Home PITSICK, LLC vs. BROOKE K. LIPSITT, BARBARA HUGGINS, PETER KILBORN, TREFF LAFLECHE, and STUART L. SNYDER, Members of the Zoning Board of Appeals of the City of Newton, ALAN FILZER, MONICA CROWLEY, PAUL CROWLEY, DIANE DION, ARTHUR DION, JUDITH MANNIX, JOHN KOOT, and GERALD BURG.

MISC 13-477862

May 14, 2015

SANDS, J.

JUDGMENT

Plaintiff Pitsick, LLC (“Plaintiff”) commenced this action by filing an unverified complaint on May 8, 2013, by which it sought, pursuant to G. L. c. 40A, § 17, to appeal the decision of Defendants Members of the Zoning Board of Appeals of the City of Newton (together, the “ZBA”) (a) to allow an administrative appeal by local landowners Defendants Alan Filzer (“Filzer”), Monica and Paul Crowley (together, the “Crowleys”), Diane and Arthur Dion (together, the “Dions”), Judith Mannix (“Mannix”), John Koot (“Koot”), and Gerald Burg (“Burg”) (altogether, the “Abutters”) [Note 1] of the issuance of two building permits (the “Building Permits”) issued by the Newton ISD for two lots owned by Plaintiff, and upon allowing said appeal, (b) to revoke the Building Permits. On May 13, 2013, Plaintiff filed a first amended complaint, which added the Abutters as parties to this case in accordance with G.L c 40A, § 17. The ZBA appeared in this case through counsel on May 15, 2013. A case management conference was held on June 17, 2013. On June 24, 2013, Plaintiff filed a second amended complaint, which added as party defendants three additional members of the ZBA (Harvey A. Creem, Vincent Farina, and William M. McLaughlin), who had not previously been named.

On July 21, 2014, Plaintiff filed its motion for summary judgment, which was supported by a memorandum of law and affidavits of Douglas J. Stefanov (“Stefanov”) (licensed architect), Pitrowski (one of Plaintiff’s principals), and Cusik (another of Plaintiff’s principals). On August 25, 2014, the ZBA filed a cross-motion for summary judgment and opposition to Plaintiff’s motion, together with a supporting memorandum of law and affidavits of Julie B. Ross (one of the ZBA’s attorneys) and Lojek (Commissioner of the Newton ISD). On August 26, 2014, the Abutters filed their own cross-motion for summary judgment and opposition to Plaintiff’s motion, together with a supporting memorandum of law and affidavit of Dennis C. Rieske (“Rieske”) (licensed architect). Plaintiff filed its reply brief on September 5, 2014. On September 18, 2014, the Abutters filed a motion for leave to late file a sur-reply brief, together with such sur-reply brief and a supplemental appendix (which included an affidavit of Koot, one of the Abutters). On September 22, 2015, Plaintiff moved to strike the Abutters’ motion to file a sur-reply brief. A hearing was held on all open motions on September 22, 2014, and the matter was taken under advisement.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the Abutters’ motion for leave to late file a sur-reply brief is ALLOWED, except that the affidavit of Koot will not be considered; and,

ORDERED and ADJUDGED that Plaintiff’s motion to strike the Abutters’ sur-reply is ALLOWED solely to the extent that Koot’s affidavit is stricken from the summary judgment record, and in all other respects is DENIED; and,

ORDERED and ADJUDGED that Berg, the Dions, Mannix, and Koot have not demonstrated that the development of Lot 109 [Note 2] and/or Lot 111 would affect them, and thus that they lack standing to raise grievances with respect thereto; and,

ORDERED and ADJUDGED that Filzer and Paul Crowley’s testimony as to the possible impact upon the Crowleys’ property, supplemented by Rieske’s affidavit, sufficientlyraises legitimate concerns as to density and overcrowding, as well as potential loss of light and air; and,

ORDERED and ADJUDGED that Filzer and the Crowleys have not raised legitimate concerns as to loss of property values, style and design, noise, creation of shadowing and artificial light, traffic and parking congestion, and privacy; and,

ORDERED and ADJUDGED that Filzer and the Crowleys have proffered a plausible claim that they would be aggrieved by the development of Lots 109 and/or 111; and,

ORDERED and ADJUDGED that Filzer and the Crowleys had standing to appeal Lojek’s letter dated December 13, 2012 (the “Lojek Decision”) [Note 3] to the ZBA, that the ZBA had jurisdiction over that appeal and to issue the ZBA’s decision dated March 11, 2013 (the “ZBA Decision”) [Note 4] to grant the Abutters’ appeal, and that this court has jurisdiction over this case; and,

ORDERED and ADJUDGED that Lots 110 and 111 merged in 1940 when, in October of 1940, the Ordinance was amended (the “1940 Amendment”) [Note 5]; and,

ORDERED and ADJUDGED that Lot 109 did not merge with the lot (the “Merged Lot”) created (for zoning purposes) when Lots 110 and 111 merged for zoning purposes, thus creating a conforming lot with 10,000 square feet of total area and 100 feet of frontage; and,

ORDERED and ADJUDGED that Lot 109 is eligible for grandfathering protection under G. L. c. 40A, § 6, and that Lot 109 is a non-conforming, buildable lot subject to the pre-1940 lot size and frontage requirements under the Ordinance; and,

ORDERED and ADJUDGED that the ZBA’s revocation of Plaintiff’s building permit for Lot 109 was improper; and,

ORDERED and ADJUDGED that the Newton ISD is hereby directed to reinstate building permit (No. 11100408) for the construction of a 2.5 story single family house on Lot 109; and,

ORDERED and ADJUDGED that Ordinance Section 30-15(c)(3) does not exempt Lot 111 from the minimum lot size and frontage requirements imposed by the 1940 Amendment and the 1953 Amendment; and,

ORDERED and ADJUDGED that the ZBA did not act improperly to revoke Plaintiff’s building permit with respect to Lot 111; and,

ORDERED and ADJUDGED that Plaintiff’s Motionfor Summary Judgment is ALLOWED solely to the extent that the ZBA Decision is reversed to the extent that it determined that Lot 109 merged with Lots 110 and 111 for zoning purposes and, on that basis, revoked Plaintiff’s building permit for Lot 109; and,

ORDERED and ADJUDGED that The Abutters’ Motion for Summary Judgment is ALLOWED on the issue of the Abutters’ standing to appeal the Lojek Decision to the ZBA; and,

ORDERED and ADJUDGED that the ZBA’s and the Abutters’ Motions for Summary Judgment are ALLOWED to the extent that the ZBA Decision is upheld insofar as it determined that Lots 110 and 111 have merged for zoning purposes and that Lot 111 is not presently buildable, and, on that basis, revoked Plaintiff’s building permit for Lot 111.

By the court.

FOOTNOTES

[Note 1] On June 25, 2012, the Abutters (as well as one additional party, Marlene Kliman) commenced a prior case before the Land Court (Case No. 12 MISC 466672) (the “Prior Action”), in which they sought, pursuant to G. L. c. 231A, § 1 and G. L. c. 240, § 14A, to enjoin Plaintiff and its principals, Stephen T. Pitrowski (“Pitrowski”) and Scott Cusick (“Cusick”) from continuing construction on the properties at issue in this case. On August 9, 2012, the plaintiffs in the Prior Action filed a First Amended Complaint, which sought, pursuant to G. L. c. 249, § 5, an order of mandamus directing the Commissioner of the Newton Inspectional Services Department (“Newton ISD”) to act relative to two building permits (defined below as the Building Permits) issued with respect to land owned by Plaintiff. The Prior Action was taken under advisement on November 23, 2012, and on November 29, 2012, this court issued a decision (“Land Court Decision 1”) and judgment, finding, inter alia, as follows: (a) that the plaintiffs in the Prior Action did not have an adequate remedy at law to appeal the issuance of the Building Permits to the ZBA, (b) that the plaintiffs in the Prior Action did not have an adequate remedy at law to appeal Newton ISD Commissioner John D. Lojek’s (“Lojek” or the “Commissioner”) failure to respond to a letter (the “Enforcement Letter”) from the Abutters requesting enforcement of the City of Newton Zoning Ordinance (the “Ordinance”), (c) that the plaintiffs in the Prior Action had not unreasonably delayed bringing a mandamus action, and (d) that the plaintiffs in the Prior Action were entitled to mandamus relief, pursuant to G. L. c. 249, § 5, with respect to the failure by Lojek to provide a response to the Enforcement Letter and subsequent requests for enforcement of the Ordinance with respect to the Building Permits. As a result, Lojek was directed, pursuant to G. L. c. 40A, § 17 to respond to the Enforcement Letter, as well as to the Abutters’ subsequent requests for enforcement with respect to the Building Permits. On April 29, 2013, the City and Lojek moved to dismiss the remaining issues in the Prior Action that remained unresolved after Land Court Decision 1, which motion was resolved by stipulation of dismissal filed on May 19, 2013.

[Note 2] The properties that are the subject of this action are three consecutive lots located at 18, 22, and 26 Goddard Street in Newton Highlands, Massachusetts, which are defined in the Decision, respectively, as “Lot 111", “Lot 110", and “Lot 109" (together, the “Goddard Street Lots”).

[Note 3] Pursuant to the Lojek Decision, Lojek complied with Land Court Decision 1 by advising the Abutters that the Newton ISD would take no further action at that time with respect to the Building Permits, based upon the then- pending appeal of Mauri v. Zoning Bd. of App. of Newton, 19 LCR 626 (2011) (“Mauri I”); aff’d, 83 Mass. App. Ct. 336 (“Mauri II”); rev. denied, 465 Mass. 1104 (2013) (“Mauri III”).

[Note 4] The ZBA Decision determined that the Goddard Street Lots had merged for zoning purposes, and revoked the Building Permits, based primarily upon the holding in Mauri II.

[Note 5] The 1940 Amendment imposed frontage and lot size requirements for the first time (seventy feet of minimum frontage and 7,000 square feet minimum lot area) on developed lots in the single residence C zoning district, which district was also created by the same amendment to the Ordinance. December of 1953, the Ordinance was amended (the “1953 Amendment”) to increase frontage and lot size requirements in a newly-reclassified single residence C zoning district (in which the Goddard Street Lots are located) to eighty feet and 10,000 square feet.