Maselbas v. Zoning Board of Appeals
Maselbas v. Zoning Board of Appeals
Opinion of the Court
The North Attleborough building inspector granted Jane and William Bowness a permit to build a structure containing a garage and swimming pool. The structure and its use qualified, according to the inspector, as “accessory” to the Bownesses’ existing nonconforming home on the same lot. Edwin Maselbas, owner of an adjacent property, appealed the building inspector’s action to the zoning board of appeals, which upheld it.
The building inspector granted the permit, but Maselbas protested. Indeed, it appeared that such an attached structure, merging with the home, would offend against the by-law provisions that forbade expansion of the nonconforming building and use. See zoning by-law of North Attleborough §§ VII A.1.a., VII B.l.b.
Faced by these difficulties, the Bownesses revised their proposal. The structure was now to be freestanding, not merged with the home (ten feet apart from the home at the closest point), and would enclose a three-car garage and a swimming pool, with unfinished storage space on the second floor above the garage. Gone was the master bedroom and the rest. So disengaged from the home and stripped down, the structure, while retaining the same dimensions of height, length, and width as the original model, appears to fit the definitions of ac
“Accessory Building. A subordinate building located on the same lot with the principal building or use, the use of which is customarily incidental to that of the main building or the use of the land.”
“Accessory Use. A use customarily incidental to that of the principal building or use of the land, and located on the same lot as such principal building or use. Swimming pools shall be considered an accessory use and shall be treated as a structure in regard to setbacks and side yard requirements.”
The terms “subordinate” and “incidental,” as understood in the context, and as elucidated in the decisions interpreting comparable by-law provisions, aptly describe the proposal in its revised form. See Harvard v. Maxant, 360 Mass. 432, 435-440 (1971) (citing a leading case, Lawrence v. Zoning Bd. of Appeals of North Branford, 158 Conn. 509, 512-513 [1969]); Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 843-847 (1994); Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488, 496 (1974); Albee Indus., Inc. v. Inspector of Buildings of Waltham, 10 Mass. App. Ct. 858 (1980); Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. 906 (1997). More particularly, Schedule B of § V (Use Regulations) sets out, as accessory uses permitted in the R-15 single residence district —
“4. Accessory residential building, such as a private garage, playhouse, greenhouse, tool shed, private swimming pool, carport, garage or similar accessory structures.”
The building permit now applies to the structure as revised and in this form was approved by the zoning board and sustained by the court.
The plaintiff Maselbas suggests that the Bownesses are somehow subverting the prohibition on extension of nonconforming buildings and uses through the disguise of an accessory building or use. As the judge discerned, there is no disguise. Cf. Crawford v. Building Inspector of Barnstable, 356 Mass. 174, 179-180 (1969); Carney v. Baltimore, 201 Md. 130, 135-136 (1952). The new structure does not extend the nonconforming home physically by enlarging the footprint or otherwise, nor
The plaintiff complains that the new structure is quite large in relation to the home,
Judgment affirmed.
The vote was three to two to reverse the action of the building inspector, but four votes are required to do so, hence the action was upheld.
The building is nonconforming also because it does not comply exactly with the later adopted front setback requirements.
§ VII A.l.a.: “No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this bylaw.”
§ VII B.l.b.: “No existing structure devoted to a use not permitted by this bylaw in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.”
The figures are not uniformly stated but we may say approximately: area of lot, 46,200 square feet; new structure, height 30 feet, width 30 feet, length 84 feet (area thus 2,520 square feet). Counsel for Maselbas has written that the new structure has height 30 feet, width 35 feet, length 90 feet (area thus 3,150 square feet), and the .existing building 38 by 40 feet (area thus 1,520 square feet).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.