Introduction
The plaintiffs in this G.L. c. 40A, § 17 appeal challenge the Brookline Zoning Board of Appeal's grant of a special permit for the proposed expansion of defendant Jason Jewhurst's and defendant Nurit Zuker's (the "applicants") grandfathered dimensionally nonconforming residence, which was based in part on the Board's finding that the proposed expansion would not be substantially more detrimental to the neighborhood than the existing structure. With the proposed expansion, the floor area ratio ("FAR") of the applicants' residence its sole preexisting nonconformity will increase.
The parties agree that there are no material facts in dispute and that this case turns on the legal question of whether a variance was required for the proposed increase to the preexisting FAR nonconformity. [Note 1] According to the Board and the applicants, under G.L.
c. 40A, § 6 the Board's finding of no substantial detriment is all that was required. The plaintiffs disagree and contend that a variance was required because, in their view, G.L. c. 40A, § 6 provides that an increase to a preexisting nonconformity must also comply with the local zoning by-law, Brookline's Zoning By-law ("By-law") prohibits increases to nonconformities unless specifically authorized by the By-law, and there was no By-law provision that allowed in the increase in the FAR nonconformity.
The plaintiffs' motion for summary judgment and the defendants' joint cross-motion for summary judgment are now before the court. On the undisputed facts, as a matter of law, I find that a variance was not required for the proposed expansion and thus affirm the Board's grant of the special permit. [Note 2]
Facts
Summary judgment may be entered when the facts material to the claims at issue are not in genuine dispute and the moving party is entitled to judgment on those claims as a matter of law. See Mass. R. Civ. P. 56(c); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002). The following facts are not in dispute.
The plaintiffs, Maria Bellalta and Damon Burnard, own the property at 18-20 Cypress Street in Brookline. The applicants own the abutting property at 10 Searle Avenue, which is located in Brookline's T-5 (Two-Family and Attached Single Family) zoning district. The applicants' residence has a preexisting nonconforming FAR of 1.14, which exceeds their zoning district's maximum FAR of 1.0. [Note 3]
The applicants applied to the Board for a special permit to expand their residence by converting its hip roof to a gabled roof with a dormer on the front façade, and then finishing 677 square feet of the third floor as an additional living area. This will increase the FAR to 1.38 and thus intensify the preexisting FAR nonconformity.
Section 802(2) of the By-law addresses increases to nonconformities and provides:
[a] use or structure which does not conform to the regulations of this By-law . . . but which did conform to all applicable regulations when initially established, may be altered, repaired, or enlarged, except that any nonconforming condition may not be increased unless
specifically provided for in a section of this By-law. . . . [Note 4]
By-law, § 802(2) (emphasis added). The By-law has no provision that would allow the proposed increase to the preexisting nonconforming FAR of the applicants' residence. However, the applicants contended that G.L. c. 40A, § 6's "special protection" for single and two-family structures pre-empted the By-law and, in accordance with its "second except" clause, applied for a special permit.
The Board agreed with the applicants and, after a public hearing, granted a special permit for the applicant's proposed project by a decision dated November 3, 2016, finding that the proposed expansion would not be substantially more detrimental to the neighborhood than the existing structure and that the applicants satisfied the criteria for a special permit. [Note 5] The applicants did not request a variance, and the Board did not grant one. This action is the plaintiffs' G.L. c. 40A, § 17 appeal of the Board's decision.
Further relevant facts are set forth below.
Analysis
As previously discussed, the dispositive issue before the court is whether a variance was required to increase the preexisting nonconforming FAR of the applicants' residence. For the reasons more fully described below, I find that no variance was required and that only a Board finding of no substantial detriment was necessary.
In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the Board's decision "'cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.'" Roberts v. Southwest Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)). See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381382 (2009). The legality of the Board's decision turns on Section 6 of the Zoning Act, which provides, in relevant part,
Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . but shall apply to any change or substantial extension of such use, . . . to any reconstruction, extension or structural change of such structure . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. [Note 6] Pre-existing nonconforming 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 by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
G.L. c. 40A, § 6 (emphasis added). Courts in the Commonwealth have "had considerable occasion to interpret the statute's 'difficult and infelicitous' language," Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 , 857 (2005) (Greaney, J., concurring) (quoting Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55 (1985)), and have established the following interpretative framework.
Under G.L. c. 40A, § 6, absent a variance, extensions and structural changes to preexisting nonconforming structures generally must conform to the local zoning law. See Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991). Single and two-family residential structures, however, have "special protection" under G.L. c. 40A, § 6. Id. See Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 , 337 (2011) (describing "special treatment explicitly afforded to single or two-family residential structures under the statute").
[U]nder the second 'except' clause of the first paragraph of the statute, as concerns single or two-family residential structures, the permit granting authority must first 'identify the particular respect or respects in which the existing structure does not conform to the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones. If the answer to that question is in the negative, the applicant will be entitled to the issuance of a special permit.' If the answer is in the affirmative, a finding of no substantial detriment under the second sentence is required.
Gale, 80 Mass. App. Ct. at 337 (quoting Bransford, 444 Mass. at 858 (Greaney, J., concurring)) (internal citations omitted). See Bransford, 444 Mass. at 856-859 (Greaney, J., concurring) (discussing and favorably citing Appeals Court cases interpreting G.L. c. 40A, § 6 as quoted above). See also Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 357358 (2008) (adopting reasoning and result of concurring opinion in Bransford).
For single and two-family residential structures, all that is required to intensify an existing grandfathered nonconformity, such as the FAR of the applicants' residence, is a finding of no substantial detriment by the permit granting authority. [Note 7] See Deadrick, 85 Mass. App. Ct. at 552-553 ("[A] long line of cases, notably including Bransford and Bjorklund, have held that an alteration which intensifies an existing nonconformity in a residential structure may be authorized under the second sentence of [G.L. c. 40A,] § 6 upon a finding of no substantial detriment."); Gale, 80 Mass. App. Ct. at 337-338 ("[The no substantial detriment] finding stands alone as sufficient to proceed with the proposed project. . . .") Neither compliance with the local zoning by-law nor a variance is required. See Gale, 80 Mass. App. Ct. at 337-338. The creation of a new nonconformity, however, requires a variance. See Deadrick, 85 Mass. App. Ct. at 553.
Here, with the proposed expansion, the existing grandfathered nonconforming FAR of the applicants' residence will increase. There will be no new nonconformity. Therefore, under G.L. c. 40A, § 6, all that is required for the proposed expansion is a finding of no substantial detriment from the Board. See Deadrick, 85 Mass. App. Ct. at 553; Gale, 80 Mass. App. Ct. at 337-338. The Board made the required finding and, thus, the applicants may proceed with their proposed expansion. [Note 8]
The plaintiffs, primarily relying on the Supreme Judicial Court's Rockwood v. Snow Inn Corp. decision, contend that G.L. c. 40A, § 6 also requires compliance with the By-law. In Rockwood, the Supreme Judicial Court interpreted G.L. c. 40A, § 6 in the context of a challenge to the grant of a special permit for the extension of two commercial structures with preexisting nonconforming setbacks, concluding:
the first sentence . . . of [G.L. c. 40A,] § 6 requires that, in the absence of a variance, any extension or structural change of a nonconforming structure must comply with the applicable zoning ordinance or by-law. Then, if the proposed extension or change conforms to the by-law, the second quoted statutory sentence requires for project approval a finding that the extension or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structures. If the first and second sentences are read together, the statute permits extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures. [Note 9]
Rockwood, 409 Mass. at 364. Because the proposed alterations would result in an additional nonconformity, [Note 10] the Supreme Judicial Court reversed the lower court's decision affirming the grant of the special permit. See id. at 370.
"Applied strictly to residential structures, the holding in Rockwood would require a variance even for extensions of existing nonconformities." Deadrick, 85 Mass. App. Ct. at 552. However, Rockwood addressed the grant of a special permit under G.L. c. 40A, § 6 to a commercial structure. See id. at 552 (distinguishing Rockwood from cases concerning residential structures); Gale, 80 Mass. App. Ct. at 336-338 (same). See also supra note 9. As previously discussed, G.L. c. 40A, § 6 treats single and two-family residential structures differently than commercial structures. [Note 11] See G.L. c. 40A, § 6; Rockwood, 409 Mass. at 364; Deadrick, 85 Mass. App. Ct. at 552; Gale, 80 Mass. App. Ct. at 337-338. For such residential structures, the permit granting authority's finding of no substantial detriment is enough to increase an existing grandfathered nonconformity, such as the applicants' FAR in this case. [Note 12] See G.L. c. 40A, § 6; Deadrick, 85 Mass. App. Ct. at 552-553; Gale, 80 Mass. App. Ct. at 336-338.
In addition, § 802(2) of the By-law does not compel a different result in this case. Section 802(2) provides that "any nonconforming condition may not be increased unless specifically provided for in a section of this By-law." By-law, § 802(2). The plaintiffs contend that the applicants' proposed expansion cannot go forward without a variance because there was no provision in the By-law that allowed the increase to the preexisting nonconforming FAR. However, the "two-part framework [of G.L. c. 40A, § 6] does not include application of a local by-law or ordinance as an additional step when proceeding to the no substantial detriment finding under the second sentence." Gale, 80 Mass. App. Ct. at 337. The Board's finding of no substantial detriment is all that was required. See id. at 337-338.
Furthermore, "General Laws c. 40A, § 6 . . . sets the floor for 'grandfather' protection in local zoning bylaws; it prescribes the minimum of tolerance that must be accorded to nonconforming uses, existing buildings and structures, and the existing use of any building or structure." Rourke v. Rothman, 448 Mass. 190 , 191 n.5 (2007) (internal quotations and citations omitted). A municipality's zoning by-law thus cannot provide a preexisting nonconforming property less protection than it would have under G.L. c. 40A,
§ 6. See id.; Coady v. Putnam, 25 LCR 388 , 397 n.56 (2017) (Sands, J.) ("[W]hile municipalities can afford greater protections for pre-existing, nonconforming uses and structures, they cannot offer less protection. . . . [T]o the extent [the zoning by-law] . . . purports to impose a stricter standard than G.L. c. 40A, § 6, it would appear to be pre- empted by the statewide statute."); Kanj v. D'Agostino, 25 LCR 335 , 340 (2017) (Sands, J.) ("[T]o the extent [the zoning by-law] affords fewer protections to pre-existing, nonconforming uses than G.L. c. 40A, § 6, it is invalid on its face."); Gottfried v. Betron, 25 LCR 1 , 11 n.19 (2017) (Piper, J.) ("The local bylaw may grant greater indulgence than the minimum required under G.L. c. 40A, s. 6. . . . § 6 only controls when a bylaw creates more onerous restrictions on non-conforming uses and structures than § 6."). See also Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011) ("It is axiomatic that [a] by-law cannot conflict with the statute." (quotations omitted)). It would conflict with this principle to hold that a variance was required for the applicant's proposed expansion under the By-law when, as previously discussed, it can proceed under G.L. c. 40A, § 6 based on the Board's finding of no substantial detriment.
Conclusion
For the foregoing reasons, the plaintiffs' motion for summary judgment is DENIED, and the defendants' joint cross-motion for summary judgment is GRANTED. The Board's decision is AFFIRMED and the plaintiffs' claims are DISMISSED, with prejudice.
Judgment shall enter accordingly.
SO ORDERED.
1. The Board of Appeals shall not approve any such application for a special permit unless it finds that in its judgment all of the following conditions are met:
a. The specific site is an appropriate location for such a use, structure, or condition.
b. The use as developed will not adversely affect the neighborhood.
c. There will be no nuisance or serious hazard to vehicles or pedestrians.
d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.
e. The development as proposed will not have a significant adverse effect on the supply of housing available for low and moderate income people.
By-law, § 9.05(1). The Board's decision includes findings that the applicants satisfied each of above conditions. The decision does not contain an explicit finding of no substantial detriment. However, the finding is implicit in the decision and the parties have stipulated that the Board so found.
As the Appeals Court reasoned in Gale, the above quoted language from Rockwood "would superficially seem to require adherence to the ordinance in this case [involving the reconstruction of a preexisting nonconforming residential structure]," however, the second except clause of G.L. c. 40A, § 6 was not relevant in Rockwood because that case involved a commercial structure "and the quoted language is dicta outside the context of commercial cases." Gale, 80 Mass. App. Ct. at 338. Furthermore, the concurring opinion in Supreme Judicial Court's subsequent Bransford decision included no such requirement in its discussion outlining the G.L. c. 40A, § 6 interpretive framework with respect to residential structures. See id. (citing Bransford, 444 Mass. at 858-859 (Greaney, J., concurring)).
In addition, the Appeals Court's holdings in Gale and Deadrick are largely based on, and consistent with, the Supreme Judicial Court's interpretation of G.L. c. 40A, § 6 in the concurring opinion in Bransford, which the Supreme Judicial Court decided after Rockwood. See Bransford, 444 Mass. at 856- 859 (Greaney, J., concurring); Deadrick, 85 Mass. App. Ct. at 547-553; Gale, 80 Mass. App. Ct. at 336-
338. See also Bjorklund, 450 Mass. at 357358 (adopting reasoning of Bransford's concurring opinion).
MARIA BELLALTA and DAMON BURNARD v. JESSE GELLER, JONATHAN BOOK, CHRISTOPHER HUSSEY, JOHANNA SCHNEIDER, MARK ZUROFF, KATE POVERMAN, LARK PALERMO, and STEPHEN CHIUMENTI as members of the Zoning Board of Appeal of the Town of Brookline, JASON JEWHURST, and NURIT ZUKER.