KENNETH FULLER vs. JAMES THEODOSOPOULOS, DANIEL B. LUNT, JR., DAVID L. LEVESQUE, DANA P. JORDAN, JOSEPH R. PETRANEK, as they are members of the IPSWICH BOARD OF APPEALS.

By complaint filed on January 17, 1991, pursuant to G.L. c. 40A, §17, Plaintiff appeals a decision of the Ipswich Board of Appeals ("the Board") denying his application for a special permit to expand the second floor of a residential structure ("the Structure") on land located at 78 Clark Road, Ipswich ("Locus") and a variance to construct a garage ten feet from the side lot line of Locus. Plaintiff alleges that no special permit is required for the expansion of the second floor or, in the alternative, that the denial exceeded the Board's authority.

On September 25, 1991, upon stipulation of the parties, the Court allowed Plaintiff's Motion to Dismiss Count III of his Complaint appealing the Board's denial of the variance, leaving only the appeal relating to the special permit denial.

This case was tried on September 25, 1991, at which time the trial proceedings were transcribed by a court-appointed reporter. Nine witnesses testified and seventeen exhibits were introduced into evidence together with one late-filed exhibit. After trial, the Court took a view of Locus. All exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. Plaintiff owns and resides at Locus which is in the Great Neck area of Ipswich, and is shown as Lot 100 on Ipswich Assessor's Map Number 24A.

2. Locus is a roughly rectangular parcel with 75 feet of frontage on Clark Road, and is approximately 8,192 square feet in area. Locus is steeply sloped towards, and bounded on one side by, Plum Island Sound. The Structure is a Cape-style house with a sloped roof, and consists of a basement, first floor, with a kitchen, bathroom, bedroom and living room, and an attic used for storage.

3. Locus is in an RRB Zoning District. The Structure is nonconforming in that it does not meet the front and side yard setbacks of the By-Law nor does it have the required area or width.

4. On September 28, 1990, after being denied a building permit, Plaintiff submitted an application ("the Application") to the Board for a special permit to raise the roof on the Structure approximately four feet, ten inches ("the Addition") and for a variance to construct an attached one story garage ten feet from the side lot line of Locus. The purpose of the Addition, which is shown on Exhibit No. 9, is to provide enough head-room to create a bedroom and bathroom. The Structure, after completion of the Addition, would not exceed the maximum height requirement of 25 feet for the District. The footprint would not be changed.

5. On December 20, 1990, the Board voted to deny the Application, which denial is evidence by a written decision ("the Decision") filed with the Ipswich Town Clerk on December 31, 1990. In the Decision, the board failed to make the necessary findings under G.L. c. 40A, §6. While this fact in itself would justify remanding the Decision to the Board, I shall consider the evidence before the Court and, in the interest of judicial economy, act thereupon.

6. The Great Neck area is a peninsula extending into Plum Island Sound, approximately a mile long and a half mile wide and is a residential area with lots fronting and sloping toward the water. The Great Neck area contains approximately 240 single-family homes, most of which enjoy a view of the ocean.

In reviewing appeals brought pursuant to G.L.c. 40A, §17, the trial judge hears the matter de nova, makes his own findings of fact, and on the facts so found, affirms the board's decision unless it is found to rest on a legally untenable ground or is unreasonable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); 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). Insofar as the court's review is limited to the legal validity of the board's actions 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 (1983), it 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 956.

G.L. c.40A, §6 provides that a zoning by-law shall not apply, "where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure."

In a recent line of cases, this Court has adopted the position that a vertical extension of the walls of a nonconforming structure do not increase the nonconforming nature, as long as the extension is within the by-law limits. Ligue v. Nahant Zoning Board of Appeals, Land Court Misc. Case No. 124421 (1988); Goldmuntz v. Chilmark Zoning Board of Appeals, Land Court Misc. Case No. 139026 (1989); Harrison v. Chilmark Zoning Board of Appeals, Land Court Misc. Case No. 134666 (1990); Howard v. Dennis Zoning Board of Appeals, Land Court Misc. Case No. 168197 (1991). Moreover, if the footprint of the structure is not changed by the alterations, the Town must issue a building permit. Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985); Willard, supra; and cases cited, supra.

In the present case, the proposed alteration, being a vertical increase of less than five feet, does not change the footprint of the Structure, is within the height limit, and is therefor protected.

Accordingly, Plaintiff is entitled to a building permit, subject to compliance with all other applicable requirements of the State Building Code and the filing of required application and plans.

Assuming ad arguendo that Plaintiff requires a special permit, I will discuss the provisions relating to such permit.

G.L. c. 40A, §6, provides, in pertinent part:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Section II.B of the By-Law is similar in all relevant aspects to the aforesaid provision but in addition thereto requires a special permit. The Court has interpreted G.L. c. 40A, §6 to require a finding that an extension or alteration is not substantially more detrimental than an existing use or structure to the neighborhood. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21 (1987).

Section XI.I of the By-Law provides, in pertinent part:

Before approving an application for special permit, the permit granting authority with due regard to the nature and condition of all adjacent structures and uses, and the district within which the same is located, shall find all of the following general conditions to be fulfilled:

1. The use requested is referred to in the Table of Use Regulations as a special permit in the district for which the application is made or is so designated elsewhere in this By­ Law.

2. The use is in harmony with the purpose of this By-Law.

3. The requested use will not create undue traffic congestion or noise or unduly impair pedestrian safety.

4. The requested use will not overload any public water, drainage or sewerage system or any other municipal system to such an extent that the requested use or any developed use in the immediate area or in any other area of the town will be unduly subjected to hazards affeting health, safety or the general welfare.

5. Any conditions for specific uses, set forth in this By-Law, are fulfilled.

6. The requested use will not impair the integrity or character of the district or adjoining districts, nor be detrimental to the health, morals, or welfare.

The Board. argues that the views of residents in the surrounding houses will be partially blocked by the Addition, that residents will lose privacy and sunlight due to the increased height of the Structure, and that the allowance of the Addition will have a "domino effect" in that other residents will begin constructing such additions to houses in the area, all of which will create substantial detriment. As to the "domino effect," the Court has explained that such an effect is a "putative problem to be faced in the indefinite future upon now uncertain facts," Fitzsimonds at 57, the remedy for which may be legislative. I find that, as there was no evidence as to financial or other hardship arising from the construction of the Addition, said Addition is not substantially more detrimental to the neighborhood than the existing Structure and that the Addition does not violate the special permit provisions of the By-Law. As a matter of law the Board cannot deny the permit merely because it would prefer homes in the Great Neck area to remain cottages. Cumberland Farms of Conn., Inc. v. Zoning Board of Appeals of North Attleborough, 359 Mass. 68 , 75 (1971): MacGibbon at 637-8 and 640-1.

Were a special permit necessary, the Board's denial thereof under the instant circumstances would have been in excess of its authority.

Defendants submitted a Post-Trial Brief and Plaintiff submitted Findings of Fact and Conclusions of Law. I have not attempted to rule on each of Plaintiff's Requests as I have made my own findings and rulings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.