ROMA, III LTD v. ALAN BATTISTELLI, FEDERICK C. FRITHSEN, LARS-ERIK WIBERG, MICHAEL BACE, and TACY D. SAN ANTONIO, as they are MEMBERS of the TOWN OF ROCKPORT BOARD OF APPEALS, and YANKEE CLIPPER, LLC.

Procedural History

On March 18, 2015, Roma III, Ltd. (Roma) filed its complaint under G.L. c. 40A, § 17, appealing a decision of the Town of Rockport Board of Appeals (Board), dated February 26, 2015 and filed with the Rockport Town Clerk on March 2, 2015 (Decision), granting a special permit to Yankee Clipper, LLC (Yankee Clipper). The case management conference was held on May 8, 2015. Yankee Clipper filed its answer on July 3, 2015, and on November 3, 2015, filed its Waiver of Affirmative Defense of Settlement.

On December 29, 2015, Roma filed Plaintiff's Motion for Summary Judgment, Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment (Pl. Mem.), Statement of Undisputed Material Facts in Support of Plaintiff's Motion for Summary Judgment (Pl. SOF), Statement of Legal Elements in Support of Plaintiff's Motion for Summary Judgment, and Land Court Rule 4 Index of Exhibits (Pl. Exh.). On February 5, 2016, Yankee Clipper filed Yankee Clipper's Opposition to Plaintiff's Motion for Summary Judgment, Memorandum in Support of Yankee Clipper's Opposition to Plaintiff's Motion for Summary Judgment, Defendant's Response to Plaintiff's Statement of Undisputed Material Facts (Def. Resp.), and Yankee Clipper, LLC's Statement of Additional Undisputed Material Facts (Def. SOF). On February 16, 2016, Roma filed Plaintiff's Reply Memorandum of Law in Support of Its Motion for Summary Judgment (Pl. Reply Mem.), Plaintiff's Response to the Defendant's Statement of Additional Undisputed Material Facts (Pl. Resp.), Plaintiff's Supplemental Land Court Rule 4 Appendix of Exhibits (Pl. Supp. Exh.), Plaintiff's Motion to Strike, and Plaintiff's Memorandum of Law in Support of Motion to Strike.

The court heard Plaintiff's Motion for Summary Judgment and Plaintiff's Motion to Strike on February 19, 2016, taking the motions under advisement and giving the parties leave to file supplemental affidavits and briefs. On May 31, 2016, Yankee Clipper filed Defendant's Supplemental Memorandum in Support of Yankee Clipper's Opposition to Plaintiff's Motion for Summary Judgment (Def. Supp. Mem.). On August 9, 2016, Roma filed the Expert Affidavit of Norman R. Dotti, PP, PE (Dotti Aff.). This Memorandum and Order follows.

Plaintiff's Motion to Strike

Roma has moved to strike paragraphs 1, 2, 18, 19, and 20 of Yankee Clipper LLC's Statement of Additional Undisputed Material Facts on the grounds that these factual statements are supported only by reference to the Decision. On a motion for summary judgment, the undisputed facts must be supported by admissible evidence. Mass. R. Civ. P. 56(e). Roma argues that the Decision is not admissible evidence in support of these facts because an appeal of a zoning decision is de novo, G.L. c. 40A, § 17, and the findings of the municipal board therefore are given no evidentiary weight. See, e.g., Wendy's Old-Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381 (2009); Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999); Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928 , 931 (1983).

The court agrees. To the extent these paragraphs are statements of fact that are supported only by reference to the Decision, they must be struck. Each paragraph is examined in turn.

Paragraph 1 states: "The Yankee Clipper Inn is a permitted commercial business in a residential district because it was established prior to the enactment of Town of Rockport's Zoning Bylaw and is therefore ‘grandfathered.'" The only reference is to the Decision. This is less a statement of fact than a conclusion of law that goes to the legal analysis in this motion; paragraph 1 will not be treated as a fact.

Paragraph 2 states: "Parts of the commercial aspect of the inn are a restaurant and a function hall." This is a statement of fact, and is solely supported by reference to the Decision. Paragraph 2 will not be struck, however, because it simply restates paragraph 11 of the complaint, which Yankee Clipper admitted, therefore making it an undisputed fact.

Paragraph 18 states: "The Rockport Board of Appeals found that the site for the cooler is an appropriate location." This statement is supported solely by reference to the Decision. Paragraph 18 will not be struck because it merely states part of what the Decision says; it is not and will not be taken as evidence that the Decision is correct.

Paragraphs 19 and 20 need not be set forth. Each is a statement of fact supported solely by the Decision. Paragraphs 19 and 20 are struck.

Standard for Summary Judgment

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed or admitted for the purpose of summary judgment:

1. Plaintiff Roma is a Florida Limited Partnership with a principal place of business at 5100 West Lemon Street, Suite 311, Tampa, FL. Pl. SOF, ¶ 1, Def. Resp., ¶ 1.

2. Defendant Yankee Clipper is a Massachusetts limited liability company with a principal place of business at 127 Granite Street, Rockport, MA. Pl. SOF, ¶ 2; Def. Resp., ¶ 2.

3. Roma is the owner of the real property located at 129 Granite Street, Rockport, MA (Roma Property). Pl. SOF, ¶ 3; Def. Resp., ¶ 3.

4. The Roma Property consists of 1.62 acres of oceanfront property on which a residence is currently under construction. Pl. SOF, ¶ 4; Def. Resp., ¶ 4.

5. Yankee Clipper is the owner of the property directly abutting the Roma Property to the South, at 127 Granite Street, Rockport, MA (Yankee Clipper Property). Pl. SOF, ¶ 5; Def. Resp., ¶ 5.

6. The Roma Property and the Yankee Clipper Property are located in the same Residential A Zoning District (RA District) under the Town of Rockport Zoning Bylaw (Bylaw). Pl. SOF, ¶ 7; Def. Resp., ¶ 7.

7. Yankee Clipper currently operates the Yankee Clipper Inn (Inn) on the Yankee Clipper Property from an 8,700 square-foot, three-plus story building that includes eight bedrooms and a function room (Inn Building). Pl. SOF, ¶ 6; Def. Resp., ¶ 6; Def. SOF, ¶ 2.

8. According to § III.B of the Bylaw, the Table of Permitted Uses, the Inn is not an allowed use in an RA District. The Inn is a lawful, preexisting, nonconforming use in the RA District. Pl. SOF, ¶ 8; Def. Resp., ¶ 8; Pl. Exhs. A.2-A.3.

9. Under § IV.B of the Bylaw, the Table of Dimensional Regulations, 15 feet is the required side yard setback in an RA District. Pl. SOF, ¶ 9; Def. Resp., ¶ 9; Pl. Exh. A.2.

10. The Inn Building is a preexisting nonconforming structure. There is an extension of the Inn Building (Inn Extension) that intrudes into the side yard setback to within a few feet of the shared boundary line with the Roma Property, in violation of the 15 feet setback requirement in the Bylaw. Pl. SOF, ¶¶ 9-10; Def. Resp., ¶¶ 9-10;Pl. Exhs., A.3-A.4, C at p. 35; Pl. Mem., at p. 6.

11. Around 2008, Yankee Clipper installed a pre-fabricated walk-in cooler structure that was attached to the Inn Building (Cooler Addition). Pl. SOF, ¶ 11; Def. Resp., ¶ 11.

12. The Cooler Addition was added onto the northerly side of the Inn Building within a few feet of the Inn Extension and adjacent to the Roma Property. The Cooler Addition extends about three feet into the 15-foot required side yard setback under the Bylaw, approximately 13 feet from the Roma Property line. Pl. SOF, ¶ 12; Def. Resp., ¶ 12; Pl. Exhs., A.3, B at p. 98; Def. SOF, ¶ 8; Pl. Resp. ¶ 8.

13. It is disputed whether a storage shed attached to the Inn Building ever existed and whether it stood in the same footprint as the location of the Cooler Addition for over ten years before it was allegedly demolished in 2008. However, if it existed, it is deemed admitted for the purposes of summary judgment that this shed was built more recently than 1951. Def. SOF, ¶¶ 3- 5, 8, 11; Pl. Resp., ¶¶ 3-5, 8, 11; Pl. Exh. C at pp. 49-52, 66; Pl. Mem. at p. 9.

14. A professional site plan, dated December 29, 2000 and filed at the Essex County Registry of Deeds (registry) at Book 11137 Page 508, does not indicate the existence of a shed or any other structure where the Cooler Addition now stands. Pl. Supp. Exh., A.1.

15. At the time the Cooler Addition was installed, the Yankee Clipper mistakenly believed that a building permit had been issued for its installation. Def. SOF, ¶ 6; Pl. Resp., ¶ 6.

16. On December 10, 2014, at the request of Roma, the Town of Rockport Building Inspector (Building Inspector) asked the Yankee Clipper to seek zoning relief for the installation of the Cooler. Yankee Clipper had not previously sought a building permit or zoning relief for the Cooler Addition prior to its installation. Def. SOF, ¶ 7; Pl. Resp., ¶ 7; Pl. Exh., C at p. 54; Pl. Supp. Exh., A.1.

17. On January 10, 2015, Yankee Clipper filed a building permit application with the Town of Rockport Building Department for the Cooler Addition, which the Building Inspector denied. Pl. Supp. Exh., A.1.

18. On or about January 25, 2015, Yankee Clipper filed an application (Application) with the Board appealing the Building Inspector's denial of a building permit and alternatively seeking a special permit for the Cooler Addition. The Application sought to legalize the existing 16' x 7'9" walk-in cooler. Pl. SOF, ¶ 13; Def. Resp. ¶ 13; Pl. Exh. A.3.

19. Section I.D.2(b) of the Bylaw provides that:

The Board of Appeals may grant special permits to extend the time and authorize the enlargement, change or alteration of a nonconforming use or a nonconforming building provided that:

(1) Such extension, enlargement, change or alteration shall not be substantially more detrimental to the neighborhood than the existing use;

(2) Any proposed addition within a required setback shall be no closer to the lot line than the existing nonconforming structure. This provision does not apply to one and two-family structures, but does apply to non-residential structures and residential buildings of more than two units.

Pl. Exh. A.2

20. A public hearing was held by the Board on February 24, 2015 where the Board voted to grant Yankee Clipper a special permit making the Cooler Addition a lawful non- conforming structure. A formal written decision memorializing the proceeding was issued on February 26, 2015, and filed at the Rockport Town Clerk's Office on March 2, 2015 (Decision). Pl. SOF, ¶¶ 14-16; Def. Resp., ¶¶ 14-16; Pl. Exh. A.6.

21. In the Decision, the Board stated that their allowance of the Cooler Addition and grant of the special permit was made pursuant to § I.D.2(b) of the Bylaw. The Board found that the Cooler was "no closer to the lot line than an already existing structure, the noise expected to be produced by the cooler will not be nuisance or detriment to the neighborhood and is in harmony with the general purpose and intend of the Zoning Bylaw." Pl. Exh. A.6.

22. On March 18, 2015, Roma filed its complaint under G.L. c. 40A, § 17, appealing the Board's Decision granting the special permit.

23. Roma asserts that the Cooler Addition negatively impacts his property due to its significant noise, fire safety concerns, aesthetics, and the increased density along the property line. Pl. Reply Mem. at pp. 11-16; Pl. Exhs. A.3, B at pp. 50-53, 86-89, 99-100, 109-10.

24. There is noise emanating from either the Cooler Addition or an exhaust fan on the Yankee Clipper Property in the vicinity of the Cooler Addition. Def. SOF, ¶¶ 13-16; Pl. Resp., ¶¶ 13-16; Pl. Exhs., B at pp. 86-89, C at p. 61.

25. The Cooler Addition is out of warranty. Pl. Exh. C at p. 53.

Discussion

I. Standing

In order to have standing to challenge the Decision granting a special permit to Yankee Clipper, Roma must be a "person aggrieved" by the Decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). Persons entitled to notice under G.L. c. 40A, § 11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). The Roma Property abuts the Yankee Clipper Property, and, therefore, Roma has a presumption of standing.

In the zoning context, a defendant can rebut an abutter's presumption of standing at summary judgment in two ways. First, the defendant can show "that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. Second, "where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. at 703. The "defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis." Id., citing Kenner, 459 Mass at 119–120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 23–24 (2006). A defendant need not present affirmative evidence that refutes a plaintiff's basis for standing; "it is enough that the moving party demonstrate by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury." Id., quoting Standerwick, 447 Mass. at 35; Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate." 81 Spooner Road, LLC, 461 Mass. at 703 n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519–521 (2011).

Roma alleges that the Cooler Addition infringes on his legally protected interests because it is a fire hazard, creates significant noise, and increases density in a way that is aesthetically displeasing and reduces privacy. Each of these concerns invokes an interest protected by the Bylaw and is supported by some evidence, largely in the form of Mr. Roma's testimony, and each is discussed in turn. Yankee Clipper has failed to rebut Roma's standing on at least two of these grounds.

Mr. Roma was concerned that the Cooler, because it is out of warranty, has an increased risk of catching fire and spreading the fire to the Roma Property. Fire safety interests are protected by both the Zoning Act and the Bylaw. St. 1975, c. 808 § 2A (zoning objectives include "to secure safety from fire, flood, panic and other dangers"); Bylaw § I.A. (Bylaw intended to "promote the health, safety . . . and welfare of the townspeople"). Leaving aside whether Mr. Roma's testimony is sufficient to support this claim of impact, Yankee Clipper has produced evidence to rebut this claim in the form of the Affidavit of Steven R. Stafford, PE, attached to its Supplemental Memorandum. Def. Supp. Mem., Exh. Z.

Mr. Roma testified in his deposition that the Cooler makes noise that can be heard on the Roma Property. Pl. Exh. B at pp. 86-89. Noise is also a protected interest under the Bylaw. Bylaw § XII.C.7(b). Yankee Clipper argues that Mr. Roma's lay testimony coupled with his use of a noise meter on his phone is insufficient to establish that the Cooler makes noise. Yankee Clipper is incorrect for two reasons. First, Roma has filed the Expert Affidavit of Norman R. Dotti (Dotti), PP, PE, in which Dotti testifies that the Cooler's noise does have a measurable impact. More important, even without Dotti's affidavit, Roma's own lay deposition testimony on the exhaust fan is sufficient to support his presumption of standing based on noise impacts. See, e.g., 81 Spooner Road, LLC, 461 Mass. at 704-705 (no need for expert testimony as to density impact); Marashlian, 421 Mass. at 722-723 (no need for expert testimony as to impact of loss of street parking spaces); Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 759-760 (2010) (expert testimony unnecessary to demonstrate loss of light and air from building to be constructed five feet from plaintiff's building); Coco Bella LLC v. Hopkinton Bd. of Appeals, 24 LCR 208 , 210-211 (2016), appeal pending, no. 2016-P-0999 (no expert testimony required for noise impacts). Roma having established a presumption of standing based on noise, Yankee Clipper is obligated to come forward "with credible affirmative evidence that refutes the presumption," preferably in the form of "affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis." 81 Spooner Road, LLC, 461 Mass. at 703. This Yankee Clipper has failed to do. It has presented no noise studies from a sound engineer or any other evidence that Roma's noise concerns are unfounded or de minimis. The only evidence in the record that Yankee Clipper could possibly point to is its principal's deposition testimony that the "unit is quiet" and his statement that he has a sound study that has not been made part of the summary judgment record. Pl. Exh. C, at pp. 61-62. This unsupported statement cannot rebut Roma's presumption of standing based on noise impacts.

Finally, Roma claims impairment of aesthetics or neighborhood appearance from the increased density caused by the Cooler Addition encroaching into the side yard setback. While in general "concerns about visual impact of a structure do not suffice to confer standing," Martin v. Corp. of Presiding Bishop of Church of Jesus of Latter-Day Saints, 434 Mass. 141 , 146 (2001), when such claims of injury are tethered to a local bylaw's density and dimensional provisions, such an intrusion can confer standing. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519-521 (2011). The Court need not determine whether the Bylaw protects against visual impacts. Aesthetics are a protected interest in the Bylaw. Section I.A provides that one of the purposes of the Bylaw is "to improve and beautify the Town," and aesthetics are tethered to the Bylaw's dimensional regulations. The yard and setback requirements are intended to protect a zoning bylaw's interest in preserving open space (implying the ability to see through the open space), and regulating or reducing density. See id.; O'Connell v. Vainisi, 82 Mass. App. Ct. 688 , 691-692 (2012); Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 295-297 (2008); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 (2009). Encroachment into a setback causes harm based on increased density when the harm from the encroachment is "(1) not de minimis and (2) particularized to" them. Marhefka v. Zoning Bd. of Appeals of Sutton, 21 LCR 1 , 5 (2013). Roma has established presumptive harm based on increased density resulting from the construction of the Cooler Addition. Yankee Clipper has offered no evidence to rebut this presumption.

Roma has a presumption of standing as an abutter to the Yankee Clipper Property, and has presented evidence supporting claims of harm to interests that the Bylaw protects. Yankee Clipper has failed to rebut at least two of Roma's presumptive grounds for standing. "[W]hen a defendant fails to offer evidence warranting a finding contrary to the presumed fact [of aggrievement], 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, 461 Mass. at 701. As a matter of law, Roma has established its standing to bring this action.

II. Decision of the Board of Appeals

In an action brought pursuant to G.L. c. 40A, § 17, challenging the issuance of a special permit, the "court shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of the board . . . or make such other decree as justice and equity may require." Id. This review is described as "a ‘peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, quoting Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court is obligated to hear and find facts in the action de novo; that is, without giving weight to the facts found by the board, but rather assessing evidence presented by the parties. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012); see Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381 (no evidentiary weight given to board's actual findings). Applying those facts, the court must give deference to the board's legal conclusions and interpretation of its own zoning ordinance, and determine whether it has applied the ordinance in an unreasonable, whimsical, capricious, or arbitrary manner. Shirley Wayside Ltd. Partnership, 461 Mass. at 474- 475; Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382; Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999). The law sets a more rigorous requirement for findings that support a special permit approval than for a special permit denial. See Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 220 (1982); Shuffain v. Mulvehill, 14 LCR 311 , 313-314 (2006). [Note 1]

Roma maintains that the Board exceeded its authority in granting the special permit to Yankee Clipper after erroneously finding that it was not closer to the lot line than the existing nonconforming Inn Building and was not substantially more detrimental to the neighborhood. Roma contends that a variance was required to legalize the Cooler Addition since it was new construction extending a preexisting nonconforming structure. The initial inquiry is whether the Rockport Bylaw permits the Board to grant a retroactive special permit for the Cooler Addition.

General Law c. 40A, § 6 provides, in relevant part:

"[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun before the first publication or notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alternation of a structure. . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood."

Section 6 addresses the dispensation for the increase or exacerbation of an existing lawful nonconformity. The language of § 6 has been construed to mean that where a party seeks to extend or alter a lawfully nonconforming commercial structure and does not obtain a variance, "(1) the extensions or changes themselves [must] comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures." Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991); see Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795 , 799-800 (2015); Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 545 (2014).

In this case, there are two possible preexisting nonconforming structures: the Inn Building and the purported shed. Using either structure, the Cooler Addition would not comply with § 6 because the alteration does not comply with the dimensional requirements in the Bylaw. It is undisputed that the Cooler Addition extends into the side yard setback in violation of § IV.B of the Bylaw. Based solely on the provisions of G.L. c. 40A, § 6, Roma would be correct that Yankee Clipper needed a variance from the Bylaw's side yard setback requirements to install the Cooler Addition. Section 6, however, is not the end of the grandfathering analysis.

Section 6 provides a floor for protection of existing nonconforming structures and reserves to the municipality maximum control of such nonconformities. See Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 , 209 (1946); Blasco v. Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 39 (1991); Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 , 412-413 (1962). Courts have long recognized the ability of a municipality to grant broader protection for owners of nonconforming structures, uses, and lots beyond the protections offered in G.L. c. 40A, § 6. United States of America v. Wellfleet Zoning Bd. of Appeals, 17 LCR 784 , 787 (2009); see Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266 , 269 (2008); Luttinger v. Truro Zoning Bd. of Appeals, 11 LCR 72 , 75 (2003); Mohr v. Stroh, 21 LCR 249 , 250-51 (2013); DeSalvo v. Chatis, 1991 WL 11259380, at *3 (Land Ct. Sept. 11, 1991). In other words, changes or extensions to nonconforming structures that fail to satisfy the requirements of § 6 will only be permitted where the respective local ordinances or bylaws specifically allow for such an alteration. Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 729 (2005); see Shuffain, 14 LCR at 317. The question, then, is whether the Bylaw, in particular § I.B.2(b), allows for the alteration of lawful nonconforming nonresidential structures beyond the limits of G.L. c. 40A, § 6.

The Bylaw's terms "should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning." Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990); see Rando v. Bd. of Appeals of Bedford, 348 Mass. 296 , 297-98 (1965). "A zoning bylaw must be read in its complete context and be given a sensible meaning within that context." Dalbec v. Westport Zoning Bd. of Appeals, 16 LCR 672 , 674 (2008) citing Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 826 (1973). The court must also look to the intent of the local legislative body, which is controlling, and construe a bylaw's provisions to effectuate the municipality's intent in adopting the bylaw. King v. Zoning Bd. of Appeals of Chatham, 30 Mass. App. Ct. 938 , 940 (1991); Southern New England Conference Ass'n of Seventh-Day Adventists v. Burlington, 21 Mass. App. Ct. 701 , 709 (1986); Financial Corp. v. State Tax Comm'n, 367 Mass. 360 , 364 (1975) (stating that a court must construe a bylaw "in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated").

The intent of the Bylaw is determined by analyzing the terms, provisions, and subject matter to which it relates. Where the language of a zoning bylaw is clear and unambiguous, no further interpretation is necessary. Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 478 (1986); Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Tax'n, 363 Mass. 685 , 690 (1973); Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637 , 640 (2000). Nevertheless, "[i]t is a well-established canon of statutory construction that a strictly literal reading of a statute should not be adopted if the result will be to thwart or hamper the accomplishment of the statute's obvious purpose, and if another construction which would avoid this undesirable result is possible." Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106 , 113 (1995). "Bylaws should be interpreted in a way that avoids rendering other portions of the bylaw meaningless." Dalbec, 16 LCR at 674 quoting Trustees of Tufts College v. Medford, 415 Mass. 753 , 761 (1993); Adamowicz v. Ipswich, 395 Mass. 757 , 760 (1985).

Section I.D.2(b) of the Bylaw permits the granting of a special permit for an extension or alteration of a nonconforming structure when "(1) Such extension, enlargement, change or alteration shall not be substantially more detrimental to the neighborhood than the existing use; (2) Any proposed addition within a required setback shall be no closer to the lot line than the existing nonconforming structure." Pl. Exh. A.2. While the language of § I.D.2(b)(1) tracks the G.L. c. 40A, § 6 cognate, § I.D.2(b)(2) is an unambiguous, liberalized version of the statutory provision. See Murray, 22 Mass. App. Ct. at 478 ("It is settled that where the language of an enactment is clear and unambiguous it should be followed even if an injustice or hardship results." (citation omitted)). While § 6 does not allow for the issuance of a special permit for the extension of a nonconforming structure where the extension would violate the pertinent bylaw, § I.D.2(b)(2) allows a special permit to be granted in such situations—where an extension of a nonconforming structure is in violation of the setback requirements. The only limitation is that the extension not be any closer to the lot line than the preexisting nonconforming structure and that it not be "substantially more detrimental to the neighborhood" under § I.D.2(b)(1). Section I.D.2(b) of the Bylaw explicitly provides more liberal protections of extensions of nonconforming structures than required by G.L. c. 40A, § 6, which the Town of Rockport is authorized to do. If the Cooler Addition satisfies the two requirements of § I.D.2(b), it has satisfied the two-pronged standard set forth in Rockwood v. Snow Inn Corp., 409 Mass. at 364, and the Board acted rationally in granting Yankee Clipper's special permit.

A. The Cooler Addition is No Closer to the Lot Line Than Existing Nonconforming Structure

Though there is a dispute of fact regarding whether there was a shed, lawfully in existence and grandfathered under the Bylaw, in the proximate footprint of the now Cooler Addition, this fact is not material. Regardless of whether there was a shed where the Cooler now stands, it is undisputed that the Inn Building is a lawful nonconforming structure. The Cooler Addition is merely an extension or enlargement of that nonconforming building. Neither party claims the Cooler Addition extends closer to the shared lot line than does the Inn Extension, and the Board found that the Cooler Addition was no closer to the lot line than the "existing nonconforming structure." It does not increase the side yard setback violation. The Bylaw, thus, does allow the Board to grant such a special permit to Yankee Clipper, regardless of the existence or non-existence of the shed.

Roma argues that the Cooler Addition not only exacerbates the existing nonconforming nature of the Inn Building, but also creates a new nonconformity—a building in the side yard setback in an area that had previously been unoccupied by any structure, and thus requires a variance. See Rockwood, 409 Mass. at 364; Deadrick, 85 Mass. App. Ct. at 547 ("The addition of new nonconformities to a pre-existing nonconforming residential structure requires a variance."). [Note 2] However, the Bylaw distinguishes additions to preexisting nonconforming structures from new construction. Section IV of the Bylaw governs area and dimensional requirements generally, for all types of buildings and structures, including for new structures. While new structures that fail to comply with the dimensional requirements set forth in § IV.B require additional zoning relief in the form of a variance or special permit, § I.D.2 carves out an exception for new construction which is an extension of a nonconforming building. If the proposed construction is an enlargement of an existing nonconforming structure, § I.D.2(b) does not require further zoning relief other than a special permit.

Based on the evidence submitted in the special permit application and its interpretation of the Bylaw, the Board reached a legally tenable, reasonable conclusion that the Cooler Addition is an addition to the Inn Building rather than a new structure. See O'Connell v. Vainisi, 82 Mass. App. Ct. 688 , 693 (giving deference to the board of appeals' reasonable interpretation of its bylaws). The floor plan submitted as part of Yankee Clipper's application indicates that the Cooler Addition is only accessible via a doorway inside the preexisting structure. Pl. Exh. A.3. Because new, separate structures such as sheds or storage bins have no function without an external access point, it was reasonable for the Board to conclude that the Cooler Addition is part of the Inn. The cases relied on by Roma are inapposite to the present situation since the nonconformities in those two cases were different in kind, not an extension of a preexisting nonconformity. See Rockwood, 409 Mass. at 362 (adding a coverage nonconformity to preexisting setback nonconformity); Deadrick, 85 Mass. App. Ct. at 540 (adding a height nonconformity to preexisting dimensional and coverage nonconformities). The Board's decision in this respect was legally tenable because the Cooler Addition is an extension of the lawful preexisting setback nonconformity.

B. The Cooler Addition is Not Substantially More Detrimental

As long as there is evidence in the record that the Cooler Addition was not substantially more detrimental to the neighborhood, the Board had the authority to grant a special permit for the extension under § I.D.2(b) of the Bylaw. Roma alleges that the Board erred in finding that the impact from the Cooler Addition is not more detrimental than that caused by the preexisting nonconforming Inn Building because it has created increased noise and caused increased density along the shared property line. Yankee Clipper argues that the Board was correct in finding that the Cooler Addition is quiet and any noise is not significant enough to be a substantial detriment to the neighborhood. Def. SOF, ¶ 9. In the Decision, the Board found that the noise expected to be produced from the Cooler Addition "will not be a nuisance or detriment to the neighborhood and is in harmony with the general purpose and intent of the Zoning Bylaw." Pl. Exh. A.6. Though the Board offers little explanation for this finding, and did not address the Cooler's impact on density, there is ample evidence in the record to support the Board's decision as reasonable.

The Cooler Addition was installed in 2008. Until Roma became aware of its existence in 2015, he testified that he had never reported noise issues regarding the Cooler to management at the Yankee Clipper, despite making numerous other complaints regarding parking, noise from functions, and the number of guests staying at the Inn. Pl. Exh. B, pp. 86-87. When he finally did become aware of the Cooler, Roma did some noise testing using an application on his cellular phone. Roma testified that he conducted these tests while standing on the edge of his property line, closest to the location of the Cooler. He stated that he wasn't sure whether the noise he picked up on his phone was actually coming from the Cooler or from an exhaust fan in the nearby area. Id. at pp. 87-88.

In the spring of 2016, Roma retained Norman R. Dotti, PE, PP (Dotti), an acoustical engineer, to measure various sound levels on the Roma Property coming from the Yankee Clipper Property. Specifically, Dotti took measurements at two locations to assess sound from the Cooler Addition and the exhaust fan. Dotti Aff., ¶¶ 1-4. Standing at the shared boundary line, Dotti measured 63 dBA with only the fan in operation and 64 dBA with the Cooler and the fan in operation. Dotti then moved away from the shared boundary line and took a measurement of the ambient sound level, which was 42 dBA. Id. at ¶¶ 10-11. Dottie stated that there is a violation of State noise standards if the ambient noise subtracted from the source noise shows a difference of more than 10 dBA. Id. at ¶¶ 8, 13. According to Dotti, the Cooler is the primary source of the sound level above the ambient because "the rule of thumb" is that where there are two sound levels more than 10 dBA apart from the ambient noise, "the lower sound source contributes effectively nothing towards the total sound above ambient." Id. at ¶ 15. Thus, with or without the fan, Dotti attests that the Cooler violates State noise standards. Id. However, Dotti neglects to consider that even if the Cooler Addition were not there, the exhaust fan would still violate state standards by generating 63 dBA, 21 dBA above the ambient level. Giving deference to the Board's conclusion, Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, the difference between 63 dBA and 64 dBA is not "substantially more detrimental."

Evidence of the location of the Cooler and the many activities that occur at the Inn Building also support finding that the noise from the Cooler is kept at a minimum for the benefit of Yankee Clipper's own guests and those attending functions such as weddings, engagement parties, and conferences. Pl. Exhs. A.6, C, p. 33-34. Due to the fact that it is in Yankee Clipper's best interest to keep the noise generated from the Cooler to a minimum, that Roma did not notice any additional noise since the Cooler was installed in 2008, and given that Roma's expert measured an almost negligible difference between the sound generated by the Cooler and the exhaust fan compared to the ambient noise, it was not unreasonable and within the Board's discretion for it to conclude that any noise from the Cooler Addition is not more detrimental to the neighborhood.

Moreover, though Roma's unrebutted contentions as to the effect of increased density were sufficient to confer standing, there is no credible evidence that the Cooler Addition is substantially more detrimental due to the increased density along the Roma Property boundary. The Inn Extension and the Cooler Addition are the only two structures that extend into the side yard setback along the property line shared with Roma. The 16' by 7' 9" Cooler Addition is located adjacent to the Inn Extension, but not extending as far into the setback—only about two or three feet. Pl. Exh. A.4. These structures are downgrade from the Roma Property, located below a ledge located approximately along the boundary line. There are trees, bushes, and large boulders along the ledge at the property line in the vicinity of the Cooler Addition. Pl. Exh. B, pp. 89-91. While density is an interest protected by the Bylaw, where the evidence establishes that the increase is de minimis compared to the existing nonconformities, it can in no way be classified as "substantial." In light of this, it was rational for the Board to find that the Cooler Addition was not substantially more detrimental to the neighborhood and grant the special permit.

Conclusion

Entry of a summary judgment requires a showing not only of the absence of any issue of material fact, but also that the party is entitled to the judgment as a matter of law. Mass. R. Civ. P. 56(c). Although there are no material facts in dispute, the undisputed evidence, taken in the light most favorable to Yankee Clipper as the nonmoving party, does not warrant a finding that Roma is entitled to judgment as a matter of law. While Yankee Clipper has not cross-moved for summary judgment, "[s]ummary judgment, when appropriate, may be rendered against the moving party." Id. The Reporters' Notes to Mass. R. Civ. P. 56(c) explain that this provision "makes clear that in appropriate cases, summary judgment may be entered against the moving party. This is eminently logical. Because by definition the moving party is always asserting that the case contains no factual issues, the court should have the power, no matter who initiates the motion, to award judgment to the party legally entitled to prevail on the undisputed facts." Here the undisputed facts are sufficient to determine the issues presented and, as a result, this Court has the authority to render summary judgment against the moving party, Roma, and in favor of the nonmoving party, Yankee Clipper.

For the foregoing reasons, the Plaintiff's Motion to Strike is ALLOWED IN PART AND DENIED IN PART, and Plaintiff's Motion for Summary Judgment is DENIED. Pursuant to Mass. R. Civ. P. 56(c), summary judgment is entered in favor of Yankee Clipper. Judgment shall enter affirming the Decision and dismissing this action with prejudice.

SO ORDERED