JANE WELLS, as she is Executrix of the ESTATE OF FRANCES WELLS and JOSEPH SAVINO vs. FRANK BALDASSINI, WILLIAM CULLITY, SHARON McNAMARA, as they are members and constitute the ZONING BOARD OF APPEALS FOR THE TOWN OF PEMBROKE

Plaintiffs filed their unverified Complaint on May 3, 2011, pursuant to the provisions of G. L. c. 40A, § 17, appealing a decision of Defendant Pembroke Zoning Board of Appeals which denied Plaintiffs’ application for a special permit/variance. A case management conference was held on June 22, 2011.

Defendant filed its Motion for Summary Judgment on January 9, 2012, together with supporting memorandum, Statement of Material Facts, and Affidavits of George Verry (Pembroke Building Inspector) and Tracy Grady (Assistant Building Inspector). Plaintiffs filed their Opposition to the Motion for Summary Judgment on February 9, 2012, together with supporting memorandum, Statement of Additional Material Facts, and Affidavits of Joseph Savino (Plaintiff), Frances Wells, and Daniel M. Smith (professional engineer). [Note 1] On February 23, 2012, Defendant filed its Reply to the Opposition, together with Additional Statement of Material Facts, and Affidavit of Pembroke Fire Chief James Neenan. A hearing was held on the motion on April 9, 2012, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976); Opara v. Massachusetts Mutual Life Insurance Co., 441 Mass. 539 , 544 (2004). The moving party bears the burden of demonstrating the absence of a genuinely contested issue of material fact. Ng Brothers Construction, Inc. v. Cranney, 436 Mass. 638 , 644 (2002). In reviewing a motion for summary judgment, the court views the evidence in a light that is most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). Further, in determining the legal validity of the decision of the ZBA this court is required to use a de novo approach. This court is not limited to evidence that was presented before the ZBA in evaluating this matter. Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 426 (1984).

I find that the following material facts are not in dispute:

1. Frances Wells (“Frances”) received property located at 166 School Street, Pembroke, MA (“Locus”) by deed dated October 3, 1949. [Note 2] Locus is zoned Residential A pursuant to the Town of Pembroke Zoning Bylaws (the “Bylaws”). Locus has a polygon shape and contains approximately 2,850 square feet of lot area and sixty feet of frontage, and housed a two-story single-family residence (“Dwelling 1”) built in approximately 1930 before the Bylaws were enacted. [Note 3] Locus abuts Little Sandy Bottom Pond.

2. Yard setbacks for Locus are stated as “nonconforming” in the record, without citing of specific dimensions. [Note 4]

3. In a Residential A zone, the Bylaws currently require 40,000 square feet minimum lot size and 150 feet of frontage. [Note 5]

4. The residence on Locus was damaged in a fire on April 9, 1976. The Pembroke Fire Department Report states that there was a “small fire in celler by celler door,” and listed damage as “door frame, floor joyst [sic], sill . . . Slight smoke damage in upstairs of house.”

5. On April 21, 1977, Joseph Costa (“Costa”), a purported buyer of Locus under a purchase and sale agreement, filed an application for a building permit to remodel the existing structure on Locus. [Note 6] The building permit was granted on April 22, 1977. Shortly thereafter, the residence was demolished, leaving only the foundation, original steps and walks, lally columns, stone retaining walls and driveway. No dwelling was ever rebuilt.

6. The Building Inspector sent letters to Frances dated August 22, 1978 and September 19, 1978, advising her that the remains of the “partially built structure” and “hazardous structure” on Locus were a “safety hazard.” Frances replied by letter dated December 13, 1978, seeking additional information relative to the demolition of Dwelling 1. Such additional information was sent to her by letter dated December 20, 1978.

7. In 1978 Frances Wells obtained the legal services of Robert E. Klein (“Klein”) to look into the matter of the demolition. The record does not show that any action was taken beyond obtaining letters and documents from the City of Pembroke.

8. In 2006 and 2007 Joseph Savino, grandson of Frances, hired professional engineer to create plans that included a new septic system design that he wanted to use to obtain permits to rebuild.

9. On January 28, 2011, Plaintiffs filed an application with Defendant for a special permit/variance for the reconstruction of a single-family residence on Locus (“Dwelling 2") in the same footprint of the existing foundation. [Note 7] [Note 8]

10. On April 14, 2011, Defendant unanimously denied Plaintiffs’ application (the “ZBA Decision”). The ZBA Decision stated:

Since the home was not repaired or rebuilt within two years, the Board found that the Applicants were barred from rebuilding the home, and that this section of the By-Law applied in all cases, not just in the event of a total destruction of a structure. The Board further decided that the reconstruction of a home on a lot of this size (2,850 square feet) where little or no parking existed would be substantially more detrimental to the neighborhood. Further, no valid grounds existed to grant a Variance since that there were no circumstances relating to soil conditions, shape or topography specifically affecting this lot that would justify the granting of a Variance.

11. Approximately 96% of Locus is located within a “locally jurisdictional[sic]” wetlands buffer zone. The topography of Locus slopes steeply at the northern portion of the property (from elevation 90 to elevation 82 in less than ten feet). [Note 9]

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Plaintiffs challenge the ZBA Decision as legally untenable, arbitrary, capricious, and beyond the scope of authority of the ZBA. Defendant alleges that the ZBA Decision was properly issued. Since the ZBA Decision deals with both a special permit and a variance, I shall deal with each issue separately.

Special Permit

A. Grandfather Status

G. L. c. 40A, § 6 states:

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 reconstruction, extension or structural change of such structure . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. 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 . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. [Note 10]

Both parties agree that Dwelling 1 was built prior to zoning on a nonconforming lot and therefore was a pre-existing nonconforming structure. [Note 11] Having been built circa 1930, Dwelling 1 existed before the Bylaws were enacted and therefore the Bylaws would not have applied to Dwelling 1. If Dwelling 1 still existed today, it would be grandfathered. However, Dwelling 1 was partially, if not fully, demolished, requiring Plaintiffs to rebuild. Whether Plaintiffs should be allowed to rebuild turns upon the following analysis.

The central issue in the case at bar is whether Dwelling 1 kept its nonconforming status as a structure despite the fire and demolition and, if not, whether the two year limitation associated with the Casualty Clause of the Bylaws, or any time period, should apply for reconstruction.

The first step is to determine whether or not the remnants of Dwelling 1 can be considered a “structure” and thus be grandfathered under G. L. c. 40A, § 6. If Dwelling 1 clearly stood in some legally recognizable form as a structure it would be grandfathered and could be rebuilt on the existing footprint. However, Dwelling 1 is no longer standing. Plaintiffs argue that remnants such as the foundation and related steps, walks, lally columns, stone retaining walls and driveway constitute a structure and as a result, a structure remains on Locus. Defendant argues that Dwelling 1 was the structure on Locus, and that the foundation does not suffice as a structure.

The Bylaws define “structure” as “a manmade assemblage of materials in, on or above ground and enclosing or consuming space, except a fence of six feet or less in height.” Black’s Law Dictionary defines a structure as “[any] construction, production, or piece of work artificially built up or composed of parts purposefully joined together,” Black’s Law Dictionary 1436 (7th ed. 1999). A look at the Black’s Law Dictionary definition and the Bylaws confirms Defendant’s analysis. While a structure requires a foundation in order to be attached to the land, a foundation alone cannot suffice as a structure. Furthermore, the state statute and the Bylaws refer to the “alteration, reconstruction, extension or structural change to a single or two-family residential structure,” thereby reinforcing the notion that a foundation is not a structure for the intent and purpose of G. L. c. 40A, § 6. Moreover, as Defendant points out, Plaintiffs’ literal interpretation of the definition would allow any ruin to automatically fall under the special permit provisions of G. L. c. 40A, § 6. [Note 12] As a result, I find that the foundation is not a structure and therefore is not grandfathered pursuant to the provisions of G. L. c. 40A, § 6.

B. Time Frame to Rebuild

Since Dwelling 1 was not grandfathered as a structure, we must determine whether Dwelling 1 can be rebuilt and if a two-year time frame applies.

Section V.5.C of the Bylaws (the “Casualty Clause”), relative to structures, states: Any nonconforming building or structure which has been damaged by fire or other casualty may be repaired and rebuilt on its original site for a period of two years from the time such damage is sustained. Any increase in the size of the building or any change in the location on the same lot or restoration must be in conformity with then current height, area, setback and sideline regulations of the district in which the property is located. [Note 13]

Both parties agree that Dwelling 1 was not rebuilt within two years of the date of the fire or the demolition. Defendant contends that the two year time frame of the Casualty Clause applies because Dwelling 1 was damaged by a fire and as a result cannot be rebuilt because it lost its status as a pre-existing nonconforming structure. Plaintiffs argue that the damage to Dwelling 1 was not caused by a “fire or other casualty,” but that the loss was the result of voluntary demolition caused by fraud (i.e. Costa had no right to tear it down) and therefore the two year limitation does not apply and the foundation still has its grandfathered status as a nonconforming structure.

Plaintiffs argue that the damage to Dwelling 1 was not caused by the fire in 1976, but by the demolition of Dwelling 1 by Costa in 1977. The fire, they argue, was only a minor one and did not require the demolition of Dwelling 1. As a result, they contend that the Casualty Clause and the two year limitation on rebuilding do not apply. Based on the facts of this case, it appears that Dwelling 1 has been abandoned and unused since 1977 and the damage to Dwelling 1 was the demolition and not the fire. Voluntary demolition of a building does not appear to fall under the “other casualty” language of the Casualty Clause. When a term is not defined in a zoning ordinance it is construed in accordance “with common usage and understanding.” Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531 , 534 (2006). While “casualty” does not appear to be defined in the Bylaws, Black’s Law Dictionary defines “casualty” as:

A serious or fatal accident . . . A disastrous occurrence due to sudden, unexpected or unusual cause. Accident; misfortune or mishap; that which comes by chance or without design. A loss from such an event or cause; as by fire, shipwreck, lightning, etc.

This definition seems to be in accord with a common, modern understanding of the term. It follows that a voluntary demolition of Dwelling 1 is not a casualty. [Note 14] Consequently, I find that the Casualty Clause does not apply to the reconstruction of Dwelling 1.

In this context, however, abandonment is an important issue that must be addressed. Defendant argues that Dwelling 1 was abandoned, and as a result lost its grandfather status. We must determine whether the Abandonment Clause (as defined hereinafter) of the Bylaws would apply. Section V.5.D of the Bylaws (the “Abandonment Clause”) states, “Any nonconforming use which is discontinued for a period of two years shall be considered to have been abandoned and shall not thereafter be resumed.” The Abandonment Clause speaks directly to nonconforming uses but not to nonconforming structures. Furthermore, case law indicates that a nonconforming structure is distinct from a nonconforming use and therefore abandonment of use clauses should not apply to nonconforming structures unless they are expressly covered. The Massachusetts Appeals Court stated that, “since there is a distinction [...] among nonconforming lots, uses, and structures, we are not persuaded that the two-year abandonment of use provision may be directly applied to the failure to rebuild on an undersized lot.” Dial Away Co., Inc. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 , 171 (1996). [Note 15] Locus is in an area that is zoned for residential purposes and Dwelling 1 was used as a residence. As in Dial Away, the Bylaws distinguish structures from uses so we would be remiss to apply the Abandonment Clause to nonconforming structures when it specifically mentions its application only to nonconforming uses. This interpretation is consistent with the Bylaws themselves. While Dwelling 1 was a nonconforming structure, the fact that it was built upon a nonconforming lot does not make its construction a nonconforming use. As a result, I find that the Abandonment Clause of the Bylaws does not apply to Dwelling 1.

Even though the Casualty Clause and the Abandonment Clause do not apply to a rebuilding of Dwelling 1, an applicant cannot rebuild a non-conforming structure for an extended period of time. At some point in time, the nonconforming structure is deemed to be abandoned. Abandonment is not only defined by statute. “To constitute an abandonment [other than where defined by ordinance], the discontinuance of a nonconforming use [structure or lot] must result from ‘the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment. The voluntary demolition of a building constitutes abandonment.” Dial Away, 41 Mass. App. Ct. at 172. The record indicates that Costa voluntarily demolished Dwelling 1 in 1977 and that Frances first became aware of the demolition of Dwelling 1 in 1977. In 1978 she obtained the legal services of Klein to investigate the matter of the demolition. Klein obtained applications submitted by Costa and letters sent to Frances by the City of Pembroke. The record does not indicate that any further action was taken at that time. Furthermore, the record also demonstrates that a significant period of inactivity lapsed between the demolition and the action taken by Joseph Savino in 2006. In Dial Away, the court found that “the lapse of time following the demolition – twenty-three years – is so significant that abandonment exists as a matter of law. Here, the ‘evidence of things done or not done [...] carries the implication of abandonment [and] [s]upports a finding of intent, whatever the avowed state of mind of the owner...” Id. at 172. The only verifiable action Plaintiffs took on this matter occurred when Joseph Savino hired a professional engineer in 2006 and 2007, nearly thirty years after the demolition of Dwelling 1. [Note 16] As in Dial Away, given a lack of evidence to provide a legally tenable basis to hold otherwise, I find that thirty years is such a significant period of inactivity that abandonment must exist. Consequently, I find that a special permit is not warranted relative to the reconstruction of Dwelling 1. [Note 17]

Finally, the ZBA in special permit cases has significant discretion. It is an established principle that the decision of whether to grant a special permit is well within the bounds of the authority and discretion of the ZBA. Case law from the Massachusetts Supreme Judicial Court (the “SJC”) affirms such a notion. The SJC has stated, “[n]either the Zoning Enabling Act, nor the zoning by-law of [the town] gives Gulf an absolute right to a special permit. The board is not compelled to grant a permit. It has a discretionary power. The decision of the board can be disturbed only if it is based on ‘a legally untenable ground’ or is ‘unreasonable, whimsical, capricious, or arbitrary.’ [...] To hold that a decision of the board denying a permit is arbitrary and capricious per se whenever the board, on the facts found by the trial judge, could have granted a permit, would eliminate the board’s intended discretion.” Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969). [Note 18] Following the reasoning provided by the SJC, the ZBA Decision can only be overturned if it had been founded upon a legally untenable basis. There is nothing in the record to indicate that such has occurred.

As a result I find that the ZBA Decision with respect to the special permit is not arbitrary, capricious, and unreasonable and not beyond the scope of authority of the ZBA.

Variance.

G. L. c. 40A, § 10, provides that a variance can issue only if:

The permit granting authority specifically finds that [1] owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, [2] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that [3] desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Each of the required elements in G. L. c. 40A § 10 is conjunctive and each must be fulfilled for a variance to be granted. Perez v. Bd. of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002). Failure to establish each element is fatal. Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 115 (1985). Plaintiffs argue that Locus has a unique shape and topography; Plaintiffs assert that the shape of Locus is a polygon, and that the topography is unique because the lot slopes dramatically at the northerly end next to Little Sandy Bottom Pond. Plaintiffs contend that this is evidenced by the fact that Dwelling 1 had a foundation that was built into the slope. Locus is also impacted by the fact that its size is far below the minimum requirement and that 96% of the lot is located in a buffer zone resource area. [Note 19] Plaintiffs also point out that the fraud of Costa dramatically impacted their hardship, and that based on the size, shape, and topography of the lot, it is not “economically feasible or likely that the Locus would be developed in the future for a use permitted by the zoning ordinance or bylaw.” Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 , 402 (1980). Plaintiffs also claim that the hardship is not self-imposed, as Costa perpetrated a fraud on them. A hardship exists when an applicant can demonstrate that due to the shape of a lot, alone or in combination with the other characteristics enumerated in G. L. c. 40A § 10, development of the property in a manner consistent with the ordinance is unfeasible. Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. at 118. This court acknowledges that Plaintiffs have experienced a hardship that will continue with a literal enforcement of the Bylaws. However, the first element pertaining to shape, topography, or soil conditions must be satisfied before we can consider whether a hardship exists. Plaintiffs argue that the size and topography unique to Locus prevent Plaintiffs from building a structure that conforms to the Bylaws, a literal enforcement of which would impose a substantial hardship. However, the significant slope on the northerly edge of Locus did not seem to pose an issue for the prior nonconforming home as the foundation was built into the slope to address it. Also, while the small size of the lot makes it seem unlikely that Locus will ever be developed in a manner that conforms to the Bylaws, size is not a factor that is considered when determining if a variance is warranted and topography can be dismissed as a non-issue. Size should not be confused with shape. [Note 20] Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass. App. Ct. 966 , 967 (1987). Plaintiffs have called to the court’s attention the fact that a taking has caused a portion of the existing foundation to protrude into the street implying that a variance is required. However, this would seem to create a new nonconformity. [Note 21] [Note 22] Furthermore, we must keep in mind that the requirements for variances are to be construed narrowly. According to the Supreme Judicial Court variances are not permitted as a matter of right and should be granted sparingly. Lussier, 447 Mass. at 534. Furthermore, the individual seeking the variance bears the burden of demonstrating that one should be granted. Id. Using these narrow guidelines, it seems that a variance is not warranted. Plaintiffs cite case law in order to bolster their argument for a variance. However, each of the cases cited by Plaintiffs involved clear issues concerning at least one of the criteria enumerated in G. L. c. 40A § 10 and substantial hardships that stemmed from those conditions. Plaintiffs’ only valid argument on this issue appear to be that the size of the lot is creating a substantial hardship, but size is not one of the statutory elements. Furthermore, there does not seem to be an ascertainable nexus between the shape, topography, or soil conditions, and Plaintiffs’ hardship that justifies relief by a variance. Hoffman v. Cambridge Zoning Bd. of Appeals, 04 Misc. 303805 (pending publication); See also McGee v. Bd. of Appeal of Boston, 62 Mass. App. Ct. 930 , 931 (2004) (Finding that variance is not warranted because undersized lot is not valid basis). Consequently, I find that a variance is not warranted because the statutory requirements have not been satisfied. As a result, I find that the ZBA Decision with respect to the variance is not arbitrary, capricious, or unreasonable or beyond the scope of authority of the ZBA.

As a result of the foregoing, I ALLOW Defendant’s Motion for Summary Judgment.

Judgment to issue accordingly.