LAURENCE SCHIFFENHAUS, J. ANTON SCHIFFENHAUS, ALAN SOLOMONT, and SUSAN LEWIS SOLOMONT v. DONALD KLINE; DUANE P. LANDRETH as he is Trustee of the Stephens Way Nominee Trust; and KEITH ALTHAUS, NORMAN POPE, ARTHUR F. HULTIN, JR., MARINNA MATRICARDI, JANICE ALLEE, ALAN EFROMSON, and PERKEL BERTRAM, as they are Members of the TOWN OF TRURO BOARD OF APPEALS

The plaintiffs in this case, Laurence Schiffenhaus, J. Anton Schiffenhaus, Alan Solomont, and Susan Lewis Solomont (collectively, “Plaintiffs”) filed a complaint seeking, under G.L. c. 40A, §17, judicial review of a decision (“Decision”) of the Zoning Board of Appeals (“Board”) of the Town of Truro, whose members are defendants. The challenged Decision of the Board was dated August 18, 2008 and filed with the Town Clerk on August 19, 2008. In the Decision, the Board upheld the decision of the Building Commissioner of the Town of Truro to issue a building permit to defendant Donald Kline [Note 1] (together with his trustee, “Kline”), for work on the property known as 25-27 Stephens Way in Truro, Barnstable County, Massachusetts (“Kline Property”).

The challenged building permits were issued on May 27, 2008 by the Building Commissioner to allow Kline to convert what was, at the time, a single-family residential structure (“Kline Studio”) which was a preexisting, nonconforming structure under G. L. c. 40A, § 6, into a “Habitable Studio,” an accessory use defined under the Zoning Bylaw of the Town of Truro (“Bylaw”). The permits also allowed Kline to construct a new single-family home as the principal use of the Property.

The Plaintiffs appealed the issuance of the permits to the Board, which after hearing upheld the Building Commissioner’s issuance of the permits. On September 5, 2008, Plaintiffs filed in this court their unverified complaint seeking review of the Decision of the Board. Notwithstanding the commencement of this action, Kline broke ground and commenced his construction project (“Kline Project”). On October 23, 2008, counsel for all parties appeared for a case management conference, at which I cautioned counsel for Kline that he proceeded with construction at his own risk, being fully aware of the pending challenge.

On March 23, 2009, Kline filed his motion for summary judgment with supporting memorandum and appendices. The opposition of the Plaintiffs, with supporting memorandum and appendices, was filed on May 12, 2009. On May 29, 2009, Kline filed his reply brief. The parties, by their counsel, then argued the motion, on which I now rule.

* * * * *

The following facts are supported by the record and appear without material dispute.

1. The Kline Property is located in a residential district in Truro in which minimum lot size is 33,750 square feet, minimum frontage is 150 feet, and an owner is permitted to have both a single-family residence, and a “habitable studio,” as that term is defined in the Bylaw (see the definition is reproduced below).

2. The Kline Property comprises 9.11 acres of upland, fronts on Stephens Way for about 317 feet, and is shown on a plan titled “Consolidation Plan of Land in Truro made for The Stephens Way Nominee Trust, Scale 1" = 50', June 12, 2007, Slade Associates, Inc., Registered Land Surveyors, Rt. 6 & Pine Point Road, Wellfleet, MA 02667,” and recorded with the Barnstable County Registry of Deeds (“Registry”) at Plan Book 618, Page 79 (Kline Plan”).

3. Plaintiffs Laurence Schiffenhaus and J. Anton Schiffenhaus are the owners of the property located at 30-31 Stephens Way in Truro, which is shown as “Parcel A” on a plan titled “Subdivision Plan of Land in Truro made for the Josephine Hopper Estate, Scale 1 in. = 40 ft., Aug, 1970, W. G. Slade, Surveyor, Truro, Mass.,” and recorded with the Registry at Plan Book 245, Page 81 (“Josephine Hopper Plan”).

4. Plaintiff Alan Solomont is the owner of property located at 34-35 Stephens Way in Truro, shown as “Parcel B” on the Josephine Hopper Plan.

5. Plaintiff Susan Lewis Solomont is the owner of property located at 37 Stephens Way in Truro, which is shown on a plan titled “Plan of Land in (So.) Truro made for Charles Francis, Scale 1in. = 50ft., Oct., 1993, Slade Associates, Inc., Reg. Land Surveyors, Rt. 6 & Pine Pt. Rd., Wellfleet, MA 02667,” and recorded with the Registry at Plan Book 500, Page 85 (“Francis Plan”).

6. Stephens Way provides access to and from the Kline Property, and the land of the Plaintiffs, to the public way, Fisher Road. Stephens Way is shown the Francis Plan and the Josephine Hopper Plan as a forty-foot private way.

7. On November 20, 2008, soon after this litigation began, Kline recorded, at Plan Book 627, Page 99 of the Registry, a plan titled, “Plan of Land in Truro made for The Stephens Way Nominee Trust, Scale 1" = 50', October 1, 2008, Slade Associates, Inc., Registered Land Surveyors, Rt. 6 & Pine Point Road, Wellfleet, MA 02667,” which was endorsed by the Truro Planning Board as “approval not required” under the Subdivision Control Law (“ANR plan”). The ANR plan increased, on paper, the width of Stephens Way from twelve feet to forty feet as it crosses the Kline Property, so that, again on paper, it connects with what is shown as a forty-foot way on the Francis Plan and the Josephine Hopper Plan.

8. Despite what is shown on the various plans, Stephens Way is in fact a dirt road with widths varying between nine feet and twelve feet.

9. The Plaintiffs’ lands lie further from Fisher Road than the Kline Property; to reach their houses from Fisher Road, the Plaintiffs must travel over that portion of Stephens Way which crosses the Kline Property.

10. The Plaintiffs are all either abutters to the Kline Property, or abutters to abutters within 300 feet.

11. The section of the Truro Zoning Bylaw titled “Section 10.4. Definitions” provides the following relevant definitions:

Accessory Use. A use customarily incidental to and subordinate to the principal use or building and located on the same lot with such principal use or building. In zoning districts restricted to residential use, a professional office located within or adjacent to the residential premises or a home occupation so located constitutes an accessory use.

Alteration. Any construction, reconstruction or related action resulting in a change in the structural parts, height, number of stories, exits, size, use or location of a building or other structure or any other related change.

Habitable Studio. A Habitable studio shall consist of one or more bedrooms, with or without bathroom facilities, in a building detached from the principal residence, which is incidental and accessory to the principal residence and which does not include kitchen facilities. A room identified as a bedroom will be included in considerations under the State Environmental Code, Title 5.

Lot Frontage. That portion of a lot fronting upon and having access to a street. Lot frontage shall be measured continuously along the front lot line along one street between side lot lines or, in the case of corner lots, between one side lot line and the mid-point of the corner radius.

Lot, Nonconforming. A lot lawfully existing at the effective date of this bylaw or any subsequent amendments thereto, which is not in accordance with all provisions of this bylaw.

Street. A public or private way which affords access to abutting property. For the purposes of this bylaw, the terms “street”, “road”, “way”, and “road right-of-way” bear the same meaning. When a street(s) is to be used for lot frontage, the street(s) shall conform to the requirements of the Town of Truro Subdivision Regulations, Section IV, Design Standards, (b), (c), & (d) as they existed on January 1, 1989[.]

Use, Nonconforming. A use lawfully existing at the time of adoption of this bylaw, or any subsequent amendments thereto, which does not conform to one or more provisions of this bylaw.

12. The section of the Bylaw captioned “Section 30.7. Nonconforming Uses” provides the following, in relevant part:

A. Continuance. So long as structures or uses were lawfully constructed or begun, and lots were created lawfully, such structures or uses may continue to be used in the same manner and for the same purposes despite contrary provision of this bylaw. Lawful, pre-existing, nonconforming uses and structures may, when a variance would otherwise be required, be altered or extended with a special permit if the Board of Appeals finds that the alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure and that the alteration or extension will exist in harmony with the general purpose and intent of this bylaw.

B. Repairs, alterations. If the Building Commissioner determines and finds that the proposed repair, reconstruction, alteration, or structural change of a pre-existing, nonconforming, single-family or two-family residential structure will not increase the nature or extent of the nonconformity, then the Building Commissioner may approve and issue a building permit for the proposed repair, reconstruction, alteration, or structural change.

13. Under the 1989 Truro Subdivision Regulations, the minimum width for a street is forty feet.

14. The Kline Project contemplates constructing as the principal use, a single-family home with approximately 6,800 square feet of floor area. The location of the new house is proposed to be about 200 feet away from the long-standing Kline Studio.

15. The Kline Project contemplates removing the kitchen from the Kline Studio to comply with the Bylaw provisions governing “habitable studios.”

DISCUSSION

The Plaintiffs argue that the Building Commissioner should not have issued the building permits because the Kline Project is the kind of expansion of a preexisting nonconforming structure that requires, if not a variance, at least a special permit supported by a finding by the Board that the “alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure and that the alteration or extension will exist in harmony with the general purpose and intent of this bylaw.” Kline responds that the Building Commissioner properly determined the Project was an “alteration” under the indulgent language of Truro’s Bylaw, and the Project is not an “expansion” of the nonconformity of the kind which would require a special permit. In the alternative, Kline argues that, as a result of the ANR plan, the Kline Property is no longer nonconforming because Stephens Way now is forty-feet wide as it crosses the Kline Property.

The Plaintiffs argue that, given their proximity to the Kline Property, they are vested with a presumption of standing, and that, in any event, they are “persons aggrieved” because the Kline Project will diminish their views, diminish the value of their property, and exacerbate the “unsafe and inconvenient” conditions on Stephens Way, which Plaintiff must use to reach their homes. Kline argues that impairment of view is not a protected interest under the Truro Zoning Bylaw, and that, untethered to a protected interest, diminution in property values is a harm incapable of conferring the requisite aggrievement. Kline further argues that Plaintiffs have no basis to expect that the Kline Project would have an impact on Stephens Way, rendering the arguments of the Plaintiffs too speculative to confer standing.

1. The Plaintiffs Have the Requisite Standing to Maintain this Action.

Under G. L. c. 40A, § 17, only “persons aggrieved” have standing to appeal a decision of a zoning board of appeals. If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term “person aggrieved” is not to be narrowly construed, the plaintiff’s injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be “special and different from the concerns of the rest of the community”); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest”). In addition, the injury claimed by the plaintiff also must be “legitimately within the scope of the zoning laws.” Marashlian, 421 Mass. at 722.

There is an initial presumption that an individual who is entitled to notice of board hearings is a “person aggrieved,” [Note 2] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-04 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff “must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided “must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of “credible evidence,” the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. “Conjecture, personal opinion, and hypothesis” are insufficient. Butler, supra, at 441.

If a plaintiff in an appeal pursuant to G. L. c. 40A, §17 enjoys (as do the Plaintiffs in the case before the court) a presumption of standing, the presumption is sufficient to take away the question of aggrievement from those the court must try–unless and until the defendant, by proper evidentiary material, places the plaintiff’s standing in controversy. If there is in the record on summary judgment nothing, in proper evidentiary form, that would support a conclusion, by the trier of fact, that the plaintiff lacks particularized aggrievement, then the presumptive plaintiff, relying on the intact presumption, may have the court reach the merits of his judicial appeal. Where the zoning by-law or ordinance in question creates or defines a protected interest in views from the plaintiff’s land, then impairment of that protected interest may be a basis for aggrievement. See Martin v. Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-47 (2001) (“A defined protected interest may impart standing to a person whose impaired interest falls within that definition.”); Sheehan v. Board of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005) (holding “by-law created additional protected . . . harbor view . . . interests sufficient” for standing); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 689 (1994) (“[P]laintiffs’ expressed concern with visual impact might be dismissed as aesthetic sensitivity insufficient to impart standing, . . . were it not for the specific provisions of the Plymouth zoning by-law.”).

Here, even with the benefit of a presumption, the Plaintiffs cannot claim to be aggrieved by impairment of view. I specifically reject the Plaintiffs’ argument that the Truro Local Comprehensive Plan, which is referenced in Section 10.2 of the Truro Zoning Bylaw, creates a protected zoning interest. [Note 3] For this reason, Plaintiffs cannot tether their alleged diminution in value to an impairment of their view, because loss of view is, by itself, an unrecognized ground for aggrievement in a zoning appeal and the locally adopted zoning law confers no special status upon views. It would be an unfair backdoor method of proving aggrievement if diminution of value attributable to a harm not within the sphere of zoning protection were an acceptable basis for showing zoning appeal aggrievement. [Note 4]

The result is different when considering the impact of the Kline Project on the vehicle traffic on Stephens Way. In their complaint, the Plaintiffs specifically alleged that the Kline Project would “increase traffic and exacerbate the unsafe conditions on Stephens Way, interfere with the ability of emergency vehicles to access the [P]laintiffs’ properties, and interfere with the Easement that the plaintiffs have over the Kline Property and rely upon for safe access to their properties.” These are valid zoning concerns, particularly in the case here, where the Kline Property suffers from a deficiency in the quality of the road used for access and frontage. Kline has introduced nothing in the form of evidence that rebuts the presumption of standing on the issue of traffic.

A defendant does not need expert evidence to challenge every speculative injury raised by plaintiffs. Standerwick, 447 Mass. at 37. Kline’s legal arguments, even in the absence of expert evidence, were sufficient to defeat the Plaintiffs’ claims of aggrievement based on diminution in the values of their properties as a result of impairment of view, see supra. But it is a different matter where the ground of aggrievement asserted is a proper one. Where the factual question is appropriately before the court--where the court needs to establish whether or not there has been harm in fact to plaintiffs’ protected interest-- there is a need for defendants to come forward with that evidence. If the evidence is of the type which only an expert can offer, then the evidence must originate with an an expert. For claims of aggrievement like those based on the level, degree, and impact on Plaintiffs of traffic on Stephens Way which will harm them, it is not sufficient for Defendants simply to deny the Plaintiff’s allegations. Standerwick, 447 Mass. at 37. The ground of aggrievement is a proper one. The Plaintiffs ride in on their presumption. In this case, because Kline has submitted no evidence, certainly no expert evidence, that the project will not exacerbate traffic problems on this constrained, narrow, twisting road over which the Plaintiffs need to pass, the Plaintiffs’ presumption of aggrievement continues because it goes unchallenged.

The Plaintiffs filed with their opposition an affidavit and a report from a traffic engineer, Shaun Kelly, which is the subject of a Motion for Discovery Sanctions filed by Kline, that asks me to strike the Plaintiffs’ expert affidavit and report because the expert, and the substance of his affidavit, was not disclosed in response to an interrogatory pursuant to Mass. R. Civ. P. 26(b)(4)(A)(i). The Plaintiffs argue that a response to this interrogatory was not required because, as the Plaintiffs enjoyed the statutory presumption of standing, they were not required to offer any evidence of their aggrievement until adequately challenged by Kline.

Standerwick expressly anticipates that a “developer may rebut a presumption of standing by seeking to discover from such plaintiffs the actual basis of their claims of aggrievement.” 447 Mass. at 37. I am troubled by the fact that the Plaintiffs, when faced with expert interrogatories requesting factual support for their claim of standing, would not disclose an expert they had already retained. However, in this case I can discern no concrete harm from the lack of disclosure, because the Plaintiffs have standing based on their presumption alone. The Plaintiffs did not need to offer any evidence, expert or otherwise, to support their standing. It was the responsibility of Kline to come forward with evidence showing a lack of aggrievement on Plaintiffs’ part, something Kline elected not to do. With or without the challenged expert affidavit from the Plaintiffs, it is Kline who has the burden of putting in evidence tending to show the absence of harm, on traffic issues, the Plaintiffs will sustain.

Although I decline to strike the challenged materials from the record, they do not form the basis for any of my rulings on standing; I did not rely on the affidavit or report of Mr. Kelly in any part of this decision. I do not – and do not need to – rely on any of the statements subject to the motion to strike in determining that the Plaintiffs possess standing because of the Stephens Way traffic issues on which they ground their aggrievement. Standing has not been cast into question on the issue of traffic and the adverse effect of the project on Plaintiffs’ use of Stephens Way, and the Plaintiffs do have the requisite standing to enable the court to reach the merits of their appeal. There are other grounds advanced by the Plaintiffs, and contested by Kline, for Plaintiffs’ standing, but I need not reach them, inasmuch as I have concluded that Plaintiffs do have standing. (I note only parenthetically as to one of the remaining issues, that I conclude as a matter of law that concerns by Plaintiffs over the cultural importance of the so-called “Hopper landscape” said to be affected by the Kline project lie outside the scope of concern of zoning and municipal land use regulation.)

Having concluded that I have before me plaintiffs with the requisite standing under G. L. c. 40A, § 17, I now proceed to address Kline’s arguments on whether this case is moot.

2. Mootness and the ANR plan

Kline contends that the project he has underway, the one which the permits challenged by Plaintiffs authorize, is lawful under current zoning except for the fact that his land, which gains its access and zoning frontage from Stephens Way, lacks the currently required frontage on a qualifying street or way. To address this, Kline had prepared and recorded, on November 20, 2008, after this case began, the ANR plan. It depicts Stephens Way as having forty-feet in width along the frontage of the Kline lot, and so, in Kline’s view, brings his lot into zoning compliance. As a result, Kline argues that the abutters’ appeal now before this court is moot. Kline argues that even if the decision of the Board to uphold the issuance of the building permits is overturned, the ANR plan creates a separate and independently sufficient entitlement to the permits. In effect, Kline says, the project is now one able to proceed (and entitled to building permits) as of right. Thus, argues Kline, I need not decide the zoning appeal, because a judgment in favor of the Plaintiffs would have no effect. While Kline might be correct that, in appropriate cases, a physical change to land may moot a zoning appeal, as where the physical change removes a disqualification of the land for certain rights under the zoning bylaw, that is not at all what is going on in this case.

I note at the outset that no appeal from the ANR endorsement is before me, the validity of the ANR endorsement is not before the me, and I express no opinion on the validity except to assume for purposes of this case that the plan is valid, only to determine what effect, if any, the recording of the plan has on the current zoning appeal.

A plan that does not show a subdivision does not need the approval of the Planning Board; and is entitled to an endorsement from the Board certifying “Approval Not Required” or “ANR.” G. L. c. 41, s. 81P. When a plan shows division of land into two or more lots, each with the amount of frontage required by zoning on an adequate “way,” it generally does not create a “subdivision.” See Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 396 (2000). There are, in G. L. c. 41, § 81L, three types of “ways” that can provide the kind of frontage that will exempt a division of land from the definition of a “subdivision” and entitle a plan to ANR endorsement. They are:

(a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

A Planning Board can engage in some limited review of what constitutes an adequate way for ANR endorsement, particularly under § 81L(c), but that review is limited to whether the way falls into the “‘could be better but manageable’ category [or] the ‘illusory’ category.” 48 Mass. App. Ct. at 400. The Board is not to withhold its endorsement unless the frontage is “illusory.” Id. Thus, when an ANR plan shows lots ostensibly fronting on a “way,” but with frontage that is illusory, the Board may withhold its endorsement. A “paper street” – one which appears on a plan, even one recorded in the Registry of Deeds, but which has never been constructed – is an example of illusory frontage. See Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 151-52 (1983) (holding frontage roads must “in fact exist on the ground”).

A Planning Board may not refuse to endorse an otherwise valid ANR plan because the lots shown on the plan do not comply with zoning. Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 (1980). An ANR endorsement “carries no implication that the subject lots comply with zoning[.]” Perry, 15 Mass. App. Ct. at 157. Even approval of a definitive subdivision plan cannot establish compliance with zoning. See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 (1981). In Arrigo, the planning board, pursuant to G. L. c. 41, s. 81R, waived compliance with the zoning code’s requirement that all lots have 200 feet of frontage, and approved a definitive subdivision plan showing lots with 186.71 feet of frontage. Id. The Appeals Court held that the waivers were valid for approval of the subdivision, however, the approved subdivision did not impart zoning compliance to the lots. That required a variance (which had been applied for and denied) for the lots on the plan to become buildable. Id. The Arrigo court reasoned that “There is no sound reason why the approval of a plan under the Subdivision Control Law . . . should preclude a building inspector or board of appeals from performing their statutory duties of requiring adherence to the town’s zoning by-law . . . as a condition of buildability.” Id. at 808-09.

The case of Corrigan v. Zoning Bd. of Appeals of Brewster, 35 Mass. App. Ct. 514 (1993), further appellate review denied, 416 Mass. 1109 (1993), specifically addressed the interplay between frontage for ANR endorsement and frontage for zoning purposes. In Corrigan, the planning board endorsed an ANR plan showing frontage on an “existing travelled [sic] surface” implicitly making a determination that the way on the plan fell within § 81L (c) [Note 5]. 35 Mass. App. Ct. at 516-17. Subsequently, the building inspector denied a building permit based on deficiencies in the same frontage. The Appeals Court reasoned that while “[p]revious decisions of this court . . . have repeatedly pointed out that a § 81P endorsement does not give a lot any standing under the zoning by-law,” id. at 518, where “the subject regulated is the same for both the Subdivision Control Law and the [local] zoning by-law (the requirement that the lot have frontage on a ‘street’), the criteria for a ‘street’ are the same for both . . . , and the agency empowered to make that determination is the same,” id. at 519, “it is wasteful, if not silly, not to extend [the ANR determination] to the resolution of the same issue by the same board applying the same criteria[.]” Id. at 518.

Here, the Truro Zoning Bylaw requires frontage on a forty-foot way, and Stephens Way, on which the Kline property fronts, is only twelve-feet wide. Kline received endorsement of an ANR plan [Note 6] that, on paper, increases the width of Stephens Way from twelve feet to forty feet as it runs along the Kline property, and argues that, as a result, his lot is no longer nonconforming.

Truro does not define “street” or “frontage” in its Zoning Bylaw with reference to § 81L. If it did, then following the logic of Corrigan, an ANR endorsement could be relevant if not determinative of zoning compliance, because the town would apply the same standard in both instances. Here, however, the definition of “street” in the Truro Bylaw explicitly calls for a width of forty feet, it does not, like § 81L (c), allow for a determination of “sufficient width, suitable grades and adequate construction.” If it did, then perhaps a forty-foot layout that is only built out to twelve feet would be adequate, as it might be under § 81L (c). As it is, I cannot see how a definition of “street” that requires forty feet, not merely sufficient access, can be satisfied by a street that in the real world is markedly less than forty feet. The Bylaw does not cast its requirement for a road forty-feet wide so it can be satisfied merely by drawing a new line on a paper plan, to instantly produce the ordained width with no change taking place on the ground.

Even if Kline were to construct a forty-foot roadway in front of his property, I am not convinced that would bring his lot into conformance, and thus render this case moot. By “regulating the laying out and construction of ways in subdivisions” the Subdivision Control Law allows municipalities to ensure “adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel.” See G. L. c. 41, § 81M; Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 808 (1978). The Truro Zoning Bylaw furthers this goal by requiring that a street that is used for frontage be of a certain width. A forty-foot wide access road does not further these purposes–safe and convenient access–if one must traverse a twelve-foot road to get to the point where the way suddenly widens. Nothing in the record shows any intention or ability on Kline’s part to widen Stephens Way along its entire length out to Fisher Road.

This dispute is not moot. I need to reach the zoning appeal on its merits, and do so.

3. The Board Proceeded on a Legally Untenable Ground When It Upheld the Building Commissioner’s Issuance of the Building Permit.

The first issue in determining the validity of Kline’s building permit is to determine whether the Kline Project is a “reconstruction” under the Truro Bylaw, or under the first paragraph of G. L. c. 40A, § 6. If so, the next issue is whether the Kline Project will increase the nature or extent of the nonconformity.

The first paragraph of G. L. c. 40A, § 6 provides, in relevant part:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence . . . but shall apply to any change or substantial extension of such use, . . . to any reconstruction, extension or structural change of such structure and to any alteration of a structure . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] [Note 7] use to the neighborhood.

The Truro Bylaw, in Section 30.7, titled “Nonconforming Uses” states:

If the Building Commissioner determines and finds that the proposed repair, reconstruction, alteration, or structural change of a pre-existing, nonconforming, single-family or two-family residential structure will not increase the nature or extent of the nonconformity, then the Building Commissioner may approve and issue a building permit for the proposed repair, reconstruction, alteration, or structural change.

Nonconforming single- and two-family residential structures are entitled to special status under G. L. c. 40A, § 6. Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass, App. Ct. 165, 170 (1996). In the case of a reconstruction, expansion, or alteration of a preexisting nonconforming single- or two-family residential structure, the building commissioner is to make an initial determination whether the alteration would increase the nonconforming nature of the structure. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 22-23 (1987). [Note 8] This determination looks to whether the addition would “intensify the existing nonconformities or result in additional ones.” Id. at 23. The term “reconstruction” in the first paragraph of G. L. c. 40A, § 6 applies to “the construction of a house in replacement for one torn town.” Dial Away, 41 Mass. App. Ct. at 170; see also Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 , 855 n. 6 (2005) (not upsetting motion judge’s determination that construction following voluntary demolition is “reconstruction” under G. L. c. 40A, § 6, first par.); Bransford v. Zoning Bd. of Appeals of Edgartown, 12 LCR 211 , 213 (2004) (Misc. Case Nos. 272521 & 278436) (Sands, J.). [Note 9] If the building commissioner determines the alteration would neither increase nor create nonconformities, then the building commissioner should issue a building permit. See Bransford, 444 Mass. at 858 n. 8 (“I omit the language providing that a board of appeals makes the initial determination, . . . this initial determination more appropriately should be conducted by the building inspector or zoning administrator.”). An extension or addition which itself does not comply with zoning requires a variance. Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364-65 (1991).

In the case where the building commissioner determines the alteration does increase (or create new) nonconformities, the alteration must be submitted to the permit granting authority to determine “whether it is ‘substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood.” See Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 56 (1985); G. L. c. 40A, § 6; see also Willard, 25 Mass. App. Ct. at 21.

Kline argues that the Building Commissioner acted within the scope of authority granted to him by the Truro Bylaw when he issued the permits. Specifically, Kline points to Section 30.7(B), quoted above, which grants the Building Commissioner authority to grant a permit for certain changes to a lawfully nonconforming single- or two-family residential structure upon a finding that the proposed project “will not increase the nature or extent of the nonconformity.” The threshold inquiry, however, is whether the construction of a new 6,800 square foot structure, constitutes a “repair, reconstruction, alteration, or structural change” of the preexisting, nonconforming Studio.

The Plaintiffs argue it is self-evident that the construction of a new 6,800 square foot structure, situated 200 feet away from location of the preexisting Studio, is not an “alteration” or “reconstruction” of the Studio. Kline argues that the term “alteration” is defined broadly in Section 10.4 of the Bylaw as: “[a]ny construction, reconstruction or related action resulting in a change in the structural parts, height, number of stories, exits, size, use or location of a building or other structure or any other related change.” Thus, Kline argues, the Building Commissioner could easily have determined that the project was an “alteration” because of the latitude in the definition.

I conclude that the Building Commissioner did not abuse his discretion in determining that the Kline project fits the Truro definition of an “alteration.” The separate identification of both the terms “construction” and “reconstruction” within the definition of “alteration” can only mean that the definition was not meant to be limited simply to replacing one structure with another. Moreover, the definition specifically includes a change in location within the meaning of “alteration” as well as the broad mention of “any other related change.” The Building Commissioner could have determined that the change in classification of the Studio from a single family residence to a “habitable studio” was encompassed in the wide open language, “any other related change.” The Building Commissioner could then have concluded that the “construction” of a new single-family residence fit within the meaning of “alteration” because that definition specifically includes “construction.” [Note 10]

Having determined the threshold question--whether the Kline project fell within the sweep of Section 30.7(B)--the Building Commissioner was required to make a “finding”--whether the project would or would not “increase the nature or extent of the nonconformity.” If the project will not increase the nonconformity, the Truro Bylaw allows the Building Commissioner to issue a building permit, as he did in this case.

The existing structure is nonconforming because it has its frontage on a street that is inadequate under the current version of the bylaw. The question I must decide is whether that nonconformity is increased by increasing the size of the home. I am guided in this determination by the (relatively) recent decisions from our Supreme Judicial Court 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). The issue for decision in each of these cases was whether the reconstruction (following voluntary demolition) of a single-family residential structure, which satisfied all dimensional requirements of the zoning bylaw except minimum lot size, increased the nonconforming nature of the structure. See Bjorklund, 450 Mass. at 359; Bransford, 444 Mass. at 853. The Supreme Judicial Court decided that when the reconstruction will result in a larger structure, it is an expansion of the nonconformity. The plurality in Bransford wrote, “Creating a distinction in treatment between a nonconforming structure and a nonconforming lot is one that analytically and practically should not ne made.” 444 Mass. at 861. In doing so, the Court rejected the argument that the nonconformity would remain the same because no changes were made to the lot, which suffered from, and was the only source of, the zoning bylaw deficiency. [Note 11] See 444 Mass. at 861 (rejecting argument that “no problem exists because [plaintiffs’] nonconforming lot will remain exactly the same with the reconstructed residence”). This argument, rejected in Bransford, is essentially the argument that Kline makes today. Applying the reasoning (if not the rule) from Bjorklund and Bransford, my conclusion must be that the Kline Project increases the nonconforming nature of the Property.

The Kline lot is nonconforming because the road that provides its frontage is not adequate under current zoning. Kline argues that the nonconforming nature of the lot, the deficient roadway, will remain the same because no changes are being proposed to the roadway. Unfortunately for Kline, his situation is not distinguishable from those in Bransford and Bjorklund. In those cases, the single-family homes, after reconstruction, would have complied with all dimensional requirements, such as lot line setbacks and floor area ratio (to the extent the town regulated such things). 444 Mass. at 853. It was only the lot that was deficient. Id. It is the same here; the only deficiency with the Kline project is that the lot lacks frontage on an adequate road. As the Court determined in Bransford and Bjorklund, a structure on a nonconforming lot is a nonconforming structure. See 444 Mass. at 861 (“Creating a distinction in treatment between a nonconforming structure and a nonconforming lot is one that analytically and practically should not be made.”). Thus, to say that enlarging a single-family residence on a nonconforming lot leaves the lot—and therefore the nonconformity—untouched is to misapprehend the post-Bjorklund landscape. The prior-existing single-family residence on the Kline lot, serviced by an inadequate roadway, is a nonconformity. Expanding the size of the structure (or, even more, as here, adding a new, large structure) is expanding the nonconformity. As a result of his challenged project, Kline seeks to go from roughly 1,970 square feet of nonconforming structure, to over 8,770 square feet of nonconforming structures on the same lot with the same noncompliant frontage.

For those reasons, the Building Commissioner was incorrect when he determined that the Kline Project would not produce an increase in the nonconforming nature of the existing structures on the Kline Property, and the Board acted in error when it upheld his determination. Judgment will enter annulling the Decision of the Board, and remanding this case to the Board to consider, pursuant to Section 30.7 of the Truro Zoning Bylaw, whether the Kline Project is an “alteration or extension [that] will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure and that the alteration or extension will exist in harmony with the general purpose and intent of [the] bylaw.” By annulling the Decision, I intimate no position on how the Board ought come out on this question. I merely require, as the law obliges me to do, that the Board consider this question, and answer it.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: April 12, 2010.