RAJIAH ALDRIN DENNY, Plaintiff, v. ABRIJIT BRAHMACHARI, STEVEN COHEN, and JOSEPH GARBER, in their capacities as Members of the ZONING BOARD OF APPEALS FOR THE TOWN OF SHARON, Defendants

INTRODUCTION

Plaintiff Rajiah Aldrin Denny ("Mr. Denny"), the owner with his wife of property located at 40 Harold Street, Sharon, Massachusetts ("the Property"), commenced this G. L. c. 40A, § 17, zoning appeal on October 25, 2019 with the filing of a complaint against defendants Abrijit Brahmachari, Steven Cohen and Joseph Garber, as members of the zoning board of appeals ("the ZBA") for the town of Sharon ("the Town"). Mr. Denny appeals from the October 9, 2019 denial ("the Decision") of Mr. Denny's application for a special permit to enclose an existing deck at the rear of the home on the Property ("the Application").

A one-day trial was held on October 19, 2020 at which Mr. Denny and his expert witness, Jonathan Shuster ("Mr. Shuster"), testified on his behalf and Mr. Kristian White ("Mr. White"), the newly hired (seven weeks before trial) building inspector and zoning enforcement official for the Town, testified on behalf of the ZBA. Seventeen exhibits were marked in evidence and a view was held on October 20, 2020. On November 9, 2020, Plaintiff's Post-Trial Brief ("Plaintiff's Brief") and Defendants' Requested Findings Of Fact And Rulings Of Law ("Defendants' Brief") were filed and thereafter reviewed by the court.

For the reasons set forth below, this court finds that the ZBA employed an improper legal standard in considering the Application and that no rational view of the facts would support the conclusion that the Application failed to meet one or more of the relevant criteria found in G. L. c. 40A or the Town's Zoning Bylaw ("the ZBL"). Accordingly, the Decision will be ANNULLED and this matter REMANDED to the ZBA with instructions to approve the Application.

FINDINGS OF FACT

Based on the pleadings, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent that any witness testified otherwise, I do not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Property

Mr. Denny and his wife, Mona Daisey Denny, are the owners of the Property by virtue of a deed dated December 28, 2012 and recorded in the Norfolk County Registry of Deeds at Book 31012, Page 547. Ex. 2; Ex. 16 at ¶ 1. The Property consists of 27,548 square feet of land and has 100 feet of frontage on Harold Street. Ex. 16 at ¶ 5. It contains a single-family home, id. at ¶ 3, that, according to the assessors' records of the Town, was constructed in 1954. Id. at ¶ 4. As shown on the survey plans in the record, slightly less than two-thirds of the lot, at the rear, consists of wetlands. Exs. 4, 10.

The Property is located in the Rural 2 Zoning District established by the ZBL. Ex. 16 at ¶ 20; see Ex. 12. It is also located in the Surface Water Protection District, and a portion of its front yard is in the Groundwater Resources Protection District. Ex. 16 at ¶¶ 6, 20; Ex. 5. The home is a pre-existing nonconforming structure with respect to the dimensional requirements of the ZBL. Ex. 16 at ¶ 21.

The 2013 Renovation

At the time that Mr. Denny and his wife acquired the Property, it contained a one-story ranch-style home with a deck off the rear of the home. See Ex. 8A. Mr. Denny retained a lawyer and a builder to undertake the necessary design and permitting work to construct a second story on, and expand the deck at the rear of, the existing house. The plans for the deck expansion show it nearly doubling in width along the rear of the home, with the addition of 10 feet, but not encroaching any further toward the wetlands at the rear of the lot than the pre-existing deck. Ex. 10. The plans also show a stairway from the deck down to the rear yard and piers and posts to support the deck addition. Ex. 11. In 2013, the ZBA granted a special permit to Mr. Denny to allow that structural expansion of a pre-existing nonconforming structure on a pre-existing nonconforming lot. Ex. 16 at ¶ 9; Ex. 9. In its decision, after noting that the Property was in the Rural 2 Zoning District and within the surface water and groundwater protection districts, the ZBA made the following finding:

The Zoning Board of Appeals hereby finds, in accordance with Section 6412 of the Zoning By-Law, (i) that the Premises is an appropriate location for the proposed structural expansion and reconstruction of a nonconforming structure on a nonconforming lot as it is within a residential neighborhood; (ii) that the proposed structural expansion and reconstruction of a nonconforming structure on a nonconforming lot will not adversely affect the neighborhood; (iii) that there will be no nuisance or serious hazard to vehicles or pedestrians since the proposed structural expansion and reconstruction of a nonconforming structure on a nonconforming lot will not result in increased traffic; and, (iv) that the proposed use of the Premises as a single-family residence will remain the same after the proposed structural expansion and reconstruction of a nonconforming structure on a nonconforming lot.

Ex. 9. The ZBA further found that the Dennys' proposed renovation "is in harmony with the general purpose and intent of the Zoning By-Law since it will have no adverse affect on the conservation of natural resources, will enhance the land and buildings at the Premises and will enhance the use of the Premises as a single-family two bedroom residence." Id.

Mr. Denny timely completed all work authorized by the ZBA in 2013. Ex. 16 at ¶10. The deck, as enlarged pursuant to that authorization, is 14 feet by 22 feet, or 308 square feet. Id. at ¶11.

Although no plans or permit applications are in the record, Mr. Denny testified at trial that he also rebuilt the septic system at the Property during this period, installing a leaching field in the front yard of the Property and a septic tank and timber frame retaining wall at the rear. It is apparent from photographs in the record, see Exs. 8A, 8F-J, and from the view that fill was brought onto the Property to raise the elevation around the septic tank, thus necessitating the installation of the retaining wall to hold the fill in place. According to Mr. Denny, the elevation and retaining wall in his rear yard are the same as those of his neighbor. There is now an approximately five-foot drop in elevation between the backyard at the retaining wall and the pre existing grade beyond it. See Ex. 4. There is also an approximately one-foot drop in elevation from the edge of the deck to the retaining wall. Id.

The Deck Enclosure Construction

At some time prior to March 2018, Mr. Denny and his wife decided to enclose the deck. Since moving to the Property, they had learned that there were health issues associated with being outside during mosquito season in Sharon and that it was not wise to do so. All of their neighbors had enclosed decks as a result. [Note 1] In fact, Mr. Denny's wife developed some health issues arising from exposure to mosquitos.

Mr. Denny engaged a designer, Dennis Sarkisian of Design Plus, who prepared plans ("the Building Plans") consisting of 10 sheets dated March 28, 2018 and describing the work variously as "to convert an existing 14' x 22' deck into a 4 season sun porch" and as a three season porch sufficiently insulated to allow for the addition of heat in the future. Ex. 6, Sh. G 6.1. The Building Plans show that the existing deck was 7 feet 10 ½" inches above the finished grade of the rear yard (sh. A-2.1) and supported by posts on concrete piers (sh. A-1.3). Id. The Building Plans contemplated the addition of eleven piers: six 12" piers, two 8" piers, two 22" piers and one 24" pier (sh. A-1.3). Five of the new piers would be under the centerline of the deck, one at the landing at the top of the stairs, and five under the outer edge of the deck (sh. A 1.3). Id. The Building Plans call for the piers to be a minimum of 48" below the finished grade on undisturbed soil (sh. A-3.1).

After obtaining the Building Plans, Mr. Denny engaged a contractor who had worked on his 2013 renovation as a subcontractor, one "Junior" Prates, to undertake the deck enclosure when Mr. Prates was available to do so. In early 2019, Mr. Prates had time in his schedule and told Mr. Denny that he would "pound it out." Mr. Denny did not inquire of Mr. Prates whether he had obtained the necessary permits for the work. During the course of construction, an issue arose regarding the insulation to be used (the plans called for closed cell foam but Mr. Prates was proposing to use different insulation), as a result of which Mr. Denny consulted with an insulation contractor. After a site visit, the insulation contractor told Mr. Denny that he would speak with the Town's building inspector to see what insulation was acceptable and Mr. Denny agreed to his doing so. Representatives from the Town arrived at the Property the next day (from Exs. 13 and 15, this appears to have been January 16, 2019) and Mr. Denny first learned that there were no permits in place for the work. A "stop work order" was affixed to Mr. Denny's door.

Mr. Denny immediately called Mr. Prates, who did not return his call. Mr. Denny later learned that Mr. Prates had not renewed his contractor's license since 2017. The Conservation Administrator, Gregory E. Meister ("Mr. Meister"), sent Mr. Denny a "Violation Notice" on January 16, 2019, stating that the construction at the Property was being done without notice to or the approval of the Town's conservation commission, and directing that the work be suspended. Ex. 13. On the same date, Mr. Denny spoke with the Town's building inspector, then Joseph Kent ("Mr. Kent"), acknowledging his mistake in proceeding without the necessary permits. See Ex. 15. Mr. Kent issued a "stop work" order on February 5, 2019 (how this relates to the "stop work" order affixed to Mr. Denny's door is not clear in the record). Ex. 14. Mr. Denny wrote to Mr. Kent thereafter, again acknowledging his mistake, and informed Mr. Kent that Mr. Denny had retained a lawyer and a wetlands expert to prepare the necessary plans and obtain the necessary approvals. Mr. Denny reinforced that he was not hiring a lawyer to fight the Town, but to assist Mr. Denny in the permit process. Ex. 15. Mr. Denny did not appeal the building inspector's enforcement order.

Permitting For The Deck Enclosure Construction

Mr. Denny retained Oxbow Associates, Inc. and, more particularly, Mr. Shuster, to advise him regarding wetlands at the Property. Mr. Shuster holds the title of Environmental Scientist II, in which position he undertakes the delineation of wetlands based on observations of soil and vegetation. He has a degree from Brandeis University in biology and psychology and has had subsequent training in soil science and botany. He has twelve years of experience, the last four and one-half years at Oxbow Associates, Inc.

With respect to the Property, Mr. Shuster visited the site twice, once on April 23, 2019 to delineate the wetlands at the rear of the Property, see Ex. 3, and once in September 2020 to corroborate his findings and refresh the flags previously placed by him along the wetlands line. Mr. Shuster described the area to the rear of the Property as a "forested wetland" with no streams or intermittent streams but with standing water seasonally. After his initial delineation, a surveyor came to the Property to make measurements and then prepared a plan showing the location of the wetland delineation. See Ex. 4, plan entitled "Proposed Addition #40 Harold Street Sharon, Mass. Prepared For Rajiah Denny Scale 1" = 40' May 2, 2019 Arthur F. Borden & Associates, Inc. Professional Land Surveyors & Civil Engineers #302 Broadway - Unit #4 - Raynham, Massachusetts 02767" ("2019 Plan").

In addition to delineating the wetlands for the 2019 Plan, Mr. Shuster prepared a report dated May 21, 2019 and entitled "Wetland Resource Site Evaluation" ("the Report"). See Ex. 3. After describing the condition of the Property, including the soils and vegetation undergirding his conclusions regarding the delineated wetland area, Mr. Shuster recommended that the staff of the Town's conservation commission be contacted to open a dialogue with the aim of gaining approval for recent and future construction at the Property, i.e., the deck enclosure. In conclusion, Mr. Shuster stated:

From Oxbow's standpoint, we are confident that the deck addition to your house (either the work that has taken place thus far or the completion of the project - roof installation) will not result in any measurable deleterious impacts to the interests of the MA Wetlands Protection Act (MGL, Ch. 131 § 40) and its regulations (310 CMR 10.00), given the envelope of work is entirely within historically altered area (the yard). While the pre existing configuration of the lot itself (and the location of the deck) is nonconforming with regards to the Sharon Wetland Protection Bylaw (Ch. 262) and the Rules and Regulations of the Sharon Conservation Commission (which presumes significance of the 100-foot Buffer Zone to the Resource Area and stipulates a 25 to 50 foot No Disturb Setback), [Oxbow] believes this presumption can be overcome based on our site observations and factoring in appropriate mitigation in tandem with the proposed activity.

Ex. 3.

By letter dated July 29, 2019, Mr. Denny's counsel filed the Application pursuant to the ZBL, § 6412, and G. L. c. 40A, § 6, "to alter and expand a pre-existing nonconforming single family dwelling located on a pre-existing nonconforming lot, by constructing an addition within the footprint of the existing, attached rear deck." Ex. 3. The application package also contained, among other things, the Building Plans, the 2019 Plan and the Report.

The ZBA opened the hearing on the Application on August 28, 2019, continued it to September 11, 2019 and then September 25, 2019, on which date it was closed at Mr. Denny's request. According to Mr. Denny, all his neighbors were supportive of the Application and none appeared at the hearing to oppose it. In addition to the materials filed by Mr. Denny with the Application, the agent for the Town's board of health and the Town's Conservation Administrator, Mr. Meister, submitted memoranda. The ZBA voted 1-2-0 to disapprove the Application. In its Decision dated October 9, 2019, Ex. 7, the ZBA made the following findings: (1) the Property, at 27,442 square foot lot size, did not conform with the 80,000 square foot lot size required in a Rural 2 Zone, so the home was a pre-existing nonconforming structure subject to § 6412; (2) the home was built in 1954 and is a single-family home; (3) the current house has 2,457 square feet of living area and the enclosure of the existing 14 x 22 deck would add 308 square feet; (4) the applicant had not met the requirements of §§ 6412.a and 6412.b of the ZBL; (5) the proposed expansion would increase the degree of nonconformity; therefore, it will be substantially more detrimental to the neighborhood than the existing structure; and (5) the proposed addition would have an adverse effect on the conservation of natural resources due to the encroachment of additional living space within the surface and groundwater protection districts. [Note 2] The Decision was filed with the Town's clerk on October 10, 2019.

Thereafter, Mr. Shuster contacted the Conservation Commission Agent to discuss the agent's concerns about Mr. Denny's deck enclosure and had an informational meeting with the members of the conservation commission. Mitigation measures were part of this discussion. According to Mr. Shuster, he was encouraged by them to file a Notice Of Intent with the conservation commission. As part of that process, the 2019 Plan was revised on September 14, 2020 ("the 2020 Plan") to reflect more details regarding the various zones affecting the Property (25, 50, 75 and 100 foot wetland buffer zones and the Ground Water Protection District) and to reflect proposed mitigation measures in the form of two 55-gallon rain barrels to capture roof runoff from the gutters on the enclosed deck, a native pollinator garden and the selective control of invasive species in an area immediately adjacent to the wetlands. Ex. 5. The 2020 Plan also noted that "[w]hile there is no significant disturbance of earth associated with the proposed work, a 6" straw wattle is proposed and will be deployed in consultation with the Sharon Conservation Commission." Id. The limits of the work as shown on the 2020 Plan extend approximately 10 feet into the rear yard from the edge of the existing deck. Id.

In his testimony at trial, Mr. Shuster noted that the entire structure at the Property, existing house and deck, is within the 100 foot wetlands buffer and that none of the Property is "undisturbed buffer" except for a sliver of land between the retaining wall and the wetlands. He also noted that the increase in impervious surface area created by enclosing the deck would be de minimis. With one modification (the addition of markers to permanently mark a "do not disturb line" along the wetlands), the conservation commission voted to issue an order of conditions several days before this trial, on October 15, 2020, to allow the work to go forward based on the 2020 Plan.

Relevant Provisions Of The ZBL

As set forth in § 2420, the dimensional requirements of the Rural 2 Zoning District as applied to the Property are:

Minimum lot area - 80,000 sq. ft. per dwelling unit

Minimum lot width - 175 feet

Minimum setback from street - 50 feet from centerline [Note 3]

Minimum setback from side or rear lot lines - 30 feet

Maximum building height - 2 ½ stories and 35 feet

Ex. 1.

Section 4500 of the ZBL governs water resource protection districts. Section 4510a provides that "[t]he purpose of the Groundwater Protection District is to protect the public health by preventing degradation of groundwater that serves as a source or a potential source of the Town's public water supply." Ex. 1. Section 4510b provides that "[t]he purpose of the Surface Water Protection District is to protect the public health, and the aesthetics, health and public enjoyment of the Town's surface water bodies by preventing degradation of these bodies." Id.

Section 6310 of the ZBL governs special permits. In particular, § 6312 sets forth mandatory criteria and § 6313 sets forth optional considerations to be employed by the ZBA in assessing special permit applications, as follows:

6312. The SPGA shall not approve any application for a special permit unless it finds that in its judgment all the following conditions are met:

a. The specific site is an appropriate location for such a use, structure or condition;

b. The use as developed will not adversely affect the neighborhood;

c. There will be no nuisance or serious hazard to vehicles or pedestrians;

d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

6313. In approving a special permit, the SPGA may consider, but is not limited to, the following:

...

d. Limitation of size, number of occupants, method or time of operation or extent of facilities.

...

k. If within the Surface Water Resource Protection District, measures to minimize cumulative impacts on Lake Massapoag and its tributary streams, including consideration of nitrate-nitrogen loadings and other chemicals as specified by state and federal regulations for surface water.

l. If within the Groundwater Resource Protection District, measures to minimize cumulative impacts on municipal water supplies, including consideration of nitrate-nitrogen loadings and other chemicals as specified by state and federal regulations for drinking water.

Ex. 1.

Section 6410 of the ZBL governs nonconforming uses. Sections 6411 and 6412 are applicable here. Section 6411b provides:

No amendment increasing the restrictions on the use of land or structures or the lot area, frontage, width, setback or structure coverage, structure height, parking or other requirements, adopted hereafter, shall apply to structures or uses lawfully in existence or lawfully begun, or, except as hereinafter provided, to any building or special permit issued, before the first publication of notice of the public hearing on such proposed amendment required by MGL c. 40A, § 5, but will apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of any structure and to any alteration of any structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.

Section 6412, entitled "Structural change, alteration or extension" provides:

a. Subsection 6411b notwithstanding:

(1) A nonconforming single- or two-family residential structure may be altered, reconstructed, extended or structurally changed if such alteration, reconstruction, extension or structural change will not increase the degree of nonconformity of such structure;

(2) Nonconforming structures or land may be altered, reconstructed, extended or structurally changed, provided that the nonconforming structure or land is used solely for agriculture, horticulture or floriculture.

b. Subsection 6411b notwithstanding, a nonconforming structure or use shall not be altered, reconstructed, extended or structurally changed except as provided in Subsection 6412a without a special permit from the Board of Appeals, provided that said Board finds that such alteration, reconstruction, extension or structural change is not substantially more detrimental to the neighborhood than the existing nonconforming structure or use. Within defined water resource protection districts, no special permit shall be granted for any alteration, reconstruction, extension or structural change for a nonconforming structure or use without a specific finding by the Board of Appeals that the granting of such special permit will comply with the provisions of Subsections 6312 and 6313 of this bylaw. It shall be the responsibility of the applicant proposing said alteration, reconstruction, extension or change to demonstrate to the Board of Appeals that the granting of such special permit will comply with Subsection 6312 of this bylaw.

Ex. 1.

DISCUSSION

Standard of Review

As 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. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (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). ... After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an "unreasonable, whimsical, capricious or arbitrary" manner. Wendy's, supra at 382, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487, 709 N.E.2d 798 (1999).

This review "typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003).

The Britton court described the first inquiry as "an essentially legal analysis ... to decide whether the board's decision was based on a 'legally untenable ground,' or, stated in a less conclusory form, on a standard, criterion or consideration not permitted by the applicable statutes or by-laws." Britton, 59 Mass. App. Ct. at 73. "Deference is ... owed to a local zoning board because of its special knowledge of 'the history and purpose of its town's zoning by law.'" Wendy's, 454 Mass. 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. "In the main, though, the court determines the content and meaning of statutes and by-laws and then 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." Britton, 59 Mass. App. Ct. at 73.

Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 (1965), Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32 (1991) and Clear Channel Outdoor, Inc. v. Zoning Board of Appeals of Salisbury, 94 Mass. App. Ct. 594 (2018) are examples of cases where the local board applied improper criteria and standards, resulting in the annulment of their decisions. In Tambone, brought under the prior version of the Zoning Act, the local board erroneously based its decision on a misinterpretation of its zoning bylaw (that setbacks were measured from zoning district boundaries, not lot lines) and the board's own failure to find a copy of the previously approved site plan. [Note 4] In Blasco, the local board erroneously granted a special permit allowing the change from one preexisting nonconforming use (gravel removal) to another (demolition landfill) where neither the local zoning bylaw nor G. L. c. 40A, § 6, then permitted such a change. And, in Clear Channel, the local board denied one application for a special permit for a digital billboard while granting another, both of which met the necessary criteria, in order to usurp the Department of Transportation Office of Outdoor Advertising's role in selecting which proposal should be approved.

Once the judge has found the relevant facts and determined that the board has applied the proper criteria and standards, the judge "must then determine, on the basis of the facts it has found for itself, whether the board has denied the application by applying those criteria and standards in an 'unreasonable, whimsical, capricious or arbitrary' manner." Britton, 59 Mass. App. Ct. at 74. See also Shirley Wayside Ltd. P'ship, 461 Mass. at 475 ("After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an 'unreasonable, whimsical, capricious or arbitrary' manner."). According to the Shirley Wayside Ltd. P'ship court,

[t]his stage of judicial review "involves a highly deferential bow to local control over community planning." Wendy's, supra, quoting Britton, supra, at 73. The board is entitled to deny a permit even "if the facts found by the court would support its issuance." Wendy's, supra at 383, quoting Britton, supra at 74. The judge nonetheless should overturn a board's decision when "no rational view of the facts the court has found supports the board's conclusion." Wendy's, supra at 383, quoting Britton, supra at 74- 75. Deference is not appropriate when the reasons given by the board lacked "substantial basis in fact" and were in realty "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312, 296 N.E.2d 220 (1973).

461 Mass. at 475.

Britton is an example of when deference should be paid to the local board. There, the board based its decision to deny a special permit to construct an addition on a nonconforming house on a nonconforming lot in part on aesthetics: the addition would have had a significant adverse impact on the light, views, breezes "and other facets of the waterfront genre in the neighborhood." 59 Mass. App. Ct. at 70. In annulling the board's decision and granting the application, the trial judge found that the proposed addition would not interfere with air, light and breezes, and that its impact on views would be minimal. Id. at 76. The Appeals Court reversed, stating that "[t]he deference owed the board regarding the seriousness or the adverse aesthetic impact the plaintiffs' addition would produce should not have been overridden." Id.

Reduced to essentials, then, the judge agreed that the addition would produce one of the deleterious effects that concerned the board. She disagreed, though, over the extent of that effect. In other contexts, we have held that it is "the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 296 N.E.2d 716 (1973). Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. at 487-488. We have also held that "so long as 'any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced.'" Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. at 356, quoting from S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. at 360.

Britton, 59 Mass. App. Ct. at 76.

The Supreme Judicial Court's decision in Shirley Wayside Ltd. P'ship provides an example of a case where deference to the local board is not appropriate. There, the board denied a special permit to increase the number of units in a mobile home park from sixty-five to seventy-nine units on several grounds, including the traffic impact of the additional units. Notably, the board did not perform its own traffic study or have the plaintiff's traffic study reviewed by its own consultant. Shirley Wayside Ltd. P'ship, 461 Mass. at 472. After hearing from a traffic expert and four lay witnesses about their personal experience with traffic around the mobile home park, the trial court concluded that "the evidence neither shows a heavy amount of traffic currently on Clark Road, nor that the proposed expansion of [the mobile home park] will have much effect on it ..." Id. at 483. The board argued that, because there would be a measurable increase in traffic, it was the board's evaluation of the issue, not the court's, that was controlling. Id. The Supreme Judicial Court rejected that argument, noting that deference to the board's judgment was only appropriate when "reasonable minds could differ on the seriousness of a problem" and that, in the case before it, "no evidence contradicted the judge's finding that the impact on traffic would be de minimis." Id. at 484.

Application To This Case

As instructed by Britton, having made findings of fact, this court's next inquiry is whether the ZBA's decision was based "on a standard, criterion or consideration not permitted by the applicable statutes or by-laws." 59 Mass. App. Ct. at 73. Mr. Denny argues persuasively that it was.

Mr. Denny and the ZBA agree that G. L. c. 40A, § 6, and the ZBL, § 6412, permit alterations to preexisting nonconforming structures if those alterations will not increase the degree of nonconformity of the structure. Plaintiff's Brief at 11; Defendants' Brief at 6. See Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372 , 380 (2019) (G. L. c. 40A, §6, "requires the permit granting authority to make 'an initial determination whether a proposed alteration ... would "increase the nonconforming nature of said structure."'" ... "'If the answer to that question is in the negative, the applicant will be entitled' to a permit to proceed with the proposed alteration."). They also agree that, if the proposed alteration will increase the nonconformity, then the ZBA must further determine whether that proposed alteration is "substantially more detrimental than the existing nonconforming use to the neighborhood." [Note 5] Plaintiff's Brief at 11; Defendants' Brief at 6. Here, the ZBA collapsed these two questions into one, finding that, because Mr. Denny's proposed enclosure of his deck increased the degree of nonconformity of the structure, it would "therefore ... be substantially more detrimental to the neighborhood." Ex. 7. That analysis, which wholly failed to consider the impact of Mr. Denny's project on the neighborhood, was not in accord with the analysis required by the statute and by the ZBL, § 6412b. On that ground alone, the ZBA's decision should be annulled.

Mr. Denny further argues, based on Britton, that this court should order the ZBA to grant the special permit sought by Mr. Denny because "no rational view of the facts ... supports the board's conclusion that [he] failed to meet one or more of the relevant criteria found in the governing statute or bylaw." Plaintiff's Brief at 21, quoting Britton, 59 Mass. App. Ct. at 74-75. According to Mr. Denny, his special permit application meets all the criteria set forth in § 6312 and the relevant criteria in § 6313. The ZBA disagrees, arguing (1) that the proposed alteration, consisting of "year-round living space [Note 6] 14 feet closer to wetland," Defendants' Brief at 8, does increase the structure's nonconformity (a point that Mr. Denny does not dispute) and (2) that Mr. Denny failed to establish at trial that his proposed alteration complied with ZBL §§ 6312(a), 6313(d), 6313(k) and 6313(l). Each section of the ZBL is considered in turn.

Section 6312(a) requires that the ZBA find that the "specific site is an appropriate location for such a use, structure or condition." Notably, of the four criteria that the ZBA must find under § 6312 to approve a special permit application, this is the only one presently challenged by the ZBA. The ZBA argues that Mr. Denny failed to meet that requirement because of the proposed project's location in the 100-foot wetlands buffer and in the water protection districts. As Mr. Denny notes, the ZBA did not rely on (or even mention) wetlands setbacks in its decision. The entity with jurisdiction over encroachments into wetlands buffers, the Town's conservation commission, has now approved Mr. Denny's project with conditions. The project is not within the boundaries of the Groundwater Resources Protection District. To the extent that it is within the boundaries of the Surface Water Resource Protection District, Exs. 7 and 12 and the court's observations at the view establish that there are at least eight homes, Gunhouse Street and a parking lot between the Property and Lake Massapoag. According to the Report and Mr. Shuster's testimony, any additional water runoff created by enclosing the deck would be de minimis. Further, as Mr. Shuster testified, the area behind the Property consists of "forested wetlands." There are no streams and no intermittent streams there, so no waterways emptying into Lake Massapoag that would be reached by runoff from the Property, assuming that runoff was more than de minimis. Based on this evidence, any impact on Lake Massapoag is purely speculative.

In contrast, as Mr. Denny testified and as was observed at the view, several of his neighbors, including his two immediate abutters, have enclosed porches of a similar size attached to their homes. This is plainly an appropriate location for the proposed structure.

Regarding the criteria that the ZBA may, but is not required, to consider set forth in § 6313, the ZBA points to three. The first is § 6313(d), which states that the ZBA may consider "[l]imitation of size, number of occupants, method or time of operation or extent of facilities." The ZBA argues that Mr. Denny failed to show that he considered limiting the size or number of occupants of his proposed enclosed deck given its location in the wetlands buffer and the water protection districts. The observations made regarding § 6312(a) apply equally here: the conservation commission has approved the project with conditions; the project is not within the groundwater protection district; and its impact on Lake Massapoag is purely speculative, rendering further consideration of limits on the size or number of occupants for a proposal to enclose a preexisting deck plainly unnecessary.

Section 6313(k) states that the ZBA may consider "measures to minimize cumulative impacts on Lake Massapoag and its tributary streams, including consideration of nitrate-nitrogen loadings and other chemicals as specified in state and federal regulations for surface water" for properties located within the Surface Water Resource Protection District. The ZBA, which did not consider this in its Decision, argues that Mr. Shuster did not consider the impact of the proposal on Lake Massapoag with the result that no measures were proposed to minimize those impacts.

This argument ignores what it is that Mr. Denny is proposing to do: take an existing 308 square foot deck, with its existing water runoff, and convert it to an enclosed space with de minimis additional runoff. As noted by Mr. Shuster in the Report, "we are confident that the deck addition to your house ... will not result in any measurable deleterious impacts to the interests of the MA Wetlands Protection Act." Ex. 3, Report at 3. Additionally, the project as approved by the conservation commission now includes two 55-gallon rain barrels to capture roof runoff. The ZBA's newly expressed concerns to the contrary, as noted above, any runoff from the Property is not going to go to a stream that empties into Lake Massapoag.

Finally, § 6313(l) provides that the ZBA may consider "measures to minimize cumulative impacts on municipal water supplies, including consideration of nitrate-nitrogen loadings and other chemicals as specified by state and federal regulations for drinking water" with respect to projects located in the Groundwater Resources Protection District. This provision was also not considered by the ZBA in the Decision and ignores the fact that the proposed deck enclosure is not in the Groundwater Resource Protection District. See Ex. 5. Leaving those issues aside, there is no basis in this record for concluding that the de minimis additional runoff created by this project will impact municipal water supplies.

The ZBA's arguments for deferring to the ZBA's discretionary authority to deny Mr. Denny a special permit ring hollow. The ZBA did not offer evidence to support its position at trial and, as a result, its arguments are not supported by the record. Compare Wendy's, 454 Mass. at 389 ("The board had the opportunity, but failed to present any contrary evidence."). The proposal calls for relatively minor work in a backyard that has already been substantially altered, not just by the original expansion of the deck but also by the installation of a septic tank and the trucking in of sufficient fill to bury the tank and increase the elevation of the backyard by five feet, all in an area much closer to the wetlands delineated by Mr. Shuster then the proposed deck enclosure under consideration here. Although Mr. Denny certainly should not have commenced the work before obtaining the necessary permits, he immediately acknowledged his error and retained the necessary professionals to seek those approvals. See Ex. 15. There is also some suggestion that Mr. Denny (who has a doctorate in chemistry, is obviously of Asian descent and speaks with a slight accent) was not treated in the manner that one would expect from a public official. Mr. Denny testified that Mr. Kent "yelled at him" for half an hour when Mr. Denny spoke with Mr. Kent by telephone about the project, which accords with Mr. Denny's description of the conversation in a subsequent letter to Mr. Kent. Ex. 15.

Because the ZBA agrees that this project meets three of the four criteria set forth in § 6312 for approving a special permit, because this court has found that the project meets the fourth criterion, because the project is of limited scope in an area that has already been substantially altered with the necessary Town approvals, and because the project is substantially similar to already existing structures in the immediate neighborhood, this is one of those rare cases where no rational view of the facts would support a denial of Mr. Denny's special permit application. Accordingly, rather than annul the ZBA's decision and remand this matter to the ZBA for reconsideration of the Application applying the appropriate standard, this court will instead annul the Decision, remand the matter and instruct the ZBA to approve the Application.

CONCLUSION

For the foregoing reasons, judgment shall issue consistent with this memorandum of decision ANNULLING the Decision and REMANDING this matter to the ZBA with instructions that it grant the Application.