JAMES T. CARTER and CAROL A. CARTER vs. WILLIAM L. NICHOLSON, PATRICIA FRASER, LESLIE A. ROY, EDWARD SULLIVAN, ROBERT A. PARISEAU, as they comprise the Zoning Board of Appeals for the Town of Danvers.

This is an appeal by plaintiffs pursuant to Mass. G.L. c. 40A, §17 from a decision of the Danvers Board of Appeals denying the application to expand a two-family dwelling at 5 Spruce Street, Danvers, into a three­family dwelling.

A trial was held on December 14, 1987 in the Land Court at which a stenographer was sworn to record and transcribe the testimony. Two witnesses testified and seven exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

On all the evidence, I find as follows:

1. The plaintiffs are the owners of property at 5 Spruce Street in Danvers, Essex County, Massachusetts ("locus"). The locus is located in a Residence II district as defined under the Danvers Zoning By-Law. The two­unit dwelling on locus has existed prior to the adoption of zoning in Danvers and is a legal non-conforming structure.

2. On July 16, 1987, the plaintiffs filed an application with the Town Clerk pursuant to Mass. G. L. c. 40, §6 to extend the non-conforming use and expand the structure into a three-unit dwelling.

3. The plaintiffs' proposal is to divide the second unit, located on the second and third floor into two separate units by constructing a stairway to service the third floor and to remove the existing garage to create additional parking spaces. The proposal involves no structural changes on the second floor and minimal changes on the third with the exception of renovations to upgrade the existing building.

4. A public hearing was held on August 31, 1987 and on September 14, 1987, the Danvers Zoning Board of Appeals ("Board") denied the plaintiffs' application on the basis that the proposed expansion would be substantially more detrimental to the neighborhood than the existing non-conforming use.

5. On October 2, 1987, the plaintiffs, under Mass. G.L. c. 40A, §17, appealed to the Land Court asking that the decision of the Danvers Zoning Board of Appeals be annulled as being arbitrary, capricious and in excess of legal authority, and that this Court grant the plaintiffs' application to expand their structure into a three-unit dwelling.

6. The proposed expansion from a two-family dwelling to a three-family dwelling would increase the density of the neighborhood and result in a relatively small lot having parking spaces for six vehicles. In addition, the proposed expansion requires the use of an outside three-story staircase in a residential neighborhood.

The plaintiffs argue-that while locus is located in a Residence II district, the boundary line which separates the Residence II district from the Residence I district is the center line of Spruce Street. A Residence I district permits up to four-family dwelling units while a Residence II district permits only single-family dwellings. Although the Residence I side of Spruce Street would permit three and four-family dwelling units, the existing neighborhood on the Residence I side of Spruce Street presently contains only single family and two-family dwellings.

The issue before the Court is whether the proposed expansion from a two-family dwelling to a three-family dwelling would be substantially more detrimental than the existing non-conforming use to the neighborhood. Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 58-59; c. 40A, §6.

Based upon the facts as discussed above, I find and rule that the proposed expansion would be substantially more detrimental to the neighborhood than the existing non-conforming use and the September 14, 1987 decision was not arbitrary or capricious and was within the legal authority of the Board. Therefore, the decision of the Board stands.

Judgment accordingly.