This cause came on to be heard on the plaintiff's motion for summary judgment on May 27, 1988 and was argued by counsel, and thereupon, upon consideration thereof, it is
ADJUDGED and ORDERED that the plaintiff's motion for summary judgment be granted for the following reasons:
1. There is no controverted issue of material fact.
2. The expansion which the plaintiff seeks to make is in the vertical space above the footprint of the existing building and includes the revision of two existing dormers, the addition of a third dormer and the finishing of the inside of the third floor of the present home on the premises.
3. The existing dwelling is not conforming insofar as the required front yard and side yard requirements are concerned, but the plaintiff does not propose to build into either of such areas.
4. A hearing was held on July 20, 1987 on the plaintiff's application for a special permit, his request for a building permit having been denied by the Building Inspector, only one abutter opposed the request.
5. The Board found as follows:
The petitioner's request for a Special Permit is denied since the proposed expansion and alteration of the structure does not meet the dimensional requirements set forth in Section 2, Article V of the Nahant Zoning By-Laws. Specifically, the proposed changes/alterations would further compound the non-conformity by failing to meet the front and side-yard minimum setbacks mandated in Section 2 of Article V. Further, the Board finds that such expansion and/or alteration of the existing structure would be substantially more detrimental to the neighborhood than the existing non-conforming use.
It is clear from the foregoing recital that the Building Inspector should have issued the building permit to the plaintiff as G.L. c. 40A, §6, first paragraph, provides that any alteration, reconstruction, extension or structural change to a single or two-family residential structure which does not increase the non-conforming nature of said structure is protected. In two recent Appeals Court decisions it has been made clear that if the footprint of the building is not changed, the Town is required to issue a building permit. It is only where the proposed addition to a single family residence is outside the existing footprint that the further requirements of §6 as to detriment become material. See 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). It appears to the Court that the answer to the first aspect of the two part inquiry set forth in the enabling act as interpreted by the foregoing two decisions is that the proposed additions do not add to the existing non-conformity. The plaintiff is, therefore, entitled to a building permit subject, however, to compliance with all other applicable requirements of the State Building Code and the filing of required application and plans.
By the Court