Posted by: Patricia Salkin | May 31, 2012

MA Land Court Holds that Variance Must Be Issued for Barn that Violates Ordinance

Graham purchased property located in the Special Conservation zoning district. Plaintiff purchased property that abuts Defendant’s Property, but does not live on or have any structures on the property. In 2006 Graham applied for and was issued a building permit to construct a barn. Prior to 2007, Graham poured foundation for the barn even though he did not have a foundation permit. The Building Inspector issued a second permit in 2009, which reduced the allowed height of the barn to thirty-five feet as opposed to thirty-six. The Building Inspector did not receive plans until after the Barn had been completed in 2010. The Barn is being used for parking and maintenance of automobiles and recreational and utility equipment. The second floor of the barn contains household storage. In preparation for building a house, the Plaintiff arranged for portions of his property to be graded. The Plaintiff had a survey plan prepared, which was amended to show the Barn twenty-two feet from the five yard lot line of the Plaintiff’s property. The Plaintiff sent a letter to the Building Inspector requesting a stop-work order be issued, claiming: violations of height restriction, impermissible storage use, violations of permitted accessory uses to the principle use, failure of inspection, and the unlawful use of a wood-burning stove. The Building Inspector responded that: the Barn was a proper accessory use, that no inspection had been requested, there was an error with the height and a new permit would be issued, and that Graham was under a cease and desist order to prevent the use of the stove. The Plaintiff appealed the decision that the barn was a proper accessory structure to the Zoning Board of Appeals (ZBA), which denied the appeal. The Plaintiff later filled a second letter in 2010 alleging the “Barn was not dimensionally non-compliant relative to the sideline setback requirements of the ordinance.” The Inspector denied Plaintiff’s request for zoning enforcement claiming no as-built plan had been submitted to the office and that he interpreted the Ordinance to require only a five-foot slide-line setback. The Plaintiff appealed to the ZBA, who denied the request.

The two cases were consolidated in court and Graham filed a motion to dismiss. Graham claims that Claim 2 fails to state a claim upon which relief can be granted and that the Court lacked subject matter jurisdiction. The Court considered subject matter jurisdiction first. “A party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal.” Citing Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass.App.Ct 857 (2008). Plaintiff did not file his appeal of Building Permit 1 for more than four years. “Here, the parties do not claim, and there is no suggestion to conclude, that Plaintiff had any knowledge that Building Permit 1 had issued.” Furthermore, “there is evidence that, though Plaintiff knew in April 2007 that the Barn was to be constructed, Plaintiff did not realize there was a dimensional violation as to the side yard setback until 2009.” Thus, the Plaintiff properly took advantage of his rights and therefore the Court has subject matter jurisdiction. Graham further argues that the appeal of ZBA Decision 2 was barred under res judicata because it involved the same issues as ZBA Decision 1. Three elements make up a successful claim preclusion case: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” The Court recognized that while the parties are identical, there was no identical cause of action. One action was concerned about the use while the other action concerned dimension. Based on the foregoing, the Court denied the Motion to Dismiss.

Graham further argued that the Plaintiff lacked standing. The Court held that the “Plaintiff must be categorized as a person aggrieved or the case must be dismissed, as he would be without standing and this court without jurisdiction.” To be an aggrieved person, the Court held that it is “one who will suffer a violation or a private right, property interest, or legal interest.” The affidavits that the Plaintiff filed showed that the Barn increased storm water runoff and drainage problems on the Plaintiff’s property as well as an 18% diminution in value. The Court found the affidavits to be based on expert testimony. Based on the findings, the Court held that the Plaintiff had standing.

The Court then looked at the first ZBA decision regarding the barn use. The Court held that “a lawful accessory use may be a use incidental and subordinate to the principle use of a structure or lot and, if a particular use does not meet such description, it may still be a proper accessory use if it is described and permitted in such zoning district elsewhere in the Ordinance.” The current uses of the barn, the Court found, were activities commonly practiced in accessory buildings. Furthermore, the Court found that the Barn had characteristics of the types of uses of accessory structures listed under the Table of Accessory Uses in the Ordinance. Thus, the Court upheld the ZBA’s first decision.

In regards to the ZBA’s second decision regarding dimensional issues, the Court found that the Ordinance provides for a twenty-five foot side yard setback in the SC zoning district for all structures, which the Barn is clearly in violation of. The Ordinance that the Inspector and ZBA applied was Ordinance section 255-26, which does not apply to the SC district. Though the violation of three feet is minimal, it is still unacceptable especially in light of the fact the Barn could have been constructed without violation seeing the requirements were stated unambiguously in the Ordinance. The ZBA has to issue a variance in order for the Barn to be exempt from the violation. Therefore, the Court overturned Decision 2 and remanded it to the ZBA for further action.

Miller v. The Zoning Board of Appeals for the City of Haverhill, 2012 WL 1676972 (Mass.Land.Ct 5/9/2012)

The opinion can be accessed at:

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