Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chiaraluce v. Zoning Board of Appeals of Wareham

Appeals Court of Massachusetts

April 8, 2016

Joseph H. Chiaraluce, trustee, [1]
v.
Zoning Board of Appeals of Wareham (and a consolidated case[2])

         Argued January 7, 2016.

          Suffolk. Civil actions commenced in the Land Court Department on July 21 and July 25, 2011.

         The cases were heard by Gordon H. Piper, J.

          Richard M. Serkey for Joseph H. Chiaraluce.

          Mark J. Lanza for Denise R. DePedro.

         Present: Hanlon, Sullivan, & Maldonado, JJ.

          OPINION

          [48 N.E.3d 476] Sullivan, J.

          Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus). A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law. We affirm.

          Background.

          We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass.App.Ct. 522, 523, 883 N.E.2d 1235 (2008), and " do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge's

Page 291

findings." Martin v. Simmons Properties, LLC, 467 Mass. 1, 8, 2 N.E.3d 885 (2014). The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet. It has no street frontage and is accessible from the street over a twelve-foot-wide right of way. Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet. In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage. Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus.

          [48 N.E.3d 477] Wareham's zoning board of appeals (board) granted a " blanket" special permit for reconstruction of residences damaged by Hurricane Bob. Although the Olsens obtained such a permit in March of 1992 and in February of 1993 obtained a six-month extension of the permit, they did not rebuild. Rather, on July 30, 1993, they sold the locus to the trust for $5,000. The Olsens used the $70,000 in insurance proceeds they received for the damage to the cottage to purchase a mobile home elsewhere in Wareham. Given what the judge found to be a low sale price and the Olsens' choice to spend their insurance proceeds elsewhere, the judge found that they intended to abandon the nonconforming structure on the locus.

         At the time the trust purchased the locus, Chiaraluce and his wife owned the abutting lot, improved with a single-family cottage. Although Chiaraluce testified that his initial plan for the locus was to use it for overflow parking for his abutting property, " but eventually who knew, you know, garage, house," the judge found that Chiaraluce intended to use the locus solely for additional parking for the abutting lot, and not to build a house. As a reviewing court, we accept this factual finding of the judge, who saw and heard the witnesses. See Martin v. Simmons Properties, LLC, 467 Mass. at 8.

         In addition to Chiaraluce's testimony, additional facts in the record supported the judge's findings. Chiaraluce sold the abutting improved lot on August 14, 1998. It was not until March, 2001, after Chiaraluce had sold his abutting property, that the trust first sought to rebuild on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.