JAMES M. GIURLEO and ELAINE M. GIURLEO v. MICHAEL J. MCCUSKER, JOSEPH J. CROWLEY, and ROBERT J. ROSSI, as members of the TOWN OF WESTWOOD ZONING BOARD OF APPEALS; and BELLE SOLOWAY

Introduction

In this case, pursuant to G.L. c. 40A, § 17, plaintiffs James and Elaine Giurleo appeal from a decision of the defendant Town of Westwood Zoning Board of Appeals’ (the “ZBA”) decision granting defendant Belle Soloway a special permit to construct an accessory apartment addition to her single-family home. Ms. Soloway’s home, located at 109 Cobleigh Street, is a preexisting nonconforming structure. Since the proposed addition was determined by the town’s building inspector to increase the nonconformities of the property, special permits pursuant to §§ 4.4.3 (Accessory Apartments) and 4.5.6 (Special Permit for Nonconforming Uses and Structures) of the Zoning Bylaw of the Town of Westwood, Massachusetts (the “Bylaw”) were necessary. In two separate decisions, the ZBA granted Ms. Soloway the special permits. The plaintiffs timely appealed from the decision granting the special permit pursuant to Bylaw § 4.5.6. No appeal was taken from the § 4.4.3 decision. Subsequently, Ms. Soloway received a building permit and constructed the addition, recognizing that she did so at her own risk. G.L. c. 40A, § 11.

A trial was held before me, jury-waived, and a view was taken. Based on the agreed facts contained in the parties’ pre-trial memorandum, my observations at the view, the testimony and exhibits admitted into evidence at trial, the parties’ admissions in their post-trial memoranda, and my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the ZBA’s decision was neither arbitrary nor capricious and, accordingly, must be upheld. The ZBA’s decision is thus AFFIRMED and the plaintiffs’ claims are DISMISSED, in their entirety, with prejudice.

Facts

Defendant Belle Soloway applied for and received a special permit to construct an addition to her existing home for an accessory apartment. Ms. Soloway’s home, located at 109 Cobleigh Street in Westwood in a Single Residence A (“SRA”) district, is a preexisting nonconforming structure. In an SRA district, the minimum dimensional requirements include the following: a lot area of 12,000 square feet, a lot frontage of 90 feet, a lot width of 90 feet, a non-wetland area of 12,000 square feet, a front setback of 25 feet, a side yard setback of 15 feet, and a rear yard setback of 30 feet. Bylaw § 5.2.1 (Trial Ex. 22). The Bylaw also has a maximum building coverage requirement of 25 percent. Id. Ms. Soloway’s property, however, only contains 9,849 square feet and does not conform to the minimum lot area, lot frontage, lot width, and non-wetland area requirements. [Note 1] It also appears, based upon plans submitted into evidence, that Ms. Soloway’s originally existing home also was nonconforming with respect to minimum side yard setback requirements. [Note 2]

Ms. Soloway applied for a building permit to construct the addition (an apartment intended for her elderly father). The plot plan filed with the application indicated that the proposed apartment would be constructed along the boundary line between Ms. Soloway’s and the plaintiffs’ properties – varying in distance from that line between 3.6 and 3.9 feet. That application was denied by the building inspector because he believed that the addition required special permits under Bylaw §§ 4.4.3 (Accessory Apartments) and 4.5.6 (Special Permit for Nonconforming Uses and Structures). Based upon that determination, Ms. Soloway filed an application with the ZBA seeking special permits under Bylaw §§ 4.4.3 and 4.5.6. [Note 3]

A hearing on Ms. Soloway’s application was held on June 21, 2006, at which the plaintiffs testified in opposition to the proposal. In two separate decisions, the ZBA granted Ms. Soloway’s special permits. [Note 4] In its decision regarding the nonconforming structure, the ZBA indicated that the applicable sections of the Bylaw included §§ 4.5.3 (Nonconforming Structures), 4.5.4 (New or Expansion of Nonconformity), and 4.5.6 (Special Permit). Those sections of the Bylaw provide for the following:

4.5.3 Nonconforming Structures. The Board of Appeals may grant a special permit to reconstruct, extend, alter or change a nonconforming structure in accordance with this Section only if it determines that such reconstruction, extension, alteration or change shall not be substantially more detrimental than the existing nonconforming structure to the neighborhood. The following types of changes to nonconforming structures may be considered by the Board of Appeals:

4.5.3.1 Reconstructed, extended or structurally changed.

4.5.3.2 Altered to provide for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.

4.5.4 New or Expansion of Nonconformity. The reconstruction, extension or structural change of a nonconforming structure in such a manner as to increase an existing nonconformity, or create a new nonconformity, including the extension of an exterior wall at or along the same nonconforming distance within a required setback, shall require the issuance of a special permit from the Board of Appeals.

4.5.6 Special Permit. In the event that the Building Inspector determines that the nonconforming nature of such structure would be increased by the proposed reconstruction, extension, alteration or change, the Board of Appeals may, by special permit, allow such reconstruction, extension, alteration or change where it determines that the proposed modification will not be substantially more detrimental to the neighborhood than the existing nonconforming structure.

Bylaw §§ 4.5.3, 4.5.4, & 4.5.6.

In reaching its decision, the ZBA made the following findings:

1. The Petitioner proposes to construct an addition to the right rear section of the house located at 109 Cobleigh Street. The addition would be used as an Accessory Apartment for the applicant’s elderly father. The addition will consist of a living and kitchen area, bedroom, and full bathroom. The project will require a special permit pursuant to Section 4.5.6 because the lot area is non-conforming. The Board of Appeals is the Special Permit granting authority.

2. The side yard setback of the existing garage section of the house, to which the accessory apartment will be attached, is 11.0 feet from the lot line tapering to 10 feet in the back. The addition will be at 3.9 feet from the lot line tapering to 3.6 feet in the rear.

3. There is a fence between the Petitioner’s property and the abutter to the right facing the side of the property. The side windows of the proposed structure will be set at such a height that they will not interfere with the privacy of the abutter. The proposed accessory apartment will have a height of less than fifteen (15) feet.

4. A letter signed by twenty-five neighbors and abutters of the Petitioner, and support the request for a special permit to build an Accessory Apartment was submitted to the Board.

5. Any adverse affects of the Petitioner’s proposed construction will not outweigh its beneficial impact to the Town, or the neighborhood, in view of the particular characteristics of the site and the proposal in relation to that site. The proposed addition will be situated so that it is minimally visible from the street.

6. The Petitioner’s proposed construction will not have a material adverse effect on the value of the land and buildings in the neighborhood, or on the amenities thereof, or be detrimental to the normal use of the adjacent property, and it will not be injurious or dangerous to the public health or hazardous because of traffic congestion, or other reason, and any adverse effects of the proposed use do not outweigh its beneficial aspects, all in view of the particular characteristics of the site and of the proposal in relation to that site.

7. The Petitioner has met all the requirements for a Special Permit pursuant to the Westwood Zoning Bylaw. [Note 5]

Trial Ex. 14B at 2-3. Based on these findings, the ZBA unanimously voted to grant the special permit and allowed the construction of the accessory apartment so long as, among other conditions, it was “constructed in strict conformity with the submitted plan entitled ‘Renovations and Additions to the Soloway Residence’, consisting of two (2) pages, prepared by Ira Rakatansky . . . and the submitted plot plan . . . .” Id. at 3.

The plaintiffs timely appealed from the ZBA’s decision regarding the special permit for the nonconforming structure. Subsequently, Ms. Soloway was granted a building permit and construction began in accordance with G.L. c. 40A, § 11 (allowing construction even when a decision is appealed, but noting that “[t]he person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone.”). Construction for the apartment was completed and the town subsequently issued an occupancy permit on November 2, 2006. As constructed, the addition is located 16 feet from the rear lot line and between 3.4 and 4.2 feet from the side lot line adjacent to the plaintiffs’ property. Trial Ex. 6.

At trial, Ms. Soloway and Mr. Giurleo testified. In addition, Thomas C. Houston (an engineer) and Richard Kattman (a landscape architect) were called by Ms. Soloway to offer expert testimony and Elizabete Fekete (a real estate appraiser) was called by the plaintiff to offer expert testimony. Relevant details of their testimony, as well as other pertinent facts, are included in the analysis section below.

Analysis

Standing

Ms. Soloway challenged the plaintiffs’ standing to bring this action. Standing is a jurisdictional prerequisite. Marashlian v. Zoning Bd. of Newburyport, 421 Mass. 719 , 721 (1996). Only a “person aggrieved” has standing to challenge a decision of the board. G.L. c. 40A, § 17; Marashlian, 421 Mass. at 721 (and cases cited therein). In order to obtain standing, a plaintiff must “assert[] a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). The injury claimed by the plaintiff must also be “legitimately within the scope of the zoning laws.” Marashlian, 421 Mass. at 722; Circle Lounge & Grille v. Bd. of Appeal of Boston, 324 Mass. 427 , 430-31 (1949).

As abutters to Ms. Soloway, the plaintiffs “enjoy a rebuttable presumption that they are ‘persons aggrieved.’” Marashlian, 421 Mass. at 721. Even if the defendants submitted sufficient evidence to rebut that presumption, [Note 6] it is clear from the record that the plaintiffs have “suffer[ed] some infringement of [their] rights.” Marashlian, 421 Mass. at 721. Specifically, the plaintiffs allege that due to the “looming” apartment building being constructed within three feet of their property line, they have suffered because of a decrease in privacy, decrease in their property value, and an increase in noise and artificial lights shining into their residence.

These alleged injuries clearly relate to “density interests protected by applicable zoning laws.” Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8 , 12 (2009). The Bylaw states that its requirements (which include density regulations) were “enacted to promote the general welfare of the Town, to protect the health and safety of its inhabitants, to encourage the most appropriate use of land throughout the Town, to preserve the cultural and historical heritage of the community, to protect the natural environment, to increase the amenities of the Town and to reduce the hazard from fire by regulating the location and use of buildings and the area of open space around them . . . .” Bylaw § 1.1. Accordingly, the plaintiffs’ injuries related to density fall within the purpose of the Bylaw. Without question, Ms. Soloway’s apartment addition increased the nonconformities of her property since the addition to the building is located 3.6 feet from the side yard lot line, 16 feet from the rear lot line, and it now violates maximum building coverage (the total lot coverage is now 27.4% and the maximum coverage is 25%). [Note 7] Ex. 21 at 8, ¶¶ 9, 11, 12. As the Appeals Court has ruled, “crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.” Sheppard, 74 Mass. App. Ct. at 12 (quoting Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008)). The trial testimony and exhibits admitted into evidence (as also confirmed by my observations on the site view) clearly revealed that the addition, built so close to the plaintiffs’ property line, has a significant impact on the plaintiffs’ property and constitutes a harm sufficient to provide standing. [Note 8] See, e.g., Exs. 16B-G.

Review of the ZBA’s Decision Pursuant to G.L. c. 40A, § 17

In a G. L. c. 40A, § 17 appeal, the court is required to hear the case de novo, make factual findings, and determine the legal validity of the ZBA’s decision based upon those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court “gives no evidentiary weight to the board’s findings.” Roberts, 429 Mass. at 486 (citing Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court’s “function on appeal,” based on the facts it has found de novo, is “to ascertain whether the reasons given by the [ZBA] 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, 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, 429 Mass. at 486 (citations omitted). In determining whether the decision was “based on a legally untenable ground,” the courts must determine whether it was decided on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted). In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential.” Id. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted); Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 732 (2005) (same), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass. App. Ct. at 73, deference is not abdication; the board’s judgment must have a sound factual basis. Britton, 59 Mass. App. Ct. at 74-75 (to be upheld, the board’s decision must be supported by a “rational view of the facts”). If the ZBA’s decision is found to be arbitrary and capricious, the court should annul the decision. See, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). If it is not, it must be upheld. Roberts, 429 Mass. at 486. Here, the ZBA’s decision is not arbitrary and capricious and must be upheld.

Under certain circumstances, the Bylaw allows for “[t]he reconstruction, extension or structural change of a nonconforming structure in such a manner as to increase an existing nonconformity, or create a new nonconformity, including the extension of an exterior wall at or along the same nonconforming distance within a required setback . . . .” Bylaw § 4.5.4. Specifically, “[i]n the event that the Building Inspector determines that the nonconforming nature of such structure would be increased by the proposed reconstruction, extension, alteration or change, the Board of Appeals may, by special permit, allow such reconstruction, extension, alteration or change where it determines that the proposed modification will not be substantially more detrimental to the neighborhood than the existing nonconforming structure.” [Note 9] Id. at § 4.5.6. Accordingly, I must determine whether, in light of the facts found de novo, the ZBA’s determination that the apartment addition was not substantially more detrimental to the neighborhood was arbitrary and capricious.

Based on the evidence and testimony at trial, I find that the ZBA’s determination was not arbitrary and capricious. While the plaintiffs obviously are impacted by the size and location of the addition, [Note 10] there is little to no impact to the neighborhood. [Note 11] Indeed, even the plaintiffs’ own expert, Ms. Fekete, testified that the addition did not have a “significant negative impact” on the property values in the neighborhood. Trial Transcript at 190. Similarly, Ms. Soloway’s witnesses testified that the addition is consistent in style and size to both the primary residence and to the neighborhood in general. Ms. Soloway’s home still has the appearance of a single-family home and, indeed, the addition can barely be seen from Cobleigh Street (the view from the neighborhood’s perspective). There also was no testimony to indicate that the addition will add undue traffic congestion to the neighborhood roads, [Note 12] would negatively impact the environment, or would negatively impact the health and welfare of the neighborhood.

Furthermore, even Mr. Giurleo defined the “neighborhood” of Ms. Soloway’s property to be different from that of his own. Specifically, he noted that “I have a school across the street. . . the neighborhood is much less dense, fewer people. Gay Street is a busier street, so it’s a different neighborhood than the Cobleigh Street neighborhood. . . . Because of the lot sizes, the houses are closer together on Cobleigh Street as they are on Gay Street.” Trial Transcript at 270. Accordingly, even if the impact to the plaintiffs’ property was enough to rise to the level of being “substantially more detrimental” to their neighborhood (the Gay Street area) (a determination that I need not and do not make), such impact is not “substantially more detrimental” to the relevant neighborhood (the Cobleigh Street neighborhood) for purposes of evaluating the special permit decision pursuant to Bylaw § 4.5.6.

Finally, while both the plaintiffs and their witnesses opined that the addition did not blend in with the character of the neighborhood and even if I might have come to a different conclusion than the ZBA did, the ZBA’s view is a reasonable one. As noted above, it is the ZBA’s evaluation of the seriousness of the problem and the ZBA’s determination of the impact to the neighborhood to which deference is owed. Barlow, 64 Mass. App. Ct. at 321; Britton, 59 Mass. App. Ct. at 73; see also Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481 , 490-91 (2009) (Green, J., concurring) (noting that “the board’s further finding that the new house is not substantially more detrimental to the neighborhood concludes the matter . . . . [and] puts to rest any lingering question concerning the validity of its approval of the proposed new house” and further stating that “the board’s finding of no substantial detriment . . . is one to which we extend substantial deference – far more than the deference owed to the board’s interpretation of the ordinance.”). Evidence submitted at trial supports the ZBA’s conclusion and indicates that the ZBA was neither arbitrary nor capricious in issuing the special permit. Therefore, the decision must be upheld. [Note 13]

Conclusion

For the foregoing reasons, the ZBA’s decision granting Ms. Soloway a special permit pursuant to Bylaw § 4.5.6 is neither arbitrary nor capricious and is hereby AFFIRMED. The plaintiffs’ claims are accordingly DISMISSED, in their entirety, with prejudice. Judgment shall issue accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 9 April 2010