This is an appeal pursuant to G. L. c. 40A, § 17, and G. L. c. 231A, through which Plaintiffs Suzanne Palitz and Peter W. Fink, Trustees of the 87 Main Street Nominee Trust, challenge a decision of the Tisbury Zoning Board of Appeals (ZBA), whose members are Defendants. The ZBA denied Plaintiffs request to reconstruct and expand their single-family residence, located at 87 Main Street in Tisbury (Palitz Lot or Locus), and upheld the refusal of the Zoning Enforcement Officer (ZEO) to issue a building permit unless Plaintiffs secured relief in the form of a variance or amended variance from the ZBA.
In early 2012, Plaintiffs sought guidance from the ZEO as to whether they could lawfully reconstruct their residence within its existing footprint, but at an increased height. [Note 1] The existing house was constructed in approximately 1803. Tisbury adopted its first local zoning bylaws in 1959. In response to Plaintiffs, the ZEO indicated that relief in the form of an amendment to a variance issued to a prior owner in 1995 (1995 Variance) was necessary before he could issue a building permit due to zoning nonconformities at Locus. On April 10, 2012, Plaintiffs requested a reconsideration of that determination. The ZEO informed Plaintiffs via telephone he would not issue a building permit without the ZBAs approval, specifically in the form of an amended variance. On July 30, 2012, Plaintiffs applied to the ZBA for an amendment to the 1995 Variance, which was denied on September 19, 2012.
In Count I of the Complaint, filed October 10, 2012, Plaintiffs allege that the ZBA erred in finding that the proposed reconstruction would involve substantial detriment to the public good and in finding the existing structure was not a pre-existing lawful nonconforming structure. Plaintiffs also argue that the ZBA erred in concluding that language in the 1995 Variance constituted a condition prohibiting any future alteration in the structures appearance. In Count II, Plaintiffs seek a declaratory judgment that the 1995 Variance permits a reconstruction of the existing structure that complies with the height requirements of the town Bylaws and that Plaintiffs may proceed with such reconstruction. Defendants filed an Answer on January 4, 2013, asserting several affirmative defenses. [Note 2]
Plaintiffs filed a Motion for Summary Judgment on February 2, 2013. Defendants filed a written opposition on April 5, 2013, and also requested entry of judgment in their favor as the non-moving party. [Note 3] Plaintiffs filed a reply on April 12, 2013, and a hearing was held on April 23, 2013, at which all parties were heard. For the reasons discussed below, Plaintiffs Motion for Summary Judgment is DENIED and judgment will enter in favor of Defendants.
The summary judgment record includes 25 exhibits in addition to the parties briefs and submissions filed in compliance with Land Court Rule 4. The following material facts are not in dispute:
1. Plaintiffs Suzanne Palitz (Palitz) and Peter W. Fink, as Trustees of the 87 Main Street Nominee Trust, own a parcel of land in Tisbury known as and numbered 87 Main Street, f/k/a/ 99 Main Street, which is improved by a single-family residence (Palitz House).
2. The Palitz House was built in approximately 1803.
3. The house on the adjacent property at 89 Main Street (f/k/a 101 Main Street) was built in approximately 1830.
4. The Town of Tisbury first adopted local zoning bylaws in 1959, and the subdivision control law became effective in Tisbury on or after March 15, 1974.
5. In 1923, the Palitz Lot came into common ownership with two other lots (the first known as and numbered 89 Main Street, and the second known as and numbered 83 Main Street f/k/a 97 Main Street, not here in issue.
6. The three properties remained in common ownership through 1994. In 1994, Michael T. Putziger (Putziger), as trustee of the MVY Realty Trust, the then-owner of the three properties, sought to use the exception for pre-existing lots and structures set out in Section 81L of the subdivision control law to divide his land into three lots, with an existing residence on each.
7. G. L. c. 41, § 81L states that . . . the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision.
8. On May 4, 1994, the Tisbury Planning Board (Planning Board) endorsed the Putziger Plan as not requiring approval under the subdivision control law (ANR Endorseement), but stated that [e]ndorsement is without regard to buildability or permitted occupancy. As shown on the plan dated April 13, 1994, entitled: Plan of Land in Tisbury, Mass. Prepared For MVY Realty Trust Michael T. Putziger, Trustee (Putziger Plan), the land was divided into the three lots, each with a residence thereon.
9. The Putziger Plan was recorded as Tisbury Case File No. 471 with the Dukes County Registry of Deeds on May 5, 1994.
10. As created by the Putziger Plan, the Palitz Lot and 89 Main Street each had less area than the Tisbury Zoning Bylaws then required for single-family residential lots in the zoning district where they are located. Also, the Palitz House and the house at 89 Main Street were nonconforming with respect to side and front yard requirements under the Zoning Bylaws.
11. Simultaneously with receiving the Planning Boards ANR Endorsement, Putziger conveyed one of the new lots, Lot 4, to a third party.
12. After he had conveyed Lot 4, Putziger sought variances from the ZBA for the remaining two new lots, reflecting the undersized lot areas and yards that had been created by the Putziger Plan.
13. The ZBA granted the requested variances in a decision dated January 26, 1995, recorded with the Dukes County Registry of Deeds in Book 664, at Page 272, and filed for registration with the Dukes County Land Court Registry District as Document No. 37086 on November 7, 1995 (1995 Variance). [Note 4] Plaintiffs have provided no evidence suggesting that the 1995 Variance was ever challenged or appealed.
14. Included within the Determination section of the 1995 Variance is the statement:
[t]here will be no change in the appearance or use of the buildings on the two properties and their relationship to adjoining properties. Therefore, desirable relief may be granted without either a substantial detriment to the public good or substantial derogation from the intent or purpose of this by-law.
15. Putziger conveyed the Palitz Lot to Alfred H. Williams by deed dated December 12, 1995, recorded in Book 666, at Page 543, and filed for registration as Document No. 37278.
16. Following mesne conveyances, Plaintiffs acquired the Palitz Lot by deed dated January 22, 2007, recorded in Book 1109, at Page 61, and filed as Document No. 66194.
17. By Deed dated March 9, 1995, recorded in Book 00651, at Page 200, Putziger conveyed the 89 Main Street property to Carrol L. Buress (Buress).
18. On or about March 22, 1995, the Tisbury Building Inspector issued Building Permit No. 44407 to Buress for alterations to the single-family residence at 89 Main Street (a/k/a 101 Main Street), which were subsequently made. Buress did not obtain a new variance decision or an amendment to the 1995 Variance allowing this work.
19. On or about January 28, 1999, the Tisbury Building Inspector issued Building Permit No. 5404 to Carroll Buress for alterations to the garage at 89 Main Street. Buress did not obtain a new variance or an amended variance for work, and the proposed alteration work was never done.
20. By deed dated March 13, 2006, recorded in Book 1077, at Page 215, Buress conveyed the 89 Main Street property to the current owners, Peter Tollman and Linda Kaplan.
21. In the spring of 2012, Plaintiffs sought a building permit to reconstruct the Palitz House. [Note 5] The resulting structure would be approximately 9.8 feet taller than the current structure and the resulting structures height, as measured under the Zoning Bylaws, would be approximately 31 feet, less than the 35 foot maximum allowed. The resulting residence would maintain the footprint of the Palitz House.
22. The ZEO refused to issue a building permit unless the ZBA amended the 1995 Variance.
23. On July 30, 2012, Plaintiffs applied to the ZBA for a variance from the dimensional requirements in a residential district and to amend the 1995 Variance.
24. On September 19, 2012, the ZBA denied the Plaintiffs variance application in Case No. 2127 by a five to zero vote (2012 Decision). The ZBA determined that because the abutter to the west will have her view eliminated and have a 31 foot high dwelling located four feet from hers . . . there will be a substantial detriment to the public good and, further, that with the added bedroom, full basement and additional third floor, the density of the neighborhood would be negatively impacted.
25. The ZBA also determined that the Plaintiffs could do many of the modifications necessary to the structure without additional variance relief. The 2012 Decision denying Plaintiffs variance request led to the initiation of this action.
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This case is before the court pursuant to Plaintiffs Motion for Summary Judgment. Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, 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. Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). This case is ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law.
G. L. c. 40A, § 17 states: [a]ny person aggrieved by a zoning board of appeals decision may seek judicial review. The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. G. L. c. 40A, § 17. As a party denied relief requested from the ZBA, Plaintiff has standing to appeal the Boards decision.
The court must give a measure of deference to a local boards interpretation of its own zoning bylaws and ordinances. APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000); Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228 , 231 (1992). This deference is due to a local zoning boards special and unique knowledge of the history and purpose of its towns bylaws. Wendys Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999)). The appropriate deference to the board's construction is not, however, without limit. See, e.g., Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). An incorrect interpretation of a zoning provision by a local board or building inspector is not entitled to deference. Shirley Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012). The reviewing court focuses solely on the validity but not the wisdom of the boards action. Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A boards decision will not be overturned unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)).
G. L. c. 41, § 81P states that an owner of land may secure from a planning board an endorsement that approval under the subdivision control law [is] not required. To determine what qualifies for an Approval Not Required" (ANR) Plan, one must look to G. L. c. 41, § 81L. This section exempts from the subdivision control law, among other things, the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing. Under this existing building exemption, a plan may be endorsed by the local planning board as an ANR plan if it depicts the division of property into two or more parcels, with each parcel containing a structure which predates the adoption of subdivision control in that town. G. L. c. 41, § 81L.
In the instant case, the owner of three adjoining properties sought to use this exemption to divide his land into three lots, with each retaining a single-family residence. Two of the resulting lots did not comply with the Zoning Bylaws, specifically the setback and lot minimum area requirements. To address this problem, the owner secured variances from the ZBA in 1995 for the undersized lots created by the plan. After several intervening conveyances, Plaintiffs acquired one of these undersized lots in 2007, and sought to reconstruct the existing house, adding a full basement and increasing the total height while remaining within the footprint of the existing house.
At issue now is the appropriate mechanism, if any exists, by which Plaintiffs must secure authorization to tear down and reconstruct their residence. The facts presented raise the question- are lots created under G. L. c. 41, § 81L, containing existing structures that predate local adoption of subdivision control, automatically granted grandfathered status under G. L. c. 40A, § 6, where, as here, they fail to conform to zoning regulations? [Note 6] Plaintiffs allege that, because the Palitz Lot was created pursuant to G. L. c. 41, § 81L (Section 81L), and does not conform to the Bylaws, it should be treated as a pre-existing lawful, nonconforming lot. As such, the 1995 Variance should not have been required in the first place, and an amendment to that variance is not necessary. Instead, Plaintiffs argue the proper course is to pursue a finding under G. L. c. 40A, § 6, that their proposed reconstruction would not be substantially more detrimental to the neighborhood than the Palitz House.
Defendants counter that lots created pursuant to Section 81L are not automatically pre-existing lawful nonconforming lots, and that simply because lots may be divided under this exemption does not mean they will be buildable under local zoning or, if already built upon, that structural changes will be allowed. Defendants argue that the Palitz Lot does not enjoy any grandfather protection under Section 6, and therefore requires an amended variance to permit any changes to the residence located there. No issues have been raised regarding the validity of the ANR Plan endorsement by the Planning Board or challenging whether the lots were properly divided under Sections 81L and 81 P. The question remains as to how to categorize those lots once divided. [Note 7]
It is well-settled that an ANR endorsement is not an automatic attestation of compliance with zoning requirements. Cornell v. Bd. of Appeals of Dracut, 453 Mass. 888 , 892 (2009) (citing Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386 , 389 (1993); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 603 (1980)). The scope of a planning boards endorsement under G. L. c. 41, § 81P is limited solely to whether or not a plan shows a subdivision. Smalley, 10 Mass. App. Ct. at 604. Endorsements are only withheld if the plan shows a subdivision; if a plan shows zoning violations, it may still be endorsed. Id.
Plaintiffs argue that, under Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass. App. Ct. 425 , 427 (1987), a property owner seeking subdivision under Section 81L is not required to secure a variance if the newly-created lots would be nonconforming. However, Citgo addresses only the right to an endorsement of an ANR Plan if the new lots are nonconforming with respect to zoning, and does not address how those lots may be altered or improved after the division. Plaintiffs state as much in their brief: [i]n Citgo, the Appeals Court held that the [Planning Board] had no discretion to deny endorsement of a plan that met the requirements under Section 81L, even if the newly created lots would be nonconforming as to frontage. Pl.s Mem. Supp. Mot. Summ. J. (emphasis added). In contrast to Citgo, the prior owner of Plaintiffs property already received an endorsement of his plan; therefore this is not an analogous situation where an endorsement was denied. In fact, the Appeals Court in Citgo notes that simply because a lot may be divided under the Section 81L exception does not mean that resulting lots will be buildable under zoning ordinances or bylaws. Citgo, 24 Mass. App. Ct. at 427; see also Cricones v. Planning Bd. of Dracut, 39 Mass. App. Ct. 264 , 268 (1995); Alley v. Bldg. Inspector of Danvers, 354 Mass. 6 , 7-8 (1968) (stating that an ANR endorsement gives lots no standing under the zoning bylaws).
Case law defining the effect of an ANR endorsement on the resulting lots is less straightforward, with no binding appellate decisions expressly resolving the question presented in this case. Plaintiffs point to Norwell-Arch, LLC v. Opdyke, 12 LCR 208 (May 24, 2004), a Land Court decision stating that a division under Section 81L did not deprive the property owners of the resulting lots of the right to pursue a finding under G. L. c. 40A, § 6, and that a nonconforming structure may be treated as lawfully nonconforming even when the nonconformity was voluntarily created by the division. Norwell-Arch, 12 LCR at 208-09. However, this decision predates several later cases holding that lots created under Section 81L do not benefit from the protections afforded legal nonconforming structures under G. L. c. 40A, § 6. [Note 8] In Branagan v. Zoning Bd. of Falmouth, 75 Mass. App. Ct. 1107 (2009) (unpublished opinion pursuant to Appeals Court Rule 1:28), the Appeals Court stated that while dwellings on a newly created lot may be permitted to remain on new lots that do not meet current dimensional requirements of the zoning by-law, they may only be altered in accordance with the existing applicable statutes and by-law, not as a consequence of retaining a prior status as a preexisting, nonconforming dwelling. Id. at 1107. The Appeals Court reached a similar conclusion (albeit in a different factual context) one year later in Kenner v. Zoning Bd. of Appeals of Chatham, 76 Mass. App. Ct. 1110 (2010) (unpublished opinion pursuant to Appeals Court Rule 1:28), revd on other grounds, 459 Mass. 115 (2011). [Note 9] Kenner held that the division of a lot created pursuant to Sections 81L and 81P that created new nonconformities would result in a zoning violation and the loss of any protection as a pre-existing nonconforming structure. Id. at 1110. Both cases emphasize that approval to divide property in accordance with Section 81L does not exempt the subsequently created lots from zoning requirements.
Despite the nonbinding effect of Kenner and Branagan, lower courts have applied and cited their reasoning. See Hawthaway-Audet, et al. v. Freetown Zoning Bd. of Appeals, Bristol Super. Ct., CA No. 2012-00088 (Nov. 5, 2012) (holding that the conveyance of a nonconforming lot, previously held in common ownership with a larger, conforming parcel under the doctrine of merger for zoning purposes, into separate ownership required a variance); Perotti-Cyrus v. Bd. of Appeals of Sandwich, Barnstable Super. Ct., CA No. 04-00767 (July 24, 2009) (stating that the act of conveying noncompliant lots created pursuant to Sections 81L and 81P trigger violations requiring zoning relief). Even if the original lot was legally nonconforming, the lots created on the Putziger Plan would not retain the grandfather protection of the original lot following the division. See e.g. Branagan, 75Mass. App. Ct. at 1107. This result would be consistent with the line of cases under G. L. c. 40A, § 6, which holds that a lawful nonconforming lot loses its protection if altered. See Derby Refining Co. v. City of Chelsea, 407 Mass. 703 , 714 (1990) (citations omitted) (stating that a party may alter a nonconforming use if those changes are ordinarily and reasonably adapted to the original use, but alterations falling outside that scope will cause the loss of Section 6 protection); Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 , 715 (2013) (stating that although Section 6 protects permitted nonconforming uses, it also allows for the loss of that protection if the use is changed or extended).
As previously noted, the summary judgment record for this case fails to establish whether the original undivided lot constituted a lawful, pre-existing nonconforming lot in 1994. The record only demonstrates that the May 4, 1994 endorsement by the Planning Board of the Putziger Plan created three new lots, at least two of which were undersized and in violation of the towns area requirements and the buildings thereon were in violation of the setback requirements.
Plaintiffs urge the court to annul the ZBAs decision and remand the case for further consideration under G. L. c. 40A, § 6, with the directive that, to the extent a lot enjoys protection under Section 6 prior to a division under Sections 81L and 81P, such division would not change its status. However, an endorsement to divide property under Section 81L does not exempt the new lots from zoning requirements. See Kenner, 76 Mass. App. Ct. at 1110; Branagan, 75 Mass. App. Ct. at 1107. Plaintiffs allege this reasoning renders Section 81L superfluous and ineffective. This court disagrees, as the creation of separate improved lots through the endorsement of an ANR plan may still be useful. Smalley, 10 Mass. App. Ct. at 604. [Note 10]
Because this court finds that the Palitz Lot created on the Putziger Plan never qualified as lawful pre-existing nonconforming lot at the time of its creation, or as a result of the granting of the 1995 Variance, remand to the ZBA for reconsideration within the context of G. L. c. 40A, § 6 is not called for in this case. The determination of a nonconforming use within the meaning of Section 6 is not merely whether the use is lawful but how and when it became lawful. Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531 (1990). A lawful prior nonconforming lot arises when the lot (or structures) previously allowed as-of-right, is allowed to continue in existence despite the passage of a zoning provision that would otherwise render it illegal. [Note 11]
The Palitz Lot was rendered lawful via a variance in 1995, and was not a lawful pre-existing nonconforming lot. While the endorsement by the Planning Board of the Putziger Plan was a straightforward procedural action that did not require a variance prior to endorsement, a variance was necessary to cure the zoning violations affecting the Palitz Lot. That variance cannot now serve as a gateway for Plaintiffs to pursue a Section 6 finding, because [i]t would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use. Id.; see also Star Enterprise v. Zoning Bd. of Appeals of Medford, (1991) Misc. No. 141347 (Kilborn, J.) (holding that a Section 6 finding is not possible in an action based on a variance). The criterion for a variance is demanding and makes them difficult to obtain, and uses originally approved by a variance should not later be permitted to pursue what may be more flexible and generous standards under Section 6. Mendes, 28 Mass. App. Ct. at 531-32.
Because the zoning violations depicted on the Putziger Plan became realized once the lots were conveyed to new ownership, Mr. Putziger properly applied for and received the 1995 Variance. This provided zoning relief for the newly-created but now undersized lots. G. L. c. 40A, § 10 grants local permit-granting authorities the power to grant variances when they
. . . specifically find that 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, a literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that 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 bylaw.
The party seeking the variance carries the burden of establishing that the statutory requirements have been met. 39 Joy St. Condo. Assn v. Bd. of Appeal of Boston, 426 Mass. 485 , 488 (1998); Dion v. Bd. of Appeals of Waltham, 344 Mass. 547 , 555-56 (1962). The requirements are conjunctive, not disjunctive, so the failure to establish any of the elements is fatal. Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984) (citing Blackman v. Bd. of Appeals of Barnstable, 334 Mass. 446 , 450 (1956)). There is no legal right or entitlement to a variance, and a permit-granting authority has broad discretion to deny it, even if evidence demonstrates it could have been granted. Kirkwood, 17 Mass. App. Ct. at 427-28; Pendergast v. Bd. of Appeals of Barnstable; 331 Mass. 555 , 557 (1954).
The ZBA denied Plaintiffs application for a variance on September 19, 2012, stating that Plaintiffs failed to meet their burden of satisfying all statutory requirements under G. L. c. 40A, § 10. The ZBA found no hardship that justified enlarging the size of the existing structure on the Palitz Lot and raising the height of the Palitz House approximately ten feet. Plaintiffs argued that the requested zoning relief was required in order to bring the existing structure into compliance with present-day building codes, but the ZBA determined that many of the changes sought could be accomplished without demolishing the structure and reconstructing a taller house. The ZBA also found that increasing the size and bulk of the dwelling would negatively impact the neighborhoods density. [Note 12] Finally, the ZBA interpreted the 1995 Variancefor which Plaintiffs sought the amendmentas including a condition that there would be no change in the appearance or use of the buildings that also prevented Plaintiffs proposed reconstruction.
Conditions placed on a variance must be expressly stated. Spear v. Bd. of Appeals of Danvers, 77 Mass. App. Ct. 220 , 224 (2010). The 1995 Variance, in a section titled Determination, states that [t]here will be no change in the appearance or use of the buildings on the two properties and their relationship to adjoining properties. Therefore, desirable relief may be granted without either a substantial detriment to the public good, or substantial derogation from the intent or purpose of this by-law. Defendants characterize this language as an express condition that the residence remained unchanged. This court finds that the quoted language is not an express condition, but reflects the ZBAs finding of no substantial detriment. Therefore, the court determines that this quoted language does not rise to the level of an express condition, and instead referred only to the proposed minimal changes at issue under the 1995 Variance.
While the ZBA may have erroneously interpreted the 1995 Variance to include a condition, this was not the sole reason for its denial of Plaintiffs application. The ZBA found several other reasons on which to base its denial. See supra, n.12. The Palitz Lot, as shown on the Putziger Plan, was noncompliant, but this cannot be categorized as a hardship relating to the lands shape, soil conditions, or topography, as required for a variance under Section 10 of the Zoning Act. This court finds that the additional reasons provided by the ZBA to support its denial, based on its findings and determinations, were not based on legally untenable grounds, and were not unreasonable, whimsical, capricious or arbitrary. [Note 13] Variances are, by design, difficult to obtain with demanding statutory requirements. Mendes, 28 Mass. App. Ct. at 531 (citing Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 217 (1982)). Plaintiffs have failed to carry their burden that they were entitled to an amendment to the 1995 Variance, or a new variance, and a Section 6 finding is not available to them under the circumstances presented.
Accordingly, Plaintiffs Motion for Summary Judgment is DENIED, and, pursuant to Mass. R. Civ. P. 56 (c), summary judgment is GRANTED to Defendants as the non-moving party. The ZBAs decision to deny Plaintiffs application for a variance is AFFIRMED.
Judgment to issue accordingly.
[Note 1] The proposed height is within the Town of Tisburys maximum allowed height.
[Note 2] Defendants alleged that Plaintiffs failed to state a claim upon which relief could be granted, failed to exhaust all administrative remedies, and that all claims should be dismissed pursuant to the applicable statute of limitations and doctrines of laches and equitable estoppel.
[Note 3] Pursuant to Mass. R. Civ. P. 56(c).
[Note 4] All references to recorded instruments and registered documents are to this registry.
[Note 5] At oral argument, both parties characterized the proposed reconstruction as a tear down for purposes of establishing material facts at summary judgment.
[Note 6] G. L. c. 40A, § 6 provides in relevant part: [e]xcept 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, . . . 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 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.
[Note 7] According to the undisputed material facts, it is unclear whether, at the time of purchase by Mr. Putziger, the lot as a whole was lawfully nonconforming. Plaintiffs argue that the original lot was lawfully nonconforming and that its status should be maintained upon its division into three individual lots under Section 81L. At oral argument, Plaintiffs counsel stated that, although he believed evidence of the nonconformity of the entire lot was present in the record, such distinction was not material to the ultimate determination of the issue. Defendants counsel declined to stipulate whether the larger original lot enjoyed a lawful pre-existing nonconforming status. This court is not persuaded that the status of the original lot is important to the analysis of this case. It seems that the status of the three lots created by the Putziger Plan is more important. The record indicates that from its creation on the Putziger Plan, the Palitz Lot never complied with the lot area and setback requirements of the Bylaws.
[Note 8] In addition, the Norwell-Arch court notes the well-settled rule that lots divided under § 81L do not automatically become buildable under the zoning ordinance. Id.
[Note 9] The Supreme Judicial Court ultimately reversed Kenner on standing grounds and did not reach the substantive determination of the Appeals Court decision.
[Note 10] For example, an owner might use such a plan preliminary to a sale of one of the newly created lots. Id.
[Note 11] Also, the use of the lots or the structures thereon may also be changed pursuant to a finding under the procedures set forth in Section 6.
[Note 12] The ZBAs denial stated, in relevant part, that . . . applicant did not prove substantial hardship, financial or otherwise, since many of the modifications necessary could be done within the existing dwelling; while the applicant claims that the circumstances still exist as laid out in the 1995 variance, there does not appear to be a continuing hardship owing to conditions of the land itself. Because the abutter to the west will have her view eliminated and have a 31 foot high dwelling located four feet from hers, the board determined that there will be a substantial detriment to the public good and, further, that with the added bedroom, full basement and additional third floor, the density of the neighborhood will be negatively impacted.
[Note 13] As one reason for their denial of the variance, the ZBA states that the proposed structure will be located four feet from anabutters house. In the Findings section, the ZBA states that the proposed structure will be located four feet from an abutting dwelling. Defendants in their summary judgment brief describe the proposed structures location as four feet from the abuttingproperty. Plaintiffs counter that the abutting neighbors house is approximately forty feet from the proposed structure, while her garage is the structure located nearest to the property line. The Putziger Plan (Ex. 8) depicts a wood frame dwelling on the Palitz Lot situated close to the abutting property line and a wood frame garage on the abutting property. The precise location and use of the proposed structure and the structure on the abutting property is not addressed in the Statement of Material Facts submitted by the parties.
The court notes this discrepancy, but is limited when deciding motions for summary judgment strictly to matters of law. Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 (2010). To engage in fact finding at the summary judgment stage is to commit error. Riley v. Presnell, 409 Mass. 239 , 244 (1991). While it is conceivable that the increase in the height of the proposed structure might still affect the view from the abutters property, whether it is located four or forty feet from the abutters dwelling, the court can make no finding of fact regarding its location based on the record presented. However, this does not change the courts ultimate decision. The ZBAs decision indicates that it also considered the increase in height of the house, and the addition of a bedroom and basement as affecting density. The ZBA also found no hardship.