RALPH E. GAUDET, as BUILDING INSPECTOR OF THE CITY OF WALTHAM vs. PETER R. MAZZONE, TRUSTEE OF MAZZONE 1995 NOMINEE TRUST, PETER R. MAZZONE, TRUSTEE OF MAZZONE REALTY TRUST, and BARBARA RANDO, MICHAEL J. COTTON, BRUCE MORRIS, MARK A. HICKERNELL and JOHN SERGI, as they are members of the CITY OF WALTHAM ZONING BOARD OF APPEALS

Plaintiff Ralph E. Gaudet, Building Inspector of the City of Waltham, filed his unverified Complaint on July 7, 2006, appealing pursuant to the provisions of G. L. c. 40A, §17, a decision (“Decision 2”) of Defendant Zoning Board of Appeals of the City of Waltham (the “ZBA”) which granted a special permit (the “Special Permit”) to Defendant Peter R. Mazzone (“Peter”), Trustee of Mazzone Realty Trust (the “Realty Trust”) to convert a two-family residence located at 111 Woerd Avenue, Waltham, MA (“Locus”) to a multi-family residence. [Note 1] The Nominee Trust and the Realty Trust (together “Defendants”) filed their Motion for Summary Judgment on May 18, 2007, together with supporting brief, Statement of Undisputed Material Facts, Appendix, and Affidavits of Peter Mazzone, Warren C. Cox, Jr., and Laurel McQuiggan. On June 8, 2007, Plaintiff filed his Motion for Summary Judgment, together with supporting memorandum, Statement of Facts, and two Affidavits of Ralph E. Gaudet. Plaintiff filed his Opposition to Defendants’ Motion for Summary Judgment on June 13, 2007, together with supporting memorandum. On June 18, 2007, Defendants filed their Opposition to Plaintiff’s Motion for Summary Judgment and Reply to Plaintiff’s Statement of Facts. The Cross-Motions for Summary Judgment were heard on June 20, 2007, and taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419 , 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The following material facts are not in dispute:

1. The Nominee Trust owns Locus. Locus is a corner lot abutting Woerd Avenue and Endicott Street and contains approximately 6,378 square feet, on which is located a wood-framed residential building.

2. The building on Locus was constructed as a single-family house pursuant to a building permit issued December 11, 1917 (the “1917 Building Permit”). The Waltham Assessor’s records for 1921, 1922 and 1924 indicate that Locus was assessed as a two-family dwelling owned by Edward F. Balch and Lillie A. Balch (the “Balchs”). Additionally, the Voting Rolls for the City of Waltham from 1924 onward show more than one family residing at Locus. The Building Card for Locus does not reflect any physical changes to the building from 1917 until 1957.

3. The Balchs sold Locus to John W. Cox and Anna B. Cox (the “Coxes”) by deed dated July 5, 1924. At that time the building on Locus had three stories (first floor, second floor and attic). The first floor had a living room, dining room, kitchen, two bedrooms and a bath, and the second floor had a full kitchen, two bedrooms, living room, dining room and bath. The Coxes, including their son Warren J. Cox, Jr. (“Warren”), resided in the first floor apartment. Other family members of the Coxes lived in the second floor apartment.

4. The City of Waltham adopted a Zoning Ordinance (the “Ordinance”) on June 22, 1925. At that time Locus was located within a Residence B zoning district, which allowed two-family houses. The Residence B zoning district for Locus became a Residence A-4 zoning district in 1952. [Note 2]

5. Laurel McQuiggan resided at 7 Endicott Street (which abuts Locus) from 1950 to the present. She recalled the house on Locus as being two-family since 1950.

6. Anna Cox (her husband being deceased) sold Locus to Edmond J. Terrio and Florence M. Terrio by deed dated January 31, 1955.

7. In June 1955, the Ordinance amended the A-4 zoning district to allow only “single family detached dwellings” as of right. Article 4, Section I of the revised Ordinance provided as follows:

“No building or other structure nor any land shall be used, nor shall any building or other structure or part thereof be erected or altered, except in conformity with the provisions of this ordinance and any amendments thereof which apply to the district in which the building, structure or premises shall be located; provided, however, that this ordinance shall not apply to existing buildings or structures, nor to the existing use of any building or structure, or of land to the extent to which it is lawfully used at the time of the adoption of this ordinance.

This ordinance shall apply to any change of use thereof and to any alteration of a building or structure when the same would amount to reconstruction, extension or structural change, and to any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent, subject however to the provisions of the following section.”

8. Edmond Terrio and his wife sold Locus to Marino A. Mazzone (“Marino”) and Anna J. Mazzone (the “Mazzones”) by deed dated July 3, 1956. The Mazzones and their son, Peter, lived at Locus from 1956 to 1975 or 1976. From 1956 until the present, both the first floor apartment and the second floor apartment were occupied. In 1957, the Mazzones applied for and received a building permit (the “1957 Building Permit”) to alter the third floor of the building on Locus to add a sleeping room and new bathroom. The 1957 Building Permit refers to the building on Locus as “two family.”

9. The Mazzones conveyed Locus to Marino by deed dated May 11, 1990. Marino conveyed Locus to the Nominee Trust by deed December 4, 1995. In 2001, the Realty Trust applied for a building permit to renovate the third floor apartment. [Note 3] The building department advised him that the third floor apartment did not comply with the State Building Code.

10. In 2003, the Realty Trust applied to the ZBA for a special permit to alter and enlarge the use of the third floor. By decision dated June 12, 2003, and recorded with the City Clerk on June 23, 2003 (“Decision 1”), the ZBA denied the special permit because “the proposal [proposed use as a three-family] is not of a less restricted character and does not comply with the Zoning Ordinance.”

11. The Realty Trust appealed this decision to this court (Misc. Case No. 291105) on July 14, 2003.

12. In 2006, the Realty Trust applied to the ZBA for a special permit to alter the use of the third floor as a change of a pre-existing nonconforming use. [Note 4], [Note 5] By Notice of Decision dated June 7, 2006, and filed with the City Clerk on June 19, 2006, the ZBA granted the special permit (Decision 2), finding that the change to the three-family use of Locus met the requirements of Sections 3.7222 and 3.7223 of the Ordinance, and that such use would not be substantially more detrimental to the neighborhood than the two-family use of Locus.

13. A Stipulation of Dismissal relative to Misc. Case No. 291105 was executed by the parties on September 21, 2006.

14. The neighborhood of Locus contains a number of two, three, four and five family dwellings. There are currently eleven properties within 300 feet of Locus that are being used as three, four or five family dwellings.

15. In connection with the renovation of the third floor apartment, the Realty Trust has provided each unit in the building with two parking spaces, all parking spaces with proposed surface water drainage to prevent run-off. The third floor apartment will be connected to the municipal water and sewer system, and there is no indication that the system cannot accommodate the additional unit. Additionally, provisions have been made for the disposal of refuse and other waste from the third floor apartment.

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Plaintiff argues that the Special Permit does not meet the requirements of the Ordinance and, therefore, Decision 2 was arbitrary, capricious and unreasonable and beyond the scope of authority of the ZBA. Plaintiff also argues that the Special Permit was applied for within two years of final action on Decision 1 and was a violation of G. L. c. 40A, § 16. Defendants argue that the Special Permit met the requirements of both the Ordinance and G. L. c. 40A, § 16. I shall examine each of these issues in turn.

Two year moratorium.

G. L. c. 40A, § 16, states in part as follows:

“No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action . . .”

Plaintiff argues that since Decision 1, which denied a similar special permit, was appealed and not resolved within two years before the request for the Special Permit was filed with the ZBA, the Special Permit is void. Defendants, however, correctly point out that the statute states that the two year period runs from the date that the application was “finally acted upon by the special permit granting authority,” and not the date that a court acts upon the appeal. While not specifically addressing whether an application was “finally acted upon” for purposes of G. L. c. 40A, § 16, case law addressing whether final action on a special permit application has occurred for purposes of constructive approval under G. L. c. 40A, § 9, has defined final action of a local board as the filing of the decision with the City Clerk. See Board of Alderman of Newton v. Maniace, 429 Mass. 726 , 731 (1999) (“we conclude that ‘final action’ within the meaning of § 9 occurred when the board recorded with the city clerk the result of its vote on the defendants’ application”). In the case at bar, Decision 1 was filed with the City Clerk on June 23, 2003, and the ZBA did not act favorably on the Special Permit until Decision 2 was filed with the City Clerk on June 19, 2006, nearly three years later. As a result, I find that Decision 2 was timely granted. [Note 6]

The Special Permit.

The central issue in this case is whether the ZBA exceeded its authority in issuing the Special Permit. This issue requires a trial de novo before this court. See Joseph v. Bd. of Appeals of Brookline, 362 Mass. 290 , 292 (1972) (“[I]t’s the judge’s duty to determine the facts for himself, to apply the governing principles of law, and then to inspect the decision of the board and enter such decree as justice and equity may require”). It is the role of this court to make independent findings relative to the Special Permit and then determine whether the ZBA’s decision was arbitrary, capricious or unreasonable or beyond the scope of its authority. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638-639 (1970) (the board’s decision should not be disturbed “unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary”). Defendants have the burden of proof to show that the Special Permit was justified. See Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981).

Although Plaintiff appeared to agree in his Motion for Summary Judgment that the two-family use of Locus is a valid nonconforming use, he argues in his Opposition to Defendants’ Motion for Summary Judgment that because the 1917 Building Permit allowed construction of a single-family dwelling, the two-family use of Locus is not a valid nonconforming use. Defendants, however, have offered undisputed evidence showing that Locus was assessed as a two-family dwelling since 1921 and, based on the Voting Rolls, used as a two-family dwelling since at least 1924, one year before the City of Waltham adopted the Ordinance. [Note 7] Moreover, the Ordinance allowed the two-family use of Locus until at least 1952 when the Residence B zoning district became a Residence A-4 zoning district, and the 1957 Building Permit referenced the building on Locus as “two family.” As a result, I find that the two-family use of Locus is a valid nonconforming use.

The issue, then, is whether the three-family use allowed by the Special Permit is a valid use. Defendants argue that the third apartment meets all the requirements for a special permit, even though the three-family use was not in existence at the time of the change in the Ordinance in 1952 and was not an allowed use in either the Residence B zoning district or the Residence A-4 zoning district. Defendants cite Section 3.7223 of the Ordinance in their defense. Section 3.722 of the Ordinance states as follows:

“Rights of nonconforming structures, uses, buildings and land. Any use, structure, building or land which, at the time of the passage of any applicable provision of this chapter, constitutes a nonconforming use or structure . . . may be:

3.7221. Continued in that use.

3.7222. Altered or enlarged in that use to an extent not exceeding 10% of the ground floor area of the building or area of land used at the time of the passage of this chapter when a special permit therefor has been granted by the Board of Appeals for such alteration or enlargement . . .

3.7223. Changed to a similar use of not less restricted character, when a special permit therefor has been granted by the Board of Appeals for such a change.” (Emphasis added).

Defendants argue that they meet the requirements of both Section 3.7222 and Section 3.7223 of the Ordinance. Even though Section 3.7222 deals with an enlargement of the same use, Defendants state that the addition of the third floor space of 621 square feet is less than 10% of the lot area (6,378 square feet). It appears that Defendants are taking the position that a change from two-family use to three-family use is still multi-family use. Section 3.24 of the Ordinance, however, defines “Multifamily dwellings” as “[a] structure for more than two dwelling units under one roof.” Moreover, Section 3.7222 requires that the enlargement not exceed “10% of the ground floor area of the building or area of land used,” not total lot area. [Note 8] As a result, I find that Section 3.7222 of the Ordinance is not a basis for the grant of the Special Permit.

With respect to Section 3.7223 of the Ordinance, Defendants argue that “less restricted” means subject to fewer constraints, and that a change of use is allowed if the new use is equally or more restricted than the existing use. Defendants state that they meet the requirements of Section 3.7223 because a three-family use is not less restricted than a two-family use. Their rationale is that both uses are either equally restricted under the Ordinance (i.e. neither one is allowed in the Residence A-4 zoning district and both uses require two parking spaces per unit) or a multi-family use is more restricted (i.e. in several residential districts, where two-family use is allowed, multi-family use is not allowed at all, or only allowed with a special permit); and that a two-family use and a three-family use are similar in that they both allow residential housing for more than one family. In contrast, Plaintiff submits Section 3.4 of the Ordinance which contains the table of uses that purportedly shows multi-family use as a less restricted use but in reality shows multi-family use as more restricted. The table of uses shows that in residential zoning districts single-family use is allowed as of right in every district; two-family use is allowed as of right in the Residence B, Residence C and Residence D districts; and multi-family use is permitted subject to floor area ratio guidelines in the Residence C and Residence D districts. As such, in residential districts, it is clear that multi-family use is more restricted than two-family use. [Note 9] Moreover, Plaintiff is inconsistent in his arguments, as he argues in his Opposition to Defendants’ Motion for Summary Judgment that the multi-family use is less restrictive and therefore violates the Ordinance (“The Defendants proposed to change the use of the premises from a two-family to a three-family dwelling is clearly a change from a more restricted use to a less restricted use”), but also argues in his Motion for Summary Judgment that the multi-family use is more restrictive (“A multi-family use [three-family] is also more restrictive than a two-family use”). As a result of the foregoing, I find that the three-family use of Locus is a similar use of not less restricted character than the existing two-family use. [Note 10]

In addition, Defendants argue that the three-family use meets all the requirements for special permits for use under Section 3.5 of the Ordinance. Section 3.512 of the Ordinance states as follows:

“Special permits for use may be granted only after it has been determined that the proposed use will be in compliance with the provisions of Sections 3.531, 3.533, 3.534, 3.535 and 3.538 of the zoning ordinance and that the allowance of the proposed use will not adversely impact upon the health and safety of the surrounding neighborhoods.”

Defendants have submitted affidavit evidence showing that the use of the third floor apartment “minimize[s] any detrimental effect on adjoining premises and the general neighborhood” (Section 3.531) because it is small, is located in a mixed use neighborhood, has on-site parking, has no impact on the facade of the building, and has existed for more than forty years without problems; has designs for “adequate disposal of sewerage, refuse, other waste, drainage and surface water” (Section 3.533) because the unit will be connected to municipal water and sewer and has provided for surface water drainage; has designs for “sufficient parking space and service area” and lighting “has been designed to focus the light only on the parking lot and/or loading areas in question” (Section 3.534) because parking spaces are provided, together with landscaping, lighting and fencing for screening; “existing municipal facilities are of sufficient capacity so as to support the proposed development” (Section 3.535); and meets any special conditions (which the ZBA has not identified)(Section 3.538). Defendants also argue that the three-family use of Locus will not adversely impact upon the health and safety of the surrounding neighborhoods for the same reasons that the use complies with Section 3.531. Plaintiff has not submitted any evidence showing that the three-family use of Locus would not meet these special permit requirements. As a result, I find that the three-family use of Locus complies with the requirements of Section 3.512 of the Ordinance.

Finally, Defendants argue that the three-family use meets the requirements of G. L. c. 40A, § 6. That statute states that:

“Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

Defendants argue that the three-family use meets the requirements of the statute as defined in Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422 , 426 (1997) (where the Appeals Court stated that G. L. 40A, § 6, requires that 1) the extension or change in use must comply with the ordinance or by-law, and 2) the overall use of the property as extended or changed must not be substantially more detrimental to the neighborhood than the preexisting nonconforming use), because the change complies with Section 3.7223 of the Ordinance and the use is not substantially more detrimental than the existing nonconforming use to the neighborhood. Since the Ordinance allows a change in use which is similar but not less restrictive, and the third family unit meets such requirements, the requirements of the statute have been met. Moreover, since the immediate neighborhood (within 300 feet of Locus) contains eleven multi-family properties, the Special Permit allowing the addition of a small one-bedroom unit, which has been in use since 1960, will not be more detrimental to the neighborhood.

Plaintiff argues that the issuance of the Special Permit for the three-family use in a Residence A-4 zoning district which does not allow three-family use even with a special permit is a violation of the Ordinance. [Note 11] As a result, Plaintiff argues that the change in use to a three-family residence requires a use variance, which is not allowed by the Ordinance. But Plaintiff ignores the fact that the Ordinance specifically allows a change in a nonconforming use if it meets the requirements of Section 3.7223 of the Ordinance; and, as discussed, supra, this court has determined that the three-family use of Locus is a similar use of not less restricted character than the existing two-family use and, therefore, meets the requirements of Section 3.7223 of the Ordinance. As a result of the foregoing, I find that the three-family use of Locus meets the requirements of G. L. c. 40A, § 6.

Moreover, since the ZBA is given much discretion in allowing the Special Permit, I cannot find that Decision 2 was unreasonable. See Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 10 (2003) (the trial court gives deference to the board’s decision on local zoning matters). I also note that a local board is given certain discretion in applying the Bylaw. See Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004) (“[a]s the local authority charged with administration of the by-law, the board's interpretation is entitled to some measure of deference”) (citing Building Commr. of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 713 (2000); APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000)).

As a result of the foregoing, I find that the ZBA was not arbitrary, capricious or unreasonable in granting the Special Permit. As such, I ALLOW Defendants’ Motion for Summary Judgment and DENY Plaintiff’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 20, 2008