Plaintiffs, Daniel D. Silva and Susan P. Silva (the Silvas), filed a Complaint on October 3, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, from the Town of Plymouth Zoning Board of Appealss (ZBA) second denial, on September 20, 2007, of a special permit to waive setback requirements for the construction of a deck on the Silvas property located at 187 Taylor Avenue in Plymouth (Locus). This case follows a Remand Order issued by the Land Court on July 31, 2007, after the Court granted summary judgment in favor of the plaintiffs.
The Silvas appealed the ZBAs first denial of the special permit by filing a Complaint with the Land Court on August 30, 2005, Misc. Case No. 312898. The appeal resulted in a summary judgment hearing held on June 19, 2006. The Court (Trombly, J.) issued a decision on July 31, 2007, denying the defendants motion for summary judgment and granting summary judgment in favor of the plaintiffs. The Court annulled the original ZBA Decision and remanded the case to the ZBA to determine whether or not the proposed deck would be substantially more detrimental to the neighborhood than the existing, non-conforming two-family residence.
The Silvas assert that Defendants failed to address the substantially more detrimental standard mandated by the Court in its Remand Order. Defendants insist that the ZBAs decision to deny Plaintiffs application for a special permit was neither arbitrary nor capricious and that the board specifically found that the deck would be substantially more detrimental to the neighborhood than the pre-existing, nonconforming structure.
On April 1, 2009, Plaintiffs filed a motion for summary judgment. The accompanying memorandum in support of their motion was filed on April 7, 2009. Defendants filed an opposition to Plaintiffs motion for summary judgment and a memorandum in support of their opposition on May 12, 2009. A summary judgment hearing was held on June 2, 2009. Plaintiffs motion for summary judgment was argued and taken under advisement. This is the matter presently before the Court.
After reviewing the record before the Court, I find the following facts are not in dispute:
1. Plaintiffs Daniel D. and Susan P. Silva (the Silvas) own real property, known as and numbered 187 Taylor Avenue in Plymouth. The property is located within the Small Lot Residential Zone as established in the Town of Plymouth Zoning Bylaw.
2. The Silvas lot is 4,500 square feet in area and does not meet the minimum lot size requirement of 20,000 square feet under the current applicable provisions of the Zoning Bylaw, § 205-43. It is undisputed that the property contains a pre-existing, nonconforming, two-family dwelling.
3. Plaintiffs lot fronts on Taylor Avenue and abuts two sandy, unimproved rights of way that are used to access White Horse Beach. The one to the north is a 20-foot right of way consisting of a large sand dune and a narrow pathway, which does not allow for emergency vehicle access. The eastern right of way is similarly obstructed. Frank Lopriore owns Lot 34 to the south of Plaintiffs property and uses their driveway to access Taylor Avenue.
4. In May 2003, a 309 x 83 deck within a 155 x 57 ell was constructed on the Locus. The deck wraps around the western and northern portions of the two-family residence, thus leaving clear the only usable rights of way to the houses between Taylor Avenue and White Horse Beach on the southeastern side.
5. Surrounding Plaintiffs house is a legally constructed fence, which runs between the deck and Taylor Avenue and along the side yard between the deck and the 20 right of way along the north side of Plaintiffs property.
6. Parties do not dispute that the deck increases the nonconforming nature of Plaintiffs two-family residence and thus, requires a special permit.
7. Bylaw, § 205-25(D)(1) requires a 20 front setback and 10 side setback for pre-existing, nonconforming structures constructed prior to the enactment of the front and side yard setback requirements in the R-20SL District.
8. Plaintiffs deck is approximately 153 from the front property line and 63 from the side property line, thus encroaching onto the front and side setbacks.
9. Bylaw, §§ 205-43 and 205, Table 5, Note 7, requires the issuance of a special permit by the ZBA to waive the front and side setback requirements of the Zoning Bylaw.
10. On or about June 20, 2005, Plaintiffs filed an application for a special permit pursuant to Section 205-43 of the Plymouth Zoning Bylaw to waive the front and side setback requirements of the Locus for their recently constructed deck.
11. On August 10, 2005, the ZBA held a public hearing and voted to deny the Silvas application for a special permit.
12. After Plaintiffs appealed the ZBAs denial of the special permit, the Court issued a Decision on July 31, 2007, Misc. Case No. 312898, annulling the original ZBA decision, which it found to be arbitrary and capricious, and remanding the case to the ZBA to determine whether or not the proposed deck would be substantially more detrimental to the neighborhood than the pre-existing, non-conforming structure. In its written opinion, the Court held that the deck did not constitute a nuisance, did not exacerbate overcrowding or fire hazards, and was appropriate to the neighborhood.
13. On September 12, 2007, one month after the Courts Remand Order, the ZBA held its second public hearing on the matter. Three abutters to Plaintiffs property spoke in favor of granting the special permit, but the board again voted to deny Plaintiffs special permit application.
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Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. O'Connor v. Redstone, 452 Mass. 537 , 550 (2008) (citing Mass. R. Civ. P. 56 (c)); McGuinness v. Cotter, 412 Mass. 617 , 619 (1992). The burden is on the moving party, the Plaintiffs here, to demonstrate the lack of a triable issue of material fact. Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 , 251 (2009). The moving party must show that the nonmoving party has no reasonable expectation of proving an essential element of the case. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion. SCA Servs., Inc. v. Transp. Ins. Co., 419 Mass. 528 , 531 (1995).
The Land Court has jurisdiction to hear appeals from decisions of the Zoning
Board of Appeals (ZBA or the Board) pursuant to General Laws chapter 40A, § 17. Any aggrieved party to a decision by the ZBA may appeal to the Land Court within twenty days after the filing of such decision. G.L. c. 40A, § 17. The standard of review for appeals from ZBA decisions is de novo. According to General Laws chapter 40A, § 17, [t]he court shall hear all evidence pertinent to the authority of the board
and shall determine the facts, and, upon the facts so determined, annul such decision if found to exceed the authority of the board
or make such other decree as justice and equity may require. 40A, § 17. The Court is bound to consider the validity but not the wisdom of the boards action. Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). Although 40A, § 17 contemplates a high degree of deference to the ZBA, no deference is necessary where the issues are questions of law on facts found by a judge. Fitchburg Housing Auth. V. Bd. of Zoning Appeals of Fitchburg, 380 Mass. App. Ct. 869 , 871 (1980).
If the Court chooses not to affirm the Boards decision, it may annul or remand the decision. 40A, § 17. The Court may annul the boards decision only when a special permit has been denied solely on a legally untenable ground or when the decision is unreasonable, whimsical, capricious, or arbitrary. DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985) (emphasis in original) (quoting Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557, 559-60 (1980)). A trial court may remand a case to the ZBA whenever the circumstances are such that an appellate court could order such action to be taken. Robert-Haverhill Assocs. v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 718 (1974). On remand, the ZBA is required to review the decision according to the standard provided by the Court. Slater v. Bd. of Appeals of Brookline, 350 Mass. 70 , 73 (1966) (citing Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 (1962)). In rare circumstances, the Court has the authority to grant the special permit on its own. Verc, Inc. v. Putziger, Norfolk Superior Court, Civil Action No. 92-00034, *5, *7 (December 14, 1993) (Stearns, J.).
In Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990), the Court found that the Boards denial of a special permit was arbitrary and capricious because the proposed alteration would not have caused noticeable increases in traffic and because the Board had already approved several other projects that year, which would significantly increase traffic in the area. Similarly, the Mahoney court denounced as legally untenable the Boards denial of a special permit for a greenhouse which would neither increase traffic nor adversely affect the neighborhood. Mahoney, 344 Mass. at 601-02.
The Board Failed to Comply with the Court Order Requesting a 40A, § 6 Finding of Whether Plaintiffs Deck is Substantially More Detrimental to the Neighborhood than the Existing Structure.
This case comes before the Court after a Remand Order, which sought to establish whether the Plaintiffs proposed deck would be substantially more detrimental to the neighborhood than the pre-existing, nonconforming structure. The ZBA was charged with assessing Plaintiffs application for a special permit in light of that standard. The Court held that [s]hould the ZBA determine that the deck is not substantially more detrimental to the neighborhood, they must grant Plaintiffs application for a special permit
. Defendants assert that Plaintiffs application for a special permit was properly denied because it failed to meet the majority of the conditions set out in the Town of Plymouth Zoning Bylaws Sections 205-9(B) and 205-43, Table 5, Note 7. The argument is centered around Defendants belief that the Court owes deference to the ZBA. While this is generally true, deference is not abdication. Colangelo, 407 Mass. at 246. The Boards sole obligation on remand was to determine whether Plaintiffs deck would be substantially more detrimental to the neighborhood than the pre-existing structure. Slater, 350 Mass. at 73. Instead, the Board chose to reiterate its original decision.
The Boards Attempt to Address the Substantially More Detrimental Standard by Reciting the Conditions of its Bylaws was Insufficient.
A zoning board may not deny a special permit simply by stating that the statutory conditions were not met and the special permit is inconsistent with the intent of the bylaw. Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 , 532 (1967). However in this case, the ZBA did recite the language of the bylaw in its Decision. The four reasons for denial that the Board sets out in its Decision are merely reasons why the application does not meet the conditions of the bylaw. The first is a bare recital that the application does not coincide with the intent of the bylaw. The second claims that the deck is not appropriate to the neighborhood because, coupled with the numerous other undersized lots in the area, the enlarged structure creat[es] crowding and the potential for fire hazards and property damage from storm events. See Plymouth Zoning Bylaw, § 205-9(B)(a). The third asserts that the deck is a nuisance, has an adverse effect on the neighborhood, and will also impede the response capabilities of emergency vehicles. See § 205-9(B)(d). Finally, the Board cites a breach of Bylaw, § 205-43, Table 5, Note 7, in that the deck will negatively affect abutting uses and buildings by exacerbating the already over crowded conditions of this neighborhood. These reasons are insufficient because they do not address why the deck would be substantially more detrimental to the neighborhood. The Board has failed to comply with the Order.
The Court Finds that the Deck is Not Substantially More Detrimental to the Neighborhood than the Existing Structure
According to General Laws chapter 40A, § 6, a pre-existing, nonconforming
structure (like Plaintiffs) may only be altered or extended in a manner that increases the nonconforming nature of said structure, if such alteration or extension shall not be substantially more detrimental than the existing, nonconforming use to the neighborhood. 40A, § 6. In evaluating the ZBAs decision to deny the special permit for Plaintiffs pre-existing, nonconforming structure, the Court must find no reason that the proposed project would be substantially more detrimental to the neighborhood. Silva v. Conner, 15 LCR 398 (2007) (Misc. Case No. 312898) (Trombly, J.).
It is undisputed that Plaintiffs deck extends farther into the front and side setback of the property than is allowed by the Zoning Bylaw, § 205-43. However, the deck leaves a wide perimeter of space around the property. It is located 153 from the front property line, which abuts a main road, and 63 from the side property line, which abuts a 20 right of way that is already blocked by a sand dune. Furthermore, the deck only wraps around one corner of the structurethe farthest point from any neighboring residences. No abutting structures are impacted by the deck and none of the neighbors have complained about its presence. Three of Plaintiffs direct neighbors even spoke out to encourage the Board to grant the special permit for the deck. Clearly, the deck does not add to the overcrowding of the area in any material way, nor does it negatively affect the neighborhood or any existing structures.
Although the White Horse Beach area is prone to storms and quick-spreading fires, the deck itself does not exacerbate flooding or fire hazards. First, in case of flooding, water may travel freely under the elevated deck structure. Second, decks of this kind are prevalent in the neighborhood. The record contains no evidence that any of those decks created problems during fires or storm events. There is simply no reason to believe that the deck will add to losses from floods or fires any more so than the two-family residence that has existed on the property for many years. Third, the presence of the deck does not infringe on emergency rescue efforts, in that it blocks no usable rights of way. The 20 pathway on the northern side of the property does abut the deck, but has never been accessible to vehicular travel due to the sand dunes and heavy vegetation lining the path. For all the above reasons, the Court holds that the deck is not substantially more detrimental to the neighborhood than the pre-existing, nonconforming structure.
The Court Finds that the Boards Decision was Arbitrary and Capricious.
The Court finds that the determinations the Board did make in its September 12, 2007 Decision, were arbitrary and capricious. In this Decision, the ZBA emphasizes that the area housing Plaintiffs property, White Horse Beach, is severely overcrowded, with numerous similarly undersized lots set on pilings of gravel and sand. The ZBA Decision then addresses the areas susceptibility to floods and storm events, concluding that Plaintiffs application is not consistent with the intent of the Zoning Bylaw. An application for a special permit has less stringent requirements than an application for a variance. Although the intent of the bylaw is an important consideration in the assessment of a variance application, whether or not a special permit request complies with the purpose of the bylaw is irrelevant. See Moore, 356 Mass. at 328; Lapenas, 352 Mass. at 532. Since Defendants first argument relies on a condition of a variance application instead of a special permit application, it is wholly ineffectual. Furthermore, with this analysis, the Board failed to address whether the deck was substantially more detrimental to the neighborhood than the existing structure.
The over-arching theme in the ZBAs Decision is that Plaintiffs deck exacerbates flooding and fire hazards. It has already been established in the Courts initial Decision on this matter that this contention is not supported by the facts. Since the deck fronts on Taylor Avenue and a paper street to the north where there are no abutting structures, there is no added risk for fire hazards or storm damage. The extra bulk that the deck adds to the house does not constitute evidence that the deck will increase losses from flooding or fires. Plaintiffs have endeavored not to crowd any of the neighboring structures or rights of way by leaving a wide berth around the deck and by building on the side of the house where no abutting structures exist. In their Memorandum, Plaintiffs aver that the elevated deck provides a clear path for flood waters and would not pose any more risk to the neighborhood than would the existing dwelling. Although the White Horse Beach area may be overcrowded and prone to flooding, Defendants have failed to put forth evidence linking the deck to those conditions. From the facts I have found, I conclude no reasonable board could find that the deck would worsen flood and fire hazards.
The ZBA argues that the deck will also impede the response capabilities of emergency vehicles. This is a valid concern for the Board; however, the Decision illustrates that regardless of the deck, the rights of way used to access dwellings in this neighborhood not fronting on Taylor Avenue are hindered by a utility pole and a piling
that obstruct the access
for emergency vehicles. From this assessment, it appears that emergency vehicles have never been able to access these rights of way. At its closest proximity, Plaintiffs deck is 153 away from Taylor Avenue and 63 from the northern property line marked by a fence, which abuts a 20 right of way leading to White Horse Beach. The northern right of way was already impassable due to the presence of a large sand dune, and apparently a utility pole and piling. The addition of the deck made no difference. The only usable right of way to the houses between Taylor Avenue and White Horse Beach lies on the southeasterly side of Plaintiffs property, to which the deck does not extend. It is clear that Defendants concern about emergency vehicle access is unfounded.
In paragraph 2 of its Decision, the ZBA claims that the encroachment of Plaintiffs deck is not appropriate to the neighborhood because it increases the crowded nature of the neighborhood by encroaching on the front and side yard setbacks where no encroachment previously existed. (Emphasis added). I cannot overlook the presence of the picket fence surrounding Plaintiffs property, which is indeed such a previously existing encroachment. The fence extends well beyond the deck to the lot line. If the fence is acceptable to the Board, a deck that neither infringes upon neighboring structures nor interferes with the use of abutting rights of ways should also be acceptable. I do not believe that a wrap-around deck is substantially more detrimental than a house that is already surrounded at the lot line by a fence.
Even without the fence, the enclosed deck is sufficiently separate from all surrounding structures and roads that it cannot be substantially more detrimental to the neighborhood than the pre-existing layout of the residence. The Planning Board agreed in its June 12, 2005 Recommendation, stating that the deck is appropriate to the neighborhood and the slight increase in density
is consistent with surrounding lots. Although the recommendation is non-binding, it is founded in logic and reason. Many of the surrounding houses in this coastal area have similar decks meant for summer enjoyment. No evidence was presented linking any of those decks to the exacerbation of fires or flooding. Thus, the Boards claim that the encroachment exacerbates overcrowding and is inappropriate to the neighborhood is unsupported by the facts.
The ZBAs final point is that the deck is a nuisance, exacerbates overcrowding, and has an adverse effect upon the neighborhood. This Court has already ruled in its initial decision that Plaintiffs deck is not a nuisance. In fact, three abutters to the Silvas property spoke in favor of the grant of the special permit at the September 12, 2007 ZBA hearing. The deck cannot become a nuisance simply by labeling it as such. In addition, Defendants argument for overcrowding does not improve through repetition. There are simply no facts to prove that the deck negatively affect[s] abutting uses and buildings by exacerbating the already over crowded conditions of this neighborhood. Plaintiffs constructed their deck 153 from Taylor Avenue, 63 from the nearest right of way, and on the opposite side of the house from any neighboring structures. There is no evidence to suggest that the location of the deck adversely affects any abutting structures any more so than the existing dwelling. I must therefore conclude that the Boards Decision was arbitrary and capricious.
With its second decision, the ZBA has added no new evidence to bolster its denial of Plaintiffs special permit. It has, instead, reiterated the conditions of its bylaws without making a connection between the general wrongs and the deck itself. Since this is the second time the Board has reviewed Plaintiffs application, it seems relatively certain that Defendants have no reasonable expectation of proving an essential element of the case. Kourouvacilis, 410 Mass. at 716. I find a denial for reasons unsubstantiated by factual evidence to be arbitrary and capricious. See Lapenas, 352 Mass. at 532; MacGibbon v. Bd. of Appeals of Duxbury, 369 Mass. 512 (1976). The Court finds that the deck is not substantially more detrimental to the neighborhood than the pre-existing structure.
Conclusion
For the foregoing reasons, this Court concludes that the ZBAs second denial of Plaintiffs special permit application on September 20, 2007, was arbitrary and capricious and in excess of the Boards authority. The Plaintiffs Motion for summary judgment is hereby ALLOWED. Accordingly, it is hereby
ORDERED that the September 20, 2007 decision of the ZBA is ANNULLED. The Court remands this matter to Plymouth Zoning Board of Appeals with instructions to grant the Plaintiffs application for a special permit waiving front and side setback requirements pursuant to Bylaw, § 205-43, without conditions.
The Board may proceed without giving further public notice; but the action must be taken at a regular open meeting. It is further
ORDERED that the Board must issue and record this supplemental decision with the Town Clerk no later than August 28, 2009, and file same with the Court without delay thereafter. It is further
ORDERED that this Court will retain jurisdiction over this case including, but not limited to, any appeals which may be taken (or other actions brought) from or relating to the commissions further proceedings pursuant to this Order.
So Ordered.
Charles W. Trombly, Jr.
Justice
Dated: July 2, 2009
DANIEL D. SILVA and SUSAN P. SILVA v. PETER CONNER, ROBERT RICHARD, DAVID PECK, WILLIAM KEOHAN, A. WENDY LONGO, MICHAEL MAIN, and MARC BETTI, in their capacity as Members of the TOWN OF PLYMOUTH BOARD OF APPEALS, and the TOWN OF PLYMOUTH