STANLEY COX, SUSAN COX and CONSTANCE COLEMAN v. MICHAEL DAVIS and JOSEPH FISHER, W. TOD McGRATH and STEPHEN McLAUGHLIN as members of the Hingham Zoning Board of Appeals.

Introduction

In this G. L. c. 40A, §17 appeal, plaintiffs Stanley Cox, Susan Cox, and Constance Coleman seek reversal of the Hingham Zoning Board of Appeals' denial of their appeal of the building permit issued to defendant Michael Davis for the renovation of his existing single­ family home at 14R/16R Friend Street. [Note 1] See Ex. 1 (showing location of the properties involved in this case). The Coxes live at 16 Friend Street in front of the Davis parcel, and Mr. Davis' driveway (a 10'-wide easement over the Coxes' land, leading from 14R/16R to Friend Street) runs along the edge of the Cox property next to the Coxes' house. [Note 2] See Ex. 2 (showing easement on 16). [Note 3] Ms. Coleman lives down the road at 6 Friend Street, one lot over from the Davis property. See Ex. 1. She cannot see the Davis house from her house.

In brief, the dispute is this. The Davis house has existed as a single-family home in its present location, with its present footprint, since 1949. [Note 4] The renovations made no change to the location or existing footprint of the house, and were limited to this: the kitchen and bathroom in the interior of the house were remodeled, an exterior door was re-located to a place where there previously had been a window, and one of the wings on the house - a 6' x 11' bedroom -was torn down and re-built with a new foundation, new level flooring, fewer windows, and a "gableing" of its previously angled roof which gave it slightly more headroom and a more consistent appearance with the rest of the house. See Ex. 3 (before), Ex. 4 (during), and Ex. 5 (after). The total cost of the renovations was $10,250 and they were completed over a weekend.

The building permit for the renovations was issued on May 8, 2008, which the plaintiffs timely appealed. The occupancy permit issued on June 24, 2008.

The Davis lot does not conform to current zoning - it does not have the presently-required minimum amount of frontage on an approved way - but this lot non-conformity is clearly grandfathered. See Ex. 2 (1956 subdivision approval). [Note 5] Rather, it is the non-conformity of the house -- it is closer to the lot line than current zoning allows - that is at the center of this case.

Mr. Davis and the board contend that the house is lawfully pre-existing and its non­conforming setback thus grandfathered (see G.L. c. 40A, §6); that, even if the house was not lawfully built (i.e., if it was constructed without a building permit), it has been there for over 10 years and thus has the protections of G.L. c. 40A, §7 and c. 184 of the Acts of 2016; that the renovations are de minimis and thus can be done by building permit alone (see Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 362-363 (2008)); and that the building permit thus properly issued. They further contend that the plaintiffs lack standing to challenge the permit.

The plaintiffs make four arguments in response. First, they contend that Mr. Davis cannot show that his house was originally lawfully constructed, and thus has no protection under G.L. c. 40A, §6. Second, they argue that, whatever protection might once have existed under G.L. c. 40A, §§ 6 & 7 and c. 184 of the Acts of 2016, that protection is now inapplicable because the single-family use of the structure was "abandoned" for more than two years. Third, they assert that, even if the house has those protections and its single-family use was not abandoned, the renovations are of such a scale that they need a special permit or variance, not just a building permit. Fourth, they contend that they have standing to make these arguments because, they say, the Davis house is not "legally" on the lot and, even if it is (or, more precisely, cannot at this point be ordered "removed", see G.L. c. 40A, § 7), the impacts of the renovations make them sufficiently aggrieved to have standing to assert their claims.

The case was tried before me, jury-waived. I also took a view. Based on the testimony and exhibits admitted into evidence at trial, my observations at the view, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I uphold the issuance of the building permit and DISMISS the plaintiffs' appeal. Because the plaintiffs' case fails on the merits, I need not, and do not, reach the issue of their standing. See Mostyn v. Dep't of Envtl. Protection, 83 Mass. App. Ct. 788 , 792 & 792 n.12 (2013); Powers v. Falmouth Zoning Bd. of Appeals, 89 Mass. App. Ct. 1134 , 2016 WL 4070627 at *2 n.9 (Jul. 29, 2016) (Mem. & Order Pursuant to Rule 1:28).

Facts

These are the facts as I find them after trial.

Both the Cox and the Davis properties (Cox: 16 Friend Street; Davis: 14R & 16R Friend Street) were once in the common ownership of William Daly, who sold them to Anna Kendrick in 1948 and then reacquired them from her in 1949. [Note 6] Mr. Daly conveyed what is now 16 and 16R to a third party in 1952, retaining 14R and a 10'-wide easement over 16 for access from 14R to Friend Street. See Ex. 2 (showing location of easement). The successor to the new owner of the 16/16R property divided that property into 16 and 16R in 1956, reserving the same 10' easement over 16 for 16R's access to Friend Street. See Ex. 2 (approved subdivision plan). 16 was conveyed to a predecessor of the Coxes and acquired by the Coxes in 1992. 16R was conveyed to Mr. Daley in 1959, bringing it into common ownership with 14R at that time. Those two lots (14R and 16R) have thus merged for zoning purposes, and are now owned by defendant Michael Davis, who acquired them in February, 2006.

The Cox house was built in the 1800's. The Davis house, in its current location and configuration, was built and occupied as a single-family residence no later than 1949. It has always, and only, been used as such a residence. For the following reasons, I find that the house was built and subsequently occupied under a building permit.

The parties agree that no such building permit can be found, either in their own records or the presently-maintained building-permit records of the town. They also agree, however, that the town's building permit records may be incomplete. [Note 7] Thus, the absence of such a permit in the current records is not dispositive of whether such a permit ever existed. The burden of proving that such a permit issued is on Mr. Davis, and I find that he has met that burden. The town census reflects a resident in "14 Rear" Friend Street beginning in 1944 and continuously thereafter. Obviously, a structure must have existed on 14R in which that resident lived, and there was no showing that any structure, other than the present one, ever existed on 14R that was capable of residence. The plaintiffs argue that the "14 Rear" reference in the 1944 and subsequent town censuses referred to a different house (perhaps on the 14 Friend Street property), and that the proper census reference to the Davis house was "16 Rear", which did not appear on the census until 1952. I disagree. The annual town census, and the accuracy of that census, are among a municipality's most important functions, and in the absence of persuasive proof otherwise, I presume their accuracy. See Openshaw v. City of Fall River, 287 Mass. 426 , 432 (1934). [Note 8] Tellingly, the town's property tax records show the 14R house, in its pre-renovation state (same exterior appearance, same location), [Note 9] with the "year built" notation of 1949 (see Trial Ex. 15) and the parties stipulated that "the Town records that [the] parties have been able to locate list the structure on the Locus for which 'grandfathering' is contested ('Locus old house') as built on the Daly property [14R] in 1949" (Statement of Agreed Facts 15 at 3 (Jan. 26, 2016)). My conclusion is that the 14R house existed at least as early as that date, and probably as early as 1944, in the same location, with the same appearance, and with the same footprint as existed immediately prior to Mr. Davis' renovations. I further conclude, and so find, that it was built under a building permit, for this reason. I do not believe that a house on the town census, repeatedly photographed, inspected, valued and re-valued by the town assessor over the course of many years, would have escaped zoning enforcement action if it had been illegally built and illegally occupied. It is thus reasonable to infer, and I so infer, that it was built and occupied under town permits. Also, the 1949 date on the property tax record had to come from somewhere, and it is reasonable to infer, and I so infer, that it came from consulting other town records or officials with knowledge of those records, most likely in the building department.

Mr. Davis purchased the house and 14R/16R property in February 2006 from its prior owner, Erdine Schirmer, who had lived there for many years. The house was heated, and its cooking appliances powered, by a propane gas tank alongside the house. Electricity came from an overhead line from the street, and water from a line running through the Coxes' basement out to the 14R home. The water line froze in January 2004, and was cut-off by the Coxes shortly thereafter. Ms. Schirmer moved to a senior housing development, gradually transferring her belongings from the 14R house to her new residence. Neither the house nor the property was abandoned, however. Ms. Schirmer came back periodically to move her belongings, and her daughter and her daughter's boyfriend stayed there occasionally. Most importantly, Ms. Schirmer actively marketed the house. She hired real estate brokers who brought clients to the house and, in June 2004, entered into a purchase and sale agreement with Brian Davis, Michael Davis' brother, which was never consummated. Instead, Ms. Schirmer continued to have the house shown by brokers and had a continuing series of discussions with Michael Davis about his possible purchase of the house over the next two years. The heat and electricity remained on in the house, and Mr. Davis brought quantities of water to the house for drinking and bucket­flushing the toilets. He was frequently there to mow the lawn, plow snow off the driveway, clean out the interior of the house and its outbuildings, and to have surveyors, engineers, and town officials there to design improvements to the septic system and explore the possibility of building a larger home on the property for he, his wife, and his young school-age children to live at. His intent was to replace the existing house with a new house if he could get the necessary permits to do so, but to keep the existing house and renovate and rent it if he could not. His intent, at all times, was that the existing house would remain unless and until was replaced. As it happened, his replacement plans came to nought because of continued zoning and board of health challenges from the Coxes, who were opposed to anything being on the property, including its existing house. Ms. Schirmer remained the owner of the house until February 2006 and, even though allowing Mr. Davis' activities at the house and site, continued actively to market it in case Mr. Davis ultimately decided not to buy the property.

Mr. Davis did buy the property in February 2006 and asked the Coxes to turn the water supply back on so that he would no longer need to bring containers of water to the house. The Coxes refused to do so, intending to argue that the lack of an active water line meant that the house had been "abandoned." Mr. Davis then began planning to put in a new water line, running solely through the 10' easement, and to relocate the driveway so that it would solely be within the 10' width. [Note 10]

From February 2006 until May 2008 when he completed the renovations and installed a full-time tenant at 14R, Mr. Davis continued to regularly come to the property for maintenance purposes (mowing, plowing, and keeping electricity, propane heat, and appliances in working order) and with his surveyors and engineers. He also, for a time, allowed his sister to live in the house overnight - at least until the Board of Health learned of it and forbade further occupation until a permanent water line was connected. [Note 11] See Trial Ex. 55. Mr. Davis had planned to install an independent water line to his property through the easement, and did so in May 2008.

Board of Heath approvals for a new septic system were sought in 2005 and ultimately obtained in January 2006. Mr. Davis signed a purchase and sale agreement with Ms. Schirmer in early February 2006, purchased the property on February 10, 2006, and successfully defeated the Coxes' appeal of the septic permits. He applied for and received Zoning Board approvals to build a larger house on the property, but ultimately dropped those plans when the Coxes appealed them to court. Instead, as a purely economic decision (he and his family had found another homesite for themselves), he elected to renovate the existing house at 14R and rent it to tenants.

The May 8, 2008 building permit authorized "interior/exterior renovations" to the 14R house, described as "renovation to existing dwelling as per information submitted in compliance to Mass. State Building Code 780 CMR." More specifically, they were (1) the remodeling of the kitchen and bathroom in the interior of the house (allowable without zoning relief, see G.L. c. 40A, §3), (2) the relocation of an exterior door to the other side of the house, in a place where there previously had been a window, and (3) putting a new foundation, new level flooring, new (but fewer) windows, and a "gable-style" roof in place of the existing "angled" one on one of the wings on the house - a 6' x 11' bedroom - which give it slightly more headroom and a more consistent appearance with the rest of the house. [Note 12] Because the 6' x 11' wing collapsed during the installation of the new foundation (sono-tubes in place of the former cinder blocks), the renovations to that area involved its reconstruction. See Ex. 3 (before), Ex. 4 (during), and Ex. 5 (after). Everything was done, however, on the same footprint as before. The total cost of the renovations was $10,250 and they were completed over a weekend. The June 24, 2008 certificate of occupancy/compliance certified that the renovations had been completed in accordance with the building permit.

The Coxes characterize the renovations as a significant expansion of the living area of the house - taking a formerly little-used space (the 6' x 11' wing), which they claimed was nothing more than an enclosed porch, and turning it into an actively-used bedroom. The building commissioner and the zoning board reviewing the validity of the building permit disagreed, and I disagree. [Note 13] Every photograph of the house, no matter how far back, showed the 6' x 11' area fully enclosed, with solid walls and windows. See, e.g., Trial Bxs. 41 & 43. The evidence was that the room had always been, and remained, a bedroom - perhaps little-used before when there was only one elderly person (Ms. Schirmer) living in the house, [Note 14] but now more actively used with a couple living there. The additional headroom did not change its use. It simply made it more convenient. The main living areas of the house - the kitchen, dining area, and living room - remain on the opposite side of the house, away from the Cox residence. The exterior walls remain precisely on the former footprint, and the additional height is minimal.

Further facts are set forth in the Analysis section below.

Analysis

I begin with the question of whether the Davis house is "grandfathered" (as discussed below, it is), and then proceed to the question of whether those grandfather protections allow the scope of these renovations to be performed with simply a building permit (they do).

In relevant part, G.L. c. 40A, §6 provides:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or bylaw required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of such structure.

Hingham first adopted zoning in 1941 and, until 1955, the side yard setback requirement for residences in this district was 5'. [Note 15] The Davis house is set back from its side yard property line (the line facing the Cox property) more than 5', and thus complied with zoning when it was built (1949). It remains in that location today, with no change to that setback. As noted above, I find that the house was constructed with a building permit. It was thus "lawfully in existence" before the side setback requirement changed, and that non-conformity - the structure's only non-conformity - is grandfathered under §6. [Note 16] I so find.

Moreover, whether or not protected under §6, the house is protected under G.L. c. 40A, §7. In relevant part, §7 provides a ten-year statute of limitations, measured from the date of the alleged violation, for actions "the effect or purpose of which is to compel the removal, alteration, or relocation of any structure" in zoning violation, and a six-year statute of limitations for real property "improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits." The Davis house existed with its current setback for at least 59 years before this action was brought. Thus, even if it did not receive a building permit for its construction, it still falls within the protections of §7. It is thus, unquestionably, protected from "removal, alteration, or relocation."

The issue thus turns to whether the renovations to the protected structure could be done simply with a building permit. Bjorklund (following earlier cases) resolved that question with respect to §6 and, because its reasoning applies equally to §7, to §7 as well. Any possible counter-argument to the applicability of Bjorklund and its prior precedent to §7- protected structures has now been resolved by c. 184 of the Acts of 2016, made fully retroactive by the legislature. As §1, ¶ 3 of that Act, amending G.L. c. 40A, §7, provides: If real property has been improved by the erection or alteration of 1 or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation of this chapter [G.L. c. 40A] or of an ordinance or by-law adopted under this chapter has been recorded in the registry of deeds for the county or district in which the real estate is located or, in the case of registered land has been filed in the registry district in which the land is located within a period of 10 years from the date the structures were erected, [Note 17] then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or by-law relating to non-conforming structures.

Its retroactive effect is contained in §2 of the Act, which provides:

The third paragraph of section 7 of chapter 40A of the General Laws, as appearing in section 1, shall be applicable regardless of whether the structure was erected prior to or after the effective date of this act.

The scope of allowable renovations which can be done to non-conforming structures solely by building permit, without the need for any zoning relief, has been addressed by a series of cases. Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 (1995) is not a bad place to start. [Note 18] There, a landowner changed his sign panels (whose location had been authorized by a prior variance), and the town boards ruled that he needed a further variance to make that change. They then granted the variance. Nonetheless, the landowner appealed that decision, contending that, as a matter of law, neither a variance nor a special permit was required, and no ordinance or bylaw could require him to seek such relief. The Supreme Judicial Court agreed, ruling that the "minor changes" that occurred (apparently to the content of the signs, although it's unclear if there were any other changes of a minor nature) "do not remove the signs from the protection of G.L. c. 40A, §6" and, as a matter of law, neither the town nor its boards could rule otherwise. The test established was whether the changes crossed the "substantiality threshold", and these did not. See also Crawford v. Building Inspector of Barnstable, 356 Mass. 174 (1969) (enclosure of outside porch and removal of exterior stairs considered "minor" and, for that reason, protected by the predecessor to G.L. c. 40A, §6 without need of special permit). The question of how the "substantiality threshold" applies to other fact patterns and what, as a matter of law, would be considered "minor", was subsequently addressed in two SJC cases, Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) and Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008).

In Bransford, the SJC split 3-3 on the question of whether a single family home on an undersized lot could be almost doubled in size, with a footprint 200 square feet greater than before, without the need of a special permit. The argument made was that, except for the undersized lot, everything else would be dimensionally conforming. The town ruled (and each of the SJC justices agreed) that the former house, now torn down, could be reconstructed with only a building permit (no special permit necessary) if it did not exceed the footprint and square footage of the original residence. Where the Justices disagreed was whether the doubling in size and significant increase in footprint "intensified" the existing non-conformity (the undersized lot), and thus required a special permit. Three Justices said yes, citing "density" impacts. Three Justices said no, opining that nothing but a building permit would be necessary in such circumstances. All of the Justices agreed thus such "minor" additions as the addition of a dormer, or the enclosure of a porch or garage for the purpose of adding a family room, would be protected, could be done by building permit only, and would not require a special permit, which the "no" Justices described as a "lengthy, costly and discretionary...administrative gauntlet" which "impedes and burdens the upgrade of a large part of our housing stock." Bransford, 444 Mass. at 870. Of note, all of the Justices agreed "that the building inspector should make the initial determination of whether a proposed reconstruction [or renovation] increases the nonconforming nature of a structure" and, if in his or her view it did not, could go ahead and issue the permit. See id. at 865 n.2.

Since the 3-3 decision did not precedentially determine the "undersized lot" question (it takes a majority vote of the Justices sitting on the case to do so), the question was presented again in Bjorklund. There, in a 5-2 decision, the Court ruled that the replacement of a 675 square foot one-bedroom, one-story single-family house on an undersized lot with a 3,600 square foot, three-bedroom, 2 1/2 story residence on a 1,920 square foot footprint with an additional 900 square feet of impervious surface for a driveway, needed a G.L. c. 40A, §6 finding. In terms of what the building inspector could authorize with just a building permit, the Court ruled:

The board does not dispute that the plaintiffs could reconstruct a house on the lot, or modernize the existing house, in keeping with the existing structure's building footprint and living area. The plaintiffs cannot be compelled to remove the existing house because of the protection granted to a pre-existing structure on a pre-existing nonconforming lot. Concerns over the making of small-scale alterations, extensions, or structural changes to a preexisting house are illusory. Examples of such improvements could include the addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of a one-story garage for no more than two motor vehicles; the conversion of a one-story garage for one motor vehicle to a one-story garage for two motor vehicles; and the addition of small-scale, proportional storage structures, such as sheds used to house swimming pool heaters and equipment. Because of their small-scale nature, the improvements mentioned could not reasonably be found to increase the non-conforming nature of a structure, and we conclude, as a matter of law, that they would not constitute intensifications. More substantial improvements, or reconstructions, would require approval under the second except clause [of §6] and under the terms of an existing ordinance or bylaw that will usually require findings of the type specified in s. 1642 of the Norwell bylaw.

Bjorklund, 450 Mass. at 362-363.

The minimal changes involved with Mr. Davis' renovations - none of which changed the building's footprint, none of which changed its living space, none of which changed its height except for the small amount of additional headroom produced by the "gabling" of the roof on the 6' x 11' wing, and which reduced the number of windows facing the Coxes' property -- clearly fall within the "small-scale alterations, extensions, or structural changes" that are allowed, as a matter of law, solely by building permit. Indeed, they fall squarely within the "upgrade[s to] our housing stock" that the three Justices in Bransford noted should not be "impede[d] or burden[ed]."

The plaintiffs' final argument in opposition to the building permit is one of "abandonment." Under G.L. c. 40A, §6, a zoning "bylaw may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." Hingham's zoning bylaw regulates certain discontinued and abandoned nonconforming uses and structures. See Hingham Zoning Bylaw - April 2013, §III-I (Nonconforming Conditions) (Trial Ex. 50). In the plaintiffs' view, the failure to have a full-time, round-the-clock, resident in the Davis house from the time the water line was cut-off in January 2004 until a new line was constructed in May 2008 meant that its protected status had been abandoned or discontinued. They are incorrect. Contrary to the plaintiffs' arguments, the mere vacancy of a dwelling does not, as a matter of law, require a conclusion that its non-conforming status is no longer being maintained. For that, the evidence would have to show not only that there was no occupant, but that there was also no effort to market, rent, or occupy the dwelling or to maintain it as a dwelling. See Derby Refining Co. v. City of Chelsea, 407 Mass. 703 (1990). In that case, in reasoning followed by this court in Corbett v. Chin, 23 LCR 677 (2015) (Speicher, J.), the Supreme Judicial Court held that the failure to store oil in the tanks of an oil storage terminal for several years did not cause the terminal to lose its status as a lawful prior non-confirming use, noting that although the oil storage terminal was "mothballed" and was not being used to store oil, it was being marketed for sale as an oil storage terminal, and its tanks and ancillary equipment were being actively maintained so that it could continue to be used to store oil once sold to a new owner. "[T]he reasonable inference to be drawn from the manner in which Texaco shut down the facility is precisely the opposite of abandonment - that Texaco intended to preserve the facility in good condition for a profitable resale." Derby Refining, 407 Mass. at 709.

The town bylaw is fully in accordance with this. [Note 19] See Bylaw, §III-I; Trial Transcript, Vol. 3 at 98-99 (statement of town counsel). Even under the bylaw, a non-conforming use is only deemed "abandoned" when that use has been discontinued (defined as "the actual cessation of any use or the non-use of any structure") for at least six consecutive months, and "customary equipment, furniture or supplies for the operation of such use have been removed", and at least one of these apply: "the building or structure in which such use was located [has not been] actively marketed for sale or lease", or there has been a "failure to provide for regular maintenance of the building or structure such as failing to heat the building at a level necessary to prevent frozen pipes or related damage, failing to provide snow removal, or failing to maintain landscaping." Bylaw, §III-I.1E (i) & (ii). A non-conforming building or structure is only deemed "abandoned" "when it is no longer occupied for a conforming or lawfully nonconforming use for at least six consecutive months and one or more of the following apply:

(a) it is not actively marketed for sale or lease, (b) [there has been a] failure to provide for regular maintenance such as failing to heat the building at a level necessary to prevent frozen pipes or related damage, failing to provide snow removal, or failing to maintain landscaping, [or] (c) [there has been] issuance of a written notice of an unsafe structure by the Building Commissioner and failure of the owner to rectify the unsafe condition in the manner and in the timeframe specified in such written notice." Bylaw, §III-I.1E (iii).

Here, Ms. Schirmer and her daughter continued to come to the house for months after the Coxes shut the water off, the house was actively marketed as a single-family home up until the time Mr. Davis bought it in February 2006, Mr. Davis himself regularly came to the house for maintenance purposes both before and after he bought it, none of its "customary equipment" (heating, electricity, appliances, etc.) was removed at any time, the house and its grounds were regularly maintained with the heat and electricity kept on to prevent frozen pipes, etc., and the driveway was regularly plowed. Mr. Davis hoped to be able to construct a new house on the property, to be sure, but he always preserved his rights to use this one in case those plans were frustrated. In short, neither the house nor its use was ever abandoned or discontinued.

Conclusion

For the foregoing reasons, the plaintiffs' appeal from the board's affirmance of the grant of a building permit to Mr. Davis to construct and complete the renovations at issue is DISMISSED, WITH PREJUDICE. Judgment shall enter accordingly

SO ORDERED.

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