CSERR v. ZONING BOARD OF APPEALS OF DIGHTON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Dr. Robert Cserr owns property in Dighton, abutting the site of a residential project for which Bruce, LLC (Bruce), was granted a comprehensive permit in 2003 under G. L. c. 40B.³ He asserts that his property includes part of a “paper street” known as the Chase Street Extension, through which Bruce intends to run, without his permission, water and sewer lines to serve the development. He appealed the issuance of the comprehensive permit by the zoning board of appeals of Dighton (board) in 2003 pursuant to G. L. c. 40A, § 17, and G. L. c. 40B, § 21. That appeal was apparently brought within the short twenty-day period following the allowance of the comprehensive permit provided for by the statute. G. L. c. 40A, § 17. Eventually, however, in 2007 he stipulated to dismissal of that appeal “without prejudice.”

The board granted three extensions of Bruce's permit in 2010, 2011, and 2012. Cserr appealed each to the Bristol Superior Court under G. L. c. 40A, § 17, and G. L. c. 40B, § 21. These are the matters currently before us. Bruce sought an additional extension in 2013 but was denied by the board. Bruce appealed that denial to the Housing Appeals Committee (HAC) under G. L. c. 40B, § 22. Pursuant to Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 272 n.4 (2008), the instant consolidated appeal of the decisions granting the 2010, 2011, and 2012 extensions to Bruce was stayed pending resolution of that appeal. The HAC issued a decision allowing the extension. Cserr had been granted intervener status in that proceeding in order to attempt to raise his claim that Bruce lacked site control.

Site control is a regulatory requisite of eligibility for a comprehensive permit under 760 Code Mass. Regs. § 56.04 (2008). An applicant for a comprehensive permit must demonstrate to the Subsidizing Agency that it has a sufficient ownership interest in the site it proposes to develop.⁴ Cserr argued before the HAC and then the Superior Court that Bruce lacks control over a portion of the Chase Street Extension, through which it plans to bring underground water and sewer utilities to the project. Cserr contended that though Bruce intends to access this land in order to construct its development, it is Cserr who owns this land in fee and Bruce's development plan proposes trespass on his property. Because Bruce did not have the right to access the entirety of the Chase Street Extension, he argued, it could not demonstrate site control and thus could not meet the eligibility requirements for a comprehensive permit under 760 Code Mass. Regs. § 56.04 (2008). Though the board found that Bruce met the site control requirement in 2003, Cserr argued that Bruce “must ‘re-earn’ the permit by establishing -- anew -- satisfaction of the project eligibility requirements,” including site control, because he has appealed the board's grants of Bruce's permit extension.

The HAC declined to address Cserr's arguments as outside HAC jurisdiction. And this court affirmed. See Cserr v. Bruce, LLC, 91 Mass. App. Ct. 1119 (2017) (holding that site control was not issue to be decided by HAC and that HAC could not act on abutter's claim that comprehensive permit application should have been denied in first instance).

With that proceeding being resolved, the parties moved to lift the stay in the instant matter and filed supplemental briefs on summary judgment. The Superior Court held that the basis of Cserr's grievance does not fall within the scope of the interests protected under G. L. c. 40B. Cserr has now brought this appeal.

We may assume without deciding that the claim in this matter, that Bruce intends impermissibly to trespass on what Cserr alleges is his property, was not decided in the prior appeal of the HAC's decision which dealt with the claim of lack of site control, and that, therefore, this claim is not barred by our decision in that case. Nonetheless, we affirm the decision of the Superior Court.

To begin with, Cserr dropped his appeal of the comprehensive permit in 2007. The alleged infringement was wrought by issuance of the comprehensive permit. If the interest he claims is protected by the zoning laws, it could have been raised in that appeal. The only issues before the board in these extension proceedings were whether to extend that permit and, if so, whether conditions ought to be imposed on that extension.⁵ 760 Code Mass. Regs. § 56.05(12)(c) (2008). Cserr cites no authority for the proposition that each extension provides an abutter a right to challenge the underlying comprehensive permit. Indeed, were it to do so, a developer could in some circumstances be forced to litigate claims about comprehensive permits many years after their issuance. This would seem contrary to the idea behind the Legislature's adoption of a short, twenty-day period for appealing from the issuance of a comprehensive permit. See G. L. c. 40A, § 17. Although Bruce provides no citation for the proposition that the underlying merits are not resuscitated when subject to challenge each time an extension is granted, we conclude that all that is raised by an order of extension are the issues litigated (or in some cases perhaps issues that could have been litigated) before the board in the extension proceeding.

Even were we wrong about this, though, it would be of no benefit to Cserr. That is because we agree with Bruce and the Superior Court judge that the interest in protecting one's property from trespass by the water and sewer lines that will serve a development is not an interest protected against infringement in a zoning appeal. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 574-575 (2016) (interest in protecting one's private easement rights against interference from construction does not fall within interests intended to be protected by Zoning Act).

We acknowledge the statement in our prior decision that “Cserr has other available options to assert his claims concerning the road in question.” Cserr, 91 Mass. App. Ct. at n.3. That remains true. Although we express no opinion on the merits, assuming the absence of any legal or factual bar of which we have not been made aware, if the placement of sewer and water lines to the development would in fact require trespass onto his property, Cserr may of course bring a common law action for trespass or, if the conditions for such relief are met, seek declaratory and injunctive relief even before such trespass occurs.⁶

Judgment affirmed.

FOOTNOTES

3.   Zoning Board of Appeals of Dighton is named but does not express an opinion as to the appeal before us.

4.   The current regulations require that, to find an applicant eligible for the comprehensive permit, the Subsidizing Agency must issue written findings, including a finding that the applicant “controls the site, based on evidence that the Applicant or a related entity owns the site, or holds an option or contract to acquire such interest in the site, or has such other interest in the site as is deemed by the Subsidizing Agency to be sufficient to control the site.” 760 Code Mass. Regs. § 56.04(4)(g) (2008).

5.   Under 760 Code Mass. Regs. § 56.05(12)(c) (2008), a comprehensive permit will be valid for three years after it has been finally issued. If construction has not begun within three years of the date that the permit became final, the permit holder may seek an extension from the board of zoning appeals or the HAC, which grant extensions. The board may not “unreasonably den[y]” an extension. These extensions granted by the board do not constitute substantial changes under 760 Code Mass. Regs. § 56.07(4) (2008) that may merit another review of the applicant's satisfaction of the eligibility requirements under 760 Code Mass. Regs. § 56.04 (2008).

6.   Bruce's request for appellate attorney's fees and costs is denied.