STONA J. FITCH and ANN W. FITCH v. ROBERT C. SEPUCHA, JR., JOHN P. BRADY, and STUART T. FREELAND, as members of THE BOARD OF APPEALS OF THE TOWN OF CONCORD; and FCI INVESTORS, INC.

This dispute presents three questions: (1) whether defendant FCI Investors, Inc., properly took advantage of § 7.1.5 of the Town of Concord's Zoning Bylaw, which gives favorable treatment to "reconstructions" of preexisting, nonconforming, single-family residences; (2) if so, whether FCI also could avail itself of a special feature of § 7.1.5 that allows the Town's building inspector to approve such work merely by issuing a building permit; and (3) whether plaintiffs Stona and Ann Fitch, whose property abuts FCI's property, have standing under G.L. c. 40A, § 17 to challenge one such permit issued to FCI.

To resolve these questions, the Court held a trial on October 17 and 18, 2017. The Court heard closing arguments on December 18, 2017. Based on the parties' admissions, the testimony at trial, the exhibits received into evidence, the Court's view of the FCI and Fitch properties, and the arguments of counsel, the Court finds these facts:

1. FCI owns a property at 1415-1419 Main Street, Concord, Massachusetts. The FCI property is comprised of two parcels, Concord Assessor's Parcels 2582 and 2622. Parcel 2582 is 10,548 square-feet large. It has 75.50 feet of frontage on Central Street. Parcel 2622 is 10,513 square-feet large. It has 67.80 feet of frontage on Main Street. Central Street and Main Street are public ways.

2. The Fitches own a home at 190 Central Street. They have resided there since the spring of 1994. There is a single-family residence and a detached garage on the Fitch property.

3. The entire west side of Parcel 2582 abuts the east side of the Fitch property.

4. There are two residential buildings on the FCI property, both built in 1916. The parties call one the "Main House," and the other, the "Carriage House." The Main House is entirely on Parcel 2622. Most of the Carriage House, which has two floors, also is on Parcel 2622, but a small portion of the Carriage House's second-floor deck and a stairway leading to that deck lie on Parcel 2582. One side of the Carriage House faces and is roughly parallel to Main Street. The other side faces and is roughly parallel to Central Street.

5. The ground floor of the Carriage House has four garage bays. For the last several decades, those bays have been used largely to store items owned by residents of the Main House and the Carriage House. The ground floor also has a small room that contains laundry and utility facilities. The second floor of the Carriage House contains living quarters. There is an enclosed stairway that leads from the ground floor of the Carriage House to its second floor. The second floor of the Carriage House has two bedrooms, a living room, a kitchen, a bathroom, a closet, and a hallway that connects most of the rooms. The windows in the kitchen, the bathroom, and the bedrooms face Main Street, and not the Fitch property. Some of the living room's windows and those along the second-floor hallway do face the Fitch property. The combined area of the two floors of the Carriage House is 1,977.68 square feet.

6. Concord adopted its first Zoning Bylaw in February 1928.

7. As of February 1928, a married couple, the Roddays, occupied the Main House. A different married couple, the Browns, occupied the Carriage House as of April 1, 1927; their name reappears on the Town of Concord's street list, for the same property (but not necessarily at the Carriage House), as of April 1, 1929. On the April 1, 1928 Town street list, the name of a different couple, the Keenans, appears instead of the Browns.

8. The 1928 Bylaw placed the Main House and the Carriage House into a "Single Residence" zone. The 1928 Bylaw did not require buildable lots to have minimum frontage along a public way, nor did it prohibit multiple single-family structures on the same lot.

9. In 1950, Concord amended its Bylaw and placed the Main House and the Carriage House into a "Residence District C." That amendment required a minimum of 80 feet of frontage on an accepted public or private way for construction of a single-family residence in the "C" district. That requirement remains in effect for Parcels 2622 and 2582.

10. Section 4.2.1 of the Bylaw currently provides: "Single-family dwelling: No more than one dwelling unit shall be located upon a lot except as provided in subsections 4.2.2, 4.2.3, and 4.2.4." The record does not show when, after 1928, Concord first adopted § 4.2.1 or any similar provision of the Bylaw.

11. Section 4.2.2 (to which § 4.2.1 refers) allows the construction of two-family structures and additional "dwelling units" by special permit. Section 4.2.3 addresses dwelling units on lots where there are commercial uses. Section 4.2.4 addresses dwelling units on lots where there are industrial and non-retail business uses.

12. Section 1.3.8 of the Bylaw defines "dwelling unit" as "[a] structure or portion thereof providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation."

13. Section 1.3.15 of the Bylaw (also mentioned in § 4.2.1) defines "lot" as "[a]n area of land in one ownership with definitive boundaries ascertainable from a recorded deed or recorded plan."

14. Section 1.3.18 of the Bylaw defines "one ownership" as "[u]ndivided ownership of a lot by one or more natural or legal persons, whether title thereto be joint, in common, or by the entirety."

15. The Main House and the Carriage House were used as separate single-family residences from 1928 through sometime in August or September of 1998. The Court credits the testimony of Michael Bushnell, a self-employed residential contractor, with respect to the following facts: from early 1993 until August or September of 1998, Mr. Bushnell rented the Carriage House from its then-owner, Bessie Adele Cavanagh. Bushnell married in 1997, and thereupon his wife became a co-tenant of the Carriage House. The couple purchased a house in Littleton, Massachusetts in June 1998. They spent the next two to three months renovating the Littleton house; during that time, they continued to occupy the Carriage House. Sometime in August or September 1998, the couple moved out of the Carriage House, and one of Ms. Cavanagh's daughters, Christeen Cavanagh, began living there, although no one who testified at trial knows for how long.

16. From January 1998 until April 2000, Stona Fitch was writing a book. He did so primarily from an office that occupies the first-floor corner of the Fitch house that is closest to Central Street and Parcel 2582. Stona's office has a clear view of the side of the Carriage House that faces Central Street.

17. Stona did much of his writing between the hours of 8:00 p.m. and 2:00 a.m., four to five nights each week. He testified that for the entire January 1998 to April 2000 period, he was "dead sure" that the Carriage House was not regularly occupied. The Court credits his testimony, however, only for the period beginning whenever Christeen Cavanagh stopped living in the Carriage House, which could not have been much earlier than September 1998.

18. Notwithstanding any temporary lack of tenants, between August or September 1998 and 2001 or 2002, Mr. Bushnell visited the Cavanagh property multiple times, and performed (at Bessie Adele Cavanagh's request) repairs on the Carriage House. During his repair visits, Bushnell had to work around materials stored in the ground floor of the Carriage House.

19. Between the fall of 1999 and the fall of 2003, the Fitches litigated with Ms. Cavanagh and the Board of Appeals of Concord over whether Parcel 2582 was buildable.

20. Nicholas and Hillary Boynton purchased 1415-1419 Main Street from Bessie Adele Cavanagh in 2003. The Boyntons asked Ms. Cavanagh about her renting of the Carriage House and reviewed the legality of those rentals with Concord's Building Commissioner, John Minty. Following those discussions, the Boyntons began renting the Carriage House to tenants starting in November 2003, and continuing through June 2014.

21. The Boyntons sold 1415-1419 Main Street to FCI in 2014.

22. In June 2015, following consultations with Commissioner Minty concerning redevelopment of the Locus, FCI converted 1415 and 1419 Main Street to a condominium and sold the unit comprising 1415 Main Street.

23. In July 2015, FCI filed with Commissioner Minty an application for a building permit. FCI's application sought permission to build a new seven-room house with a two-car garage (the "Project"). The proposed house would have a gross floor area of 2,950 square feet (exclusive of areas having a ceiling height of less than 6' 8"), and be entirely on Parcel 2582. FCI proposed to build the Project following demolition of the Carriage House.

24. The Bylaw requires single-family residences to be built more than twenty feet from the lot's front property line, more than fifteen feet from its side property lines, and more than 30 feet from the lot's rear property line. The Project will be 25.8 feet from Parcel 2582's property line along Central Street. The Project will be 19.6 and 21.3 feet from the side property lines of Parcel 2582. The Project will be 41.3 feet from Parcel 2582's rear property line, which borders Parcel 2622.

25. At all times applicable to FCI's building-permit application, § 7.1.5 of the Bylaw provided (brackets added):

Nonconforming single and two family residential structures. [1] Nonconforming single and two family residential structures may be reconstructed, extended, altered or structurally changes upon a determination by the Building Inspector that such proposed reconstruction, extension, alteration, or structural change does not increase the nonconforming nature of said structure. [2] Where the proposed extension does not increase the gross floor area contained within the existing structure by more than fifty percent (50%), the following circumstances shall not be deemed to increase the nonconforming nature of said structure:

(a) alteration to structure located on a lot with insufficient area which alteration complies with all current setback, yard, building coverage, and building height requirements.

(b) alteration to a structure located on a lot with insufficient frontage which alteration complies with all current setback, yard, building coverage, and building height requirements.

(c) alteration to a structure which encroaches upon one or more required yard or setback areas, where the alteration will comply with all current setback, yard, building coverage and building height requirements.

[3] In all other cases, the Board [of Appeals] may, by special permit, allow such reconstruction, extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood.

26. Section 1.3.28 of the Bylaw defines "Use or structure, Nonconforming" as "[a] use or structure, lawfully existing at the time of adoption of this Bylaw or any subsequent amendment hereto, which does not conform to one or more provisions of this Bylaw."

27. Section 1.2.12 of the Bylaw defines "Gross floor area" as "[t]he sum of the horizontal areas of the floors of a building measured from the exterior face of exterior walls, or from the centerline of a wall separating two (2) buildings, not including any space where the floor to ceiling height is less than six feet, eight inches (6'8')."

28. Section 1.3.4 of the Bylaw defines "Building" as "[a] structure…enclosed within exterior walls or firewalls, having a roof, and built, erected and framed of a combination of any materials to form a structure for the shelter of persons, animals or property. … The word 'building' shall be construed, where the context requires, as though followed by the words 'or part or parts thereof.'"

29. Section 1.3.25 of the Bylaw defines "Structure" as "[a] combination of materials assembled at a fixed location to give support or shelter…. The word 'structure' shall be construed, where the context requires, as though followed by the words 'or part or parts thereof.'"

30. The Town adopted § 7.1.5 of the Bylaw in April 2009. The Town amended § 7.1.5 in April 2016 in parts that aren't material to this case.

31. The Bylaw does not define the terms "reconstruction," "extension," "alteration," "structural change," or variations on those terms. Those terms (or variations on those terms) appear in Bylaw §§ 7.1.1, 7.1.3 (the first time, all four terms appear; the second time, all but "alteration" appears), and 7.1.4 (all but "alteration"). Section 7.1.7 of the Bylaw refers only to "reconstruction."

32. Between April 2009 and December 2015, the Board assumed in eighteen decisions (in the trial record as Exhibits 27, 28, 30, 31, 33, 35, 36, 37, 38, 39, 41, 43, 44, 45, 46, 47, 48, and 49) that the second sentence of § 7.1.5 (the "Second Sentence") applies to "reconstruction" projects. The Board rendered the first of these decisions in May 2009.

33. Between April 2009 and December 2015, Building Commissioner Minty interpreted the Second Sentence as applying to all "reconstruction" projects.

34. Section § 7.1.6 of the Bylaw provides: "Abandonment or non-use. A nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning bylaw."

35. Section 1.1.1 of the Bylaw defines "Abandoned, abandonment" as

The visible or otherwise apparent intention of an owner or occupant to discontinue or abandon a particular nonconforming use or structure, including, but not limited to, such actions as removal or equipment or furnishings customarily incident to a particular use without their immediate replacement, or the replacement of a nonconforming use or structure with a conforming use or structure.

36. In October 2015, the Building Commissioner issued FCI a building permit for the Project. The Fitches timely appealed the Commissioner's decision to the Board of Appeals, under § 11.4.2 of the Bylaw. The Board denied the Fitches' appeal in December 2015. The Fitches timely appealed the Board's decision to this Court under c. 40A, § 17.

37. At the time of trial, the first floor of the Carriage House was being used for storage. The second floor of the Carriage House contained a kitchen, bathroom and other living spaces, but there was no sign of any recent occupancy. The second floor contains a mixture of fixtures, cabinetry, masonry, and interior woodwork. Some date from before 1998, and others appear to have been installed after 2003.

38. The permitted access to the Project is a paved driveway from Central Street. The driveway will be in the same location as an existing gravel driveway that leads to the Central Street-side of the Carriage House. The Project will not result in an increase in the intensity or frequency of vehicle headlights visible from the Fitch residence. The Project's driveway will end at an enclosed garage. The headlights of vehicles as they enter the garage will point away from the Fitch property. Vehicles approaching and leaving the garage will shine on the Fitch property no more intensely, and no more frequently, than any vehicle that would currently approach or leave the Carriage House. Vehicles using the new driveway will not make more noise than those that are able to use the current driveway. If anything, because the new driveway will be paved, vehicles using it will make less noise than they would if they used the existing gravel driveway.

39. The Project once built will not make any greater noise than any other residence in the Fitches' neighborhood, and no greater noise than occupants of the existing Carriage House when tenanted. The Project does not include any facilities that would generate unusual or non-residential noises. The yards associated with the Project are on the sides of the Project that are farthest from the Fitch residence (the east and north sides of the proposed residence). The main living areas of the residence are on the east side of the Project, the side that is the farthest from the Fitch property.

40. The Project has been designed with low-impact lighting. Once built, the Project will have no exterior lights except for one recessed soffit light, on the front porch of the residence. That light will be more than 30 feet from the Fitches' property line. The side of the residence that will face the Fitch property will have six groups of windows. Their size and style are consistent with those found elsewhere in the Fitches' neighborhood. Two groups of windows are on the first floor, and will be associated with the Project's kitchen and dining area. Those rooms will have interior room lights. Three groups of windows are on the second floor; one sits perpendicular to the top of a stairway, one is connected to a small bathroom, and the other is associated with a bedroom. All three areas will have interior lighting fixtures. The final window is at the top of stairs that lead from the second floor to the Project's attic space. The attic space will have interior room lights. The Fitches will be able to see light shining from interior room fixtures, and through the windows facing their house, from their house.

***

The facts as found after trial allow the Court to answer the parties' three questions, but since the Court upholds the issuance of FCI's building permit on the merits, the Court will not reach the issue of the Fitches' standing. See Mostyn v. Dep't of Environmental Protection, 83 Mass. App. Ct. 788 , 792 & n.12 (2013).

The first issue is whether FCI is entitled to claim the benefits of § 7.1.5 of the Bylaw, which governs nonconforming single-and two-family residential structures. Those applying for permits applicable to nonconforming structures or uses bear the burden of proving their entitlement to the permit. See Cape Resorts Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 212 (1982); Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89 Mass. App. Ct. 290 , 294 (2016). That usually means proving that (1) the existing nonconformity predates the municipality's adoption of a zoning bylaw that outlawed a particular structural feature or use; (2) what has become a nonconformity was lawful at the time the municipality adopted a contrary bylaw; and (3) the nonconformity has persisted since the time of adoption of that bylaw. But after this lawsuit began, the Legislature added a wrinkle to the analysis. In late 2016, the Legislature amended c. 40A, § 7 to insert the following paragraph:

If real property has been improved by the erection or alteration of 1 or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter has been recorded in the registry of deeds for the county or district in which the real estate is located . . . within a period of 10 years from the date the structures were erected, then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to [c. 40A,] section 6 and any local ordinance or by-law relating to non-conforming structures.

St. 2016, c. 184, § 1. The Legislature made the new paragraph applicable "regardless of whether the structure was erected prior to or after the effective date of [the] act," November 2, 2016. Id. at § 2.

The Carriage House suffers from two nonconformities: it's a nonconforming structure, because it sits on a lot that has inadequate frontage along a public way; and it has housed a nonconforming use, that of a second single-family residence in a zone that now allows only one as of right. The 2016 legislation disposes of all issues relating to the first nonconformity: under the new law, since November 2, 2016, the Carriage House must be treated as a legally nonconforming structure under c. 40A, § 6 (and, by extension, the Bylaw), even if at some point prior to November 2, 2016 someone abandoned it.

The 2016 legislation didn't affect the second nonconformity, that relating to the Carriage House's use as a second single-family residence. FCI easily passes c. 40A, § 6's first two tests for doing work that affects that nonconforming use: the evidence shows that the Carriage House began its use as a second single-family residence before Concord adopted its first zoning bylaw in 1928, and having two such residences on a single lot was entirely lawful back then.

That leaves the third of § 6's tests, whether the nonconformity has persisted up to the time one seeks to do work to change it. The elements of the third test vary from municipality to municipality. That's because § 6 provides that a zoning by-law "may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." The courts have construed this language as creating a state-wide, statutory floor pertaining to "abandoned" structures and uses, a floor that municipalities are allowed to raise (via exercise of the "non-use" clause) as a matter of local preference. See Chiaraluce, 89 Mass. App. Ct. at 294. And where (as here) a town has adopted a zoning bylaw that employs both the "abandonment" and the "not-used-for-two-years-or-more" option allowed under § 6, those tests are disjunctive: failing one is as fatal to a permit application as failing both. See Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404 , 406 (1997).

There has been no "abandonment" of the Carriage House within the meaning of § 7.1.6 of the Bylaw. Abandonment under c.40A, § 6 and local zoning bylaws occurs when there is concurrently "(1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment." Chiaraluce, 89 Mass. App. Ct. at 294, quoting Orange v. Shay, 68 Mass. App. Ct. 358 , 363 (2007). (While the Bylaw has its own "abandonment" test, see id. at §§ 7.1.6 and 1.1.1, it doesn't differ substantively from the Chiaraluce test.) There's no evidence that anyone intended to "abandon" the Carriage House's residential use, and no evidence of voluntary conduct that carries the implication of abandonment. At the time of trial, the Carriage House's living facilities were intact, including facilities that predate the Fitches' view of the "abandonment" period (January 1998 to April 2000). Even during that period, Bessie Adele Cavanagh hired contractor Mike Bushnell to maintain the Carriage House for its residential use.

FCI also surmounts § 7.1.6's other test: there has been no interruption in the Carriage House's nonconforming residential use for a two-year period. The greatest period of non-use of the Carriage House was between August or September 1998 and April 2000, which is less than two years. Even then, "the mere vacancy of a dwelling does not, as a matter of law, require a conclusion that its non-conforming status is no longer being maintained. For that, the evidence would have to show not only that there was no occupant, but that there was also no effort to market, rent, or occupy the dwelling or to maintain it as a dwelling." Cox v. Davis, 25 LCR 67 , 71 (2017) (emphasis added). Here, the evidence shows that even during the August 1998-April 2000 vacancy period, Bessie Adele Cavanagh continued to have the Carriage House maintained and repaired. Her children sporadically used its residential facilities, and the Boyntons were able to resume renting the Carriage House quickly once Ms. Cavanagh had sold it.

The Carriage House thus did not lose the protections of § 7.1.5 of the Bylaw on account of "non-use" by the time FCI applied for a building permit. The next issue is whether FCI's Project qualifies for the favorable treatment afforded certain work under the "Second Sentence" of § 7.1.5, the Bylaw provision that Commissioner Minty invoked in issuing FCI a building permit. Resolving that issue turns on the answers to two subsidiary questions: first, does the Second Sentence apply to "reconstruction" projects; and if yes, does FCI's Project exceed § 7.1.5's upper size limit (tied to the project's "gross-floor area") for projects that are eligible for building permits.

One determines the meaning of a zoning bylaw "'by the ordinary principles of statutory construction.'" One examines first "the statutory language as the 'principal source of insight into legislative intent.' When the meaning of the language is plain and unambiguous, we enforce the statute according to its plain wording 'unless a literal construction would yield an absurd or unworkable result.'" The courts "endeavor to interpret a statute to give effect "to all its provisions, so that no part will be inoperative or superfluous." Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012) (internal citations omitted). And where a zoning bylaw is unclear, a zoning board of appeals's reasonable interpretation of that bylaw is entitled to deference. See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009); Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002); Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999).

This is a case where, (a) owing to imprecise drafting, the text of a zoning bylaw is ambiguous; (b) soon after adoption, local zoning officials and the zoning board of appeals reasonably resolved the ambiguity; and (c) those officials and the board consistently have adhered to their interpretation.

The ambiguity arises as follows. The first sentence of § 7.1.5 reads (emphasis added): "Nonconforming single and two family residential structures may be reconstructed, extended, altered or structurally changed upon a determination by the Building Inspector that such proposed reconstruction, extension, alteration, or structural change does not increase the nonconforming nature of said structure." Two things are apparent from that sentence. First, it lists four activities: (1) reconstruction, (2) extension, (3) alteration, and (4) structural change. Second, with respect to each activity, § 7.1.5 allows the activity to proceed if the building inspector makes a "determination" that the activity "does not increase the nonconforming nature of said structure." If the building inspector determines that the activity would increase the nonconforming nature of the structure, the third sentence of § 7.1.5 (which lists the four activities again) obligates the applicant to obtain a special permit from the Board of Appeals before proceeding with the activity.

What's not clear from the first and third sentences of § 7.1.5 is whether the Bylaw considers the four activities to be the same or different. The Bylaw does not define the terms "reconstruction," "extension," "alteration," or "structural change." Those terms do appear in c. 40A, § 6, and by the time Concord adopted § 7.1.5, Massachusetts cases had interpreted at least three of those terms as being different from each other. See, for example, Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 359-61 (2008) ("reconstruction" means rebuilding a structure that has been demolished or destroyed); Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657 , 661 (1956) ("extensions" and "alterations" are actions upon existing structures, and do not encompass "reconstructions"). And long before Concord adopted § 7.1.5, there was this chestnut of statutory/bylaw construction: the "statutory expression of one thing is an implied exclusion of other things omitted from the statute. . . ." Harborview Residents' Comm., Inc. v. Quincy Housing Auth., 368 Mass. 425 , 432 (1975); see also Livoli v. Zoning Board of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997) (applying inclusio unius est exclusio alterius canon to local zoning bylaw).

The foregoing principles collide when one tries to parse the Second Sentence. Here's what it says (emphases added):

Where the proposed extension does not increase the gross floor area contained within the existing structure by more than fifty percent (50%), the following circumstances shall not be deemed to increase the nonconforming nature of said structure:

(a) alteration to structure located on a lot with insufficient area which alteration complies with all current setback, yard, building coverage, and building height requirements.

(b) alteration to a structure located on a lot with insufficient frontage which alteration complies with all current setback, yard, building coverage, and building height requirements.

(c) alteration to a structure which encroaches upon one or more required yard or setback areas, where the alteration will comply with all current setback, yard, building coverage and building height requirements.

Recall that the first sentence of § 7.1.5 says that in the case of any "reconstruction, extension, alteration, or structural change," the building inspector must make a "determination" as to whether the activity will "increase the nonconforming nature of said structure." The beginning of the Second Sentence suggests that it is about to offer a formula for the building inspector to make that determination as to a proposed "extension." Town meetings usually have substantial latitude in deciding how to shape procedures for getting zoning approvals, and normally it wouldn't be the court's business to second guess a local decision to adopt, for example, a formula that pertains only to a proposed "extension" of a nonconforming structure. But the usual deference to local choices crumbles when one reads the Second Sentence closely. That's because none of its three subparts, which should be describing the "extensions" formula, cares to mention "extension." Instead, each uses, repeatedly, the term "alteration." And using "alteration" in a formula applicable (presumably only) to "extensions" makes no sense if § 7.1.5 elsewhere intends its four horsemen – reconstructions, extensions, alterations, and structural changes – to be distinct riders. The appearance of "alterations" in the Second Sentence also undercuts the presumption that the Second Sentence reflects a rational policy choice: whatever policy arguments one could make for creating a special formula for "extensions" are lost once one also gives special treatment under the Second Sentence to "alterations," but still not to "reconstructions" or "structural changes."

The evidence shows that Commissioner Minty and the Board of Appeals avoided tripping over § 7.1.5's varying terms by treating the words "extension" and "alteration" in the Second Sentence as referring to all four of § 7.1.5's regulated activities ("reconstructions," "extensions," "alterations," and "structural changes"). The Commissioner and the Board did so consistently since town meeting's adoption of § 7.1.5. Given that § 7.1.5 is ambiguous, and that the Board knows better than this Court why town meeting adopted § 7.1.5 in the first place, Court adopts the Board's reasonable interpretation of the words "extension" and "alteration," as they appear in the Second Sentence, as including "reconstructions" and "structural changes." As the parties don't dispute that the Project entails "reconstruction," the Court concludes that the Project is eligible for consideration under the Second Sentence.

That leaves the Court with one last question: does the Project meet the Second Sentence's requirement that it "not increase the gross floor area contained within the existing structure by more than fifty percent (50%)" in order to be eligible for a building permit? Section 1.2.12 of the Bylaw defines "gross floor area" as "[t]he sum of the horizontal areas of the floors of a building measured from the exterior face of exterior walls, or from the centerline of a wall separating two (2) buildings, not including any space where the floor to ceiling height is less than six feet, eight inches (6'8')." It is undisputed that the gross floor area of the Carriage House, as calculated under § 1.2.12 of the Bylaw, is 1977.68 square feet. With the Second Sentence's 50% allowance for additional square footage, FCI could build a structure containing 2966.52 square feet. FCI's proposed structure contains 2,950 square feet, exclusive of areas having a ceiling height of 6'8" or less.

The Fitches argue that this analysis is wrong. They contend that one must perform the Second Sentence's calculation using the existing gross floor area of only those areas dedicated to the nonconforming use. They claim that the "residential" uses of the Carriage House were confined to the second floor, plus the interior stairway leading to the second floor, plus the first-floor utility room, plus (they generously add) one of the four first-floor garage bays. They assert that the gross floor areas of those spaces don't support approval of the Project (in its current size, anyway) under the Second Sentence, and that the Project thus requires a special permit.

While Concord's town meeting could have adopted a formula for as-of-right reconstructions that employs the test that the Fitches urge here, town meeting didn't do so. Instead, § 7.1.5 uses the unadorned phrase "gross floor area contained within the existing structure. . . ." Section 7.1.5 doesn't call for excluding from the area calculation those areas that host conforming uses. One also can't get there by relying on the two terms used in § 7.1.5's formula that have their own definitions, "gross floor area" and "structure." The Fitches' reading of § 7.1.5 also would yield peculiar outcomes: it would allow someone who owns a nonconforming structure that is devoted 100% to a nonconforming use to build a structure that's 150% of the original structure's size, while someone who owns an identically sized nonconforming structure, only half of which was used for nonconforming purposes, would be allowed to build something only 75% of the original structure's size. The Court shouldn't interpret zoning bylaws in a manner that leads to nonsensical results. See Livoli, 42 Mass. App. Ct. at 922.

Judgment affirming the Board's decision and dismissing the Fitches' complaint shall enter accordingly.