At issue in this G.L. c. 40A, § 17 appeal is the Manchester-by-the-Sea Zoning Board of Appeals' grant of a special permit to defendant Matthew Genta to replace an existing single-family house on his property with a new, far larger two-story house with an attached garage and, in addition, a large freestanding two-story accessory building with a three-car garage on its first floor and finished work and play space on its second.
The problem this case presents is that there is also another single-family house on the Gentas' property and, since 1945, it has been unlawful to have two houses on one residential lot under the zoning by-law. Under the by-law, however, legally pre-existing nonconforming structures and uses can be continued and may be expanded if a special permit is granted. The issue thus presented is whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945. [Note 1] If they were not, the special permit is invalid.
The case was tried before me, jury-waived. I also took a view. Based on the testimony and exhibits admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that Mr. Genta failed to prove that the two single-family uses pre-dated 1945 (indeed, I find otherwise), and that the special permit he was granted is legally untenable. I also find and rule that the plaintiffs, his directly-abutting neighbors, have standing to challenge the permit grant. The Board's decision granting the special permit is thus reversed and vacated.
These are the facts as I find them after trial.
The Parties' Properties
The parties' properties are located on Boardman Avenue, a private way in Manchester-by-the Sea that runs along the Atlantic Ocean. The Boardman Avenue neighborhood is a quiet residential neighborhood of single-family houses, many of them summer homes, and most on large lots.
Defendant Matthew Genta and his wife Caroline Darbyshire (the "Gentas") are the record owners of One Boardman Avenue and the beneficial owners of the adjacent property at Three Boardman Avenue. The Gentas' predecessors divided One Boardman and Three Boardman in 2004 but, because the Gentas now control both, the two are considered one lot for zoning purposes. [Note 2] There is presently a one-story, two-bedroom, 1,200-square-foot house on One Boardman Avenue, and another one-story, two-bedroom house on Three Boardman Avenue. The One/Three Boardman Avenue property thus contains two single-family houses that came about as follows. In the 1920s, there was an L-shaped greenhouse where the two houses are located today. At some point after the mid-1950s, the central portion of the greenhouse was demolished, leaving two separate structures at each end of the "L" that, after further construction, came to be used as two separate and distinct houses. Directly behind the two houses is a commuter railroad track that runs parallel to the property. On the other side of the railroad track is a hill and a scenic wooded area.
The front of the Gentas' property directly abuts a section of the land at Two Boardman Avenue, which is owned by plaintiff Margot Pyle and her son, plaintiff Russell Pyle, as Trustees. The Pyles' land is bisected by Boardman Avenue, and is on both sides of that street. The Gentas' houses are separated from Boardman Avenue by the part of the Pyles' property that is on the Gentas' side of the street, and those houses each access Boardman Avenue by a right of way over the Pyles' land.
The Pyle house at Two Boardman Avenue is on the ocean, and is used by them and their families as a summer home. Ms. Pyle started spending her summers at the house over fifty years ago when her mother-in-law owned it. Ms. Pyle inherited the property from her late husband in 1993, who inherited it from his mother in 1984.
The Pyles' property consists of approximately two-and-one-half acres and, as previously noted, is bisected by Boardman Avenue. Their house is three-stories, approximately 5,000 square feet, and sits to the south of Boardman Avenue on their waterfront peninsula. The section of their land on the other side of the street directly abuts One/Three Boardman Avenue, and contains the Pyles' garage and a large part of their yard. The Pyles' house on the peninsula has expansive views of the ocean. From their front porch and windows on the street side, and even more so from the part of their yard on the other side of Boardman Avenue, the Pyles have a clear view of the Gentas' existing houses and the hill, trees, and open space behind those houses. The Pyles use the part of their yard on the Gentas' side of the street, through which the Gentas' access road runs, for riding bikes, walking, and as a children's play area. They also use the garage for storage of their bicycles, water-related items, and other recreational gear.
Relevant Zoning History
Manchester-by-the-Sea adopted zoning in 1945. At that time, the One/Three Boardman Avenue property was a single 60,040-square-foot lot [Note 3] located in the Single Residence District, in which the minimum lot area was 22,500 square feet. Under the 1945 by-law, a property in that district could be used for one "detached one-family dwelling" and one such dwelling only. [Note 4] As discussed below, the One/Three Boardman Avenue property had no dwellings on it in 1945.
Over the years, the town made a number of amendments to its zoning by-law, zoning districts, and zoning map. By 1954, the One/Three Boardman Avenue property was located in the Single Residence District A, which had a minimum lot area of 22,500 square feet. Under the 1961 zoning by-law, the minimum lot area of Single Residence District A remained 22,500 square feet and, again, only one dwelling was permitted on a lot. [Note 5]
The town further amended its zoning by-law and zoning map in 1963, placing the One/Three Boardman Avenue property in the Single Residence District C in which the minimum lot area was 45,000 square feet and, again, only one dwelling was permitted on each lot. [Note 6] The same requirements were in place under the 1965 zoning by-law.
In 2000, the town again amended its zoning by-law, adding the Single Residence District E which encompasses both of the parties' properties. Lots continue to be subject to the "one dwelling only" requirement.
Relevant Provisions of the Current Zoning By-law
Under the current zoning-bylaw, in all Single Residence Districts including District E, "no building or land shall be used and no building shall be erected or altered which is intended or designed to be used for any purpose" except for those enumerated in the by-law. By-law § 4.1. "A dwelling having not more than one dwelling unit" is listed as one such purpose, and thus such use is permitted as of right in Single Residence District E. [Note 7] By-law § 4.1.1. The by-law defines "dwelling" as "[a] detached building designed or arranged to accommodate one or more dwelling units and separated by side yards from any other structure except accessory buildings. Except as expressly provided in § 188.8.131.52 (employee), [Note 8] not more than one dwelling shall be built or maintained on a lot." By-law § 2.4. A "dwelling unit" is "[a] building or portion thereof occupied or suitable for occupancy as a residence and arranged for the use of one or more individuals living as a single housekeeping unit, but not including a trailer, mobile home or recreational vehicle which is designed to be mounted on wheels, whether or not on a permanent foundation." By-law § 2.5. Because there is more than one dwelling on the One/Three Boardman Avenue property, its use is nonconforming under the current zoning by-law.
One/Three Boardman Avenue is also dimensionally nonconforming. In the Single Residence District E zoning district, each lot must be at least 90,000 square feet in area. See By-law § 5.4. One Boardman Avenue and Three Boardman Avenue are, respectively, approximately 26,000 square feet and 34,000 square feet in size. They are thus undersized under the current zoning by-law, either separately or combined.
Under the by-law, uses and structures that do not conform to the requirements of the current zoning by-law "may be continued" if they were "lawfully existing at the time of the adoption of this By-Law or any amendment hereto." [Note 9] By-law § 6.1.1 (emphasis added). In such cases, "[a] nonconforming structure or use may be changed, extended or altered, provided that in each case the Board of Appeals grants a special permit therefore after finding that such change, extension or alteration is not substantially more detrimental or injurious to the neighborhood than the existing nonconforming structure or use." [Note 10] By-law § 6.1.2. The key word is "lawfully."
A special permit shall not be granted unless "the proposed uses [are] in harmony with the purpose and intent of this By-Law and will not be detrimental or injurious to the neighborhood in which it is to take place . . . ." [Note 11] By-law § 7.5.2. In determining whether the proposed use will be detrimental to the neighborhood, the Board must consider a number of factors, including the "adequacy of the site in terms of size for the proposed use" and the "impact on neighborhood visual character, including views and vistas . . . ." By-law § 7.5.2. The purpose of the zoning by-law "is the promotion and protection of the public health, safety, convenience, and general welfare" of the town's inhabitants and the public by, inter alia, "preventing overcrowding of land . . . ." [Note 12] By-law § 1.2.
The Special Permit
On August 5, 2013, Mr. Genta applied to the Board for a variance to significantly expand the existing house at One Boardman Avenue and, in addition, to construct a new freestanding building toward the rear of the property. [Note 13] In a decision dated February 24, 2014, the Board granted Mr. Genta a special permit, not a variance, for the proposed construction. [Note 14] The Board ruled that the project required a special permit, not a variance, based on its assumption that both dwellings on Mr. Genta's property had been used as separate single residences prior to 1945 and that a prior variance corrected any potential grandfathering problem. [Note 15] The Board further found that the proposed construction would not be substantially more detrimental to the neighborhood than the existing structure.
The Use and Ownership of One/Three Boardman Avenue
Contrary to the Board's assumption, there was no residential dwelling, let alone two, on One/Boardman Avenue in 1945, and no such proof at trial to the contrary. The town's Board of Assessors Valuation Survey dated June 1921 and updated through January 1, 1952 depicts two structures on the One/Three Boardman Avenue property: (1) a small rectangular "shelter" in the northwesterly corner of the lot, and (2) a larger L- shaped "greenhouse" located on the easterly side of the property. [Note 16] Other parcels on that valuation survey contain structures with different labels, including "house," "garage," "stable," barn," and "stable and tenement." Thus, if either structure on One/Three Boardman Avenue was being used as a house at that time, it would have been labeled as such. I therefore find that when the town adopted zoning in 1945, both the shelter and greenhouse structures were located on the One/Three Boardman Avenue property as depicted on the valuation survey, but neither of them was used as a house or any other type of residence. [Note 17] This is consistent with the town's valuation lists from that time period, which indicate that there was no house, or any other residential use, on the One/Three Boardman Avenue property until 1950 at the earliest. [Note 18] There is no indication of a second house a second residential use until after 1952-1953. [Note 19]
On July 17, 1954, the Board granted the then-owner of the present-day One/Three Boardman Avenue property, Lulu Nelson, a variance "permitting her to maintain and complete a dwelling or dwellings within forty (40) feet of the rear lot lines as shown on [a Plan of Proposed Sub-division of Land of Lulu E. Nelson off Boardman Ave., Manchester, Mass." dated October 1952]." That plan depicts a proposed subdivision of the One/Three Boardman Avenue property into two lots, one 29,880-square-foot parcel described as Lot A with a structure labeled "house" (now the Three Boardman Avenue house), and another 30,160-square-foot parcel described as Lot B with a structure marked "unfinished house" (now the One Boardman Avenue house). [Note 20] According to the Board's decision, the "completed dwelling house, shown on Lot A" (the Three Boardman Avenue house) was 28.5 feet from the rear boundary, and the "incomplete dwelling house" shown on Lot B (the One Boardman Avenue house) was 16.4 feet from the rear boundary.
The variance was conditioned on "the present foundation walls connecting the dwelling on Lot A with the dwelling on Lot B be taken down, so that the structures will exist as shown on above-mentioned plan . . . ."
The foundation walls connecting the two structures were eventually taken down, [Note 21] and, on February 26, 1957, Lulu Nelson was granted a building permit for the construction of a structure or addition with a principal use of "new dwelling." Her proposed subdivision of the property, however, never went forward. The property nevertheless came to be used as the site of two different houses, with one on the part of the property presently known as One Boardman Avenue, and the other on the part now known as Three Boardman Avenue. This violated the town's zoning by-law prohibiting the use of more than one dwelling on a residential property.
On September 14, 2004, presumably in an attempt to legitimize the status of the property, Mr. Genta's predecessor in title, Everett Anderson, obtained the town's planning board endorsement of an "Approval under the Subdivision Control Law Not Required" plan that divided the One/Three Boardman Avenue property into two lots. [Note 22] The first lot, Lot A, consists of approximately 26,000 square feet and is presently known as One Boardman Avenue. The second lot, Lot B, consists of approximately 34,000 square feet and is presently known as Three Boardman Avenue. After the subdivision, Marion Anderson took title to One Boardman Avenue, and Everett Anderson took title to Three Boardman Avenue.
On July 27, 2007, Mr. Genta purchased One Boardman Avenue from Marion Anderson for $675,000. On June 18, 2008, Mr. Genta conveyed One Boardman Avenue for nominal consideration to his friend Dieter Hans Gartner as Trustee of the One Boardman Avenue Realty Trust. Mr. Genta and his wife were then, and are presently, the beneficiaries of that trust. Two days later, on June 20, 2008, Mr. Genta purchased Three Boardman Avenue from Everett Anderson for $775,000.
Mr. Genta and Mr. Gartner as Trustee subsequently swapped title to the properties. On July 9, 2013, Mr. Genta conveyed Three Boardman Avenue to Mr. Gartner, as Trustee of the One Boardman Avenue Realty Trust for nominal consideration. On the same day, Mr. Gartner, as Trustee, conveyed One Boardman Avenue to Mr. Genta and his wife, also for nominal consideration. As previously noted, the Gentas control both properties and they have thus merged for zoning purposes and are treated as a single lot.
The Proposed Construction Project
Mr. Genta desires to demolish, rebuild, and add an addition to his existing One Boardman Avenue house and build a new freestanding garage in its back yard. As previously discussed, the Board granted Mr. Genta a special permit for the proposed construction project, based in part on its erroneous finding that the dwellings on One/Three Boardman Avenue are grandfathered single-family uses.
Mr. Genta is a licensed architect and designed the plans for the proposed construction himself. He plans to demolish the existing one-story, two-bedroom, 1,200-square-foot house and construct an approximately 2,800-square-foot, two-story, two-bedroom house with a partially finished third-floor attic. The only portion of the existing house that will remain is part of the foundation. The new house will have a new poured concrete foundation. The first floor will be approximately six feet higher, and the roof line will be raised at least eight or nine feet higher to thirty-five feet above the existing grade. A 24' x 24' attached two-car garage and a twelve-foot-wide entry foyer with a mudroom, stairwell, and elevator will be added to the westerly side the house facing the backyard. In addition, a new, freestanding, eight-hundred-square-foot, two-story, three-car garage will also be constructed in the backyard. The three garage bays will be used for storage, and the second story will have a storage area and a playroom for Mr. Genta's children.
Mr. Genta will be the project manager of the proposed construction project. It will take three or four days to demolish the existing house and haul away the debris in dumpster trucks. It will take approximately two weeks to excavate the foundation, and the construction phase will take up to sixteen months to complete.
The Pyles contend that Mr. Genta's proposed construction project will adversely affect their property. In particular, they assert that they will be harmed by density, view, and construction impacts caused by the construction.
Further relevant facts are set forth in the Analysis section below.
I begin with the Pyles' standing to bring this appeal.
Only a "person aggrieved" has standing to challenge a municipal board's decision. G.L. c. 40A, § 17. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). To be "aggrieved" within the meaning of § 17, one must suffer an infringement of a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006). See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). "Aggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). "The injury must be more than speculative," Marashlian, 421 Mass. at 721, and must be "special and different from the injury the action will cause the community at large." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). "The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner, 459 Mass. at 122.
Direct abutters, such as the Pyles, are entitled to a rebuttable presumption that they are "persons aggrieved." 81 Spooner Rd., LLC, 461 Mass. at 700. To rebut the Pyle's presumed aggrievement, Mr. Genta is required to offer evidence that warrants "a finding contrary to the presumed fact" of aggrievement. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). If he successfully rebuts the presumption, the court must decide the issue of standing "on the basis of all the evidence." 81 Spooner Rd., LLC, 461 Mass. at 701. The Pyles then must prove that they have "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989). To do so, the Pyles have the burden of "putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC, 461 Mass. at 701.
"Credible evidence" has both quantitative and qualitative components. See Butler, 63 Mass. App. Ct. at 441.
Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient.
Id. (internal citations omitted). See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 575 (2016).
The Pyles contend that they are aggrieved in at least three ways.
First, they say, the significantly larger and taller buildings on Mr. Genta's land will impair the views from their property. "[A] zoning by-law can create a protected interest in views from a landowner's property." Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602 (2011). The Pyles have such an interest under Manchester-by-the-Sea's zoning by-law, which requires the Board to consider a proposed use's "impact on neighborhood visual character, including views and vistas . . . ." when determining whether to grant a special permit. See By-law § 7.5.2. The Pyles have a clear view of the Gentas' property from their street-side porch, the windows on that side of the house, and from their front yard and garage across the street abutting the Gentas' property, and a view beyond the Gentas to the hill, trees, and open space beyond. The special permit allows Mr. Genta to replace his existing house with a larger and higher house and a new, also large and tall, accessory building. These will certainly affect the Pyles' view to some extent. I need not, and do not, decide whether that impairment of their view is of a sufficient degree to grant them standing in and of itself (see Kenner, supra, which suggests that it is not) because the Pyles, as direct abutters, have presumed standing and their assertion of construction and density-related impacts, discussed below, are both protected interests, are both supported by credible evidence, and have not been rebutted by the Gentas.
There will certainly be construction-related impacts on the Pyles. See Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 , 335 (2011) (recognizing that construction impacts grant standing). See also Cornell v. Michaud, 79 Mass. App. Ct. 607 , 615 (2011) (recognizing aggrievement based on "intrusive construction"). The Gentas' project involves demolition, a significantly taller and expanded house, and a new, additional free-standing accessory building, also large and tall. All of the construction equipment and supplies will go back and forth to the Gentra property over the right of way on the Pyles' land the site of the Pyles' garage and family play area. See Ex. 1 (Genta project plan).
The Pyles will also be affected by the increased density of development on the Gentas' undersized lot. The by-law protects landowners from the effects of density, for one of the purposes of the by-law is "preventing overcrowding of land," By-law § 1.2, and, in determining whether to grant a special permit, the Board must consider the "adequacy of the site in terms of size for the proposed use." By-law § 7.5.2. At present, the substantially undersized One/Three Boardman Avenue lot contains two nonconforming dwellings. The special permit authorizes Mr. Genta to replace one of those dwellings with a significantly larger two-story structure with an attached two-car garage and, in addition, to build a new accessory two-story building containing a three- car garage with a large storage and work/play area on its second floor. This will make the already dense lot even more crowded, and cause at least some increase in the use of the right of way over the Pyles' land. The "crowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.'" Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009) (quoting Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008)). As direct abutters, the Pyles have presumed standing from these impacts, which the Gentas must rebut. See 81 Spooner Road, LLC, 461 at 700; Marinelli, 440 Mass. at 258. This is particularly so since the sole access of the Gentas' houses to Boardman Avenue is through their right of way over the Pyles' yard and children's play area. The Gentas have not rebutted this presumption by expert or other evidence showing a lack of impact from this increased density in this quiet neighborhood of summer homes and playing children. The Pyles thus have standing to bring this appeal.
In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the reviewing court makes de novo factual findings based solely on the evidence admitted in court, and then, based on those facts, determines the legal validity of the municipal body's decision, with no evidentiary weight given to any findings by the Board. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381382 (2009); Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-486 (1999).
The Board's decision "cannot be disturbed unless it is based on a legally untenable ground' or is based on an unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381382 (quoting Roberts, 429 Mass. at 487). In determining whether the Board's decision was "based on a legally untenable ground," the court must determine whether it was decided "on a standard, criterion, or consideration not permitted by the applicable statutes or by- laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal quotations omitted). In determining whether the decision was "unreasonable, whimsical, capricious, or arbitrary," "the question for the court is whether, on the factsthe judge has found, any rational board" could come to the same conclusion. See id. at 74.
As the recipient of the special permit, Mr. Genta has "the burden of going forward and proving that a permit could lawfully be granted to [him]." Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 626 (1986). He has not met his burden, and the Board's grant of the special permit must be reversed for two reasons. First, Mr. Genta is not eligible for the special permit because the existence of two dwellings on his property is not a legally preexisting nonconforming use. Second, the proposed project does not involve a change, extension, or alteration of a nonconforming use or structure, but rather the construction of an entirely new structure that does not comply with the current by-law.
The Use of the Property Is Not a Legally Preexisting Nonconformity
Under Manchester-by-the-Sea's zoning by-law, no more than one "dwelling" may be constructed or maintained on the One/Three Boardman Avenue property. By-law §§ 2.4 & 4.1. Each of the two existing houses on the property is a "dwelling" because each is a "detached building" that is "separated by side yards" from other structures and is "designed or arranged to accommodate" a "residence . . . for the use of one or more individuals living as a single housekeeping unit." By-law §§ 2.4 & 2.5. Because there are two dwellings on One/Three Boardman Avenue, its use is nonconforming under the zoning by-law.
That nonconforming use "may be continued" only if it was "lawfully existing at the time of the adoption of this By-Law or any amendment hereto." By-law § 6.1.1. The One/Three Boardman Avenue property has been subject to the by-law's prohibition of more than one dwelling on the property since 1945 when Manchester-by-the-Sea adopted zoning. In 1945, there were no dwellings on One/Three Boardman Avenue. Up until at least 1952, there was no more than one dwelling on the property. The second dwelling thus did not exist until after the by-law prohibiting more than one dwelling on the property was adopted. It therefore is not a lawful preexisting nonconforming use, and may not be continued. See By-law § 6.1.1.
Mr. Genta contends that the by-law does not require a nonconforming structure or use to be preexisting for the Board to grant a special permit allowing the nonconformity to be changed, extended, or altered. I disagree. The interpretation of the by-law is a question of law for the court, governed by the familiar principles of statutory construction. See Doherty v. Planning Bd. of Scituate, 467 Mass. 560 , 567 (2014). A court is to construe a statute according to the legislature's intent, "ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 , 729 (2013) (quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 749 (2006)). The court first looks to the statute's language, and, if its meaning is plain and unambiguous, the plain wording shall be enforced unless doing so "would yield an absurd or unworkable result.'" Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (quoting Adoption of Daisy, 460 Mass. 72 , 76 (2011)). The court's objective is "to give effect to all its provisions, so that no part will be inoperative or superfluous.'" Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (quoting Connors v. Annino, 460 Mass. 790 , 796 (2011)).
Mr. Genta correctly observes that By-law § 6.1.2, which governs changes, extensions, and alterations to nonconforming structures and uses, does not use the word "preexisting" to qualify the nonconformities that may be altered by special permit, but his interpretation of the by-law is not persuasive. Section 6.1.2 is one of several by-law provisions included under the by-law's Nonconforming Uses section § 6.1. Section 6.1.1, which immediately precedes § 6.1.2, clearly provides that only lawfully preexisting nonconforming uses and structure can be continued. Section 6.1.2, read in conjunction with § 6.1.1, clearly does not, as Mr. Genta asserts, provide that any nonconforming use or structure can be altered by special permit. Rather, such a nonconforming use or structure must be lawfully preexisting. [Note 23]
Mr. Genta's further contention that he is eligible for the special permit because he seeks to alter a preexisting dimensional nonconformity, but not a use nonconformity, is also not convincing. The by-law clearly prohibits nonconforming uses unless they are legally preexisting. See By-law §§ 4.1 & 6.1.1. The nonconforming use of One/Three Boardman Avenue is not a legally preexisting nonconformity and, therefore, under the by-law it may not be continued.
Contrary to the Board's conclusion, the variance granted to Lulu Nelson in 1954 did not "correct any alleged grandfathering problem." Decision of the Zoning Board of Appeals at p. 2. The variance permitted Ms. Nelson to construct or maintain dwellings within forty feet of the property's rear lot lines. It did not permit the use of more than one dwelling on the property. Moreover, a variance cannot be used as a "launching pad" for expansion of nonconformities; a new or amended variance must be obtained. Palitz, 470 Mass. at 796-797.
Therefore, maintaining two dwellings on One/Three Boardman Avenue is an unlawful use of the property under the by-law. Mr. Genta thus is not eligible for the special permit for his proposed construction project.
The Proposed Construction Project Does Not Involve a Change, Extension, or Alteration to a Nonconforming Use or Structure
Even if the property's use was legal preexisting nonconforming, Mr. Genta's proposed construction project still does not qualify for the special permit. The by-law provides that the Board many grant a special permit to change, extend, or alter a nonconforming use or structure only if it will not be substantially more detrimental or injurious to the neighborhood than the existing nonconformity. See By-law § 6.1.2. The proposed construction project goes far beyond that as it involves the demolition of the existing house and the construction of a new, larger house with a new foundation and a new, large, freestanding outbuilding.
The proposed construction thus must conform to the town's current zoning requirements to go forward. See Schiffenhaus, 79 Mass. App. Ct. at 604 ("[T]he erection of any new building requires conformity with current zoning regulations."). Because the One/Three Boardman Avenue property is undersized, the proposed construction will not comply with the by-law's dimensional requirements.
For the foregoing reasons, the Board's decision granting the special permit is reversed and vacated. Judgment shall enter accordingly.
[Note 1] No one disputes that the two house structures, created through the partial demolition and then renovation of that greenhouse, have existed in their present form for at least ten years and are thus deemed legally nonconforming structures for grandfathering purposes. See c. 184 of the Acts of 2016, amending G.L. c. 40A, § 7. That statutory change, however, does not extend to uses. Thus, to fall within the by-law, the special permit applicant must show that the uses of those structures as single-family residences are legally nonconforming, i.e. (in this instance), that their single-family use each pre-dated 1945.
[Note 2] Mr. Genta and his wife are the record owners of One Boardman Avenue, and the One Boardman Avenue Realty Trust (of which they are the sole beneficiaries) is the record owner of Three Boardman Avenue. Mr. Genta correctly concedes that One Boardman Avenue and Three Boardman Avenue must be treated as one lot for zoning purposes under the merger doctrine because he has control over both lots. See Planning Bd. of Norwell v. Serena, 406 Mass. 1008 , 1008 (1990); Defendant Matthew Genta's Proposed Findings of Fact and Conclusions of Law at p. 31. He makes all of their mortgage and property tax payments, he pays for all of the property's maintenance and other expenses, and the trustee of the trust obeys his directions.
[Note 3] The town's Board of Assessors Valuation Survey dated June 1921 and updated through January 1, 1952 depicts the One/Three Boardman Avenue property as a single 60,040-square-foot parcel owned by Lulu Nelson. On the valuation survey, the names of former property owners are crossed out and replaced with the names of their successors in title. Directly above the reference to Lulu Nelson, there is a crossed out reference to Frances Leland as the owner of a two-acre-and-31,455-square-foot property. The town's valuation lists from 1935 and 1940 indicate that Frances Leland owned a two-acre-and-31,455-square-foot property on Boardman Avenue (she also owned a second, smaller parcel on Boardman Avenue). Subsequent valuation lists from 1945, 1946, 1948, and 1950 indicate that Fred Burrucker owned a 60,040- square-foot parcel on Boardman Avenue, and the valuation list from 1952-1953 indicates that Lulu Nelson owned a property of that size on Boardman Avenue. I find that that 60,040-square-foot parcel is the same as that depicted on the valuation survey as Lulu Nelson's and that it was once part of Frances Leland's land, which was subdivided into a number of different parcels, including the 60,040-square-foot parcel (now the One/Three Boardman Avenue property), by 1945.
[Note 4] Under the 1945 by-law, buildings and land in the Single Residence District could be used for no purpose "except for one or more of the following" purposes:
1. Detached one-family dwelling;
3. Educational use, not conducted for profit;
4. The taking of boarders or the leasing of rooms by a family residing on the premises . . .
5. Municipal use. Public parks, playgrounds, and recreation buildings;
6. Accessory use on the same lot with and customarily incident to any of the above permitted uses, or to the uses permitted [by special permit] and not detrimental to a residential neighborhood;
7. The office of a doctor or dentist or other member of a recognized profession residing on or renting the premises . . .
8. Customary home occupations. . . . 1945 Zoning By-Law, § III(A). The following uses were permitted in the Single Residence District by special permit: private non-profit clubs, non-profit cemeteries, certain garages, charitable or philanthropic uses, non-profit hospitals or sanitariums, and certain public utilities or public communications buildings. See 1945 Zoning By-Law, § III(A)(9). In the Single Residence District, the by-law provided that "accessory use shall not include dwellings," except that a property owner's employee could maintain living quarters in a garage or stable on the property as an accessory use. 1945 Zoning By-Law, § III(B)(1)(c).
[Note 5] Under the 1961 by-law, certain lots in Single Residence District A could be divided into separate buildable lots if certain dimensional requirements were satisfied. No such division occurred with respect to One/Three Boardman Avenue.
[Note 6] The 1963 by-law also provided that lots satisfying certain dimensional requirements could be divided into separate buildable lots. Again, no such division took place with respect to One/Three Boardman Avenue.
[Note 7] The other uses permitted as of right in Single Residence Districts are: certain agricultural, horticultural, and floricultural uses; church and related use; non-profit educational use; certain boarding and leasing uses; certain municipal uses; professional offices; customary home occupations; and certain accessory uses. By-law § 4.1. Certain other uses may be authorized by special permit. By-law § 4.1.10.
[Note 8] Under § 184.108.40.206, an employee of a property's owner may maintain family living quarters in an existing structure as an accessory use if Board approval is obtained.
[Note 9] Under Section 6.1.1,
Any structure or use lawfully existing at the time of the adoption of this By-Law or any amendment hereto and any use or structure lawfully begun in respect of which a building or special permit has been issued before the first publication of notice of public hearing on this By-Law or any amendment hereto may be continued or completed although such structure or use does not conform to the provisions hereof, provided that, in the case of the issuance of a building or special permit, construction or operation hereunder shall conform to the provisions of this By-Law or any amendment hereto unless the construction or use has commenced within a period of six months after the issuance of the permit and that in cases involving construction such construction is continued through to completion as continuously and expeditiously as is reasonable.
Chapter 184 of the Acts of 2016 gives grandfather protection to structures more than ten years old even if they were not built legally, but that protection does not extend to illegal uses. See supra n.1.
[Note 10] This "requirement does not apply to such an extension, alteration, re-construction or structural change to a single family and two family residential structure that does not increase the nonconforming nature of that structure." By-law § 6.1.2. Here, the work proposed is a substantial increase to the existing structure.
[Note 11] Under Section 7.5.2,
No special permit shall be granted unless the applicable special permit granting authority finds the proposed uses in harmony with the purpose and intent of this By-Law and will not be detrimental or injurious to the neighborhood in which it is to take place and that all requirements or conditions for the grant of the special permit have been satisfied. No special permit shall be granted unless the special permit granting authority determines that the proposed use will not be detrimental to the surrounding neighborhood in light of each of the following factors:
(a) adequacy of the site in terms of size for the proposed use;
(b) suitability of the site for the proposed use;
(c) impact on traffic flow and safety;
(d) impact on neighborhood visual character, including views and vistas;
(e) adequacy of method of sewage disposal, source of water and drainage;
(f) adequacy of utilities and other public services;
(g) impact on public or private water supplies, wildlife habitats and other natural resource issues deemed appropriate by the special permit granting authority.
[Note 12] Section 1.2 further provides that the purpose of the by-law is to promote and protect such interests by:
* encouraging the most appropriate use of land and water within the Town;
* preventing overcrowding of land;
* preventing undue concentration of population on the one hand, and preventing excessive scattering of population on the other;
* encouraging various lot sizes and housing types for persons of various age and income levels;
* minimizing traffic hazards and congestion;
* providing for adequate light, air, and sanitation;
* reducing hazards from fire, flood, panic, and other dangers;
* assisting in the economical provision, utilization and expansion for all services provided to the public, including streets, drainage, water supply, sewerage disposal, schools, parks and open spaces;
* preventing blight and pollution of the environment;
* maintaining and enhancing the natural and historical amenities of Manchester-by-the-Sea; and
* conserving the value of land and buildings.
[Note 13] Mr. Genta modified his plans and amended his application on September 24, 2013.
[Note 14] The Board imposed the following conditions on the special permit. Both One and Three Boardman Avenue must be deeded to Mr. Genta and his wife, and thereafter must be held in common ownership. Any future division of the combined lot will require a variance from the Board. The Board's decision must be attached to the deed related to the required transfer of the property's title to Mr. Gentra and his wife. The construction, rooms, and other uses of the proposed structures must be consistent with either the plans attached to the decision or to any plans Mr. Gentra submitted to the Board after October 14, 2013. Finally, Mr. Gentra is responsible for the payment of the Town's legal fees incurred with respect to the application.
[Note 15] But see Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795 , 796-797 (2015) (variance cannot "serve as a launching pad for the expansion of zoning nonconformities;" rather, a new or amended variance is required).
[Note 16] A recorded plan dated July 8, 1931 entitled "Boardman Estate" depicts a structure in a similar location and shape as the greenhouse on the valuation survey's Lulu Nelson parcel.
[Note 17] At trial, Mr. Genta offered a number of black and white photographs that he contended showed residential use of the buildings on the lot as of 1945. They do not. There was no evidence identifying the photographer, the date of the photographs, or otherwise authenticating them. Most tellingly, none of them show any residential use of any interior space, only greenhouse use. Moreover, if the photographs do show this greenhouse, they could not have been taken until after the mid-1950s. As discussed below, in 1954, the Board granted a variance that required the demolition of the foundation walls connecting the two ends of the greenhouse that later became these houses. The photographs at issue reflect the demolition of those walls, and thus clearly date from after that time.
[Note 18] As previously discussed (see supra n.3), the present-day One/Three Boardman Avenue property was once part of a larger, two-acre-and-31,455-square-foot parcel owned by Frances Leland. The 1921 valuation survey depicts three structures on Frances Leland's land, including a "stable," "greenhouse," and "shelter." The July 8, 1931 "Boardman Estate" plan depicts Frances Leland's property with two structures in locations and shapes similar to the stable and greenhouse on the 1921 Valuation Survey. The town's 1935 and 1940 valuation lists indicate that Frances Leland's two-acre-and-31,455-square-foot Boardman Avenue property (she also owned a different, smaller property on Boardman Avenue) contained a "stable & garage," a "greenhouse," and a "shed." I thus find that Frances Leland's property, and thus the One/Three Boardman Avenue property, did not have a house on it in 1935 or in 1940.
The 1945, 1946, and 1948 valuation lists, that, as previously discussed, indicate that Fred Burrucker owned the 60,040-square-foot parcel that is the present-day One/Three Boardman Avenue property, further indicate that the property contained a "shed" and a "greenhouse," or a "shed" and "g.house." I therefore find that there was a greenhouse and shed, but not a house, on the One/Three Boardman Avenue property in 1945, 1946, and 1948. Therefore, when the town adopted zoning in 1945, there was no house on the property.
It was not until 1950 that there was any indication of a house on the property. The valuation list for that year describes the property as having a "shed" and, for the first time, a "house."
[Note 19] The first indication of a second dwelling on the property is the 1952-1953 valuation list, which describes the property, then owned by Lulu Nelson, as having a "house" and an "unfinished cottage" (emphasis added). Subsequent valuation lists describe the property as having a "house, cottage, [and] greenhouse" (1954), a "dwelling, cottage, [and] greenhouse," (1956), and a "dwelling [and] cottage" (1958, 1960 & 1962).
[Note 20] This is further evidence that the One Boardman Avenue house was not an existing dwelling prior to 1954.
[Note 21] Part of the foundation walls still remain on the property as part of a thirty-inch-high brick wall that connects the One and Three Boardman Avenue houses.
[Note 22] There is no evidence that the Andersons ever sought or obtained any zoning approval with respect to the subdivision.
[Note 23] As previously noted, Chapter 184 of the Acts of 2016 now protects illegal nonconforming structures that have gone without challenge for ten or more years. But it gives no such protection to uses that were not legally preexisting.