RONALD P. BIZZOZERO, TRUSTEE OF MKB REALTY TRUST vs. JAMES S. OLDHAM, LORRIMER ARMSTRONG, JR. and JOEL T. O'BRIEN, as they are the members of the ZONING BOARD OF APPEALS of the TOWN OF HANOVER.

This action constitutes an appeal brought by the Plaintiff, Ronald P. Bizzozero, Trustee of MKB Realty Trust ("Bizzozero" or "Plaintiff"), pursuant to G.L. c. 40A, §17, of a decision of the Defendant, Zoning Board of Appeals of the Town of Hanover ("Board"), denying his application for a special permit to add a fifth dwelling unit to an existing four family dwelling located at 715 Main Street in Hanover ("Locus").

At a pre-trial conference held on April 12, 1990, all parties stipulated that the matter would be submitted on an agreed statement of facts and written arguments of counsel. All of the agreed upon exhibits (Exhibits "A" through "I") are incorporated herein for purposes of any appeal. [Note 1]

Upon consideration of the foregoing, I find the following facts:

1. Charles G. Ruykhaver, Jr. and Jane C. Ruykhver (collectively referred to as "the Ruykhavers") acquired title to approximately nine (9) acres of land, including Locus, on March 5, 1965. This conveyance is evidenced by a deed recorded at Book 3188, Page 269 in the Plymouth County Registry of Deeds. [Note 2] (See Exhibit "C").

2. By deed dated March 9, 1972, recorded at Book 3759, Page 53 (Exhibit "D"), the Ruykhavers, along with William B. Sprada, Sr. and Ruth M. Sprada, conveyed all of the land, excluding Locus, to Broad Construction Corp. This property appears as Lot No. 3 on a plan entitled "Plan of Land on Main Street, Hanover", dated January 11, 1972, recorded as Plan No. 213 of 1972 ("1972 Plan") (Exhibit "B").

3. As evidenced by a plan entitled, "Subdivision Plan of Buttercup Estates at Main Street, Hanover", dated May 30, 1986, recorded at Plan Book 27, Page 1141 ("Subdivision Plan") (Exhibit "E"), Lot No. 3 was subsequently subdivided into several lots. As shown on this plan, the subdivision resulted in the creation of the private way, "Buttercup Lane".

4. Bizzozero acquired title to Locus on February 27, 1986, by deed from the Ruykhavers, recorded at Book 6627, Page 239 (Exhibit "A"). As shown on the 1972 Plan, Locus (Lot No. 1) contains approximately 200.90 feet of frontage on Main Street. In addition, as evidenced by the Subdivision Plan, the southerly side of Locus abuts the aforesaid Buttercup Lane. There are also existing curb cuts from Locus to Buttercup Lane.

5. On or about January 13, 1989, Bizzozero applied to the Board seeking a special permit to add a fifth dwelling unit to a four-family residence in existence well before 1955. This pre-existing dwelling is shown on a plan entitled "Mortgage Inspection Plot Plan in Hanover", dated March 4, 1986 (Exhibit "F"). The fifth dwelling which Bizzozero proposes to construct on Locus is shown on a plan entitled "Plan of Land in Hanover, Mass.", dated February 13, 1989 (Exhibit "G"). As shown on this later plan, the fifth dwelling will be set back approximately thirty (30) feet from Buttercup Lane.

6. Zoning was adopted in the Town of Hanover in 1955. Inasmuch as Locus was then zoned "Residence A", in which district only single-family residences are permitted as of right, the pre­existing four-family dwelling became a nonconforming use (See Exhibit "H", Section VI (C) (1) (b)).

7. Sections IV (A) (1) and (2) of the Zoning Bylaw for the Town of Hanover ("Bylaw") (Exhibit "H") provide in pertinent part, as follows:

Continuance of Existing Uses:

A non-conforming or a non-conformance other than use may may continue, provided that:

A. No increase in the extent of the non-conforming use of a structure or land shall be made, except:

1. Agriculture and residential uses may be expanded within setback and building code limitations.

2. Subject in each case to approval of the Board . . . under the Site Plan procedure specified in Section VII,G., other non-conforming uses may be expand ed [sic] up to 25% greater in volume, floor area and land utilization area than which existed prior to the non­ conformity. The Board shall not grant such approval unless it finds that such expansion will not be substantially more detrimental to the neighborhood than the existing non-conforming use; and further that such expansion will not allow greater lot coverage, lesser setbacks and yards, and infringement or further infringement into buffer areas than if the use were conforming in the District . . .

8. The relevant portions of Sections VII(B) (2) (a) and (d) and Section VII(B) (3) (b) of the By-law provide as follows:

2. Minimum Lot Frontages . . .

a. In residence A . . . : 150 feet.

d. In cases where a lot has frontage on two streets, both frontages shall meet the requirements of minimum lot frontage and minimum front yard depths; or the combined frontages shall equal the same length as two full frontages.

3. Minimum Front Yards:

b. In Residence A Districts: 50 feet except such yard may be the average of depths of front yards on abutting lots.

9. Section II(U) of the By-law defines "street" as follows:

Street:

A public way or a private way either shown on a plan approved in accordance with the subdivision control law or otherwise qualifying a [sic] lot for frontage on a street under the subdivision control law.

10. At a duly convened public hearing on March 8, 1989, Bizzozero's special permit application was presented to the Board. Thereafter, on May 20, 1989, the Board conducted an on-site inspection of Locus.

11. By a unanimous vote taken on May 30, 1989, the Board denied Bizzozero's application for a special permt. This decision, which was filed with the Hanover Town Clerk on May 31, 1989, reads in relevant part as follows (See Exhibit "I"):

The ZBA finds the following:

The dwelling had four dwelling units in use prior to the adoption of the [Hanover Zoning By-law] in June 1955.

Each of the four re-constructed dwelling units will conform to the minimum floor area of 600 square feet as required by Section VIII, B.6.a., and as defined in Section II.H, of the [By-law], and each unit has three accesses and egresses.

Section IV,A., and I., [of the By-law] specifies that, "No increase in the extent of the non-conforming use of a structure or land shall be made except: Agriculture and residential uses may be expanded within setback and building code limitations".

It is the opinion of the ZBA that the proposed expansion to a fifth non-conforming dwelling unit will not be within the set back limitations of a minimum 50 feet Front Yard, Section VIII., B.3., for a lot having frontage on two streets, Section VII, B.2.d. , [By-law] . . .

General Laws Chapter 40A, Section 17 delineates the scope of the Court's review in the instant matter, as follows:

The Court shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and upon the facts as so determined, annul such decision if found to exceed the authority of the such board or make such other decree as justice and equity may require.

Specifically, the reviewing Court hears the matter de nova, makes its own findings and affirms the decision of the board unless it is found to rest on legally untenable grounds or is unreasonable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). The Court may not substitute its judgment for that of the board, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969); Subaru at 486-488; Garvey at 856, inasmuch as its review is limited to the validity of the board's action in granting or denying the special permit. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1977). The applicant for the special permit bears the burden of proving that he has met the statutory prerequisites and that, accordingly, the board exceeded its authority in denying the permit. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977); Boyajian v. Board of Appeals of Wellesley, 6 Mass. App. Ct. 283 , 284 (1978); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981).

As a general rule, special permits may be issued only for uses which are in harmony with the general purpose and intent of the by-law. G.L. c. 40A, §9. Here, the Hanover By-law requires lots in the Residence A zoning district to have minimum frontage of 150 feet. See Section VII (B) (2) (a). Additionally, Section VII (B) (2) (d) of the By-law provides that, in the case of a lot in this district having frontage on two streets, each such frontage must meet this minimum frontage requirement, as well as the By-law's minimum front yard depth requirement of 150 feet (See Section VII (B) (3) (b)). This section of the By-law goes on to provide that, in the alternative, the combined frontages on these two streets may equal the same length as two full frontages.

In the instant matter, Locus is a corner lot, the westerly side of which abuts the public way known as Main Street and the southerly side of which abuts the private way known as Buttercup Lane (See Exhibits "B" and "E"). Insofar as the Hanover By-law defines "street", which term as mentioned above is used in Section VII (B) (2) (d), as "a public way or a private way either shown on a plan approved under the subdivision control law or otherwise qualifying a lot for frontage on a street under the subdivision control law", I find that Locus does under the by-law contain frontages [Note 3] on two "streets". Accordingly, I find that Bizzozero's special permit application is subject to the aforesaid setback limitations of Section VII of the By-law.

Applying the aforementioned sections of the By-law hereto, I find that Locus contains sufficient frontage on both Main Street and Buttercup Lane (See Exhibits "B", "E", "F" and "G"). As to front yard depth, however, I find that the fifth dwelling unit which Bizzozero proposes to construct on Locus will be set back only thirty (30) feet, more or less, from Buttercup Lane, thereby violating the required front yard setback of fifty (50) feet under Section VII (B) (2) (d) of the By-law. In view thereof, I find and rule that the decision of the Hanover Zoning Board of Appeals, which was filed with the Office of the Hanover Town Clerk on May 31, 1989, denying Bizzozero's application for a special permit to add a fifth dwelling unit to the pre-existing, nonconforming four­family dwelling unit located at 715 Main Street in Hanover, did not exceed the authority of the Board and must be sustained.

Judgment accordingly.