MISC 10-434088

December 22, 2010

ESSEX, ss.

Trombly, J.


This case is the third [Note 1] in a series of actions filed by the Plaintiffs concerning the attempt of Defendants Mark and Teresa Richey (“the Richeys”) to “rebuild” their single-family home located on Plum Island in Newbury. [Note 2] The instant action comes before the court on cross-motions for summary judgment by the parties claiming there are no disputed issues of material facts which would preclude entry of judgment without the necessity of a trial.

Summary judgment is appropriate where there are no genuine issues of material fact and the record before the court entitles the moving party to judgment as a matter of law. Wheatley v. American Tel. & Tel. Co., 418 Mass. 394 , 397 (1994); Mass. R. Civ. P. 56(c). The moving party bears the burden of showing, by credible evidence, that there are no triable issues of fact. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In deciding motions for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Id. Though not an issue in these proceedings, summary judgment may even be awarded to the non-moving party.

On or about November 13, 2007, the Newbury Zoning Board of Appeals (“ZBA”) filed a decision with the Town Clerk granting to the Richeys relief from local zoning by-law sections 97-4.D.5.c and 97-6.B to allow them to renovate and relocate their single-family home on Fordham Way. A special permit was required because the existing dwelling is a legal non-conforming use resulting from zoning restrictions contained in the Plum Island Overlay District (“PIOD”). [Note 3] On November 28, 2007, Plaintiffs (“the Moores”), owners of land abutting the Richey property, filed an appeal of that Decision with this court (Case No. 07 MISC 361014).

On March 10, 2008, while the first case was still pending, the Moores filed a second action, claiming title by adverse possession to a certain strip of land owned of record by the Richeys which had been used by the Moores as a portion of their a driveway. Following a trial and a site visit, this court (Trombly, J.) issued a Decision and Judgment on October 13, 2009 ruling that the Moores had established title to a portion of the disputed area by virtue of adverse possession. Subsequently, the Richeys submitted a second application to the ZBA for a special permit consistent with the new boundary lines as determined by the Court in the second action. [Note 4] The Board once again granted a special permit to the Richeys. The Decision was filed with the Town Clerk on July 1, 2010, and, once again, the Moores appealed the decision to this court on July 19, 2010. The present case arises out of the appeal of this most recent special permit. Because the previous special permit has been superceded by a newer one, the appeal of the earlier permit is now moot. [Note 5] For this reason, the only action by the Board under appeal and being considered in this action is the second special permit, filed with the Town Clerk on July 1, 2010. [Note 6]

* * * * * * * * * * * *

Under G.L. c.40A §17, an appeal of a ZBA decision:

“is heard de novo and the judge makes his own findings of fact, independent of any findings of the board, and determines the legal validity of the decision of the board upon the facts found by the court, or if the decision of the board is invalid in whole or in part, the court determines what decision the law requires upon the facts found." Prendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-559 (1953).

The general rule is that where the issues for review are matters of law, "[n]o deference to the judgment or discretion of the local zoning board is required." Fitchburg Housing Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 , 871 (1980). See Needham Pastoral Counseling Ctr.. Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). "[The] respective meanings [of words in a bylaw] are questions of law for the court." Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 99 (1953). At the same time, courts have more recently recognized that a local zoning bylaw is to be "construed in accordance with ordinary principles of statutory construction, with some measure of deference given to the board's interpretation." APT Asset Mgt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000). See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003).

The need for a special permit arose from the Building Inspector’s denial of a building permit to “rebuild” Richey’s existing one-story two-bedroom dwelling and convert it to a two-story three-bedroom dwelling because the proposed work would violate the PIOD zoning by-laws by increasing the lot coverage, increasing the height of the structure, and not meeting the required setbacks. The special permit granted to Richey contained the following restrictions: [Note 7]

• Proposed dwelling shall not exceed 34'-10" in height.

• Dwelling shall be centered on the lot with north and south side setbacks of 7 ½' and the front setback shall be improved from <1' to 2 ½'.

• Basement ceiling height shall be reduced to 6'11"...

The relevant portions of the Town of Newbury Zoning By-Laws are stated as follows: §97-4-D.(2) - Allowed Uses:

(b) Single Family dwellings, subject to the dimensional requirements set forth in the table below:

01) Max. Building Height 35 FT
02) Max. Number of Stories 2
03) Max. Floor Area Ratio 0.25
04) Max. Lot Coverage by Buildings 20%

§97-4-D.(5)(c) - As of Right Changes: The alteration, reconstruction, or extension of, or change to such structures may be authorized upon the issuance of a building permit where the Building Inspector determines that such alteration, reconstruction, extension or change shall:

01) Not increase the footprint of the existing structure; and

02) Not Exceed the height of the existing structure, or 35 feet (See height definition section 97-11D), whichever is lower.

§97-4.D(5)(d) - Special Permit. The alteration, reconstruction, extension of, or change to such structures...may be authorized upon a finding by the [ZBA] that [they] shall not be substantially more detrimental than the existing nonconforming structure to the neighborhood or the PIOD....” (Emphasis added).

§97-6.B. Table of Dimensional Requirements. [Amended 5-26-2009 ATM, Art. 30]:

R-AG Single Family Residence:

Min. Lot Dims: Lot Area: 40,000 SF
  Frontage: 125 FT
Setbacks: Property Line: 10 [Note 8] FT
  Street: 20 FT
Max. Dims: Height: 35 FT

§97-11.D. Definitions:

Alteration: Any construction, addition, or renovation to an existing structure...that requires a permit.

Basement: That portion of a building that is partly or completely below grade.

Finding: shall mean a finding by the [Board]...that the proposed alteration to a nonconforming structure or use shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood or the PIOD.

Height. Building: The dimension in feet as measured from the mean level of the established grade at the building to the mean height of the highest roof. [Note 9]

Reconstruction: shall mean the structural alteration of the existing building, but shall not include the demolition and rebuilding thereof. [Note 10]

Story: That portion of a building included between the upper surface of a floor and the upper surface of the floor or roof next above, excluding attics that have no habitable area and that are used solely for storage and to house mechanical equipment. Intermediate level(s) such as mezzanines, lofts, and penthouses shall be counted as stories.

Story Above Grade: Any story having its finished floor surface entirely above grade, except that a basement shall be considered as a story above grade where the finished surface of the floor above the basement is:

a. More than 6 feet...above grade plan;

b. More than 6 feet...above the finished ground level for more than 50% of the total building perimeter;

c. More than 12 feet...above the finished ground level at any point.

In the instant action, Plaintiffs contend the ZBA decision granting a special permit to Richey was based on legally untenable grounds because the Board ignored the requirements of the Bylaw in the PIOD. Defendants counter that the Board acted within its discretion when it approved the special permit now under appeal and that this decision was based on sound reasoning. For the reasons stated herein, this court agrees with the Defendants that the Board acted within its discretion and that the project as approved by the Board will not be substantially more detrimental to the neighborhood than the existing structure.

The following issues are raised by the Plaintiffs in their appeal:

1.) The proposed setbacks are less than the required 10 feet for side lot lines and 20 feet for front yards.

2.) The Board erred in calculating the roof height as 34'-10", as specified by the by-laws.

3.) The number of stories of the proposed structure exceeds the allowed two stories permitted in the PIOD, and

4.) The Board erred in calculating the gross floor area and floor area ratio because it ignored the floor space in the basement, attic and lookout area, which would result in a ratio higher than the 25% permitted in the PIOD.


In their application for a special permit, the Richeys submitted plans by CBT Architects and Meridian Associates, Inc. dated September 21, 2007. The plans show an existing side yard setback of 2.9 ft on the north side of the property and 9.7 ft on the south side. [Note 11] The front yard currently has a disputed setback ranging from 0 ft to 9.8 ft, depending on the inclusion of the front steps as part of the building.

In the Special Permit, the Board specifically made reference to the dwelling being relocated on the lot with “north and south side setbacks of 7 ½' and the front setback shall be improved from <1' to 2 ½'”. The by-laws allow for side yard setbacks of less than the required 10 feet so long as “a nearer building line is already established by existing buildings”. Therefore, the reduced setbacks are permitted as they already exist on the property. [Note 12] As for the front yard setback, by declaring it shall be improved from <1' to 2 ½', it is clear that the Board made the determination to interpret the by-laws as including the stairs as part of the building, which is not an arbitrary or capricious decision.

Roof Height

§97-11.D of the by-laws clearly states that the height of the building shall be measured from the mean level of the established grade at the building to the mean height of the highest roof. This definition is somewhat uncertain; therefore, deference should be given to the board in its interpretation of it, so long as it is reasonable. The Defendants claim the established grade at the building was calculated using the average of the grades at ground level in each of the four corners of the existing structure.

To determine the mean height of the highest roof, Defendants contend the cupola or “lookout” is less than 70 square feet, is not habitable, and is not intended for continued occupancy. The Building Inspector, in his affidavit, further claims that the Town, for purposes of calculating roof height, ignores such spaces. As a result, the mean roof height was taken as the average of the highest point of the cupola and the eave height. When these two figures are calculated, the building height is 34'-10". Plaintiffs provide an alternative to calculating the building height, but it need not be considered. As long as the building height calculation accepted by the Board and restricted in the Special Permit was concluded reasonably, the Board’s interpretation will suffice. Considering all the evidence and the definitions provided in the by-laws, this court concludes the building height as determined by the Board of 34' 10" is reasonable and was properly calculated.

Number of Stories

The Plaintiff’s contend the proposed dwelling will consist of more than 2 stories because the basement, attic, and cupola (lookout) should be considered stories under the by-law definitions. They rely heavily on one interpretation of the definition of “Story Above Grade”, subpart (b) in §97-11.D, which states that if the floor above a basement is at least 6 feet above ground for more than 50%, then the basement shall be considered a story. This court disagrees. The by-laws must be read as a whole, and cannot be so narrowly construed. When read in conjunction with the other definitions for “basement” as well as “story”, it is evident that the lowest floor is considered a “basement” and not a “story”. The definition of “Story” also excludes attics or areas that are not habitable or which are used solely for storage and to house mechanical equipment. Furthermore, a determination by the Building Inspector was made, prior to the issuance of this special permit, that the basement “does not qualify as a story as it is not six (6) feet above grade for more than 50% of its area according to the...[State] Building Code”. The special permit specifically went so far as to limit the height of the basement ceiling to not more than 6'-11", thereby insuring that it could not be a habitable living space as defined by the Building Code. For this reason, the Board determined correctly that the basement should not be considered a “story”.

Floor Area

Plaintiffs further contend that the Board erred in failing to apply properly the By-law definitions of “gross floor area” (“GFA”) and “floor area ratio” (“FAR”) because it ignored the floor space in the basement, finished attic and lookout tower, and also because it permitted a structure with a floor area ratio considerably higher than the 25% permitted in the PIOD. Specifically, they aver that the Board erroneously excluded the 588 square feet in gross floor area of the basement, and approximately 343 square feet of floor area in the attic, from their calculation of the GFA. In Plaintiffs’ opinion, these floor areas should have been included in the total GFA because the by-law does not exclude basements that are a “Story above Grade”, or finished attics with lookouts, from GFA calculations.

Defendants disagree, pointing out that Section 97-11 of the by-law defines “Gross Floor Area:” as “the total square feet of floor space under a roof within the outside dimensions of a building, including each floor level, without deduction for hallways, stairs, closets, thickness of walls, columns or other features.” In the present case, the porch on the first floor was not included because it does not have a roof. The basement, and the attic space above the second floor, were not included because neither is inhabitable. Affidavits submitted by the Newbury Building Inspector and by the Engineer who supervised the preparation and submission of the plans both stated that such spaces are not considered “floor space” and are not traditionally included in the gross calculation of floor area under the Newbury Zoning Bylaw.

On the issue of “Floor Area Ratio” , that terms is defined under Section 97-11 of the bylaw as “a mathematical expression determined by dividing the total gross floor area of a building by the area of the lot on which it is located.” In the present case, the floor area was calculated by using the first and second floor, plus the lookout which contained slightly less than 70 square feet. Doing so resulted in an FAR of 24%, thereby complying with the bylaw. As argued by Defendants, including the basement and attic as floor space, as urged by Plaintiffs, would allow a structure on the Richeys’ 8,100 square foot lot of only 506 square feet, including the attic, in order to comply with the bylaw limiting it to 25% coverage, obviously a very small building. In brief, including uninhabitable basements and attics in the equation would not be a reasonable interpretation of the Newbury Zoning Bylaw, and the Board itself has taken the same approach.


For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is denied and Defendants’ Motion for Summary Judgment is allowed. This court concludes that the decision of the Newbury Zoning Board of Appeals was not arbitrary and capricious, but proper, and should be upheld. The findings contained in the decision were sufficient and the procedure and record undertaken by the board were appropriate and complied with G. L. c. 40A, § 9. The structure proposed by the Defendants fits in with other structures in the area, is not detrimental to the neighborhood, and is not in violation of the zoning by-law.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: December 22, 2010


[Note 1] The first action (Case No. 07 MISC 361014) was an appeal of a previously issued Special Permit for the same project pursuant to G.L. ch. 40A §17. The second case (Case No. 08 MISC 374026) was a claim for adverse possession pursuant to G.L. ch. 185 §1(k). Disposition of those prior cases is described herein.

[Note 2] Although the members of the Zoning Board of Appeals were named as Defendants, the Special Permit granted to the Richeys was defended only by them; Town Counsel adopted a passive stance and was not present during oral argument on the motions.

[Note 3] Section 97-4.D of the zoning by-laws states, in pertinent part, that the purpose of the PIOD is to “...limit the expansion of nonconforming single and two-family structures so as to prevent the exacerbation of existing problems with density and intensity of use....”.

[Note 4] The Court’s Decision had, in effect, relocated the boundary line to a point closer to the Richey home than had been shown on the approved plan and special permit granted earlier by the Board.

[Note 5] The Plaintiffs contend in their brief that the plans submitted for the second special permit are substantially similar to those submitted with the earlier application. Whereas the earlier application has been superceded, said application and any plans submitted therewith are irrelevant to this decision. The second special permit now under appeal is reviewed by this court on its own merit.

[Note 6] For the reasons stated above, the case (No. 07 MISC 361014) involving the superceded special permit filed with the Town Clerk on November 13, 2007 is hereby dismissed.

[Note 7] More restrictions are required in the Board’s decision. Only those relevant to this appeal are listed.

[Note 8] No Part of any building on lots in said district may stand less than 10 feet from a property line or less than 20 feet from a street unless a nearer building line is already established by existing buildings. (emphasis added)

[Note 9] No definition of “roof” is provided in the By-laws.

[Note 10] Based on the definition of “Reconstruction” and the Richey’s reuse of more than half of the existing basement walls, the Board reasonably concluded this project is a reconstruction and, therefore, permitted under the by-laws.

[Note 11] The southerly side yard setback is a result of the previously mentioned adverse possession case.

[Note 12] Although the southerly side yard setback, which is the one that abuts the Plaintiffs land, will be reduced further by the building relocation, the northerly side yard setback will be improved. As a whole, the building on the Richey property being centered on the lot far outweighs any impacts this may cause to the Plaintiffs.