DocketNumber: No. 07-P-107
Citation Numbers: 69 Mass. App. Ct. 852, 872 N.E.2d 1125
Judges: Kafker
Filed Date: 8/24/2007
Status: Precedential
Modified Date: 10/18/2024
The three parcels of land in question are located on Chappaquiddick Island in Edgartown (town). At issue are special permits awarded by the town’s zoning board of appeals (board) to the individual defendants pursuant to a provision of the town’s zoning by-law, art. XI, § 11.20 (hereinafter § 11.20), entitled “Substandard Lots as Affordable Homesites.” This provision allows “homesites to be buildable for people who have lived in Edgartown for a substantial time, who intend to live year-round in Edgartown, but who, because of high land prices, would otherwise be financially unable to establish their homes in Edgartown.” The plaintiffs, abutting land owners, have challenged the issuance of the special permits, contending that the homesites are not appropriate locations for the issuance of the permits because the construction of the three single-family residences — on land designated as priority habitat pursuant to G. L. c. 131A, the Massachusetts Endangered Species Act — adversely affects the neighborhood in violation of the by-law. In a decision upholding the issuance of the permits, a judge of the Land Court granted summary judgment to the defendants and denied the plaintiffs’ motion for reconsideration. The plaintiffs then appealed to this court pursuant to G. L. c. 40A, § 17. We affirm.
Background. The individual defendants sought special permits pursuant to § 11.20 to build single-family residences on three unimproved parcels of land on Sandy Road in Chappaquiddick. Each lot measures slightly more than one acre. All are located in a residential zoning district with a three-acre minimum lot size requirement.
As provided in § 11.20(3), “[t]he Zoning Board of Appeals
According to § 11.6(a) of the by-law, “[t]he Board shall grant such a Special Permit only if . . . the Board finds that the specific site is an appropriate location for such uses, that such uses will not adversely affect the neighborhood and that adequate and appropriate facilities and protection will be provided such as, without limiting the generality of the foregoing, parking facilities and screening of unsightly uses from public view.” The board made such findings unanimously after hearings held on August 3 and 17, 2005. In so doing, the board rejected arguments that construction of three single-family residences on three one-acre lots would change the character of the neighborhood and that the twenty-foot way serving the properties was inadequate.
According to the minutes of the proceedings before the board on August 3 and August 17, the habitat issue was raised as fol
On September 21, 2005, after the permits were issued, the division of fisheries and wildlife issued a letter concerning the construction of the three single-family homes. This letter stated that the division had “reviewed this project for potential impacts to nine state-listed rare species documented to occur within Priority Habitat #1730 .... Based on a review of the information that was provided and the information that is currently contained in our database, the [natural heritage and endangered species program] has determined that this project, as currently proposed, will not result in a prohibited ‘take’ of state-listed rare species.”
Contending that the special permits were improperly granted, the plaintiffs filed suit in the Land Court. The arguments related to § 11.20(d) and § 11.6(a) of the by-law focused on one issue: whether the board properly could have found that the lots were appropriate locations, and that the uses would not adversely affect the neighborhood, without considering the environmental consequences of allowing the residences to be constructed in “priority habitat” as defined under G. L. c. 131A, the Endangered Species Act. See 321 Code Mass. Regs. § 10.02 (2005). As the Land Court judge stated in his summary judgment decision, “Plaintiffs suggest that the proposed residential construction would have a negative impact on certain protected or endangered species, including certain varieties of moths, and that full study of this risk should have been undertaken by the project proponents before the Board granted the special permits.”
The summary judgment record establishes that the lots are located in Priority Habitat # 1730, as designated by the divi
On June 22, 2006, the Land Court judge granted summary judgment to the defendants, and a judgment entered providing that “the decisions of the Board in these three cases are not beyond the scope of authority of the defendant members of the Board; are not arbitrary, capricious, unreasonable or contrary to law; and are not legally entitled to be annulled.” The judge determined that because “consideration of [the] effect of proposed residential construction on priority habitat is not a protected interest the Board must address under Section 11.20 [of the zoning by-law], plaintiffs cannot rest their appeal on the Board’s failure to have done so.” On July 3, 2006, the plaintiffs filed a motion to alter or amend the judgment, contending that, in addition to the legal argument regarding the required consideration of impact on priority habitat, there were other outstanding factual issues in dispute regarding adverse effects on the neighborhood. On July 27, 2006, the judge denied the plaintiffs’ motion. The plaintiffs then appealed to this court.
Consideration of impact on priority habitat. General Laws c. 40A, § 9, as inserted by St. 1975, c. 808, § 3, provides, in relevant part, that “[s]pecial permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein.” On appeal, “review of the board’s decision, while based upon de nova fact finding, is nonetheless ‘circumscribed. . . . [That decision] “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” ’ ” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001),
The plaintiffs contend that the decision of the board allowing the special permits must be reversed because the board did not interpret § 11.20 or § 11.6(a) of the by-law to require consideration of the effect of the affordable housing construction on endangered or protected species or their habitats.
Nothing in the relevant by-law provisions expressly requires such consideration. In fact, these provisions do not even mention protected species or priority habitat issues. Their absence here is rendered more conspicuous by their required consideration elsewhere in the zoning by-law in sections addressing areas that are of particular environmental concern for the town. See Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. at 922-923. For example, in art. XIV, § 14.4(4)(f)(c), of the by-law, special permits may be granted in the Cape Pogue District if the proposed use “will not have a significant adverse
We do not interpret the general language in § 11.6(a) of the by-law, requiring the board to consider whether the sites are appropriate locations for affordable housing and whether they “adversely affect the neighborhood,” to compel consideration of endangered species and priority habitat concerns. It was reasonable for the board to determine that the traditional zoning board review called for by this language did not require the specialized endangered species and habitat review requested by the plaintiffs. More specific direction in the by-law is necessary to require such specialized review.
Motion to alter or amend. Finally, the plaintiffs argue that the Land Court judge erred when he denied their motion to alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). The plaintiffs claim that when the judge allowed summary judgment for the defendants on the issues raised in the cross motions for summary judgment, he unfairly surprised them, as there were other outstanding factual issues relating to § 11.20 and § 11.6(a) of the by-law that were not raised in those motions and that remained in dispute.
Our review of the record reveals that the issues were nar
Despite ample opportunity, the plaintiffs did not preserve additional arguments presenting disputed factual issues. In sum, the parties understood, or should have understood, that decisions on the issues raised in the cross motions could dispose of the entire case. This is not a case where the parties were surprised by the judge’s summary judgment decision. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 461 (2006).
Judgment affirmed.
Order denying plaintiffs’ motion to alter or amend judgment affirmed.
When the town first adopted zoning in 1966, the minimum lot area was one acre. A number of the abutting landowners, including the plaintiffs, William O’Connell and Robert and Cheryl Finklestein, have one-acre lots. In 1973, an amendment established a three-acre minimum. See generally Johnson v. Edgartown, 425 Mass. 117, 118-119 (1997) (addressing challenge to three-acre zoning requirement in Edgartown by-law).
Those districts are identified in the by-law in art. XIH (Beach Area and Wetlands Regulations); art. XIV (Coastal District; Island Road District;
Section 11.20.2(2) of the by-law defines a substandard lot as “a lot which has been established and recorded in Dukes County Registry of Deeds prior to April 10, 2001 which is smaller than the required minimum lot size for a building lot in the zoning district in which it is located and which is determined to be unbuildable in accordance with the provisions of the Massachusetts General Laws and the Edgartown Zoning Bylaw (that is, not ‘grandfathered’ by other laws).”
Neither the letter nor the substance of the conservation agent’s memorandum have been included in the record appendix.
The purchase and sale agreement of the individual defendants, Herrick and Spagnuolo, expired for one of the lots and that lot was purchased on September 29, 2006, by the plaintiffs, Robert and Cheryl Finklestein. As the issues on appeal are the same for all three special permits and the Land Court judge considered the three special permits together, we decline to dismiss the appeals regarding the Herrick and Spagnuolo permit as moot as argued by the board.
The issue of the plaintiffs’ standing was not decided by the Land Court, nor has it been raised on appeal.
As the Land Court judge found, the disputed lots are not located within one of the special zoning overlay districts or “Districts of Critical Planning Concern” of the town.
We note that the plaintiffs did not argue to the board that it was required by the by-law to address the endangered species and priority habit issue. Instead, the plaintiffs contended only that G. L. c. 131A required the board to consult and make application to the State regarding the permits in the priority habitat area. See G. L. c. 131 A, § 4 (“Local zoning boards . . . shall notify the director [of the division of fisheries and wildlife], in writing, of any and all petitions, requests or applications for permits . . .”). The plaintiffs have not, however, argued on appeal that the special permits were issued in violation of any of the provisions of G. L. c. 131 A. Rather, it was only after the special permits had been issued and the State’s Natural Heritage and Endangered Species Program issued a letter stating that the proposed project to construct three single-family residences would not result in a “take” pursuant to G. L. c. 131 A, that the plaintiffs recast their argument using the language of the by-law.