The property at issue in this case, located at 691 Washington Street in Braintree, has had a long history of zoning issues. In 1986, the then-owner of the property received building permits to raze a single-family dwelling and construct a two-family dwelling in its place. Over a number of years, the owner received various building permits for internal work and also applied for, but failed to receive, zoning relief to use the dwelling as a three-family residence. He nonetheless used it as a three-family residence.
In 2006, plaintiffs Dana and Scott Junior [Note 1] purchased the property and applied to the defendant Zoning Board of Appeals (the ZBA) for zoning relief to use the dwelling as a three-family residence. The ZBA denied that relief. The defendant Building Inspector for the Town of Braintree also issued a cease and desist order requiring the plaintiffs to stop using the third unit.
The plaintiffs have appealed from the ZBAs decision (08 MISC 372846) and also seek a declaration that they can use the property as a three-family residence (07 MISC 353057). The cases were consolidated and tried on a case-stated basis. For the following reasons, I find and rule that the plaintiffs are not entitled to a variance and, accordingly, the ZBAs decision must be upheld. I also find and rule that the plaintiffs action seeking a declaratory judgment must be dismissed for their failure to exhaust their administrative remedies.
The following facts were stipulated to by the parties and are hereby adopted by the court.
The property at issue is located at 691 Washington Street in Braintree. It is partially located in a Residence B Zoning District (R-B) and partially in a Residence C Zoning District (R-C). In an R-B District, the minimum dimensional requirements include a lot area of 15,000 square feet, a lot width of 100 feet, and a lot depth of 100 feet. In an R-C district, those requirements are a lot area of 43,560 square feet, a lot width of 200 feet, and a lot depth of 200 feet. For lots that are divided by a zoning district boundary such as the property at issue, the lot is governed by the least restricted districts requirements so long as the minimum dimensional requirements for that district are met. Here, the property does not meet the minimum dimensional requirements for the least restricted district (R-C).
Prior to 1986, there was a single-family dwelling on the property. On February 25, 1986, the then-owner of the property, William Reed, received a building permit (Building Permit 059) that allowed the construction of a two-family dwelling and garage. Mr. Reed subsequently petitioned the ZBA to allow him to construct a three-family dwelling on the property. At the hearing, Mr. Reed requested to withdraw his petition, which the ZBA allowed. On August 1, 1986, Mr. Reed received a permit to demolish the single-family dwelling on the p roperty. Construction of the currently existing building under Building Permit 059 subsequently began. On November 19, 1986, Mr. Reed applied for a permit for plumbing work, indicating that he would install four water closets, two kitchen sinks, four lavatories, two bathtubs, two dishwashers, two washing machine connections, and two tankless water systems. On December 10, 1986, Mr. Reed also applied for a permit to do electrical wiring, including two electric meters, which was granted. The plumbing work was inspected and determined to be complete on June 22, 1987. There does not appear to be anything in the record to indicate that the electrical work was inspected. On September 25, 1987, a temporary certificate of occupancy was issued, certify[ing] that said building complies with the provisions and regulations of the Town of Braintree relating to a Two Family Dwelling. Exs. 7, 9. A final certificate of occupancy was issued on November 25, 1987, again certify[ing] that said building complies with the provisions and regulations of the Town of Braintree relating to a Two Family Dwelling. Id.
On December 22, 1987, the ZBA filed a decision, denying Mr. Reeds request for a variance to allow an existing accessory garage, which is approximately 2.5 feet from the side lot line, to remain on the property where a new mu[lt]i-family building has been built. Said garage is in violation of side lot line requirements. Ex. 11. Since Mr. Reed did not submit sufficient evidence concerning the exist[e]nce of a non-conforming use of the garage in its present location on the lot, the board unanimously voted to deny the application. Id.
Mr. Reed subsequently applied for a variance for relief from lot size, minimum lot width and minimum lot depth in order to create a third living area by expanding the present structure. Ex. 12. The ZBA found that [t]he testimony by the applicant on the issue of hardship was on financial hardship only. The Board finds that the applicant has not met the burden of showing a hardship, under the Massachusetts General Laws Chapter 40A or Chapter 135 Section 407 of the by-law. Id. Accordingly, the board unanimously voted to deny Mr. Reeds application.
On October 31, 1988, Mr. Reed applied for a building permit in order to Renovate Existing Building To Accommodate Apt #2. See Plans. Ex. 14. Mr. Reed indicated that the type of construction and use group classification was one & two family dwelling. Id. On November 10, 1988, Mr. Reed applied for a permit to do Electrical Wiring, which was granted. Ex. 13. On January 10, 1989, Mr. Reed applied for a plumbing permit to install two water closets, one kitchen sink, two lavatories, and one shower stall. Ex. 15. The plumbing work was inspected and approved on January 12, 1989.
On August 14, 1989, Mr. Reed applied for a building permit to install kitchen cabinets and cooking facilities Unit 3. [Note 2] Ex. 16. Mr. Reed indicated that the type of construction and use group classification was res. multi-family. [Note 3] Id. The plan attached to the application depicts Units 1 and 2 and shows an opening identified as a New Door between Unit 2 and what is alleged to be Unit 3. Id. It does not label Unit 3. The building permit was granted on August 15, 1989 (Permit No. 459). The Building Inspector never issued an occupancy permit for a third unit or a three-family dwelling.
At some point, the Lainoloc Realty Trust (the then-record owner of the property) [Note 4] petitioned the ZBA for relief from by-law requirements . . . wherein permission is requested to continue the alleged two family violation in a Residence C zone. Ex. 18. After a hearing on the petition, Lainoloc was permitted to withdraw its petition. Id. A couple of days later, the ZBA also denied a petition of Lainoloc for relief from the by-law requirements . . . wherein permission is requested for authorization of continued use of a non-conforming garage constructed prior to 1940. Ex. 19 (filed with the town clerk on July 9, 1991). Citing to the 1986 building permit application to demolish and remove the house, the ZBA stated that it found that the Building Inspector was lead to believe that the garage would be demolished and therefore we find no reason to grant the relief requested by this petition. [Note 5] Id. Mr. Reed appealed from that decision, the Superior Court issued a remand order, and the ZBA subsequently authorized continued use of the preexisting, nonconforming garage.
In response to some sort of written request (which is not part of the record), the Office of the Planning Board sent a letter to Paul Reed (a trustee of the Lainoloc Realty Trust) with the following suggestions:
1) Apply to the Zoning Board of Appeal for relief from the Braintree Zoning Bylaw for authorization of a pre-existing non-conforming lot [deficiencies lot size, lot width and depth under Residence C] to legitimize the two-family residence [created in 1986] and to allow the proposed third unit or multi-family residence [three or more] with the lots current density and dimensional characteristics. It is staffs opinion the applicant would have to demonstrate the lot pre-existed 1940 in the current configuration of today  to be eligible for such approval.
2) Once the Zoning Board of Appeal approval has been obtained for both items referenced above, if the applicant desires legitimizing the third unit, a site plan approval would have to be requested from the Planning Board. The site plan approval is necessary under Braintree Zoning Bylaw . . . .
Ex. 21 (bracketed portions in original). So far as the record shows, no action was taken on these suggestions.
On September 2, 1998, the Building Inspector wrote to Robert Reed, indicating that the department received a complaint that he was using the building as a three-family dwelling, that William Reed admitted to the presence of three units at the property, and that such use was a violation. Accordingly, the Building Inspector directed [Mr. Reed] to either obtain a Building Permit and restore the property to that of a Two Family Dwelling as is presently allowed or obtain a Building Permit to establish the property as a Three Family Dwelling. Ex. 22. Since there was no response to that letter, the Building Inspector sent another letter to Robert Reed on October 1, 1998, indicating that [f]ailure to remove the third illegal dwelling unit or make application to seek relief before the Zoning Board of Appeals within seven (7) days of receipt of this letter will result in this department taking court action to enforce this directive. Ex. 23. Despite such order, no court action was taken at that time (so far as the record indicates). Rather, on November 3, 1998, the Department of Inspections attempted to gain entry to the building regarding correction of occupancy, but was unable to do so. Ex. 24.
On November 6, 1998, counsel for Robert Reed wrote to the Building Inspector, arguing that Building Permit No. 459, which authorized the installation of kitchen cabinets and cooking facilities in Unit No. 3 of the condominium, establish[ed] that Unit No. 3 is a separate, habitable, dwelling unit. Ex. 25. In response, the Building Inspector noted in a letter (dated Nov. 18, 1998) the following:
[a] plan supplied to this department in conjunction with this permit describes an opening to be provided between these two spaces. The presence of this opening would void the characterization of this property as a Three Family Dwelling in accordance with the provisions of 780 CMR (Massachusetts State Building Code). The failure to maintain this opening by your Client has resulted in violations of both 780 CMR and Town of Braintree Zoning By-laws as described in your earlier correspondence. Furthermore it is beyond this departments understanding how either you or your Client could believe that a Building permit independent of Appeals Board action could legalize this situation especially given the number of appeals to the Board of Appeals which have occurred in the past.
It remains the directive of this department to either remove this third dwelling unit by once again creating this opening between the two spaces or seeking a variance from the Zoning Board of Appeals to legalize this situation. Given the elapsed time, nearly 90 Days, please be advised that his department is preparing to take further legal action to enforce this directive.
Ex. 26. Despite such statements, the record does not indicate that the town took any legal action.
Years later, William Reed wrote to the Board of Selectmen (filed on Feb. 28, 2000), claiming that there was defamatory misinformation on record as public information in the building department files (the above-mentioned correspondence) and requesting a letter/letters of retraction be attached to the subject matter, vindicating the alleged illegal actions. Ex. 27. In response, the Building Inspector and Inspector of Buildings prepared a memo, indicating that they conferred with the former Inspector of Buildings, who had in fact issued [Building Permit #459]. It was his understanding that the purpose of this permit was not to create a third dwelling unit but to simply modify a portion of the existing second unit [and] as part of this approval a doorway was to be maintained. Ex. 29. Furthermore, they noted that [a] statement to the effect that the purpose of this permit was to change the occupancy of this building from a Two Family Dwelling to a Three Family Dwelling would have needed to be provided. Id. Finally, they noted the following:
[t]his department is not ignoring permit #459 of 1989, however its interpretation of the meaning of this permit differs from that of Mr. Reed. To this department the allowances made at this time was restricted to the installation of kitchen cabinets and appliances for the convenience of the inhabitants not to create a third dwelling unit. Moreover the maintenance of the opening was fundamental to this departments allowances for such improvements, in that the lack of separation created by this opening nullifies the creation of a third dwelling unit. This department remains steadfast in its belief that what has been allowed to date is that of a two family dwelling and that a Certificate of Occupancy establishing this property as a three family dwelling cannot be issued until the Zoning Board of Appeal has granted the required relief.
Id. Yet again, however, it does not appear that either the town or Mr. Reed took any further action.
During 2005 and 2006, the property was listed for sale. The listing indicated that it was [p]ermitted as a 2 family built as a 3 family with separate systems, with the exception of the 3rd units water and electric meters. Ex. 40. On April 28, 2006, Scott Junior purchased the property and, on June 23, 2006, Dana Junior (as Scott Juniors agent) applied to the ZBA to allow the use of & legitimize the existing three family residence located at 691 Washington St. which is divided by the Res B and Res C zone boundary. Ex. 30. The ZBA noted in its decision that [a]lthough the petitioner admitted that he purchased this property as a two-family home, it is his understanding that the property has been used as a three-family unit for a number of years, and the petitioner seeks permission to legitimize the allegedly long-standing three-family use. Ex. 31 at 1. Further, the ZBA found the following:
[b]ased on the facts presented that the building has two electric meters, two furnaces, two water meters, and was recently sold and advertised as a two-family, the Board found that the evidence supported a use as been a two-family. To the extent that a prior owner may have used the property as a three-family use, said use was done without the permission of the appropriate Town officials, and therefore, the Board refused to reward the current owner for a previous owners disregard for the Towns Zoning By-laws. The Board noted that the building was built as a two-family and permitted as a two-family. The Board also found that the petitioner failed to present any evidence of a hardship to support the relief requested.
Id. at 2. Dana Junior appealed from that decision (originally to the Norfolk Superior Court, now Land Court Case No. 08 MISC 372846).
Mr. Junior subsequently requested an occupancy permit for three units or, in the alternative, for two units. In response to such request, the Building Inspector reinspected the property and issued an occupancy permit for a two-family dwelling. The Building Inspector then issued a notice of violation on May 3, 2007, directing Mr. Junior to restore this property to that of a Two Family structure immediately. Failure to adhere to this notice shall result in this department seeking enforcement through the courts. Ex. 34. A June 18, 2007 inspection revealed, however, that the third unit was no longer being occupied and, accordingly, no court action will be filed at this time. Ex. 36. The Building Inspector also noted that [i]t should be understood that based on the occupancy of the property, Two Family Dwelling, as well as the finding of the Towns Zoning Board of Appeal (Aug. 22, 2006) this unit may not be occupied, rented or sold as an independent unit. Id.
Scott Junior subsequently filed another action in this court (07 MISC 353057), seeking a declaration that the Premises can be legally occupied and used as a three-family dwelling in the Town of Braintree pursuant to the provisions of M.G.L. c. 40A, § 7 . . . . Complaint, 07 MISC 353057 (Aug. 10, 2007).
The parties have now submitted the two cases (now consolidated) for a trial on a case stated basis.
Miscellaneous Case No. 372846: the ZBAs Decision Denying Zoning Relief Must Be Upheld
As noted above, the plaintiffs applied for zoning relief (a permit and/or variance) from the provisions of the bylaw governing principal uses (§ 135-601) and dimensional and density requirements (§ 135-701) in order to allow the use of & legitimize the existing three family residence located at 691 Washington St. which is divided by the Res B and the Res C zone boundary. [Note 6] Ex. 30. Again, as noted above, the ZBA denied the petition because, among other stated reasons, the plaintiffs failed to present evidence of a hardship. This decision must be upheld.
The courts function on appeal, based on the facts it has found de novo, is to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The ZBA must have acted fairly and reasonably on the evidence presented to it, and have set forth clearly the reason or reasons for its decisions, in order to be upheld. Id. Even though the case is heard de novo (in the sense described above), such judicial review is nevertheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citations omitted).
Based upon the record before me, I find and rule that the ZBAs decision was not based on a legally untenable ground and was not unreasonable, whimsical, capricious or arbitrary. The bylaw prohibits a three-family dwelling in the R-B District. Bylaw § 135-601. A three-family dwelling is only allowed in the R-C District if the minimum dimensional requirements are met. [Note 7] Id.; Bylaw § 135-302; Bylaw § 135-705. Here, it is undisputed that the property does not meet the minimum dimensional requirements for lot size, width, and depth for the R-C District. [Note 8] Accordingly, the plaintiffs had to apply for a variance from such requirements in order to use the building as a three-family residence. [Note 9]
Bylaw § 135-407 allows for the granting of a variance if the ZBA finds that a literal enforcement of the provisions of this chapter would involve substantial hardship to the petitioner, financial or otherwise, owing to site-specific soil conditions, shape or topography of land or structures which do not generally affect the zoning district in which it is located and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter. See also G.L. c. 40A, § 10 (with parallel requirements). As noted above, the ZBA found in this case that the plaintiffs failed to produce evidence of a substantial hardship. [Note 10] Although the plaintiffs argue that [t]he decision fail[ed] to address the prerequisites for the determination of a . . . variance determination, Plaintiffs Trial Memorandum at 13, this finding by the ZBA is sufficient for denying an application for a variance. Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 161, 162 (1962) (before a variance may be granted, all the requirements of G.L. c. 40A, §, must be met and detailed findings are not required when the board refuses to grant a variance); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) (Even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its actions will be upheld . . . if a rational basis for the denial exists which is supported by the record. So long as any reason on which the board can fairly be said to have relied has a basis in the trial judges findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the boards action must be sustained regardless of other reasons which the board may have advanced. (citations and quotations omitted)).
Based upon the record before me, the ZBAs finding that there was no substantial hardship is reasonable since the plaintiffs likewise have failed in this action to meet their burden of producing evidence of a substantial hardship. Rather, they simply note that removal [of the third unit] is not a practical option, and that the installation of access from the abutting unit would create an oversized unit, unmarketable for sale, and doomed to the rental market, or Section 8 occupancy. Plaintiffs Trial Memorandum at 16. This hardship is not sufficient for two reasons. First, such a hardship is not owing to the site-specific soil conditions, shape or topography of land or structures as is required by the bylaw and G.L. c. 40A, § 10. Ferrante, 345 Mass. at 162 (The fact that the plaintiffs constructed a building . . . in contravention of the applicable zoning ordinance does not constitute a condition especially affecting such parcel. (internal citation and quotations omitted)); see also Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 331-33 (1993) (Unless circumstances relating to the soil conditions of the land, the shape of the land, or the topography of the land cause the hardship, no variance may be granted lawfully.); Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 118 (1985) (where the court outlined the symbiotic relationship between the shape and hardship requirements and noted the hardship alleged must arise from the shape of the locus or one of the other factors specifically referred to in § 10). Second, such a hardship is merely economic, one that the plaintiffs were aware of when they purchased the property, [Note 11] and does not result in the plaintiffs being unable to use the property. Accordingly, it does not qualify as substantial hardship. Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 431 (1984) (The fact that a governmental regulation may deprive an owner of the most beneficial use of his property does not create a hardship if a single family residence, conforming to the requirements of the regulation, can be constructed on the property. Nor will the deprivation of a potential economic advantage to a landowner qualify as substantial hardship. (citations omitted)). Even if such economic hardship was a sufficient hardship, the plaintiffs failed to provide any evidence whatsoever (beyond their mere assertion in their memorandum) that installing access between the second and third unit would result in the property becoming unmarketable for sale or rental, much less evidence sufficient to prove that they would suffer a substantial hardship. See id. at 431-32 (it would have been premature and speculative for the trial judge to have found . . . substantial hardship on this score in the absence of evidence). Since I find and rule that the plaintiffs have failed to meet their burden of showing a substantial hardship, the ZBAs decision must be upheld.
Although this finding is enough to uphold the ZBAs decision, I note that the plaintiffs also failed to submit any evidence beyond mere assertions that their application for a variance meets the other two requirements of G.L. c. 40A, § 10 and the bylaw. The plaintiffs failed to submit any evidence that the soil conditions, shape or topography of the land are unique to the property and do not generally affect the zoning district in which it is located as is required by both the bylaw and G.L. c. 40A, § 10. In addition, the plaintiffs failed to submit any evidence that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter as is required by both the bylaw and G.L. c. 40A, § 10. The plaintiffs mere assertions that they met these requirements are not enough to meet their burden. The plaintiffs must show that all requirements for granting a variance were met and since they have not, the ZBAs decision is accordingly upheld. Kirkwood, 17 Mass. App. Ct. at 428 (Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal.).
Finally, I note also that even if the plaintiffs arguments and assertions were correct and they produced credible evidence to prove that their application met all of the requirements for the issuance of a variance, the ZBA would still be within its allowable discretion to deny the application. Bruno v. Bd. of Appeals of Wrentham, 62 Mass. App. Ct. 527 , 534 (2004). This is especially so given that [n]o person has a legal right to a variance and they are to be granted sparingly. Guiragossian, 21 Mass. App. Ct. at 115 (quoting Damaskos v. Bd. of Appeal of Boston, 359 Mass. 55 , 61 (1971)).
Miscellaneous Case No. 353057: The Plaintiffs Are Not Entitled to the Declaration They Seek
In the second case (Misc. 353057), the plaintiffs seek a declaration that the Premises can be legally occupied and used as a three-family dwelling in the Town of Braintree pursuant to the provisions of M.G.L. c. 40A, § 7 . . . . Complaint (Aug. 10, 2007). They contend that various building permits were issued and their use of the property of a three-family residence is in compliance with those building permits.
The plaintiffs failed to specify the statutory authority by which they seek such a declaration; however, since they ha[ve] not sought a determination as to the validity of the . . . zoning by-law or the extent to which the zoning by-law affect [their] proposed use of the premises, but rather a determination of the extent of [their] . . . permit, Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 , 763 (1985), the plaintiffs declaratory relief is available, if at all, pursuant to G.L. c. 231A. The defendant, however, claims that such relief is not available because the plaintiffs failed to exhaust their administrative remedies. Specifically, the defendant claims that the plaintiffs were required to appeal from the Building Inspectors cease and desist order pursuant to G.L. c. 40A, § 8 and since they did not, this court does not have jurisdiction over their declaratory action.
I find and rule that the plaintiffs were required to appeal from the Building Inspectors cease and desist order prior to seeking relief from the court. G.L. c. 40A, § 8. As the Supreme Judicial Court held, [a] proceeding for declaratory relief in itself does not operate to suspend the ordinary requirement that a plaintiff exhaust his administrative remedies before seeking judicial relief. While c. 231A was intended as remedial legislation, giving a party a new and additional procedure for resolving controversies, there is no indication that it was intended as an automatic substitute for administrative proceedings. [Note 12] East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444 , 450-51 (1973) (citations omitted); see also Clark & Clark Hotel v. Bldg. Inspector of Falmouth, 20 Mass. App. Ct. 206 , 212-13 (1985). So far as the record shows, the plaintiffs did not appeal from the Building Inspectors cease and desist order. Although the plaintiffs allegedly have complied with that order and have ceased using the property as a three-family residence, their arguments that, contrary to the Building Inspectors determination, they can permissibly use the property as a three-family property pursuant to G.L. c. 40A, § 7 had to be raised in an appeal from the order within thirty days from its issuance. [Note 13] G.L. c. 40A, §§ 8, 15; East Chop Tennis Club, 364 Mass. at 450-51; Clark & Clark Hotel, 20 Mass. App. Ct. at 212-13. Accordingly, this court cannot enter the declaratory judgment that the plaintiffs seek and their claims are hereby dismissed in their entirety. [Note 14]
For the foregoing reasons, the ZBAs decision denying the plaintiffs application for a variance is hereby upheld. The plaintiffs claims in 08 MISC 372846 thus are hereby DISMISSED, in their entirety, with prejudice. Also for the foregoing reasons, the plaintiffs claims in 07 MISC 353057 are hereby DISMISSED, in their entirety, with prejudice. Judgment shall issue accordingly.
Keith C. Long, Justice
Dated: 1 March 2010
[Note 1] Although Dana Junior is the only plaintiff in Misc. Case No. 372846 and Scott Junior is the only plaintiff in Misc. Case No. 353057, since the cases were consolidated (and for ease of reference), I will refer to them as the plaintiffs for both cases.
[Note 2] Crossed out of the application was convert existing space by adding. Ex. 16. It is unclear when the change was made and who made such change.
[Note 3] Again, the application was altered (when and by who is unclear). It originally stated that it was res. single and two fam. Id.
[Note 4] Mr. Reed was a trustee and/or representative of the trust before the board.
[Note 5] The board also noted that Mr. Reed admitted he drew in a garage on a certified plan that was prepared by Russell L. Peterson. Ex. 19.
[Note 6] Their application to the ZBA does not indicate the exact zoning relief that they sought. Ex. 30.
It is not clear whether the plaintiffs argue that a special permit was all that was necessary to allow them to continue using the property as a three-family residence. Their complaint refers to G.L. c. 40A, § 9, so I presume that they are making such an argument. However, it is clear from the relevant sections of the bylaw that a special permit would not enable them to continuing using the property as a three-family residence. First, as outlined in G.L. c. 40A, § 9, [z]oning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. (emphasis added). Here, the only residential uses in R-B and R-C Districts that are allowed by special permit are a two-family conversion and a lodging house. Clearly, the plaintiffs are not seeking to use the building as a lodging house. Further, the two-family conversion does not apply here. The bylaw defines a two-family conversion as [t]he change in use from single-family to two-family of any dwelling existing on June 18, 1940, which contains more than six rooms, exclusive of halls and bathrooms, provided that the living space of such building has not been enlarged during the ten-year period prior to application and will not be enlarged for a ten-year period subsequent to permitting a two-family use. Bylaw § 135-102. Since the plaintiffs are not attempting to convert a single-family dwelling to a two-family dwelling, that section is not applicable. Accordingly, a special permit is not the appropriate zoning relief.
It is also unclear whether the plaintiffs argue that Bylaw §§ 135-402 and 403 would allow them to extend or alter either the building structure or the use to a three-family residence (the complaint references §§ 135-402 and 403, but their brief only refers to those sections to argue that the lot [has] the benefit of the least restrictive zoning). Trial Memorandum of the Plaintiffs Scott A. Junior and Dana Junior at 15. The defendants brief, however, suggests that such an argument was made and I will accordingly address it briefly. I find and rule that the plaintiffs have failed to meet their burden of proving that those sections apply to either the building itself or the use of the property as a three-family residence. Section 135-402 states that the structure or use must have been existing and lawful at the time of the original adoption of the Towns Zoning Bylaw or the adoption of subsequent amendments. According to the parties submissions, the bylaw was adopted in 1940. It is undisputed that, at that time, there was a single-family house on the property. That structure was demolished in 1986 and, in its place, a two- or three-family building was constructed (the record is unclear as to exactly when the building first contained three, separate units, but the plaintiffs indicated that despite receiving a building permit for a two-family, Mr. Reed constructed three units, see Plaintiffs Trial Memorandum at 9-10). The parties have not provided the bylaw in effect in 1986 and, therefore, it is unclear whether the building complied with the bylaw requirements at that time or whether the use of it as a three-family residence complied with the bylaw at that time. The bylaw in the record reflects that the sections pertaining to multifamily dwellings, dimensional requirements, and permitted uses were amended in 2003, 2004, and 2006. Again, the parties failed to provide the court with any information regarding what those amendments were or whether such amendments would impact the analysis under §§ 402 and 403. Accordingly, the plaintiffs failed to prove, and I thus cannot find, that the building was a preexisting, nonconforming structure or use based upon the record before me. Bylaw § 135-102 (a nonconforming structure is defined as [a] building, structure or improvement which does not comply with the regulations for its zoning district but which complied with the zoning regulations at the time of its construction; a nonconforming use is defined as [t]he use of any building, structure or land, other than a sign, that does not conform to the regulations for its zoning district, provided that such use was in existence and lawful at the time the applicable provisions of this or prior zoning bylaws became effective.). Even if the plaintiffs arguments that G.L. c. 40A, § 7 protects the three-family use are correct, such protection would not result in the use being classified as a lawful use. Bruno v. Bd. of Appeals of Wrentham, 62 Mass. App. Ct. 527 , 536 (2004). Since I cannot find that either the structure or the use was nonconforming as defined by the bylaw, the plaintiffs have failed to prove that §§ 402 and 403 allow the use of the building as a three-family dwelling.
[Note 7] Bylaw § 135-601 indicates that an Apartment House is allowed in the R-C District. There is no entry for a Multifamily Dwelling in the Table of Principle Uses. An Apartment House is defined as a multiunit dwelling consisting of three or more families living independent of each other. Braintree Zoning Bylaws § 135-102. Dwelling, Multifamily is defined as A building designed and used for the living quarters for more than two families. Id. Accordingly, it appears that apartment house and multifamily dwelling are interchangeable terms within the bylaw. In any event, Bylaw § 135-705 explicitly notes that multifamily dwellings may be erected in Residence C . . . Districts. Minimum lot size shall be 43,560 square feet . . . ; minimum frontage shall be 100 feet; minimum open space shall be 2,000 square feet per dwelling unit. For Residence C . . . Districts the number of multifamily units to be allowed on site shall be determined as follows: 5,000 square feet for each one-bedroom or studio unit plus 1,000 square feet for each additional bedroom in each unit. The two-thousand-square-foot open space requirement is not in addition to the five-thousand-square-foot requirement.
[Note 8] The property contains approximately 18,493 square feet and has a frontage of approximately 102 feet. Stipulated Facts at ¶ 2. The parties did not indicate the exact lot width and depth, which are calculated in a very specific manner according to the bylaw. The Building Location Plan (Ex. 30) contains measurements; however, it is unclear whether these measurements correspond to the bylaws definitions of lot width and depth (and they likely do not precisely, see Ex. 43 at Appendix Sketch E). Since the parties have stipulated that the property does not conform to the minimum dimensional requirements for the R-C District, this omission is not material to this Decision.
[Note 9] To the extent that the property might meet the dimensional requirements of the R-B District (it is unclear whether it does based upon the record and the parties did not stipulate that it does), as noted above, a three-family residence is prohibited in the R-B District. Since use variances are not allowed under the bylaw and, as noted above (see n. 6, supra), a special permit is not appropriate, the dimensional variance is the only relief available to the plaintiffs. Braintree Zoning Bylaws § 135-407.D.
[Note 10] It also noted that the Board refused to reward the current owner for a previous owners disregard for the Towns Zoning By-laws. Such a reason for the denial may have been inappropriate; however, as discussed herein, such error was harmless since the plaintiffs have failed to prove they meet the requirements for issuing a variance. See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) (So long as any reason on which the board can fairly be said to have relied has a basis in the trial judges findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the boards action must be sustained regardless of other reasons which the board may have advanced. (citations and quotations omitted)). Further, it may have simply been a statement that the ZBA determined that granting a variance would have resulted in derogating from the intent or purpose of this chapter as outlined in Bylaw § 135-407. See Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 220 (1982) (denying a variance for the reason that it failed to comply with the bylaw section the applicants wanted to vary from may be taken as an expression that it considered a variance . . . to derogate from the intent and purpose of the zoning bylaw). I need not and do not decide this issue since there were permissible reasons for the ZBA to deny the zoning relief.
The plaintiffs also appear to argue that the hardship is due to the issuance of a building permit to install kitchen cabinets for unit three and the town failing to enforce its bylaws over the years. Whether or not that is the case, it is not a reason to grant a variance. See Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162-63 (1962) (The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and ordinance. . . . It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel.).
[Note 11] The real estate listing for the property indicated that the property was only permitted as a two-family. Ex. 40.
[Note 12] G.L. c. 231A, § 3 does provide an avenue by which the plaintiffs might have avoided the requirement to exhaust their administrative remedies. Specifically, it notes that [t]he failure to exhaust administrative relief prior to bringing an action under section one shall not bar the bringing of such action if the petition for declaratory relief is accompanied by an affidavit stating that the practice or procedure set forth pursuant to section two is known to exist by the agency or official therein described and that reliance on administrative relief would be futile. G.L. c. 231A, § 3. However, since the plaintiffs failed to produce such an affidavit, their failure to exhaust their administrative remedies bars this action.
[Note 13] The plaintiffs likewise might have been required to appeal from the Building Inspectors subsequent letter stating that [i]t should be understood that based on the occupancy of the property, Two Family Dwelling, as well as the finding of the Towns Zoning Board of Appeal (Aug. 22, 2006) this unit may not be occupied, rented or sold as an independent unit. Ex. 34.
[Note 14] Even if I were to reach the merits of the plaintiffs claims, I would find and rule that the plaintiffs have not sustained their burden of producing evidence to show that they are entitled to use the property as a three-family residence. Although there is a six year statute of limitations on use violations in G.L. c. 40A, § 7, it is not applicable unless the original structure was completed in accordance with the original building permit. Feuer v. Bd. of Appeals of Stoneham, 57 Mass. App. Ct. 1114 , 2003 WL 1524675, at *1 (March 25, 2003) (unpublished, emphasis added). The original building permit as identified in G.L. c. 40A, § 7 is the first permit issued with respect to a particular improvement of real property. Cape Resort Hotels, Corp. v. Alcoholic Licensing Bd., 385 Mass. 205 , 218 (1982). Here, it is undisputed that the original building permit (Building Permit No. 059) for the current residence only allowed a two-family home to be built. It is further undisputed that despite that building permit, the previous owner at some point constructed a three-family residence. Accordingly, the property has never been used in accordance with the terms of the original building permit and the use as a three-family residence is thus not protected by G.L. c. 40A, § 7. Moreis v. Bd. of Appeals of Oak Bluffs, 62 Mass. App. Ct. 53 , 58-61 (2004); Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 , 227-28 (1991); Feuer, 2003 WL 1524675, at *1.
The fact that a building permit was subsequently issued that permitted the installation of kitchen cabinets and facilities in a space identified as Unit 3 does not change this analysis. Moreis, 62 Mass. App. Ct. at 60-61 (The fact that a preexisting, unlawful, unpermitted use was incidentally described on an application to erect a fence does not, in our view, bring the unlawful use within the protection of § 7.). I agree with the defendants that such an application is not specific enough to indicate that the owner was changing the use of the property from a two-family to a three-family dwelling. Further, even if, as the plaintiffs argue, the Building Inspector was aware that the building was actually constructed as a three-family residence by virtue of the occupancy permit (a conclusion that is not necessarily supported by the evidence in the record since the occupancy permit is for a two-family dwelling), [t]he governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and ordinance. Ferrante, 345 Mass. at 163; see also Moreis, 62 Mass. App. Ct. at 61 n.8 (in substance, the result requested by Fenner would essentially result in the rezoning of land, or effect the grant of a variance. These matters are unambiguously entrusted by the Legislature to the town meeting and zoning boards of appeals, respectively.). The evidence is clear that there was never a building permit issued allowing either the plaintiffs or their predecessor to construct and use a three-family residence. Accordingly, even if the plaintiffs exhausted their administrative remedies, they have failed to produce evidence showing that they are entitled to use the property for a three-family residence pursuant to any statutory authority or the bylaw and this court would have to declare that they therefore are prohibited from doing so.