NICHOLAS A. PETTINELLA as TRUSTEE OF OCEAN HAVEN CONDOMINIUM TRUST, ROBERTA M. MANSOR as TRUSTEE OF MANSOR REALTY TRUST II, ALBERT ERLER as TRUSTEE OF 186 NORTH END BOULEVARD UNIT 3 REALTY TRUST, DONALD BARRUCCI, JR., BRYAN URDA, FRANK COMPARONE, VIRGINIA COMPARONE, GASPER J. LAGRASSE, JR., NICHOLAS A. PETTINELLA, and NANCY PETTINELLA [Note 1] v. SALVATORE CAVALLARO, JOSEPHINE DEAN, and BARBARA A. PAPPALARDO as TRUSTEES OF B.A. PAPPALARDO REALTY TRUST; CHARLIE MABARDY, TIM LAMPREY, SUSAN PAWLISCHECK, BILL SPINNEY, KENDRA PIKE-OSGOOD, and MARK WHITMORE as MEMBERS OF THE TOWN OF SALISBURY ZONING BOARD OF APPEALS [Note 2]

This case commenced January 3, 2008. It is an appeal, pursuant to G.L. c. 40A, § 17, of a decision (“Decision”) of the Zoning Board of Appeals of the Town of Salisbury (“ZBA”or “Board”), whose members are defendants. According to the Board’s Decision, dated December 17, 2007, the ZBA understood itself to be considering a proposed project at 188 North End Boulevard in Salisbury in which the Trustees intended “to raze one existing two family and one single family structure and construct one three family dwelling.” In the challenged Decision, the Board made, for the benefit of the Trustee Defendants, a “finding” that their proposed construction project was not more detrimental to the neighborhood than the existing structures, which are lawfully nonconforming.

In this action, following trial de novo, I am called upon to review the Decision to determine, on the facts I have found following trial, whether the Decision ought to be affirmed, modified, or annulled. I decide, based on the governing law, that the Board’s Decision proceeded on legally untenable grounds, was erroneous, and must be set aside.

PROCEDURAL POSTURE

Plaintiffs filed their original complaint on January 3, 2008. The Trustee Defendants filed an answer on January 25, 2008. Plaintiffs then filed an amendment to the complaint on April 15, 2008. The Trustee Defendants filed a motion for summary judgment. Plaintiffs opposed that motion, and filed a cross-motion. Following hearing, by order issued April 10, 2009, the court denied the cross-motions for summary judgment. The case proceeded to trial.

In the presence of counsel I took a view of the locus on September 17, 2009. On the view I saw not only the property belonging to the private defendants, on which the proposed project would take place, but the neighboring land of the Plaintiffs, on which their condominium building stands. On the view I had the opportunity to enter and take note of the view from a number of the condominium units in Plaintiffs’ building, including several facing towards the private defendants’ land. I also took the opportunity to observe the waterfront and street-side areas in the vicinity of the land of the plaintiffs and the private defendants, and the immediately surrounding neighborhood.

Trial took place in Boston on September 24, September 25 and October 30, 2009. Karen Smith, a court reporter, was sworn to transcribe the testimony and proceedings. Despite notice, the municipal defendants did not participate at trial or thereafter. The following testified: Josephine Dean, Salvatore Cavallaro, James Babin, Joel H. Tran, and Bruce Taylor, Jr., all called by the Trustee Defendants; and Donald Barrucci, Gasper Lagrasse, and Stephen Sawyer for the Plaintiffs. The exhibits received in evidence are as set forth in the trial transcripts. At the close of evidence I suspended the trial to hear closing arguments with the benefit of posttrial briefing. Plaintiffs and the Trustees were given the opportunity to file post-trial proposed findings of fact and rulings of law and legal memoranda. After receipt of post-trial submissions, counsel returned to the court to offer closing argument on the record. I took this matter under advisement and now decide the case.

For the reasons given below, I find and rule that Plaintiffs have standing to assert their claim, that Plaintiffs are not prevented from bringing this action based on the approvals earlier given to the building they now occupy, and that the Town of Salisbury Zoning Board of Appeals incorrectly granted a finding to the Trustee Defendants, because, given the nature, size and location of the structure the Trustees propose to build in place of their existing buildings, a finding of the sort embodied in the Board’s Decision could not have been issued lawfully. I decide that, under the applicable zoning law, the project could not have been approved by the finding contained in the Decision. I accordingly decline to address the correctness of the Board’s determination that the proposed structure would not be substantially more detrimental to the neighborhood than the preexisting nonconforming structures.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the parties, I find the following facts and I rule as follows:

FACTUAL FINDINGS

1. The private defendants’ property is an oceanfront lot on Salisbury Beach. The subject property (“locus”) is located at 188 North End Boulevard, Salisbury, Massachusetts and is described in Land Court Certificate of Title 79185. It is also shown as Lot 130 on Sheet 8 of Land Court Plan No. 3200A, dated January 2, 1922 and drawn by John P. Titcomb, civil engineer, and as approved by this court. A portion of the Land Court Plan is filed with the Essex (South) Land Registration District of this court, noted on Certificate of Title 1247. The locus also is shown on the Town of Salisbury Assessors Map 34 as Lot 157. Locus abuts the lot on which the Plaintiffs’ condominium building stands. Locus lies immediately to the north of Plaintiffs’ lot, and the two lots share a boundary, running from the street on the west to the ocean on the east. This common boundary lies on the northern side of Plaintiffs’ lot, and the southern side of the Private Defendants’.

2. The locus, which is 7,873 square feet and 50.08 feet wide, was created in 1911 by the Salisbury Beach Company and is as shown on the just-mentioned Land Court plan.

3. There currently are two “cottages” on the locus, one close to the street (“188 Front”) and the other set back on the locus nearer to the ocean (“188 Rear”). Under the Private Defendants’ proposed project, both would be entirely demolished. 188 Front is a single family residence built in 1910. 188 Rear is a two family residence built in 1936.

4. I find that the location and dimensions of the private defendants’ lot, of both existing structures on it, of the proposed new structure intended to replace the two existing ones, and of the locus’ structures’ setbacks, current and proposed, from the lot lines and from adjoining lot structures, are all as depicted on the set of drawings introduced into evidence at trial as exhibits 44A, B, C, and D. The 188 Front residential building is approximately 16.0 feet wide by 39.0 feet long, and the 188 Rear structure is approximately 27.0 feet wide by 41.4 feet long.

5. 188 Front is, at its closest point, 1.8 feet from the locus’ (southern) boundary line between Plaintiffs’ and Trustee Defendants’ properties, is 6.6 feet from the northern exterior of Plaintiffs’ building, and extends alongside Plaintiffs’ building for almost 1/3 of its length.

6. Trustee Defendants, or their predecessor family members, acquired the locus in 1944 and are the current owners.

7. Plaintiffs own or occupy the abutting property directly to the south of the locus known as 184-186 North End Boulevard, Salisbury, Massachusetts (“184-186 North End”). There is a residential multi-unit condominium building located on Plaintiffs’ property.

8. The Town of Salisbury adopted its first zoning by-law in 1967.

9. In May, 1978 the Town of Salisbury adopted the first zoning by-law which imposed dimensional and use regulations on the district where the locus is situated.

10. On May 14, 1979 the Town of Salisbury adopted amendments to the 1978 Salisbury Zoning By-laws.

11. The provisions as to nonconforming use, structures, and lots of the 1978 Salisbury Zoning By-laws, as amended in 1979, are identical to the provisions of Article V §§ 300-20 through 300-23A of the current Salisbury Zoning By-laws (“By-laws”).

12. On October 25, 1993 the Town of Salisbury adopted Article V, § 300-23B and C.

13. The locus, including the 188 Front and 188 Rear structures, and the multi-family use of the locus, all existed before Salisbury adopted its zoning by-laws, conferring on the locus status as a lawfully pre-existing nonconforming lot. The Trustee Defendants’ two cottages on the locus constitute pre-existing nonconforming structures, and the multi-family use is a pre-existing nonconforming use under the By-laws.

14. Plaintiffs’ and Trustee Defendants’ properties lie in an R3 High Density Zoning District (“R3 Zoning District”).

15. The Plaintiffs’ and Trustee Defendants’ properties are in the “Salisbury Floodplain District.”

16. The locus also is situated in the “Salisbury Beach District” as defined by the 1967 Zoning By-laws. There were no dimensional or use restrictions on properties in the “Salisbury Beach District” under the 1967 By-laws.

17. The current zoning requirements in the Salisbury R3 Zoning District include the following:

A. Minimum lot size is 0.25 acres;

B. Number of principal structures is 1.0;

C. Frontage is 40.0 feet;

D. Front-yard setback is 20.0 feet;

E. Side-yard setback is 10.0 feet;

F. Maximum percentage lot coverage is 60%;

G. Maximum building height is 35.0 feet; and

H. Minimum number of parking spaces per dwelling unit is 2.0.

18. The By-laws do not contain any provision expressly restricting the conversion of a property from seasonal use to year round use.

19. The By-laws define “alteration” as “[a]ny construction, reconstruction, or other action resulting in change in the structural parts or height, number of stories or exits, use or location of a building or other structure.” Salisbury Zoning By-law, Art. 1, § 300-5, Definitions.

20. On January 22, 1998 the Plaintiffs’ predecessor owner, Thomas J. Saab, filed a petition for a variance with the ZBA regarding what is now the Plaintiffs’ land, 184-186 North End (“184 - 186 North End” or “Plaintiffs’ lot”). At the time there were three buildings on 184-186 North End containing five residential units and one commercial unit. The January 22, 1998 petition for a variance sought approval to demolish the three existing buildings and replace them with a single three story, six unit residential building.

21. At the time Thomas Saab filed for zoning relief, 184-186 North End did not conform to the R3 Zoning District requirements in the following ways:

A. Multi-family dwellings are prohibited in the R3 Zoning District. 184-186 North End contained five residential units;

B. R3 Zoning District regulations require a 0.25 acre minimum lot size and the combined area of 184-186 North End is approximately 8,102 square feet, which is less than 0.19 acres;

C. R3 Zoning District regulations require a 20.0 foot minimum front-yard setback. The street front buildings at 184-186 North End were less than 1.0 foot from the front lot lines;

D. R3 Zoning District regulations require a 10.0 foot minimum side-yard setback. The then existing structures at 184-186 North End had a setback of 6.5 inches on the northern side and 20.0 feet, 1.0 inch on the southern side;

E. There were three principal structures on 184-186 North End; and

F. There was no off street parking. R3 Zoning District regulations required 10.0 off-street parking spaces, 2.0 off-street parking spaces for each of the 5.0 living units.

22. The January 22, 1998 petition for a variance was denied by the Board.

23. On April 6, 1998 Thomas J. Saab filed a Petition for a Finding for 184-186 North End.

24. On May 13, 1998, the ZBA voted to grant the April 6, 1998 Petition for a Finding. This allowed Saab, Plaintiffs’ grantor, to demolish the multiple nonconforming structures on 184 - 186 North End and replace them with a single structure that does not conform to the side yard setbacks.

25. On June 24, 1998 T&E Development filed an Application for Demolition Permit with the Salisbury Building Department to demolish the buildings at 184-186 North End. The Demolition Permit was granted on June 25, 1998.

26. Between July 5, 1998 and April 21, 1999, T&E Development demolished the three structures at 184-186 North End and replaced them with a three story, six unit residential building which is now the Plaintiffs’ building, Ocean Haven Condominium.

27. Plaintiffs’ building is 78.43 feet long, 41.1 feet wide and is located 4.45 feet to 4.46 feet from the northern boundary (the boundary shared with the Trustees’ lot) and 4.14 feet from the southern boundary, placing both sides of the new structure within the required 10.0 foot setback area.

28. Plaintiffs’ property is nonconforming to the R3 Zoning District requirements in the following ways:

A. Multi-family dwellings are prohibited in the R3 Zoning District. 184-186 North End contains six residential condominium units;

B. R3 Zoning District regulations require 0.25 acre minimum lot size. The combined area of 184-186 North End is approximately 8,102 square feet, less than 0.19 acres; and

C. R3 Zoning District regulations require a 10.0 foot minimum side-yard setback. The Plaintiffs’ building has a setback from the side lot lines of 4.45 feet to 4.46 feet on the northern side and 4.14 feet on the southern side.

29. Demolition of the prior buildings at 184-186 North End and the construction of Plaintiffs’ present building reduced the open space which existed formerly in the center of 184-186 North End. This open space ran from the northern lot line to the southern lot line.

30. The locus and existing structures owned by the Trustee Defendants do not currently conform to the R3 Zoning District requirements in the following ways:

A. R3 Zoning District regulations require a 0.25 acre minimum lot size. The locus is less than 0.19 acres;

B. The By-laws limit the number of principal structures to 1.0 per lot. There are 2.0 principal structures on the lot;

C. R3 Zoning District regulations require a 20.0 foot minimum front-yard setback. 188 Front has a 13.8 foot front-yard setback;

D. R3 Zoning District regulations require a 10.0 foot minimum side-yard setback. The existing structures on the locus have 6.5 and 1.8 foot side-yard setbacks;

E. Multi-family use is not permitted in an R3 Zoning District; and

F. R3 Zoning District regulations require 2.0 off street parking spaces per dwelling unit. The locus has four off-street parking spaces rather than the 6.0 required.

31. In 2006 the Trustee Defendants submitted an application for a building permit to demolish the existing cottages and replace them with a two-story, three family building. The Salisbury Building Inspector, Kenneth Surette, denied the Trustee Defendants’ application for a building permit and instructed the Trustee Defendants to seek a variance.

32. § 300-25 of the By-laws provides: “The duty of administering and enforcing the provisions of this by-law is hereby conferred upon the Building Inspector . . . .”

33. On June 21, 2006, the Trustee Defendants filed a Petition for Variance with the ZBA, seeking permission to demolish the existing cottages and replace them with a two-story, three family structure. The proposed building would be 40.0 feet by 90.0 feet, with a 2.9 foot setback from the Plaintiffs’ property. The ZBA assigned the Petition Case No. 06-040. The Petition was also referred to as Case No. 06-043.

34. On November 14, 2006, the ZBA ruled on a motion by member Bill Spinney that the appropriate relief for Trustee Defendants’ June 21, 2006 proposal was a Finding pursuant to By-law § 300–21B and voted to reclassify Trustee Defendants’ petition as a Petition for a Finding. The ZBA voted to continue the matter until December 12, 2006 to allow Plaintiffs (who had opposed the application to the Board) and the Trustee Defendants to negotiate revised setbacks.

35. On February 12, 2007 the Trustee Defendants filed an Amended Petition for Variance. The Amended Petition proposed demolishing and replacing the existing structures with a three-story, three family building. The building would be 37.0 feet by 90.0 feet and 44.0 feet in height, exceeding the maximum height restriction by 9.0 feet. The building would also increase the setback from Plaintiffs’ property to 6.5 feet.

36. On June 12, 2007, at the suggestion of a ZBA member, the Trustee Defendants withdrew all pending applications without prejudice.

37. On November 8, 2007, Trustee Defendants submitted a new Petition for a Finding pursuant to By-law § 300-21, dated October 25, 2007, seeking to demolish 188 Front and 188 Rear and replace them with a two-story, three family structure.

38. The Trustee Defendants’ October 25, 2007 Petition for Finding states that the existing cottages will be demolished and replaced with a three family building, the southern side-yard setback would be increased by 2.0 feet, off-street parking will be increased to 6.0 spaces, and the structure will comply with the maximum height requirement of 35.0 feet. The Trustee Defendants proposed a 39.0 feet by 91.8 feet building. This represented an increase in the southern side-yard setback from the boundary between Plaintiffs’ and Trustee Defendants’ properties to 4.5 feet.

39. The Trustee Defendants’ October 25, 2007 Petition for a Finding states that plans for the proposed building had not been submitted to the Office of the Building Inspector and that the Building Inspector had not refused a permit.

40. On December 11, 2007, the ZBA conducted a public hearing on the Trustee Defendants’ October 25, 2007 petition.

41. At the conclusion of the presentation made to the ZBA, it requested the Trustee Defendants to increase the front-yard setback to 20.0 feet to comply with the current zoning, which the Trustee Defendants agreed to do. Member Kendra Pike-Osgood then made a motion to make a number of findings in accordance with the presentation at the hearing, to find that the Trustee Defendants’ proposal would not be more detrimental to the neighborhood and will become more conforming. The ZBA voted unanimously to approve the findings and to grant Trustee Defendants’ a Finding pursuant to By-law § 300-21B. In the Decision, the Board found: “Upon such finding the board voted to grant the Finding as improvements are not more detrimental to the neighborhood and applicant making lot more conforming with Zoning By-Laws. Approved per plan by Millennium Engineering dated September 6, 2006 except front setback to be 20'.”

42. Trustee Defendants’ proposal will:

A. Eliminate the nonconformity as to the number of principal structures;

B. Eliminate the front-yard setback nonconformity;

C. Eliminate the parking space nonconformity by having six off-street parking spaces;

D. Eliminate any nonconformity with the flood plain protection by-law by placing the building on pilings;

E. Increase the southern setback from 1.8 feet to 4.5 feet and retain the northern setback at 6.5 feet;

F. Comply with the maximum height of 35.0 feet;

G. Comply with the maximum lot coverage of 60%; and

H. Comply with the 20.0 foot minimum front-yard setback.

43. The proposed structure will not comply with R3 Zoning District requirements contained in the By-laws’ Dimension Control Table as follows:

A. R3 Zoning District regulations require a 0.25 acre minimum lot size. The locus is less than 0.19 acres;

B. R3 Zoning District regulations require a 10.0 foot minimum side-yard setback. The proposed structure would have a 6.5 northern side-yard setback and a 4.5 southern side-yard setback; and

C. Multi-family use is not permitted in a R3 Zoning District according to the Dimension Control Table.

44. Trustee Defendants’ proposed building would extend nonconforming setbacks along both side setbacks to nearly double their existing lengths, but Trustee Defendants’ proposed building will have greater side setbacks than Plaintiffs’ existing building.

45. The Trustee Defendants proposal is to expand the seasonal multi-family use of the existing buildings to more frequent use, approaching year round use.

46. The existing non-conforming structures comprise 1,178 square feet. The proposed structure has a total 3,580 square foot area.

47. If built, the proposed structure would reduce two existing open spaces on the locus. One such open space is located on the northwest corner of the lot between the structures at 188 North End Boulevard and Lot 132 to the North. The other space is located between the structure at 188 Rear and Lot 128 to the South. This reflects the change from two smaller and unconnected cottage structures with open space between them to a brand-new rectangular multi-story building occupying much of the lot, including much of the open space areas now existing partially on the interior and at the sides of the locus.

48. Plaintiffs assertion is that they will suffer, as a result of the Trustees’ planned improvements, harm because of diminution in privacy, air, light, and views. Based on the testimony provided at trial, and the view taken, I find that at least some of the Plaintiffs’ privacy, air, light, and views will be diminished by the project on the side of Plaintiffs’ structure abutting the Defendant’s proposed structure, and Plaintiffs’ ocean views will be diminished to the north and northeast by the proposed structure. Plaintiffs also assert that they will suffer economic loss and decline in rental and property value of their units should the Decision stand. I do not find those assertions adequately shown by the credible evidence at trial.

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DISCUSSION

A. Plaintiffs Have Standing to Appeal the ZBA’s Finding Allowing Trustee Defendants to Construct a Three Family Structure on the Locus.

In reviewing a zoning board of appeals decision, the trial court hears the issues raised on appeal de novo and determines independently if the facts found by the trial court support the decision of the zoning board of appeals. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972). This scope of plenary de novo review is limited to findings of fact and does not apply to judgments made by the board within its proper discretion. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954). Where reasonable minds may differ in drawing conclusions from the 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).

Under G. L. c. 40A, § 17 only “persons aggrieved” have standing to appeal a decision of a zoning board of appeals. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n.9 (2008). If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he or she qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Board 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 3] 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 , 203-4 (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.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, 63 Mass. App. Ct. at 441. “Conjecture, personal opinion, and hypothesis” are insufficient. Id.

The right of a plaintiff to challenge a zoning decision depends on the nature of the injury which that decision will visit upon the challenger. Claims of aggrievement concerning increased traffic, decreased parking, and concerns regarding drainage, erosion, and flooding typically have been recognized by Massachusetts courts as sufficient to confer standing. See Paulding v. Bruins, 18 Mass. App. Ct. 707 , 709 (1984) (finding plaintiffs concerns of erosion, flooding, and damage to trees sufficient to confer standing); Marashlian, 421 Mass. at 723 (finding that a decrease in parking and an increase in traffic was “neither speculative nor too remote to make the persons not ‘aggrieved’”).

In addition, where a defendant’s project will give rise to direct impacts on a plaintiff neighbor due to the excessive density and close proximity of the defendant’s project, if there are material, tangible and particularized negative effects of the new structure on the neighbor, they ordinarily will constitute aggrievement for zoning appeal purposes. Our appellate courts often have recognized a neighbor’s right to contest zoning failings of projects which, given their excessive density, push themselves, in a materially intrusive adverse way, in the neighbor’s direction. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 (2009) and Dwyer v. Gallo, 73 Mass. App. Ct. 515 (2008).

However, claims arising simply from aesthetic concerns, or based on a loss of view or diminution of open space, generally are not, by themselves, considered sufficient to confer standing unless protected in the municipality’s zoning laws. See Martin v. Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001) (“concerns about the visual impact of a structure do not suffice to confer standing”; however, the court found standing in Martin because Belmont’s zoning by-laws specifically stated that views from public ways and developed properties should be “considerately treated in the site arrangement and building design,” holding that “[a] defined protected interest may impart standing to a person whose impaired interest falls within that definition.” Id., at 146-147); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (holding that a generalized concern of diminishment of open space fell under the category of aesthetic views and was not sufficient to confer standing); Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 (2010) (elimination of light, air, and views were interests protected in section 2 of the Boston enabling act and therefore constituted an aggrievement); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (plaintiffs’ concerns regarding loss of view conferred standing because Plymouth conditioned the granting of a special permit by requiring a finding that “[t]he proposed structure will not in any way detract from the visual character or quality of the neighborhood.”) (internal quotation marks omitted); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 377-78 & 377 n.4 (1988) (diminishment of light and air was a basis for standing where section 2 of the Boston enabling act provided for “adequate light and air”). Similarly, diminution in value may not be sufficient for standing unless tethered to a interest protected by the zoning by-laws. Standerwick v. Zoning Bd. of Appeals of Andover , 447 Mass. 20 , 31-32 (“A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme.”).

In Sheppard, supra, the Appeals Court held that a decrease in light and privacy was enough to confer standing on the plaintiff because the locus was located in a high density district, an area in which light and privacy already were scarce. See Sheppard, 74 Mass. App. Ct. 8 , 11-12 (2009). Citing to Standerwick and Dwyer v. Gallo, the Court found precedent for its holding that in high density areas, a diminishment of light, air, views, and privacy could be a basis for standing. See Sheppard 74 Mass. App. Ct. at 11-13 (quoting Standerwick, 447 Mass. at 31: (An abutter has a legal interest in “preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.”); Dwyer, 73 Mass. App. Ct. at 297 (“crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.”)).

A recent decision by the Supreme Judicial Court clarifies the role that views, and diminishment of them by a challenged project, play in zoning challenge standing analysis. In Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011), the plaintiffs, neighbors to a residential building project, claimed standing based on diminishment of ocean views plaintiffs contended would take place if their neighbors across the street increased the size, including the height, of their house. Id. at 117. The Supreme Judicial Court held that impairment of a view can confer standing if the zoning by-law protects views of that type (in this case, ocean views). Id. at 121. The zoning by-law at issue in Kenner “addresse[d] the visual impact of a proposed structure, or of changes to an existing structure, on the visual character of the neighborhood as a whole,” meaning that ocean views are not explicitly protected, but that plaintiffs could establish standing based on views if plaintiffs proved, with credible evidence, that both their property and the character of the neighborhood would be harmed. Id. at 121. The Court also emphasized that the harm needed must constitute an injury, not merely an impact. Id.

The Kenner court came to the conclusion that the plaintiffs there lacked standing, reinstating a Land Court judgment of dismissal that had been reversed by the Appeals Court. The Supreme Judicial Court held that the Kenners lacked standing because their claimed aggrievement, loss of ocean view, was, as the trial judge had found on the evidence and after taking a view, simply not supported by the evidence. The Kenners’ reliance on claims of diminution of value was similarly unsupported by the evidence, and in any event, rested entirely on the asserted loss of view which failed as a matter of proof.

1. Plaintiffs Have Standing Based Upon Diminution of Privacy, Light, and Air in this High-Density District.

The challenge I face in the case before me is to position it in the constellation of appellate decisions on zoning appeal standing. More particularly, I must decide how this case falls among those reported cases where the central thrust of the plaintiff’s complaint concerned loss of privacy, light, air, views, and resultant decline in the value of the plaintiff’s property.

In the instant case, Plaintiffs claim standing based on diminution in property value, loss of views, loss of privacy, a decrease in light and air, an increase in traffic, and an increase in density in an already high-density residential district. In particular, Plaintiffs support their claims for standing through the testimony of Donald Barrucci, Gasper LaGrasse, civil engineer Stephen Sawyer and two of the Trustees’ witnesses, architect Bruce Taylor, and real estate appraiser Joel Tran, regarding the loss of privacy, light, air, and views, and resulting property value impacts. [Note 4]

I find, weighing all the evidence, that there will be a loss of privacy to at least some of the units on the northern side of the Plaintiffs’ condominium building, arising from the close proximity of a much larger monolithic building that the Trustees intend to build pursuant to the Board’s Decision. I accept the testimony of Sawyer, Taylor, Lagrasse and others which, in my assessment of it, tends to show that condominium owners on the north side of the building will experience diminished privacy; a number of their existing windows will face the proposed structure instead of an open space. While the degree of privacy to be lost will depend to some degree on the precise placement of windows on the facing wall of the new structure, something not detailed by the Trustees in their plans, it is more than likely (and I so find) that at least some windows on that new, much larger facade, will have a vantage towards, and into, the existing building of the Plaintiffs. The proposed structure will be 9 feet from Plaintiff’s existing building with a set back of 4.5 feet. For a short distance nearest the street, the razing of the 188 Front dwelling, and its replacement by the proposed new three-family structure, will mean that the Trustee building just to the north of the Plaintiffs’ building will be stepped back a few feet from what is now there. But for the far longer facade of the new Trustee building extending seaward beyond the former footprint of 188 Front, the net result is a considerably closer, taller, more imposing and impenetrable building wall taking the place of a generous open area which now treats the Plaintiffs’ building to natural light and air.

I accept as well-founded the evidence of expectable loss of light and air, and do not adopt the contrary evidence. I find that there will be less area for air to circulate through to reach the Plaintiffs’ units, due to the larger mass and height, and closer proximity, of the proposed new building, with the attendant filling in of the open spaces currently on Defendant’s locus by that proposed structure. I determine that light and air will be restricted and reach the Plaintiffs facing units to a degree measurably below current levels; ambient and direct sunlight also will decrease along portions of the Plaintiff’s building abutting the proposed structure.

I also accept, as a factual matter based on the evidence I credit, that the Trustees’ proposed building will in certain locations reduce the views, including of the ocean and of the beach, now enjoyed by at least some of the units in Plaintiffs’ building. I find, for example, that the views from unit 3 on the second floor of Ocean Haven Condominium will be affected, not only because of the loss of privacy, ambient light, and sunlight, but also because that unit’s current ocean view will be cut off in part by the new building, leaving those views diagonally diminished to the north. The unit occupied by Barrucci would have its views to the north materially impaired, if not eliminated, and the LaGrasse unit, upon construction of the proposed building, will have its ocean views to the northeast severely compromised. As Mr. Tran testified, units in the left rear corner of Ocean Haven condominium building would suffer some impairment as well of their views to the north, towards the ocean.

To establish standing, Plaintiffs need to prove, by credible evidence, that they are aggrieved by the Trustee Defendants’ proposed improvements authorized by the Board’s Decision. The credible evidence standard, established in Butler v. Waltham, supra, consists of a quantitative and qualitative prong. See Butler, 63 Mass. App. Ct. at 441. Quantitatively, plaintiffs must provide specific factual support for their claimed injury. Id. Qualitatively, the evidence must allow a reasonable person to conclude that the claimed injury will result from the board’s action. Id. Plaintiffs did establish at trial that if the Trustee Defendants’ proposed structure was built there would be a reduction of privacy, light, and air, and that views to the north and northeast would be diminished. This testimony is sufficient to meet the credible evidence standard because Plaintiffs have supported their claims for particularized injuries with specific facts showing that Plaintiffs’ privacy, light, air, and views will decrease. A reasonable person thus could conclude that Plaintiffs’ particularized injuries of these types likely would result from the board’s action, and I so find.

Having proven sufficiently the likelihood of these types of harms coming to pass is not enough, however. Plaintiffs need to demonstrate as well that the harms they have proven up are of the variety that legally may constitute proper grounds of aggrievement. As earlier discussed, not all manner of injury serves to support the standing required to maintain a zoning appeal. The question I must now decide is whether, on the particular facts and circumstances of this case, at least some of the proven grounds of aggrievement advanced by the Plaintiffs are legally sufficient to give them standing to maintain this action.

The difficulty for Plaintiffs is that the Salisbury zoning by-laws are not at all expansive in their enumeration of legislatively protected interests, particularly as to interests lining up with harms of the variety proved by Plaintiffs at trial. And, as earlier addressed, generally, diminution of privacy, light, air, and view are insufficient to confer standing unless the local by-law explicitly focuses its concern on these interests. See Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 757-59 (2010) (standing conferred when Boston’s enabling act protects adequate light and air and proposed building will significantly diminish the air and light of existing building); 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.”); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011) (specific view plaintiffs allege is harmed must be explicitly protected by the zoning by-law).

I discern in the cases, however, a tendency supportive of standing, even in the absence of generous and specific enumeration in the local zoning law of protected interests such as loss of privacy, light and air, where the challenged construction takes place in a high-density setting, and will materially exacerbate heavy density already present at a closely occupied property line. Courts long have recognized standing based on diminution in privacy, light, and air in high density areas, and continue to do so. This is true not only in cases arising in communities where there is protection of these interests established in the local zoning regime, see, eg., McGee v. Zoning Bd. of Appeals of Boston, 62 Mass. App. Ct. 930 , 931 (2004) (where buildings were only a foot apart at the closest point, standing granted due to reduction of light, air, view, and privacy from defendant’s construction); Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 757-59 (2010) (standing conferred when Boston’s enabling act protects adequate light and air and proposed building will significantly diminish the air and light of existing building); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 (2009); Ruggles v. Board of Appeal of Boston, Mass. App. Ct. Docket No. 03-P-960, Memorandum and Order Pursuant to Rule 1:28, 2005 WL 81613, at *1 (Jan. 14, 2005) (“Crowding of an abutter’s residential property by violation of the density provisions of the zoning bylaw is harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.”). This judicial willingness to hear zoning plaintiffs challenging increased density projects on their abutters’ land also is found in reported decisions in which the local zoning laws lack specific protection for light, air, and privacy, but in which impairment of those interests appears, and flows directly from a marked rise in density, something which the by-law does expressly control.

This principle appears in cases such as Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) a rescript opinion in which the Appeals Court reversed a dismissal for lack of standing, where plaintiffs came forward with evidence supportive of their concerns regarding environmental impacts of the defendant’s septic system, an increase in artificial light and noise, and a decrease in privacy in plaintiffs’ back yard. “Especially given the close quarters involved here, the plaintiffs’ concerns cannot reasonably be characterized as ill-founded or speculative.” Id. The case, a challenge to a variance to permit “two houses being built directly behind ... [plaintiffs], rather than one,” was reinstated. Id.

Much to the same effect is Dwyer v. Gallo, 73 Mass. App. Ct. 292 (2008), in which the Appeals Court reversed as clearly erroneous a trial judge’s determination that the abutter neighbors lacked standing to challenge a special permit for construction of two homes on the private defendant’s adjacent undersized lots. The Walpole by-laws’ purposes included not much more than a general goal of prevention of overcrowding and lessening congestion. The Appeals Court concluded that, given that the plaintiffs and defendant lived in “a neighborhood where construction is already more dense than allowed by the current zoning....” id. at 295-296, the abutter possessed a legal interest in preventing further construction in a district in which the existing development is already more dense than the zoning then in force allowed. Id.

Recently, in Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 (2011), the Appeals Court reversed a dismissal for lack of standing entered in this court on summary judgment, concluding that where a by-law regulates density and dimensions, an abutter has a legal interest in preventing further construction in a district in which existing development already is denser than local zoning allows. Id., at 519. The plaintiffs were entitled to challenge a variance to construct “a garage which increased the preexisting density and dimensional nonconformity. The density and dimensional requirements of the by-law confer standing on the plaintiffs to challenge the variance based on the aggravation of the preexisting nonconformity of adjoining lots. The by-law extensively regulates the dimensions of lots and density of use.” Id., at 519-520. The plaintiffs were given the chance to return to the trial court to put on evidence supporting their claims of “substantial loss of and damage to their protected interests.” Id., at 521. The Appeals Court decided Marhefka after the decision of the Supreme Judicial Court in Kenner, supra. The Marhefka court, id. at n. 9, distinguished Kenner, reasoning that in “Kenner, the plaintiffs made no assertion that the complained-of development independently violated the Chatham by-law’s density and dimensional constraints.” On July 1, 2011, the Supreme Judicial Court denied the Marhefka defendants’ request for further appellate review. FAR-19904.

Marhefka relied upon Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 (1993), concluding that that case does not confer standing on a property owner who simply claims development will obstruct a water view, but that “where, as here, a neighbor asserts diminished water view as a result of further violation of by-law density and dimensional provisions, including those calling for a ‘visual buffer’ between lots, on an already nonconforming lot, then such an intrusion can confer standing.” 79 Mass. App. Ct. at 521. The Supreme Judicial Court itself has interpreted Tsagronis to stand for the proposition that a proper “legal interest that the zoning scheme at issue protected was the interest in ‘preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.’” Standerwick, supra, 447 Mass. at 31. The Standerwick court read Tsagronis as authorizing a judicial zoning appeal by landowners whose “claim [was] that the issuance of the variance adversely impacted them directly and [whose]...injury related to a cognizable interest protected by the applicable zoning law--the interest in preserving a certain level of density in the zoning district....” 447 Mass. at 31.

I conclude that in the case before me, based on the facts I have found following trial and the taking of a view, the Plaintiffs do have sufficient aggrievement to challenge the Board’s Decision. These abutters reside directly alongside the Trustees in an oceanside neighborhood of tightly-packed, densely-developed lots, which are all markedly undersized according to current zoning regulations. The evidence at trial proves that the proposed new building will be built very close to the Plaintiffs’ building, and will materially and adversely diminish the light, air, and privacy the Plaintiffs now have. The proposed new structure will be located nine feet away from Ocean Haven Condominium and only 4.5 feet from the property line, a violation of the side yard setback by 5.5 feet. Many of the windows on the north side of Ocean Haven Condominium which now look onto an open area with a concrete walkway, will face the close and looming side of the proposed building, adversely affecting privacy, air and light.

I am mindful that “[a]ggrievement requires a showing of more than minimal or slightly appreciable harm,” and that the “adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy.” Kenner, 459 Mass. at 121 and 122. I am acutely aware of the concern that to “conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed.” Id., at 122. In many cases, these considerations will militate strongly against the establishment of aggrievement.

Ultimately, however, “[s]tanding essentially becomes a question of fact for the judge.” Id. I conclude, as the trier of fact, that these Plaintiffs in the case now before me have proved that the project proposed by the Trustees and authorized by the Board will, if carried out, result in Plaintiffs being “truly and measurably harmed.” I conclude the Plaintiffs do have standing. [Note 5], [Note 6]

2. Plaintiffs Are Not Estopped from Bringing Their Claim.

The Trustee Defendants contend that the Plaintiffs are estopped from asserting their claim that Section 300-21B of the By-laws requires a variance and not a finding for a special permit from the ZBA. The Trustees make this argument because Plaintiffs own and live in a condominium building which itself benefitted from a decision by the ZBA that, under very similar circumstances, granted the developer of the Plaintiffs’ condominium project a finding and not a variance. On the strength of that finding, the Plaintiffs’ predecessor built the building in which they have their units today.

On January 22, 1998 Plaintiff’s grantor, Thomas J. Saab, filed a petition for a variance with the ZBA regarding 184-186 North End. The January 22, 1998 petition for a variance sought to demolish the three existing nonconforming buildings and replace them with a single three story, six unit residential building, also nonconforming. This proposed structure is now Plaintiffs’ building, Ocean Haven Condominium. With the variance denied on January 22, 1998, Thomas J. Saab applied for a finding. On May 13, 1998, the ZBA voted to grant the petition for a finding, enabling Plaintiffs’ predecessor owner to demolish and replace the three nonconforming structures with a single nonconforming structure.

To the extent the Trustees couch their defense on this ground to Plaintiffs’ appeal in terms of “estoppel,” that may not be the most apt expression of their contention. Estoppel is an equitable doctrine that seeks to prevent a person from “benefitting from his own wrongdoing and to avoid injustice.” Harrington v. Fall River Housing Authority, 27 Mass. App. Ct. 301 , 307 (1989). Equitable estoppel requires the establishment of three elements: (1) “a material misrepresentation of a party that had reason to know of its falsity”; (2) “reasonable reliance upon the misrepresentation”; and (3) “some disadvantage to the party seeking to assert estoppel fairly traceable to the misrepresentation.” Harrington, 27 Mass. App. Ct. at 308 (citing Falcone v. Pierce, 864 F.2d. 226, 228 (1st Cir. 1988)). See also Bongaards v. Millen, 440 Mass. 10 , 15 (2003) and Moran v. Gala, 66 Mass. App. Ct. 135 , 139 (2006). The burden rests on the party asserting estoppel to prove its elements. See Harrington, 27 Mass. App. Ct. at 308-09 (1989).

Here, the Trustee Defendants’ argument is not, strictly speaking, one of estoppel. They cannot really contend that Plaintiffs made any misrepresentation in connection the Trustees’ applications to the Board which culminated in the Decision. That the earlier authorization for the Plaintiffs’ building rested on much the same relief as the Trustees sought was well known to the Board, not in the least because the Board, institutionally at least, was aware of the precedent, and also because the Trustees, as applicants, were fully able to remind the Board of the permitting history of the Plaintiffs’ project right next door.

The better way to analyze the Trustees’ assertions on this point is to treat them as saying that the Plaintiffs, as the beneficiaries of the finding given to Saab, their building’s developer, somehow lack the standing to object when the Trustees obtain from the Board the very same relief. If the relief given to Saab was adequate to construct the building the condominium now occupies, why and how can those occupants say that relief is inadequate to authorize the pending project? The Trustees say that, while some other aggrieved party might be entitled to make this argument, these Plaintiffs, in fairness, should not.

It is useful, in resolving this issue, to look at some of the leading cases to which the parties refer; these are cases that deal, in a zoning context, with the limitations faced by landowners who seek to challenge zoning approvals of the same ilk as those the challengers themselves enjoy. Two major decisions are Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 (1949), and Sherrill House v. Board of Appeal of Boston, 19 Mass. App. Ct. 274 (1985). Notably, however, these two involve the competing interests of businesses. In Circle Lounge & Grille the plaintiff, an owner of a restaurant in a business district, appealed the decision of the Board of Appeal of Boston granting the defendant a variance allowing the defendant to build a restaurant in the abutting residential zone. Circle Lounge & Grille, Inc., 324 Mass. at 427-28. The court held the plaintiff was not a person aggrieved by the zoning by-law, because zoning laws do not protect businesses from competition. Id. at 430-31. Rather, the zoning ordinance at issue was enacted to protect residences from the encroachment of businesses. Id. at 431. The court held that the plaintiff was not an aggrieved party because he was operating a business in a business district and thus had no interest in preventing another business from obtaining a variance to operate in the neighboring residential district. Id. at 430-32 (“It would be an anomaly to confer upon the plaintiff peculiar legal rights against a business of a kind permitted in the zone where its property is.”).

In Sherrill House v. Board of Appeal of Boston, the plaintiff, a nursing home, sought to prevent the defendant from erecting a correctional facility for those convicted of driving under the influence. 19 Mass. App. Ct. at 274-75 (1985). The uses of both properties, the existing nursing home and the site of proposed correctional facility, last a hospital, were prohibited in the existing R-8 residential district and thus nonconforming uses. Sherrill House, 19 Mass. App. Ct. at 274. The court held that Sherrill House was not an aggrieved person under the zoning ordinance because the plaintiff operated a nonconforming use in the residential district, and, therefore, had no interest in maintaining the district as residential. See Sherrill House, 19 Mass. App. Ct. at 276-77.

These two cases, and others in the same vein, stand for the proposition that a non-residential landowner which challenges a zoning permit will be rebuffed when the challenger, though advocating for a result that will help keep the district residential in character, is seeking to vindicate its own business interests. The message of the Circle Lounge line of cases is that zoning appeals devoted to enhancing a business’ business will be turned away when the challenger itself enjoys a right to maintain that business in a zone that otherwise would prohibit it.

These cases do not support the proposition for which the Trustees contend. They do not stand for the principle that a neighboring landowner whose property has, in the past, obtained zoning dimensional relief may never assert that someone else in the neighborhood is not entitled to similar relief. That the Plaintiffs’ building got constructed based on a finding from the Board, issued many years earlier to a prior owner of the land, does not bar the Plaintiffs now living on the land from challenging the award of the same sort of relief to the lot next door.

First, the Plaintiffs have no culpability for the actions of their developer, Saab, who may well have obtained the right to build the condominium project on the basis of a legally insufficient approval from the Board. Nothing in the evidence suggests that any of the Plaintiffs have any relationship with Saab other than as his direct or indirect successor in title. And nothing shows any of the Plaintiffs to have been involved in the procurement of the finding in 1998 which allowed Saab to proceed with his construction project.

Second, there are strong policy reasons why the result for which the Trustees argue ought not prevail. A chief goal of zoning dimensional regulation is to regulate and limit density above a locally ordained level. That goal would be disserved by a rule which precluded next door neighbors from challenging as unlawful permits issued which increase density, just because those neighbors themselves have received a similar dispensation. Even if the first approval was improper, the goal of controlling density would be frustrated by barring the first permit recipient from challenging subsequent permits issued on the same grounds. One mistakely issued permit would engender many more, and the result would be a wholesale departure from the zoning norms established by the Town Meeting. Each subsequently issued permit would bar a new landowner from challenging the next improper permit, and the zoning dimensional rules would be overcome by the ever expanding inability to appeal when those rules are flouted.

Plaintiffs’ building appears to be beyond reach of zoning enforcement based on the nature of its approval in 1998, but that is because of the length of time that has passed since the construction of Plaintiffs’ building. G.L. c. 40A, §7. There is no suggestion in the case now pending before me that the Plaintiffs’ appeal is anything but timely.

I decide that Plaintiffs may maintain this action notwithstanding that the building on their land was built pursuant to the very type of finding they now challenge.

B. The Zoning Board of Appeals Incorrectly Granted a Finding Pursuant to Article V, § 300-21B of the Salisbury Zoning By-laws.

Section 6 of G.L. c. 40A (“Section 6”) as a general proposition, requires the application, to nonconforming structures and uses, of subsequent zoning law amendments when any reconstruction, extension, alteration, or structural change is made after the amendment takes effect. Section 6 provides the roadmap for analyzing when, how, and to what degree later zoning law changes affect previously lawful structures and uses. Section 6 specifies the least protection municipalities must afford to prior nonconformity. Towns can adopt by-laws that are more indulgent than Section 6, but cannot shrink the protection to less than that mandated by Section 6, which applies unless a local by-law is more generous. See Rourke v. Rothman, 64 Mass. App. Ct. 599 , 605 (2005); Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 , 209 (1946) (Section 6's predecessor “prescribes the minimum of tolerance that must be accorded to nonconforming uses”); Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991). Cf. Berliner v. Feldman, 363 Mass. 767 (1973) (in case involving destruction of building by catastrophe, court applied Section 6 instead of local by-law).

If it is Section 6 which controls, and not some more relaxed local enactment, then courts apply the test set forth in cases such as Rockwood v. Snow Inn Corporation to evaluate whether the changes being made affecting the nonconformity may be authorized by a finding alone, or require issuance of a full-blown variance, with its far more demanding prerequisites, see G.L. c. 40A, §10. The test requires that the change or extension comply with the dimensional rules in the then current local by-laws and, only then, if it does, also looks to whether the change or extension is or is not substantially more detrimental to the neighborhood than the preexisting nonconformity.

This is the central determination I must make to decide the Plaintiffs’ appeal on the merits. If, as the Plaintiffs say, the finding issued by the Board in its Decision was legally inadequate, because only a variance could authorize the construction contemplated by the Trustees, then the Decision was legally deficient and cannot stand.

Plaintiffs argue that the ZBA could not authorize the project with only a “finding” that the result the project will produce will not be substantially more detrimental to the neighborhood, because the proposed structure will create new zoning dimensional nonconformities along the northerly and southerly sides of the locus, and will not merely continue prior-existing nonconformities. The existing 188 Rear structure along the northerly side of the property has a varying side setback that ranges from 6.5 feet to 8.3 feet. The proposed structure will have a uniform northerly side setback of 6.5 feet. While in some portion of the locus, this will maintain the existing setback nonconformity, in a significant way the setback along the northern side line will be increased materially. In the portion of the locus where the new building will replace the 188 Rear structure, the result will be an addition of 1.8 feet of nonconformity along the northerly side of the property. Plaintiffs assert that this addition of 1.8 feet of nonconformity is a new nonconformity that requires a variance. In addition, to the west of the existing 188 Rear building, there is now no violation of the current side yard setback on the northerly boundary. The proposed new building will occupy a large portion of this previously complying unimproved stretch of the northerly side yard, and will stand only 6.5 feet away from the northerly lot line, less than current zoning requires.

At the southern side of the property, the existing 188 Front structure is angled, making it set back from the property line from 2.5 feet at most, to 1.8 feet at its point closest to the southern side property line. The proposed new structure will be uniformly set back 4.5 feet from the southern property line. Plaintiffs acknowledge that the southern side setback will be increased in places, namely alongside the new building in the area where 188 Front now stands, and that the northern side setback will be made uniform at 6.5 feet. Plaintiffs say, however, that none of the side setbacks which will emerge when the project is done will meet current zoning requirements. They argue that the construction of the entirely new building, a rectangular structure over 91.6 feet long, will place it in areas of sideyard never before occupied by either of the existing two cottages, 188 Front and 188 Rear, which are approximately 39.0 feet and 41.4 feet long, respectively. This occupation by the new building of previously unoccupied land within the side yards required by the current zoning law is what Plaintiffs say creates a new nonconformity that also requires a variance.

The Trustee Defendants argue that a finding was proper under Article V, § 300-21B of the By-laws because the By-laws do not prohibit a voluntary demolition and reconstruction of nonconforming structures, including in the manner proposed here by the Trustees. The Trustees say, correctly, that towns can adopt provisions that are more generous than those provided for in G.L. c. 40A §6, and that when they do, courts must respect the by-laws in keeping with the indulgent intent of the municipality. The Trustees call upon the court to give deference to the Board’s Decision, which the Trustees say must be read as interpreting the By-laws to permit the Trustees’ plan to go forward without a variance, based on a finding of the Board alone. In Salisbury, the Trustee Defendants argue, the ZBA has consistently allowed the voluntary demolition of nonconforming structures and the construction of new nonconforming replacement structures, as long as the proposed structure is not substantially more detrimental to the neighborhood than the existing nonconforming structure and the Board so finds. Therefore, a finding by the ZBA allowing the proposed structure was valid, the Trustee Defendants argue, because the proposed structure will not create any new nonconformities, will eliminate several nonconformities, and will not be substantially more detrimental to the neighborhood.

To determine whether Section 6 or the local by-law applies I first look at the relevant portions of the statute and the local by-law. My task is to discern whether the local zoning regulation does actually afford more leniency than the minimum protection available under Section 6. Section 6 states in pertinent part: Preexisting 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 . . . that such change, extension, or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Article V, § 300-21B of the By-laws (“Section 300-21B”), first enacted in 1978, the provision on which the Trustees rely in support of the finding they received, uses very similar language:

Preexisting 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 Zoning Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

The Trustees, observing that Section 300-21B applies, among other things, to alteration of preexisting nonconforming structures or uses, also point to the definition of “alteration” that the By-laws supply in Section 300-5:

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

The Trustee Defendants attribute great breadth to Section 300-21B by applying the expansive by-law definition of “alteration” to the use of the verb “altered” in that section. Because the general definition of an “alteration” in the By-laws encompasses construction, reconstruction or “other action,” the Trustees contend that the By-laws authorize the Board to make a valid finding for a project such as the one involved here, in which two older nonconforming cottages would be razed, and an entirely new structure would be placed on the cleared lot. I conclude that this argument lacks a valid legal basis.

The words of Section 300-21B are strikingly close to those of Section 6. The logical conclusion ought to be that the local law was passed to be consonant with, and not to create dispensations far in excess of, the statute which it so faithfully follows. There is nothing in the words of Section 300-21B themselves that bespeaks any attempt by the Town to expand in a momentous way the carefully crafted safe harbor the state statute extends to all owners of prior nonconforming land, structures, and uses. If the Town had the intention to provide a significantly greater degree of latitude, to the point of allowing the complete voluntary demolition of existing buildings, and the replacement of them with entirely new ones, the legislative outcome of the Town Meeting ought have been far more explicit on that fundamental point. The words of Section 300-21B, in full alignment with Section 6, only speak of extension or alteration. It is too far a reach to find in the By-laws’ generic, catch-all definition of “alteration” the legislative directive to authorize in Section 300-21B wholesale demolition and entirely new building which would remain immune from the effect of newer zoning regulation. The Trustees argue that the By-laws do not outright prohibit such a result. The answer on this point is that the By-laws have an obligation, when they afford protection against the requirements imposed by a new zoning law, to be clear on just what is and is not protected. And the By-laws, read as a whole, simply do not excuse from compliance with new zoning the type of wholesale redoing of a lot which the Trustees intend.

Even if the By-law’s definition of “alteration” is applied unflinchingly to the use of the verb “altered” in Section 300-21B, it does not take that section nearly as far as the Trustees contend. Even if Section 300-21B does permit voluntary demolition and new construction to take place and still qualify for protection under Section 300-21B, the section does not extend its umbrella over a project, like the one at issue here, in which the nonconformity which exists will be physically extended and enlarged on the locus. In other words, the demolition and new construction might constitute an “alteration” within the meaning of Section 300-21B, but that section does not authorize the material occupation of the required setback strip by the new building in areas which had never been built upon before. Demolition and new construction might be permitted under Section 300-21B to the extent the new building created no new or greater noncompliance with the setbacks than the razed structures, but that is not the case now before me. The plans are clear that the new building will in a material way stand within the setback area in places never before infringed upon by the existing two cottages.

The Appeals Court this year had the opportunity to review a local zoning by-law definition of “alteration” that comes quite close to the one in the Salisbury By-laws. In Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 (2011), [Note 7] the Appeals Court disagreed with a trial judge’s determination that the building commissioner of Truro did not abuse his discretion in treating the project involved in that case as an “alteration.” 79 Mass. App. Ct. at 604. The Truro zoning law defined “alteration” as “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.” Id. The Appeals Court first acknowledged that the “by-law is broadly worded and contemplates within the definition of ‘alteration’ almost any conceivable change, including that of location, to an existing structure. Id., at 605. But the court went on to say that the by-law “does not provide license for the unlimited combination of every conceivable change to property, and all at the same time. This is in conformity with the view that the ‘ultimate objectives of zoning would be furthered by the eventual elimination of non-conformities in most cases.’ Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 , 859 (2005).....” Id. The Appeals Court determined that, “the by-law itself is unobjectionable but, both in its interpretation and its application of the by-law, the town has strayed beyond the statutory bounds. Nor, in this context, can it be asserted that the by-law’s catchall phrase ‘any other related change’ permits the unlimited combination of changes while the preceding body of the by-law does not. That phrase merely allows for the consideration of changes not explicitly listed.” (footnote omitted). Id.

There are limits to the effective use of decisional law interpreting language in one town’s by-law to interpret close, but not identical, words in the law of another municipality. And the nature and scope of the projects affecting prior nonconforming uses and structures of course differ from case to case. Nevertheless, the import of Schiffenhaus for the case now before me is that our appellate courts are not widely accepting of local interpretations of municipal zoning law definitions that allow sweeping demolition or extensive new construction to qualify as an “alteration” for the purpose of qualifying under local by-law analogues to Section 6. If a local zoning law is meant to be truly generous, and a city or town wishes to extend protection to a prior nonconforming structure in such a momentous manner, the law enacted in the town ought be decidedly explicit on the point. The lack of explicit permission in the by-law ought not be overcome by an expansive interpretation of the by-law by municipal boards and officials, no matter how well intentioned.

This is in large part the reply to the Trustees when they urge the view that their interpretation of Section 300-21B is the one the Board adopted in their case, and is one which has received a consistent interpretation from the Board over a number of years. Courts of course must and do give deference to a local zoning board’s fair and reasonable interpretation of its own zoning by-law. Livoli v. Zoning Bd. of Southborough, 42 Mass. App. Ct. 921 , 923 (1997). “We are, in any event, obliged to defer to a zoning board’s reasonable interpretation and application of its own by-law.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 358 (2001). But when the interpretation of the Board does not withstand the legal scrutiny the court gives to the enactment, and the court comes to the conclusion that the law necessarily means something different than the Board’s interpretation, it is the court’s which must control. This is so no matter how well-intentioned, and how long-standing, that interpretation may be. Hebb v. Lamport, 4 Mass. App. Ct. 202 , 209 (1976).

In Schiffenhaus, the Appeals Court was fully aware of the Town of Truro’s position that “in nineteen years, without exception, it had never determined that a change did not qualify as an alteration, and that it was within its authority in so doing.” 79 Mass. App. Ct. at n. 7. None of that provided grounds, however, for the Appeals Court to adopt the municipal construction of the by-law provisions at issue. The Appeals Court construed the words of the by-law in a manner wholly different from the long-held interpretation of the Town, and, contrary to the municipal officials (and the trial court), ruled that the project involved there simply could not qualify the prior-nonconformity for protection against later-enacted zoning requirements.

In the case now before me, I conclude that I cannot adopt the Trustees’ view that Section 300-21B of the Salisbury By-laws broadly provides protection to the extensive project proposed for the locus. I decide that the meaning of that section is essentially the same as the almost identical provisions of Section 6, and that Section 300-21B should be treated and applied by the court consistently with Section 6.

Rockwood v. Snow Inn Corporation, supra, sets forth the test to determine whether, under Section 6, a finding or a variance is what is required for a particular project involving a prior nonconformity. See Rockwood, 409 Mass. 361 (1991). The Rockwood test limits the ability to grant a finding under Section 6 only to those instances where: (1) the extensions or changes comply with the local by-laws; and (2) the extensions and changes are not substantially more detrimental to the neighborhood than the existing nonconforming structure(s). Rockwood, 409 Mass. at 364. Thus, all proposed extensions, alterations, reconstructions, and changes to a nonconforming structure must first comply with the local by-laws before the board can even consider the impact to the neighborhood.

Applying Rockwood to the case in front of me, it is clear that the proposed construction requires a variance. However characterized, in whatever form of words, the proposed extensions or alterations to the two nonconforming structures do not comply with the By-laws. The Town of Salisbury requires a twenty foot front-yard setback, a ten foot side-yard setback, and a ten foot rear-yard setback. The proposed extensions will not comply with the side-yard setbacks; the side-yard setback on the northerly side of the property will only be 6.5 feet and the side-yard setback on the southerly side of the property will only be 4.5 feet. The proposed structure maintains the nonconformity of the north side-yard setback which varies from 6.5 to 8.3 feet where the existing building stands, to a constant 6.5 feet; the new building lessens the nonconformity of the southern side-yard setback, which currently varies from 2.5 to 1.8 feet where the existing structure stands, to a constant 4.5 feet. But on both the northern and southern sides of the new building, there are significant areas where it will occupy the sideyard that never were occupied before. In other words, there are areas of the locus, as now improved by the 188 Front and 188 Rear structures, where portions of the required ten foot sideyard are entirely open. The new building will be placed on much of the portions of the sideyards which currently do comply with the By-law. This means that the building to be built fails to comply with the dimensional requirements of the By-laws, and that the proposal does not satisfy the first prong of the Rockwood test. The new building thus requires a variance.

The ZBA should not have reached the second prong of the Rockwood test, which considers whether the proposed structure would be substantially more detrimental to the neighborhood than the existing nonconforming structure. The inquiry ought not have progressed to consider this question, at least not in the context of the finding the Board purported to make, because the finding was legally insufficient to authorize the project even if it could have been carried out without substantial detriment to the neighborhood.. [Note 8]

*******

I find and rule that Plaintiffs have standing to assert their claim, Plaintiffs are not estopped from bringing this claim, and the Town of Salisbury Zoning Board of Appeals incorrectly granted a finding to the Trustee Defendants. Because the relief provided in the Decision was not lawfully available to the Board to grant on the facts of this case, the judgment I will direct enter in this action will annul the Board’s Decision.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 18, 2011.