MICHAEL CRONAN v. MATTHEW FITTON, et al., as they are members of the Zoning Board of Appeals of the Town of Webster; RICHARD VINTON, and MADELINE VINTON

The principal adversaries in this lawsuit are neighbors. Plaintiff Michael Cronan resides at 18 Robinson Street in Webster, Massachusetts. Next door, at 16 Robinson Street, live defendants Richard and Madeline Vinton. The Vintons bought 16 Robinson Street in 2003. As of 2003, there was a two-family residence and a 679 square-foot detached garage (the "Prior Garage") on the Vinton property.

In June 2017, Mr. Vinton applied to the Webster Building Department for a permit to tear down the Prior Garage and build a new one. The department granted a permit (the "Building Permit") for most of what Vinton proposed building. Mr. Cronan claims that the department shouldn't have done that. Cronan also claims it was wrong for the department to reject his September 2017 request for zoning-enforcement action against the Vintons and the garage they built (the "New Garage"). The Vintons and defendant Webster Zoning Board of Appeals (the "Webster ZBA," which in March 2018 largely upheld the department's decision not to take enforcement action) counter that this Court shouldn't hear Cronan's appeal. They contend, first, that Cronan lacks standing under M.G.L. c. 40A, §17, to appeal the decision not to take enforcement action. They also argue that Cronan should have appealed the Building Permit within 30 days of its issuance, and having not done so, he may not challenge the New Garage now.

The parties appeared for trial on October 1 and 2, 2019. On the first day of trial, the Court took a view of 16 and 18 Robinson Street, including the New Garage. At the close of the evidence, the Vintons and the Webster ZBA conceded that Mr. Cronan has standing under §17 to appeal the ZBA's decision. Cronan thus won on the first issue for trial. Having reviewed the admissible evidence, having heard the parties' witnesses, having heard the arguments of the parties' counsel, and having viewed both the 16 and 18 Robinson Street properties, the Court FINDS the facts set forth above as well as those enumerated below. The Court concludes that:

Mr. Cronan had adequate notice within 30 days of issuance of the Building Permit that the structure it authorized allegedly violated that the Town of Webster's zoning bylaw, Chapter 650 (the "Bylaw"). But as Cronan didn't timely appeal the Building Permit, he can't challenge those alleged illegalities now.

The New Garage nevertheless differs materially from what the Vintons showed in their application for the Building Permit. Thus, Mr. Cronan lawfully may seek zoning enforcement as to the "undisclosed" illegalities, even if it's too late to appeal the Building Permit.

In rejecting Mr. Cronan's appeal from the building inspector's denial of enforcement action, the Webster ZBA failed to determine whether the New Garage, as built, violates the Bylaw's setback requirements and its limits on expansions of lawfully nonconforming structures. The Court thus will remand the case to the ZBA to determine, at a minimum, whether the New Garage, as built, requires additional zoning approvals.

The Court FINDS these additional facts:

1. The parties' properties are in a Multiple-Family Residential District under the Bylaw. Section 650-12 of the Bylaw requires lots in that district to have a minimum of 12,000 square feet in order to be buildable. The parties agree, however, that the Vintons' property at 16 Robinson Street (which has an area of 10,844 square feet) is a pre-existing, lawfully nonconforming lot under §§650-27 and -28 of the Bylaw, as it predates the Town's adoption of the Bylaw.

2. Section 650-16.A(1) of the Bylaw lists as permitted uses in the Multiple-Family Residential District "[a]ll uses permitted in Residence District 1." Section 650-14.A(5) lists "[p]rivate garage" as an allowed use in Residence District 1. Both the Prior Garage (which the Vintons have demolished) and the New Garage are "private garages" under the Bylaw.

3. Section 650-12.D and 650 Attachment 2 of the Bylaw establish dimensional regulations for buildings in the Multiple-Family Residential District. In that district, the Minimum Side Yard is ten feet, and the "Maximum Building Height" is "3 stories." There is no floor-area ratio limit for buildings in the Multiple-Family Residential District.

4. According to Trial Exhibit 47, the Prior Garage was 20.33 feet long and 12.5 feet wide. Other evidence shows that the Prior Garage had a single, ground-level story, approximately eight feet high, with a four-sided pitched roof (with a one-foot overhang) that peaked at approximately twelve feet above the ground. Being only one story, the Prior Garage complied with the Bylaw's height requirements. But the Prior Garage stood no more than three feet from 16 Robinson Street's boundary with 18 Robinson Street (the "Boundary"). The parties agree that, as the Prior Garage was built before the Town adopted the Bylaw, the Prior Garage was a pre-existing, lawfully nonconforming structure under §650-28 of the Bylaw.

5. Using the dimensions described in Finding #4, the Prior Garage occupied no more than 1,525 cubic feet of the setback between 16 and 18 Robinson Street (the "Setback"). [Note 1]

6. Section 650-28 of the Bylaw provides in pertinent part:

Any nonconforming use, existing at the time of passage of these bylaws[,] may be continued. Such nonconforming building [sic] or use may be altered or enlarged to an extent no greater than 25% of the original nonconforming building or use . . . Nonconforming uses, structures or lots may only be changed, extended or altered upon approval of a special permit by the Zoning Board of Appeals.

7. On June 22, 2017, Mr. Vinton applied to the Webster Building Department for a building permit to build a new garage on his property. Vinton's application (the "Application") included plans drawn by Thaddeus Szkoda, PE, dated March 30, 2017 (the "Original Plans").

8. The Application and the Original Plans disclosed that the Vintons were proposing to demolish the Prior Garage, and replace it with a new, 28-foot by 36-foot garage, without applying for a special permit under §650-28 of the Bylaw.

9. The Original Plans disclosed that one part of the proposed garage would lie within that part of the footprint of the Prior Garage that lay within the Setback (albeit 3.75 feet away from the Boundary). The Original Plans disclosed that other parts of the garage would be entirely outside of all of 16 Robinson Street's required setbacks, including the Setback. The Original Plans also disclosed that some of the garage would be outside of the footprint of the Prior Garage, and within the Setback. The Original Plans disclosed that an entire side of the proposed 36-foot-long garage would be within 3.75 feet of the Boundary.

10. The Original Plans disclosed that part of the proposed garage would have a stairway leading to what the Plans called an "attic."

11. The Original Plans disclosed that the proposed garage would have a pitched roof with a maximum height of "20' ±." The elevation of proposed garage's eave was nine feet. The proposed roof had one-foot overhangs on the sides of the building.

12. The Application was missing information, however. Mr. Vinton didn't identify his property's zoning district, the proposed use, his property's dimensions, his property's frontage, or the property's required setbacks. The Town official who reviewed the Application, Building Inspector Theodore Tetreault, III, nevertheless was able to glean the missing information from public sources.

13. The Original Plans depicted a structure that would have placed approximately 2,717 cubic feet within the Setback, if one used the same calculation method described in the footnote to Finding #5 above. [Note 2]

14. At the time the Vintons filed the Application and Original Plans, they weren't on friendly terms with Mr. Cronan. In March 2017, Cronan and two family members had filed a complaint against the Vintons in Worcester Housing Court concerning various property-related disputes (the "Housing Court Action"). The Housing Court Action was still pending at the time the Vintons filed the Application and the Original Plans.

15. Sometime before June 27, 2017, Mr. Cronan learned that the Vintons were planning to demolish the Prior Garage and construct a new, larger garage on the Vinton property. On June 27, 2017, Cronan met with Building Inspector Tetreault about the Vintons' activities. That same day, Cronan wrote and delivered to Inspector Tetreault a letter asking for "a copy of the plot plan, drawing and building permit on the garage being built at 16 Robinson Street, Webster, Massachusetts."

16. Around this same time, Inspector Tetreault ruled on the Application. Tetreault concluded that Vinton was entitled to a building permit allowing removal of the Prior Garage and construction of two parts of what the Original Plans depicted: (1) all construction that was to occur within the footprint of the Prior Garage, and (2) all construction outside of the footprint of the Prior Garage that complied with all of the Bylaw's setback requirements. Tetreault rejected any construction outside of the footprint of the Prior Garage that would encroach on the Setback. Tetreault concluded that the latter work required a variance from the Bylaws.

17. On June 28, 2017, Inspector Tetreault issued the Building Permit. The Building Permit described the authorized work as "REMOVE PRIOR GARAGE AND REPLACE AS PER PLAN." The Building Permit did not indicate that Tetreault had rejected parts of the Original Plan. Tetreault nevertheless told Vinton orally what construction the Building Permit did, and did not, allow.

18. The Building Permit allowed construction of a garage (the "Allowed Garage") that would have occupied approximately 1,458 cubic feet of 16 Robinson Street's side-yard setback, approximately 4% less than the volume of the Prior Garage as calculated in Finding #5. [Note 3]

19. Within 30 days of June 28, 2017 (that is, before July 28, 2017), Mr. Cronan learned that the Building Department had issued to the Vintons a building permit. Cronan also saw enough of the Application and the Original Plans to determine that the Vintons proposed building a garage within the Setback. Cronan also knew that the Vintons hadn't received a special permit for construction of that garage, and that the entire proposed structure (not just the parts allowed within the Setback) expanded the Prior Garage by more than 25%. Cronan also held the opinion, within 30 days of June 28, 2017, that the foregoing violated the Bylaw, and if the Vintons built their proposed garage, Cronan and his family would be harmed.

20. Mr. Cronan expressed most, if not all, of these concerns to Inspector Tetreault during a meeting that occurred prior to July 18, 2017 (the "July Meeting"). The Vintons' demolition of the Prior Garage and the pouring of foundations for a new structure prompted the meeting. The foundations appeared to extend beyond the footprint of the Prior Garage.

21. During the July Meeting, Inspector Tetreault told Mr. Cronan that the Vintons were going to apply for a variance allowing them to build "along the property." But Tetreault never told Cronan that the Vintons had to halt all construction on their property while their variance request was pending.

22. On July 18, 2017, Mr. Vinton filed with the Webster ZBA an application for a variance (the "Variance Application"). In the section of the application where the applicant is requested to "State briefly the reason for Application," Vinton wrote one word: "Variance." The Variance Application disclosed that it concerned a "garage" that was "extremely close" to the "[p]roperty line of 16 and 18 Robinson St." The Variance Application didn't disclose that Vinton had received a building permit for some of the garage's elements, nor did it identify what elements of the garage required a variance.

23. Prior to July 28, 2017, Mr. Cronan learned that the Vintons had filed a variance application. Cronan also learned by July 28, 2017 that the Webster ZBA had scheduled its first hearing on the variance application for August 10, 2017. Cronan never reviewed the actual Variance Application, however.

24. July 28, 2017 came and went without Mr. Cronan appealing the Building Permit.

25. On August 2, 2017, at Mr. Vinton's request, Inspector Tetreault sent Vinton a letter stating: "This is a letter denying a permit for the proposed addition to the rear of the garage located at 16 Robinson Street due to the encroachment into the side yard setback, [sic] the setback in Multi-Family Residential zone allows you to build within 10 feet of the side property line and the proposed addition is approximately 3 feet from the property line." Vinton requested the letter in connection with his submission of his Variance Application.

26. On August 4, 2017, the Cronans moved in the Housing Court Action for a temporary restraining order preventing the Vintons from building their garage along the parties' boundary line pending the outcome of the Housing Court Action.

27. On August 10, 2017, Mr. Cronan filed materials with the Webster ZBA opposing the Variance Application. He also appeared at the ZBA's August 10, 2017 public hearing on the Variance Application. The ZBA voted that same day to deny the Variance Application. As of August 10, 2017, the Vintons hadn't completed their garage.

28. On August 16, 2017, the Worcester Housing Court denied the Cronans' motion for a restraining order.

29. On August 22, 2017, the Webster ZBA issued its written decision denying the Variance Application (the "First ZBA Decision," Trial Exhibit 8). The First ZBA Decision lists the materials the ZBA considered. The only plans that the ZBA reviewed that showed the vertical elevations of the proposed Vinton garage were their original Application Plans.

30. The First ZBA Decision states the following concerning the Allowed Garage:

According to the Vintons' attorney, "[t]he replacement portion is going to be in the same footprint [as the Prior Garage] and will be 18 feet in height at the roof peak." (Emphasis added.)

Mr. Cronan testified that "the peak [of the roof] would extend up to 20' creating a wall effect that was not in keeping with what was there before. Mr. Cronan was reminded that the plan set called for an 18' peak. . . ." (Emphasis added.)

ZBA Member Don Malo "asked about the replacement of the old pre-existing, non-conforming garage. He wanted to know if the height of the structure was under consideration and the answer was no, only the footprint of the old garage and that the proposed replacement structure was in compliance." (Emphasis added.)

ZBA Member Jason Piader "asked if the 25% expansion of a pre-existing, non-conforming use as stated in the Zoning By-law applied in this case." The First ZBA Decision doesn't note the answer to this question, or whether anyone had calculated the amount of expansion the Vintons had proposed.

31. The Vintons didn't appeal the First ZBA Decision, but they didn't halt work on their new garage either.

32. Construction on the Vintons' garage progressed through September 2017. Mr. Cronan thought that the Vintons were building something unusually large. Thus, on September 11, 2017, Cronan submitted to Inspector Tetreault a handwritten "Enforcement Request" that stated:

Size of replacement garage

Extensions on top of 6 foot fence

Slats in fence at sidewalk (vision)

All violations at 16 Robinson St.

33. By letter dated September 27, 2017, Inspector Tetreault declined Mr. Cronan's enforcement request, contending (in part) that it was untimely.

34. Mr. Cronan timely appealed to the Webster ZBA from Inspector Tetreault's denial of Cronan's enforcement request.

35. In a written decision filed with the Webster Town Clerk on March 12, 2018 (the "Second ZBA Decision," Trial Exhibit 12), the Webster ZBA ordered Inspector Tetreault to require the Vintons to remove plywood they had attached to a fence between 16 and 18 Robinson Street, which had the effect of making the fence higher.

36. The Second ZBA Decision recounts the following concerning the dimensions of the New Garage:

According to Inspector Tetreault, "[t]he Cronans stated they believe the height of the new structure to be excessive and in violation of the Zoning By-law. Mr. Tetreault reviewed those requirements and stated that he found no violation." The Second ZBA Decision doesn't set forth the Inspector's reasoning.

"With regards to [the] garage, it was noted that the Board had taken up the matter during the public hearing for the variance . . . and [in the First ZBA Decision]. The Board noted that [Mr. Cronan] was contesting several aspects of the newly constructed garage based on size, height, and the allowable percentage of expansion of the pre-existing, non-conforming use . . . It was noted that these issues had been reviewed and addressed during the variance process for the structure. At the time of the [First ZBA] Decision . . . the Board had found that the height and size of the structure were not in violation of the Zoning By-law as determined by the Zoning Enforcement Officer. . . . The Board found that the Vintons . . . only built what was allowed under the requirements of the Zoning By-law. The Board noted that this new appeal application did not present any new information that would warrant overturning or amending [the First ZBA Decision]." (Emphasis added.)

37. On March 27, 2018, Mr. Cronan appealed the Second ZBA Decision to this Court under c. 40A, §17.

38. On April 27, 2018, pursuant to the State Building Code, Inspector Tetreault issued the Vintons a certificate of occupancy for the New Garage.

39. The New Garage is L-shaped. Its southern side (the side farthest from 18 Robinson Street) is 36 feet long, as the Vintons had originally proposed in June 2017. The New Garage's east side, which runs perpendicular to the Boundary, is 28 feet long, as the Vintons had originally proposed in June 2017. As for the northern side of the New Garage, 19.33 feet of the New Garage is within the Setback (as the Building Permit allowed), and the remainder is outside of the Setback (as Inspector Tetreault had insisted in June 2017).

40. But contrary to what the Original Plans disclosed, the height of the eave of the New Garage is 11.7 feet above grade, and the elevation of the New Garage's roof at its peak is 26.2 feet (and not 18 feet, as the ZBA believed at the time of the First ZBA Decision). Using the same method employed in each of the footnotes of this decision, the Court calculates the portion of the New Garage that's within the Setback to be approximately 2,304 cubic feet, or 51% more than what the Prior Garage occupied within the Setback. [Note 4]

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Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008), holds "that a party with adequate notice of an order or decision [of a local zoning official] that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal" under M.G.L. c. 40A, §§8 and 15. See also Connors v. Annino, 460 Mass. 790 , 791 (2011). "Where adequate notice of such order or decision exists, such a person may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40A, §7." Gallivan, 71 Mass. App. Ct. at 857.

Mr. Cronan challenges the New Garage on four grounds: (1) it illegally lies within the Setback; (2) it lacks a special permit under §650-28 of the Bylaw; (3) it illegally increases the non-conformity within the Setback (as compared to the Prior Garage), and for that reason requires a variance from the Bylaw; and (4) it violates §650-28's requirement that non-conforming buildings "may be altered or enlarged to an extent no greater than 25% of the original nonconforming building. . . ." The Court finds that Cronan knew of his first and second challenges prior to July 28, 2017, the deadline for appealing the Building Permit. Cronan knew of the grounds for what are now his first and second challenges to that Permit because he saw, before July 28, 2017, plans that showed the location of the Vintons' proposed garage relative to the Boundary. Cronan also knew from the July Meeting that the only authorization the Vintons had received for their work was the Building Permit, and not a special permit. Mr. Cronan argues he had a good reason for not appealing the Building Permit by July 28, 2017: Inspector Tetreault told him before that date, during the July Meeting, that the Vintons would be applying for a variance. Connors describes the only three exceptions noted to date by the Supreme Judicial Court to Gallivan's timely-appeal-a-building-permit-or-else-it's-waived rule. Connors's first exception applies to parties who are able to "establish that he or she was without adequate notice of the order or decision being challenged" within the 30-day window for appealing the order or decision. Connors, 460 Mass. at 797. That exception doesn't help Cronan with respect to his first two challenges to the New Garage: Cronan had actual notice of the Building Permit before July 28, 2017. Cronan also introduced no evidence at trial that, owing to the timing of when he learned of the Building Permit, he couldn't appeal that permit by July 28, 2017. See id. at 798 n. 10.

Connors's second exception to the Gallivan rule applies "where an aggrieved party alleges that an abutter failed to obtain proper building permits, and therefore seeks an enforcement request to stop the abutter from proceeding with their unauthorized activity." Id. at 797-98. That exception likewise doesn't help Mr. Cronan with respect to his first two challenges to the New Garage: the Building Permit allowed construction of the very structural features that give rise to those two challenges. The same is true for Connors's third exception, which applies only "where a party claims that the beneficiary of an order that was valid as issued has allegedly exceeded the scope of the order." Id. a 798 n. 9. Mr. Cronan believes the Court should create a fourth exception to the Gallivan rule, for situations in which a municipal official gives incorrect information to a prospective appellant. At the outset, Cronan hasn't proved that he qualifies for his proposed exception: he introduced no evidence that the Town of Webster (or anyone else) told him not to appeal the Building Permit. Cronan established only that he learned, prior to July 28, 2017, that the Vintons had applied for a variance. Cronan himself assumed, mistakenly, that the Vintons' filing of a variance application excused him from having to appeal the Building Permit by July 28, 2017. The trial of this matter revealed several mistakes by the Town in connection with the Vintons' garage, but Mr. Cronan's misunderstanding as to the legal effect of the Vintons' filing of a variance application was entirely his doing.

In any event, this Court reads Connors as describing the only authorized exceptions to the Gallivan rule. Thus, while Connors suggests that a party's receipt of incorrect permit information could bear on whether he or she had adequate notice that a permit has been granted, see id. at 797, 798 n. 10, this Court doesn't construe Connors as opening the door to late appeals when a municipal employee has given incorrect legal advice. The Massachusetts courts consistently have refused to do that with respect to zoning appeals generally, see McIntyre v. Karll, 25 LCR 329 , 333-334 (2017) (Foster, J.) (reviewing authorities), and nothing in Connors suggests that appeals from building permits should be treated any differently.

While this Court concludes that Mr. Cronan raised too late his first two challenges to the New Garage, that's not the case for third and fourth challenges. Cronan may pursue those challenges -- that the New Garage illegally increases non-conformities within the Setback (as compared to the Prior Garage), and violates the requirement under §650-28 of the Bylaw that non-conforming buildings "be altered or enlarged to an extent no greater than 25% of the original nonconforming building" -- because both qualify for the third Connors exception: that for situations "where a party claims that the beneficiary of an order that was valid as issued has allegedly exceeded the scope of the order." Connors, 460 Mass. at 798 n. 9.

The Vintons didn't "allegedly" exceed the scope of the Building Permit: they actually did so. The Building Permit allowed the Vintons to build a garage having a maximum elevation of "20' ±," not 26 feet. (The Court rejects Inspector Tetreault's contention that "20'±" allows a swing of six feet, or a 30% variance. Moreover, the First ZBA Decision reports that counsel for the Vintons told the ZBA that the maximum peak height of the proposed garage would be eighteen feet. When Mr. Cronan suggested to the ZBA that the height would be twenty feet, the ZBA "reminded" Cronan "that the plan set called for an 18' peak. . . .") The Vintons' Application also showed that the proposed garage's eave would be nine feet above grade; the New Garage's eave stands at 11.7 feet.

The First and Second ZBA Decisions report that Inspector Tetreault and the ZBA had concluded that the garage's proposed (and/or as-built) first-floor and peak heights did not violate the Bylaw's height restrictions. As far as they go, those conclusions are correct. But neither ZBA Decision addresses the fact that those two lawful height increases caused the volume of the Setback occupied by garage to leap from the approximately 1,458 cubic feet anticipated to be occupied by the Allowed Garage (a 4% reduction compared to what the Prior Garage occupied) to the approximately 2,304 cubic feet occupied by the as-built New Garage, a 50% increase over what the Prior Garage occupied. By those calculations (more about that qualification in a moment), the New Garage materially increased the amount of non-conforming structures within the Setback, over and above that associated with the Prior Garage. The New Garage also rocketed past §650-28's stated 25% limit on alterations or enlargements of non-conforming buildings, if the Court's math is correct.

In its closing argument at trial, the Webster ZBA argued that §650-28 limits only building footprints, and not building volumes. The ZBA presented no evidence supporting that reading of §650-28. To the contrary, Inspector Tetreault refused to allow any expansion of the Prior Garage's footprint within the Setback, but allowed unlimited expansion of the footprint in areas outside of that and other setbacks. The First and Second ZBA Decisions (the only ZBA decisions in the record of this case) likewise don't describe §650-28's stated 25% limit as applying only to building footprints.

Mr. Cronan thus timely raised his third and fourth challenges to the New Garage: whether the New Garage, on account of its increased height (over what the Building Permit allowed), requires a special permit or a variance to increase the amount of non-conforming structure within the Setback; and whether the New Garage, on account of its increased height (over what the Building Permit allowed), violates §650-28's stated 25% limit on expansions of non-conforming structures. The Court also holds that the portion of the Second ZBA Decision that pertains to the New Garage must be vacated, and the case remanded to the ZBA for further proceedings. That's because, contrary to what the Second ZBA Decision asserts, the ZBA did not address Cronan's two challenges while considering the Vintons' variance request in August 2017. It was impossible for the ZBA to have reached Cronan's challenges then: at the time of the First ZBA Decision, the Vintons hadn't completed the New Garage. They also had submitted to the ZBA no plans, other than the Original Plans, showing the height of the proposed garage. Finally, the ZBA appears to have relied, at the time of the First ZBA Decision, on the erroneous representation of the Vintons' counsel that the garage's peak height would be only eighteen feet.

The Court thus HOLDS that the Webster ZBA improperly upheld Inspector Tetreault's decision denying Mr. Cronan zoning enforcement. The Court will thus VACATE part of the Second ZBA Decision and remand this matter to the ZBA for further proceedings consistent with this Decision, including the Court's findings with respect to the New Garage's dimensions and its distance from the parties' Boundary. In remanding the case, the Court takes no position at this juncture as to how the Bylaw's provisions regarding non-conforming structures, including §650-28's stated 25% expansion limit, applies to the New Garage. This decision presents the Court's calculations of various volumes within the Setback only to illustrate the consequences of the Vintons' unapproved increases in the New Garage's height. Any decision by the ZBA on remand, however, must (as a high-school math teacher might put it) "show its work," so as to allow the parties and this Court to understand how the ZBA has reached whatever conclusion it reaches on remand. The Court will retain jurisdiction over this matter should the parties believe that additional relief is warranted.

Judgment to enter accordingly.