This is an appeal pursuant to G. L. c. 40A, § 17, through which Plaintiff challenges a decision of the Zoning Board of Appeals of the Town of Groton (Board), whose members are Defendants, upholding a January 28, 2009 ruling of the Zoning Enforcement Officer (ZEO) denying a building permit for a residence on Plaintiffs property, located at 284 Whiley Road (Locus). On December 31, 2008, Plaintiff applied for a building permit to demolish the existing house on Locus and replace it with a larger dwelling. The existing house was constructed before Groton adopted its first zoning bylaw in 1956. Locus is a lawful, nonconforming lot that does not meet the Towns current zoning regulations, including those for minimum area and frontage.
In Count I of the Complaint, filed May 1, 2009, Plaintiff argues that reconstruction and alteration of the single-family dwelling on Locus is allowed by right, pursuant to G. L. c. 40A, § 6 (Zoning Act), and § 218-6E (1)-(2) of the Groton Zoning Bylaw (Bylaw). In Count II, Plaintiff seeks a declaratory judgment that G. L. c. 40A, § 6, together with Bylaw § 218-6E (1)-(2), mandates that when a single or two-family residence is reconstructed or altered on a lawful nonconforming lot without increasing the nonconforming nature of the residence, the work is allowed by-right pursuant to a building permit and does not require a variance, special permit, or other finding. Defendants filed an Answer on July 20, 2009, denying Plaintiffs interpretation of the Zoning Act and the Bylaw as they relate to Locus.
On March 14, 2011, Plaintiff filed a Motion for Summary Judgment on Plaintiffs Complaint. Defendants opposed this motion, filing a written opposition on April 12, 2011. A hearing was held August 17, 2011, at which all parties were heard. Plaintiff filed a post-hearing supplemental brief in support of its motion for summary judgment on August 22, 2011, and filed an augmented post-hearing brief on April 10, 2013. For the reasons discussed below, this court rules that Plaintiffs Motion for Summary Judgment is DENIED.
The summary judgment record includes ten exhibits in addition to the parties briefs and submissions filed in compliance with Land Court Rule 4. The following material facts are not in dispute:
1. Plaintiffs decedent, Barney Suslowicz, owned Locus. The Executrix of the Estate of Mr. Suslowicz is Francis Bee, 7 St. Paul Street, Cambridge, Massachusetts. [Note 1]
2. Locus is bounded by Whiley Road, vacant land owned by the Groton Conservation Trust, Duck Pond, and property owned by Judith Anderson.
3. Locus is located within the Residential/Agricultural (R/A) zoning district.
4. Locus is a nonconforming lot because it contains approximately 30,000 square feet rather than the required 80,000 square feet and 175 feet of frontage rather than the required 225 feet of frontage.
5. Locus is improved by a house built during an undetermined year but prior to Grotons first zoning bylaws enacted in 1956.
6. The Nashoba Associated Boards of Health, on behalf of the Groton Board of Health, issued a septic system permit for Locus in February 2006. Grotons Conservation Commission issued an Order of Conditions in 2005, and an extension permit in 2008 for the septic system on Locus.
7. The existing house does not encroach into any setback area nor does it exceed lot coverage requirements, and its height is less than thirty-five feet, the allowed height in the zoning district.
8. Plaintiff filed a building permit application on December 31, 2008, to construct a two-bedroom house on Locus. The footprint of the proposed house will cover 864 feet and exceed the footprint of the existing house.
9. The Bylaw allows maximum lot coverage of 25%. The proposed house would cover less than 25% of Locus.
10. The ZEO denied the building permit application on January 28, 2009.
11. Plaintiff timely appealed the ZEOs decision to the Board, pursuant to G. L. c. 40A §§ 8 and 14, and the Board upheld the ZEOs decision.
12. The Boards decision expressly did not address whether it considers the existing house abandoned, discontinued, or a seasonal residence.
13. G. L. c. 40A, § 6, first paragraph, provides:
[e]xcept as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, . . . but shall 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 such structure and to any alteration of a 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 except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
14. Under the cognate provision of Bylaw § 218-6E (1)-(2):
(1) [a] nonconforming structure or use may be altered or extended, provided that such alteration or extension is in accordance with the applicable intensity regulations or other dimensional requirements of this chapter and does not increase the extent of the nonconformity, and provided further that the Board of Appeals determines by the grant of a special permit that such alteration or extension is not substantially more detrimental to the neighborhood than the existing nonconforming structure or use, except that no special permit is needed if the alteration is to a nonconforming single- or two-family dwelling and said alteration does not increase the nonconforming nature of the dwelling. (emphasis added.)
(2) Alteration, reconstruction, extension or structural change (collectively "alteration") to a nonconforming single- or two-family residential structure shall not be considered an increase in the nonconforming nature of the structure and shall be permitted by right under the following circumstances:
(a) Normal repairs or replacement of parts of any nonconforming structure, provided that such repair or replacement does not constitute an extension of a nonconforming use of such structure.
(b) Alteration to a conforming structure where the alteration will also comply with all applicable sections of the zoning bylaw in effect at the time of building permit application, including, but not limited to, setback, yard building coverage and height requirements, if the existing structure is located on a lot which is nonconforming as the result of a zoning change
(c) Alteration within the existing footprint of a nonconforming structure.
(d) Alteration to a nonconforming structure where the alteration will comply with all applicable sections of the zoning bylaw in effect at the time of building permit application, including, but not limited to, setback, yard building coverage and height requirements. (emphasis added.)
15. Bylaw § 218-22F states:
(1) [a]pplication of amended intensity regulations to previously created lots is limited by MGL C. 40[A], § 6. The following shall apply where less restrictive than the requirements applicable under MGL C. 40A, § 6.
(3) Such nonconforming lots may be changed in size or shape or their land area combined without losing this exemption, so long as the change does not increase the actual or potential number of buildable lots.
16. The proposed house for Locus does not (and cannot) comply with Bylaw § 218-22G which states:
[e]ach lot shall be capable of containing a one-hundred-fifty-foot-diameter circle within which there is no area subject to protection under the Wetlands Protection Act, MGL C. 131, § 40, and within which any principal building shall be located . . . .
* * * * *
This case is before the court pursuant to Plaintiffs Motion for Summary Judgment. Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). This case is ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law.
G. L c. 40A, § 17 states: [a]ny person aggrieved by a zoning board of appeals decision may seek judicial review in the land court. The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. G. L. c. 40A, § 17. As a party denied relief requested from the Board, Plaintiff has standing to appeal the Boards decision.
The court must give a measure of deference to a local boards interpretation of its own zoning bylaws and ordinances. APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000); Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228 , 231 (1992). This deference is due to a local zoning boards special and unique knowledge of the history and purpose of the towns bylaws. Wendys Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999)). The appropriate deference to the board's construction is not, however, without limit. See, e.g., Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). An incorrect interpretation of a zoning provision by a local board of building inspector is not entitled to deference. Shilry Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012). The reviewing court focuses solely on the validity but not the wisdom of the boards action. Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A boards decision will not be overturned unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)).
At issue in this case is whether Plaintiffs proposed replacement and extension of an existing residence located on a nonconforming lot constitutes an alteration allowed by right under Bylaw § 218-6E (1)-(2) and G. L. c. 40A, § 6. Locus is nonconforming in three respects: 1) it has an area of 30,000 square feet instead of 80,000 now required; 2) it has 175 feet of frontage instead of 225 feet now required; and 3) the residence located on Locus is not located within a one-hundred-fifty-foot diameter circle within which . . . any principal building shall be located (Building Envelope), consistent with Bylaw § 218-22G. In fact, Locus cannot support the existence of a 150-foot diameter circle anywhere within its boundaries, and can, at its maximum width, support only an 89-foot diameter circle. Plaintiff concedes that Locus is deficient in these ways and further concedes, as established by the undisputed facts, that the proposed residence will not be located within the footprint of the existing house. [Note 2]
Plaintiffs application for a building permit to the ZEO seeks permission to demolish the existing house and replace it with a new house with a 26-foot by 36-foot footprint. The ZEO denied this application, citing several reasons, some of which relate to the State Building Code, not here in issue. Plaintiff primarily challenges the ZEOs finding that [i]f the original dwelling is going to be demolished (which the application does not specify and would result in the loss of any grandfathering status) a dwelling could not be built without first seeking ZBA variances since the lot does not meet current zoning requirements for building a single family dwelling. Plaintiff argues that the Town of Groton, under Bylaw § 218-6E, allows owners of nonconforming lots to alter, reconstruct, extend or change conforming residential structures located on grandfathered lots by right when the proposed changes conform to all applicable sections of the Bylaw. Plaintiff alleges that substantial changes, even total replacement of a residence, are permitted so long as the new residence complies with current zoning requirements and such changes do not require special approval. Plaintiff further argues that the Bylaw distinguishes nonconforming lots from nonconforming structures and, in this way, is permissibly more liberal than G. L. c. 40A, § 6.
Because the proposed dwelling will, in Plaintiffs view, adhere to all applicable provisions of the current Bylaw and not increase the propertys nonconforming nature, it is allowed by right without the need for a special permit, variance or finding from the Board. Section 218-6E(1) states that no special permit is needed if the alteration is to a nonconforming single- or two-family dwelling and said alteration does not increase the nonconforming nature of the dwelling. Bylaw § 218-6E(2) then lists alterations that are not considered an increase in nonconformity and includes two subsections that differentiate between conforming residential structures on nonconforming lots- § 218-6E(2)(b), and nonconforming structures- § 218-6E(2)(d).
Plaintiff argues that the Town, through these two subsections, distinguishes a nonconforming structure from a nonconforming lot with the intention of providing more relief than that provided in G. L. c. 40A, §6, first paragraph. In essence, Plaintiff argues the current structure is conforming and will remain conforming after replacement; therefore, the nonconforming lot will remain the same with no increase in its nonconforming nature and therefore Plaintiffs proposal does not trigger the need for a special permit under § 218-6E(2)(b). Plaintiff alternatively argues that, even if the existing house is deemed a nonconforming structure, § 218-6E(2)(d) still allows for the replacement structure without a special permit or finding because it will not increase the nonconformity and will comply with all applicable zoning Bylaw provisions.
G. L. c. 40 A, § 6, first paragraph, provides, in relevant part, that a zoning ordinance or bylaw . . . shall apply . . . to any reconstruction, extension or structural change . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. This provision is referred to as the second except clause. See Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 18-19. Interpreting the statutes difficult and infelicitous language has proved challenging, Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55 (1985), especially when faced with the facts presented here: an arguably conforming structure located on a nonconforming lot.
Recent case law has shed light on the proper application of G. L. c. 40A, § 6 under these circumstances. The Supreme Judicial Court declared in Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) (Greaney, J., concurring), that nonconforming structures and nonconforming lots are intertwined and should not be considered separate concepts. Bransford, 444 Mass. at 861. The plaintiffs in Bransford sought to double the size of their family home located on an undersized, nonconforming lot. They argued that this would not change the lots nonconforming nature, that the lot would remain exactly the same and, importantly, that the replacement structure would satisfy all other zoning requirements. Id. at 861. The Court rejected their argument, stating a distinction in treatment between a nonconforming structure and a nonconforming lot is one that analytically and practically should not be made. Id.
Consistent with the concurring opinion in Bransford, the Court held in 2008 that the reconstruction of a single-family residence on a nonconforming lot increases the nonconforming nature of the structure, despite the structures compliance with all dimensional requirements in the towns bylaws. Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 358 (2008). The Court did not distinguish between the conformity of the reconstructed house and the nonconformity of the undersized lot. Subsequent cases continue to apply and reinforce this holding. Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 606 n.8 (2011) (noting that the land court judge properly applied the rulings of Bransford and Bjorklund in determining that a change to the structure triggered G. L. c. 40A, § 6, even though the existing nonconformity related to the lot); see also Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394 , 401 (2012) (stating that, under the Boston zoning code, an increase in the size of an existing structure on an undersized lot could increase the nonconformity, regardless of whether the new structure complied with setback or height requirements). Despite this case law, Plaintiff argues that Groton clearly intended to distinguish between nonconforming lots and nonconforming structures by referring to the two with separate terms throughout its Bylaw. The applicable provisions of the Groton Bylaw were adopted prior to the recent holdings of Bransford and Bjorklund.
Plaintiff points to Bylaw § 218-22F as an example of the towns use of structure and lot as distinct separate terms and as evidence that the Town intended to distinguish between structures and lots. This provision discusses nonconforming lots but does not mention structures or uses, a fact Plaintiff alleges is an implicit attempt to differentiate the two concepts when he states: [t]he clause limited by M.G.L. c. 40A, § 6 in the first sentence [of § 218-22F] must refer to G.L. c. 40A, § 6, [fourth paragraph] because that is the only paragraph in c. 40A, § 6 that limits municipalities powers to regulate lots or that even mentions lots.
In this courts view, Section 218-22Fs omission of the term structure in a provision discussing nonconforming lots does not clearly demonstrate an intent to distinguish structures from lots. It is more likely that these sections refer only to undeveloped lots. The last sentence of the Bylaw section states that nonconforming lots may be changed without losing the protections of G. L. c. 40A, § 6, provided the change does not increase the number of buildable lots. § 218-22F(3). Local bylaws referencing G. L. c. 40A, § 6, fourth paragraph, as Plaintiff contends this provision does, apply only to vacant land. Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 , n.6 (2013) (citing Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 169, n.7 (1996)). The fourth paragraph of G. L. c. 40A, § 6 itself applies only to vacant land or land that was improved with a structure at one time when the applicable bylaw permitted building. Dial Away Co., 41 Mass. App. Ct at 169, n.7. Instead of distinguishing between nonconforming lots and structures, § 218-22F appears to distinguish between developed and undeveloped lots, consistent with c. 40A, §6.
Plaintiff also contrasts Grotons Bylaw with those of Edgartown, at issue in Bransford, and Norwell, at issue in Bjorklund, in an attempt to distinguish this case from the holdings in those cases. The differences in the towns bylaws, in Plaintiffs view, free Groton from the obligations imposed by Bransford and Bjorklund and allow it to treat nonconforming lots and structures differently: Plaintiff argues Edgartown and Norwells zoning bylaws require owners of nonconforming lots or houses to secure findings or a special permit from the Board of Appeals as provided in G. L. c. 40A, § 6 to determine whether the proposed changes are not more detrimental to the neighborhood than the existing structure. (citing Bjorklund, 450 Mass. at 360). Plaintiff further alleges that Edgartown and Norwell require a public hearing and approval from their zoning boards for alterations to residential structures, while Groton allows many alterations by right under § 218-6E, with no need for a special permit, finding or other action by the Board.
Contrary to Plaintiffs assertion, Bylaw § 218-6E is not distinctly unlike the bylaws of Edgartown and Norwell and therefore does not fall outside the holdings in Bransford and Bjorklund. Section 11.9(b) of Edgartowns zoning bylaw states in full:
Where alteration, reconstruction, extension or structural change to a single family or two family residential structure does not increase the non-conforming nature, neither public hearing nor Special Permit from the Board of Appeals is required for said alteration, reconstruction, extension or structural change, provided it conforms to all statutory and By-Law requirements in effect when the work was done.
Bransford, 444 Mass. at 854, n.4 (emphasis added).
If the proposed alteration does not increase a structures nonconforming nature, Edgartown does not require a special permit or public hearing, nor does it require a finding that the alteration will not be more detrimental to the neighborhood. These requirements are not triggered unless the proposed alteration increases the nonconformity or will not comply with the applicable provisions of the zoning By-Law. In that event, Edgartowns permit granting authority may grant a special permit after a public hearing and a finding that there will not be a substantial detriment under Section 11.9(f). Bransford, 444 Mass. at 854, n.5.
Similarly, Section 1642 of Norwells zoning bylaws, at issue in Bjorklund, states in full:
As provided in G. L. c. 40A, § 6, a nonconforming single- or two-family dwelling may be altered or extended provided that doing so does not increase the nonconforming nature of said structure. Other pre-existing nonconforming structures or uses may be extended, altered, or changed in use on Special Permit from the Board of Appeals if the Board of Appeals finds that such extension, alteration, or change will not be substantially more detrimental to the neighborhood than the existing nonconforming use. Once changed to a conforming use, no structure or land shall be permitted to revert to a nonconforming use.
Bjorklund, 450 Mass at 361, n.12 (emphasis added).
As in Edgartown, a special permit and a finding that an alteration will not be a substantial detriment is not required for a single- or two-family structure that will not increase its nonconforming nature.
The bylaws of these two towns are similar to Grotons Bylaw § 218-6E. Section 218-6E(1) states that a single- or two-family dwelling may be altered or extended without a special permit, provided the alteration does not increase the dwellings nonconforming nature. Section 218-6E(2) then lists four circumstances under which alterations will not be considered increases in a structures nonconformity and will be allowed by right. Grotons Bylaw only differs from those of Edgartown and Norwell in that Groton included in Sections § 218-6E (2) (a)-(d) examples of changes which are deemed not to increase nonconformity.
If evaluated solely under G. L. c. 40A, § 6, as informed by Bransford and Bjorklund, the Town of Groton may not distinguish between conforming structures located on nonconforming lots and nonconforming structures. The Bjorklund Court adopted the reasoning and result of the concurring opinion in Bransford, but only to answer the question of whether a proposed reconstruction satisfying all zoning requirements except the minimum lot size increases the nonconforming nature of a structure under G. L. c. 40A, § 6. Bjorklund, 450 Mass at 358, 362. The Court noted that no argument had been presented that a different provision of the towns zoning bylaw may have exempted the proposed reconstruction from the minimum lot size requirement. Id. at 362.
G. L. c. 40A, § 6 establishes minimum protection above which a town is free to provide more generous protection to owners of nonconforming lots and structures. When towns choose to be more generous, the bylaw must do so clearly and expressly. See Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005). Bransford and Bjorklund established that G. L. c. 40A, § 6 does not distinguish between conforming and nonconforming residences on nonconforming lots. When G. L. c. 40A, § 6 fails to provide protection, one is free to argue that the more generous local bylaw in question trumps the Zoning Act, and provides protection. See Marinelli, 65 Mass. App. Ct. at 903 (commenting that [a] municipal zoning codes more generous grandfather provision can indeed trump the grandfather provisions of G. L. c. 40A, § 6. . .); Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 262, n.7 (2003) (noting that where the lot in question enjoys grandfather protection under G. L. c. 40A, § 6, it is unnecessary to consider whether [it] would also enjoy grandfather protection under [the cognate local provision] of the Stoughton bylaw.).
Plaintiff argues that subsections (b) and (d) of § 218-6E (2) provides more generous protection to conforming structures on nonconforming lots than that provided under G. L. c. 40A, § 6. Section 218-6E(2)(b) states an [a]lteration to a conforming structure where the alteration will also comply with all applicable sections of the zoning bylaw . . . including, but not limited to, setback, yard building coverage and height requirements, if the existing structure is located on a lot which is nonconforming as the result of a zoning change will not be considered an increase in the nonconforming nature of the structure. Section 218-6E(2)(d) states an [a]lteration to a nonconforming structure where the alteration will comply with all applicable sections of the zoning by law . . . including, but not limited to, setback, yard building coverage and height requirements also will not be considered an increase in the nonconforming nature of the structure. The only significant difference between the two subsections is the insertion of the phrase if the existing structure is located on a lot which is nonconforming as a result of a zoning change at the end of subsection (b). Plaintiff argues this shows a clear attempt to treat conforming residential structures located on a nonconforming lot differently than nonconforming structures. While that appears to be the case, it does not put to rest the inquiry presented in this case.
Both subsections require that any alterations comply with all applicable sections of the zoning bylaw in effect at the time of building permit application, including, but not limited to, setback, yard building coverage and height requirements. (emphasis added). The proposed house will comply with all dimensional zoning requirements except one: § 218-22G. [Note 3] Plaintiff admits that the proposed house cannot comply with this provision, but maintains that section 218-22G should not be considered an applicable section because it applies to the size and shape of the lot and not to the residential structure located thereon.
The Board disagreed with Plaintiffs assertion that § 218-22G falls outside the reach of all applicable sections of the zoning bylaw. It apparently viewed the building envelope requirement as analogous to a setback or building coverage limitation, and not one related only to computation of area. The Board interpreted this section to apply both to the lot itself (in terms of computation of area) as well as to any structure (in terms of where any structure may be located), stating: [t]he interconnection between the lot and the structure situated thereon is aptly illustrated in § 218-22G of the Bylaws that, for the purpose of computing lot area, each lot must be capable of containing a 150-foot diameter circle within which any principal building must be located. Compliance with this requirement demands reference to both the lot and the location of the principal building on the lot. (emphasis added).
Thus, in the Boards view, regardless of whether Plaintiffs proposed house is considered a conforming structure under § 218-6E(2)(b), or a nonconforming structure under § 218-6E(2)(d), it must still comply with all applicable Bylaw sections, including Section 218-22G. Plaintiffs proposed house therefore must still comply with the 150-foot diameter circle regardless of the subsection under which it falls. This cannot be done because the lot cannot accommodate this provision anywhere within its bounds.
While reasonable minds may differ on the interpretation of the provisions at issue in this action, this court finds and rules that the Board reasonably exercised its judgment in interpreting the phrase all applicable sections of the zoning bylaw to include § 218-22G. Section 218-6E(2) uses broad language that is included in both subsections (b) and (d). In each section, alterations and reconstruction must comply with all applicable sections of the zoning bylaws, including, but not limited to setback, yard building coverage and height requirements. After public hearing, the Board determined that § 218-22G was an applicable section included in the broad language of §§ 218-6E2(b) and (d), and found that Plaintiffs proposed house must also comply with this section in order to proceed by right under a building permit, without applying for and receiving either a special permit.
Accordingly, Plaintiffs Motion for Summary Judgment is DENIED, and, pursuant to Mass. R. Civ. P. 56 (c), Summary Judgment is GRANTED to Defendants. The Boards decision to uphold the Zoning Enforcement Officers denial of a building permit for Locus is AFFIRMED, expressly without prejudice to Plaintiffs ability to apply for a special permit under § 218-6E(1), if he chooses.
Judgment to issue accordingly.
[Note 1] The record does not include any information regarding devisees under the will of the decedent.
[Note 2] The proposed house does not encroach into any setback areas.
[Note 3] This provision, a building envelope requirement, states that each lot be capable of containing a 150-foot diameter circle within which there is no area subject to protection under the Wetlands Protection Act, and within which any principal building shall be located. . .