MISC 07-357459

November 7, 2011


Long, J.




These three cases, each a G.L. c. 40A, § 17 appeal from a decision of the Dennis Zoning Board of Appeals (the “Board”), [Note 1] present a single dispositive question. What use may be made of the structure behind the beachfront vacation house at 7 Ocean Avenue in Dennis, originally built as its garage? [Note 2] Its owners, the Boyts, contend that they, their visitors, and their renters may use it as additional living space complete with kitchen, dining area, bedroom and bathroom. Its abutters, the Kellys and the Christies, contend that such use is prohibited. Generally speaking (there are seeming inconsistencies between its decisions, which I address and resolve below), the Board has agreed with the abutters.

The cases were tried before me, jury-waived. Based upon the testimony and exhibits admitted into evidence at trial, [Note 3] my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule as follows.


The property at issue is 7 Ocean Avenue in Dennis, currently owned by Elden Boyt Sr. and Elden Boyt Jr. (the “Boyts”) who purchased it in 2000. It is directly on the beach and used as a vacation home and seasonal rental. There are two structures on the property, both constructed prior to 1927: (1) a two-story, four bedroom, single-family house (the “house”), and (2) a one-story second structure located immediately behind the house, built as its garage (the “garage”). The Kellys and the Christies are immediate abutters whose homes are just a few feet away in this densely-packed neighborhood. See the attached Exhibits 1 and 2. [Note 4] Neither they nor the municipal defendants (Dennis’ Building Commissioner and its Zoning Board of Appeals) have any quarrel with the use of the Boyts’ house. The dispute is over the currently allowable uses of the garage. [Note 5]

The Boyts contend the garage can be used, and for many years has been used, as additional dwelling space complete with kitchen, dining area, bedroom, and bathroom. The Kellys, the Christies, and the Board contend that any such use is illegal. The resolution of the controversy turns on the current zoning bylaw and the extent of the “grandfather” protections afforded the garage, if any, by G.L. c. 40A § 6 and/or the town’s bylaw, § 2.4. [Note 6] Some history is thus in order.

The garage is only 9.5 feet from the rear lot line and 1.7 feet from the side lot line, both perfectly fine when it was built (pre-zoning) but non-compliant at present. [Note 7] The garage is thus a pre-existing, protected, non-conforming structure pursuant to G.L. c. 40A § 6. This is not disputed. At issue is the scope of its allowable use.

Under current zoning, in effect since 1984, the minimum lot size in the district is 40,000 square feet per residential unit. (Tr. Ex. 1). Between 1973 and 1984, the minimum was 20,000, and between 1953 and 1973, 7,500 square feet per dwelling. (Id.). The Boyts’ lot has 12,500. Thus, since 1953, the zoning bylaw has limited the property to a single dwelling unit. (Id.). However, the bylaw allows accessory structures and uses which, prior to 1989, were defined as “[a] building or use customarily incidental to and located on the same lot with the building or use to which it is accessory . . .” (Id.). [Note 8] Those bylaw definitions were changed in May 1989 and now read: (1) “Accessory Use. A use customarily incidental to and located on the same lot with the use to which it is accessory . . .”, and (2) “Accessory Structure. A detached structure located on the same lot with the principal structure to which it is accessory, and not used for either seasonal or year-round living.” Zoning Bylaw (Tr. Ex. 27), § 5.B. The parties agree that the garage is an accessory structure and that the current bylaw does not prohibit toilet or shower compartments in accessory structures. (Tr. Ex. 1).

Joseph and Cheryl Kelly (the “Kellys”) own the property at 14 Ocean Park Way on which there is a two-story, single-family house. They purchased it in 1997. Charles and Nancy Christie, as trustees of the Charles Christie Revocable Trust (the “Christies”), own the property at 16 Ocean Park Way on which there is a two-story, single-family house. They purchased it in 1961. Both the Kelly and the Christie properties directly abut the western (rear) lot line of the Boyt property, and the locations of the structures on all three properties are substantially as shown on Ex. 1. [Note 9] The single-family homes on all three lots are lawfully pre-existing non-conforming structures due to their lot sizes (smaller than currently required) and their failure to conform to current setback requirements. As previously noted, the Boyt garage is also a grandfathered structure. Only its use is in controversy.

The evidence regarding that use began in 1958, the date of the earliest observations of the trial witnesses and of the earliest events described in the admitted portions of the Affidavit of John Indelicato (Tr. Ex. 16). [Note 10] The trial testimony regarding this period came from Mr. Richard Toubeau whose parents, along with the Indelicatos (his uncle and aunt), first began renting the property in August 1958 and continued renting it each August thereafter until the Indelicatos purchased it in 1966. The affidavit is from Mr. Indelicato, deceased at the time of trial, portions of which were admitted pursuant to G.L. c. 233, § 65.

The house at 7 Ocean Avenue, then as now, had four bedrooms on its second floor and a full kitchen and living room on its first floor. It was used strictly as a summer home. [Note 11] In 1958, the garage behind the house had a garage door on its street side, a back door at its opposite end, a dirt (sand) floor, and was “full of clutter…definitely used for storage.” (Toubeau testimony). There was also a rudimentary laundry-style sink and a gravity-feed toilet (missing the overhead tank and thus flushed with a bucket) inside the garage. The toilet and sink were partitioned off from the remainder of the garage, which was used for storage. On the outside of the garage was a shower. The water lines came in from the house, and the gravity-feed toilet and sink were hooked up to an old cesspool located directly outside the garage at the end of the building. So far as the record shows, no building permit was ever sought or obtained for the sink, toilet, shower, or the water lines that supplied them, and there is no record that they were ever inspected by the town. At least as early as 1957, a building permit was required for any such work to be legal. See Boyt, Trustee v. Dennis Zoning Bd. of Appeals, Civil Action No. 01-312, and Kelly v. Boyt, Trustee, Civil Action No. 01-514, Memorandum of Decision and Order (Including Findings of Fact and Rulings of Law Pursuant to Mass. R. Civ. P. 52(a)) (Jun. 24, 2003) (discussed below). [Note 12]

During these summer rentals prior to the Indelicatos’ purchase of the property (the period 1958-1966), Mr. Indelicato would go to the garage, “listen to the radio…drink a lot…[and] tinker and finish with various projects that he was working on.” [Note 13] (Toubeau testimony). There was a table where Mr. Indelicato sat while he worked, a couple of chairs, a cot that was sometimes set up and sometimes not, a portable cooler in which Mr. Indelicato kept beer, a portable single-element hot plate, and “the rest was clutter.” (Toubeau testimony). Aside from storage purposes, only Mr. Indelicato used any portion of the garage at that time. As Mr. Indelicato described it in his affidavit, it was “my little getaway when I was on vacation with the family; it was my workshop area where I could go, relax, and do my work.”

As noted above, the Indelicatos purchased the property in 1966, rented it to others for eight weeks a year, and used it themselves the remainder of the season. [Note 14] Their full-time residence was in Natick where Mr. Indelicato was employed as a maintenance worker for the Department of Public Works. With used equipment acquired from that job and elsewhere, he gradually upgraded the interior of the garage. Beginning in “the [19]72-73 range” [Note 15] and continuing through the 1970s, 1980s and 1990s, Mr. Indelicato replaced the water pipes in the garage, upgraded the sink and toilet, partitioned them off to make a “miniature bathroom”, put a hot-water “tin can”-type shower inside the garage, connected the sink, toilet and shower to the old cesspool, replaced the single-element hotplate with a small stove, [Note 16] and replaced the portable cooler with a small, apartment-sized refrigerator. [Note 17] The floor remained sand but was covered by a rug. The bulk of the garage remained storage space. [Note 18] At some point, a “raised” area was created in the garage — a ten-inch step-up to the stove and sink “where everything was kind of boxed in.” (Toubeau testimony). The cot was replaced by a single bed and, later, by a double bed. Cabinets were installed, paneling put up, and a dresser and side-table brought in to accompany the bed. All of this work was done by Mr. Indelicato himself and, so far as the record shows, without any building permit or inspection by the town of any kind.

Mr. Toubeau began renting the property from the Indelicatos in the 1970’s for summertime vacations, generally for a week. From the mid-1970s until the time they purchased the property in 2000, the Boyts annually rented it for a week in the summer as well. [Note 19] During these week-long rentals, both Mr. Toubeau and Elden Boyt Jr. (in their twenties at the time) often invited friends to vacation with them. The members of the group used the toilet and shower in the garage as well as those in the house. At first, if there were too many guests to fit easily into the house, they stayed in tents pitched on the beach. After the neighbors complained, they stopped pitching tents and instead found sleeping space either inside the house or in the garage. During this period of time (1972-2000), there was no evidence that the garage was used as living, sleeping, cooking or eating space by anyone other than these two groups of renters, or at any time other than these two, one-week rental sessions each year.

The Indelicatos sold the property to the Boyts in 2000 who, shortly thereafter, applied to the Dennis Health Department and the town’s Conservation Commission for permits to replace its septic system. [Note 20] In connection with the review of that application, a representative of the Health Department performed a site visit in March 2000 which included an interior inspection of both the house and the garage. In her memorandum of that visit, the inspector noted that “the garage area is divided into two spaces, storage and a one bedroom unit with a small ‘kitchenette’ counter with a full bathroom (standing shower unit).” Board of Health Memorandum at 1 (Mar. 9, 2000) (Tr. Ex. 4). She further noted that “[t]he bedroom has not been recently built or renovated [and] [t]he room is not insulated.” Id.

At some point thereafter, the Dennis Building Commissioner came to the property to review the status of the garage. An inspection was conducted and, on July 25, 2000, a determination letter issued, stating: Based on old photographs from the 1940’s and 50’s [,] along with a site visit [,] I have made the determination that the garage/studio structure was likely an ancillary use to the main structure, the main structure being a residential use.

I would emphasize the word ancillary in that there is no evidence that the garage/studio had any other use except extra living space associated with the dwelling. There is evidence of electric and plumbing in the earlier photos, but no evidence that a second dwelling unit existed.

It is my understanding that the reason for this determination is to proceed with application for a building permit. If this is the case a full Building Code review will occur at the time of application and the code issues will be addressed.

Building Comm’r Determination Letter at 1 (Jul. 25, 2000) (Tr. Ex. 6).

Beginning in 2001, the Boyts undertook certain repairs and alterations to the garage. (Agreed Facts, ¶ 17). The exterior work was done pursuant to building permits. Id.; see Tr. Ex. 20 (Building Permit, Jul. 26, 2002) (garage windows); Tr. Ex. 21 (Plumbing Permit, Jan. 14, 2005) (main drain); Tr. Ex. 19 (Building Permit, Apr. 8, 2005) (exterior doors and windows). No permits were sought or obtained for any of the interior work at this time (stove replacement, cabinet installation, wiring, plumbing, wall coverings, insulation, and heat). The Boyts did apply for a variance and special permit to raise the height and add new exterior entry stairways and decks to the garage, but this application was denied by the zoning board. That denial was upheld by decision of the Superior Court in the consolidated cases of Boyt, Trustee v. Dennis Zoning Bd. of Appeals, Barnstable Superior Court Civil Action No. 01-312, and Kelly v. Boyt, Trustee, Barnstable Superior Court Civil Action No. 01-514, Memorandum of Decision and Order (Including Findings of Fact and Rulings of Law Pursuant to Mass. R. Civ. P. 52(a)) (Jun. 24, 2003).

Among the factual findings and conclusions in the Superior Court decision were the following: The lot contains 12,500 square feet. It is improved with a single family house and a detached garage/storage area/living space. The detached garage building is the subject of the application. The building is 30.75 feet long by 14.55 feet wide. The existing entrance to the garage from the street is by means of a garage door. At the rear of the structure is another door leading from an area that has been designated as the kitchen/living room/bedroom area. Currently the area which would house an automobile is being used for storage.

* * *

Mr. Boyt desires to raise the garage to a height of about eight feet on stilts or pilings and add two decks, one at the front of the garage and one to the southerly side, which decks would be accessed by two exterior stairways. The elevation of the garage would eliminate its use as a garage. Presently the garage is between 1.0 and 1.7 feet from the northerly lot line. Almost the entire structure lies within the 15 foot side yard setback. The westerly side of the structure is between 9.5 and 9.8 feet from the lot line. The zoning by-law requires a 25 foot setback.

The neighborhood is comprised of summer cottages sitting on top of the coastal dunes. The dunes migrate due to weather conditions. There is only one roadway leading into the colony. It is dirt and wide enough for only one car. The cottages are close to each other; cheek by jowl….

In 1957, the Annual Town Report referenced the adoption of a building code requiring a building permit before alteration, erection and/or reconstruction, of a structure. The Assessor’s Field Card indicates Mr. Boyt’s property was constructed in 1940. [Note 21] There is no indication that at any time a building permit was obtained for the inclusion of a kitchen, living room[,] bedroom and bath in the garage area.

* * *

The zoning by-law, § requires the ZBA to find that any alteration or extension to a pre-existing nonconforming use will not be substantially more detrimental to the neighborhood. Such alteration shall not change the existing nonconforming use. Mr. Boyt does not park his car in the garage section of the structure because there is no room due to the clutter. If the clutter were removed and a cinder block secur[ed] the garage door he could park his car. …

* * *

Mr. Boyt’s proposal will have a substantial detrimental effect on the public good. The addition of two exterior stairways and decks will exacerbate the present nonconformity of the garage. It will derogate from the intent of the by-law by creating a new status for the structure from that of garage to water-view living space.

Mr. Boyt has failed to establish an entitlement to either the special permit or the variance notwithstanding the ZBA’s failure to act within the statutory time period.

Memorandum of Decision and Order at 2-4, 6-8 (Jun. 24, 2003).

The Boyts have never applied for a special permit to change, alter, or extend the structure or use of the garage, nor for a G.L. c. 40A § 6 finding, except as referenced in the Barnstable Superior Court case noted above. As noted, that special permit was denied.

On August 9, 2007, the Boyts were served a “cease and desist” order by the town’s building commissioner, directing them immediately to cease “maintaining a second dwelling unit on the property at 7 Ocean Avenue” — a reference to the garage. Cease & Desist Order at 1 (Aug. 9, 2007) (Tr. Ex. 7). As stated in the order:

The second structure is a garage that has been converted into a second dwelling unit through the installation of a kitchen and bath and sanitary facilities. The second dwelling unit is being used for living purposes.

There are thus now two separate dwelling units located on the property. The second dwelling unit was created without a building permit to convert the garage to a dwelling unit. No occupancy certificate has been issued for the use of the garage as a dwelling unit.

* * *

The second dwelling unit located on the property must be removed immediately. Removal consists of removing the kitchen facilities and disconnecting the plumbing from the septic system servicing the main house. In addition, removal requires that the garage not be used for seasonal or year-round living.

I have no evidence that the second dwelling unit in the garage is a lawful preexisting nonconforming use or structure. I also have no evidence that you have obtained any zoning relief that would allow the lawful use of the garage as a separate dwelling unit or the conversion of the garage to a dwelling unit.

I have instructed Town Counsel to record a Notice of Zoning Violation against the property.

Id. at 1-2 (emphasis in original).

The Boyts appealed this order to the zoning board of appeals, which rejected their appeal. Board Decision (Oct. 11, 2007) (Tr. Ex. 9). Specifically, the board found:

Id. at 1-3. The Boyts appealed the board’s decision to this court pursuant to G.L. c. 40A § 17. That appeal is Case No. 07 Misc. 357459 (KCL). [Note 22]

On or about January 16, 2008, the Boyts applied for and received a building permit to perform certain work in the interior of the garage — in essence, the work they had previously performed in the early 2000’s without such a permit. The permit described the work as “interior remodeling of existing space; insulate walls and ceiling, install new wall covering, replace existing counter and cabinets, upgrade existing plumbing and fixtures, upgrade existing elec. and fixtures, repair/reinforce framing as needed (pocket door between rooms to be removed).” Building Permit at 4 (Jan. 17, 2008) (Tr. Ex. 10). The garage was described as an “un-heated structure,” and the representation was made that no rooms would be added or relocated during this project. Id. The requested building permit then issued. So far as the record shows, this was the first building permit ever issued for interior work on the garage.

By letter dated March 21, 2008, Mr. Kelly wrote to the building inspector requesting that the building permit be revoked. The building commissioner refused that request, ruling that “the renovations as determined by [his] office [were] being lawfully conducted under the Town of Dennis Zoning By-law and 780 CMR, the Massachusetts State Building Code, and do not constitute a violation of any zoning ordinance or by-law.” Bldg. Comm’r ltr. re: Enforcement Request (Mar. 26, 2008) (Tr. Ex. 12). The Kellys and the Christies appealed the building commissioner’s ruling to the zoning board of appeals, which upheld the building commissioner’s decision by 3-1 vote, one member abstaining. Board Decision (Jun. 20, 2008) (Tr. Ex. 14).

The findings made by the Board in support of that decision were as follows:

Id. at 1.

The Kellys and Christies filed a G.L. c. 40A § 17 appeal to this court from the zoning board of appeals’ decision. That appeal is Case No. 08 Misc. 381881 (KCL). The Boyts also filed a G.L. c. 40A § 17 appeal to this court from the same decision. That appeal is Case No. 08 Misc. 381900 (KCL).

Further facts are included in the analysis section below.


The parties agree that the current bylaw allows the garage to be used for toilet and shower facilities. (Tr. Ex. 1; Joint Pre-Trial Mem., Agreed Fact 33). Those uses may therefore remain. The bylaw, however, prohibits the use of the garage for either seasonal or year-round living and has done so since at least 1989. [Note 23] The question thus becomes whether those prohibited uses have been grandfathered pursuant to G.L. c. 40A, § 6 and the town’s Zoning Bylaw § 2.4. [Note 24] The Boyts have the burden of proof. Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 257 (1990). This burden includes (1) proof of the prior use, (2) proof that the prior use was lawful, and (3) proof that the current use “reflects the nature and purpose of the use prevailing when the zoning by-law took effect, whether there is a difference in the quality or character, as well as the degree, of use, and whether the current use is different in kind in its effect on the neighborhood.” Id. (internal citations and quotations omitted). Applying those tests to the facts of this case leads to the following conclusions.

First, there is no grandfathering of a “seasonal or year round living use” arising from Mr. Indelicato’s use of the garage, for the simple reason that neither he nor anyone else used it for that purpose during the period he rented it (1958-1966) and the subsequent time he owned it (1966-2000), except for the two one-week periods it annually was rented to either Mr. Toubeau or the Boyts from 1972-2000. This is because Mr. Indelicato’s use cannot be seen as “living” and, so far as the record shows, other than for storage, no one else used the garage while he was there except to visit him. Mr. Indelicato clearly saw the garage as his workspace, a different use entirely, and used it as such. Everything he did to the garage — the table, the chairs, the radio, the cabinets, the upgrade of the sink and toilet and, later, the installation of the “tin can shower” — was intended to make it a more comfortable workspace for himself or, to the extent used by others, solely as an additional toilet and shower for guests using the beach. [Note 25] It was not done to create a space for general habitation (i.e., an extra bedroom or bedroom suite; a second kitchen; etc.). The scattered occasions on which Mr. Indelicato may have heated a snack, napped during the day, or even slept overnight in the garage to get away from the noise of the house or disagreements with his wife do not suffice to change this fundamental fact. The garage was a workspace, pure and simple, and was neither intended nor used as living space during Mr. Indelicato’s occupation (rental: 1958-1966; ownership 1966-2000). Living space is thus not a grandfathered use as a result of his activities. See Hall, 28 Mass. App. Ct. at 257 (noting that the use allegedly grandfathered must reflect “the nature and purpose of the use prevailing when the by-law took effect”) (emphasis added). See also Town of Wellesley v. Brossi, 340 Mass. 456 , 464 (1960) (requiring a “substantial or continuous use of the premises” for particular activities to grandfather such a use).

The earliest occasions on which the garage arguably was used as “living” space date from the Indelicatos’ annual summer rentals of the property to Mr.Toubeau and Mr. Boyt (one week each) and the scattered days during those one-week periods in which Mr. Toubeau, Mr. Boyt and their friends either used the garage for overflow sleeping or its stove and refrigerator as additional cooking facilities. [Note 26] These times dated, at the earliest, from 1972, and their extremely limited nature (two weeks a year at most) [Note 27] do not suffice to grandfather that use. This is so for the same reason just noted — it was not the prevailing use of the garage at that time which, as discussed above, was storage and workspace. The regular seasonal use of the garage as overflow living, sleeping, eating or cooking space did not begin until the Boyts purchased the property in 2000 and that, of course, is too late for pre-1989 “grandfathering.”

There is yet another and equally fundamental reason why a “living space” use of the garage has not been grandfathered: such a pre-1989 use was not lawful. G.L. c. 40A, § 6; Hall, 28 Mass. App. Ct. at 257. It was not lawful because, as discussed above, the work required to make the garage a habitable living space (wiring, plumbing, and the installation of a sink, stove, walls and cabinetry) required building permits, [Note 28] no such permits were issued prior to the 1989 bylaw (indeed, not until January 2008), and no occupancy permit for the garage has ever issued.

Bd. of Selectmen of Wrentham v. Monson, 355 Mass. 715 (1969) and its progeny are not to the contrary. Monson holds that the failure to obtain a license from the local board of health does not make a prior non-conforming use “unlawful” within the meaning of G.L. c. 40A § 6. But Monson was careful to note that it reached this holding because the health regulations had “quite different significance” from zoning and the failure to obtain the license “can be easily remedied.” 355 Mass. at 716-717, 717-718. See also Derby Refining Co. v. Chelsea, 407 Mass. 703 , 711 (1990) (“A valid non-conforming use is not rendered unlawful by failure to possess requisite government approval, provided that such approval can be easily obtained.”) (citing Monson); Bd. of Selectmen of Charlton v. Girard, 359 Mass. 755 , 755 (1971) (noting that the holding in Monson was simply that “a valid nonconforming use was not necessarily destroyed by failure to comply with local or State licensing provisions.”) (emphasis added). Clearly there are instances in which the failure to obtain a permit or license does render the use unlawful within the meaning of the grandfathering provisions of G.L. c. 40A, § 6. I find and rule that the failure to obtain required building and occupancy permits is such an instance.

I say this for the following reason. As Monson and the cases that cite it show, the licenses and permits whose absence is excused must be of “quite different significance” from zoning and “easily obtained.” Building and occupancy permits do not fall into either category. They are part and parcel of the zoning process (they will not be issued without a zoning review) [Note 29] and they are not easily obtained. Instead, they require a detailed analysis by the building commissioner and periodic inspections of the work being done. Importantly, a structure will not be deemed inhabitable without inspection and certification of compliance with the building code and the issuance of an occupancy permit.

That the lack of a required building permit renders a use “unlawful,” taking it outside the protections otherwise granted by the zoning code, is best illustrated by Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 (1991). In that case, construing the G.L. c. 40A, § 7 limitation periods for actions to redress zoning violations, the court pointedly noted that, unlike use and structural violations for which a building permit had been issued (six years), and unlike structural violations for which no building permit had been issued (ten years), there is no protection for use violations not sanctioned by permit. Id. at 227. The reasoning behind this is easily understood. Unlike structures (which are open and obvious), and structures and uses disclosed by building permits (open and obvious again), uses without building permits can be ambiguous at best and completely hidden at worst. In this case, for example, without the opportunity to review building and occupancy permits, who on the outside would have known, definitively, what was being constructed inside the garage or that the garage was being used for “habitation” (living, sleeping and cooking) rather than allowable storage, showering and toilets? Zoning enforcement actions, whether by the town or abutters, should not be met with such ambiguity, nor should those who evade building permit requirements be allowed to profit from it in later broad assertions of “use” protection. To hold that required building permits are not required to make a use lawful for grandfathering purposes would create an incentive to rush substandard work into place, surely a dangerous practice that the legislature never intended to sanction.


The Board’s decisions on appeal in these cases may appear inconsistent (In Case No. 07 Misc. 357459 (KCL) the Board ruled that the garage could not be used as living space and affirmed the building commissioner’s order that its kitchen facilities, etc. be removed; in Case Nos. 08 Misc. 381881 (KCL) and 08 Misc. 381900 (KCL) it upheld the building commissioner’s refusal to revoke the building permits for that work), but in actual fact they are not. The Board was aware that its 2007 “no grandfathering” decision was on appeal, and its 2008 “building permit” decision expressly noted that “any violation of [its 2007 decision] relative to turning the garage into habitable space should be enforced by the building inspector unless a decision is made to overturn the [2007] decision.” Board Decision (Jun. 20, 2008). Moreover, it affirmed its earlier [2007] ruling that the garage was “an uninhabitable accessory structure” and noted that “the actions taken by the owner [the Boyts] [were] to mitigate building code violations and [were] accepted by the owner at his own risk.” Id.

Accordingly, for the reasons set forth above, the Board’s October 11, 2007 decision (Case No. 07 Misc. 357459 (KCL)) and its June 20, 2008 decision (Case Nos. 08 Misc. 383881 (KCL) & 08 Misc. 381900 (KCL)) are AFFIRMED in the following respects. The Boyts’ garage at 7 Ocean Avenue in Dennis may not be used as living space and all such use is ENJOINED, immediately. Its bedroom, kitchen and dining facilities must be removed in their entirety (e.g. stove, refrigerator, kitchen sink, kitchen counter and all associated cabinetry) and disconnected from the septic system, all within sixty days. Since the parties agree that the garage may be used for toilet and shower purposes, the bathroom and shower may remain in place and connected to the septic. The building permits for the bedroom, kitchen and dining-related construction are REVOKED. The remaining building permits (those for the toilet, shower, insulation and heat) may remain. In addition, the garage may be used for storage and as a maintenance-related workspace. Judgment shall enter accordingly.


Exhibit 1

Exhibit 1

Exhibit 2

Exhibit 2


[Note 1] Case Nos. 08 Misc. 381881(KCL) and 08 Misc. 381900 (KCL) are cross-appeals from the same Board decision and were consolidated into a single proceeding. Notice of Docket Entry (Sept. 11, 2008). Case No. 07 Misc. 357459 (KCL) is an appeal from an earlier decision. It remains a separate action but, because of the common question it presents, was tried together with them. Id.

[Note 2] The precise question presented is whether (and, if so, the extent to which) the use of the structure as an accessory habitation is a lawful pre-existing, non-conforming use protected by G.L. c. 40A, § 6 and/or the town’s zoning bylaw, § 2.4.

[Note 3] With the exceptions to be noted, I have received into evidence each of the Agreed Exhibits, whether or not formally offered at the trial itself, and overrule the relevance objections. Joint Pre-Trial Conference Memorandum, Agreed Exhibits (Jan. 26, 2009). The exceptions are Tr. Ex. 31 (offered at the trial but not admitted), Tr. Ex. 32 (photographs to which objections were raised, and were never authenticated or explained at trial), and the following portions of Tr. Ex. 16 (an affidavit from the now-deceased John Indelicato), excluded because they are beyond Mr. Indelicato’s personal knowledge: (1) ¶4 in its entirety, (2) the “I believe” portion of ¶6, and (3) ¶ 15 in its entirety. The remainder of the affidavit is admitted as a statement of a deceased person. G.L. c. 233 § 65. In this connection, I find that the non-excluded statements therein were made in good faith and on the personal knowledge of the declarant. Id.

Although admitted, I did not give any evidentiary weight to Tr. Ex. 17 (a hand drawn sketch of some sort, purportedly from the files of the Dennis Board of Health). It is not self-explanatory. There was no testimony regarding it. I cannot tell who created it, when, for what purpose, or with what attempt at accuracy, and there is nothing to indicate how it came to be in the Board of Health files.

[Note 4] The Boyt house is labeled “existing dwelling” on Exhibit 1(a site plan prepared by the Boyts in 2000 in connection with a building permit application) and the garage is labeled “existing studio/garage.” The Kelly and Christie houses are immediately behind the garage in the locations shown on the Exhibit. Exhibit 2 is a general plan of the surrounding neighborhood.

[Note 5] As more fully explained below, Case No. 07 Misc. 357459 (KCL) is the Boyts’ appeal from the building commissioner’s cease and desist order, upheld by the zoning board, directing the Boyts to cease using the garage as a dwelling unit and to remove its kitchen and plumbing facilities. Case Nos. 08 Misc. 381881 (KCL) and 08 Misc. 381900 (KCL) are the Boyts’, Kellys’ and Christies’ cross-appeals from the zoning board’s later decision declining to revoke a building permit issued to the Boyts — a permit which allowed them to remodel the garage by installing new wall covering, replacing existing counters and cabinets, upgrading its existing plumbing and fixtures, upgrading its existing electrical wiring and fixtures, and repairing/replacing its framing — while simultaneously re-affirming the prior cease and desist order in its entirety, including its prohibition of using or turning the garage into “habitable space.” The two decisions were harmonized by the Board in its observation that the building permit work “at [the Boyts’] own risk” and the earlier “cease and desist” order would be enforced “unless a decision [was] made [in what became Case No. 07 Misc. 357459 (KCL)] to overturn the October 2007 Board of Appeals decision.”

[Note 6] In relevant part, the two are equivalent and the analysis is identical.

[Note 7] The current minimum rear setback is 25 feet, and the current minimum side setback is 15 feet.

[Note 8] This definition dated back to 1973. (Tr. Ex. 1). The record does not indicate the definition before that date, nor even if there was such a definition.

[Note 9] There is currently a boundary line dispute between the parties relative to their shared lot line, which is not before the court at this time. For purposes of this lawsuit, however, the parties agreed that the locations of the various structures on their respective properties are “substantially as shown” on Ex. 1. Since the parties are content with this stipulation, I assume (and rely on the assumption) that the location of the boundary line as ultimately determined by a court or otherwise is not material to the issues before me.

[Note 10] See n. 3, above.

[Note 11] According to Mr. Indelicato’s affidavit, he would go to the Cape early in the season, open up the house, and turn on the water for its owners. He and his family would rent it during the month of August.

[Note 12] See also the trial testimony of Elden Boyt, Jr. (building commissioner ordered him to open-up for inspection all the insulation, electrical, plumbing, cabinetry, countertop and other remodeling work he had done to the garage after his purchase in 2000, and required a building permit to be issued for that work).

[Note 13] Prior to his purchase of the property in 1966, Mr. Indelicato did maintenance work on the house for its then-owners — opening up the house in the Spring, cleaning the hot water heater, repairing broken windows and leaking faucets, replacing shingles and lights, keeping the house in working order during the season and draining water from the pipes in the Fall — in return for a lesser rent. After his purchase, he continued to do work on the house up until the time he sold it to the Boyts in 2000, and he continued to do this work in the garage.

[Note 14] According to Mr. Indelicato’s affidavit, the house was opened in March and closed in October or November annually.

[Note 15] This was Mr. Toubeau’s testimony. Mr. Indelicato’s affidavit suggests that some of this work may have begun as early as 1966. Regardless, the work took place over a number of years. This is consistent with the undisputed fact that Mr. Indelicato performed all the work himself.

[Note 16] It is doubtful that the stove was much used, if ever. Elden Boyt Jr. testified that it was “rusted and old and it looked real shabby” at the time he purchased the property in 2000. The steel cabinets near it were likewise in rusted condition in 2000, with peeling paint.

[Note 17] According to Mr. Toubeau, the garage “evolve[d] into a more useable space” as the 1970’s, 1980’s and 1990’s progressed — in Mr. Toubeau’s words, “the clutter became less and less and the useable space became more and more.”

[Note 18] According to Mr. Boyt, as you walked through the garage from the front (street-side), “you’d pretty much walk into an assortment of beach toys, wheelbarrows, rakes, fishing poles…a cement mixer...wood…roofing shingles...a steel rack [with] a shelf that had nails and glue and rope for the clothesline…additional lightbulbs and paint for the trim…and just, you know, a lot of different materials to use to, I guess, upgrade the property and, you know, [Mr. Indelicato] had a lot of stuff stored out there.” (Testimony of Elden Boyt Jr.).

[Note 19] One of the Boyt daughters was married to one of the Toubeaus, and the Boyt, Toubeau and Indelicato families became good friends.

[Note 20] The septic system failed inspection at the time of the Boyts’ purchase. The application was for a variance from the regulations of the Massachusetts Department of Environmental Protection, Title 5, and the Town of Dennis Regulations for Subsurface Disposal of Sewage. Among other things, the Boyts requested that the new system be permitted to have 24.7% less capacity than the regulations required. In return, they agreed that they would not connect the garage to the new septic and, in addition, would disconnect it from the existing cesspool. (Tr. Exs. 30, 31). The new septic system was installed in 2005. (Tr. Ex. 18). Contrary to their promise, the Boyts have left the garage connected to the septic to this day. (Boyt testimony).

[Note 21] This date is slightly in error. Tr. Ex. 3 and the parties’ stipulation indicate that the structures on the Boyt property, apparently including both the house and the garage, were already in existence (at least in some form) prior to 1927.

[Note 22] In the meantime, the Boyts continue to use the garage for living space and have not disconnected it from the septic system. (Boyt testimony).

[Note 23] Given my resolution of these cases, I need not and do not reach the issue of whether “grandfathering” requires the use to have occurred prior to 1953 when the lot became too small to accommodate a second “dwelling.” That issue turns on whether additional living space was considered an “accessory” use within the meaning of the pre-1989 bylaw, which defined an accessory use as one “customarily incidental to and located on the same lot with the building or use to which it is accessory.” The limitation to one “dwelling” per lot of this size suggests that “dwelling”-type uses would not be considered “accessory.” Otherwise the limitation would be meaningless. But the specific post-1989 exclusion of “seasonal or year-round living” from the “accessory” definition (suggesting that it may previously have been permitted in accessory structures) potentially cuts the other way (or maybe not, if the change was simply a clarification). A more complete record would be required to decide the issue definitively, including evidence of how the Board had applied the “accessory” definition in the past to questions involving living space.

[Note 24] In relevant part, G.L. c. 40A, § 6 provides, “[e]xcept as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun…before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use….” In relevant part, the Dennis Zoning Bylaw provides, “the Use or location of [a] building or structure or use of land, lawfully existing at the time of enactment or subsequent amendment of this By-law, may be continued, although such building, structure or use does not conform with the provisions of this By-law [unless abandoned or discontinued].” Bylaw § 2.4.1.

[Note 25] As noted above, the use of the garage as a toilet and shower compartment is allowed by current zoning and is thus not an issue in this case.

[Note 26] According to the testimony, cooking was typically done either in the house kitchen or on grills outside.

[Note 27] Mr. Toubeau testified that the garage was used as additional living space only three nights out of the seven he rented the property each year, likely the weekend when the most visitors would have been present.

[Note 28] As discussed above, the work that made the garage allegedly “habitable” (the installation of a working toilet, shower, kitchen sink, cabinets, stove, refrigerator, and the wiring, plumbing and sewer connection necessary for them) was originally performed by Mr. Indelicato beginning at the time of his purchase in 1966 and was later upgraded by Mr. Boyt subsequent to his purchase of the property in 2000. Building permits for such work have been required by the town since at least 1957, a period that would also include any work Mr. Indelicato performed during the time of his rental and maintenance activities for its prior owner (1957-1966). See Boyt, Trustee v. Dennis Zoning Bd. of Appeals, Civil Action No. 01-312, and Kelly v. Boyt, Trustee, Civil Action No. 01-514, Memorandum of Decision and Order (Including Findings of Fact and Rulings of Law Pursuant to Mass. R. Civ. P. 52(a)) at 4 (Jun. 24, 2003) (“In 1957, the Annual Town Report referenced the adoption of a building code requiring a building permit before alteration, erection and/or reconstruction of a structure. The Assessor’s Field Card indicates Mr. Boyt’s property was constructed in 1940. There is no indication that at any time a building permit was obtained for the inclusion of a kitchen, living room, bedroom and bath in the garage area.”). See also the trial testimony of Elden Boyt, Jr. (building commissioner ordered him to open-up for inspection all the insulation, electrical, plumbing, cabinetry, countertop and other remodeling work he had done to the garage after his purchase in 2000, and required a building permit to be issued for that work).

[Note 29] See Dennis Zoning By-law § 1.3.1 (“The Building Commissioner shall administer and enforce the provisions of this By-Law. No permit shall be issued for construction or for the change of use of any land or premises unless the required submitted plans and specifications indicate that buildings, structures, premises and their use will conform in all respects to the provisions of this By-Law.”) (emphasis added).