RICHARD J. GLIDDEN, as Trustee of the 38 MONOMOY ROAD REALTY TRUST, JEFFREY A. McDERMOT, and ASHLEY B. McDERMOT v. KERIM KOSEATAC, C. RICHARD LOFTIN, EDWARD C. MURPHY, NANCY J. SEVRENS, and DALE W. WAINE, as members of the NANTUCKET ZONING BOARD OF APPEALS, and BRIAN CONROY, as Trustee of the 42 MONOMOY REALTY TRUST

Plaintiffs, Richard J. Glidden, as Trustee of the 38 Monomoy Road Realty Trust, Jeffrey A. McDermot, and Ashley B. McDermot, commenced this case on December 27, 2005, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the defendant, the Nantucket Zoning Board of Appeals, upholding a decision of the Nantucket Zoning Enforcement Officer denying the plaintiffs’ request for zoning enforcement regarding a parcel of real property, known as and numbered 42 Monomoy Road in Nantucket (the “Property”), owned of record by defendant, Brian Conroy, as Trustee of the 42 Monomoy Realty Trust (“Defendant Conroy”). Plaintiffs seek also declaratory judgment, pursuant to G.L. c. 231A, § 1, as to alleged violations of the Nantucket Zoning Bylaws and the nature of the activities that may and may not be permitted on the Property. [Note 1]

Defendant Conroy filed an Answer and Counterclaim on January 20, 2006. On February 13, 2006, plaintiffs filed a Special Motion to Dismiss the Counterclaim. Defendant Conroy opposed the motion on April 5, 2006. The Court (Trombly, J.) issued an Order on December 29, 2006, allowing the plaintiffs’ Motion to Dismiss the Counterclaim.

On October 8, 2008, plaintiffs filed a Motion for Partial Summary Judgment. Defendant Zoning Board opposed the motion on November 12, 2008. Defendant Conroy opposed the motion on December 2, 2008.

On December 12, 2008, plaintiffs filed a Motion to Strike the Defendant Zoning Board’s use of Statements by Richard Loftin, Linda Williams, and the Nantucket Zoning Enforcement Officer. Defendant Zoning Board opposed the motion on January 7, 2009. On January 20, 2009, plaintiffs filed Motions to Strike the Affidavits of Thomas A. Nelson, Mark Cutone, and C. Richard Loftin, and Linda Williams and the portions of the Affidavit of Brian Conroy that referenced these affidavits. Defendant Conroy opposed the plaintiffs’ motion to strike affidavits on January 27, 2009.

The plaintiffs’ Motion for Partial Summary Judgment and Motions to Strike were argued on January 29, 2009, and are the matters presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Defendant, Brian Conroy, as Trustee of the 42 Monomoy Realty Trust, is the owner of a parcel of land, known as and numbered 42 Monomoy Road in Nantucket. [Note 2]

2. Plaintiffs, Richard J. Glidden, as Trustee of 38 Monomoy Road Realty Trust, Jeffrey A. McDermot, and Ashley B. McDermot, are the owners of a parcel of land, known as and numbered 38 Monomoy Road in Nantucket. [Note 3]

3. The plaintiffs’ property abuts the Property.

4. The Property is located in the LUG-1 Zoning District.

5. Prior to March 22, 2005, the Property contained a single-family dwelling structure and a secondary structure (the “Prior Secondary Structure”).

6. Prior to August 18, 1995, the Property was a preexisting, nonconforming lot. The Property was nonconforming as to lot area, front yard setback, rear yard setback, and maximum ground cover ratio.

7. Defendant Conroy’s predecessor in title applied for a variance of the intensity requirement of the Nantucket Zoning Bylaws in order to convey a portion of the Property along the northern border, in exchange for a portion of the adjacent property. On August 18, 1995, the Nantucket Zoning Board of Appeals issued a decision granting the variance, effecting the conveyance (the “1995 Variance”). The 1995 Variance allowed the lot to be increased along its northern border, thereby, bringing one sideline setback of the Property into conformity with the Zoning Bylaws.

8. As a result, the northern border of the lot was altered. A Decision Sketch is attached, which delineates the new lot. Lot 6 became part of the Property, while lot 4 became part of the adjoining property.

9. In 2005, Defendant Conroy applied for a special permit to remove and reconstruct the Prior Secondary Structure, pursuant to § 139-33A of the Zoning Bylaws.

10. The Prior Secondary Structure dwelling had a ground cover of six hundred and twenty five (625) square feet.

11. Defendant Conroy proposed to construct the subsequent secondary structure in conformity with the Zoning Bylaws and with a ground cover of six hundred and twenty (620) square feet (the “Subsequent Secondary Structure”). On February 17, 2005, the Zoning Board issued a decision granting the Special Permit (the “Special Permit”).

12. The Prior Secondary Structure was a garage.

13. Defendants contend that the Prior Secondary Structure was also used as a secondary dwelling.

14. Defendants proposed that the Subsequent Secondary Structure would serve as a pool house and secondary dwelling.

15. Plaintiffs allege that they did not learn of the issuance of the Special Permit until August 2005, when they witnessed the start of construction on the Property.

16. By letter dated August 19, 2005, plaintiffs made a request of the Nantucket Zoning Enforcement Officer for enforcement of the Zoning Bylaws regarding the Property. By letter dated August 31, 2005, the Zoning Officer denied the plaintiffs’ request.

17. Plaintiffs appealed to the Zoning Board. On December 12, 2005, the Zoning Board issued a decision upholding the decision of the Zoning Officer. This appeal followed.

18. On September 24, 2004, Defendant Conroy filed an application for a Certificate of Appropriateness with the Historic District Commission of Nantucket, seeking approval to demolish the Prior Secondary Structure. On December 14, 2004, the application was approved by the commission.

19. On or about October 19, 2004, Defendant Conroy contracted with T.A. Nelson Construction Co., Inc. to renovate the main house on the Property and construct an addition to that structure as well as to demolish the Prior Secondary Structure and construct the Subsequent Secondary Structure.

20. The agreement identifies two distinct phases of the project: the work concerning the main house and that concerning the secondary structure.

21. An invoice dated January 7, 2005, from T.A. Nelson to Defendant Conroy itemizes certain costs of the project. The page of the January invoice labeled “T.A. Nelson Construction Application for Payment” identifies the costs as associated with the “Main House.”

22. An invoice dated August 25, 2005, from T.A. Nelson to Defendant Conroy itemizes certain costs of the project. The page of the August invoice labeled “T.A. Nelson Construction Application for Payment” identifies the costs as associated with the “Guest House.”

23. The fee schedule of the Building Department of the Town of Nantucket lists a fee of $100 for a building permit.

24. The Building Permit issued to Defendant Conroy for the demolition of the Prior Secondary Structure charged $400.

25. On page 2 of the Building Permit Application, the Building Department, in the box market “Fee Calculations,” notes as follows:

$100.00
X 4 No Permit
$400.00

***

I. ORDER ALLOWING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS TO STRIKE

As an initial matter, plaintiffs move to strike the Defendant Zoning Board’s Use of Statements of Richard Loftin, Linda Williams, and the Nantucket Zoning Enforcement Officer. In the papers, plaintiffs reference Nantucket Zoning Board of Appeals decision number 074-0, which references statements made by Richard Loftin, Linda Williams, and the Zoning Officer. Regardless of whether the decision itself falls under an exception to the hearsay rule, the statements are themselves hearsay as well as irrelevant to the matter before this Court. However, plaintiffs request that the Court strike all of the defendants’ references to this decision. While the statements are not admitted for the truth of the matter asserted, plaintiffs are not barred from raising these arguments without this evidentiary support. Accordingly it is hereby

ORDERED that the statements of Richard Loftin, Linda Williams, and the Nantucket Zoning Enforcement Officer referenced by the Nantucket Zoning Board of Appeals decision number 074-0 are not admitted for the truth of the matter asserted, but the decision is itself admitted for other purposes. The Court notes the plaintiffs’ contention with regard to the statements of fact and arguments made by defendants in reference to these statements.

Plaintiffs move also to strike the Defendant Zoning Board’s Use of Statements of the Nantucket Zoning Enforcement Officer in his August 31, 2005 decision to deny the plaintiffs’ request for zoning enforcement. This decision is not only relevant but admissible for the reason given by the Zoning Officer for the denial in the procedural history of this case. Accordingly, it is hereby

ORDERED that the August 31, 2005 letter is admitted.

Plaintiffs move to strike paragraphs 4 and 5 of the Affidavit of Thomas A. Nelson. These paragraphs contain statements regarding when the Prior Secondary Structure was removed. However, these statements are in direct contradiction of Mr. Nelson’s previously sworn deposition testimony. “A party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition.” O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905 , 906 (1993). Accordingly, it is hereby ORDERED that paragraphs 4 and 5 of the Affidavit of Thomas A. Nelson is stricken.

Plaintiffs move to strike paragraphs 8, 10, and 11 of the Affidavit of Mark Cutone. These paragraphs contain an analysis of the impact of the Property on the view from the plaintiffs’ property. However, the affidavit establishes neither Mr. Cutone’s competency to conduct such an analysis nor his personal knowledge of the facts stated. Accordingly, it is hereby

ORDERED that paragraphs 10 and 11 of the Affidavit of Mark Cutone are stricken.

Plaintiffs move to strike paragraphs 6 and 10 of the Affidavit of Richard Loftin and paragraphs 5 and 7 of the Affidavit of Linda Williams. These paragraphs contain statements alleging the intention of the drafters of § 139-33A. This evidence is irrelevant. Accordingly, it is hereby

ORDERED that the paragraphs 6 and 10 of the Affidavit of Richard Loftin and paragraphs 5 and 7 of the Affidavit of Linda Williams are stricken.

Plaintiffs move also to strike references to those portions of the affidavits in the defendants’ papers. While the portions of the affidavits may not be admitted, defendants are not barred from raising these arguments without this evidentiary support. Accordingly, it is hereby

ORDERED that the plaintiffs’ Motion to Strike the Defendant Conroy’s Use of Statements in the Affidavits is DENIED.

So Ordered.

II. SUMMARY JUDGMENT

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 4] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.

1. Exhaustion of Remedies

Initially, defendants argue that plaintiffs’ case is barred because plaintiffs failed to timely appeal the issuance of the February 17, 2005 special permit to the Zoning Board of Appeals. The legislature provides two independent procedures for challenging municipal action or inaction relating to its zoning ordinance or bylaw. General Laws chapter 40A, § 8 provides the procedure for appeals by aggrieved parties to the municipal authority for municipal action in violation of its own ordinance or bylaw. Under G.L. c. 40A, § 15, “[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.” In the case of a building permit, a party has thirty days from the date of the issuance to appeal to the municipal board. Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 , 427 (2002). At the same time, G.L. c. 40A, § 7 provides that if a municipal officer “charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer…declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act….” The courts have interpreted § 7 to provide a procedure for appeal, where a fair opportunity to appeal was not available under §§ 8 and 15. Fitch v. Bd. of Appeals of Concord, 55 Mass. App. Ct. 748 , 751 (2002); see Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). Such unavailability occurs where there is no municipal action from which to appeal or where a party did not have notice of the municipal action during the thirty-day appeal period. However, § 7 may not be used to bypass the direct appeal process of § 8 “when that party is on notice that an allegedly unlawful permit has been issued.” Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008).

Notice “that an application for a building permit had been filed with respect to adjacent property…[is] sufficient to place on the [abutter] a duty of inquiry.” Gallivan, 71 Mass. App. Ct. at 859. If a responsive inquiry would have uncovered the alleged zoning violation, such notice “[gives] the [abutter] a reasonable opportunity to appeal….” Id. The sufficiency of notice is an issue that the Court determines on a case-by-case basis. Id. at 858.

In the instant case, the fact of whether plaintiffs had knowledge of the issuance of the special permit during the thirty-day appeal period is in dispute. Plaintiffs allege that they never received any notice of the special permit application from the Zoning Board. Defendants allege that the Zoning Board sent notices to plaintiffs, in accordance with G.L. chapter 40A, § 11. Nevertheless, because this fact is not material to a determination on the merits, I do not make a finding on this issue.

2. Standing

Defendants raise the issue of whether plaintiffs have standing to bring this action. General Laws chapter 40A, § 11 provides that an “aggrieved person,” is presumed to have standing to seek judicial review of a discretionary board’s decision. Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1958). Under G.L. c. 40A, § 17 an “aggrieved person” is defined as a property owner deemed by the town to be affected by a petition concerning the use of real property. Id.; Waltham Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210 , 214 (1975). This presumption of standing is rebuttable, however, and “recedes when a defendant challenges a plaintiffs’ status as an aggrieved party and offers evidence to support his or her challenge.” Watros v. Greater Lynn Mental Health & Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995). Once rebutted, plaintiff must put forth credible evidence to substantiate claims of injury to his or her legal rights.

In the instant case, plaintiffs are direct abutters of the Property and, therefore, benefit from the presumption of standing. The defendants’ burden in attempting to rebut this presumption is to show that there is no particularized injury to the plaintiffs’ property as a result of the zoning relief. However, defendants fall short of this task. Defendants presume that plaintiffs will claim injury to their view from their property. Defendants are correct in the position that “[g]enerally, concerns about the visual impact of a structure do not suffice to confer standing….” Martin v. The Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001); see Harvard Square Defense Fund, Inc., 27 Mass. App. Ct. 491 , 493 (1989). However, where a city or town’s zoning bylaws, themselves, provide that the municipal board should take into consideration the visual consequences of any proposed structure, this “defined protected interest may impart standing to a person whose impaired interest falls within that definition.” Martin, 434 Mass. at 146; see Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688-89 (1994) (citing Circle Lounge & Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427 , 431 (1949)).

Defendants do not support their challenge with evidence showing that plaintiffs cannot derive such a claim from a protected interest in the Nantucket Zoning Bylaws or with evidence that the view from the plaintiffs’ property is not, in fact, impacted. Plaintiffs have raised the defense that an abutter has a legal interest “in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulation allows….” Tsagronis v. Bd. of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58-59 (1992), S.C., 415 Mass. 329 , 330 (1993); see Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003); McGee v. Bd. of Appeal of Boston, 62 Mass. App. Ct. 930 , 930-31 (2004). Plaintiff also suggests that its property has suffered diminution of value. The Court is not persuaded that plaintiffs’ property does not suffer some injury, and until rebutted, plaintiffs have no obligation to demonstrate such injury. Accordingly, I rule that defendants have not adequately rebutted the plaintiff’s presumption of standing.

3. Effect of the 1995 Variance

General Laws chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the Trial Court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, the court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

In the instant case, by obtaining the 1995 Variance and effecting the “swap” of portions of the lots, defendant Conroy altered the lot lines of the Property. However, this alteration was a minor change to the northern boundary of the Property. Rather than intensifying the nonconforming elements of the lot, the variance allowed the defendants to bring the sideline setback from the northern border into conformity with the Zoning Bylaw. Minor changes in lot lines that do not create or increase nonconforming elements of a lot do not cause a preexisting, nonconforming lot to lose its grandfathered status. It is also worth noting that the Zoning Board stated that in issuing this variance, the Property would not become more nonconforming in any respect and the remaining nonconformities would be unchanged. (Pl.s’ App. Supp. Partial Summ. J. Ex. B.)

Plaintiffs also appear to argue that a use first established by a variance cannot be a nonconforming use, pursuant to G.L. c. 40A, § 6. General Laws chapter 40A, § 6 protects a use which predates the first publication of notice of the public hearing on the enactment of an ordinance or bylaw from application of that ordinance or bylaw. However, this protection does not extend “to any change or substantial extension of such use….” 40A, § 6. In determining whether an extension or alteration is a change or substantial extension of the nonconforming use, the bylaw will be applied where the resulting use differs from the nonconforming use in: (1) Nature and Purpose; (2) Quality, Character, or Degree; or (3) Effect on the Neighborhood. Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973); see also Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 212 (1982); Bldg. Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890 , 891 (1980). Nonetheless, a pre-existing, nonconforming use may be extended or altered upon “a finding by the permit granting authority…that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” G.L. c. 40A, § 6.

In the instant case, the use of the preexisting, nonconforming lot is as the location of a single-family dwelling and a secondary structure. The 1995 Variance was an alteration to the lot lines of the Property; however, the use of the lot as the location of a single-family dwelling with a secondary structure did not change. The nonconforming use of the Property as a single-family lot continued, altered in boundary, but unchanged in nature, quality, and effect. Moreover, in granting the variance the Zoning Board stated that “the [zoning] relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the By-law ….” Accordingly, I rule that the Property did not lose its nonconforming status as a result of the 1995 Variance.

4. Construction of § 139-33A(9)

Plaintiffs argue that § 139-33A(9) of the Nantucket Zoning Bylaws does not authorize the Zoning Board to issue a special permit for the removal and new construction of a preexisting, nonconforming structure on a lot that exceeds the ground cover requirement, but allows only the reconstruction of such a structure. Section 139-33A(9) provides that:

If the preexisting nonconforming structure(s) upon any lot exceed the permitted ground cover ratio, the special permit granting authority may grant a special permit to authorize the removal and reconstruction of any or all of the preexisting structure(s), or any portion(s) thereof, with ground cover in excess of the permitted ground cover ratio, provided that:

(a) Such special permit shall have been issued prior to the removal of the preexisting nonconforming structure(s), or any portion(s) thereof;

(b) Complete or partial removal and reconstruction of a structure shall not result in an increase in the ground cover of that structure nor of any other structure; and two or more structure that are reconstructed shall remain separate from each other;

(c) All reconstructed structure(s), or portion(s) thereof, shall conform to all applicable front, rear and side yard setback requirements; unless relief there from is granted under separate provisions of this chapter; and

(d) The special permit granting authority shall have made the finding that the result of the proposed removal and reconstruction shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure and/or use.

The legislative history of this provision reveals that the original language authorized “the construction of a new structure(s) after removal of any or all of the preexisting structure(s).” (Pl.s’ App. Supp. Partial Summ. J., Tab A). Plaintiffs argue that this amendment of the proposed term “construction” to the enacted term “reconstruction,” demonstrates an intent by the drafters to limit such permitted use to the removal and rebuilding of the same structure at the same location. However, a complete reading of the current provision suggests an intent that the structure may be relocated. Subsection (c) requires that the subsequent structure be located so as to conform to all applicable front, rear, and side setback requirements, regardless of whether the prior structure was nonconforming in those regards. The plaintiffs’ interpretation of this provision would prohibit all reconstruction of a nonconforming structure which was nonconforming as to any of these requirements, because the subsequent structure could necessarily be built only on the same footprint as the prior structure. Therefore, in their view, it could never comply with subsection (c).

In addition, the plaintiffs’ interpretation of this provision would render the last sentence of subsection (b) meaningless, because if no structure can be relocated, two or more structures could never be reconstructed into a single structure. Had either of these limitations been the intention of the drafters, I find it hard to believe that they would not have provided for them expressly.

The Prior Secondary Structure was a garage, while the Subsequent Secondary Structure is a pool house and secondary dwelling. Plaintiffs argue that § 139-33A(9) authorizes only a special permit for the reconstruction of the prior structure if the reconstructed structure is to be put to the same use as the prior structure, and therefore, the Zoning Board exceeded its authority. However, there is nothing other than the term “reconstruction” in the provision to suggest that the subsequent structure must be used in the same manner. The purpose of this provision is to ensure that structures on a lot, which is nonconforming as to ground cover ratio, may be rebuilt in conformity with the zoning requirements without further exceeding the maximum ground cover limitation. Here, the Subsequent Secondary Structure actually encompasses less square footage than the Prior Secondary Structure. Its use, whether as a garage, pool house, or secondary dwelling, has no impact on the ground cover ratio, and it has been determined that its use is not detrimental to the neighborhood.

Therefore, § 139-33A(9) of the Zoning Bylaw is not reasonably interpreted to limit the subsequent structure to the same location and same use as the prior structure. Even if reasonable minds could differ, the Zoning Board’s interpretation of the by-laws was reasonable and, therefore, must be given deference. The Zoning Board interpreted § 139-33A(9) to authorize a new location and new use as long as the subsequent structure was brought into conformity with the Zoning Bylaws and did not encompass a greater ground cover. Accordingly, I rule that the Zoning Board acted within its authority pursuant to § 139-33A(9) of the Nantucket Zoning Bylaws.

Plaintiffs allege also that the Prior Secondary Structure was removed before the Zoning Board’s decision to issue the special permit for removal and reconstruction. However, defendants deny this allegation, and plaintiffs have not produced sufficient evidence to raise a genuine issue of fact. Plaintiffs argue that the testimony of Thomas A. Nelson, president of T.A. Nelson, is evidence that the Prior Secondary Structure was demolished prior to the issuance of the Special Permit for the removal and reconstruction of the structure. However, it is apparent from the transcript that Mr. Nelson’s memory of the timing of the demolition is less than perfect. When asked what period of time all the construction spanned he qualifies his answer with, “I am really guessing here.” (Nelson Dep. 23:7-8, Nov. 30, 2007, attached to Woll, Jr. Aff. Supp. Summ. J. Ex. 3.) In response to questioning on the date the demolition of the Prior Secondary Structure took place, he estimates “probably December or January, maybe January or so of ’05.” (Id. at 24:1-2) (emphasis added). Mr. Nelson is not confident even in estimating, generally, the month that the demolition of the structure began. This testimony is inconclusive and serves only to demonstrate that Mr. Nelson does not remember the date on which his company commenced demolition of the Prior Secondary Structure.

Moreover, Linda Williams, the Administrator of the Zoning Board of Appeals of the Town of Nantucket, testifies in an affidavit that she inspected the Property in her official capacity at the end of January 2005 and “personally observed that the garage/secondary dwelling (Prior Secondary Structure) was still fully intact,” at that time. (Williams Aff. 3.) In addition, Mark Cutone, a registered architect and employee of BPC Architecture, the firm commissioned by Defendant Conroy to design the Subsequent Secondary Structure, testifies that “[t]he existing garage/studio (Prior Secondary Structure) on the Premises (Property) was only demolished after the appropriate permits were issued.” (Cutone Aff. 3.) Therefore there is no direct, conflicting evidence on the timing of the demolition of the Prior Secondary Structure.

Plaintiffs argue also that the April 20, 2006 Certificate of Appropriateness and the January 7, 2005 invoice from T.A. Nelson Construction Co, Inc. show that demolition was ongoing at the Property prior to the issuance of the Special Permit and the reasonable inference drawn from this evidence is that the Prior Secondary Structure was demolished before such issuance. The certificate speaks for itself and can only reasonably be read to show that Defendant Conroy sought and was granted permission by the Historic District Commission to demolish the Prior Secondary Structure and that this permission was given in December 2004. (See Woll, Jr. Aff. Supp. Summ. J. Ex. 1.) Any determination on when the secondary structure was actually demolished based on this document would be mere speculation.

The January 7, 2005 invoice is similarly inconclusive. The invoice states explicitly that the work being done was for the work on the main house, not the secondary structure. (Id. at Ex. 2.) This account is supported by Mr. Nelson’s testimony that work was ongoing on the main house during that time period. (Nelson Dep. 23:5-20, attached to Woll, Jr. Aff. Supp. Summ. J. Ex. 3.) There is no direct evidence that work was being done on the Prior Secondary Structure before the issuance of the Special Permit. In fact, the August 25, 2005 invoice bills Defendant Conroy for the work completed for the secondary structure. (Nelson Dep. Ex. 9, attached to Woll, Jr. Aff. Ex. F.)

Lastly, plaintiffs argue that the fee schedule of the Building Department of the Town of Nantucket lists a fee of $100 for a building permit, but that Defendant Conroy was charged $400 for his Building Permit and the reasonable inference drawn from this evidence is that the Prior Secondary Structure was demolished before the issuance of the Special Permit. This evidence, of course, leads only to the inference, if any, that the Prior Secondary Structure was demolished prior to the issuance of the Building Permit, not the Special Permit.

Plaintiffs would have these pieces of evidence, taken together, lead the Court to a determination that there exists a genuine issue of fact concerning the timing of the Prior Secondary Structure’s demolition. However, the whole of this evidence is not more than the sum of its parts. Plaintiffs attempt to create an issue of fact to remove this case from the realm of summary judgment. Despite their efforts, the invoice and the Certificate of Appropriateness, and the Building Permit and Building Permit Application speak for themselves. The Nelson Deposition is not controverted testimony requiring a fact finder to assess credibility because it demonstrates only that Mr. Nelson does not remember. This evidence is, simply put, insufficient; even though viewed in the light most favorable to plaintiffs, no reasonable inference may be drawn to support their contention, and therefore, I rule that no genuine issue of fact exists.

Lastly, the plaintiffs’ Motion for Partial Summary Judgment seeks a determination of Courts I, II, and III of their Amended Complaint. Count IV of the complaint seeks a determination that a variance, rather than a special permit is required for the reallocation of excessive groundcover of a preexisting, nonconforming structure to another footprint and location. However, as previously determined, § 139-33A(9) authorizes the Zoning Board to issue a special permit for the removal and reconstruction of a structure in a new location on a lot that is nonconforming as to the ground cover ratio limitation. The Zoning Board properly exercised this authority. Therefore, Count IV of the Amended Complaint has been determined and no issues remain outstanding in this action.

These issues having been determined in favor of the non-moving party, summary judgment is granted for defendants, pursuant to Mass. R. Civ. P. 56(c).

CONCLUSION

For the foregoing reasons, this Court concludes that the decision of the Nantucket Zoning Board of Appeals upholding the decision of the Nantucket Zoning Enforcement Officer to deny the plaintiffs’ request for zoning enforcement regarding the Property was proper. The 1995 Variance effected only a minor change in the northern boundary of the Property and did not materially alter the use of the Property as the location of a single-family dwelling and a secondary structure. Therefore, the Property retained its preexisting, nonconforming status and protection, pursuant to G.L. c. 40A, § 6. Section 193-33A(9) of the Nantucket Zoning Bylaws is reasonably interpreted to allow the removal and construction of a preexisting, nonconforming structure on a new location within the lot. Accordingly, the plaintiffs’ Motion for Partial Summary Judgment is hereby DENIED. Summary judgment is GRANTED in favor of defendants and the decision of the Nantucket Zoning Board of Appeals is hereby AFFIRMED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: July 17, 2009