In 2016, Dr. Norma Klein, Trustee of the 4 Indian Avenue Nominee Trust and owner of a residence at 4 Indian Avenue in Mattapoisett, MA, applied to the Mattapoisett Zoning Board of Appeals (the "Board") for a special permit. She did so under §§ 3.1.2.2 and 3.1.2.3 of the Town of Mattapoisett's Zoning By-Laws. Her application sought permission to demolish a one-story, one-car garage on her property and replace it with a two-story structure. She intended to use the ground floor as a two-car garage, and the second floor (reached by an exterior stairway) as a studio/office.
The Board granted the requested special permit for the first time in March 2016 ("Decision I"). Trustee Klein's next-door neighbors at 2 Indian Avenue, Debra, John and Ronald Graf, timely appealed the permit to this Court under G.L c. 40A, § 17. The Grafs profess not to object to Trustee Klein's construction of a bigger garage even a two-car one but they don't like the studio/office. They contend that using the second story for a studio/office requires a variance from the By-Laws, and that Trustee Klein needed to get that variance before seeking a special permit. The Grafs thus asked this Court to annul the special permit.
In March 2018, this Court annulled Decision I and remanded the matter to the Board. The Court did so because Decision I didn't contain a determination, described in § 3.1.3 of the By-Laws, that the Board find that Trustee Klein's project "shall not be substantially more detrimental than the existing nonconforming . . . structure to the neighborhood."
In July 2018, the Board issued a second decision, one re-issuing to Trustee Klein a special permit ("Decision II"). Decision II included a finding by the Board that the Trustee's project "will not be substantially more detrimental to the neighborhood than the existing non-conformity." Decision II further states: "[T]his ruling is not a permission to install sanitary facilities, plumbing, wiring or the like all [sic] such matters require timely inspections and approvals by the Board of Health, the Plumbing Inspector, the Wiring Inspector and other appropriate officers of the Town in accordance with applicable law and regulation." The Grafs appealed Decision II, and the matter returned to court.
The Grafs and Trustee Klein appeared for trial on November 14, 2018. The Board didn't appear at trial, with the assent of the other parties. Based on the testimony and exhibits received at trial, the parties' stipulations of fact, and the arguments of counsel, the Court finds the facts recited above plus these:
1. Two and 4 Indian Avenue abut each other. Both parcels are registered land. Each parcel has a single-family residence upon it, plus a garage. Four Indian Avenue's garage is a one-car facility with a single floor at ground elevation. The garage is on the western side of 4 Indian Avenue; a driveway that runs west of the residence at 4 Indian Avenue leads north to Indian Avenue.
2. Two and 4 Indian Avenue are in the Waterfront-30 ("W-30") Zoning District under Mattapoisett's Zoning By-Laws. Section § 5.2.1 of the Zoning By-Laws allows a "[d]etached one family dwelling with private garage" in the W-30 district. Lots in the W-30 District must have, however, a minimum area of 30,000 square feet. They also must have at least 125 feet of frontage, and be set back at least twenty feet from the side lot line.
3. Four Indian Avenue has an area of 12,250 square feet, and only 100 feet of frontage along Indian Avenue. The garage on 4 Indian Avenue is only 7.1 feet from its side boundary with 2 Indian Avenue. The parties nevertheless agree that 4 Indian Avenue's garage is a "lawful structure . . . existing at the time of adoption of the . . . Zoning By-Law" for purposes of Article 3 of the By-Laws. A 1955 Land Court registration plan, submitted as Agreed Exhibit 1, shows 4 Indian Avenue's garage in its current location.
4. Article 3 of the By-Laws is titled "General Regulations." Section 3.1 regulates "Pre-Existing Nonconforming Structures, Lots and Uses." Section 3.1.2 requires a special permit from the Board for:
3.1.2.1 any change of a nonconforming use or substantial extension of a nonconforming use;
3.1.2.2 any alteration of a nonconforming structure amounting to a reconstruction, extension or structural change, except when the alteration (1) does not increase the footprint, the total interior floor area or the height of the structure, or (2) is of a single or two-family residential structure that does not change the residential use of the structure and does not increase the nonconforming nature of it; and
3.1.2.3 any alteration of a nonconforming structure to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.
5. Section 3.1.3 of the By-Laws provides: "No special permit may be granted by the Board of Appeals for any of the foregoing acts unless the Board finds that any such change of use, extension of use or alteration of a nonconforming structure shall not be substantially more detrimental than the existing nonconforming use or structure to the neighborhood."
6. Article 8 of the By-Laws regulates structures and uses in what the By-Laws describe as "Flood Hazard Areas." Article 8 establishes a "Floodplain District." (Sometimes the By-Laws call it a "Flood Plain District." The parties treat the By-Laws' terms "Floodplain" and "Flood Plain" as the same.) Section 8.2.1 of the By-Laws calls the Floodplain District an "Overlay District." According to § 8.2.1, the Floodplain District "includes all special flood hazard areas within the Town of Mattapoisett designated as Zone A, AE or VE on the Plymouth County Flood Insurance Rate Map (FIRM) issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program." The FIRM map that covers 2 and 4 Indian Avenue shows both properties in a Zone VE.
7. Section 8.2.4 of the By-Laws provides:
No structure or land in the Flood Plain District shall be used and no structure shall be built, located on, extended, converted or structurally altered without full compliance with the terms of this By-Law, the Massachusetts State Building Code, the Federal Register Federal Emergency Management Agency [sic] 44 CFR Ch. 1, Section 60.3(e) as amended from time to time and other applicable regulation.
8. Section 8.2.5 of the By-Laws provides in part: "[W]here this By-Law imposes greater restrictions, the provisions of this By-Law shall prevail."
9. Section 8.3 of the By-Laws provides (emphasis in original):
ESTABLISHMENT OF ZONING DISTRICT
The flood hazard area within the jurisdiction of this By-Law is Special Hazard Area (Zone A and/or AE, and VE). [sic] The boundaries of these districts are shown on the Flood Insurance Rate Map which is hereby incorporated by reference. Within these districts, all uses not allowed as Permitted Uses or Special Exceptions shall be prohibited[,] except as may be permitted by a Variance from these By-Laws by the Board of Appeals.
10. Section 8.4 of the By-Laws provides (emphasis in original):
PERMITTED USES
The following uses . . . shall be permitted within the Special Hazard Areas (Zone A and/or AE, and VE) provided they are not prohibited by any other zoning regulations or other By-Laws . . . .
8.4.4 Residential uses such as lawns, gardens, parking areas, and structures for storage not designed for human habitation. . . .
11. Article 8 contains no definition of the term "Special Exceptions," nor does the Article contain a list labelled "Special Exceptions." Section 8.3 contains Article 8's only mention of the term "Special Exceptions."
12. The By-Laws do not define the terms "structure," "storage," "design," "human habitation," or any term that's a combination of those terms.
13. Mattapoisett's Building Inspector has treated a "studio/office" use (as opposed to a "home occupation" use) as an "accessory use" to the residential use of a property, a use that's lawful under § 2.2 of the By-Laws so long as the studio/office's user owns and occupies the primary residence on the property.
14. The By-Laws contain no provision that requires a person who wants to apply for a special permit, but who needs other permits or zoning relief, to apply for and receive the other permits or relief prior to applying for a special permit.
15. Trustee Klein's plans call for increasing her existing garage's side setback by 0.1 feet, from 7.1 feet to 7.2 feet. They also propose to expand the existing garage's footprint from 313 square feet to 712 square feet, yielding 1268 square feet of useful interior area. She intends to keep using 4 Indian Avenue's existing curb cut on Indian Avenue. She proposes to widen parts of 4 Indian Avenue's driveway adjacent to the proposed garage and next to 4 Indian Avenue's residence, but not modify the existing driveway immediately adjacent to Indian Avenue. The height of her proposed structure is just under 24' at the ridgeline, well below the 35-foot maximum for buildings in the W-30 District.
16. Trustee Klein's interior plans do not depict any bathrooms, showers or kitchen facilities.
17. Two Indian Avenue's lot has the same area 4 Indian Avenue's lot. Two Indian Avenue has a two-car garage. That garage is built within the 2 Indian Avenue's side-yard setback along 2 Indian Avenue's boundary with 4 Indian Avenue. 2 Indian Avenue's driveway, at its intersection with Indian Avenue, is approximately twice the width of 4 Indian Avenue's driveway.
18. Four Indian Avenue's garage is dilapidated. Two Indian Avenue's garage is in much better shape. Trustee Klein proposes to build a structure whose architecture is compatible with that of the buildings on both 2 and 4 Indian Avenue, as well as buildings in the Indian Avenue neighborhood.
19. At least ten other residences in the Indian Avenue neighborhood have two-car (or sometime three-car) garages with large, windowed, second floors.
20. The Grafs introduced no evidence that Trustee Klein's structure will be more detrimental to the neighborhood than the existing non-conforming garage. The Grafs' evidence of detriment focused solely on the alleged impermissible use of the proposed garage's second story as an office.
*.*.*
This case presents four questions. The first is whether Trustee Klein's application for a special permit was properly before the Board. At the pretrial conference in this matter, the Grafs argued that Trustee Klein's application to the Board for a special permit identified "Norma Klein" as the applicant, and not Trustee Klein (or the 4 Indian Avenue Nominee Trust). The Court thus listed that issue for trial. The Grafs nevertheless did not mention the "undisclosed applicant" issue in their trial brief or at trial. The Court finds that the Board was aware of the true applicant, and finds that Trustee Klein understood at all times that she had applied for a special permit. The Court thus holds that Trustee Klein's application was properly before the Board.
The three remaining questions are these: first, whether the structure that Trustee Klein proposes to build requires a variance under the By-Laws. The answer to that question is no. The second is whether the Trustee needs a variance to use the second story of the proposed garage for an office/studio. The answer to that question is yes. The final question is whether this Court may uphold the (second) special permit granted by the Board. The answer to that question is no. Instead, the Court must annul that permit and remand this case to the Board.
The parties agree that the garage at 4 Indian Avenue is a "lawful structure . . . existing at the time of adoption of the . . . Zoning By-Law" for purposes of Article 3. They also agree that the garage and the lot on which it sits suffer from three nonconformities: (1) 4 Indian Avenue is located on an undersized lot; (2) the lot doesn't meet the By-Laws' minimum frontage requirement; and (3) the garage itself isn't positioned at least twenty feet from 4 Indian Avenue's side boundary with 2 Indian Avenue.
The provisions of Article 3 of the By-Laws that address additions and expansions to lawfully existing, non-conforming structures and uses track the language of G. L. c. 40A, § 6.
The many cases interpreting § 6 thus guide the Court's interpretation and application of Article 3. See Plainville Asphalt Corp. v. Plainville, 83 Mass. App. Ct. 710 , 713 (2013) ("[S]tatutes or bylaws dealing with the same subject should be interpreted harmoniously to effectuate a consistent body of law.").
The Grafs initially contend that under the By-Laws, any intensification of a non-conformity requires Trustee Klein to apply for a variance before she can apply for a special permit. Absent a provision in local zoning laws requiring such sequencing (Mattapoisett's By- Laws have no such provision), Massachusetts courts interpreting c. 40A § 6 and related municipal bylaws have engaged in a two-step analysis. First, the special-permit granting authority must determine whether the proposed addition or expansion will increase the structure's nonconforming nature. If not, the applicant can build. If it will increase the structure's nonconforming nature, "the applicant may build only if he or she obtains a special permit issued by the permit granting authority upon a finding that the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconforming structure." Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 71-72 (2003) (citation omitted).
That the permit applicant proposes demolition, reconstruction and expansion of a non-conforming structure does not change the equation. In Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), the Footes petitioned Gloucester's zoning board of appeals for a special permit pursuant to § 6 and a variance under Gloucester's zoning ordinance to demolish a lawful non-conforming cottage with a significantly larger residence. The Footes' property did not conform to the requirements of the ordinance regarding lot area, side-yard setback, front-yard setback, and rear-yard setback. The board granted the special permit, based on a finding that "even if there is an intensification of any nonconformities, the house as reconstructed . . . will not be substantially more detrimental to the neighborhood than the existing nonconforming structure . . . ." The Appeals Court ultimately determined that, in light of the board's finding (a finding that the trial court didn't disturb), all the Footes needed for their project was a special permit, and not a variance. See id. at 337-338; see also Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 552 (2014) ("an alteration which intensifies an existing nonconformity in a residential structure may be authorized under the second sentence of § 6 upon a finding of no substantial detriment").
Section 3.1.2.2 of the By-Laws allows by special permit "any alteration of a nonconforming structure amounting to a reconstruction, extension or structural change," provided that the Board finds (in accordance with § 3.1.3 of the By-Laws) "that any such . . . alteration of a nonconforming structure shall not be substantially more detrimental to the neighborhood than the existing nonconforming . . . structure to the neighborhood." Trustee Klein received such a finding, and the facts as found by this Court support the Board's conclusion:
* The Trustee isn't worsening the garage's side-yard nonconformity, a nonconformity that isn't unique to the Trustee's property. In fact, the Grafs' garage is within 2 Indian Avenue's side-yard setback along the property's boundary with 4 Indian Avenue.
* Trustee Klein's proposed garage is architecturally compatible with the residences and garages on both 2 and 4 Indian Avenue as well as those in the broader Indian Avenue neighborhood.
* At least ten other residences in the neighborhood have two-car (and sometimes three-car) garages with large, windowed, second floors. The Grafs themselves have a two-car garage.
* Trustee Klein doesn't propose to widen her driveway or change its placement in relation to Indian Avenue.
The Board's finding that Trustee Klein's proposal would not be substantially more detrimental to the neighborhood than the existing nonconforming garage is thus correct. See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) ("[s]o long as 'any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced'"), quoting S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976).
While a property owner may by special permit obtain approval to alter or expand a lawfully existing non-conforming structure, one can't use § 6 or similar by-law provisions to introduce into a property new nonconformities. See Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991) ("a change in nonconforming use or structure must comply with the current zoning by-law because otherwise such change 'would intensify the existing nonconformity or result in additional ones,'" quoting Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21 (1987)). To put it another way, one may by special permit obtain approval to intensify existing nonconformities, but creating new nonconformities requires a variance. See Deadrick, 85 Mass. App. Ct. at 549.
Trustee Klein's project envisioned not only an expansion of the existing garage's nonconformities, but the introduction of a new nonconformity: use of the new garage's second floor as office/studio space. That nonconformity is a consequence of Article 8.
Section 8.3 of the By-Laws provides that within the Flood Plain Overlay District and it's undisputed that 4 Indian Avenue is within that District -- "all uses not allowed as Permitted Uses or Special Exceptions shall be prohibited; except as may be permitted by a Variance from these By-Laws by the Board of Appeals." Section 8.4 of the By-Laws lists the "Permitted Uses."
(The By-Laws have no list of "Special Exceptions.") Trustee Klein claims that studio/office uses are allowed under § 8.4.4 of the By-Laws, but that provision lists as permitted uses "[r]esidential uses such as lawns, gardens, parking areas, and structures for storage not designed for human habitation." The By-Laws don't define the terms "structure," "storage," "design," "human habitation," or any combination of those terms. The Court thus must interpret the phrase "structures for storage not designed for human habitation" according to the principles of statutory construction. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981) ("the meaning of a word or phrase used in a local zoning enactment is a question of law . . . and is to be determined by the ordinary principles of statutory construction"). "We derive the words' usual and accepted meanings from sources presumably known to the (by-law's) enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).
The Board has twice held, and the parties agree, that Trustee Klein's existing garage is a "structure," albeit a nonconforming one. It is therefore reasonable for the Court to hold that the proposed garage also will be a "structure." The American Heritage Dictionary of the English Language (1976) provides the remaining definitions: "storage" is "a space for storing goods"; the verb "design" means "to conceive; invent; contrive"; and "habitation" means "the act of inhabiting." Black's Law Dictionary (10th ed. 2014) is largely to the same effect, although Black's doesn't provide a definition for the verb "design," and treats "occupancy" as a synonym for "habitation."
In accordance with these definitions, to comply with § 8.4.4, a proposed structure must be a space for storing goods, and not intended for human occupancy. That's not what Trustee Klein proposed. She made no pretense that she would be using the garage's second floor for storage.
Instead, she stated her intent to occupy the space, albeit without the amenities of a kitchen, bathroom, or running water. That's contrary to what § 8.4.4 allows. The absence of a kitchen, bathroom, and running water is evidence that Trustee Klein does not intend to use the second story for a "dwelling unit" (a term that § 2.3 of the By-Laws defines as "[a] single unit providing complete, independent living facilities for one (1) or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation"), but nothing in § 8.4.4 turns on whether a proposed use will (or won't) be a "dwelling unit." "A zoning by-law must be read in its complete context and be given a sensible meaning within that context." Board of Selectman of Hatfield v. Garvey, 362 Mass. 821 , 826 (1973). Instead, § 8.4.4 envisions a two-part test for whether § 8.4.4 permits use of a structure in the Flood Plain Overlay District: (1) Is the structure "for storage"? (2) If so, is it "not designed for human habitation"? A proposed use must pass both tests in order to be allowed under § 8.4.4. Studio/office uses of the proposed garage fail both: studio/office uses aren't "for storage," and an area designed for studio/office uses contemplates "human habitation."
Mattapoisett's Building Inspector testified that he has treated "studio/office" uses in garages and other structures as a permissible "accessory use" to a residential use of a property so long as the studio/office's user owns and occupies the primary residence on the property. While the Court must give substantial deference to a zoning board's interpretation of its zoning bylaws, see Wendy's Old Fashioned Hamburgers of New York, Inc., v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), the Court does not afford the same deference to a building inspector's interpretations. See Hebb v. Lamport, 4 Mass. App. Ct. 202 , 209 (1976) ("a blind deference to the building inspector would be tantamount to our abdicating the judicial function"). In any event, while a studio/office may be a lawful accessory use in Mattapoisett's residential zones generally, it's not an allowed use under § 8.4.4 in the Flood Plain Overlay District. The District's "greater restrictions . . . prevail" over other provisions of the By-Laws. By-Laws, § 8.2.5. The Board had no authority to authorize that use via a special permit.
The Court thus will enter a judgment annulling Decision II and remanding this matter to the Board for proceedings in accordance with this decision. The Court holds that the Board validly determined that the proposed structure would not be substantially more detrimental to the neighborhood than the existing nonconforming structure, but that determination is not enough to authorize the use of the second story of Trustee Klein's proposed garage as a studio/office.
Judgment to enter accordingly.
DEBRA H. GRAF, JOHN R. GRAF and RONALD P. GRAF. v. SUSAN AKIN, MARY ANNE BROGAN, EUGENE DESLANDES, BILL CANTOR, ANTHONY TRANFAGLIA, KENNETH PACHECO, ROBIN B. SHUFELT, NORMAN J. LYONNAIS, PAUL MILLOTT, JR., COLBY ROTTLER and STEPHEN E. VAITSES, as they are Members of the Board of Appeals of the Town of Mattapoisett; NORMA KLEIN, and NORMA JEAN KLEIN, Trustee of the 4 Indian Avenue Nominee Trust.