MISC 04-297674

May 9, 2017

Plymouth, ss.



The Plaintiffs in this action appeal a March 4, 2004 decision of the Town of Hingham Zoning Board of Appeals ("ZBA") relative to an application by Defendant Eric Reed for several dimensional variances in connection with his proposed construction of a new single-family dwelling on a then-vacant lot located at 68 Bonnie Brier Circle in Hingham, Massachusetts (the "Lot"). Reed was the holder of a purchase and sale agreement for the Lot at the time he sought the variances. The Plaintiffs claim to be abutters, who are aggrieved by the variance decision. They claim that the ZBA exceeded its authority when it (a) determined that a lot size variance was unnecessary, and (b) conditionally granted side yard and front yard setback variances for Reed's proposed new dwelling.

The Plaintiffs' G.L. c. 40A, § 17 Complaint was filed on March 19, 2004. Defendant Reed initially filed a Motion for Summary Judgment on July 28, 2005, supplemented on September 1, 2005 with a Statement of Material Facts in support of said Motion. Plaintiffs filed an Opposition and Cross-Motion for Summary Judgment, a Response to Reed's Statement of Material Facts, and a Statement of Materials Facts in support of Plaintiffs' Cross-Motion on September 14, 2005. Reed did not oppose or otherwise respond to the Cross-Motion. For reasons not apparent on the docket, the Summary Judgment Motions were never heard, and the case remained inactive for almost nine years until it was re-assigned to the undersigned judge in 2014.

At a status conference conducted by the court on September 30, 2014, Defendant Reed's counsel reported that his client had never acquired the Lot and, therefore, no longer had an interest in defending the ZBA's decision. [Note 1] In response to the court's inquiry as to whether the matter should be dismissed as moot, counsel for Plaintiffs argued that a dismissal would not satisfy his clients' interest in having the decision of the ZBA annulled, because a dismissal would simply leave the ZBA decision and granted variances in place. For his part, Defendant's counsel felt he was not in a position to agree to a judgment annulling the challenged decision. [Note 2] At the request of Plaintiffs' counsel, and without objection from Defendant Reed's counsel, the court determined that it would therefore proceed to decide the Cross-Motions for Summary Judgment on the previously filed papers.

Now, based upon the following undisputed, material facts, and for the reasons explained below, I find and rule that the challenged decision exceeded the ZBA's authority. Accordingly, Defendant's Motion for Summary Judgment is DENIED and Plaintiffs' unopposed Cross- Motion for Summary Judgment is ALLOWED.


The Lot is located in Hingham's Residential C Zoning District, in which the minimum lot size is 40,000 s.f. and the minimum frontage is 150 feet. The Lot, however, has only 6,214 s.f. of area, and 50 feet of frontage. Many of the 50+ residential lots in the surrounding Bonnie Brier Circle neighborhood are similarly-sized. The Lot has been held in separate ownership continuously since at least June 15, 1925. A small cottage already existed on the Lot in 1941 when the first Hingham Zoning By-law was adopted, which made the Lot size and frontage, as well as the setbacks for the cottage, nonconforming.

The Lot borders on vegetative wetlands, and the 50-foot wetlands buffer extends approximately 35-50 feet into the rear portion of the Lot. There are also ledge outcroppings at the rear of the Lot – a soil condition found on several other lots in the Bonnie Brier Circle neighborhood.

The cottage that existed on the Lot when the first Hingham Zoning By-law was adopted in 1941, was last occupied in 1975. Thereafter, the cottage was left to deteriorate. By 1979, the roof had collapsed and the cottage had become infested with rodents and other animals. In June of 1986, in response to complaints from neighborhood residents, the Hingham Building Commissioner sent a certified letter to the owners of the Lot, advising them that the cottage "is in a bad state of disrepair and should have immediate attention." But no repairs were made.

Nine and a half years later, the Building Commissioner sent another letter to the owner, dated November 21, 1995, once again advising that the cottage was uninhabitable and "in serious need of immediate repair." He also offered his opinion that, because the cottage had been built on the Lot prior to enactment of zoning in Hingham, the Lot was protected under G.L. c. 40A, § 6 "as a lot for one or two family residential use, which contains at least 5,000 square feet and 50 feet of frontage." He gave his further opinions that the existing cottage could be "renovated or reconstructed as it presently stands on the lot," and that "since this lot has the protection of General Laws Chapter 40A, you may either make basic repairs to the existing structure to stabilize it until such time as it is ready to be renovated, or you may raze the existing structure and clear the lot of all debris, saving it until such time as it is feasible to reconstruct." The Building Commissioner went on to relate his opinion that, in either event, any dwelling eventually built on the lot "may be constructed with present setbacks so long as it does not further reduce any non-conforming dimension."

In December of 1995, in the wake of the Building Commissioner's letter, as well as hearings held by the Hingham Board of Health concerning the dilapidated condition of the cottage, the Lot owner had the cottage demolished. He did not, however, attempt to rebuild on the Lot at that time. It wasn't until 1998, apparently relying on the Building Commissioner's assurances, that the owner began to market the Lot as one available for building a single family residence. And it was not until 2003, eight years after demolishing the cottage, that the Lot owner entered into a purchase and sale agreement with Defendant Reed. That purchase and sale agreement was made contingent upon Reed's ability to obtain the necessary permits for construction of a single family house on the Lot.

By application dated December 22, 2003, Reed sought "a variance from Section(s) 'IV- A' Table of Dimensional Requirements and if necessary, definition of a 'story' as per page 66 of the Zoning By-law." Reed's variance application described the premises as "Unimproved Land," and proposed construction of a new, two-story, 25'X 41' single-family dwelling on the Lot with a right side setback of 18 feet, a left side setback of 7 feet "or as necessary," and a front setback of 20 feet "or as necessary." The variance application describes the Lot as having a sizeable ledge outcrop extending over one-third of its area.

Following a public hearing, the ZBA issued a detailed decision on March 4, 2004, granting front and side yard variances, denying a height variance, and determining that a lot size variance was unnecessary. In its decision, the Board made findings that a cottage-style, single-family residence was erected on the 6,214 s.f. Lot prior to the enactment of zoning in the Town of Hingham. The ZBA also found that, when the cottage was razed in 1995, the Lot did not conform to the then-applicable, 40,000 s.f. minimum lot size requirement, and that the placement of the cottage on the Lot did not conform to the minimum setback requirements for the Residence C District. On the basis of these findings, the ZBA determined that Reed's proposal involved "reconstruction" of a former, lawfully existing nonconforming structure (i.e., the cottage), pursuant to G. L. c. 40A, § 6 and Section III-G of the Hingham Zoning By-law. The ZBA also determined, however, that the proposed reconstruction would increase the nonconforming nature of the former structure. The ZBA concluded therefore that Reed's options were to either build a dwelling in conformance with current setback requirements or obtain variances from those setback requirements.

The ZBA went on to determine that, because single family residential use is a use permitted by right in the Residential C District, the proposed dwelling would be a conforming use of the Lot, and could be built on the undersized Lot without the need for a lot size variance. The ZBA reasoned that the fact that the Lot had been vacant and unused for eight years was not relevant to the current zoning status of the Lot, as "[t]here is no provision within either the statute or the Town of Hingham Zoning By-Law which indicates that a nonconforming lot is rendered useless even if it is not used for a period of more than two years." (Emphasis in original.)

On the basis of its legal analysis, the ZBA decided that there was, as a matter of law, "no termination of the legal validity of the Lot itself" and, thus, no need for a variance from the minimum lot size requirements. The ZBA denied the requested height variance. However, the ZBA granted side yard variances, finding that, due to the narrow (50 ft.) width of the Locus, application of the 20 ft. minimum side yard setbacks would leave only a 10-foot wide strip of land on which no practical residential structure could be built. The ZBA also granted a variance from the minimum front yard setback requirement, allowing the proposed dwelling to "be placed as far back on the Premises as is practicable given the size and depth of the ledge outcropping….[but] at least twenty-five feet (25') from the street." In granting the side and front setback variances, the ZBA found that both the Lot's narrow width and the ledge outcroppings were conditions unique to the Locus and the surrounding Bonnie Brier Circle neighborhood, but did not generally affect the Residence C Zoning District in which the Lot was located. The ZBA also found that the proposed new construction would be consistent with the character of the Bonnie Brier Circle neighborhood.

After the ZBA's written decision was filed with the Hingham Town Clerk, several residents of the Bonnie Briar Circle neighborhood timely appealed the ZBA decision, seeking its annulment. [Note 3]


On appeal, a trial court's review of a variance decision under G.L. c. 40A, § 17 is de novo. De novo review requires the court to make independent findings based upon the evidence before it, according no deference to the findings made by the municipal board. E & J Properties, LLC v. Medas, 464 Mass. 1018 , 1019 (2013). The court must uphold the zoning authority's action unless it finds that the action was "based on a legally untenable ground, or [was] unreasonable, whimsical, capricious, or arbitrary." Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In deciding whether a local zoning decision was based upon an untenable legal ground, "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." Id. at 73 (internal quotation marks and citations omitted).

The party seeking to defend the grant of zoning relief (in this case, Defendant Reed) has the burden to demonstrate that the grant of relief was proper. Martin v. Bd. of Appeals of Yarmouth, 20 Mass. App. Ct. 972 , 973 (1985). The trial court is required to make independent findings of fact on all issues raised in the appeal, relying only on the evidence before the court, and not on what was before the local board. De novo review also requires that the trial court accord no deference to the findings made by the local board. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012) ("The trial judge makes his own findings of facts and need not give weight to those the board has found.")

As discussed below, Defendant Reed failed to establish through his summary judgment motion that the ZBA's decision granting setback variances and determining that a lot size variance is unnecessary was legally tenable.

The Setback Variances

In defending the ZBA's grant of the side and front setback variances, Reed has the burden of demonstrating that each of the statutory prerequisites for a variance has been met. Martin, 20 Mass. App. Ct. at 973. As the party moving for summary judgment that the variances were properly granted, Reed is thus required to establish sufficient undisputed facts to permit the court to find that each of the statutory prerequisites has been met in regard to those variances. This, he failed to do.

Pursuant to G.L. c. 40A, § 10, a local zoning board of appeals is authorized to grant variances from local zoning regulations only where: (1) owing to circumstances relating to soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, (2) a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner, and (3) desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Notably, Reed's summary judgment motion is not supported by any independent evidence that the variance prerequisites have been met. Instead, simply pointing to the ZBA's own findings as to the existence of ledge outcroppings at the rear of the Lot, and as to the narrow width of the Lot, Reed contends that the conditions relating to soil, topography and lot shape justify the ZBA's conclusion that a literal application of the setback requirements would create a substantial hardship because Reed would be unable to make reasonable use of the Locus. Similarly, to support his argument that the proposed construction of a new dwelling on the Lot would not cause substantial detriment to the neighborhood, Defendant relies only on the ZBA's own findings that the neighborhood consists of several developed small lots, and that Reed's proposed house would be located in an already densely populated neighborhood. [Note 4] However, he provides no independent, competent evidence to support independent findings by this court that the grant of the variances is valid because all of the statutory prerequisites are met.

Because Reed failed to demonstrate through "pleadings, depositions, answers to interrogatories, responses to requests for admission, together with affidavits" as would be admissible in evidence, that all of the statutory prerequisites for a variance have been met, he is not entitled to summary judgment in his favor upholding the grant of the front and side setback variances.

Applicability of Minimum Lot Size Requirements

Reed also contends that the ZBA was correct, as a matter of law, in determining that a lot size variance is unnecessary, because the Lot has retained its status as a lawful, nonconforming, building lot notwithstanding the passage of eight years following demolition of the long dilapidated and vacant cottage. In their Cross-Motion for Summary Judgment, Plaintiffs counter that the ZBA's determination in this regard is legally untenable in that that any grandfather protections were lost through non-use or abandonment, and that the ZBA's determination was based upon a misinterpretation of both G.L. c. 40A, § 6 and the Hingham Zoning By-law relative to termination of nonconforming structures and uses. Here again, the Defendant has the burden of demonstrating that the ZBA was correct, as a matter of law, in finding that the Lot retained its lawful nonconforming status as a lot for residential use following the destruction of the nonconforming cottage. Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89 Mass. App. Ct. 290 , 294 (2016). And here again, the Defendant failed to meet his burden.

Based upon the undisputed material facts, and for the reasons set forth below, I find that the ZBA's determination that a lot size variance is unnecessary is legally untenable. It is undisputed that (1) the undersized Lot and the cottage formerly located thereon pre-dated the enactment of zoning in the Town; (2) the Lot does not conform to the current minimum lot size requirements of 40,000 s.f. of area and 150 feet of frontage; (3) the Lot did not conform to the then-applicable minimum requirements at the time the cottage was razed in 1995; and (4) at the time the cottage was razed in 1995, the cottage setbacks did not comply with either the minimum front yard requirement of 50 feet, or the minimum side yard requirements of 20 feet. Indeed, the ZBA found these same facts and correctly noted that the first sentence of G.L. c. 40A, § 6, ¶ 4 is inapplicable here, and that reconstruction on a nonconforming lot that has become vacant following demolition would be governed instead by the "second except" clause in Section 6, ¶ 1. See Dial Away Co., Inc. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 , 168 (1996); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 18 (1987).

However, the ZBA nevertheless determined that, while the right to reconstruct a dwelling with the same nonconforming setbacks as the cottage had been terminated two years after the demolition of the cottage, the Lot itself had retained its "grandfathered" status as a "lawfully existing nonconforming lot" because "there is no provision within the statute [c. 40A] or the Town of Hingham's Zoning By-law which indicates that a nonconforming lot is rendered useless if it is not used for a period of more than two years." (Emphasis in original.) Based upon (1) its conclusion that the undersized Lot retained its protection as a nonconforming building lot, and (2) its conclusion that single-family residential use is a conforming use in the Residence C District, the ZBA decided that Reed did not need a lot size variance in order to construct a new dwelling on the Lot.

Contrary to the ZBA's interpretation and Defendant Reed's summary judgment arguments, however, once a building on an already dimensionally nonconforming lot has been demolished, and the lot has been left vacant and unused for more than two years, it cannot be used by right for a new residential dwelling under either G.L. c. 40A, § 6, or under the Hingham Zoning By-law.

As the ZBA noted in its decision, ¶ 4 of § 6 is not applicable here to exempt the undersized Lot from application of current zoning regulations. In Dial Away, the Appeals Court addressed the question of whether an undersized lot retained its protected status as a buildable lot twenty-three years after the nonconforming dwelling on the lot was voluntarily demolished. On the basis of the facts in that case, the Appeals Court ruled that the vacant lot in question was not protected as a valid building lot under ¶ 4 of § 6, and that, instead, ¶ 1 of § 6 applied to a reconstruction on this previously built-upon lot. The Appeals Court clarified that application of ¶ 4 is not always limited to original construction on a nonconforming lot, explaining by way of example that "[i]f a buyer bought vacant land (even if a building thereon had been previously demolished) and the by-law at the time of purchase permitted building on that lot, it would seem that the lot would have the protection from subsequent zoning change." Dial Away, 41 Mass. App. Ct. at 169 & n. 7. The facts in the Dial Away case did not fit this example, however, and the lot did not benefit from the nonconforming lot protections of ¶ 4.

Similarly, in the instant case, we are not looking at a circumstance in which the lot area and frontage became nonconforming after the cottage was demolished. The Lot was already built upon when its area and frontage became nonconforming, and it remained nonconforming when the cottage was razed. Thus, any new structures and uses on the Lot are governed by the first paragraph of G.L. c. 40A, § 6.

Pursuant to the "first except" clause of § 6, ¶ 1, zoning by-law enactments will generally not apply to structures or uses that are lawfully in existence or lawfully begun before the first publication of notice of the planning board hearing on the proposed zoning by-law or amendment, but will apply to certain changes or substantial extensions of a lawfully preexisting use or structure, and reconstruction after such notice. The "second except" clause of § 6 provides a further limited exception from the application of zoning enactments, by allowing for the alteration, extension, reconstruction or change of a lawfully preexisting, nonconforming single or two-family dwelling, without regard to subsequently enacted by-laws or amendments, provided the alteration, reconstruction, extension or structural change "does not increase the nonconforming nature of said structure." Otherwise, the construction or reconstruction must be in conformance with any increased requirements of the local by-law. Here, the ZBA determined that Reed's proposed new dwelling would increase the nonconforming nature of the prior cottage structure and thus, pursuant to the "second except" clause could not be constructed without setback variances. Reed does not contest that determination and provides no independent evidence in the summary judgment record to support a contrary finding.

Consistent with the "first except" clause of Chapter 40A, § 6, Section III-G of the Hingham Zoning By-law permits the continuation of uses of land and structures even though they do not conform to the provisions of subsequently enacted Zoning By-law amendments. Specifically, Subsection 1 of Section III-G provides as follows:

The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of the By-law may be continued although such structure or use did not conform with the provisions of the By-law as adopted or amended.

The Town of Hingham, has, however, elected to regulate these nonconforming structures and uses once they have been discontinued and not restored for more than two years, [Note 5] by providing in Subsection 4 of Section III-G that:

The rights of continuation or restoration of a nonconforming building or structure or use of a building, structure or land, provided in the foregoing subsections 1, 2 and 3 of this Section III-G, shall terminate in the event of non-use or non-restoration for a period of not less than two (2) years." [Emphasis added.]

It is undisputed that the Lot in dispute was left vacant for over eight years following demolition of the cottage. With respect to Defendant Reed's proposed construction of a new dwelling on the Lot, the ZBA construed Subsection 4 of Section III-G as terminating only the right to restore or rebuild a dwelling with the same nonconforming setbacks as the cottage once had, while not terminating all rights to re-build a single family dwelling on the undersized Lot as long as the setbacks conform or setback variances are obtained. According to the ZBA's decision, this interpretation was premised on: (1) the absence of a specific reference in either G.L. c. 40A, § 6 or Section III-G to termination of the right to use a nonconforming lot in the event of non-use; and (2) the fact that a single-family dwelling use itself is a by-right use in the underlying Residence C District and consequently would be a "conforming use" of the Lot, regardless of that Lot's nonconforming size and frontage.

The principal problem with this analysis is that it considers the cottage as having been nonconforming only with respect to its setbacks. The cottage, however, was also nonconforming with respect to other dimensional requirements of the By-law, i.e., the cottage was located on a lot which did not have the minimum lot area and frontage (lot size) required for single-family residential buildings or structures under Section IV-A of the By-law. The ability to continue the use of the undersized Lot for single-family dwelling purposes arose from the fact that the cottage already existed on the Lot when the Zoning By-law that instituted the dimensional requirements was adopted.

The introductory sentence of the Hingham Zoning By-law's Section IV-A, "Schedule of Dimensional Requirements," expressly prohibits the erection of a building or structure on a lot which does not meet the dimensional requirements for the applicable zoning district, including the minimum lot size (frontage and area) requirements. Section IV-A provides in relevant part:

No lot shall be created or subdivided and no building or structure shall be built, enlarged or located in such a manner as does not conform to the requirements set forth in Sections IV-A, IV-B and IV-C of this By-law. [Emphasis added.] [Note 6]

Section IV-A then sets out, in tabular form, the dimensional requirements applicable to each zoning district, including minimum lot size (area and frontage) requirements. For Residence District C, the minimum lot size requirements are listed as 40,000 s.f. of area and 150 feet of frontage. In the context of Section IV-A, the cottage was nonconforming not only because of the inadequate setbacks, but also because the Lot itself was undersized.

Given the requirements of Section IV-A, an undersized lot may not be built upon unless it is protected from application of the current minimum dimensional requirements pursuant to G.L. c. 40A, § 6. As discussed above, the subject Lot is not protected under G.L. c. 40A, § 6, ¶ 4. When the nonconforming cottage was demolished, the nonconforming use of the land, i.e., the location of a dwelling on a lot lacking the required minimum frontage and area, was discontinued. When the use was not re-instated within two years, the right to continue to use the undersized Lot as the site of a residential dwelling was extinguished - not only the right to rebuild a dwelling with the same nonconforming setbacks as the cottage. See Dial Away, 41 Mass. App. Ct. at 171 ("[I]t is apparent…that when a building is totally demolished, the use to which it was put is necessarily discontinued.").

Accordingly, on the basis of the undisputed facts before me, I find that once the undersized Lot was then left vacant for more than two years after the nonconforming residential cottage was razed, the protected nonconforming single family residential use of the undersized Lot was discontinued by virtue of Subsection 4 of Section III-G of the Hingham Zoning By-law, which expressly terminates the right to continue a nonconforming "use of…land…in the event of non-use or non-restoration for a period of not less than two (2) years."

Consequently use of the Lot is subject to current dimensional requirements, including minimum size requirements. Since it undisputedly does not meet those requirements, the Lot is no longer available for construction of a by-right residential dwelling. See, e.g., Wells v. Zoning Board of Appeals of Billerica, 68 Mass. App. Ct. 726 , 737 (2007) (reconstruction on nonconforming lot more than two years after nonconforming dwelling was torn down ran afoul of G.L. c. 40A, § 6 and the related Zoning By-law provision).


For the reasons set forth, the ZBA's decision was contrary to law and therefore exceeded its authority. Accordingly, summary judgment shall enter annulling the ZBA's March 4, 2004 decision.


[Note 1] Counsel for Reed at that time reported that he wished to withdraw from the case; however, counsel was informed that he may not withdraw without an appearance of new counsel or a notice of appearance pro se by Reed.

[Note 2] Counsel for the ZBA did not appear at the status conference, and counsel for the private parties reported to the court that the ZBA has never taken an active role in this litigation.

[Note 3] Reed did not the appeal the denial of the requested height variance.

[Note 4] Reed also relies on a photocopy of a portion of a subdivision plan showing lots fronting Bonnie Brier Circle, and "evidence" Reed purports to have submitted to the ZBA "demonstrat[ing] that the neighborhood is replete with undersized lots containing single family residences that currently violate setbacks but are otherwise grandfathered." Neither of these documents form a proper evidentiary basis for summary judgment. The photocopy of the subdivision plan is not a certified record, nor is there an affidavit properly authenticating the plan. The alleged "evidence" submitted to the ZBA appears to be a document entitled "Affidavit of Christopher S. Pitt," dated February 2, 2004. In that "Affidavit," Attorney Pitt states that he is an attorney who represented the Estate of Jane Nangle with respect to two small lots on Bonnie Brier Circle (including the Lot), and then proceeds to set forth the steps he took as attorney, between 1995 and 2002, to market the two lots for residential use. The "Affidavit" is also not competent evidence because it contains both opinion and hearsay, and was not signed under the pains and penalties of perjury.

[Note 5] Notwithstanding the exceptions set forth in the first paragraph of G.L. c. 40A, § 6, municipalities are given the power to regulate nonconforming uses and structures that have been either abandoned, or not used for a period of two years or more. G.L. c. 40A, § 6, ¶ 3.

[Note 6] The summary judgment record does not include Section IV-B or IV-C, and this court is not permitted to take judicial notice of portions of the By-law not included in the record. Perini Corp. v. Bldg. Inspector of North Andover, 7 Mass. App. Ct. 72 , 78 (1979).