In this case, Plaintiffs Arthur and Eunice Chen Buckland (the "Bucklands"), trustees of the 6 Tilton Way Realty Trust and William and Virginia Fruhan. (the "Fruhans") (together, the "Abutters") object to the issuance of a special permit granted by Defendant Town of Edgartown Zoning Board of Appeals (the "ZBA") to Defendant Donna McPherson (the "Applicant"), which permitted the Applicant to raze and replace the existing structures at the property located at 10 Tilton Way in Edgartown, MA, on Martha's Vineyard ("Locus") (the "Project").
To that end, on November 6, 2015 the Abutters filed an unverified Complaint, appealing, pursuant to G. L. c. 40A, § 17, the decision of the ZBA dated October 14, 2015, which unanimously granted the Applicant a special permit for the Project (the "2015 Special Permit"). The parties filed a joint statement on December 10, 2015. A case management conference was held on December 16, 2015, at which the court set discovery deadlines. At a status conference held on June 2, 2016, the court permitted limited additional discovery and set a briefing schedule for dispositive motions.
The Applicant filed her Motion for Summary Judgment on July 22, 2016. [Note 1] On August 22, 2016, the Abutters filed opposition to the Applicant's Motion. [Note 2] On September 12, 2016, the Applicant filed a reply to the Abutters' opposition brief. [Note 3] The court held a hearing on September 19, 2016, and, at that time, the matter was taken under advisement. [Note 4]
Based upon the parties' motion briefs, including the affidavits and documentary evidence annexed thereto, I find that the following material facts are not in dispute:
1. The Applicant is the owner of Locus pursuant to a deed dated December 16, 2014, which is recorded in the Dukes County Registry of Deeds (the "Registry") at Book 1364, Page 264.
2. The Bucklands, as trustees of the 6 Tilton Way Realty Trust, are the owners of 6 Tilton Way, Edgartown, MA. The Fruhans are the owners of 136 and 140 Upper Main Street, Edgartown, MA. The Bucklands and Fruhans are direct abutters to Locus.
3. Pursuant to the Edgartown Zoning Bylaw (the "Bylaw"), Locus is located in the "R-5" zoning district -- a mixed-use residential district that requires a minimum lot size of 10,000 square feet and minimum street frontage of fifty feet. The Bylaw requires lots in the R-5 district to have front yard setbacks of twenty feet (in most instances, including for Locus) and rear and side yard setbacks of five feet. The maximum building height in the R-5 district is thirty-two feet. The Bylaw does not prescribe any maximum lot coverage or floor-area ratio (i.e., the ratio of living space to lot area) ("FAR") in the R-5 district.
4. Locus is a pre-existing, non-conforming lot with an undersized area of 6,784 square feet and only forty-two feet of frontage on Tilton Way. [Note 5] Locus currently contains three buildings: a 945 square foot one bedroom cottage (the "Cottage"), a 200 square foot shed (the "Shed"), and a thirty square foot outhouse (the "Outhouse"). The Cottage and the Outhouse are non-conforming structures located, respectively, partially within Locus's required front and rear yard setbacks.
5. On August 30, 2012, Matt Dyroff ("Dyroff"), former owner of Locus, filed an application with the ZBA [Note 6] under Section 11.9(f) of the Bylaw for a special permit to expand the Cottage into a 2,292 square foot three bedroom house, and to raze the Shed and replace it with a 576 square foot detached garage with a second story containing a detached bedroom (the "2012 ZBA Application"). [Note 7]
6. On September 19, 2012, the ZBA approved the 2012 ZBA Application and granted Dyroff's request for a special permit (the "2012 Special Permit"). The 2012 Special Permit was filed with the Edgartown Town Clerk on September 24, 2012. On October 16, 2012, the Edgartown Town Clerk certified that no appeal from the 2012 Special Permit had been taken. [Note 8]
7. On September 10, 2013, Dyroff conveyed Locus to 10 Tilton Way LLC (the "LLC"). As of that date, Dyroff had not commenced construction pursuant to the 2012 Special Permit.
8. Also on September 10, 2013, the LLC filed a new application with the ZBA for a special permit under Section 11.9(f) of the Bylaw (the "2013 ZBA Application"). [Note 9] The 2013 ZBA Application, and the October 2013 plan (the "2013 Plan") filed therewith, called for a different design for the redevelopment of Locus than that allowed by the 2012 Special Permit, which included demolishing all of the existing structures on Locus and building a new, two-story, 2,800 square foot single family residence and a detached 400 square foot carriage house with a garage and a detached bedroom. On October 2, 2013, the ZBA unanimously denied the 2013 ZBA Application (the "2013 ZBA Decision"). The LLC did not appeal this denial.
9. In accordance with G. L. c. 40A, § 9 and Section 17.5(b) of the Bylaw, the 2012 Special Permit expired on October 16, 2013, one year after the Edgartown Town Clerk certified that no appeal from it had been taken.
10. In March of 2014, the LLC filed a request under G. L. c. 40A, § 16 with the Edgartown Planning Board (the "Planning Board") for leave to file a G. L. c. 40A, § 16 "repetitive" petition for a special permit with the ZBA under Section 11.9(f) of the Bylaw (the "2014 Planning Board Application") less than two years after the ZBA's denial of the 2013 ZBA Application. [Note 10] The 2014 Planning Board Application, and the March 2014 plan (the "2014 Plan") submitted therewith, proposed a redevelopment of Locus that would have reduced the size and scope of the work proposed by the 2013 ZBA Application, and would have brought the property into conformity with all setback requirements of the Bylaw. [Note 11] Nonetheless, the Planning Board found that the 2014 Planning Board Application was not substantially different from the 2013 ZBA Application, and thus voted on March 18, 2014 to deny the 2014 Planning Board Application (the "2014 Planning Board Decision"). [Note 12] As such, the 2014 Planning Board Application was not reviewed by the ZBA. The 2014 Planning Board Decision was not appealed.
11. On December 12, 2014, the Applicant acquired Locus through a divorce settlement. On February 24, 2015, she filed a new request with the Planning Board for leave to file another G. L. c. 40A, § 16 repetitive petition with the ZBA pursuant to G. L. c. 40A, § 16 (the "2015 Planning Board Application"). The 2015 Planning Board Application, and the 2015 plan (the "2015 Plan") submitted therewith, proposed to raze the existing structures on Locus and replace them with a new 2,538 square foot, two-story residence, and a 576 square foot detached carriage house containing a garage and detached bedroom with 330 square feet of living space (defined above as the Project). [Note 13] On March 24, 2015, the Planning Board approved the 2015 Planning Board Application (the "2015 Planning Board Decision"), thus enabling the Applicant to file a repetitive petition with the ZBA pursuant to G. L. c. 40A, § 16. [Note 14]
12. Despite receiving this approval, however, the Applicant did not file a repetitive petition with the ZBA. Instead, she waited until September 23, 2015 (slightly less than two years after the 2013 ZBA Decision had issued) and filed a new special permit application with the ZBA for the Project as a non-repetitive petition (the "2015 ZBA Application").
13. On October 14, 2015 (two years and twelve days after the 2013 ZBA Decision), the ZBA unanimously approved the 2015 ZBA Application, subject to a number of conditions (the "2015 Special Permit"). [Note 15] The specific conditions were as follows:
1. First floor of the garage is [to] be unheated and unconditioned[,] and may not be used as living space. [The h]alf-bath[room] on [the 2015 Plan] is not approved and may not be constructed.
2. No exterior construction is to occur between the 15th of June and Labor Day. Construction is limited to Monday through Friday between the hours of 8 a.m. and 5 p.m.
3. Any damage to plantings or fencing on adjacent properties resulting from construction/demolition shall be promptly repaired at the applicant's expense.
A copy of the 2015 Special Permit was filed with the Edgartown Town Clerk on October 20, 2015. The Abutters timely commenced this case on November 6, 2015. [Note 16]
14. As noted, the design of the Project, as approved in the 2015 Special Permit, was to raze the existing Cottage, Shed, and Outhouse, and to construct a new, 2,538 square foot, two-story residence, as well as a 576 square foot detached carriage house containing a garage and detached bedroom with 330 square feet of living space (defined above as the Project). [Note 17] The Project, as proposed, would meet all requirements of the Bylaw with respect to setbacks, height of structures, and off-street parking. The proposed FAR of the redevelopment of Locus under the Project was 42.28% -- although, as noted, the Bylaw does not prescribe any maximum FAR.
15. According to Ahearn's affidavit, the average size of lots in the neighborhood of Locus is slightly smaller than Locus (6,784 square feet). [Note 18] Ahearn further stated that he designed two homes across the street from Locus (at 13 and 15 Tilton Way), both of which have an area greater than 4,000 square feet (although they are located on spatially conforming lots).
16. With respect to the design of the proposed residence at Locus, Ahearn stated that his concept was to design a home "as if the lot were in the Edgartown Historic District." The residence was designed as a Greek Revival-style cottage, which, Ahearn claims, is similar to many homes in the neighborhood of Locus. Ahearn further stated that, based upon his analysis of comparable structures in the neighborhood of Locus, the proposed residence would be "architecturally compatible . . . in character, in scale and in the type of materials that will be used."
17. The Applicant submitted a zoning analysis chart to the ZBA, which compared Locus with twenty-five other properties in the vicinity of Locus -- all of which were located in the R-5 district, ten of which were conforming lots, and sixteen of which were undersized, non-conforming lots. The ZBA also took into account several recent (2013-2015) developments that had been allowed on undersized lots, as well as the fact that the R-5 district permits mixed uses, including a nearby law office and the Hob Knob Inn, a commercial property with a parking lot directly abutting Locus.
I. Procedural Motions
A. The Abutters' Motion to Strike Portions of Morrison's Affidavit
The Abutters argue that Paragraphs 4(a), 4(b), and 4(c) and Exhibits 3, 4, and 5 of Morrison's affidavit should be stricken for lack of personal knowledge because, they claim, there is no specific reference to the properties described therein in the record of the ZBA's hearing the 2015 Special Permit. The Abutters similarly urge the court to strike Paragraph 46 of the Applicant's statement of facts, which is based on the same information.
As discussed below, my review of this matter is de novo, and, as such, I am entitled to consider not only the reasons actually articulated by the ZBA in granting the 2015 Special Permit, but any reasons that would justify granting it. The information that the Abutters seek to strike is thus highly relevant. Moreover, Morrison, as the administrator of records for the ZBA, does have personal knowledge of this information. Further, Paragraph 46 of the Applicant's statement of facts merely refers to this information, and does not purport to establish new facts not within her personal knowledge. Thus, the Abutters' Motion to Strike is DENIED.
B. The Applicant's Motion to Strike Rieske's Affidavit
The Applicant argues that the court should strike Rieske's affidavit on the grounds that he lacks qualification as an expert under Mass. R. Evid. 702, since, she claims, Rieske has only worked in the greater Boston area and not on any projects in Edgartown. [Note 19] The Applicant further argues that Rieske's affidavit is not based on his personal knowledge, but rather is based on speculation and conjecture -- specifically as to the appropriateness of the ZBA's decision to grant the 2015 Special Permit based upon factors such as FAR, lot coverage, and "neighborhood character".
As described in his resume, Rieske is an architect with forty-three years of experience. He has experience representing clients before zoning boards and historical commissions across the Commonwealth. He has previously served as an expert witness in at least two zoning dispute lawsuits. Based on these credentials, he is eminently qualified as an expert in zoning disputes. While he may not have worked specifically in Edgartown, "architecture is a broad field", Pyle 22 LCR at 574, so his general experience should not be discounted just because of where it took place geographically. [Note 20] The Applicant's Motion to Strike Rieske's affidavit is thus DENIED. Specifically regarding Rieske's testimony as to FAR, the court will consider that testimony, but will accord it only such weight as is appropriate in light of the fact that the Bylaw prescribes no FAR requirements. See Bjorklund v. Zoning Bd. Of Appeals of Norwell, 450 Mass. 357 , 358 (2008).
C. The Applicant's Motion to Strike Late-Filed Papers
The Applicant also urges the court to strike the Abutters' supplemental memorandum and amended responses to the Applicant's statement of facts. While it is true that these papers were filed nine days late, [Note 21] the Abutters consented to the Applicant filing a reply brief (the filing of which had not been contemplated bythis court's briefing schedule), whichgave the Applicant ample opportunity to respond. [Note 22] Even if they had not extended this courtesy, the supplementation made by the Abutters' supplemental papers was minimal, did not raise new facts of which the Applicant had no prior knowledge, and did not in any way prejudice the Applicant. [Note 23] Thus, the Applicant's motion to strike late-filed papers is DENIED.
II. The Applicant's Motion for Summary Judgment
Summary judgment under Mass. R. Civ P. 56(c) is appropriate only if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). Where, as here, the moving party seeks summary judgment dismissing the non-moving party's case, summary judgment is appropriate where the moving party demonstrates that there is an absence of evidence to support the non-moving party's case. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1911).
In her Motion for Summary Judgment, the Applicant (together with the ZBA) urges the court to grant summary judgment, upholding the ZBA's decision and granting the ZBA judicial deference to make a rational application of its own Bylaw. She also challenges the Abutters' standing to appeal the 2015 Special Permit. In their opposition to the Applicant's Motion for Summary Judgment, the Abutters argue that the ZBA applied improper comparative standards that are inconsistent with Section 11.9(f) of the Bylaw, and that the ZBA's conclusion that the Project will not be a substantial detriment to the character of the neighborhood of Locus lacks a rational evidentiary basis. They also claim that the 2015 ZBA Application was improperly filed as a non-repetitive petition. I shall address each of these issues in turn.
Pursuant to G. L. c. 40A, § 17, "[o]nly a 'person aggrieved' may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Any party who is classifiable as a "party in interest" under G. L. c. 40A § 11 [Note 24] is presumed to be a "aggrieved", within the meaning of G. L. c. 40A, § 17. Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). Thus, G. L. c. 40A § 11 parties in interest enjoy a presumption of standing.
Notwithstanding this presumption of standing, if an opposing party "offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the [party claiming standing] must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012). If that occurs, the party claiming standing must then offer by "direct facts and not by speculative personal opinion-that his injury is special and different from the concerns of the rest of the community." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). The court must then decide the issue of standing "on the basis of all the evidence, with no benefit to the Plaintiff from the presumption of aggrievement." 81 Spooner Road, 461 Mass at 701.
The Abutters are parties in interest under G. L. c. 40A § 11, are thus presumed to be aggrieved for purposes of G. L. c. 40A, § 17, and, as such, enjoy a presumption of standing. The Applicant attempts to rebut this presumption, arguing that the Abutters' density, noise, and aesthetic concerns do not rise to the level of actual, specialized aggrievement for purposes of G. L. c. 40A § 17. This argument, however, is unsupported by any actual "evidence to warrant a finding contrary to the presumed fact [of standing] . . . ." 81 Spooner Road, 461 Mass at 701.
Even if the Applicant had met her burden of articulating a clear evidentiary basis suggesting that standing is lacking, this argument would still fail on the merits because it appears that the Abutters have, in fact, alleged a prima facie case of harms that are protected under G.L. c. 40A and the Bylaw. To reach this conclusion, the court need only look to the Abutters' claims regarding increased density, although there are others. [Note 25] On that point, "where a by-law regulates density and dimensions, [the courts] have recognized an abutter's legal interest in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519 (2011) (quotation omitted).
It is undisputed that the Project would increase lot coverage, that Locus is already an undersized lot, that an increase in lot coverage would further increase the non-conformity, and that density is a protected concern under the Bylaw. [Note 26] Thus, while it is a separate question (discussed below) whether the Abutters' concerns as to increased density (if not others) are ultimately actionable, they are certainly sufficient to establish standing. As such, I FIND that the Abutters have standing to have brought this appeal.
B. Repetitive Petitions under G. L. c. 40A § 16
The Abutters next argue that the 2015 ZBA Application was improperly filed as a non-repetitive petition less than two years after the ZBA denied the 2013 ZBA Application. As noted above, G. L. c. 40A, § 16 provides, in relevant part, as follows:
No appeal, application or petition which has been unfavorably and finally acted upon by the [special permit granting authority] shall be acted favorably upon within two years after the date of final unfavorable action unless said [specialpermit granting authority] finds . . . specific and material changes in the conditions upon which the previous unfavorable action was based . . . , and unless all but one of the members of the planning board consents thereto . . . .
Based upon this Statute, applicants seeking zoning relief who are turned away by a local special permit granting authority must satisfy both the local planning board and the special permit granting authority that any subsequent application for zoning relief filed within two years of the prior denial is "specific[ally] and material[ly]" different from the prior application. Paquin, 27 Mass. App. Ct. at 581 (interpreting the Statute as "requir[ing] planning board involvement . . . as a precedent to favorable board of appeals action" (emphasis omitted)). The Abutters argue that the 2015 ZBA Application ran afoul of the application of this Statute since it was filed less than two years after the 2013 ZBA Decision, which denied the 2013 ZBA Application, and did not show that it was specifically and materially different from the 2013 ZBA Application. [Note 27]
The Abutters here misconstrue G. L. c. 40A, § 16, which sets requirements as to favorable actions by special permit granting authorities -- not the filing of applications seeking such actions. Thus, what determines the propriety of the 2015 Special Permit, for purposes of G. L. c. 40A, § 16, is not the date that the 2015 ZBA Application was filed, but rather the date that the ZBA acted upon it. The ZBA approved the 2015 ZBA Application (granting the 2015 Special Permit) on October 14, 2015 -- two years and twelve days after the 2013 ZBA Decision, which was the last unfavorable ZBA decision with respect to Locus and the Project. [Note 28] Thus, I FIND that the ZBA did not err in hearing or granting the 2015 Special Permit as a non-repetitive petition, nor in failing to make specific findings as to the appropriateness of a repetitive petition under G. L. c. 40A, § 16.
C. The Propriety of the 2015 Special Permit under Bylaw § 11.9(f)
In assessing the propriety of the ZBA's grant of the 2015 Special Permit, the court is required to review the facts of the case de novo, giving "no evidentiary weight to the board's findings." Roberts v. Sw. Bell Mob. Sys. Inc., 429 Mass. 478 , 486 (1999); see also G. L. c. 40A, § 17. In this context, "judicial review typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003).
In the first phase of the court's review:
an essentially legal analysis is required to decide whether the board's decision was based on a legally untenable ground, or . . . on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives some measure of deference to the local board's interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.
Id. (quotations omitted); see also MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639-640 (1970). In the second phase of review:
Assuming that the board has drawn on proper criteria and standards, the court then must determine, on the basis of the facts it has found for itself, whether the board has denied the application by applying those criteria and standards inan"unreasonable, whimsical, capricious or arbitrary" manner . . . [and whether] any rational board could conclude that the addition or alteration the applicants propose would be substantially more detrimental to the neighborhood than the existing structure.
Britton, 59 Mass. App. Ct. at 74 (quoting MacGibbon, 356 Mass. at 639); see also Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 362, n. 17 (2001) (particular deference is due to special permit decisions). In other words, so long as "any rational board" could reasonably have reached the conclusion here reached by the ZBA, this court will uphold the discretion of the ZBA "even if the facts found by the court would support [the opposite conclusion]." Britton, 59 Mass. App. Ct. at 74; see also S. Volpe & Co. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976) (court may uphold decision for stated reasons or for those found by the court).
A general principle of zoning jurisprudence is that "a zoning policy . . . is consistent with the statutory mandate of G. L. c. 40A § 6, which disfavors extensions of existing nonconformities." Davis, 52 Mass. App. Ct. at 357. Nonetheless, G. L. c. 40A § 6 does not require non-conforming properties to "remain static", Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 730 (2005), but rather permits limited exceptions to this standard. Section 11.9(f) of the Bylaw, which implements G. L. c. 40A § 6 locally, provides as follows:
The Special Permit Granting Authority [here, the ZBA] shall have the authority to grant a special permit for the change, extension or alteration of a preexisting, nonconforming structure, or for the construction of structures which are accessory to preexisting nonconforming structures, where such change, extension, alteration, or construction will not comply with the applicable provisions of the zoning by-law; provided, however, that the Special Permit Granting Authority finds after a public hearing that  other lots in the neighborhood have been previously developed by the construction of buildings or structures in such a manner as to have resulted in similar non-conformities, and  that the proposed expansion, extension, alteration, or construction will not be more objectionable or substantially more detrimental to the character of the neighborhood than the original structure.
A review of the 2015 Special Permit clearly indicates that the ZBA performed both of the inquiries required by Section 11.9(f) of the Bylaw, having considered both "similar non-conformities" and whether the Project would be "substantially more detrimental". Thus, the first, purely legal, phase of my inquiry is complete. Britton, 59 Mass. App. Ct. at 73. I thus turn to the second, highly deferential phase of my review: whether the question of whether the ZBA properly applied these criteria set forth in Section 11.9(f) of the Bylaw.
The first question in assessing whether the 2015 Special Permit was properly granted pursuant to Section 11.9(f) of the Bylaw is whether "other lots in the neighborhood [of Locus] have been previously developed by the construction of buildings or structures in such a manner as to have resulted in similar non-conformities". Here, the Abutters argue that the ZBA improperly considered conforming lots in its assessment of "similar non-conformities", and that, by doing so, ruled on the basis of "criteri[a], or consideration[s] not permitted by the applicable statutes or by-laws." Britton, 59 Mass. App. Ct. at 73.
The Abutters are correct that Section 11.9(f) of the Bylaw required the ZBA to consider other non-conforming lots in its assessment of whether other projects have resulted in "similar non-conformities". On this point, the Abutters make much of the fact that the 2015 Special Permit makes reference to two larger-scale developments across the street from Locus, which are both conforming lots. Nothing in the record, however, indicates that the ZBA specifically took these properties (and only them) into account in assessing "similar non-conformities".
To the contrary: the documents in the summary judgment record clearly reflect that the ZBA -- in addition to its overall zoning analysis of Locus vis-à-vis twenty-five other properties -- did, in fact, consider multiple other instances where special permits for residential development were granted on undersized, non-conforming lots in the R-5 district between 2013 and 2015. [Note 29] In particular, in the 2015 Special Permit, it is specifically noted that "the board has approved several similar projects on equally small or smaller lots and . . . there has been quite a bit of development in this area." The 2015 Special Permit specifically references one of these projects, located on Cummings Way. Moreover, Morrison, in her affidavit, references three additional similar developments. [Note 30]
In sum, having reviewed the evidence in the summary judgment record, I FIND that it was reasonable for the ZBA to have reached the conclusion that "similar non-conformities" exist for purposes of Bylaw § 11.9(f).
The next question in assessing the appropriateness of the 2015 Special Permit is whether "the proposed expansion, extension, alteration, or construction will not be more objectionable or substantiallymore detrimental to the character of the neighborhood thanthe originalstructure." Here, the Abutters argue that the ZBA misapplied Section 11.9(f) of the Bylaw in its assessment of the "character of the neighborhood" in which Locus is located by giving the term "neighborhood" a broader geographical scope than was appropriate, thus assessing the Project in light of properties and developments that were not germane to the instant inquiry.
While undefined both by statute and in case law, the "mandated application to special permit determination in every one of the diverse zoning districts in a municipality requires [the term "neighborhood] to be viewed as an elastic, comprehensive term the specific meaning of which will depend on the facts and circumstances of each particular situation . . . ." Davis, 52 Mass. App. Ct. at 362. Here, as noted above, the summary judgment record amply demonstrates that the ZBA performed a zoning analysis, which compared Locus with twenty-five other properties in the vicinity of Locus -- all of which were located in the R-5 district, ten of which were conforming lots, and sixteen of which were undersized, non-conforming lots. The ZBA also took into account the fact that the R-5 district permits mixed uses, including a nearby law office and the Hob Knob Inn, a commercial property with a parking lot directly abutting Locus.
Having reviewed the materials that were presented to the ZBA, I cannot conclude that it was arbitrary or capricious for the ZBA to have compared Locus and the Project to the other properties and projects that the ZBA considered. Rather, the ZBA appears to have considered a broad, yet reasonably comparable, array of properties in the R-5 district, including a reasonable number of other undersized, non-conforming lots where similar developments were permitted. The record further reflects that Locus is located in a diverse, mixed use neighborhood supporting a broad spectrum of uses, both residential and commercial. As such, it was reasonable to consider the R-5 district in a broader sense than just the geographically delimited portion thereof suggested by the Abutters. [Note 31] Thus, I FIND that the ZBA did not err in its assessment of the neighborhood character of the area in which Locus is located for purposes of Bylaw § 11.9(f).
Having so defined "neighborhood" and turning to the specifics of the Project, the record demonstrates that the Project proposed a development that was reasonably comparable (in size, scope, architecture, etc.) to other nearby properties. It was also relevant for the ZBA to consider that the Project would not only remove two existing setback non-conformities, but would otherwise bring Locus, and the improvement thereof, into full compliance with the Bylaw with the exception of overall land area and frontage. [Note 32] However, these remaining non-conformities are common to properties in the vicinity of Locus, which were largely created well before the current zoning requirements were enacted.
On the basis of these facts, the ZBA found that the Project would not be substantially detrimental to the character of the neighborhood in terms of its size, scope, design, or effect on neighboring properties. [Note 33] To further ensure this, the ZBA further prescribed several specific conditions on its approval of the Project, which were specifically designed to protect abutters from any impacts that the development of Locus might have. Having reviewed the materials in the record that were submitted to the ZBA for its review (including the details of the Project, its size and scope, its architecture, and its purposed use), and having weighed these facts in light of the content and meaning of the relevant statutes, I FIND that it was reasonable for the ZBA to conclude that the Project would cause no substantial detriment to the character of the neighborhood in which it is located. [Note 34]
Based upon the foregoing discussion, the Applicant's Motion for Summary Judgment is hereby ALLOWED. The 2015 Special Permit is thus affirmed and upheld.
Judgment to enter accordingly.
[Note 1] This motion was supported by a memorandum of law, statement of material facts, and appendix of exhibits containing, affidavits of ZBA Administrator Lisa Morrison ("Morrison") and architect Patrick Ahearn ("Ahearn"). On the same date, the ZBA filed a notice that it was joining in the Applicant's Motion for Summary Judgment.
[Note 2] This opposition brief included a supporting memorandum of law, a statement of additional material facts, and an appendix of exhibits containing affidavits of Plaintiff Arthur Buckland, architect Dennis C. Rieske ("Rieske"), and Meredith Wilson Doty (the Abutters' attorney). The Abutters filed a supplemental memorandum and supplemental statement of facts on August 31, 2016.
[Note 3] This reply brief (filed with the Abutters' assent) included a statement of additional material facts and an index containing affidavits of Ahearn and Salvatore Scudieri (an employee of the Abutters' counsel).
[Note 4] Also taken under advisement were motions to strike portions of Morrison's affidavit, to strike portions of the Applicant's statement of material facts, to strike the Abutters' supplemental opposition papers as untimely, for leave for the Abutters to have late-filed their supplemental papers, and to strike Rieske's Affidavit.
[Note 5] The Applicant, on numerous occasions in her motion papers, incorrectly states that the area of Locus is 6,534 square feet. Ahern's affidavit supplies the correct figure, which is agreed to by the Abutters.
[Note 6] Under Article II of the Bylaw, the ZBA is the special permit granting authority for most special permits authorized by the Bylaw, other than those authorized for specific classes of uses, such as cluster developments.
[Note 7] Section 11.9(f) of the Bylaw provides that "[t]he Special Permit Granting Authority [here, the ZBA] shall have the authority to grant a special permit for the change, extension or alteration of a preexisting, nonconforming structure, or for the construction of structures which are accessory to preexisting nonconforming structures, where such change, extension, alteration, or construction will not comply with the applicable provisions of the zoning by-law; provided, however, that the Special Permit Granting Authority finds after a public hearing that other lots in the neighborhood have been previously developed by the construction of buildings or structures in such a manner as to have resulted in similar non-conformities, and that the proposed expansion, extension, alteration, or construction will not be more objectionable or substantially more detrimental to the character of the neighborhood than the original structure."
[Note 8] The Fruhans filed a letter opposing the 2012 ZBA Application at the ZBA hearing thereon but did not appeal its allowance.
[Note 9] The Abutters also opposed the 2013 ZBA Application.
[Note 10] G. L. c. 40A, § 16 provides, in relevant part, that "[n]o appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered." This Section's reference to approval both by the local special permit granting authority and by the local planning board has been interpreted as "requir[ing] planning board involvement . . . as a precedent to favorable board of appeals action." Paquin v. Bd. of Appeals of Barnstable, 27 Mass. App. Ct. 577 , 581 (1989) (emphasis omitted).
[Note 11] The 2014 Plan proposed to reduce the size of the main house to an area of 2,000 square feet and that of the garage to 399 square feet. It also proposed to remove three decks from the structures, to move the garage ten feet back from the road, to move the house ten feet closer to the road, and to reduce the height of the house from 27' 10" to 26' 6". The development under the 2014 Plan would have had a FAR of 35%, compared to 47% in the 2013 Plan.
[Note 12] The Abutters also opposed the 2014 Planning Board Application.
[Note 13] The 2013 Plan had proposed that the carriage house would be located very near to the rear lot line and would have 400 square feet of living space. It called for the house to have an area of 2,800 square feet and a large back deck. The 2015 Plan, by contrast, moved the location of the carriage house away from the rear lot line (to accommodate the concerns of the Abutters) and reduced its living space from 400 square feet to 330 square feet. The proposed house was reduced from 2,800 square feet to 2,538 square feet. The height of the proposed house was reduced from 27' 10" to 25' 6" (at its highest point). Whereas the 2013 Plan had an FAR of 47.16%, the 2015 Plan had an FAR of 42.28%.
[Note 14] The Abutters also opposed the 2015 Planning Board Application.
[Note 15] At the hearing regarding the Project, the ZBA heard from four parties in favor of the Project. The Abutters were the only parties who objected to the Project. In assessing the appropriateness of the Project, the ZBA compared Locus to twenty-five other lots in the R-5 zoning district, of which fifteen were undersized, non-conforming lots. The ZBA also compared the Project to other developments in the neighborhood, finding that "the Board [had] already approved several similar projects on equally small or smaller lots" and "that there had been quite a bit of development in the area." In her affidavit, Morrison included records pertaining to a number of these previously-approved projects. Based on this comparison, the ZBA determined that the Project was appropriate, "as there are similar sized-structures in the neighborhood" and that it did not appear "that the structures would have an adverse effect on the neighborhood [and] although it is certainly larger than what currently exists, it will not be out of scale with other nearby structures." The ZBA further noted that similar projects had been approved on other non-conforming lots in the R-5 district, and thus concluded the Project "will not be detrimental to the neighborhood."
[Note 16] The Abutters' objections to the Project were largely based on the non-conforming nature of Locus (both in size and frontage) and the increased size and lot coverage of the proposed structures as compared to its existing configuration. They also disputed the Applicant's zoning comparisons. They additionally cited concerns as to density, height and mass of structures, light and air, lack of screening/privacy, egress/ingress concerns, parking, sewer access, neighborhood character, and noise.
[Note 17] The construction of an enlarged residence, together with the placement of the carriage house in a different location than the footprint of the Shed, would require a number of mature trees on Locus to be removed. Ahearn's design for Locus thus called for privacy fences to be installed along the sides of Locus and new privacy trees to be planted along the rear lot line of Locus and along the sides of the proposed carriage house.
[Note 18] A zoning comparison chart submitted by the Abutters in opposition to the 2015 ZBA Application compared Locus with twenty-five other nearby properties, finding an average square footage of 8,578.
[Note 19] Mass. R. Evid. § 702 sets forth the following requirements for expert testimony to be admitted:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Id.; see also Commonwealth v. Barbosa, 457 Mass. 773 , 783 (2010); Commonwealth v. Robinson, 449 Mass. 1 , 5 (2007) (court has "broad discretion" in making these determinations).
[Note 20] The Abutters note that Rieske interviewed a number of Edgartown municipal officials, inspected Locus and abutting parcels, and reviewed all of the properties listed on Ahearn's comparative property chart, as wells as other projects Ahearn has developed in Edgartown.
[Note 21] The papers in question primarily addressed the issue of whether it was proper, under G. L. C. 40A, § 16, for the ZBA to have considered the 2015 ZBA Application as a non-repetitive petition, an issue that was addressed in the Applicant's Motion for Summary Judgment, but was apparently overlooked in the Abutters' initial opposition brief.
[Note 22] The Applicant also used this opportunity to raise an argument she herself had neglected to raise in her moving papers -- the issue of the Abutters' standing as "aggrieved" parties.
[Note 23] With specific respect to the Abutters' supplemental responses to the Applicant's statement of facts, the Abutters only modified two paragraphs of their previous response, which, in part, helped to correct a material error contained in the Applicant's own statement of facts (which erroneouslystated that the 2013 ZBA Application was made to the Planning Board rather than to the ZBA), thus clarifying the summary judgment record.
[Note 24] G. L. c. 40A, § 11 defines "parties in interest" as "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . ."
[Note 25] As discussed in Footnote 34, infra, the Abutters also allege loss of light and/or air, reduced privacy, unsafe egress/ingress, insufficient parking, lack of sewer access, and excessive noise. As noted, infra, there is ultimately no evidence to substantiate these concerns, but, because the Applicant has made no meaningful attempt to rebut the presumption of standing, any one of these concerns would be sufficient as a basis for the threshold inquiry at issue here -- namely, whether the Abutters have standing.
[Note 26] The Bylaw uses the more general term "bulk" in place of density, "to indicate the size and setbacks of buildings or structures and the location of same with respect to one another." Bylaw Art. II. Bulk is a protected concern in every one of the zoning district in the Bylaw.
[Note 27] It is undisputed that, pursuant to the 2015 Planning Board Decision, the Planning Board unanimously approved the Applicant's filing of a repetitive petition to do the work proposed in the 2015 Planning Board Application, and that said work proposed therein was the same as that described in the 2015 ZBA Application. However, rather than filing a repetitive petition with the ZBA after receiving the 2015 Planning Board Decision, the Applicant instead waited approximately six months and filed the 2015 ZBA Application as a non-repetitive petition. Thus, the Abutters' objection seems to be that the 2015 ZBA Application should be have filed as a repetitive application, and that the ZBA should have issued specific findings as to the appropriateness of a repetitive application.
[Note 28] As noted, the 2014 Planning Board Decision denied the 2014 Planning Board Application, and thus the ZBA (i.e., the special permit granting authority) never considered it. Accordingly, the 2014 Planning Board Decision does not constitute an unfavorable ruling for purposes of G. L. c. 40A, § 16.
[Note 29] Of the twenty-five properties considered, ten were conforming and fifteen were non-conforming.
[Note 30] The properties noted by Morrison in her affidavit are 18 Planting Field Way, 5 Pease's Point Way (which was among the twenty-five lots considered as part of the ZBA's "neighborhood" analysis), 113 South Water Street, and Cummings Way. Even if the ZBA did not have these specific properties in mind in finding "similar non-conformities", they here serve as ample evidence of the same, which is admissible as part of my de novo review. S. Volpe, 4 Mass. App. Ct. at 360.
[Note 31] The Abutters, in their opposition brief, imply that the term "neighborhood" should be interpreted as limited to only those properties within three hundred feet of Locus (i.e., only those properties that were legally required to receive written notice of the 2015 ZBA Application). Such a restrictive definition lacks any basis in statutory or case law.
[Note 32] As to the issue of density, it was likewise relevant that, because the Bylaw does not prescribe any maximum FAR or lot coverage, the Applicant, of right, would have been permitted to construct a house that extends right up to the setbacks of Locus. The development proposed is far less dense than such an of right development would have been.
[Note 33] Also of note, the fact that the properties adjacent to Locus do not have detached garages (another complaint lodged by the Abutters) does not undermine this conclusion. The proposed carriage house is not only fully permitted as an accessory structure under the Bylaw, but it would replace two existing accessory structures, and its design and location have been changed to specifically address the Abutters' concerns. As to whether the carriage house could or would be used as a guest house or rental/party space, that is simply not relevant to this case, as there is no evidence that doing so would violate the Bylaw. Moreover, the 2015 Special Permit applied specific conditions to the Project to ensure that this would not occur. Thus, the Abutters' concerns here have been adequately addressed.
[Note 34] As noted above, the Abutters' concerns as to density, height, and mass of structures are legitimate, but the evidence simply does not support the conclusion that theyare ultimately actionable under Section 11.9(f) of the Bylaw. Not only is the Project designed to meet all dimensional requirements of the Bylaw, but it is a far smaller development than would be permitted of right under the Bylaw, which prescribes no FAR or lot coverage maximums. Moreover, as noted, I am satisfied that "similar non-conformities" have been considered and allowed by the ZBA.
As to the Abutters' more particularized concerns (loss of light and/or air, reduced privacy, unsafe egress/ingress, insufficient parking, lack of sewer access, and/or excessive noise), the Abutters failed to adduce any evidence whatsoever. All the Abutters submitted on these points were unsubstantiated allegations without any credible evidence suggesting that these concerns amount to anything more than bare speculation. The same goes for the Abutters' concern that the proposed carriage house might be used for parties and/or leasing. That may or may not be the case, but so long as the Applicant uses her property within the parameters prescribed by law (and the conditions of the 2015 Special Permit), how the Applicant uses the carriage house is simply none of the Abutters' concern. Regarding privacy and screening, it is notable that there is nothing in the Bylaw that would prevent the Applicant from removing trees from Locus irrespective of how she develops Locus.