KELLEY v. ZONING BOARD OF APPEALS OF SOMERVILLE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In August 2017, the zoning board of appeals of the city of Somerville (board) granted the Somerville Museum (museum) a special permit under Somerville Zoning Ordinance § 4.4.1 for construction of an addition to the museum to install an elevator that would make the museum handicap accessible (project). A Land Court judge entered summary judgment in favor of the board on the Kelleys' adverse possession claim. After a trial, the judge entered judgment in favor of the museum approving the special permit and also finding that the Kelleys did not have a prescriptive easement over a disputed area of the museum's property. On appeal, the Kelleys claim that their predecessors in title had acquired part of the museum's property by adverse possession and that the judge erred in granting judgment to the board where it failed to address adverse impacts of the project. We affirm.

1. Adverse possession. The Kelleys claim that the judge erred in finding that they had not acquired the disputed land of the museum's lot by adverse possession. They claim that their predecessors in title, the Sibleys, openly, adversely, and exclusively used the disputed area for a continuous period of greater than twenty years. We disagree.

Adverse possession was not an issue at trial. On April 21, 2017, the museum filed a motion for summary judgment on both counts of the Kelleys' amended complaint.⁴ The Kelleys filed a cross motion for summary judgment on count I and an opposition to the museum's summary judgment motion. On July 28, 2017, after a hearing, the judge granted summary judgment in favor of the museum on the Kelleys' adverse possession claim, stating that the Kelleys “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.” The Kelleys' claims that remained and proceeded to trial were whether they had a prescriptive easement and whether the board improperly concluded that the museum's proposed alterations were not substantially more detrimental to the neighborhood than the museum's existing nonconforming building. The judge's “[o]rder in [a]dvance of [t]rial,” which described the only issues to be tried, did not include exclusive use, an element of adverse possession. See Ryan v. Stavros, 348 Mass. 251, 262 (1964) (“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years”). The judge's findings of facts and conclusions of law also stated that the judge “resolved the Kelleys' adverse-possession claim at summary judgment.” At oral argument, counsel for the Kelleys conceded that the adverse possession claim was disposed of at summary judgment in favor of the museum.

Despite the concession at oral argument, the Kelleys' brief largely ignores the fact that the judge granted summary judgment to the museum on the Kelleys' adverse possession claim, save a mention in a footnote and a conclusory sentence. Having failed to argue in their brief that summary judgment was improperly granted to the museum on this issue, the Kelleys have waived the claim. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1630 (2019) (“The appellate court need not pass upon questions or issues not argued in the brief”).

Even if the claim were not waived, the Kelleys improperly rely on evidence outside of the summary judgment record, i.e., evidence adduced at trial, to challenge the outcome of the judge's summary judgment decision. In that posture, the claim fails. See Fidelity Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996), quoting Cullen Enter., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n., 399 Mass. 886, 889 n.9 (1987) (“In our review of a motion for summary judgment we are ‘confined to an examination of the materials before the court at the time the rulings were made’ ”).

2. Special permit approval. The Kelleys claim that the board erred in its approval of the special permit because the finding that the project's alterations to the museum will not be substantially more detrimental to the neighborhood than the existing nonconforming building was unreasonable and arbitrary, and that the judge erred by ignoring evidence of substantial detriment. We disagree.

The board's decision must be affirmed unless it is “based on a legally untenable ground or [was] unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). “We will uphold a zoning board's decision and that of the reviewing ․ [c]ourt ‘if a rational basis for the [decision] exists which is supported by the record.’ ” Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 486 (2009), quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 356 (2001).

The museum sought its special permit under Somerville Zoning Ordinance § 4.4.1. The standard for granting a special permit under § 4.4.1 requires that the board “find that such extension, enlargement, renovation or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming building.” Section 4.4.1 states that in making that finding the board “may consider ․ impacts upon the following: ․ scale, ․ shading, visual effects and neighborhood character.” The Kelleys claim that both the board and the judge failed to address the impacts of the project's scale, shading, loss of light and air, and the neighborhood character when finding the alteration will not be substantially more detrimental.

As the judge noted, under § 4.4.1, though the board “may consider various impacts doesn't mean that the [board] must do so.” In any event, the Kelleys offered limited evidence regarding any material adverse effects of the project on scale, shading, loss of light and air, and visual effects. Susan Kelley testified that the project would impact her view and her loss of light and air.⁵ Another witness who was a neighbor of the museum testified that he believed the project was “out of scale with the neighborhood.” On the other hand, the museum's architect testified that the project was in line with the architecture of the street and that he did not think there was any feature of the project that would be detrimental to the neighborhood.

The judge found that there were three structural nonconformities of the museum: (1) it does not have a fifteen-foot front yard setback; (2) its “FAR” is 1.17 compared to .75; and (3) its ground cover is 50.77 percent of its lot compared to 50 percent being the maximum. The elevator project would impact these three nonconformities by building the addition entirely within the setback; the FAR would increase from 1.17 to 1.21, and the ground cover would increase from 50.77 percent to 55.84 percent of the museum's lot. The project's impact on the neighborhood was considered.

In the end, the judge (and not this court) was in the best position to weigh the credibility of all the testimony, to review the project's plans, and having taken a view of both the museum and the neighborhood, to conclude that the § 4.4.1 standard was satisfied.

Judgment affirmed.

FOOTNOTES

4.   Count I was an appeal under G. L. c. 40A, § 17, from the board's decision granting the museum a special permit for the project. Count II included two claims: (1) the Kelleys acquired title by adverse possession of the museum's property, and (2) the Kelleys had acquired a prescriptive easement in the disputed land based upon the bluestone driveway.

5.   Specifically, Susan Kelley testified that the project will have “a significant impact on my view sitting on my porch and in my front lawn or on my front room or upstairs in my study ․ [and] in my bedroom.” She also offered her opinion that she would lose a considerable “amount of light and air and it might feel claustrophobic.”