J FIELD PROPERTIES LLC, JASON FIELD, and JODI FIELD vs. EDWARD RAMSDELL, ROBERT CIAMPITTI, DUNCAN LaBAY, LELA WRIGHT, CHARLES CIOVACCO, WILLIAM LADAS, and JAMES E. PENNINGTON, III as they are members of the Newburyport Zoning Board of Appeals, and not individually, and CITY OF NEWBURYPORT

Plaintiffs J Field Properties LLC (the “LLC”), and Jason and Jodi Field (the “Fields”) filed their unverified Complaint on December 18, 2008, appealing, pursuant to G. L. c. 40A, §17, a decision of Defendant Newburyport Zoning Board of Appeals (the “ZBA”) which denied special permits for the conversion and alteration of the premises at 42 Washington Street, Newburyport, Massachusetts (“Locus”). A case management conference was held on February 11, 2009. On February 3, 2009, counsel for the ZBA filed a Motion to Allow Withdrawal of Appearance, which this court denied. On the same day, Plaintiffs filed their Motion for Judgment on the Pleadings, together with supporting memorandum. The ZBA did not file a response. By letter signed by both parties, filed with this court on May 13, 2009, the ZBA stated that it “will not be filing an opposition to Plaintiffs’ Motion for Judgment on the Pleadings and do[es] not intend to participate in any hearing on the Plaintiffs’ Motion.” At the request of the parties, no hearing was held on the motion, and the matter was taken under advisement at that time.

For reasons explained later, infra note 1, a telephone conference call was held on December 11, 2009, at which time this court notified the parties of its intent to convert Plaintiffs’ Motion for Judgment on the Pleadings into a Motion for Summary Judgment. Consistent with Mass. R. Civ. P. 12(c), at such time this court provided the parties an opportunity to “present all material made pertinent to such a motion by Rule 56.” Defendants represented that they had no interest in amending the record and filed a letter memorializing their position on December 17, 2009. Plaintiffs filed the Affidavit of Jason Field on December 18, 2009.

The effect of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is “to challenge the legal sufficiency of the complaint.” Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id. [Note 1]

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. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

1. Locus contains a two-family residence built in approximately 1804, which is currently unoccupied and dilapidated. Locus is located in an R-3 Zoning District under the City of Newburyport Zoning Ordinance (the “Ordinance”). The immediate neighborhood of Locus comprises multi-family, two-family, and single-family residences.

2. The LLC purchased Locus in May 2008. Plaintiffs propose to convert the two-family residence into a three-family residence and to expand the structure by an upward extension. The proposed three-family residence would have the same footprint and the same number of bedrooms as the existing two-family residence.

3. Plaintiffs applied for building permits for both the conversion and the expansion, which were both denied on August 7, 2008.

4. Under Section V-D of the Ordinance (the “Table of use regulations”), in an R-3 Zoning District, a three-family residence is allowed by special permit.

5. On August 14, 2008, Plaintiffs filed an application under Section V-D of the Ordinance for a special permit to convert the two-family residence to a three-family residence (the “Conversion Special Permit”).

6. Locus is a corner lot abutting both Strong Street and Washington Street, with a Washington Street address. The existing structure on Locus violates the ten foot front/side yard setback for Strong Street. On August 14, 2008, Plaintiffs filed an application under Section IX-B of the Ordinance for a special permit for the expansion of a pre-existing nonconforming structure (the “Expansion Special Permit”). [Note 2]

The proposed expansion will raise portions of the existing roof line in order to add additional third floor headroom, but such expansion does not extend the footprint of the structure or create any new dimensional non-conformity. [Note 3] Despite staying within the existing footprint, the proposed expansion increases the square footage of the structure from 2,910 to 4,983 square feet. [Note 4] Locus provides for six on-site tandem parking spaces, more than the 5½ required off-street parking spaces for a three-family structure under Section VII-B of the Ordinance. [Note 5]

7. The Newburyport Historic Commission approved the demolition of the existing house, with conditions. The Newburyport Police Department reported that the special permits “will not create traffic congestion concerns. It will not impair pedestrian safety. It will not cause any parking concerns.” The Newburyport Police Department concluded that the “plan does not create any public safety concerns.” The Newburyport Fire Department stated that it “does not object in any way to [the Conversion Special Permit].” The Newburyport Department of Public Services stated that, based on preliminary information, “the existing water and sewer infrastructure should have the remaining available capacity to service the proposed redevelopment.”

8. The ZBA held public hearings on October 14, 2008, and November 25, 2008. At the November 25 hearing, the ZBA voted 3-2 in favor of the Conversion Special Permit (“ZBA Decision 1”) and the Expansion Special Permit (“ZBA Decision 2”) (together, the “ZBA Decisions”). [Note 6] The ZBA made the following findings (under Section X-H(7) of the Ordinance) [Note 7] with respect to the Conversion Special Permit:

1. That the use IS listed in the table of uses or elsewhere in the ordinance as requiring a special permit in the district for which the application is made or IS similar in character to permitted uses in a particular district but not specifically mentioned.

2. The requested use IS NOT essential and/or desirable to the public convenience or welfare.

3. The requested use WILL create undue traffic congestion, or unduly impair pedestrian safety.

4. The requested use WILL NOT overload any public water, drainage or sewer system or any other municipal system to such an extent that the requested use or any developed use in the immediate area or in any other area of the city will be unduly subjected to the hazards affecting health, safety or the general welfare.

5. Any special regulations for the use, set forth in the special permit table ARE fulfilled.

6. The requested use WILL impair the integrity or character of the district or adjoining districts, nor be detrimental to the health or welfare.

7. The requested use WILL, by its addition to a neighborhood, cause an excess of that particular use that could be detrimental to the character of said neighborhood.

8. The proposed use IS NOT in harmony with the purpose and intent of this ordinance.

9. The proposed use SHALL NOT be conducted in a manner so as to emit dangerous, noxious, injurious or otherwise objectionable fire, explosion, radioactive or other hazard, noise, or vibration, smoke, dust, odor, or other form of environmental pollution.

The ZBA made the following findings (under Section IX-B(2) of the Ordinance) with respect to the Expansion Special Permit:

1. The request for [the Expansion Special Permit] was MORE detrimental then [sic] the existing.

2. Facts support the finding that the proposed extension and/or addition IS substantially more detrimental than the existing non-conforming structure.

9. The Ordinance and G. L. c. 40A, § 9, requires a supermajority vote to approve special permits; as a result, both applications for special permit were denied. Both decisions were filed with the Newburyport City Clerk on December 1, 2008.

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In their Motion for Judgment on the Pleadings, which, after notice to the parties, this court converted into a motion for summary judgment, Plaintiffs argue the ZBA Decisions are arbitrary, capricious, and unreasonable. The ZBA did not file an Answer to the Complaint or oppositions to Plaintiffs’ Motion for Judgment on the Pleadings or Plaintiffs’ Motion for Summary Judgment (as converted by this court).

As Plaintiffs’ case is an appeal pursuant to G. L. c. 40A, § 17, this court is obligated to hear the case de novo and determine the validity of the ZBA Decisions after making factual findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 485-86 (1999). In such review, courts “give[] no evidentiary weight to the board’s findings.” Id. at 486. The ZBA Decisions “cannot be disturbed unless [they are] based on a legally untenable ground, or [are] unreasonable, whimsical, capricious or arbitrary.” Id. (citing MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)).

G. L. c. 40A, § 9 requires that “[t]he special permit granting authority shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and setting forth clearly the reason for its decision and of its official actions . . . .” This language has been interpreted by courts as requiring “substantial facts which rightly can move an impartial mind acting judicially, to the definite conclusion reached.” Brackett v. Board of Appeal of the Bldg. Dep’t of Boston, 311 Mass. 52 , 54 (1942). While the denial of a special permit sometimes warrants a more “tolerant” view of this statutory requirement, see Aldermen of Newton v. Maniace, 429 Mass. 726 , 732 (1999), in order to be upheld as legally valid, the board’s decision to deny a special permit requires that the record demonstrate at least a “rational basis for the denial . . . .” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).

Conversion Special Permit.

In the case at bar, the Conversion Special Permit was applied for pursuant to the Table under Section V-D of the Ordinance, which is subject to the requirements of Section X-H(7). While the ZBA technically made findings as part of ZBA Decision 1, such findings were merely rote conclusions, supported with no facts, that the Conversion Special Permit violated general conditions 2, 3, 6, 7, and 8 of Section X-H (7) of the Ordinance.

Contrary to ZBA Decision 1, there is not a single fact in the record before this court that supports the ZBA’s denial of the Conversion Special Permit. The Conversion Special Permit has the approval of the Fire Department and the Police Department, whose findings are inconsistent with the findings made in ZBA Decision 1. Moreover, Plaintiffs represented (uncontested by the ZBA) that the negative ZBA votes were based on parking and density issues. The record is clear that the proposed parking spaces meet the requirements of the Ordinance. There were eight spaces provided, yet only 5½ were required. In addition, Plaintiffs represent that there is no prohibition in the Ordinance relative to tandem parking spaces. [Note 8] With respect to the density issue, there are other multi-family uses in the neighborhood. The Department of Public Services has indicated that infrastructure is not a concern. The Police and Fire Departments have no concerns. Finally, the ZBA does not presently argue against the Conversion Special Permit in the case at bar, as it selected not to litigate this matter. As I can find no fact in the record that supports ZBA Decision 1, I find that ZBA Decision 1 was arbitrary, capricious, and unreasonable.

Expansion Special Permit.

As with ZBA Decision 1, ZBA Decision 2 simply made rote findings, supported by no facts, that the Extension Special Permit was more detrimental than the existing structure, and that the Extension Special Permit is substantially more detrimental than the existing non-conforming structure. In addition to being repetitive, on their face, such findings fail to satisfy the requirement of Section IX-B(2)(B) of the Ordinance, which calls for the ZBA to make two findings regarding: (1) whether there will be no “intensification or extension of an existing nonconformity or the addition of a new nonconformity;” and (2) whether the proposed change will not be “substantially more detrimental to the neighborhood than the existing nonconforming structure or use.” ZBA Decision 2 fails to include any reference to the Extension Special Permit’s intensification of the existing nonconformity. Such failure violates G. L. c. 40A, § 9, even under the more “tolerant” standard of review afforded to the ZBA in context of special permit denials, as ZBA Decision 2 does not clearly set forth the ZBA’s reasoning. However, de novo review calls for the affirmance of ZBA Decision 2 if the facts, as found by this court, show a rational basis for the denial.

The record is clear that the Extension Special Permit does not extend the existing nonconformity or add a new nonconformity; however, Section IX-B(2)(B) also requires a finding that there “will be no intensification” of the existing nonconformity. [Note 9], [Note 10] With respect to whether the Extension Special Permit will intensify the front and side-yard setback nonconformity, the record indicates the following facts: (1) the proposed structure’s roof line will be raised to realize third floor headroom, and (2) the square footage of the proposed structure (4,983) is more than the square footage of the existing structure (2,910). However, the record also shows that only a portion of the roof line is proposed to be elevated and that most of the elevation occurs on Locus in conformance with current front and side-yard setbacks. As such, the facts reveal a slight increase in the square footage of the proposed structure within the pre-existing setback nonconformity. However, this court does not conclude that such a de minimus increase as is shown in the case at bar supports an “intensification” finding, as reasoned in Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008), and Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) (Greaney, J., concurring). [Note 11] As the SJC stated in Bjorklund, “[c]oncerns over the making of small_scale alterations, extensions, or structural changes to a preexisting house are illusory.” 450 Mass. at 362. The SJC went on to provide some examples of small-scale structural changes that, as a matter of law, are not intensifications, including the following:

the addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of a one-story garage for no more than two motor vehicles; the conversion of a one-story garage for one motor vehicle to a one-story garage for two motor vehicles; and the addition of small-scale, proportional storage structures, such as sheds used to store gardening and lawn equipment, or sheds used to house swimming pool heaters and equipment.

Id. at 363. In this court’s opinion, the limited increase in the roof line proposed in the Extension Special Permit (and the associated increases in square footage) is similar to the addition of a dormer, in that both provide for the use of additional living space without requiring significant structural modifications. The fact that the Extension Special Permit does not propose altering the existing structure’s footprint or increasing the number of bedrooms further distinguishes the instant matter from Bjorklund and Bransford. Moreover, as discussed, supra, most of the increase in the roof line is not within the nonconforming setback areas. [Note 12] In light of the above, there are no facts in the record upon which a reasonable person could find either that the Extension Special Permit intensifies Locus’ pre-existing, nonconforming use or that the Extension Special Permit will be substantially more detrimental to the neighborhood than the existing use. Thus, I find that ZBA Decision 2 was arbitrary, capricious, and unreasonable.

As a result of the foregoing, I find that the Conversion Special Permit and the Extension Special Permit complied with the requirements of the Ordinance. As discussed, supra, ZBA Decision 1 and ZBA Decision 2 were arbitrary, capricious, and unreasonable. I ALLOW Plaintiffs’ Motion for Summary Judgment, and I remand this matter to the ZBA to issue the Conversion Special Permit and the Extension Special Permit in conformance with this decision.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: December 30, 2009