CHERYL GRESEK v. ROBERT GAMBALE, BENJAMIN FIERRO, ROGER LeBLANC, WILLIAM PAGE, LEWIS VIAHOS, ROBERT TRAGERT and REBECCA GAYTON as members of the Ipswich Zoning Board of Appeals, DARRELL SEPPALA, and JOANN SEPPALA.

Introduction

After consulting with the Ipswich building inspector, the Board of Health, other town officials, and obtaining the necessary foundation and building permits, defendants Darrell and JoAnn Seppala tore down an existing single-story, non-conforming residence and built a two- story home in its place. The Seppalas' uphill neighbor, plaintiff Cheryl Gresek, appealed those permits to the Ipswich Zoning Board of Appeals, which reviewed and upheld them. These cases are Ms. Gresek's G.L. c. 40A, §17 appeals from the zoning board's decisions. [Note 1]

The underlying cause of the dispute is this. Both properties are on the Great Neck peninsula, near the ocean. Ms. Gresek's residence is a single story home with a deck, and her view of the ocean from that deck is now partially blocked by the second story of the Seppalas' new home. The height of that home fully complies with current zoning. Certain other aspects, however, are not so compliant and their legality depends upon the scope of the protections Ipswich extends to the alteration, reconstruction, extension, or structural change of non- conforming single or two family residences in this District, Rural Residential B ("RRB"). Those protections are explicitly set forth in the Ipswich zoning bylaw, and include the dimensional and density exceptions more fully discussed below. See Ipswich Zoning Bylaw Art. VI, Table of Dimension and Density Regulations; Principal Buildings and Structures, n.18 (hereafter, "Dimensional Table, n.18"); Art. II, §§ B(3) & B(3)(e) (Nonconforming Uses & Structures).

Ms. Gresek makes two arguments in support of her appeal. The first is her contention that the Seppalas' new home does not benefit from the Dimensional Table, n.18 exceptions because, she alleges, the previously existing structure was not lawfully nonconforming (a requirement for the exceptions to apply) — an argument based on the assumption, with which I disagree and find otherwise, that the current absence of building permits in the town's records means that no such permits were ever issued. [Note 2] Her second, made in the alternative, is her contention that, even if the prior structure was lawful, the new home increases the nonconformity beyond the limits allowed in Dimensional Table, n.18, subsections (c), (d), and (e) for floor area, open space, and setbacks, respectively, and the Seppalas were thus required to obtain a special permit or variance pursuant to Bylaw Art. II, § B(3)(e). [Note 3]

The Seppalas disagree, contending that (1) despite the present inability to locate its building permits, [Note 4] the prior home had such permits, the 1963 bylaw allowed existing structure to be altered or enlarged, by right, up to 100% of the original floor area and/or land area in use at the time of the adoption of the original zoning bylaw (1957), [Note 5] and it was thus a lawful protected nonconforming dwelling; (2) the retroactive 2016 amendments to G.L. c.40A, §7 [Note 6] moot that issue because more than ten years passed after construction of the prior home without a recorded challenge, [Note 7] (3) the "squaring off" of the former footprint of the home did not affect the "non-conforming" protections in the bylaw because the height of the home complies with current zoning, the "squaring off" did not increase the footprint, and its setbacks were actually increased, and (4) the new home meets the requirements of Dimensional Table, n.18 and is thus lawful by right without the need for a special permit or variance.

The board agrees with the Seppalas, except in this. The plans reviewed and approved by the board did not show two later additions by the Seppalas — an extra parking area and a large outdoor patio. If they remain at their present size, and are then combined with the structure as depicted on the approved plans, they take up more "open space" on the lot than the bylaw allows.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted at trial and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule as follows.

Facts

These are the facts as I find them after trial.

The Relevant Bylaw Provisions

G.L. c. 40A, §6, [Note 8] and now G.L. c. 40A, §7 as amended, [Note 9] set a floor for the protection of non-conforming uses and structures which municipalities may increase. See Bellalta v. Zoning Bd. of Appeals of Brookline, et al., 481 Mass. 372 , 377, 386 (2019). [Note 10] Ipswich has done so in its zoning bylaw, as follows.

The first is in its list of exceptions to the dimensional and density requirements for pre-existing, non-conforming one and two-family homes as set forth in the Dimensional Table at n.18. As stated in that footnote:

The provisions of this Subsection shall not apply to the alteration, reconstruction, extension, or structural change to a single or two-family residential structure lawfully in existence at the time of enactment of this amendment under the following circumstances:

a. The proposed changes comply with the height restriction;

b. The proposed changes comply with the requirement for maximum building area, or, if they do not comply, the proposed changes do not result in an increase in building area on the lot;

c. The proposed changes comply with the requirement for maximum floor area, or, if they do not comply, the proposed changes do not result in an increase in floor area on the lot;

d. The proposed changes comply with the requirement for minimum open space, or, if they do not comply, the proposed changes do not result in an decrease in the open space on the lot;

e. The proposed changes comply with the setback requirements, or, if they do not comply, the proposed changes do not result in a decrease in the distance between any lot line and the nearest point of the structure;

f. Proposed changes to enlarge the structure do not prevent compliance with regulations governing the repair, expansion or replacement of septic systems, or with any other applicable laws or regulations.

For the purposes of this bylaw, an alteration, reconstruction, extension or structural change meeting the criteria set forth in this footnote is not deemed to increase the non-conforming nature of the structure, and is allowable as a matter of right.

(emphasis added).

The second is the provision in Bylaw Art. II, §§ B(3) & B(3)(e), which states that:

Nonconforming single and two family residential structures may be reconstructed, extended, altered, or structurally changed upon a determination by the Inspector of Buildings that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of said structure. The following circumstances shall not be deemed to increase the nonconforming nature of said structure:

* * * *

e. Alteration to a nonconforming structure which will not increase the footprint of the existing structure provided that existing height restrictions shall not be exceeded.

(emphasis added).

Here, in issuing the foundation and building permits, the Building Inspector made these determinations and I address them, de novo, below.

The Prior Nonconforming Structure

The Seppalas purchased their property (16 Hillside Road) on July 29, 2015 (see Ex. 1). [Note 11] It is located in the RRB zoning district, which currently requires a minimum lot area of 87,120 square feet, a minimum lot width of 175 feet, minimum lot frontage of 150 feet, minimum setbacks of 20 feet, maximum building area to lot ratio of 20%, maximum floor area to lot ratio of 30%, minimum open area to lot ratio of 50%, and maximum height of 25 feet. The Seppala's lot (6,020 square feet, with 86 feet of frontage — Ms. Gresek's is similarly small) is nonconforming, as was its then-existing structure.

The Seppalas entered into a purchase and sale agreement for the property on June 15, 2015. Prior to the closing, Ms. Seppala met with representatives of the town's Board of Health (for septic), the planning director, and the building inspector, seeking direction on the parameters within which she and her husband could build a new house on the lot. This turned on the scope of its grandfathered rights. As noted above, those that are relevant to the issues in this case are contained in the Dimensional Table, n.18 and in Bylaw Art. II, §§ B(3) & B(3)(e).

In reliance on the guidance they received from the town officials, the Seppalas tore down the existing structure and replaced it with a new one. The old house had an irregular shape. The new is more squared-off and is set back further from the lot lines. This "squaring off" did not increase the footprint of the house, and the new house complies with the zoning bylaw's current height restriction (25'). Thus, the squaring-off maintained the non-conforming protections derived from the previous house. See Bylaw Art. II, §§ B(3) & B(3)(e), cited above (alterations to non-conforming structures which do not increase the footprint of an existing structure do not increase its non-conforming nature so long as it is in compliance with the current height limitation).

Grandfathering protection requires that the structure at issue be "lawfully in existence" at the time of the zoning changes that caused it to be non-conforming. See G.L. c. 40A, §6. There are no building permits on record for the prior house, which Ms. Gresek argues shows that the house was never "lawful" within the meaning of G.L. c.40A, §6 and the town bylaw which has a similar requirement. I disagree. As the town notes, this is not the only house for which building permits cannot presently be found in the town files. The same is true for most, if not all, of the nearby houses built before 1970. Those records, for whatever reason, were simply not retained.

A 1961 tax record shows that the property contained a house and a garage. A property work card dated July 2, 1963 shows a footprint identical to the 2015 "Existing Conditions Plan" submitted by the Seppalas in connection with their foundation and building permits. Additionally, Ipswich Assessor's Field Cards from the 1950s and 1960s show the existence of a structure on the Seppalas' lot in the same shape and general size, including a garage, as the structure which existed on the lot when the Seppalas purchased it in 2015. These Field Cards show that any additions to the original structure were completed before 1963.

In any event, all this has been mooted by the 2016 amendments to G.L. c. 40A, §7, made retroactive, which provide that "[i]f real property has been improved by the erection or alteration of 1 or more structures and the structures or alteration 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" has occurred, then "the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or by-law relating to non-conforming structures." G.L. c. 40A, §7. The prior existing structure on the Seppalas' lot was in existence for far more than 10 years, as were any additions to the original structure, and there is no record or notice of any proceeding or suit being brought for any alleged violation prior to the filing of these actions. Thus, the original house, including any subsequent additions, was a legally nonconforming structure within the grandfathering protections of G.L. c. 40A, §6 and the town zoning bylaw.

The Permits Issued by the Building Inspector and Ms. Gresek's Appeals From the Granting of Those Permits

On August 18, 2015 the Seppalas applied for a permit to demolish the then-existing home, which the building inspector issued on October 13, 2015. The structure was then demolished, the Seppalas applied for a foundation permit for the new house, and the building inspector issued the foundation permit on November 6, 2015.

On December 3, 2015 Ms. Gresek filed a timely notice of appeal of the foundation permit to the zoning board of appeals. The board denied that appeal, affirmed the grant of the permit, and Ms. Gresek timely appealed that decision to the Land Court (Gresek v. Gambale, et al. 16 MISC. 000105 KCL).

The Seppalas then applied for and were issued a building permit for the construction of their two-story single-family home on the property. On February 5, 2016, Ms. Gresek timely appealed the grant of that permit to the zoning board of appeals. The board denied that appeal, affirmed the grant of the permit, and Ms. Gresek timely appealed that decision to the Land Court (Gresek v. Gambale, et al. 16 MISC. 000213 KCL).

Further facts are set forth in the Discussion section below.

Discussion

In a G. L. c. 40A, § 17 appeal such as this, the court finds the facts de novo and then, based on those facts, reviews the correctness of the board's decision. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). This often, as here, depends upon the proper interpretation of the local zoning bylaw and then applying the facts appropriately. Here, the dispute is whether the Seppalas' home was properly built as of right, which depends upon its compliance with the bylaw's grandfather protections as set forth in Bylaw Art. II, §§ B(3) & B(3)(e) and the Dimensional Table, n.18. With the exception noted below, necessitating a remand on that exception, I find and rule that it does.

The Seppalas' New Home is Within the Maximum Height Requirement

To come within the protections of Bylaw Art. II, §§ B(3) & B(3)(e) and the Dimensional Table, n.18, the new home must comply with the current height requirement. Like the building inspector and the board, I find and rule that it does.

The current height limit is this. "In the RRB District, the maximum building height for principal structures is two (2) stories, not to exceed twenty-five (25) feet. . ." Bylaw, Art. VI, § G(2)(d). "Building Height" is defined as "the vertical distance measured from the average existing grade to the highest point of a structure or the highest point of a building roof…" and if, as here, the building "is being constructed on a lot upon which a building previously stood, the average existing grade shall be measured at the location of the previous building." Bylaw Art. III.

The Seppalas' new home is two stories and, after it was built, a measurement was taken to confirm that it was 25 feet high or less. The Seppala's surveyor, Paul Donohoe, did this by going to "the location of the previous building" (also the location of the new), and measuring the elevation of the top of the roof from the average existing grade. He found, and I concur, that the new home is within the 25 foot maximum height limit.

The Seppalas' New Home Reduces the Prior Existing Structure's Nonconforming Building Area

The bylaw regulates building area, defined as "[t]he area of the footprint of all buildings on a lot, comprised of the sum of all horizontal projections as measured on a horizontal plane, excluding cornices, eaves, gutters, chimneys, open steps and bay/bow windows (not walk-out bays or floor cantilevers)." Bylaw, Art. III. The Dimensional Table sets the maximum building area at 20% of the total lot area. The Seppala lot has 6,020 square feet. 20% of that is 1,204. However, the Dimensional Table, n.18 (b) carves out an exception allowing property owners reconstructing prior nonconforming one and two-family homes to build, of right, up to the same building area as the previous one. That prior home had a building area of 1,545 square feet (25.7% of the overall lot). The new home has less. The area of its footprint is 1,366.5 square feet, measured to include its exterior walls, and the rear deck expansion adds a further 119.0 square feet. Together they total 1,485.5 square feet (24.7% of the total lot area). The new home thus complies with the exception.

The Seppalas' New Home Improves the Prior Existing Structure's Setback Nonconformities

The bylaw regulates building setbacks, and currently requires at least 20' on the front, sides, and rear. However, once again the Dimensional Table, here at n.18 (e), carves out an exception for property owners reconstructing prior non-conforming one and two-family homes. As n.18 (e) provides, that construction can occur by right if "[t]he proposed changes comply with the [current] setback requirements, or, if they do not comply, the proposed changes do not result in a decrease in the distance between any lot line and the nearest point of the structure."

The prior home had a front setback of 20.9 feet, rear setback of 6.3 feet, left side setback of 30.9 feet, and a right side setback (on Ms. Gresek's side) of .1 feet. The new setbacks are all greater than these, and thus "do not result in a decrease" in any of these distances. The new front setback is 22 feet. The new rear setback is 7.2 feet. The new left side setback is 33 feet. And the new right side setback (on Ms. Gresek's side) is 3 feet. The new home thus complies with the exception.

The Seppalas' New Septic System Received a Variance From the Board of Health and Thus Does Not Preclude the Construction of the New Home

Dimensional Table, n.18 (f) states that "proposed changes to enlarge the [prior non-conforming] structure [cannot] prevent compliance with regulations governing the repair, expansion or replacement of septic systems, or with any other applicable laws or regulations." Here, the new home required an upgraded septic system to meet modern standards. Due to the small size of the lot, part of the septic's leach field is closer to the cellar wall than the regulations allow, thus requiring a variance from the Board of Health. [Note 12] That variance was granted. Ms. Gresek did not challenge the variance and, in any event, it does not affect her. Her house is uphill and on the opposite side of the building from the septic system and its leach field.

The Seppalas' New Home Is Within the Maximum Floor Area Limit

The bylaw limits Floor Area, defined as "[t]he aggregate gross area of all floors within a principal building excluding cellars, basements, garages, areas under awnings or covered entry landings/decks, and attics not designed or used for human occupancy and excluding any area in accessory buildings." Bylaw, Art. III. The overall intent is to include "lived in" (occupied) areas, and exclude the others. This is clear from the express exclusions — cellars, basements, garages, etc., all of which are typically used for storage — and the exclusion of "attics not designed or used for human occupancy." Ms. Gresek contends that the "garage/storage space" shown on the approved Proposed Conditions Plan and now part of the new house is actually living space and thus should be counted as "Floor Area." If she is correct, the new home exceeds the limit. Like the building inspector and the board, however, I find and rule that she is wrong. The "garage/storage space" is just that — a place for storage, not human occupancy and, with that excluded, the new home falls within the maximum floor area limit. [Note 13]

The garage/storage space is unheated, with a bare cement floor. It was, and is, intended to be used as the part of the garage where outdoor and other bulky items are stored, and was originally to have a ramp leading up to the living areas of the house and double-doors much like a shed, but fire regulations required the installation of a dividing wall between it and the part of the garage where vehicles are parked. It is not living space.

Ms. Gresek raised an issue with respect to the use of the "office/den" area in the house as an extra bedroom, beyond the bedroom limit allowed by the Board of Health when it approved the new septic system. This is not a zoning issue (rather, it is for the Board of Health) but, in any event, has long since been mooted. One of the Seppalas' sons, who slept there for a time, has moved out and the room has not been used for sleeping since he left.

The Seppalas Do Not Meet the Open Space Requirements of the Zoning Bylaw

The bylaw requires that proposed changes to a grandfathered one or two family house "comply with the requirements for minimum open space, or, if they do not comply, the proposed changes do not result in a decrease in the open space on the lot." Dimensional Table, n.18 (d). Here, once the additional parking area and the entirety of the outdoor patio (both post-board decision add-ons, neither of which was shown on the approved plan (see Ex. 1) nor reviewed or approved by either the building inspector or the board) are combined with the new house and its other impervious spaces, more "open space" is occupied than allowed.

Open Space is defined as "[t]he space on a lot unoccupied by a building, unobstructed to the sky, not devoted to streets, driveways, off-street parking or loading spaces or other impervious surfaces, and expressed as a percentage of total lot area." Bylaw, Art. III. If the language of a bylaw is plain and unambiguous, it is to be enforced "according to its plain wording," Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 , 712 (2013) (internal citation omitted), unless doing so would "yield an absurd or unworkable result." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2015) (internal citations and quotations omitted). This is plain language and, as applied here, it has two effects. First, the structure on the property must be measured from its exterior walls, not the interior ones, since this is the area which the building occupies. [Note 14] Second, driveways and off- street parking areas regardless of their material, and all impervious surfaces, cannot be counted as "open space." [Note 15]

It is impossible, from the present record, to calculate the present "open space" precisely. When the Seppalas' civil engineer, Hugh Graham, took measurements he did them using the exterior walls of the new home (it covers 1,366.5 square feet) and added the additional rear deck expansion (119.0 square feet) for a total of 1,485.5 square feet. This number was used in the open space calculation the Seppalas' presented to the building inspector and the board. However, it did not include the driveway and the bulkhead shown on the plan, nor did it include the additional parking space and patio added after the plan was approved.

Kurt Yeghian, an architect who worked with a 3D laser scanner to provide an existing conditions survey, provided calculations for the driveway, additional parking, sidewalk (or front walkway) and the patio. They did not, however, include measurements for the bulkhead or the front entryway. According to Mr. Yeghian's calculation, the driveway is 463 square feet and the sidewalk (or front walkway) is 167 square feet. Together, (not including the 384 square feet of additional parking and the 714 square feet of patio space) the impervious surfaces comes to approximately 35% of the lot. When including the building, driveway, walkway, and an estimate for the covered entryway and bulkhead in the calculation for open space, there is approximately 15% of open space left (up to the 50% minimum requirement for open space). However, when both the patio and extra parking are included in this calculation, the lot no longer has 50% open space. Thus the Seppalas' must make alterations to (or remove) the patio, the additional parking area, or both to bring the lot into compliance with the 50% open space minimum requirement in the bylaw.

Conclusion

For the foregoing reasons, the board's decision is AFFIRMED in part and REMANDED in part. It is AFFIRMED insofar as it ruled that the Seppalas' new home falls within the grandfather protections of the zoning bylaw and was thus properly constructed by right, needing only the building permit it received and not a special permit or variance. It is REMANDED for the building inspector and board to ensure that the Seppalas modify their additional parking and/or patio so that the overall development comes into compliance with the bylaw's open space requirement.

Judgment shall enter accordingly.

SO ORDERED.

exhibit