Lemieux v. Ramsey

The plaintiffs, Jason Lemieux and Anthony Ditomasso, filed the present action on November 21, 2006 pursuant to G.L.c. 40A, §17, appealing the Town of Warren Planning Board’s (“Planning Board”) denial of their application for a special permit to convert a two-unit dwelling into a three-unit dwelling. The defendants moved for summary judgment on November 23, 2007. The plaintiffs filed a cross motion for summary judgment on the same date. For the following reasons, after a hearing, the defendants’ motion for summary judgment is denied and the plaintiffs’ cross motion for summary judgment is allowed, except as to the remedy requested. On the issue of whether the plaintiffs’ application for a special permit should be granted, that matter is remanded to the Planning Board.

BACKGROUND

The relevant undisputed facts are as follows. The plaintiffs own a two-family residential dwelling located at 50 Dean Street, Warren, Massachusetts. On March 21, 2005, the plaintiff applied for a zoning permit to convert existing rooms into a third apartment. The building inspector of the Town of Warren rejected the application, finding that the lot and structure did not meet the dimensional requirement for a three-family dwelling as required by the town’s zoning by-law, Section 4.32.3 The building inspector noted that the structure was a pre-existing non-conforming structure and that an alteration would require a special permit pursuant to by-law Section 1.5.4

The plaintiffs applied for a variance from the dimensional requirements. The Zoning Board of Appeals (“Zoning Board”) granted the variance on June 30, 2005. In making its decision, the Zoning Board determined that the plaintiffs property “[did] not meet the dimensional requirements as part of the Warren bylaws.” However, because the dwelling “was once a 28-room boarding house,” the Zoning Board also determined that adding one more unit to the dwelling would “not be a detriment to the surroundings or derogation of the By-law’s [sic] intent.” There was no appeal of the granting of the variance, which was later recorded at the Worcester District Registry of Deeds.

On June 16, 2006, the plaintiffs applied for a special permit from the Planning Board.5 After holding three public hearings, the five-member Planning Board denied the application in a decision dated November 1, 2006. The Planning Board based its denial on the failure to fulfill the requirements in Section *6485.1.1 and Section 4.32. The Planning Board found that under 5.1.1., which requires that the premises be appropriately suitable for the proposed use, the plaintiffs’ property failed to meet Section 3.1.6 Section 3.1 requires that “uses allowed by the Planning Board by Special Permit shall be in conformity with all dimensional requirements and all other applicable requirements of this by-law.” The Planning Board expressly noted that the “ambiguity of the ‘Amended Variance’ by the Zoning Board .of Appeals fails to adequately address the relief granted." The Planning Board voted three to two in favor of the plaintiffs’ application. Because the plaintiffs failed to achieve the required four favorable votes, the Planning Board denied the plaintiffs’ application. The plaintiffs subsequently filed this action.

DISCUSSION

Summary judgment shall be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm’r of Corr., 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c). Pursuant to c. 40A, §17, the court shall not disturb the Planning Board’s decision, unless that decision was based upon a legally untenable ground or is unreasonable, whimsical, capricious, or arbitrary. Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 355 (2001).

The threshold issue is whether §6 or §9 of the Zoning Act governs this action. The defendants argue that its decision was lawful and within its authority because, as a matter of law, it could not grant the plaintiffs’ application for a special permit where the proposed conversion failed to meet the dimensional requirements of by-laws Section 3.1 and 4.32. The plaintiffs claim that the Planning Board erroneously applied the special permit criteria in c. 40A, §9 and in Section 5.1, which corresponds to general use regulations under Section 3. According to the plaintiffs, the appropriate criteria is that of c. 40A, §6 and Section 1.57 dealing with nonconforming structures and uses.

Generally, c. 40A, §6 authorizes the grant of special permits for changes in existing structures and §9 refers to the grant of special permits in general. Walker v. Bd. of Appeals of Harwich 388 Mass. 42, 51-52 (1983), superceded on other grounds as noted by Titcomb v. Bd. of Appeals of Sandwich 64 Mass.App.Ct. 725, 731-32 (2005). Although there is a distinction between nonconforming uses and special permit uses, c. 40A, §6 “authorizes, but does not require, a municipality to choose a special permit application as the procedure for extension or alteration of a nonconforming use.” Shrewsbury Edgemere Assocs. Ltd P’ship v. Bd. of Appeals of Shrewsbury, 409 Mass. 317, 320, 322 (1991) (rejecting developer’s claim that imposing special permit procedure for change of a nonconforming use is contrary to special permits purpose of §9). Pursuant to c. 40A, §6, the town of Warren, therefore, legitimately may choose to require a special permit for any extensions or alterations to either a nonconforming use, id. at 322, or a nonconforming structure, Willard v. Bd. of Appeals of Orleans, 25 Mass.App.Ct. 15, 20 (1987). Accordingly, c. 40A, §6 governs this matter.

Chapter 40A, §6 requires that “in the absence of a variance, any extension or structural change of a nonconforming structure must comply with the applicable zoning ordinance or bylaw. Then, if the proposed extension or change conforms to the by-law,” §6 necessitates the requisite finding articulated in the statute. Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991); Titcomb, 64 Mass.App.Ct. at 729 n.5; Cox v. Bd. of Appeals of Carver, 42 Mass.App.Ct. 422, 426 (1997). Section 6 of the Zoning Act thus permits “extensions and changes to non-conforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures.” Rockwood, 409 Mass. at 364. The Rock-wood test is applicable to any change or substantial extension of nonconforming uses and structures. Cox, 42 Mass.App.Ct. at 426 (concluding that board exceeded its authority in granting a special permit because, absent a variance, use of land failed to meet the zoning by-law’s acreage requirements).

Here, it is undisputed that the plaintiffs’ property does not comply with the dimensional requirements of Warren’s zoning by-laws, either for structures or uses.8 The plaintiffs claim that to the extent the dimensional requirements apply to the proposed change, the variance they obtained satisfies the dimensional requirements. The defendants, on the other hand, claim that by its very definition, a variance constitutes nonconformity, which the by-law forbids.

Although the Planning Board has discretionary authority to deny the plaintiffs’ special permit application, the Planning Board’s denial cannot have been based on a legally untenable ground or be unreasonable, whimsical, capricious, or arbitrary. Davis, 52 Mass.App.Ct. at 355. The court reviews the Planning Board’s decision de novo. Id. Although the plaintiffs had obtained a variance, the Planning Board denied their application for a special permit because their property failed to satisfy the town’s dimensional requirements. The Planning Board was aware of the plaintiffs’ variance because it had explicitly noted that the “ambiguity of the ‘Amended Variance’ by the Zoning Board of Appeals fails to adequately address the relief granted.” In granting the variance, however, the Zoning Board specifically determined that despite the property’s failure to meet the by-laws’ dimensional requirements, a special permit for another dwelling unit “will not deter from the building, it’s [sic] surroundings or the immediate neighborhood.”9

*649The very essence of a variance is to exempt a party from the requirements of an applicable by-law. See, e.g., Lopes v. Bd. of Appeals of Fairhaven, 27 Mass.App.Ct. 754, 756 (1989) (variances “are always in derogation fo the zoning system adopted by the town”); Cavanaugh v. DiFlumera, 9 Mass.App.Ct. 396, 400 (1980) (“some derogation from the by-law’s purpose is anticipated by every variance”). Rockwood and its progeny indicate that if a party obtains a variance, the threshold inquiry of whether the proposed change conforms to the applicable by-law is satisfied. The parties cite no case, and this court is aware of none, indicating the contrary.

Because the Planning Board had found that the property failed to meet the dimensional requirements, it did not make the finding required under Section 1.5 and c. 40A, §6 that the plaintiffs’ proposed conversion of their property “shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood.”10 The failure to do so11 renders the Planning Board’s decision legally untenable and unreasonable. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 73 (2003) (explaining that “the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to . . . deny the . . . special permit application”). This matter, therefore, is remanded to the Planning Board. See Titcomb, 64 Mass.App.Ct. at 731 n.6; Britton, 59 Mass.App.Ct. at 74 n.6 (2003).

ORDER

For the foregoing reasons, the defendants’ motion for summary judgment is DENIED. The plaintiffs’ cross motion for summary judgment is ALLOWED, except as to the remedy requested. The matter is remanded to the Town of Warren Planning Board for a new hearing to make the requisite finding under c. 40, §6, consistent with this Memorandum of Decision and Order.