LAWRENCE GOLDMUNTZ and BARBARA GOLDMUNTZ vs. ROBERT I. HULSIZER, FREDERICK LITTLETON, CAROLINE EDDY and PHILIP J. DEMERS, as Members of the TOWN OF CHILMARK ZONING BOARD OF APPEALS.

The plaintiffs, Lawrence Goldmuntz and Barbara Goldmuntz, seek permission to construct two dormers on the south side of their home in Chilmark overlooking Squibnocket Pond pursuant to the provisions of G.L. c. 40A, §6. The present action which constitutes an appeal pursuant to G.L. c. 40A, §17 from the denial by the Chilmark Zoning Board of Appeals of the plaintiffs' appeal from the decision of the Building Inspector denying them a building permit is the second round in the present controversy. The original application to the Building Inspector and the appeal to the defendant Zoning Board of Appeals ("ZBA") is found in Miscellaneous Case No. 133587 where relief was denied by the Building Inspector and the Board to the plaintiffs on the ground that there was a moratorium in effect. On appeal to this Court an order granting the plaintiffs' motion for summary judgment and a judgment were entered to the effect that the moratorium applied only to new construction and not to alterations of existing structures. A copy of the order and judgment is attached hereto. The matter was remanded to the ZBA for further proceedings to determine whether the improvement contemplated by the plaintiffs increases the nonconformity of their residence and if so, whether such alteration would be "substantially more detrimental than existing nonconforming [structure to the neighborhood]" the test set forth in G.L. c. 40A §6. The Board granted other relief sought by the plaintiffs, but it did not approve the addition of the south side dormers. Accordingly the plaintiffs sought a further order following remand which the Court denied and held that an appeal from the decision of the Board was the proper remedy. Accordingly this appeal was taken.

A trial was held in Edgartown on Martha's Vineyard on April 5, 1990 at which the proceedings were electronically recorded. At the trial the plaintiff Lawrence Goldmuntz, a Ph.D., testified in his own behalf and Robert I. Hulsizer, the Chairman of the ZBA, testified for the Board. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken of the plaintiffs' property in the presence of counsel.

On all the evidence I find and rule as follows:

1. The plaintiffs are the owners of record of a 10.3 acre parcel of land situated in Chilmark in the County of Dukes County on which is situated an unheated summer residence.

2. The property is located on the shores of Squibnocket Pond from which it is set back ninety-five (95) feet. The property is located both within the coastal zone which is the area within five hundred feet of the pond, and also the shore zone, i.e., the first hundred feet from the pond, in which single family residences are not allowed; it is also in a district of critical planning concern as designated by the Martha's Vineyard Commission. The plaintiffs' home therefore is nonconforming because of this five foot intrusion into the shore zone.

3. The coastal zone has a height limitation for a house having a gabled or hip roof of eighteen (18) feet if in open terrain and twenty-four (24) feet in a wooded terrain. The locus is within an open terrain. See §11.72 c (i) of the by-law.

4. There is no neighbor to the east of the locus and the closest homes to the north or west are five to six hundred feet distant. There was no opposition from the neighbors to the granting of relief to the plaintiffs although one neighbor who had participated in the drafting of a recorded instrument believed that it prohibited any construction at the plaintiffs' property. Dr. Goldmuntz disagreed, and the neighbor did not pursue this point nor did he object to the relief sought from the ZBA.

5. The plaintiffs' home has six bedrooms of which three bedrooms are on a lower level and three on the same level as the living sections of the home. They seek to increase the size of the bedrooms, the number of which will remain at six and to rearrange the floor plans, particularly, to construct a stairway rather than a ladder approach to the third story, to relocate the bathroom, to decrease the number of first level bedrooms from three to two by increasing the size, and to reverse the main living area so that the dining room and kitchen are contiguous. Because of the pitched roof on the home it would be impossible to make use of the third floor without the addition of the dormers since it would be difficult to stand erect with the present roof line in place. Three architects have struggled with the problem, and none of them has been able to suggest an alternate resolution. [Note 1]

6. The plaintiffs have a remarkable view of Squibnocket Pond and of the Atlantic Ocean beyond. Presumably the occupants of the homes on the far distant side of the pond closer to the ocean may have a view of the plaintiffs' property (although binoculars might be required to see the dormers) as well as members of the public using Squibnocket Pond. Those at the public beach, however, cannot see the house. The area is important to enthusiastic bird watchers, and indeed Dr. Goldmuntz testified that there frequently may be 75 to 100 swans frequenting the property or the pond. The waters of the pond are shallow, only five to six feet deep, and with the presence of snapping turtles swimmers use the waters infrequently, if at all. Because of the depth of the pond, at least close to the plaintiffs' property, canoes do go aground.

7. Neither the pond, the public beach or the land mass across the pond constitutes "the neighborhood" as that term is used in said section 6. See Manning, et al v. New England Mutual Life Insurance, Co., et al, Misc. Case No. 117622, affirmed 399 Mass. 730 (1987). The dormers while higher than the height limitation will be lower than the existing ridge pole. They will not be visible to those living to the north or east of the plaintiffs except possibly a side view thereof.

8. There is at least one house shown in the photographs taken by the Chairman of the ZBA which has dormer windows, a characteristic of New England architecture (Exhibits Nos. 7-6 and 7-9).

9. The plaintiffs have obtained from the Conservation Commission and from the Board of Health approval of their plans including those for the new septic system which will comply with Title 5 as distinguished from the present system now situated in the shore zone which will be filled and abandoned (Exhibit No. 1).

10. In addition to its location in the coastal district the locus also is situated in the Agricultural-Residential District VI and within the Squibnocket Pond District which is the District VI overlay. There is a provision in section 6.2 of the Zoning By-law which limits the height of a gabled or hip roof to a maximum of 24 feet although the Board of Appeals for reasons specified in the by-law may approve a height of 28 feet; however, in the coastal zone an 18 foot height limitation is in force. The hight of the plaintiffs' house is approximately 25 feet.

11. The Zoning By-law also includes in section 8.2 a provision as to nonconforming uses, which is more limited than the enabling act. It reads:

Any non-conforming structure containing a conforming use may be expanded or altered, provided that such structure shall comply with the setback requirements and the height requirements of the by-law.

In addition, there is an additional provision in Section 8.3 applicable to nonconforming uses which reads as follows:

The Board of Appeals may, after a public hearing, grant a special permit to allow any non-conforming structure, which does not meet the requirements of Section 8.2, or any non-conforming use, to be expanded or altered if the board finds:

a. Such expansion or alteration will not cause further non-conformance with the height requirements of this bylaw, and

b. Such expansion or alteration will not be more objectionable or detrimental to the character of the neighborhood than the original structure, provided that, in all cases, any expansion of a structure, laterally more than 50 percent of the distance between a lot line and the portion of the structure closest to said lot line as of January 15, 1973, or within ten (10) feet of said lot line, shall be deemed substantially more detrimental to the character of the neighborhood.

A special permit under this section shall be conditional pending approval of the Board of Health if the proposed expansion or alteration may cause additional use of on­site sanitary disposal facilities.

In districts of critical planning concern the by-law specifically attempts to insure that development

a. Will not result in undue water, air, land or noise pollution;

b. Will not unreasonably burden the existing water supply of the district;

c. Will not result in increased beach erosion or damage to the coastal ecology or wetlands;

d. Will cause no damage to fisheries and shellfish;

e. Will cause no unnecessary decrease in agricultural use or the potential productivity of the land;

f. Will result in as little interruption as possible of public views overlooking the site, nor will it allow construction which is not in harmony with the landscape type;

g. Will not result in traffic that would be detrimental to the safety of the public.

The decision of the Board denied the special permit which it had authority to grant both under G.L. c. 40A, §6 and §8.3 of the Zoning By-law if the expansion or alteration did not cause further non-conformance with the height requirements of the by-law. The Board found that the dormers would exceed 18 feet above mean grade in their entirety and refused to grant the special permit on that ground.

So far as the second sentence of the first paragraph of G.L. c. 40A, §6 is concerned the decision reads "in light of the fact that section 11.7A.2.c.I of the Chilmark Zoning By-laws explicitly prohibit structures exceeding 18 feet in height, the Board finds that this restriction in itself defines what is detrimental to the neighborhood and therefore voted 4-0 to approve the alterations described in the plans submitted on October 4, 1989 with the exception of the dormers proposed for the south side of the roof".

I find and rule on all the evidence including the view that I have taken of the premises that the Board's decision is wrong both as a matter of fact and of law. The language of G.L. c. 40A, §6 has been twice dealt with by the Appeals Court in Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985) and Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987).

The Court has held that the ZBA in the first instance must identify in what respects the existing structure does not conform to the by-law and then "determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones." (Willard, at p. 21). If so, the Board then moves on to the question as to whether the alterations or additions would result in a structure substantially more detrimental to the neighborhood than the existing structure.

The Chilmark ZBA concluded that any violation of the maximum height requirement would per se be substantially more detrimental. Such an interpretation effectively negates the effect of the first paragraph of section 6 and renders it nugatory. Since I have found that the neighborhood does not encompass those using the pond and have further found that the dormers will not be visible to those to the north or east of the locus, at least to any great extent, it seems clear that the additions will not constitute improvements rendering the house substantially more detrimental to the neighborhood.

It is true that from the pond the house will appear more massive and less colonial than its present style. The Court recently has discussed at length aesthetic requirements as an aspect of zoning (Tucker's Wharf Limited Partnership, et al v. Board of Appeals of Marblehead, Misc. Case No. 122297) but in matters of architectural attractiveness, tastes differ, and experts in the field have been unable to resolve the problems presented by the gabled roof without the addition of dormers.

Accordingly I find and rule that the plaintiffs are entitled to the issuance of the special permit which they requested for the construction of the south side dormers and remand the matter to the Board for its issuance.

When I denied the plaintiffs' motion for a further order after remand in the companion case, I expressed some concern about the applicability of the footprint concept in a spatial context. It is clear from Fitzsimmonds supra, that if a home owner wishes to renovate his nonconforming home within its existing footprint without increasing the nonconformity, he may do so as a matter of right under section 6. In a municipality, however, where there is a height limitation which the ridge pole exceeds is the owner entitled to raise other parts of the roof to the same height as a matter of right? In other words is the house a cube within all of which it can be altered so long as the present six (or more practically five) sides are not extended? This version of nonconformity has not as yet been addressed by the Appeals Court although Justice Grant in Willard did refer to improvements which intensified the existing nonconformities, a category into which spatial additions arguably might fall. Until, however, the Appeals Court or the Supreme Judicial Court otherwise instructs trial courts in this area it is my opinion that so long as the proposed additions or alterations do not exceed the existing nonconformity whether of set back or height, then the owner is entitled to make them as of right under G.L. c. 40A §6.

Judgment accordingly.