ELEANOR HUBBARD aka ELEANOR H. WHITE, v. JEFFREY KRISTAL, ANTHONY HOLAND, SUSAN FAIRBANKS, MICHAEL CIANCIO, NEAL STILLER, FRANK PICCIONE, and JOHN GUADAGNO, as members of the TOWN OF TISBURY BOARD OF APPEALS, BUILDING INSPECTOR OF THE TOWN OF TISBURY, MOON OWL REALTY, LLC, and TOWN OF TISBURY.

In these two related cases, Plaintiff challenges attempts by Defendant Moon Owl Realty, Inc. (Moon Owl) to make certain changes to a guest house (Guest House), owned by Moon Owl and located largely on Moon Owl’s property, but partially on adjacent property owned by Plaintiff (Hubbard Property). Moon Owl proposes to both renovate the Guest House and to relocate it entirely onto its own property. The proposed new location would not comply with current zoning setback requirements for side yards. In addition, guest houses are not currently an allowed use in the zoning district in which the parties’ properties are located under the Tisbury Zoning By-Law (By-Law).

Case No. 12 MISC 462063, filed April 6, 2012 (First Case), is Plaintiff’s appeal of a decision of the Town of Tisbury Board of Appeals (Board), which granted Moon Owl a special permit for renovation of the Guest House. Moon Owl’s application to the Board requested permission to both relocate and renovate the Guest House, but the Board dealt only with the proposed renovation because it had received a letter from the Building Inspector advising the Board that he had authority to issue a building permit for the relocation of the Guest House. In appealing the First Case, Plaintiff seeks annulment of the Board’s decision as arbitrary, unreasonable, whimsical, capricious, legally untenable and exceeding the Board’s authority.

Plaintiff initiated the second case, 12 MISC 465047, by filing a three-count Complaint on May 30, 2012, later amended on July 16, 2012. In Count I, brought under G. L. c. 40A, § 17, Plaintiff appeals a decision of the Board which dismissed Plaintiff’s appeal from an action of the Tisbury Building Inspector (Second Case). [Note 1] In Count II, naming the Town of Tisbury as Defendant, Plaintiff seeks declaratory relief pursuant to G. L. c. 240, § 14A, declaring that: 1) Moon Owl’s property and the Guest House do not enjoy protected pre-existing non-conforming status; 2) even if the Guest House was once a protected pre-existing non-conforming structure, it was not so used for a period of more than two years and thus lost its protected status; 3) guest houses are not a permitted use in the zoning district where the Guest House is located; 4) the relocated Guest House will not comply with required zoning setbacks, and therefore cannot be relocated as proposed; and 5) the By-Law does not authorize the Inspector to issue a permit to relocate the Guest House. In Count III of her Complaint, Plaintiff seeks the same declaratory relief as Count II, but invokes G. L. c. 231A, §2, for further jurisdictional support.

On October 22, 2012, Municipal Defendants (the members of the Board, the Building Inspector and the Town) filed an Answer, later amended on November 1, 2012, which included defenses all supporting dismissal of the cases due to lack of subject matter jurisdiction for various reasons. Defendant Moon Owl did not file an answer.

On March 29, 2013, Plaintiff moved for summary judgment on all counts of both complaints. Defendants simultaneously filed a cross-motion for summary judgment seeking a judgment of dismissal based on a determination that: 1) Hubbard is not a person aggrieved pursuant to G. L. c. 40A, §17, and therefore has no standing even though she is an abutter; 2) the Building Inspector’s March 12, 2012 letter to the Board is not an appealable "action” under Section 8 of G. L. c. 40A (the Zoning Act); and 3) Hubbard will not suffer direct effects sufficient to provide standing under G. L. c. 240, § 14A.

A hearing was held on June 4, 2013, at which all parties were heard. During the hearing, the parties acknowledged a pending superior court case brought by Moon Owl seeking to establish ownership by adverse possession of the Guest House and the land on which the Guest House is located, owned of record by Plaintiff. [Note 2] All counsel agreed that the viability of Moon Owl’s adverse possession claim is not at issue in these cross-motions for summary judgment due to the pendency of the superior court case. Counsel urged the court to proceed with these two cases without regard for the adverse possession dispute. The court advised counsel that it did not necessarily agree with their conclusion. Now, having reviewed the record and taking into consideration the parties’ arguments at the hearing and applicable case law, this court is of a view that the ownership of the Guest House is a fact that is material to disposition of the majority of the issues raised by the summary judgment motions.

For the reasons set forth below in the discussion section, this court DENIES both Plaintiff’s and Defendants’ motions for summary judgment in the First Case until such time as the issue of which party owns the Guest House (and the land on which it is located) is resolved by the superior court case or otherwise. With respect to the motions filed in the Second Case, this court determines that the issue raised in Count I under G. L. c. 40A, § 17, is not ripe for adjudication because the Board never reached the question of whether the Guest House could be relocated to the Moon Owl’s Parcel. With respect to Counts II and III for declaratory relief, as to which there are cross-motions, this court ALLOWS in part Plaintiff’s motion, with respect to Count II under G. L. c. 240, §14A, that the location of the Guest House partially on Hubbard’s property and partially on Moon Owl’s, does not enjoy protected pre-existing non-conforming status, as the location was never in compliance with the By-Law. This court also ALLOWS Defendants’ motion, in part, to the extent that the court declares that the appeal of the Inspector’s Letter was not ripe, and the Board properly dismissed it, as the proper route for Plaintiff is to await the issuance of a building permit, which may then be appealed to the Board.

The summary judgment record includes instruments recorded with the Dukes County Registry of Deeds; affidavits of Nathaniel E. West, Beth Ellen Fishman, and Glenn F. Provost; a plan of land prepared for the Wests by Vineyard Land Surveying, Inc., showing the location of the Guest House; depositions of Eleanor Hubbard and Geoffrey White; a site plan for Moon Owl by Sourati Engineering Group showing the current location of the Guest House; copies of the Board’s decisions and the March 8, 2012 Building Inspector’s letter, in addition to the parties’ briefs and submissions filed in compliance with Land Court Rule 4. The facts set forth below are without substantial controversy:

1. Plaintiff’s property at 472 Herring Creek Road, Tisbury, and Moon Owl’s property at 448 Herring Creek Road, Tisbury, are adjacent lots located in the Shore Zone of the Coastal Overlay District (Shore Zone), and in an R50 zoning district under the By-Law.

2. The Guest House is primarily located on Moon Owl’s property, but encroaches onto the adjacent Hubbard Property.

3. Under By-Law §04.03.08, Requirement f, guest houses are not permitted in the Shore Zone.

4. Under Schedule A of the By-Law, the required side yard setback in an R50 zoning district is thirty-five feet. Moon Owl proposes to relocate the Guest House so that it would sit approximately two feet from the common boundary of the parties’ properties.

The Record Title to the Parties’ Properties

5. On or about March 5, 1954, Wilfred O. and Ruth E. White (the Whites), owners of a large parcel of land on the shores of Tashmoo Pond, granted to Sydna V. White a parcel of land approximately 1.7 acres, which was eventually acquired by Hubbard (Hubbard Parcel).

6. On that same date, the Whites granted to Isabel W. West, individually, a parcel of land of similar area, abutting the Hubbard Parcel which was eventually acquired by Moon Owl (Moon Owl Parcel).

7. On or about April 3, 1970, Isabel West granted the Moon Owl Parcel to herself and her husband, Francis West, Jr., as joint tenants, and not as tenants by the entirety. The April 3, 1970 deed described the Moon Owl Parcel as “beginning at a pipe set at the waters of Tashmoo Pond and at the land of Sydna V. White.”

8. Thereafter, on or about July 18, 1972, Sydna V. White granted the Hubbard Parcel to Francis West, Jr., and Isabel W. West, husband and wife, as tenants by the entirety (the Wests). At this point, the Wests owned both the Hubbard Parcel and the Moon Owl Parcel.

9. On or about June 19, 1985, the Wests granted the Hubbard Parcel to Christine Goessweiner, who is the Wests’ daughter. In creating and granting the Hubbard Parcel, the Wests created a situation where the Guest House straddled the boundary between the Hubbard and Moon Owl Parcels.

10. On or about November 29, 1985, Christine Goessweiner granted the Hubbard Parcel to Hubbard, as Trustee of Laughing Water Realty Trust.

11. On or about May 13, 1992, Isabel West and Francis West, Jr. granted the Moon Owl Parcel to Eliot E. Macy, Trustee of the Osprey Realty Trust u/d/t dated May 13, 1992.

12. On or about June 23, 2010, Eliot E. Macy, Trustee and Carolyn W. Spengler and Alexandra West, as Executrixes under the Will of Isabel West, granted the Moon Owl Parcel to Moon Owl.

13. Prior to the July 1972 conveyance of the Hubbard Parcel (described above in paragraph 8), on or about May 23, 1972, the By-Law was adopted. The Moon Owl and Hubbard Parcels were then in an R25 zoning district, which required a side yard setback of twenty-five feet.

14. The Guest House did not conform to the twenty-five foot setback requirement, since it straddled the adjacent parcels.

15. Even though Hubbard purchased the Hubbard Property in 1985, she only became aware of the precise location of the property line between her property and the Moon Owl Property during the winter of 2008.

16. The Moon Owl special permit application filed with the Board proposed to renovate and move the Guest House.

17. At a March 8, 2012 public hearing on Moon Owl’s special permit application, the Board received and accepted a March 8, 2012 letter from Defendant Building Inspector (Inspector’s Letter), opining that “the Building Department has the ability to issue a building permit to relocate the structure as proposed on the plan from Sourati Engineering Group dated February 9, 2012” without the necessity for zoning relief through a special permit issued by the Board.

18. The Board voted “to grant the special permit for the alteration of a pre-existing non-conforming structure with the condition listed below.” [Note 3] The Board’s decision, appealed in the First Case, contains an express exclusion of any consideration of the issue of the relocation of the Guest House due to the Board’s receipt and apparent acceptance of the Inspector’s Letter.

19. The Board’s March 2012 decision was appealed by Plaintiff pursuant to G. L. c. 40A, §17 in the First Case.

Facts Relevant to the Second Case Only

20. On March 30, 2012, Plaintiff’s attorney wrote to the Inspector requesting that he withdraw his opinion, as set forth in the Inspector’s Letter.

21. The Inspector did not respond to counsel’s letter. Plaintiff thereafter appealed the Inspector’s Letter to the Board, pursuant to G. L. c. 40A, §15.

22. The Board’s second decision dismissed, as not yet ripe, Hubbard’s appeal from the Inspector’s Letter.

23. Hubbard admitted during her deposition that moving the Guest House off her property and onto the Moon Owl Parcel would resolve the encroachment issue that currently exists, and that moving the Guest House onto Moon Owl Parcel would create some privacy.

24. Even though Moon Owl proposes to move the Guest House off Hubbard’s property, Hubbard nonetheless asserts that she will suffer injury relating to the proposed relocation and renovation of the Guest House and she will suffer a diminution of her property value if the Guest House is located as proposed, within the setback area.

25. Hubbard never asked a real estate agent, or an appraiser, or anyone else whether the value of her property would be at all diminished with the Guest House being two, or four, or five feet away from her property line, and there is no statement in the summary judgment record by anyone other than Hubbard regarding diminution of value.

26. In her anticipation of diminished property value, Hubbard refers to a potential plan to build a year-round house on the Hubbard Parcel and indicates that the site of the house might be affected by the proposed location of the Guest House. In response to deposition questions, Hubbard stated that she has no idea where she would place a house and has not drawn any plans that would indicate that a potential site for the house would be impacted by the location of the Guest House.

27. The Hubbard and Moon Owl properties are each approximately 1.7 acres in area.

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This action is before the court pursuant to the parties’ cross-motions for summary judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. G.M. Corp., 410 Mass. 706 , 711 (1991).

In considering the materials in support of any motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, where, as here, the court is faced with cross-motions, the court must analyze the parties’ legal positions at the summary judgment stage guided by which party has the burden on the issues before the court.

Plaintiff’s First Case challenges the first decision of the Board granting a special permit for renovation to the Guest House. The Board’s decision expressly excluded the relocation of the Guest House by stating that relocation “would be dealt with by the Building Department, the only matter before them was the alteration of the pre-existing non-conforming structure.” Defendants argue that Plaintiff has not asserted any injuries that would result from the renovations permitted by the Board’s first decision, pointing to the portion of the Board’s decision that stated there were “no additions...proposed” and that it would only consist of “reconfiguration of existing decks and some renovation work to the interior and exterior of the building.” The burden of proving at trial that the Guest House is a pre-existing non-conforming structure entitled to protection under G. L. c. 40A, §6, lies with Moon Owl. See Hall v. Zoning Bd. of Appeals, 28 Mass. App. Ct. 249 , 257 (1990).

Defendant challenges Plaintiff’s standing to appeal the Board’s first decision. Under G. L. c. 40A, § 17, “only persons aggrieved” have standing to appeal a decision of a zoning board of appeals. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 & n. 9 (2008); Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 574 (1989). A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, §11. A “party in interest” includes the petitioner and abutters, among others, and would include Plaintiff. See G. L. c. 40A, § 11.

Presumption as a “person aggrieved” falls away if adequately challenged. Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006). To rebut the presumption, the defendant must offer evidence “warranting a finding contrary to the presumed fact.” Watros v. Greater Lynn Mental Health and Retardation Ass’n, 421 Mass. 106 , 111 (1995). If the presumption is rebutted, the question is then to be decided on all the evidence. Standerwick, 447 Mass. at 32-33. The plaintiff in such a circumstance must then provide facts from which the court may find the aggrievement necessary to constitute standing. Id. at 33-35; see also Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992).

In this court’s view, it is impossible to determine whether Plaintiff has standing to appeal the Board’s first decision because the decision, as written, grants permission to renovate the Guest House without regard to where the Guest House might be located. This is so because the Board declined to consider the relocation proposed by Moon Owl, which was part of Moon Owl’s application for its special permit. Thus, this court is left to consider the legality of a decision that concerns a structure located on property owned of record by Plaintiff, proposed to be renovated by Moon Owl, that claims (but has not established) ownership by adverse possession of the land on which the Guest House is located.

Accordingly, the First Case is not ripe for summary disposition until the issue of who owns the Guest House is determined. If the renovations permitted by the Board under its first decision are located on property owned by Plaintiff (assuming an unsuccessful assertion of adverse possession by Moon Owl), in this court’s view, Plaintiff has standing to be heard as to whether or not the special permit should have been granted. If, on the other hand, Moon Owl successfully divests Plaintiff of her ownership through adverse possession, it is conceivable (but not here decided) that Plaintiff may not have standing to challenge the Board’s decision. Likewise, if the Guest House is relocated after required permitting, it is also possible that Plaintiff does not have standing. The determination of Plaintiff’s standing has been made difficult given the way the Board bifurcated the application and decided only the portion regarding the renovation of the Guest House, articulating that the Guest House is a “pre-existing non-conforming structure.” Both motions for summary judgment are DENIED as to those portions that relate to the Board’s first decision and the First Case.

With respect to the second decision, appealed in the Second Case, this court declares that Count I brought pursuant to G. L. c. 40A § 17, alleging that the By-Law does not authorize the Building Inspector to issue a permit to relocate the Guest House, is not ripe for adjudication. As declared below, this court finds that the Inspector’s Letter did not constitute an appealable decision, within the meaning of G. L. c. 40A § 8, and therefore, the Board’s first decision, finding that Plaintiffs appeal was not ripe, was correct. In the event this case proceeds, with Moon Owl obtaining a building permit for the relocation of the Guest House to a specific location on its property, Plaintiff will have an opportunity to appeal to the Board the issuance of the permit. A party who is aggrieved by the issuance of a building permit to another party may pursue the administrative remedies available within the Zoning Act, as set forth in G. L. c. 40A, §§ 8 and 15. See Connors v. Annino, 460 Mass. 790 , 793-794 (2011); see also Gallivan v. Zoning Bd. of Appeal of Wellesley, 71 Mass. App. Ct. 850 , 854-855 (2008).

In Count II, Plaintiff seeks a determination under G. L. c. 240, § 14A with respect to Defendant’s proposed renovation and relocation of the Guest House. [Note 4] Plaintiff seeks, inter alia, a declaration that the Guest House and its location does not enjoy protected pre-existing non-conforming status and that the By-Law (in conformance with G. L. c. 40A, § 6) does not authorize the Building Inspector to issue a permit to relocate the Guest House as proposed by Moon Owl. With respect to these issues as established by the undisputed factual record, this court declares: that the Guest House was never lawfully in existence and therefore is not entitled to the protections of G. L. c. 40A, § 6, which governs and limits the application of zoning by-laws and limits such application to nonconforming uses and structures “lawfully in existence.”

G. L. c. 40A, § 6, first paragraph, provides in relevant part:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence ... but shall apply to ... any reconstruction, extension or structural change of such structure and to any alteration of a structure . . . . (emphasis added.)

Here, the Guest House was never in compliance with the By-Law and therefore cannot be a protected pre-existing non-conforming structure. General Laws. c. 40A, § 6 is designed to permit the use of lots that were once lawful and are not compliant with current zoning code requirements due to a change in local zoning. Fitch v. Bd. Of Appeals of Concord, 55 Mass. App. Ct. 748 , 754 (2002). With respect to the second issue raised in Count II, this court rules the By-Law, in conformance with the Zoning Act, does not establish an opportunity to appeal the Inspector’s Letter to the Board, within the meaning of G. L. c. 40A § 8.

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The First Case will be stayed pending resolution of the superior court action. At such time as Judgment issues in the Second Case, Count I will be dismissed, without prejudice, due to lack of ripeness. The remaining issues, if any, raised by Plaintiff in Counts II and III of the Second Case which have not been determined above may be renewed after the adverse possession claim is resolved or following exhaustion of administrative remedies, if that occurs. In either event, the remaining issues likely would be determined through a trial.

So ordered.