Britton v. Zoning Board of Appeals of Gloucester

• Decision Date: 26 August 2003
• Docket Number: No. 01-P-1145.,01-P-1145.
• Citation: 794 NE 2d 1198,59 Mass. App. Ct. 68
• Parties: JOHN PAUL BRITTON & another v. ZONING BOARD OF APPEALS OF GLOUCESTER; DOUGLAS J. ROSS, intervener.
• Court: Appeals Court of Massachusetts

59 Mass. App. Ct. 68

794 NE 2d 1198

JOHN PAUL BRITTON & another¹ v. ZONING BOARD OF APPEALS OF GLOUCESTER; DOUGLAS J. ROSS, intervener.²

No. 01-P-1145.

Appeals Court of Massachusetts, Essex.

February 12, 2003.

August 26, 2003.

Present: CYPHER, MASON, & McHUGH, JJ.

Linda T. Lowe for the defendant.

Stephen E. Meltzer for the intervener.

J. Michael Faherty for the plaintiffs.

McHUGH, J.

Concern about precedent and aesthetics led the Gloucester zoning board of appeals (board) to deny the plaintiffs' application under G. L. c. 40A, § 6, for a special permit to build an addition to their nonconforming single-family house on their nonconforming lot. The plaintiffs appealed to Superior Court where, after trial, judgment entered annulling the board's decision and granting their application. The board, joined by an intervener, appeals. We reverse.

Many facts found by the judge after trial were congruent with those recited in the board's opinion. The plaintiffs own a single-family home on the water in the "Rocky Neck" section of Gloucester. Rocky Neck, as the judge's findings described it,

"is a small peninsula which juts out into Gloucester Inner Harbor. Rocky Neck provides breathtaking views of the sea, the outer harbor, the inner harbor and the City of Gloucester. Painters from John Singer Sargent to Winslow Homer have worked in this area. Rocky Neck is home to a vibrant artists colony, described by some as the nation's oldest continuously operating art colony.... But this artists colony is not all which exists on Rocky Neck. There is a significant residential area as well. This includes the neighborhood in which the plaintiffs and the interveners live. The neighborhood in question here is no artists colony and is not a grouping of similarly designed and built waterfront homes. To the contrary, as this Court's view confirmed, this neighborhood has a number of different types of homes: some single story, some multistory. There is no one type of architecture, with the houses ranging from typical `New England' style waterfront cottages to modern `California' style homes."

The plaintiffs' lot is approximately 4,000 square feet, about one-half of the minimum lot size the current Gloucester zoning by-law requires. All but about 1,000 square feet of the lot is below the line of mean high water and much is below mean low water. In its current configuration, the house sits six feet from the right side lot line and three feet from the left, giving substantially less clearance than the ten feet the by-law requires. Although the front yard setback requirement is twenty feet, the front of the house is inches from the front lot line. Approximately one-half of the plaintiffs' house is built on pilings that extend seaward of mean high water.

The plaintiffs' application sought permission to erect an eight-foot high second-story addition on the landward half of the house. The addition would accommodate a new master bedroom, a full bath, a small alcove and a new stairway in an exterior shaft. The shaft would extend beyond the current footprint of the house into the right-yard setback but not farther than another portion of the house already extends.

The board and the judge differed on the impact on the neighborhood the plaintiffs' proposed addition was likely to have. In the board's view, given the neighborhood's character,³ the detrimental impact of the plaintiffs' proposed addition would be substantial. As the board explained,

"on paper and even by model the proposal looks like an apparently modest addition. The fact is, however, that it would add almost a third in volume to the house, double the size of the portion of the house on the uplands, and increase the height at the road by at least eight feet. This is a substantial addition to a house of this size, location and lot area usage. And the height addition is at the road side, which can create, if the road were to widen as it could in the future,⁴ a serious blockage and tunneling effect which the Board has been concerned about in other parts of Rocky Neck. And such a height and width addition extended out toward the water would have a significant adverse impact on light, views, breezes and other facets of the waterfront genre in the neighborhood."

The board also found that granting the permit would have an adverse precedential effect because it would "raise the specter of the residential shoreline becoming a series of two and three story houses on tiny lot after tiny lot both in this locality and further" down the street on which the plaintiffs live.

The judge, however, found that the expansion would "not create any additional noises or odors and will not interfere with the air, light and breezes currently enjoyed by neighbors." She did find that the addition would affect views but, because the plaintiffs' house was lower than upland houses, there would be "minimal, and in some cases, no intrusion on people's views of the Harbor.... The partial second story will only minimally change the appearance of the plaintiffs' house to upland neighbors but will certainly not block anyone's view entirely, cast shadows on other lots, or otherwise operate to the detriment of the neighboring homes." The judge summed up by finding "that the proposed addition is a modest, tasteful expansion which is completely consistent with the tone and character of the neighborhood. There is nothing about it which will have a detrimental impact on the neighborhood. The addition will have a nonexistent impact on most of the neighbors' waterviews or minimal at best."

The judge's factual findings led her to "part company" with the board on the question whether the proposed addition would be "substantially more detrimental than the existing nonconforming structure ... to the neighborhood." Traveling her separate path, the judge concluded that the plaintiffs' "minor addition" would not adversely affect the neighborhood "except in the most minimal sense." Although stating that the precedential effect of granting the permit was, as a general proposition, a matter for legitimate concern, the judge concluded that "the modest nature of the plaintiffs' proposed addition" obviated that concern in this case. On the basis of her findings and conclusions, she ordered, as noted, that judgment enter annulling the board's decision and granting the plaintiffs' permit application.

We begin our discussion by observing that expansion of nonconforming uses and structures is governed by G. L. c. 40A, § 6. When applications for expansion of residential structures are at issue, the statute requires a two-step analysis. Step one focuses on whether the proposed addition or expansion will increase the structure's nonconforming nature. If the answer is no, the applicant is entitled to build. If the answer is yes, the applicant may build only if he or she obtains a special permit issued by the permit granting authority upon a finding that the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53, 55-56 (1985). Goldhirsh v. McNear, 32 Mass. App. Ct. 455, 460 (1992).

In this case, both the judge and the board agreed that the plaintiffs' proposal would increase the nonconforming nature of the house both because of its increased height and because the new stairway shaft would extend beyond the existing footprint into the right setback area. See Fitzsimonds v. Board of Appeals of Chatham, supra at 57; Goldhirsh v. McNear, supra at 461. Accordingly, both the board and the court proceeded to the second step and considered whether the addition would be substantially more detrimental to the neighborhood than the existing nonconforming structure.

In considering the question of substantial detriment, the board, of course, engaged in the fact finding it deemed appropriate and based its affirmative answer to the question of detriment on the facts as it perceived them. Thereafter, on appeal, the court was required to engage in a process that was in part deferential to the board and in part not. We recently described that process in some detail in Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355-356 (2001), and shall not repeat the discussion in all of its fullness here. In summary, though, the board's decision is the point of departure for the court's review. See S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 359 (1976). In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found. See G. L. c. 40A, § 17; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954); Anderson v. Planning Bd. of Norton, 56 Mass. App. Ct. 904, 905 (2002). See generally Swan v. Justices of the Superior Ct., 222 Mass. 542, 548 (1916). In the end, the court must affirm the board's decision unless it finds that denial of the application was "based on a legally untenable ground, or was unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). See G. L. c. 40A, § 17. See also Parrish v. Board of Appeal of Sharon, 351 Mass. 561, 568 (1967); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. at 355.⁵

Those principles are familiar. Nevertheless, their application is sometimes difficult because to describe the scope of judicial review does not, by itself, always provide guidance regarding the kind and degree of discretion the board possesses in a given case and the consequent deference the court must give to the board's denial decision. The difficulty can be reduced by recognizing that judicial 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.

As for the first inquiry, an essentially legal analysis is required...