RONALD T. PLOTKA and HUMPHREY STREET REALTY ASSOCIATES, LLC. vs. DONALD HAUSE, DANIEL DOHERTY, MARC KORNITSKY, HARRY I. PASS, ANDREW ROSE, DAMON SELIGSON, AND PETER SPELLIOS, AS THEY ARE MEMBERS OF THE TOWN OF SWAMPSCOTT ZONING BOARD OF APPEALS and J. ALAN HEZEKIAH, INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER FOR THE TOWN OF SWAMPSCOTT.

Plaintiffs Ronald T. Plotka (“Plotka”) and Humphrey Street Realty Associates, LLC., (together, “Plaintiffs”) filed their Unverified Complaint for Declaratory and Injunctive Relief (10 MISC 428294) on April 27, 2010, seeking 1) reversal of Defendant Town of Swampscott Zoning Board of Appeals’ (the “ZBA”) decision (“the ZBA Decision”) to enforce the Inspector of Buildings’ (“Building Inspector”) violation notice (“the Violation Notice”) relative to a sign (“the New Sign”); 2) judgment annulling the ZBA’s denial of Plotka’s special permit application for the New Sign because such denial was arbitrary, capricious, and contrary to law, and 3) judgment directing the Building Inspector to issue a building permit for the New Sign. The ZBA and the Building Inspector (collectively “the Town”) filed their Verified Counterclaim on August 2, 2010, seeking 1) judgment affirming the ZBA’s denial of Plotka’s appeal of the Violation Notice; 2) judgment declaring Plotka, in erecting the New Sign, violated Sections 3.2.3.4 and 3.2.6.0 of the Swampscott Zoning Bylaw (the “2000 Bylaw”); and 3) permanent injunction prohibiting Plotka from erecting a sign that does not comply with the 2000 Bylaw and an order for Plotka to remove the New Sign. Plotka filed an Answer to the Verified Counterclaim on December 20, 2010.

Plaintiffs filed their Motion for Summary Judgment (“Summary Judgment 1”) on May 31, 2011, together with Supporting Memorandum, Statement of Material Facts, and Affidavits of Ronald T. Plotka (“Plotka Affidavit 1”), Kenneth B. Shutzer, Esq., David Earley, Brittany Pickett, Jason Do, Michelle Wright, Katherine Do, Tiffany Stannard, Kyle Beatrice, and Ilan Amaroc. The Town also filed its Motion for Summary Judgment on May 31, 2011, together with Supporting Memorandum and Statement of Material Facts. On June 30, 2011, Plaintiffs filed their opposition to the Town’s Summary Judgment Motion, together with the second Affidavit of Ronald T. Plotka (“Plotka Affidavit 2”) and Affidavit of Coreen S. Sullivan, Esq., and the Town filed its opposition to Plotka’s Summary Judgment Motion with the Affidavit of Alan Hezekiah. On July 8, 2011, the Town filed a Motion to Strike the affidavits from business owners along the Humphrey Street Corridor because the statements did not reflect the affiants’ personal knowledge, and portions of Plotka Affidavit 1 because Plotka Affidavit 1 included hearsay and statements of personal opinion and belief (“Motion to Strike 1”), a Motion to Strike portions of Plotka Affidavit 2 (“Motion to Strike 2”) because Plotka Affidavit 2 included hearsay and statements of personal opinion and belief, and its Reply to Plaintiffs’ opposition to its Motion for Summary Judgment. On the same day, Plaintiffs filed their opposition to the Town’s Motion to Strike 1 and a Reply to the Town’s Opposition of their Motion for Summary Judgment. Plaintiffs filed their opposition to the Motion to Strike 2 on July 14, 2011, together with Affidavit of Carl D. Goodman, Esq. A Summary Judgment hearing was held on August 3, 2011, and at that time all motions were taken under advisement. On February 10, 2012, this court issued its Decision (“Land Court Decision 1”) finding that 1) the ZBA waived its right to object to an untimely appeal of the Violation Notice and is precluded from now raising the jurisdictional issue, 2) Plaintiffs did not meet their burden of proof to determine that the Old Sign (as hereinafter defined) was a pre-existing, nonconforming structure [Note 1], and as a result the ZBA Decision was remanded back to the ZBA for proceedings consistent with Land Court Decision 1, [Note 2] [Note 3] and 3) with respect to abandonment, there was not enough evidence before this court to make a determination as to the exact nature of the Old Sign. [Note 4]

On January 30, 2013, the ZBA issued a remand decision (the “Remand Decision”), which found that the Old Sign was not a pre-existing nonconforming structure, and that a variance was not warranted. Plaintiffs filed a new unverified Complaint (13 MISC 476750) on February 21, 2013, appealing the Remand Decision pursuant to G.L. c. 40A, § 17. At a status conference on April 24, 2013, the two cases were consolidated. Plaintiffs filed their Motion for Summary Judgment (“Summary Judgment 2”) on November 4, 2013, together with supporting memorandum., Concise Statement of Material Facts, and Appendix containing the Affidavit of Ronald T. Plotka, D.D.S. (“Plotka Affidavit 3”). On December 16, 2013, the ZBA filed its Opposition and Request for Judgment, supporting memorandum, Statement of Additional Material Facts, and Appendix containing the Affidavits of Susan J. Duplin (Town Clerk) and Alan Hezekiah (Town Local Inspector, former Inspector of Buildings). Plaintiffs filed their Reply on December 31, 2013. A hearing on all motions was held on January 6, 2014, 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. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plotka has conducted a dental practice at 293 Humphrey Street, Swampscott, Massachusetts (“Locus”) since 1970, and Locus is owned by Plaintiff Humphrey Street Realty Associates, LLC. Locus is located on ocean front property and contains a building (the “Building”).

2. The current Bylaw was adopted in May 2000. [Note 5]

3. Locus is located in a Residence A-3 District near the Humphrey Street Corridor which contains businesses in the B-1 zoning district.

4. Pursuant to Article VI of the 2000 Bylaw, a “sign” is considered to be a structure. Bylaw § 3.2.3.4 indicates professional signs located in residential zoning districts shall not exceed six square feet in area and only one sign is allowed per lot. Bylaw § 3.2.4.1(a)(vi) limits signs in B-1 zoning districts to no more than 30 inches tall. Bylaw § 3.2.4.1(a)(i) indicates signs in B-1 and B-2 zoning districts shall not exceed 45 square feet in area.

5. Plotka has maintained a professional projection sign [Note 6] at Locus since 1970. When Plotka moved his office to Locus in 1970, Dr. Drake (who had conducted his dental practice there since 1948) had two signs, a flat sign on the side of the building and a projection sign attached to the front of the building. Plotka’s sign (the “Old Sign”) replaced Dr. Drake’s projection sign. The Old Sign was two-sided and hung from the building by a bracket. One side of the Old Sign, including the bracket, was 19.44 square feet (70"H x 40"W); excluding the bracket, one side was 13.89 square feet (50"H x 40"W).

6. According to Article VI of the 2000 Bylaw, “[o]nly one side of flat, back-to-back, signs need to be included in calculating sign area” and “structural members not bearing advertising matter shall not be included unless internally or decoratively lighted . . .”

7. The Old Sign was repaired various times, including re-securing the Old Sign to the building, gluing and stapling the Old Sign back together, and repainting the Old Sign. The Old Sign was blown down in late fall/early winter of 2008/2009 and Plotka chose not to rehang it.

8. The 1958 Swampscott Zoning Bylaw (the “1958 Bylaw”) states that, with respect to the A-3 Zoning District, “Signs shall be limited to professional announcement signs not over one square foot in area.”

9. A plan titled “Plan of Land in Swampscott, Mass.” dated January 1983 (the “1983 Plan”) shows Locus with a proposed addition to the Building. Locus is a triangular-shaped lot on a peninsula jutting into the Atlantic Ocean. Locus is abutted on the west by another lot.

10. By decision and judgment dated December 22, 1986 (the “1986 Superior Court Decision”), the Essex Superior Court upheld two decisions of the ZBA issued in 1984 relative to a special permit for an addition to the Building and a change in use of the Building.

11. As a result of the 1986 Superior Court Decision, in 1987 the ZBA granted Plaintiffs a special permit (the “Building Special Permit”) for an addition to the Building and for a change in use of the Building “to use the first floor of the premises for dental offices with a staff of not more than three dentists and nine staff people,” and “that such change, extension or alteration will not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

12. Plotka filed an application with the ZBA for a special permit to install a new sign on Locus in July 2008. Plotka went before the ZBA on August 27, 2008. After presenting his application before the ZBA, Plotka withdrew such application before the ZBA issued a decision.

13. On July 23, 2008, Plaintiffs filed a request for Site Plan Review for the New Sign with the Swampscott Planning Board (the “Planning Board”). The Planning Board approved the Site Plan Review on September 18, 2008.

14. In June 2009, Plotka filed an application for a variance for a new sign but withdrew his application before the ZBA issued a decision.

15. Prior to November 30, 2009, Plotka, without a building permit, installed a new, one sided facade sign, [Note 7] measuring 42 square feet, on the building on Locus. [Note 8]

16. On November 30, 2009, the Building Inspector issued a violation notice to Plotka, ordering him to immediately remove the New Sign (the “Violation Notice”). The letter stated:

Your sign not only exceeds the size limits of the By-Law, but it was also installed without the benefit of a building permit. You are hereby ordered to immediately remove all signage in excess of the six square foot limit of the By-Law.

17. Plotka filed both an appeal of the Violation Notice and a request for a special permit (the “Special Permit”) pursuant to Section 2.2.7.0 of the 2000 Bylaw on February 9, 2010.

18. The ZBA held a hearing on Plotka’s petitions on March 31, 2010, at which time the ZBA unanimously voted to deny Plotka’s request for the Special Permit and to uphold the Violation Notice (“ZBA Decision 1”). The ZBA filed its decision with the Town Clerk on April 14, 2010. ZBA Decision 1 stated:

after hearing and consideration of all the evidence, the Board . . . voted unanimously to:

1. Deny the Petitioner’s request for a Section 6 Special Permit, and

2. Uphold the decision of the Building Inspector as stated in the Enforcement Letter.

19. On remand, the ZBA held a hearing on January 23, 2013, and issued a decision (“ZBA Decision 2”) on January 30, 2013. ZBA Decision 2 found that Plaintiffs did not meet the burden of producing the Bylaw in effect in 1970 (the 1958 Bylaw), that the Old Sign was not a pre-existing, nonconforming structure (vote 3-2), that the New Sign increased the nonconformity of the Old Sign (vote 4-1), and that the Variance was denied (vote 4-1).

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Pursuant to Land Court Decision 1, the remand to the ZBA afforded Plaintiffs the opportunity to present evidence that the Old Sign was a pre-existing nonconforming structure, and, if so, that the Special Permit was warranted. Both parties agree the New Sign does not conform to the 2000 Bylaw. The parties dispute whether Plotka should be issued the Special Permit which would allow him to construct the New Sign on Locus. Plaintiffs argue the Violation Notice should be reversed on equitable grounds, and the ZBA should grant Plaintiffs the Special Permit because the New Sign is not more detrimental to the neighborhood than the Old Sign and, alternatively, that the New Sign meets the requirements of a variance. The Town argues Plotka should not be granted the Special Permit for the following reasons: 1) Plotka has not produced evidence that the Old Sign was a pre-existing nonconforming structure entitled to grandfather protection; 2) if the Old Sign was pre-existing nonconforming, Plotka’s New Sign constitutes an expansion of that nonconformity that is substantially more detrimental to the neighborhood; and 3) Plotka is not entitled to a variance. I shall address each of these issues in turn.

A person aggrieved by a board of appeal’s decision may appeal to the Land Court department. G. L. c. 40A, § 17. The court reviews the lower court’s finding of fact de novo. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). After the reviewing court makes its finding of fact, the zoning board’s decision must be upheld unless the court determines, on the basis of facts it found for itself, that the decision was “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 , 73 (2003). The reviewing court is highly deferential to zoning board decisions relating to special permits and “gives the board discretion to deny a permit application even if the facts found by the court would support its issuance.” Id. at 74.

Special Permit

A. The Old Sign as a Pre-existing, Nonconforming Structure

G.L. c. 40A, § 6 states zoning ordinances and by-laws shall not apply to structures or uses

lawfully in existence . . . before the first publication of notice . . . 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 . . . 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 . . . may be extended or altered provided, that no such change, extension or alteration shall be substantially more detrimental than the existing nonconforming use to the neighborhood.

Bylaw § 2.2.7.0 allows “lawfully existing nonconforming . . . structures [to] continue,” and

Bylaw § 2.2.7.2 states the ZBA

may award a special permit to reconstruct, extend, alter, or change a nonconforming structure in accordance with this section only if it determines that such reconstruction, extension, alteration, or change shall not be substantially more detrimental to the neighborhood.

The reconstruction, extension, or structural change of such nonconforming structures so as to increase an existing nonconformity . . . shall require the issuance of a dimensional special permit or variance, as applicable from the board of appeals.

Bylaw §2.2.7.7, titled “Non-Conforming Signs in Residential Districts” states

The extension, alteration, reconstruction or change of non-conforming signs for professional offices in residential districts may only be permitted by special permit issued by the Board of Appeals (so-called “Section 6 Special Permit”) upon a determination that such extension, alteration, reconstruction or change is not substantially more detrimental than the existing nonconforming sign to the neighborhood...

The party seeking the protected status of a special permit has the burden of proof. Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 (1990); Derby Refining Co. v. City of Chelsea, 407 Mass. 703 , 712 (1990). If the party with the burden fails to provide part of the bylaw that is critical to his position, failure of proof will result. Bartless v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 672. Thus, Plaintiffs must produce evidence that the Old Sign was a pre-existing nonconforming structure under Bylaw § 3.2.3.4, which states professional office signs in any residential district “shall not exceed six (6) square feet in area.” The Town argues Plaintiffs failed to produce evidence that the Old Sign was lawfully in existence prior to the 2000 Bylaw, thereby preventing Plaintiffs from benefitting from grandfather protection.

The current Bylaw was adopted in May 2000. In 1970, Plotka replaced a former sign with the Old Sign. [Note 9] Plotka represents that the Old Sign hung on the building from 1970 until the Old Sign blew down in 2008/2009. [Note 10] However, though urged by this court in Land Court Decision 1 to research the bylaw in effect in 1970, Plotka did not introduce any Bylaw that was in effect at the time the Old Sign was erected. The ZBA introduced the 1958 Bylaw into evidence. The 1958 Bylaw stated, in the A-3 Zoning District, that “[s]igns shall be limited to professional announcement signs not over one square foot in area.” [Note 11] The Old Sign clearly violated this requirement. Additionally, Plaintiffs offer no evidence that the former sign replaced by the Old Sign was a pre-existing, nonconforming structure benefitting from grandfather protection from the bylaw in effect in 1970. [Note 12] If the former sign was pre-existing nonconforming, Plaintiffs would have had to obtain a special permit to erect the Old Sign. G.L. c. 40A, § 6; See e.g., Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008). There is no evidence in the summary judgment record of Plaintiffs obtaining a special permit for the replacement of Dr. Drake’s former sign with the Old Sign.

Plaintiffs argue that the evidence shows that the Building on Locus, as a result of the 1986 Superior Court Decision and the 1987 Building Special Permit, was pre-existing nonconforming, and that by implication the Old Sign, which was attached to the Building, must also be pre-existing nonconforming because “the premises’ permitted use as a dental office contemplates the existence of commercial signage.” A review of the 1986 Superior Court Decision and 1987 Building Special Permit show this analysis to be problematic, as there was no mention of signage in either the Superior Court Decision or the Building Special Permit. In particular, the Building Special Permit was very specific in its allowance of the use of “the first floor of the premises for dental offices with a staff of not more than three dentists and nine staff people.” Thus, while the Building Special Permit permitted an addition to the Building and an increased number of staff regularly engaged in assisting in the performance of the professional activity (dentistry), it did not include any language permitting an alteration to the by-law’s limitation on the size of professional announcement signs–one square foot–allowed in the A-3 Zoning District. Moreover, the Superior Court Decision also does not mention commercial signage and the court does not even include the portion of the bylaw that regulates signage in its finding of fact. The court instead addressed the Building’s prior nonconformity relating to setback and dwelling units in the Building, and Plaintiffs’ seeking a special permit to alter this nonconformity by rebuilding the Building’s pre-existing rear projection and renovating the first floor. At no point does the Superior Court Decision address Plaintiffs’ sign: it does not expressly refer to either Dr. Drake’s former sign or the Old Sign as a prior nonconforming structure nor does such decision imply that any signs--or for that matter any of the property’s features other than the setback, dwelling units, and first floor dental office of the Building--are pre-existing nonconformities benefitting from grandfather protection and eligible for special permits. As a result of the foregoing, I find that the Old Sign was not a pre-existing nonconforming structure.

In order to be eligible for a special permit on the grounds of a pre-existing nonconforming structure, a structure must have lawfully pre-existed the zoning change that made the structure non-conforming with the bylaw. G.L. c. 40A, §6; See Bransford v. Zoning Bd. Of Appeals of Edgartown, 444 Mass. 852 , 855 (2005); Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991). As neither the Superior Court Decision nor the Building Special Permit “contemplated Plaintiffs’ commercial signage” so as to make the sign a pre-existing nonconformity, Plaintiffs must otherwise prove that the Old Sign was a pre-existing nonconforming structure. To be a valid pre-existing nonconforming structure eligible for special permits, a structure must have been lawful when erected, and thus a structure erected in violation of a bylaw is not recognized as a nonconforming structure. Plaintiffs produced no evidence as to the size or date of Dr. Drake’s original sign. Since both the Old Sign and the New Sign violated the bylaws in effect at the time they were constructed, without such evidence of Dr. Drake’s sign, there is nothing in the record to suggest that Dr. Drake’s sign was a pre-existing nonconformity that exempted both the Old Sign and New Sign from compliance with the zoning changes in the 2000 Bylaw and entitled the New Sign to a Special Permit consideration by the ZBA. See Zitzkat v. Zoning Bd. of Appeals of Truro, 71 Mass. App. Ct. 1114 (2008). As a result of the foregoing, I find that there is no basis for a Special Permit for the New Sign based on Plaintiffs’ argument of a pre-existing nonconformity. [Note 13]

Variance

A. The New Sign and the Requirements of a Variance

Plaintiffs also argue that the New Sign meets the requirements of a Variance. G.L. c.140A, § 10.

The permit granting authority shall have the power . . . to grant . . . with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil condition, shape, or topography of such land or structures and especially affecting such land or structures but not affecting the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of such ordinance or by-law.

No variance can be granted unless all requirements of the statute are met. Warren v. Bd. of Appeals of Amherst, 383 Mass. 1 , 9 (1981). Plaintiffs contend that because the Building is located on a peninsula jutting into the ocean, it is an irregularly shaped lot, and as a result of the lot’s shape and topography, enforcement of the 2000 Bylaw’s commercial signage provision relating to the A-3 District would cause hardship to Plaintiffs. There is nothing in the summary judgment record except the 1983 Plan to support facts about either the shape or topography articulated by Plaintiffs. The 1983 Plan only shows Locus and not adjoining parcels and shows nothing relative to topography of Locus or any other lots. Locus is triangular in shape, but its shape does not relate to issues of hardship that would suggest a variance. See Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 116 (1986) (holding that triangular parcel’s shape was not sufficiently unusual to justify granting variance to permit construction); Tsarongis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 331-332 (1993) (holding that consideration of the “unique shape” of the parcel standing alone is irrelevant and the “fact that the locus [had] a special shape . . . cannot support the granting of a variance”). Finally, there is no evidence that the weather conditions articulated by Plaintiffs (wind from the ocean) are unique to Locus and do not also affect the other parcels in the A-3 Zoning District. See Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 430 (1984); Cass v. Bd. of Appeal of Fall River, 2 Mass. App. Ct. 555 , 559 (1974) (reversing order granting a variance when there was no evidence that conditions of soil and shape were peculiar to the locus). As a result, I find that the New Sign does not meet the requirements for a variance. As a result of the foregoing, I find that the New Sign is not entitled to any zoning protection, and must be removed. [Note 14] Plaintiffs shall remove the New Sign within thirty days of the date of this decision. Plaintiffs’ Motion for Summary Judgment 2 is hereby DENIED, and the Town’s Motion for Judgment is hereby ALLOWED.

Judgment to enter accordingly.