MA Appeals Court Affirms Approval for Museum Addition and Rejects Neighbors’ Bid for Adverse Possession

This post was authored by Amy Lavine, Esq.

 

The approval of a special permit allowing a museum to construct an elevator addition was affirmed by the Massachusetts Appeals Court in March. The court found that the permit was reasonable and also held that the trial court properly granted summary judgment to the museum on an adverse possession claim filed by neighboring property owners.

The Somerville Museum was granted a special permit in 2017 to construct an addition and install an elevator, which would be used to provide handicap access. The special permit was appealed, however, by neighboring property owners who claimed that they were the rightful owners of a portion of the property. The alleged, in particular, that their predecessors in title had occupied a portion of the museum’s property for more than twenty years, thereby gaining title through adverse possession. The trial court did not agree and ruled in favor of the museum, and the appeals court affirmed.

 

The Massachusetts Appeals Court found that the trial court properly granted summary judgment to the museum on the adverse possession issue after holding a hearing and concluding that the neighbors “had not provided any admissible evidence that they or their predecessors in title ever enjoyed any exclusive use… let alone exclusive use for twenty years.” A trial then proceeded on the issues of whether they had established a prescriptive easement and whether it was unreasonable for the zoning board to grant the special permit in light of the museum building being a nonconforming use. Because the neighbors conceded that their adverse possession claim was decided on summary judgment and because they failed to contest the summary judgment decision, the court found this to be was waived on appeal. Even if the neighbors had properly preserved their adverse possession claim, the court still would have ruled in the museum’s favor, however, because they could not rely on evidence adduced during their trial to contest the pre-trial summary judgment decision.

 

With regard to the museum’s special permit approval, the neighbors claimed that the zoning board erred by finding that the proposed addition would not be substantially more detrimental than the existing nonconforming museum building, particularly with respect to its impacts on scale, shading, loss of light and air, and neighborhood character. The trial court disagreed and found that the special permit was not unreasonable, however, and the court agreed with this determination on appeal. As the court explained, although the ordinance provided that such impacts “may” be considered, it was not a mandatory requirement for the grant of a special permit. The court noted, moreover, that the neighbors failed to provide substantial evidence of any material adverse effects that the addition would have on scale, shading, loss of light and air, or visual effects. While some testimony was given by neighborhood residents who believed that the addition would be “out of scale,” the museum’s architect countered this evidence with testimony that the addition would be consistent with the architecture of the street and would not be detrimental to the surrounding  neighborhood. It was within the trial court’s discretion to weigh the credibility of these witnesses and to assess the character of the museum’s nonconformities, and the court was satisfied that it appropriately considered the evidence and that its ruling in favor of the museum was reasonable.

 

Kelley v. Zoning Baord of Appeals of Somerville, 2019 Mass. App. Unpub. LEXIS 197, 2019 WL 1277394 (3/19/19).