ALAN J. HARRISON v. EDWARD M. FOUHY, PETER M. ACTON, SABINE DOW, DAVID S. NIXON and DONALD M. FREEMAN, as they constitute the Town of Chatham Zoning Board of Appeals, and NORMAN and EMILY ST. PIERRE

Introduction

By virtue of the instant action, initiated pursuant to G. L. c. 40A §17, the plaintiff Alan J. Harrison (plaintiff), challenges a decision of the Town of Chatham Zoning Board of Appeals (Board). In its decision of January 11, 2011, the Board granted a Special Permit to Norman and Emily St. Pierre (defendants) concerning their approximately .45 acre property at 211 Orleans Road (Locus) in the Town of Chatham.

Specifically, the St. Pierres were authorized to “(a) demolish the existing structure on the Locus, (b) build a new structure [thereon], and (c) convert the existing nonconforming use (gas station and automobile repair / sales) to another nonconforming use (gas station and convenience store).” [Note 1] The plaintiff Alan J. Harrison is the owner of the premises at 210-212 Stony Hill Road in Chatham (Harrison Parcel). [Note 2] “The Harrison Parcel directly abuts the Locus to the southwest.” [Note 3]

The plaintiff has filed a Motion for Summary Judgment in which he asserts that, in rendering its Decision, the Board exceeded its authority. He argues, inter alia, that the Board's interpretation of the pertinent provisions of the Town of Chatham Protective Bylaw (Bylaw) directly conflicts with G.L. c.40A, §6. The plaintiff urges, therefore, that the Board’s decision be annulled.

Background

The Locus, [Note 4] which is comprised of approximately 19,633 square feet, [Note 5] is situated in the Small Business Zoning District (SB District) of Chatham. [Note 6] It is currently improved with a commercial structure housing an automobile repair and sales business as well as a gas station. [Note 7] The Locus consists of a nonconforming lot upon which sits a nonconforming structure, utilized for purposes that comprise a nonconforming use. [Note 8] The SB District allows several uses as of right, allows other enumerated special condition uses, [Note 9] and requires a special permit for yet additional enumerated uses.

Neither gas stations, automobile repair or sales facilities are permitted uses in the SB District either as of right or with conditions, nor are they listed among those uses requiring a special permit under Bylaw Section III C (3). Convenience stores are treated in a similar fashion under the Bylaw.

The Bylaw defines a “nonconforming use” at Section II.B.74, as follows:

“Nonconforming Use” means a use of land or structure which does not comply with all regulations for the district(s) in which it is located.

At Section II.B.72, 73, “nonconforming building” and “nonconforming lot” are defined as follows:

“Nonconforming Building” means a building or structure which does not conform to the requirements for location or dimension of such building or structure in the district in which it is situated as regards to minimum setbacks, maximum building height or maximum building coverage.

“Nonconforming Lot” means a lot of record existing on the effective date of this Bylaw or its applicable amendment, that does not meet the minimum area or dimensions required for a lot in the district in which it is located. [Note 10]

Appendix II of the Bylaw, entitled Schedule of Dimensional Requirements, [Note 11] prescribes the minimum and maximum dimensional requirements in each zoning district. Thus, the Bylaw specifies that in the SB District, there is a minimum lot size of 20,000 square feet, with 125 feet of frontage, a minimum setback of 50 feet from the road and a 20 foot setback from abutters. Lot coverage in the SB District may not exceed 50%, while at least 50% must be reserved as green area. The Bylaw further prescribes that parking is to be set back at least 60 feet from the roadway and 15 feet from abutters. Consequently, the Locus is, and in its reconstructed configuration, would continue to be, nonconforming in multiple respects.

In late 2010, [Note 12] Norman and Emily St. Pierre, as owners of the Locus, submitted an application for a special permit under s. V.B [Note 13] of the Bylaw to convert the existing gasoline station / automobile repair / sales business to a gasoline station and convenience store. In order to accomplish such conversion, the St. Pierres proposed to demolish the existing structure and construct an entirely new building on the property. In granting the requested special permit, the Board approved the proposed structure as well as the change of use, with conditions. Specifically, the Board described the relief granted, in the following terms:

[T]o expand and alter a nonconforming structure and use (gas station and convenience store) via the demolition of an existing building and construction of a new building 34.5 feet from Stony Hill Road and a gasoline pump canopy 27.5 feet from Orleans Road where a 50 foot setback is required from each road. 59.1% lot coverage is proposed where a maximum of 50% coverage is allowed, and a portion of a proposed parking area is located 3 feet from the southerly lot line where a 15 foot set back is required. The existing site is nonconforming in that it contains 86.1% lot coverage where 50% is allowed, and no loading zone where 1 space is required; various setback nonconformities exist on the parcel, including parking spaces. The existing building is 16.1 feet from the easterly lot line where a 20 foot setback is required, the existing gasoline pumps are located 15 feet from Orleans Road where a 50 foot setback is required. The [existing] use is nonconforming in that an automobile sales/repair facility and gasoline station are not allowed uses in an SB Zoning District.

This appeal from the decision of the Board, followed shortly thereafter.

Summary Judgment

Summary judgment must be granted when “pleadings, depositions . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ.P. 56(c). The non-moving party “may not rest upon the mere allegations or denials of [their] pleadings, but [their] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial [and] [i]f [they] do[] not so respond, summary judgment, if appropriate, shall be entered against [them].” [Note 14] Having found no genuine issue of material fact, summary judgment is appropriate “where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” [Note 15] In adjudging whether a factual issue is genuine, “the [c]ourt must determine whether the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F. Supp.2d 245, 250 (2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where resolution of the case depends solely upon judicial determination of a question of law, Mass. R. Civ.P. 56(c) permits the court to grant a summary decision. [Note 16]

The moving party bears the burden of proving the absence of any genuine issue of material fact, and that he is deserving of judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The moving party has discharged said burden once “[they] demonstrate [], by reference to material described in Mass. R. Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable interest” (internal quotations omitted) Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 35 (2006). Said a different way, “the material supporting a motion for summary judgment…must demonstrate that proof of [an essential] element at trial is unlikely to be forthcoming” Id.

Although “the party facing summary decision [has the right] to have the facts viewed in a favorable light, . . . [it] does not entitle that party to a favorable decision.” Caitlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992). For example, where the non-moving party merely relies on “bald conclusions” they are not thereby entitled to resist a motion for summary judgment. Id.

The present appeal yields no genuine issue of material fact. Rather, the only relevant issues before this court, are those of law. Under the circumstances, the instant case is ripe for summary judgment.

Discussion

a. Standing Pursuant to G.L. c. 40A, §17.

“Standing is a prerequisite for judicial review.” [Note 17] Under G.L. c. 40A § 17, this court would lack subject matter jurisdiction to reach the merits of a case absent a showing of “aggrievement” [Note 18] See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-03 (1957). See also Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (standing as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting). The Appeals Court has described standing as “a gateway through which one must pass en route to an inquiry on the merits…” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

As the owner of property which directly abuts the Locus, the plaintiff, Alan J. Harrison, is clearly a “part[y] in interest,” pursuant to G.L. c. 40A § 11. [Note 19] Those entitled to notice of the proceedings are presumed to have the requisite interest. Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 33 (2006). The plaintiff therefore enjoys a rebuttable presumption that he is a “person aggrieved” by the Decision of the Board. See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). See also Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

Here, while the defendants broach the issue as to the plaintiff’s alleged lack of standing, they advance no argument nor offer any evidence in support thereof. [Note 20] A mere assertion that the plaintiff lacks standing is insufficient to refute the presumption. Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. at 34. Therefore, the presumption stands that the plaintiff is an aggrieved person for purposes of G.L. c. 40A, s.17.

b. Standard of Review

“Review of a board's decision . . . pursuant to G. L. c. 40A, § 17, involves a "peculiar" combination of de novo and deferential analyses.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court grants some measure of deference to the board’s legal conclusions, but fact finding is a de novo review. Mellendick v. Zoning Bd. of Appeals of Edgartown, 69 Mass. App. Ct. 852 , 857 (2007). “While a judge is to give ‘no evidentiary weight’ to the board's factual findings, the decision of a board cannot be disturbed unless it is based on a legally untenable ground’ or is based on an ‘unreasonable, whimsical, capricious or arbitrary’ exercise of its judgment in applying land use regulation to the facts as found by the judge” Wendy's Old Fashioned Hamburgers of New York, Inc., 454 Mass. at 381-82, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999).

It is well to note, in this regard, that “the applicable principles are of judicial deference and restraint, not abdication.” Farfard v. Conservation Commission of Reading, 41 Mass. App. Ct. 565 , 572 (1996) (internal citations omitted).

c. The Board’s Decision

As noted supra, the Board approved the defendants’ application for a special permit subject to conditions to “expand and alter” the existing nonconforming use and structure to a new nonconforming use and structure. Alterations to nonconforming uses and structures must be as permitted by the Bylaw. Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 33 (1991). Here, the Board applied s. V.B of the Bylaw which provides in pertinent part as follows:

B. Enlargement, Extension or Change

As provided in Chapter 40A Section 6 MGL, a nonconforming single or two family dwelling [Note 21] may be altered or extended provided that the Zoning Enforcement Officer determines that doing so does not increase the nonconforming nature of such dwelling. For dwellings with setback nonconformities, any addition within the setback area (including an increase in building height) shall be deemed to increase the nonconforming nature of the dwelling. Such alterations, extensions or changes shall require a Special Permit from the Zoning Board of Appeals.

Other pre-existing nonconforming structures or uses [Note 22] may be extended, altered or changed in use by Special Permit, provided that the Zoning Board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use. In making its decision, the Zoning Board of Appeals shall make written findings addressing, at minimum, each of the following considerations, if applicable:

1. Adequacy of the size of the site including, but not limited to, maximum lot or building coverage or setbacks.

2. Compatibility of the size of the proposed structure with neighboring properties;

3. Extent of proposed increase in nonconforming nature of the structure or use;

4. Suitability of the site, including but not limited to, impact on neighboring properties or on the natural environment, including slopes, vegetation, wetlands, groundwater, water bodies and storm water runoff;

5. Impact of scale, siting and mass on neighborhood visual character, including views, vistas and streetscapes;

6. Compatibility of the proposed use with neighboring uses;

7. Adequacy of method of sewage disposal, source of water and drainage;

8. Impact on traffic flow and safety;

9. Noise and litter; and

10. Adequacy of utilities and other public services.

11. Visual impact on the neighborhood and neighboring uses of any formula business establishment. (emphasis added)

In reaching its decision, the Board concluded that the proposed nonconforming structure intended to house the gas station / convenience store would reduce existing structural nonconformities. That structure would conform to one setback requirement, and reduce the lot coverage from 86.1% to 59.1%, well in excess of the 50% maximum. [Note 23]

It is noteworthy, that while G.L. c. 40A, s. 6 clearly references “reconstruction” [Note 24] of the sort here at issue, Section V.B of the Chatham Protective Bylaw contains no such explicit reference. Rather, it speaks solely of “pre-existing nonconforming structures or uses” that may be “extended, altered or changed in use.…”

Here, the structure as proposed would be nonconforming in other respects, as well. For example, it would be 34 ½ feet from Stony Hill Road, while the proposed gasoline pump canopy would lie 27 ½ feet from Orleans Road. The zoning district requires a 50 foot setback from each roadway. [Note 25] Further, a portion of a proposed parking area would violate the 15 foot setback requirement in that it would be located only 3 feet from the southerly lot line. [Note 26]

The Board members “found that the proposed use and new structure and site improvements were an improvement over existing conditions, and found that they were not substantially more detrimental to the neighborhood than the existing, nonconforming uses and structures, and voted unanimously to grant the request for a Special Permit…. ” [Note 27]

Plaintiff argues that Board was without the authority to approve the Special Permit, thereby rendering the decision legally untenable. He asserts that the Board’s interpretation of the Bylaw conflicts with the provisions of G.L. c. 40A s. 6.

That Section provides in relevant part as follows:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun…, but shall apply to any change or substantial extension of such use…, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent […]. 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.

These two “difficult and infelicitous” [Note 28] sentences have been construed in a number of cases.

In Rockwood v. The Snow Inn Corporation, 409 Mass. 361 (1991), the Harwich Board of Appeals approved a special permit allowing The Snow Inn Corporation to make changes and extensions to preexisting nonconforming commercial structures. The structures were nonconforming in that they did not meet the local bylaw’s set back requirements. Moreover, the proposed alterations exceeded the maximum lot coverage allowed under the local bylaw. On appeal, the Supreme Judicial Court had occasion to construe the first two sentences of G.L. c. 40A §6, in clear, unambiguous terms, as follows:

We conclude…. that the first sentence of the quoted portion of Section 6 requires that, in the absence of a variance, any extension or structural change of a nonconforming structure must comply with the applicable zoning ordinance or by-law. Then, if the proposed extension or change conforms to the by-law, the second quoted statutory sentence requires for project approval a finding that the extension or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structures. If the first and second sentences are read together, the statute permits extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures.

If we were not to construe G. L. c. 40A, Section 6, in that way, the provision in the first quoted sentence that a zoning ordinance or by-law ‘shall apply . . . to any reconstruction, extension or structural change of [a protected nonconforming structure]’ would be meaningless surplusage.” Rockwood v. The Snow Inn Corporation, 409 Mass. at 363, 364. (emphasis added)

The Rockwood Court delineated the rule under Section 6 that, absent a variance, any change, reconstruction, or alteration to an existing nonconforming structure may be allowed when a) the proposed reconstruction, extensions or structural change is in compliance with the bylaw; and b) the extensions or changes are found not to be substantially more detrimental to the neighborhood than the existing nonconforming structure.

In Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422 (1996), the Appeals Court applied the Rockwood rule to the extension of a nonconforming use. [Note 29] At issue in Cox was whether the Town of Carver Board of Appeals had the authority to approve the extension of a nonconforming use onto a new, undersized tract of land. The defendant had been granted a special permit to expand an existing nonconforming mobile home park by constructing eight additional mobile homes on a 2.53 acre lot across the street from the existing mobile home park. The bylaw required 100 acres for such a mobile home park. The Court determined that the Board had exceeded its authority in approving the special permit. In so doing, the Court, relied upon the first two sentences of G.L. c. 40A §6, reasoning that the Rockwood rule applied to nonconforming uses, as well as to structures. The Cox Court reasoned as follows:

In Rockwood v. Snow Inn Corp., 409 Mass. 361 , 363-365 (1991), the Supreme Judicial Court resolved the apparent ambiguity created by the two sentences by ruling that the first and second sentences when read together permit extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures. Id. at 364. We see no reason why the same test is not equally applicable to any change or substantial extension of a nonconforming use. As the Supreme Judicial Court pointed out in the Rockwood case, to construe G. L. c. 40A, s. 6, as [defendant] contends, would render the first quoted sentence that a zoning by-law "shall apply to any change or substantial extension of . . . [a nonconforming] use" meaningless and surplusage. Accordingly, the judge was correct in ruling that the board exceeded its authority in granting a special permit because, absent a variance, [defendant’s] use of this land for a mobile home park did not meet the 100-acre area requirement for a mobile home park under the Carver zoning bylaw. A finding that the extension of the nonconforming use would not be substantially more detrimental to the neighborhood is simply not enough.” 42 Mass. App. Ct. at 425, 426. (emphasis added).

As discussed supra, the Board in the instant matter granted no variance, but rather approved a special permit authorizing a reconstruction, i.e. the demolition of the existing structure and the construction of a new dimensionally nonconforming structure, located, elsewhere on the lot, and encompassing a new nonconforming use, a convenience store. [Note 30]

It is clear that the structure, as proposed, would fail to comport with multiple substantive dimensional requirements. At 59.1% coverage, the building would exceed the maximum lot coverage. The new gasoline pump canopy would be only 27.5 feet from Orleans Road whereas a 50 foot setback is required. At three feet, portions of the parking area would fail to comport with the 20 foot setback requirement, from the nearest abutter. The green area constitutes 40.9%, while a minimum of 50% is mandated. The lot itself is undersized, containing 19,633 square feet. It is clear that “the erection of any new building requires conformity with current zoning regulations.” G.L. c. 40A §6, Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 604 (2011).

The defendants urge upon this court a different interpretation of the law. They assert that the Bylaw is “permissive in spirit,” more liberal than Section 6, thereby authorizing a change in a nonconforming use and or structure upon a finding by the Board [Note 31] that any change will not be substantially more detrimental to the neighborhood than the existing nonconformity. The individual defendants rely, at least in part, upon Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725 (2005). Titcomb concerned a change of a nonconforming use from “butcher shop and grocery store offering baked goods and barbequed chickens prepared on the premises to a convenient store with a “Dunkin’ Donuts” takeout operation.” The court, in Titcomb observed that “[n]othing was proposed that would change the footprint of the store, and in most material respects, the plan complied with setback and sideline dimensional requirements….” [Note 32] The Court took note of the Rockwood and Cox cases as follows:

In Rockwood… the …Court resolved the apparent ambiguity created by the [first] two sentences [of G.L. c. 40a, s. 6] by ruling that the first and second sentences when read together permit extensions or changes to nonconforming structures if (1) the extension or changes themselves comply with the ordinance or by-law and (2) the structures as extended or changed are found not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures. Id. at 364. In Cox… relying on Rockwood, supra, we reversed the grant of a special permit… that would have permitted the extension of a mobile home park because that extension did not comply with the 100 acre area requirement under the town’s zoning by-law.” [Note 33]

Applying the rule enunciated in Rockwood and restated in Cox and Titcomb to the case at bar, it is clear that, absent a variance, a preexisting nonconforming commercial structure, may be reconstructed, (extended or changed), only if it is first found to be in compliance with the Bylaw. Thereafter, if the Bylaw so permits, the local board may grant a special permit upon a finding that the proposed structural change is not substantially more detrimental to the neighborhood than existing nonconformities. See also, in this regard, the case of Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011) where the Court observed as follows:

The statutory authority conferred upon the town under c. 40A provides it with the power to…determine when an alteration has—or has not—occurred. However, the statute does not permit the town to ignore the legislative provision requiring conformity with current zoning requirements…. (emphasis added)

Further, the Schiffenhaus Court expressed the view that the “ultimate objectives of zoning would be furthered by the eventual elimination of non-conformities in most cases.” [Note 34]

However, in the case at bar, the grant of a special permit approving a reconstructed, nonconforming structure that does not reside on the original footprint but resides elsewhere on the lot, clearly runs afoul of the holding in Rockwood. The Board’s approach would serve to render the first sentence of Section 6 “meaningless surplusage.” Rockwood v. The Snow Inn, 409 Mass. at 365. “It is axiomatic that ‘[a] bylaw cannot conflict with the statute’”. Schiffenhaus v. Kline, 79 Mass. App. Ct. at 605, quoting Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657 , 600 (1956). Therefore, this court may not construe the Chatham Bylaw in the manner urged upon it by the defendants.

The defendants assert that Section V.B of the Chatham Bylaw is dissimilar from the Harwich bylaw at issue in Rockwood. Consequently, they argue that the Chatham Bylaw should not be construed in accordance with Rockwood. In Rockwood, the relevant bylaw provided as follows:

Pre-existing non-conforming structures or uses may be changed, extended or altered on special permit from the Board of Appeals, provided that no such change, extension or alteration shall be permitted unless there is a finding by the Board that such change, extension or alteration shall not be substantially more detrimental to the neighborhood than the existing non-conforming use.

In the instant matter, the Chatham Bylaw provides in pertinent part, as follows:

Other pre-existing nonconforming structures or uses may be extended, altered or changed in use by Special Permit, provided that the Zoning Board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use. [Note 35]

These bylaws are similar in substantial respects. For example, both track the second sentence of G.L. c. 40A §6. [Note 36] The fact that the Chatham Bylaw contains mandatory elements for the Board to consider, is irrelevant to this analysis. Those considerations relate solely to the Board’s finding that the property at issue is “not substantially more detrimental.” In the matter at hand, given the standard enunciated in Rockwood, our analysis is at an end before there is a need to address the application of these elements.

Conclusion

Inasmuch as the Board’s decision contravenes the provisions of G.L. c. 40A, s. 6 as construed by the Appellate Courts of the Commonwealth, this court concludes that the Board’s decision is legally untenable and must be annulled. This court is of the opinion that a variance, rather than a special permit, would be required in order to authorize the reconstruction of the commercial building at issue. [Note 37]

Accordingly, to the extent that the special permit as granted by the Board authorized a reconstruction or replacement of a nonconforming building with another significantly nonconforming structure elsewhere on the Locus, in it is hereby

ORDERED that the plaintiffs’ Motion for Summary Judgment is hereby ALLOWED. It is further

ORDERED that the decision of the Chatham Zoning Board of Appeals is hereby ANNULLED, thereby rescinding the special permit.

Judgment to issue accordingly.

SO ORDERED.