JOSEPH W. BURM and SUSAN D. BURM, Trustees of the SLOUGH COVE TRUST v. MARTIN TOMASSIAN, RICHARD KNIGHT, CAROL GRANT, JOHN MAGNUSON and NANCY WHIPPLE, as they constitute the TOWN OF EDGARTOWN ZONING BOARD OF APPEALS

Plaintiffs filed an application with the Edgartown Zoning Board of Appeals (“ZBA”) on October 1, 2008 for a special permit to build an open staircase leading to a second floor deck. On October 22, 2008, a hearing was held on the application and the ZBA voted unanimously to deny the application on that same date. The Decision and Record of Proceedings were filed with the Edgartown Town Clerk on October 24, 2008. The Plaintiffs filed a timely appeal of the ZBA’s decision with this court on November 6, 2008 pursuant to G. L. c. 40A, § 17.

On June 1, 2009, Plaintiffs filed a motion for summary judgment, and the Defendants filed their opposition on August 3, 2009. After re-scheduling several times at the request of the Parties over the next year and a half, a hearing was held on the summary judgment motion on February 25, 2011.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. The Plaintiffs are sole trustees of the Slough Cove Trust, owner of real property situated at 65 Slough Cove Road, Edgartown, Massachusetts 02539. Plaintiffs purchased the property in early 2001, and subsequently constructed a house on the property which they use as a summer home. See Plaintiffs’ Statement of Facts Pursuant to Rule 4 of the Rules of the Land Court (2005) ¶ 1 (hereinafter “Statement of Facts”).

2. In conjunction with the construction of the Plaintiffs home in 2001, they applied pursuant to Article 11.3 of the Edgartown Zoning By-Laws (“Article 11.3") for a special permit to construct a planned exterior spiral stairway, enclosed in a stone tower, to a second floor deck. See Statement of Facts ¶ 3. The application was granted on October 10, 2001, but the proposed stairs were never built. See Statement of Facts ¶ 4.

3. In 2008, the Plaintiffs again applied for a special permit under Article 11.3, to build a wooden set of exterior stairs to the second floor deck which would match the stairs attached to their garage. See Statement of Facts ¶ 5; Statement of Facts Exhibit 6; and Statement of Facts Exhibit 7. The application was denied by the ZBA on October 22, 2008, and its Decision filed with the Town Clerk on October 24, 2008. See Statement of Facts ¶ 6.

4. Martin Tomassian, Jr. (“Tomassian”) is the Chairman of the ZBA, and presided over the hearing on the Plaintiffs’ 2008 application for a special permit. See Tomassian Affidavit ¶¶ 3 and 4.

5. Tomassian stated that the ZBA denied the Plaintiffs’ application for the proposed staircase, in part, because the proposed staircase is not “designed as an integral part of the dwelling” , particularly when contrasted with the enclosed stone stair case proposed in the 2001 application. See Defendants’ Statement of Additional Facts ¶ 19 ; Tomassian Affidavit ¶ 13. Further, he noted that the location of the Plaintiffs’ house on the locus and the lack of screening would make the proposed staircase plainly visible from Slough Cove Road. Id.

6. Ultimately, the ZBA decided that the staircase proposed by the Plaintiffs’ in their 2008 application would be unsightly and detrimental to, or have an adverse effect on, the neighborhood. See Defendants’ Statement of Additional Facts ¶ 19 ; Tomassian Affidavit ¶ 13.

7. In the Record of Proceedings, member John Magnuson noted that he “did not believe that the plan for the new stairs conform[ed] to the purpose and intent of the by-law.” See Statement of Facts Exhibit 7.

8. Leonard Jason, Jr. (“Jason”) is the Building Inspector and Zoning Officer for the Town of Edgartown. See Jason Affidavit ¶ 1. Jason reviews and approves all building permit applications. See Jason Affidavit ¶ 2.

9. Jason’s review of the building permit files for the Plaintiffs’ house indicates that it has a sufficient number of exits to the comply with the Massachusetts State Building Code and the Edgartown Zoning By-Laws. See Jason Affidavit ¶ ¶ 4 and 9. An external staircase leading to the second floor deck is not required by law. Id.

DISCUSSION

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

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). The court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings [and discovery documents], together with . . . affidavits, if any . . . .” Mass. R. Civ. P. 56(c). Further, the court can look to the Statements of Facts presented by the parties in conjunction with their summary judgment motions pursuant to Rule 4 of the Rules of the Land Court.

Finally, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

Judicial review of a zoning board appeal under G. L. c. 40A, § 17, of a special permit denial “typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning.” Britton v. Zoning Bd. Of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). The standard of review for a special permit requires the judge to make independent findings on the evidence presented to him, and to determine, based on that evidence, the legal validity of the decision of the zoning board. Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005). The important consideration is the zoning board’s evaluation of the of the issue, which is controlling, not the judge’s evaluation. Id., citing Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979).

On a G. L. c. 40A, § 17 appeal, the zoning board’s decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). “Even if the record reveals that a desired special permit could lawfully be granted by the board because the applicant’s evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit,” so long as the decision is not based upon arbitrary and capricious grounds. Id. Likewise, the board may not “refuse to grant a special permit for reasons unrelated to standards of the by-law for the exercise of its judgment.” Slater v. Bd. of Appeals of Brookline, 350 Mass. 70 , 73 (1966), citing Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 (1962). Finally, a zoning board’s refusal to grant a special permit does not require detailed findings. MacGibbon v. Bd. of Appeals of Duxbury, 396 Mass. 512 , 515 (1976).

Article 11.3(A) of the Edgartown Zoning By-Law states in relevant part as follows:

Elevated decks & elevated porches which meet the following criteria are permitted:

a. They shall be constructed entirely above the livable area including first floor porches and decks (not patios or terraces on grade.)

b. They shall be accessed only from the inside of the dwelling unless required as a part of a mandatory second means of egress, through a door or doors with minimum dimensions of 2"-8" x 6'-6" hung in a vertical plane.

c. The walkable surface area of the deck or elevated porch shall not be higher than the level of the second floor of the dwelling.

Exception: Elevated decks or porches not meeting these criteria may be granted a special permit by the Special Permit Granting Authority provided that the proposed deck or porch is based on historical precedent such as a widows walk or is designed as an integral part of the dwelling and, in the opinion of the Special Permit Granting Authority, is not out of keeping with the architecture of Edgartown.

See Statement of Facts Exhibit 1. Article 11.3(A) allows elevated decks as of right so long as they meet the enumerated criteria, including Article 11.3(A)(b). That particular subsection requires that the only access to the elevated deck be “from the inside of the dwelling unless required as part of a mandatory second means of egress . . . .” Here, in the case of the Plaintiffs’ house, the proposed exterior staircase to the second floor deck was not required as “a mandatory second means of egress . . . .” See Jason Affidavit ¶ ¶ 4 and 9; Findings of Fact ¶ 9. Since the proposed exterior stairs are not required as a means of egress, the Plaintiffs must then obtain a special permit by the ZBA for the stairs construction. The ZBA may grant a special permit where the exterior stairs are: (1) “based on historical precedent such as a widows walk[,] or [are] designed as an integral part of the dwelling”; and (2) “in the opinion of the [ZBA], is not out of keeping with the architecture of Edgartown.”

In addition to the criteria enumerated in Article 11.3, when evaluating a special permit application, the ZBA must also look to the by-law which sets out the standards for the exercise of its judgment. See Slater, 350 Mass. at 73. Article 11.6 of the Edgartown Zoning By-Laws (“Article 11.6") contains the applicable provision, which provides in relevant part:

a. General Criteria. The Board shall grant such a Special Permit only if, after public notice and hearing in accordance with Section 17 of the Zoning Enabling Act, the Board finds that the specific site is an appropriate location for such uses, that such uses will not adversely affect the neighborhood and that adequate and appropriate facilities and protection will be provided such as, without limiting the generality of the foregoing, parking facilities and screening of unsightly uses from public view (emphasis added).

See Jason Affidavit Exhibit 1. Mr. Tomassian, Chairman of the ZBA, testified in his affidavit that the proposed exterior staircase’s location on the Plaintiffs’ property, and the lack of screening and vegetation, make the staircase plainly visible from Slough Cove Road. See Tomassian Affidavit ¶ 13; Findings of Fact ¶ 5. Under Article 11.6, the screening vegetation, and affect on the neighborhood, are factors the board must look at when deciding whether to grant an application for a special permit under Article 11.3. As there was no screening of the proposed staircase, the ZBA believed that the proposed staircase would “be unsightly and detrimental to, or have an adverse effect on, the neighborhood.” See Tomassian Affidavit ¶ 13; Findings of Fact ¶ 6. In the opinion of the ZBA, therefore, the Plaintiffs’ proposed exterior stairway was not in keeping with the architecture of Edgartown, and the special permit exception of Article 11.3 was not satisfied. Whether the Plaintiffs’ proposed exterior staircase was an integral part of the dwelling, or based on historical precedent, is irrelevant because the ZBA viewed it as not in keeping with the town’s architecture. Based on the evidence before the ZBA, the court believes that its decision was not arbitrary and capricious.

In their brief, the Plaintiffs argue that based on historical precedent, the ZBA should have granted them a special permit because, since 1998, it has granted twenty-three of twenty-six similar applications for exterior staircases. [Note 1] Their argument is based on the phrase in Article 11.3 which states “decks . . . not meeting these criteria may be granted a special permit . . . provided that the proposed deck or porch is based on historical precedent such as a widows walk . . .” (emphasis added). The Plaintiffs, however, ignore the description of “ historical precedent” as referring to an architectural feature of the building, historically tied to the Edgartown’s geographical region. Instead, the Plaintiffs’ attempt to recast the historical precedent phrase in Article 11.3 as referring to the ZBA’s prior special permit approvals. In fact, this court has previously interpreted Article 11.3 in the context of an applicant’s special permit application based on historical precedent. See Caliri v. Oasis, 8 LCR 183 (2000) (where defendant’s home was determined to historically have a widow’s walk atop it, special permit was approved because the widow’s walk was in harmony with Article 11.3). The Plaintiffs’ argument that the decision of the ZBA denying their special permit application was arbitrary and capricious simply because it had previously allowed twenty-three out of twenty-six similar applications is incorrect.

For all the above reasons, the court DENIES the Plaintiffs’ motion for summary judgment and ORDERS that summary judgment be entered for the Defendants. The Decision of the Board denying Plaintiffs’ application was not arbitrary or capricious and must therefore be affirmed.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: March 4, 2011