DocketNumber: 17-P-970
Citation Numbers: 113 N.E.3d 934
Filed Date: 11/15/2018
Status: Precedential
Modified Date: 7/24/2022
The defendants, Terrance and Valerie Murphy (the Murphys), appeal from an amended judgment of the Land Court which annulled a variance that had been issued to them by the Zoning Board of Appeals of Chelmsford (board). They claim that the judge erred by finding, without evidentiary support, that the plaintiffs have standing and that the two lots at issue merged for zoning purposes. We affirm.
Background. On August 30, 2012, the board granted the Murphys a variance from the town of Chelmsford's zoning bylaw's setback requirement in connection with the proposed construction of a home on a vacant lot at 181 Proctor Road, which is adjacent to a house at 183 Proctor Road, also owned by the Murphys. The plaintiffs, M. Therese Burdo and Robert T. Miragliuolo, filed an action in the Land Court challenging the issuance of the variance. The Murphys filed a motion to dismiss for lack of standing that was denied. Thereafter all parties agreed that a remand to the board was necessary. A Land Court judge issued a remand order with specific instructions. Following the remand, the board
After the trial following the remand, the judge found that the plaintiffs were aggrieved by the variance, as a result they had standing, and the two lots had merged for zoning purposes. Nonetheless, the judge affirmed the board's issuance of the variance; however, he again remanded the case to the board to consider whether to grant a variance from the contiguous upland requirement for both lots. The plaintiffs filed a motion for reconsideration arguing that, based on the judge's conclusion that the two lots had merged, a variance could not issue to allow construction of a second home. The judge allowed the motion, and issued an amended judgment annulling the variance. This appeal followed.
1. Standing. Standing is a question of fact for the trial judge, which we will only reverse if the finding is clearly erroneous. Kenner v. Zoning Bd. of Appeals of Chatham,
a. Privacy and density. A town regulates density, in part, by dictating the distance a building must be set back from the lot line. 81 Spooner Rd., LLC v. Brookline,
b. Stability of property. The judge found that the project required the construction of a six-foot retaining wall located within two feet of the common property line. He further found that construction of the wall would require an excavation of fifteen to twenty feet from the face of the wall, constituting a trespass on the plaintiffs' property. Damage to real property is a cognizable zoning interest. Paulding v. Bruins,
c. Fire risk. Preventing the risk of the spread of fire is an interest protected by zoning. See St. 1975, c. 808, § 2A. Here, the judge found that the variance would require the removal of trees and that the excavation would affect the root system of many others. The judge credited the testimony of the plaintiffs' expert that dead and dying trees located ten feet from the proposed home would increase the risk of fire spreading. In addition, the judge found that the Murphys' proposed driveway lacked sufficient width for fire trucks. Not only was the judge in the best position to assess the evidence, but he also had the additional advantage of having viewed the site firsthand. We see no reason to disturb his findings.
2. Merger. The Murphys claim that their lots are not adjoining because they are "substantially separated by wetlands, including a stream" and because the lots have always maintained separate identities. The judge found that there is no barrier that prevents these adjacent lots from being adjoining. Cf. Heavey v. Board of Appeals of Chatham,
In addition, the lots merged as a matter of law. The Murphys own the vacant lot and the house lot by one deed. The existing house on one of the lots is zoned "RB" (single residence). In this zone, the property must contain at least 40,000 square feet of lot area. The bylaw provides that "[a]t least eighty [percent] of the lot area ... shall be contiguous land other than ... wetland." See bylaw § 195-108. As a result, buildable lots must have at least 32,000 contiguous square feet of uplands. By stipulation, the parties agreed that neither lot has the requisite 32,000 contiguous square feet of uplands. There was no error.
3. The variance. Because the two lots merged, the judge correctly found that the board exceeded its authority in granting the variance. Once the lots merged, they could not be separated. Asack v. Board of Appeals of Westwood,
Amended judgment affirmed.
The board did not participate in the trial after remand or this appeal.
The bylaws require a twenty-five foot setback. The proposed construction would result in a ten-foot setback.