The plaintiffs in this action, Karen Maguire and Steven Nothern, appeal from a decision of the Scituate Zoning Board of Appeals (the “Board”) authorizing the razing and reconstruction of a single-family dwelling on a lot abutting their property by issuance of a special permit and finding pursuant to G. L. c. 40A, §6. The plaintiffs challenge the decision on the stated grounds that the lot on which the proposed reconstruction is to take place does not meet the dimensional requirements of the local zoning bylaw, and therefore requires a variance, and on the further grounds that the proposed reconstruction will be substantially more detrimental to the neighborhood than the existing dwelling. The non-municipal defendants, David J. Henry and Evelyn V. Henry (the “Henrys”), claim that the lot on which construction is proposed, although not conforming to the present requirements of the local zoning bylaw for lot width and frontage, is deemed by the local zoning bylaw to have the status of a lawfully nonconforming lot, and for that reason the proposed construction may proceed without the benefit of a variance.

The plaintiffs commenced this action on October 4, 2011. The Henrys’ motion for summary judgment was denied by the court (Grossman, J.) on March 12, 2013. A trial was held before me on June 24, 2015 and June 25, 2015. After the filing of post-trial memoranda by both sides, post-trial arguments were heard on October 30, 2015, and I took the matter under advisement at that time.

For the reasons stated below, I find and rule that the lot upon which the new dwelling is proposed to be constructed does not have the benefit of lawful nonconforming lot status with respect to lot width and lot frontage, and therefore a variance for lot frontage and lot width was necessary in order to lawfully authorize the proposed new dwelling. Accordingly, the Board exceeded its authority in authorizing the razing and reconstruction without a variance.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. The Plaintiffs, Karen L. Maguire and Steven E. Nothern, acquired their current residence located at 20 Collier Avenue, Scituate, by a deed dated December 17, 1999. The plaintiffs acquired the adjacent property, improved by another single-family dwelling, located at 22 Collier Avenue, by a deed dated May 21, 2004. The two parcels owned by the plaintiffs are referred to hereinafter as the “Maguire-Nothern Property”.

2. The private defendants, David J. Henry and Evelyn V. Henry, are the owners of the land with improvements located at 8 and 8A Gannet Road, Scituate (the “Property”). The Henrys have owned the Property since July 25, 1975.

3. The Maguire-Nothern Property abuts the Property to the rear.

The Property

4. The Property is a rectangular parcel of land 100 feet in width, with 100 feet of frontage on Gannett Road, and containing 16,113 square feet of land. [Note 1]

5. There are two buildings on the Property, a single-family dwelling on the front portion of the lot (known and described as 8 Gannet Road), and a building currently occupied as a dwelling unit on the rear portion of the lot (known and described as 8A Gannett Road).

6. The single-family dwelling on the front portion of the Property has been present on the Property at least since 1945.

7. The Property is in a “Residence R-3” zoning district under the Scituate Zoning Bylaws (“Bylaw”), in which the minimum allowed lot area for a building lot is 10,000 square feet, the minimum allowed lot frontage is 100 feet, and the minimum allowed lot width, measured at all points from the front lot line back through the building, is 100 feet. [Note 2]

Relevant Sections of the Bylaw

8. Section 610.3 of the Bylaw provides as follows:

Section 610.3 (Reduction of Lot Size): No lot upon which a building stands shall be reduced in size by conveyance of any part thereof, or by any other means (other than by reason of natural erosion of seashore lots) so that the area remaining has less than the area and dimension required by this Section, except that, pursuant to the Subdivision Control Law, General Laws Chapter 41, Sections 81 K and L, a lot on which two or more dwellings were standing when the Subdivision Control Law went into effect in the Town of Scituate may be divided into separate lots, on each of which one such dwelling remains standing. If such division results in a nonconforming setback for one or more of the existing dwellings, or a lot that does not meet the minimum lot area, these nonconformities will be considered legally pre-existing nonconformities. Further alterations of these dwellings or the boundaries of the lots on which they are standing shall not increase any nonconformity under the provisions of this bylaw unless the applicant obtains the zoning relief required for pre-existing nonconforming structures under Section 800 of this bylaw.

9. Section 810.2 provides in relevant part as follow:

810.2(A) (Alteration of Single and Two Family Nonconforming Structures): The Building Commissioner may permit the repair, alteration, reconstruction, extension or structural change of a lawful, dimensionally nonconforming single or two-family dwelling . . . [i]n case of a building or structure which is nonconforming solely because of insufficient lot frontage or lot area, or both . . . [Note 3]

10. The parties have stipulated, and I so find, that the Subdivision Control Law became effective in Scituate in 1954. [Note 4]

The Rear Building - 8A Gannett Road

11. The rear building on the Property, known as 8A Gannett Road, was occupied, as early as 1945, as a garage. Another accessory building, a “tool and bath house” was also present on the Property until 1955.

12. By the time the Henrys acquired the Property in 1975, the rear building on the Property was being occupied as a dwelling, with a kitchen and living room on the first floor and two bedrooms and a bathroom on the second floor. [Note 5] It may have already been occupied as a dwelling in 1970. [Note 6]

13. There is insufficient evidence upon which I can conclude when the residential use of the rear building commenced, or whether it commenced legally. Having two principal dwellings on one property became illegal under the Bylaw in 1956. [Note 7] A building permit to “renovate carriage house” was issued in 2011. [Note 8] [Note 9] A certificate of occupancy for the carriage house was issued on June 29, 2011. [Note 10]

14. There is insufficient evidence upon which I can conclude that the occupation of the rear building as a dwelling was lawful prior to the issuance of the certificate of occupancy in 2011, and there is insufficient evidence upon which I can make a finding that the rear building was occupied in whole or in part as a dwelling in 1954 when the Subdivision Control Law became effective in Scituate. I find that the rear building on the Property was occupied as a garage, and was not occupied as a dwelling in 1954 at the time the Subdivision Control Law became effective in Scituate. See infra.

15. The rear building on the Property was occupied as a dwelling more or less continuously from the acquisition of the Property by the Henrys in 1975 until 2001. From 2001 until 2011, when the Henrys moved into the rear building, it was occupied intermittently as an extension of the Henrys’ home in the main dwelling on the Property.

The ANR Plan

16. In July, 2011, the Henrys submitted to the Scituate Planning Board, pursuant to G. L. c. 41, §81P, a plan believed not to require approval under the Subdivision Control Law (“Approval Not Required plan” or “ANR plan”), proposing to divide the Property into two lots: Lot 1, with the single-family dwelling on the front portion of the Property, and the other, to be known as Lot 2, to contain the “existing dwelling” in the former garage. [Note 11]

17. Lot 1 was proposed to contain 12,392 square feet of land, and have 84.94 feet of frontage and 84.94 feet of width (except at the rear where it would have 49.47 feet of width).

18. Lot 2, improved by the former garage, now referred to as the “carriage house”, was proposed to have 3,675 square feet of area, 15.06 feet of frontage on Gannett Road, and to have at no point more than 50.53 feet of width.

19. The ANR plan contained a note as follows: “Planning Board endorsement of this plan is not a determination as to conformance with the Town of Scituate Zoning By Laws.”

20. The Planning Board endorsed the ANR plan on August 11, 2011. The Planning Board also made a finding that “the structures (on the Property) existed prior to the adoption of the Subdivision Control Law”. [Note 12]

21. As approved by the Planning Board by its endorsement of the ANR plan, Lot 1, containing the existing single-family dwelling, did not meet the then-current requirements of the Bylaw with respect to lot frontage or lot width.

22. As approved by the Planning Board by its endorsement of the ANR plan, Lot 2, containing the carriage house/garage, did not meet the then-current requirements of the Bylaw with respect to minimum lot area, lot frontage or lot width.

23. The ANR plan, as endorsed by the Planning Board on August 11, 2011, was not appealed. [Note 13]

24. As of the date of trial of this action, the Henrys had not caused the ANR plan to be recorded at the registry of deeds. [Note 14]

The Board’s Approval of a Special Permit/Section 6 Finding

25. On July 28, 2011, the Henrys submitted an application for a “Special Permit/Finding” to the Board seeking permission to raze the existing single-family dwelling on the not-yet- approved Lot 1 and to replace it with a larger single-family dwelling.

26. The existing dwelling on the front portion of the premises (now Lot 1) has a gross floor area of 3,250 square feet. The new dwelling proposed to replace the existing building would have a gross floor area of 3,850 square feet. [Note 15]

27. The new dwelling, on the proposed (and subsequently Planning Board-approved) Lot 1, as shown on the ANR plan, would meet all setback and other dimensional zoning requirements but, as noted above, the lot itself was acknowledged in the application to be “nonconforming” with respect to lot frontage and “lot width thru the dwelling”. [Note 16]

28. The Board held a hearing on the Henrys’ application on August 18, 2011, voted to approve the Henrys’ application, and issued a written decision dated and filed with the town clerk on September 14, 2011.

29. In its written decision, the Board found that “both the lot and both existing single family dwellings, known as and numbered 8 and 8A Gannet Road pre-exist the adoption of subdivision control in Scituate and are nonconforming to the Bylaw,” and that “the proposal does not increase the nonconforming nature of the existing single family dwelling and is not substantially more detrimental to the neighborhood than the existing nonconformity.” [Note 17]

30. The Board, in its decision, described the Property as a lot with 16,113 square feet of lot area and 100 feet of frontage, but noted and discussed in its decision the approval by the Planning Board of the ANR plan and considered its decision in light of the representations by the Henrys that the reconstructed dwelling was proposed to be located on Lot 1, as approved by the Planning Board, with 84.9 feet of lot frontage and lot width.

31. The Board made specific findings that the proposed reconstructed dwelling, as proposed on Lot 1, would “not adversely affect the neighborhood, nor create any undue nuisance or hazard to vehicles or pedestrians”, and voted unanimously to issue a special permit and make a finding pursuant to G. L. c. 40A, §6 authorizing the proposed razing and reconstruction of the dwelling on Lot 1.

32. On October 4, 2011, the plaintiffs filed a timely appeal of the Board’s decision pursuant to G.L. c. 40A, §17.

DISCUSSION

STANDING

As abutters to the Property, the plaintiffs enjoy a rebuttable presumption that they are aggrieved persons entitled to challenge the grant of the special permit by the Board, pursuant to G. L. c. 40A, §17. Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). The Henrys have challenged the plaintiffs’ standing, contending that they are not aggrieved persons. “If standing is challenged, the jurisdictional question is decided on ‘all the evidence with no benefit to the plaintiffs from the presumption.’” Marashlian, supra, at 721, citing, Marotta, supra, at 204. The party challenging the plaintiffs’ presumption of standing as an abutter can do so “by offering evidence ‘warranting a finding contrary to the presumed fact.’” 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass. 692 , 700 (2012), quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). “If a defendant offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations.” 81 Spooner Road, LLC, supra, at 701. Following rebuttal of the presumption by a defendant, plaintiffs have “the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence” of the construction approved by the special permit. Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 120 (2011). The facts offered by the plaintiff must be more than merely speculative. Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008). On the other hand, if a defendant “fails to offer evidence warranting a finding contrary to the presumed fact, the presumption of aggrievement is not rebutted, the abutter is deemed to have standing, and the case proceeds on the merits.” 81 Spooner Road, LLC, supra, at 701.

Although the Henrys contest the plaintiffs’ standing, they offered little, if any, evidence tending to rebut the plaintiffs’ presumption of standing. Other than inconclusive testimony offered to show that lighting, both exterior lighting and from headlights, would not change, the defendants elicited no testimony attempting to address the issue of injury to the plaintiffs in the use of their property. [Note 18] Plaintiff Evelyn Henry, in addressing the issue of exterior lighting, professed no actual knowledge, only an assumption, that proposed new lighting would not affect the plaintiffs. [Note 19]

In arguing that they have rebutted the plaintiffs’ presumption of standing, the Henrys focus on the perceived inadequacy of the plaintiffs’ own testimony as to their aggrievement, rather than on evidence presented by them, either directly or through cross-examination, to rebut the presumption. However, the plaintiffs do not have the burden of offering evidence to support their standing until the Henrys have offered sufficient credible evidence to rebut the plaintiffs’ presumption that they are persons aggrieved. I find that the Henrys have failed to offer sufficient evidence to rebut the presumption, thereby leaving the presumption intact. Accordingly, I find and rule that the presumption that the plaintiffs, who own and reside on property abutting the subject property, are persons aggrieved, has not been rebutted. Therefore, the plaintiffs are deemed to have standing, and the case will be decided on the merits.

STANDARD OF REVIEW

The court’s inquiry in reviewing a decision of a board of appeal granting zoning relief is a hybrid requiring the court to find the facts de novo¸ and, based on facts found by the court, and not those found by the board, to affirm the board’s decision unless it was “based on a legally untenable ground, or was unreasonable, whimsical, capricious, or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). This is a two-part inquiry requiring the court to first determine whether the board’s decision was based on a legally untenable ground. A legally untenable ground is a “standard, criterion, or consideration not permitted by the applicable statutes or by-laws”. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Only after determining that the decision was not based on a legally untenable ground does the court consider, on a more deferential basis, “whether any ‘rational view of the facts the court has found supports the board's conclusion…’” Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 453 (2009), quoting Britton, supra, at 75.

The central factual question in this case is whether the rear building at the Property was occupied as a dwelling at the time the Subdivision Control Law became effective in Scituate in 1954. Only if I find that the rear building on the Property was a dwelling in 1954 do I reach the central legal issue in this case: whether, if the rear building was in fact occupied as a dwelling in 1954, that fact gives sufficient zoning protection to the Property as a lawful prior nonconforming use so as to permit the razing and reconstruction of the single-family dwelling on Lot 1, the front portion of the Property, without the need for a variance from the lot frontage and lot width provisions of the Bylaw.

THE REAR BUILDING ON THE PROPERTY

Establishing that the rear building on the Property was occupied as a dwelling at least as far back as 1954 is critical to the Henrys’ case because Section 610.3 of the Bylaw offers lawful nonconforming use status to subdivided lots not meeting certain dimensional requirements of the Bylaw, provided that each of the resulting lots already was the site of a dwelling “when the Subdivision Control Law went into effect in the Town of Scituate”, which the parties have stipulated was 1954. The Henrys offered the testimony of Fred Dauphinee and contemporaneous assessing records in support of their contention that the rear building on the Property was occupied as a dwelling in 1954.

Fred Dauphinee, a witness not listed on the Henrys’ list of witnesses in the pre-trial memorandum, was permitted to testify for the limited purpose of authenticating two photographs marked as Exhibits 41B and 41C for identification, and was expressly not permitted to testify as to the use of the rear building. Transcript, Vol. I, p. 198. To the extent he testified beyond the scope of his permitted testimony (“We know there were people living there.” – Transcript, Vol. I, p. 205, also see p. 210), such testimony is stricken. However, even without striking this testimony, I do not credit Mr. Dauphinee’s conclusion that people were living in the rear building in 1950. Mr. Dauphinee testified as to his observations in 1950, when he was nine years old. [Note 20] Mr. Dauphinee’s observations were limited to seeing people outside on the Property, who may have been living in the single-family dwelling on the front of the Property. He did not testify that he knew the people he observed on the Property or that he had any way to actually know if they were living in the rear building. While he may have assumed that the people he observed lived in the rear building, he offered no direct testimony as to observations requiring or even reasonably supporting such a conclusion.

The Henrys also offered as evidence that the rear building was occupied as a dwelling in 1954, disparities in the assessed values of the garage on the Property as opposed to the assessed values of other garages in the neighborhood. The assessor’s annual valuation sheets upon which the Henrys rely (admitted collectively as Exhibit 11) list a garage as present at the Property, in addition to a house, for each year from 1945 through 1965. There is no record for 1966; for 1967 through 1969 the second building at the Property is listed only as “BLDGS”, presumably meaning “building”; and from 1970 through 1972, the designation for the second building on the Property is “G”, presumably for “garage”. It is only beginning in 1973 that the second building on the Property is listed in the assessor’s records as a “DWLG”, or “dwelling”. The assessed value of the second building, as listed as a garage, was $750 prior to 1950. In 1950, the assessed value of the garage jumped to $1200, while the assessed values of other garages and barns shown on the same pages of the assessor’s valuation lists remained as low as $100 to $350.

I do not credit this evidence as sufficiently probative of whether the garage on the Property was actually occupied as a dwelling. [Note 21] For one thing, the pages of the assessor’s valuation sheets admitted into evidence only offer a small sample, showing only the other garages that happened to be on the same valuation sheet page as the Property, when presumably there were hundreds of garages with which to compare the valuation of the garage on the Property. Without knowing anything else about those properties, it is impossible to assess whether it is reasonable to compare them to the rear building on the Property, and it is certainly not reasonable to draw a conclusion that the Property had been converted from a garage to a dwelling simply on the basis of an increased valuation. Such an increase could have been based on a myriad of other factors, including renovation of the building as a garage, without changing its occupancy. With no corresponding building permit or other evidence to corroborate or explain the evidence of the increased valuation, it is unreasonable to draw a conclusion that the garage had been converted to a dwelling, and I decline to do so.

Furthermore, the assessor’s records continued to refer to and list the building as a garage, despite the increased valuation, until at least 1965. If the assessor had increased the valuation of the garage because it was converted into a dwelling, the assessor likely would have also changed the designation of the building from “garage” to “dwelling”, as was done for later years. The continued listing of the building as a “garage”, and the failure to list it as a house or a dwelling, is better and more convincing evidence of whether it remained a garage or was converted to a dwelling, than is the unexplained comparison of valuations with other garages. See Proposed Mass. R. Evid. 803(7) (“The absence of an entry in records of regularly conducted activity…is admissible for purposes of proving the nonoccurrence of an event”, in this case, the nonoccurrence of the conversion of the building from a garage to a dwelling).

The Henrys also offer in support of their argument that the rear building had been converted to a dwelling by 1954, a 2011 assessor’s field card (Exhibit 8, sixth page) that indicates a second dwelling on the Property with an “EYR”, or “effective year”, of 1947. I do not credit this evidence as probative of the existence of a second dwelling on the Property as of 1947 because it is not a contemporaneous record of the fact for which it is offered, and it is contradicted by the assessor’s contemporaneous records (Exhibit 11), which list the second building on the Property as a garage consistently from 1945 through 1965.

Similarly, there is a handwritten notation on an earlier assessor’s field card indicating the existence of “2 rooms & bath above the gar.”, but this also is not a contemporaneous record of the offered fact, there is no evidence of when this entry was made, and therefore, there is no way to conclude based on this document when such use of the garage may have commenced. [Note 22] The notation “58 – 63” is circled just below the two rooms above garage notation, but it is unclear if these numbers refer to the notation above it, and it is unclear whether this notation means “1958 – 1963”. Even it did, and was accepted as such, it would only determine that the garage was partially converted to a dwelling sometime after the crucial date of 1954, and, without evidence of a variance or other zoning approval, would be evidence that the garage was converted illegally, since the presence of two dwellings on one lot was prohibited by the Bylaw starting in 1956.

Accordingly, I find and rule that the rear building on the Property remained a garage as of 1954, and that the Henrys have failed to sustain their burden of proving that the rear building on the Property was occupied as a dwelling when the Subdivision Control Law became effective in Scituate in 1954.

SECTION 610.3 OF THE BYLAW

The parties have offered vastly different interpretations of Section 610.3 of the Bylaw, with respect to whether it offers lawful prior nonconforming to the Property. However, under either interpretation, the protections offered by Section 610.3, whatever their extent, do not come into play unless the buildings on each of the lots resulting from the subdivision of the Property were both dwellings in existence in 1954, when the Subdivision Control Law became effective in Scituate. Having found that the rear building on the Property was not a dwelling in 1954, I do not reach the question whether Section 610.3 includes protection for nonconformity of lot width and lot frontage, or only for setbacks and lot area.

THE SECTION 6 FINDING AND SPECIAL PERMIT

I also do not reach the question whether the Board could have properly concluded within the scope of its lawful discretion that the proposed razing and reconstruction on Lot 1 of the Property would not be more detrimental to the neighborhood than the existing nonconformity. This is because I find that the Board had no authority to grant a special permit or finding pursuant to G. L. c. 40A, §6 in the absence of a variance for lot width and lot frontage.

A zoning board of appeals may not grant an extension to a nonconforming use in the absence of a dimensional variance if the proposed extension creates new dimensional violations of the zoning bylaw. Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364-365 (1991). The introduction of a new nonconformity requires the issuance of a variance, and not merely a finding that the new nonconformity is not more detrimental to the neighborhood. Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014).

In Deadrick, the new nonconformity being proposed on an existing nonconforming lot was additional height to be added to the proposed new structure, exceeding the allowed height under the local bylaw. In the present case, the new nonconformity is lot frontage and lot width that do not comply with the 100-foot requirements of the Bylaw, both new nonconformities created as a result of the division of the lot by the ANR plan in 2011. The lot on which the proposed new dwelling is to be constructed, as created by the approval of the ANR plan in July, 2011, [Note 23] did not conform to the then-current zoning requirements for lot frontage and lot width, thus affording the resulting two new lots no protection under G. L. c. 40A, §6 because they were not in conformity with the Bylaw at the time they were created, unless given that protection by Section 610.3 of the Bylaw.

The division of the Property pursuant to G. L. c. 41, §81L and §81P, based on the existence of a building on each resulting lot, did not in itself give the resulting lots any zoning protection. Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795 , 802 (2015) (“[N]ew nonconformities created by the division of land…required a variance”). Since, as is noted above, Section 610.3 of the Bylaw is not available to give the new Lot 1 protected nonconforming status, a variance from the lot frontage and lot width requirements of the Bylaw was required before the Board could lawfully consider a special permit for the construction of a new dwelling on Lot 1 of the Property.

CONCLUSION

For the reasons stated above, the decision of the Board granting a special permit and finding pursuant to G. L. c. 40A, §6, allowing the razing of the existing dwelling on Lot 1 of the Property and the construction of a new dwelling, was based on a legally untenable ground, exceeded the authority of the Board, and is hereby ANNULLED.

Judgment accordingly.