Plaintiffs filed their unverified Complaint on December 31, 2007, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant Town of Chatham Zoning Board of Appeals (the "ZBA") which granted a special permit (the "Special Permit") to Defendants Robert Jeffrey Chandler and Jayne Kerry Chandler (the "Chandlers"). Plaintiffs filed a First Amended Complaint on January 3, 2008, correcting a factual issue. [Note 2] After this court allowed Plaintiffs' Motion to Amend Complaint, a Second Amended Complaint was filed on March 5, 2008, which added a count under G. L. c. 240, § 14A, challenging the interpretation of Section V.B ("Section V.B") and Section IV.A.3 ("Section IV.A.3") of the Town of Chatham (the "Town") Zoning By-law (the "Bylaw"). A case management conference was held on March 5, 2008. The Chandlers filed an Answer to the Second Amended Complaint on March 25, 2008. The ZBA filed its Answer to Second Amended Complaint on March 27, 2008.
The Chandlers filed their Motion for Summary Judgment on May 16, 2008, together with supporting memorandum, Statement of Undisputed Facts, Appendix, and Affidavit of David P. Handren ("Handren"). On June 19, 2008, Plaintiffs filed their Motion to Strike Designated Portions of Affidavit of David P. Handren, Cross-Motion for Summary Judgment, together with supporting memorandum, Affidavits of Peter Hallock, William J. McGovern, Edwin J. Deadrick, David A. Clark, P. E., Theodore P. Steibert, A. I. A., and Peter S. Farber. [Note 3] The Chandlers filed a Reply on July 2, 2008. A hearing was held on all motions on August 18, 2008, at which time all motions were taken under advisement. Subsequently, and with leave from this court, the Chandlers filed a Supplemental Brief on August 25, 2008, and Plaintiffs filed a Further Memorandum on September 8, 2008, both relative to the application of G. L. c. 240, § 14A to the case at bar.
By decision dated November 30, 2009 ("Decision 1"), I found that a) Plaintiffs lacked standing to challenge the Special Permit based on allegations of 1) diminution of private views, as such claims are speculative and do not involve a protected interest under the By-law, and 2) diminution in value, as the Affidavit of William J. McGovern fails to provide credible evidence of particularized harm, and that Plaintiff Peter Hallock ("Hallock") lacked standing to challenge the Special Permit based on allegations of diminution in open space, privacy, and neighborhood character, as Hallock failed to provide credible evidence of particularized harm, and b) Plaintiffs did not have independent standing to challenge the Special Permit pursuant to G. L. c. 240, § 14A.
Plaintiffs appealed Decision 1 to the Appeals Court, and by decision dated August 24, 2011, the Appeals Court, in a 1:28 decision, found that the Deadricks had standing to challenge the Special Permit, and remanded to case to the Land Court for further proceedings on the Deadrick claim. [Note 4] The Appeals Court also held that "the Land Court is without jurisdiction to evaluate the validity of the [Special Permit] under [G.L. c. 240, § 14A]." Accordingly, the only remaining issue before this court is the Deadricks' appeal of the Special Permit pursuant to G.L. c. 40A, § 17.
The parties attended a status conference on February 14, 2012, and there was a discussion as to whether the parties intended to rebrief the merits of the case relative to the Special Permit or rely on the existing briefs. The parties left this decision to this court, and I determined that the Special Permit issues were already fully briefed. As a result, I will rely on the briefs filed for the summary judgment motion. A Decision of today's date has been issued ("Decision 2"). In Decision 2, it is hereby:
ORDERED and ADJUDGED that Plaintiffs' Motion to Strike Portions of the Affidavit of David P. Handren is DENIED IN PART.
ORDERED and ADJUDGED that pursuant to G.L. c. 40A, § 6, with respect to reconstruction resulting in the additional height nonconformity, unless the Bylaw states otherwise, the Chandlers needed to obtain a variance rather than the Special Permit.
ORDERED and ADJUDGED that pursuant to the Bylaw, with respect to reconstruction resulting in the additional height nonconformity, the Chandlers needed to obtain a variance rather than the Special Permit. [Note 5] [Note 6]
ORDERED and ADJUDGED that Plaintiffs' Cross-Motion for Summary Judgment is ALLOWED and the Chandlers' Motion for Summary Judgment is DENIED.
By the court. (Sands, J.)
[Note 1] Plaintiffs filed an Assented-to Motion to Drop Parties (John V. C. Saylor and Georgia A. Saylor) on April 14, 2008, which this court allowed on April 17, 2008.
[Note 2] The Complaint initially stated that two of the "defendants" spoke against the application for a special permit. The First Amended Complaint corrected this error by stating that two of the Plaintiffs spoke against the special permit.
[Note 3] Plaintiffs filed a revised Affidavit of Peter S. Farber on July 1, 2008.
[Note 4] The Appeals Court's finding of standing was based on particularized harm to the Deadricks' property and the detrimental impact of the new structure (the "New Structure") on property owned by the Chandlers ("Locus") on the neighborhood's visual character. The Appeals Court found that Hallock did not have standing to challenge the Special Permit.
[Note 5] This finding is consistent with the notion that the "ultimate objectives of zoning would be furthered by the eventual elimination of non-conformities in most cases." Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011).
[Note 6] This court expresses no opinion as to whether a variance should be issued if the Chandlers apply for one. This court will comment that the FEMA regulations appear to be the primary reason why the reconstruction of the New Structure must exceed twenty feet in height. This fact may be relevant in determining the propriety of variance.