Home GRACE E. HEALY, Trustee of Landing Road Realty Trust vs. ALICE M. VOGLER, TIM MITCHELL, BRACKETT B. DENNISTON, III, JOHN J. CANTY and FREDERIC M. CLIFFORD, as they are the Board of Appeals for the Town of Duxbury, BUD M. TALPEY, as he is the Building Inspector of the Town of Duxbury and THE TOWN OF DUXBURY.

MISC 117569

October 11, 1988

Plymouth, ss.



The plaintiff herein filed this action pursuant to c.40A, §17 and c. 240, §14A seeking to annul a decision of the Board of Appeals of Duxbury denying a special permit to enclose a second story deck and to construct a staircase. The plaintiff, in the alternative, seeks a judgment that the plaintiff may as of right enclose the existing deck without the necessity of a special permit.

A trial was held on August 4, 1988 at which one witness, an abutter to the locus, testified. The case was submitted on an agreed statement of facts, and four exhibits were attached, which exhibits are incorporated herein for the purpose of any appeal.

The facts are as follows:

1. The plaintiff owns a single family residence at 45 Landing Road, Duxbury, Massachusetts in a residential district. The dwelling is nonconforming with respect to lot size and sideline requirements.

2. On April 8, 1985, the plaintiff filed an application for a special permit to enclose a second story deck and to construct a staircase (Exhibit A).

3. On April 14, 1985, the Board of Appeals of the Town of Duxbury, after a public hearing, filed a written decision with the Town Clerk denying the plaintiff's request for a special permit (Exhibit B).

4. The Board of Appeals in its decision objected to the proposal because the inclusion of a staircase leading to the deck encroached on the lot line of the abutting property. The Board of Appeals further objected to the construction of a porch due to the area of overhang of the current deck beyond the footprint of the building.

5. The Board of Appeals concluded that the extensions to the structure on an overbuilt lot were detrimental to the neighborhood and noted that there is a public beach approximately twenty feet from the property.

6. At the trial in the Land Court on August 4, 1988, the plaintiff submitted a revised plan modifying the proposed addition.

The plaintiff argues that because the locus is nonconforming in both size and setback requirements, the only issue is whether the nonconforming structure can be added to in a vertical manner over the existing footprint of the nonconforming structure. G.L. c. 40A, §6 provides that any alteration, reconstruction, extension or structural change to a single or two-family residential structure which does not increase the nonconforming nature of said structure is protected. Two recent Appeals Court decisions have stated that if the footprint of the building remains unchanged, the town is required to issue a building permit. Ligue v. Town of Nahant, Land Court Miscellaneous Case No. 124421, June 20, 1988 (Sullivan, J.) citing Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21-22 (1987).

From the agreed statement and revised plan as submitted, it is unclear whether the proposed addition is within the existing footprint or if the proposed enclosure extends two feet beyond the nonconforming portion of the deck. I use the term "footprint" to include any deck overhang, provided they are nonconforming, i.e., properly constructed prior to any by-law change which now renders them nonconforming. Such a determination is material to the outcome. Accordingly, this matter is remanded to the Board of Appeals for a hearing and finding as to whether the proposed addition as revised is within the footprint of the building or if, in fact, the proposal will alter the nonconforming nature of the structure. Should the proposal as revised be within the footprint, the plaintiff is entitled to a building permit subject to compliance with all other applicable requirements of the State Building Code and the filing of the required application and plans. If the Board of Appeals on remand should find an extension or alteration such as to require a special permit, then the Board of Appeals shall address whether the proposed addition as modified in the revised plan is "more detrimental than the existing nonconforming use to the neighborhood."

Judgment accordingly.