MISC 134666

April 20, 1990

Dukes, ss.



This is an appeal by Dr. Howard Harrison, an orthopedic surgeon practicing in Lowell in the County of Middlesex and who now anticipates practicing also in Martha's Vineyard where he has owned a home for many years in Chilmark. He sought a special permit or a variance from the Board of Appeals ("ZBA") in Chilmark to make certain alterations and additions to his property, and he now appeals pursuant to the provisions of G.L. c. 40A, §17 from the denial by ZBA of relief. The plaintiff heretofore filed and thereafter argued a motion for summary judgment, opposed by the ZBA, which I denied on the basis that it was not clear whether the envelope concept enunciated by the Appeals Court in Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987) applied to the vertical increase of a structure where there was a height limitation specified in the by-law. In the case of Goldmuntz v. Chilmark Board of Appeals, also decided today I have enunciated a policy for future cases in which I will treat a house as a cube and accordingly hold that within that cube the alterations or additions authorized by G.L. c. 40A, §6 may be made. The general rule may also have exceptions dependnt upon the particular circumstances of each appeal and the relief sought. In the case now before me there arguably are two envelopes, that of the main structure and that of the small rear ell which I will address in this decision.

A trial was held in Martha's Vineyard on April 5, 1990 at which the plaintiff, Howard Harrison and a real estate broker, James P. Howell testified for the plaintiff, and Robert I. Hulsizer, Chairman of the ZBA testified for the defendant. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows:

1. The plaintiff purchased his home in Chilmark in 1974. It is located at the corner of North Road and a private way known as Flanders Lane in the Memensha District of Chilmark ("Memensha").

2. The home presently consists of five bedrooms, and after the additions and alterations if authorized herein, are completed, there will still be five bedrooms. The plaintiff anticipates adding one bedroom to the area over the back hall and turning a second floor bedroom into a bathroom with the present small and antiquated bathroom henceforth serving as a hall. On the first floor there presently is a downstairs bedroom which was originally a study and which will be converted back to a study. The house was built without electricity and the system which was added later is primitive. The plaintiff proposes to bring the electrical and heating systems up to code and in conformity with modern requirements. The house, built in 1930, is nondescript in style and does not contain any outstanding architectural features. It presently has one small dormer in the front and another in the rear.

3. Flanders Lane serves about 40 houses, and the owners along the way have tried to restrict the traffic to the residents and their invitees; the way does connect with a road which runs from North Road to South Road.

4. There is a huge tree in front of the house which shields it from the road and conversely bars a view of the house to some extent from the highway. There also are bushes which line the sidelines of the lot such as forsythia, lilacs and other flora typical of the islands. Chilmark has a policy of preserving the views of landscapes and seascapes, woods and open fields along the roadsides which it is felt are a major part of the daily environment.

5. Across North Road and somewhat to the west is the large house shown in Exhibit No. 3. Directly across the street there is an increase in grade where a new house has been constructed and which is higher than the plaintiff's home.

6. The plaintiff's house presently is 28 feet above grade. The two proposed dormers would be built from the sides and would not exceed the height of the present ridgepole although they would be in excess of the maximum height allowed in this district of 24 feet. See Section 6.2 of the Zoning By-law (Exhibit No. 6). The by-law permits a flat roof of only 13 feet. The proposed addition over the present back ell would rise to twenty feet with the railings around it raising the height limitation as interpreted by the ZBA by three to four feet. The fire escapes from the building exit onto the back area.

7. The improvements which the plaintiff seeks to make would upgrade his property, make it more attractive to the neighborhood and more functional for his lifestyle.

There is a provision in Section 8.3 of the Chilmark Zoning By­law for a special permit to allow additions and alterations to a nonconforming residence so long as the height restrictions are not exceeded. The Zoning Board of Appeals refused the plaintiff's request for a special permit on the ground that Section 8.3A specifically prohibited alterations which would cause further non-conformance with the height requirements of the by-law. The dormers will not exceed the present height of the ridgepole so as pointed out in the Goldmuntz decision the question here is whether additions to the roof so that more of it exceeds the maximum height but does not exceed the present top point of the building is within the envelope. I have now held that it is and therefore as to the main portion of the plaintiff's home I find and rule that he is entitled as of right to make the proposed alterations.

If I am wrong as a matter of law on this point, I further find and rule that the proposals by the plaintiff are not substantially more detrimental to the neighborhood than the existing structure. I appreciate the concern of the residents of Chilmark to preserve their beautiful village, but I find it difficult to believe that such views can be more than momentarily glimpsed from moving vehicles. However, improvements to a home to make it more functional and to improve the quality of life of its occupants would seem to be as important. There is no building close to the plaintiff's house whose view would be impeded or who would otherwise be adversely affected by the improvements which the plaintiff wishes to make, and no party objected to them at the hearing before the ZBA. Accordingly I find and rule that the plaintiff has met the test set forth in G.L. c. 40A, §6 and therefore is entitled to the issuance of the special permit granting his request.

There remains a legal argument as to whether the plaintiff is entitled as of right to make the additions over the rear portion of his home since he clearly is increasing the height thereof above the limit described in the by-law. It is not necessary to decide this aspect of the dispute, however, since it is clear that the addition would not be substantially more detrimental to the neighborhood. There is one home to the rear of the plaintiff's house, but the addition would screen the neighbor from the North Road and otherwise would have a neutral impact upon it. There are existing shrubberies along the sides of the property which afford a screen to those traveling on Flanders Lane if indeed they were to consider the upgrading of the house not pleasing. The rear of the property cannot be seen from the pubic way so the additional height would not impact upon travelers on the way. Accordingly on all the evidence I find and rule that the plaintiff was entitled under the provisions of G.L. c. 40A, §6 to the issuance of a special permit to make the alterations and additions which he proposed to the Board. I further note that the general case law relative to special permits does not apply to a section 6 finding which is entirely different from other provisions of Chapter 40A relative to special permits.

I make no finding on the question of a variance since I find that the plaintiff's case is governed by the enabling act. I remand the matter to the ZBA for the issuance of the special permit for which he applied.

Judgment accordingly.