This case is a G.L. c. 40A, § 17 appeal from a decision of the Weston Zoning Board of Appeals (the ZBA) that revoked a January 3, 2008 building permit for additional finished space in the plaintiffs dwelling at 144 Beaver Road in Weston and a G.L. c. 240, § 14A challenge to the bylaw on which that revocation was based. [Note 1]
The essence of the dispute is simply stated. Town of Weston Zoning Bylaw § V.B.1.a (the Bylaw) allows a single-family home to be constructed by right so long as its Residential Gross Floor Area (RGFA) does not exceed the greater of 3,500 s.f. or 10% of the lot area up to a maximum of 6,000 s.f. If the RGFA exceeds that maximum, site plan approval from the Weston Planning Board is necessary. Bylaw § V.B.2.d. The plaintiffs home was built with a RGFA of just under 6,000 square feet, but contained considerable unfinished space that deliberately was left unfinished so that site plan approval would not be required. An occupancy permit was duly issued for the house in this configuration. Certificate of Occupancy No. 1943 (Sept. 7, 2007). Less than four months later, on December 19, 2007, the plaintiffs applied for a building permit to complete the unfinished areas, which was issued on January 8, 2008. Defendant Eugene Reznik, an abutter living at 158 Beaver Road, timely appealed that issuance to the defendant ZBA. Since site plan approval had neither been sought, obtained, or waived by the planning board, the ZBA voted unanimously to revoke the building permit for the additional space.
The plaintiffs appeal from that decision and have filed a motion for summary reinstatement of the building permit. For the reasons set forth in the courts Memorandum and Order on the Parties Cross-Motions for Judgment on the Pleadings (Converted to Motions for Summary Judgment) and the Plaintiffs Motion for Summary Reinstatement of Building Permit of this date, on the undisputed facts of this case, I find and rule that the Bylaw clearly applies to situations such as this where a home deliberately has been phased with the intent of avoiding the site planning process. I find and rule that the past practices of the former building inspector do not estop either the current inspector or the ZBA from applying and enforcing the Bylaw. I find and rule that the planning boards past practice of waiv[ing] submission requirements and Site Plan Approval under Section V.B.2.d . . . for existing homes . . . where finishing off interior space is proposed and where there is no change to the exterior of the house, Letter from Susan Haber, Town Planner, to Rob Morra, Inspector of Buildings (Aug. 15, 2008), would not preclude that board from requiring site plan approval in the situation presented by this case or in any other case it deemed appropriate so long as its decision was not arbitrary or capricious. Finally, I find and rule that the Bylaw is a reasonable regulation . . . concerning the bulk and height of structures and thus not invalid under G.L. c. 40A, § 3 nor in violation of the uniformity requirements of G.L. c. 40A, § 4. See 81 Spooner Road LLC v. Brookline, 452 Mass. 109 , 117 (2008). Accordingly, the defendants motion for summary judgment is ALLOWED, [Note 2] the ZBAs decision is AFFIRMED, the plaintiffs motion for summary reinstatement of the building permit is DENIED, and the plaintiffs claims are DISMISSED in their entirety, with prejudice.
By the court (Long, J.)
[Note 1] The home is owned by plaintiff Jonathan White, as trustee of 144 Beaver Road Trust. Plaintiff MJN Construction, Inc. was the applicant for its permits, as agent for the trust.
[Note 2] The motions under consideration were initially filed under Mass. R. Civ. P. 12(c) (judgment on the pleadings). All parties, however, submitted materials beyond the scope of that rule (Plaintiffs, for example, filed an appendix that included materials from other cases (Misc. Case Nos. 354262 (AHS) and 376194 (KCL)) and an affidavit of Janet Schmidt (attaching letter from Westons town planner and documents related to building permits for other properties). Defendant Eugene Reznik filed his own affidavit. The town defendants filed an affidavit from the towns current building inspector, Robert Morra, and documents related to his rulings on other building permit applications.). The motions were thus converted to ones for summary judgment and I address them as such. Mass. R. Civ. P. 12(c) (If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.).