EDWARD J. DeWITT and KATHLEEN E. MORTENSON vs. KENNETH L. SCHWARTZ, HARRY STROUT and PATRICIA FAVULLI, in their capacity as the FALMOUTH ZONING BOARD OF APPEALS, and JOHN SAARI

Plaintiffs Edward J. DeWitt and Kathleen E. Mortenson ("Mortenson") (together, "Plaintiffs") filed their unverified Complaint on February 15, 2007, appealing pursuant to G. L. c. 40A, § 17 the grant of a special permit (the "Special Permit") by Defendant Falmouth Zoning Board of Appeals ("ZBA") to Defendant John Saari ("Saari") (together with the ZBA, "Defendants") for renovations to a single-family dwelling (the "House") located at 96 Pin Oak Way in Falmouth, MA ("Locus").

On July 9, 2007, Plaintiffs filed their Motion for Partial Summary Judgment, together with supporting brief, Statement of Material Facts, and Affidavit of Edward J. DeWitt, arguing the interpretation of the Falmouth Zoning By-laws (the "By-laws") as it applied to the two-family use of Locus. [Note 1] Saari filed his Cross-Motion for Partial Summary Judgment on August 3, 2007, together with supporting memorandum, Statement of Material Facts, and Affidavits of Paula Kelley, Michael J. Markoff, John Saari, and Breta Grew. On August 7, 2007, the ZBA filed its Opposition to Plaintiffs' motion and Assent to Saari's motion. Plaintiffs filed their Opposition to Saari's cross-motion on August 21, 2007, together with supporting brief, Response to Saari's Statement of Material Facts, and Appendix. At a status conference on August 21, 2007, both parties waived a hearing on the cross-motions. On September 5, 2007, Saari filed his reply brief to Plaintiffs' Opposition.

Saari filed his second Motion for Partial Summary Judgment on December 13, 2007, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavits of Paula Kelley (second), Caroline Constant, Breta Grew (second), William A. Grew, Michael J. Markoff (second), and John A. Saari (second), arguing that the use of the Cottage is protected as a prior non-conforming use under G. L. c. 40A, § 6, and that such use has not been abandoned. On January 9, 2008, Plaintiffs filed their Opposition, together with Response to Saari's Statement of Material Facts, Appendix, and Affidavits of Kathleen Mortenson and Edward DeWitt (second). On the same day, Plaintiffs also filed their Motion to Strike Affidavit of William Grew. Saari filed his Opposition to Plaintiffs' Motion to Strike Affidavit of William Grew and his Motion to Strike all or portions of Exhibits E, G, J and K of Plaintiffs' Appendix, on January 24, 2008. Saari filed his Motion for Speedy Trial on February 1, 2008. On February 14, 2008, Plaintiffs filed their Opposition to Motion for Speedy Trial, together with Affidavit of Edward J. DeWitt (third) and Saari's Response to Interrogatories.

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. 5(c).

This court finds the following facts are not in dispute:

1. Locus comprises 10,400 square feet and contains the House at the front of the lot and the Cottage at the rear of the lot. Locus is located in the General Residence ("GR") zoning district under the By-laws. The By-laws currently allow only one building for dwelling purposes per lot in the GR zoning district. The House violates current front yard setbacks and the Cottage violates current side and rear yard setbacks.

2. John Albert Trout purchased Locus by deed dated July 9, 1929, and constructed the House and the Cottage in the early 1940s. [Note 2] There is no evidence in the summary judgment record of the issuance of a building permit for the Cottage.

3. The By-laws were first enacted on May 3, 1926 (the "1926 By-laws"). Section 4, titled Single Residence Districts, stated, in part:

In single residence districts, subject to the provisions of Sections thirteen [accessory uses] and fourteen [non-conforming uses], no new building or structure and no alteration, enlargement or extension of an existing building or structure shall be designed, arranged and/or constructed, and no land, buildings, structures or parts thereof shall be used except for one or more of the following purposes:

1. One family detached houses.

Section 5, titled General Residence Districts, stated, in part:

In General Residence Districts, subject to the provisions of Section Thirteen and Fourteen, no building or structure and no alterations, enlargement or extension of an existing building structure shall be designed, arranged and/or constructed and no land, building structures or parts thereof, shall be used [except] [Note 3] for one or more of the following purposes:

1. Any purpose enumerated in Secion [sic] Four . . . .

2. Semi Detached or Two Family Dwellings.

Section 2 of the 1926 By-laws, titled Definition, included the following terms: "A One Family House" was defined as "[a] detached dwelling designed for and occupied by a single family;" a "Semi Detached House" as "[t]wo one family houses built together at the same time and separated by a fireproof division with no openings;" and "A Two Family House" as "[a] detached dwelling designed for two families."

Section 10, titled Area Regulations, provided:

In Residence districts, as provided in Sections 4 and 5 and laid out after the adoption of this by law shall provide for each family the following minimum lot areas:

In a One Family House, not under 7500 square feet per family.

In a Semi Detached House, not under 5000 square feet per family.

In a Two Family House, not under 4500 square feet per family.

. . . .

4. The 1926 By-laws were amended in 1948, but Sections 4 and 5 were unchanged. Section 10 was changed to Section 14, which added the following language:

Any lot duly recorded prior to May 3, 1926 may be used, and any lot on which more than one house existed at that time, may be divided and sold to separate owners, after due notice and public hearing before the Board of Appeals.

5. The By-laws were amended in 1959 to add the following sentence to Section 14, Schedule B: "Not more than one building for dwelling purposes shall be erected on single lot." Article 32 of the 1959 Falmouth Annual Town Meeting proposed this amendment, stating:

The Planning Board submitted an official report of its recommendation to the meeting and said report was read to those assembled. The recommendation was for the adoption of Article 32 for the following reason:-

Prohibition of more than one dwelling on a single lot is currently only inferred by the language of Section 14, although this principle has been essentially observed since Section 14 was adopted in its present basic form. The Planning Board feels that this deficiency was a technical oversight, and that the principle of single unit occupancy of lots should be clearly stated.

Adoption of this Article will avoid future confusion and conflict with various other provisions of the Zoning By-law by definitely requiring that there shall be appurtenant to each dwelling (single family, semi-detached, two family or multiple) a particular lot with definite boundaries. This amendment will not affect dwellings now legally existing under the present provisions of the By-law.

Article 32 was passed by a unanimous vote. This language is embodied in Section 240-66D of the By-laws.

6. The Annotated 1966 By-laws added a note following Section 14 as follows:

This basic principle of zoning was long believed by many to be implicit in the zoning by-law. It was added by 1959 An 32 to make it explicit and to inform individual owners and builders before they seek building permits. It was approved by the Atty. Gen. May 19, 1959.

7. Plaintiffs purchased 116 Pin Oak Way in Falmouth ("Plaintiffs Property") by deed dated August 22, 1994. Plaintiffs Property abuts Locus.

8. Saari purchased Locus by deed from Marion Breta Grew dated June 16, 2004. Saari commenced reconstruction on both the House and the Cottage in the summer of 2004. An oil spill was discovered on Locus in February 2005, which slowed construction. Saari lived in the Cottage while he was renovating the House. He has rented the Cottage to tenants since the fall of 2007.

9. Mortenson filed a letter request for zoning enforcement with respect to Locus with the Building Commissioner dated September 23, 2004. This letter was never answered.

10. In December 2006, Saari filed an application for the Special Permit pursuant to the provisions of Section 240-3 of the By-laws with the ZBA to add dormers on the second floor of the House, a deck to the rear of the House, and interior stairs for basement access in the House. [Note 4] The nonconformity of the House was violation of the front yard setback and the nonconformity of the Cottage was violation of the side and rear yard setbacks.

11. On January 23, 2007, Mortenson filed with the Building Commissioner a request for revocation of the building permit issued with respect to Locus. [Note 5] This letter was never answered.

12. At a public hearing held on January 24, 2007, the ZBA voted to grant the Special Permit, with conditions (the "Decision"). The ZBA found that "the property is pre-existing nonconforming due to a front yard setback for main dwelling and side and rear setbacks for cottage dwelling." The Decision stated that [t]he Board has weighed the beneficial and adverse effects of the proposed project herein and finds that the beneficial effects of granting this permit outweigh any negative effects there may be. The Board further finds that the granting of this permit is in harmony with the purpose and intent of the Bylaw.

The Decision was filed with the Falmouth Town Clerk on February 2, 2007.

13. Saari is attempting to sell both the House and the Cottage as separate condominium units.

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Saari applied for the Special Permit to make changes to the House pursuant to G. L. c. 40A, § 6 and Section 240-3 of the By-laws, arguing that the House was a pre-existing nonconforming structure because of violations of the front yard setback for the House. Saari also asserted that the Cottage was a pre-existing nonconforming structure because of violations of the side and rear yard setbacks for th Cottage. In the Special Permit application, however, construction changes were only being proposed for the House. The ZBA granted the Special Permit with findings that both structures on Locus were pre-existing nonconforming due to dimensional issues and that the proposed construction on the House would not be substantially more detrimental than the existing House. The ZBA made no findings related to the two-family use of Locus. Both parties, however, have filed motions for partial summary judgment based on the issue of the two-family use of Locus and ask that this court address this issue. Neither party argues the validity of the ZBA findings relative to the proposed construction on the House. [Note 6] Saari has not sought a special permit for work on the Cottage.

Both parties have raised evidentiary issues relative to the pleadings. Plaintiffs have filed a Motion to Strike the Affidavit of William Grew, and Saari has filed a Motion to Strike all of Exhibits J (Official Town of Falmouth Street List (selected streets) 2004, 2005 and 2006) and K (Town of Falmouth Aerial Photographs 1950, 1960, 2005) and portions of the Affidavits of Kathleen Mortenson and Edward DeWitt. These exhibits deal with the factual issue of the use of the Cottage. Because I do not address this issue in this decision, I need not address these evidentiary issues at this time.

The central issue in this case, then, as defined by both parties, is whether the 1926 By-laws prohibited more than one single family structure in the GR zoning district. Plaintiffs argue that the 1926 By-laws prohibited more than one single family structure per lot. Defendants argue that the 1926 By-laws did not prohibit more than one single family structure per lot and that such provision was not added to the By-laws until 1959.

To begin, it is clear that the 1926 By-laws did not expressly allow more than one single-family structure per lot. The language of Section 5 of the 1926 By-laws states that in General Residence Districts "no land, building structures or parts thereof, shall be used [except] for one or more of the following purposes: . . ." This language limits uses within General Residence Districts to those uses enumerated within the bylaw and prohibits all other uses. Even so, Defendants argue that the 1926 By-laws allowed "[o]ne family detached houses" and "[s]emi-Detached or Two Family Dwellings," and that the use of the plural suggested that more than one single-family structure or two-family structure per lot was allowed. Plaintiffs argue that one must look at the 1926 By-laws as a whole, and that other sections clarify the fact that only one single-family structure per lot was allowed.

A comprehensive review of the 1926 By-laws language reveals that the title of all sections in the Use Regulations were in the plural and all uses specified in the use sections were also in the plural. As Plaintiffs point out, according to Defendants' reasoning any one lot could support multiple boarding houses, hotels, churches, schools, public museums, hospitals, private clubs, etc., since there was no limit on the number of structures per lot. [Note 7] However, the definition of the type of structure in the various uses in the zoning districts, refer to the singular, i.e. a one family house, a semi-detached house, and a two family house. Moreover, even if Defendants' analysis were correct, based on the size of Locus (10,400 square feet) only one single family house would be allowed on the lot since each one-family house required a minimum of 7500 square feet per family. [Note 8]

The 1948 amendment further supports Plaintiffs' argument in that it added new language to the Area Regulations section (Section 10 in 1926; Section 14 in 1948) indicating that any lot containing more than one structure prior to 1926 could be divided to keep one structure per lot. It is clear that as of 1948 the By-laws were concerned with lots that had more than one dwelling structure per lot, and arranged, in effect, to grandfather lots with more than one single-family structure per lot which existed prior to 1926 so that such lots could be subdivided into lots containing only one structure per lot. Pursuant to the 1948 amendment, grandfather protection did not apply to structures which were built after May 3, 1926. [Note 9]

Subsequent amendments to the By-laws continued to address the status of a single lot improved with multiple structures. The 1959 amendment made explicit the requirement that only one building for dwelling purposes could be constructed per lot. Moreover, the Planning Board comment to the amendment indicated that such intent was "inferred" in the 1926 By-laws and the principle has been observed since that time. Also, the 1966 By-laws contained a note that "this basic principle of zoning," (one building for dwelling purposes per lot) was long believed to be implicit in the earlier by-laws.

Finally, this court is not convinced by Defendants' arguments that under these circumstances: (1) a local board is entitled to deference in the interpretation of their own by-law; and (2) that prior decisions of the Falmouth Building Commissioner and the ZBA require a finding that multiple single family houses constructed between 1926 and 1959 may exist on a single lot. [Note 10] A reasonable interpretation by a local board (or building commissioner) of its own zoning bylaws is entitled to a certain degree of deference. Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). However, deference does not extend where a board's interpretation is arbitrary, capricious, or unreasonable. Geryk v. Zoning Bd. Of Appeals of Duxbury, 8 Mass. App. Ct. 683 , 684 (1979) (citations omitted). In the case at bar, this court finds, as discussed, supra, that a thorough analysis of the 1926 By-laws indicates that more than one single family house per lot is not allowed. Additionally, previous decisions by a local board hold no evidentiary weight in subsequent matters. As such, the prior decisions of the Falmouth Building Commissioner and the ZBA fail to control in this case.

In light of the forgoing, I find that, under the 1926 By-laws, two dwellings on a single lot is illegal. This court ALLOWS Plaintiffs' Motion for Partial Summary Judgment and DENIES Saari's Cross-Motion for Partial Summary Judgment.

Plaintiffs also cite to G. L. c. 40A, § 7 in support of their claim that section 7's statute of limitations are inapplicable in the case at hand. [Note 11], [Note 12] Plaintiffs argue that this section does not apply for Saari failed to produce either a building permit (showing that the Cottage was a validly constructed residence) or a certificate of occupancy (showing that the Cottage's use was converted to a dwelling), which would trigger either the six or ten-year statute of limitations period prescribed in G. L. c. 40A, § 7. As discussed, supra, there are material facts at issue regarding the Cottage's use and, thus, summary judgment here is inappropriate.

Saari has filed a second Motion for Partial Summary Judgment, in which he addresses the issues of: (1) whether the House and the Cottage were both constructed prior to 1959; (2) weather Saari ever ceased using the House or Cottage as a residence; and (3) whether Plaintiffs' requested relief should be barred by laches. This motion includes the caveat: "For the purposes of the present motion, Saari assumes that the Court will decide that said point in time was no earlier than 1946." Since I have determined that the 1926 By-laws prohibited the use of Locus for two single family homes, and both parties agree that neither the House nor the Cottage existed prior to 1926, the other issues in this case relative to usage of the Cottage appear to be moot.

The Complaint, however, raised the issue of the validity of the Special Permit as it relates to the proposed construction on the House. Neither party has argued this issue in any of their motions for summary judgment. Moreover, at the case management conference Plaintiffs indicated that once the two-family issue was resolved, the issue of the construction on the House might be a moot point. As a result of the foregoing, the parties shall attend a status conference scheduled for March 3, 2009, at 11:00 A.M. Judgment shall enter upon the resolution of all issues.

Alexander H. Sands, III

Justice

Dated: January 30, 2009