DANIEL GATTINERI, TRUSTEE OF THE 15 WESTERN AVENUE REALTY TRUST v. PAUL MCGEARY, MELISSA COX, STEVEN LEBLANC, ROBERT STEWART, WILLIAM FONVIELLE, PAUL LUNDBERG, GREG VERGA, JOSEPH A. CIOLINO, and ROBERT WHYNOTT, AS THEY ARE MEMBERS OF THE CITY COUNCIL OF THE CITY OF GLOUCESTER and not individually.

There is a school of thought that it is better to ask for forgiveness than for permission, but in order render such a practice even remotely viable, one must at least try to make it appear as if one is actually asking for forgiveness. Plaintiff Daniel Gattineri attempts in this case to show that he obtained permission to build an addition to his building at 15 Western Avenue in the historic harborfront district of Gloucester, when in fact all he obtained was, in effect, an improper "nod and a wink" from an acting building inspector; and he faults the Gloucester City Council ("City Council") for not granting him forgiveness after his thirteen-year strategy of ignoring the lawful orders of the building inspector, occupying or renting a dwelling unit with no occupancy permit, and conducting dilatory litigation in Superior Court.

Plaintiff filed this G.L. c. 40A §17 appeal from a decision of the City Council denying his application for a modification of a special permit. Plaintiff alleges that the City Council had no rational basis for its decision, and instead denied his application in retaliation for his previous exercise of his right to appeal to Superior Court earlier decisions of the Gloucester Zoning Board of Appeals ("the "Board") concerning the same project.

In 2002, plaintiff's limited liability company enclosed a second floor deck of Unit 2 at 15 Western Avenue to create a bedroom over an enclosed porch, where only an open deck had been authorized, without first obtaining a modification of the special permits and variances issued to a previous owner two years earlier authorizing the renovation of the building and its conversion to multi-family use. While an acting building inspector informed plaintiff prior to construction that no modification of the special permit would be required, before construction was very far along, the new permanent building inspector informed plaintiff, his partner and their architect that a modification to the special permit would be required and that he proceeded with construction at his own risk. Plaintiff, utilizing his limited liability company, unsuccessfully appealed the building inspector's determination to the Board, and then filed three actions in Superior Court, challenging the decision that he required a modification of the special permit, the Board's denial of his subsequent application for modification, and the building inspector's denial of an occupancy permit for Unit 2. In a decision and judgments issued in 2006, the Superior Court upheld each of the decisions denying relief to the plaintiff. After years in which the plaintiff failed to perfect or pursue his appeals of the Superior Court decisions, while either personally occupying the unit in question or renting it out to tenants, plaintiff and the municipal parties entered into an agreement for judgment in 2015 in the still-pending Superior Court cases, presenting plaintiff with a final opportunity to apply to the City Council for a modification of the special permit it had issued in 2000, to approve the alterations made in 2002. In a decision dated October 27, 2015 and filed with the City Clerk on October 29, 2015, the City Council denied plaintiff's application for modification, and this appeal followed.

I took a view of the subject premises at 15 Western Avenue in Gloucester on June 21, 2016, and a trial was held before me on June 22, 2016. The parties submitted requests for findings of fact and rulings of law on September 6, 2016, following which I took the case under advisement. For the reasons set forth below, I find and rule that the City Council's decision was based on legally tenable grounds, was within the proper exercise of the City Council's discretion, and is AFFIRMED.

FACTS

Based on the facts stipulated by parties, the documentary and testimonial evidence admitted and trial, my view of the subject property, and my assessment as 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:

Pre-Dispute Property History

1. For approximately twenty years prior to 2000, Addison Procter House at 15 Western Avenue in Gloucester (the "Property") was abandoned and in serious disrepair. The Addison Procter house is a historic house in the Harbor Village neighborhood of Gloucester, possibly named for a ship's captain. The Property is located about a block from Gloucester Harbor, of which there are unobstructed views from the Property.

2. Constellation Corporation ("Constellation") bought the Property and mortgaged it to Danvers Savings Bank on January 27, 2000.

3. Constellation filed a petition with the Board seeking a special permit for open space per dwelling unit, and for variances for front, side, and rear yard setbacks, lot width, maximum building height, percent of vegetative cover and distance between buildings. The zoning relief sought before the Board was preliminary to an application to the City Council for a special permit authorizing an increase in the number of dwelling units at the Property from two to four. The petition was approved, and the Board's decision was filed with the City Clerk on March 16, 2000, and was not appealed.

4. Armed with the dimensional relief authorized by the Board, on March 24, 2000, Constellation applied to the City Council for a special permit ("Special Permit") to convert the existing two-family house into a multi-family dwelling with four units, with a total of seven bedrooms.

5. The City Council voted to approve the Special Permit, and on June 6, 2000, the City Council's decision granting the Special Permit was filed with the City Clerk. As approved, the Special Permit authorized a one-bedroom basement unit, and three, two- bedroom units. The approved plans authorized the enclosure of an existing porch on the first floor and its conversion to living space, and the construction of an open deck above the enclosed porch, to be used as a deck for Unit 2. The Special Permit was not appealed, and became final.

6. On June 28, 2000, a building permit for frame and interior renovations, structural and framework only, not finish, was issued to Constellation for the Property in accordance with the Special Permit.

7. On December 14, 2000, a building permit for interior/exterior remodeling as per the approved plans for windows, siding, and interior and exterior finish was issued to Constellation for the Property.

8. Constellation ran out of money while work was in progress, leaving about half of the work as authorized by the Special Permit unfinished, and Danvers Savings Bank purchased the Property at a foreclosure auction on November 12, 2001.

Ownership By Gattineri-Related Entities

9. Danvers Savings Bank sold the Property by a foreclosure deed to Waterfront Partners, LLC ("Waterfront") on December 27, 2001. Waterfront's members were Daniel Gattineri and Gary Raso.

10. At all times since, either the entire Property, or one, two, or all three of the condominium units at the Property have been owned by Waterfront, Gattineri personally, or other Gattineri-related entities.

11. On June 3, 2002, Waterfront executed a Master Deed for the Addison Procter House Condominium at the Property, establishing it as a three unit, seven bedroom condominium. The Master Deed was recorded with the Essex South District Registry of Deeds ("Registry") in Book 18786, Page 115.

12. By a unit deed dated June 10, 2002, recorded at the Registry on September 6, 2002 in Book 19194, Page 264, Waterfront deeded Unit 2 to Daniel Gattineri.

13. William Ware purchased Unit 3 from Waterfront on April 28, 2003, by a unit deed recorded at the Registry in Book 20682, Page 239.

14. A declaration of trust for the 15 Western Avenue Realty Trust was recorded with the Registry on July 2, 2003 in Book 21177, Page 181. Daniel Gattineri deeded Unit 2 to himself as Trustee of the 15 Western Avenue Realty Trust by a unit deed recorded with the Registry in Book 21177, Page 185).

15. On May 28, 2008, Linda Dalton purchased Unit 1 by a deed recorded with the Registry in Book 27805, Page 26.

16. On June 16, 2009, Daniel Gattineri, as Trustee of the 15 Western Avenue Realty Trust, conveyed Unit 2 to himself and his wife Catherine Gattineri, by a unit deed dated June 16, 2009.

17. On June 17, 2009, by a unit deed recorded with the Registry in Book 28697, Page 31, Daniel Gattineri and Catherine Gattineri re-conveyed Unit 2 to Daniel Gattineri, as Trustee of the 15 Western Avenue Realty Trust. A mortgage, condominium rider, and second home rider were also recorded for Unit 2.

18. On July 1, 2015, William Ware deeded Unit 3 to Frank Vinci as Trustee of the Unit Three Boulevard Realty Trust by a unit deed recorded with the Registry in Book 34187, Page 367. In purchasing the unit, Frank Vinci was acting as a straw for Daniel Gattineri, and purchased the unit using funds provided by Catherine Gattineri.

19. On October 20, 2015, Daniel Gattineri, as Trustee of the 15 Western Avenue Realty Trust, purchased Unit 3 from Frank Vinci for nominal consideration of $100. The deed was recorded with the Registry on November 17, 2015, in Book 34525, Page 490.

20. On November 17, 2015, Daniel Gattineri, as Trustee of the 15 Western Avenue Realty Trust, purchased Unit 1 from Linda Dalton, by a unit deed recorded with the Registry in Book 34525, Page 480. With this conveyance, plaintiff Daniel Gattineri had reacquired full ownership of the Property.

Use and Occupancy of Unit 2 at the Property

21. From 2004 through 2007, Daniel Gattineri and his wife Catherine Gattineri occupied Unit 2 as their summer residence.

22. On March 17, 2008, the City of Gloucester Health Department issued a Certificate of Rental Dwelling for Unit 2 despite the fact that no occupancy permit had ever been issued for Unit 2 by the building inspector. The Certificate was valid for two years from the date of issuance. Gattineri never attempted to renew the Certificate of Rental Dwelling after it expired, but continued to rent out Unit 2 for another five years.

23. On March 31 and July 31, 2008, an abutter, Brian Wall, notified building inspector William Sanborn ("Sanborn") that Unit 2 had been rented to one tenant in March and another beginning in July, despite there being no occupancy permit issued.

24. From March 2008 through part of July 2008, Ed Callaghan rented Unit 2 from the Gattineris.

25. For the remainder of July 2008 through December 2010, Cathy MacPherson rented Unit 2 from the Gattineris.

26. On August 27, 2008, Sanborn sent a letter to Gattineri ordering him to cease the rental of Unit 2, as there was no occupancy permit issued.

27. On August 12, 2009, Linda Dalton, owner of Unit 1, and Gary Dalton, sent Sanborn a letter complaining that Unit 2 was occupied by tenants, without an occupancy permit.

28. From January 2010 through February 2015, Joseph Luna rented Unit 2 from the Gattineris.

29. On October 15, 2010, Wall again contacted Sanborn regarding Unit 2's status, as the Unit still did not have an occupancy permit but had been rented out since March 2008 when the certificate of rental dwelling was issued.

30. On June 26, 2014, Sanborn issued an order requiring that the tenants of Unit 2 vacate within ten days, and that the unit remain unoccupied "until such time as the zoning violation is resolved." [Note 1]

31. On February 2, 2015, Joseph Luna vacated Unit 2 in accordance with a Northeast Housing Court judgment. Actions Leading to the Superior Court Litigation

32. After taking ownership of the Property in December, 2001, Waterfront sought to redesign the project as it had been approved by the City Council, reducing the number of units to three by eliminating the one-bedroom basement unit, increasing the number of bedrooms in Unit 2 to three, and by adding a bedroom in place of what was approved as an open deck over the first floor enclosed porch. The reason for enclosing the approved open deck with a third bedroom for Unit 2 was that Daniel Gattineri, one of the owners of Waterfront, and the present plaintiff, wanted to purchase Unit 2 for his own use, and he wanted a third bedroom in the unit. [Note 2]

33. Daniel Gattineri and Gary Raso, the two owners of Waterfront, along with their architect and their contractor, met with William Normand ("Normand"), the interim building inspector, and with David Soucy ("Soucy"), an acting assistant building inspector, on more than one occasion during January and February, 2002, including a meeting on February 27, 2002, to discuss the proposed changes. Mr. Normand informed Waterfront that he did not believe the proposed elimination of the basement unit and the addition of a bedroom for Unit 2 by enclosing the approved open deck on the second floor would require any modification of the existing zoning approvals. Any permission given by Normand or Soucy was verbal. No amended plans were submitted to the interim building inspector, to the City Council, or to the Board, nor were any amended plans approved; Waterfront did not apply for or receive any amendment to its building permit for the Property.

34. Daniel DiLullo ("DiLullo"), Waterfront's architect, sent a letter on February 28, 2002 to Soucy purporting to confirm that Waterfront would be proceeding with enclosing the existing deck to create a third bedroom for Unit 2. The proposed third bedroom would have a flat roof, would be lower than the roof of the existing building and would be lower than a height of thirty feet. This was the full extent of a description of the proposed changes. Again, no plans were submitted or approved, nor was the building permit amended, and there is no contemporaneous signoff by Normand or Soucy approving the changes described in DiLullo's letter. DiLullo's letter also purported to confirm similar verbal approval for a relocation of the eliminated basement unit to "an addition to be built on the west side of the existing building and connected to it by adjoining decks." This addition, unlike the bedroom for Unit 2, was never built. [Note 3]

35. Waterfront began construction at some point between February 28 and March 25, 2002.

36. On March 25, 2002, Virginia Bergmann, a member of the Board, issued a cease-and- desist letter to Waterfront, ordering it to cease all construction until a modified plan was submitted to the Board for approval. Normand informed Waterfront that the letter was beyond the authority of the Board and authorized Waterfront to disregard it.

37. By April 11, 2002, the structure of the new bedroom, in the location of the approved deck, had been framed, but was not weatherproof.

38. On April 11, 2002, Sanborn, the newly appointed building inspector, who became building inspector in April, 2002, met with Waterfront (Daniel Gattineri, Gary Raso, their attorney, and DiLullo) and informed them that the new bedroom was not authorized by the Special Permit, that they needed to obtain a modification of the Special Permit, and that if they proceeded with construction to weatherproof the structure, they did so at their own risk. [Note 4] Waterfront proceeded with work despite Sanborn's admonition. In an April 18, 2002 letter, followed up by a May 8, 2002 letter, Sanborn informed Waterfront that the construction of the additional bedroom over the approved deck was a substantial change from the work authorized by the original Special Permit, and that Waterfront needed to apply for an amendment to the Special Permit. [Note 5]

39. Waterfront appealed Sanborn's ruling to the Board.

40. Notwithstanding Sanborn's instruction to Waterfront that the new enclosure was not approved, at some point prior to the completion of the deck conversion, Sanborn allowed an electrical inspector to perform a rough inspection of the bedroom before insulation and sheet rock was to be installed, and the electrical inspector approved the work. I credit the building inspector's testimony that the electrical inspection and signoff was for the purpose of insuring the safety of the at-risk construction and was not to be construed as a change in his decision that the new bedroom was not authorized unless a modification to the Special Permit was granted. [Note 6]

41. On May 30, 2002, Sanborn issued a building permit to erect a detached garage to Waterfront for the property. This permit was later revoked before the start of construction.

42. By the end of May, 2002, the construction of the bedroom, in the location of the authorized open deck, was completed, but no occupancy permit was issued. The proposed deck had been on the second floor, over an approved enclosure of an existing roofed porch. As constructed, the new bedroom did not conform to the existing footprint of the building, but rather extended 12 to 18 inches past the existing wall of the now-enclosed porch below it. [Note 7]

43. On August 2, 2002, Sanborn sent a letter to Waterfront refusing to issue a certificate of occupancy for Unit 2. Waterfront appealed this refusal to the Board.

Appeals to Zoning Board of Appeals, and Superior Court Litigation

44. On June 27, 2002, the Board heard Waterfront's appeal of Sanborn's decision that the addition of the bedroom was a substantial change in the Special Permit requiring a modification of the Special Permit. In a decision issued July 25, 2002 and filed with the City Clerk on July 26, 2002, the Board sustained Sanborn's decision.

45. In a decision dated August 5, 2002 and filed with the City Clerk on August 7, 2002, the Board denied Waterfront's petition for a modification of the special permit and variances it had originally granted to Constellation.

46. In Waterfront Partners, LLC v. James Movalli, et al., Essex Superior Court, C.A. 02- 01549C, Waterfront appealed the Board's July 26, 2002 decision sustaining Sanborn's determination that Waterfront needed to obtain modifications to the prior permits and variances before proceeding in construction.

47. In Waterfront Partners, LLC v. James Movalli, et al., Essex Superior Court, C.A. 2002- 01548B, Waterfront appealed the Board's August 7, 2002 decision denying the application for a modification of the dimensional special permit and variances previously granted by the Board.

48. On September 26, 2002, the Board heard Waterfront's appeal of Sanborn's decision denying an occupancy permit for Unit 2. In a decision filed with the City Clerk on November 8, 2002, the Board upheld Sanborn's August 2, 2002 decision not to issue an occupancy permit for Unit 2.

49. In Waterfront Partners, LLC v. James Movalli, et al, Essex Superior Court, C.A. 02- 02271, Waterfront appealed the Board's November 8, 2002 decision.

50. On February 24, 2006, the Superior Court for Essex County (Whitehead, J.) issued findings of fact and rulings of law affirming the Board's decisions in all three pending cases.

51. On March 1, 2006, judgment entered in all three cases, affirming all three decisions of the Board.

52. Waterfront filed notices of appeal in all three cases, but did not perfect or pursue the appeals in any of the three cases. Notwithstanding Waterfront's failure to perfect or pursue its appeals, the appeals remained open on the docket of the court.

53. In June 2007, Waterfront filed an ancillary appeal to the State Building Code Appeals Board ("SBCAB") claiming that the building inspector failed to act on its 2002 request for an occupancy permit.

54. The SBCAB ordered Sanborn to issue an occupancy permit on October 24, 2007. The City of Gloucester appealed SBCAB's decision to the Superior Court. The Superior Court (Tuttman, J.) annulled the SBCAB decision ordering Sanborn to issue an occupancy permit on December 16, 2008, and entered a judgment for the City.

55. Based on SBCAB's acknowledgment that it did not have jurisdiction over a zoning matter, the Superior Court judgment was upheld on appeal by the Appeals Court.

56. On May 7, 2015, Waterfront and the Board entered into an Agreement for Judgment in two of the Superior Court cases (Nos. 2002-1548 and 2002-1549), which were still pending despite the entry of judgment in 2006 and the failure of Waterfront to pursue its appeals. In the Agreement for Judgment, Waterfront agreed to file an application with the City Council to amend the 2000 Special Permit to allow the third Unit 2 bedroom to remain where it had been constructed in the location authorized for an open deck. If the City Council approved the amendment, Waterfront agreed to pay the City of Gloucester $40,000 in lieu of fines, and if the City Council did not approve the amendment, Waterfront agreed to file all applications necessary to demolish the bedroom and to demolish the bedroom and reconstruct the former deck within thirty days of the unappealed denial of the application to the City Council for the amendment to the Special Permit. [Note 8]

Post-Agreement for Judgment

57. The plaintiff timely filed his application to amend the Special Permit on May 12, 2015 to allow for enclosure of the deck for use as a bedroom.

58. On July 14, 2015 and August 11, 2015, the City Council held a hearing on the application. A four to four tie vote on a motion to grant the application, failing to garner the required supermajority, resulted in a denial of the application.

59. On October 27, 2015, the City Council issued its decision denying the application for modification of the 2000 Special Permit. The decision was filed with the City Clerk on October 29, 2015. [Note 9] This appeal followed.

DISCUSSION

Plaintiff Daniel Gattineri, in his capacity as trustee of the 15 Western Avenue Realty Trust, appeals from the City Council's denial of his application for a modification of the Special Permit originally issued on June 22, 2000. General Laws 40A, §17 provides that "any person aggrieved by the decision of…any special permit granting authority…may appeal to the land court department..." The court's inquiry in reviewing the decision of a board of appeals or a special permit granting authority is a hybrid requiring the court to find the facts de novo, and, based on the facts found by the court, to affirm the decision of the board "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals, 356 Mass. 635 , 639 (1970). This involves two distinct inquiries, the first of which looks to whether special permit granting authority's decision applied incorrect standards or criteria. See 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 then proceed to the second, more deferential inquiry, examining whether "any rational view of the facts the court has found supports the board's conclusion…" Id. at 75.

1. The City Council's Decision Was Not Based On A Legally Untenable Ground.

Turning to the first inquiry, a decision is based on legally untenable grounds when premised "on a standard, criterion or consideration not permitted by the applicable statutes or by- laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference' to the local board"s interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application." Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 73 (internal citations omitted).

Plaintiff submitted a special permit application requesting that the City Council "amend [the] Special Permit to allow for enclosure of former deck for use as a bedroom" because the City Council "issued a Special Permit Decision dated June 6, 2000 and [the] plans filed therewith did not depict the enclosure of a deck for use as a bedroom." Plaintiff argued in his application to the City Council that the addition of the bedroom met the standards of §1.8.3 of the Gloucester Zoning Ordinance ("Ordinance"). Section 1.8.3 provides the standard that must be met for the issuance of special permits, as follows:

A Special Permit granted pursuant to this section shall be granted only upon a written determination by the SPGA that the proposed use will be in harmony with the general purpose and intent of the ordinance, and that it will not adversely affect the neighborhood, the zoning district or the City to such an extent as to outweigh the beneficial effects of said use.

The section further provides that in assessing whether the foregoing standard is met, the City Council, "shall consider, but not be limited to, the following six factors: (a) the social, economic, and community needs that will be served by the proposed use; (b) traffic flow and safety, (c) adequacy of utilities; (d) neighborhood character and social structure; (e) qualities of the natural environment; (f) potential fiscal impact."

The Ordinance also contains a separate section concerning the amendment of plans submitted in connection with a special permit. Section 1.5.13 provides for revocation of a special permit in the event of failure to comply with approved plans, but allows the City Council to permit substantive modifications to plans at the request of a special permit holder, "provided that the interests of the neighborhood and city are not impaired, and only after due notice and a public hearing, and only for good cause shown."

In its decision, the City Council applied the standard of §1.8.3. It found that the added bedroom would provide no beneficial effect, and instead would cause intensification of use in an already crowded neighborhood. It also found that providing post-hoc approval of a modification to the plans would not comport with the purpose of the Ordinance, as it would reward plaintiff for flouting the terms of his special permit and the Ordinance. The decision made no reference to the standard supplied by §1.5.13 for modification of plans.

The City Council might have applied the standard of §1.5.13 to plaintiff's application, but was within its discretion to consider the application using the standards for a new special permit. Plaintiff requested a modification of the plans attached to the original special permit issued on June 6, 2000, and §1.5.13 governs changes to plans submitted with special permits. Even so, the City Council's reliance on §1.8.13 rather than §1.5.13 does not render its decision legally untenable, as §1.8.3 functions as an alternative standard on which the City Council may permissibly rely. By applying the standard of §1.8.3, the City Council chose to essentially consider the application as a request for a new special permit, and its decision to do so was not an abuse of the modicum of discretion afforded in its choice of criteria. A special permit granting authority may review an application for modification of plans under the discretionary standard used for granting special permits if the modification presents a substantial change to the original plans. See Barlow v. Planning Bd., 64 Mass. App. Ct. 314 , 320 (2005). "Whether (reviewing courts) term the application as a modification of a special permit or a new one, the matter involves the discretion of the (special permit granting authority)." Id.

Although the Ordinance here contains an alternative mechanism for considering alterations to plans, the two standards are functionally equivalent, and it was therefore reasonable for the City Council to apply the general standard for special permits contained in §1.8.3, especially where the plaintiff himself argued that his application should be approved under §1.8.3. The packet submitted with the application argued at length for approval under §1.8.3, and in turn addressed each of the six considerations contained in that section. Additionally, the physical alterations to the building were a significant departure from those proposed in the original permit. It is reasonable to implement the more detailed special permit standard where the proposed changes to the special permit are such that the general review of §1.5.13 is not sufficiently comprehensive. This choice is sensible where the original permit was issued fifteen years prior, and the high potential for changed circumstances may warrant a full re-evaluation on the same standards as those originally applied. Given the form of these submissions, the fact that the construction in question significantly altered the exterior of the structure, and the fifteen years that had elapsed since the issuance of the original permit, the City Council was reasonable in applying the standard for the issuance of a special permit rather than a modification of plans. And in any event, the City Council's rationale for denying the application justified denial under either standard.

Plaintiff also suggests that the proper inquiry is the three-part test supplied in Powers v. Building Inspector of Barnstable for evaluating alterations to pre-existing nonconforming structures. See Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 661 (1973). The Powers test provides the analytical framework for determining whether an alteration to a lawful prior nonconforming use or structure is protected by G.L. c. 40A § 6. See id.; G.L. c. 40A §6; Almeida v. Arruda, 89 Mass. App. Ct. 241 , 244 (2016). However, the plaintiff did not submit his application to the City Council as a request for a change in a lawful nonconforming use, the City Council did not purport to grant the Special Permit as a Section 6 finding, the record does not contain sufficient evidence of the Property's status as a lawful prior nonconforming structure so as to conclude that it would have been appropriate to apply the Powers test and make a Section 6 finding instead of granting a special permit, and finally, the City Council would have no jurisdiction to make a Section 6 finding. The Special Permit, as originally issued to Constellation in 2000, was issued as a special permit for the use of the existing structure as a multi-family dwelling, and not as a Section 6 finding for a change in a nonconforming use or structure. Accordingly, whether treated as a modification of the original special permit or as a new application, it would not have been appropriate to treat it as an application for a Section 6 finding, and in any event, the Board of Appeals, and not the City Council, would have been the only appropriate entity to issue such a finding. See G. L. c. 40A, § 6 and § 1.9 of the Ordinance. The Powers test is inapplicable here, and the City Council accordingly did not err in not considering it.

2. The City Council Is Not Estopped From Enforcing the Ordinance

Plaintiff argues, without labeling it as an estoppel argument, that the municipal defendants, by failing to aggressively enforce the 2006 Superior Court judgments, "implicitly condoned" plaintiff's violations and may not now "punish" him for the delay in enforcement. Plaintiff also suggests the assurances of Soucy and Normand that he could proceed with construction without modification of the Special Permit estop the City Council from now denying him such a modification. Both of these arguments are legally insufficient and unavailing.

It has been long recognized in Massachusetts that "a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance." Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977). This includes the conclusions of a building inspector interpreting a bylaw. See Bldg. Com"r of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 715 (2000). Accepting as true Soucy's and Normand's acquiescence in plaintiff's determination to build the bedroom in place of the open deck without modifying the Special Permit, this would not prevent the new building inspector or the City Council from later enforcing a correct interpretation of the Ordinance that the new bedroom represented a substantial change in the approved plans.

This is especially so where it should have been clear, and probably was clear, to all the participants in the meeting between plaintiff, his partner Raso, his architect, and Soucy and Normand, that the labeling of the proposed new construction as an insubstantial change to the plans approved by the Special Permit was not justified. Further evidence of this, beyond the sheer bulk of the bedroom addition, was the blatantly improper concurrent blessing by Soucy and Normand, also without a modification of the Special Permit, of another building addition to add a fourth unit entirely outside the original building envelope. Although this fourth unit was never actually built, the labeling of it as an insubstantial change was on its face an abdication of any pretense of actual review by the acting building inspector. Such an approval, especially where it was never committed to writing or evidenced by any amendment to the plans or building permit, was void ab initio. See, Cornell v. Michaud, 79 Mass. App. Ct. 607 , 612-613 (2011) (building permit issued for lot that had been declared unbuildable by earlier Superior Court judgment was void ab initio).

Even if the municipal defendants were subject to ordinary principles of estoppel, the facts of this case would not justify application of the doctrine. "To establish estoppel, a party must show ‘(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.'" Reading Co- Operative Bank v. Suffolk Construction Co., Inc., 464 Mass. 543 , 556 (2013), quoting Bongaards v. Millen, 440 Mass. 10 , 15 (2003). Plaintiff's reliance on Soucy's and Normand's acquiescence was not reasonable, and so application of the doctrine of estoppel would not be warranted.

3. The City Council's Denial Was Rationally Supported by the Facts

Having established that the standard utilized by the City Council was legally tenable, the court must consider whether any rational view of the facts supports the City Council's conclusions. See Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 454 (2009). This inquiry looks to "whether the [City Council] has denied the application by applying those criteria and standards in an ‘unreasonable, whimsical, capricious or arbitrary' manner. Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 74. The refusal to grant a special permit does not require detailed findings. See Brockton Pub. Mkt., Inc. v. Bd. of Appeals of Sharon, 357 Mass. 783 , 783 (1970). "Where a board denies a special permit, it is likely ‘a matter of considerable difficulty, especially for laymen, to state in detail all possible factors the nonexistence of which resulted in the denial of the application.'" Bd. of Aldermen of Newton v. Maniace, 429 Mass. 726 , 732 (1999), quoting Cefalo v. Bd. of Appeal of Boston, 332 Mass. 178 , 181 (1955). Accordingly, "the requirement that the board provide reasons supporting its decision, is less demanding than if the board had acted affirmatively." Id. Moreover, "[t]he board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted." Pioneer Home Sponsors, Inc. v. Bd. of Appeals of Northampton, 1 Mass. App. Ct. 830 , 830 (1973). Applying this standard, I find that the City Council's conclusions are rationally supported by the facts, and are not unreasonable, whimsical, arbitrary or capricious.

The City Council here denied the plaintiff's application for a modification of the Special Permit, making the following findings and conclusions in support its decision:

The City Council has a duty to enforce the integrity of the permitting process. That process includes a public hearing and allows the residents to voice their opinions on the proposed changes to buildings in the city. Gattineri should have applied to amend the special permit when the decision was first made to enclose the deck or at the very least in April of 2002 when he was told he needed to apply for a special permit. The City Council has an obligation to enforce the process outlined in the city ordinance. The city council cannot condone a violation both of the conditions of the Special Permit and the Ordinance.

The City Council also has a duty to uphold the decisions of courts in the commonwealth. The Courts have upheld the decisions of the ZBA. Waterfront Partners v. Movali, ZBA Gloucester et al., Essex Superior Court 0277CV01548; City of Gloucester v. Gattineri, 76 Mass. App. Ct. 1133 (2010).

Gattineri has failed to carry his burden of proving that his requested relief would be in harmony with the general purpose of the ordinance and that it will not adversely affect the neighborhood to such an extent as to outweigh any beneficial effects. The City Council anticipates no beneficial effect from granting the application. Far from comporting with the general purpose of the ordinance, the requested amendment would reward Gattineri for flouting the terms of the Special Permit. It would allow an undue intensification of use in an already crowded neighborhood.

[…]

By their terms, the Ordinance and the Special Permit contemplate that Gattineri's violation of the material representations that had been made to the City Council could support a revocation of the Special Permit. No such revocation has been sought or granted, but it would be ironic if, in the absence of any changed circumstances that could warrant the approval of an additional bedroom, the City Council instead rewarded Gattineri's misbehavior. [Note 10]

A rational view of the facts supports the City Council's conclusions. The main thrust of the plaintiff's argument is that the City Council subjected him to disparate treatment in retaliation for his thirteen year history of flouting the permitting process. Plaintiff's proffered example to illustrate his claim of disparate treatment is misplaced, and to the extent the plaintiff argues that protection of the integrity of the permitting process is an improper basis for the City Council's decision, his argument is also incorrect. Finally, his argument that the construction of the bedroom addition complies with the standards for the granting of a special permit ignores the discretion afforded to a special permit granting authority to deny an application for a special permit even if the standards for granting the permit could be found to be met.

The City Council placed great emphasis on plaintiff's knowing failure to adhere to the procedures outlined in the Ordinance and the detrimental effect that a grant of a post-hoc modification would have on the integrity of the permitting process. The evidence at trial confirmed that Sanborn informed plaintiff that enclosing the deck would violate the terms of his special permit unless he applied for and received additional zoning relief. Although so warned, plaintiff proceeded to nonetheless complete the construction, and despite a denial of relief by the Board early on in this saga, he occupied it with no occupancy permit. Following judgments against him in Superior Court upholding the denial of relief, he continued to either occupy the illegal structure himself or rent it out for many years. Sanborn's and the City's inconsistent, sporadic, and less than robust efforts at enforcement until recently do not change the fact that despite notice that he was illegally occupying Unit 2, plaintiff continued to do so. The fact that Sanborn allowed electrical inspections in order to ensure the safety of the construction does not, as plaintiff argues, credibly indicate Sanborn's implicit support, given his other explicit statements and efforts at enforcement to the contrary. The Board's denials of Waterfront and plaintiff's requests for amendment and an occupancy permit, both of which were upheld in the Superior Court, left plaintiff with no legal right or convincing argument that the unit could be occupied absent further relief, yet he continued to rent out the unit for seven years after the Superior Court judgments were entered. His failure to perfect his appeals was plainly a dilatory tactic, about which the municipal defendants, to their discredit, did not do anything for years. However, the municipal defendants' lack of diligence does not excuse plaintiff's conduct or deprive the municipal defendants of their ability to finally enforce the Ordinance. And in fact, Sanborn did take steps to enforce the Ordinance, even if the follow-through was sometimes lacking. He sent notice to plaintiff in August, 2008 and June, 2014 ordering him to cease renting out the unit; in spite of this, plaintiff continuously rented the unit to tenants from March, 2008 until February, 2015. Though plaintiff claims that he believed he lawfully could rent out the unit because he received a certificate from the Board of Health (which itself did not alone authorize occupancy by tenants), this argument is undermined by the fact that he continued to rent the unit for five years following the expiration of the certificate.

It was rational and within the proper exercise of the City Council's discretion as the special permit granting authority to conclude that the interests of the City would be impaired if it condoned or rewarded an applicant's flagrant disregard of the Ordinance and refusal to comply with the decisions of its building inspector and permit granting authorities. This impairment does not result from the mere fact of disagreement with these decisions, as the process of appeal certainly allows one to permissibly voice and act upon such disagreement. Rather, the integrity of the process would have been undermined by rewarding one who continued with construction that he knew was not authorized by his issued permits, and by his continued use of the completed structure in the face of denials of relief, lack of an occupancy permit, and orders to cease occupancy. The City Council's conclusion that approval of the modification in light of these facts would undermine the integrity of the Ordinance by encouraging future applicants to disregard proper process was justified and well within the proper exercise of its discretion. This conclusion is supported by the facts, and provided a rational basis for denial of the requested relief.

Aside from the denial on the basis of a desire not to reward plaintiff for his past conduct, the City Council's denial of relief was justified on the merits of the physical proposal to add the bedroom and remove the deck. The City Council's finding that the enclosure of the deck by adding a bedroom would be "an undue intensification of use in an already crowded neighborhood" is supported by the fact that the enclosure of the deck significantly expands the physical envelope of the building. A special permit granting authority "may properly base a decision on aesthetic considerations." Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 76. Plaintiff's transformation of the approved deck into a bedroom represents a major departure from the nature of the changes proposed in the original Special Permit, which envisioned alterations to the exterior of the structure that were few and minor. [Note 11] The physical expansion of the building envelope, not contemplated by the original Special Permit, therefore rationally supports the City Council's conclusion, as increased building size may make a neighborhood appear more physically crowded, and this is an aesthetic consideration the City Council may properly take into account. See id. Plaintiff's unilateral decision to add the bedroom resulted in the construction of a featureless box, and one that inexplicably and gaudily extends past and overhangs the building envelope of the enclosed porch below it, grafted onto an otherwise attractive structure in the historic and scenic harborfront neighborhood of Gloucester. Given that the City Council determined that the project will confer no beneficial effects whatsoever upon the city or neighborhood, the facts support its further conclusion that that this adverse impact outweighs any beneficial effects. These conclusions of the City Council, based on facts found by the court in this de novo trial, were within the proper exercise of its discretion.

Plaintiff further argues that the current configuration of the building, including the additional bedroom, still only consists of three units with seven bedrooms, as originally permitted. He thus contends that the current configuration cannot be considered intensification from the approved special permit. That the current configuration contains the same number of bedrooms would entitle, but does not compel, the City Council to approve the modification. The City Council retains the discretionary authority to deny the permit in the face of such evidence as long as the denial is premised on rational, non-arbitrary grounds. See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). The adverse aesthetic impact of the physical expansion of the building envelope without any further beneficial effect serves as a rational basis for denial.

Furthermore, the City Council's finding that there were no changed circumstances justifying modification is supported by the facts, and likewise supports the conclusion that the modification is not in harmony with the purpose and intent of the Ordinance. Building Inspector Sanborn testified that he was not aware of any changed circumstances necessitating modification. [Note 12] Plaintiff's partner Raso testified that Waterfront altered the design of the building because three large units were more marketable than four smaller ones, but I have found, as he also testified, that the real reason for the change was that plaintiff simply wanted another bedroom in Unit 2 because he wanted that unit for himself. [Note 13] Changed circumstances may serve as a basis for modifying a special permit. See Wendy"s Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 385 (Mass. 2009) ("A board ‘may be asked by a successful petitioner to modify a condition' imposed in a special permit or variance decision in light of changed conditions."). Since I credit the testimony by Raso that the real reason for the change was plaintiff's desire to add a bedroom to the unit he wanted to occupy, I find that there was no sufficient evidence of changed market conditions or any other changed circumstances that would justify, let alone compel, approval of the proposed modification.

The facts accordingly support the City Council's denial of relief. Although the City Council chose to apply the standard of §1.8.3 rather than that of §1.5.13 concerning modifications to plans, had the City Council instead decided to implement the standard of §1.5.13, the same conclusions articulated in the City Council's decision, rationally supported by the facts, would likewise allow a denial under that alternative standard. The latter half of §1.5.13 allows, but does not require, the City Council to make substantive modifications to plans at the request of a special permit holder, "provided that the interests of the neighborhood and city are not impaired, and only after due notice and a public hearing, and only for good cause shown." [Note 14] Applying the facts to this standard, plaintiff's repeated and indifferent contravention of both the procedures of the Ordinance and decisions of the building inspector, the Board, and the City Council, supports the City Council's conclusion that the interests of the City would have been impaired by approval of plaintiff's application to modify the Special Permit.

4. Plaintiff Was Not Treated Unequally

Plaintiff's claims of disparate treatment are unavailing. Plaintiff claims that as a "class of one" he is being treated unequally. To establish a claim for a violation of equal protection in a "class of one" context, plaintiff must demonstrate that "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Daddario v. Cape Cod Comm"n, 56 Mass. App. Ct. 764 , 773 (2002). "The allegation that others similarly situated obtained permits is not, without more, a denial of equal protection of the laws. Allegations of clear and intentional discrimination are required." Id., quoting Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621 , 628–629 (1989).

Plaintiff first argues that he was treated differently than Sharon Egbert ("Egbert"), the former [Note 15] owner of Unit 1 in the Addison Procter House. Egbert added a small deck to the front of the house. The deck met all setback requirements, was not enclosed, and did not change the building envelope. Building Inspector Sanborn considered this a minor modification that, under §1.5.13 of the Ordinance, did not require further approval from the Board or the City Council. [Note 16] Section 1.5.13 of the Ordinance provides in part that "the Inspector of Buildings…may authorize minor, non-substantive changes to said plans in order to correct clerical errors or address conditions discovered after the issuance of a special permit or variance…" [Note 17]

Plaintiff next argues that he was treated differently than James Montagnino ("Montagnino"). Montagnino applied for and received a special permit from the Board in 2005. He represented in his application that his building was twenty-eight feet in height; however, its actual height was already greater than the thirty-foot height limit imposed by the Ordinance, and he proceeded to raise the roof even higher to a final height of 34.8 feet. The Board determined that he required a special permit for altering a nonconforming structure and a special permit for a height exception, and denied his subsequent applications for these. Montagnino appealed to Superior Court, and the parties reached a settlement wherein the Board granted an exception to building height which nonetheless required Montagnino to lower the roof by twenty two inches. This returned the roof to its original height at the time of his application. [Note 18]

Plaintiff argues that he has been treated differently for exercising his right to appeal the City Council's 2002 denials in the Superior Court. Plaintiff has failed to meet his burden of proving that he was selectively treated based on this or any other impermissible consideration. Any difference in treatment instead stems from reasonable interpretation of the Ordinance as applied to projects that were not similarly situated. "[M]aterially different projects may be treated differently by zoning or planning boards without raising constitutional concerns." Cordi- Allen v. Conlon, 494 F.3d 245, 252 (1st Cir. 2007).

Sanborn's decision to allow Egbert's deck as a minor modification was not plainly wrong, and does not demonstrate disparate treatment. Sanborn testified that Egbert's alteration of the exterior of her unit differed from plaintiff's alteration in that the deck added by Egbert was not enclosed, was small, and was on the first floor and unobtrusive, while plaintiff added a much larger enclosed structure on the second floor of the building. It is a reasonable conclusion that this distinction renders the former a "minor, non-substantive change" under §1.5.13, while the latter is not, and a court owes deference to the interpretation of a zoning bylaw by local officials when the interpretation is reasonable. See Pelullo v. Croft, 86 Mass. App. Ct. 908 , 909 (2014).

Similarly, Montagnino received zoning relief for a condition that was materially different from that created by plaintiff's construction, and the settlement between Montagnino and the Board restored the original height of the building. The City Council's issuance of a post-hoc special permit for one nonconformity does not automatically entitle all other applicants to the same relief, as the permit granting authority must take the potentially diverse characteristics of each particular application into account. See Cordi-Allen v. Conlon, supra, 494 F.3d at 252. It was reasonable to consider the impacts of an elevated roof to differ from those occasioned by the enclosure of the deck, as the physical characteristics of each are undeniably dissimilar, and it is notable that the ultimate result in the Montagnino case was that the roof was lowered to its original height, a much different situation than that sought by the plaintiff. Additionally, the gap in time between the treatment of Montagnino's application and that of plaintiff further weakens any inference that they are congeners. "Since zoning bylaws, environmental standards, and licensing criteria may change over time, courts must be sensitive to the possibility that differential treatment—especially differential treatment following a time lag—may indicate a change in policy rather than an intent to discriminate." Id. Montagnino's application was granted in 2007, while plaintiff's was denied in 2015. Finally, it must be recognized that the treatment afforded both Montagnino's application and plaintiff's was not, in fact, disparate. Though the former ultimately received an approval that the latter did not, the City's decisions required both plaintiff and Montagnino to return their respective buildings to their original outward appearance at the time of the issuance of their permits.

CONCLUSION

For the foregoing reasons, I find and rule that the City Council's decision of October 27, 2015 denying the requested modification of the Special Permit, was not legally untenable, arbitrary, capricious, unreasonable, or otherwise beyond the proper exercise of the City Council's lawful authority. The decision of the City Council is therefore AFFIRMED, and shall stand as issued. Mindful of the provision in G. L. c. 40A, §17 that the court shall "make such…decree as justice and equity may require", I further find and rule that there is no occasion for the building inspector to act on, approve, or deny any request for an occupancy permit for Unit 2 at the Property, as his previous denial has already been litigated to a conclusion in the Superior Court litigation, and absent a decision in this action favorable to the plaintiff, there is no occasion for any further action by the building inspector in this regard.

Judgment will enter affirming the decision of the City Council and DISMISSING the plaintiff's complaint.