PETER HALLOCK, EDWIN J. DEADRICK, and MARY ANNE HALL DEADRICK [Note 1] vs. CHATHAM ZONING BOARD OF APPEALS, ROBERT JEFFREY CHANDLER, and JAYNE KERRY CHANDLER

Plaintiffs filed their unverified Complaint on December 31, 2007, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant Town of Chatham Zoning Board of Appeals (the "ZBA") which granted a special permit (the "Special Permit") to Defendants Robert Jeffrey Chandler and Jayne Kerry Chandler (the "Chandlers"). Plaintiffs filed a First Amended Complaint on January 3, 2008, correcting a factual issue. [Note 2] After this court allowed Plaintiffs' Motion to Amend Complaint, a Second Amended Complaint was filed on March 5, 2008, which added a count under G. L. c. 240, § 14A, challenging the interpretation of Section V.B ("Section V.B") and Section IV.A.3 ("Section IV.A.3") of the Town of Chatham (the "Town") Zoning By-law (the "Bylaw"). A case management conference was held on March 5, 2008. The Chandlers filed an Answer to the Second Amended Complaint on March 25, 2008. The ZBA filed its Answer to Second Amended Complaint on March 27, 2008.

The Chandlers filed their Motion for Summary Judgment on May 16, 2008, together with supporting memorandum, Statement of Undisputed Facts, Appendix, and Affidavit of David P. Handren ("Handren"). On June 19, 2008, Plaintiffs filed their Motion to Strike Designated Portions of Affidavit of David P. Handren, Cross-Motion for Summary Judgment, together with supporting memorandum, Affidavits of Peter Hallock, William J. McGovern, Edwin J. Deadrick, David A. Clark, P. E., Theodore P. Steibert, A. I. A., and Peter S. Farber. [Note 3] The Chandlers filed a Reply on July 2, 2008. A hearing was held on all motions on August 18, 2008, at which time all motions were taken under advisement. Subsequently, and with leave from this court, the Chandlers filed a Supplemental Brief on August 25, 2008, and Plaintiffs filed a Further Memorandum on September 8, 2008, both relative to the application of G. L. c. 240, § 14A to the case at bar.

By decision dated November 30, 2009 ("Decision 1"), I found that a) Plaintiffs lacked standing to challenge the Special Permit based on allegations of 1) diminution of private views, as such claims are speculative and do not involve a protected interest under the By-law, and 2) diminution in value, as the Affidavit of William J. McGovern fails to provide credible evidence of particularized harm, and that Plaintiff Peter Hallock ("Hallock") lacked standing to challenge the Special Permit based on allegations of diminution in open space, privacy, and neighborhood character, as Hallock failed to provide credible evidence of particularized harm, and b) Plaintiffs did not have independent standing to challenge the Special Permit pursuant to G. L. c. 240, § 14A.

Plaintiffs appealed Decision 1 to the Appeals Court, and by decision dated August 24, 2011, the Appeals Court, in a 1:28 decision, found that the Deadricks had standing to challenge the Special Permit, and remanded to case to the Land Court for further proceedings on the Deadrick claim. [Note 4] The Appeals Court also held that "the Land Court is without jurisdiction to evaluate the validity of the [Special Permit] under [G.L. c. 240, § 14A]." Accordingly, the only remaining issue before this court is the Deadricks' appeal of the Special Permit pursuant to G.L. c. 40A, § 17.

The parties attended a status conference on February 14, 2012, and there was a discussion as to whether the parties intended to rebrief the merits of the case relative to the Special Permit or rely on the existing briefs. The parties left this decision to this court, and I determined that the Special Permit issues were already fully briefed. As a result, I will rely on the briefs filed for the summary judgment motion.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following material facts are not in dispute:

1. On July 1, 2005, the Chandlers purchased property located at 24 Windmill Lane in Chatham, Massachusetts ("Locus") containing a single-family, one and three-quarter story house with a partially finished basement (the "Old Structure"). [Note 5] Locus contains 29,200 square feet and is located within a residential R-40 district (and also in a Coastal Conservancy ("CC") District). [Note 6] The Old Structure is 19.2 feet high (above an average grade of nine feet), contains 2,161 square feet of living space (excluding the partially finished basement), has a thirty-eight foot front yard setback, a twenty-foot and ten-foot side yard setbacks, 100 feet of frontage, and no buildable upland.

2. Both Locus and the Old Structure are pre-existing and nonconforming under the Bylaw, as under the Bylaw in an R-40 zone, the minimum lot acreage is 40,000 square feet, the minimum front yard setback is forty feet, the minimum side-yard setback is twenty-five feet, and the minimum frontage is 150 feet. In an R-40 zone, the maximum height for a structure in a Coastal Conservancy District is twenty feet.

3. In November 2007, the Chandlers filed an application for the Special Permit pursuant to Section V.B (Enlargement, Extension or Change to Nonconforming Lots, Buildings and Uses) and Section VIII.D.2.b (jurisdiction of the ZBA for the Special Permit) of the Bylaw with the ZBA, seeking to raze the Old Structure on Locus and replace it with a new structure (the "New Structure") containing 2,690 square feet of living space. The New Structure will contain an additional 529 square feet, and the footprint of the New Structure will be twenty-eight square feet larger than the Old Structure. The New Structure will stand at 27.4 feet above average grade and is therefore 8.2 feet taller than the height of the Old Structure. The height of the New Structure results in an additional nonconformity as compared to the Old Structure.

4. The New Structure is shown on plan titled "Site Plan of Land 24 Windmill Terrace, Map 16A, Parcel H2 Chatham, Ma. Prepared for: Handren Bros." dated September 12, 2006 (revised December 8, 2006 and November 1, 2007), prepared by Eagle Surveying, Inc. (the "2006 Plan"). The 2006 Plan depicts that the only areas of the New Structure outside of the existing footprint will be the addition of construction to fill in a twenty-eight square foot "notch" between the Old Structure and attached garage (the "Notch"), two small entrance porches (the "Porches") in the front yard, and two small proposed patios (the "Patios") in the rear. It appears that the Notch, the Porches, and the Patios will not increase the front and side yard setback nonconformities and will not create any new nonconformities.

5. At a public hearing on December 6, 2007, the ZBA voted 4-1 to grant the Special Permit (the "ZBA Decision"). [Note 7] The ZBA Decision stated

The ZBA Decision was filed with the Town Clerk on December 13, 2007.

6. Plaintiffs Edwin J. Deadrick and Mary Jane Hall Deadrick (the "Deadricks") own property located at 121 Morris Island Road in Chatham. The Deadricks' property does not abut Locus, but the Deadricks are an abutter to an abutter (the Saylors) of Locus located within 300 feet as shown on a Town Assessor(s Map. The Deadricks' property is uphill from Locus and to the northwest of Locus and is oriented in a different direction from Locus (east of east by southeast).

7. Locus is primarily in a "velocity zone" as designated by the Federal Emergency Management Agency ("FEMA"), which mandates pilings instead of a foundation. [Note 9] Pursuant to FEMA regulations, any "substantial improvement" to a structure located within a velocity zone must be built on pilings with an elevation above the 100-year flood elevation. [Note 10] In the vicinity of Locus, the 100-year flood elevation is twelve feet above mean sea level. The beams supporting the foundation on the pilings would be one foot in thickness. Accordingly, the base elevation of the New Structure, equivalent to the top of foundation for a conventional house, must be thirteen feet above mean sea level.

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I. Motion to Strike

As a preliminary matter, Plaintiffs moved to strike portions of the Affidavit of David P. Handren ("Handren"), a licensed Construction Supervisor (the "Affidavit"). It should first be noted that this issue has been addressed by this court in Decision 1. In Decision 1, this court DENIED IN PART Plaintiffs' Motion to Strike and ruled that:

With respect to those portions of [the Affidavit] dealing with the position and height of the parties respective houses, the lighthouse, and Locus (¶¶ 21, 25, 29, 37, 38, 41), such statements are admissible as they are relevant statements by the Chandlers' expert that are not inadmissible opinions or offers of settlement.

The Affidavit has an introductory section and is then divided into the following sub-headings: (1) FEMA Requirements, (2)The Proposed New House and Design Changes to Accommodate Certain Neighbors, (3) The ZBA Granted the Special Permit, and (4) None of the Neighbors Will be Harmed by the Renovated House. The only information that is relevant to this Decision is contained in the sections of the Affidavit labeled "FEMA Requirements" (¶¶ 7-12) and "The ZBA Granted the Special Permit"(¶¶ 30-33). [Note 11] With respect to the FEMA Requirements section, this court shall not strike these statements on grounds that such statements are opinions. Rather, this court shall give such weight to these opinions as it deems reasonable based on Handren's qualifications as a licensed Construction Supervisor. [Note 12]

Plaintiffs challenge ¶¶ 30 and 31 of the ZBA Granted the Special Permit section of the Affidavit, which state:

30. The Chatham Board of Appeals held their hearing on the Chandlers' application for a special permit on December 6, 2007. I attended the hearing. The Chandlers and their counsel made a presentation that addressed each of the special permit criteria. Attached is a true and accurate copy of a chart that the Chandlers presented to the ZBA addressing the special permit criteria.

31. The entire hearing focused on whether the ZBA would grant the Chandlers a special permit under Sections IV and V of the Chatham Zoning By-Law. At no time did any member of the ZBA suggest that the Chandlers needed a variance, for increased building height or otherwise.

To the extent these portions of the Affidavit are relevant, they shall not be stricken. Handren attested that he was present at the ZBA hearing on December 6, 2007. As such, he has personal knowledge of the proceedings before the ZBA on that particular night. His statement with respect to the special permit criteria is supported by an Exhibit. Moreover, Handren's statements in Paragraph 31 are general in nature regarding the fact that there was no discussion pertaining to a variance. This court shall not strike these paragraphs as they are not hearsay and are based upon the personal knowledge of Handren.

As such, Plaintiffs' Motion to Strike Portions of the Handren Affidavit is DENIED IN PART, consistent with Decision 1 and the discussion, supra.

II. Validity of Special Permit

A. G.L. c. 40A, § 6

Since standing has already been determined, this court will focus on issues involving the validity of the Special Permit. [Note 13] The Deadricks argue that the Special Permit is not valid because the Chandlers need a variance to allow for the additional height nonconformity. The Chandlers argue that, as a matter of law, the Special Permit was the proper form of zoning relief.

Locus is pre-existing non-conforming with respect to frontage, lot size, front and side yard setbacks, and building coverage. The New Structure will contain an additional 529 square feet, and the footprint of the New Structure will be twenty-eight square feet larger than the Old Structure. It would appear that the lot size nonconformity might be exacerbated by the New Structure, but the Deadricks do not argue this point. See Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) (split decision upholding Land Court decision that reconstruction of larger structure on undersized lot increases lot size nonconformity, thereby requiring a special permit); Bjorklund v. Zoning Bd. of Appeals, 450 Mass. 357 (2008) (upholding Land Court decision that reconstruction of a larger structure on undersized lot increases nonconformity). [Note 14] It appears from the 2006 Plan and from the ZBA Decision that the Porches will not increase or extend the front or side yard setback nonconformities. [Note 15] It is undisputed that the New Structure will result in an additional nonconformity with respect to height. As such, it appears that the only issue is whether a special permit was the proper relief to allow construction of the New Structure with an additional height nonconformity.

Locus is located in the CC District, which results in the application of various building limitations pursuant to the Bylaw. Pursuant to § IV.A.4(d) of the Bylaw, "[n]o person shall construct a residential dwelling unit . . . in the Conservancy District." There are, however, exceptions for pre-existing non-conforming structures located within the CC District. Section IV.A.6(d) provides:

Pre-existing nonconforming structures and uses in a Conservancy District shall be subject to the nonconforming use provisions of Section V of this Bylaw. Any alterations or expansions of preexisting conforming structures and uses shall comply with the Conservancy District regulations set forth herein.... [Note 16]

Section V.B. of the Bylaw, relating to nonconforming structures states:

As provided in Chapter 40A Section 6 MGL, a nonconforming single or two family dwelling may be altered or extended provided that the Zoning Enforcement Officer determines that doing so does not increase the nonconforming nature of such dwelling. For dwellings with setback nonconformities, any addition within the required setback area (including an increase in building height) shall be deemed to increase the nonconforming nature of the dwelling. Such alterations, extensions or changes shall require a Special Permit from the Zoning Board of Appeals.

Other pre-existing nonconforming structures or uses may be extended, altered, or changed in use by Special Permit, provided that the Zoning Board of Appeals finds that such extension, alteration, or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

Section V.B. of the Bylaw clearly implicates G.L. c. 40A, § 6 and the jurisprudence thereunder. G.L. c. 40A, § 6 states in relevant part:

Except 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 any reconstruction, extension or structural change of such structure . . . 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 [structure or] use to the neighborhood.

This court is faced with the question of whether a land owner needs either a variance or a special permit to reconstruct a pre-existing nonconforming structure in a manner that will result in an additional nonconformity. A resolution of this issue requires a careful analysis of both the general principles and the specific facts in relevant appellate level cases. "[U]nder the second 'except' clause of...the statute, as concerns single or two-family residential structures, the permit granting authority must identify the particular respect or respects in which the existing structure does not conform to the requirements of the present Bylaw and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones." Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 , 337 (2011), citing Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21-22 (1987). "If the answer to that question is in the affirmative, a finding of no substantial detriment under the second sentence is required." Gale, supra, at 337; see also Goldhirsh v. McNear, 32 Mass. App. Ct. 455 , 460 (1992); Willard, supra, at 21. At first blush, it appears that this statement in Gale does not distinguish between reconstruction that results in increased existing nonconformities versus creating new, additional nonconformities.

Prior to Gale, in Rockwood v. The Snow Inn Corporation, 409 Mass. 361 (1991), the Supreme Judicial Court (the "SJC") held that "[G.L. c. 40A, § 6] permits extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or Bylaw, and (2) the structures as extended or changes are found to be not substantially more detrimental to the neighborhood..." Id at 364. The SJC further stated, "even as to a single family or two-family residence, structures to which the statute appears to give special protection, the zoning ordinance or Bylaw applies to a reconstruction, extension, or change, that 'would intensify the existing nonconformities or result in additional ones.'" Id at 364 (emphasis added), citing Willard, supra, at 22. Based on the facts presented to it in Rockwood, the SJC held that reconstruction of a pre-existing nonconforming commercial structure, which resulted in the additional nonconformity of lot coverage violation, requires a variance and not a special permit pursuant to G.L. c. 40A, § 6.

In Gale, which was decided twenty years after Rockwood, the owner of a pre-existing nonconforming lot in terms of lot size and various setbacks applied to the permit granting authority for a variance and a special permit to allow for the reconstruction of a new building with (1) a larger footprint, and (2) increased setback nonconformities; however, no new nonconformities were being created. In Gale, the Appeals Court held that reconstruction of a one or two-family pre-exiting nonconforming residential structure requires only a special permit to increase or intensify a pre-existing nonconformity. The Appeals Court noted in Gale:

[T]he language [in Rockwood stating "even as to a single family or two-family residence, structures to which the statute appears to give special protection, the zoning ordinance or Bylaw applies to a reconstruction, extension, or change, that 'would intensify the existing nonconformities or result in additional ones'"] would superficially seem to require adherence to the ordinance in this case..." Gale, supra, at 338.

The Appeals Court then distinguished Rockwood on two grounds. First, it stated that Rockwood involved a commercial structure so the language cited, supra, relating to the second "except" clause (which makes an exception for single and two-family residential structures) of G.L. c. 40A, § 6 was dicta. Second, the Gale court discussed and relied on the SJC's holding in Bransford, supra. In that case, the project proponent sought a special permit to construct a larger structure on the existing footprint of an undersized lot. In Bransford, the SJC held that the larger structure increased the lot size nonconformity, thus a special permit was required (as opposed to a variance or merely a building permit). Accordingly, the Bransford court did not require that the extension of this nonconformity comply with the Bylaw. Relying on this analysis, the Appeals Court in Gale stated, "exterior alterations or reconstructions of single or two-family residential structures that increase or intensify any pre-existing nonconformities may be authorized by [a special permit]." Id. This statement in Gale related only to increasing or intensify pre-existing nonconformities and does not mention creating an additional nonconformity.

As stated, supra, the SJC held in Bransford that an increase to a pre-existing nonconformity requires a special permit (and also a finding that the new structure will not be substantially more detrimental to the neighborhood). Although Bransford and Rockwood appear to be slightly inconsistent [Note 17], the Bransford case clarified the SJC's earlier statement in Rockwood that "[G.L. c. 40A (, 6] permits extensions and changes to nonconformities if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended are found to be not substantially more detrimental..." Rockwood, supra, at 364 (emphasis supplied). It is nearly always the case that an extension or change of a nonconformity is going to remain nonconforming and in fact not comply with the ordinance or bylaw. Such is the basic nature of a "nonconformity."

When presented with different facts in Bransford, however, the SJC held that only a special permit, and the requisite finding of not substantially more detrimental to the neighborhood, is required to increase or exacerbate a non-conformity. Thus Gale properly relied on the holding of the SJC in Bransford. In Gale and Bransford, the Appeals Court and the SJC, respectively, were faced with the issue of an extension to a pre-existing nonconformity and those courts properly limited their final holdings to such circumstances.

In the case at bar, on the other hand, this court is faced with an entirely new, additional nonconformity. Under the predecessor statute to G.L. c. 40A, § 6, the SJC held that a change adding a new nonconformity to a pre-existing nonconforming structure "constitutes a variance from the [zoning bylaw], and must be sought under the variance procedure...and not by a special permit." Wrona v. Board of Appeals of Pittsfield, 338 Mass. 87 , 89-90 (1958). [Note 18] Pursuant to G.L. c. 40A, § 6, the SJC again held in Rockwood that a variance is required to create an additional nonconformity. Moreover, the Land Court has ruled at least twice that any additional nonconformity requires a variance rather than a special permit. In Valentino v. City of Waltham, 18 LCR 66 (2010), the Land Court held:

The addition creates a new setback problem with the north side-yard and creates a new nonconformity because it is a half story larger than permitted in the zone. Therefore, the Plaintiffs are not entitled to the special treatment for single- and two-family structures under the "second exception" clause of G.L. c. 40A, 6.

In Heaphy v. Schier, 13 LCR 398 (2005), the Land Court stated, "the project thus creates a new zoning violation. Such a fact alone provides a sufficient basis to deny the special permit application..." In Rockwood, Valentino, Heaphy, and Wrona, the respective courts held that the addition of a new nonconformity to a pre-existing nonconforming structure required a variance, not a special permit. This court is faced with that very issue; it is not faced with the issue of whether an increase in the degree of an existing nonconformity requires a special permit or a variance. Cf. Gale, supra. Therefore, I find that pursuant to G.L. c. 40A, § 6, with respect to reconstruction resulting in the additional height nonconformity, unless the Bylaw states otherwise, the Chandlers needed to obtain a variance rather than the Special Permit.

B. The Bylaw

The Chandlers argue that even if a variance is required under the statute, Section V.B. of the Bylaw specifically provides for relief via a special permit for any increases in height to a pre-existing structure that is nonconforming with respect to setbacks. As such, according to the Chandlers, the Bylaw provides an alternative zoning relief procedure (via special permit rather than variance) based on how the particularized facts of this case fit neatly within Section V.B. of the Bylaw. See Garcia v. O'Brien, 1992 WL 12151905 (Mass. Land Ct.) (upholding validity of West Tisbury Bylaw that allowed board of appeals to grant a special permit rather than variance for setback and frontage violations). The Chandlers therefore argue that they obtained all necessary zoning relief through the Special Permit.

This court interprets Section V.B. of the Bylaw differently. Section V.B states, inter alia, that "[f]or dwellings with setback nonconformities, any addition within the required setback area (including an increase in building height) shall be deemed to increase the nonconforming nature of the dwelling. Such alterations, extensions or changes shall require a Special Permit from the Zoning Board of Appeals." The Bylaw refers to "an increase in building height" but makes absolutely no mention of an increase in building height in violation of maximum height limitations. Moreover, the Bylaw can be contrasted with the West Tisbury bylaw in Garcia, supra. In Garcia, the bylaw stated that the Board of Appeals may "grant a special permit to build at a location having less than the minimum setback or frontage." In the case at bar, Section V.B. of the Bylaw has no comparable language allowing the grant of a special permit for a structure that is taller than the maximum allowed height. Section V.B. merely makes reference to the necessity of a special permit for any increase in height.

It appears that this Section V.B. means that any addition (including construction that results in increased building height) within a nonconforming setback requires a special permit. For example, if a structure is nonconforming with respect to front yard setback, and there is an addition to the front of the structure, the addition must proceed by way of special permit even if such addition does not exacerbate the front yard setback nonconformity. This concept also applies to an increase in building height within the setback nonconformity that nonetheless complies with the height restrictions in the Bylaw. As stated, supra, however, if the height of the structure results in an additional nonconformity, then the land owner must seek a variance.

Based on the foregoing, I find that pursuant to the Bylaw, with respect to reconstruction resulting in the additional height nonconformity, the Chandlers needed to obtain a variance rather than the Special Permit. [Note 19] [Note 20] As a result of the foregoing, Plaintiffs' Cross-Motion for Summary Judgment is ALLOWED and the Chandlers' Motion for Summary Judgment is DENIED. Judgment to enter accordingly.