Deadrick v. Zoning Bd. of Appeals of Chatham

• Decision Date: 25 June 2014
• Docket Number: No. 13–P–1264.,13–P–1264.
• Citation: 11 N.E.3d 647,85 Mass.App.Ct. 539
• Court: Appeals Court of Massachusetts
• Parties: Sara DEADRICK, & others v. ZONING BOARD OF APPEALS OF CHATHAM, & others

85 Mass.App.Ct. 539

11 N.E.3d 647

Sara DEADRICK¹, & others²

v.ZONING BOARD OF APPEALS OF CHATHAM, & others³

No. 13–P–1264.

Appeals Court of Massachusetts,

Suffolk.

Argued April 2, 2014.

Decided June 25, 2014.

Daniel P. Dain, Boston, for the Robert Jeffrey Chandler & another.

Peter S. Farber for the plaintiffs.

Present: GRASSO, GREEN, & FECTEAU, JJ.

FECTEAU, J.

The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the zoning board of appeals of Chatham (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. In reversing the board's decision, the judge determined that because the proposed new structure's increased height created a new, additional nonconformity, distinct from the pre-existing dimensional and coverage nonconformities, a variance was required. We agree with the judge's decision that a variance would be required if the proposed increase in height constitutes an additional nonconformity not otherwise exempted by the town by-law. However, we also conclude that the judge erroneously concluded that the board had determined that the Chandlers' project is ineligible for the exemption from certain height limits created by § IV.A.3 of the Chatham bylaw.⁴ Consequently, we vacate the entry of summary judgment and remand the matter for further proceedings before the board.

1. Facts. The following undisputed facts are taken from the summary judgment record. On July 1, 2005, the Chandlers purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home (old structure). The old structure was built in approximately 1929 and is located within a residential R–40 district and in a coastal conservancy district. ⁵ The old structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers' property is nonconforming as to lot size and building coverage, and contains additional dimensional nonconformities with respect to its frontage, front yard setback, and side yard setback.

In November, 2007, the Chandlers filed an application for a special permit seeking to raze the old structure and replace it with a new structure. The new structure, as proposed, will contain an additional 529 square feet of living space on substantially the same footprint as the old structure. ⁶ The new structure maintains the same nonconformities as the old structure with respect to frontage, setbacks, lot size, and building coverage. However, the height of the new structure is 27.2 feet above grade and, therefore, exceeds the maximum allowable height of twenty feet in the coastal conservancy district.

Part of this height increase is due to the property's location in a “velocity zone” as designated by the Federal Emergency Management Agency (FEMA), which mandates pilings instead of a foundation. 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. ⁷ The proposed height of the new structure, not including the FEMA foundation, is 23.5 feet above flood elevation.⁸

2. Procedural history. On December 31, 2007, John V.C. Saylor, Georgia A. Saylor, Peter Hallock, Edwin J. Deadrick, and Mary Anne Hall Deadrick filed their complaint appealing from the board's decision to grant a special permit to the Chandlers, pursuant to G.L. c. 40A, § 17.⁹ The plaintiffs filed a second amended complaint ¹⁰ on March 5, 2008, which added a count under G.L. c. 240, § 14A, seeking an interpretation of § V.B and § IV.A.3 of the Chatham zoning bylaws.

Thereafter, both parties filed cross motions for summary judgment. A judge of the Land Court allowed the Chandlers' motion, concluding that the plaintiffs lacked standing to challenge the special permit. However, in Hallock v. Zoning Bd. of Appeals of Chatham, 80 Mass.App.Ct. 1104, 2011 WL 3684698 (2011), an unpublished decision pursuant to rule 1:28 (2011 decision), a panel of this court determined that the Deadricks had standing, and remanded the case to the Land Court.¹¹

On remand, both parties renewed their cross motions for summary judgment. In a decision dated February 21, 2013, the Land Court judge allowed the plaintiffs' motion for summary judgment and reversed the board's decision granting the special permit. The judge reasoned that, since the new structure created an additional nonconformity as to its height, the project required a variance rather than a special permit.

On March 6, 2013, the Chandlers filed a motion for reconsideration, or in the alternative, for a ruling on their pending motion for entry of final judgment, arguing that the 2011 decision of this court had determined the merits of the case favorably to them. On April 9, 2013, the Chandlers also filed a motion under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), seeking relief from the judgment on the basis that the last surviving original plaintiff, Mary Anne Deadrick, had died in July, 2012, resulting in a “gap in the title.” Thus, the Chandlers claimed that the judgment should be vacated and the complaint dismissed for lack of an aggrieved party at the time the judgment entered. In response, Mary Anne Hall Deadrick's daughter, Sara Deadrick Frye (Frye), acting in her capacity as executor of her mother's estate, filed a motion under Mass.R.Civ.P. 17(a), as amended, 454 Mass. 1401 (1982), to be substituted as plaintiff for her deceased mother. On the same day, Sara Deadrick Frye and Mary Anne Hall Deadrick's other children, Stuart Hall Deadrick and Spencer Hall Deadrick (collectively the Deadrick children), appearing in their individual capacities, filed a motion under Mass.R.Civ.P. 20(a), 365 Mass. 766 (1974), seeking to be joined as plaintiffs in this action.¹² The motions for substitution and joinder were allowed on April 30, 2013, but the Land Court judge took under advisement the Chandlers' rule 60(b) motion on the issue of the Deadrick children's standing.

In an order dated June 4, 2013, the judge determined that, because the Deadrick children had some ownership interest in the property from the outset of the dispute, they shared the same harm as their parents. Therefore, the judge concluded the Deadrick children had standing because this court previously had determined that their parents' harm was a basis for standing. In the same order, the judge denied the Chandlers' motion for reconsideration, noting that the 2011 decision was limited to the issue of standing. The judge also rejected the Chandlers' additional argument that § IV.A.3, of the Chatham bylaw, discussed infra, permitted the Chandlers to exceed the applicable maximum height restriction. The judge concluded that the board had determined that the new structure constituted an “expansion” under § IV.A.3 of the bylaw, and therefore was ineligible for its exemption from applicable height restrictions; he also expressed his view that if the board had determined that it was not an expansion, such a decision would be arbitrary and capricious. In any event, the judge ruled that the height exemption provided by § IV.A.3 was inapplicable, so that the new structure's increased height created a new nonconformity requiring a variance.

3. Discussion. “We review the Land Court judge's summary judgment decision de novo. Because the judge does not engage in fact finding in ruling on cross motions for summary judgment, we owe no deference to his assessment of the record.” Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass.App.Ct. 515, 517, 947 N.E.2d 1090 (2011) (footnote and citations omitted). Turning to the merits of the Chandlers' appeal,¹³ we first consider whether the judge correctly decided two issues: (1) whether the board considered the applicability of § IV.A.3 of the bylaw to the new structure, while weighing the Chandler's application for a special permit, and (2) whether the addition of new nonconformities to a pre-existing nonconforming residential structure require a variance or special permit.

On remand after the 2011 decision, the judge properly recognized that the decision was limited to the issue of standing. Specifically, the judge correctly understood that he needed to determine if the board had ruled on the applicability of § IV.A.3 of Chatham's zoning bylaw to the new structure; as he stated: “The first issue is whether the ZBA made a finding as to whether or not the New structure was an expansion of the Old structure.”

Section IV.A.3 of the bylaw exempts certain structures from otherwise applicable height restrictions if FEMA regulations require the additional height. See note 5, supra. Accordingly, if the new structure is not an “expansion” within the meaning of § IV.A.3, then it qualifies for the exemption created by that section from the otherwise applicable twenty foot height restriction. The increased height would not be a new nonconformity, and the Chandlers may proceed under their special permit. However, in denying the Chandlers' motion for reconsideration, the judge concluded that the zoning board had already found the new structure to be an “expansion,” within the meaning of § IV.A.3 and, therefore, confirmed his conclusion that the Chandlers' project required a variance rather than a special permit.

The question of the applicability of § IV.A.3 to the new structure is significant. As discussed below, we conclude that the Land Court judge correctly ruled that the creation of a new nonconformity in a preexisting nonconforming structure requires a variance, and not just a special permit based on substantial detriment pursuant to the second sentence of G.L. c. 40A, § 6. Accordingly, if the new structure is ineligible for the exemption created by § IV.A.3, it requires a variance and the board's decision granting a...