Home JANET KROCK and KATHRYN KROCK as trustees of The Hubert Trust v. ROBERT NELSON, JONATHAN FURBUSH, JAMES REIFFARTH, WILLIAM BLAISDELL, and JACK DORSEY as members of the Zoning Board of Appeals of the Town of Mashpee.

MISC 09-395229

July 13, 2015

Barnstable, ss.




This case is a G.L. c. 40A, § 17 appeal -- originally filed by plaintiffs Janet E. and Kathryn Krock, as trustees of The Hubert Trust in March of 2009 -- from two decisions of the Mashpee Zoning Board of Appeals dated February 24, 2009 (together, “Decision 1”) denying theIR applications for a special permit and a variance to replace a pre-existing, non-conforming single-family dwelling on an undersized lot with a far larger dwelling that would occupy an even greater percentage of the lot. On May 8, 2009, this court remanded the matter to the Board for clarification of its rationale in issuing Decision 1. On June 29, 2009, the Board issued two confirmatory decisions (together, “Decision 2”), which superseded Decision 1 and again denied the plaintiffs’ applications for a special permit and a variance. In response, the plaintiffs amended their pleadings to appeal Decision 2.

On July 16, 2012, this court again remanded the dispute to the Board for further consideration. While on remand, the plaintiffs filed a request for a written finding that the proposed development would not be substantially more detrimental to the neighborhood than the existing structure. On September 26, 2012, the Board issued three decisions (together, “Decision 3”) superseding Decision 2, which again denied the plaintiffs applications for a special permit and a variance, and also denied the plaintiffs’ request for a written finding. In response, the plaintiffs again amended their pleadings to appeal Decision 3.

The case was tried before me, jury-waived. Based on the stipulated facts, the exhibits admitted into evidence at trial, the testimony of the lone witness, and my assessment of the credibility, weight, and inferences to be drawn from that evidence, I AFFIRM the Board’s decisions denying the plaintiffs’ requested relief.


These are the facts as I find them after trial.

The property at issue is owned by the plaintiffs [Note 1] and located at 4 Cross Street in Mashpee. It is in the “R-3” residential zoning district, and is 5,000 square feet in area, with frontage on Cross Street of fifty feet. It is currently occupied by a single-family dwelling with a base area (“BAS”) of 975 square feet, and a lot coverage of 19.5 per cent. [Note 2] The present dwelling has a front yard setback of twenty-two feet, and side yard setbacks of ten feet to the west and 9.5 feet to the east. The property abuts Cross Street to the north, Pine Avenue to the west, a coastal bank and beach to the south, and another lot owned by the plaintiffs to the east.

Pursuant to Bylaw § 174-31, properties located in the R-3 zoning district are required to have a minimum lot size of 40,000 square feet, a minimum lot frontage of 150 feet, a maximum lot coverage [Note 3] of twenty per cent, a maximum building height of 2.5 stories (thirty-five feet), a minimum front yard setback of forty feet, and minimum rear and side yard setbacks of fifteen feet. As such, the subject property is an undersized lot with less than the minimum lot size, frontage, front yard setback, and side yard setbacks. The existing building is a pre-existing, non- conforming structure, which was constructed prior to the enactment of the Bylaw. [Note 4]

The plaintiffs’ propose to raze the existing structure and replace it with a new 2.5-story single-family dwelling. The new dwelling would have an approximate area of 3,000 square feet [Note 5] and a BAS of 1,500 square feet, which would result in a lot coverage of thirty per cent. As proposed, the new structure would have a front yard setback seven feet larger than the present house. They would not, however, change any of the existing structure’s present non- conformities with the Bylaw’s side yard and rear yard setback requirements. The plaintiffs also plan to replace an existing cesspool with a new septic system, which the parties agreed was an upgrade to the existing arrangement. The plaintiffs have obtained approval of the development from the local Conservation Commission.

On November 17, 2008, the plaintiffs filed applications with the Board for a special permit (pursuant to Bylaw §§ 174-24, 174-17, and 174-20) to modify and reconstruct the existing house and for a variance (pursuant to Bylaw §§ 174-28 and 174-31) from the Bylaw’s minimum dimensional requirements. The Board held a public hearing on the plaintiffs’ applications on January 18, 2009, at which the Board heard objections by several abutters, who objected to the development “for lot coverage reasons and for drainage reasons.” Decision 1, Trial. Ex. 6, p. 2. At the hearing, the plaintiffs argued that their applications should be granted because, among other reasons, the Board had, in the past, allegedly approved developments with a greater lot coverage than twenty per cent. [Note 6] The public hearing was continued to February 11, 2009, on which date the Board voted unanimously to deny the plaintiffs’ applications. The Board filed Decision 1, memorializing such denial, with the Mashpee Town Clerk on February 24, 2009, and the plaintiffs then appealed it to this court.

After the matter was remanded to the Board “to consider the prior evidence presented to it and to make explicit, written findings regarding [the Board’s] denial of the plaintiffs’ applications”, the Board (unanimously) issued Decision 2, which made additional findings of fact with respect to the plaintiffs’ applications, including:

(a) “[t]he maximum lot coverage in any zoning district in the Town of Mashpee is 25%, and that is for an I-1 (industrial) zoning district” (Decision 2, Trial Ex. 8, p. 6);

(b) “[o]ther lots in the vicinity of the locus have a maximum lot coverage of 22-23%” (id.);

(c) “[t]he proposed dwelling will encroach on the coastal bank and existing pedestrian pathways” (id.);

(d) “[a]ll abutters to the locus have voiced opposition to this project” (id.);

(e) “[t]he Rock Landing Park Association, a neighborhood association comprised of lot owners in the general area of the locus, has stated its objection to the proposed dwelling due to lot coverage concerns and drainage issues” (id.);

(f) “[t]he increased size of the proposed dwelling and impermeable area on the lot will negatively impact the drainage problems already experienced on the locus and at neighboring properties” (id.);

(g) “[t]he increased size and coverage of the proposed dwelling will cause increased runoff onto neighboring properties and into the neighboring waterways” (id. at p. 7); [Note 7]

(h) “[t]he mitigation [measures] proposed . . . regarding remediation of drainage issues are not sufficient” (id.);

(i) “[t]he [Board] has suggested that the applicant cantilever some of the dwelling; the applicant refused” (id.);

(j) “[t]here is nothing unique about the soil conditions, shape or topography of the locus which is different from that of the other property in this zoning district which would require a variance from the required lot size” (Decision 2, Trial Ex. 9, p. 4);

(k) “[t]he applicants applied for a variance on the same property in 2007 with a foot print of 24% lot coverage . . . [and] [t]here have been no material changes in conditions at the locus since that time” (id.);

(l) “the Board believes that a grant of the requested relief [ ] would cause substantial detriment to the neighboring properties and, therefore, be detrimental to the public good” (id.); and,

(m) “[b]y granting the applicant’s variance request, the Board would be substantially derogating from the intent and purpose of the Town’s lot coverage bylaw” (id. at p. 5).

After Decision 2 was issued, the matter came back before this court, where it was again remanded for further consideration. On remand, the plaintiffs filed an additional application for a written determination, pursuant to Bylaw § 174-17, that the proposed development would not be substantially more detrimental to the neighborhood than the existing structure. The Board held an additional public hearing on the plaintiffs’ applications on September 12, 2012, at which the Board heard objections from several abutters, and after which the Board voted (again, unanimously) to deny the plaintiffs’ applications. Thereafter, the Board issued Decision 3, memorializing that denial, which reiterated the findings of fact in Decision 2, and outlined several new and/or supplementary findings of facts that the Board relied upon in denying the plaintiffs’ applications, including:

(a) “[t]he Rock Landing Park Association, a neighborhood association comprised of lot owners in the general area of the locus who have legal rights to access the coastal area to the rear of the subject property, has stated its objection to the proposed dwelling due to lot coverage concerns, view impacts and coastal bank stability issues” (Decision 3, Trial Ex. 10, p. 4);

(b) “[t]he increased size and coverage of the proposed dwelling will cause increased stormwater runoff onto neighboring properties and into the neighboring waterways” (id.); [Note 8]

(c) “[t]he proposed construction and relocation of the new residence further to the rear of the parcel would impact the stability and maintenance of the coastal bank to the rear of the locus” (id.);

(d) “[t]he relocation of the structure further to the rear of the lot, as proposed, would adversely impact vistas from the beach area and abutting parcels of land” (id.); and,

(e) “[d]ue to excessive density concerns, the [Board] had suggested that [the plaintiffs] consider reducing the size of the proposal; [the plaintiffs have], to the contrary, submitted a proposal for a structure creating a substantially greater lot density” (id.).

Further facts are set forth in the Analysis section below.

This matter is now back before this court for the third time, with the court called upon to determine whether the Board acted within its allowable discretion in denying the plaintiffs’ applications for a special permit, a variance, and a written determination in connection with the plaintiffs’ proposed redevelopment. For the reasons discussed below, the court answers this question in the affirmative.


G.L. c. 40A, §17 provides for appellate review by the Land Court of local zoning decisions by “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority . . . .” For purposes of this section, the class of “person[s] aggrieved” includes petitioners -- like the plaintiffs -- whose request for zoning relief is denied. See G.L. c. 40A, § 11. The court’s review of the facts at issue and determinations of the Board is de novo; as such, the findings and determination of the Board are accorded no evidentiary value. E.g., Josephs v. Bd. of App. of Brookline, 362 Mass. 290 , 295 (1972). Nonetheless, the court’s review is “circumscribed: the decision of the [Board] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quotations omitted); see also Britton v. Zoning Bd. of App. of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (“a highly deferential bow [is due] to local control over community planning”).

In sum, the court’s task is “to ascertain whether the reasons given by the [Board to deny the plaintiffs’ applications] had a substantial basis in fact, or were . . . mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973); see also Britton, 59 Mass. App. Ct. at 74-75 (the local board’s decision must be supported by a rational view of the facts).

The Plaintiffs’ Application for a Variance

Local zoning authorities:

have the power . . . to grant upon appeal or upon petition 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 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 by-law would involve substantial hardship, financial or otherwise, to the 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 or purpose of such ordinance or by-law.

G.L. c. 40A, § 10; see also Warren v. Bd. of App. of Amherst, 383 Mass. 1 , 9 (1981). Locally, Bylaw § 174-28(A) further provides as follows:

No building or structure shall be built, nor shall any existing building or structure be enlarged or altered except in conformance with the regulations of this Zoning Bylaw as to lot coverage, lot area, land area per dwelling unit, lot width, front, side and rear yards and maximum height of structures in the several districts as set forth below except as may otherwise be provided elsewhere in this Zoning Bylaw.

This standard is strictly applied, as zoning variances are “to be granted sparingly.” Damaskos v. Bd. of App. of Boston, 395 Mass. 55 , 61 (1971); see also Pendergast v. Bd. of App. of Barnstable, 331 Mass. 555 , 559 (1954) (“no one has a legal right to a variance”). In an appeal from the denial of a variance, the applicant bears the burden of proof on the question of the propriety of the variance. E.g., Warren, 383 Mass. at 10; Blackman v. Bd. of App. of Barnstable, 334 Mass. 446 , 450 (1956) (failure to establish any element needed for a variance is fatal).

The requirement that the land in question, to warrant a variance, must present unique “circumstances relating to the soil conditions, shape, or topography” (G.L. c. 40A, § 10), has been interpreted as requiring that the property be considered in light of surrounding lots. E.g., Paulding v. Bruins, 18 Mass. App. Ct. 707 , 710 (1984). Here, the plaintiffs offered no credible evidence that any such circumstances are present; indeed, the plaintiffs do not even allege that their property features any unique soil conditions or topography. With respect to shape, the property is a simple, rectangular lot that is exactly twice as long as it is wide. Notably, numerous nearby properties share the property’s rectangular shape, and many roughly share its proportionality — including the three lots to the west and the five lots kitty-corner to the property across the intersection of Cross Street and Pine Avenue. See Trial Ex. 15.

At trial, the plaintiffs’ sole witness, Mr. Churchill, specifically acknowledged that he had no knowledge as to any unique aspects of the soil conditions, shape, or topography of the property. The most Mr. Churchill could offer was that the property was slightly smaller (5,000 square feet) than seven other nearby properties to which he compared it (six of which were only ten per cent larger), and that the property was “bound in as far as what it can do for expansion” based upon its location relative to abutting land. See Trial tran., pp. 136-137. In other words, the property is a small lot with limited area available for development. This, however, is not a sufficient basis for a variance. E.g., Mitchell v. Bd. of App. of Revere, 27 Mass. App. Ct. 1119 , 1119 (1989) (“[T]he fact that the lot is too small to qualify as a buildable lot . . . gives the board of appeal no authority to grant a variance.”). Indeed, if it were, any undersized lot could claim unique conditions based upon its limited size, which would enable any undersized lot to obtain a variance — effectively nullifying minimum dimensional zoning standards and unduly broadening the circumstances in which variances are appropriate. This is not the law. See Damaskos, 395 Mass. at 61 (variances should be granted sparingly). In sum, the plaintiffs have not demonstrated any unique conditions relating to soil conditions, shape, or topography.

Likewise, the plaintiffs have not demonstrated that they would suffer any hardship if not granted a variance. A “statutory hardship is usually present when a landowner cannot reasonably make use of his property for the purposes, or in the manner, allowed by the zoning ordinance.” Kirkwood v. Bd. of App. of Rockport, 17 Mass. App. Ct. 423 , 429 (1984) (citations omitted). Here, the plaintiffs can continue using it in its present form — with its existing non-conforming structure, grandfathered by G.L. c. 40A and the local zoning bylaw. There may be a financial hardship, at least in the sense that the zoning bylaw prevents them from building anything bigger. But that is not a cognizable financial hardship (any property owner with a non- conforming structure could say the same) and, even if it were, while financial hardship is recognized in G.L. c. 40A, § 10, it “alone is not sufficient to establish ‘substantial hardship’ and thereby justify a variance.” McNeely v. Bd. of App. of Boston, 358 Mass. 94 , 101 (1970) (quoting G.L. c. 40A, § 10) (citations omitted); see also Bicknell Realty Co. v. Bd. of App. of Boston, 330 Mass. 676 , 681 (1953) (“The fact that the landowner is unable to put the premises to a more profitable use is a factor to be considered but alone is not an adequate cause for granting a variance”).

The plaintiffs thus claim a different kind of financial hardship — an argument that, due to the assessed land value of their property, their tax burden for the property (as improved by the present structure) is disproportionately high, whereas, the plaintiffs argue, the proposed (larger) structure would be more in line with the taxes the plaintiffs are required to pay. The plaintiffs may well be correct that their property is overtaxed; [Note 9] however, that fact alone does not constitute a hardship for purposes of determining whether a variance was appropriate. See McNeely, 358 Mass. at 101; Bicknell Realty, 330 Mass. at 681. If their taxes are too high, the proper remedy is to petition for an abatement.

In sum, the plaintiffs have not satisfied any of the statutory elements for the issuance of a variance for their proposed development. Perhaps recognizing this fact, the primary issue they raised at trial and argued in their post-trial brief was whether the Board’s denial of the plaintiffs’ proposed development should be found to have been arbitrary and capricious for the reason that the Board, in the past, had granted dimensional variances to other comparable properties nearby. The plaintiffs base this argument on a theory of “municipal estoppel.”

In simplest words, that theory is this: “they got something. I should have it too.” The plaintiffs argue that this type of municipal estoppel does not mean that the Board is necessarily bound by its prior actions, but rather that to deny a variance here — despite having granted variances to other similarly-situated lots (a factual assumption with which I disagree, see discussion below) — would be unreasonable and arbitrary. This is a distinction without a difference.

Support for such a theory of municipal estoppel is scant — if any truly exists at all. The plaintiffs have not cited a single authority in support of the proposition. This is unsurprising, because the SJC — citing the inherent interest of the public in seeing zoning restrictions meant to protect them enforced — has repeatedly rejected the doctrine, concluding that “[t]he governmental zoning authority may not be forfeited by the action of the local officers in disregard of the statute and the ordinance.” Ferrante v. Bd. of App. of Northampton, 345 Mass. 158 , 163 (1962); see also Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 224 (1982); Cullen v. Bldg. Inspector of N. Attleborough, 353 Mass. 671 , 675 (1968); Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 167 (1977); Dresser v. Bldg. Inspector of Southbridge, 348 Mass. 729 , 731 (1965). Case law at the Appeals Court and the Land Court is similarly unanimous in the rejection of this doctrine in circumstances such as those presented here.

Because the plaintiffs’ municipal estoppel argument fails as a matter of law, it is not necessary to go into great detail on the evidence proffered by the plaintiffs regarding past variances to nearby properties. However, even a brief review of that evidence shows that the properties cited are not materially similar, and certainly not to a degree that indicates an arbitrary and capricious Board. As Mr. Churchill acknowledged on cross-examination, he had no actual knowledge regarding the Board’s consideration of variances that it previously granted for other properties. Moreover, the evidence in the record as to other properties to which variances were granted does not establish sufficient similarity between prior cases and the present one. [Note 10]

In sum, both as a matter of law and fact, the plaintiffs’ municipal estoppel argument fails.

The Plaintiffs’ Applications for a Special Permit and Written Determination

With respect to the issuance of special permits, G.L. c. 40A, §9 provides that “[s]pecial permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.” Locally, Bylaw § 174-24(C)(2) further provides as follows:

A special permit may be issued only following the procedures specified by the General Laws and may be approved only if it is determined that the proposed use or development is consistent with applicable state and town regulations, statutes, bylaws and plans, will not adversely affect public health or safety, will not cause excessive demand on community facilities, will not significantly decrease surface or groundwater quality or air quality, will not have a significant adverse impact on wildlife habitat, estuarine systems, traffic flow, traffic safety, waterways, fisheries, public lands or neighboring properties, will not cause excessive levels of noise, vibrations, electrical disturbance, radioactivity or glare, will not destroy or disrupt any species listed as rare, endangered or threatened by the Massachusetts Natural Heritage Program or any known historic or archaeologic site, will not produce amounts of trash, refuse or debris in excess of the town’s landfill and waste disposal capacities, will properly dispose of stumps, construction debris, hazardous materials and other waste, will provide adequate off-street parking, will not cause excessive erosion or cause increased runoff onto neighboring properties or into any natural river, stream, pond or water body and will not otherwise be detrimental to the town or the area.

The special permit sought by the plaintiffs is to modify an existing, non-conforming structure, pursuant to Bylaw § 174-17 [Note 11], and to reconstruct an allegedly historic structure pursuant to Bylaw 174-20. [Note 12] Notably, the plaintiffs’ request for a written determination as to the impact of the proposed development was made pursuant to Bylaw § 174-17, so the same standard applies both to the Board’s denial of the plaintiffs’ special permit application and to the Board’s denial of the plaintiffs’ written determination application.

The term “may” in G.L. c. 40A, § 9 -- which is also present in Bylaw § 174-24(C)(2) — has been interpreted as permissive, “‘confer[ring] a measure of discretionary power to the board, but [ ] not confer[ring] unrestrained power to grant or withhold special permits by the arbitrary exercise of that discretion.’” Humble Oil & Ref. Co. v. Bd. of App. of Amherst, 360 Mass. 604 , 605 (1971) (quoting MacGibbon v. Board of App. of Duxbury, 356 Mass. 635 , 638 (1970). As such, “[t]he question is whether the board has based its decision on a ‘legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’” Humble Oil, 360 Mass. at 605 (quoting MacGibbon, 356 Mass. at 639). Further, where, as here, zoning relief is denied (rather than granted), a zoning board need not provide “particularized reasons or any specific evidence for its denial decision . . . if a rational basis for the denial exists which is supported by the record.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001), citing Cefalo v. Bd. of Appeal of Boston, 332 Mass. 178 , 181 (1955) (“It would have been a matter of considerable difficulty . . . to state in detail all possible factors the nonexistence of which resulted in the denial of the application.”).

As discussed above, the Board, in Decision 3, articulated several specific concerns with the plaintiffs’ proposed development, including (a) density/overcrowding, (b) possible adverse impact to the abutting coastal bank, and (c) obstruction of nearby properties’ views/vistas. See generally Trial Exs. 10-12. I discuss each concern in turn.

First, while Bylaw §174-24(C)(2) does not specifically enumerate density/overcrowding as protected concerns in the context of special permits, it does protect against “adverse impact[s] on . . . neighboring properties”, as well as activities that would be “otherwise detrimental to the town or the area.” Additionally, the Bylaw’s provisions regarding minimum lot size, lot coverage, and setbacks implicitly recognize density and overcrowding as concerns to be addressed by zoning restrictions. See Bylaw § 174-31. Moreover, it is well-established that density is a concern that may be addressed through zoning bylaws — particularly where density and overcrowding in a neighborhood is already something of a problem, as the Board claims and my review of the parcel maps of the area confirms. E.g., Sheppard v. Zoning Bd. of App. of Boston, 74 Mass. App. Ct. 8 , 12 (abutter had standing to object to development based on density concerns), rev. denied, 454 Mass. 1103 (2009); McGrath v. Chatham Zoning Bd. of App., 17 LCR 101 , 103 (2009) (same).

Based upon the Board’s (correct) determination that the plaintiffs’ proposed new development would exceed the Bylaw’s minimum standards for lot size, lot coverage, and front and side setbacks, the Board concluded that such development would not be “in harmony with the general purpose and intent of the ordinance or by-law” (G.L. c. 40A, § 9), would “have a significant adverse impact on . . . neighboring properties . . . [and/or would] otherwise be detrimental to the town or the area” (Bylaw § 174-24(C)(2), and would be “substantially more detrimental than the existing nonconforming structure or use to the neighborhood” (Bylaw §174- 17). Under the circumstances, I find no basis that this conclusion was arbitrary or capricious.

Next, the potential effect of the plaintiffs’ proposed development on the abutting coastal bank represents a specifically enumerated concern in the Bylaw, which protects against “adverse impact[s] on wildlife habitat, . . . waterways, . . . [and] public lands”, as well as “excessive erosion . . . into any natural river, stream, pond or water body.” Bylaw § 174-24(C)(2). Here, after weighing the evidence provided by the plaintiffs and abutters at the public hearing on the plaintiffs’ applications, the Board found that the location of the proposed structure (which would sit closer to the rear of the lot than the present structure) could adversely affect the “stability and maintenance of the coastal bank,” and therefore determined that the plaintiffs’ proposal ran afoul of the Bylaw’s specifically-enumerated protections against adverse effects upon waterways and its goal of preventing undue erosion. The plaintiffs have produced no proof that this conclusion was factually erroneous. Accordingly, under the circumstances, I cannot find that the Board’s conclusion was arbitrary or capricious.

Finally, as was the case with density, while Bylaw § 174-24(C)(2) does not specifically identify views/vistas as protected concerns, it does protect against “adverse impact on . . . neighboring properties”, as well as activities that would be “otherwise detrimental to the town or the area.” [Note 13] However, unlike in the case of density, impact upon views/vistas is generally not seen as actionable unless specifically protected by the relevant bylaw. E.g., Kenner v. Zoning Bd. of App. of Chatham, 459 Mass. 115 , 120 (2011).

Here, the Board’s apparent concerns as to possibly obstructed views were not noted in either Decision 1 or Decision 2; rather, they appear for the first time in Decision 3, where they are attributed to abutters/objectors to the plaintiffs’ development, which concerns were apparently expressed at the September 12, 2012 public hearing on the plaintiffs’ applications. However, while the court need not get into whether the abutters (as to whom there is little, if any, information in the record) would have had standing to challenge the plaintiffs’ development, it is clear that, had they appealed an approval of the plaintiffs’ project solely on the basis of obstructed views, their challenge likely would have been dismissed for lack of standing, as views/vistas are not specifically protected by the Bylaw. See Kenner, 459 Mass. 115 ; Bylaw § 174-24(C)(2). Likewise, therefore, the Board would not have been entitled to deny the plaintiffs a special permit solely on this basis. However, the fact that the Board recognized this concern is harmless here, since their denial of the plaintiffs’ special permit application was based not only on obstructed views (which are not specifically protected by the Bylaw), but also on density/overcrowding and impacts upon the coastal bank (which are specifically protected).


For the foregoing reasons, the Board’s decisions denying the plaintiffs’ applications for a variance, a special permit, and a written determination are AFFIRMED and this action is DISMISSED WITH PREJUDICE.

Judgment shall issue accordingly.


[Note 1] Plaintiffs Janet E. and Kathryn Krock are trustees of The Hubert Trust, which was established by a declaration of trust dated January 31, 2003 and recorded in the Barnstable Land Court Registry as Document Number 913586.

[Note 2] The parties, in their joint statement of facts, stipulated that the BAS and lot coverage of the existing building was, respectively, 975 and 19.5 per cent. See Jt. Stmt., p. 3; see also Trial. Ex. 4. However, tax records for the property show the BAS of the building as 924 square feet -- which, divided by the area of the lot (5,000 square feet), suggests that the actual lot coverage may actually be approximately 18.5%. At trial, the plaintiffs’ counsel offered no details as to where the stipulated figures came from, nor any reason to suggest that they were inaccurate (or as to why the plaintiffs would have stipulated to them if, in fact, they were inaccurate). However, the plaintiffs sought a continuance of the trial (which was denied) so that they could call as a trial witness the Mashpee building commissioner, arguing that the discrepancy as to the BAS of the building could mean that local building authorities have been inconsistent in their measurement of lot coverage. No evidence of that, however, was adduced at trial. Absent such evidence, the court will hold the plaintiffs to their stipulations of fact.

[Note 3] Bylaw § 174-3 defines “lot coverage” as “[t]he amount of area on a lot covered by the horizontal cross section of structures”, and “structure” as “[a] combination of material assembled at a fixed location to give support or shelter, such as a building, tower framework, platform, bin, sign or the like”. The same section also defines “building” as “any three-dimensional enclosure by any building material of any space for use or occupancy, temporary or permanent, [including] foundations in the ground; also all parts of any kind of structure aboveground except fences and field or garden walls or embankment retaining walls” -- “[i]nclud[ing] the word ‘structure’ unless the context unequivocally indicates otherwise.”

[Note 4] Bylaw § 174-3 defines “nonconforming structure” as “[a] lawfully existing structure that does not conform to the dimensional requirements prescribed by this chapter for the district in which it is located, but which was lawfully in existence at the time the dimensional requirement with which it does not conform became effective.”

[Note 5] This figure appears to be an approximation of the living area of the proposed structure based upon the footprint of the house (1,500 square feet) multiplied by the number of full, occupied stories (2). However, the plans for the proposed structure (see Trial Ex. 5) provide several reasons why that number might not be completely accurate. First, as acknowledged by the parties, the footprint of the proposed new structure includes a seventy square foot porch on the first level and a forty-nine square foot deck on the second level, which would be excluded from the living area of the house. Second, on the first level, the rear twenty-two feet of the house is four feet wider than the front twenty-eight feet of the house. Third, on the second level, the rear forty-one feet of the house is four feet wider than the front seven feet of the house, and the front seven feet of the house appear to be one foot narrower than the first floor of the house. Fourth, the proposed structure contains an attic with a ~545 square foot loft, a ~53.5 square foot bathroom, and ~119.5 square feet of storage. Thus, the actual living area of the proposed house may actually be somewhere in the neighborhood of 3,800 square feet. These differences, however, are not material to the disposition of this case.

[Note 6] The plaintiffs also argued that, due to the assessed land value of the property, they would suffer a tax burden if the Board did not allow a house of the size proposed. The plaintiffs further claimed that the proposed development was comparable to nearby properties, and noted that they also owned the only directly-abutting property. At trial, their witness, Mr. Churchill, testified regarding seven nearby properties, and opined that the Bylaw’s definition of “lot coverage” should be interpreted as including outdoor decks and porches -- although not patios.

[Note 7] At trial, the parties stipulated that this finding was rendered inapplicable by revisions made by the plaintiffs to their drainage plan in connection with the 2012 remand to the Board and that, in any event, it would not be a proper basis for denial of zoning relief. See Trial Tr., pp. 39-41.

[Note 8] As noted above, the parties agreed at trial that this finding was rendered inapplicable by revisions made by the plaintiffs to their drainage plan in connection with the 2012 remand to the Board, and that, in any event, it would not be a proper basis for denial of zoning relief. See Trial tran., pp. 39-41.

[Note 9] I make no ruling on the question, nor do I have jurisdiction to do so.

[Note 10] More specifically, with respect to 15 Cross Street and 10 Cross Street, the Board’s decisions indicate that the applicants had agreed to make substantive changes to the proposed structure, after which the variances were granted (see Trial Exs. 23 & 25); here, by contrast, the plaintiffs have refused to do so. With respect to 17 Cross Street, the Board found, among other things, that the applicant’s property included an area used by neighbors for access, and that this area should not be included for purposes of determining the property’s lot area. See Trial Ex. 22. With respect to 23 Pine Avenue, 19 Pine Avenue, and 14 Cross Street, the Board’s decisions contain very little detail as to the Board’s reasons for allowing the variances (other than that the applicants’ neighbors supported the proposals -- which is not the case here), so there is no way for this court to compare them to the present case. See Trial Exs. 20-21, 24. The plaintiffs did not submit the variance decision for 16 Cross Street.

It is not the role of this court to opine on whether the Board acted appropriately in granting these past variances — all of which were granted over ten years ago. However, to the extent that any detail as to the reasons for these variances is available, it is clear that the circumstances at bar are not the same as those faced in these prior cases.

[Note 11] Bylaw § 174-17 provides, in relevant part, as follows:

Nonconforming single- or two-family dwelling structures may be changed, extended or altered if . . . , for lots which have been developed pursuant to §174-21 [i.e., non-conforming lots], [such lot] complies with such requirements as were applicable to initial construction of the dwelling under provisions of §174-21. Changes, extensions or alterations of nonconforming single- or two-family dwelling structures which do not meet the applicable dimensional requirements as set forth above . . . may not be made unless there is a written finding by the [Board] that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood and that there is adequate land area to provide sufficient parking and setbacks as may be required.

Bylaw § 174-17; see also G.L. c. 40A, § 6 (“Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless . . . such change, extension or alteration [will] not be substantially more detrimental than the existing nonconforming use to the neighborhood.”).

[Note 12] Bylaw § 174-20 provides, in relevant part, as follows:

Notwithstanding any provisions of this Chapter, within the Mashpee Center Overlay District any structure built prior to 1945 and subsequently demolished may be reconstructed in its original location, or within 50 feet of said location, provided its exterior design and appearance is essentially the same as the original structure and it is determined by majority vote of the Planning Board . . . that it is historically appropriate.

[Note 13] It should be noted that, although the Bylaw does not specifically protect views/vistas in its treatment of special permits, it does do so elsewhere — including its treatment of parking lots and cellular service towers.