NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

15-P-328                                              Appeals Court

JOSEPH H. CHIARALUCE, trustee,1 vs. ZONING BOARD OF APPEALS OF
               WAREHAM (and a consolidated case2).


                             No. 15-P-328.

           Suffolk.       January 7, 2016. - April 8, 2016.

            Present:    Hanlon, Sullivan, & Maldonado, JJ.


           Zoning, Nonconforming use or structure, By-law.



     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.


    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


    1
        Of the Chiaraluce Realty Trust.
    2
       Denise R. DePedro, as trustee of the 18 Wankinco Avenue
Realty Trust, & others vs. Zoning Board of Appeals of Wareham &
another.
                                                                      2


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 (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 findings."     Martin v. Simmons Properties, LLC, 467 Mass.

1, 8 (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.
                                                                     3


    Wareham's zoning board of appeals (ZBA or 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
                                                                    4


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 locus, thus

supporting the judge's finding that the property was purchased

and retained for parking.   Even after the sale of the Chiaraluce

cottage, the trust delayed almost another three years before

seeking permission to build.

    The trust first sought a building permit in March of 2001,

nine and one-half years after the structure on the locus had

been damaged and removed.   The building inspector denied the

permit, advising the trust that a special permit and/or variance

was needed.   The trust's subsequent application for a special

permit was denied by the ZBA in June, 2001, and the trust did

not appeal.   Rather, some two years later, the trust applied for

and received a special permit from the ZBA to construct a new

residential structure.   Abutters Mary T. Nielsen and John W.

Downey filed separate appeals in the Superior Court.   The cases

were consolidated, and a judge of the Superior Court affirmed

the special permit on the basis of the grandfathering provision

in G. L. c. 40A, § 6, fourth par.   On appeal to this court, we

reversed, concluding that the locus did not qualify for

grandfathering under § 6 because it lacked the requisite fifty

feet of frontage.   Nielsen v. Board of Appeals of Wareham, 69

Mass. App. Ct. 1106 (2007) (memorandum and order pursuant to
                                                                     5


rule 1:28).3   Because the issue was not properly before us as to

whether the locus was buildable on the basis of more generous

provisions of the Wareham zoning by-law, we left that issue

open.

     In May, 2010, the trust obtained a building permit for a

much larger structure, with a gross floor area of 2,464 square

feet.    Upon the request of abutter Denise R. DePedro that the

building inspector enforce the by-law, the permit was revoked.

The trust later withdrew its appeal from the revocation, and on

December 15, 2010, the trust filed an application for a building

permit pursuant to §§ 1322 and 1335(1) of the by-law4 to

construct a residence with roughly the same footprint as the

Olsens' original residence, but about fifteen feet taller.     The

building inspector denied the application, and the trust

appealed his decision to the ZBA.    On July 14, 2011, the ZBA,

while upholding the denial of the application for a building

permit as of right, granted the trust a special permit pursuant

to § 1322 of the by-law.    The trust appealed from so much of the

board's decision as determined it was not entitled to a building


     3
       We also rejected an argument that the locus had merged
with the abutting lot owned by the Chiaraluces as tenants by the
entirety, reasoning that the locus was held by Chiaraluce as the
sole trustee and he did not have the power to use the adjoining
land to avoid or reduce a nonconformity.
     4
       Pertinent sections of the by-law are reproduced in an
Appendix to this opinion.
                                                                   6


permit as of right.   DePedro (as trustee, see note 2, supra),

Mary T. Nielsen, John W. Downy, and Maria P. Downy

(collectively, the abutters)5 appealed the award of the special

permit, and a judge of the Land Court consolidated the two

appeals.

     On cross motions for summary judgment, the Land Court judge

determined that the abutters had standing to bring their appeal,

and that the locus met the requirements for a special permit

under § 1322 of the by-law.   The judge found, however, that

while there was no time restriction mandated by G. L. c. 40A,

§ 6, third par., or § 1341 of the by-law related to abandonment

of the right to rebuild on a nonconforming lot, there were

questions of fact whether the structure had been abandoned as a

matter of law "apart from ordinance."   Dial Away Co. v. Zoning

Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165, 171 (1996).     In

declining to grant summary judgment to the abutters on this

basis, the judge noted, among other factors, that "[t]here has

been prior litigation, which consumed a number of years, and

which at its conclusion left open, in the view of the Appeals

Court panel which considered that prior case, alternative

avenues to obtaining approval for a building on this land."




     5
       DePedro's property directly abuts the locus; the Nielsen
and Downy properties are abutters of abutters.
                                                                   7


    After the trust requested a remand, the ZBA granted a

special permit pursuant to G. L. c. 40A, § 6, first par., and

§ 1335(2) of the by-law, and made a finding that, although the

proposed reconstruction would increase the nonconforming nature

of the structure, that increase would "not be substantially more

detrimental to the neighborhood than the pre-existing

structure."   The parties amended their pleadings accordingly;

the ensuing trial on the board's decisions pursuant to both

§ 1322 and § 1335(2) of the by-law was limited to two unresolved

issues:    (1) whether the nonconforming structure had been

abandoned as a matter of law, and (2) whether the board exceeded

its authority by issuing the permits under the by-law.

Following trial, the judge found that the trust and the Olsens

had abandoned the single family residential structure and

determined that no building permit may issue.    The trust

appeals.

    Discussion.     As the judge noted, municipalities are

authorized, but not required to "define and regulate

nonconforming uses and structures abandoned or not used for a

period of two years or more."    G. L. c. 40A, § 6, third par., as

appearing in St. 1975, c. 808, § 3.    In § 1341 of the by-law,

Wareham opted to regulate only "uses" abandoned or not used for

a period of two years or more.    Although the by-law does not

provide a time limit by which time a nonconforming structure
                                                                     8


must be reconstructed in order to avoid being considered

abandoned, in Dial Away Co., 41 Mass. App. Ct. at 165, 172, we

concluded that an undersized lot did not retain its protected

character as a buildable lot twenty-three years after a

nonconforming dwelling on the lot was razed; the right to

reconstruct the nonconforming dwelling had been abandoned as a

matter of law.   We noted that the lapse of time following a

demolition may be so significant that abandonment properly is

inferred as a matter of law.

       Generally, "[a]bandonment requires 'the concurrence of two

factors, (1) the intent to abandon and (2) voluntary conduct,

whether affirmative or negative, which carries the implication

of abandonment.'"    Orange v. Shay, 68 Mass. App. Ct. 358, 363

(2007), quoting from Dial Away Co., 41 Mass. App. Ct. at 172.

However, "[w]here the lapse of time following the [razing of a

nonconforming structure] is so significant that abandonment

exists as matter of law . . . , the 'evidence of things done or

not done . . . carries the implication of abandonment . . .

[and] [s]upports a finding of intent, whatever the avowed state

of mind of the owner.'"    Dial Away Co., 41 Mass. App. Ct. at

172, quoting from Dobbs v. Board of Appeals of Northampton, 339

Mass. 684, 686-687 (1959).     Accord Orange, 68 Mass. App. Ct. at

364.   "Abandonment is primarily a question of fact, . . .

although where there is no dispute as to the facts, and all the
                                                                   9


evidence is before the court, a question of law is presented."

Paul v. Selectmen of Scituate, 301 Mass. 365, 370 (1938).      Here,

the facts are largely undisputed, and to the extent that intent

was disputed, the judge made factual findings that were fully

supported by the evidence.   We discern no error of law.

    The person seeking a permit has the "burdens of proof and

persuasion on the questions of intent and inability as they

relate[] to a possible abandonment."   Bartlett v. Board of

Appeals of Lakeville, 23 Mass. App. Ct. 664, 671 (1987).      In

concluding on summary judgment that material questions of fact

remained, the Land Court judge correctly noted that it would not

be a simple matter to show that the nonconforming structure had

not been abandoned.   The judge advised that the trust "will need

to demonstrate why there were, in the chronology of this site

since Hurricane Bob in 1991, various missed opportunities to

build, including unexercised permits, and gaps where pursuit of

the right to build seems not to have been pressed with much

force, if at all."

    Curiously, however, the trial shed no light on the reasons

why Chiaraluce allowed the Olsens' special permit to lapse and

made no other effort to obtain a building permit for some seven

and one-half years after acquiring title, and over nine and

one-half years after the nonconforming structure had been razed.

The judge found that the Olsens had no intent to rebuild and
                                                                 10


credited only so much of Chiaraluce's testimony that he intended

to use the locus as a parking lot.    Given these factual

findings, the judge did not err as a matter of law in concluding

that the structure had been abandoned.    Although the time period

is not as extreme as the twenty-three years present in Dial-

Away, given the availability of a blanket special permit here,

its unexplained lapse, the failure to attempt to build for over

nine and one-half years following the razing of the

nonconforming structure, and the judge's finding that Chiaraluce

intended to use the locus as a parking lot, the structure and

the right to reconstruct it have been abandoned as a matter of

law.6

                                     Judgment affirmed.




        6
       Chiaraluce's argument that the abutters should be barred
by principles of res judicata from raising the abandonment issue
was not made to the trial judge and is therefore waived. See
Scheffler v. Board of Appeal on Motor Vehicle Liab. Policies &
Bonds, 84 Mass. App. Ct. 904, 905 (2013), quoting from Palmer v.
Murphy, 42 Mass. App. Ct. 334, 338 (1997) ("Objections, issues,
or claims -- however meritorious -- that have not been raised at
the trial level are deemed generally to have been waived on
appeal").
                            Appendix.

     Pertinent sections of the Wareham zoning by-law are set
forth below.

"1322    Restoration of Damaged or Destroyed Structures

         A nonconforming building or structure which has been
         damaged or destroyed may be repaired or rebuilt
         provided that such restoration shall not exceed the
         original area and height and shall be placed no nearer
         the street line than the building or structure which
         the restoration replaces and that there is no material
         change in exterior appearance except according to the
         terms of a Special Permit issued by the Board of
         Appeals.

". . .

"1334    Alteration, Reconstruction, Extension or Structural
         Changes to Pre-existing Nonconforming Single and Two-
         Family Residential Structures.

"1335    Procedures

         As provided for in M.G.L. c. 40A sec. 6, a
         nonconforming single or two-family dwelling or
         structure accessory thereto may be altered,
         reconstructed, extended or otherwise structurally
         changed provided that: (1) the proposed alteration,
         extension or structural change itself conforms to the
         requirements of the present By-Law and does not
         intensify any existing non-conformities or result in
         any additional non-conformities in which event the
         Building Inspector may issue a building permit and an
         application to the Board of Appeals need not be made;
         or (2) as provided below the Board of Appeals finds
         that (i) there is no substantial increase in the
         nonconforming nature of said structure; and (ii) such
         reconstruction, alteration or extension will not be
         substantially more detrimental to the neighborhood
         than the existing nonconforming structure or use.

". . .

"1341    Period of Abandonment or Discontinuation
                                                     2


All . . . nonconforming uses [other than agricultural,
horticultural and floricultural uses], which have been
abandoned or discontinued for more than two years,
shall not be re-established. . . . [A]ny future use
shall be in conformity with the provisions of this By-
Law."
