This case is a dispute between neighbors regarding the construction of a house, alleged to be unlawful, twenty-four years ago, in 1993. After not initially appealing the issuance of a building permit issued to Plaintiff Robert A. Nichols, Trustee of the 100 Ocean Avenue Realty Trust (the "Ocean Trust") and of the 3 Gilbert Heights Realty Trust (the "Gilbert Trust") ("Plaintiff") to construct that house, and several months after it was built, Defendants Steven Kingsbury, Jean Greeley, and Frederick Schmid (together, the "Abutters") filed a request for zoning enforcement under G.L. c. 40A, §7, seeking, among other things, an order directing that the house be razed. When that request was denied by the Marblehead Building Commissioner (the "Commissioner"), the Abutters appealed to the Town of Marblehead Board of Appeals (the "ZBA", and together with the Abutters, "Defendants"), which reversed the decision of the Commissioner and granted the request for enforcement. Plaintiff timely appealed to the Land Court.
Given the amount of time this action has languished on the docket of the court, this case now comes to what is, all things considered, an anti-climactic end, as I am unable to reach the merits. Rather, for the reasons set forth below, this action must now be dismissed, with prejudice, due to lack of jurisdiction.
The procedural history of this case is as follows. Plaintiff commenced this action on February 1, 1994 by filing an unverified complaint, appealing, pursuant to G.L. c. 40A, §17:
(a) a decision of the ZBA (the "ZBA Decision") to overturn the Commissioner's denial of a zoning enforcement request filed by the Abutters relative to the development of Plaintiff's property, which comprises two lots located at 100 Ocean Avenue ("100 Ocean") and 3 Gilbert Heights Road ("3 Gilbert Heights") in Marblehead, Massachusetts (together, "Locus") [Note 1]; and,
(b) the issuance by the ZBA of a Notice of Constructive Grant and Approval of Application for Enforcement, which application had been filed by the Abutters.
On February 15, 1994, Plaintiff filed a certificate of service on all Defendants. As indicated by the docket, the case was inactive from February of 1994 to April of 2002. On April 29, 2002after more than eight years of inactivitythe ZBA filed a motion to dismiss the Complaint for failure to prosecute (the "2002 Motion"). On May 22, 2002 a hearing was held on the 2002 Motion. The docket entry, dated May 22, 2002, states as follows with respect to the 2002 Motion: "No action taken. Counsel to report to Court to set up pre-trial conference." Following this instruction by the court, no action was taken by the parties, and the case again sat dormant for another twelve years.
On June 19, 2014, the Abutters filed a motion (the "2014 Motion"), by which they requested that the Complaint be dismissed for failure to prosecute, and also that the ZBA's 2002 Motion be allowed. On December 8, 2014, Plaintiff filed his opposition to the 2014 Motion, and, on December 24, 2014, the Abutters filed their reply brief. On February 11, 2015, a hearing was held on both the 2002 Motion and the 2014 Motion, at which the parties requested additional time to negotiate a settlement. By letter filed with the court on February 26, 2015, the parties reported they had been unable to reach a settlement. By Decision issued on May 21, 2015 (the "2015 Decision"), this court denied the 2014 Motion, finding that both parties were at fault for the delay in the case. [Note 2]
On September 22, 2015, the parties unsuccessfully attended mediation. At a September 29, 2015 status conference, this court established a schedule for filing dispositive motions. At a January 7, 2016 status conference, the court set a summary judgment hearing for April 29, 2016. However, when none of the parties filed summary judgment motions, this hearing was converted to a status conference, at which the parties represented that they were in agreement that the case would require a trial. An pre-trial conference was held on May 24, 2016, and a continued pre-trial conference was held on June 28, 2016, at which the court allowed the Abutters' motion to replace Defendants Frederick Schmid, Steven Kingsbury ("Kingsbury"), and Jean Greeley's ("Greeley") by their respective successors in interest. [Note 3] Also on that date, the court scheduled the trial of this matter for September 21 and 22, 2016. These dates were later rescheduled for September 26 and October 5, 2016. [Note 4]
A site view was taken by the court on the morning of September 30, 2016, and the first day of trial followed at the Housing Court in Salem. On October 5, 2016 the second day of trial was held at the Land Court in Boston. Testimony at trial was given for Plaintiff by John Nichols (son of Plaintiff) ("Nichols") and Alan Hezekiah (former Marblehead Building Commissioner) ("Hezekiah"). Testimony for Defendants at trial was given by Judith, Kingsbury, Edward Nilsson (architect) ("Nilsson"), Heidi Sanger (granddaughter of Greeley) ("Sanger"), Bruce Greenwald (architect) ("Greenwald"), and Steven Ozahowski (real estate appraiser) ("Ozahowski"). The parties submitted twenty-two exhibits into evidence at trial. The parties filed post-trial briefs on December 5 and 6, 2016, and, at that time, the matter was taken under advisement.
Based on the sworn pleadings, the evidence submitted at trial, the parties' post-trial briefs, and the reasonable inferences drawn therefrom, I find the following material facts:
1. The properties at issue in this case are located on Gilbert Heights Road in Marblehead. As observed at the site view, the topography of the area is such that Gilbert Heights Road intersects with Ocean Avenue at a point of low elevation, and it proceeds from there northeasterly at a sharp uphill angle. This elevation change continues as one continues up Gilbert Heights Road, which turns to the left and continues to increase in elevation beyond the properties at issue in this case. From the approach on Ocean Avenue, Locus is the first lot on the right side of Gilbert Heights Road, and thus sits at a lower elevation than properties farther up Gilbert Heights Road. Locus itself contains a sharp drop in elevation (essentially a cliff), with the area of Locus fronting on Ocean Avenue at a far lower elevation from the portion fronting on Gilbert Heights Road.
2. The properties at issue in this case are depicted on two relevant plans of land. The first is the Marblehead Tax Assessor's Map dated April 13, 1991 (the "Assessor's Map"), admitted into evidence as Trial Exhibit 2. The second is a December 8, 1992 approval-not-required (ANR) subdivision plan of land (the "Subdivision Plan") entitled "Subdivision Plan of Land in Marblehead, prepared by Perimeter Land Services, Inc., Surveyors" ("Perimeter"). The Subdivision Plan is registered as Land Court Plan 11219F and was admitted into evidence as Trial Exhibit 3.
3. As noted, Locus refers to two lots: 100 Ocean and 3 Gilbert Heights. The Assessor's Map depicts Locus as a single lot labeled as lot "20". [Note 5] The Subdivision Plan shows Locus subdivided into two lots: 100 Ocean (labeled as lot "21") and 3 Gilbert Heights (labeled as lot "22"). [Note 6] Locus is located in a zoning district zoned for single- family use, with a portion of 100 Ocean lying in a shoreline overlay district.
4. Schmid owns and resides at 5 Gilbert Heights Road (the "Schmid Property"), which is developed with a single family residence. [Note 7] It is shown as lot "19" on the Assessor's Map and as lot "2" on the Subdivision Plan. [Note 8] The Schmid Property directly abuts 3 Gilbert Heights to the east, and is located uphill from Locus on the same side of Gilbert Heights Road. Due to the above-noted change in elevation, the Schmid Property is located at a slightly higher elevation than 3 Gilbert Heights and a significantly higher elevation than 100 Ocean. Behind the Schmid Property there is a significant drop in elevation, which gives it a largely unobstructed oceanfront view from a rear deck on the Schmid Property.
5. Kingsbury resides at 9 Gilbert Heights Road (the "Kingsbury Property"). [Note 9]
It is shown as lot "17" on the Tax Assessor's Map, but is not depicted on the Subdivision Plan. [Note 10] The Kingsbury Property is located up Gilbert Heights Road, three lots down from Locus on the same side of the street. Of all of the properties at issue, the Kingsbury Property sits at the highest elevation.
6. Greeley owns 2 Gilbert Heights Road (the "Greeley Property") [Note 11], of which Sanger is the current occupant. The Greeley Property is shown as lot "15" on the Tax Assessor's Map and as lot "5" on the Subdivision Plan (located across the street from Locus). [Note 12]
7. In or around late 1992, Nichols retained and worked with surveyors to draw up plans to subdivide Locus into two buildable lots. At trial, he testified at length regarding his interpretation of the Bylaw and how he and his surveyors drew the lot lines of the two subdivided lots. He was particularly candid and forthcoming regarding his intent behind the bizarre shapes of the lots, which was to "make it work"i.e., effectively to read the Bylaw in a way as to maximize the buildability of Locus.
8. The Commissioner testified that Plaintiff approached him with the Subdivision Plan, and that he agreed with Plaintiff regarding his interpretation of the Bylaw that the subdivision of Locus created two buildable lots.
9. On March 22, 1993, Nichols filed an application with the Town of Marblehead for a building permit to build a single family residence on 100 Ocean.
10. On May 26, 1993, the Commissioner granted building permit No. 6714 (the "Building Permit") to Plaintiff for the construction of the presently-existing structure on 100 Ocean (the "House"). This included two copies of the Building Permit (one for on-site posting, and another for public reference to be held in the office of the Commissioner for public access), a copy of the application for the Building Permit, and site plans showing both 100 Ocean and 3 Gilbert Heights. A copy of the Building Permit was posted on Locus immediately after May 26, 1993, although the exact date and time is unknown. [Note 13] No appeal from the issuance of the Building Permit was taken.
11. Nichols testified that he, together with his father, arranged for 100 Ocean to be cleared and graded in or around early 1993 in anticipation of subdividing Locus and building the House on Locus. He testified that a shed was razed and that 100 Ocean was cleared "from highly vegetated to barren". At some point in this timeframe, Nichols also arranged for concrete footings and foundation walls to be poured in anticipation of building the House on 100 Ocean.
12. The House is a two story modular home structure with a lower garage level. [Note 14] During the course of a single day in Memorial Day weekend of 1993, the six principal components of the House (which had been built off-site) were transported to 100 Ocean and assembled on site, using a large crane to lower the sections of the House onto the existing foundation that had been poured. [Note 15] Thereafter, "button up" construction on the House continued for an additional several months, into the summer of 1993, including interior finishes and several outdoor decks.
13. With respect to the process of construction, Nichols confirmed that a copy of the Building Permit was posted on 100 Ocean prior to when the House was constructed. During the construction, he witnessed Greeley observing the ongoing construction and "pacing up and down the street", indicating that she was both aware of and concerned with the construction of the House. He also observed Frederick Schmid (Judith's husband) entering onto 100 Ocean and "pulling tape measures" to inspect whether the House was compliant.
14. Judith testified that Plaintiff advised her and her husband, prior to construction of the House, of his intent to subdivide Locus. She further testified that she observed a hole on 100 Ocean prior to construction, and that she "[a]nd the neighbors were very concerned and talked to the board." She stated that she did not witness the construction of the House, but that, upon returning home after Memorial Day weekend 1993, she observed that the House had been constructed on 100 Ocean while she and her husband had been away. As to harms, Judith acknowledged that her property did not suffer any loss of views, nor any ill effects relating to increased congestion (such as loss of parking). She also speculated (without any foundation) that her property may have declined in value based on the construction of the House.
15. Kingsbury testified that he witnessed the construction of the House on Locus over a three day period. [Note 16] He claimed (without foundation) that his property had diminished in value as a result of the construction of the House, and that the lower floor of his house "lost most of my ocean views" and now has diminished sun exposure and seasonal sunrise views. [Note 17]
16. Sanger (Greeley's granddaughter) testified that she had lived at the Greeley Property off and on her entire life. She was twelve years old when the House was constructed. She could not remember exactly when the House was constructed on Locus, but she stated that she did recall the House being brought onto the site on cranes and being put into place. As to harms, she stated that her sole concern was loss of views, and that the House partially blocked the "left side" of the view from her house as well as sunlight. [Note 18]
17. Greenwald testified that, in his opinion, the House could be expected to cause, for the Kingsbury Property, a modest amount of shadowing and loss of sunlight and for approximately three months of the year. He also opined that the Kingsbury Property would have a partially diminished ocean view. [Note 19] However, he acknowledged that he did not do any comparative analysis of these effects of the House as compared with the previously-existing foliage on 100 Ocean. He also acknowledged that, if such foliage had been left to grow since 1993, if it reached the height of the House, it would have had a similar shadowing effect.
18. Ozahowski testified regarding property values. He stated if, hypothetically speaking, he were listing the Kingsbury Property, he would consider applying a downward adjustment of five to ten per cent based on diminished ocean views caused by the House. He acknowledged, however, that the Kingsbury Property, because it was considerably set back from the ocean and surrounded by other houses, would be appraised differently than the properties closer to the water, and that any ocean view (even "peeks" and "slivers") would actually be an added benefit. He stated that he would not make any adjustment to the valuation of the Greeley Property, and that the Schmid Property would "command[ ] a premium in the market."
19. On August 23, 1993, the Abutters, through their attorney, Frank McElroy, sent a letter to the Marblehead Building Commissioner (Hezekiah) requesting enforcement of the Bylaw and seeking recognition that the House was an illegal structure. They also requested that the Building Permit be revoked, that the occupancy permit for the House be revoked, and that the House be razed.
20. On September 7, 1993, the Commissioner responded in writing to the Abutters, declining their request for enforcement in all respects.
21. On October 6, 1993, the Abutters filed an appeal with the ZBA, challenging the Commissioner's refusal of their request for enforcement regarding the Building Permit.
22. On November 9, 1993 the ZBA held a public hearing on the Abutters' appeal after publishing notice of said hearing in the Marblehead Reporter on October 21 and 28, 1993. At that hearing, after receiving evidence from the Abutters, Plaintiff, and the Commissioner, the ZBA voted unanimously to allow the Abutters' appeal and to direct the Commissioner to enforce the Bylaw, as sought by the Abutters. [Note 20] On January 24, 1994, the ZBA filed its decision (the "ZBA Decision") in favor of the Abutters with the Marblehead Town Clerk.
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As the introduction to this Decision makes clear, I ultimately do not get to the merits of this case because I have determined that, as argued by Plaintiff, the ZBA (and thus this court) lacked jurisdiction to hear the Abutters' appeal. I also briefly address Plaintiff's alternative claims that the Abutters lacked standing to bring this appeal, and thateven if enforcement were warrantedit would be inequitable to now order that the House be razed.
Subject Matter Jurisdiction
Plaintiff first argues that the ZBA, and consequently this court, lacked jurisdiction to entertain the Abutters' appeal because the Abutters failed to timely appeal the grant of the Building Permit by the Commissioner pursuant to G.L. c. 40A, §§ 8 & 15. Thus, Plaintiff claims, because they failed to avail themselves of such right to appeal the Building Permit, their request for enforcement of the Bylaw pursuant to G.L. c. 40A, § 7 (and the subsequent appeal to the ZBA and this court) was not available to them as an alternative remedy to challenge the Building Permit.
The statutory process by which an appeal of the issuance of a building permit may be filed and heard by a permit granting authority is set forth in G.L. c. 40A, §§8 and 15. G.L. c. 40A, § 8 provides as follows:
An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.
Section 15 provides that "[a]ny appeal under [G.L. c. 40A, §8] to a permit granting authority shall be taken within thirty days from the day of the order or decision which is being appealed." For purposes of these sections, the issuance of a building permit is considered to be the governing "order or decision of the inspector of buildings, or other administrative officials." Connors v. Annino, 460 Mass. 790 , 794 (2011) (quoting Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 854 (2008)).
G.L. c. 40A, § 7 sets forth a different procedure for a different sort of appeal pertaining to requests to local building commissioner/inspectors for "enforcement" of the local zoning requirements. This procedure does not have to do with the initial issuance of a building permit, but rather with existing structures and/or uses alleged to be in violation of the local zoning requirements. Prime examples of the use of this statute would be a structure built on the basis of an improperly-granted building permit, or one built without a building permit at all. By contrast with G.L. c. 40A, § 8 appeals, which must be taken within thirty days of the issuance of a building permit, a G.L. c. 40A, § 7 request for enforcement may be filed either within six or ten years "after the commencement of the alleged violation of law", depending on whether the structure was built pursuant to a duly-issued permit or not. [Note 21]
Assuming that a request for enforcement was filed within this timeframe, if the local building inspector denies such request, any appeal from such "inability to obtain a . . . [G.L. c. 40A, § 7] enforcement action" must be filed with the local permit granting authority with thirty days, measured from the date of the written response of the building inspector. [Note 22] G.L. c. 40A, §§ 8 & 15.
In Gallivan, the court held that "the request for enforcement procedure was independent of the right to take an appeal under G.L. c. 40A, § 15, within thirty days of the issuance of a permit. However, . . . the independen[ce] of this right derives from the fact that there is no public notice of the issuance of a building permit." Gallivan, 71 Mass. App. Ct. at 856 (quotations omitted). Otherwise, the court observed, "[i]f a [G.L. c. §§ 8 & 15] appeal were the sole remedy for a party aggrieved, the recipient of a permit could keep the permit under wraps for thirty days and then would have succeeded in foreclosing any challenge." Id. (quotation omitted).
The other side of this coin is that:
where the aggrieved party has adequate notice of the building permit's issuance, he or she is required to appeal to the appropriate zoning board of appeals within thirty days of the permit's issue date under G.L. c. 40A, §§ 8 and 15; in such circumstances, a later appeal to the board from a denial of a request for enforcement made pursuant to G.L. c. 40A, § 7, is not an available alternative remedy.
Connors, 460 Mass. at 791; see also Gallivan, 71 Mass. App. Ct. at 857 (A party "may not lawfully bypass the remedy and subsequently litigate the question by means of a request of enforcement . . . ."). Thus, "when a party with adequate notice of the issuance of a building permit claims . . . [fails to] file an administrative appeal within thirty days of the permit's issuance . . . [such] failure to do so deprives the board or other permit granting authority, and later the court, of jurisdiction to consider the appeal." Connors, 460 Mass. at 797. To hold otherwise would "substitute[ ] one unfairness for another by allowing an aggrieved party to take no action for as long as six years, and then undertake proceedings that threaten to undo long-settled expectations and their consequences." Gallivan, 71 Mass. App. Ct. at 857-858.
For purposes of this inquiry, adequate knowledge may be actual or constructive. Id. at 859. A party has constructive notice when the evidence is "sufficient to place [on that party] a duty of inquiry regarding the building permit's issuance." Richardson v. Bd. of Appeals of Chilmark, 81 Mass. App. Ct. 912 , 913 (2012) (quotation omitted). In Gallivan, the court declined to adopt a bright line rule for what does or does not constitute adequate notice for these purposes. Gallivan, 71 Mass. App. Ct. at 858. Nevertheless, the court did find adequate constructive notice where the relevant building permit application (a) had been published in the newspaper and (b) a copy of same had been mailed to the abutters. Under such circumstances:
a notice that disclosed that an application for a building permit had been filed with respect to adjacent property, even if it did not contain specific measurements demonstrating a zoning violation, was sufficient to place on the plaintiff a duty of inquiry. That duty was not onerous; a visit to the building department would have disclosed (or, given the fastidiousness demonstrated by the plaintiff with respect to other aspects of the process, did disclose) that the application envisioned [an inadequate setback from the plaintiff's property line]. The notice, whether actual or constructive, gave the plaintiff a reasonable opportunity to appeal to the board within thirty days, and her failure to do so precluded a subsequent attack on the permit by means of an enforcement request.
Id. at 859-860.
Another example where a would-be appellant from the issuance of a building permit was found to have had adequate knowledge of such permit's issuance is the case of Janey v. Bd. of Appeals of Wareham, 82 Mass. App. Ct. 1108 (Table) (2012) (Unpublished Rule 1:28 Mem. & Order). [Note 23] There, the court found that the plaintiff had knowledge of a proposal to develop the property at issue, had expressed concerns with such development, and had "observed surveyors on the property, who were putting down stakes, marking the property lines, and laying out the foundation." Id. at 1108, *1. Given these facts, the court held, "[i]t was inequitable for the plaintiff to sit idly by and permit expensive structures to be constructed." Id. at *2 (quotation omitted). Thus, the court concluded, "the plaintiff had sufficient knowledge to give rise to a duty of inquiry as to the procurement of a building permit and to take an appeal within thirty days of its issuance." Id. at *1. Having failed to do so, "as a matter of equity, the doctrine of laches independently bars his enforcement claim." Id. at *2.
Similarly in Moriarty v. Zoning Bd. of Appeals of Holyoke, 87 Mass. App. Ct. 1129 (Table) (2015) (Unpublished Rule 1:28 Mem. & Order), "[t]he plaintiffs closely observed the progress of construction of the garage, were concerned with its size and location, and asked the building inspector for plans, but did nothing further . . . . These observations and concerns constituted constructive notice sufficient to place on the plaintiffs a duty of inquiry." Id. at *2.
Here, it is undisputed that the Abutters' October 6, 1993 appeal to the ZBA from the Commissioner's September 7, 1993 decision to deny their request for zoning enforcement was timely filed. It is also undisputed that the Abutters did not timely appeal the issuance of the Building Permit within thirty days of its issuance. Thus, the question is whether the Abutters were barred from using the procedure for requests for enforcement under G.L. c. 40A § 7 as an alternative remedy after they failed to timely appeal the issuance of the Building Permit. As noted above, this question turns on whether the Abutters had actual or constructive notice of the Building Permit's issuance.
The record indicates that the copies of the Building Permit were duly posted on 100 Ocean and filed in the office of the Commissioner for public access. Further, the Abutters' testimony establishes that they were either aware that the House would be built on 100 Ocean before it was built (as in the case of Judith and Frederick Schmid [Note 24], as well as Kingsbury [Note 25] ) or they became aware of the construction of the House during its construction (as with Greeley [Note 26] and Sanger [Note 27] ) over Memorial Day weekend of 1993.
To be sure, all parties had actual knowledge of the construction as of Monday, May 31, 1993 at the very latest, which left them an additional twenty-five days to appeal the Building Permit's issuance. Even if the construction of the House had not occurred in plain view of all of the Abutters (with, it should be noted, considerable spectacle), a picture of the House being erected was published in the Marblehead Reporter on June 22, 1993. This provided additional notice to any aggrieved party (in the entire area of that newspaper's circulation) of the construction of the House, affording them four final days in which to file an appeal.
The Abutters argue that Plaintiff cannot demonstrate that the Abutters had actual notice of the issuance of the Building Permit, and that there was no notice of the (alleged) violation of the Bylaw during the thirty-day appeal period. However, as in the cases cited above, these arguments fall short. As in Janey, 82 Mass. App. Ct. at *1-2, and Moriarty, 87 Mass. App. Ct. at *1-2, the Abutters witnessed preparations for the construction of the House prior to its being built and expressed concerns regarding the same. "These observations and concerns constituted constructive notice sufficient to place on the plaintiffs a duty of inquiry." Id. at *2.
The Abutters "lay person" argument also falls short under these circumstances. As noted in Moriarty, "we have little doubt that the Plaintiffs would have obtained any assistance necessary had they visited the building department in person." Id. The same could be said in this case. [Note 28] There was nothing obstructing the Abutters from traveling to the Commissioner's office and seeking any assistance they needed to inquire about any zoning violations. In fact, the Abutters did hire an attorney to assist them. The fact that the Abutters waited to hire an attorney until after the thirty day appeal period had passed does not excuse their failure to timely appeal the issuance of the Building Permit itself.
Based on the foregoing discussion, I conclude that the avenue of challenging the Building Permit via a zoning enforcement request was foreclosed to the Abutters. As such, this case must be dismissed for lack of jurisdiction. Nonetheless, I will briefly address the other procedural arguments raised by Plaintiff, the first of which is standing.
Standing
The legal standard for demonstrating standing in a G.L. c. 40A, §17 appeal such as this is well-settled and need not be repeated at length here. [Note 29]
The Greeley Property and the Schmid Property both have presumed standing in this case; the Kingsbury Property does not. [Note 30] However, by introducing evidence contrary to the presumption of standing as to the only harms claimed by the Abutters, Plaintiff successfully rebutted any presumption of standing any of the Abutters' properties may have otherwise enjoyed. [Note 31] 81 Spooner Road, 461 Mass. at 701. Had I needed to reach the question of standing, the burden thus would have been upon the Abutters to prove aggrievement. Standerwick, 447 Mass. at 33.
Regarding the Greeley Property and the Schmid Property, the preponderance of the evidence adduced at trial, including my own impressions from the site view, indicated that neither property would suffer (a) any significant reduction or loss of views, (b) any loss of sunlight or creation of undue shadowing, or (c) any diminution in value. [Note 32] In the face of such evidence, the Abutters failed to come forward with any admissible evidence to prove their claims of injury. Not only were these claims undermined by the testimony of multiple expert witnesses, but my own impressions from the site view leads me to conclude that the real-life "impact" of the House does not bear out the concerns as to which Schmid and Sanger testified. [Note 33] Thus, had I been required to reach the question of standing, I would have concluded that the Abutters lacked standing based upon alleged harms to the Greeley Property and the Schmid Property.
The Abutters claimed that the Kingsbury Property would suffer the same harms as the Greeley Property and the Schmid Property: loss of views and sunlight, and diminution in value. I will address each briefly.
Turning first to loss of views, it is well-settled that "concerns about the visual impact of a structure do not suffice to confer standing . . . and we do not read the [case law] to confer standing on a property owner who claims that development will obstruct a water view." Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 55 (2005). The only exception to this rule is if a local town's zoning bylaw explicitly or impliedly provides that protection of views is a goal of its provisions. Standerwick, 447 Mass. at 27-28; Marhefka, 79 Mass. App. Ct. at 518.
As has recently been found by another session of this court, the Marblehead Bylaw does not specifically protect views, Van Assendelft v. Moriarty, No. 16 MISC 000023, *2 (Mass. Land Ct. Jan. 13, 2017) (Long, J.), and this court has been unable to find any applicable provision of the Bylaw that could rationally support an implicit protection of ocean views. [Note 34] Thus, "[t]o the extent the town Bylaw protects . . . views, that protection is reflected in the judgments the Bylaw makes in height and distance between houses." Id. at 3. Here, there is no claim that the House would violate the Bylaw's height or space requirements. [Note 35]
Even if this court could identify and interpret a provision of the Bylaw to impart standing on the basis of loss of view, based upon the evidence in the record, including my own impression at the site view, the Abutters have failed to carry their burden of demonstrating a definitive, particularized injury to the Kingsbury Property. While Kingsbury claimed, in his testimony, that he suffered a significant loss of view, the facts "on the ground" did not bear that out. The Kingsbury Property is significantly set back from the ocean, and numerous houses and extensive foliage lies between it and the ocean. Perhaps more foliage would have further obstructed its view if the House had not been built. In sum, its view of the ocean, with or without the House, was and is minimal at best. The light/view study prepared by Greenwald did not convince me otherwise. In sum, the House may have had a slight effect on Kingsbury's view, but the evidence did not support a finding that such effect rose to the level of "injury" required to claim aggrievement. Kenner, 459 Mass. at 121. [Note 36]
Turning to the issue of lost sunlight, the Bylaw only requires that light exposure be "adequate". However, Greenwald's testimony (and his light study) indicated that the Kingsbury Property only experiences diminished sunlight as a result of the House at a specific time of day for approximately three months of the year, and he acknowledged that it would still have significant sun exposure. Moreover, again, "on the ground", it was apparent during the site view that the House only constituted a minuscule blocking of the skyfar more shadowing would have been the result of houses nearer to the Kingsbury Property, as well as the dense foliage in the areaand it is hard to imagine a significant impact on the enjoyment of the Kingsbury Property due to a loss of sunlight. In sum, the House might cause a minor increase in shadowing (although this, too, was somewhat unclear based on the possibility, acknowledged by Greenwald, of comparable shadowing had Locus not been cleared to make way for the House), but it did not rise to the level of an "injury" for purposes of demonstrating aggrievement. Kenner, 459 Mass. at 121.
Finally, Kingsbury claimed that the House resulted in a diminution in the value of his property. This may serve as a basis for standing only where it is "derivative of or related to cognizable interest protected by the applicable zoning scheme." Standerwick, 447 Mass. at 31-32; see also Kenner, 459 Mass. at 123 ("Zoning legislation is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place which to live." (quotation omitted)). No such interest is apparent here.
Even if it were, the evidence at trial did not bear out Kingsbury's speculation that his property suffered any significant diminution in value as a result of the House. Indeed, since he purchased it, his property has appreciated in value to roughly double what he paid for it. The only possible evidence of diminution of value was Ozahowski's testimony that, if he were tasked with listing the Kingsbury Property for sale, he might apply a five to ten per cent reduction in asking price due to diminished view. However, Ozahowski did not actually perform a formal appraisal, nor did he analyze comparable properties or take into consideration other factors that might affect an appraisal. Moreover, he acknowledged that the Kingsbury Propertydue to the fact that it is significantly set back from the ocean, with multiple houses and extensive foliage between it and the oceanwould be subject to a very different kind of analysis than properties with a prime ocean view. He further agreed that the fact that the Kingsbury Property has any view whatsoever adds value. Based on these facts, the court is unpersuaded that the House had any significant financial impact on the Kingsbury Property, as compared with the community at large. [Note 37]
In sum, the evidence at trial did not bear out any of the allegations of harm claimed by the Abutters. Thus, had I been required to reach the issue of standing, it would have been clear to me that none of the Abutters had standing to file this appeal.
Laches
Even if I had not found jurisdiction to be lacking, and even if I could have found that the Abutters had standing, based on the record before this court, I would next turn to Plaintiff's arguments regarding laches. On this point, I agree with Plaintiff that it would be inequitable to order the razing of Locus.
It is well-settled that "a municipality cannot ordinarily be estopped . . . from enforcing its zoning by-law or ordinance." Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977); see also Wyman v. Zoning Bd. of Appeals of Grafton, 47 Mass. App. Ct. 635 , 638639 (1999) (enforcement of local zoning bylaws advance the public interest). However, in instances (like here) in which there is a possibility of a tear-down being mandated, there is an emerging precedent for courts employing their powers in equity to mandate an alternative outcome than would otherwise be required where the circumstances warrant it. See DelPrete v. Zoning Bd. of Appeals of Rockland, 87 Mass. App. Ct. 1104 (Table), *1-2 (2015) (Unpublished Rule 1:28 Mem. & Order) (remanding for consideration of equitable alternatives to a tear-down order); Sheppard v. Zoning Bd. of Appeal of Bos., 81 Mass. App. Ct. 394 , 405 (2012) (noting that monetary damages could be an alternative to a tear-down order); Marblehead v. Deery, 356 Mass. 532 , 537538 (1969) (declining to order either a tear-down or monetary damages); but see Steamboat Realty, LLC v. Zoning Bd. of Appeal of Bos., 70 Mass. App. Ct. 601 , 606-607 (2007) (declining to issue equitable relief and requiring a structure to be restored to its pre-existing condition). [Note 38]
Recently, in DelPrete, the Appeals Court sought to articulate the factors that the courts may weigh when considering issuing (or, as here, affirming) a tear-down order. These factors include:
[1] whether a tear-down would cause substantial hardship, [2] whether [the plaintiff] greatly changed his position as a result of actions taken by a town official and whether such reliance was reasonable, [3] whether there is injury to a public interest if the house remains standing, and finally, [4] whether the parties acted in good faith throughout this process.
DelPrete, 87 Mass. App. Ct. at *2 (footnotes omitted). [Note 39] Deery, 356 Mass. at 537-538 offers an example of a court applying a calculus like the one articulated in DelPrete. There, the court allowed a house to remain standing even though it violated the local zoning bylaw. The court reached this decision based upon its determination (a) that a tear-down order would result in substantial hardship and expense to the landowner, (b) that the landowner had greatly changed his position in reliance on the approval of the subdivision, and (c) that there was no injury to a public interest. Id.
Here, the first DelPrete factor weighs in favor of Plaintiff. There is no question that a tear-down would cause substantial hardship to Plaintiff. The House was constructed and has been occupied for almost twenty-four years. Further, Plaintiff would be required to incur significant costs to demolish the House and restore Locus to its pre-existing condition. The second and fourth DelPrete factors also weigh in Plaintiff's favor. Here, Plaintiff relied in good faith on the Commissioner's interpretation of the Bylaw (an interpretation that the Commissioner continues to maintain was correct) and the issuance of the Building Permit, which was not timely challenged either before or after the construction of the House. Plaintiff's construction of the House was in accordance with this interpretation and the Building Permit.
Finally, with regard to the third DelPrete factor, it is difficult for this court to find an injury to a public interest that would result if the House were to be allowed to remain standing. The House is a single family residence located in a zone intended for that use. The House itself, and the lot on which it lies, is not alleged to be non-compliant. Moreover, based on the foregoing discussion of standing, the fact that the Abutters themselves were able to marshal only a very thin case for aggrievement suggests that, likewise, the House presents no injury to the general public. If such an injury would result, there is no way to explain why the municipality would have allowed this case to languish for as long as it has, nor why the Abutters would not have pushed to advance it more expeditiously. Rather, the Abutters and the town rested on their laurels and permitted the House to remain and be used for nearly a quarter century while doing little to nothing to object. It thus strains credulity that it would cause some injury to the public interest if this court were to follow the parties' lead and permit the House to remain.
In sum, based on the factors articulated in DelPrete, even if I had been required to get to the merits of this case (and there ruled for the Abutters on the merits), I would nonetheless have been within my judicial discretion to deny a tear-down ordera course of action, which, it now appears, may have been warranted here.
Conclusion
Based upon the foregoing discussion, I need not and do not reach the merits of this case because I FIND that the Abutters did not timely appeal the issuance of the Building Permit within thirty days of its issuance. Further, I FIND that all of the Abutters had actual or constructive knowledge of the issuance of the Building Permit with adequate time to file a timely appeal thereof pursuant to G.L. c. 40A §§ 8 & 15, yet failed to do so. I thus FIND that the Abutters' request to the Commissioner for zoning enforcement pursuant to G.L. c.40A § 7, and their subsequent appeal to the ZBA and this court were BARRED. Consequently, I FIND that the ZBA, and consequently this court, lacked jurisdiction to hear this appeal. Accordingly, the ZBA Decision is hereby REVERSED, and the directives to the Commissioner (i.e., to revoke the Building Permit, for the House to be razed, for the occupancy permits for 100 Ocean and 3 Gilbert Heights to be revoked, and for 3 Gilbert Heights to be vacated) and the Notice of Constructive Grant issued therein by the ZBA are hereby VACATED.
Judgment to enter accordingly.
Kingsbury was replaced by Adam and Ian Kingsbury. As discussed below, Kingsbury and his wife, Marilyn J. Wexler, transferred their property to Adam B. Kingsbury and Ian S. Kingsbury, as trustees of the Kingsbury Family Irrevocable Trust, in 2012.
The Abutters' motion did not specify who was replacing Greeley in this case. As noted below, Greeley transferred her property to herself as trustee of the Cheshire Hill House Realty Trust in 2000. In 2006, Greeley passed away. A 2008 affidavit indicates that her property passed to Frederick G. Greeley, Jr. and Patricia G. Lausier, as trustees of the Jean F. Greeley 1995 Family Trust.
ROBERT A. NICHOLS, Trustee of the 100 Ocean Avenue Realty Trust and Trustee of the 3 Gilbert Heights Realty Trust vs. HARRY GROSSMAN, JEFFREY SHRIBMAN, BARBARA SHEFFTZ, DAVID F. DELANY, JOANNE SILVA, JOHN ROGERS, III, JONATHAN LOURIE, and JOHN BENNING, Members of the Marblehead Board of Appeals; STEVEN KINGSBURY; JEAN GREELEY; and FREDERICK SCHMID.