WOJCIK v. LOVETT

No. 16-P-1326.

JEAN A. WOJCIK vs. JAMES LOVETT & others.

Appeals Court of Massachusetts.


Attorney(s) appearing for the Case

David A. Wojcik, Esquire , for Jean A. Wojcik, Plaintiff-Appellant.

Blaise P. Berthiaume, Esquire , Damien D. Berthiaume, Esquire , for James Lovett, Defendant-Appellee.

Damien D. Berthiaume, Esquire , Shirin Everett, Esquire , John J. Goldrosen, Esquire , Blaise P. Berthiaume, Esquire , Amy E. Kwesell, Esquire , for East Brookfiled Zooning Board of Appeals, Defendant-Appellee.

Shirin Everett, Esquire , John J. Goldrosen, Esquire , Amy E. Kwesell, Esquire , for John Couture, Defendant-Appellee.

By the Court (Blake, Henry & Shin, JJ.)


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

The plaintiff, Jean Wojcik, owns a single-family dwelling on property abutting the property of the defendants, James Lovett and Lee Ann Lovett (Lovetts). The Lovetts propose to raze an existing seasonal cottage on their property and construct a new, larger single-family dwelling. Wojcik appealed to the Land Court, pursuant to G. L. c. 40A, § 17, from a finding by the East Brookfield zoning board of appeals (board) "that the proposed plans are not more detrimental to the property and the surrounding neighborhood than the current use." Wojcik appeals from the Land Court judge's decision affirming the board's finding. We affirm.

Discussion.

In reviewing a board's decision pursuant to G. L. c. 40A, § 17, "[t]he trial judge makes his [or her] own findings of facts and need not give weight to those the board has found." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012). Although fact finding is de novo, "the decision of a board `cannot be disturbed unless it is based on a legally untenable ground' or is based on an `unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-382 (2009), quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999). We accept the judge's findings of fact "unless they are clearly erroneous," and we "review determinations of law, including interpretations of zoning bylaws, de novo." Shirley, supra at 475, quoting from Wendy's Old Fashioned Hamburgers, supra at 383. We give deference to the board's "reasonable interpretation" of its own zoning bylaw. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass.App.Ct. 921, 923 (1997).

1. Authorization to raze and reconstruct.

Wojcik argues that the proposed razing and reconstruction is not authorized under G. L. c. 40A, § 6, or under the town zoning bylaw. We disagree.

The parties agree that resolution of this case is governed by the second sentence of G. L. c. 40A, § 6, inserted by St. 1975, c. 808, § 3, which allows extension or alteration of preexisting nonconforming structures or uses only upon a finding by the permit granting authority that such change is not "substantially more detrimental than the existing nonconforming use to the neighborhood."2 The Lovetts sought and obtained such a finding by the board. After notice and public hearing, the board found "that the proposed plans are not more detrimental to the property and the surrounding neighborhood than the current use."

Wojcik argues that the language of the statute and the bylaw only authorizes extension or alteration of a nonconforming structure, not the razing and reconstruction proposed by the Lovetts. Wojcik contrasts the language of the second sentence with the "second except clause" in the first sentence, which provides an exception to the application of a zoning ordinance or bylaw "where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure."3 Wojcik argues that because "reconstruction" is specified in this clause but omitted from the second sentence, such reconstruction is not authorized by the second sentence.

Despite the "`difficult and infelicitous' language of the first two sentences of G. L. c. 40A, § 6, as they pertain to single or two-family residential structures," Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass.App.Ct. 331, 336 (2011), quoting from Fitzsimonds v. Board of Appeals of Chatham, 21 Mass.App.Ct. 53, 55 (1985), the second sentence of this section has been repeatedly applied to the razing of existing structures and construction of new residences. See, e.g., ibid.; Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass.App.Ct. 539, 547-553 (2014). Accordingly, we conclude that the Lovetts' proposed razing and reconstruction project is authorized by G. L. c. 40A, § 6.

The town bylaw similarly provides that "pre-existing non-conforming structures or uses may be extended or altered when the [b]oard of [a]ppeals makes a finding as designated by the bylaw that such change, extension or alteration is not substantially more detrimental than the existing non-conforming use is to the neighborhood."4 The language of the bylaw closely tracks the language of the second sentence of G. L. c. 40A, § 6, which may provide additional guidance in interpreting the meaning of the bylaw. See Plainville Asphalt Corp. v. Plainville, 83 Mass.App.Ct. 710, 713 (2013) ("[W]e are guided by the corollary principle that statutes or bylaws dealing with the same subject should be interpreted harmoniously to effectuate a consistent body of law"). In making its finding, the board implicitly interpreted the bylaw to allow razing and reconstruction on the Lovetts' property upon a finding that the change was not substantially more detrimental. We conclude that the board's interpretation of the bylaw was reasonable, and that the Lovetts' proposed reconstruction, upon the board's finding that the change is not more detrimental, is authorized by both the bylaw and G. L. c. 40A, § 6.

The cases on which Wojcik relies are not to the contrary. In Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795, 796 (2015), the Supreme Judicial Court addressed the first sentence of G. L. c. 40A, § 6, not the second. It also holds that a party cannot bootstrap off a variance for a nonconforming structure to increase the nonconformity. In Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass.App.Ct. 165, 168-169 (1996), this court determined, relying on the first sentence of § 6, that the first paragraph of that section permitted reconstruction. Moreover, there the issue was the plaintiff's ability to rebuild a nonconforming structure that had been razed twenty-three years in the past where the record insufficiently explained the nature of the abandonment of the nonconforming use. Angus v. Miller, 5 Mass.App.Ct. 470 (1977), also is distinguishable because it involved the interpretation of provisions in a town bylaw which allowed a structure to be "enlarged" but to be "rebuilt" only if damaged or destroyed.

2. Statement of reasons.

Wojcik argues that the board was required under G. L. c. 40A, § 15, to make detailed findings as to the reasons for its decision that the Lovetts' reconstruction project would not be more detrimental than the existing structure is to the neighborhood. The town bylaw differentiates between special permit procedures (c. 40A, § 7) and procedures for obtaining a finding pursuant to G. L. c. 40A, § 6 (c. 40A, § 5). Nothing in § 5 of the bylaw requires that the board make such detailed findings, and the fact that a § 6 finding is to be made by the board, which is also the special permit granting authority, does not convert such a § 6 finding into a special permit requiring such detailed findings. See Osberg v. Planning Bd. of Sturbridge, 44 Mass.App.Ct. 56, 59 (1997) (board not obligated to utilize special permit procedures for site plan review where "the by-law, by utilizing separate chapters, clearly differentiates between processing of applications for site plan review and applications for special permits"). For this reason, and substantially for the reasons discussed in the Land Court judge's ruling at pages twelve through fourteen, we conclude that the board's findings were adequate.

3. Sufficiency of the evidence.

Wojcik argues that, as a matter of law, the Lovetts did not produce sufficient evidence to support their contention that replacing the cottage on their property with a larger year-round dwelling would not be substantially more detrimental to the neighborhood. Wojcik's primary argument is that there was insufficient evidence that Bennett Street, which encroaches on and provides access to the Lovetts' property, could safely accommodate construction and year-round traffic.

The Land Court judge was entitled to make his own findings. See Shirley, 461 Mass. at 474. The judge made detailed findings based on the evidence, including testimony from the parties and a view of the properties. The judge found it "unlikely that any additional danger would be created to Bennett Street by a few new vehicular trips per day, and such a conclusion is certainly not compelled by this evidence." The judge also credited Mr. Lovett's testimony that if necessary, he would repair the road.5 The judge's findings were supported by the facts and not clearly erroneous.

Conclusion.

We conclude that the town bylaw and G. L. c. 40A, § 6, authorize the razing and reconstruction of the Lovetts' residence upon a finding that the change is not more detrimental than the current use; that the board made adequate findings in its decision; and that the judge did not err in affirming the board's decision.

Judgment affirmed.

FootNotes


1. Lee Ann Lovett; Theodore A. Boulay, Lawrence Gordon, and Mark Morin, as members of the East Brookfield zoning board of appeals; John Couture, as East Brookfield building inspector/building commissioner; and the town of East Brookfield.
6. The panelists are listed in order of seniority.
2. The second sentence of § 6 states in full: "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."
3. The Lovetts do not dispute that their proposed reconstruction would increase the nonconforming nature of the structure and thus the second except clause does not apply.
4. It is undisputed that the Lovetts' proposed alterations exceed the threshold limits for alterations that may proceed as of right (i.e., without obtaining a finding by the board) under the bylaw.
5. We also note that Wojcik's argument is undermined by the fact that the Lovetts could, as a matter of right under the bylaw and G. L. c. 40A, § 6, choose instead to winterize the existing cottage (within the alteration limits prescribed by the bylaw and statute) and use it as a year-round residence, which would subject Bennet Street to year-round use without requiring a § 6 finding.

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