KENNETH J. KOSLA vs. BOARD OF APPEALS OF HOLDEN & another. [Note 1]

MILLS, J. Kenneth Kosla appeals from decisions of the Superior Court affirming a grant by the board of appeals of Holden (board) to the Appalachian Mountain Club (AMC) of (i) a variance from the paved parking requirement of Holden's local zoning by-law (by-law), and (ii) a special permit to expand and reconstruct a nonconforming structure that was damaged by fire. Kosla, an abutter, argues that the variance was improperly granted because the evidence at trial did not satisfy the statutory requirements needed to support a variance under G. L. c. 40A, § 10. As to the special permit, Kosla complains that the proposed replacement structure is significantly larger than the original structure and, therefore, would be substantially more detrimental to the neighborhood. Kosla also argues that the special permit is invalid because the application for it was not filed within two years following the fire.

We agree that the variance was improperly granted, but conclude that the board's decision to grant the special permit was within its authority.

1. Background. In 1943, the AMC acquired an eleven-acre lot, comprised of three parcels, bisected by the municipal boundary between the towns of Holden and Paxton. The AMC used a building on the Holden portion of the land for approximately fifty years as a club lodge until a fire partially destroyed the building in 1993. Historically, a portion of the AMC lot in Paxton provided approximately fifteen to twenty parking spaces for persons using the lodge. [Note 2] In 1986 Kosla built his house on an adjoining piece of land. His home was built approximately 400

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feet from the then-existing lodge. The lands owned by the parties and the surrounding area are rural, wooded, and relatively private.

The AMC's applications for variances and special permits were each accompanied by an identical site plan that proposed five paved handicapped parking spaces near the building entrance (on the Holden portion of the lot) and twenty-one unpaved spaces in Paxton. The Paxton parking area was located within the same area as the historic parking area, but was to contain a slightly greater number of spaces. From the record it appears that the parties proceeded upon the assumption that paving was required by the Holden by-law as a condition to the grant of a special permit, [Note 3] unless excepted by variance relief, [Note 4] and that the board could exercise jurisdiction to grant that relief even though the land is in Paxton. The board's grant of variance relief and the special permit implicitly incorporate the parking lot in Paxton as fulfilling the parking requirement, and by grant of variance relief, purportedly permitted it to remain unpaved.

The board specifically found that the AMC's proposed building was not substantially more detrimental to the neighborhood. The judge, in her findings, described the building as one story with a full basement, with a footprint slightly larger than the historic building, but containing essentially the same square footage plus a basement. The judge explicitly found that the building would be "approximately the same size as the original and, in fact, removes the bunk bed area in the original building

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which encouraged overnight use." The judge also made findings with respect to "some increased use of the property" and occasional off-street parking. We consider Kosla's appeal to bring to this court the judge's approval of the board's grant of variance relief and special permit (upon AMC's second application) incorporating the smaller building. [Note 5]

2. The variance. The Holden by-law "could have no intent or purpose in respect of" the Paxton land. Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 , 533 (1967). This means, inter alia, that the paving requirement of the Holden by-law cannot apply to the Paxton parking lot, and the variance is, thus, ultra vires. The board, accordingly, was without authority either to enforce the by-law with respect to the Paxton land or to grant relief from the by-law in its purported application to the Paxton land. Accordingly, the judgment affirming the grant of a variance must be reversed. [Note 6]

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3. The special permit. The by-law provides that no nonconforming structure or use shall be extended, altered, changed or reconstructed unless it is specifically permitted by the by-law, or the board grants a special permit therefor. [Note 7] In its application for a special permit the AMC explicitly represents that the parking area is located on an adjoining 3.23 acre parcel in Paxton,

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and that "[t]he existing gravel parking lot will be cleared . . . for 21 cars." The application also incorporates a site plan that delineates the unpaved parking area in Paxton.

Contrary to the apparent assumptions of the board and the parties, we hold that the special permit is not dependent upon the variance. The judge's findings as to the new building substantiate the grant of a special permit under the criteria of § IX of the by-law. Though, as noted, the board apparently based its decision to grant the special permit, in part, on its grant of the parking lot variance, that the variance was invalid does not compel a conclusion that the special permit also fails.

The board's consideration of the proposed structure and its intended use included evaluation of the adequacy of the parking AMC proposed to serve it. The board's grant of the special permit reflected its determination that the structure as proposed would not be substantially more detrimental to the neighborhood. As we have observed, supra, the board could not have enforced the paving provisions of the by-law in respect of the Paxton land. Moreover, as the proposed parking area was essentially the same as the parking area that historically had served the lodge, we cannot say that the board was arbitrary or capricious in its conclusion that the proposed structure and use would not be substantially more detrimental to the neighborhood. Compare Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355-356 (2001). [Note 8]

4. Two-year time limitation on restoration after fire. The judge determined that the two-year restoration limit of § IX.C. of the by-law was applicable to the proposed lodge, but that, "[b]ased on the 'tack back' provisions of G. L. c. 40A, § 9, [the] two year period [had] been kept alive by the appeals before th[e] court." Kosla argues that the two-year limitation is not extended by G. L. c. 40A, § 9, because of a gap in the "tack back" resulting from AMC's withdrawal, without prejudice, of its first special permit application. He argues that the operative

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special permit application (the second of two) was not filed within two years of the fire, and as a result, the AMC cannot construct a nonconforming structure at this time or at any time in the future. We understand that he argues that the phrase "determination of an appeal" in G. L. c. 40A, § 9, twelfth par., as amended through St. 1985, c. 408, as applied to this case, should include only the appeal from the board's grant of the second special permit application, completely disassociating that appeal from the initial application, and notwithstanding the "without prejudice" and "preservation of rights" aspect of the conditional withdrawal of the initial special permit while that matter was on remand to the board. Kosla's argument would elevate form over substance. The board itself treated the second permit as an amendment to the first permit.

In the circumstances of this case the several matters of appeal of several grants of relief constitute a single "appeal" for purposes of G. L. c. 40A, § 9, twelfth par.

5. Conclusion. The judgment dated May 5, 1998, affirming the grant of petitions for variance, is reversed. The judgment dated January 27, 1999, dismissing the plaintiff's complaint as to the special permits, is affirmed.

So ordered.