CULHANE v. ZONING BOARD OF APPEALS OF NEWTON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs, Aedin C. Culhane and Simon J. French, appeal from an amended judgment of the Land Court upholding the decision of the zoning board of appeals of the city of Newton (the board) to affirm the issuance of a building permit to defendant and property owner ECW Realty, LLC (ECW). On cross motions for summary judgment, a Land Court judge concluded that the proposed dwelling is in compliance with the applicable Newton zoning bylaws and that the plaintiffs' separate adverse possession case, which had not yet resulted in a judgment, did not constitute a change in the property size within the meaning of those bylaws. We affirm.

1. Standard of review. “Where the parties have cross-moved for summary judgment, we review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the unsuccessful opposing party and drawing all permissible inferences and resolving any evidentiary conflicts in that party's favor, the successful opposing party is entitled to judgment as a matter of law.” Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 448 (2018). “Because the judge does not engage in fact finding in ruling on cross motions for summary judgment, we owe no deference to his assessment of the record.” Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517 (2011). “[W]e remain ‘highly deferential’ to a board's interpretation of its own ordinances.” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871, 873 (2015), quoting Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728-729 (2013).

2. Rear lot status. The plaintiffs filed a complaint under G. L. c. 40A, § 17, in the Land Court contending that the property does not comply with the rear lot dimensional requirements of the Newton zoning bylaws and thus the permit should have been denied. The property at issue, lot D, is part of a five-lot subdivision that was recorded on June 21, 1950. Lot D is located in a Multi-Residence 1 (MR-1) zoning district.

Under § 1.5.2.G of the bylaws, a rear lot is a “parcel of land not fronting or abutting a street, which does not have the required minimum frontage directly on a street” and has limited access to a street by “[a] ‘flag pole’ or ‘pan-handle’ shaped portion of the lot,” an easement, or “[a] private right-of-way as shown or described in plans or deeds duly recorded.” Under § 3.2.5 of the bylaws, a two-family detached rear lot in a MR-1 district must have a minimum lot area of 12,000 square feet and a maximum floor area ratio (FAR) (measurement of the gross floor area of all buildings on the lot divided by the total lot area) of 0.28.⁴ The special requirements for rear lots, however, are triggered by § 3.2.12 of the bylaws only when a landowner applies for a special permit to create a rear lot. Moreover, under § 3.2.12.C, the dimensional controls of § 3.2.5 do not apply to lots, like this one, created before December 8, 1953.

Section 3.2.2.A.2 of the bylaws provides that lots created before December 8, 1953, are subject to a different set of density and dimensional standards, which are set out in § 3.2.3 of the bylaws. Under § 3.2.3, earlier lots require a minimum lot area of 7,000 square feet. Because lot D is an existing lot, not a proposed lot, it is also subject to a less restrictive FAR. Under § 3.2.11 of the bylaws, lot sizes ranging from 10,000 to 14,999 square feet in MR-1 districts are allowed a maximum FAR of .48. Moreover, under § 3.2.11.A.1, lots created before December 8, 1953, are allowed an additional increase in FAR of .02, raising the FAR maximum to .50. Here, the property has a lot area of 11,294 square feet, and the proposed dwelling has a FAR of .465. Accordingly, the lot satisfies the dimensional requirements for pre-December 8, 1953, lots, and the permit was properly issued.

3. Adverse possession effect. We reject the plaintiffs' contention that the outcome of this case is entirely contingent on the separate adverse possession case. At the time the plaintiffs sought to stay the current proceedings, there was no final judgment in the adverse possession case. Cf. Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292, 296 (2004) (“preemptive attacks by abutters against theoretical uses would unduly burden both land owners and the Land Court”). Since then, the Land Court decided the adverse possession claim in the plaintiffs' favor, and ECW filed an appeal. Nonetheless, the adverse possession claim does not control this zoning case. Contrast Director of Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858, 861 (1984) (“Absent special circumstances, determination of a cause of action entirely contingent on the validity of an appealed judgment in a separate proceeding should be stayed pending resolution of the appellate process unless the detriment to the litigants of delay outweighs the benefits of judicial economy and orderly adjudication”). Cf. Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996) (if “an interlocutory finding or order ․ so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceeding in the trial court, [the trial court] ․ may stay all further proceedings except such as are necessary to preserve the rights of the parties”).

The bylaws provide that the size of a lot “shall be deemed to have been changed only if the lot was combined, merged, subdivided, or resubdivided by recording a deed, plan, or certificate of title.” § 7.8.4.B. Regardless of the status of the adverse possession case, any property adversely possessed by the plaintiffs had not been recorded at the time of the issuance of the building permit. We are unpersuaded by the plaintiffs' argument that that recording is unnecessary because the defendants were on notice. Because the bylaws explicitly require recording, the size of the property had not changed within the meaning of the ordinance.

4. Denial of stay on adverse possession case. The plaintiffs contend that the judge erred in not staying the case until their adverse possession case is resolved. “[A] motion to stay proceedings is ordinarily a matter addressed to the sound discretion of the trial judge.” Travenol Lab., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985). Accord Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 406-407 (2012). “An appellate court's review of a trial judge's decision for abuse of discretion must give great deference to the judge's exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Here, the Land Court judge properly concluded that the present action is entitled to statutory priority over “all other civil actions and proceedings.” In light of the minimal effect of the adverse possession case on the building permit, it was within the Land Court judge's discretion to deny the plaintiffs' motion to stay this case until the final judgment in the plaintiffs' adverse possession case.

5. Substitution of new plan. The Land Court judge properly affirmed the issuance of the building permit based on ECW's revised plot plan. There is no basis for prohibiting a landowner from revising its plot plan after submission, provided that the building inspector reviews and considers the amendment. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 378 (2009) (plaintiff permitted to submit revised plan to board). See also Malden Police Patrolman's Ass'n v. Malden, 92 Mass. App. Ct. 53, 58 (2017) (concluding that contract dispute fell within primary jurisdiction of Department of Labor Relations). Accordingly, the measurement of FAR was properly based on the revised plot plan submitted by ECW in March 2017, rather than the plan submitted in January 2017. In the modified plot plan, the first-floor elevation was adjusted to allow for a full exclusion of the basement from the gross FAR calculation under § 1.5.5.D of the bylaws. The plaintiffs do not contend that the FAR calculations under the revised plot plan fail to meet the requirements set out in the bylaws. Accordingly, the building permit was properly issued.

Amended judgment affirmed.

FOOTNOTES

4.   The rear lot definition did not appear in the bylaws until 1973, well after lot D was recorded.