WILLIAM R. WITTER and DEBORAH C. WITTER v. KENNETH L. SWARTZ, PATRICIA FAVULLI, and DENNIS MURPHY, as members of the FALMOUTH BOARD OF APPEALS; ELADIO R. GORE, as Building Commissioner for the Town of Falmouth; MANOEL NETO RODRIGUES and GERTALIANO ALVES DA SILVA

This action was filed by William R. Witter and Deborah C. Witter (Plaintiffs) on June 9, 2006, appealing a decision of the Falmouth Zoning Board of Appeals (the Board) which declined to reverse a decision of the town’s Building Commissioner who, in turn, had refused Plaintiffs’ request to enforce a provision of the Falmouth Zoning Bylaw (Bylaw) which, in their opinion, prohibits Defendants Rodrigues and Da Silva from occupying or allowing others to occupy an “accessory” structure for residential purposes on their abutting property.

A Case Management Conference was held on August 24, 2006. In addition, several status conferences took place, many by telephone, to ascertain whether the case could be resolved by way of the accessory structure’s occupants moving out. This has not occurred and the matter is still in controversy. As often happens in actions brought under G. L. c. 40A, the town has not taken an active part and has allowed the parties involved (the Witters, De Silva, and Rodrigues) to seek a resolution. [Note 1]

Plaintiffs filed a Motion for Summary Judgment, memorandum in support, statement of undisputed facts, and an appendix of exhibits on October 29, 2010. An affidavit by William R. Witter was filed on November 3, 2010, at which time the motion was scheduled for hearing on January 12, 2011. Due to a major snow storm, the motion was rescheduled to February 28, 2011, at which time counsel for the Plaintiffs and Mr. Da Silva appeared and argued. [Note 2] The following material facts are not in dispute.

Plaintiffs are the owners and residents of 211 Trotting Park Road, East Falmouth, Massachusetts, and are direct abutters to 209 Trotting Park Road, East Falmouth, Massachusetts (the Locus). Defendants Rodrigues and Da Silva are the owners of the Locus, which contains two structures known as 209A and 209B Trotting Park Road, East Falmouth, Massachusetts. Plaintiffs’ residence and the Locus are located in the town’s agricultural district. The principal structure on the Locus (209A Trotting Park Road) is a single-family structure now or formerly leased by Defendants to Janet Martins, her husband, Marcillio Martins, and their three children. The detached “accessory” structure (209B Trotting Park Road) is being used as a primary residence for Valerie Da Silva and Defendant Gertaliano Da Silva. The total floor area of the structures on Locus is 2,034 square feet, consisting of the single-family dwelling, which contains 1,266 square feet, and the detached accessory structure, which contains 768 square feet.

The Bylaw governs the existence and use of accessory structures within the town. Section 240-13 of the Bylaw defines an “accessory building” as “[a] building such as a garage or shed, located on the same lot with, and accommodating a use accessory to, the principal permitted use of the premises.” That same section of the Bylaw defines “accessory use” as “[a] use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupied by such use, it shall no longer be considered ‘accessory.’” Pursuant to § 240-34, the sole permitted residential use in the agricultural district is for one-family detached houses. The permitted accessory uses in the agricultural district, per § 240-37, are: accessory uses that are customarily incidental to the permitted principal uses; the taking of four or fewer boarders within a single-family dwelling; home occupation; television or radio antennas, portable woodworking mills; and roadside stands for the landowner’s products. One of the special permit uses allowed in the agricultural district, per § 240-38, is “one accessory apartment per lot added to or created within a single-family dwelling” subject to certain limitations.

Pursuant to G. L. c. 40A, § 7 and § 240-179 of the Bylaw, the Building Commissioner may not issue a permit for the construction of a building if it, as constructed, would violate the Bylaw; the Commissioner also may not issue a permit for any new use of a building that would violate the Bylaw.

In 1999, the Locus contained one structure - a single-family detached dwelling that was a lawfully pre-existing, nonconforming structure that encroached into the rear-yard and front-yard setbacks. In 1999, the Board granted a special permit to the former owners of the Locus for the construction of an 18' x 20' addition to the existing home to allow for more living space. The Board’s special permit decision in 1999 found that the site was adequate and suitable for the proposed use, which would remain a single-family two bedroom home with a home occupation.

In 2002, the former owners of the Locus sought a building permit to construct a detached accessory structure to house guests. On May 30, 2002, the Building Commissioner issued a building permit for the construction of a 768 square foot three bedroom, three bath accessory building. On July 15, 2002, a neighbor challenged the proposed use of the accessory structure and sought enforcement of the Bylaw. On July 30, 2002, the Building Commissioner issued a written response to the neighbor indicating that, at that time, § 240-37(B) allowed the taking of four or fewer boarders by a family resident as an accessory use. On September 12, 2002, several neighbors submitted a request for zoning enforcement challenging the issuance of the building permit for the guest house. The Building Commissioner did not respond to the neighbors’ request for zoning enforcement and the neighbors appealed to the Board.

On November 18, 2002, § 240-37(B) of the zoning by-law was amended by town meeting so that the accessory use of taking in boarders was only permitted “within a single family dwelling.” The same day, the building permit was amended to allow the construction of a two-car garage.

When the neighbors’ appeal was heard by the Board on January 8, 2003, the Board noted that the neighbors’ complaint regarding the use of the accessory structure was moot because the building permit for a three bedroom structure was withdrawn and because the Bylaw was amended to allow the housing of boarders only within a single-family home. Several days later, on January 13, 2003, the building permit was amended again to allow the construction of a two-car garage with two offices and a bathroom. On February 7, 2003, the Board issued a decision regarding the neighbors’ appeal, where it found that the complaint was moot because the Bylaw had been amended to allow the taking of boarders only in a single-family home and because the owners of the Locus intended to build a garage instead.

On November 2, 2003, the former owners of the Locus executed a covenant with the town regarding the Locus. The covenant stated: “This covenant concerns [the Locus]. It assures that the parcel in its present dimensions and size, being 10,149 square feet, will remain a single family dwelling. The accessory building, being on the same lot as the same lot as the existing house, will not be sold or rented as [a] separate dwelling, but will retain only the accessory uses as permitted by law.” This covenant was recorded in the Barnstable County Registry of Deeds at Book 17880, Page 207.

On March 23, 2004, the building permit was amended again to allow the construction of an accessory building with two bedrooms, one bath and utility room. [Note 3]

On September 26, 2005, the former owners transferred the Locus to the Defendants by quitclaim deed, which recited that the Locus was “[s]ubject to and with the benefit of all rights, restrictions and easements of record insofar as the same are now in force and applicable.” [Note 4]

On October 4, 2005, Plaintiffs submitted a formal written request for enforcement of the Bylaw. Plaintiffs asserted that the accessory structure on the Locus was neither a permitted structure nor a permitted use. On October 18, 2005, the Building Commissioner responded to Plaintiffs’ request for enforcement, stating that “based on the information provided, it is my determination that no violation exists and the Building Department will take no action at this time.” On November 15, 2005, Plaintiffs responded to the Building Commissioner’s letter of October 18, 2005, asserting that the accessory structure was being improperly used as a residence. They included photographs depicting a stove and cooking facilities in the accessory structure which, together with the bedrooms and bathrooms, clearly established not only an impermissible primary residence but also constituted an impermissible second “dwelling” as defined by the Bylaw. [Note 5] The same day, Plaintiffs filed an appeal to the Board in accordance with G. L. c. 40A, §§ 8, 15 and Bylaw § 240-202. The Board conducted public hearings on Plaintiffs’ appeal on January 4, February 15, and May 3, 2006. [Note 6] On May 23, 2006, the Board’s written decision was filed with the Town Clerk. In it, the Board found that “the Building Commissioner ha[d] provided sufficient information to substantiate his determination” and noted that the cooking facilities had been removed from the accessory structure and that it therefore was not being used as a “dwelling” as defined by the Bylaw. In addition, the Board referred to the Building Department’s consistent determinations that an accessory structure may be used for habitable purposes (such as guest quarters, bunk houses and caretaker’s quarters) as long as it does not constitute a “dwelling.”

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Plaintiffs seek summary judgment on all four counts of their complaint, as follows: (1) declaratory judgment that the accessory structure on the Locus exceeds the Bylaw’s maximum percentage of floor area and therefore cannot constitute an accessory use; (2) declaratory judgment that the provisions of the Bylaw do not permit an accessory structure located in the agricultural zoning district to be used as a primary residence; (3) declaratory judgment that the provisions of the Bylaw do not authorize the use of accessory structures for the purposes for which the building permit was issued; and (4) annulment of the Board’s decision.

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

In an appeal from the decision of a zoning board of appeals pursuant to G. L. c. 40A, § 17, the reviewing court engages in de novo fact finding; however, the board’s decision will not be overturned unless it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 355-56 (2001) (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999)).

Zoning Bylaw’s Floor Area Requirements

As previously discussed, § 240-13 of the Bylaw defines an “accessory use” as the use of building on the same lot with a permitted use that does not exceed 30% of the floor area or 50% of the lot area. Here the total floor area of both structures is 2,034 square feet. The accessory structure has a floor area of 768 square feet. Therefore, the floor area of the accessory structure comprises approximately 37.8% of the total floor area of the Locus. By the terms of § 240-13, because the structure’s floor area exceeds 30% of the total floor area of the Locus, it is no longer considered “accessory.”

Use of Accessory Structure as Primary Residence

Section 240-37(A) of the Bylaw requires that accessory uses be “customarily incidental to” the primary use of the property or among certain specifically enumerated accessory uses, including “[t]he taking of four or fewer boarders within a single-family dwelling” (emphasis added). Even if I were to disregard the fact that the Bylaw specifically contemplates that boarders will reside in the primary structure (a single-family dwelling), there are additional reasons for finding that the Bylaw will not permit the accessory structure to be used as a residence for boarders.

In Gallagher v. Board of Appeals of Acton, the Appeals Court of Massachusetts considered a homeowner’s application for a building permit to construct a two-story addition with four boarding suites, which would increase the size of the home from a modest 960 square feet to approximately 2,688 square feet, nearly tripling the size of the structure in order to accommodate the boarders. Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. 904 , 906-07 (1997). The court rejected the homeowner’s claim that renting to four or fewer boarders was per se an accessory use to a single-family home. Id. at 907. As discussed by the court, when an accessory use is required to be “incidental” to the principal use (as it is here) it must be not only subordinate to the principal use but also attendant or concomitant. Id.; see Town of Harvard v. Maxant, 360 Mass. 432 , 438 (1971) (citing Lawrence v. Zoning Board of Appeals of North Branford, 264 A.2d 552, 554 (Conn. 1969)). The large size of the proposed addition for the boarders made it decidedly not subordinate or minor when compared to the primary use. Id. Additionally, the boarding use was not “attendant to” the house’s primary use because rather than the structure being a large single-family home with spare rooms being used to house boarders, the addition would essentially make the structure a large boarding house. Id.

In the present case, the primary use of the property is as a single-family, two-bedroom home. The accessory structure is also being used as a two-bedroom home. The Board’s decision in this case was based largely on the distinction between a “habitable use” of an accessory structure, which it believes is permitted, and the use of an accessory structure as a “dwelling” as defined by § 240-13 of the Bylaw. In the Board’s view, a structure may be used as a residence for boarders and not be considered a “dwelling” so long as it does not contain cooking facilities; if a residential structure does not contain cooking facilities it is only be used for “habitation.” This distinction is not significant. The simple removal of a stove and other cooking facilities does not change the inherent nature of the use of the property. Whether or not the accessory structure has a stove, it is still being used to house individuals on a regular and continuing basis. People residing in the accessory structure will still park their cars, receive guests, carry on their daily activities, eat, and sleep there. This use imposes the same burdens and intrusions upon the Locus and neighboring properties as the accessory structure were a “dwelling.” Cooking is only one activity noted in the Bylaw’s definition of a “dwelling.” It also specifically refers to living, sleeping and eating. In light of these considerations, the two-bedroom accessory structure cannot be characterized as “subordinate and attendant to” the primary use of the property as a two-bedroom home. This is supported by two separate sections of the Bylaw (§§ 240-37, 240-38), both of which contemplate the housing of boarders within the primary single-family dwelling.

Use of Accessory Structure for Purposes Allowed by Building Permit

Pursuant to G. L. c. 40A, § 7 and § 240-179 of the Bylaw, the Building Commissioner may not issue a permit for the construction of a building if, as constructed, it would violate the Bylaw; the Commissioner also may not issue a permit for any new use of a building that would violate the Bylaw. As discussed above, the accessory structure on the Locus is not only in excess of the size limitations imposed by the Bylaw; it is also being used for a use that is not a permissible “accessory use” as defined by the zoning by-law. The building permit for the accessory structure on the Locus was improperly issued by the Building Commissioner.

Annulment of Board’s Decision

The Board’s decision of May 23, 2006, which affirmed the Building Commissioner’s decision to allow the use of the accessory structure as a two-bedroom residence, cannot be sustained upon its stated grounds that the accessory structure was being used as habitation, but not as a dwelling.

Conclusion

The accessory structure on the Locus exceeds the Bylaw’s maximum percentage of floor area and therefore cannot constitute an accessory use. In addition, the Bylaw does not permit an accessory structure located in the agricultural zoning district to be used as a residence. The building permit was improperly issued and the Board’s decision must be annulled. Therefore, Plaintiffs’ motion for summary judgment is ALLOWED. Judgment will be entered accordingly. As discussed at the hearing on this matter, Plaintiffs do not object to a stay of execution of this judgment in order to provide Defendant Da Silva, who is currently residing in the accessory structure on the Locus, to find a new place to live. Accordingly, the execution of the judgment that will be entered shall be stayed until May 1, 2011.

Charles W. Trombly, Jr.

Justice

Dated: March 14, 2011