MISC 08-375474

January 27, 2010


Trombly, J.


This case comes before the Court on the parties’ cross-motions for summary judgment. The underlying action in this case is an appeal, pursuant to G.L. c. 40A, § 17, from the decision of the City of Waltham Zoning Board of Appeals (ZBA) denying the Plaintiffs’ petition for a special permit to construct an addition, pursuant to G.L. c. 40A, § 6. The Plaintiffs, through their motion, seek to have the Court declare that the ZBA has jurisdiction to hear this case and to remand it to the ZBA to make the remaining factual determinations. The Defendants, the City of Waltham (City) and the ZBA, through their cross-motion for summary judgment, seek to have the Court affirm that the ZBA does not have jurisdiction for all of the reasons set forth in its decision.

The Plaintiffs filed the Complaint in this case on March 24, 2008 and filed Plaintiffs’ Motion for Summary Judgment and Remand Order, Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ Statement of Uncontested Facts, and affidavits in support of their motion on July 31, 2009. Defendants filed an opposition to the Plaintiff’s motion and to the statement of uncontested facts and filed their own statement of uncontested facts and cross-motion for summary judgment on September 25, 2009. Plaintiffs filed a Reply Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment on October 30, 2009. A summary judgment hearing was held before the Court on December 29, 2009, and the arguments were taken under advisement. On January 11, 2010, the Defendants filed Defendants’ Opposition to Plaintiffs’ Reply Memorandum and Oral Argument. The Court allowed the Plaintiffs an opportunity to respond by January 19, 2010. No response has been received.

The Court finds that the following facts are not in dispute:

1. The Plaintiffs, Frank D. Valentino and Michael D. Valentino own the property known and numbered as 753-755 South Street, Waltham, Massachusetts (the Property).

2. The Property is improved with a residential structure.

3. The Plaintiffs purchased the Property from Robin Sherman on or about November 1, 1999.

4. In 2005, the Plaintiffs hired Frank Cox to build an addition onto the structure.

5. Mr. Cox contracted to have plans for the addition drawn in accordance with the requirements of the City of Waltham Zoning Code (Zoning Code), to obtain a building permit, to complete the construction, and to obtain an occupancy permit.

6. Mr. Cox did not have the plans drawn in accordance with the Zoning Code and did not obtain a building permit for the addition.

7. Mr. Cox died while the addition was in construction but was still incomplete.

8. In January 2006, the Plaintiffs, unable to contact Mr. Cox who had not worked on the project for several weeks and unaware of his death, engaged the services of a plumber and an electrician not associated with Mr. Cox. These individuals obtained plumbing and electrical permits respectively in order to complete the plumbing and electrical work for the addition.

9. At this time the addition appears to have had the framing and the exterior completed and roughly completed plumbing and electrical work.

10. After learning of Mr. Cox’s death, the Plaintiffs contacted the City of Waltham Building Department (Building Department) seeking a copy of the building permit for the addition. The Plaintiffs were informed that no building permit had been issued for the project.

11. The City of Waltham Building Inspector made a site visit during which the Building Inspector determined that the addition violated the northeasterly side-yard setback, exceeded the allowable number of stories, and was constructed in violation of the Massachusetts State Building Code, 780 CMR, Section 110.0, Subsection 110.1 because no building permit had been issued.

12. The Plaintiffs sought to legalize the zoning violations through the ZBA, apparently through an application for a variance. On January 23, 2007, before the ZBA reached a decision, the Plaintiffs withdrew their case.

13. The Building Department issued a Cease and Desist letter to the Plaintiffs on February 8, 2007. This letter ordered the Plaintiffs to remove the addition within thirty (30) days.

14. The Plaintiffs filed the application for a special permit under G.L. c. 40A, § 6 with the ZBA on June 15, 2007.

15. The structure was built before the City adopted its Zoning Code in 1925.

16. When the Zoning Code was adopted, the Property was in a Residence B (RB) district which allowed two-family dwellings as of right.

17. At the time the Zoning Code was adopted, the Property satisfied the side-yard setback requirements.

18. In 1952, the City redrew the Zoning Map and the Property was rezoned as Residence A-3 (RA-3).

19. The RA-3 zone requires a side-yard setback of 15 feet, only allows 2 ½ stories, and does not permit two-family dwellings.

20. In 1974, the lot on which the Property is located was subdivided into four lots. This subdivision created the southerly side-yard setback of 12.87 feet. The southerly side-yard setback would be 15 feet as required but for the existence of a bay window.

21. The 2005 addition was added to the north side of the house. The first floor dimensions of the addition are 12 feet by 28 feet. The second and third floor dimensions are 33 feet by 28 feet. The total area of the addition is 2,184 square feet. The addition has a flat roof rather than a pitched roof like the main structure. It is not disputed that the area of the addition is greater than ten percent of the ground floor area of the existing structure.

22. The addition creates a side-yard setback on the northeasterly side-yard of 11.1 feet and is 3 stories in height.

23. The Building Department issued a Final Notice of the violation and instruction to apply for a demolition permit on June 12, 2008.

Standard of Review

In reviewing a zoning board decision, the trial court is to hear the issues raised on appeal de novo and independently determine if the facts found in the trial court support the decision of the board. Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972). However, this scope of review is limited to findings of fact and does not apply to judgments made by the board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954). Where reasonable minds may differ in drawing conclusions from evidence, the trial court must defer to the board unless the board’s judgment is based on a legally untenable ground. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996).

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Comm’ns Corp., 410 Mass. 805 , 809 (1991).

While genuine issues of material fact exist here, there is no genuine issue of material fact with regard to one element of the Plaintiffs’ case, without which they cannot prevail on their petition for a special permit. Therefore, summary judgment is appropriate and is granted to the Defendants.


The Plaintiffs did not appeal the Cease and Desist Order from the Building Department and they were not required to do so in order to file this action. The Defendants argue that the Plaintiffs are barred from challenging the validity of the Cease and Desist Order because they have failed to file a timely appeal to the State Building Code Appeals Board and the ZBA. The Defendants’ citations to case law indicating the imperative nature of exhausting administrative remedies before a plaintiff can seek judicial relief are well noted. However, the Plaintiffs in this case have not challenged the validity of the Cease and Desist Order. They have admitted that the constructed addition is currently illegal because it was constructed without a building permit and does not comply with the zoning standards. In order to make the addition a legal structure, the Plaintiffs have sought a special permit from the ZBA. There is no reason to force the Plaintiffs to appeal a decision with which they agree in order to take this next, and different, course of action.

This is an appeal of the ZBA’s decision on the special permit petition sought by the Plaintiffs. Pursuant to G.L. c. 40A, § 17, an appeal of a decision by the ZBA or special permit granting authority must be brought within twenty days of the date the decision is filed with the city clerk. The ZBA’s decision was filed on March 5, 2008. The Complaint was filed on March 24, 2008; this is within twenty days of the decision and, therefore, this appeal is timely.

Special Permit

G.L. c. 40A, § 6 Procedure

General Laws chapter 40A, § 6 allows for legally pre-existing, nonconforming structures and uses to remain exempt from the local zoning by-law, unless those structures or uses are to be substantially extended or changed. However, the statute provides two ways for a change to a nonconforming structure or use to remain exempt from the zoning by-law.

As a threshold matter, the local Board of Appeals must determine that the structure or land in question is legally nonconforming. Legally nonconforming means that the building or use was lawfully in existence when the zoning by-law was adopted but did not comply with the new standards, or, satisfied the provisions of the zoning by-law when it was constructed but later went out of compliance because of a change to the zoning by-law. A noncomplying, or illegally nonconforming, building is one that did not satisfy the provisions of the zoning by-law at the time it was constructed, or, went out of compliance at a later date through a self-created change to the property. The legality of a nonconforming use or structure is determined as of the “first publication of notice of the public hearing” of the zoning by-law change that puts the structure or use out of compliance. Tamerlane Realty Trust v. Bd. of Appeals of Provincetown, 23 Mass. App. Ct. 450 , 454 (1987).

Once that status is determined, the Board of Appeals must make the analysis described in G.L. c. 40A, § 6 to determine whether to grant or deny a petition to alter a nonconforming structure or use. The so-called “second exception” in the first sentence of the first paragraph of section 6, gives special consideration to nonconforming single- and two-family residential structures by excepting from compliance with the applicable zoning by-law alterations, reconstructions, extensions, or structural changes that do not increase the nonconforming nature of the structure. In order to determine if the change increases the nonconforming nature of the structure, the Board of Appeals must “identify the particular respect or respects in which the existing structure does not conform to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones.” Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21-22 (1987). If there would be no intensification or additional nonconformity created, the applicant would be entitled to the special permit under the “second exception” of G.L. c. 40A, § 6. Id. If the Board of Appeals does identify an intensification or additional nonconformity, or if the use is not a single- or two-family residence, the proposed change may only be made if the Board of Appeals finds that it will not be substantially more detrimental to the neighborhood. [Note 1] Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 56 (1985). The Massachusetts courts also require that the proposed change itself meet any applicable local by-law requirements. Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991); Robert L. Marzelli & Elizabeth S. Marzelli, Massachusetts Real Estate 2d § 2.9 (2003). Therefore, a finding by the Board of Appeals that the change will not be substantially more detrimental to the neighborhood does not entitle an owner to the alteration or extension. A change may only be made if it both complies with any applicable zoning by-law and is not going to be substantially more detrimental to the neighborhood.

It appears that an additional nonconformity would require a variance rather than be approved under G.L. c. 40A, § 6. The Massachusetts Appeals Court has not been explicit on this issue but its analysis of the proper procedure seems to indicate that a variance is not required. Goldhirsh v. McNear, 32 Mass. App. Ct. 455 (1992). However, other courts, in considering that the purpose of the statute is to reduce nonconforming uses, would require a variance for any additional nonconformities. The Land Court in Heaphy v. Schier, holds this explicitly. 13 LCR 398 , 401 (2005) (Misc. Case No. 290964) (Lombardi, J.) (citing Wrona v. Bd. of Appeals of Pittsfield, 338 Mass. 87 , 89-90 (1958)). In Heaphy, the court found that the house in question was nonconforming as to the side-yard setback requirement on the northerly side-yard of the house and that the proposed addition would cause a setback violation as to the southerly side-yard, thereby creating a new zoning violation and providing “a sufficient basis to deny the special permit application….” Id. at 401. This recent case cites to a Supreme Judicial Court decision that was entered before the adoption of G.L. c. 40A, § 6 and it is unclear if this proposition has survived the adoption of the statute. However, the holding of Rockwood, which requires that the proposed change conform to any applicable requirements of the zoning by-law, indicates that a variance would be required because an addition that created a new nonconformity would by definition not conform to the applicable zoning by-laws. 409 Mass. at 364.

No Genuine Issue of Material Fact that the Property is a Legally Nonconforming Structure

The Plaintiffs are only entitled to seek a special permit under G.L. c. 40A, § 6 if they can show that the structure or use of the building or land is legally nonconforming. The Plaintiffs claim that that the Property is legally nonconforming as to setback requirements. The current lot on which the structure sits was created in 1974 by a subdivision plan (included in the record in Defendants Opposition, Exhibit C). Until 1974, when the subdivision occurred, the lot on which the structure is located was in compliance with the Zoning Code. As a result of the subdivision, the southerly side-yard setback was 12.87 feet rather than the required 15 feet. The Zoning Code in effect at that time included an exemption to this side-yard setback requirement that allowed “[p]rojecting eaves, chimneys, balconies and like projections which do not project more than three feet …beyond the line of the foundation law [to] extend beyond the minimum yard requirements otherwise provided for the district in which the structure is built.” (Supp. Pro Forma Aff. of L. Richard LeClair, III, Exhibit B). The Plaintiffs contend that the bay window on the south side of the structure is what encroached on the 15 foot side-yard setback requirement and that a bay window is a projection which is a “like projection” as the 1974 Zoning Code contemplated. (Supp. Pro Forma Aff. of L. Richard LeClair, III, Exhibit E). The Plaintiffs further argue that no noncompliance was created in 1974 because the subdivision would not have been approved if it included a nonconformity. A variance was sought for one of the other lots created by this division in order to make it conforming; the Plaintiffs infer that the fact that a variance was not sought for this lot indicates that it was conforming. Therefore, they conclude that the subdivision in 1974 did not create any noncompliance with the Zoning Code.

A copy of the Zoning Code of the City of Waltham, dated December 22, 2008 (Supp. Pro Forma Aff. of L. Richard LeClair, III, Exhibit F) indicates, in section 4.219, that the phrase “and like projections” has been removed from the portion of the code that excepts eaves, chimneys, and cornices from the side-yard setback requirements. Therefore, as of some point prior to December 22, 2008, the southerly side-yard setback became legally nonconforming because of a change to the Zoning Code.

The Defendants assert, on the other hand, that the above facts do not demonstrate nonconformity as to side-yard setback. As support, the Defendants assert that under the 1974 Zoning Ordinance a bay window is not a “like projection” similar to eaves, chimneys, or balconies because a bay window expands the interior space; because the interior of a house is considered “occupied,” it cannot count as part of the side-yard setback under the plain meaning of the definition of “side yard” given in Section 21-6 (36) of the 1974 Zoning Code. The Defendants also assert that the interpretation of the 1974 Zoning Code is a question of law for the Court.

This Court finds that there is no material fact in dispute on this issue but, rather, that it turns on an interpretation of the 1974 City of Waltham Zoning Code. The Court finds that a bay window is similar enough to an eave, chimney, or balcony so as to fit into the exception from the setback requirement. Although a balcony is outdoor space, it is not any less “occupied” than the indoor space created by a bay window. Also, similar to a bay window, a projecting chimney allows for greater interior space by essentially moving the fireplace to the outside. The Court, therefore, finds that, even with the bay window, the lot in question was still in compliance with the 1974 Zoning Code and that the reason that it is currently nonconforming is because of a later change in the Zoning Code itself, not a self created change in the lot. Therefore, the southerly side-yard setback is a legal nonconformity.

Genuine Issues of Material Fact Exist Regarding Whether the Property is a Legally Nonconforming Use

The Plaintiffs also contend that the Property is legally nonconforming as to use. They claim that the Property has always been used as a two-family house and provide copies of the City Assessor’s Cards for intermittent years between 1924 and 2009, copies of the City’s lists of registered voters for intermittent years between 1925 and 1998, and copies of the City’s Directory for intermittent years from 1923 to 1988, as support for that claim. They contend that prior to the adoption of Zoning Code in the City this was a legal use of the Property, that upon the adoption of the Zoning Code in 1925 the use was still legal and conforming, and that the use became nonconforming in 1952 when the City of Waltham revised its Zoning Code thereby changing the zone where the Property is located from Zone RB to Zone RA-3 where two-family dwellings are not allowed as of right. The Defendants assert only that the evidence supplied by the Plaintiffs is not sufficient to demonstrate that no genuine issue of material fact exists.

Given that the change in zone was in 1952 and that, prior to that, two-family use of the Property was allowed as of right, the focus of the evidence should be whether the Property was actually used as a two-family dwelling in 1952. There are no Assessors Cards from 1952 in the record but the cards dated 1949 and 1954 both list the Property as a two-apartment structure. The registered voter records demonstrate that in 1942 and thereafter, the Property was numbered 753-755. In 1952, there were four registered voters residing at 753 South Street and two registered voters residing at 755 South Street. The City directory lists one phone number for each of the two addresses in 1952. Given that the Defendants do not include in the record any information or evidence that would suggest that the Property was not in fact used as a two-family dwelling in 1952, the Court finds that there is no genuine issue of fact on this question. The evidence presented by the Plaintiffs is sufficient support to indicate that the Property was in fact a two-family dwelling at the time the zone changed from RB to RA-3 and, therefore, legally nonconforming.

The Defendants also argue that even if the use of the Property were a legally nonconforming use when the Zoning Code changed, the current use of the Property is not the same as the legally nonconforming use and, therefore, is not entitled to protection under G.L. c. 40A, § 6. The Defendant cites Powers v. Building Inspector of Barnstable, among other cases, that outline three tests used to determine whether the current use of a property fits with the protected, nonconforming use; they are, (1) whether the use reflects the “nature and purpose” of the use prevailing when the zoning by-law took effect, (2) whether there is a difference in the quality or character, as well as the degree, of use, and (3) whether the current use is “different in kind in its effect on the neighborhood.” 363 Mass. 648 , 653 (1973). Although Powers was decided before G.L. c. 40A, § 6 was codified in its current form in 1978, the case law has continued to follow these three tests in determining, as a threshold matter, whether the protections of a pre-existing nonconformity apply to a proposed expansion or modification. See Vokes v. Avery W. Lovell, 18 Mass. App. Ct. 471 , 485 n.21 (1984).

The Defendants allege that the current use is no longer in the nature of a two-family dwelling but rather is more akin to a lodging house, a rooming house, or a multi-family dwelling. The Zoning Code defines two-family dwelling use in Section 3.22 as “[a] detached building designed for or occupied exclusively by two families.” “Family” is defined by section 2.317A as, “[a] bona fide single housekeeping unit consisting of two or more individuals living together where the relationship to one another is of a distinct domestic character and achieves the permanency and cohesiveness inherent in the notion of a single housekeeping unit.” Section 3.24 defines multi-family dwellings as, “[a] structure for more than two dwelling units under one roof, including row houses, townhouses, garden apartments and apartment houses.” Section 3.25 defines a rooming house as:

A dwelling in which the resident owner rents rooms to not more than three persons not within the second degree of kindred to the resident owner…Further, a residential structure…that has received an occupancy permit from the Inspector of Buildings identifying the number of roomers to he served, and that said occupancy permit shall be issued to a person who is the resident owner of the premises. Further, for purposes of this chapter, a rooming house shall not maintain cooking facilities other than in the principal kitchen of the dwelling unit…

And Section 3.26 defines lodging houses as:

A dwelling, excluding dormitories of charitable, educational or philanthropic institutions, in which rooms are rented to four or more persons not within the second degree of kindred to the owner and in which meals may be served to residents….

There is no evidence in the record indicating that there are more than two apartments in the structure in question so as to constitute a multi-family dwelling. This structure does not satisfy the definition of a rooming house because the owner is not a resident.

There is not enough evidence before the Court to determine if this structure satisfies the definition of a lodging house because there is no evidence that the rooms are rented individually or that the apartments are rented to a group of people who all contribute to the monthly rent and expenses. There is also not enough evidence before the Court to determine if the occupants of the structure constitute a “family” as defined by the Zoning Code. The Court believes that these are genuine issues of material fact because these facts are needed to assess whether there has been a change in the use of the Property under the three Powers tests.

The Defendants further argue that the status of the structure must be examined as if the illegal addition had been torn down rather than maintain the fiction that the Plaintiffs are seeking a special permit to construct this addition prospectively rather than retrospectively. The Defendants’ argument is that if the Plaintiffs were forced to tear down the addition they illegally constructed, the original structure would be so changed as to constitute an abandonment or destruction of the original structure. The cases that the Defendants cite (Board of Selectmen of Hatfield v. Garvey, 362 Mass. 821 (1973); Angus v. Miller, 5 Mass. App. Ct. 470 (1977)) contemplate reconstruction of a previously nonconforming structure that had been accidentally destroyed by fire and one where the owner was contemplating razing the existing structure to build a new one. The court in both cases stated that the new structure would have to comply with the current zoning by-laws; that is, that they lost protection as a legal nonconformity. The Plaintiffs challenge the applicability of the cited cases to the instant case and assert that the 2005 construction is not an abandonment or destruction of the original structure.

Because the Plaintiffs have not yet removed the addition from the structure, the factual issue as to whether the removal would destroy the original structure cannot be determined. The Court understands that the Plaintiffs are operating under the fiction that they are seeking the special permit prospectively and the Court will follow in this assumption as the Plaintiffs are making a good-faith effort to comply with the law. Therefore, the Court finds that there is no abandonment or destruction of the original structure.

No Genuine Issue of Material Fact that the ZBA Could Not Grant a Special Permit in the Instant Case

Assuming that this case deals with a nonconforming, two-family structure, the first step in the analysis calls for a determination of whether the proposed addition will “increase the nonconforming nature of the structure”; that is, what are the existing nonconformities and will the addition intensify them or create new ones? In this case, the alleged pre-existing nonconformities are the south side-yard setback and the use as a two-family dwelling. The addition creates a new setback problem with the north side-yard and creates a new nonconformity because it is a half story larger than permitted in the zone. Therefore, the Plaintiffs are not entitled to the special treatment for single- and two-family structures under the “second exception” clause of G.L. c. 40A, § 6.

Because the so-called “second exception” does not allow the ZBA to approve the petition in this case, the ZBA must continue to the second sentence of the statute. The second sentence analysis calls for a determination of whether the changes would be substantially more detrimental to the neighborhood and a determination as to whether they comply with any other applicable by-laws. The ZBA did not make a determination on whether the changes were substantially more detrimental to the neighborhood. However, the ZBA did make the determination that the proposed change did not comply with other applicable sections of the Zoning Code. The ZBA found that the addition would enlarge the structure by more than ten percent of the ground floor area of the building and, therefore, is not allowed under a special permit granted by the ZBA according to sections 3.722 and 3.7222 of the current Zoning Code.

Section 3.722 of the Zoning Code states:

Any use, structure, building or land which, at the time of the passage of any applicable provision of this chapter, constitutes a nonconforming use or structure, including structures and buildings with a valid building or occupancy permit issued prior to December 28, 1978, that are presently conforming as to use but have a FAR above the FAR allowed by right in the district where they are located may be:

And section 3.7222 completes the above by stating:

Altered or enlarged in that use to an extent not exceeding 10% of the ground floor area of the building or area of land used at the time of the passage of this chapter when a special permit therefor has been granted by the Board of Appeals for such alteration or enlargement. The ability to petition the Board of Appeals for said ten-percent alteration or enlargement shall not be construed to deny any owner of a nonconforming structure the additional right to seek a special permit from the City Council to expand the present use to the maximum FAR allowed by special permit.

These two sections are far from clear, [Note 2] but the Court understands the intent of section 3.722 and its subsections is to apply to all uses, structures, buildings, and land that are legally nonconforming. Further, the Court understands section 3.7222 to state that those nonconforming uses, structures, buildings, and land may be, upon grant of a special permit by the Board of Appeals, altered or enlarged in the same use, as long as the alteration or enlargement does not exceed ten percent of the ground floor area of the building or land. That is, the ZBA cannot grant a special permit for an alteration or enlargement to a nonconforming structure or land that is greater than ten percent of the ground floor area of the structure or land. If an alteration or extension exceeds this ten percent threshold, the petitioner can seek approval from the City Council rather than the ZBA.

In the instant case, it is not contested that the proposed addition is greater than ten percent of the ground floor area. Therefore, the ZBA cannot grant a special permit to the petitioner legalizing the addition even if it were to determine that no variances were required and that the addition is not substantially more detrimental to the neighborhood.

The Plaintiffs argue that the protections of G.L. c. 40A, § 6 cannot be limited by the Zoning Code because the very protection that the statute grants is an exemption from the code. This is incorrect. Referring to the G.L. c. 40A, § 6 analysis stated above, the only instance where the current Zoning Code does not apply at all to an alteration is when a single- or two-family structure is involved and the change does not “increase the nonconforming nature of the structure.” As soon as the ZBA determines that the change will increase the nonconforming nature of a single- or two-family use, the change proposed must comply with the applicable provisions of the current Zoning Code. The second sentence of the first paragraph states that “no such extensions and alterations shall be permitted” without a finding that the extension or alteration is not substantially more detrimental. This sentence does not say that upon such a finding the proposed extension or alternation must be permitted. That is not to say that the whole structure or use must come into compliance, or that any intensification of the existing nonconformities will not be allowed, but, rather, that the town or city may place limitations on the extent to which alterations may be allowed.

The Defendants cite Blasco v. Board of Appeal of Winchendon as support for applying Sections 3.722 and 3.7222 to the instant case. 31 Mass. App. Ct. 32 (1991). In that case, the Massachusetts Appeals Court examines the legislative history of and policies underlying G.L. c. 40A, § 6 and concludes that the statute intends “to allow local zoning authorities, through their by-laws, to regulate and even prohibit changes in nonconforming uses.” Id. at 37. As support for this proposition, the court states that the objectives of zoning would be furthered by an elimination of nonconforming uses in most cases. Id. This case only speaks to the question of a change of a nonconforming use and clearly states that local boards have the authority to restrict such change despite a finding that it would not be substantially more detrimental to the neighborhood. The Court is not aware of any authority, either allowing or prohibiting, regarding similar local control of an expansion of a nonconforming use. Persuaded by the study of the legislative history of the statute in Blasco, the Court finds that the Zoning Code can impose such local control and restriction on the expansion of a nonconforming use, similar to restricting a change in such use.

Therefore, because sections 3.722 and 3.7222 apply to the Plaintiffs’ petition and because the Plaintiffs cannot show that the addition is less than ten percent of the ground floor area of the existing structure, the ZBA cannot grant a special permit for the expansion of the structure. [Note 3]


The ZBA framed its decision in terms of not having jurisdiction to hear the petition because of Section 3.7222 of the Zoning Code. The Court does not find that there is any language in that section that prohibits the ZBA from hearing the case, only that the ZBA must deny a petition for a special permit upon making the finding that the nonconforming use would be increased by more than ten percent. Given that the next step for the Plaintiffs appears to be an application to the City Council, the Court believes that it is necessary for the ZBA to make these factual determinations upon a petition pursuant to G.L. c. 40A, § 6 in order to assist the City Council in making further decisions on such a petition. Additionally, there may be genuine issues of fact in determining whether an addition exceeds the threshold limit; petitioners may be willing to alter their plans in order to conform to the by-law thereby giving the ZBA the authority to approve the petition. The ZBA should not preclude hearing cases simply because it believes that this issue may arise. Therefore, the Court finds that the decision of the ZBA, to the extent which it states that the ZBA did not have jurisdiction to hear this case, is incorrect. However, the Court finds no reason to remand the case to the ZBA given the lack of genuine issue of material fact on one of the elements required to prove the Plaintiffs’ case.

For the foregoing reasons, this Court concludes that the Plaintiffs’ Motion for Summary Judgment and Remand Order is DENIED and the Defendants’ Cross Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: January 27, 2010


[Note 1] The language of the statute only refers to the change being substantially more detrimental than the existing nonconforming use. The Massachusetts Court of Appeals, in Willard v. Board of Appeals of Orleans, decided that this should read “shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood (emphasis in original).” 25 Mass. App. Ct. at 21.

[Note 2] In its November 13, 2007 letter to the ZBA, the City’s Law Department demonstrated the confusion that section 3.722 creates with misplaced and omitted commas when it stated that this section was not applicable to the instant case because there is no FAR designated in the RA-3 zone. Given the arguments to the Court in this case and a past decision of this Court interpreting the same section of the Waltham Zoning Code (Gaudet v. Mazzone, 16 LCR 403 (2008) (Misc. Case No. 325898) (Sands, J.)), the Court reads these sections so as to give them the most logical meaning rather than the grammatical meaning.

[Note 3] The City has also argued that because these changes are new nonconformities, the Plaintiffs can only make them legal through a variance. As noted above, the various interpretations of G.L. c. 40A, § 6 indicate that a variance may be required to construct any new nonconformities even if, as constructed, there is no substantially greater detriment to the neighborhood. Given the holding in Heaphy, which is not binding precedent but is persuasive to the Court, the encroachment on the northeasterly side-yard is a new nonconformity rather than an intensification of an existing nonconformity, i.e. the existing nonconforming southerly side-yard setback. Although this is not one of the grounds upon which the ZBA denied the petition, it was argued before the Court and briefed in the memoranda. It appears that denial of the petition was proper for the additional reason that the new nonconformities required variances.