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Another v. Zoning Board of Appeals of Provincetown

Appeals Court of Massachusetts, Barnstable

May 25, 2018

JONATHAN SINAIKO & another [1]
v.
ZONING BOARD OF APPEALS OF PROVINCETOWN & others. [2]

          Heard: March 12, 2018

         Civil action commenced in the Superior Court Department on September 25, 2015.

         The case was heard by Robert C. Rufo, J., on motions for summary judgment.

          Brian J. Wall for the plaintiffs.

          Christopher J. Snow for David Mayo & another.

          Present: Milkey, Maldonado, & Desmond, JJ.

          MILKEY, J.

         Defendant Stanley Sikorski wants to build a four-bedroom, two-and-a-half story single family residence on a vacant lot (lot) in Provincetown (town). At issue is the application of § 2640 of the town zoning by-law (by-law), which regulates the scale of new construction and additions. Despite the fact that § 2640 expressly states that it "is applicable to all new buildings and all additions in all zoning districts in Provincetown, " the building commissioner and zoning board of appeals (board) concluded that the by-law's proscriptions were inapplicable to the proposed building here. In an appeal brought by abutters Jonathan Sinaiko and Camille Cabrey (abutters) pursuant to G. L. c. 40A, § 17, a Superior Court judge upheld the board's decision on cross motions for summary judgment. The abutters now appeal, arguing that the plain language of § 2640 requires its application here, and that, as applied, the by-law requires Sikorski to seek a special permit for his proposed building. Because we agree, we reverse the judgment.

         Background.[3]

         a. The by-law.

         Section 2640 of the by-law regulates building scale. Its express purpose is to preserve the town's existing character of "buildings that have relatively consistent and harmonious scale within neighborhoods, " and to prevent the construction of "[n]ewer buildings, where the appropriate scale has not been maintained, [that] have disrupted the character of the neighborhoods." By-law § 2640(B). To serve these ends, the by-law limits the size of new buildings and building additions that can be constructed. Those limits are keyed to the size of existing structures (measured by volume) that already exist in the relevant area.

         Under the terms of § 2640, a landowner can -- as of right -- build a new structure (or expand an existing structure) that is up to twenty-five percent larger than the average size of existing buildings in the area (referred to in the by-law as the "neighborhood average").[4] By-law § 2640(D). A landowner can seek to construct a larger building than can be built as of right by applying for a special permit from the board. Id. § 2640(E). The board is vested with broad discretion to grant a special permit where "the deviation [from the scale allowed as of right] is appropriate and [the proposal] meets one or more of [six enumerated] criteria" (the specifics of which we reserve for later discussion). Ibid.

         The details of how the neighborhood average is to be calculated are important.[5] That average is set based on existing structures that lie within 250 feet of the applicable measuring point. That measuring point in turn varies depending on whether the proposal is for new construction or for the expansion of an existing structure. For new construction, the starting point is "the center of the parcel, " while for proposed expansions it is "the center of the proposed renovation." By-law § 2640(C) . Generally, all existing structures that lie within 250 feet of the applicable measuring point are to be included, with the qualification that "the largest and smallest structures" within that radius are to be excluded.[6] Ibid. Thus, the neighborhood average employs a form of what statisticians refer to as a "trimmed mean." See Oxford Dictionary of Statistical Terms 412 (6th ed. 2006).

         b. The proposed building.

         The lot in question is owned by defendant David Mayo, but Sikorski apparently has agreed to purchase it contingent on his obtaining a building permit. The lot, which is rectangular, is over one acre in size, but it is exceptionally long and narrow. Specifically, the lot is only forty-nine feet wide, but over 1, 000 thousand feet long. One of the narrow sides fronts on Bradford Street, with the lot extending north from that street deep into a wooded area.[7]

         Sikorski originally proposed to build a two-family residence at a particular location on the lot. Because of neighborhood opposition to that proposal, Sikorski changed it to a single-family home, reduced its size, moved its location on the lot, and modified its design in certain respects. Under the revised proposal, the building would remain a not insubstantial structure. For example, the building will include two-and-a-half stories[8] -- the maximum allowed in the town[9] -- and comprise 33, 810 cubic feet in volume.[10]

         The proposed house is to be located at the southern edge of the lot, that is, next to Bradford Street. It is undisputed that there are many existing structures in close proximity to that proposed location. For example, as the abutters pointed out in their appeal to the board, there are approximately sixteen structures that lie within 250 foot of the center of the proposed building, and the average volume of those structures --not including the largest and smallest -- is 9, 250 cubic feet. Thus, the proposed building is over three times ...


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