David J. Gottfried and Andrea Gottfried ("Plaintiffs" or "the Gottfrieds") bring this case pursuant to G.L. c. 40A, § 17, appealing the decision of the Zoning Board of Appeals for the Town of Yarmouth ("Board"), whose members are defendants, granting a special permit to Clifford I. Betron and Patricia S. Betron ("Betrons" or "private defendants"). The Betrons obtained this special permit to rebuild an existing garage on their residential property ("Property") [Note 1] pursuant to § 104.3.2(2) of the Yarmouth Zoning Bylaw ("Bylaw"). The Board, in granting the special permit, found, as required by that section of the Bylaw and §103.2.2, that: no undue nuisance, hazard, or congestion would be created by the proposed garage; the proposed garage would not cause substantial harm to the character of the neighborhood; and the proposed garage would not be substantially more detrimental to the neighborhood than the garage existing on the Betron Property.
After trial, I conclude, on all the evidence I credit, that the Board's decision was lawful and adequate, and will be upheld by this court.
II. PRELIMINARY FACTS AND PROCEDURAL BACKGROUND
The Betrons petitioned the Board on February 28, 2014 for a special permit pursuant to § 104.3.2(2) of the Bylaw to alter, extend, or raze and replace the garage. [Note 2] Subsequently, the Betrons filed a Notice of Intent with the Town of Yarmouth Conservation Commission ("Conservation Commission") on March 2, 2014 for review of the project. [Note 3] The Betrons' application for a special permit originally was scheduled by the Board for hearing on April 10, 2014; this hearing did not proceed, but was continued at the Betrons' request until the Conservation Commission permitting process was complete. [Note 4]
The Betrons revised their site plans during the Conservation Commission review process. [Note 5] The original plan contemplated moving the existing garage away from the rear of the property and the salt marsh; the revised site plan, submitted to the Conservation Commission and subsequently to the Board, positioned the rebuilt structure on the original garage's footprint. [Note 6] On September 22, 2014, the Conservation Commission unanimously approved the project, subject to compliance by the Betrons with the Commission's Order of Conditions, which included requirements involving planting and maintaining specific vegetation, and protecting the wetland area during construction. [Note 7]
The Board held its public hearing on September 25, 2014 and November 13, 2014, to review the Betrons' special permit application. Board members Debra Martin and Charles Hart were not present for the September 25, 2014 hearing. The Betrons revised their building plans between the two nights of Board hearings. The original plans proposed a one-bedroom apartment over a garage on pilings, with a recreation room, studio, wet bar with refrigerator, and bathroom with a shower. The revised plans proposed only studio and recreational areas and a bathroom without a shower. [Note 8] The Betrons also submitted for Board review a building plan showing the combination of two smaller bedrooms in the main house on the Property into one bedroom, to comply with the Yarmouth Board of Health requirements governing on-site waste disposal systems. The Betrons also submitted a profile sketch to show the height and width of the building on the site. [Note 9]
The Board expressed concern that the room above the garage could be used as an accessory apartment. [Note 10] The Betrons' revised plans addressed these concerns by eliminating the wet bar, refrigerator, and shower; neither version of the plans included cooking facilities. On November 13, 2014, following the second night of hearing, the Board unanimously granted the special permit, with five members voting approval, and issued a decision stating "the proposal met the requirements of the Zoning Bylaw § 104.3.2(2), and that no undue nuisance, hazard or congestion will be created, and that the proposal will not cause substantial harm to the established or future character of the neighborhood or town." The Board also found that, subject to compliance with three imposed conditions, "the project would not be substantially more detrimental to the neighborhood, than is the current use and structures." The conditions for the special permit are:
1. The Petitioner shall submit a Certification from the Building Department that the two bedrooms in the main house have been combined, in accordance with the Floor Plan submitted.
2. The second floor of the garage shall not be used for sleeping or used as a bedroom, and shall not become a bedroom.
3. That the construction shall be in full conformity with all conditions as required by the Conservation Commission.
On November 19, 2014, a copy of the Board's decision ("Decision") was filed with the Yarmouth Town Clerk. On December 8, 2014, Plaintiffs timely filed in this court an appeal pursuant to G.L. c. 40A, § 17.
As permitted under G.L. c. 40A, § 17, neither the Betrons nor the municipal defendants answered the complaint. The court held a case management conference by telephone on February 5, 2015 at which all parties were represented by counsel. During that conference the court ordered the parties to file a joint report indicating whether the private parties (with or without participation by the municipal defendants) were willing to attend mediation, and if so, giving the date of the mediation and identity of the neutral. The court also ordered that, should mediation not occur or not resolve the case, discovery was to close on June 8, 2015.
On March 5, 2015, the parties reported their decision not to participate in mediation. On June 11, 2015, the parties filed a joint status report in which the private defendants requested an extension of discovery to August 8, 2015 and an extension of the deadline for filing dispositive motions to September 30, 2015. The court allowed these motions, which were without objection.
A pre-trial conference was scheduled for December 4, 2015. Prior to the conference, on November 27, 2015, the private defendants filed a motion seeking to extend the pre-trial conference and to file a summary judgment motion by January 15, 2016. The court denied both requests. (The summary judgment motion would have been filed months after the deadline, the grounds that such a motion would have advanced were unstated, and the ability of the court to resolve the case on summary judgment did not appear likely given the nature of the case and the issues before the court.) The parties appeared for the pre-trial conference on December 4, 2015. After colloquy with counsel, the court remained unconvinced that summary judgment would resolve or narrow sufficient issues in the case to justify the delay involved in hearing and ruling on the motions. Trial was scheduled to begin on February 1, 2016.
On January 29, 2016 the court took a view of the locus in the presence of counsel and several representatives of the parties. The trial began on February 1, 2016. At trial, counsel appeared for Plaintiffs and the Betrons; despite notice, no counsel appeared for municipal defendants. A court reporter was present at all times to create a transcript of the testimony and proceedings. The court heard testimony from Clifford Betron, Andrea Gottfried, and private defendants' expert witness Daniel Ojala. Thirty exhibits, numbered 1 through 30, some in subparts, were admitted into evidence, and all as reflected in the transcript filed. Following the taking of evidence, the trial was suspended. Counsel were instructed to await the receipt of the trial transcript, and to file and serve post-trial legal memoranda, and proposed findings of fact and rulings of law, within thirty days of receipt of the transcript by the court. The trial transcript was filed on March 9, 2016, and the court instructed counsel to file all briefs and memoranda by April 8, 2016. On May 11, 2016, the trial resumed for closing arguments. Upon receipt of the transcript of the closing arguments, the case was taken under advisement. I now decide the case.
III. FURTHER FINDINGS OF FACT
1. Plaintiffs David J. Gottfried and Andrea Gottfried are residents of 414 Wynnewood Road, Pelham Manor, New York 10803 and own property with an address of 19 Glenwood Street, West Yarmouth, Barnstable County, Massachusetts which is that described in the deed dated August 25, 2014 from Edward S. Harrison, Trustee of the S. Edward Harrison Trust u/d/t dated March 15, 1984 as amended, to David J. Gottfried and Andrea Gottfried, registered with the District on September 3, 2014 as Document 1,253,293, resulting in the issuance of Transfer Certificate of Title No. 204333. This deed also is recorded with the Barnstable Registry of Deeds ("Registry") in Book 28362, Page 263. [Note 11]
2. Defendants Clifford I. Betron and Patricia S. Betron are residents of 381 Talmore Drive, Fairfield, Connecticut 06825 and own the Property.
3. Plaintiffs are abutters to abutters within three hundred feet of the Property owned by the Betrons. [Note 12]
4. The Property currently is improved with a two-story four bedroom single family dwelling and a single story detached garage which is located near the edge of a salt marsh. The existing garage contains no living space.
5. The Property is located in an R-25 Zoning District which, under Bylaw § 203.5, requires a parcel to contain a minimum of 25,000 square feet and 150 feet of frontage. The R-25 Zoning District also requires the following Minimum Yard Setbacks: Front30 feet, Side15 feet, Rear20 feet.
6. According to the Board Decision, the Property contains 21,344 square feet of area.
7. The existing garage does not comply with the Bylaw's current applicable yard setback requirements.
8. Yarmouth first adopted a zoning bylaw at its Annual Town Meeting on February 12, 1946.
9. The Property was created by a subdivision of land in 1921. [Note 13]
10. The dimensions of the Property have not changed since 1921.
11. The Betrons' lot was created before the adoption of zoning in the Town of Yarmouth.
12. The Town of Yarmouth Assessors Property Card from 2014 states that the garage and the house have been in existence since 1912.
13. In 1941, the Property was owned by William H. Wilde and Mary M. Wilde.
14. The Town of Yarmouth Assessing Records for 1941 (FY 1940) contain an entry for "Wilde, William H. et als." for property in "E. Hyannis Park" and describe the buildings on the Property as consisting of a house and a garage.
15. In 1945, the Property was owned by John F. Dolan and Alice M. Dolan.
16. The Town of Yarmouth Assessing Records for 1946 (FY 1945) contain an entry for "Dolan, John F. & Alice M." for property in "East Hyannis Park" and describe the buildings on the Property as consisting of a house and a garage.
17. Land Court Plan 12523-A2, dated December 1929, ("1929 Plan") and filed with the District on January 22, 1930, shows a structure with the same dimensions as the existing garage and in the same location as the existing garage.
18. Land Court Plan 6940-D, dated January 12, 1948 ("1948 Plan") and filed with the District on May 20, 1948, shows a structure with the same dimensions as the existing garage and in the same location as the existing garage.
19. I credit the testimony of Daniel Ojala that he overlaid the 1929 Plan which shows the Betrons' lot as Lot K and the 1948 Plan which shows the Betrons' lot as Lot K and determined that the location and dimensions of the detached garage were consistent with the location and dimensions of the existing detached garage as it is today, and that this demonstrated to him that the existing garage has been in its current location with its current dimensions since at least 1929.
20. The existing garage is approximately 20 feet wide and 32 feet long.
21. The existing garage is located around 1.7 feet from the property boundary.
22. The existing garage is under 12 feet in height.
23. Under Bylaw § 203.4.2 the maximum allowable height in the R-25 zoning district is 35 feet.
24. The proposed garage will be around 31 feet at its highest point.
25. The proposed garage will be a two story structure, contain living space.
26. Under Bylaw § 203.5 the maximum building coverage in the R-25 zoning district is 25 percent.
27. I credit the testimony of Daniel Ojala that the combined buildings on the Betrons' parcel cover 10.9 percent of the Property.
28. Under Bylaw § 203.5 properties in the R-25 zoning district require 150 feet of frontage.
29. I credit the testimony of Daniel Ojala that the Property has no frontage.
30. Access to the Property is over a single-lane right-of-way that extends from Glenwood Street to the Property, and provides access for the Property as well as the abutting properties to the north and the south of the Property.
31. The Yarmouth Board of Health made a determination that the living space in the proposed garage, including under the revised plans on which the Board acted, will constitute a bedroom for septic system capacity purposes; this determination was acknowledged by the Board in the Decision.
32. A copy of the Decision was filed in the office of the Yarmouth Town Clerk on November 19, 2014.
33. Plaintiffs field a timely appeal within 20 days of the Board Decision, on December 8, 2014.
34. I credit Andrea Gottfried's testimony that her parents purchased the property located at 21 Glenwood Street in or around 1974.
35. I credit Andrea Gottfried's testimony that she has been living at or visiting both 19 and 21 Glenwood Street and the surrounding area regularly since she was born in 1974.
36. The Zoning Board of Appeals for the Town of Yarmouth is a municipal agency with an mailing address of 1146 Route 28, South Yarmouth, Barnstable County, Massachusetts.
37. The members of the Board that rendered the Decision, joined in this action in their capacity as Board members, are Steven DeYoung, Sean Igoe, Debora Martin, Chuck Hart, and Bryant Palmer, all of whom live in the Town of Yarmouth.
38. The Betrons applied to the Board seeking a special permit under Bylaw §§ 104.3.2(2) and 202.5(A1). I find no evidence that the Betrons needed a special permit under Bylaw § 202.5(A1).
39. The Board is the special permit granting authority for the Town of Yarmouth.
40. The Town of Yarmouth adopted G.L. c. 39, § 23D at the 2007 Annual Town Meeting.
41. The Board held a public hearing on the Betrons' application for a special permit on September 25, 2014 and November 13, 2014. A public hearing was originally scheduled for April 10, 2014; that hearing was not opened, but rather postponed at the Betrons' request.
42. Two Board members, Debora Martin and Chuck Hart, were not present for initial night of the public hearing on September 25, 2014.
43. At the November 13, 2014 public hearing the Board voted 5 to 0 to approve the permit; all Board members were in attendance and all voted.
44. At the second hearing on November 13, 2014, Board members Martin and Hart each signed a form entitled "Absent Member Certification," but failed to check a box identifying what evidence (audio recording, video recording, or transcript of the hearing) they had examined from the September 25, 2014 hearing. In no other respect were these forms completed irregularly.
45. Board Members Martin and Hart stated at the November 13, 2014 hearing that they each reviewed the video recording of the earlier night of hearing.
46. Although not in evidence at the trial, on February 12, 2015, Board members Martin and Hart filed sworn affidavits with the court attesting that, while they had failed to check the appropriate box on the Absent Member Certification form, they each had reviewed a video recording of the September 25, 2014 hearing prior to the November 13, 2014 hearing, and prior to joining with the other Board members in acting on the special permit application.
47. I credit the testimony of Clifford Betron that: the house on the Property was in a state of disrepair when the Betrons purchased it; around the time the Betrons moved into the house on the Property they installed a four-bedroom septic system, replaced the wiring and ductwork, and made other improvements and renovations; during renovations the Betrons were careful to maintain the Gambrel style of the house which is stylistically characteristic of Cape Cod architecture and fits in with the character of the neighborhood.
48. The existing garage does not have a Gambrel roof or otherwise fit in with the architecture of the neighborhood.
49. The existing garage is in a state of substantial disrepair. The garage doors do not open and water seeps into the garage during high tides and heavy rains, which prevents the Betrons from parking cars inside.
50. I credit the testimony of Daniel Ojala that the garage is in a flood zone known as a velocity zone 13 under FEMA mapping.
51. I credit the testimony of Daniel Ojala that to comply with the International Residential Code requirements for a velocity zone, the lowest horizontal structural member needs to be elevated 2 feet above the base flood elevation, and that the proposed garage meets this requirement, unlike the current garage, which does not.
52. I credit the testimony of Daniel Ojala that to comply with the International Residential Code requirements for a velocity zone, a structure must be on piles and have open lattice or breakaway panels, which will, in response to flood water action, collapse into small pieces and not endanger any abutting structures--in the same manner that the entire structure would if it were to separate from the foundation and float on flood watersand that the proposed construction of the new garage will meet these standards.
53. The proposed garage plans include a retaining wall along the northeasterly boundary of the Property close to the salt marsh.
54. The final plans submitted to the Board proposed a first floor with parking for two cars and some storage. [Note 14] The second floor of the proposed garage has 640 square feet of living space. The proposed garage contains a second floor balcony that faces southwest toward the Betrons' house and Lewis Bay, away from the Plaintiffs' property to the northeast.
55. The proposed garage includes a cupola with windows on top of the living space, which is consistent with the style of the neighborhood.
56. On the plan there are stairs leading to the mechanicals above the bathroom, but the stairs do not continue up into the cupola, there is no space in the cupola for furniture or people. There is no evidence that I credit that shows that the cupola will be used for anything other than decoration and the provision of natural light.
57. The ridge line of the proposed garage is three feet lower than the Betrons' house, but the proposed cupola is two feet higher than their house.
58. The plans for the proposed garage include movement of overhead electrical wires so they will run to the garage underground.
59. The revised Garage Plans, dated October 20, 2014, state that the existing garage would be disassembled, and, if possible, any framing material salvaged from the existing garage would be used to construct the proposed garage.
60. The Planting and Mitigation Site Plan for the proposed garage includes 1,432 square feet of new planting, including beach grass, blueberry, bayberry, and holly. [Note 15]
61. The proposed garage does not increase any non-conformity of the Property with the Bylaw. However, the proposed garage retains the current structure's non-conforming side and rear setbacks.
62. I credit Andrea Gottfried's testimony that the neighborhood is occupied more often during the summer months, and that she could rent out her property, but she does not.
63. I credit Andrea Gottfried's testimony that because the houses in the neighborhood are close together, noise from other properties travels easily, including noise from renters.
64. I credit Andrea Gottfried's testimony that: loud and bothersome noise emanates from planes that fly over the neighborhood, that the Hyannis Park Civic Association is trying to do something about the noise, and that noise from ferries is easily heard within the neighborhood. The neighborhood is near to a ferry terminal operated by the Steamship Authority and used by it and other lines.
65. I credit Andrea Gottfried's testimony that she never has contacted the police or otherwise made known any complaints about noise caused by the Betrons or renters of the Betrons'
Property. [Note 16]
66. I credit Clifford Betron's testimony that: since purchasing the property in 2010, the Betrons rented the Property to tenants during the summers of 2012, 2013, 2014 and 2015; the Betrons did not rent their Property in 2010 or 2011.
67. I credit Clifford Betron's testimony that: the Betrons will not allow the Property to be rented to more than ten people at a time; the Betrons will not rent out the living space above the proposed garage separately; renters will only have access to the first floor of the garage to park vehicles; the second floor of the garage would be locked when the house is rented and renters would not have access to this space; and that the garage living space would not be used by the Betrons or anyone else while renters occupied the main house.
68. Plaintiffs presented no evidence that I credit that the Betrons will use the living space above the garage as additional sleeping quarters in violation of the Board's decision.
69. I credit Andrea Gottfried's testimony that one of the reasons she purchased the property at 19 Glenwood Street is for the vistas and views.
70. There is no evidence I find persuasive which shows that the proposed garage, if built in accordance with the plans approved by the Board in its Decision, will create a new substantial obstruction of views of Lewis Bay from Plaintiffs' house or property.
71. The Betrons cannot park any vehicles in the existing garage. The proposed garage will allow the Betrons and their renters to park two vehicles out of sight which otherwise would be parked in the driveway.
Plaintiffs appeal the decision of the Board pursuant to G.L. c. 40A, § 17. Under that statute, "only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012) ("81 Spooner Rd. II") quoting G.L. c. 40A, § 17. Plaintiffs are aggrieved if they "suffer some infringement of legal rights." Marshalian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). "Aggrievement requires a showing of more than minimal or slightly appreciable harm" and "the right or interest asserted by a plaintiff claiming aggrievement must be one that G. L. c. 40A is intended to protect." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). If a right is not a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect," then Plaintiffs cannot obtain standing based on the assertion of that right. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006).
"There is a presumption that property owners to whom the board in the performance of its statutory obligation has sent notice as persons 'deemed by the board to be affected thereby' have an interest and are persons aggrieved." Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). Abutters to abutters within three hundred feet of the locus are "parties in interest" and statutorily required to receive notice. G.L. c. 40A, § 11. These abutters to abutters, because they are statutorily entitled to notice, are also "entitled to a rebuttable presumption that they are 'aggrieved' persons under the Zoning Act and, therefore, have standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., 461 Mass. at 700; see also Marashlian, 421 Mass. at 721.
The defendants carry the burden of providing sufficient evidence to rebut plaintiff's presumed standing, and can effectively do so by offering "enough evidence to warrant a finding contrary to the presumed fact." 81 Spooner Rd., 461 Mass. at 701. "The presumption of aggrievement conferred on abutters does not shift the burden of proof on standing. See [Standerwick, 447 Mass.] at 34-35 & n. 20. The plaintiff always bears the burden of proving aggrievement necessary to confer standing; an abutter's presumption of standing simply places on the adverse party the initial burden of going forward with evidence." Id. "If standing is challenged, and evidence is offered in support of such challenge, the jurisdictional question will be decided on 'all the evidence with no benefit to the plaintiffs from the presumption' of aggrievement." Kenner, 459 Mass. at 118, quoting Marotta, 336 Mass. at 204. If a defendant effectively rebuts a plaintiff's aggrievement, the plaintiff must "'establish by direct facts and not speculative personal opinion that his injury is special and different from the concerns of the rest of the community.'" 81 Spooner Rd., 461 Mass. at 701, quoting Standerwick, 447 Mass. at 32. "[W]hether a party is 'aggrieved' is a matter of degree . . . and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule." Kenner, 459 Mass. at 119, quoting Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624 , 629 (1977).
The Zoning Act established a number of objectives that may be accomplished by local zoning which, relevant to the this case, include: lessening congestion in the streets, conserving health, providing adequate light and air, preventing overcrowding of land, avoiding undue concentration of population, preserving open space, conserving the value of land and buildings, conserving natural resources, and preventing blight and pollution of the environment. See St. 1975, c. 808, § 2A; see also 81 Spooner Rd., LLC v. Brookline, 452 Mass. 109 , 113, n.7 (2008) (looking to this statute to ascertain purposes of the Zoning Act). The purpose of the Yarmouth Zoning Bylaw is "to promote the health, safety, convenience and welfare of the inhabitants by dividing the town into districts and regulating the use and construction of buildings and premises therein." Bylaw § 100. The Bylaw requires that the Board, before granting a special permit for the alteration, extension, or razing and replacement of a lawfully pre-existing non-conforming single- family structure or its accessory structures, determine that the structure would "not be substantially more detrimental to the neighborhood, zoning district, or Town" than the existing non-conforming structure. Bylaw § 104.3.2(2). The Bylaw also requires the Board to find that "no undue nuisance, hazard, or congestion will be created" and that "there will be no substantial harm to the established or future character of the neighborhood" or the Town. Bylaw § 103.2.2.
Plaintiffs assert standing based on noise, density, harm to the salt marsh and related flooding, diminished views and vistas, and diminution in value of their property. I find, after considering all the admitted evidence, that Plaintiffs have standing based only on an increase in density. I will address each basis for standing in turn, assessing whether the harm claimed is an interest protected by the Zoning Act or the Bylaw; and if so, whether the Betrons presented sufficient evidence to rebut Plaintiffs' presumed standing; and then, whether Plaintiffs introduced credible and non-speculative evidence that demonstrates that their harm is more than minimal, particular to them, and not merely in the nature of a general harm to the community.
A. Plaintiffs do not have Standing Based On Noise.
As abutters to abutters within 300 feet of the Property, Plaintiffs are presumptively aggrieved and can appeal the Board's decision. See G.L. 40A, §§ 11, 17. Plaintiffs claim that the use of the living space above the garage would cause an increase in noise that would interfere with the use and enjoyment of the Plaintiffs' nearby property. Andrea Gottfried testified that the lots in the neighborhood are small and that noise carries. The Bylaw requires that no undue nuisance be created by the issuance of a special permit. Bylaw § 103.2.2. I find that noise falls under the umbrella of activities which may rise to the level of a such a nuisance. The Bylaw, in regulating uses, also specifies that in determining whether an activity is noisy, the activity is "to be considered away from the place of activity, so that, while a bowling alley may be noisy to a bowler, it will not be so to the public driving past." Bylaw § 202.2, Note. Therefore an increase in noise on Plaintiffs' property which is generated by the Betrons or their tenants or guests on the Property, may be a proper basis for Plaintiffs to obtain standing under G.L. c. 40A, §17, given the Bylaw's relevant provisions.
However, the Betrons effectively rebutted the presumption that Plaintiffs would be aggrieved by noise from the proposed garage, through the introduction of evidence demonstrating that Plaintiffs are unlikely to suffer more than de minimis injury based on noise. The Betrons showed, through testimony and plans, that the living space above the garage will be used far less than the Betrons' house currently is used. The testimony and plans show that the living space will be used as a recreation room and a studio. The Board Decision requires that the living space not be used for sleeping purposes. I have found that renters will not use the living space, and that the Betrons themselves will not use the living space while renters are in the house. I also have found that the cupola will not be used as additional habitable space. The evidence shows me that the living space will be used on occasion for recreation, solely by the Betrons, primarily during the day, and not at all when the house is rented out to tenants. These restrictions on use greatly curtail the potential for disruptive noise that could come from the proposed garage. If, for example, the Betrons rent the house for the entire summer, no noise would come from this living space above the proposed garage during the summer season.
While none of the private parties chose to put on any expert evidence on the subject of potential noise and its propagation from the challenged garage, the Betrons did introduce evidence demonstrating to me that any noise from the proposed garage is unlikely to disturb Plaintiffs. The plans introduced show the balcony above the garage facing away from the Plaintiffs' property. The Betrons also introduced evidence of already existing noise in the neighborhood to show that the increase in noise from use of the proposed garage is unlikely to have an increased harsh effect. Andrea Gottfried testified that the residents of the neighborhood are exposed to the sounds of planes that fly over the neighborhood on their way to the nearby Hyannis airport as well as ferries using the commercial harbor close by. I conclude that the evidence the Betrons presented is enough to "warrant a finding contrary to the presumed fact" that Plaintiffs would be aggrieved due to noise which will emanate from the proposed garage. Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003).
After the private defendants successfully rebutted Plaintiffs' presumption of aggrievement on this point, Plaintiffs carried the burden of showing standing due to injury caused by noise from the Property. To claim injury from noise that rises to the level of nuisancethe standard called for by the Bylaw--the proposed garage must at a minimum cause new or additional noise which will be experienced on the Plaintiffs' property and harm them more than or differently than the rest of the community. Plaintiffs did not introduce expert testimony to show how noise from proposed garage would reach their property. Plaintiff Andrea Gottfried testified that neither she nor her husband have contacted the police or otherwise made known to the Betrons concerns about current noise at the Betrons' property. Andrea Gottfried testified that renters of properties in the neighborhood are more likely to make noise than owners, that use of the balcony on the proposed garage will likely cause more noise, and that the living space above the garage will be used for sleeping despite the Board's condition in the special permit. I find these assertions to be speculative and unsupported by evidence. The court accepts that the living space above the garage is closer to Plaintiffs' property than the living space in the Betrons' house. Plaintiffs failed, however, to introduce evidence demonstrating that noise from this more proximate living space will rise to the level of a nuisance on Plaintiffs' property, or otherwise interfere with the use and enjoyment of their property. I also find Plaintiffs failed to introduce any credible, non-speculative evidence showing that the noise from the proposed garage would uniquely harm them. For these reasons, Plaintiffs do not have standing to appeal on the basis of noise.
B. Plaintiffs do not have Standing Based on Diminished Views.
"Generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing." Kenner, 459 Mass. at 120. "However, where a municipality's zoning bylaw specifically provides that the zoning board of appeals should take into consideration the visual impact of a proposed structure, this 'defined protected interest may impart standing to a person whose impaired interest falls within that definition.'" Id., quoting Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-147 (2001). Plaintiffs concede that there is nothing in the Bylaw stating that views must be taken into consideration by the Board when granting a special permit. Plaintiffs assert, however, that the protection of visual characteristics in other sections of the Bylaw such as § 411.1.1, intended to guide the development and rehabilitation of Yarmouth's business district, and § 22.214.171.124, which sets out the objectives for projects requiring site design review (the proposed garage does not require any such review) show that protection of views is generally important throughout the Bylaw. To begin, if the visual character of Town is the basis for protection of views, as it is in Bylaw § 411.1.1, then Plaintiffs "would need to show a particularized harm to the plaintiff's own property and a detrimental impact on the neighborhood's visual character." Kenner, 459 Mass. at 121 (emphasis added). This raised bar would be difficult for Plaintiffs to meet, where the defendants intentionally designed the proposed garage to conform with the Gambrel style of the neighborhood.
I need not reach this analysis, however, because I find unconvincing Plaintiffs' contention that scattered mention throughout the Bylaw of an interest in protecting visual characteristics in non-residential areas is sufficient to amount to a specific protection of visual impacts in residential areas or in all districts in the Town. Bylaw § 126.96.36.199 is instructive; it protects "scenic views from publicly accessible locations." This section demonstrates that the Town, rather than relying on an understanding that views generally are important, chose to identify and explicitly protect in the Bylaw certain categories of views. By contrast, Bylaw §§ 103.2.2 and 104.3.2(2), setting out what the Board must consider in granting a special permit to alter, extend or raze and replace an accessory structure, make no mention of views. Based on the principle expressio unius est exclusio alterius, I conclude that the Bylaw does not require that the Board consider views from abutting properties in issuing a special permit of the sort involved in this case.
Plaintiffs cite to Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 521 ( 2011) for the proposition that an increase in a non-conformity requires a consideration of views. First, in that case, unlike the case here, the municipal bylaw called for a "visual buffer" between the lots. Id. at 521. That kind of language in a municipal bylaw can give rise to a requirement that a board consider visual impacts, and thus might provide standing for appellants if they do not. See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). Secondly, Plaintiffs are confusing two bases for standing: views and density. The impact on views that Plaintiffs claim here is the interference with a view of the water from Plaintiffs' property due to an increase in the height of the garage, but this height increase is below the allowable height in the zoning district. In Marhefka the court considered the impact on a "diminished water view as a result of further violation of by-law density and dimensional provisions." 79 Mass. App. Ct. at 521. Here there is no further dimensional violation due to the increased height. [Note 17] Plaintiffs' claim of injury due to a lawful increase in building height amounts to an "aesthetic sensibility insufficient to impart standing." Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 55 (2005). Contrast this with an injury related to increased density. Increased density can result in decreased light and air, increased overcrowding of land, undue concentration of population, and diminishment of open space. See St. 1975, c. 808, § 2A. That increased density well may involve visual impacts, but those impacts, without being combined with the many other impacts of density, are not enough of an injury to provide a basis for standing, unless they are explicitly protected in a bylaw. I find that Plaintiffs do not have standing to appeal based on diminished views.
C. Plaintiffs do not have Standing Based on Diminution in Property Value.
"Diminution in the value of real estate is a sufficient basis for standing only where it is derivative of or related to cognizable interests protected by the applicable zoning scheme." Kenner, 459 Mass. at 123 (internal quotations removed). Plaintiffs argue that diminution in property value is protected under Bylaw § 407.1, which regulates accessory apartments and has a purpose of "protecting the character and property values of single-family residential neighborhoods." The proposed garage is not an accessory apartment. The Board required in the Decision that the space not be an accessory apartment as defined by Bylaw § 407, and imposed conditions to insure that outcome. The applicable sections of the Bylaw, §§ 103.2.2 and 104.3.2(2), which set out what the Board must consider in granting the special permit at issue in this case, say nothing about preserving the property values of the neighborhood. By contrast, these sections establish that the alteration, extension, and razing and replacement of an accessory structure may be allowed unless the result would be "substantially" more detrimental or harmful to the neighborhood. This language indicates that the Bylaw will not curtail such activity unless there is a marked negative impact on the larger surrounding area. The applicable zoning scheme does not recognize diminution in value, by itself, as a protected interest, and in no manner protects against one particular nearby owner's land having a reduction in value as a consequence of the grant of a special permit. And, in any event, the Plaintiffs did not introduce any expert or other competent evidence as to the claimed loss in value their property would sustain if the Decision is allowed to stand.
The supposed basis in the Bylaw for Plaintiffs' diminution in value claim is the impact on views from Plaintiff's property, resulting in a decrease in Plaintiffs' property value. I have just determined that views are not a protected interest under the Bylaw, and without such a basis Plaintiffs have no grounds to establish standing based on diminution in the property value of their property. See Kenner, 459 Mass. at 123-124. Even if there was such an interest protected in Yarmouthand there is notany non-expert evidence that a future rebuilding of a garage will have a detrimental effect on a neighboring house lot's value is greatly speculative and lacks any real persuasive force.
D. Plaintiffs do not have Standing Based on Harm to the Salt Marsh.
Plaintiffs argue that Bylaw § 100, which states that the purpose of the bylaw is to protect the "health, safety, convenience and welfare" of the residents includes within that purpose the protection of natural systems, and protection against flooding. Plaintiffs further point to Bylaw § 202.2, which is a statement of the Bylaw's intent in its regulation of usesthat there be a choice in housing types, promoting economic vitality, while "at the same time protecting the public health by preserving air, water and groundwater quality . . . ." Plaintiffs contend that the landscaping for the proposed garage, including a new retaining wall and fill material brought in to mitigate flooding and flood damage to the proposed garage, will divert additional water into the salt marsh, thus damaging the salt marsh and potentially increasing flooding on their nearby property. Plaintiffs further claim that a portion of the salt marsh is on their property, and that any harm to the salt marsh is a private harm to them. I find, as did the Board, that the Property is in a flood zone. I am unconvinced that the language in Bylaw § 202.2, related to the regulation of different categories of uses, has much, if any, applicability here, where the current and proposed uses are allowed; the Betrons require permission not as to use, but as to issues that are structural and dimensional in nature. There has been no evidence presented that Betrons need a special permit due to the changed use of their Property by rebuilding on it the proposed garage.
Moreover, even reading the Bylaw elsewhere indulgently to conclude that issues of flooding and runoff may be sufficiently protected to give rise to a claim of zoning aggrievement if properly supported, I do not find the proof of any such harms to have been established. If I were to consider that the language--not only in Bylaw § 100 cited above, and also in Bylaw § 103.2.2, requiring consideration of "undue nuisance, hazard, or congestion,"--placed the issue of flooding before the Board in considering whether or not to grant a special permit of the sort involved in this case, that would make the flooding question relevant to the court's review of the Board's Decision, and would give the Plaintiffs an opportunity to rely on flooding as a basis for their standing to bring this suit. I conclude that, while the Plaintiffs properly may rely upon flooding as a basis for aggrievement, the evidence taken as a whole shows that there are no valid grounds demonstrating that the Betrons' garage project would cause any adverse flooding impacts afflicting Plaintiffs or their property.
There is no proper and persuasive evidence of any flooding harm that Plaintiffs will sustain as a result of the garage project approved by the Board. The credible evidence is to the contrary. The Betrons introduced into evidence a memorandum from the Conservation Administrator for the Conservation Commission to the Board, two site plans identified in that memorandum, and the Conservation Commission's Order of Conditions, which was incorporated into the Board Decision, to rebut Plaintiffs' asserted aggrievement due to flooding and damage to the salt marsh. The Order of Conditions has extensive requirements, including mitigation plantings by the Betrons to increase water absorption, limits on the location and manner of construction activity to reduce harm to the salt marsh, and ongoing maintenance of a stormwater management system. The Order of Conditions also includes pre-construction inspection by agency officials, marking off of the wetland area prior to construction, ongoing inspections by agency officials, and a requirement that the project "shall not increase runoff, nor cause flooding or storm damage to abutters other property owners or wetland Resource Areas." Order of Conditions, Special Conditions No. 10, Page 10B. I find that all of this shows convincingly the many steps the Betrons have been ordered (and have agreed) to take to prevent harm to the salt marsh, and to prevent flooding risks. This is more than sufficient to rebut Plaintiffs' claimed aggrievement due to flooding and harm to the salt marsh. See Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 91 n.13 (2007) (finding no dispute that "the conservation commission has expertise on issues related to the protection of wetlands.").
Plaintiffs, left without the benefit of a continuing presumption of aggrievement on this issue, had the burden of introducing credible non-speculative evidence showing that, notwithstanding the approval by the Conservation Commission, and the incorporation of the Conservation Commission's Order of Conditions into the Decision, harm to the salt marsh and a risk of flooding will occur, and will result in an injury to Plaintiffs and their property sufficient to give them standing. See Standerwick, 447 Mass. 20 , 34-35 (burden of showing standing remains with plaintiff, and rests solely on plaintiff after presumption of aggrievement is defeated). Any such harm to Plaintiffs must be "more than minimal or slightly appreciable harm." Kenner, 459 Mass. 121 (2011). In this arena, infused with scientific and engineering determinations, to counter the expertise underlying the Conservation Commission's determination that the project will not harm the salt marsh or cause flooding, Plaintiffs needed to introduce expert testimony, showing that harm to the salt marsh and flooding will occur. Plaintiffs introduced no expert testimony, and offered only speculative testimony that the salt marsh will be harmed, and that flooding will be produced by a new retaining wall. I find that Plaintiffs did not bear their burden of showing actual aggrievement or injury based on damage to the salt marsh or flooding of their property, and do not have standing on that basis.
E. Plaintiffs Have Standing based on Density.
Plaintiffs claim standing based on an increase in density, caused by the second story to be fitted out with living space above the replacement garage. Bylaw §§ 203.1 through 203.5 protect Plaintiffs from the effects of dense development by mandating, among other things, minimum lot size requirements, frontage requirements, and setback requirements. A violation of these density provisions may create a presumption of harm to abutters. See, 81 Spooner Rd. II, 461 Mass. at 704 (claim of house being in too close proximity is cognizable harm); Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008) ("[C]rowding 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."). Two questions the Board was obliged to consider in granting this special permit are whether the project will harm or be detrimental to the neighborhood, and whether the approved new building will cause additional congestion. See Bylaw §§ 103.2.2 and 104.3.2(2). It is primarily for reasons of inadequate lot size, lack of frontage, and accessory structure placement near the lot line, all of which relate to density, that the Betrons were required to obtain a special permit; these were the factors, along with proximity to the wetland, that made the structure non-conforming.
Defendants were required, to rebut this presumption of standing, to introduce evidence demonstrating that Plaintiffs' are not aggrieved by an increase in density due to the height of the proposed garage and the structure's changed features and use. I find the evidence insufficient to rebut the presumption of aggrievement based on density. "When a defendant fails to offer evidence warranting a finding contrary to the presumed fact, the presumption of aggrievement is not rebutted, and [a plaintiff] is deemed to have standing, and the case proceeds on the merits." 81 Spooner Rd. II, 461 Mass. at 701.
Andrea Gottfried testified that the proposed garage would be a towering structure set in her view looking out from her house and property. The replacement garage, if built, will more than double in height what now exists, from 11.7 feet tall to 25.5 feet tall to the roof line--and 31.1 feet tall to the top of the cupola. While the garage will not block Plaintiffs' only view of the water, it arguably may block one view to some extent. Andrea Gottfried also testified that the houses in the neighborhood are close together, and that the increased use of the garage will adversely affect her by causing increased traffic and congestion. This combination of factors, increased structure height and increased intensity of use close to Plaintiffs' property, can, if sufficiently shown, combine to create a "legally cognizable injury" through increased density produced by the rebuilding of an already non-conforming structure. 81 Spooner Rd. II, 461 Mass. at 704; See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11 (2009) (abutter has interest in preventing increased density in already crowded area).
Here Plaintiffs, abutters to abutters, raised concerns about the non-conforming side and rear setbacks and the increased height of the proposed garage; these certainly can constitute interests protected by the Bylaw. The Bylaw as in effect today requires larger lots than Defendants' lot, and demands 150 feet of frontage. The Betrons have no frontage and insufficient lot size. The garage structure is set close against the Property's boundary line nearest Plaintiffs' property. If this accessory structure were to comply with current zoning, it would be twenty or thirty feet from this boundary line (depending on whether that line is determined to be the front or rear of the Property) and not just about two feet away. See Bylaw § 203.5. The existing structure is unused, while the new structure will include living space much closer to Plaintiffs' property. I find that the new garage's increase in height, and the movement of residential activity closer to Plaintiffs' property, are sufficient to give Plaintiffs standing based on an increase in density that will be caused by the proposed garage. The evidence presented by the Betrons was insufficient to rebut Plaintiffs' presumption of aggrievement based on an increase in density. For this reason I do conclude that the Plaintiffs have standing sufficient to have the court take up and resolve on the merits their appeal from the Board's grant of the special permit.
II. Review of Board Decision
A. Standard of Review.
My review of the Board's Decision on the merits pursuant to G. L. c. 40A, § 17 "involves a 'peculiar' combination of de novo and deferential analyses . . .. Although fact finding in the [court] is de novo, a judge must review with deference legal conclusions within the authority of the board." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). "Deference is also owed to a local zoning board because of its special knowledge of 'the history and purpose of its town's zoning by-law.'" Id. quoting Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). "Accordingly, a judge must give 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances."
Id. quoting Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987). "While a judge is to give 'no evidentiary weight' to the board's factual findings, the decision of a board '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." Id. at 381-382, citing Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 485 (1970).
B. The Board's Decision Issued in Compliance with G.L. c. 39, § 23D
Plaintiffs assert that the Board's approval of the special permit is procedurally invalid because of noncompliance with G.L. c. 39, § 23D. The Board held two public hearings on the Betrons' application for a special permit. Board members Debra Martin and Charles Hart did not attend the first hearing on September 25, 2014. Under Massachusetts law, ordinarily all members participating in an adjudicatory vote of a municipal board must attend all hearings. Mullin v. Planning Bd. of Brewster, 17 Mass. App. Ct. 139 , 141 (1983). However, the Legislature has provided a mitigative alternative procedure. The Town has accepted G.L. c. 39, § 23D, which allows members to miss one hearing and still vote so long as:
Before any such vote, the member shall certify in writing that he has examined all evidence received at the missed session, which evidence shall include an audio or video recording of the missed session or a transcript thereof. The written certification shall be part of the record of the hearing.
This statute was enacted in 2006, St. 2006, c. 79, and requires municipal acceptance. Yarmouth has accepted the law, and using the language of the statute, the Town and the Board developed a form entitled "Absent Member Certification," which is used by Board members who miss a zoning hearing and later participate in a vote. The form states:
The undersigned member of the Yarmouth Zoning Board of Appeals, having missed one session of the hearing on the above-referenced Petition/Application, hereby certify that I have, prior to the further hearing that I will attend, examined all the evidence that was presented at the missed session, including the [ ] audio recording, [ ] video recording, [ ] transcript of the hearing, and am therefore not disqualified from voting on the matter.
Debra Martin and Charles Hart both signed an Absent Member Certification form on November 13, 2014, prior to the meeting, but both failed to check the box indicating the manner in which they reviewed what was said and done in the prior night of the hearing, which they each had been unable to attend. During the November 13, 2014 meeting, prior to the Board voting on the special permit, both Debra Martin and Charles Hart stated that they viewed the video recording of the September 25, 2014 hearing. The Decision's text, unanimously voted for by the entire membership of the Board, says "[t]he Petition was heard over two nights and the members who were not in attendance the first night (Martin and Hart) each certified that they had reviewed the prior hearing." Plaintiffs argue that by not indicating on the Absent Member Certification form the manner in which these Board members reviewed the presentations to the Board on the first night, the Board was not in compliance with G.L. c. 39, § 23D. Given the obvious purpose as well as the language of the statute, I find no merit in Plaintiffs' argument. I am persuaded by Defendants' argument that failing to check the box indicating the manner in which the record was reviewed does not violate G.L. c. 39, § 23D. Both Debra Martin and Charles Hart certified in writing, prior to the vote, that they reviewed the record of the missed hearing, and, in doing so, complied with G.L. c. 39, § 23D. The statute does not require that absent Board members certify in writing which of the allowable means of reviewing the prior proceedings they employed.
I also find persuasive Defendants' argument that giving the statute the expansive reading
Plaintiffs propose would allow challenges to municipal board votes for very minor and inconsequential mistakes such as this one, and defeat the remedial purpose of G.L. c. 39, § 23D. That law was enacted to mitigate the strict and at times harsh requirement that board members, many of them volunteers, must attend all board hearings prior to voting. Prior to the statute's passage, municipal boards found it difficult to conduct their business with efficiency and dispatch, resulting in prolonged delays in hearing applications, including as to land use matters. The statute requires only a written certification that "all evidence" was reviewed, and that purpose was served by the form of certification employed by these two members. There is no evidence I credit that these Board members did not effectively and meaningfully review the record of the prior night of hearing. Rather, I am persuaded to find that these members did comply with their statutory obligations by watching a video recording of the September 25, 2014 hearing.
In different circumstances, where a municipal board member did not, in fact, review the record of a prior hearing, and failed to certify in writing that a proper review had taken place, that well could cast doubt on the vote thereafter taken. In such a scenario, where the remedial benefit of G.L. c. 39, § 23D was not available, the ensuing vote might be in jeopardy, as would have been the case prior to the statute's passage. See Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 534 (2009) (upholding a determination, in a situation not governed by G.L. c. 39, § 23D, that review of meeting minutes was inadequate to comply with Mullin). But that is not what happened here. I conclude the Board's decision to grant the special permit is not in any way invalid because these Board members failed to identify, as part of their written certification, which of the three means of reviewing the record from the prior hearing they had employed.
C. The Board Decision Is Not Legally Defective Due To The Project Description.
Plaintiffs argue that, because the Board in the Decision described the proposal as one "to alter or extend the pre-existing non-conforming" structure, rather than describing it as the replacement of the long-existing garage structure, the Board approval is invalid. It is unclear why the Board chose this language; the Decision describes the project as "placing the structure on pilings," which indicates that the proposed structure would no longer rest on its current foundation, but on new pilings. It is clear that the project contemplates a garage structurally supported in an entirely new manner. It unquestionable that the Board reviewed the same plans presented at trial, and indeed that the plans were revised due to Board concerns. I do not find that there was a misapprehension on the part of the Board about the scope of the project. The Board's description of what it approved is consistent with the language in the revised Garage Plans, dated October 20, 2014, which state: "framing material salvaged from existing garage to be used to reconstruct wall on first floor and any other material useable to be retained in the new structure."
The Board's decision to describe this as an alteration and extension (rather than a replacement) of the prior structure might be concerning--if the Bylaw did not allow for a structure to be razed and replaced by special permit. But Bylaw § 104.3.2(2) does allow the Board to issue a special permit for the "alteration, extension, or raze and replacement" of a lawfully pre-existing non-conforming accessory structure. Plaintiffs state that a "replacement" of the structure would not be allowed by the Conservation Commission within 50 feet of the wetland. I am unconvinced by this argument, because the Conservation Commission approved the project based on the Betrons' plans, which were unchanged except for the removal of the wet bar, refrigerator, and shower, and the Order of Conditions includes several requirements regarding grading and construction. Further, Plaintiffs did not submit any legal authority for the proposition that a building cannot be replaced on the same footprint because this would be defined as new construction by the Conservation Commission. In any event, my review is of the Zoning Board's Decision, not the Conservation Commission's. And I am satisfied the Board properly took up, at an adequately noticed hearing, the project which they in fact approved in that Decision. I find no error based on the Board's description of the project in the Decision.
D. The Board Was Not Required To Grant a Variance
Plaintiffs provided no legal basis for their assertion that a variance, and not a special permit, was required for the proposed garage. The Board acted appropriately under the relevant provision of the Bylaw, § 104.3.2(2), which, like its statutory analogue, G.L. c. 40A, § 6, [Note 18] allows a special permit granting authority to authorize expansions of structures with preexisting dimensional nonconformities upon a determination that doing so will not be substantially more detrimental to the neighborhood that the existing structure. In Yarmouth, the bylaw provision allows this to happen not just where a one or two family residential structure (including an accessory structure) is being altered or extended, but also razed and replaced. [Note 19] The key, under Section 6 jurisprudence, as well as for local bylaw versions addressing the same situation, is whether what will result will merely intensify further a preexisting nonconformity (something which may be authorized by a finding alone), or instead will give rise to a new manner of noncompliance with the bylaw's dimensional requirements (which would require a variance, not just a finding). See generally Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014).
In this case, while the proposed garage structure will continue the pre-existing non-conformities, including the setback noncompliance of the existing garage, and the frontage inadequacy of the Property, the proposed garage will not create any new dimensional non- conformities. The Board appropriately applied the requirements of Bylaw § 104.3.2(2), which govern the alteration and extension (including by razing and replacement) of pre-existing non-conforming single-family homes and their accessory structures. On the facts as I have found them, the Board was not legally required to turn down the requested special permit on the grounds asserted by the Plaintiffsthat a variance was required.
To the extent Plaintiffs rest their contention that a variance is required on the assertion that the new garage will exceed, for the first time, particular dimensional requirements of the Bylaw, including as to building height, that is not so, based on the facts I have found. To the extent Plaintiffs base their contention that a variance is required on the determination of the Board of Health that the living space above the garage is a bedroom for septic purposes, and that the project therefore will be used for a noncompliant purpose (as an unapproved accessory apartment), the facts as I have found them also do not support this claim. As I already have found, there will be no unlawful apartment living above the garage, and the conditions imposed by the Board are more than adequate to control against any such use. I have found no credible evidence showing that the living space above the proposed garage will be used for sleeping purposes or as an apartment. The Decision operates to ensure that the Betrons will not use the living space above the garage as an accessory apartment under Bylaw § 407. [Note 20]
I conclude that no variance was needed here, and that this project presented an appropriate occasion for the Board to consider and grant the special permit sought by the Betrons under Bylaw § 104.3.2(2).
E. The Board Properly Made the Findings Required by the Bylaw To Grant the Special Permit.
I now turn to whether the Board's decision to grant the special permit "is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulation to the facts"--as I find them following trial de novo. Wendy's Old Fashioned Hamburgers, 454 Mass. at 382 (internal quotation marks removed). Plaintiffs argue that the Board exceeded its authority when it issued the decision granting the Betrons' special permit. Pursuant to Bylaw § 103.2.2, "special permits shall not be granted unless the applicant demonstrates that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town." Bylaw § 104.3.2(2) requires a finding that the proposal "will not be substantially more detrimental to the neighborhood, zoning district, or Town." All of these conditions must be met for the Board to grant a special permit. See Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991).
The Board in the Decision found that the proposed garage "met the requirements of Bylaw § 104.3.2(2), and that no undue nuisance, hazard, or congestion will be created, and that the proposal will not cause substantial harm to the established or future character of the neighborhood or town, [and] that with the conditions . . . the project would not be substantially more detrimental to the neighborhood, than is the current use and structures." The Board's application of the language of the Bylaw to the proposal, provided they are substantiated by the facts as I have found them, must be given deference. See Wendy's Old Fashioned Hamburgers, 454 Mass. at 381.
Plaintiffs have standing in this case as abutters to an abutter presumed to be aggrieved by an increase in density. The facts that I have found lead me to conclude that, given the proximity of the garage to the boundary line nearest Plaintiffs' property, the increase in height and change in use is sufficient to create a legally cognizable injury, and that Plaintiffs' concerns about this increase in density fall within the protections of the Bylaw. However, this is but the threshhold inquiry, determining whether Plaintiffs have the standing to get the court to engage in a review on the merits of the Board's Decision. Demonstration of a plausible claim of aggrievement does not require that a zoning appeal plaintiff succeed on the merits. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Here, the Board, pursuant to the Bylaw, determined that this proposed garage structure will not be substantially more detrimental to the neighborhood and will not cause substantial harm to the neighborhood. The question before the Board was not whether there would be any impact on the neighborhood, but whether the detriment or harm would be substantial.
The existing garage is in a state of disrepair and is not up to code. The Betrons cannot park any cars within the garage due to its deteriorated condition. What now is in place is a dilapidated structure. The garage floods, and does not meet the International Residential Code requirements for buildings in a velocity zone, rendering it a risky structure when facing the force of flood waters. While the existing garage is only 11.7 feet tall, it is not architecturally consistent with the character of the neighborhood. The existing garage is a pre-existing non-conforming structure primarily because the footprint of the garage violates setback requirements.
The proposed garage is constructed within the same footprint as the existing garage, and the height is the only dimensional expansion of the structure. The proposed garage will not result in any additional violations of the Bylaw, but will remain non-conforming with regard to setback. The proposed garage will meet the International Residential Code requirements by being raised up on pilings and having breakaway panels. As mitigation to prevent damage to the salt marsh, the proposed garage includes 1,432 square feet of new plantings. The architecture of the proposed garage is stylistically characteristic of the Gambrel style of the Betrons' house and of increased harmony with the character of the neighborhood. The proposed garage has parking for two cars on the first floor, thus moving out of sight up to two cars previously parked in the open, in the driveway. The electrical wires running through the air to the existing garage will be moved underground, enhancing safety an aesthetics. The use of the garage, as a recreational room for Defendants' family, which will be inaccessible to renters and unused by Defendants when the house is rented, is unlikely to be a substantial change to the current use of the property.
The Board has discretionary authority to grant a special permit, and if there is "'any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and the Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced.'" Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) quoting S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The Board did not give, in the Decision, extensive reasons for its conclusion that the proposal complied with the standards set forth in Bylaw § 104.3.2(2). But the facts, as I have found them to be following trial, fully support this determination. The Plaintiffs' issues with the proposed structure focus on its increased size, and the movement of residential activity to the edge of the property, closer to them. The evidence shows me that the detriments of which the Plaintiffs complain are well overridden by many benefits the new garage will bring about. These include the creation of a new, modern, stable structure, unlikely to become a flood hazard, which is more aesthetically pleasing as a building, and which will remove parked cars and power lines from view.
Similarly, I uphold the determination of the Board that "no undue nuisance, hazard, or congestion will be created" as a result of the special permit. See Bylaw § 103.2.2. The Board in the Decision referenced the Conservation Commission's Order of Conditions, and conditioned the special permit on Defendants' compliance with the Board of Health requirement that a bedroom be removed from the house to avoid overloading the septic system. I find that these conditions and precautions show the Board met the requirement that no hazard or congestion will be created by the grant of the special permit. The reduced number of bedrooms in the house cuts against Plaintiffs' assertion that more renters will be able to stay at the house, and the many required flood mitigation measures reduce the likelihood of a flood hazard. Indeed, placing the garage on piles substantially reduces the likelihood of harm resulting from a future flood event. I have found that any noise or additional residential activity will not harm Plaintiffs' in any particular way. I fail to see in the evidence any basis to say that the new Betron garage will bring about a nuisance. In any event, the Board is not required to assure that no nuisance might ever be created, but rather that any nuisance which might result is not undue--which is to say excessive or disproportionate.
It is entirely reasonable for the Board to have found that any increase in residential noise and activity likely to arise from the proposed garage will not be excessive or disproportionate in this residential area.
The decision of the Board to grant the special permit is not unreasonable, whimsical, capricious, or arbitrary, nor is it based on a legally untenable ground. The Board did not exceed its authority in granting the special permit. For these reasons the Board's Decision granting the special permit allowing the construction of the proposed garage will be upheld.
[Note 1] The Property is that described in a deed dated September 23, 2010 from Patricia A. Baron and Edward J. Maltz as Trustees of the Flakeyard Lane 9 Realty Trust to Clifford I. Betron and Patricia S. Betron, which was filed for registration on October 4, 2010 with the Barnstable Land Registration District of this court ("District") as Document No. 1,150,065, resulting in the issuance of Certificate of Title No. 192596. The Property is that which appears as lot K on Land Court Plan 6940-C, dated April 1921, drawn by A.L. Sparrow, Surveyor, a copy of which was filed with the District in Land Registration Book 3, Page 32 with Certificate Title No. 532.
[Note 2] The Betrons applied for a special permit under both §§ 104.3.2(2) and 202.5(A)(1), but the Board only considered the application under § 104.3.2(2).
[Note 3] The Property is bounded northeasterly by a salt marsh. Under the Wetlands Protection Act, "no person may remove, fill, dredge or alter wetlands and other types of property described in the act that border bodies of water without applying for and receiving an order of conditions from the local conservation commission in the first instance." Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779 , 783 (2012) (internal quotations removed), citing G.L. c. 131, § 40.
[Note 4] Daniel Ojala, an engineer and surveyor hired by the Betrons, testified as an expert witness that while hearings before the Conservation Commission and the Board to obtain permits for the same project often occur simultaneously, the Board generally requires that parties applying for a special permit obtain an order of conditions or other permission from the Conservation Commission prior to any substantive hearing before the Board.
[Note 5] See Site Plan of 9 Flakeyard Lane, West Yarmouth, prepared by Down Cape Engineering, Inc., dated February 11, 2014, revised on June 17, 2014.
[Note 6] Daniel Ojala testified that Conservation Commission generally does not allow new structures within fifty feet of a wetland such as the salt marsh, but an existing structure often may be rebuilt in the same location. Because the original plans, which proposed razing the existing garage and building a new structure further from the salt marsh, would likely not have been approved by the Conservation Commission, the Betrons revised the plans to keep the garage in its original location, although raised up on pilings.
[Note 7] The order of conditions issued by the Yarmouth Conservation Commission was not appealed by Plaintiffs.
[Note 8] Garage Plan depicting elevations and the floor plans, prepared by Northside Design Associates, dated May 28, 2014; Garage Plan depicting elevations and the floor plans, prepared by Northside Design Associates, dated October 20, 2014.
[Note 9] Floor Plan of second floor of main house, prepared by Northside Design Associates, dated February 10, 2014; Profile Sketch of Flakeyard Lane, West Yarmouth, MA, prepared by Down Cape Engineering, Inc., dated October 20, 2014. Title 5 of the State Sanitary Code defines certain detached living spaces as bedrooms, and the Yarmouth Health Commission deemed the proposed living space to be a bedroom for septic purposes, and therefore required one of the four bedrooms in the main house to be removed for the plan to be approved. The Betrons have a four-bedroom septic system at the property, and so, to comply with Title 5, the Betrons could only have four "bedrooms" as defined by Title 5.
[Note 10] The Board concluded that the creation of a separate living space would violate § 407 of the Bylaw, which regulates accessory apartments, and therefore the Board would not have the authority to grant a special permit that would allow such a use.
[Note 11] This deed grants title to, among other parcels, three parcels of land which comprise the property known as 19 Glenwood Street. These parcels are (1) a registered parcel designated Lot H on Land Court Plan 6940-C, dated April 1921, filed in the Land Registration office on July 12, 1921, a copy of which was filed with the District in Land Registration Book 3, Page 32 with Certificate Title No. 532. ("the 1921 Plan"); (2) a recorded land parcel depicted on the 1921 Plan to the northwest of Lot H between Lot H and Glenwood Street marked as a parcel held by Charles F. Bruce; and (3) a recorded land parcel marked as lot "2" on a Plan of Land in Yarmouth (West) Mass. Prepared for Mary E. Cronan ("1983 Cronan Survey") by Edward E. Kelly, Registered Land Surveyor, dated October 26, 1983 and recorded with the Registry in Plan Book 378, Page 71 on December 23, 1983.
[Note 12] On the 1921 Plan, the southeastern boundary of Lot I, which fronts the "Mary Long" property to the northwest and sits in between what is now the Betrons' property and what is now the Gottfrieds' property, extends 107.69 feet from Lot H (part of Plaintiffs' parcel) to Lot K (Betrons' parcel). The distance for the southeastern boundary of the lot between Plaintiffs' parcel and the Property is marked as 107.47 feet on the 1983 Cronan Survey. Only one parcel, that denominated "I," intervenes between the parties' parcels. I rely on these distances in concluding that Plaintiffs' parcel qualifies as that of an abutter to an abutter, and is well within 300 feet of the Betrons' parcel.
[Note 13] See Lot K on the 1921 Plan.
[Note 14] The existing garage contains space for parking two vehicles.
[Note 15] Plantings were suggested by the Yarmouth Conservation Commission as a way to mitigate flood damage. The plantings are positioned a foot or two below grade of the land surrounding the garage to absorb run- off water that heads down Flakeyard Lane and the Betrons' driveway, which was observed by the Betrons and others. Additionally, the plantings are an attempt to absorb other flooding, for example, from the salt marsh.
[Note 16] Andrea Gottfried admitted that she is aware of laws that protect against unreasonable noise in Yarmouth, and that she could have complained about noise in the neighborhood if she believed there was an issue.
[Note 17] The expansion of a structure, non-conforming due to setback requirements, horizontally along a property boundary, by contrast, could be deemed an additional dimensional violation.
[Note 18] G.L. c. 40A, § 6 states that "pre-existing non-conforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or bylaw that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood."
[Note 19] The local bylaw may grant greater indulgence than the minimum required under G.L. c. 40A, s. 6, which "prescribes the minimum of tolerance that must be accorded to non-conforming uses, existing buildings and structures." In other words § 6 only controls when a bylaw creates more onerous restrictions on non-conforming uses and structures than § 6. Rourke v. Rothman, 448 Mass. 190 , 191 n.5 (2009).
[Note 20] The Bylaw provides that an accessory apartment is allowed "only by special permit" provided certain standards and criteria are met. See Bylaw § 407.2.