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Bruno v. Zoning Board of Appeals of Tisbury & Others

Appeals Court of Massachusetts, Suffolk

March 19, 2018

WILLIAM A. BRUNO, trustee, [1] & another [2]
v.
ZONING BOARD OF APPEALS OF TISBURY & others. [3]

          Heard: November 9, 2017.

         Civil action commenced in the Land Court Department on May 2, 2014.

         The case was heard by Gordon H. Piper, J., on motions for summary judgment.

          Douglas A. Troyer for the plaintiffs.

          Howard M. Miller for Samuel Goethals & another.

          Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury.

          Present: Meade, Shin, & Ditkoff, JJ.

          DITKOFF, J.

         The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos' request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals). The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. We conclude that the ten-year statute of limitations under G. L. C. 40A, § 7 -- which governs actions to compel the removal of a structure because of alleged zoning violations -- commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan. As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge's denial of the Brunos' request for attorney's fees and costs from the members of the board.

          1. Background.

         The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury. The Goethals' property (Lot 1) and the Brunos' property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930's. The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960.

         In 1978, the planning board of Tisbury granted the Goethals a special permit under the town zoning by-law (by-law) to build a detached guesthouse on the original lot. As authorized by the special permit, the Goethals constructed a guesthouse structure of approximately 850 square feet in place of the garage. In or around 1986, the Goethals performed additional work on the guesthouse, including the addition of two bedrooms and increasing the total area to 1, 710 square feet. There is no evidence that the 1986 addition was authorized by a building permit.

         On December 19, 2001, the planning board endorsed the Goethals' plan to subdivide the original lot into two parcels, Lot 1 and Lot 2, with approval not required (ANR) under G. L. c. 41, § 81L. Under the subdivision plan, Lot 1 measured approximately 12, 350 square feet and contained the guesthouse, and Lot 2 measured approximately 32, 200 square feet and contained the original single-family dwelling. Both lots are in Tisbury's R-25 zoning district, which requires a minimum lot size of 25, 000 square feet for a single-family dwelling, well in excess of the square feet assigned to Lot 1.[4]

         Lot 1 and Lot 2 remained in common ownership following the ANR subdivision, until the Goethals conveyed Lot 2 to the Brunos by deed dated August 17, 2005, and recorded two weeks later. Under the terms of the conveyance, the Goethals reserved easements for their family and guests granting access across a portion of the Brunos' property to use the beach. After the 2005 conveyance, the Goethals maintained ownership of Lot 1.

         In 2010, the Goethals converted a television room in the former guesthouse into a bedroom, bringing the number of bedrooms to five. The Goethals did not seek any permits or authorization for this work. The lots are subject to the "Coastal District and Barrier Beach Regulations" (coastal district regulations) incorporated into the ...


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