JAMES F. KELLEY and PATRICIA M. KELLEY and 25 OVERLOOK KNOLL ROAD, LLC v. MASHPEE BOARD OF ZONING APPEALS, and JONATHAN D. FURBUSH, WILLIAM A. BLAISDELL, RONALD S. BONVIE, SHARON SANGELFER, SCOTT GOLDSTEIN, NORMAN J. GOULD, BRAD PITTSLEY and CAROL SHERMAN, as they are Members of the Zoning Board of Appeals, and FREDERICK NADDAFF and LINDA NADDAFF, and THE TOWN OF MASHPEE

INTRODUCTION

In this action, plaintiffs James F. Kelley and Patricia M. Kelley ("the Kelleys"), the owners of property located at 30 Overlook Knoll Road, Mashpee, Massachusetts, and 25 Overlook Knoll Road, LLC ("the LLC"), the owner of property located at 25 Overlook Knoll Road, Mashpee, Massachusetts, appeal from the defendant Town Of Mashpee ("Town") Zoning Board of Appeals' ("ZBA") March 7, 2019 decision ("the Decision") granting defendants Frederick Naddaff and Linda Naddaff ("the Naddaffs") a special permit to raze and replace an existing house at 29 Overlook Knoll Road, Mashpee, Massachusetts ("Locus"). For the reasons set forth below, this court finds that the Kelleys and the LLC have standing to pursue this appeal, but that the Naddaffs are entitled to summary judgment in their favor on the merits of the Kelleys' and the LLC's appeal.

PROCEDURAL HISTORY

This action was commenced with the filing of a complaint on March 25, 2019, asserting that the Decision was arbitrary and capricious (Count I) and seeking certain declaratory adjudications (Count II). After the close of discovery on October 1, 2019, the Naddaffs filed Defendants', Frederick Naddaff And Linda Naddaff, Motion For Summary Judgment Pursuant To Mass. R. Civ. P. 56(b) ("the Motion") on October 31, 2019 and, on December 6, 2019, the Kelleys and the LLC filed Plaintiffs' Opposition And Cross Motion To Defendants' Motion For Summary Judgment Pursuant To Mass. R. Civ. P. 56(b) ("the Cross-Motion"). A hearing was held on the Motion and Cross-Motion on December 23, 2019. Thereafter, by agreement of the parties, the record was supplemented to include the complete zoning by-law for the Town ("the By-Law"). This decision follows.

UNDISPUTED FACTS

The following facts established in the record and pertinent to the Motion and Cross- Motion are undisputed or are deemed admitted. [Note 1]

1. The Kelleys are the owners of property located at 30 Overlook Knoll Road, Mashpee, Massachusetts, shown as Lot 8 on Land Court Plan 5496-C ("Lot 8"). Complaint ¶ 1 and Ex. B thereto.

2. The LLC is the owner of property located at 25 Overlook Knoll Road, Mashpee, Massachusetts, shown as Lot 10 on Land Court Plan 5496-C ("Lot 10"). Complaint ¶ 2 and Ex. B thereto.

3. The Naddaffs are the owners of Locus, shown as Lot 9 on Land Court Plan 5496-C. Complaint ¶ 4 and Ex. B thereto.

4. The Locus is abutted to the southeast by Nantucket Sound, to the northeast by a 10' way that is abutted on the other side by the Kelleys' Lot 8, and to the northwest by the LLC's Lot 10. Complaint Ex. B.

5. The Naddaffs filed a petition with the ZBA on January 25, 2019 requesting a special permit under §174-17.1 of the By-Law ("the Raze and Replace Provision") to raze and replace a nonconforming single family structure on Locus, which is located in an R-3 Zoning District and in the Popponesset Overlay District. Complaint ¶¶ 13, 23.

6. A public hearing on the Naddaffs' petition was held on February 27, 2019. See Decision at 1.

7. Locus contains approximately 14,340 square feet of land above the water line, although the parties do not agree on whether the relevant water line is mean low or mean high, and 9,456 square feet of land measured from the top of the coastal bank. Complaint ¶ 9.

8. The existing structure on Locus is a single story structure with 996 square feet of living space, an attached carport and an attached deck. Complaint ¶ 8. See also the Naddaffs' Exhibit List, Exs. 3 and 4, and Plaintiffs' List Of Exhibits In Support Of Opposition To Defendants' Motion For Summary Judgment ("Plaintiffs' Exhibit List"), Ex. 3.

9. The existing structure is nonconforming because it is only 13.1' from its property line with Lot 10, only 15.1' from Seaview Avenue, and only 35.6' from a wetland resource area. Complaint ¶¶ 12, 18(a), (b) and (d).

10. The footprint of the attached carport is shown on a plan entitled "Plan Of Land To Accompany A Zoning Board Of Appeals Application #29 Overlook Knoll Road Mashpee Massachusetts Proposed Conditions New Dwelling Prepared For Fred & Linda Naddaff 8R Poquanticut Ave., Rear North Easton, MA 02356 (614) 582-4834 Fred.Naddaff@msn.com BSC Group Scale 1" = 20' Date 01-23-2019" ("ZBA Plan"), sheet 1 of 5, Naddaffs' Exhibit List, Ex. 4, and photographs of the carport are in the record at Naddaffs' Exhibit List, Ex. 3, and Plaintiffs' Exhibit List, Ex. 3.

11. The carport is incorporated into the northwest side of the existing structure, with a roof, side wall and, to the southwest, a portion of the rear wall, that are attached to the existing structure and that match the materials used in the existing structure. Naddaffs' Exhibit List, Ex. 3 and Plaintiffs' Exhibit List, Ex. 3.

12. The carport is fully open on the northwest side and partially open (sufficient to accommodate an automobile) on either end, with the corners and center of the northwest side supported by beams that appear to rest on concrete cinderblocks. Id.

13. The floor of the carport is gravel. Id.

14. The footprint of the proposed structure is shown on the ZBA Plan at sheet 2 of 5. Naddaffs' Exhibit List, Ex. 4.

15. The proposed structure for Locus (1) will bring the side yard setback for the property line with Lot 10 into conformance with the By-Law; (2) will slightly lessen the setback nonconformity from Seaview Avenue from15.1' to 15.5'; and (3) will slightly lessen the setback nonconformity from the wetland resource area from 35.6' to 36'. ZBA Plan, sheet 2 of 5, Naddaffs' Exhibit List, Ex. 4.

16. The proposed structure contains 3,700 square feet in a two story structure. Complaint ¶ 11.

SUMMARY JUDGMENT STANDARD

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

DISCUSSION

The Motion and the Cross-Motion present two issues for resolution: (1) whether the Kelleys and the LLC have standing to pursue this appeal, which raises the issue of this court's jurisdiction; and (2) whether the carport can be considered a portion of the existing dwelling for the purpose of determining the extent of its current nonconformities and whether the proposed structure creates new nonconformities. As is set forth below, this court concludes that the Kelleys and the LLC have standing, but that their appeal fails.

Standing

Section 17 of G.L. c. 40A ("the Zoning Act"), allows "[a]ny person aggrieved" by a decision of a special permit granting authority to appeal to, among others, this court. Courts have described a person aggrieved as one who "suffers some infringement of his legal rights," [Note 2] who has "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest" which right or interest is "one that the statute under which a plaintiff claims aggrievement intends to protect." Standerwick v. Zoning Bd. Of Appeals, 447 Mass. 20 , 27-28 (2006). "The injury must be more than speculative." Sweenie, 451 Mass. at 543, citing Marashlian, 421 Mass. at 723. "Aggrievement" is not defined narrowly, 81 Spooner Road, LLC, 461 Mass. at 700, citing Marashlian, 421 Mass. at 721, but "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." 81 Spooner Road, LLC, supra, quoting Kenner, 459 Mass. at 121 and cases cited.

"Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are 'persons aggrieved.'" Marashlian, 421 Mass. at 721, citing Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106 , 111 (1995), and Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). Accord Picard, 474 Mass. at 573; 81 Spooner Road LLC, 461 Mass. at 700. That presumption can be rebutted in either of two ways:

The defendant, however, can rebut the presumption "by showing that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." [Spooner Road LLC, 461 Mass. at] 701. Alternatively, the defendant can rebut the presumption "by coming forward with credible evidence that refutes the presumption," that is, evidence that "warrants a finding contrary to the presumed fact of aggrievement," or by showing that the plaintiff has no reasonable expectation of proving a cognizable harm. Id., quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258, 797 N.E.2d 893 (2003).

Picard, 474 Mass. at 573. Once the presumption is rebutted, "the plaintiff 'must prove standing by putting forth credible evidence to substantiate the allegations.'" Id., quoting 81 Spooner Road, LLC, 461 Mass. at 701. "The plaintiff must 'establish - by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community.'" Picard, 474 Mass. at 573-574, quoting Standerwick, 447 Mass. at 33. At that point, "the jurisdictional question is decided on 'all the evidence with no benefit to the plaintiffs from the presumption.'" Marashlian, 421 Mass. at 721. "Standing essentially becomes a question of fact for the judge." Kenner, 459 Mass. at 119.

The Kelleys, as the "owners of land directly opposite on any public or private street or way," G.L. c. 40A, §11, and the LLC, as a direct abutter, id., are "parties in interest" as defined by G.L. c. 40A, §11. Accordingly, they have the benefit of the presumption.

The Naddaffs have not availed themselves of the opportunity to rebut the presumption "by coming forward with credible evidence that refutes the presumption." As noted by the 81 Spooner Road, LLC court, "the defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis" as was done in Kenner and Standerwick. 81 Spooner Road, LLC, 461 Mass. at 702. No such evidence was submitted here. The Naddaffs could also rebut the presumption "by showing that the plaintiff has no reasonable expectation of proving a cognizable harm." Picard, 474 Mass. at 573. "[W]here a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff's presumption of standing, rather than presenting independent evidence that would warrant a finding of no aggrievement." 81 Spooner Road, LLC, 461 Mass. at 703-704. The Naddaffs did not submit evidence of that nature, either.

At oral argument, the Naddaffs' counsel contended that the Kelleys and the LLC lack standing because the interests that they claim are adversely affected by the Naddaffs' proposed structure are not interests protected by the By-Law. Those interests are identified in an affidavit from the Kelleys and an affidavit from John Lynch ("Mr. Lynch"), the manager of the LLC, that are a part of the record of these proceedings. The Kelleys state that the Naddaffs' proposed structure is "wholly out of proportion" with other houses on the street, that it will create more vehicular traffic, exacerbate existing parking problems, impede public safety and emergency vehicles, increase potential harm to small children and reduce the value of their property. Affidavit of James F. Kelley And Patricia M. Kelley, sworn to in December 2019, at ¶¶11-16. Mr. Lynch also states that the Naddaffs' proposed structure will exacerbate existing parking problems, impede public safety vehicles, and reduce the value of his property. Affidavit Of John M. Lynch dated December 5, 2019 at ¶¶ 10-11 and 18. In addition, Mr. Lynch states that the Naddaffs' proposed structure will seriously reduce his ocean views and sunlight and will cast additional shadows on his property during daylight hours. Id. at ¶ 12.

Claims regarding ocean views and property values do not assert interests protected by the By-Law. See Kenner, 459 Mass. at 120 ("Generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing") and cases cited; Kenner, 459 Mass. at 123 ("Zoning legislation 'is not designed for the preservation of economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live.'"), citing Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940). Safe access and access by public safety and emergency vehicles are more clearly interests protected by the Subdivision Control Act, G.L. c. 41, § 81K et seq., not the Zoning Act. Gifford v. Planning Board of Nantucket, 376 Mass. 801 , 807 (1978) ("we have emphasized repeatedly that a principal object of the law is to ensure efficient vehicular access to each lot in a subdivision, for safety, convenience, and welfare depend critically on that factor. See Costanza & Bertolino, Inc. v. Planning Bd. of N. Reading, 360 Mass. 677 , 679-680 (1971); Stoneham v. Savelo, 341 Mass. 456 , 458 (1960); Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149 , 153 (1959) (reviews legislative history).").

Claims regarding parking and traffic, however, have been recognized as asserting violations of interests protected by the Zoning Act. Marashlian, 421 Mass. at 733 ("The plaintiffs claim to fear increased traffic and decreased parking availability due to the defendants' development of the lot. Such concerns are legitimately within the scope of the zoning laws."), citing Circle Lounge & Grille, Inc., 324 Mass. at 427. And, here, the Raze and Replace Provision of the By-Law expressly includes a concern for parking: the ZBA is required to find "that there is adequate land area to provide sufficient parking." By-Law §174-17.1. That is sufficient to establish the Kelleys' and the LLC's standing as "persons aggrieved" under G.L. c. 40A. See 81 Spooner Road, LLC, 461 Mass. at 704 n. 16 ("Where plaintiffs allege several claims of aggrievement, they only need to satisfy their burden of proof with respect to one claim in order to establish standing.") citing Krafchuk v. Planning Bd. Of Ipswich, 453 Mass. 517 , 523 n. 13 (2009).

The ZBA's Grant Of A Special Permit Under The Raze And Replace Provision

The Applicable Law

In their Motion, the Naddaffs argue that they are entitled to summary judgment upholding the ZBA's Decision because, on the undisputed facts, the proposed structure complies with the Raze and Replace Provision: it is not more detrimental than the existing nonconforming structure; there is sufficient parking; and the proposed structure does not create any new nonconformities. The Kelleys and the LLC oppose the Naddaffs' Motion and argue that, instead, they are entitled to summary judgment in their favor annulling the Decision because the proposed structure does not comply with the Raze and Replace Provision: it creates new nonconformities and is substantially more detrimental than the existing nonconforming structure. Both arguments hinge on whether the ZBA erred in including the carport as part of the existing nonconforming structure for purposes of determining whether the proposed structure increases (or decreases) any nonconformities.

As most recently described by the Supreme Judicial Court in E&J Props., LLC v. Medas, 464 Mass. 1018 , 1019 (2013), quoting Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381 (2009), which in turn quotes Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954), "[j]udicial review of a zoning board's decision pursuant to G.L. c. 40A, §17, 'involves a peculiar combination of de novo and deferential analyses.'" In Shirley Wayside Ltd. P'ship v. Bd. Of Appeals, 461 Mass. 469 , 474 (2012), the Supreme Judicial Court described the process of the trial court's review as follows:

The trial judge makes his own findings of facts and need not give weight to those the board has found. See G.L. c. 40A, §17; Pendergast v. Board of Appeals of Barnstable, supra at 558-559. The judge then "determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application" (citations omitted). Britton v. Zoning Bd. Of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74, 794 N.E.2d 1198 (2003).

Deference is paid to "legal conclusions within the authority of the board." E&J Props., LLC, 464 Mass. at 1019, quoting Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381. "Deference is also owed to a local zoning board because of its special knowledge of 'the history and purpose of its town's zoning by-law.'" Id. at 381, quoting Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). "Accordingly, a judge must give 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances." Id. "[J]udicial review of a board's decision 'involves a highly deferential bow to local control over community planning.'" Id. at 382, quoting Britton v. Zoning Bd. Of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In the end,

[w]hile a judge is to give "no evidentiary weight" to the board's factual findings, the decision of a board "cannot be disturbed unless it is based on a legally untenable ground" or is based on an "unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulation to the facts as found by the judge. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487, 709 N.E.2d 798 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639, 255 N.E.2d 347 (1970); Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 485, 258 N.E.2d 565 (1970). Although the judge determines the facts, it is "the board's evaluation of the seriousness of the problem, not the judge's, which is controlling. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 488, 395 N.E.2d 880 (1979), quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 821, 296 N.E.2d 716 (1973).

Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382.

The Relevant By-Law Provisions

The following definitions set forth in Article II of the By-Law, §174-3, are relevant to this proceeding:

Accessory Building - A building devoted exclusively to a use accessory to the principal use of the lot on which it is located.

Accessory Use - A use incident and subordinate to and on the same lot as a principal use.

Building - Includes the word "structure" unless the context unequivocally indicates otherwise. "Building" shall also mean any three-dimensional enclosure by any building material of any space for use or occupancy, temporary or permanent, and shall include foundations in the ground; also all parts of any kind of structure aboveground except fences and field or garden walls or embankment retaining walls.

Dwelling, Detached - A building designed for or occupied as a residence and separated from any other building, except accessory buildings, by side yards.

One-Family Dwelling - A building designed for or occupied by one (1) family.

Structure - A combination of material assembled at a fixed location to give support or shelter, such as a building, tower framework, platform, bin, sign or the like.

The Popponesset Overlay District is subject to the following dimensional requirements:

Maximum height within the Popponesset Overly [sic] District shall be thirty (30) feet, subject to the provision of Footnote 4 of this table [addressing the height of chimneys, water towers, etc. extending above the roof line]. Minimum lot size shall be six thousand (6,000) square feet, minimum frontage sixty (60') feet, minimum building setbacks 25 feet front, 15 feet rear and 15 feet side and maximum lot coverage twenty five (25%) percent.

§174-31, n. 18.

Article V - Nonconforming Buildings And Uses, provides at §174-17 that "[l]awfully created structures or uses may be continued, although not conforming with the provisions of this chapter." The Raze and Replace Provision of the By-Law, contained in Article V - Nonconforming Buildings And Uses at §174-17.1, provides:

No pre-existing, non-conforming single or two (2) family dwelling structures shall be torn down and rebuilt on any lot unless there is an issuance of a Special Permit from the Zoning Board of Appeals. Such a Special Permit may be granted only if the Zoning Board of Appeals finds that any changes, extensions, alterations or reconstruction of the pre-existing non-conformities are not substantially more detrimental than exists prior to removal of the existing structure and that there is adequate land area to provide for sufficient parking. In no case will non-conformities be permitted without the issuance of a Variance.

Analysis Of The By-Law As Applied Here

The issue in this case is whether the carport is a part of the preexisting nonconforming structure, such that its dimensions are included in determining whether or not the proposed structure creates any new nonconformities. As the photographs in the record reveal, the carport is plainly an integral part of the existing home at Locus. The home, with the attached carport, meets the definition of structure ("a combination of material assembled in a fixed location to give support or shelter"), the definition of a building ("all parts of any kind of structure aboveground except fences and field or garden walls or embankment retaining walls"), and definition of a detached dwelling ("a building designed for or occupied as a residence and separated from any other building, except accessory buildings, by side yards"). The ZBA's implicit determination to that effect - "All existing non-conformities are pre-existing," Decision at 6 - clearly passes muster under the deferential standard that obtains here.

The plaintiffs' argument that the carport is really an accessory building fails. The building of which the carport is a part is not "devoted exclusively to a use accessory to the principal use of the lot on which it is located," but is in fact the principal structure on the lot. That the carport is open on three sides and has a dirt floor makes it no less a "structure" or a portion of "building" as defined by the By-Law. It is noteworthy that the By-Law only excepts fences, field or garden walls or embankment retaining walls from its definition of "building" as including "all parts of any kind of structure aboveground." Whether described as a carport or, as the plaintiffs would have it, an "overhang," it is not excluded from the definition of "building" in the By-Law. See Commonwealth v. Muckle, 478 Mass. 1001 , 1003 (2017) ("Under the maxim, 'expressio unius est exclusio alterius,' the express inclusion of witnesses and jurors excludes all other persons listed in §13B (1) (c) who are not expressly included. See, e.g., Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580 , 588, 45 N.E.3d 561 (2016) ('the expression of one thing in a statute is an implied exclusion of other things not included in the statute').").

Finally, the plaintiffs argue that the definition of building includes the word "structure" "unless the context unequivocally indicates otherwise," and, according to the plaintiffs, the Raze and Replace Provision unequivocally does indicate otherwise: "To allow the open area with a dirt floor to be connected to a 2 ½-story dwelling makes a mockery of the Raze and Replace Bylaw." Plaintiffs' Memorandum In Opposition To Defendants' Motion For Summary Judgment at 9. Notably, there is no language in the Raze and Replace Provision expressly stating that the definition of "structure" does not apply, or that unenclosed areas are not to be included in determining the dimensions of an existing structure for purposes of that provision. Just as an unenclosed deck is a "structure" for purposes of the Raze and Replace Provision, so is the carport. The Raze and Replace Provision does not unequivocally indicate otherwise.

With that issue resolved, the ZBA's Decision to grant a special permit under the Raze and Replace Provision is on solid footing. Including the carport as part of the existing structure and comparing that to the proposed structure, no new nonconformities will be created and, in fact, some nonconformities are decreased. While the proposed structure is two stories, rather than the existing structure's one story, the proposed structure complies with the height restrictions for its zoning district. It also complies with lot size, frontage and maximum lot coverage. On this record, the ZBA could not reasonably conclude anything but that the proposed structure would not be "substantially more detrimental than exists prior to removal of the existing structure."

In a post-hearing submission, the plaintiffs also argued that §174-17, governing the continuance, extension or alteration of nonconforming structures or uses, and §174.24(c)(2) and (7), governing special permit uses, are applicable here. The short answer to that argument is that the more specific provisions of §174-17.1 prevail over the more general provisions of §174.17 and §174.24. Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 , 712-713 (2013) ("The more specific statute or bylaw controls over the more general. See Grady v. Commissioner of Correction, ante 126, 131-132 (2013)."). Regarding §174-24, those provisions are found within Article VI - Land Use Regulations, in the section that explains symbols used in the Table of Use Regulations. They do not appear to apply to the Raze and Replace Provision found in Article V - Nonconforming Buildings And Uses.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, the defendant Naddaffs' Motion is ALLOWED and the plaintiffs' Cross-Motion is DENIED. On Count I of the complaint, judgment shall enter affirming the Decision. On Count II of the complaint, judgment shall enter declaring that that the carport is a part of the existing building on Locus under the By-Law and is properly included in determining the dimensions of the existing structure, and that, when compared to the dimensions of the existing structure, the proposed structure does not create any new nonconformities.

SO ORDERED.