the exterior with a width of twenty eight feet and a length of 31.5 feet. The decision further authorized an attached deck with a floor area of eighty feet and an attached stairway with an area of seventy two square feet measured from the exterior.

43. On July 21, 2011, Chiaraluce initiated the first of these suits by filing a complaint pursuant to G. L. c. 40A, §17 seeking review of the July 2011 Board decision upholding the Zoning Enforcement Officer’s refusal to grant Chiaraluce a building permit as of right.

44. On July 25, 2011, DePedro, Nielsen, John Downey, and Maria Downey filed in this court a separate complaint pursuant to G. L. c. 40A, §17, seeking review of the special permit granted to Chiaraluce in the July 2011 Board decision.

45. After issuing its summary judgment order, the court (Piper, J.), pursuant to Chiaraluce’s request, on October 26, 2012, remanded the July 2011 Board decision to the Board for the reconsideration of Chiaraluce’s application for a special permit pursuant to §1335 of the Bylaws.

46. On February 27, 2013 the Board held a hearing to reconsider Chiaraluce’s application for a special permit pursuant to §1335 of the Bylaws. After the conclusion of the hearing the Board voted to grant Chiaraluce’s application for a special permit pursuant to §1335, finding that the proposed reconstruction of the pre-existing structure would not be substantially more detrimental to the neighborhood than the pre-existing structure on the Locus.

47. The Board filed its post-remand written decision with the Town Clerk on March 13, 2013.

48. After remand, the court received on March 29, 2013 a motion to amend the complaint, which the court allowed after hearing on April 17, 2013, accepting the first amended complaint for filing on that date. After various pre-trial proceedings and events, the case proceeded to trial.


In the Summary Judgment Order, I left open the question “whether there has been abandonment to the degree that would take away any right Chiaraluce might have. . . to go forward with his project.” Chiaraluce v. Ferreira, 20 LCR 357 , 362 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.). Section 6 of G. L. c. 40A protects “structures or uses lawfully in existence or lawfully begun” from subsequent changes in zoning ordinances and bylaws. The Bylaws similarly protect lawfully preexisting nonconforming uses and structures in certain circumstances. These protections, however, will not apply to uses or structures that have been abandoned. See Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 171-72 (1996). If the dwelling on the Locus has been abandoned, it would bar Chiaraluce from seeking the relief he requests under both §1322 and §1335. [Note 5]

Section 6 of G. L. c. 40A, while establishing certain minimal levels of protection that cities and towns must afford prior conforming uses and structures, permits municipalities to establish provisions that, as a matter of local indulgence, protect further the right to carry out alteration or reconstruction of nonconforming structures. Municipalities also are authorized, however, to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.” G. L. c. 40A, §6.

Here, Bylaw §1341 restricts nonconforming uses abandoned or not used for a period of two years or more. The Bylaws, however, do not include a similar time limitation as to nonconforming structures. Massachusetts law distinguishes abandoned nonconforming uses from abandoned nonconforming structures. See Dial Away Co., Inc., 41 Mass. App. Ct. at 171. It is true that Section 6 of G. L. c. 40A does not explicitly cause current zoning requirements to apply to abandoned or unused uses or structures if a municipality has elected not to regulate in this area. Our appellate courts, however, have decided that after sufficient time passes, abandonment will apply apart from local bylaws, even if there be no specific time limit in the municipal law. Id.

Dial Away is instructive as well on the question that next follows. I need to consider whether abandonment “apart from the bylaw” can take place on the facts of the pending cases, given that the Wareham Bylaw sets a maximum time within which the municipality is prohibited from limiting or regulating nonconforming uses which have gone unused, but that the Bylaw contains no such provision applicable to unused structures. The Bylaw has a specific time period protecting discontinued nonconforming uses, but the cases now before me involve a residential use that is allowed as of right. It is the dimensional compliance of the project–its “structural” aspects–that violate current zoning, and which only may be allowed if some form of grandfathering is available. I need to decide whether, with the Bylaw written this way, the right to rebuild a once dimensionally conforming structure on this now dimensionally deficient lot becomes abandoned “apart from the bylaw.”

Much like the Bylaws at issue in this case, the bylaws at issue in Dial Away included a provision limiting the duration of unused nonconforming uses but did not include a provision limiting the time within which rights as to nonconforming structures might be employed to rebuild. Id. The Dial Away court reasoned that because of the “distinction . . . among nonconforming lots, uses, and structures” it would not be appropriate to hold that “the two-year abandonment of use provision may be directly applied to the failure to rebuild on an undersized lot.” Id. Because of this distinction between uses and structures, the abandonment of the structure in this case, as in Dial Away, is not controlled by the local Bylaws. They simply do not purport to regulate and control prior nonconforming structures which have gone unused based on the passage of a specified length of time.

So, in the Summary Judgment Order, the court rejected the neighbors’ claim that Chiaraluce’s entitlement to relief had been cut off by the Bylaws’ two-year time limit applicable to discontinued nonconforming uses, ruling that Bylaw §1341 by its words applied only to uses, not structures. Chiaraluce v. Ferreira, 20 LCR 357 , 361 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.). The Wareham Bylaws do not enumerate a period of years after which a once lawfully nonconforming structure will be considered to have been abandoned if not rebuilt. I made the point in the Summary Judgment Order, however, that “abandonment may be found apart from ordinance.” See 20 LCR at 362 (quoting Dial Away, 41 Mass. App. Ct. at 171) (internal quotations omitted). In Dial Away, abandonment was found apart from the local law. Looking to the similar facts on this point in Dial Away, I conclude that abandonment “apart from the bylaw” is very much applicable in the cases before me. I turn to determining whether abandonment of that sort has taken place, on the facts as I have found them after trial.

Abandonment requires a showing of “(1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment.” Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 , 565 (1954). Abandonment is “primarily a question of fact.” Paul v. Selectman of Scituate, 301 Mass. 365 , 370 (1938). “Lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.” Pioneer, 331 Mass. at 565. Therefore, “an owner can by his diligent efforts have some control over a period of vacancy, and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance.” Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 , 687 (1959).

In Dial Away, the court determined that “abandonment exists as a matter of law” where the lapse of time between demolition and the attempt to rebuild was nearly twenty three years. 41 Mass. App. Ct. at 172. Although the Dial Away court focused on the substantial amount of time that had passed there, the decision drew authority from a series of cases in which abandonment was found based on shorter time periods. [Note 6] See id. Dial Away stands for the proposition that a substantial amount of time can trigger a finding of abandonment apart from ordinance. Id. It also teaches that testing for abandonment where there is no time limit explicit in a local bylaw is a heavily fact-based inquiry, dependent on “evidence of things done or not done.” Dial Away, 41 Mass. App. Ct. at 172 (quoting Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 , 686- 87 (1959)) (internal quotations omitted). Evaluating the significant period of years that had passed in that case, the Dial Away court nevertheless considered possible explanations for the lapse of time, but ultimately concluded that no adequate explanation existed. 41 Mass. App. Ct. at 172.

Although Dial Away and its progeny rely heavily on the amount of time that has passed before the attempted reconstruction of a nonconforming structure, [Note 7] other factors such as “evidence that a property has not been maintained, secured, or protected may be viewed as consistent with, if not indicative of, an intent to abandon.” Gomes v. Collins, 21 LCR 67 , 71 (2013) (Misc. Case No. 11 MISC 446909) (Grossman, J.). In Dobbs v. Board of Appeals of Northampton it was enough to show business use was not abandoned when owners made “some effort to rent for business use” while “making no effort to convert to residential use.” 339 Mass. 684 , 687 (1959). Likewise, the active preservation of a property for a specific use also is indicative of intent not to abandon. See Derby Refining Co. v. Chelsea, 407 Mass. 703 , 709 (1990) (The action of “mothballing”displayed an intent to preserve facility for resale consistent with the nonconforming use); see also March v. McKissick, 79 Mass. App. Ct. 1113 (2011) (Rule 1:28) (affirming the decision of the Superior Court judge in finding no abandonment of dwelling structure where temporary trailer on the property was used occasionally and maintained by owner).

Plaintiffs, who allege that the structure on the Locus has been abandoned “apart from ordinance,” contend that Chiaraluce intended to abandon the nonconforming structure, noting the eight years that passed before Chiaraluce sought to reconstruct the dwelling on this dimensionally noncompliant lot, and the subsequent periods where attempts to rebuild the structure faltered and lagged. Plaintiffs assert that, when Chiaraluce purchased the Locus from the Olsen family for a very modest price, he never intended to construct a new single family dwelling on the property, and that he has abandoned his right to do so.

To refute these claims of abandonment, the defendants point to the several stretches of time during which Chiaraluce made attempts to attain a permit to reconstruct the nonconforming structure on the Locus. It is, however, Chiaraluce who has the burden of showing that the nonconforming structure has not been abandoned. The individual seeking a permit holds the “burdens of proof and persuasion on the questions of intent and inability as they related to a possible abandonment.” Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 671 (1987); see also Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 297 (1981) (“The burden is on the applicant to demonstrate . . . an entitlement to a building permit”); see also Greico v. Medford Zoning Bd. Of Appeals, 1995 Mass. Super. LEXIS 130 (1995) (“[A] property owner has the burden to show . . . that there has not been any intention to abandon . . . by himself or any predecessors in title.”). As the Summary Judgment Order said, Chiaraluce must “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.” Chiaraluce, 20 LCR 357 , 362 (2012).

Missed opportunities to reconstruct on the Locus, and the formation of an intent to abandon rights to reestablish a dwelling structure, started with the Olsen family after the hurricane’s destruction of the dwelling in 1991. Although the Olsens applied for and received a permit to reconstruct the dwelling on the Locus, no action was taken by the family to rebuild. [Note 8] The Olsens received an insurance payment of $70,000, which was available to them for the reconstruction of a new dwelling. Instead of devoting this amount to reconstruction of a replacement dwelling on the Locus during a time when they had the permit to do so, the Olsens used the insurance proceeds to purchase a residence in an alternative location. This conduct I find to be consistent with abandonment of the right to erect a new dwelling structure on the Locus, and I infer and find that the Olsens did not intend to reconstruct the dwelling during their remaining years of ownership, having abandoned any such plans. See Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 , 565 (1954).

The sale of the Locus by the Olsens to Chiaraluce further demonstrates an intent to abandon rights to proceed with reconstruction of the dwelling. The Olsens sold the property for consideration of only $5,000 – a price not indicative of a buildable lot fronting on the water. (Much earlier, in 1971, when the Olsens purchased the Locus, they committed to pay $16,000-- though they actually paid less than that--in a transaction that was not fully arms length. The consideration paid by Chiaraluce was but a fraction of this amount.) Chiaraluce was the owner of the abutting property at the time he purchased the Locus, and had a residential building there. He admitted during testimony that the Locus was purchased with the intent to use it as a parking area to accommodate occupants of the residence next door. The Locus’ open area lent itself to immediate use as a parking facility to serve the adjoining improved land Chiaraluce already owned at 79 Bayfield Road. That site had on it a significantly larger and more substantial structure, fitted out as a year-round residence, which regularly hosted many family members, friends and other guests. I conclude that the acquisition of the Locus was designed to provide much needed extra parking for those visitors in a relatively dense waterside neighborhood where parking could be at times in demand. The sale transaction of the Locus, given the surrounding facts and circumstances, demonstrates an intent on the part of both the Olsens and Chiaraluce, not to maintain or preserve any still existing ability to reconstruct the prior nonconforming dwelling on the property, but, to the contrary, an understanding that the Locus would serve only as an open parking area for the house next door. See Derby Refining Co., 407 Mass. at 709.

The unexplained eight year period in which Chiaraluce repeatedly missed opportunities to reconstruct a dwelling on the Locus remains the most clear demonstration of the intent to abandon the structure. Although the “blanket permit” rebuilding rights secured by the Olsens was still in effect in 1993 when Chiaraluce purchased the property, thanks to an extension the Olsens had secured, no action was taken to preserve or extend the permit to build on the Locus. [Note 9] Gomes v. Collins, 21 LCR 67 , 71 (2013). Instead--critically--Chiaraluce let the permit lapse. Chiaraluce took no action consistent with a desire to preserve the nonconforming structure for nearly eight years. By the time he did apply for a building permit, the better part of ten years had elapsed following the demolition of the hurricane-damaged cottage. Here, the “evidence of things . . . not done” to preserve the right to re-erect the structure amounts to abandonment. Dial Away, 41 Mass. App. Ct. at 172 (quoting Dobbs, 339 Mass. at 686-87) (internal quotations omitted).

I find that, had one acquired the Locus in 1993 with a short amount of time remaining on a valuable, indulgent, “blanket special permit” building permit, issued as a matter of grace by the municipality, and already once extended, one would at all costs have acted to exercise rights to build under that permit (or at a minimum, would have secured a further extension by some means)–if one truly intended to rebuild on the Locus. But, I find, that intention did not exist. The total inaction by Chiaraluce in this regard, and the long stretch of years beyond the expiration of the extended permit with no real effort or resources expended in the direction of rebuilding, indicate to me nothing but abandonment. [Note 10]

Chiaraluce fails to sustain his burden of proving that the structure has not been abandoned since its original destruction in Hurricane Bob twenty three years ago. “[I]t is not correct that an involuntary destruction, as by storm, affords an unlimited time to rebuild a structure that would no longer comply with the dimensional requirements then in effect.” Goncalves v. Wareham Bd. of Appeals, 16 LCR 439 , 445 (2008) (Misc. Case No. 323695) (Piper, J.). Here, an individual cannot continually let pass available opportunities to rebuild, allowing a property to lie vacant for decades, and then take advantage of a bylaw adopted by the town over fifteen years after the destruction of the original nonconforming structure.

Public policy concerns surrounding nonconforming structures and uses are reflected in the controlling zoning statutes and local bylaws See Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547 , 551 (1990). With only specific exceptions, zoning regulations are used and intended to fulfill the legislative goal of “eventual elimination of nonconforming uses.” Id. Nonconforming uses and structures are disfavored by the legislature which, subject to carefully defined statutory protections, encourages bylaws that “extinguish nonconforming uses” and structures. See Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 667 (1987). In a shoreline community such as Wareham, zoning restrictions serve to mitigate adverse residential concerns such as excessive density and overcrowding. It would not be consonant with the broader policy underlying zoning to allow Chiaraluce unlimited time and opportunity to build a structure on a nonconforming lot--not when he acquired it at a time when the intention to abandon the right to rebuild already had taken shape, and he then waited many years to seek to rebuild.

The right to rebuild, on this dimensionally deficient Locus, the residential structure that was demolished in 1991, was long ago abandoned. No inquiry by the court into the merits of the Board’s issuance of permits under §§ 1322 and 1335 is necessary. Zoning relief under the noted provisions of the Bylaws was at all relevant times unavailable to Chiaraluce.

Judgment accordingly.


[Note 1] The Procedural History as set forth in the court’s Order Granting Partial Summary Judgment is incorporated by reference in this decision issued after trial. See Chiaraluce v. Ferreira, 20 LCR 357 , 357-59 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.).

[Note 2] The court rejected plaintiffs’ interpretation of §1322 as limiting the Board’s power under that section only to plans that alter external appearance of nonconforming structures and not those that propose changes in the height or dimensions of the structure. See Chiaraluce v. Ferreira, 20 LCR 357 , 360-61 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.).

[Note 3] A view of the Locus, the properties of the plaintiffs, and the surrounding area preceded the trial.

[Note 4] Undisputed facts laid out in the court’s Order Granting Partial Summary Judgment are incorporated in this Decision by reference. See Chiaraluce v. Ferreira, 20 LCR 357 , 357-359 (2012) (Misc. Case No. 11 MISC 451014; 11 MISC 451165) (Piper, J.). Nothing in the proceedings in this case subsequent to the issuance of that Order, including at trial, has caused me to doubt the undisputed facts found in the Order, or the rulings made in it. I adhere to the determination made in the Order, 20 LCR at 359-360, that the plaintiffs in this action, who are entitled to the statutory presumption of aggrievement, each possess the requisite standing to have pursued the challenges to the Chiaraluce permits and approvals, to have taken the administrative appeals to the Board, and to maintain this litigation.

[Note 5] As noted, in 2007, Chiaraluce’s permit, granted by the Board under G. L. c. 40A, §6, fourth para., was overturned by the Appeals Court. Nielsen vs. Board of Appeals of Wareham, 69 Mass. App. Ct. 1106 (2007) (Rule 1:28). The Appeals Court determined that G.L. c. 40A, §6, fourth para. precluded Chiaraluce from relief because the Locus did not have fifty feet of street frontage. Id. In addition, the Appeals Court held that G. L. c. 40A, §6, fourth para. only applied to a “virgin” lot, not reconstruction on a lot upon which a building once stood. Id. In the cases now before me, the neighbors vigorously assert that Chiaraluce’s right to go forward and build on the Locus is unavailable to him, because that right has been abandoned, both as a factual and legal matter. I have considered whether the prior litigation prevents me from reaching the abandonment issue. In a footnote, the Appeals Court in 2007 left open the possibility that the Board might grant a special permit pursuant to recently enacted Bylaw provisions allowing a nonconforming structure or use to be extended pursuant to the discretion of the Board. Id. I read the analysis by the Appeals Court in Nielsen to be narrow and limited in its holding to the statutory analysis given to G. L. c. 40A, §6, fourth para. The Appeals Court noted that “the board might choose to consider a special permit for Lot 5A under the current bylaws.” Id. Although the Appeals Court spoke to the potential availability of zoning relief under the Wareham Bylaws, the quoted language merely kept open the possibility. It did not, as a matter of law of the case or otherwise, hold that Chiaraluce had an unfettered right to be considered for a special permit. I do not read what the Appeals Court did in 2007 to have addressed the question of abandonment of the right to rebuild a dwelling on the site. I do not treat the Appeals Court outcome as precluding a ruling now that relief under the referenced provisions of the Bylaws is not available where the right to rebuild a nonconforming structure has been abandoned. The very question of abandonment was not before the Appeals Court and not within the scope of the holding in its 1:28 decision in Nielsen. I conclude that the question of abandonment is properly before me in the cases I tried, and must be taken up and decided by me before I can reach the merits of the approval granted by the Board.

[Note 6] The Dial Away court cites to a series of cases for the proposition that abandonment is largely a fact based analysis. 41 Mass. App. Ct. at 172. Although the court notes earlier in the opinion that nonconforming “use” provisions cannot apply to nonconforming “structure” provisions, the decisional law employed to show time variances in abandonment cases are actually nonconforming “use” cases that hinge on findings of abandonment. Id. First, the Dial Away court cites to Dobbs v. Board of Appeals of Northampton, in which the Supreme Judicial Court found that a nonconforming business use had not been abandoned despite vacancy of the premises. See Dial Away, 41 Mass. App. Ct. at 172; Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 , 686-87 (1959). Dobbs relied on findings that the owners of the premises, who made continuous rental efforts, clearly had not abandoned the use. See Dobbs, 339 Mass. at 686-87. Second, the Dial Away court quotes language from Mioduszewski v. Saugus that suggests that a cessation of a nonconforming use lasting four years could be enough to eliminate rights to reinstitute that nonconforming use. See Dial Away, 41 Mass. App. Ct. at 172; Mioduszewski v. Saugus, 337 Mass. 140 , 145 (1958). Although the court in Mioduszewski ultimately relied on a local bylaw that restricted nonconforming uses in residential zones after nonuse of a single year, the language quoted by the Dial Away court speaks to the fact-based analysis necessary to find abandonment apart from ordinance. See Dial Away, 41 Mass. App. Ct. at 172; see also Mioduszewski, 337 Mass. at 145 (“four-year cessation ‘may well have fatally interrupted’ nonconforming use”). Third, the Dial Away decision cites with approval to Attorney Gen. v. Johnson, a decision of the Court of Appeals of Kentucky. 41 Mass. App. Ct. at 172; Attorney Gen. v. Johnson, 355 S.W.2d 305, 308 (Ky. 1962). In Johnson, the Court of Appeals of Kentucky found that abandonment is shown not through examination of the internal intentions of the abandoning party but “with acts or a failure to act.” Johnson, 355 S.W.2d at 308. The Kentucky court also said “considerable lapse of time in the discontinuance of the use may show an intention to abandon the right and may be considered in connection with acts manifesting that intention,” in a case where after five years the original nonconforming use was replaced with a substantially different use. Id. Finally, the Dial Away court cites to another nonconforming use case also decided by the Court of Appeals of Kentucky, Holloway Ready Mix Co. v. Monfort, 474 S.W.2d 80, 83 (Ky. 1968), see Dial Away, 41 Mass. App. Ct. at 172. The Kentucky Court of Appeals determined that a “period of over ten years is certainly indicative of an intention to abandon the use.” Holloway Ready Mix Co., 474 S.W.2d at 83.

[Note 7] See Nelson vs. Town of Wilmington, 81 Mass. App. Ct. 1133 (2012) (Rule 1:28) (“The over twenty-five years that have elapsed since the dwelling burned down . . . caused the lot to lose whatever protection as a lawfully nonconforming lot it once had”); see also Goncalves v. Ferreira, 16 LCR 439 , 445 (2008) (Misc. Case No. 323695) (Piper, J.) (noting that “the lapse of time from the destruction of the house to the issuance of the first permit, 33 years, is alone sufficient to warrant abandonment”); see also Wells v. Baldassini, 20 LCR 488 , 491 (2012) (Misc. Case No. 11 MISC 448208) (Sands, J.) (holding that “thirty years is such a significant period of inactivity that abandonment must exist”); see also Gomes v. Collins, 21 LCR 67 , 71 (2013) (Misc. Case No. 11 MISC 446909) (Grossman, J.) (“A significant factor in determining whether an abandonment has occurred relates to the period of nonuse or abandonment”).

[Note 8] Defendants argue that the dwelling was voluntarily demolished when the Olsens took apart the remaining structure by hand. Defendants assert that the act of taking apart the damaged cottage was abandonment. See Berliner v. Feldman, 363 Mass. 767 , 772 (1973) (finding abandonment where structure was voluntarily demolished). Here, there is not enough evidence to deduce the true condition of the structure after Hurricane Bob, and whether or not the building was capable of restoration and repair, or rather could only safely be torn down. The act of taking apart the cottage, considered on its own, is therefore not a mandatory sign of abandonment. It is the actions taken (and not taken) after the demolition that tell the full story.

[Note 9] There is authority that finds in the lapse of licenses for nonconforming uses a signal of the intent to abandon the use. See Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962 , 963 (1984) (abandonment of use where license to maintain nursing home was relinquished).

[Note 10] In reaching this conclusion, I do not ignore the evidence that the Chiaraluce family dealt for a time with understandably distracting family medical issues. In particular, Mr. Chiaraluce testified that not long after the Board by divided vote in 2001 declined to overturn the denial of a building permit for the Locus, the Chiaraluces’ special needs daughter was struck and injured by an automobile, and required many surgeries over several months. But this very difficult challenge for the family, about which the court cannot help but be sympathetic, does not account for the extended period of inaction between the casualty to the cottage and the building permit request made almost ten years later. The intention to abandon was formed by the Olsens before they sold to Chiaraluce, and remained in place thereafter for many years under his ownership, all prior to the daughter’s accident. By the time of the first Chiaraluce application for a permit in 2001, the abandonment already had occurred.