MISC 18-000223

March 13, 2019

Middlesex, ss.



Plaintiff Juan Carlos Serna ("Serna") applied to the Cambridge Board of Zoning Appeal (the "Board") for a special permit to alter a nonconforming structure at 29/31 Fairmont Avenue ("29/31 Fairmont") by (1) adding a new 624-square-foot expansion to one of three units in the apartment building at that address, and (2) increasing the basement ceiling height to create additional living space without adding to the gross floor area ("GFA"). In his application, Serna contemplates combining 29/31 Fairmont with the adjacent property at 25 Fairmont Avenue ("25 Fairmont"), a three-unit condominium, to create a single property with six residential dwelling units. The Board denied the special permit in a decision dated April 25, 2018. Serna brought this action on May 4, 2018, as an appeal pursuant to G. L. c. 40A, § 17. The Board moved for summary judgment on the basis that it lacked authority to issue a special permit because Serna's proposed project created a new nonconformity, and instead of a special permit, the project required a variance.

Serna filed an opposition to the Board's motion for summary judgment on December 20, 2018. Following a hearing on January 19, 2019, I took the matter under advisement. For the reasons stated below, I find and rule that the decision of the Board denying the special permit was proper, and therefore, I allow the Board's motion for summary judgment.


The undisputed facts, as derived from the parties' summary judgment submissions, are as set forth below:

A. The Parties and the Properties

1. Serna owns a three-family residential home at 29/31 Fairmont in Cambridge, Massachusetts, together with his spouse, Lauryn Zipse. They reside with their family in an apartment unit at 29 Fairmont, which is located on the westerly side of the building. The other two units are located in the easterly portion of the building, which is known as 31 Fairmont. Plaintiff's Responses to Defendants' Statement of Material Fact and Statement of Additional Facts ("Plaintiff's Responses"), No. 6; Ex. 2, Plan A 0.0.

2. The defendants are the members and associate members of the Board. Compl. ¶ 2.

3. The property at 29/31 Fairmont Avenue abuts 25 Fairmont, a three-unit residential condominium, along its westerly border. Serna individually owns Units 1 and 2 of the condominium at 25 Fairmont. Unit 3 is owned by 25 Fairmont Ave, LLC. See Ex 1, Attachment B, pg. 3; Plaintiff's Responses, Nos. 9-11; Ex. 6.A-C.

4. In the special permit application and in his presentation materials filed on January 11, 2008 and titled "25/29/31 Fairmont Continuance Hearing #1" ("Presentation Materials"), Serna asserts ownership and control of all property interests at both 29/31 Fairmont and 25 Fairmont. In support of his proposed project, he contemplates combining the two properties into a single lot with six units. [Note 1] See Plaintiff's Responses, No. 11.

5. As existing, and prior to the proposed combination, 29/31 Fairmont is nonconforming as to front- and side-yard setbacks, height, and parking, but it is otherwise conforming, particularly as to lot area per dwelling unit. The Zoning Ordinance for the City of Cambridge ("Ordinance") requires a minimum lot size of 1,500 square feet per dwelling unit, and 29/31 Fairmont has 5,767 total square feet, such that the lot area per unit conforms at 1,922 square feet per unit. Ex. 2, Plan A 0.1. See Ordinance § 5.31 (articulating minimum lot area per dwelling unit in Residential C-1 Zoning District).

6. As existing, and prior to the proposed combination, the property at 25 Fairmont is nonconforming in all respects, with the exception of the rear-yard setback, minimum open space, and parking. With a total of 2,494 square feet for three units, 25 Fairmont is nonconforming as to lot area per dwelling unit, with only 831 square feet per unit as opposed to the Ordinance's minimum requirement of 1,500 square feet per unit. Ex. 2, Plan A 0.1; Ordinance § 5.31.

B. The Proposed Project

7. In the special permit application and Presentation Materials, Serna proposes to combine the lots that 25 Fairmont and 29/31 Fairmont sit on. For instance, on Plan A 0.0 (submitted with the Presentation Materials, Ex. 2), Serna states: "note the removal of the property line between 29/31 and 25 Fairmont; both are owned by the same owner. All setbacks are taken from combined lots."

8. Serna's proposed project is an addition to the rear and right side of the three-family house on 29/31 Fairmont. The proposed addition would include a mudroom, expanded kitchen and two additional bedrooms (Mudroom/Kitchen/Bedroom Addition). It is proposed to be a two-story structure of 624 square feet. See Ex. 2, Plan A 1.1. [Note 2]

9. The application also proposes excavation of the basement at 29 Fairmont to create a full height, usable space for Serna's family without counting that new space towards the GFA of the structure under the Ordinance. See Ex. 1.

10. As depicted in Plan A 1.1, the proposal also includes new underground area beneath the Mudroom/Kitchen/Bedroom Addition, with stairs connecting the basement of 29 Fairmont to the first floor of the Mudroom/Kitchen/Bedroom Addition, as well as a new underground storage area. Also as depicted on the Presentation Materials, Serna proposes expanding the existing basement footprint of 29/31 Fairmont to fill a notch in the geometry of the basement to make it rectangular. The notch expansion connects the existing basement to the underground portion of the Mudroom/Kitchen/Bedroom Addition. See Ex. 2, Plans A 1.0 and A 1.1.

11. Serna seeks to exempt the GFA of the basement from the Ordinance limitations on GFA. While the Ordinance allows issuing special permits to excavate an existing basement footprint without adding to the GFA, Serna's special permit application here seeks not only to excavate the existing footprint, but also to expand it, See Ex. 2, Plan A 1.1. Article 2.000, GFA, subsections (9) and (16). [Note 3]

12. The application calculates the square footage of the proposed addition as encompassing 624 square feet, without referencing or including the new square footage associated with the basement area beneath the Mudroom/Kitchen/Bedroom Addition and without referencing the expanded notch. See Ex. 2, Plan A 0.1.

13. Serna's proposal to combine 29/31 Fairmont with 25 Fairmont into a single lot would create a lot with 8,261 square feet (based on a lot size at 29/31 Fairmont of 5,767 square feet and a lot size at 25 Fairmont of 2,494 square feet). The combined lot would include six dwelling units. As such, the new lot size for each dwelling unit would be 1,377 square feet. Ex. 2, Plan A 0.1.

14. Serna suggests that his proposal includes two distinct requests, but the special permit application and Presentation Materials make it clear that he seeks approval for a single integrated project. For instance, the plans show the 29/31 Fairmont basement space flowing directly into the Mudroom/Kitchen/Bedroom Addition, and there is nothing in the application that describes or depicts what the basement project would look like independent of the Mudroom/Kitchen/Bedroom Addition. See Ex. 1-2.

15. The Board held hearings on Serna's application for a special permit on February 15, 2018, and on March 22, 2018. Ex. 3.

16. The Board voted to deny the requested special permit and filed a written decision with the City Clerk consistent with this vote on April 25, 2018. Id.

17. On May 4, 2018, Serna filed a timely complaint appealing the Board's decision.


A. Standard of Review

To prevail on summary judgment, Mass. R. Civ. P. 56 (c) requires the moving party to "demonstrate[] that there is no genuine issue of material fact, and that, accordingly, [the party] is entitled to . . . judgment." Ng Bros. Constr. v. Cranny, 436 Mass. 638 , 645 (2002). See Mass. R. Civ. P. 56 (c). A court may not evaluate the credibility of the evidence at the summary judgment stage. Noble v. Goodyear Tire and Rubber Co., 34 Mass. App. Ct. 397 , 403 (1993). Instead, the court must examine the evidence to determine if there remains an issue of material fact for the fact finder. Id. at 402, quoting Henshaw v. Cabeceiras, 14 Mass. App. Ct. 225 , 229 (1982) ("The duty of a trial judge on a motion for summary judgment 'is not to conduct a "trial by affidavits" or other supporting materials, but to determine whether there is a substantial issue of fact." (brackets and ellipses omitted)). In viewing the record, the court is to draw "all logically permissible inferences" in favor of the nonmoving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Only if there are no disputed material facts and the movant is entitled to judgment as a matter of law should the court grant the motion. Community Nat. Bank v. Dawes, 369 Mass. 550 , 553 (1976).

When reviewing an appeal from a local zoning board decision, this court considers the facts de novo, but it must award some level of deference to the board's conclusion. Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). A decision may not be overturned unless it is "based on a legally untenable ground, or [is] unreasonable, whimsical, capricious or arbitrary." Id., quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (internal quotations omitted).

B. Analysis

The issue before this court is whether Serna's proposed project creates a new nonconformity, and thus fails as a matter of law to meet the Ordinance requirements for a special permit. In its motion for summary judgment, the Board argues that it was without authority to grant a special permit because Serna's proposed project could not meet the Ordinance requirements. Specifically, the Board contends that Serna's proposed project requires a variance instead of a special permit because it would create a new nonconformity either as to lot area per dwelling unit (if the properties are combined), or as to right-yard setback requirements (if the properties are not combined). Serna disagrees and directs the court's attention to 25 Fairmont, where the proposed project would ameliorate the existing nonconformity as to square footage per dwelling unit by combining the two lots.

Preexisting nonconforming structures like those at 29/31 Fairmont and 25 Fairmont are awarded certain protections pursuant to G. L. c. 40A, § 6. In relevant part, the statute provides:

Except as hereinafter provided, a zoning ordinance . . . shall not apply to structures . . . lawfully in existence . . . before the first publication of notice of the public hearing on [the adoption of the zoning ordinance] . . . , but shall apply . . . to any reconstruction, extension or structural change of such structure . . . . 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 . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

A number of cases have considered the provisions of G. L. c. 40A, § 6. Since the proposed project involves a multi-unit residential structure, this court focuses on those cases that involve buildings other than one- and two-family residential structures (which have the further benefit of the so-called "second except clause"). See, e.g., Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991); Wrona v. Board of Appeals of Pittsfield, 338 Mass. 87 (1958) [Note 4]; Deadrick v. Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014).

The Supreme Judicial Court laid out the applicable analysis in Rockwood, supra. In that case, an abutter appealed a Harwich Board of Appeals decision granting Snow Inn a special permit to make changes to a preexisting nonconforming commercial structure, which was nonconforming as to setback requirements. Snow Inn's proposed project would also create a new nonconformity by rendering the property in violation of the Harwich Zoning Bylaw's lot coverage limit. The Court held that G. L. c. 40A, § 6 permits extensions and alterations to nonconformities "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." Id. at 364. Both findings are necessary to support a special permit approval. This conclusion derives from the need to read the first and second sentences of the statute together harmoniously. Thus, Snow Inn's proposed project creating a new nonconformity required a variance, not a special permit. Rockwood, supra at 370. Accord Wrona, supra at 89-90 (annulling board decision granting special permit when proposed extension to preexisting nonconforming structure created new violation of ordinance setback requirements).

In line with Court precedent, the Land Court has ruled in a number of cases that a new nonconformity requires a variance and not simply a special permit. See, e.g., Graf v. Akin, 26 LCR 648 , 651, 651 (2018) (Misc. Case No. 16 MISC 000203) (Vhay, J.) (finding that introduction of new second floor use as an office/studio space was not amenable to special permit approval, but instead required a variance); Harrison v. Fouhy, 20 LCR 332 , 337 (2012) (Misc. Case No. 11 MISC 444901) (Grossman, J.) ( annulling board of appeals decision that authorized defendants to expand and alter existing nonconforming commercial use and structure to new nonconforming commercial use and structure via special permit instead of variance); Pettinella v. Cavallaro, 19 LCR 340 , 352 (2011) (Misc. Case No. 08 MISC 365784) (Piper, J.) (observing that a variance, as opposed to a special permit, was required to replace two low-impact nonconforming cottages with a single three-unit building where the proposed extensions would not comply with side-yard setbacks). Valentino v. City of Waltham, 18 LCR 66 , 72 n.3 (2010) (Misc. Case No. 08 MISC 3735474) (Trombly, J.) ("[T]he encroachment on the northeasterly side-yard is a new nonconformity rather than an intensification of an existing nonconformity[,] . . .[and] [i]t appears that denial of the [plaintiff's special permit] petition was proper for the additional reason that the new nonconformities required variances."); Heaphy v. Schier, 13 LCR 398 , 402 (2005) (Misc. Case No. 290964) (Lombardi, J.) (affirming board decision that denied special permit where proposed project would increase nonconforming nature of house).

As in Rockwood, the Ordinance provides protections (subject to some limitations) for preexisting nonconforming structures, similar to the protections in G. L. c. 40A, § 6. See Ordinance, § 8.11. Specifically, § 8.11 provides:

This Ordinance shall not apply to existing buildings or structures, nor to the existing use of any building or structure or of land, to the extent to which it is used at the time of first publication of notice of public hearing by the Planning Board of applicable provisions of this or any prior Ordinance, but it shall apply to any change of use thereof and to any alteration of a building or structure when the same would amount to reconstruction, extension or structural change, and to any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different form the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent.

(emphasis added).

The Ordinance continues to track G. L. c. 40A, § 6, providing at § 8.22 that the Board may issue special permits for proposed changes, extensions, or alterations of a protected nonconformity, but only if the project comports with specific Ordinance provisions, and it does not create a substantially greater detriment to the neighborhood than the existing nonconformity. [Note 5] The Ordinance instructs at § 10.43 that a special permit must nevertheless be denied "when particulars of the location or use, not generally true of the district or of the uses permitted . . . would cause granting of such permit to be in the detriment of the public interest because . . . [i]t appears that requirements of this Ordinance cannot or will not be met. . . ." [Note 6] Similarly, the Board may not grant a special permit where there is an "alteration or enlargement of a nonconforming structure or of a nonconforming use not otherwise permitted in §§ 8.22.1 and 8.22.2." Ordinance § 8.22.3. Instead, § 8.22.3 requires a variance.

This court must therefore determine whether Serna's proposed project satisfies the Ordinance requirements for a special permit. Because I conclude it cannot, as discussed below, the Board lacked authority upon a special permit application to approve the proposed alteration and enlargement, and a variance was required. As noted above, § 8.22.2 (c) of the Ordinance authorizes the Board to grant special permits for alternations, provided the alteration is not in further violation of the dimensional requirements of Article 5. In turn, the dimensional requirements set forth in Article 5 at § 5.11 provide that existing structures cannot be enlarged without conforming to the Ordinance provisions governing minimum lot area for each dwelling unit.

Here, while the structure at 29/31 Fairmont has protected nonconformities as to the front- and side-yard setback, height, and parking, the grandfathering protections do not extend to the new nonconformity proposed as to lot area per dwelling unit. On the other hand, the structure at 25 Fairmont is already well under the under the Ordinance's requisite 1,500 square footage per dwelling unit requirement at 831 square feet per dwelling unit. Combining the two lots for the proposed project would create a new lot that was nonconforming at 1,377 square feet per dwelling unit. The proposed combination would extend the nonconformity over a greater number of dwelling units, resulting in an overall increase in nonconforming dwelling units—and total nonconforming square footage—in the neighborhood. Although the proposed project may ameliorate an existing nonconformity at 25 Fairmont, the Ordinance does not contemplate or permit this type of trade-off.

Serna theorizes that he can utilize the doctrine of merger to cure this violation of the Ordinance, but neither the Ordinance nor G. L. c. 40A so provide. At the outset, it is worth noting that this is not a typical merger case. Generally, merger comes into play when property owners seek zoning relief and the local zoning board bars them from availing themselves of a grandfathering exemption unless the adjacent land is utilized to satisfy minimum dimensional requirements or minimize the extent of nonconformity. See, e.g., Timperio v. Zoning Bd. of Appeals of Weston, 84 Mass. App. Ct. 151 ,158 (2013); Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 , 735-736 (1999).

Here, the Board is not requesting or mandating merger; rather, Serna has proposed combining 29/31 Fairmont and 25 Fairmont. His proposed project, however, runs counter to the purpose of the doctrine of merger: "The purpose of the doctrine of merger is to enable nonconforming lots to become conforming by combining the nonconforming lot with adjacent land, thus bringing the nonconforming lot into conformity." Pitsick, LLC v. Lipsitt, 23 LCR 277 , 287 (2015) (Misc. Case No. 13 MISC 477862) (Sands, J.). See Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963) ("[A]n owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the frontage requirement, or, at least, to make the frontage less substandard."). Serna's project does not foster conforming lots, but rather extends one aspect of zoning nonconformity (that of minimum lot size per dwelling unit) to a new parcel and extends this nonconformity to encompasses more square footage and a greater number of dwelling units. At present, only 25 Fairmont is nonconforming in this regard, whereas both 25 Fairmont and 29/31 Fairmont would be so nonconforming if combined. The proposed project would also result in a net neighborhood loss of one conforming lot as to minimum lot size per dwelling unit.

Nor is Serna's proposal consistent with the underlying objectives of the Zoning Act, G. L. c. 40A. As Massachusetts courts have observed, zoning objectives would generally benefit from eliminating nonconformities. See Deadrick, supra at 552-553, quoting Bransford v. Zoning Board of Appeals of Edgartown, 444 Mass. 858 , 859 (2005) ("[T]he ultimate objectives of zoning would be furthered by the eventual elimination of nonconformities in most cases."). See also Harrison v. St. Pierre, Mass. App. Ct., No. 12-P-1612 (Jan. 13, 2014) (issued pursuant to Rule 1:28), ("G. L. c. 40A, § 6, as Rockwood held, is geared toward the elimination of nonconforming uses and structures, not just reducing the numbers of nonconformities in a replacement structure—which replacement structure, albeit even by a lesser number of zoning violations, is still nonconforming to the Chatham zoning by-law."). Further, "[a] basic purpose of the zoning laws is to 'foster the creation of conforming lots.'" Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999), quoting Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414, n.7 (1993), rev. denied, 415 Mass. 1105 (1993).

While Serna may believe it is unfair to require a variance for a project that reduces existing nonconformities on one lot, the law is clear that any new nonconformity requires a variance. The Supreme Judicial Court most recently reviewed the language of G. L. c. 40A, § 6 and its legislative history in Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019). In that case, the plaintiffs, neighbors of the project applicants in Bellalta, claimed that statutory special protection for one- and two-family residential structures was unfair to them as the owners of a conforming structure that would need a variance to undertake a similar project. The Court explained, however, that "[p]erceived inequities resulting from legislative choices do not affect our construction of the statute."


Accordingly, I affirm the Board's denial of Serna's application for a special permit because I find that Serna's proposed project creates a new nonconformity and does not fall within the protections for preexisting nonconforming structures. The Board, therefore, was without authority to issue the special permit. To proceed with the project, Serna must obtain a variance. Defendants City of Cambridge Board of Zoning Appeal and Its Members' Motion for Summary Judgment is GRANTED.

Judgment will enter accordingly.


[Note 1] Serna filed the application for a special permit for the proposed project based on the contemplated combination of 29/31 Fairmont and 25 Fairmont. It is undisputed that at the time of that filing, the properties were held in separate title. Notably, Lauryn Zipse and Serna own 29/31 Fairmont as tenants by the entirety, while 25 Fairmont was subject to a condominium master deed, as to which condominium Serna individually owns or has an interest in each of the three unit deeds. Serna's own application describes the two lots as separate lots prior to the proposed project: Exhibit 2, Plan A 0.1, depicts two separate lots and analyzes the zoning requirements as to each lot individually, as well as to the lots combined under the proposed project. At the hearing before the Board on March 22, 2018, the Board Chair moved that the requested relief be granted "on the condition that the deed merging the two properties be provided prior to utilizing the basement GFA" and "prior to building the conforming addition to the existing nonconforming house." That motion failed. Ex. 3.

[Note 2] By proposing to combine or "merge" the lots, Serna avoids seeking a side-yard variance for the new structure at 29/31 Fairmont. Had he proceeded without combination, the new Mudroom/Kitchen/Bedroom Addition would have been located squarely within the side-yard setback and required a variance. Ex. 2, Plan A 0.1.

[Note 3] Article 2.000, GFA, subsections (9) and (16) provide the following guidance on GFA:

Gross Floor Area shall not include : . . basement and cellar spaces with less than seven (7) feet of ceiling height measured from the floor to the line of the bottom of the floor joists, or to any subfloor or finished surface above any floor joists that are spaced not less than four (4) feet on center, and further providing that the basement or cellar is not a Story Above Grade as defined in the State Building Code[,] . . . [or] [a]ny basement or cellar living space in any other type of structure with the issuance of a special permit. In granting such a special permit, the permit granting authority may approved [sic] the exemption of any portion of Gross Floor Area (GFA) located in a basement or cellar from the calculation of GFA, provided the permit granting authority finds that the uses occupying such exempted GFA support the character of the neighborhood or district in which the applicable lot is located.

[Note 4] Although Wrona was decided under a prior version of G. L. c. 40A, more recent cases continue to recognize its reasoning. See Deadrick v. Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 , 552 (2014).

[Note 5] For instance, Ordinance § 8.22.2 (c) notes:

In a Residence District the Board of Zoning Appeal may grant a special permit for the alteration or enlargement of a nonconforming structure, not otherwise permitted in Section 8.22.1 above, but not the alteration or enlargement of a nonconforming use, provided any enlargement or alteration of such nonconforming structure is not further in violation of the dimensional requirements of Article 5.000 or the off street parking and loading requirements in Article 6.000 for the district in which such structure is located and provided such nonconforming structure will not be increased in area or volume by more than twenty-five (25) percent since it first began to be nonconforming.

[Note 6] Section 10.43 reads in full:

Criteria. Special permits will normally be granted where specific provisions of this Ordinance are met, except when particulars of the location or use, not generally true of the district or of the uses permitted in it, would cause granting of such permit to be to the detriment of the public interest because:

(a) It appears that requirements of this Ordinance cannot or will not be met, or

(b) traffic generated or patters of access or egress would cause congestion, hazard, or substantial change in established neighborhood character, or

(c) the continued operation of or the development of adjacent uses as permitted in the Zoning Ordinance would be adversely affected by the nature of the proposed use, or

(d) nuisance or hazard would be created to the detriment of the health, safety, and/or welfare of the occupant of the proposed use or the citizens of the City, or

(e) for other reasons, the proposed use would impair the integrity of the district or adjoining district, or otherwise derogate from the intent and purpose of this Ordinance, and

(f) the new use or building construction is inconsistent with the Urban Design Objectives set forth in Section 19.30.