MISC 131417

December 13, 1989

Essex, ss.




These three cases all concern the propriety of the construction by John W. McNear of a second story on the existing single family residence occupied by him in Manchester in the County of Essex. The parties agree that the work contemplated by Mr. McNear is within the existing footprint of the building and would not exceed relevant height restrictions. Earlier construction of an enclosure of an existing porch, and the addition of a porch without the footprint but in compliance with setback requirements had been objected to by Mr. Goldhirsh, but these objections have now been withdrawn.

The trial was held at the Land Court on November 17, 1989 at which the resolution of the three actions was submitted to the Court on an agreed statement of facts (Exhibit No. 27) and oral and written arguments of counsel. The parties also have agreed to the admission of twenty-six exhibits; however, Mr. Goldhirsh had reserved his objections to the admissibility of certain other documents included on the list of exhibits, specifically portions of Exhibit Nos. 6, 8, 11, 12, 22A, 22B, 23 and 24. In substance the objections are to statements concerning the history of the McNear property which Goldhirsh contends is hearsay. The exhibits in question are minutes of the ZBA kept over a course of many years in the regular course of its business. Accordingly I find and rule that the records are not objectionable on hearsay grounds.

I further find and rule that even if the statements objected to should have been excised from the records, there can be no real dispute that the premises have always been used in part for residential purposes, both before and after, the adoption of Manchester's Zoning By-law in 1945 (Exhibit No. 3). It is clear that the premises are zoned for single family residence and that the use thereof is not now nor has it ever been nonconforming. It is the structure's location on the McNear property which makes it not conforming, not the use. Even if the use made of the nonconforming structure at the time of the initial adoption of zoning in Manchester was an accessory use, with the owners of the locus and another portion the property housing an employee in an apartment over the garage or stable, this does not change the fact that residential use is permitted in the zoning district in question. The twenty-seven exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The history of the three zoning appeals is confusing, but it is sufficient to state that the Building Inspector issued two building permits to Mr. McNear who for purposes of clarity will be referred to as the defendant throughout this decision (and Mr. Goldhirsh as the plaintiff) on the ground that the building is a nonconforming structure and that the contemplated work would not increase such nonconformity (Exhibit Nos. 14 and 15). The first permit issued allowed the enclosure of an existing porch and the construction of an additional porch which enlarged the structure's footprint; the second permit increased the height of the roof within the footprint. Subsequently, the plaintiff called to the Building Inspector's attention the fact that two variances previously had been issued affecting the locus, one for the addition of what was called a "windway" (or "breezeway") and garage and the other for the maintenance of the structure in its location. The Building Inspector then decided that the defendant should obtain a variance or special permit from the Zoning Board of Appeals ("ZBA"), but that he would not require that the work cease.

The ZBA had as much difficulty with the applicable concepts as the Building Inspector did. Its ultimate decision was that the vertical expansion within the footprint was the defendant's right and did not require ZBA permission. The Board further found that there was a dispute among Board members as to whether the porch addition increased the nonconforming aspect of the structure and therefore considered the question of a section 6 finding on the merits. It specifically found that the construction of the porch was not substantially more detrimental or injurious to the neighborhood than the existing building as it previously existed. Accordingly it voted a special permit for the porch construction and allowed the defendant to withdraw his petition for a variance. Finally the Board affirmed the decision of the Building Inspector in requiring the defendant to seek approval from the ZBA (Exhibit No. 24).

The plaintiffs appeal the decision of the ZBA that the defendant may increase the height of the structure as of right to the extent permitted by the applicable zoning. The defendants also appeal the decision of the ZBA in upholding the Building Inspector's requirement of a special permit or variance for expansion within the footprint.

The Agreed Statement of Facts on which the three actions were submitted to the Court read as follows:

1. The building which is now the McNear residence and which is the subject of this litigation was originally built around 1890. The building was originally part of a large estate owned by Stanwood which included a main house on the Easterly side of what is now called Smith's Point Road, and the subject structure on the Westerly side of Smith's Point Road.

[Exhibit 1] This structure has always existed in its present location, i.e., approximately 2 feet easterly from the common boundary line with the adjacent land, now owned by Goldhirsh.

2. At all times material, Smith's Point Road has been a private way within the Town of Manchester. The Goldhirsh and McNear properties are adjacent to one another and share a common boundary line. Both properties have direct shoreline frontage on Massachusetts Bay. The Goldhirsh property is subject to a 15-foot wide private right-of-way adjacent to the common boundary line with McNear. [Exhibit 13]

3. In 1945, the first Zoning Bylaw enacted by the Town of Manchester created a Single Residence District in which single family residences were permitted as of right. [Exhibit 3] The subject building premises was in a Single Residence District and has remained in a single family zoning district at all material times.

4. In 1950, the main house of the Stanwood estate and land Northerly of Smith's Point Road was conveyed out. [Exhibit 2(c)]

5. In September, 1952, the subject structure and part of the land Southerly of Smith's Point Road was conveyed out. [Exhibit 2(d) and Exhibit 2 (e)]. Additional land was later added to the McNear lot in December, 1952 [Exhibit 2 (g)] and in May, 1953 [Exhibit 2 (i); see also Exhibit 2 (k)].

6. Sometime between 1952 and 1955, the subject structure was converted exclusively as a single family residence.

7. In 1953, the then owner, Rehm, applied for and was granted a variance from the side yard and front yard setback requirements of the Zoning Bylaw to erect a garage attached by a breezeway to the main structure. [Exhibit 6 and Exhibit 7]

8. In 1955, the Manchester Board of Appeals issued a second variance to the then owner "to maintain her present dwelling house on the lot described in the petition as a private dwelling in its present location." [Exhibits 8, 9, 10, 11 and 12]

9. During the 1953 and 1955 proceedings before the Manchester Board of Appeals, the 1945 By-law [Exhibit 3] was in effect. A later By-law [Exhibit 4] was in effect at all subsequent material times.

10. On August 31, 1987, John W. McNear filed an application with the Building Inspector of the Town of Manchester for a building permit to enclose an existing deck, to add a new deck and to do certain interior alterations to the single family residence at 7 Smith's Point Road, Manchester, Massachusetts. (Exhibit 13]

11. The requested permit was issued on September 30, 1987. [Exhibit 13]

12. On November 18, 1987, McNear filed an amended application with the Building Inspector to replace the existing dormer with a hip roof and create a full-sized second story, all within the footprint of the existing structure and all within the height limitations of the Zoning Bylaws. [Exhibit 14]

13. The amended permit was issued on December 3, 1987. [Exhibit 14]

14. On April 29, 1988, Goldhirsh appealed the issuance of both permits to the Manchester Zoning Board of Appeals. [Exhibit 15]

15. On May 25, 1988 Goldhirsh requested leave of the Zoning Board of Appeals to withdraw his appeal, which was granted without prejudice. [Exhibit 16]

16. On June 6, 1988 Goldhirsh made a written request to the Building Inspector to enforce the Zoning Bylaw against McNear. [Exhibit 17]

17. On June 27, 1988, the Building Inspector issued a written decision on Goldhirsh's enforcement request. [Exhibit 18]

18. On July 22, 1988, McNear filed an appeal from the Building Inspector's decision to the Zoning Board of Appeals. [Exhibit 19]

19. On July 26, 1988, Goldhirsh filed a cross­appeal from the Building Inspector's decision to the Zoning Board of Appeals. [Exhibit 20]

20. The Zoning Board of Appeals heard both appeals on August 24, 1988, September 28, 1988, October 26, 1988, November 30, 1988 and December 15, 1988. (Exhibits 21a through 21e]

21. On December 14, 1988, the Zoning Board of Appeals issued a written decision of the Goldhirsh appeal. [Exhibit 22]

22. Goldhirsh has taken an appeal from that decision to this Court under General Laws, c.40A, §17, which appeal is the subject matter of the case under Docket No. 131417.

23. On February 24, 1989, the Zoning Board of Appeals issued a written decision on the McNear appeal. [Exhibit 23]

24. Goldhirsh has taken an appeal from that decision to this Court under General Laws, c.40A, §17, which appeal is the subject matter of the case under Docket No. 132775.

25. McNear has taken a cross-appeal from the February 24, 1989 decision to this Court under General Laws, c.40A, §17, which cross-appeal is the subject matter of the case under Docket No. 133029.

This Court has recently ruled that G.L. c. 40A, §6 authorizes any reconstruction, alteration and additions to a nonconforming structure used for one or two family residential purposes so long as they fall within the existing footprint of the structure. This doctrine was enunciated in Lique v. Nahant Zoning Board of Appeals, Land Court Miscellaneous Case No. 124421 (1988), Healy, Trustee v. Volger, Land Court Miscellaneous Case No. 117569 (1988). This department has based its decision that changes within the existing footprint do not require a hearing before a Zoning Board of Appeals or a section 6 finding on the decision of the Appeals Court in Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987). Also applicable to the proper resolution of this question is Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985).

The unusual aspect of the present case stems from the variances granted previously by the Board of Appeals. It is clear that the variance granted for the windway and garage does not affect the standing of the present structure as nonconforming. It does not in any way relate to the existing nonconformity, the building's violation of the present side yard requirement, i.e., its location too close to the northerly boundary line of the property adjacent to the plaintiff's land. The plaintiff contends, however, that a variance granted by the Board of Appeals at the time of the purchase of the property by the defendant's mother changed the status of the property from nonconforming since the by­law was varied. I reject this argument. The structure already was protected by the provisions of the General Laws and the Zoning By­law of the Town of Manchester insofar as its location on the lot was concerned. There is no dispute that the present structure from the time it was first built was located in such a way that it violates the setback requirements of the Manchester Zoning By-laws. There was no need for any variance to legitimize this location and the action of the then ZBA was a nullity. It seems apparent that the action of the Board was taken at the behest of a conveyancer nervous not only about the location of the structure but its use. Since it is clear that under the then law the structure legally could be maintained and used for residential purposes even if not enlarged, the issuance of the variance has no effect on the proper result here. It would be a strange policy to find that a landowner is barred from the right to improve his nonconforming home by the grant of a variance which was an unnecessary act.

In defense of the Building Inspector who felt that the grant of the variance changed the existing situation I should point to the difficulty that the Courts now face in determining whether a particular building which may have been the subject of previous action by the local zoning authorities remains nonconforming for purposes of the present enabling act. I have discussed this question twice recently with varying results depending on the particular factual situation in these cases (see for example, Goddard Memorial Hospital v. Stoughton Zoning Board of Appeals et al, Land Court Miscellaneous Case No. 121960, (1987) and Shrewsbury Edgemere Associates Limited Partnership v. Board of Appeals of the Town of Shrewsbury, Land Court Miscellaneous Case No. 130027 (1989)). It is one of the areas that I anticipate will be the source of an increasing amount of litigation since it is the nonconforming nature of the use or structure which is the wellspring of the relief afforded by the footprint approach.

I find and rule that the structure which is now the McNear home has never lost its nonconforming nature so far as the yard set back is concerned, that admittedly the improvements which were the subject of the defendant's second application for a building permit and in issue here are within the existing footprint, that they do not violate any height requirements of the Town of Manchester and that therefore the building permits continue in full force and effect. The Board was correct in ruling that the defendant was entitled to make them as of right. While the Building Inspector's administrative decision that this required a special permit or variance from the ZBA was incorrect, it was understandable in view of the complex nature of the property's history and the applicable law. Nichols v. Board of Appeals of Cambridge, 26 Mass. App. Ct. 631 (1988) cited by the plaintiff has no relevancy here.

The parties moved and I allowed a motion to bifurcate the trial and reserve for later the question of relief should the plaintiff prevail. In view of the result I reach this has now become moot.

Judgment accordingly.